Freidman v. Highland Park (AWB)

[kcbrown]

What splits?

To see the splits, you'd have to read the cert petitions. Even Kachalsky involved splits.

I'll have to go through all of them in order to see if there are any that don't involve splits.

But even if there are some that don't, doesn't Heller qualify as one that didn't? If so, then it is logically inconsistent to insist that 2nd Amendment cases must involve splits when that one didn't.

And IIRC, only 4 cases (Drake, Jackson, Friedman, and Caetano which is yet still alive) have gone past first conference, hardly most of the post McDonald 2A cases sent to SCOTUS.

Actually, yeah, you appear to be right. I stand corrected.

Even so, with a 58% cert grant rate for cases that make it past the first conference, the probability that we'd end up with no cert grants out of 3 is a mere 7.4%. If (as I believe is likely) cert is denied to Caetano, that probability drops to 3.1%.

The "SCOTUS is just doing its normal thing" hypothesis is, really, now just barely alive.

I don't think it's necessarily how you see it.

Well, that is almost always the case. Things are, usually, not necessarily how I see them. It's almost always possible that I'm in error.

The problem is the lower courts are playing defense specifically to avoid a split. I think Thomas and Scalia see it, but perhaps Roberts/Alito/Kennedy are holding to a specific split being necessary for cert. Unfortunately it's very difficult since the challenged laws are few and far between and are in bad Circuits (and state courts wouldn't help either).

So riddle me this: if all of the lower courts decide a given issue the same way, does that mean that the Supreme Court will always follow the lead of the lower courts? Or will the Supreme Court correct the lower courts if it believes them to be incorrect?

If the former, then how can you say anything other than that the "Supreme" Court is subservient to the lower courts? If the latter, then what purpose can possibly be served by insisting that all of the lower courts decide the issue when at least one decides it incorrectly?

 

[Decoy]

 

[Brooklyn]

If all that is true, why hasn't the kind of resistance you describe already happened?

Either there is threat of force to lower courts behind upper court decisions, or there isn't. If there is, then that is the basis of my argument, whether or not the U.S. Marshals specifically would behave as you claim. If there isn't such threat of force, then how is it that the Supreme Court has managed to remain supreme for over 200 years?


As for dealing with the insurrections, the Court only has to do that when what is being impacted are issues it actually disagrees with the lower courts about. Otherwise, as I said, ignoring lower court decisions in the way SCOTUS has been doing is a politically expedient way for the Court to wash its hands of prior decisions.

Riddle me this: is it more politically "wise" for the Court to simply ignore cases that involve an issue it recently decided one way, but that it now wants to decide the opposite way, or is it more politically "wise" for it to actually overturn its recent precedent? That is the decision facing the Court if, in fact, it really wants to "undo" what it has done, and I submit that the former is more politically "wise", because it means the Court can effectively overturn its own decision secretly. After all, nobody really knows why the Court denies cert.

Because conservatives.. Play by the rules even when they disagree..

As long as the court thinks it can bone us it will.

Hence the con con..hence the general unrest..

The match is struck... The fuse lit. Its up to the court to not overtax our tolerance..

I will not accept the ruling of a corupt court. Hence the call for a con con.

Its the courts move. They had better not underestimate the blow back..

 

[kcbrown]

Because conservatives.. Play by the rules even when they disagree..

You mean like Easterbrook did?


The courts aren't composed solely of conservatives, nor have they been.

As long as the court thinks it can bone us it will.

Hense the con con..hense the general unrest..

The match is struck... The fuse lit. Its up to the court to not overtax our tolerance..

On that I agree. But again, if the Supreme Court's choice is between reversing their own recent precedent, and simply letting the lower courts run roughshod over it, why do you believe they would do the former instead of the latter?

I mean, for God's sake, man, look at the people in this thread who even now are arguing that the Supreme Court is behaving normally!! If that isn't sufficient evidence that the Court's current course of action is more politically "safe" than reversing themselves would be, then nothing can be.

I will not accept the ruling of a corupt court. Hense the call for a con con.

Its the courts move. They had better not underestimate the blow back..

