En banc Decision in Peruta -- a loss

kcbrown said:

I'm sorry, but if the courts insist that "public safety" automatically trumps rights such that the government merely needs to claim that the law serves that purpose without having to even prove it (see, e.g., Friedman v Highland Park), then we have no rights, and that's that. Instead, all we have are privileges that we plebs are allowed to exercise when the government wants to believe that it's "safe" for us to do so, something the government will never believe when it comes to arms that make it possible for the citizenry to forcefully resist the government if/when the government should decide the citizenry serves it and not vice versa.

That means the courts have turned the entire purpose of the country on its ear, and we no longer live in a Constitutional republic where the protection of liberty, and most especially essential liberties (a.k.a. rights), is the primary duty of the government (so much so that the rights themselves are explicitly enumerated in the very document which forms the basis of the country in the first place).

The proper response to that isn't to continue to ask the courts to let us exercise what is rightfully already ours. It's to alter the construction of the government to remove the government's ability to be the final arbiter of the question in the first place, to place a direct check by those most invested in their liberties against the judiciary's choices.

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I think you fail to understand that when you construct a government you inherently give up some of your rights in the process. There are no rights that are considered absolute. Every government has to balance competing factors. Public safety happens to be a very important factor that tends to trump other factors.

When the court decides cases, it tries to balance these factors. When you argue self defense you are not presenting an argument that has any real impact on public safety because an individual has little to no impact on society. This is why public safety tends to trump individual rights (no real impact to society). There is not much for the court to balance and so they tend to defer to public safety.

You can try and change the government, but there are over 300 million people in this country. You need to convince a large percentage of these 300 million people. The court only has one, three, or nine (depending on the level) people to convince and they tend to remain faithful to the law.

jcutonilli said:

I think you fail to understand that when you construct a government you inherently give up some of your rights in the process.

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Really? What rights (a.k.a. essential liberties) must one give up in order to construct a government? Which rights do, by their very presence, eliminate the possibility of construction of government?

There are no rights that are considered absolute. Every government has to balance competing factors. Public safety happens to be a very important factor that tends to trump other factors.

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Just because governments have to balance competing factors doesn't mean that governments must eliminate rights in order to do so, nor does it mean that rights are necessarily in the mix of factors that the government has to balance in the first place.

Balancing one right against another is a rightful thing for the government to do. Balancing a right against a government interest is not, because that makes the essential liberties of the people subservient to the government when the very reason the government exists is to protect those essential liberties in the first place.

When the court decides cases, it tries to balance these factors. When you argue self defense you are not presenting an argument that has any real impact on public safety because an individual has little to no impact on society. This is why public safety tends to trump individual rights (no real impact to society). There is not much for the court to balance and so they tend to defer to public safety.

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To the degree that your argument here is true, it is just as true of speech. If one argues in favor of speech, one is not presenting an argument that has any real impact on public safety because one individual's speech also generally has little to no impact on society. Why, then, does public safety not generally trump individual speech such that individual speech can be eliminated in favor of public safety (indeed, why can it not be eliminated in favor of a claim of public safety, since that is the standard used by the courts for assessing laws impacting the right to arms)? More to the point, why does the government need to provide evidence of public safety benefits for laws impacting speech when the same is not true of laws impacting the right to arms?

You can try and change the government, but there are over 300 million people in this country. You need to convince a large percentage of these 300 million people. The court only has one, three, or nine (depending on the level) people to convince and they tend to remain faithful to the law.

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They "tend" to remain "faithful" to the law until the run across a law, holding, etc. that they don't like. Then, suddenly, that "faithfulness" disappears utterly. Again, see Friedman for a perfect example of that.

kcbrown said:

But the public safety angle was presented in the petitioner's brief. SCOTUS may not have opined explicitly about the public safety angle, and that angle might not have been present in the lower court opinions, but it was nevertheless there.

Why was the public safety angle insufficient to override the right even if the right is an individual one in Heller while it is sufficient to override the right elsewhere? That quite clearly shows that the lower courts are applying a double standard or, at least, a standard that differs from that used by SCOTUS to determine Heller.

