Young Opening Brief Filed

kcbrown · Oct 6, 2020

jcutonilli said:
There is a way to know in advance whether or not a given challenge will be done so correctly. It is called look at other cases.

If that were true then there wouldn't be a statistical variation in the decision on the basis of nominating party. But there is. Because there is, that means that who hears your case will have a major impact on the outcome. And because one cannot know in advance who will be hearing your case, past cases are not a 100% predictor of future success and, therefore, there is no way to be 100% certain prior to filing the case whether or not one will succeed in the challenge to the law.

Look at Peruta for example. The plaintiffs won at the 3-judge panel level. But that was overturned by the en banc panel, thus turning a win into a loss. There is no better example of the arbitrariness of the outcome than that, when everything remains the same save for those who are making the decision.

And in any case, some case has to be first, and that first case will have no prior cases to reference to begin with.

And finally, if it were that simple, then don't you think that competent counsel would have figured that out and done precisely that? After all, why should this principle you espouse be one that is limited to the 2A arena? Constitutional law litigation has been going on ever since the Constitution was ratified, so it's not like there isn't centuries of experience on this. And yet, somehow, we're to believe that plaintiffs' counsel have somehow forgotten all of the lessons of past Constitutional litigation?

A number of people argue that the Constitution is based on the common law. The constitution certainly does not spell out in detail what everything means. Our legal history is based on the common law that fills in the details. Do you believe the 1A only applies to congress, because that is what the text says.

And prior to the 14th Amendment, that's what the text meant.

Again, it doesn't matter that the Constitution is based on common law. It's the Constitution, not common law, that is the supreme law of the land. You can't legitimately use something other than the original intended meaning of Constitution itself as the litmus test for correctness of a decision about the Constitution. Nothing legitimately overrides the Constitution. That's what it means for the Constitution to be the supreme law of the land.

I certainly have read cases involving the 1A and the 4A, where public safety is used to restrict those rights in certain circumstances. I can't say that I have read every single one.

I have a suspicion that you haven't read every single one.

And it certainly wouldn't be reasonable to expect you to.

If the plaintiffs want to challenge the evidence via causation, then they need to challenge the evidence directly. They have not challenged the evidence directly.

They did challenge it directly! That's my point: stating that the evidence the government uses is invalid, and providing correct data, is a direct challenge!

What wording in the briefs makes you believe that it's not a direct challenge? Please supply that wording so I can see exactly where you're coming from here.

If the government does not supply valid evidence then the law will not pass scrutiny.

Yeah, well, it did pass scrutiny. So we know from experience that this is incorrect.

Applehd · Oct 6, 2020

KC... you can't win with JC... it's an exercise in futility. :rolleyes:

kcbrown · Oct 6, 2020

Applehd said:
KC... you can't win with JC... it's an exercise in futility.

Heh. That might well be.

But there's a lot that can be learned through such debate, and that's my principle driver here.

Not to mention that this debate is fun.

777GSOTB · Oct 6, 2020

kcbrown said:
And prior to the 14th Amendment, that's what the text meant.

Again, it doesn't matter that the Constitution is based on common law. It's the Constitution, not common law, that is the supreme law of the land. You can't legitimately use something other than the original intended meaning of Constitution itself as the litmus test for correctness of a decision about the Constitution. Nothing legitimately overrides the Constitution. That's what it means for the Constitution to be the supreme law of the land.

I always thought that to be quite the contradiction. The US Constitution is the supreme law of the land, but we need the 14th Amendment to make it the supreme law of the land.

kcbrown · Oct 6, 2020

777GSOTB said:
I always thought that to be quite the contradiction. The US Constitution is the supreme law of the land, but we need the 14th Amendment to make it the supreme law of the land.

It is a contradiction as regards the 2nd Amendment. The 2nd Amendment doesn't contain any language that restricts it to the federal government. It applies universally, and therefore should have been operative against all governments operating within the United States.

The 1st Amendment was restricted to the federal government because it explicitly states that Congress "shall make no law ...", and Congress is a federal government construct. The 14th Amendment was thus necessary to extend its reach to the states.

