NYC CCW case is at SCOTUS!

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  • jcutonilli

    Active Member
    Mar 28, 2013
    2,135
    Oh, I quite agree that SCOTUS isn't going to change its mind on that. But it doesn't have to. What needs to be articulated is what specifically defines the boundaries of the right (it is that the right has boundaries that makes it "not absolute"). And that's exactly what I've been arguing. The boundaries of a right are defined by the combination of where they clash with other rights and the principles, understood by the founders, that define its scope.




    That is certainly the case, but it has specific implications that they either have to walk back or which contradict your argument about inclusion of government weaponry.




    Military weapons are not commonly used as part of society in part because the circumstances that dictate their use are rare (as is the case with artillery), in part because some such weaponry is very expensive, but also in part because the government has passed laws effectively banning them. Which one dominates surely depends on the weapon. Take the M-16, for instance. I dare say that most AR-15 owners would prefer a select-fire weapon like the M-16 over a pure semiautomatic weapon like the AR-15, all other things being equal, because the M-16 is more flexible. The automatic capability doesn't have to be used, but it's there if you need it. This means that if the M-16 were available, it (and weapons patterned on it), and not the AR-15, would be the most popular rifle in America.

    Like I said, the presence of a law cannot bootstrap its own Constitutionality. But that's exactly what the Court's claim here ultimately results in.




    If a "commonly used" test is insisted upon, then certainly police weapons should be included. But that's not sufficient. Remember: any ban or regulation that would have prevented ownership by the founders of any of the weapons they used to win our liberty is automatically invalid for that reason alone. But keep in mind your own argument (which I agree with) that it is originally understood principles which define the boundaries of the right, and one of those principles is that the militia must never be denied possession of those arms necessary and sufficient to defeat a tyrannical government that is armed with contemporary government weaponry. The founders clearly understood that a primary role of the militia was to ensure that the State would remain free, and the 2nd Amendment explicitly says as much.




    Why would the government of California (or Hawaii, or Maryland, etc.) prohibit the AR-15 in its standard form when we know they're commonly used throughout the country (it is impossible to argue against that proposition, seeing how the AR-15 is the most popular semiautomatic rifle in the U.S.)? Why would various state governments ban magazines that can hold over 10 rounds when such magazines comprise the majority of magazines in the U.S.? You should know better than to ask why a government would ban something that's in common use, as if the common use of something were sufficient unto itself to prevent it from being banned.

    Moreover, if "common use" were truly sufficient to keep the government from banning something, then the "common use" test would be superfluous, and there would be no need for the Supreme Court to articulate such a standard at all. By your argument, there would be no need to ask whether or not a banned arm is in common use: the mere presence of the ban would be sufficient to tell you that it's not.

    Your argument here amounts to the claim that governments never violate the "common use" test, which is of course a rather laughable proposition.




    No, the reason the law was able to pass was because how they were used by a small minority of the population instilled sufficient fear to prevent sufficient resistance to the ban. This is actually no different from the vast majority of bans we've seen.

    It is enormously rare in practice for criminal use of a weapon to be greater than its use by law-abiding citizens. This shouldn't be a surprise: criminals comprise a very small portion of the overall population (about 0.7% of the population is incarcerated), and violent criminals comprise a small minority of that (about 1.5% of adult arrests are for violent crimes).

    Furthermore, nearly every liberty that is exercised is exercised by a minority of the population. As such, sufficient resistance to government edicts of any kind is automatically very difficult to muster. This makes bans, even of commonly held items, significantly easier for the government to pass than one might otherwise expect.




    Feel free to offer a non-numerical argument about what "common" means, that isn't somehow arbitrary. As regards "common" or "typical" or "usual", I can think of no argument that can possibly manage to avoid use of numbers of some kind, whether they be rates, percentages, counts, or whatever. It looks to me that use of those terms without reference to such things makes their use arbitrary, i.e. dependent solely upon the judgment of the individual who is assessing whether or not something is "common", "typical", "usual", etc.

    Honestly, I consider the "common" test to be arbitrary on its face. I can think of no articulation of such a standard that wouldn't be arbitrary in some manner.




    And yet, we have plenty of them.




    I would most certainly agree with this (though I'd phrase the second part "without restricting legitimate uses any more than absolutely necessary", since "unreasonably" is totally subjective and thus not a proper standard for use with Constitutionally-protected rights), and perhaps we should hash that out so as to formulate a powerful argument for it that can later be used in an amicus brief.

    But keep in mind one thing: the 2nd Amendment overrides everything the government might do to prevent criminality that would conflict with, at a minimum, the stated purpose of the 2nd Amendment. Put another way, it is impermissible for the government to regulate arms in such a way that the militia can no longer maintain the security of a free State.

    One of the things that tends to override rights is public safety. I would not categorize it as a right. In the judicial scrutiny process there is some government interest that is able to override constitutional rights. The higher the scrutiny level, the more important and compelling the interest needs to be. Public safety happens to be one of the more compelling government interest.