If the lower courts are insistent upon using a different standard than that of SCOTUS, why should we play along when SCOTUS clearly didn't?


Finally, even if we approached the problem in the way you suggest, why in the world should we believe it will work when the courts are, as regards the 2nd Amendment, so deferential to the government that they don't even demand that the government provide supporting evidence? Why should we believe that the courts will regard our evidence as having any greater legitimacy than the government's claims given the "standard of evidence" (i.e., none, as long as the claim is uttered by the government) that the courts have generally been using?

That's not to say that it's not worth trying. Nothing else has worked to date, so it's hard to see how it would hurt. But that's a very different thing from actually expecting it to work.

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First I would dispute that nothing else has worked to date. The only option that has currently been tried is individual self defense.

In Heller it was demonstrated that a handgun was necessary to exercise the right in the home (see holding 3). The public safety aspects presented by DC only really apply outside the home. For the CCW cases, such as Woollard, the issue is why should I be able to carry outside the home. The public safety aspects are now applicable where they really were not with respect to inside the home. For AWB cases, such as Kolbe, there is problem with the arm. It is difficult to demonstrate that they are necessary for self defense. While public safety is not as much as an issue, the need for the arm is much less.

The problem with self defense is that you give away the public safety issue. Individuals don't really impact public safety. The public is a collection of individuals however and public safety is really just the collection of individual safety. You wind up giving the government an argument that it provides the safety. There are cases that say exactly the opposite, the government does not protect the individual. If you want the court to weight the issues, you need to argue them. This has not been done to date.

kcbrown said:

Really? What rights (a.k.a. essential liberties) must one give up in order to construct a government? Which rights do, by their very presence, eliminate the possibility of construction of government?

Just because governments have to balance competing factors doesn't mean that governments must eliminate rights in order to do so, nor does it mean that rights are necessarily in the mix of factors that the government has to balance in the first place.

Balancing one right against another is a rightful thing for the government to do. Balancing a right against a government interest is not, because that makes the essential liberties of the people subservient to the government when the very reason the government exists is to protect those essential liberties in the first place.

To the degree that your argument here is true, it is just as true of speech. If one argues in favor of speech, one is not presenting an argument that has any real impact on public safety because one individual's speech also generally has little to no impact on society. Why, then, does public safety not generally trump individual speech such that individual speech can be eliminated in favor of public safety (indeed, why can it not be eliminated in favor of a claim of public safety, since that is the standard used by the courts for assessing laws impacting the right to arms)? More to the point, why does the government need to provide evidence of public safety benefits for laws impacting speech when the same is not true of laws impacting the right to arms?

They "tend" to remain "faithful" to the law until the run across a law, holding, etc. that they don't like. Then, suddenly, that "faithfulness" disappears utterly. Again, see Friedman for a perfect example of that.

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The rights you give up depend on the governments that are formed. In our government, rights are general not eliminated, but some level of infringement is allowed.

First amendment issues that do have an impact on public safety do get curtailed. Sedition and treason come to mind as does the internment of Japanese Americans during WWII.

The government does need to provide evidence even for 2A cases. Heller III is an example. While there was not much evidence provided in Friedman, there was not much evidence presented why "assault weapons" were needed for self defense.

jcutonilli said:

First I would dispute that nothing else has worked to date. The only option that has currently been tried is individual self defense.

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Yes. And that has almost unanimously failed, despite the fact that Heller calls it out as the central component of the protected right.

If the central component of a right cannot prevail over "public safety" as a result of "public safety" being an "important government interest" (or even a "compelling" one), then there is no right in practice.

In Heller it was demonstrated that a handgun was necessary to exercise the right in the home (see holding 3).

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It's unclear to me what you mean by "demonstrated" here. In my understanding, "demonstrated" means either that one has shown something to be factually true or that one has shown something to be true through logic applied to things that are factually true.

But no such demonstration exists as regards the notion that a handgun is necessary to exercise the right to arms in the home, since there exist other arms (and other firearms).

While it is true that the handgun was shown to be the "quintessential self-defense weapon" (that is a question of fact, not opinion), it is a logical fallacy to equate that to the statement that the handgun is the only self-defense weapon.

