En banc Decision in Peruta -- a loss

Rack&Roll · May 16, 2017

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

Don't get down in the muuud.

Now back to our regularly scheduled All-Night Debate Club...

jcutonilli · May 16, 2017

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

Applehd said:
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:
Don't get the "rational" for your 'tude.....

I am not sure you understood my attempt at humor. The video is of Dan Quayle accidentally misspelling potato with an e. (I found where that e went when I misspelled rationale.) I then used this misspelling of potato to sarcastically imply that I know how to spell when I really don't. In other words, thank you for pointing out my mistake.

ps rational is spelled correctly and a spell check would not pick it up. It is simply not the correct word.

Rack&Roll · May 16, 2017

It's all gude!

Carry on...the debate is how we non-lawyers learn...

GlocksAndPatriots · May 16, 2017

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.

Yes. Nobody reasonable thinks that gun rights should be TOTALLY unrestricted. But if the government wants to impose a restriction, it should have to prove that a) it's the least burdensome possible and b) show very compelling evidence that it's effective. Merely claiming something should NEVER be enough, not in the 2nd Amendment context nor the 4th nor the 1st.

GlocksAndPatriots · May 16, 2017

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.

Also, bear in mind that Judge Easterbrook wrote that even if the AWB doesn't improve public safety, the mere perception of it improving public safety serves as an important government interest. The 4th Amendment analogue would be stopping and frisking EVERY young male, just because it makes older people feel safer.

GlocksAndPatriots · May 16, 2017

jcutonilli said:
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.

Sure, a ban on assault weapons (however defined) will probably lead to a reduction in crimes using weapons defined that very way. Just like banning "sports cars" based on cosmetic features will probably lead to a reduction in highway fatalities involving cars containing those exact cosmetic features. It doesn't mean that it'll reduce fatalities overall though. The point is, the courts have come to the conclusion first, and the reasoning second. There's no reason to think your approach would be any more effective.

Schipperke · May 16, 2017

GlocksAndPatriots said:
Yes. Nobody reasonable thinks that gun rights should be TOTALLY unrestricted. But if the government wants to impose a restriction, it should have to prove that a) it's the least burdensome possible and b) show very compelling evidence that it's effective. Merely claiming something should NEVER be enough, not in the 2nd Amendment context nor the 4th nor the 1st.

AliasNeo07 · May 16, 2017

GlocksAndPatriots said:
Yes. Nobody reasonable thinks that gun rights should be TOTALLY unrestricted. But if the government wants to impose a restriction, it should have to prove that a) it's the least burdensome possible and b) show very compelling evidence that it's effective. Merely claiming something should NEVER be enough, not in the 2nd Amendment context nor the 4th nor the 1st.

Yes.

Schipperke said:

Yes. This is true. There were gun control laws in effect at the time the bill of rights was adopted. Even justice Scalia admits that the right is not unlimited. No right is.

The question is, what is "reasonable?" A ban on OC is not. A ban on CCW probably is not.

If they permitted unrestricted open carry but required a permit for CCW , I wouldn't like it, but it would probably be constitutional.

JMO

jcutonilli · May 16, 2017

GlocksAndPatriots said:
Yes. Nobody reasonable thinks that gun rights should be TOTALLY unrestricted. But if the government wants to impose a restriction, it should have to prove that a) it's the least burdensome possible and b) show very compelling evidence that it's effective. Merely claiming something should NEVER be enough, not in the 2nd Amendment context nor the 4th nor the 1st.

I don't believe the term nobody should be used when talking about totally unrestricted gun rights. "What part of shall not be infringed don't you understand?" There are a number of people that like to say that.

The least burdensome restriction is another name for strict scrutiny. If you argue the case correctly, Heller states (holding 3) that a ban does not survive any of the standard of scrutiny (including intermediate scrutiny). Yet in all of the other CCW and AWB cases, the law survived intermediate scrutiny. Maybe the problem is not the court, but the argument used.

