Kolbe en banc decision

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  • swamplynx

    Active Member
    MDS Supporter
    Jul 28, 2014
    678
    DC
    So how do we get a strict scrutiny case to SCOTUS? Can any gun case be a strict scrutiny case? If the only way we're going to SCOTUS is with a split than the only way we're getting a split is with a federal ban because only commie states, with commie courts will enact these bans. So basically our rights are gone and we're pretty much f'ed.

    Right. Are there any commie states in 2A friendly circuits? Maybe if CO eventually tried something in 10CA?
     

    Mike OTDP

    Ultimate Member
    Feb 12, 2008
    3,319
    Trying to be the optimist, could there be a reason the SC didn't take this case? Did someone see an issue that would have made this case unwinnable? It seems like this case had merit and should have been heard. So, do we have a guardian angel sitting on the bench, knowing that it wasn't the strongest case and they'd rather not hear the case then to rule against us?

    Yes. Nobody knows how Kennedy will rule. Right now, we have four reasonably reliable 2A Justices, four anti-2A...and Anthony Kennedy. Who is a flip-of-a-coin proposition. A SCOTUS decision on partial gun bans is critical to 2A jurisprudence, we need to win this one. And if it takes another year or two to make that certain, it's worth it.
     

    fabsroman

    Ultimate Member
    Mar 14, 2009
    35,852
    Winfield/Taylorsville in Carroll
    Yes. Nobody knows how Kennedy will rule. Right now, we have four reasonably reliable 2A Justices, four anti-2A...and Anthony Kennedy. Who is a flip-of-a-coin proposition. A SCOTUS decision on partial gun bans is critical to 2A jurisprudence, we need to win this one. And if it takes another lifetime or two to make that certain, it's worth it.

    Fixed it for you. Think we waited two or three lifetimes for Heller and McDonald. Might be another lifetime or three before SCOTUS finally decides to put an end to the speculation among the states as to what the 2nd Amendment really covers.

    For those of you optimists out there, stick a fork in this one just like Woollard. The reality there set in when SCOTUS denied cert. Same thing here for me.
     

    kcbrown

    Super Genius
    Jun 16, 2012
    1,393
    The state has not enacted a total ban. They have already acknowledged that these arms have some societal use and have specifically granted exceptions.

    Chicago's ban was not total in essentially the same regard either (it excluded police officers, security personnel, and private detectives). Nevertheless, the Supreme Court effectively struck it.

    They've enacted a total ban from average citizens on the weapons of the types they specify. That qualifies as a ban. See Wrenn.


    . Self defense is not one of those exceptions. The reason stated in Kolbe for allowing retired law enforcement officers had to do with public safety. Kolbe never argued for public safety so the situation is different. All you really need to do is say we agree with the state that these arms have a societal use related to public safety. The state cannot dispute this. At the time of our founding it was expected that all citizens provide public safety. It is even listed on the MSP website. The state cannot dispute that either. There is really nothing for them to dispute.

    But just because they can't dispute that doesn't mean that the weapons in question are suddenly protected by the 2nd Amendment and, thus, cannot be banned. That depends entirely on the basis for upholding the ban. Here, the basis is that the weapons are "weapons of war". Importantly, this court would have the same justification for classifying them as such regardless of the other public safety implications of allowing public ownership. The court would, at most, be forced into weighing the public safety benefits of allowing ownership against the public safety drawbacks of that. That is precisely the kind of public safety argument that in the past you've said we cannot win. Anything less than that and the state automatically wins.

    So again: upon what basis do you believe the public safety argument you argue for here would (not merely could) have saved this case?
     

    jcutonilli

    Ultimate Member
    Mar 28, 2013
    2,474
    Heller does protect certain "weapons of war". It specifically calls out small arms that are not NFA items. The problem with Kolbe is that, "despite full notice of the issue, they have not and apparently cannot forecast evidence adequately helpful to their cause." pg 65 en banc opinion. The fact that Kolbe was poorly argued is not just my opinion, it is that of the majority of the judges on the circuit court (10 to be specific)
     

    kcbrown

    Super Genius
    Jun 16, 2012
    1,393
    Heller does protect certain "weapons of war". It specifically calls out small arms that are not NFA items.