The public safety aspects presented by DC only really apply outside the home.

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That is irrelevant. The point here is that DC supplied a public safety argument, our side didn't, and we got the law struck anyway despite that.

If a law governing arms in the home cannot survive in the face of the right to keep and bear arms despite a claim by the government that said law exists to improve public safety, why should laws governing arms outside the home survive under identical circumstances?

It is difficult to demonstrate that they are necessary for self defense. While public safety is not as much as an issue, the need for the arm is much less.

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The necessity for handguns for self-defense was not demonstrated in Heller. What was demonstrated was that they were the primary (not only) choice for that role by the general public.

The problem with self defense is that you give away the public safety issue. Individuals don't really impact public safety. The public is a collection of individuals however and public safety is really just the collection of individual safety. You wind up giving the government an argument that it provides the safety. There are cases that say exactly the opposite, the government does not protect the individual. If you want the court to weight the issues, you need to argue them. This has not been done to date.

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Oh, I agree, that hasn't been done to date. But given the "reasoning" by the lower courts, I have no reason to believe that it will succeed. That doesn't mean it shouldn't be tried, only that one shouldn't expect it to work.

jcutonilli said:

The government does need to provide evidence even for 2A cases. Heller III is an example. While there was not much evidence provided in Friedman, there was not much evidence presented why "assault weapons" were needed for self defense.

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Really? What evidence was presented by the government in Friedman that the law in question actually improved public safety?

"No evidence" is not the same as "not much evidence" and cannot be treated quite the same way, but when a Constitutionally-codified right is what's on the other side of the equation, "not much evidence" is something that has generally proven to be insufficient for the courts for every right but the right to arms, and "no evidence" most certainly has been insufficient there -- again, except for the right to arms, for which a mere claim that the law's purpose is "public safety" has been treated by the courts as sufficient to overcome the right.

jcutonilli said:

The rights you give up depend on the governments that are formed. In our government, rights are general not eliminated, but some level of infringement is allowed.

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And as regards Peruta, how is it that the right (as opposed to privilege) to bear arms in public has not been eliminated? It's not a right if the government gets to pick and choose who can exercise it.

I'm talking about the right in practice, since that's the only thing that counts. It doesn't matter if a few "special people" are able to carry in public if the average person cannot, nor does it matter if there exist a few places where the average person can carry if those places are not where most people are, since the necessity of self-defense is not something that is limited only to those few "special people" or to those few places.

First amendment issues that do have an impact on public safety do get curtailed. Sedition and treason come to mind as does the internment of Japanese Americans during WWII.

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Internment of the Japanese Americans during WWII is something that has since been recognized as a real and improper violation of rights, so I'd say it doesn't count (since if it does, then so does every other violation of a right).

Sedition and treason are not matters of speech, they are matters of action. "Seditious" speech is just as protected, perhaps even more so, as garden variety speech is (see, e.g., Branderburg v Ohio).



While we are on the subject of "important" (or even "compelling") government interests, would you mind answering a simple question? Which is: is continuation of government a compelling government interest?

kcbrown said:

Yes. And that has almost unanimously failed, despite the fact that Heller calls it out as the central component of the protected right.

If the central component of a right cannot prevail over "public safety" as a result of "public safety" being an "important government interest" (or even a "compelling" one), then there is no right in practice.

It's unclear to me what you mean by "demonstrated" here. In my understanding, "demonstrated" means either that one has shown something to be factually true or that one has shown something to be true through logic applied to things that are factually true.

But no such demonstration exists as regards the notion that a handgun is necessary to exercise the right to arms in the home, since there exist other arms (and other firearms).

While it is true that the handgun was shown to be the "quintessential self-defense weapon" (that is a question of fact, not opinion), it is a logical fallacy to equate that to the statement that the handgun is the only self-defense weapon.

That is irrelevant. The point here is that DC supplied a public safety argument, our side didn't, and we got the law struck anyway despite that.

If a law governing arms in the home cannot survive in the face of the right to keep and bear arms despite a claim by the government that said law exists to improve public safety, why should laws governing arms outside the home survive under identical circumstances?

The necessity for handguns for self-defense was not demonstrated in Heller. What was demonstrated was that they were the primary (not only) choice for that role by the general public.

