1st Circuit Appeal of MA AWB case (Worman v Baker)

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  • jcutonilli

    Ultimate Member
    Mar 28, 2013
    2,474
    I am skeptical NYSPRA will be so broad as to affect all 6 cases. That is extremely unlike the Roberts court.

    My 0.02 is that NYSRPA was taken precisely because it is narrow and an extreme outlier, and some justices want to see how the vote goes before they take other cases.

    I expect a pretty narrow opinion in NYSRPA along the lines of what the US Solicitor general submitted on the merits brief. If that happens, then vacating and remanding the other 6 does nothing more than give the lower courts leeway for more resistance, to say "see, they didn't say you cant, so the law must be ok." If they remand and give the lower courts instructions to use "history text and tradition" I not sure that the 3rd, 9th, 2nd actually know how to do that so I am not sure we are in a better position."strict scrutiny" is both unlikely to come from this court, and also is meaningless because judges can interpret strict scrutiny however they like. I cant recall whether its Gura or Kopel, but one wrote good piece on the 2A 2-step how "strict scrutiny" can mean rational basis depending on the judge. If you doubt me, One of the Bloomturd lawyers groups submitted a brief asking for means-end scrutiny. If they like it, I dont. Its a trap.

    In my mind the only way the lower court resistance stops if when the Supreme Court takes a few more cases.

    I think it is possible that the NYSPRA case will affect all six cases. The main issue in all the cases is how to properly apply scrutiny. Given the arguments, they may not really address this issue. Like all the 2A cases before it, the arguments don't really explain why the lower courts intermediate scrutiny analysis is incorrect. They just acknowledge that they should have used a different form such as strict scrutiny or text history and tradition. The US Solicitor General does not provide any additional analysis on this issue.

    It is certainly possible to misapply strict scrutiny. I think the most famous case of this happening is Korematsu. It is directly relevant because they used the actions of a few to deny the rights of the majority. Public safety was the primary driver of the issue. The court deferred to the judgement of the government on the issue. This is the same reasoning used in the 2A cases. Nobody brings this up.

    They fail to properly distinguish the issues. While the the government has an interest in public safety, they do not explore what that actually means. The interest is much more general than they acknowledge. They arrest people and put them in jail, but the government does not really protect any individual member of the public.

    Additionally the governments data is like the Korematsu case. Only a few people negatively affect public safety and it is already illegal for those people to commit those acts. The vast majority of people do not negatively affect public safety. In fact the governments interest in public safety does not apply to the government data because the data is all about individuals.

    How well the NYSRPA case will apply to these other six cases will depend on how well SCOTUS addresses the issue of the lack of data. If you correctly apply scrutiny, I believe you can get to the correct answer. I am not sure the cases have been argued well enough for SCOTUS to fully correct the misapplication of scrutiny but they will make it harder to do it in certain circumstances.
     

    rambling_one

    Ultimate Member
    MDS Supporter
    Oct 19, 2007
    6,725
    Bowie, MD
    All this word-smithing is absolutely maddening! While I don’t know if those contributing to this thread are all attorneys, it simply boggles my mind that they can seemingly articulate the issue while those who actually bring the cases before SCOTUS fall short of doing so.

    Strict scrutiny should be applied to “bear” cases... even if SCOTUS agrees, lower courts can ignore...
    if not strict scrutiny, original intent should be applied...if, if, if.

    Hopefully some day the phrase “Shall not be infringed” will be interpreted as intended.
     

    delaware_export

    Ultimate Member
    Apr 10, 2018
    3,142
    Would it/could it, come down to the opinion, and who writes it?

    If they rule against NYC and for the public on the NY case, and say Roberts writes a wuss narrow opinion as opposed to Thomas writing a hard core, in your face pro 2a opinion... don’t mess with legal gun owners...

    Would that or could that be a big part of how things go with all the held cases?

    Or would they maybe rule for the nyrpc but let a liberal write a very weak opinion?
     

    krucam

    Ultimate Member
    Would it/could it, come down to the opinion, and who writes it?

    If they rule against NYC and for the public on the NY case, and say Roberts writes a wuss narrow opinion as opposed to Thomas writing a hard core, in your face pro 2a opinion... don’t mess with legal gun owners...

    Would that or could that be a big part of how things go with all the held cases?

    Or would they maybe rule for the nyrpc but let a liberal write a very weak opinion?

    Only a Justice in the Majority writes the Opinion.
     

    jcutonilli

    Ultimate Member
    Mar 28, 2013
    2,474
    Would it/could it, come down to the opinion, and who writes it?

    If they rule against NYC and for the public on the NY case, and say Roberts writes a wuss narrow opinion as opposed to Thomas writing a hard core, in your face pro 2a opinion... don’t mess with legal gun owners...

    Would that or could that be a big part of how things go with all the held cases?

    Or would they maybe rule for the nyrpc but let a liberal write a very weak opinion?

    There is more to an opinion then who writes it. They writer needs to ensure that at least five justices will sign onto the position. Heller was likely written the way it was to get five justices to sign on. There are cases where the majority changes depending on how the opinion is written. They can change their mind about which way they are voting up until the decision is released.

    https://en.wikipedia.org/wiki/Procedures_of_the_Supreme_Court_of_the_United_States

    The most senior justice in the majority (likely Roberts) decides who writes the decision , while the most senior justice in the minority (likely Ginsburg) decides who writes the dissent. In Heller, Roberts assigned the writing to Scalia, while Stevens wrote a dissent himself.

