New 2nd Amendment Cases and SCOTUS

Some before, some after. Doesn't matter all too much because the court can overturn any decision anyway. It's a shame it's so political when it was created to be objective.

New 2nd Amendment Cases and SCOTUS
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What's the chance of important 2nd Amendment cases, (Incorporation, Full-Auto's and others) being decided before any new Supreme Court Justices are sworn in?

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Almost none at all.

Also doesn't matter much because the Justices expected to retire are all Dem appointees and were on the anti-personal-right side on Heller. It would be difficult for any replacements to be more anti-gun than the expected retirees, and it is entirely possible that their replacements would be less anti-gun, even if they are nominated by Obama.

IMHO, nothing will roll up to the SC before the end of the Chicago gun case conclusion as this addresses the core issue of incorporation. This will be kicked up pretty rapidly (for constitutional law challenges) to the SC.

Once 2A is regarded as incorporated then other challenges would have solid ground to build on.

Full Auto, don't hold your breath, no possibility of it gaining ground until a substantial amount of case law at city, state and Federal has been built up.

Heller has provided a basis to start incremental challenges and we would be better served by focusing on low hanging fruit before trying for a massive change.

Ones that are "reasonable" to challenge and likely to be overturned might include

Magazine capacity restrictions
Cosmetic features
Mandatory FOID/FID's AND arbitrary "may issue"
"One handgun a month" restrictions
Purchase and take control of a handgun outside of your state of residence

etc etc

It's the old one of how does one person eat an elephant? One mouthful at a time.....

Incorporation, possible.

Full auto, none. And I don't mean .0000001%.

Fortunately, I believe all the oldest justices all write their decisions with their left hands. If John McCain makes it into the white house, we'd probably have a pretty good shot at making some ground here.

Remember, just because Kennedy sided with us on the lowest possible limit of gun control, doesn't necessarily mean he's going to side with us on everything. Maybe he will, but I wouldn't bet my gun rights on it.

Rmeju

IMHO, nothing will roll up to the SC before the end of the Chicago gun case conclusion as this addresses the core issue of incorporation. This will be kicked up pretty rapidly (for constitutional law challenges) to the SC.

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There is also the Nordyke case in CA that might get there a lot quicker. To me it seems sort of a clunker of a case as far as 2A goes, but the lawyers at CGN think its a winner.

Once 2A is regarded as incorporated then other challenges would have solid ground to build on.

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Thats the key. Get the right enshrined, then figure out what the extent of the right is. There is also the issue of level of scrutiny. Heller has pretty much ignored this issue, since no level of scrutiny would deny one the right to keep a firearm in ones home for SD. My reading of some of the Heller decision makes me think the level of scrutiny is likely to fall below strict, but not real far below it.

Full Auto, don't hold your breath, no possibility of it gaining ground until a substantial amount of case law at city, state and Federal has been built up.

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I agree. I do think it has some chance, but should be way down the road. One possibility to my way of thinking is that an argument could be made that the 2A intended for private citizens to keep military grade weapons so as to form the basis of the militia's weaponry. And in fact since the prefatory clause actually makes that abundantly clear, that argument might get somewhere. Keep in mind that if strict scrutiny is the deal, than there is nearly zero chance of the 1986 MG ban standing, since there is an extremely low rate of crime from lawful MG owners under current law. It might be argued by the other side that the reason for the low rate of crime by lawful MG owners is due to the licensing requirements, in which case we go back to pre 1986 on that.

Heller has provided a basis to start incremental challenges and we would be better served by focusing on low hanging fruit before trying for a massive change.

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There is a lot of low hanging fruit out there once we get incorporation.

Ones that are "reasonable" to challenge and likely to be overturned might include

Magazine capacity restrictions
Cosmetic features

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Probably.

Mandatory FOID/FID's AND arbitrary "may issue"

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May issue is toast the day the SC says "incorporated".