Oh, I agree, that hasn't been done to date. But given the "reasoning" by the lower courts, I have no reason to believe that it will succeed. That doesn't mean it shouldn't be tried, only that one shouldn't expect it to work.

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The core right of self defense has prevailed over public safety "in the place where the importance of the lawful defense of self, family and property is most acute" for "an entire class of "arms" that Americans overwhelmingly choose for the lawful purpose of self defense" (Heller holding 3). When weapon, manner and purpose are the same, the court will uphold the right.

It has also said that "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" (Heller holding 2)

While the purpose has remained the same across multiple cases, the weapon and manner in which it is used has changed. For CCW cases the place/manner has changed. For AWB cases, the weapon has changed. The lower courts have determined that the limits of the right have been exceeded due to public safety issues.

When you argue the case from a public safety perspective, the right happens in the place where the importance of public safety is most acute (in the public) with weapons that the government has determined are the worlds choice for public safety. The only real change to holding 3 is the purpose and the government acknowledges that public safety is a compelling government interest. Holding 3 mandates that "under any of the standards of scrutiny the Court has applied to enumerated constitutional rights, this prohibition would fail constitutional muster"

kcbrown said:

Really? What evidence was presented by the government in Friedman that the law in question actually improved public safety?

"No evidence" is not the same as "not much evidence" and cannot be treated quite the same way, but when a Constitutionally-codified right is what's on the other side of the equation, "not much evidence" is something that has generally proven to be insufficient for the courts for every right but the right to arms, and "no evidence" most certainly has been insufficient there -- again, except for the right to arms, for which a mere claim that the law's purpose is "public safety" has been treated by the courts as sufficient to overcome the right.

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When I read Friedman, I see that the court listed the typical anti gun "evidence" as evidence. I would search for the sentence that says "That laws similar to Highland Park's reduce the share of gun crimes involving assault weapons is established by data." to find the specific data cited by the court.

kcbrown said:

And as regards Peruta, how is it that the right (as opposed to privilege) to bear arms in public has not been eliminated? It's not a right if the government gets to pick and choose who can exercise it.

I'm talking about the right in practice, since that's the only thing that counts. It doesn't matter if a few "special people" are able to carry in public if the average person cannot, nor does it matter if there exist a few places where the average person can carry if those places are not where most people are, since the necessity of self-defense is not something that is limited only to those few "special people" or to those few places.

Internment of the Japanese Americans during WWII is something that has since been recognized as a real and improper violation of rights, so I'd say it doesn't count (since if it does, then so does every other violation of a right).

Sedition and treason are not matters of speech, they are matters of action. "Seditious" speech is just as protected, perhaps even more so, as garden variety speech is (see, e.g., Branderburg v Ohio).

While we are on the subject of "important" (or even "compelling") government interests, would you mind answering a simple question? Which is: is continuation of government a compelling government interest?

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The Peruta en banc panel has not made a determination as to the legality of open carry. They simply reiterated what was said in Heller (holding 2) "concealed weapons prohibitions have been upheld under the Amendment or state analogues."

If the court changing its mind does not count, then I will turn the argument around and say the court could change its mind so nothing really counts. It is really easy to change your mind when the public safety issue does not exist any more due to circumstances. I have also mentioned Terry stops, which is a 4A issue.

While sedition and treason may be actions, they are typically done through speech. I think you need to review Branderburg v Ohio. The Court held that government cannot punish inflammatory speech unless that speech is "directed to inciting or producing imminent lawless action and is likely to incite or produce such action." The exception is by definition sedition.

The continuation of government is not a simple question. The following text should answer your question:
We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness. — That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed, — That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness. Prudence, indeed, will dictate that Governments long established should not be changed for light and transient causes; and accordingly all experience hath shewn that mankind are more disposed to suffer, while evils are sufferable than to right themselves by abolishing the forms to which they are accustomed. But when a long train of abuses and usurpations, pursuing invariably the same Object evinces a design to reduce them under absolute Despotism, it is their right, it is their duty, to throw off such Government, and to provide new Guards for their future security.

jcutonilli said:

The Peruta en banc panel has not made a determination as to the legality of open carry. They simply reiterated what was said in Heller (holding 2) "concealed weapons prohibitions have been upheld under the Amendment or state analogues."