Now, the Supreme Court did end up deciding some time back that none of the Bill of Rights applied to the states (this was before all the incorporation stuff), and that basically neutered the use of the 2nd Amendment to challenge state laws, but that decision is in clear contravention of the plain language of the 2nd Amendment combined with the supremacy clause.

jcutonilli · Oct 7, 2020

kcbrown said:
If that were true then there wouldn't be a statistical variation in the decision on the basis of nominating party. But there is. Because there is, that means that who hears your case will have a major impact on the outcome. And because one cannot know in advance who will be hearing your case, past cases are not a 100% predictor of future success and, therefore, there is no way to be 100% certain prior to filing the case whether or not one will succeed in the challenge to the law.

Look at Peruta for example. The plaintiffs won at the 3-judge panel level. But that was overturned by the en banc panel, thus turning a win into a loss. There is no better example of the arbitrariness of the outcome than that, when everything remains the same save for those who are making the decision.

And in any case, some case has to be first, and that first case will have no prior cases to reference to begin with.

And finally, if it were that simple, then don't you think that competent counsel would have figured that out and done precisely that? After all, why should this principle you espouse be one that is limited to the 2A arena? Constitutional law litigation has been going on ever since the Constitution was ratified, so it's not like there isn't centuries of experience on this. And yet, somehow, we're to believe that plaintiffs' counsel have somehow forgotten all of the lessons of past Constitutional litigation?

Your analysis on the decision based on nominating party proves you can know the outcome in advance. Peruta also proves my point. The numbers have been against us. Any temporary win will be erased because the numbers are not there.

The lawyers get paid whether they win or lose.

And prior to the 14th Amendment, that's what the text meant.

Again, it doesn't matter that the Constitution is based on common law. It's the Constitution, not common law, that is the supreme law of the land. You can't legitimately use something other than the original intended meaning of Constitution itself as the litmus test for correctness of a decision about the Constitution. Nothing legitimately overrides the Constitution. That's what it means for the Constitution to be the supreme law of the land.

There is nothing in the 14A that talks about incorporation. The 1A was not incorporated until the early 1920s. It is a product of common law.

https://en.wikipedia.org/wiki/Fourteenth_Amendment_to_the_United_States_Constitution#Incorporation
https://en.wikipedia.org/wiki/Incorporation_of_the_Bill_of_Rights

They did challenge it directly! That's my point: stating that the evidence the government uses is invalid, and providing correct data, is a direct challenge!

What wording in the briefs makes you believe that it's not a direct challenge? Please supply that wording so I can see exactly where you're coming from here.

They did not challenge the evidence directly.
Take Kolbe v Omalley (MD AWB and mag ban)

https://michellawyers.com/wp-conten...upport-of-Motion-for-Summary-Judgment__44.pdf

https://michellawyers.com/wp-conten...to-Defendants-Motion-for-Summary-Judgment.pdf

https://michellawyers.com/wp-conten...ment-and-Denying-Plaintiffs-Cross-Motion1.pdf

For example MD stated

assault weapons and large-capacity magazines increase casualties from mass shootings and pose particular dangers to law enforcement officers

Kolbe stated

Defendants’ experts [Koper] admitted that there was no reason to expect the federal ban, after which the challenged Maryland laws were modeled, to have an impact on firearm violence

The judge found

As an initial matter, the plaintiffs often mischaracterize Koper’s statements and his research, cherry-picking items and presenting them out of context.

They really did not challenge the data directly.

kcbrown · Oct 7, 2020

jcutonilli said:
Your analysis on the decision based on nominating party proves you can know the outcome in advance. Peruta also proves my point. The numbers have been against us. Any temporary win will be erased because the numbers are not there.

You can know the outcome in advance if you know who will be making the decision. But the question here is about what you know before you bring the case to begin with.

