fred55
Senior
I’m sure commandant frosh is in constant contact with commandant bloomberg. fred55
Supreme Court Takes Major NRA Second Amendment Case from New York
- Thread starter Bigfoot21075
- Start date
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I’m sure commandant frosh is in constant contact with commandant bloomberg. fred55
jcutonilli
Ultimate Member
- Mar 28, 2013
- 2,474
I think you are being naive. While the dissents from denial may be clear to you and the one other justice that concurred, it was not sufficiently clear to the seven other justices. It takes four to grant cert and five to win. SCOTUS has not stepped in to correct the problem. We will see what happens to this case, many are predicting a dismissal based on mootness.
I am not claiming to be smarter than Clement or Gura. What I see are the same arguments used again and again. I would not have a problem if they were winning, but they are not. You seem to believe we should continue to do the same thing over and over and expect different results. I believe that is the definition of insanity. You also seem more interested in defending Clement and Gura than winning.
I am willing to accept that I may be wrong and that I do not have all the answers. I certainly make lots of mistakes and would rather correct them than do the same thing over and over. I believe we should learn from our mistakes an move forward with better strategies.
You seem more interested in making fun of me than figuring out a better path forward. Maybe you like losing.
That is not MSI's case; it's MSRPA as a named plaintiff in addition to Mr. Malpasso.
Sent from my SM-G960U using Tapatalk
I think I've read in at least two of the "big" 2A cases that are matriculating to SCOTUS (I think Gould and Duncan, and maybe others cases, too) that the plaintiffs are effectively arguing that means-end scrutiny is resulting in a disproportionate number of cases wherein plaintiffs lose their cases/rights due to scrutiny application. That is, wherever and whenever tiers of scrutiny are applied to adjudicate the cases, the plaintiffs lose. Where it's not applied, they win. I think this is at least one way that the plaintiffs are clearly explaining why there are issues with the tiered scrutiny.
I think you're probably right that Heller might not be unambiguous enough. If there's a ruling from this NYC case I hope it results in something that's unambiguous and that it directs all adjudication to required only text, history and and tradition analysis, and without exception, - plus more strengthening in language because even these three methods can give a "reverse engineering judge" the means to subvert the meaning of the text to erode rights.
jcutonilli
Ultimate Member
- Mar 28, 2013
- 2,474
Duncan won under intermediate scrutiny. The typical arguments certainly are capable of winning a case. The problem is that they are usually overturned by a higher court. Woollard is a local example where we won at the district court, but lost at the circuit court and was denied cert.
The problem is that there is a lot variation in how the various levels of scrutiny are interpreted. The majority of the judges feel intermediate scrutiny is appropriate and that the laws meet the intermediate scrutiny standard. Instead of trying to argue about all the nuances of why intermediate scrutiny does or does not support the laws, they argue that strict scrutiny is the standard. Choosing strict scrutiny is one of the arguments presented in this case.
They also present text history and tradition as another argument. This is not as straight forward as some make it out to be. Just look at Heller and concealed carry. It seems to suggest that concealed carry is not protected by the 2A. A number of judges in their opinions have indicated that they find the history and tradition ambiguous and difficult to interpret properly. This is why many courts have adopted intermediate scrutiny.
danb
dont be a dumbass
ok, my bad.
danb
dont be a dumbass
Well, another week, and no movement (no grants or relists) in other cases.
Things that make you go hmmmmm.
Things that make you go hmmmmm.
jcutonilli
Ultimate Member
- Mar 28, 2013
- 2,474
"...shall not be infringed." How is that unclear?
The "shall not be infringed" part is clear, the scope of the right is not. Unfortunately the scope of the right is not defined by the amendment. This is stated in Heller. It is a predefined right but there is not really any good place you can go to figure out what the scope of the right encompasses. For example, Heller seems to suggest that concealed carry is not part of the right.
Mostly because the court, in Heller, wasn't really called upon to address that issue.
I think I'd probably settle for a VERY clear SCOTUS defense of OPEN carry, knowing that most states would quickly adopt concealed carry in order to reduce the freak-out factor.
TheOriginalMexicanBob
Ultimate Member
Not that the political Left will admit it, when the Constitution was enacted there was no concept of "concealed carry" or "open carry" or "licensed carry"...there was simply the right to keep arms and to bear them as needed. There was no qualifier...that idea came much later...much as the concept of a "Living Constitution" is a 20th Century invention. That never occurred to the Framers...they simply accepted citizens had a natural right to being armed for any reason (or unarmed at their choice). The Framers may have written about an armed citizenry being a bulwark against a tyrannical government...after all they just gained their freedom from a tyrannical government...it is also implicit that people hunted for survival or self-defense. There was no qualifier in the Second Amendment as to the right.
Haha, I can understand the Constitution but get lost reading the legal posts here .... lol, no wonder they can’t understand “bear” they changed the language, I’ll be in the reloading section 
jcutonilli
Ultimate Member
- Mar 28, 2013
- 2,474
While they did not specifically address concealed carry in Heller, they have provided a framework in which to address that issue. They specifically call out early concealed carry cases as examples of how the scope of the right is not unlimited. The ninth circuit certainly used that reasoning to dismiss Peruta and SCOTUS did not step in to correct them.
I believe these early case demonstrate why history and tradition can be difficult to determine. On their face it appears that concealed carry should be prohibited. Yet when you look at the reasoning why it was prohibited you come to a different answer. They believed only criminals needed to carry concealed and did not believe that there was any legitimate reason for it.
Today is sort of opposite. There are many instances of legitimate concealed carry and open carry produces a kind of hysterical reaction by some. I would be concerned if SCOTUS were to clearly accept open carry, some states may begin to put more restrictions on concealed carry even though it is the more socially acceptable method today.
Then the Founders would have written “Shall not be infringed except... .”
Well, we already have a huge asterisk on the 5th Amendment with civil seizures, "good faith" exclusions on the 4th, and the use of civil procedures rather than criminal like with red flag laws to avoid triggering 6th Amendment protections. So why shouldn't the states and feds just keep going adding more conditions to what we were taught in school were inalienable rights?
jcutonilli
Ultimate Member
- Mar 28, 2013
- 2,474
There is no need to exempt something if it is not part of the right to begin with.
Knuckle Dragger
Active Member
- May 7, 2012
- 213
100% Spot on!
Heller was as notable for what it didn't say as for what it did say, and that was deliberate. There's something in that decision that a judge can use to go anyway they want.* The federal judiciary was far from on board with the idea that the Second Amendment protects and individual right. As SCOTUS denied more and more 2A petition, judges and politicians have become ever more bold in trying to limit 2A rights. The high court's 2A disengagement has only encouraged actions like the SJC's Caetano decision and NYC's decision to oppose NYSRPA through the Second Circuit. They're playing the odds that SCOTUS will not grant review. Given the high court's record, it's a good bet.
With Caetano and the NYSRPA grant, I think the court is trying to send little hints to see if the lower courts are paying attention - they're not. NYSRPA gave the court the opportunity to issue a very limited decision, but New York blew it. If the petition is ruled moot, it just leaves the door open for a more expansive decision in a broader case.
*The SJC's opinion in Caetano was the big outlier here. It didn't just twist the majority opinion to suit a pre-determined outcome, it basically used the dissent as the basis for their decision. One can see just how torqued the SJC was when they were forced to issue a different ruling in Ramirez. They went out of their way to illustrate just how dangerous and vile stun guns are.
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