Supreme Court Takes Major NRA Second Amendment Case from New York

rascal · Mar 28, 2020

E.Shell said:
It's funny how everyone thinks that SCOTUS is obligated to do the right thing and is not somehow part of the problem..

Makes it seem like this is their very first 2A case (again) and they never had a chance to clearly and firmly put ALL of this crap to rest before. They won't even enforce their own prior, incredibly "narrow" rulings.

"obligated" no. motivated by multiple consideration self interest? Yes.

But that doesn't alter the stone cold fact that of the 700 or so federal judges and justices, GOP appointed federal justices are massively more lily to rule in support the individuals second Amendment right and Democrat appointed ones massively more likely to oppose the right. Sam with elected executive and legislative branch officials.

You can find outliers but that doesn't change the overwhelming data trend

wjackcooper · Mar 28, 2020

Rascal wrote:

“But that doesn't alter the stone cold fact that of the 700 or so federal judges and justices, GOP appointed federal justices are massively more lily to rule in support the individuals second Amendment right and Democrat appointed ones massively more likely to oppose the right.”

The entire post Heller problem in one sentence, thanks.

Regards
Jack

E.Shell · Mar 28, 2020

Muleskinner said:
They are NOT the only solution remaining unless you and 120 million others are willing to let the government disarm you.

We are actually getting pretty good at this, should be easy-peasy soon.

E.Shell · Mar 28, 2020

wjackcooper said:
...The entire post Heller problem in one sentence, thanks...

Aye...how can there even BE a 'post-Heller' problem? Because they will not even enforce their own (incredibly narrow) rulings.

jcutonilli · Mar 28, 2020

rascal said:
"obligated" no. motivated by multiple consideration self interest? Yes.

But that doesn't alter the stone cold fact that of the 700 or so federal judges and justices, GOP appointed federal justices are massively more lily to rule in support the individuals second Amendment right and Democrat appointed ones massively more likely to oppose the right. Sam with elected executive and legislative branch officials.

You can find outliers but that doesn't change the overwhelming data trend

I am not sure it is totally the judges fault. Heller never really answered the question of public safety vs the right. There are certainly parts of the opinion that one could point to that allows each side to claim what it claims.

While SCOTUS has not stepped in to correct the problem, it has not really been presented a case that definitively answers the question. This case doesn't really answer that question, but the lower courts reasoning deviates too far toward public safety for the majority of justices.

E.Shell · Mar 28, 2020

jcutonilli said:
I am not sure it is totally the judges fault. Heller never really answered the question of public safety vs the right. There are certainly parts of the opinion that one could point to that allows each side to claim what it claims.

Agreed, and what fine footwork it was...to affirm a right in such ambiguous fashion that the ruling may be interpreted as needed. Exactly what they are there for. :thumbsup:

While SCOTUS has not stepped in to correct the problem, it has not really been presented a case that definitively answers the question. This case doesn't really answer that question, but the lower courts reasoning deviates too far toward public safety for the majority of justices.

I understand your point, but at what juncture in ANY firearms case could they not have simply said "The enumerated Constitutional Right plainly circumvents this law and others like it." and ruled in favor of the 2A. They have had this opportunity time and again. This whole balancing act ignores the plain text and clear intent of the BoR and perpetuates the government's "confusion" about "interpretation" and implies that "scrutiny" of some degree is necessary and even permissible. "Shall not be infringed..." except with enough scrutiny.

jcutonilli · Mar 29, 2020

E.Shell said:
Agreed, and what fine footwork it was...to affirm a right in such ambiguous fashion that the ruling may be interpreted as needed. Exactly what they are there for. I understand your point, but at what juncture in ANY firearms case could they not have simply said "The enumerated Constitutional Right plainly circumvents this law and others like it." and ruled in favor of the 2A. They have had this opportunity time and again. This whole balancing act ignores the plain text and clear intent of the BoR and perpetuates the government's "confusion" about "interpretation" and implies that "scrutiny" of some degree is necessary and even permissible. "Shall not be infringed..." except with enough scrutiny.

Hindsight is always 20/20. It is easy now to understand the holes that it left now that many courts have evaluated it.

SCOTUS plainly acknowledges that Heller does not "clarify the entire field". "And there will be time enough to expound upon the historical justifications for the exceptions we have mentioned if and when those exceptions come before us."

Given how close the vote was and the need to get five votes I think they were more concerned about maintaining a majority than evaluating how future courts would interpret it.

Simply ruling that a law is unconstitutional does not really help clarify the field. It creates even more confusion because it does not really explain why.