When you bring the case, you don't know who will be making the decision. And there are a number of reasons for that:

The judge selection is random
There are multiple levels for which the above is true (district court, appeals court, en banc court in the 9th circuit)
The pool from which judges are selected is itself a semi-random moving target (look at how the composition of the 9th Circuit has changed since Trump came into office)

Peruta is illustrative of many things. At the time, common "wisdom" was that en banc proceedings were exceptionally rare, making en banc review ostensibly a very low probability event. As a result, those who brought Peruta had every reason to believe that their case would very likely not be overturned by an en banc panel, because they had every reason to believe that it would not go en banc in the first place, at a probability of something like one in a thousand. I expected that it would go en banc despite the apparent odds, but that's because I understood the highly political nature of the issue and believed that politics would override the norm. My expectation proved accurate (and to be clear, I wasn't the only one with that expectation).

As I mentioned, Peruta was won at the 3-judge panel level. There was every reason to believe that the decision would stand. It is only because the 9th Circuit took the "extraordinary" measure of reversing it en banc that it lost.

Peruta was brought in 2009, a mere one year after Heller was decided. What indication did the plaintiffs have at that time that the court system in the 9th Circuit would treat such cases in the way it subsequently did? None, that's what. There was no reason at all to believe that the case had no chance of success.

And that's my point: when you bring the case, you have no means of determining whether or not you will succeed, precisely because the people who will hear the case are unknown to you. Yes, prior cases can reduce the probability and yes, the probability may be low at that point. But it's still nonzero. A zero probability means that you know for sure that it will fail no matter what you do or even how you argue it.

There is nothing in the 14A that talks about incorporation. The 1A was not incorporated until the early 1920s. It is a product of common law.

That's because "incorporation" is a Court-induced workaround to the fact that it had previously improperly decided the meaning of the "privileges or immunities" clause of the 14th Amendment in Cruikshank. This perfectly illustrates why stare decisis as implemented in the court system is plainly wrong, because it overrides what would otherwise be correct Constitutional decisions with previous incorrect ones.

They did not challenge the evidence directly.
Take Kolbe v Omalley (MD AWB and mag ban)

They really did not challenge the data directly.

I'll have to read through the briefs in question, but if other such cases were handled the same way then what you cite here makes your position on this plainly correct. That said, the requirements for scrutiny are the court's, not the litigants'. As such, it's on the court to enforce those requirements irrespective of what the litigants argue.

wjackcooper · Oct 12, 2020

"Wrong"

Jcutonilli in rebuttal wrote in post #557: “Jack, You are wrong. Scrutiny is not a balancing test because they do not balance anything. They are simply determining the relationship the law has with a government interest. The right plays no role in the process once a level of scrutiny is selected.”

Ok, I will try to help you:

Scrutiny levels (strict, intermediate, & rational basis) are methods (tests) used by many of the Judiciary while balancing (i.e., weighing) the 2A v public safety, or as put another way in Heller 11 (Kavanagh’s dissent, page 24) “the levels of scrutiny are essentially balancing tests, each test determines how the weights on the scale are to be arranged,” or (on page 5) still another way “a balancing test such as strict or intermediate scrutiny,” or yet another way in N.J. Rifle & Pistol Clubs (Matey’s dissent at (page 29) “the Government bears the burden of proof on the appropriateness of the means it employs to further its interest, but the Government falls well short of satisfying its burden—even under intermediate scrutiny,” or again (at pages 30 -32) “the widespread popularity of the two-step balancing test does not address the clear repudiation of interest-balancing by the Supreme Court in Heller and McDonald,” or once more, “[t]hus, the avowed purpose of the inquiry — even in the form of rational-basis review — is to determine when that right has been validly "outweighed" by the government's interest in suppressing it” and finally“t is in the very nature of the tiers of scrutiny that they contradict the constitutional provisions in question, by purporting to find those rights "outweighed" by the government's interest in violating them.” See generally National Affairs No. 45, Fall 2020 https://www.nationalaffairs.com/publictions/detail/against-the-tiers-of-constitutional-scrutiny

In short, 2A v. safety balancing is a subjective (feeling based) undertaking using a level of scrutiny, or not, to determine which is weightier . . . the right, or the Government’s interest in safety. See Breyer’s dissent Sec. 111 (controlling law in most Courts) in Heller. https://www.law.cornell.edu/supct/html/07-290.ZD1.html

Jcutonilli in further rebuttal then wrote in post #557:

“The real problem is that the plaintiffs are making it easy for the courts to reach the decisions they do by the arguments they make. They also do not explaining why the lower courts are getting things wrong.”