    Really?

    If Heller explicitly says that small arms that are not NFA items are protected by the 2nd Amendment, then isn't the 4CA duty-bound to heed that even if plaintiffs didn't make that argument?

    Aren't the lower courts restricted by all Supreme Court precedent, even that precedent which isn't explicitly mentioned by either party?


    The problem with Kolbe is that, "despite full notice of the issue, they have not and apparently cannot forecast evidence adequately helpful to their cause." pg 65 en banc opinion. The fact that Kolbe was poorly argued is not just my opinion, it is that of the majority of the judges on the circuit court (10 to be specific)

    Why is evidence required if the arm in question is a small arm that is not an NFA item?

    And why does protection of the arm in question turn on the existence and presentation of such evidence, if "Constitutional rights are enshrined with the scope they were understood to have when the people adopted them"?
     

    Blacksmith101

    Grumpy Old Man
    Jun 22, 2012
    22,163
    There are enough pro 2nd justices to get cert on any of these cases if they thought it was the right case and the right time to do so.

    The Supreme Court has its own set of rules. According to these rules, four of the nine Justices must vote to accept a case.

    They also know the thinking of their co-workers probably better than anyone else. I will defer to those four Justices to decide when the time and case is right to proceed.
     

    jcutonilli

    Ultimate Member
    Mar 28, 2013
    2,474
    Really?

    If Heller explicitly says that small arms that are not NFA items are protected by the 2nd Amendment, then isn't the 4CA duty-bound to heed that even if plaintiffs didn't make that argument?

    Aren't the lower courts restricted by all Supreme Court precedent, even that precedent which isn't explicitly mentioned by either party?




    Why is evidence required if the arm in question is a small arm that is not an NFA item?

    And why does protection of the arm in question turn on the existence and presentation of such evidence, if "Constitutional rights are enshrined with the scope they were understood to have when the people adopted them"?

    I am not aware that Kolbe made a claim that they were small arms and because they are small arms they are protected by 2A. Kolbe claimed they were commonly used and it was because they were commonly used that they are protected. Maryland did claim they were not protected because they were weapons of war.

    As you have said, Heller is a mess. While it does say small arms that are not NFA items are protected, they also talk about the most useful weapons, bans and M-16s and the like.

    While it specifically mentions small arms, neither Kolbe nor the dissenting judges mention that Heller says anything about small arms. I am unclear why. It would seem to be the fatal flaw in the state's and 4CA's arguments.

    Without the argument about small arms, the state and the majority of the judges have put forth an interpretation of Heller that withstands both Kolbe's and the dissenting judges' arguments. I believe that is the other side of why SCOTUS did not take the case. There was not a compelling argument why arms like weapons of war have 2A protection.
     

    kcbrown

    Super Genius
    Jun 16, 2012
    1,393
    I am not aware that Kolbe made a claim that they were small arms and because they are small arms they are protected by 2A. Kolbe claimed they were commonly used and it was because they were commonly used that they are protected. Maryland did claim they were not protected because they were weapons of war.

    Correct. But you're ignoring my question. You stated that it is Heller that explicitly stated that non-NFA small arms are protected. Most certainly, the AR-15 is not an NFA arm. So all that remains is whether or not it's a "small arm".

    Is it your contention that it is on the basis of the AR-15 not being a "small arm" that the Kolbe court ignored that explicit statement in Heller? Because if not, then that leads right back to the question I asked: isn't the 4CA duty-bound to follow all Supreme Court precedent, whether or not that precedent is raised by any of the litigating parties?


    As you have said, Heller is a mess. While it does say small arms that are not NFA items are protected, they also talk about the most useful weapons, bans and M-16s and the like.

    While it specifically mentions small arms, neither Kolbe nor the dissenting judges mention that Heller says anything about small arms. I am unclear why. It would seem to be the fatal flaw in the state's and 4CA's arguments.

    Without the argument about small arms, the state and the majority of the judges have put forth an interpretation of Heller that withstands both Kolbe's and the dissenting judges' arguments. I believe that is the other side of why SCOTUS did not take the case. There was not a compelling argument why arms like weapons of war have 2A protection.

