Commonwealth v. Caetano

[DanGuy48]

Brass knuckles, switchblades?

I would also like to know since it said, somewhere, ANY bearable arm. The burden is still on us, Md citizens, to push the case I assume, because the state will not simply say yeah, no more restrictions on "dirk knives" etc. So one of us would need to carry a switchblade, get arrested and work it through the courts, is that about it?

 

[jcutonilli]

I would also like to know since it said, somewhere, ANY bearable arm. The burden is still on us, Md citizens, to push the case I assume, because the state will not simply say yeah, no more restrictions on "dirk knives" etc. So one of us would need to carry a switchblade, get arrested and work it through the courts, is that about it?

The biggest problem with the get arrested approach is that you may find the court accepts the restrictions and you will be stuck with a conviction that may disqualify you from owning firearms. There are other ways to challenge laws and demonstrate standing. As CO found out it can be difficult to pursue these other approaches.

 

[DanGuy48]

Just read NRA-ILA's response to the decision. You can read it here.

https://www.nraila.org/articles/201...reaffirmation-of-heller-some-portray-it-to-be

 

[Mike]

Why wouldn't anything carried for self protection, in any manner, be protected by the 2A? In the Commonwealth v. Caetano case per curium decision any categorical ban on a class of weapons was ruled unconstitutional, wasn't it?

That's the way the ruling looked, but the Supreme Court didn't outright declare the ban unconstitutional. What they did is they said the methods the MA court used to justify the ban didn't fit with Heller. The SC sent it back to the MA court to allow them a chance to review in light of this new determination. The SC gave MA another chance to find some other way to justify their stun gun ban.

In reality, the SC made a big political ploy to get themselves out of a sticky situation. The SC faced a couple of problems:
1) They had a lower court directly challenging one of their opinions.
2) While the 4 liberal justices were hoping they could get a 5th on their side, they likely were looking at a 4-4 split decision, effectively spending time to not make a decision.

The SC didn't want to look like it wasn't defending their own rulings. Yes, there's 4 very Anti-2A justices who very much want to overturn Heller & McDonald, but if they don't defend a 2A ruling, maybe that gives the lower courts courage to start challenging some of their other rulings that the 4 liberal justices supported. With the chance that a republican president might be elected and fill Scalia's seat along with up to 3 more seats, they don't want to encourage the lower courts to blatantly challenge SC precedent.

With the court effectively split 4-4 right now on this case (looking back at the Heller results), making this kind of ruling kicks the can down the road. If Obama gets to appoint a justice or one of the Dems gets elected president, by the time the MA court makes a new ruling and the case gets appealed back to the SC, there could be a lib justice on the court, flopping the 5-4 against Heller and giving the court a second shot at this case, with a chance to rewrite Heller and chip away at it.

I thought I'd post a reply from a different thread here which (for me) clarifies this per curium decision, and provides some analysis of the possible strategy being employed by the esteemed members of our SCOTUS. Thanks again for the insight Elliotte.

 

[777GSOTB]

The biggest problem with the get arrested approach is that you may find the court accepts the restrictions and you will be stuck with a conviction that may disqualify you from owning firearms. There are other ways to challenge laws and demonstrate standing. As CO found out it can be difficult to pursue these other approaches.

It wasn't difficult in CO, their lawyer just blew it for them. They didn't even show some sort of intent to do something prohibited under that law...They really should fire Kopel, but I'm sure that most involved don't have a clue about any of this. He should do the next case for free.

Getting arrested is the best option as it absolutely creates standing if in fact a right was involved. With all the old retired pro-gun folks out there, you're telling me there is not a one that would be willing to go to bat on this. I know when I'm in my 70's I'm not gonna give a damn about anything. Hell, I would have gone to Illinois and challenged the Highland Park ordinance if I was financially covered for the time in jail...That ordinance is a 6mos misdemeanor, so no right would be lost at the outcome of the case. But with Scalia gone...not now.

