Supreme Court Takes Major NRA Second Amendment Case from New York

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  • FrankZ

    Liberty = Responsibility
    MDS Supporter
    Oct 25, 2012
    3,334
    NYC Tax Payers. They voted for the politicians that put these laws in place, screw them. They are lucky that the Plaintiffs aren't asking for damages.

    Not all the tax payers voted the same way...
     

    ddestruel

    Member
    Jun 23, 2015
    90
    NYC Tax Payers. They voted for the politicians that put these laws in place, screw them. They are lucky that the Plaintiffs aren't asking for damages.


    In the days of Jim Crow I’m sure those voters and tax payers back then deserved what the politicians who were voted for enacted against them as well......

    Absolute Power corrupts and the minority suffers at the hands of whatever is the political agenda of the day. The tax payers suffer at the hands of politicians who serve their special interests and the courts and constitution should protect those tax payer from such whims and abuses.
     

    jcutonilli

    Ultimate Member
    Mar 28, 2013
    2,474
    I thought they did back in Heller? They ignored tiers of scrutiny in the majority opinion and went with the Historical Context review. It was Breyer in the dissent that created the 2A-two-step the lower courts have been using. But for whatever reason (Kennedy & Roberts) the Court hasn't taken another case defending the Historical Context method.

    They did not really ignore the tiers of scrutiny, they stated that the law would not meet "any of the standards of scrutiny". The majority did not really explain why the law would not meet intermediate scrutiny however. They adopted a historical approach, which the lower courts found confusing. The lower courts took this ambiguity over intermediate scrutiny to come to the opposite conclusion.

    Breyer actually proposed an interest balancing approach, which the majority rejected. While there may not be much difference between what Breyer proposed and what the lower courts are doing, the problem is with the explanation. The lower courts appear to be following SCOTUS's guidance on intermediate scrutiny and none has been able to explain why they are not following SCOTUS's guidance. All of the cases before this one have simply argued that the lower court should have used the historical approach without explaining why the intermediate scrutiny approach is wrong.


    While the arguments of this case are not appreciably different from the other cases, the circumstances are different. This is the first time that enough justices can confidently see there is an error that they can correct. Because the arguments are so similar to other cases that they have rejected, I suspect that this will be a very narrow ruling and the lower courts will likely be able to use intermediate scrutiny to sustain most gun control laws.
     

    GTOGUNNER

    IANAL, PATRIOT PICKET!!
    Patriot Picket
    Dec 16, 2010
    5,492
    Carroll County!
    They did not really ignore the tiers of scrutiny, they stated that the law would not meet "any of the standards of scrutiny". The majority did not really explain why the law would not meet intermediate scrutiny however. They adopted a historical approach, which the lower courts found confusing. The lower courts took this ambiguity over intermediate scrutiny to come to the opposite conclusion.



    Breyer actually proposed an interest balancing approach, which the majority rejected. While there may not be much difference between what Breyer proposed and what the lower courts are doing, the problem is with the explanation. The lower courts appear to be following SCOTUS's guidance on intermediate scrutiny and none has been able to explain why they are not following SCOTUS's guidance. All of the cases before this one have simply argued that the lower court should have used the historical approach without explaining why the intermediate scrutiny approach is wrong.





    While the arguments of this case are not appreciably different from the other cases, the circumstances are different. This is the first time that enough justices can confidently see there is an error that they can correct. Because the arguments are so similar to other cases that they have rejected, I suspect that this will be a very narrow ruling and the lower courts will likely be able to use intermediate scrutiny to sustain most gun control laws.
    Damn, you threw water on my fire!!
     

    wjackcooper

    Active Member
    Feb 9, 2011
    689
    Justice Scala pointed out the Second Amendment merely acknowledges a preexisting right and provides it is not to be curtailed . . . not really rocket science to put this into its “historical context.” It appears, at least to me, the courts (mostly progressive judges) have been motivated essentially by hostility rather than confusion.