GlocksAndPatriots said:
Also, bear in mind that Judge Easterbrook wrote that even if the AWB doesn't improve public safety, the mere perception of it improving public safety serves as an important government interest. The 4th Amendment analogue would be stopping and frisking EVERY young male, just because it makes older people feel safer.

GlocksAndPatriots said:
Sure, a ban on assault weapons (however defined) will probably lead to a reduction in crimes using weapons defined that very way. Just like banning "sports cars" based on cosmetic features will probably lead to a reduction in highway fatalities involving cars containing those exact cosmetic features. It doesn't mean that it'll reduce fatalities overall though. The point is, the courts have come to the conclusion first, and the reasoning second. There's no reason to think your approach would be any more effective.

GlocksAndPatriots said:
When the courts accept any level of curtailment without any evidence that there is any benefit at all, it's bad faith.

Judge Easterbrook has said a number of things, but he has used at least some evidence. It is completely false to say otherwise. When you are the judge you get to determine how to weight the evidence, until then they do.

What really surprised me about the AWB cases was the lack of data on actual self defense use with these firearms. While there are a few news reports here and there, there is no comprehensive database that details how often they are used for self defense. If you read the "Armed Citizen" in the NRA magazines you will find they rarely specify the type of firearm used. It is not surprising to me that these cases failed. There is no real empirical evidence to support the conclusion that they are commonly used for self defense. With a public safety argument, all that needs to be said is that it is the governments position that these are appropriate for the use.

Nobody · May 16, 2017

So lets say SCOTUS accepts Peruta and takes the case, when would ruling be....2 weeks, just to stop someone from saying it.

Serious question...October?

NOBODY

danb · May 16, 2017

The hearing might not even be until next Jan or Feb at this point. I'd have to look at the docket. Cases accepted now are probably mid to late term next year.

Best case is probably a ruling next June.

Inigoes · May 16, 2017

Nobody said:
So lets say SCOTUS accepts Peruta and takes the case, when would ruling be....2 weeks, just to stop someone from saying it.

Serious question...October?

NOBODY

Definitely, orals early next term.

releasing the opinion, sometime before June.

Now, a "per curiam" would be instantaneous per se.

AliasNeo07 · May 16, 2017

I am nervous about Kennedy.

Kharn · May 16, 2017

Nobody said:
So lets say SCOTUS accepts Peruta and takes the case, when would ruling be....2 weeks, just to stop someone from saying it.

Serious question...October?

NOBODY

A Per Curiam (highly doubtful on this case) would occur after 4-16 weeks of relists.

A decision on the merits would occur on a case of this magnitude (a decision regarding a right articulated in the Bill of Rights) would be released in the last week of June of the term in which cert was granted. So, if cert were granted this upcoming October (2017), we would have a ruling in June 2018. The Court saves the most important cases of the term for the last two weeks, with the cases being released in reverse order of precedence. So Peruta, if it were heard, would be almost certainly within the last 3 cases to be released for the term.

AliasNeo07 said:
I am nervous about Kennedy.

6 weeks to go to see if Kennedy will still be on the bench when Peruta may (or may not) be argued.

fidelity · May 16, 2017

AliasNeo07 said:
I am nervous about Kennedy.

I am nervous should he step down during a period that Peruta is accepted. Don't want it facing a court with 8 members.

adit · May 16, 2017

I posted a 1st Amendment Case (not SCOTUS, state level in DE filed today) in the WC that has some parallels with "totally unrestricted rights".

https://www.mdshooters.com/showthread.php?t=210393

I invite you all to take a look.

kcbrown · May 16, 2017

jcutonilli said:
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.

That a restriction on the ownership of a device will reduce the number of crimes in which that device is used is almost a tautology. But that's not the question you seem to think the court is asking. The question is whether or not it improves public safety, a question that the claim they're making here does not answer, because it fails to account for the other devices that can be used to accomplish the same ends.

The court here took the government at its word without criticism, and barely any comment, and threw the right under the bus anyway. That is the problem.

kcbrown · May 16, 2017

jcutonilli said:
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.

Really? Then explain Jackson v San Francisco. Explain the district court's holding in Osterweil v Bartlett.

