Binderup en banc decision A WIN

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  • Peaceful John

    Active Member
    May 31, 2011
    239
    If they merely say that the law, as applied to non-violent felons, doesn't survive intermediate scrutiny, not very much, unless they also lay out a standard that requires far less deference to legislatures with respect to the "fit" between the regulation and the interest.

    Does it seem likely that the Court would grant cert only to decide narrowly? Why not simply let the decision below stand?

    Additionally, does it seem to anybody else that this might impact Peruta? If minor gun violations are not disqualifying, how can (for example) non-licensed carry disqualify a person from gun ownership?
     
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    esqappellate

    President, MSI
    Feb 12, 2012
    7,407
    Does it seem likely that the Court would grant cert only to decide narrowly? Why not simply let the decision below stand?

    Additionally, does it seem to anybody else that this might impact Peruta? If minor gun violations are not disqualifying, how can (for example) non-licensed carry disqualify a person from gun ownership?

    It is always a big deal when the SG seeks cert where a court has invalidated a federal statute (here, as applied invalidation). There is a lot of uncertainly now in the lower courts on this issue of whether an "as applied" challenge is viable. The government's position is absolutely never. Just look at the fractured decision of the 3d Circuit at issue in this cert petition. Alan Gura's cross petition is quite clever. I hope they that too. This case may just look like a narrow issue, but that depends on how they decide it and how they read Heller. A lot at stake.
     

    GlocksAndPatriots

    Banned
    BANNED!!!
    Aug 29, 2016
    763
    It is always a big deal when the SG seeks cert where a court has invalidated a federal statute (here, as applied invalidation). There is a lot of uncertainly now in the lower courts on this issue of whether an "as applied" challenge is viable. The government's position is absolutely never. Just look at the fractured decision of the 3d Circuit at issue in this cert petition. Alan Gura's cross petition is quite clever. I hope they that too. This case may just look like a narrow issue, but that depends on how they decide it and how they read Heller. A lot at stake.

    Exactly. But that means the Court can provide us with a "win" that doesn't mean very much. What we really want is a decision that lays out a standard of review that many other gun laws couldn't possibly survive under.
     

    esqappellate

    President, MSI
    Feb 12, 2012
    7,407
    Exactly. But that means the Court can provide us with a "win" that doesn't mean very much. What we really want is a decision that lays out a standard of review that many other gun laws couldn't possibly survive under.

    You take your wins as they come, when they come. Every win is a decision on which the next case can build.
     

    GlocksAndPatriots

    Banned
    BANNED!!!
    Aug 29, 2016
    763
    You take your wins as they come, when they come. Every win is a decision on which the next case can build.

    Right, but given that the lower courts have shown they'll disregard the right unless the Supreme Court explicitly spells it out, that win isn't much of a win, in my opinion.
     

    Peaceful John

    Active Member
    May 31, 2011
    239
    ". . . the lower courts have shown they'll disregard the right unless the Supreme Court explicitly spells it out . . . "

    When CJ Marshall disturbed Andrew Jackson's composure in the case of Worcester v. Georgia (1832) Jackson responded, "John Marshall has made his decision, now let him enforce it."

    We may see that unhelpful approach again, but on the part of the lower courts. Based on the their extraordinary resistance to Heller, there really is no empirical data that the lower courts will support the 2A regardless of the Supreme Court's spelling prowess.

    The have only to find a reason to kick the can further down the road. It's something in which they've developed quite an expertise.
     

    esqappellate

    President, MSI
    Feb 12, 2012
    7,407
    Right, but given that the lower courts have shown they'll disregard the right unless the Supreme Court explicitly spells it out, that win isn't much of a win, in my opinion.

    That disregard will start to erode with more SCT decisions, as the anti gun judges will find it harder and harder to justify their "reasoning." It will take time and the willingness of the Court to do Caetano type decisions. If we get another Trump Justice, that could well happen sooner than you might believe.
     

    press1280

    Ultimate Member
    Jun 11, 2010
    7,878
    WV
    Looks like this case is going to be relisted just like Peruta.......
    Don't think it's been mentioned but it's already been relisted once, this will make number two. 2 2A cases being relisted, that's a good thing.
     

