Justices Thomas and Gorsuch: Supreme Court Should Take More Second Amendment Cases

yellowfin · Jun 30, 2017

press1280 said:
Best guess is a case that involves a total ban on carry. Only problem is, no state has a total ban anymore (although a non-resident is banned in certain states and localities).
Next best bet is a split. We have that with Norman now (Peruta was decided similar to the CA2-4 cases that were also denied cert).

As far as Alan Gura I'd really like to know why the SAF and NRA have not tried an OC case in earnest. I really hope they put some Amicus briefs forward when Norman files for cert.

It isn't a lack of a good case, it's the composition of the court. 4 of them don't want it heard because they don't want right to carry applied nationally--they don't like it at all but they know it's legitimate and they don't want to nuke the anti Gun regimes of CA, NY, and NJ which would effectively kill off the left's sacred cow. 3 want it heard but don't trust the other 2 to be reliable enough to win. Of the unreliable two, at least one if not both signed Heller and McDonald because to date their impact is so minimal it didn't matter and by doing so they forstalled a revolt that could happened, and at least one of the two is compromised by being beholden to someone pulling his strings. They play a VERY shady game of keeping up the pretense of non-predetermined outcomes--at least we know for a fact that Breyer and Ginsberg are blatantly dishonest hardcore statists.

jcutonilli · Jun 30, 2017

shacklefordbanks said:
Chess, not checkers. I was proposing the gambit only. Many details are involved. Way too many to flush out in a message board, but a few points:

1. Yes the person that did not apply for a concealed carry permit would have his standing challenged. (Along with anything else Frosh could throw at them.) But that would be appealed all the way up to the SCOTUS with the pure and simple argument that, as long as they where not a prohibited person, they had a Constitutional right to go around openly armed and did not need the Government's permission. It's the "shall not be infringed" argument that for the life of me I cannot understand why there hasn't been a major case brought hanging their hat on the very basic concept written in the Constitution. So much argument is made in muddy water. Who knows what happens on the way up to SCOTUS, but this is something they cannot ignore.

2. The second person is on a parallel track. Not the same one, but both are headed in the same direction and that's a Constitutional right to carry. In this case since Peruta has declared that concealed carry is not a Constitutional right and therefor they have the Constitutional right to open carry since they did not get a concealed carry permit. Again Frosh and company will be throwing the kitchen sink of arguments against this person too. No matter what arguments are brought up, just keep the argument simple, doesn't matter what the State argues it's trumped by "keep and bear" and "shall not be infringed" said "We The People of the United States..."

3. These two cases would feed off each other all the way up to the SCOTUS since the 4th Circuit is so hostile to 2nd Amendment rights. Most likely the cases will be consolidated at cert.

4. Ok, I'm going out on a limb here obviously, but by the time these cases make it to the SCOTUS cert stage Trump will have appointed at least one more justice and maybe two. SCOTUS cannot ignore this question any longer. Cert granted. A divided court rules that, "A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed." means just what it says. QED

5. They both win! We all win!

I get that there are details that you left out, but I fail to see the "gambit" as you call it. It seems to me that you are not reading holding 2 of Heller appropriately. It literally says "Like most rights, the Second Amendment right is not unlimited." It seems to me that the "shall not be infringed" part of the amendment should not be taken literally. You seem to believe that a permit constitutes infringement, yet Heller has said existing laws should be presumed valid. While Heller does not explicitly talk about permits, they have passed on laws that ban "assault weapons". The ban seems to infringe on the right way more than a permit does. What makes you think they will take the permit over the AWB cases?

I think you are misreading Peruta. CCW was rejected because of historical precedent. In order to overcome this precedent you need to address why it occurred and what conditions have and have not changed that would now allow it. Peruta certainly did not address this issue and lost because of it.

You say "We the People" but your argument simply talks about you the individual. It may be helpful to include the impact to the people. I have seen many losses in 2A cases when you simply talk about the individual and ignore the impact of "We the People".

kcbrown · Jun 30, 2017

jcutonilli said:
They cannot argue that it is not good and substantial because they said it was a substantial government interest in Kolbe and Woollard. They are required to allow it because of how they argued Kolbe and Woollard. That is a paradox.