Right there with you on this. I've been arguing in favor of an Article V Convention, and how it's really the only way we're going to be able to fix the systemic defects that exist, for some time now. Weirdly, you seemed opposed to me on that, at least initially. But that's in the past. I think we're on the same page now, at least.

 

[Brooklyn]

Split are not the issue.. The issue is lack of resolve by at least several justices on how to deal with the insurection.. They all see it. Not all give a shit..as kcbrown is not wrong about the distain at least some on the court have for 2a...so there is risk of reopening the issue..

We need to convince the court that ducking the issue will not fool us. But the real issue is that lots of pro 2a types..like the NRA at one time...don't want the answer.. Because they fear it will be the wrong one..

But frankly that thinking got us to within 20 years of having the 2a extinct anyway..

Let the court give us a Dred Scott.. We will give them a con con..

 

[Brooklyn]

You mean like Easterbrook did?


The courts aren't composed solely of conservatives, nor have they been.




On that I agree. But again, if the Supreme Court's choice is between reversing their own recent precedent, and simply letting the lower courts run roughshod over it, why do you believe they would do the former instead of the latter?

I mean, for God's sake, man, look at the people in this thread who even now are arguing that the Supreme Court is behaving normally!! If that isn't sufficient evidence that the Court's current course of action is more politically "safe" than reversing themselves would be, then nothing can be.




Right there with you on this. I've been arguing in favor of an Article V Convention, and how it's really the only way we're going to be able to fix the systemic defects that exist, for some time now. Weirdly, you seemed opposed to me on that, at least initially. But that's in the past. I think we're on the same page now, at least.

You can't jump to con con.. If you jump the gun..you get no support..

Tactical patience.. Meanwhile we behave as if the court will do its job..

Because if we don't we embolden the opposition and loose support amog moderates.

We loose very little by running this out.. We lose a lot by jumping the gun..

And since its not going to be CA NY NJ MD et al that lead the con con charge.. We have abandon those states first.

 

[wolfwood]

I've told you guys before about how the dangerous and unusual language was put in there to get a 5th vote and does not mean what it seems to mean at first blush. I think Scalia got us Heller and McDonald and then someone wised up.

 

[Brooklyn]

Possible. Liberals have never been fond of the rule of law. They never will be.

 

[kcbrown]

You can't jump to con con.. If you jump the gun..you get no support..

Tactical patience.. Meanwhile we behave as if the court will do its job..

Because if we don't we embolden the opposition and loose support amog moderates.

We loose very little by running this out.. We lose a lot by jumping the gun..

And since its not going to be CA NY NJ MD et al that lead the con con charge.. We have abandon those states first.

I completely agree.

What I argue for is not really that it's time for such a Convention right now, although we have demographic forces that will run out the clock on the possibility of such if we wait too long.

Mainly, I argue that it's time to start preparing for such a Convention. It's going to take time and preparation to make it successful. It needs to be ready to go by the time the will to use it is there.

It's useful to expose the infidelity of the courts for the process, so as long as we understand that such is why we should continue to poke the courts, it's all good. I only oppose lying to our own about our reasons. But in this conversation, it appears we're finally at the point where such is no longer considered necessary.

 

[kcbrown]

We need to convince the court that ducking the issue will not fool us. But the real issue is that lots of pro 2a types..like the NRA at one time...don't want the answer.. Because they fear it will be the wrong one..

But frankly that thinking got us to within 20 years of having the 2a extinct anyway..

Let the court give us a Dred Scott.. We will give them a con con..

And then they will give us another Slaughterhouse if we do it wrong.

What we give them as a result of a con con had better be far better than the 14th Amendment. It won't do to simply add things to the Constitution that can be interpreted into dust by the judiciary the way the 14th Amendment was.

No, if we're going to win the next phase, it's going to have to be through mechanism. Only a feedback loop that restores liberty to the people is going to be sufficient to pull us out of the quicksand that we find ourselves in now.

It's time for us to actually learn from history, rather than simply repeating it.

 

[Brooklyn]

Its not a lie... And if you tell our supporters that the court is done..we get no funding..like it or not we can not skip steps.. And there are still non 2a cases that can bring good results.