 

[press1280]

A 6th Amendment case released a few days ago includes a Thomas concurrence discussing the 2A http://scholar.google.com/scholar_c...1369&q="bear+arms"&hl=en&scisbd=2&as_sdt=6,49

Constitutional rights thus implicitly protect those closely related acts necessary to their exercise. "There comes a point . . . at which the regulation of action intimately and unavoidably connected with [a right] is a regulation of [the right] itself." Hill v. Colorado, 530 U. S. 703, 745 (2000) (Scalia, J., dissenting). The right to keep and bear arms, for example, "implies a corresponding right to obtain the bullets necessary to use them," Jackson v. City and County of San Francisco, 746 F. 3d 953, 967 (CA9 2014) (internal quotation marks omitted), and "to acquire and maintain proficiency in their use," Ezell v. Chicago, 651 F. 3d 684, 704 (CA7 2011). See District of Columbia v. Heller, 554 U. S. 570, 617-618 (2008) (citing T. Cooley, General Principles of Constitutional Law 271 (2d ed. 1891) (discussing the implicit right to train with weapons)); United States v. Miller, 307 U. S. 174, 180 (1939) (citing 1 H. Osgood, The American Colonies in the 17th Century 499 (1904) (discussing the implicit right to possess ammunition)); Andrews v. State, 50 Tenn. 165, 178 (1871) (discussing both rights). Without protection for these closely related rights, the Second Amendment would be toothless. Likewise, the First Amendment "right to speak would be largely ineffective if it did not include the right to engage in financial transactions that are the incidents of its exercise." McConnell v. Federal Election Comm'n, 540 U. S. 93, 252 (2003) (Scalia, J., concurring in part, concurring in judgment in part, and dissenting in part).

 

[press1280]

http://www.ma-appellatecourts.org/display_docket.php?src=party&dno=SJC-11718

Link for Caetano on remand back to Mass. Last entry dated 4/04: LETTER from the clerk of the Supreme Court of the United States enclosing opinion per curiam and stating "the judgment or mandate of this Court will not issue for at least twenty-five days pursuant to Rule 45."

Wonder what that's about? Does that mean Mass can keep busting folks for stun guns for another week or two?

 

[shacklefordbanks]

http://www.ma-appellatecourts.org/display_docket.php?src=party&dno=SJC-11718

Link for Caetano on remand back to Mass. Last entry dated 4/04: LETTER from the clerk of the Supreme Court of the United States enclosing opinion per curiam and stating "the judgment or mandate of this Court will not issue for at least twenty-five days pursuant to Rule 45."

Wonder what that's about? Does that mean Mass can keep busting folks for stun guns for another week or two?

Rule 45. Process; Mandates
1. All process of this Court issues in the name of the President of the United States.
2. In a case on review from a state court, the mandate issues 25 days after entry of the judgment, unless the Court or a Justice shortens or extends the time, or unless the parties stipulate that it issue sooner. The filing of a petition for rehearing stays the mandate until disposition of the petition, unless the Court orders otherwise. If the petition is denied, the mandate issues forthwith.
3. In a case on review from any court of the United States, as defined by 28 U. S. C. §451, a formal mandate does not issue unless specially directed; instead, the Clerk of this Court will send the clerk of the lower court a copy of the opinion or order of this Court and a certified copy of the judgment. The certified copy of the judgment, prepared and signed by this Court's Clerk, will provide for costs if any are awarded. In all other respects, the provisions of paragraph 2 of this Rule apply.


So the SCOTUS is waiting for 25 days to see if there is an appeal for reconsideration. If none is received, then opinion stands after 25 days. If and appeal happens and it is denied, then opinion is effective as soon as it's denied.

Don't count on an appeal.

 

[press1280]

Appeal from the state to the Mass court?

 

[shacklefordbanks]

Appeal from the state to the Mass court?

This is a Supreme Court Rule (SCOTUS). A SCOTUS decision can be appealed back to SCOTUS for "reconsideration". There are more unicorns than granted SCOTUS reconsiderations.