    When the Second Amendment is at issue progressive Judges, and Justices will find law, facts, and a rationale to reach their desired result. Logical arguments based on law, and the Constitution are not apt to get in the way. The outcome of Second Amendment litigation (with a few exceptions) can be determined by simply looking at who appointed the decision makers.

    As to why the S.C. failed to follow up on Heller sooner, anybody’s guess, but Kennedy may well have been the fly in the ointment.

    If “intermittent scrutiny” (actually, as applied rational basis) is to continue to be the rule, then the Court wasted everyone’s (including its own) time granting cert, or so it appears to me. At any rate, more cases are in the pipeline.

    Regards
    Jack
     

    Kharn

    Ultimate Member
    Mar 9, 2008
    3,578
    Hazzard County
    They did not really ignore the tiers of scrutiny, they stated that the law would not meet "any of the standards of scrutiny". The majority did not really explain why the law would not meet intermediate scrutiny however. They adopted a historical approach, which the lower courts found confusing. The lower courts took this ambiguity over intermediate scrutiny to come to the opposite conclusion.

    Breyer actually proposed an interest balancing approach, which the majority rejected. While there may not be much difference between what Breyer proposed and what the lower courts are doing, the problem is with the explanation. The lower courts appear to be following SCOTUS's guidance on intermediate scrutiny and none has been able to explain why they are not following SCOTUS's guidance. All of the cases before this one have simply argued that the lower court should have used the historical approach without explaining why the intermediate scrutiny approach is wrong.


    While the arguments of this case are not appreciably different from the other cases, the circumstances are different. This is the first time that enough justices can confidently see there is an error that they can correct. Because the arguments are so similar to other cases that they have rejected, I suspect that this will be a very narrow ruling and the lower courts will likely be able to use intermediate scrutiny to sustain most gun control laws.

    In Heller II's dissent, Kavanaugh was unhappy with the majority's use of the 2A two-step instead of Heller I's historical approach, saying he would apply the historical approach. It may be as simple as there is no ambiguity over a fifth vote today vs prior terms.
     

    Elliotte

    Ultimate Member
    Aug 11, 2011
    1,207
    Loudoun County VA
    In Heller II's dissent, Kavanaugh was unhappy with the majority's use of the 2A two-step instead of Heller I's historical approach, saying he would apply the historical approach. It may be as simple as there is no ambiguity over a fifth vote today vs prior terms.

    Honestly I think it is a matter of the scope of the case. This isn't a constitutional carry case or a concealed carry case or cutting at the NFA or GCA. This case is about NYC saying "fine you can own it, but you can't take it anywhere except these few places and only if you get prior permission from the NYPD". In terms of the scope of 2A rights this is bare minimums. I bet even Kennedy would have sided with the 2A on this one, whereas other cases he or Roberts or both appeared to be hesitant to expand the scope of 2A rights nationwide.
     

    jcutonilli

    Ultimate Member
    Mar 28, 2013
    2,474
    Justice Scala pointed out the Second Amendment merely acknowledges a preexisting right and provides it is not to be curtailed . . . not really rocket science to put this into its “historical context.” It appears, at least to me, the courts (mostly progressive judges) have been motivated essentially by hostility rather than confusion.

    When the Second Amendment is at issue progressive Judges, and Justices will find law, facts, and a rationale to reach their desired result. Logical arguments based on law, and the Constitution are not apt to get in the way. The outcome of Second Amendment litigation (with a few exceptions) can be determined by simply looking at who appointed the decision makers.

    As to why the S.C. failed to follow up on Heller sooner, anybody’s guess, but Kennedy may well have been the fly in the ointment.

    If “intermittent scrutiny” (actually, as applied rational basis) is to continue to be the rule, then the Court wasted everyone’s (including its own) time granting cert, or so it appears to me. At any rate, more cases are in the pipeline.