    It really comes down to what at least five justices think.
     

    Blacksmith101

    Grumpy Old Man
    Jun 22, 2012
    22,154
    Don't forget this is a "Bill of Rights" issue and how it is decided and how the opinion is written impacts, by inference if nothing else, all of the first 10 amendments. It will affect the rights you like as well as the rights the other side likes so the justices on both sides will be very careful in what they say, how they say it, and what they will agree to. So if they do hear this case, still undecided, there will be a whole lot of horse trading, that goes well beyond gun rights, going on. This could be a case that shapes the country's future.
     

    CrueChief

    Cocker Dad/RIP Bella
    Apr 3, 2009
    2,999
    Napolis-ish
    Don't forget this is a "Bill of Rights" issue and how it is decided and how the opinion is written impacts, by inference if nothing else, all of the first 10 amendments. It will affect the rights you like as well as the rights the other side likes so the justices on both sides will be very careful in what they say, how they say it, and what they will agree to. So if they do hear this case, still undecided, there will be a whole lot of horse trading, that goes well beyond gun rights, going on. This could be a case that shapes the country's future.

    I don't know, everyone seems willing to treat the 2nd as special and different. So I can see how any and most every judge could in their mind make the leap. I mean just look at ex-cons the only right they lose is the 2nd, whether that is right or wrong its still the only right lost.
     

    HaveBlue

    HaveBlue
    Dec 4, 2014
    733
    Virginia
    Don't forget this is a "Bill of Rights" issue and how it is decided and how the opinion is written impacts, by inference if nothing else, all of the first 10 amendments. It will affect the rights you like as well as the rights the other side likes so the justices on both sides will be very careful in what they say, how they say it, and what they will agree to. So if they do hear this case, still undecided, there will be a whole lot of horse trading, that goes well beyond gun rights, going on. This could be a case that shapes the country's future.

    Which rights do the other side like that we don’t?
     

    lazarus

    Ultimate Member
    Jun 23, 2015
    13,673
    I don't know, everyone seems willing to treat the 2nd as special and different. So I can see how any and most every judge could in their mind make the leap. I mean just look at ex-cons the only right they lose is the 2nd, whether that is right or wrong its still the only right lost.

    State dependent on what they lose. Most states also lose the right to vote, which is a core right. Depending on the crime they may also lose some of their rights of association, where they can live, their right to pursue happiness and others restricted such as their 4th amendment rights being limited or eliminated (at a minimum while on probation often times).
     

    babalou

    Ultimate Member
    MDS Supporter
    Aug 12, 2013
    16,016
    Glenelg
    Voting

    State dependent on what they lose. Most states also lose the right to vote, which is a core right. Depending on the crime they may also lose some of their rights of association, where they can live, their right to pursue happiness and others restricted such as their 4th amendment rights being limited or eliminated (at a minimum while on probation often times).

    That is used a lot to compare with the 2A. Right to vote is not an enumerated right like the 2A.
     

    HaveBlue

    HaveBlue
    Dec 4, 2014
    733
    Virginia
    State dependent on what they lose. Most states also lose the right to vote, which is a core right. Depending on the crime they may also lose some of their rights of association, where they can live, their right to pursue happiness and others restricted such as their 4th amendment rights being limited or eliminated (at a minimum while on probation often times).

    No other rights are destroyed as permanently or completely upon a conviction as the 2A rights.

    In some states voting rights are restored on a prescribed schedule without cost. The offender doesn’t have to do anything (like obtain a pardon) to get them restored. Restrictions on voting are generally decided by the state of residence. So a felony in State A doesn’t necessarily mean the offender can’t vote on State B. Even if it is prohibited, zero people go to jail over it.

    Probation is like incarceration without bars. There is no expectation of privacy until it’s complete.
     

    esqappellate

    President, MSI
    Feb 12, 2012
    7,407
    There is more to an opinion then who writes it. They writer needs to ensure that at least five justices will sign onto the position. Heller was likely written the way it was to get five justices to sign on. There are cases where the majority changes depending on how the opinion is written. They can change their mind about which way they are voting up until the decision is released.

    https://en.wikipedia.org/wiki/Procedures_of_the_Supreme_Court_of_the_United_States

    The most senior justice in the majority (likely Roberts) decides who writes the decision , while the most senior justice in the minority (likely Ginsburg) decides who writes the dissent. In Heller, Roberts assigned the writing to Scalia, while Stevens wrote a dissent himself.

    It really comes down to what at least five justices think.

    Mostly right. The Chief or, if the Chief is not in the majority, then the most senior justice in the majority decides on who writes for the Court. No one decides who writes the dissent as a dissent expresses the personal views of the author. In Heller, for example, Stevens and Breyer both dissented and joined each other's dissent, with the other justices in the minority joining in those dissents as they saw fit. IT is not uncommon for multiple dissents to be filed. BTW, it is not unheard of that a minority becomes a majority during the opinion writing process, as Justices are free to switch their votes until the decision is actually released.
     

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