    Bob A

    όυ φροντισ
    MDS Supporter
    Patriot Picket
    Nov 11, 2009
    30,687
    June is the traditional "retirement announcement" time for SCOTUS justices. Barely a week away. . . .
     

    HaveBlue

    HaveBlue
    Dec 4, 2014
    733
    Virginia
    At least they could be neutral...

    Trump administration lawyers are urging the Supreme Court to reject a 2nd Amendment claim that would restore the right to own a gun for two Pennsylvania men who were convicted more than 20 years ago of nonviolent crimes.
     

    press1280

    Ultimate Member
    Jun 11, 2010
    7,878
    WV
    At least they could be neutral...

    Trump administration lawyers are urging the Supreme Court to reject a 2nd Amendment claim that would restore the right to own a gun for two Pennsylvania men who were convicted more than 20 years ago of nonviolent crimes.

    It's a necessary evil that the law is defended because A) It's what the law is, whether we like it or not and an administration shouldn't be able to overturn a law through abandonment B) If not defended, we don't get positive case law from SCOTUS.
    I'm just hoping they don't defend it "that hard" ;)
     

    HaveBlue

    HaveBlue
    Dec 4, 2014
    733
    Virginia
    It's a necessary evil that the law is defended because A) It's what the law is, whether we like it or not and an administration shouldn't be able to overturn a law through abandonment B) If not defended, we don't get positive case law from SCOTUS.
    I'm just hoping they don't defend it "that hard" ;)

    Got it! Thanks for the clarification. While it does sound like fair play, I don't feel like playing fair.
     

    GlocksAndPatriots

    Banned
    BANNED!!!
    Aug 29, 2016
    763
    At least they could be neutral...

    Trump administration lawyers are urging the Supreme Court to reject a 2nd Amendment claim that would restore the right to own a gun for two Pennsylvania men who were convicted more than 20 years ago of nonviolent crimes.

    If he refused to defend it, I'd criticize him just like I criticized liberals for not defending laws prohibiting gay "marriage." It's not the executive's job.
     

    esqappellate

    President, MSI
    Feb 12, 2012
    7,407
    It's a necessary evil that the law is defended because A) It's what the law is, whether we like it or not and an administration shouldn't be able to overturn a law through abandonment B) If not defended, we don't get positive case law from SCOTUS.
    I'm just hoping they don't defend it "that hard" ;)

    This is exactly right. The SG's Office has a legal obligation to defend an act of Congress, regardless of whether they agree with it, unless the statute is patently unconstitutional, in which case they have to notify the Congress that they won't be defending it. At the least, the Section 922 disqualification for felons and certain misdemeanants (those subject to a prison term exceeding two years) is not patently unconstitutional under current caselaw.
     

    GlocksAndPatriots

    Banned
    BANNED!!!
    Aug 29, 2016
    763
    This is exactly right. The SG's Office has a legal obligation to defend an act of Congress, regardless of whether they agree with it, unless the statute is patently unconstitutional, in which case they have to notify the Congress that they won't be defending it. At the least, the Section 922 disqualification for felons and certain misdemeanants (those subject to a prison term exceeding two years) is not patently unconstitutional under current caselaw.

    Even if it is patently unconstitutional, I think the SG should defend it, simply because what is "patently unconstitutional" to one person may not be to another. Better to defend it all and let the courts sort it out.
     

    esqappellate

    President, MSI
    Feb 12, 2012
    7,407
    Even if it is patently unconstitutional, I think the SG should defend it, simply because what is "patently unconstitutional" to one person may not be to another. Better to defend it all and let the courts sort it out.

    As a general rule, there are *very* few things that meet that patently unconstitutional standard. But are a few, at least as they may emerge as a result of new or controlling SCT decisions. Executive officers swear an oath to the Constitution, and that comes first. Congress can then elect to defend a statute if they want.
     
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    bunnybunny

    Member
    Mar 3, 2016
    55
    What are the chances of this case being granted cert? Is it really in conflict with the 4th circuit ruling? If so we have a circuit split and the government is asking cert...there couldn't be a better set of circumstances than that. I'm curious if there is some correlation between this case and Peruta both being rescheduled at the same time. I suppose it could just be Gorsuch getting caught up on things and we're waiting for a denial.
     

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