    That may well be. But how is it proper for the 4CA to ignore explicit Supreme Court precedent in reaching its decisions, even if neither party explicitly raised that precedent?
     

    jcutonilli

    Ultimate Member
    Mar 28, 2013
    2,474
    I am not trying to ignore your question, I am trying to get you to understand that your question is not as clear cut as your question implies. A lot of the time, what SCOTUS says is clear cut and there is only one possible interpretation. Other times it is not very clear. You may get several interpretations, some of which are not appropriate, but appear to be appropriate on the surface. As you point out, Heller is a case where they are not alway very clear.

    We have an adversarial system where the other side is supposed to point out the flaws in an argument. It works well when they point out all of flaws and fails when they do not. Judges do step in when they see a flaw that has not been pointed out. If they do not see a flaw they don't.

    The state read Heller and believes it says that arms that are like weapons of war are not protected. They were able to convince 9 4CA judges that they were not protected. Kolbe provided some evidence that supported a different conclusion. When I look at both arguments I see deficiencies with Kolbe's arguments. The en banc panel did a reasonable job pointing out the flaws with Kolbe.

    While I think the en banc panel reached a wrong conclusion, I believe the reason had more to do with the arguments presented by Kolbe than some malevolent action by 10 4CA judges. This is why I keep saying Kolbe was poorly argued.
     

    kcbrown

    Super Genius
    Jun 16, 2012
    1,393
    I am not trying to ignore your question, I am trying to get you to understand that your question is not as clear cut as your question implies. A lot of the time, what SCOTUS says is clear cut and there is only one possible interpretation. Other times it is not very clear. You may get several interpretations, some of which are not appropriate, but appear to be appropriate on the surface. As you point out, Heller is a case where they are not alway very clear.

    That is true. But you said that Heller says that "small arms that are not NFA items are protected". Are you now saying that such is merely an interpretation of Heller that is disputable, or are you saying that it is indisputable fact?


    We have an adversarial system where the other side is supposed to point out the flaws in an argument. It works well when they point out all of flaws and fails when they do not. Judges do step in when they see a flaw that has not been pointed out. If they do not see a flaw they don't.

    You still aren't answering my question. Adversarial system or not, are lower courts always supposed to adhere to Supreme Court precedent or aren't they? Is or is not whether they're bound by Supreme Court precedent predicated upon the quality of the arguments before them? Can they legitimately issue a decision that conflicts with Supreme Court precedent so long as said precedent is not raised by either litigant, or not? Which is it?


    While I think the en banc panel reached a wrong conclusion, I believe the reason had more to do with the arguments presented by Kolbe than some malevolent action by 10 4CA judges. This is why I keep saying Kolbe was poorly argued.

    That may be. But you haven't come out and said that the arguments you've raised would have saved the case, either.

    And in any case, if they reached a wrong conclusion, then the fault is theirs, not the litigants'. The courts are supposed to reach the correct conclusions as regards Supreme Court precedent because it is they who are beholden to it.
     
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    jcutonilli

    Ultimate Member
    Mar 28, 2013
    2,474
    I have never claimed Heller literally says "small arms that are not NFA items are protected". It is an interpretation. Whether it is disputable remains to be seen. What is indisputable is that Heller talks about small arms and the NFA.

    Yes the lower courts need to follow SCOTUS precedent. The problem is not understanding what the precedent is, but how to apply it to other situations. Sometimes it is very clear how to do it. Other times it is not very clear. Judges put together an interpretation that best addresses their understanding of the relevant precedents and that of the evidence both sides present.

    While it is entirely possible that it is the judges fault, it is also entirely possible that it is not. In order to determine whether it is the judge or the litigant, you need to review the precedent and the arguments. If there are flaws with the judges argument that can be attributed to the litigants arguments then the flaw lies with the litigant and not the judge.
     

    kcbrown

    Super Genius
    Jun 16, 2012
    1,393
    I have never claimed Heller literally says "small arms that are not NFA items are protected". It is an interpretation. Whether it is disputable remains to be seen. What is indisputable is that Heller talks about small arms and the NFA.

    If it is an interpretation, then it is potentially disputable.

