5/11 scotus briefs

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  • press1280

    Ultimate Member
    Jun 11, 2010
    7,878
    WV
    He certainly identifies a problem, but where is the error with the intermediate scrutiny standard the court applied? All he can say is that it appears to be made up, there is no "core" vs peripheral distinction, and it is “a tripartite binary test with a sliding scale and a reasonable fit.”. I get he disagrees with the result, but what exactly is wrong with the lower court's analysis.

    Maybe no other enumerated right uses this method?
     

    jcutonilli

    Ultimate Member
    Mar 28, 2013
    2,474
    There was absolutely no distinction from CA7 as far as concealed not being part of the right when open carry is banned. If that was all it took then they could have said that and called it a day.

    I am not that familiar with the case. I took a quick look at the petition to see any problems that I saw with SCOTUS taking the case. The biggest problem with CCW is the historical precedent and figuring out how to address the issue. The quick look I took does not indicate that they addressed this issue. The word "open" is not found in the petition so it does not appear to be an open vs concealed carry issue. The case that is presented appears to be solely a CCW issue. Whether that was specifically addressed by the lower court is not really the issue. SCOTUS is quick to dispose of cases that do not resolve all the relevant issues. This case left a very big hole with regard to CCW.
     

    jcutonilli

    Ultimate Member
    Mar 28, 2013
    2,474
    Maybe no other enumerated right uses this method?

    SCOTUS certainly uses intermediate scrutiny for a number of enumerated rights including the first amendment. Public safety tends not to play to role in most of these other cases, yet is front and center with respect to every 2A case. Heller never really addressed the public safety part of the right. There certainly have been some historical prohibitions and restrictions (see Breyer's dissent and Scalia's opinion), but there has not been any generalized principles derived from these restrictions.

    This is not to say public safety is never an issue with other rights. Korematsu is a first amendment case where public safety played a prominent role in the case and they supposedly used the strictest scrutiny. They deferred to the government in that case also. I seem to recall a recent non 2A case where this happened also. SCOTUS has never really addressed why they got Korematsu wrong. It was not until recently that they even addressed it was wrong. I believe looking at cases where the court got it wrong and understanding why is helpful to understand why the courts are getting the 2A wrong.
     

    Allen65

    Ultimate Member
    MDS Supporter
    Jun 29, 2013
    7,063
    Anne Arundel County
    This is not to say public safety is never an issue with other rights. Korematsu is a first amendment case where public safety played a prominent role in the case and they supposedly used the strictest scrutiny. They deferred to the government in that case also. I seem to recall a recent non 2A case where this happened also. SCOTUS has never really addressed why they got Korematsu wrong. It was not until recently that they even addressed it was wrong. I believe looking at cases where the court got it wrong and understanding why is helpful to understand why the courts are getting the 2A wrong.

    To my layman's eyes, the real problem is with deference, not tiers of scrutiny. Virtually any non-irrational argument the State makes that a particular law will improve public safety is accepted at face value by courts, with a very high, of not impossible, hurdle for the opposing party to overcome.

    If the State is going to assert a defence to its law that it improves public safety, it should be required to submit evidence beyond "because we say so". The arguments and speculative evidence the District Court accepted in the MD AWB case a few years back is a prime example.
     

    HaveBlue

    HaveBlue
    Dec 4, 2014
    733
    Virginia
    Why were the hearings that these 10 cases already had not fair? I get you don't like the outcome, but why were they not fair? When I read the cert petitions I don't see that explained there either.

    Maybe “fair” was the wrong word. IANAL so how does “an objective comparison between the wording in the COTUS based on how those words were understood at the time and the various laws in question to see if the law materially infringes on the terms of that foundational contract. “
     

    HaveBlue

    HaveBlue
    Dec 4, 2014
    733
    Virginia
    Why do you need to use intermediate scrutiny? Text history and tradition seem to demonstrate that CCW is not part of the right. Heller seems to acknowledge this. I do not see anywhere in their cert petition that acknowledges why this historical prohibition occurred or why things have changed.


    Free speech is protected. Whispering is not?