Scrutiny is a process that they developed for other constitutional rights and is a process that courts are familiar with. Given how often it is used, it is unlikely that they will stop using it.

The problem is that Heller did not adopt a process that other courts are very familiar with. Heller also claimed that the law would be unconstitutional if they used the familiar scrutiny process, but did not explain why.

The lower courts have decided to use that familiar process to determine that most any gun law is actually constitutional. The real question that the court needs to answer is why is the lower court getting it wrong and what process should they use.

SCOTUS get 7000-8000 petitions a year and take 70-80 cases. They have more cases than they need and can wait for a better case to come along the next time.

The problem is that none of the 2A cases have allowed them to really answer that question. SCOTUS is waiting for a case that allows them to answer why.

I think the reason they took this case is that they do not really need to answer why. You can categorically rule that laws that prevent a person from lawfully transporting an arm from one lawful location to another is unconstitutional. It can be a very narrow ruling that as of now only really applies to NYC.

HaveBlue · Mar 30, 2020

Everything you said makes perfect sense but doesn’t account for the other held cases. If they are really only interested in transport, why hold the other non-transport 2A cases? They haven’t been bashful about denying cert to 2A cases. If those case are bad or uncomfortable, why not just deny them? Optics?

jcutonilli · Mar 30, 2020

HaveBlue said:
Everything you said makes perfect sense but doesn’t account for the other held cases. If they are really only interested in transport, why hold the other non-transport 2A cases? They haven’t been bashful about denying cert to 2A cases. If those case are bad or uncomfortable, why not just deny them? Optics?

I don't think they are really only interested in transport. Thomas and Gorsuch have written or joined dissents for denying cert, which indicate a willingness to expand the right. This case is about expanding the 2A. It is unclear exactly how much they will expand it. I am expecting something narrow based on how the case was argued and the similarity of arguments to other cases they denied if they decide the case on the merits.

They started holding the cases when NYC sent SCOTUS the intention to change the NYC law. That may or may not be a coincidence. It also may have something to do with Kavanaugh becoming a Justice.

The cases are not necessarily bad or uncomfortable, they simply do not help the court identify the errors the lower court made and how to correct them. SCOTUS tends to limit their opinion to what has been argued. They reargued the Citizen United case because the original argument did not address the overturning of previous precedent.

The two most likely scenarios with the held cases is that they will either send them back to the lower court to be reevaluated based on the opinion in this case or they will evaluate these other cases for cert and pick the next most appropriate case once a decision is made in this case. A number of people are predicting that they will dismiss the case due to the change in law.

There are a number of unusual things that have occurred in this case which make it difficult to accurately predict what will happen. All we can really do now is speculate as to what is likely to happen.

ironpony · Mar 30, 2020

Is there a reason they cannot (insert legal word here) define what the term “bear” encompasses? Or is it that they do not want to, given previous rulings? Are we really a society lacking in the ability to understand the very words that made us a world leader in many aspects.

I might be out of line here, please ignore if I am incorrect but if I’m right this is or should be a little concerning

Kharn · Mar 30, 2020

ironpony said:
Is there a reason they cannot (insert legal word here) define what the term “bear” encompasses? Or is it that they do not want to, given previous rulings? Are we really a society lacking in the ability to understand the very words that made us a world leader in many aspects.

I might be out of line here, please ignore if I am incorrect but if I’m right this is or should be a little concerning

Ginsburg gave a definition of "bear" to get a criminal out of some charges, and Scalia used her words against her in Heller.

At the time of the founding, as now, to “bear” meant to
“carry.” See Johnson 161; Webster; T. Sheridan, A Com-
plete Dictionary of the English Language (1796); 2 Oxford
English Dictionary 20 (2d ed. 1989) (hereinafter Oxford).
When used with “arms,” however, the term has a meaning
that refers to carrying for a particular purpose—
confrontation. In Muscarello v. United States, 524 U. S.
125 (1998), in the course of analyzing the meaning of
“carries a firearm” in a federal criminal statute, JUSTICE
GINSBURG wrote that “urely a most familiar meaning is,
as the Constitution’s Second Amendment . . . indicate:
‘wear, bear, or carry . . . upon the person or in the clothing
or in a pocket, for the purpose . . . of being armed and
ready for offensive or defensive action in a case of conflict
with another person.’”

As Heller is not about carrying, those words are only dicta, but reused in a case about carry, they would be on target.

But if you were to attack carry regulations obliquely, such as through onerous transport regulations...

