Do you think SCOTUS will not grant cert on these cases?

[usmarine0352_2005]

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This was posted on another board.


The case of Masciandaro v. United States is currently waiting for cert in SCOTUS and it covers:

Whether the Court consider whether: 1) the right to possess and carry a firearm for self-defense extends outside the home, and 2) it is constitutional to prohibit law-abiding citizens’ possession and carrying of loaded weapons in motor vehicles while on National Park Service land.


And: Williams v. Maryland which covers:

Whether peaceably carrying or transporting a registered handgun outside the home, without a carry permit that is unobtainable by ordinary, law-abiding citizens, is outside of the scope of “the right of the people to . . . bear arms” protected by the Second Amendment to the United States Constitution.


Both of these cases are awaiting cert by SCOTUS.





The reply was:

I will bet you a cup of coffee SCOTUS does not grant cert on this case. He was arrested for possessing a handgun in a federal park. The US Court of Appeals affirmed the District Court's ruling. There was a new law that passed after his arrest and he tried to argue that the new law should supersede the law that was in effect when he was arrested. The District Court and US Court of Appeals cite the US Supreme Court case of Hark that the law in effect at time of arrest is the correct one to be applied. His other argument is obviously more important, citing the Heller case and arguing that he has a right to protect himself. The District and Intermediate court didn't buy it. Although the Intermediate court had some interesting things to say about the Heller case, they found that the federal law was in place, it was legal, and enforceable.

The Williams case pertains more to the recent SCOTUS rulings because he violated a state law to carry a firearm without a permit. I will be surprised if SCOTUS grants cert on this one. If they do, I would like to know. It directly addresses the question of firearm possession without a permit when the state requires one. In my opinion, SCOTUS would affirm anyway. It they believed it was unconstitutional to require a permit to carry in a state, the decision would have been made decades ago. But that's me.

1.) Do you think that SCOTUS will or will not grant cert on either of these cases?





2.) Do you think one of these cases will be the next 2nd Amendment case ruled on by SCOTUS?




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[cbrgator]

Without knowing more facts than those posted here, neither of those seem like the ideal case for the SCOTUS to address the "bear" part of "keep and bear arms."

If the 5 justices in the Heller an McDonald majorities intend to hold that there is a right to carry, there are better cases to review.

They will definitely wait for the right one.

 

[GRIZ22]

You can't appeal a case successfully if your major issue is that what you were convicted of is legal now. Mascinadaro will go no furtehr than it has.

The argument in the Williams case is weak because as I understand it he never applied for a carry permit.

cbrgator is correct that there are much better cases for SCOTUS to hear.

 

[bushmaster1313]

The issue after Heller and McDonald is whether upright citizens can be prevented from exercising a Constitutional right at the discretion of a government official.

This goes beyond "shall issue" and the 2nd Amendment. It is the major civil rights issue of our times and it should be supported by everyone who is not a fascist.

 

[usmarine0352_2005]

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bushmaster1313: The issue after Heller and McDonald is whether upright citizens can be prevented from exercising a Constitutional right at the discretion of a government official.

This goes beyond "shall issue" and the 2nd Amendment. It is the major civil rights issue of our times and it should be supported by everyone who is not a fascist.

Bushmaster, so does the question also ask if you can exercise that Constitutional right outside of the home?
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[cbrgator]

The issue after Heller and McDonald is whether upright citizens can be prevented from exercising a Constitutional right at the discretion of a government official.

Not really. The issue after McDonald and Heller is the scope of the RKBA. How far does it extend? What is protected and what isn't?

2A is not absolute. No rights are, including the First and Fourth Amendments, and even the right to life (capital punishment). Speech can be regulated by time, place, and manner restrictions. You cannot say anything you want, to anyone, anywhere, at anytime. For example, your neighbor cannot stand outside your house at 3AM and scream into a megaphone that he is going to kill you.

Just like Scalia said in Heller, the decision does not mean we can "carry any weapon whatsoever in any manner whatsoever and for whatever purpose."

There will certainly be some limitations, but hopefully they are few. It will take decades before we have a clear picture of the boundaries of the 2A.

 

[brickeyee]

It has taken a long time and many cases to hash out the limits on the 4th, and even the first.

It is going to take a long time and numerous cases to hash out the second.

For the second, the process has barely started.

 

[Al Norris]

It would be nice if the cases were stated in their proper manner.

Take the Williams case. The question asked of the Supreme Court is whether or not the right to armed self defense exists outside the door step of your house:

Whether peaceably carrying or transporting a registered handgun outside the home, without a carry permit that is unobtainable by ordinary, law-abiding citizens, is outside of the scope of “the right of the people to . . . bear arms” protected by the Second Amendment to the United States Constitution.

If the right exists outside the home (as I and many others contend), then in a State that has a "May Issue" system wherein the AG has already argued (Woollard v. Sheridan) that the permitting process is used to prevent ordinary people from carrying, what was Mr. Williams to do?

The handgun was purchased in a lawful manner. The petitioner transported the handgun to his girlfriends apartment. About two weeks later, the petitioner attempted to transport the firearm to his own home. That was when he was caught carrying unlawfully. The time frame between purchasing the firearm and when Mr. Williams was caught, was such that even if he had applied for a permit, there was not enough time for it to be processed. We also know that as an ordinary citizen, his application would have been routinely denied. Catch 22.

Williams is a criminal, solely by an act of State law, that holds there is no 2A right outside the home. This was emphasized by the MD Supreme Court of Appeals, who barely looked at the constitutional question:

This is not the case, because Heller and McDonald emphasize that the Second Amendment is applicable to statutory prohibitions against home possession, the dicta in McDonald that “the Second Amendment protects a personal right to keep and bear arms for lawful purposes, most notably for self defense within the home,” notwithstanding. __ U.S. at __ , 130 S. Ct. at 3044, 177 L. Ed. 2d at 922. Although Williams attempts to find succor in this dicta, it is clear that prohibition of firearms in the home was the gravamen of the certiorari questions in both Heller and McDonald and their answers. If the Supreme Court, in this dicta, meant its holding to extend beyond home possession, it will need to say so more plainly.

The Masciandaro case is similar. It asks the Court these questions:

• Does the Second Amendment to the United States Constitution protect a right to possess and carry a firearm for self-defense outside the home?
• If there is a Second Amendment right to possess and carry a firearm for self-defense outside the home, is it constitutional to prohibit law-abiding citizens’ possession and carrying of loaded weapons in motor vehicles while on National Park Service land?

We can see, right off the bat, that the central question in both cases is the same. Does the right exist outside of the home.

That is the question being asked in all of the carry cases that are now proceeding at the federal district court level (and some that have moved to the Circuit Courts).

From that point, the two cases diverge in what they want to achieve.

The way the question is asked in Williams, the Court does not have to even address the issue of permits, unless they want to. In Masciandaro, the Court will have to address the issue of "sensitive places," even if only briefly.

In both cases, the respondents chose not to respond to the petition for certiorari. Normally, that would be the end of the case(s) right there. In both cases, at least one Justice was interested and requested a response.

The cert stage is done in Williams. We have until Oct 11th to see how the US Government responds to Masciandaro.

The odds are quite good that the Court will take one of these cases. Should they grant cert in either (or both), we will know the outcome by late June, 2012.

 

[azmjs]

The issue after Heller and McDonald is whether upright citizens can be prevented from exercising a Constitutional right at the discretion of a government official.

This goes beyond "shall issue" and the 2nd Amendment. It is the major civil rights issue of our times and it should be supported by everyone who is not a fascist.

I don't think you have a very realistic mindset about this, and you're going to be disappointed.