They said "public safety" is a substantial government interest. But as you've already noted, they did not define what "public safety" is.

That means either:

the term is well-defined in prior jurisprudence and they're using the term in that manner, in which case it's on us to show how the individual safety model that you've been talking about (and which I most certainly agree with as a matter of both principal and practice) intersects with it such that to deny the right to arms in public is to deny public safety
the term is not well-defined, in which case the court gets to choose whatever definition yields the outcome it desires. And actually, this might be the case even if the term is well-defined by past jurisprudence. Courts are very good at finding arguments that support their desired conclusions, assuming one of the parties didn't already do the heavy lifting for them.

The first case is the only one we have any hope of winning. As such, what prior jurisprudence defines the term "public safety" in such a way that it is to our advantage to make the argument you are proposing?

yellowfin · Jun 30, 2017

How is the public not made up of individuals?

yellowfin · Jun 30, 2017

jcutonilli said:
I think you are misreading Peruta. CCW was rejected because of historical precedent. In order to overcome this precedent you need to address why it occurred and what conditions have and have not changed that would now allow it. Peruta certainly did not address this issue and lost because of it.

We have an absolutely rock solid basis on which to address the matter but for some reason our side never does. It somehow never occurs to lawyers on our side to ever tell the truth: the other side is blatantly lying about any intention whatsoever to preserve safety or any legitimate interest whatsoever, and instead it is an extension of disgusting cultural bigotry and sociopathic desire to control and subjugate. The reason concealed carry was ever banned in the first place, and it is documented as so, was to disarm minorities and politically disfavored classes of people for purposes of control and exploitation. It is known for a fact to have been a cornerstone of Jim Crow.

Open carry was left technically legal, but those who were disfavored who did so would then be arrested on charges of disturbing the peace, terrorizing the public, etc.--so it was illegal to carry concealed without a permit, and effectively illegal in practice for non-whites to OC as well. When the so-called civil rights era rolled around, the same disgusting negative attitude didn't go away, it just shifted to gun owners as a whole as the political left decided, much as they do today, that traditional American masculinity was the new evil to treat the same way as outcast races. It's all about "Ew, keep those icky people away from me!" Of course we know what US v. Cruikshank was about: mass murder was excusable because the state had a prerogative to ignore 2A rights of its citizens because it wasn't really applicable. Guess what, a lot of it was used as the basis of Plessy v. Ferguson.

We should be hammering the anti gun governments mercilessly with this, calling them on exactly what they are and not allow them to keep squirming their way out of it, until they collapse into a sobbing, quivering heap. But some idiot keeps deciding we should still play nice guy.

kcbrown · Jun 30, 2017

yellowfin said:
How is the public not made up of individuals?

It's the courts that have managed to come up with a definition of "public safety" that somehow does not involve the safety of individuals. It is utterly irrational of them, obviously, but that's what happens when a court makes a decision on the basis of what it wants instead of what is logical.

pcfixer · Jul 6, 2017

kcbrown said:
It's the courts that have managed to come up with a definition of "public safety" that somehow does not involve the safety of individuals. It is utterly irrational of them, obviously, but that's what happens when a court makes a decision on the basis of what it wants instead of what is logical.

Now that many of you intellectuals that post here frequently would come together with a plan to stand up against the tyranny espoused by the GA and judiciary's. Hamilton wrote much about these issue in Federalist papers and especially No. 78.

According to Federalist No. 78, the federal courts have a duty to interpret and apply the Constitution, and to disregard any statute that is inconsistent with the Constitution:

If there should happen to be an irreconcilable variance between the two, that which has the superior obligation and validity ought, of course, to be preferred; or, in other words, the Constitution ought to be preferred to the statute, the intention of the people to the intention of their agents. . . .