    I have never claimed that the government can never violate a common use test. If the government is commonly using it then by definition it is in common use. I doubt you will find a police department without "large capacity magazines" (in excess of some state limits). ARs and other so called "assault weapons" (see various state laws for definitions), while not as common, are often used as secondary weapons when something more than a pistol is needed. When you evaluate why the government banned a certain arm you will find a disconnect between what they are saying and what they are doing. The government is commonly using those arms.

    The military was way more integrated into society during the founding. Some of it was because of necessity. We simply could not afford a separate army. Nor did we really want a separate army. The military was used as part of law enforcement. One of the three reasons to call forth the militia is to execute the laws of the union.

    Today the military is very separate from society. I suspect this separation is part of the reason Heller made a distinction for military arms. Given todays society, it is harder to make a common use argument for military arms. I would also point out that artillery and tanks are not that difficult to acquire so long as the appropriate paperwork is filled out.

    If unreasonable is not a proper standard for Constitutional rights then why does the 4A use the term?
     

    pcfixer

    Active Member
    May 24, 2009
    5,277
    Marylandstan
    The use of concealed carry limitations in Robertson v Baldwin is actually very similar to the use of such limitations in Heller: as an example (out of several) to show that Constitutional protections sometimes have limits, and thus that the Constitutional protection in question (the 13th Amendment) also has limits (such that the contract of a seaman would not violate the 13th Amendment).

    Now, while the concealed carry limitations were contemporary at the time of Robertson, it's important to note that Heller uses them solely in historical form, to note that the right was historically regarded as having limits.

    The use of the 2nd Amendment example was not itself a necessary precondition for the holding in Robertson, most especially because of the wording at the beginning of the paragraph in which it's used ("But we are also of opinion that, even if the contract of a seaman could be considered within the letter of the Thirteenth Amendment, it is not, within its spirit, a case of involuntary servitude."), which clearly shows that the entire line of inquiry the Court was using there was unnecessary for its conclusion. That means that Robertson is not precedential with respect to its claim about the 2nd Amendment to the degree that an actual holding would be.

    If Robertson were indeed precedential in that way, then the Court would not have limited its statement in Heller to one that courts historically regarded the right as having some limitations, with concealed carry prohibitions being among those limitations. those limitations today[/i], precisely because of its owRather, it would have directly stated that concealed carry prohibitions are amongn prior jurisprudence (but only if it regarded its prior jurisprudence as remaining valid).


    In any case, precedent is valid only to the degree that the reasoning behind that precedent is valid. The state courts explicitly stated their reasoning for upholding concealed carry bans. That reasoning was that, as a rule, only criminals would consider carrying concealed, and they do so for nefarious purposes, and therefore a ban on the act is justifiable because they regarded the nature of the act itself as nefarious. But the actions of tens of millions of law-abiding citizens who peacefully carry concealed every day today disproves that reasoning. Without the reasoning behind it, the historical precedent is invalid. A court which insists on using invalid precedent as the basis of its decision is a court which is acting in an arbitrary and capricious manner.

    A proper free society does not impose limits on the everyday peaceful actions of the citizenry solely due to the actions of a much smaller number of criminals. That is what a police state does. If we forbade every action that is common to both citizens and criminals, the resulting set of available actions left would be vanishingly small. To do that would be to straitjacket the citizenry. It is plainly invalid to do such a thing, and that is one reason that carry bans of all modes are facially invalid.



    Thank you for this deep explanation. Yes. I agree. All carry bans facially invalid!
    Is prior jurisprudance meaning and prior restraint the same thing? A form of censorship.

    Originally Posted by jcutonilli;
    I have never claimed that the government can never violate a common use test. If the government is commonly using it then by definition it is in common use. I doubt you will find a police department without "large capacity magazines" (in excess of some state limits). ARs and other so called "assault weapons" (see various state laws for definitions), while not as common, are often used as secondary weapons when something more than a pistol is needed. When you evaluate why the government banned a certain arm you will find a disconnect between what they are saying and what they are doing. The government is commonly using those arms.

    Seems to me and I think alot of people. If anyone goes to a gunstore (FFL) is able to purchase either a rifle, shotgun or pistol that's on display, then pass the NICS, it must be "common use"! I'd think the same for magazines and or ammunition. Not based on numbers or % of population. A large potion of rifle, shotgun and pistol have been or are still in use by the United States Military.

    So for both kcbrown and jcutonilli?
    Originally Posted by jcutonilli View Post
    What I know is that SCOTUS has repeatedly stated that our rights are not absolute.

    Public safety is a widespread concept that revolves around the daily walk of life. How does the government or judges regulate Safety?
     

    kcbrown

    Super Genius
    Jun 16, 2012
    1,371
    Before I begin, I should make it clear that I recognize that my approach here is clearly not the one the courts use. Obviously I regard that as an error on the part of the courts. :D But in any case, that the courts do not use this approach now doesn't mean they can't be persuaded to at some point in the future. Getting them to that point may take a sequence of arguments. So any thoughts on how to sway the courts towards this way of thinking would probably be useful, and could lead to interesting discussion in and of itself.


    One of the things that tends to override rights is public safety. I would not categorize it as a right.