If the court changing its mind does not count, then I will turn the argument around and say the court could change its mind so nothing really counts. It is really easy to change your mind when the public safety issue does not exist any more due to circumstances. I have also mentioned Terry stops, which is a 4A issue.

While sedition and treason may be actions, they are typically done through speech. I think you need to review Branderburg v Ohio. The Court held that government cannot punish inflammatory speech unless that speech is "directed to inciting or producing imminent lawless action and is likely to incite or produce such action." The exception is by definition sedition.

The continuation of government is not a simple question. The following text should answer your question:
We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness. — That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed, — That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness. Prudence, indeed, will dictate that Governments long established should not be changed for light and transient causes; and accordingly all experience hath shewn that mankind are more disposed to suffer, while evils are sufferable than to right themselves by abolishing the forms to which they are accustomed. But when a long train of abuses and usurpations, pursuing invariably the same Object evinces a design to reduce them under absolute Despotism, it is their right, it is their duty, to throw off such Government, and to provide new Guards for their future security.

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Didn't Scalia (in a speech) say that the states could regulate either open or cancelled carry but not both?

JPG said:

Didn't Scalia (in a speech) say that the states could regulate either open or cancelled carry but not both?

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It is the argument that Peruta presented to the court. Their brief documents how it is supported. The three judge panel agreed with them, but the en banc did not. The en banc cited the historical prohibition on concealed carry (holding 2 of Heller) as the rational. I see this as the flaw in Peruta's argument. They failed to address the rational behind this historical prohibition (keeping arms from criminals, which is another issue addressed in holding 2 of Heller)

Lots of discussion...

Understand that all rights have limitations, but those limitations seem very plain.

I take the simple view of rights - my rights end when they impact someone else. For example - My right to freedom of speech ends when I scream "fire" in a crowded theater because people will get hurt. Applying that same logic to the second amendment - the right to bear arms ends when a gun is used for murder. Pretty sure we already have a law against that. Just saying.

Keep it simple.

I think you mean "rationale"? See bolded, fixed below.

jcutonilli said:

It is the argument that Peruta presented to the court. Their brief documents how it is supported. The three judge panel agreed with them, but the en banc did not. The en banc cited the historical prohibition on concealed carry (holding 2 of Heller) as the rationale. I see this as the flaw in Peruta's argument. They failed to address the rationale behind this historical prohibition (keeping arms from criminals, which is another issue addressed in holding 2 of Heller)

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Malachi.2.15 said:

Lots of discussion...

Understand that all rights have limitations, but those limitations seem very plain.

I take the simple view of rights - my rights end when they impact someone else. For example - My right to freedom of speech ends when I scream "fire" in a crowded theater because people will get hurt. Applying that same logic to the second amendment - the right to bear arms ends when a gun is used for murder. Pretty sure we already have a law against that. Just saying.

Keep it simple.

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Rack&Roll said:

I think you mean "rationale"? See bolded, fixed below.

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The next thing you are going to tell me is that potatoe does not have an e

https://www.youtube.com/watch?v=Wdqbi66oNuI

jcutonilli said:

The next thing you are going to tell me is that potatoe does not have an e...

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Words have meanings. One letter does make a difference.
I am amazed at the number of scholars on this forum that are quick to correct others on matters of law, medical procedures or the intricacies of computer language, yet, they type what they want to say and misspell half of what they wrote. Then they catch an attitude when they are corrected for typing the wrong word. Spell check, the edit feature, and a simple correction is really all that is needed.
I'll take my fat fingers and my public school education and step away from the keyboard now...

Rack&Roll said:

I think you mean "rationale"? See bolded, fixed below.

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jcutonilli said:

The next thing you are going to tell me is that potatoe does not have an e

https://www.youtube.com/watch?v=Wdqbi66oNuI

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Don't get the "rational" for your 'tude.....

it's 'tud

I prefer tude. When I see tud i want to pronounce the ud the same way you would pronounce it in mud.