    Regards
    Jack

    If we can't look to the constitution to find the scope of the right, where do we look? I believe Scalia also pointed out that there is a historical prohibition on concealed carry based on historical cases. Should we accept that the right does not include the right to concealed carry? There are also different ways to interpret past gun restrictions. The dissent in Heller pointed out examples that supposedly confirmed that gun restrictions had historical basis. History is not a clear cut as it may seem.

    It is certainly possible that SCOTUS will address the intermediate scrutiny issues. It is unclear what they may do because most of the briefs talk about adopting strict scrutiny and do not really address the issues with intermediate scrutiny. I do think that lower courts won't be so deferential in the future based on this case. We will have to wait and see for specifics.
     

    swamplynx

    Active Member
    MDS Supporter
    Jul 28, 2014
    678
    DC
    Honestly I think it is a matter of the scope of the case. This isn't a constitutional carry case or a concealed carry case or cutting at the NFA or GCA. This case is about NYC saying "fine you can own it, but you can't take it anywhere except these few places and only if you get prior permission from the NYPD". In terms of the scope of 2A rights this is bare minimums. I bet even Kennedy would have sided with the 2A on this one, whereas other cases he or Roberts or both appeared to be hesitant to expand the scope of 2A rights nationwide.

    Agree. Very insightful. This is a great “entry level” case.

    Scope of the 2A obviously needs clarification. So called assault weapon bans, registration requirements, etc...

    What is far more insidious is the idea that a government can use qualitative “may issue” whims of a government official to curtail any right. Imagine having to explain why you need to vote, or speak in the public square. Or even a privilege such as a driver’s or hunter’s license.
     

    Kharn

    Ultimate Member
    Mar 9, 2008
    3,578
    Hazzard County
    Agree. Very insightful. This is a great “entry level” case.

    Scope of the 2A obviously needs clarification. So called assault weapon bans, registration requirements, etc...

    What is far more insidious is the idea that a government can use qualitative “may issue” whims of a government official to curtail any right. Imagine having to explain why you need to vote, or speak in the public square. Or even a privilege such as a driver’s or hunter’s license.
    Or that you need a may-issue permit to take your family bible to a book binder for repair. No court would allow that to stand.
     

    wjackcooper

    Active Member
    Feb 9, 2011
    689
    “I believe Scalia also pointed out that there is a historical prohibition on concealed carry based on historical cases. Should we accept that the right does not include the right to concealed carry?”

    Put into “historical context” open carry was the “manly” thing to do at that time, this stuff is not problematic.

    Regards
    Jack
     

    jcutonilli

    Ultimate Member
    Mar 28, 2013
    2,474
    “I believe Scalia also pointed out that there is a historical prohibition on concealed carry based on historical cases. Should we accept that the right does not include the right to concealed carry?”

    Put into “historical context” open carry was the “manly” thing to do at that time, this stuff is not problematic.

    Regards
    Jack

    Are you going to answer the question? I get that the historical context allows open carry. My question is about concealed carry. If the 2A is about historical context and concealed carry was prohibited based on the cases cited in Heller, does that mean that concealed carry is not part of the 2A? The issues are not a clear cut as you make them.
     

    delaware_export

    Ultimate Member
    Apr 10, 2018
    3,144
    The usual culprits want NO CARRY. Hi md ny nj ca hence many of the cases we see.

    They basically outlaw open carry, and make concealed carry a privilege not a right, and deny those asking permission.

    If carry is a right, bearing, then some carry must be permitted, open or concealed. what is not a right can be treated as a privilege. The right can not be based on payment, like a poll tax, even if .gov isn’t collection the money. Such as requiring training that must be paid for.

    All this imho. I sure am not a lawyer. But I’ve never seen the but but but it’s guns clause in the constitution or BOR.
     

    HaveBlue

    HaveBlue
    Dec 4, 2014
    733
    Virginia
    Or that you need a may-issue permit to take your family bible to a book binder for repair. No court would allow that to stand.

    That’s an interesting analogy. I don’t recall reading anywhere in the CoTUS that identifies a right to own a Bible. Let alone a right to carry one in public without infringement. I wish I were a cartoonist, I would have a field day with this.
     

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