Absolutely correct. The Court could not go beyond the issues presented by the case before it.cbrgator said:
Getting SCOTUS To Rule On AWB ???
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Geneseo1911
Member
Did not the SCOTUS decline to hear challenges to the '94 ban?
mgregg85
Member
If they do address the AWB, it will probably take several years, and by then obama might have filled the court with justices of his ilk. We might not want the AWB to be decided by SCOTUS in that case as it will be a political decision.
outerlimit
Member
The part that scares me the most is this:
"An individual right 'is not being infringed if reasonable restrictions are placed upon it,' Chief Justice John Roberts said"
That's like equating the AWB to restrictions on 1st Amendment rights such as someone falsely yelling 'FIRE!' in a crowded theater.
They are not equivalent.
Obviously someone who does this, is doing it in malice, and is doing it to cause harm to others. Someone who buys an AR-15 does not likely intend to commit a crime with it and they are not doing it with bad intentions.
And this is one of the so called conservative Justices that voted 5-4.
"An individual right 'is not being infringed if reasonable restrictions are placed upon it,' Chief Justice John Roberts said"
That's like equating the AWB to restrictions on 1st Amendment rights such as someone falsely yelling 'FIRE!' in a crowded theater.
They are not equivalent.
Obviously someone who does this, is doing it in malice, and is doing it to cause harm to others. Someone who buys an AR-15 does not likely intend to commit a crime with it and they are not doing it with bad intentions.
And this is one of the so called conservative Justices that voted 5-4.
kolob10
Member
AWB
Gentlemen, All the discussion of an assualt weapon ban scare the pants off me. We are in perilous times. I cannot depend on the local police to defend my rights as I live in a rural area and the response time for local police help is probably around 20-30 minutes at best. The Founders I believe intended us to be armed to defend our rights from an unrighteous and corrupt government! Should we not be armed in like manner? It is probably safe to say that we all here enjoy similar feelings toward the intent of the Founders concerning the 2nd Ammendment. The question remains - What is our best course of action currently to influence a future decision on a AWB? Yes, all decisions concerning the interpretation of the Articles of the Constitution are political as it seems. What happened to government of the people, by the people and for the people? I for one am feeling rather frustrated not only by our current political agendas but more by the inaction of the people. We need more political activism by the majority!! Or maybe the founders were correct in wanting only those who own real property to have the right to vote? I'm not a barrister but have enjoyed the previous comments. Goos shooting.
Gentlemen, All the discussion of an assualt weapon ban scare the pants off me. We are in perilous times. I cannot depend on the local police to defend my rights as I live in a rural area and the response time for local police help is probably around 20-30 minutes at best. The Founders I believe intended us to be armed to defend our rights from an unrighteous and corrupt government! Should we not be armed in like manner? It is probably safe to say that we all here enjoy similar feelings toward the intent of the Founders concerning the 2nd Ammendment. The question remains - What is our best course of action currently to influence a future decision on a AWB? Yes, all decisions concerning the interpretation of the Articles of the Constitution are political as it seems. What happened to government of the people, by the people and for the people? I for one am feeling rather frustrated not only by our current political agendas but more by the inaction of the people. We need more political activism by the majority!! Or maybe the founders were correct in wanting only those who own real property to have the right to vote? I'm not a barrister but have enjoyed the previous comments. Goos shooting.
Mike OTDP
Member
Back to the OP....
The smartest tactic to use is to file suit at the Federal level...in the most strongly pro-gun circuit, with the most appealing plaintiff available. Which means the 5th Circuit, and a woman who is a NRA Service Rifle competitor. Then use previous 5th Circuit rulings and the Heller ruling to win.
Then file similar suits in slightly less friendly Circuits...using the previous decision as a precedent. Win those.
Follow up with cases in hostile circuits. This may or may not work. If we win...we win. If not, it produces a split that guarantees that SCOTUS will take the case...but with most Circuits ruling in our favor, it's an open-and-shut case.
This is precisely the strategy that was used to win the civil rights cases in the 1950s and 1960s. It's a winner, if you have the patience to use it.
The smartest tactic to use is to file suit at the Federal level...in the most strongly pro-gun circuit, with the most appealing plaintiff available. Which means the 5th Circuit, and a woman who is a NRA Service Rifle competitor. Then use previous 5th Circuit rulings and the Heller ruling to win.
Then file similar suits in slightly less friendly Circuits...using the previous decision as a precedent. Win those.
Follow up with cases in hostile circuits. This may or may not work. If we win...we win. If not, it produces a split that guarantees that SCOTUS will take the case...but with most Circuits ruling in our favor, it's an open-and-shut case.