Meanwhile some of our 'supporters' are in fact fronts for the oposition ..and they don't need to know..

If fact I guantee that premature talk of giving up on the courts is counter productive..

Right now we are building strength.. We lose that if we start con con nonsense..

And the Democratics have been against us for decades..only now is it reversing..

You have got to get into your head that you can't skip steps...and you can't get radical to stay on board while also getting moderates to join if you talk down your book..

Con con will happen when the $$ implodes.. No need to push for it..just be ready.

You may recall my pointing out that the last push over the balanced budget amendment was only a few states short..I think 2.

 

[kcbrown]

Its not a lie...

The lie that I'm talking about is the claim that we're going to win in court. Push that claim too far and you will lose support if only because people will stop trusting you when your claims don't line up with the reality they see before them.

And if you tell our supporters that the court is done..we get no funding..like it or not we can not skip steps.. And there are still non 2a cases that can bring good results.

Meanwhile some of our 'supporters' are in fact fronts for the oposition ..and they don't need to know..

It's dangerous to assume they don't already know, don't you think?

If fact I guantee that premature talk of giving up on the courts is counter productive..

Right now we are building strength.. We lose that if we start con con nonsense..

And the Democratics have been against us for decades..only now is it reversing..

You have got to get into your head that you can't skip steps...and you can't get radical to stay on board while also getting moderates to join if you talk down your book..

Fair enough.

Con con will happen when the $$ implodes.. No need to push for it..just be ready.

And if the implosion of the dollar happens far too late, then what? Got an alternate game plan? Because if our economic experience shows anything, it's that it's easy to predict that such events will occur, but nearly impossible to predict when, and economic edifices have proven to last a lot longer than most people think they will.

I'll stress it again: demographic changes mean we are on a clock.

You may recall my pointing out that the last push over the balanced budget amendment was only a few states short..I think 2.

I do recall seeing that. It'd be interesting to see if that has changed, particularly if there's more support for it now than then. When was that amendment discussed?

 

[Brooklyn]

You of all people should understand playing the odds.

Op force by definition only knows what we can know and think ..not what we actually do know and think.Game theory is not deterministic in the face of such unknowns. Hence the classic prisoners delema..

If you are right about demographic changes..it does not matter because everything ..the court ..the con con ..even insurrection.. is reversible in time.

The solution is to change the demographics in our favor..hence the PR part of this game..which is actually more important than any other component..

And ,in which, the court game is a valuable tool.. You must see that.. Win or lose its one of the ways we talk to the public.. And it's very cost effective..

As far as your last question ..just Google balance budget amendment..
But rember I am just showing it not nearly an impossible bar..

I have no idea how many states would go for a con con right now.. But it does not matter...yet...and given the size of the current debt crisis...we better hope it never does.

 

[wolfwood]

Its not a lie... And if you tell our supporters that the court is done..we get no funding..like it or not we can not skip steps.. And there are still non 2a cases that can bring good results.

Meanwhile some of our 'supporters' are in fact fronts for the oposition ..and they don't need to know..

If fact I guantee that premature talk of giving up on the courts is counter productive..

Right now we are building strength.. We lose that if we start con con nonsense..

And the Democratics have been against us for decades..only now is it reversing..

You have got to get into your head that you can't skip steps...and you can't get radical to stay on board while also getting moderates to join if you talk down your book..

Con con will happen when the $$ implodes.. No need to push for it..just be ready.

You may recall my pointing out that the last push over the balanced budget amendment was only a few states short..I think 2.

I settled a 2a case on Friday in Hawaii.
Wisconsin Appeals Court overturned WI ban on switchblades last week.
Wins in smaller cases are coming in still. It just these bigger cases that are not working out.

 

[777GSOTB]

If the court grants Caetano certiorari, though they really shouldn't with the Friedman denial on the basis that stun guns are less " in common use " and not actual firearms that have militia utility as semi-automatics do(the 2A's main objective), to rule either way(reversing would be best) and we could get an arrest for a violation of the Highland Park assault weapon ordinance. Bring this new case before the high court and it repeats denial, we would then truly know that it is nothing more than a politically directed court.