Steel Hunter · Mar 30, 2020

Kharn said:
JUSTICE
GINSBURG wrote that “urely a most familiar meaning is,
as the Constitution’s Second Amendment . . . indicate:
‘wear, bear, or carry . . . upon the person or in the clothing
or in a pocket, for the purpose . . . of being armed and
ready for offensive or defensive action in a case of conflict
with another person.’”

~~Can't we put this issue to bed once and for all with this? It's a constitutional right...~~

E.Shell · Mar 30, 2020

Steel Hunter said:
Can't we put this issue to bed once and for all with this? It's a constitutional right...

No, that wouldn't do anything for anyone except the common citizens, and would set the progressive cause back immeasurably. Just 'No'.

jcutonilli · Mar 30, 2020

ironpony said:
Is there a reason they cannot (insert legal word here) define what the term “bear” encompasses? Or is it that they do not want to, given previous rulings? Are we really a society lacking in the ability to understand the very words that made us a world leader in many aspects.

I might be out of line here, please ignore if I am incorrect but if I’m right this is or should be a little concerning

As previously stated, Heller did define the term and I am not aware of any case that used an unusual definition to try and undermine the right.

What the courts have typically done is use intermediate scrutiny to justify the law. They feel the law is substantially related to the governments interest in providing public safety and deem the law constitutional because of this.

The end result may be the same, you are not allowed to bear arms, but the reasoning is different. What is needed is a better explanation of why they are getting it wrong and how to correctly analyze the situation.

I happen to believe it has to do with the court not properly analyzing governments interest in public safety. Their interest does not protect individual citizens. They are also not taking away an individual right from just one person, they are taking that right from everyone. This negatively affects public safety because everyone cannot protect themselves and the government does not protect the individual citizen.

ironpony · Mar 30, 2020

Gary Willis was an individual. Just sayin.

Governments job is to keep people safe? I thought this was not the case. An officer is not required to risk life and limb to keep us safe. Was that Scalia?

No need to answer, I understand and thank y’all for the input.

Inigoes · Apr 3, 2020

With the court not hearing any new cases in March, and now April

https://www.courthousenews.com/supreme-court-puts-off-another-month-of-oral-arguments/

We may get an opinion sooner, rather than later.

Allen65 · Apr 4, 2020

Inigoes said:
With the court not hearing any new cases in March, and now April

https://www.courthousenews.com/supreme-court-puts-off-another-month-of-oral-arguments/

We may get an opinion sooner, rather than later.

Either way, we were going to get something by the end of June. Having a lot of their clerical staff staying home might be slowing publishing of documents.

Inigoes · Apr 4, 2020

This is definitely new territory.

In 1918, the Spanish flu struck in the month of November. Seeing how the court will handle the end of the current term is definitely going to be as interesting to watch, as watching the result of this case.

w2kbr · Apr 4, 2020

E.Shell said:
No, that wouldn't do anything for anyone except the common citizens, and would set the progressive cause back immeasurably. Just 'No'.

Well you piqued my interest. But need definitions. to wit"
"common citizens"

and what "progressive cause" are you referring too?

Just asking.....

E.Shell · Apr 4, 2020

w2kbr said:
Well you piqued my interest. But need definitions. to wit"
"common citizens"

"Common Citizens" = Non-anointed Maryland people without political connections or government jobs (people that seem to form the majority of the population) that will never realize the entirety of their civil rights. For example, while the "bear arms" is clearly an enumerated right, as a common citizen, you will not exercise this right in this state. This right is unavailable unless you fit a very special 'carve-out' category of special citizens and/or are politically connected. Special citizens within the carve-out definitions and those politically connected are opposite of common citizens and enjoy an enhanced degree of liberty (and justice).

and what "progressive cause" are you referring too?

"Progressive Cause" = the movement in this county toward socialism and communism. Bernie Sanders is an excellent example of someone who is openly progressive. His political goal is to convert the country's political system from a republic (as if), to socialism to communism. While "progressive" is often mistakenly taken to mean "forward thinking" as if moving toward "progress", it is actually progression toward socialism. You will see progressive political candidates running on platforms that take from some citizens and give unto others. This progressive cause is opposite liberty and is moving us toward communism.

ETA: "Socialism" = "Communism Lite".

ETA2: Most people on both ends of the political spectrum realize that the citizenry must be disarmed to complete the transformation from 'republic' to 'communist', hence this constant struggle (that could be put to rest with ONE clear ruling): The left needs a disarmed populace, the right needs an armed citizenry.

73,
Ed

Supreme Court Takes Major NRA Second Amendment Case from New York

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