    Really? Why not? Doesn't "public safety" derive straight from the right to life and the right to be free of harm at the hands of another? Isn't that what safety is?

    But whether or not "public safety" is a right, there is nothing whatsoever in the Constitution that authorizes the override of a Constitutionally-protected right with "public safety", or anything else for that matter. The government gets its sole authority from the Constitution, and nothing else. It simply is not authorized to override anything in the Constitution, period. The entire purpose of the Constitutional amendment process is to make it possible to address the shortcomings that can arise from things like this. If the founders thought it valid for the government to be able to override the Constitution, they wouldn't have bothered to make it possible to amend the Constitution, since it is the government that the Constitution is intended to define and constrain in the first place.


    In the judicial scrutiny process there is some government interest that is able to override constitutional rights. The higher the scrutiny level, the more important and compelling the interest needs to be. Public safety happens to be one of the more compelling government interest.

    That's true now. But scrutiny is a modern court invention, crafted out of whole cloth by the judiciary. It does not fall into the original understanding of the founders. In fact, I would go so far as to say that "government interest" as used in scrutiny is also a modern invention (but I'd have to research it to know for sure).

    That doesn't make the use of scrutiny universally invalid. It does make it invalid when the outcome of its use conflicts with the original understanding of the founders.

    Moreover, where scrutiny yields a result that conflicts with the plain meaning of the Constitution, its use is clearly invalid, because it is the Constitution, and not scrutiny, that is the supreme law of the land. The Constitution empowers the judiciary to decide cases. It does not empower it to decide cases in a way that conflicts with the Constitution. Rather, the Constitution, and the original understanding that went into it, dictates how cases should be decided by the judiciary. It cannot be the supreme law of the land otherwise.

    So, as I said, if a law or regulation would, had it been applied to the founders at the time of the founding, result in the ban of at least one of the weapons the founders used to secure our liberty with, then that law is invalid precisely because it would clearly conflict with the original understanding of the right to arms, precisely because there's no way the founders would agree to a ban on the very weapons they used to win their (and our) liberty (to insist otherwise is to insist that they were morons of the highest order, because only a moron would agree to be bereft of the very things he needs to accomplish his goals).

    Similarly, if a law or regulation would result in the militia today being unable to fulfill its stated purpose, then that law or regulation is facially invalid, period, precisely because that stated purpose is encoded in the supreme law of the land.


    I have never claimed that the government can never violate a common use test.

    I didn't say you claimed it. I said your claim amounts to that. Which is to say, it logically is the equivalent of that, even if you didn't say it directly.

    Nothing says that you must adhere to that original claim, you know. :D


    If the government is commonly using it then by definition it is in common use.

    And yet, military arms, which are commonly used by the government, are apparently "legitimately" off limits to the citizenry.

    I'm sorry, but you simply can't square these two things. The government includes the military. This is so because the military answers to the government and nobody else, and is an official arm of the government. And members of the military are citizens of the United States. So either you decide that, for arbitrary reasons, the military is somehow excluded from being part of "the government" for the purpose of evaluating the common use of arms, or your construction falls over.


    I doubt you will find a police department without "large capacity magazines" (in excess of some state limits). ARs and other so called "assault weapons" (see various state laws for definitions), while not as common, are often used as secondary weapons when something more than a pistol is needed. When you evaluate why the government banned a certain arm you will find a disconnect between what they are saying and what they are doing. The government is commonly using those arms.

    Oh, I surely agree here. But the Supreme Court clearly does not agree, at least when it comes to machine guns and other arms that are used by the military, even if those arms are used by the police as well.


    The military was way more integrated into society during the founding. Some of it was because of necessity. We simply could not afford a separate army. Nor did we really want a separate army. The military was used as part of law enforcement. One of the three reasons to call forth the militia is to execute the laws of the union.

    That is true as far as it goes. But it understates things. It's not as if a military as an organization separate from the militia was a foreign concept to the founders. They understood it perfectly well. And they distrusted it. They had seen with their own eyes the imposition of tyranny on the population by way of that same kind of organization. In fact, they experienced that directly themselves.

    Their observation is no less valid today. It is a major reason they believed the citizenry should be able to own military-grade arms.


    Today the military is very separate from society. I suspect this separation is part of the reason Heller made a distinction for military arms. Given todays society, it is harder to make a common use argument for military arms.

    Yes, it's harder. But that's the point. The measure of the validity of a particular test is whether or not it is consistent with the principles behind that which it is intended to be applied to. My argument is that the "common use" test is inconsistent with the principles which underlie the 2nd Amendment. In fact, it's clearly inconsistent with the explicitly stated purpose of the 2nd Amendment.

    The 2nd Amendment, and its stated purpose, are part of the supreme law of the land. Their supremacy dictates that constructs like scrutiny, tests like "common use", etc., must fall by the wayside when those constructs and tests yield results that conflict with the plain meaning of the 2nd Amendment, its stated purpose, and the originally understood principles that underlie them.


    I would also point out that artillery and tanks are not that difficult to acquire so long as the appropriate paperwork is filled out.