 

[Jim12]

A 6th Amendment case released a few days ago includes a Thomas concurrence discussing the 2A http://scholar.google.com/scholar_c...1369&q="bear+arms"&hl=en&scisbd=2&as_sdt=6,49

Constitutional rights thus implicitly protect those closely related acts necessary to their exercise. "There comes a point . . . at which the regulation of action intimately and unavoidably connected with [a right] is a regulation of [the right] itself." Hill v. Colorado, 530 U. S. 703, 745 (2000) (Scalia, J., dissenting). The right to keep and bear arms, for example, "implies a corresponding right to obtain the bullets necessary to use them," Jackson v. City and County of San Francisco, 746 F. 3d 953, 967 (CA9 2014) (internal quotation marks omitted), and "to acquire and maintain proficiency in their use," Ezell v. Chicago, 651 F. 3d 684, 704 (CA7 2011). See District of Columbia v. Heller, 554 U. S. 570, 617-618 (2008) (citing T. Cooley, General Principles of Constitutional Law 271 (2d ed. 1891) (discussing the implicit right to train with weapons)); United States v. Miller, 307 U. S. 174, 180 (1939) (citing 1 H. Osgood, The American Colonies in the 17th Century 499 (1904) (discussing the implicit right to possess ammunition)); Andrews v. State, 50 Tenn. 165, 178 (1871) (discussing both rights). Without protection for these closely related rights, the Second Amendment would be toothless. Likewise, the First Amendment "right to speak would be largely ineffective if it did not include the right to engage in financial transactions that are the incidents of its exercise." McConnell v. Federal Election Comm'n, 540 U. S. 93, 252 (2003) (Scalia, J., concurring in part, concurring in judgment in part, and dissenting in part).

It's nice to see those cites to "Scalia, J., dissenting", and "Scalia, J., concurring in part, concurring in judgment in part, and dissenting in part."

May his name continue to appear often and prominently.

 

[esqappellate]

This is a Supreme Court Rule (SCOTUS). A SCOTUS decision can be appealed back to SCOTUS for "reconsideration". There are more unicorns than granted SCOTUS reconsiderations.

lOl. Is that the truth!

 

[press1280]

http://www.supremecourt.gov/search.aspx?filename=/docketfiles/14-10078.htm

Mandate & Judgment officially done on April 22nd. Now we'll see what the Mass SJC does. No updates on the SJC docket yet.

In cases like these, how fast does the lower court move?

 

[Campfire]

http://www.supremecourt.gov/search.aspx?filename=/docketfiles/14-10078.htm



Mandate & Judgment officially done on April 22nd. Now we'll see what the Mass SJC does. No updates on the SJC docket yet.



In cases like these, how fast does the lower court move?

I would think really fast since a fundamental right is being denied.

/purple

 

[Knuckle Dragger]

I would think really fast since a fundamental right is being denied.

/purple

Oh sure. Trust me, the SJC is going to be in a hurry to right this wrong.

 

[press1280]

JOINT MOTION FOR STAY OF APPEAL, FILED BY PARTIES.
Is this the beginning of a settlement or Mass is going to drop the case?

 

[esqappellate]

JOINT MOTION FOR STAY OF APPEAL, FILED BY PARTIES.
Is this the beginning of a settlement or Mass is going to drop the case?

Interesting. Sounds like Mass is backing down. Which would be smart for them.

 

[Knuckle Dragger]

Interesting. Sounds like Mass is backing down. Which would be smart for them.

Smart, but out of character.

 

[press1280]

JOINT MOTION FOR STAY OF APPEAL, FILED BY PARTIES.
Is this the beginning of a settlement or Mass is going to drop the case?

Looks like the stay is "allowed" by the Mass court. Still don't know exactly what the endgame is here.
http://www.ma-appellatecourts.org/search_number.php?dno=SJC-11718

 

[rlc2]

Money qoute by Volokh...in the Progressive War on Women

Very good read. Thanks!

From Volokh, summary paragraphs:


"This Court’s grudging per curiam now sends the case back to that same court. And the consequences for Caetano may prove more tragic still, as her conviction likely bars her from ever bearing arms for self-defense.

If the fundamental right of self-defense does not protect Caetano, then the safety of all Americans is left to the mercy of state authorities who may be more concerned about disarming the people than about keeping them safe."

Remind me the next time WAPO quotes Ginsburg or Sotomayer when out speechifying about the rights of women...