Storm40
Ultimate Member
that sets us back at least 2 years, i imagine... until the appeals process winds its way forward, finally and hopefully to a SCOTUS that is still leaning "our" way...
I'm not sure where the two year delay is coming from. McDonald lost at the District and Circuit levels, and he went from filing to SCOTUS ruling in 24 months.that sets us back at least 2 years, i imagine... until the appeals process winds its way forward, finally and hopefully to a SCOTUS that is still leaning "our" way...
The SC will have to weigh in, but wins at the local level help build momentum.Did anyone really think that any of these cases were going to be settled on the local level and not require a Supreme Court ruling? If you did its time to wake up from the dreams your having and rejoin us here in reality.
Good info Patrick. I'm concerned however, that things aren't exactly promising at the Supreme Court level. Didn't Obama just appoint another SC justice who is anti-guns?
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But Peruta is not the best to use as a challenge because there are secondary issues involved
All of these cases will result in a trip to the supreme court, and realistically few would result in a change until that happened....
But so far it appears the lower courts are not going to do anything not explicitly scripted by the supreme court....
I will say Peruta has one huge silver lining: in the judges initial reply to the defendants motion to dismisss, she laid out a world in which we are pretty much guaranteed the things we are seeking. Much disappointment exists in her actual ruling, because so much promise existed in the early stages..
Fast forward past the MTD and we're in a place where she just could not find the right in Heller or McDonald. It is there, but not flagged as plainly as we need it. The irony here is that most rights previously recognized came from less enumerated dicta...but no bother....
My point is that this court defined the outcome of these cases today, even though it could not deliver it...
Read the "assumed truths" and realize those are reasonable under our expectations of supreme court action. Then read the results of those truths. That is us in two more years.
The Supreme Court has rebuffed requests to apply the second amendment to the states. See United States v. Cruikshank, 92 U.S. 542 (1876); Presser v. Illinois, 116 U.S. 252 (1886); Miller v. Texas, 153 U.S. 535 (1894). The district judge thought that only the Supreme Court may change course. 2008 U.S. Dist. LEXIS 98134 (N.D. Ill. Dec. 4, 2008).
Cruikshank, Presser, and Miller rejected arguments that depended on the privileges and immunities clause of the fourteenth amendment. The Slaughter-House Cases, 83 U.S. (16 Wall.) 36 (1873), holds that the privileges and immunities clause does not apply the Bill of Rights, en bloc, to the states. Plaintiffs respond in two ways: first they contend that Slaughter-House Cases was wrongly decided; second, recognizing that we must apply that decision even if we think it mistaken, plaintiffs contend that we may use the Court’s “selective incorporation” approach to the second amendment. Cruikshank, Presser, and Miller did not consider that possibility, which had yet to be devised when those decisions were rendered.
Another court of appeals has concluded that Cruikshank, Presser, and Miller still control even though their reasoning is obsolete.
Repeatedly, in decisions that no one thinks fossilized, the Justices have directed trial and appellate judges to implement the Supreme Court’s holdings even if the reasoning in later opinions has undermined their rationale. “If a precedent of this Court has direct application in a case, yet appears to rest on reasons rejected in some other line of decisions, the Court of Appeals should follow the case which directly controls, leaving to this Court the prerogative of overruling its own decisions.” Rodriguez de Quijas v. Shearson/American Express, Inc., 490 U.S. 477, 484 (1989).
So...what would that mean? State cases filled for relief would obviously be the fastest way that this gets turned, but to me, it would seem that the federal rulings would be the most lasting. Correct?Mark,
Awesome look back at McDonald. It would be great to see a court change direction prior to the supreme court, if only for the psychological value. But like you suggest, we should be ready for a hard ride to the top.
The great thing?
If all these cases continue to claim restrictions are valid based on "in the home" it will be easier to knock them all down eventually. I do note that they are not making the same mistake the MD state courts did in saying "if 2A were incorporated fundamentally this decision would be different." So far defendants and courts are not leaving open such easy doors. There will be more fights.
We have a few state cases potentially percolating. Wonder how far we are from those being filed?
Maintaining the health of the current majority, my guess, like most others, is they will not go against their own dicta from the prior cases.A federal supreme court win is the big prize we are looking for. These cases are filed in lots of jurisdictions for a few good reasons, one of which is almost surely to prevent one state court from overturning their restrictions and then stopping progression of cases into the higher federal system. So even if MD state courts went our way, the overall movement still has NY/NJ/CA etc. to work with. No chance in hell they will all go our way, so something is going to make its way up high soon.
MD has enough of a caveat in Heller/McDonald to not overturn their laws and still maintain a straight face. All of this "in the home" language from Scalia is all they need. So the state court can claim quite easily that the fundamental protection they claimed they needed to overturn "good and substantial" was limited by Heller to "in the home", hence not applicable.
Only the USSC is going to fix this for good. I hope Scalia gets a chance to re-write the majority opinion and fix the mess the courts are making of his original opinion. He said "most acute in the home", not "only in the home". So far courts take this as a sign they can give lower scrutiny to rights exercised outside the home. They don't see self defense as fundamental outside your doorstep.
Let's hope the current Supreme Court does not agree with them.