Only a few states have firearm owner ID cards. I can see a pretty good argument that voters have to register, so why not gun owners? Registration in and of itself presents no infringement. I think if it is something relatively inoffensive like the Illinois version, it probably passes muster. Some other states make it inconvenient and expensive and they might have to make it less burdensome. I think the issue there will become one of level of burden.

"One handgun a month" restrictions

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Especially for existing handgun owners. However, reporting of multiple purchases might stick around.

Purchase and take control of a handgun outside of your state of residence

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The question is does the explicit power of congress to control interstate commerce allow them to control this particular aspect of interstate commerce. I think it is going to be hard for the courts to take away a power explicitly granted to another branch of government.

ilbob said:

There is also the Nordyke case in CA that might get there a lot quicker. To me it seems sort of a clunker of a case as far as 2A goes, but the lawyers at CGN think its a winner.

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It was a clunker in that even though it related to gunshows, it was not filed as an RKBA case but as a 1st Amendment case - which of course was entirely the right strategy at the time! - we didn't want another Silviera (and the lawyer handling Nordyke is a bright guy and not a nutjob like Silviera's Gary Gorsky).

But then a Fed judge in the last go-round sua sponte raised the 2nd Amendment issues and Heller was decided - and now "here we are", with the same (favorable) panel as before.

So I'm glad we're set up to run with the ball



Bill Wiese
San Jose CA

Remember also that when Nordyke was first ruled upon, it was first presented as a facial challenge. That has now morphed into an as applied challenge.

There's more to Nordyke than many will give it credit.

I am just wondering who I could take to court here in CT to get a foothold on our silly laws... I would like to sue to have a collapsible stock to go with my evil pistol grip and my evil magazine well...

Also doesn't matter much because the Justices expected to retire are all Dem appointees and were on the anti-personal-right side on Heller.

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Only Ginsburg and Breyer were appointed by a Democrat. The other 7 justices were appointed by Republicans. Stevens, appointed by Gerald R. Ford, is the oldest at 88 and came down "against us" in Heller.

Full Auto, don't hold your breath, no possibility of it gaining ground...

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I believe the Heller decision refers to machine guns and the NFA of 1934 a couple of times, in a way that would not make you think the current Court is going to rule full auto is protected by the 2cd admenment.

But that does not mean Congress and your State HAS to pass laws against full auto. Just any progress in lossening full auto laws is going to have to agure on points other than the 2cd.

IMO, the key to removing the 86 ban would be to have someone attempt to register a full auto with a manufacture date before may 18, 1986 and one AFTER may 19, 1986. Then sue after they register one but not the other.

we will have the incorporation case long before any new appointments are made. At best, you'll have two new appointments coming within the next six years. One will be to replace Ginsburg very shortly, and the other most likely Stevens not too much later. Both were not on our side, so at worst the make-up will stay the same. Problem there is that the vote really did come down to the swing vote. Swings work both ways...

The real cases to come after that will be on what is or isnt protected by the 'reasonable' restriction nonsense. The main two will be the current definition of the AWB, and hi-cap mags as a good start. I'm not entirely optimistic about that, but we'll see if things get better...or at least good enough.

My prediction:

I think the circuits will agree on incorporation. The USSC left too many hints throughout Heller, including the dual warnings that Cruikshank is stone-cold evil and can't be relied on.

I do think at least one circuit, one covering either California (9th) or whichever ones cover Illinois and/or New York, will try and rule that public carry isn't covered by the 2nd. That will be a stretch, if they try to claim both open AND concealed carry can be largely eliminated. They'll have to create some new doctrine disconnecting "keep" and "bear", and they'll have to ignore the "footnote 9" cases in Heller which all said that concealed carry could be banned only because open carry is legal.

We will almost certainly see a legal challenge to the Texas open-carry ban. I don't know what will happen with that. We'll see a challenge somewhere to CCW fees, in some state with high costs.

And at some point, we'll see a challenge to bans on semi-auto cousins to various battle rifles, and/or bans on the 50bmg.