If your claim is that the core right of self defense will prevail when the facts of the case are identical to those of Heller, then that's not really much of a claim, and not really much of a right, for that matter, is it?

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.

No, the lower courts have determined that the limits of the right have been exceeded due to public safety claims.

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"

Yes, the Court made that claim about scrutiny. But that doesn't make its statement factual. How could it be, if the Court didn't actually subject the law to those standards of scrutiny?

kcbrown · May 16, 2017

jcutonilli said:
I don't believe the term nobody should be used when talking about totally unrestricted gun rights. "What part of shall not be infringed don't you understand?" There are a number of people that like to say that.

The least burdensome restriction is another name for strict scrutiny.

No, the least burdensome restriction is another name for categorical analysis, which is exactly what the Supreme Court used in Heller.

If you argue the case correctly, Heller states (holding 3) that a ban does not survive any of the standard of scrutiny (including intermediate scrutiny). Yet in all of the other CCW and AWB cases, the law survived intermediate scrutiny. Maybe the problem is not the court, but the argument used.

Or maybe the real problem is that Heller didn't actually subject the law in question to the standards of scrutiny in order to determine whether or not it would actually survive them, and merely claimed that they wouldn't survive without actually providing a basis for that claim.

Judge Easterbrook has said a number of things, but he has used at least some evidence. It is completely false to say otherwise. When you are the judge you get to determine how to weight the evidence, until then they do.

Yes. Which means that if you're a judge, you can consider even the flimsiest, most inapt evidence supplied by one side to be of greater weight than even the most airtight, comprehensive, and relevant evidence supplied by the other side.

There is a term for that: arbitrary and capricious. This is why the courts are not objective arbiters of law and fact -- they are biased precisely because the judges within them can arbitrarily pick and choose what evidence to give weight to, just because of their position.

What really surprised me about the AWB cases was the lack of data on actual self defense use with these firearms. While there are a few news reports here and there, there is no comprehensive database that details how often they are used for self defense.

Absence of evidence is not evidence of absence, but that is precisely what you're saying the courts are insisting upon.

If you read the "Armed Citizen" in the NRA magazines you will find they rarely specify the type of firearm used. It is not surprising to me that these cases failed. There is no real empirical evidence to support the conclusion that they are commonly used for self defense. With a public safety argument, all that needs to be said is that it is the governments position that these are appropriate for the use.

This would actually be a good approach. I believe that the government has said more than once that arms such as the AR-15 are immensely useful for defensive purposes. I have no idea whether our side has cited those claims in any case we've thus far brought.

kcbrown · May 17, 2017

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."

Yes. This is exactly why I believe it was a mistake for Peruta to not be a comprehensive challenge.

But Woollard was a comprehensive challenge, and it still failed.

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.

If it is valid for the courts to change their minds on the basis of the situation at the time of the decision and not the situation as faced at the time of the incident being examined, then we've lost rule of law. Rule of law cannot stand when those interpreting it do so on the basis of how they happen to feel at the time, as opposed to what the law actually says, what its foundational purpose is, and whether or not it actually achieves that foundational purpose.

While sedition and treason may be actions, they are typically done through speech.

That's true with respect to transfer of information to the enemy. It's not really true for any other speech, at least with respect to treason. Treason that does not involve transfer of information to the enemy involves other means of giving aid or comfort to the enemy, i.e. actions.

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.

Not quite. Close, though. Sedition is "incitement of resistance to or insurrection against lawful authority". But the limits on speech extend only to incitement of imminent action. Seditious speech includes speech which is not protected, but also includes protected speech because it includes speech which incites (or is likely to incite) action which is not imminent.

The continuation of government is not a simple question. The following text should answer your question:

But as has been pointed out to me before, the Declaration of Independence is not a legal document and is not binding on the courts. As such, reference to it is purely optional for determining the answer to that question.

No government ever believes itself to be anything other than the legitimate and lawful sovereign. On what basis, then, are we to believe that the courts (which are, themselves, a part of government) would actually ever decide that continuation of government is not a compelling government interest?

En banc Decision in Peruta -- a loss

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