    That may be true of the hardware. Is it true of the ammunition? I actually don't know the answer to that question.

    In any case, that something isn't forbidden by law now doesn't immunize it from being off-limits to such prohibition later. It's the prohibition of these arms (and ammunition), whether prospective or actual, that we're talking about here.


    If unreasonable is not a proper standard for Constitutional rights then why does the 4A use the term?

    I'm going to have to give this some thought. But if "unreasonable" is a proper standard for the other rights, then why does the 4th Amendment need to explicitly state it? The 2nd Amendment doesn't say "the right to keep and bear arms shall not be unreasonably infringed". The 1st Amendment doesn't say "Congress shall pass no law unreasonably infringing upon the right ...". And yet the 4th Amendment explicitly states "unreasonable searches and seizures".

    I'm inclined to say that "unreasonable" was used in the 4th Amendment because the founders recognized, and thus had to explicitly state, that some searches and seizures are valid, and not including that term would make the prohibition against searches and seizures absolute. And I expect they used that term, and not something else, because articulating something more specific that would be neither underinclusive nor overinclusive was likely impossible. But that they had to explicitly state that for that reason strongly suggests that the absence of such a term as applied to the other rights means that they regarded those other rights as being much stronger and much more "absolute" (for lack of a better word at the moment).

    So I'd amend my statement to say that "unreasonable" isn't a proper standard for Constitutional protections, or the rights those protections apply to, except where the term is explicitly used in the Constitution, such as the 4th Amendment, precisely because it's not explicitly stated for those other protections. The very use of the term in one essentially means that it is inapplicable to any others that don't explicitly use it.


    I actually apply similar reasoning to the way the 1st Amendment was written versus the 2nd Amendment. The 1st Amendment says that Congress shall pass no law, while the 2nd Amendment says that the right to arms shall not be infringed. This strongly suggests that the authors of the Bill of Rights intended the Constitutional limitations in the 1st Amendment to apply only to the federal government but intended the limitations in the 2nd Amendment to apply universally. With the Constitution being the supreme law, that is the actual effect the words would have if they are read and understood in a literal fashion.
     
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    lazarus

    Active Member
    Jun 23, 2015
    10,113
    Before I begin, I should make it clear that I recognize that my approach here is clearly not the one the courts use. Obviously I regard that as an error on the part of the courts. :D But in any case, that the courts do not use this approach now doesn't mean they can't be persuaded to at some point in the future. Getting them to that point may take a sequence of arguments. So any thoughts on how to sway the courts towards this way of thinking would probably be useful, and could lead to interesting discussion in and of itself.




    Really? Why not? Doesn't "public safety" derive straight from the right to life and the right to be free of harm at the hands of another? Isn't that what safety is?

    But whether or not "public safety" is a right, there is nothing whatsoever in the Constitution that authorizes the override of a Constitutionally-protected right with "public safety", or anything else for that matter. The government gets its sole authority from the Constitution, and nothing else. It simply is not authorized to override anything in the Constitution, period. The entire purpose of the Constitutional amendment process is to make it possible to address the shortcomings that can arise from things like this. If the founders thought it valid for the government to be able to override the Constitution, they wouldn't have bothered to make it possible to amend the Constitution, since it is the government that the Constitution is intended to define and constrain in the first place.




    That's true now. But scrutiny is a modern court invention, crafted out of whole cloth by the judiciary. It does not fall into the original understanding of the founders. In fact, I would go so far as to say that "government interest" as used in scrutiny is also a modern invention (but I'd have to research it to know for sure).

    That doesn't make the use of scrutiny universally invalid. It does make it invalid when the outcome of its use conflicts with the original understanding of the founders.

    Moreover, where scrutiny yields a result that conflicts with the plain meaning of the Constitution, its use is clearly invalid, because it is the Constitution, and not scrutiny, that is the supreme law of the land. The Constitution empowers the judiciary to decide cases. It does not empower it to decide cases in a way that conflicts with the Constitution. Rather, the Constitution, and the original understanding that went into it, dictates how cases should be decided by the judiciary. It cannot be the supreme law of the land otherwise.

    So, as I said, if a law or regulation would, had it been applied to the founders at the time of the founding, result in the ban of at least one of the weapons the founders used to secure our liberty with, then that law is invalid precisely because it would clearly conflict with the original understanding of the right to arms, precisely because there's no way the founders would agree to a ban on the very weapons they used to win their (and our) liberty (to insist otherwise is to insist that they were morons of the highest order, because only a moron would agree to be bereft of the very things he needs to accomplish his goals).

    Similarly, if a law or regulation would result in the militia today being unable to fulfill its stated purpose, then that law or regulation is facially invalid, period, precisely because that stated purpose is encoded in the supreme law of the land.




    I didn't say you claimed it. I said your claim amounts to that. Which is to say, it logically is the equivalent of that, even if you didn't say it directly.

    Nothing says that you must adhere to that original claim, you know. :D




    And yet, military arms, which are commonly used by the government, are apparently "legitimately" off limits to the citizenry.