Alright, again trying to help,

1. Ipse dixit: “It is so because I say it is so” - an assertion without a detached basis remains an assertion. https://www.law.cornell.edu/wex/ipse_dixit

2. Post hoc Ergo propter Hoc: The fallacy of arguing that because one event happened after another, it happened because of it.. https://www.oxfordreference.com/view/10.1093/oi/authority.20110803100339479

Examples:
A. The sun went down after some lawyers went for a walk this evening, I saw them walking, their walking caused the sunset.
B. Cert was denied on 10 2A cases this evening, I read the briefs, the cases were not properly “argued.”

A & B are examples of conclusions supported by ipse dixit assertions as well as post hoc, i.e., correlated, sequential events . . . both conclusions are completely unsupported by reference to an independent authority . . . both assertions have no impartial supporting foundation in fact, or in cited secondary credible opinions. Informed Supreme Court observers attribute the 2A cert denials to the Kennedy/Roberts block.

See post 553 for the links to the above Kavanagh/Matey quotes, and to the supporting opinions re cert denials.

Regards
Jack

Once again pointing out: “Any credible rebuttal (a) cannot be based in math, or law, (b) cannot be other than safety driven, (b) can have no reference (or link) to squarely in point, controlling, language rebutting the Heller/McDonald rejection of safety v. 2A balancing, (c) and cannot concede that Heller (2008) and McDonald (2010) are binding precedent

jcutonilli · Oct 12, 2020

wjackcooper said:
Jcutonilli in rebuttal wrote in post #557: “Jack, You are wrong. Scrutiny is not a balancing test because they do not balance anything. They are simply determining the relationship the law has with a government interest. The right plays no role in the process once a level of scrutiny is selected.”

Ok, I will try to help you:

Scrutiny levels (strict, intermediate, & rational basis) are methods (tests) used by many of the Judiciary while balancing (i.e., weighing) the 2A v public safety, or as put another way in Heller 11 (Kavanagh’s dissent, page 24) “the levels of scrutiny are essentially balancing tests, each test determines how the weights on the scale are to be arranged,” or (on page 5) still another way “a balancing test such as strict or intermediate scrutiny,” or yet another way in N.J. Rifle & Pistol Clubs (Matey’s dissent at (page 29) “the Government bears the burden of proof on the appropriateness of the means it employs to further its interest, but the Government falls well short of satisfying its burden—even under intermediate scrutiny,” or again (at pages 30 -32) “the widespread popularity of the two-step balancing test does not address the clear repudiation of interest-balancing by the Supreme Court in Heller and McDonald,” or once more, “[t]hus, the avowed purpose of the inquiry — even in the form of rational-basis review — is to determine when that right has been validly "outweighed" by the government's interest in suppressing it” and finally“t is in the very nature of the tiers of scrutiny that they contradict the constitutional provisions in question, by purporting to find those rights "outweighed" by the government's interest in violating them.” See generally National Affairs No. 45, Fall 2020 https://www.nationalaffairs.com/publictions/detail/against-the-tiers-of-constitutional-scrutiny

In short, 2A v. safety balancing is a subjective (feeling based) undertaking using a level of scrutiny, or not, to determine which is weightier . . . the right, or the Government’s interest in safety. See Breyer’s dissent Sec. 111 (controlling law in most Courts) in Heller. https://www.law.cornell.edu/supct/html/07-290.ZD1.html

Jcutonilli in further rebuttal then wrote in post #557:

“The real problem is that the plaintiffs are making it easy for the courts to reach the decisions they do by the arguments they make. They also do not explaining why the lower courts are getting things wrong.”

Alright, again trying to help,

1. Ipse dixit: “It is so because I say it is so” - an assertion without a detached basis remains an assertion. https://www.law.cornell.edu/wex/ipse_dixit

2. Post hoc Ergo propter Hoc: The fallacy of arguing that because one event happened after another, it happened because of it.. https://www.oxfordreference.com/view/10.1093/oi/authority.20110803100339479

Examples:
A. The sun went down after some lawyers went for a walk this evening, I saw them walking, their walking caused the sunset.
B. Cert was denied on 10 2A cases this evening, I read the briefs, the cases were not properly “argued.”