This is precisely the strategy that was used to win the civil rights cases in the 1950s and 1960s. It's a winner, if you have the patience to use it.
If I've learned one thing so far in law school its that NOTHING is a sure thing. Every case has two sides with two technically sound arguments. I'm not saying your course of action is wrong, I think its great, but never be that confident when it comes to the law.
JImbothefiveth
Member
One thing that should be kept in mind before anyone proposes challenging an AWB is that by the time the case reaches the court, Obama may have appointed a few of his goons from Chicago as justices.
legaleagle_45
Member
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SCOTUS, and all other federal courts are constitutionaly constrained to hear and decide only "cases and controversies". This means that they can only involve themselves in actual disputes between actual adversaries and has led to legal terms of art which touch upon this constitutioal requirement, such as standing, ripeness and mootness... not all courts are thus constrained. Some states have given thier highest court the ability to issue "advisory opinions" in which the court is allowed to decide issues without real adversries being involved. This can be dangerous because in those situations, the court does not have the benefit of hearing effective argument from all sides having a stake in the outcome of the decision... it could be a set up a situation where only one side provides analysis and argument... which is sorta what happened in US v Miller.
Before we start debating the paths for raising a non existent and currently only potential "Son of AWB" people should really look at the current legal and political landscape first.
Some examples from the Legal landscape
First off, read the whole bloody Heller verdict and not someone else's cherry picked support for their own prejudices, wants, fears and desires. When the court says things like
"The Court’s opinion should not be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places ......."
It means, this is not part of the original case and so we're not ruling on it, not it can never be raised.
There continues to be much "Oh my God, it was only a 5-4 verdict, we're close to being dooooooomed". What we ACTUALLY had was 5 in full signed off support and a range of opinions in the 4 from close to far far away. A very different thing.
"Oh my God, Obama will replace/appoint new Justices and reverse it......We're doooooooomed". Please read the actual appointment/approval process for a SC justice and then have a look at how various "shoo-in" left and right wing justices have gone their own sweet way and confounded their original supporters.
Statistically speaking the justices most likely to die or retire are from the "controller" side and if they are replaced like for like it's a wash. The only other way would be for Obama to propose and send to the House a bill to increase the overall numbers of SC Justices, get that passed then propose and get passed at least another 9 justices, all with lifetime tenure and hope they vote the way he wants........All for one bill.......I find that somewhat unlikely.
All judges and most particularly SC justices are inherently conservative (small C) in that they do not look happily on legal reversal on a dime. It took them over 70 years to opine after Miller. Reversal of Heller is simply not going to happen, not because it's 2A but because judges cannot let themselves be seen to swing with the wind.
Incorporation of 2A, one way or the other is eventually going to happen, it is, by it's very nature, the 14th amendments "elephant in the room" that everyone has been politely ignoring for a long time. The issue is not incorporation but how the "reasonable" regulations and restrictions are crafted and what level of scrutiny is applied. I wait the Nordyke ruling with a profound mixture of both optimism and apprehension.
Some politics.....(but not the IBTL type.....)
Everyone has an opinion on Obama but no one should think he's either naive or politically stupid. The man got to Harvard Law and made his way without apparent major taint through the world of Chicago machine politics. He defeated Clinton and has now neutered her potential to cause trouble by removing her from a power base in the Senate and placing her in a position at the pleasure and favor of the President. If, in 12 months time, as part of a Cabinet reshuffle he axes her, she has no immediate fall back option.
What is the fundamental desire of a politician, other than holding power over others.......It's to be re-elected.
Obama has a huge expectation from the electorate that he will fix the fundamentals in the US, economy, housing, pensions, health care, crappy infrastructure etc etc.
He has a substantial but time decaying amount of political capital to spend and will conserve and spend it so he can acquire more to replace that which has gone.
An AWB will need political capital to be spent like a drunken sailor on shore leave at every stage of the bills process and will generate minimal positive capital earn.
The time to be concerned would be in a potential second term when he doesn't have to worry about being re-elected, wants to burnish his legacy and can spend capital freely.
An AWB is unlikely to ever get out of committee, ammunition serialization, mandatory child proofing, increases in tax revenue streams etc, here we need to really worry.
Some examples from the Legal landscape
First off, read the whole bloody Heller verdict and not someone else's cherry picked support for their own prejudices, wants, fears and desires. When the court says things like
"The Court’s opinion should not be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places ......."
It means, this is not part of the original case and so we're not ruling on it, not it can never be raised.
There continues to be much "Oh my God, it was only a 5-4 verdict, we're close to being dooooooomed". What we ACTUALLY had was 5 in full signed off support and a range of opinions in the 4 from close to far far away. A very different thing.
