Baird v Bercerra

Blacksmith101 · Apr 12, 2019

xKtF said:
https://www.subscriptlaw.com/blog/levels-of-scrutiny this is what I found, maybe someone can link you to something better though

That is good but it also illustrates my problem. It shows three levels of scrutiny but the cases we are following seem to be decided on and reference many other nuances called "scrutiny".

Heller scrutiny referenced in the decision on the California magazine ban.
Multiple step review "intermediate scrutiny" in several case.
Then "Text history and tradition" mentioned in this thread for example.

The California magazine ban opinion actually covered several levels of scrutiny and said the case failed all of them. So my question is what are the "legal" levels of scrutiny and when does one stop and the next begin and who decides what, where, and when? Also what are the differences legally between, Legitimate, Important, and Compelling; and "Rationally Related", "Substantially Related", "Narrowly Tailored" ?

I don't want or need the Bar Review definitions just a dumb old country boys level of understanding.

Some Guy · Apr 13, 2019

I think state and local governments are trying to define bearing as carrying or transporting in a locked case and separate from ammunition. This definition fails the common usage and historical tests. I believe it fails logic and precedent related to actual enfranchisement, too. Nevertheless, I believe those who suppress 2A civil rights are attempting to normalize it. I think that is what the 9th will try to do. Neither concealed nor open. BS.

Allen65 · Apr 13, 2019

Some Guy said:
I think state and local governments are trying to define bearing as carrying or transporting in a locked case and separate from ammunition. This definition fails the common usage and historical tests. I believe it fails logic and precedent related to actual enfranchisement, too. Nevertheless, I believe those who suppress 2A civil rights are attempting to normalize it. I think that is what the 9th will try to do. Neither concealed nor open. BS.

I don't think that redefinition will stand any level of scrutiny. The word for what they're talking about already exists in law, it's called "transport". "Bear" means possessing something fully operable for use, not to move it from Point A to Point B.

PowPow · Apr 13, 2019

xKtF said:
https://www.subscriptlaw.com/blog/levels-of-scrutiny this is what I found, maybe someone can link you to something better though

Rational Basis Review: I think it's a big stretch to say that Article I Section 8 ("To regulate commerce with foreign nations, and among the several states, and with the Indian tribes;") gives the federal government the right to regulate the economy. We need to roll back some of these "gift ideas" from the progressive courts. Levels of scrutiny seem like an invention to justify nullifying our constitution, its origins, and intent of its creators.

Allen65 · Apr 13, 2019

PowPow said:
Rational Basis Review: I think it's a big stretch to say that Article I Section 8 ("To regulate commerce with foreign nations, and among the several states, and with the Indian tribes;") gives the federal government the right to regulate the economy. We need to roll back some of these "gift ideas" from the progressive courts. Levels of scrutiny seem like an invention to justify nullifying our constitution, its origins, and intent of its creators.

The problem is most commerce these days has an interstate aspect to it. From credit card processing, use of US currency, out of state origin of components of goods sold, to the electricity that powers lights in a store, there are so many possible interstate nexii (nexuses?) that almost any commercial transaction involves interstate commerce and therefore is subject to regulation by Congress.

PowPow · Apr 13, 2019

Allen65 said:
The problem is most commerce these days has an interstate aspect to it. From credit card processing, use of US currency, out of state origin of components of goods sold, to the electricity that powers lights in a store, there are so possible interstate nexii (nexuses?) that almost any commercial transaction involves interstate commerce.

Exactly. It's very problematic to say the interstate commerce clause gives the federal government this tremendous amount of power. That's just one problem with levels of scrutiny. I didn't mean to derail the thread, but I just want folks to know that these concepts are artificial creations to nullify our constitution, its origins, and the intent of its creators. Don't accept them as a given. They are not.

GTOGUNNER · Apr 13, 2019

danb said:
Sort of. Maryland permit is for handguns. Open carry of long guns is legal although I would not recommend it outside of hunting season. This was a point Doogie made to the 4th.

The catch is that at the county or city level open carry of long guns may not be legal in places like Baltimore, but is legal in rural areas. So while the state does not prohibit it, localities do.

A secondary question is: if some form of carry is allowed, does it need to be handguns?

Why haven't we, collectively, Sued Baltimore and other counties or cities over this. Like was done with stun guns?

Allen65 · Apr 13, 2019

PowPow said:
Exactly. It's very problematic to say the interstate commerce clause gives the federal government this tremendous amount of power. That's just one problem with levels of scrutiny.

I'm not sure how that can be changed. COTUS was written when each state was almost its own, independent economy with interstate trade only in goods that weren't produced locally, and transportation was relatively expensive to the cost of goods.

Modern transportation and the growth in the US economy over the past 200 years have turned the US into single, amorphous economic entity with goods, services, and money freely flowing across state lines. That has made us the wealthiest nation on the planet, but it means that states are no longer the standalone economies they were 240 years ago.

jcutonilli · Apr 13, 2019

Blacksmith101 said:
That is good but it also illustrates my problem. It shows three levels of scrutiny but the cases we are following seem to be decided on and reference many other nuances called "scrutiny".