A & B are examples of conclusions supported by ipse dixit assertions as well as post hoc, i.e., correlated, sequential events . . . both conclusions are completely unsupported by reference to an independent authority . . . both assertions have no impartial supporting foundation in fact, or in cited secondary credible opinions. Informed Supreme Court observers attribute the 2A cert denials to the Kennedy/Roberts block.

See post 553 for the links to the above Kavanagh/Matey quotes, and to the supporting opinions re cert denials.

Regards
Jack

Once again pointing out: “Any credible rebuttal (a) cannot be based in math, or law, (b) cannot be other than safety driven, (b) can have no reference (or link) to squarely in point, controlling, language rebutting the Heller/McDonald rejection of safety v. 2A balancing, (c) and cannot concede that Heller (2008) and McDonald (2010) are binding precedent

Once again you are wrong.

You need to learn some additional logical fallacies. One is argument from authority https://en.wikipedia.org/wiki/Argument_from_authority The other is the straw man fallacy https://en.wikipedia.org/wiki/Straw_man

Neither dissenting opinions nor informed observers are authoritative with respect to these issues.

You supplied a definition of interest balancing. I simply used that definition, along with the scrutiny definitions to demonstrate that scrutiny is not interest balancing. "They are simply determining the relationship the law has with a government interest. The right plays no role in the process once a level of scrutiny is selected.”

The majority in Heller also stated

Under any of the standards of scrutiny that we have applied to enumerated constitutional rights,[Footnote 27] banning from the home “the most preferred firearm in the nation to ‘keep’ and use for protection of one’s home and family,” 478 F. 3d, at 400, would fail constitutional muster. ...
We know of no other enumerated constitutional right whose core protection has been subjected to a freestanding “interest-balancing” approach.

Click to expand...

Why would they say that if scrutiny really means interest balancing?

As for the straw man. I never stated "Cert was denied on 10 2A cases this evening, I read the briefs, the cases were not properly 'argued.'"

I stated “The real problem is that the plaintiffs are making it easy for the courts to reach the decisions they do by the arguments they make. They also do not explaining why the lower courts are getting things wrong.” I am not claiming that the petitions were rejected because I read the briefs. The cert petitions validate what I am saying.

wjackcooper · Oct 31, 2020

Jcutonilli wrote: Post 569
“Once again you are wrong.”

“Once again” pointing out: Any credible rebuttal (a) cannot be based in math, or law, (b) cannot be other than safety driven, (c) can have no reference (or link) to squarely in point, controlling, language rebutting the Heller/McDonald rejection of safety v. 2A balancing, (d) and cannot concede that Heller (2008) and McDonald (2010) are binding precedent.

“You need to learn some additional logical fallacies. One is argument from authority” https://en.wikipedia.org/wiki/Argument_from_authority.” The other is the straw man fallacy” https://en.wikipedia.org/wiki/Straw_man

Gee whiz:
Everybody knows that any legal assertion not supported by independent authority cannot be fairly characterized as anything other than blowing smoke. Practically everyone learns this during early childhood by listening to straw man arguments. Might want to take a careful look at: https://en.wikipedia.org/wiki/The_pot_calling_the_kettle_black

“Neither dissenting opinions nor informed observers are authoritative with respect to these issues.”

Good grief:
1. The “dissenting opinions” are by Trump Judicial appointees who are pointing out the 2A “law of the land” is “text, history, and tradition” not “interest-balancing.”

2. Among the “informed observers” are the likes of Adam Winkler professor at the UCLA School of Law . . . author of Gunfight: The Battle Over the Right to Bear Arms in America, and Lawrence Friedman professor at the Stanford School of Law . . . author of American Legal History . Both are of the opinion that Roberts is blocking 2A cert.

“You supplied a definition of interest balancing. I simply used that definition, along with the scrutiny definitions to demonstrate that scrutiny is not interest balancing. "They are simply determining the relationship the law has with a government interest. The right plays no role in the process once a level of scrutiny is selected.”