"Oh my God, Obama will replace/appoint new Justices and reverse it......We're doooooooomed". Please read the actual appointment/approval process for a SC justice and then have a look at how various "shoo-in" left and right wing justices have gone their own sweet way and confounded their original supporters.
Statistically speaking the justices most likely to die or retire are from the "controller" side and if they are replaced like for like it's a wash. The only other way would be for Obama to propose and send to the House a bill to increase the overall numbers of SC Justices, get that passed then propose and get passed at least another 9 justices, all with lifetime tenure and hope they vote the way he wants........All for one bill.......I find that somewhat unlikely.
All judges and most particularly SC justices are inherently conservative (small C) in that they do not look happily on legal reversal on a dime. It took them over 70 years to opine after Miller. Reversal of Heller is simply not going to happen, not because it's 2A but because judges cannot let themselves be seen to swing with the wind.
Incorporation of 2A, one way or the other is eventually going to happen, it is, by it's very nature, the 14th amendments "elephant in the room" that everyone has been politely ignoring for a long time. The issue is not incorporation but how the "reasonable" regulations and restrictions are crafted and what level of scrutiny is applied. I wait the Nordyke ruling with a profound mixture of both optimism and apprehension.
Some politics.....(but not the IBTL type.....)
Everyone has an opinion on Obama but no one should think he's either naive or politically stupid. The man got to Harvard Law and made his way without apparent major taint through the world of Chicago machine politics. He defeated Clinton and has now neutered her potential to cause trouble by removing her from a power base in the Senate and placing her in a position at the pleasure and favor of the President. If, in 12 months time, as part of a Cabinet reshuffle he axes her, she has no immediate fall back option.
What is the fundamental desire of a politician, other than holding power over others.......It's to be re-elected.
Obama has a huge expectation from the electorate that he will fix the fundamentals in the US, economy, housing, pensions, health care, crappy infrastructure etc etc.
He has a substantial but time decaying amount of political capital to spend and will conserve and spend it so he can acquire more to replace that which has gone.
An AWB will need political capital to be spent like a drunken sailor on shore leave at every stage of the bills process and will generate minimal positive capital earn.
The time to be concerned would be in a potential second term when he doesn't have to worry about being re-elected, wants to burnish his legacy and can spend capital freely.
An AWB is unlikely to ever get out of committee, ammunition serialization, mandatory child proofing, increases in tax revenue streams etc, here we need to really worry.
ServiceSoon
Member
Very good post everallm. I would add "requiring background checks for all firearms sales" as a threat.
Cyborg
Member
SCOTUS Decisions
legaleagle and fiddletown correct me if I am mistaken but any 5-4 SCOTUS is a good one irrespective of whether or not you agree with the majority because it means that the matter was settled at the proper level. There will often be times when honest, honorable men (and women, of course) will disagree on something. In such a case SOMEone must decide one way or the other. For all legal disputes at the national level SCOTUS exists to do that. 5-4 decisions or at worst 6-3 should be the norm. Any decision decided 7-2 or 8-1 should never have gotten that far. A unanimous SCOTUS decision is the legal equivalent of a slam dunk. Those should NEVER get to SCOTUS and do so only because the Justices realize that the only way to end the squabbling is to rule on the matter.
For the record, Bush v Gore, the SCOTUS decision that allegedly gave GW the Presidency, was not a 5-4 ruling. The vote was 5-4 to GRANT CERT. The actual decision was decided 7-2 meaning it should have never gotten to that level. If you want to get the full story on the 2000 election, I suggest you read Bill Sammon's excellent "At Any Cost".
RE:
I would not be surprised if one or more of the true conservative AJs did not expire of sudden medical or accidental causes during the next 4 years. It would only take the untimely death of one conservative AJ to swing things to the left's favor. If it were CJ Robert's passing, then the left would have an enormous advantage since the CJ has a gread deal of power/influence in setting agendae for SCOTUS. And before everallm jumps in to accuse me of being a "chicken little" or of following Grandpa Vanderboegh's "advice"
Excuse me. Gotta get back to working on my list of stuff to stockpile when I see the storm brewing on the horizon. Lessee, hum, . . . .
Cyborg
legaleagle and fiddletown correct me if I am mistaken but any 5-4 SCOTUS is a good one irrespective of whether or not you agree with the majority because it means that the matter was settled at the proper level. There will often be times when honest, honorable men (and women, of course) will disagree on something. In such a case SOMEone must decide one way or the other. For all legal disputes at the national level SCOTUS exists to do that. 5-4 decisions or at worst 6-3 should be the norm. Any decision decided 7-2 or 8-1 should never have gotten that far. A unanimous SCOTUS decision is the legal equivalent of a slam dunk. Those should NEVER get to SCOTUS and do so only because the Justices realize that the only way to end the squabbling is to rule on the matter.