    I'm sorry, but you simply can't square these two things. The government includes the military. This is so because the military answers to the government and nobody else, and is an official arm of the government. And members of the military are citizens of the United States. So either you decide that, for arbitrary reasons, the military is somehow excluded from being part of "the government" for the purpose of evaluating the common use of arms, or your construction falls over.




    Oh, I surely agree here. But the Supreme Court clearly does not agree, at least when it comes to machine guns and other arms that are used by the military, even if those arms are used by the police as well.




    That is true as far as it goes. But it understates things. It's not as if a military as an organization separate from the militia was a foreign concept to the founders. They understood it perfectly well. And they distrusted it. They had seen with their own eyes the imposition of tyranny on the population by way of that same kind of organization. In fact, they experienced that directly themselves.

    Their observation is no less valid today. It is a major reason they believed the citizenry should be able to own military-grade arms.




    Yes, it's harder. But that's the point. The measure of the validity of a particular test is whether or not it is consistent with the principles behind that which it is intended to be applied to. My argument is that the "common use" test is inconsistent with the principles which underlie the 2nd Amendment. In fact, it's clearly inconsistent with the explicitly stated purpose of the 2nd Amendment.

    The 2nd Amendment, and its stated purpose, are part of the supreme law of the land. Their supremacy dictates that constructs like scrutiny, tests like "common use", etc., must fall by the wayside when those constructs and tests yield results that conflict with the plain meaning of the 2nd Amendment, its stated purpose, and the originally understood principles that underlie them.




    That may be true of the hardware. Is it true of the ammunition? I actually don't know the answer to that question.

    In any case, that something isn't forbidden by law now doesn't immunize it from being off-limits to such prohibition later. It's the prohibition of these arms (and ammunition), whether prospective or actual, that we're talking about here.




    I'm going to have to give this some thought. But if "unreasonable" is a proper standard for the other rights, then why does the 4th Amendment need to explicitly state it? The 2nd Amendment doesn't say "the right to keep and bear arms shall not be unreasonably infringed". The 1st Amendment doesn't say "Congress shall pass no law unreasonably infringing upon the right ...". And yet the 4th Amendment explicitly states "unreasonable searches and seizures".

    I'm inclined to say that "unreasonable" was used in the 4th Amendment because the founders recognized, and thus had to explicitly state, that some searches and seizures are valid, and not including that term would make the prohibition against searches and seizures absolute. And I expect they used that term, and not something else, because articulating something more specific that would be neither underinclusive nor overinclusive was likely impossible. But that they had to explicitly state that for that reason strongly suggests that the absence of such a term as applied to the other rights means that they regarded those other rights as being much stronger and much more "absolute" (for lack of a better word at the moment).

    So I'd amend my statement to say that "unreasonable" isn't a proper standard for Constitutional protections, or the rights those protections apply to, except where the term is explicitly used in the Constitution, such as the 4th Amendment, precisely because it's not explicitly stated for those other protections. The very use of the term in one essentially means that it is inapplicable to any others that don't explicitly use it.


    I actually apply similar reasoning to the way the 1st Amendment was written versus the 2nd Amendment. The 1st Amendment says that Congress shall pass no law, while the 2nd Amendment says that the right to arms shall not be infringed. This strongly suggests that the authors of the Bill of Rights intended the Constitutional limitations in the 1st Amendment to apply only to the federal government but intended the limitations in the 2nd Amendment to apply universally. With the Constitution being the supreme law, that is the actual effect the words would have if they are read and understood in a literal fashion.

    Actually not correct. The preamble straight up DOES establish some of that.

    We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.

    And it has been cited before as to why public safety can override rights.

    And is one of the reasons SCOTUS has pretty universally sided with vaccine mandates and equally applied quarantine measures through out the history of our country. The government has a public safety interest in mandating a nearly universally safe vaccine to combat a contagious, potentially deadly disease.

    Hence why such cases fighting mandates tend to be losing swiftly and often with little comment.

    So unfortunately per Heller, why the majority opinion laid out that it was not an unlimited right. Sure the court is somewhat more conservative today. But I highly doubt even with its composition as it exists today would SCOTUS write an opinion declaring 2A unlimited. Or any other right. And what matters is what the branches agree to. Not what we want it to mean or what we think it means.
     

    kcbrown

    Super Genius
    Jun 16, 2012
    1,371
    Actually not correct. The preamble straight up DOES establish some of that.

    That would be fine if the rights being overridden were ones that weren't explicitly protected by the Constitution. But here, we're talking about rights that are protected by the very instrument the preamble says is being established for the purpose of achieving the preamble's stated goals. Put another way, the 2nd Amendment was written not just to be compatible with the preamble's goals, but for the purpose of achieving those goals. The founders perceived no conflict between what is in the preamble and the very things I'm saying are protected by the 2nd Amendment. In fact, this is consistent with jcutonilli’s public safety argument: the 2nd Amendment is one of the methods chosen by the founders to achieve public safety.

    Furthermore, the 2nd Amendment is an Amendment. This means it supersedes everything that was previously in the Constitution that is in conflict with it.