Well, perhaps this might help: Scrutiny, (definition, modified & cut short) “[T]he hierarchy” (strict, intermediate, & rational basis) “of standards that courts use to determine which is weightier a constitutional right or principle, or the government's interest against observance of the principle.” https://en.wikipedia.org/wiki/Strict_scrutiny

Anyway, take note of the words: “standards,”. . .“to determine“, then the words: “which is weightier a constitutional right”, . . . “or the government’s interest,” . . . then think, interest-balancing. The burden of proof remains on the Govt. throughout the analysis to show that its interest in safety & crime prevention is “weightier” than the “right.” The right weights more than a law that does not (under the assigned standard of scrutiny) fit, or is not substantially and effectively interrelated, or linked to, its purpose, i.e., public safety and crime prevention. The weight of the “right” must be overcome by the Govt. and “plays” a critical “role” in the process until the case is won, or lost. See https://www.slu.edu/law/law-journal...2/david_kopel-and-joseph_greenlee_article.pdf page 314 & https://www.nationalaffairs.com/publications/detail/against-the-tiers-of-constitutional-scrutiny generally.

The majority in Heller also state:
“Under any of the standards of scrutiny that we have applied to enumerated constitutional rights,[Footnote 27] banning from the home “the most preferred firearm in the nation to ‘keep’ and use for protection of one’s home and family,” 478 F. 3d, at 400, would fail constitutional muster. ...
We know of no other enumerated constitutional right whose core protection has been subjected to a freestanding “interest-balancing” approach.”
“Why would they say that if scrutiny really means interest balancing?

Maybe this will help: Scrutiny does not “really” mean “interest-balancing.” https://www.dictionary.com/browse/scrutiny. Scrutiny (again in a 2A context) is an examination and assessment method, or analysis process, integral to, and occurring while, determining the weight (fit for purpose, etc.) to be assigned to the Govt.’s interest in safety & crime prevention. One way to look at it is . . . The result of the scrutiny review (weight) goes into the Govt.’s interest pan on one side of the scale. Balancing v. the 2A need not have yet occurred at this juncture. The 2A (weight) then goes in the “people” pan on the other side of the scale. It can then be determined by balancing “which is weightier.” Seems to me Scalia is pointing out that any weight assigned to the DC ban through application of “any of the standards of scrutiny” would then (upon balancing) fail to out weight the 2A right (i.e, constitutional muster) and that no other core right has been “subjected to a freestanding interest-balancing approach.” See: https://www.quora.com/What-is-constitutional-muster-How-is-it-done

“The Second Amendment is no different. Like the First, it is the very product of an interest-balancing by the people—which Justice Breyer would now conduct for them anew.” https://www.scotusblog.com/2008/06/heller-quotes-from-the-majority/ 62 -63. Here Scalia is pointing out that the 2A is the result of “interest-balancing by the people” (occurring in 1791 & 1868) but that Breyer wants a Judicial do over (which has occurred, and is treated as controlling law in most lower Courts). Trump’s appointments to the SC may result in enforcement of the Heller/McDonald text, history, & tradition approach to all “core” 2A “rights” in all jurisdictions! Who knows, Roberts might get on board for a 6 – 3 win!

“The real problem is that the plaintiffs are making it easy for the courts to reach the decisions they do by the arguments they make. They also do not explaining why the lower courts are getting things wrong.” I am not claiming that the petitions were rejected because I read the briefs. The cert petitions validate what I am saying.”

Holy smoke! (pun intended)

Yep, it is for sure: that (“petitions were rejected”) followed this (“arguments they make”) therefore this (“arguments they make”) caused that (“petitions were rejected”) and (“the cert petitions validate what I am saying”) i.e., this is so because I say it is so.

Funny that someone could read the definitions of post hoc ergo proctor hoc and ipsa dixit, dispute the applicability of an example . . . then in rebuttal double down and post a classic, textbook worthy, additional example. Needless to point out, the allegation is only supported by post hoc correlated, sequential events and an ipse dixit assertion. See “blowing smoke” & “straw man” above, paragraph 4.

As predicted as probable in post 553, pointing out the obvious has proved futile. At any rate, the grins and giggles were not unappreciated.

I agree that we disagree and will leave “this” at “that.”