    Presuming it is disputable, why should the 4CA adopt that interpretation? Clearly it hasn't, since the AR-15 isn't an NFA item, and certainly qualifies as a "small arm" by the conventional use of the term.


    Yes the lower courts need to follow SCOTUS precedent. The problem is not understanding what the precedent is, but how to apply it to other situations.

    Precedent which says that non-NFA small arms are protected by the 2nd Amendment is pretty darned clear. As it involves only two simple conditions (whether or not the arm in question is covered by the NFA, and whether or not it is a "small arm"), applying it isn't much of a challenge except perhaps to judges like those who sit on the 4CA.


    Sometimes it is very clear how to do it. Other times it is not very clear. Judges put together an interpretation that best addresses their understanding of the relevant precedents and that of the evidence both sides present.

    But nevertheless, they are supposed to apply all Supreme Court precedent. As the coverage of non-NFA small arms by the 2nd Amendment is Supreme Court precedent (or so you claim), how is the 4CA not negligent in its duties by failing to apply that precedent?


    While it is entirely possible that it is the judges fault, it is also entirely possible that it is not. In order to determine whether it is the judge or the litigant, you need to review the precedent and the arguments. If there are flaws with the judges argument that can be attributed to the litigants arguments then the flaw lies with the litigant and not the judge.

    Are you claiming here that judges are not negligent in their duties when they don't know the Supreme Court precedent that is supposed to apply to the case? Is that not equivalent to the false claim that one is not duty-bound to follow the law even if one is not aware of the law?

    I might have some sympathy for that kind of position if the precedent in question originated from a huge number of disparate source cases, or involved a large number of conflicting Supreme Court decisions, or something of that sort. But that's not the case here at all. Here, there are only four cases which are applicable at all: Miller, Heller, McDonald, and Caetano. That's it.

    What does it say about the 4CA when it cannot even be bothered to read and fully understand four cases such that it would recognize the precedent that your interpretation says exists? In the alternative, what does it say about the solidity of your interpretation when a full understanding of those four cases fails to reveal your interpretation (which I agree with, by the way) as clear precedent?


    The bottom line is this: either the interpretation of Heller you're bringing forth is on shaky ground, in which case we have to ask how exactly the arguments you would put forth would be of sufficiently higher quality than those brought by the plaintiffs that they would have saved the case, or the 4CA judges were negligent in their duty to understand and apply Supreme Court precedent. Which is it? :evilgrin3
     
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    jcutonilli

    Ultimate Member
    Mar 28, 2013
    2,474
    If an interpretation is disputable then dispute it.

    I don't believe there is any dispute over whether an M-16 has 2A protection. The dispute is over what the "and the like" means. It is definitely not clear from the text. The 4CA is saying an AR-15 is like an M-16 and they are correct with the only difference being the M-16 has a fully automatic mode and the AR-15 does not. Kolbe cited Staples, but Staples only addresses the issue with respect to federal law and not the applicability of 2A protection.

    Why is this the dividing line for 2A protection? If the 4CA interpretation is incorrect you need to be able to provide a reasoned explanation as to why they are wrong. The 4CA appears to provide a reasoned explanation why the arguments presented by the dissent and Kolbe are wrong.

    I can't blame the 4CA for being wrong if no one points out why they are wrong. I believe the reason they are wrong has to do with the fact that 2A protection applies to small arms that are not NFA items. SCOTUS specifically mentions small arms and the AR-15 is a small arm that is not an NFA item.
     

    kcbrown

    Super Genius
    Jun 16, 2012
    1,393
    If an interpretation is disputable then dispute it.

    I don't believe there is any dispute over whether an M-16 has 2A protection. The dispute is over what the "and the like" means. It is definitely not clear from the text. The 4CA is saying an AR-15 is like an M-16 and they are correct with the only difference being the M-16 has a fully automatic mode and the AR-15 does not. Kolbe cited Staples, but Staples only addresses the issue with respect to federal law and not the applicability of 2A protection.

    Every semi-automatic rifle is "like" the M-16 in at least two ways. As such, if the fact that a given arm is "like" the M-16 is sufficient to wrest 2A protection from it, then no semi-automatic rifle is protected. This is especially true since if the AR-15, the most popular rifle in the country, is not owned by sufficient people for self-defense in order to compel a self-defense justification for protection of the arm, then no other semi-automatic rifle can be.