    So yes, with respect to things like vaccine mandates and such, it may be that "public safety" is what controls, due to the preamble. But not with respect to the right to arms, which has protection directly baked into the Constitution itself.


    Let me pose this question to you: the preamble says that the purpose of the government established via the Constitution is to insure domestic tranquility and to secure the blessings of Liberty. When those two conflict, which one wins? Think it through carefully, because "domestic tranquility" can be used to justify absolutely every restriction that you can think of. If there's one thing you can say about the most horrific police states the world has ever seen, it's that they were "tranquil".

    Frankly, I think the answer to that is obvious: the founders would side with liberty, as proven by their own actions and their words (e.g., "'If ye love wealth better than liberty, the tranquility of servitude better than the animating contest of freedom, go home from us in peace. We ask not your counsels or arms" -- emphasis mine). And the reason we know this is that they prioritized liberty over life itself, by putting life itself at grave risk through the war they intentionally fought. The Bill of Rights, and the 2nd Amendment especially, is a direct reflection of that choice.
     
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    jcutonilli

    Active Member
    Mar 28, 2013
    2,135
    Before I begin, I should make it clear that I recognize that my approach here is clearly not the one the courts use. Obviously I regard that as an error on the part of the courts. :D But in any case, that the courts do not use this approach now doesn't mean they can't be persuaded to at some point in the future. Getting them to that point may take a sequence of arguments. So any thoughts on how to sway the courts towards this way of thinking would probably be useful, and could lead to interesting discussion in and of itself.




    Really? Why not? Doesn't "public safety" derive straight from the right to life and the right to be free of harm at the hands of another? Isn't that what safety is?

    But whether or not "public safety" is a right, there is nothing whatsoever in the Constitution that authorizes the override of a Constitutionally-protected right with "public safety", or anything else for that matter. The government gets its sole authority from the Constitution, and nothing else. It simply is not authorized to override anything in the Constitution, period. The entire purpose of the Constitutional amendment process is to make it possible to address the shortcomings that can arise from things like this. If the founders thought it valid for the government to be able to override the Constitution, they wouldn't have bothered to make it possible to amend the Constitution, since it is the government that the Constitution is intended to define and constrain in the first place.




    That's true now. But scrutiny is a modern court invention, crafted out of whole cloth by the judiciary. It does not fall into the original understanding of the founders. In fact, I would go so far as to say that "government interest" as used in scrutiny is also a modern invention (but I'd have to research it to know for sure).

    That doesn't make the use of scrutiny universally invalid. It does make it invalid when the outcome of its use conflicts with the original understanding of the founders.

    Moreover, where scrutiny yields a result that conflicts with the plain meaning of the Constitution, its use is clearly invalid, because it is the Constitution, and not scrutiny, that is the supreme law of the land. The Constitution empowers the judiciary to decide cases. It does not empower it to decide cases in a way that conflicts with the Constitution. Rather, the Constitution, and the original understanding that went into it, dictates how cases should be decided by the judiciary. It cannot be the supreme law of the land otherwise.

    So, as I said, if a law or regulation would, had it been applied to the founders at the time of the founding, result in the ban of at least one of the weapons the founders used to secure our liberty with, then that law is invalid precisely because it would clearly conflict with the original understanding of the right to arms, precisely because there's no way the founders would agree to a ban on the very weapons they used to win their (and our) liberty (to insist otherwise is to insist that they were morons of the highest order, because only a moron would agree to be bereft of the very things he needs to accomplish his goals).

    Similarly, if a law or regulation would result in the militia today being unable to fulfill its stated purpose, then that law or regulation is facially invalid, period, precisely because that stated purpose is encoded in the supreme law of the land.




    I didn't say you claimed it. I said your claim amounts to that. Which is to say, it logically is the equivalent of that, even if you didn't say it directly.

    Nothing says that you must adhere to that original claim, you know. :D




    And yet, military arms, which are commonly used by the government, are apparently "legitimately" off limits to the citizenry.

    I'm sorry, but you simply can't square these two things. The government includes the military. This is so because the military answers to the government and nobody else, and is an official arm of the government. And members of the military are citizens of the United States. So either you decide that, for arbitrary reasons, the military is somehow excluded from being part of "the government" for the purpose of evaluating the common use of arms, or your construction falls over.




    Oh, I surely agree here. But the Supreme Court clearly does not agree, at least when it comes to machine guns and other arms that are used by the military, even if those arms are used by the police as well.




    That is true as far as it goes. But it understates things. It's not as if a military as an organization separate from the militia was a foreign concept to the founders. They understood it perfectly well. And they distrusted it. They had seen with their own eyes the imposition of tyranny on the population by way of that same kind of organization. In fact, they experienced that directly themselves.

    Their observation is no less valid today. It is a major reason they believed the citizenry should be able to own military-grade arms.




    Yes, it's harder. But that's the point. The measure of the validity of a particular test is whether or not it is consistent with the principles behind that which it is intended to be applied to. My argument is that the "common use" test is inconsistent with the principles which underlie the 2nd Amendment. In fact, it's clearly inconsistent with the explicitly stated purpose of the 2nd Amendment.