Regards
Jack

*See posts 553 and 568 for the additional supporting links and quotes.

jcutonilli · Oct 31, 2020

wjackcooper said:
“Once again” pointing out: Any credible rebuttal (a) cannot be based in math, or law, (b) cannot be other than safety driven, (c) can have no reference (or link) to squarely in point, controlling, language rebutting the Heller/McDonald rejection of safety v. 2A balancing, (d) and cannot concede that Heller (2008) and McDonald (2010) are binding precedent.

Gee whiz:
Everybody knows that any legal assertion not supported by independent authority cannot be fairly characterized as anything other than blowing smoke. Practically everyone learns this during early childhood by listening to straw man arguments. Might want to take a careful look at: https://en.wikipedia.org/wiki/The_pot_calling_the_kettle_black

Good grief:
1. The “dissenting opinions” are by Trump Judicial appointees who are pointing out the 2A “law of the land” is “text, history, and tradition” not “interest-balancing.”

2. Among the “informed observers” are the likes of Adam Winkler professor at the UCLA School of Law . . . author of Gunfight: The Battle Over the Right to Bear Arms in America, and Lawrence Friedman professor at the Stanford School of Law . . . author of American Legal History . Both are of the opinion that Roberts is blocking 2A cert.

Well, perhaps this might help: Scrutiny, (definition, modified & cut short) “[T]he hierarchy” (strict, intermediate, & rational basis) “of standards that courts use to determine which is weightier a constitutional right or principle, or the government's interest against observance of the principle.” https://en.wikipedia.org/wiki/Strict_scrutiny

Anyway, take note of the words: “standards,”. . .“to determine“, then the words: “which is weightier a constitutional right”, . . . “or the government’s interest,” . . . then think, interest-balancing. The burden of proof remains on the Govt. throughout the analysis to show that its interest in safety & crime prevention is “weightier” than the “right.” The right weights more than a law that does not (under the assigned standard of scrutiny) fit, or is not substantially and effectively interrelated, or linked to, its purpose, i.e., public safety and crime prevention. The weight of the “right” must be overcome by the Govt. and “plays” a critical “role” in the process until the case is won, or lost. See https://www.slu.edu/law/law-journal...2/david_kopel-and-joseph_greenlee_article.pdf page 314 & https://www.nationalaffairs.com/publications/detail/against-the-tiers-of-constitutional-scrutiny generally.Maybe this will help: Scrutiny does not “really” mean “interest-balancing.” https://www.dictionary.com/browse/scrutiny. Scrutiny (again in a 2A context) is an examination and assessment method, or analysis process, integral to, and occurring while, determining the weight (fit for purpose, etc.) to be assigned to the Govt.’s interest in safety & crime prevention. One way to look at it is . . . The result of the scrutiny review (weight) goes into the Govt.’s interest pan on one side of the scale. Balancing v. the 2A need not have yet occurred at this juncture. The 2A (weight) then goes in the “people” pan on the other side of the scale. It can then be determined by balancing “which is weightier.” Seems to me Scalia is pointing out that any weight assigned to the DC ban through application of “any of the standards of scrutiny” would then (upon balancing) fail to out weight the 2A right (i.e, constitutional muster) and that no other core right has been “subjected to a freestanding interest-balancing approach.” See: https://www.quora.com/What-is-constitutional-muster-How-is-it-done

“The Second Amendment is no different. Like the First, it is the very product of an interest-balancing by the people—which Justice Breyer would now conduct for them anew.” https://www.scotusblog.com/2008/06/heller-quotes-from-the-majority/ 62 -63. Here Scalia is pointing out that the 2A is the result of “interest-balancing by the people” (occurring in 1791 & 1868) but that Breyer wants a Judicial do over (which has occurred, and is treated as controlling law in most lower Courts). Trump’s appointments to the SC may result in enforcement of the Heller/McDonald text, history, & tradition approach to all “core” 2A “rights” in all jurisdictions! Who knows, Roberts might get on board for a 6 – 3 win!

Holy smoke! (pun intended)

Yep, it is for sure: that (“petitions were rejected”) followed this (“arguments they make”) therefore this (“arguments they make”) caused that (“petitions were rejected”) and (“the cert petitions validate what I am saying”) i.e., this is so because I say it is so.