    You can exercise you right to speak freely. However speech, particularly whispered speech can be dangerous. Therefore utterances must be loud enough that Anyone nearby can clearly hear what is being spoken.
     

    rambling_one

    Ultimate Member
    MDS Supporter
    Oct 19, 2007
    6,725
    Bowie, MD
    What constitutes the “public” if not the aggregate of its individuals? Individual safety cannot be separated from the aggregate. If people are denied the right of self defense, its safety becomes the responsibility of government. Since that is impossible, SCOTUS must interpret the 2A as it was intended.
     

    jcutonilli

    Ultimate Member
    Mar 28, 2013
    2,474
    Maybe “fair” was the wrong word. IANAL so how does “an objective comparison between the wording in the COTUS based on how those words were understood at the time and the various laws in question to see if the law materially infringes on the terms of that foundational contract. “

    You can use what ever term you like. It does not change the question, which is why did the lower courts get it wrong and what is SCOTUS supposed to change so that it does not happen again. That is what is missing and likely the reason they were not granted cert. People blamed Kennedy now they blame Roberts. Nobody wants to understand there may be problems with the arguments.
     

    jcutonilli

    Ultimate Member
    Mar 28, 2013
    2,474
    Free speech is protected. Whispering is not?

    You can exercise you right to speak freely. However speech, particularly whispered speech can be dangerous. Therefore utterances must be loud enough that Anyone nearby can clearly hear what is being spoken.

    I don't understand the point you are trying to make.

    I am referring to the part in the Heller decision where they stated
    (2) Like most rights, the Second Amendment right is not unlimited. It is not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose: For example, concealed weapons prohibitions have been upheld under the Amendment or state analogues. The Court’s opinion should not be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms. Miller’s holding that the sorts of weapons protected are those “in common use at the time” finds support in the historical tradition of prohibiting the carrying of dangerous and unusual weapons. Pp. 54–56.
    emphasis added
     

    CrueChief

    Cocker Dad/RIP Bella
    Apr 3, 2009
    2,999
    Napolis-ish
    Why hasn't some paralegal for one of the 2a .orgs asked some anonymous clerk in a coffee shop, "hey what's it gonna take?" "what are the magic words?" Or maybe one of the lawyers buys Thomas a few shots of his favorite whiskey at the next DC social.
     

    DanGuy48

    Ultimate Member
    From post #170....”Miller’s holding that the sorts of weapons protected are those “in common use at the time” finds support in the historical tradition of prohibiting the carrying of dangerous and unusual weapons. Pp. 54–56.”

    As specific in writing and as astute as these justices are, that strikes me as a strange comment. A weapon is, by definition it seems to me, dangerous. So are they deliberately saying that the weapon must be unusual as well as dangerous, or was this just a clumsy bit of commentary? Is that reinforcement of the common use idea because unusual would mean not in common use?
     

    jcutonilli

    Ultimate Member
    Mar 28, 2013
    2,474
    From post #170....”Miller’s holding that the sorts of weapons protected are those “in common use at the time” finds support in the historical tradition of prohibiting the carrying of dangerous and unusual weapons. Pp. 54–56.”

    As specific in writing and as astute as these justices are, that strikes me as a strange comment. A weapon is, by definition it seems to me, dangerous. So are they deliberately saying that the weapon must be unusual as well as dangerous, or was this just a clumsy bit of commentary? Is that reinforcement of the common use idea because unusual would mean not in common use?

    The terminology comes from the common law offense of affray. An act that terrorizes people. Fighting in public was one way to cause an affray. Carrying dangerous and unusual weapons in a manner that would terrorize the people was another way to cause an affray. Common weapons would not cause an affray. The affray dates back to the Statute of Northhampton (1328), which is why you see Thomas' recent dissent go so far back in history. Exactly what the terms mean has not been decided as of yet.
     

    Kharn

    Ultimate Member
    Mar 9, 2008
    3,578
    Hazzard County
    And the quibbling over Sir John Knight's misdeeds in the 1600s by the various amicus history professors. He and his unfriendly band went around terrorizing townspeople but since he was knighted, he got far more attention than any other bandit would have received from the court.
     

    press1280

    Ultimate Member
    Jun 11, 2010
    7,878
    WV
    To my layman's eyes, the real problem is with deference, not tiers of scrutiny. Virtually any non-irrational argument the State makes that a particular law will improve public safety is accepted at face value by courts, with a very high, of not impossible, hurdle for the opposing party to overcome.

    If the State is going to assert a defence to its law that it improves public safety, it should be required to submit evidence beyond "because we say so". The arguments and speculative evidence the District Court accepted in the MD AWB case a few years back is a prime example.