    The 2nd Amendment, and its stated purpose, are part of the supreme law of the land. Their supremacy dictates that constructs like scrutiny, tests like "common use", etc., must fall by the wayside when those constructs and tests yield results that conflict with the plain meaning of the 2nd Amendment, its stated purpose, and the originally understood principles that underlie them.




    That may be true of the hardware. Is it true of the ammunition? I actually don't know the answer to that question.

    In any case, that something isn't forbidden by law now doesn't immunize it from being off-limits to such prohibition later. It's the prohibition of these arms (and ammunition), whether prospective or actual, that we're talking about here.




    I'm going to have to give this some thought. But if "unreasonable" is a proper standard for the other rights, then why does the 4th Amendment need to explicitly state it? The 2nd Amendment doesn't say "the right to keep and bear arms shall not be unreasonably infringed". The 1st Amendment doesn't say "Congress shall pass no law unreasonably infringing upon the right ...". And yet the 4th Amendment explicitly states "unreasonable searches and seizures".

    I'm inclined to say that "unreasonable" was used in the 4th Amendment because the founders recognized, and thus had to explicitly state, that some searches and seizures are valid, and not including that term would make the prohibition against searches and seizures absolute. And I expect they used that term, and not something else, because articulating something more specific that would be neither underinclusive nor overinclusive was likely impossible. But that they had to explicitly state that for that reason strongly suggests that the absence of such a term as applied to the other rights means that they regarded those other rights as being much stronger and much more "absolute" (for lack of a better word at the moment).

    So I'd amend my statement to say that "unreasonable" isn't a proper standard for Constitutional protections, or the rights those protections apply to, except where the term is explicitly used in the Constitution, such as the 4th Amendment, precisely because it's not explicitly stated for those other protections. The very use of the term in one essentially means that it is inapplicable to any others that don't explicitly use it.


    I actually apply similar reasoning to the way the 1st Amendment was written versus the 2nd Amendment. The 1st Amendment says that Congress shall pass no law, while the 2nd Amendment says that the right to arms shall not be infringed. This strongly suggests that the authors of the Bill of Rights intended the Constitutional limitations in the 1st Amendment to apply only to the federal government but intended the limitations in the 2nd Amendment to apply universally. With the Constitution being the supreme law, that is the actual effect the words would have if they are read and understood in a literal fashion.

    Public safety in this context is referring to the government's police power. https://en.wikipedia.org/wiki/Police_power_(United_States_constitutional_law)

    While scrutiny is not specifically mentioned in the Constitution, there is nothing in the Constitution that forbids it. There is nothing in the Constitution that "dictates" how a case is to be decided. The Constitution simply grants judicial power to the courts. This provides some flexibility on how cases are decided. Not everyone agrees that originalism should be the method used to evaluate the Constitution.

    One of the things you need to remember about the 2A is that it does not define what the right actually is. The limitations of the right come from understanding the extent of the right as it was understood at the time of the founding. One of the concepts articulated in Heller was that it only protected commonly used arms. One of the things that has changed with time is the connection between the military and society. Now that there is a separation, the arms that are unusual in society (not commonly used) may not be protected.

    My understanding of artillery ammo is that non exploding ammo is treated like normal ammo, but each round of exploding ammo is considered a separate destructive device. A $200 tax stamp is required for each exploding round.

    PS Look up Straw man argument. It is considered a logical fallacy when you misrepresent another person's argument.
     

    Mike OTDP

    Active Member
    Feb 12, 2008
    3,143
    I would argue the 2A is so people can act like cops. Self-defense and public safety are interrelated. Self defense is an individual subset of public safety.
    In part. 2A is about establishing a pool of power. The government can tap that pool for legitimate purposes, such as public defense or the maintenance of public order. And anyone who doesn't think that realistic should think back to about 12 September 2001, when we had NO clue what the terrorists would do next.

    It's also a counterweight. Remember that for many years, the politicians lived in fear of a military coup d'etat. It's why they kept the Army small, and deployed on the frontier. Why Washington was fortified only during the Civil War...and the instant the war was over, the fortifications were stripped.

    That pool of power keeps everybody honest.
     

    kcbrown

    Super Genius
    Jun 16, 2012
    1,371
    I thought I'd ask this before continuing further because I can't really continue further without understanding the answer.

    PS Look up Straw man argument. It is considered a logical fallacy when you misrepresent another person's argument.

    I had no intention of misrepresenting any argument. If I did so, that means I must have misunderstood it. Which arguments did I misunderstand?
     

    clandestine

    Active Member
    Oct 13, 2008
    36,343
    I keep looking for legit updates but all I see is arguing.

    Have any of you who are arguing been in front of SCOTUS on a 2A case and won?
     

    camo556

    Active Member
    Aug 29, 2021
    2,635
    I keep looking for legit updates but all I see is arguing.

    Have any of you who are arguing been in front of SCOTUS on a 2A case and won?

    Is that even a question?

    No one arguing here has even posted an amicus brief.