Funny that someone could read the definitions of post hoc ergo proctor hoc and ipsa dixit, dispute the applicability of an example . . . then in rebuttal double down and post a classic, textbook worthy, additional example. Needless to point out, the allegation is only supported by post hoc correlated, sequential events and an ipse dixit assertion. See “blowing smoke” & “straw man” above, paragraph 4.

As predicted as probable in post 553, pointing out the obvious has proved futile. At any rate, the grins and giggles were not unappreciated.

I agree that we disagree and will leave “this” at “that.”

Regards
Jack

*See posts 553 and 568 for the additional supporting links and quotes.

Jack, you are wrong, you are wrong, you are wrong. How many times do we need to go over this.

My rebuttal is based on facts and logic. You may want to try using them to support your arguments.

Your appeals to authority are appeals to a false authority. The only authorities with respect to 2A law are the majority opinions. Judge Kavanaugh did not write the majority opinion so what he wrote is not considered authoritative. The only authorities for whether Roberts is blocking 2A cases are the justices themselves because they are the only ones present for the discussions. The "informed observers" (law professors) were not present during the 2A cert deliberations and do not know the reasoning for denial of cert for 2A cases.

Neither Wikipedia for any of the other sources you use are the actual authoritative source for the definition of scrutiny . These sources are simply trying to provide a layman's explanation as to what is occurring. The Wikipedia article you reference does provide a numbered list of the criteria that the courts use in determining strict scrutiny. Nowhere in that list is there a reference to the right. None of the levels of scrutiny actually account for the right as part of the process. In a balancing test, the right is part of the process.

I did not write the petitions so it is not because I say it is so. They are an independent and authoritative source for what arguments were presented to SCOTUS. I am claiming that these petitions are missing arguments as to why the lower courts got the cases wrong. This can be independently verified as to whether I am correct.

delaware_export · Oct 31, 2020

Is there any estimation of this ruling? Did I miss it? Or are we just in wait and see mode?

jcutonilli · Nov 1, 2020

delaware_export said:
Is there any estimation of this ruling? Did I miss it? Or are we just in wait and see mode?

Two weeks?

The 9CA has a number of en banc cases listed on their website. https://www.ca9.uscourts.gov/enbanc/ Looking at the difference between the en banc start date and the opinion date suggests that the decision will likely take a year or longer to issue.

delaware_export · Nov 1, 2020

Thanks for the info J.

jcutonilli said:
Two weeks?

The 9CA has a number of en banc cases listed on their website. https://www.ca9.uscourts.gov/enbanc/ Looking at the difference between the en banc start date and the opinion date suggests that the decision will likely take a year or longer to issue.

jcutonilli · Mar 24, 2021

The opinion in the Young v Hawaii case has been released. It appears to have been a loss.

Inigoes · Mar 24, 2021

SCOTUS petition for cert in 3.2.1...

Occam · Mar 24, 2021

So, the en banc panel went with “Heller doesn’t say you can carry in public, and history/tradition is that you don’t have the right, so, peasant, your Undemonstrated Urgency does not please the crown and means no permit for you. Go away.”

jcutonilli · Mar 24, 2021

Occam said:
So, the en banc panel went with “Heller doesn’t say you can carry in public, and history/tradition is that you don’t have the right, so, peasant, your Undemonstrated Urgency does not please the crown and means no permit for you. Go away.”

Have you figured out that history and tradition may not be as clear as everyone is making it out to be.

Occam · Mar 24, 2021

jcutonilli said:
Have you figured out that history and tradition may not be as clear as everyone is making it out to be.

It has always been a canvas upon which anti-2A judges can paint whatever vision of history they want. That way they can spend their time staring so hard at their new painting that they can no longer see or parse the words “and bear.”

jcutonilli · Mar 24, 2021

Occam said:
It has always been a canvas upon which anti-2A judges can paint whatever vision of history they want. That way they can spend their time staring so hard at their new painting that they can no longer see or parse the words “and bear.”

You make it so easy for them to do that when you insist that history and tradition be part of any analysis.

Young Opening Brief Filed

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