Federalist No. 78 argues that the power of judicial review should be used by the judicial branch to protect the liberties guaranteed to the people by the Constitution and to provide a check on the power of the legislature:

[W]here the will of the legislature, declared in its statutes, stands in opposition to that of the people, declared in the Constitution, the judges ought to be governed by the latter rather than the former. They ought to regulate their decisions by the fundamental laws, rather than by those which are not fundamental. . . .

[W]henever a particular statute contravenes the Constitution, it will be the duty of the judicial tribunals to adhere to the latter and disregard the former.

TRAXLER, Circuit Judge, with whom NIEMEYER, SHEDD, and AGEE, Circuit Judges, join, dissenting: (page 88 of 116) Today the majority holds that the Government can take semiautomatic rifles away from law-abiding American citizens. In South Carolina, North Carolina, Virginia, West Virginia and Maryland, the Government can now tell you that you cannot hunt with these rifles. The Government can tell you that you cannot shoot at targets with them. And, most importantly, the Government can tell you that you cannot use them to defend yourself and your family in your home. In concluding that the Second Amendment does not even apply, the majority has gone to greater lengths than any other court to eviscerate the constitutionally guaranteed right to keep and bear arms.

Here again Hamilton in Federalist No.51 Madison explained, “Justice is the end of government. It is the end of civil society.” "Government has no authority to take away or limit one of the Bill of Rights"

iH8DemLibz · Jul 6, 2017

There weren't SJW Judges in Hamilton's time.

His argument now falls on deaf ears.

CrueChief · Jul 6, 2017

iH8DemLibz said:
There weren't SJW Judges in Hamilton's time.

His argument now falls on deaf ears.

No they hear it they just think its outdated and they know better, as we are in a more civilized time. :sad20:

Winephile · Jul 7, 2017

Bork could never make it to the Supremes...hence the political equivalent of "bend over and take it" which is the term "being Borked".

pcfixer · Jul 7, 2017

The Constitution’s Structural Limitations on Power Should Be the Focus of the Bill of Rights by Patrick M. Garry

http://www.libertylawsite.org/liber...er-should-be-the-focus-of-the-bill-of-rights/

Under a limited government model, the Bill of Rights can be understood within the context of a larger goal—namely, ensuring the maintenance of limited government within the constitutional scheme. As the primary advocates for the Bill of Rights, the Anti-Federalists sought to achieve not particular substantive protections of a finite list of specific individual rights, but rather an assurance that the new federal government would indeed be a government of limited powers.[3] The Anti-Federalists feared that the original Constitution had not adequately prevented the new government from overstepping its allotted powers. To further secure a limited government, the Bill of Rights specified certain areas in which the government expressly had no power to act. Whereas the rest of the constitutional scheme set out structural provisions for the overall maintenance of limited government, the Bill of Rights articulated specific substantive areas in which the principle of limited government was to prevail. Nonetheless, the impetus for the Bill of Rights arose from the same limited government concerns that were incorporated in the original Constitution, and in this way the Bill of Rights is consistent with the original Constitution.

Furthermore, if the Bill of Rights was meant to protect fundamental or natural rights, it is curious as to why those protections were not granted vis-à-vis the states. When the Framers did seek to protect a right or freedom on its own accord, rather than as a means of limiting power, they did so in a manner that would protect that right or freedom from all governments, including state governments. The Contract Clause, for instance, specifically applies to both the federal and state governments.

As I see Garry's argument along with Madison Federalist papers, current political bias thru state principles and regulations (ie FSA 2013) are not of a limited government. I think to many a state legislature and progressive judge see the statements of Heller v DC Scalia wrote "the 2nd Amendment is not unlimited". Seems to me the courts and lawyers are deciding what the limits are with limit type of firearm and magazine size.
Maybe, just maybe this is NOT what Scalia intended? Quoted: “We’ll see,” he answered. “I mean, obviously the (Second) amendment does not apply to arms that cannot be hand-carried. It’s to keep and bear — so it doesn’t apply to cannons." “But I suppose there are handheld rocket launchers that can bring down airplanes that will have to be … decided.”

Justices Thomas and Gorsuch: Supreme Court Should Take More Second Amendment Cases

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