Heller scrutiny referenced in the decision on the California magazine ban.
Multiple step review "intermediate scrutiny" in several case.
Then "Text history and tradition" mentioned in this thread for example.

The California magazine ban opinion actually covered several levels of scrutiny and said the case failed all of them. So my question is what are the "legal" levels of scrutiny and when does one stop and the next begin and who decides what, where, and when? Also what are the differences legally between, Legitimate, Important, and Compelling; and "Rationally Related", "Substantially Related", "Narrowly Tailored" ?

I don't want or need the Bar Review definitions just a dumb old country boys level of understanding.

"Scrutiny" is not really a law per se, but a set of guidelines that help the court decide what is Constitutional and what is not. "Text, history, and tradition" is another way the court uses to decide what is Constitutional and what is not.

Scrutiny is not well defined, which is why you hare having a lot of trouble understanding it. It is more of a spectrum. The levels are the three most common points, but there are other ways to define parts of the spectrum. Heller did not really define a specific level, but referred to something more than rational basis. Legitimate, Important, and Compelling; and "Rationally Related", "Substantially Related", "Narrowly Tailored" are the typical ways that the three most common levels are defined, but they don't define them very well.

The multi step process is how the court applies scrutiny to a particular case. You first figure out what level is appropriate based on they type of case. You then figure out if the constitution applies to the specific situation. You then figure out what type of government interest is involved and how related that interest is to the situation. The specifics are based on how the court has ruled in past cases.

One of the problems we are running into is that they are not well defined and what one court says is intermediate scrutiny is rational basis to another court. SCOTUS has not step in to address the situation. I do not believe the lawyers that represent us have done a good job trying to explain why the court got it wrong. It is simply a statement that the court got it wrong. No explanation as to how the court should change things to get a better answer.

The court threw a bunch of Japanese Americans in jail during WWII because the government said they might present a hazard to public safety. SCOTUS has only recently admonished that decision, but they have not technically overruled the decision.

HaveBlue · Apr 13, 2019

danb said:
Sort of. Maryland permit is for handguns. Open carry of long guns is legal although I would not recommend it outside of hunting season. This was a point Doogie made to the 4th.

The catch is that at the county or city level open carry of long guns may not be legal in places like Baltimore, but is legal in rural areas. So while the state does not prohibit it, localities do.

A secondary question is: if some form of carry is allowed, does it need to be handguns?

Good question! I like options but if I had to pick, I would agree with Scalia.

"It is enough to note, as we have observed, that the American people have considered the handgun to be the quintessential self-defense weapon. There are many reasons that a citizen may prefer a handgun for home defense: It is easier to store in a location that is readily accessible in an emergency; it cannot easily be redirected or wrestled away by an attacker; it is easier to use for those without the upper-body strength to lift and aim a long gun; it can be pointed at a burglar with one hand while the other hand dials the police. Whatever the reason, handguns are the most popular weapon chosen by Americans for self-defense in the home, and a complete prohibition of their use is invalid."

Blacksmith101 · Apr 13, 2019

jcutonilli said:
"Scrutiny" is not really a law per se, but a set of guidelines that help the court decide what is Constitutional and what is not. "Text, history, and tradition" is another way the court uses to decide what is Constitutional and what is not.

Scrutiny is not well defined, which is why you hare having a lot of trouble understanding it. It is more of a spectrum. The levels are the three most common points, but there are other ways to define parts of the spectrum. Heller did not really define a specific level, but referred to something more than rational basis. Legitimate, Important, and Compelling; and "Rationally Related", "Substantially Related", "Narrowly Tailored" are the typical ways that the three most common levels are defined, but they don't define them very well.

The multi step process is how the court applies scrutiny to a particular case. You first figure out what level is appropriate based on they type of case. You then figure out if the constitution applies to the specific situation. You then figure out what type of government interest is involved and how related that interest is to the situation. The specifics are based on how the court has ruled in past cases.

One of the problems we are running into is that they are not well defined and what one court says is intermediate scrutiny is rational basis to another court. SCOTUS has not step in to address the situation. I do not believe the lawyers that represent us have done a good job trying to explain why the court got it wrong. It is simply a statement that the court got it wrong. No explanation as to how the court should change things to get a better answer.

The court threw a bunch of Japanese Americans in jail during WWII because the government said they might present a hazard to public safety. SCOTUS has only recently admonished that decision, but they have not technically overruled the decision.

Thank you. Still not clear but now I understand why it is not clear.

Inigoes · Oct 10, 2019

California Gun Owners Fight Open-Carry Restrictions

https://www.courthousenews.com/california-gun-owners-fight-open-carry-restrictions/

2nd=Good+Substantial · Oct 10, 2019

Inigoes said:
California Gun Owners Fight Open-Carry Restrictions

https://www.courthousenews.com/california-gun-owners-fight-open-carry-restrictions/

Thanks for the update.

motorcoachdoug · Oct 10, 2019

Things that make you go hmmmm.. Very interesting as well.

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