    Some people in this thread I am convinced are paid By Demanding Moms
     

    clandestine

    Active Member
    Oct 13, 2008
    36,343
    Is that even a question?

    No one arguing here has even posted an amicus brief.

    Some people in this thread I am convinced are paid By Demanding Moms

    I have no idea who I'm talking to so that's why I asked.

    I can't hide who I am, but others do keep the veil up.

    I agree with your final thought.
     

    Inigoes

    Head'n for the hills
    MDS Supporter
    Dec 21, 2008
    45,557
    SoMD / West PA
    I keep looking for legit updates but all I see is arguing.

    Have any of you who are arguing been in front of SCOTUS on a 2A case and won?

    More like bantering and bloviating.

    Tossing around logic until showtime. Some good points are made and there is some well you get to decide for yourself.

    It is interesting seeing how law twisted normal words into a confusing mess, even though the fundemental right "shall not be infringed".
     

    camo556

    Active Member
    Aug 29, 2021
    2,635
    At this point though all the arguments have been submitted to the court. I am not even convinced oral argument will mean that much. The briefs are good, ppl should read them.

    This is the part where we hurry up and wait.
     

    TheOriginalMexicanBob

    Active Member
    Jul 2, 2017
    23,323
    Sun City West, AZ
    I'm certainly not a lawyer but at this point it would probably take a huge legal argument that's unassailable to move any attitudes most of the Justices already have...those that believe in the meaning of the Constitution will vote to support their beliefs...the Justices that believe modern, iffy legal theories will vote their way and try to justify their votes on whatever legal grounds they can rationalize. The one or maybe two squishy Justices (probably Roberts for one) will try and find a middle ground or try and carve out a narrow decision to placate everyone but only piss everyone off.

    Not sure where Kavanaugh or Barrett will come out...Barrett (I think) will side with the conservatives...Kavanaugh is a tossup...he's nominally a conservative in his legal views but not always.
     

    camo556

    Active Member
    Aug 29, 2021
    2,635
    I am betting they took this case so that they could say that open carry is the ancient right that dates back to the Magna Carta when marriage in Scotland was between 1 man and 1 sheep.

    who's up for some long gun open carry in Times Square?
     

    jcutonilli

    Active Member
    Mar 28, 2013
    2,135
    I thought I'd ask this before continuing further because I can't really continue further without understanding the answer.



    I had no intention of misrepresenting any argument. If I did so, that means I must have misunderstood it. Which arguments did I misunderstand?

    You stated
    Your argument here amounts to the claim that governments never violate the "common use" test

    You followed up by saying
    ... your claim amounts to that. Which is to say, it logically is the equivalent of that, even if you didn't say it directly

    I even tried to explain why the original claim was incorrect.

    Since you believe the first statement to be logically equivalent, I thought it prudent to point out that you were not actually using logic to make the statement.
     

    jcutonilli

    Active Member
    Mar 28, 2013
    2,135
    I keep looking for legit updates but all I see is arguing.

    Have any of you who are arguing been in front of SCOTUS on a 2A case and won?

    That is a very small list since SCOTUS has denied all most all 2A cases. Gura is the only one who made the arguments that won the case. Clement has been in front of SCOTUS on winning 2A cases, but has not really developed the arguments for a winning 2A SCOTUS case. He was the Solicitor General in Heller and presented the arguments in McDonald, but was not counsel of record for the cert petition. I would not count NYSRPA v NYC since he technically did not win that case (dismissed as moot).

    Do you ever wonder why all most all 2A cases are denied?
     

    jcutonilli

    Active Member
    Mar 28, 2013
    2,135
    Is that even a question?

    No one arguing here has even posted an amicus brief.

    Some people in this thread I am convinced are paid By Demanding Moms

    You must be new here.

    I have files 7 amicus briefs across 5 circuits and 5 cases.

    The most relevant to this case is my Young v Hi brief. It appears that the 9th circuit dissenters adopted my explanation of the historical prohibitions for concealed carry. I thought the fact that the explanation of the historical prohibition that dissenters in that case wrote might cause someone else to incorporate that explanation into their brief for this case. I severely underestimated everyone else.

    I filed 3 amicus briefs in the Duncan v Bonta (CA mag ban) case.

    I have also filed 3 amicus briefs in the bump stock cases in the 6CA, 10CA, and DCCA.
     

    Attachments

    • JAC amicus young v hawaii final.pdf
      239.9 KB · Views: 42
    • JAC amicus duncan v becerra Final.pdf
      232.9 KB · Views: 38
    • JAC amicus duncan BIO.pdf
      234 KB · Views: 36
    • 1_PDFsam_JAC amicus duncan Supplemental.pdf
      155.9 KB · Views: 35
    • JAC amicus Apohian v Barr - final.pdf
      207.1 KB · Views: 29
    • JAC amicus GOA v Garland.pdf
      204.7 KB · Views: 36
    • JAC amicus Guedes v ATF.pdf
      210.8 KB · Views: 32

    camo556

    Active Member
    Aug 29, 2021
    2,635
    :thumbsup:

    12 days to.. Christmas?
     

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