For the record, Bush v Gore, the SCOTUS decision that allegedly gave GW the Presidency, was not a 5-4 ruling. The vote was 5-4 to GRANT CERT. The actual decision was decided 7-2 meaning it should have never gotten to that level. If you want to get the full story on the 2000 election, I suggest you read Bill Sammon's excellent "At Any Cost".
RE:
That may have been so in the past (althogh I suspect it was more that "conservative" AJ candidates went in a path not expected than "liberal" candidates) but these days, the left is (or to this observer appears to be) increasingly applying ideological litmus tests to such people. In the current political climate, I would expect any AJ's confirmed to be strongly and actively leftist. I would also expect the oldest current leftist AJs to announce their intent to retire soon after Barama is sworn in.everallm said:
I would not be surprised if one or more of the true conservative AJs did not expire of sudden medical or accidental causes during the next 4 years. It would only take the untimely death of one conservative AJ to swing things to the left's favor. If it were CJ Robert's passing, then the left would have an enormous advantage since the CJ has a gread deal of power/influence in setting agendae for SCOTUS. And before everallm jumps in to accuse me of being a "chicken little" or of following Grandpa Vanderboegh's "advice"
I would remind you that the left is famous for its "ends justify means" operational philosophy. Also there is an 11th beatitude that runs something like
I would say "blessed is the man who expects AND PREPARES FOR the worst".
Excuse me. Gotta get back to working on my list of stuff to stockpile when I see the storm brewing on the horizon. Lessee, hum, . . . .
Cyborg
Perhaps – but since 1961 all three ‘successful’ presidents have had problematic second terms to the extent that the political capital is mostly spent by that time and desired goals not realized. Also, all three of these re-elected presidents spent all or part of their second terms with Congress controlled by the opposition party. Significant gun control may not make the final cut in the President’s overall legacy if it means sacrificing other goals he considers more important.
Cyborg,
I don't belittle your stance, I've been through situations that went from "It's golden" to "What the F**K" more than I want to count......
Like yourself, I generally work on the 7P principle, Proper Prior Preparation Prevents Piss Poor Performance myself.
My thesis is more towards the high volume, high noise, low signal tendency, low information integrity individuals amongst us. Such as one charming gentleman who took umbrage to my refuting him on his dubious and unsubstantiated "facts". Apparently that makes me a paid disinformation tool of the New World Order.......
Yes there is a possibility that
1. Obama could decide to support an aggressive AWB, spending political capital hand over fist to the detriment of other programs,
2. Where 2 or more non "controller" SC justices retire or die and are replaced by AWB friendly members
3. Where the electorate passively accepts their immediate urgent concerns being ignored
4. Where the SC goes against it's own recent established ruling and reverses Heller.
Etc.
Each is possible, but each has a low probability and as a whole it is improbable but not impossible.
I don't belittle your stance, I've been through situations that went from "It's golden" to "What the F**K" more than I want to count......
Like yourself, I generally work on the 7P principle, Proper Prior Preparation Prevents Piss Poor Performance myself.
My thesis is more towards the high volume, high noise, low signal tendency, low information integrity individuals amongst us. Such as one charming gentleman who took umbrage to my refuting him on his dubious and unsubstantiated "facts". Apparently that makes me a paid disinformation tool of the New World Order.......
Yes there is a possibility that
1. Obama could decide to support an aggressive AWB, spending political capital hand over fist to the detriment of other programs,
2. Where 2 or more non "controller" SC justices retire or die and are replaced by AWB friendly members
3. Where the electorate passively accepts their immediate urgent concerns being ignored
4. Where the SC goes against it's own recent established ruling and reverses Heller.
Etc.
Each is possible, but each has a low probability and as a whole it is improbable but not impossible.
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I can't really agree with all of this. The decision in Heller was good because it was what we wanted and probably the best we could get given the nature and reach of the case, but I'm not all that happy that it was only 5 to 4. And I really don't think that one can categorize Supreme Court decisions in quite the way you've done.Cyborg said:
There's room for an awful lot of speculation about how things will unfold in the future. But it's just that -- speculation.
We'll need to control things the best we can. Pick the battles to engage. Fight those battles as they arise. And lay the best foundations we can for future trips to the Supreme Court. In any event, one case is not enough. We need to build a body of decisional law.
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