    Why is this the dividing line for 2A protection? If the 4CA interpretation is incorrect you need to be able to provide a reasoned explanation as to why they are wrong. The 4CA appears to provide a reasoned explanation why the arguments presented by the dissent and Kolbe are wrong.

    And I did. "And the like" is not independent of the applicable condition, "most useful for military service". Whatever weapons "and the like" may apply to, "most useful for military service" must apply to them as well based on the sentence construction. The AR-15 clearly doesn't qualify in that regard, because it is not and has never been used in military service in the first place, nor has the military even contemplated adopting it as far as I know.

    Additionally, the 2nd Amendment most certainly was understood to protect muskets back when it was ratified. But muskets back then were the preferred infantry weapon for military duty back then. Since Constitutional rights are enshrined with the scope the people understood them to have at the time of their adoption, it therefore follows that the fact that an arm is or was "most useful for military service" is not itself a sufficient condition to assert that the arm in question is not protected by the 2nd Amendment, since it was understood to protect at least some weapons "most useful for military service", and the "like" construct would only weaken the proposition that the arm isn't so protected.

    And finally, the entire paragraph that the 4CA refers to is a hypothetical construct. It says "It may be objected that if weapons that are most useful in military service ...". It does not say explicitly and unconditionally say that weapons that are most useful in military service can, in fact, be banned. The paragraph only stands for the argument that the need for the militia to be able to possess a given weapon so that it can be as effective as militias in the 18th century is not itself sufficient grounds for 2nd Amendment protection of that weapon, as it is the understanding of the scope of the right itself, and not the militia duty in the prefatory clause, that must control.


    I can't blame the 4CA for being wrong if no one points out why they are wrong. I believe the reason they are wrong has to do with the fact that 2A protection applies to small arms that are not NFA items. SCOTUS specifically mentions small arms and the AR-15 is a small arm that is not an NFA item.

    And why should the 4CA accept your interpretation that 2A protection applies to small arms that are not NFA items, if that interpretation isn't absolutely clear?

    There's no wriggling out of this. Either the interpretation you offer is a clear one, in which case the 4CA had a duty to discover it on its own (again, there are only 4 precedential cases that apply here, so this isn't much of a demand), or it's not, in which case there's no good reason for the 4CA to go with your interpretation and, thus, your argument would almost certainly not have saved the case.

    All that matters is whether or not the precedent you call out is clear. If it is, then 4CA failed in its duty to adhere to clear Supreme Court precedent. If it is not, then your argument that plaintiffs argued badly falls flat, since (under that condition) the argument you offer is no better. Which is it?
     
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    jcutonilli

    Ultimate Member
    Mar 28, 2013
    2,474
    The 4CA answered much of what you have said, apparently you failed to read their opinion.

    The relevant question is not whether they are themselves M16s or other arms used by a military; or whether they are useful at all or only useful in military service; or whether they have this or that single feature in common with a non-banned firearm. Rather, the issue is whether the banned assault weapons and large-capacity magazines possess an amalgam of features that render those weapons and magazines like M16s and most useful in military service. The uncontroverted evidence here is that they do. (pg 68)

    According to the 4CA like is only in reference to M-16s

    The hypothetical argument was not raised by any of the parties so "there's no good reason for the 4CA to go with your interpretation and, thus, your argument would almost certainly not have saved the case." Additionally, I don't agree that the hypothetical applies to the whole paragraph. It would seem to me that the paragraph about the M16's and the paragraph about the NFA say the same thing in two different ways.
     

    JosERW

    Member
    May 18, 2017
    13
    There are enough pro 2nd justices to get cert on any of these cases if they thought it was the right case and the right time to do so.



    They also know the thinking of their co-workers probably better than anyone else. I will defer to those four Justices to decide when the time and case is right to proceed.

    Are there any cases left? You need a case, you can't just magically challenge a law. WTF are they waiting for? How long are you prepared to wait? A lifetime? If Clinton had won they would have taken it in a heartbeat and crushed the Second Amendment.
     

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