    This. Again, I'll point toward the Culp v. Raul case. The court in the Moore (CA7's precedent) case ruled a total public carry ban was unconstitutional. The Culp panel ruled that the residents of 45 other states, through no fault of their own, could be denied from even applying for a carry permit. They based it on the theory that some "bad apple" will apply for a CCW and somehow manage to come to IL and cause mayhem if they're not constantly under some kind of surveillance.
     

    press1280

    Ultimate Member
    Jun 11, 2010
    7,878
    WV
    I don't understand the point you are trying to make.

    I am referring to the part in the Heller decision where they stated
    emphasis added

    If you read the Peruta dissent, you'll see Thomas and Gorsuch saw the CA9 opinion for what it was and did not buy the analysis by CA9 that CCW can be banned regardless of what the OC law is. That's 2 judges there, add in Kavanaugh with the Rogers dissent. Heck even the dissent in Wrenn didn't go the route of OC vs CCW.
    I think the whole CCW issue is a giant red herring. CA7 in Culp made no such distinction, and the FL supremes in Norman held that OC can be banned in favor of shall issue CCW. CA9 painted themselves into a corner with the Peruta en banc, so we'll see what kind of legal gymnastics they'll try to create in Young and rule a virtual CCW and OC is legal.
     

    delaware_export

    Ultimate Member
    Apr 10, 2018
    3,143
    Ima redneck with no legal credentials.. but my thinking is about the same as yours.

    Ok, if cc can be denied by .gov, and oc is unlawful, by law passed by .gov, That leaves NO C. Period. By law abiding citizens.

    So young, when heard, and presumably appealed after being shot down en ban, effectively addresses the “is possessing any gun outside the home” a right.

    Hawaii and other places say no.

    So. Where does it go?

    If you read the Peruta dissent, you'll see Thomas and Gorsuch saw the CA9 opinion for what it was and did not buy the analysis by CA9 that CCW can be banned regardless of what the OC law is. That's 2 judges there, add in Kavanaugh with the Rogers dissent. Heck even the dissent in Wrenn didn't go the route of OC vs CCW.
    I think the whole CCW issue is a giant red herring. CA7 in Culp made no such distinction, and the FL supremes in Norman held that OC can be banned in favor of shall issue CCW. CA9 painted themselves into a corner with the Peruta en banc, so we'll see what kind of legal gymnastics they'll try to create in Young and rule a virtual CCW and OC is legal.
     

    jcutonilli

    Ultimate Member
    Mar 28, 2013
    2,474
    This. Again, I'll point toward the Culp v. Raul case. The court in the Moore (CA7's precedent) case ruled a total public carry ban was unconstitutional. The Culp panel ruled that the residents of 45 other states, through no fault of their own, could be denied from even applying for a carry permit. They based it on the theory that some "bad apple" will apply for a CCW and somehow manage to come to IL and cause mayhem if they're not constantly under some kind of surveillance.

    Culp argued it was about tiers of scrutiny. They wanted strict scrutiny. I don't see them adopting strict scrutiny to solve the problem. Yet another reason to deny Culp.
     

    jcutonilli

    Ultimate Member
    Mar 28, 2013
    2,474
    If you read the Peruta dissent, you'll see Thomas and Gorsuch saw the CA9 opinion for what it was and did not buy the analysis by CA9 that CCW can be banned regardless of what the OC law is. That's 2 judges there, add in Kavanaugh with the Rogers dissent. Heck even the dissent in Wrenn didn't go the route of OC vs CCW.
    I think the whole CCW issue is a giant red herring. CA7 in Culp made no such distinction, and the FL supremes in Norman held that OC can be banned in favor of shall issue CCW. CA9 painted themselves into a corner with the Peruta en banc, so we'll see what kind of legal gymnastics they'll try to create in Young and rule a virtual CCW and OC is legal.

    CCW is not a red herring. It is one of the reasons why the government keeps winning. It demonstrates that the gov can restrict public carry over public safety issues. Trying to get the court to see things differently seems pointless. It will be 12 years in less than 2 weeks since Heller was decided. The only major cases to come out was McDonald, which applied the 2A to the states. How much longer is it going to take to learn that the current approach is not working.

    The problem with Peruta was that they failed to rebut the historical precedent and the en banc court dismissed the case because of it. You can pretty much read the the en banc opinion to see that they were misinterpreting the precedent by following the outcome without understanding the reasoning behind the outcome, yet no attempt was made to point this out.
     

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