(A Circuit Court split is not listed among one of these rules)

Ashwander v Tennessee Valley Authority, 297 U.S. 288 (1936)

The Court developed, for its own governance in the cases confessedly within its jurisdiction, a series of rules under which it has avoided passing upon a large part of all the constitutional questions pressed upon it for decision. They are:

5. The Court will not pass upon the validity of a statute upon complaint of one who fails to show that he is injured by its operation. [n6] Tyler v. The Judges, 179 U.S. [p348] 405; Hendrick v. Maryland, 235 U.S. 610, 621. Among the many applications of this rule, none is more striking than the denial of the right of challenge to one who lacks a personal or property right.

 

[wolfwood]

This is reality guys. I follow this body of law. The Ninth Circuit is the place where this body of law is going to be decided. The Ninth has by far the most number of cases. SAF, NRA, Rocky Mountain legal Foundation and random guys are all filing cases on a variety of different issues. Most of them novel from each other. No other Circuit has that going on. Even if the Supreme Court takes one or two of those cases its going to be the Ninth that decides the direction of this law to a large degree.

 

[kcbrown]

You of all people should understand playing the odds.

Op force by definition only knows what we can know and think ..not what we actually do know and think.Game theory is not deterministic in the face of such unknowns. Hence the classic prisoners delema..

Funny how game theory is exactly what has made it possible for the opposition to win in the courts thus far.

If you are right about demographic changes..it does not matter because everything ..the court ..the con con ..even insurrection.. is reversible in time.

That's true, but you miss my point here. A Constitutional Convention requires massive support. The opposition has been winning precisely because their approach doesn't require that. Otherwise, they would have already done away with the 2nd Amendment.

As long as we keep with the current Constitutional mechanisms, it will be much harder to amend the Constitution than it is to get laws passed. But more importantly, it means that if we manage an Article V Convention and get what we need out of it, reversing that will require another Con Con. Which is to say, the demographic shift required for that is much greater than that which is required to prevent the Convention that we will need.

So you'd better not underestimate the danger posed by a demographic shift. It could easily, and permanently, kill our ability to win liberty without even achieving a national majority.

The solution is to change the demographics in our favor..hence the PR part of this game..which is actually more important than any other component..

The demographics I speak of are not just political, but I do see your point. If we can win over those who immigrate here, it will make things much more difficult for the opposition, and perhaps even impossible.

And ,in which, the court game is a valuable tool.. You must see that.. Win or lose its one of the ways we talk to the public.. And it's very cost effective..

Now this I disagree with, at least with respect to the demographics. I do agree that it's an excellent tool for speaking to those who are already on our side, a way of showing them that the next step is necessary. But for those who aren't on our side yet, how is it that they'll care, when they see the courts siding with them on the issues they care about?

That makes the PR game a very difficult one. How do you go about convincing someone who doesn't already side with you that they should side with you, and that the courts are a barrier to their interests, when the courts have been siding with them on other issues?

As far as your last question ..just Google balance budget amendment..
But rember I am just showing it not nearly an impossible bar..

OK, will do. And I agree, it's not an impossible bar.

 

[Brooklyn]

Yes that's makes sense on numbers alone..

And in the end it does not matter how.

 

[kcbrown]

This is reality guys. I follow this body of law. The Ninth Circuit is the place where this body of law is going to be decided. The Ninth has by far the most number of cases. SAF, NRA, Rocky Mountain legal Foundation and random guys are all filing cases on a variety of different issues. Most of them novel from each other. No other Circuit has that going on. Even if the Supreme Court takes one or two of those cases its going to be the Ninth that decides the direction of this law to a large degree.

Then we know in advance which direction it's going to go, because we know the composition of the 9th Circuit.

 

[wolfwood]

Its to early to really know. It really goes 9th Circuit has the most and 7th Circuit has maybe a third of the Ninth. Then D.C. has a few. Then all the other Circuits have a couple random cases. At least the Second isn't deciding this. They are the most anti Second Amendment circuit.

We are almost there one way or another. I really think this time next year we will know whether we are screwed or not though. All the carry cases will be decided. All the AWB cases will be decided.