So...the most likely circuit splits are on "black rifles" in semi-auto trim, banning open-carry where shall-issue CCW is present as a "bear arms alternative", and on a right to carry at all.

Personally, I am confident enough that a right to carry exists, articulated within Heller, that if I lived in DC and had a DC-registered revolver, I'd CCW it. That's where my personal head is at, NOT a recommendation. As I've made clear, I would ONLY challenge the carry ban, not the registration or semi-auto-ban stuff at the same time, and I'd have a CCW permit from another state proving I'd had a background check. To find the carry ban constitutional, a court would have to invent a disconnect between "keep" and "bear" that I don't think can be found.

usmarine0352_2005 said:

Whats that mean?

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A facial challenge claims that the law is unconstitutional on it's face. An as applied challenge claims that the law is unconstitutional as it is applied to this specific circumstance.

A good article on what this really means, can be found here.

In the original case, Nordyke tried to facially challenge the county's ordinance as a 1st amendment challenge. They failed. Because of Heller, they are now challenging, under 2A grounds, as it applies to gun shows.

There are really 2 issues for the Circuit to resolve. First is the issue of incorporation. If the Circuit rules that the 2A is incorporated against the States, then and only then will they decide if the law, as applied, is valid.

Should the Circuit not incorporate, then there will be no reason to decide the as applied challenge.

I mentioned varying "low hanging fruit" comments.

I feel that whilst much has been made of pushing New York City as a potential next case, post incorporation, that looks a little too much of the schoolyard, you know "Bad Big City, Bad Big Mayor, we're going to poke you to teach you a lesson, nyah nyah nyah"

IMHO, I feel that the second push should be on a particularly egregious state and that NJ is the ideal candidate.....and not just 'cause I live there....

California already has a case in the 9th circuit which will address much 2A as well as NRA backed legislation on San Francisco, a substantial CCW population etc etc.

New Jersey is a poster child for the Brady Campaign some of the fun and games....

Mandatory Firearms ID Card on an effective may issue basis only, no FID equals no firearms of any sort.

FID's take an average of 4-6 months to be issued (when you chase and badger).

Ammunition can only be purchased, in state, upon presentation of a FID.

FID is tied to you and your address and if you move you have to effectively go through the whole process again.

Hand guns can only be purchased after you apply for and are granted an authority to purchase form, one for each handgun, good only for 90 days.

For each request you have to supply 2 "character witnesses", each and every time.

Magazines are restricted to 15 rounds

Cosmetic features restrictions abound

CCW is based upon need and are like honest politicians in NJ, much rumored, rarely seen.

etc etc.

Each of these is ripe for challenge, after incorporation and post Heller and would provide an excellent basis for sound case law which can then club the other baby seals in other states.

To me it is a big stretch to jump from a right to keep and bear arms to a right to have a gun show at the county fair grounds.

But the lawyers running the case think otherwise and I am pretty sure they are much better lawyers than I am.

Take a look at my thread Want to be able to buy new full autos again?

Jim March said:

We will almost certainly see a legal challenge to the Texas open-carry ban. I don't know what will happen with that. We'll see a challenge somewhere to CCW fees, in some state with high costs.

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I'm already planning that if the legislature fails to totally rewrite 46.02 in Texas this session.

I have to disagree about registration being a non -issue, as many states do NOT require registration, and the stopping of same has long been a cornerstone of the 2A movement. Registering to vote gives them my name and address, registering my guns gives them incentives to take them away, IMHO.

the Justices expected to retire

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But if even one justice has something happen to him under an anti-gun administration, it's curtains for us.

I have to disagree about registration being a non -issue, as many states do NOT require registration, and the stopping of same has long been a cornerstone of the 2A movement. Registering to vote gives them my name and address, registering my guns gives them incentives to take them away, IMHO.

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While I agree that the only real reason for gun or gun onwer registration is for a future confiscation, the courts probably are not going to see mere registration as an infringement unless there is a high cost associated with it or serious inconvenience.