Future of SCOTUS / 2A changed forever

[JSH1]

Nothing is forever. Judges are periodically replaced and no one knows when one will decided to step down or die. Back in 2008 people were saying Obama would nominating 4 judges, he ended up with 2. Also the balance of the court will only change if Trump replaces a liberal judge with a conservative one or vice versa. Of the 4 current judges born in the 1930's 2 are conservative and 2 are liberal.

Replacing Scalia with another conservative only doesn't change the court it just locks in the current balance for a little longer. Not to mention that Democrats may return the Republican's favor and refuse to confirm any judge Trump nominates. The court can have a maximum of 9 judges but only needs a minimum of 5.

 

[yokel]

I'm a big cheerleader for overturning the 1986 Hughes Amendment ban on machine guns, but the Supreme Court won't do it -- unless it's prepared to ignore Scalia's dicta in the Heller opinion (he explicitly said that machine guns could be banned). That just won't happen, no matter who is on the Court. In fact, I don't see the Court taking any gun cases for the foreseeable future.

The lifting of the ban will have to come legislatively (through NFA reform, attached to a budget reconciliation bill) or administratively (by declaring a series of 90-day amnesties, as authorized by the GCA).

Any future Court could easily ignore it, seeing that for the purposes of judicial precedent, ratio decidendi is binding, whereas obiter dicta are merely incidental remarks that establish no precedent.

 

[230RN]

Freakin' Latin. I don't recall any Latin in the highest law of the land. Unless I glossed over it with glazed eyes, but I don't think so.

I'm not signing this one so nobody will know who posted it.

 

[Tirod]

Anything the Courts decide Congress can overturn - or another administration can take advantage of by regulation, since Congress delegated most of their power to Agencies.

In this Administration soon to pass, regulatory precedence has been directed by the President, with some items by EO. Remains to be seen if that is reversed or used to provide relief over items. National Reciprocity or the Hearing Protection Act aren't going to happen without Congress, and what then results thru lawsuits brought by specific states Attorney General.

It will be the same Federal oversight as the current debacle over marijuana laws, which are an interesting parallel in legal terms. States pass laws stating the exercise of some activity is legal - like the incident in Kansas where a vendor chose to sell silencers under the color of Kansas law - but the Feds disagree. The new 4473 points that out with it's language about marijuana.

Both situations hinge on state's rights - but it's really a matter of the citizens rights under the Constitution. The state simply acted in our interest, so to speak (and depending on your view of things.)

How will the lower courts handle that? Consider that the current lower courts have had over 300 new appointees in the last 8 years. As suggested, once in place, the judge decides how they hold law. And judges have always liked to "correct" what they consider to be legislative overreach. That has happened and it's been in our favor, too.

What may be much more important is the way an entire generation of newer voters thinks - the aftermath of this election is considerably different than 8 years ago and reflects an mindset that is clearly out of step with interpreting social issues. That's not going away, and it's long term, too.

 

[yokel]

I don't understand how marijuana and gun laws can be readily compared, in light of the fact that one of them concerns a fundamental, enumerated and incorporated Constitutional right.

 

[wally]

Many Supreme Court appointees have not turned out the way those that nominated and confirmed them have expected Lifetime tenure has a way of inducing an independent streak.

Hasn't happened with any of the leftist judges! Let's hope Trump and his people do better due diligence than Reagan and Bush did.

 

[barnbwt]

I'm a big cheerleader for overturning the 1986 Hughes Amendment ban on machine guns, but the Supreme Court won't do it -- unless it's prepared to ignore Scalia's dicta in the Helleropinion (he explicitly said that machine guns could be banned).

Scalia's own supporting arguments don't comport with his stated reasonable restrictions like MG's and the like. Both the common use and unusual danger aspects do not apply to MGs in any reasonable examination. All a lawyer has to do is 1) articulate this in appealing for clarification, and 2) insist upon real, objective examination and not knee-jerk emotion for consideration of the weapons. When bump fires, shotguns, belt fed semi autos, and diesel tanker trucks are not considered especially dangerous to warrant bans, neither can machineguns, at least in the eyes of an informed, sober, jurist.

 

[AlexanderA]

Scalia's own supporting arguments don't comport with his stated reasonable restrictions like MG's and the like. Both the common use and unusual danger aspects do not apply to MGs in any reasonable examination. All a lawyer has to do is 1) articulate this in appealing for clarification, and 2) insist upon real, objective examination and not knee-jerk emotion for consideration of the weapons. When bump fires, shotguns, belt fed semi autos, and diesel tanker trucks are not considered especially dangerous to warrant bans, neither can machineguns, at least in the eyes of an informed, sober, jurist.

You would think so. But the conservative Justices don't want to "legislate from the bench," while the liberal ones are willing to do so, but in the wrong direction! The upshot is that the Court won't revisit the gun issue for many years. They are content to let the lower courts apply Scalia's "reasonable restrictions" -- banning whole categories of weapons, upholding "gun free zones," expanding definitions of "prohibited persons," etc., etc. Yes, we all know that Scalia's dicta are not precedent, they are not internally supported by his analysis, and so on. But in the absence of other controlling Supreme Court precedent, the lower courts hang on every word of the Heller opinion, especially if it comports with what they think the result should be. Very few sitting federal judges are sympathetic to gun owners, particularly machine gun owners. Even Scalia obviously had an animus against machine guns. And Gura, in his arguments before the Court in the Heller case, was happy to go along with that, if it got him the result that he wanted (overturning the District's handgun ban).

 

[ofitg]

The Heller decision makes reference to the 1939 Miller decision, but Scalia had to find some way to "wiggle around" the original 1939 finding that the court had not been provided with evidence showing that short-barreled shotguns were suitable for military/militia service (indeed, the "Miller Team" did not appear for the hearing). While the 1939 court reached its decision in the proper judicial manner - based upon the evidence presented - their conclusion was actually contrary to the truth.

In an apparent attempt to preserve the "legitimacy" of NFA'34, Scalia supplanted the original Miller finding with his own contrived interpretation - see page 53 in the Heller syllabus (page 56 of the PDF file) -

http://www.scotusblog.com/wp-content/uploads/2008/06/07-290.pdf

We therefore read Miller to say only that the Second Amendment does not protect those weapons not typically possessed by law-abiding citizens for lawful purposes, such as short-barreled shotguns.

...................................................................................................................

There is probably no way to determine how many law-abiding citizens owned short-barreled shotguns prior to 1934. Certainly, by 1939, that number had been dramatically reduced.

It appears to me that Heller has turned the Second Amendment into a "popularity contest". If there are roughly a quarter-million registered machineguns in circulation now (far less than one percent of privately-owned firearms), I would have to say that law-abiding citizens do not typically own machineguns.... period.

....

 

[yokel]

It appears to me that Heller has turned the Second Amendment into a "popularity contest". If there are roughly a quarter-million registered machineguns in circulation now (far less than one percent of privately-owned firearms), I would have to say that law-abiding citizens do not typically own machineguns.... period.....

What other individual rights listed in the Bill of Rights are interpreted that way?

We certainly can't abide any sort of farcical "popular" or "fashionable" test to be employed to make a judgment about whether something is acceptable.

 

[AlexanderA]

In an apparent attempt to preserve the "legitimacy" of NFA'34, Scalia supplanted the original Miller finding with his own contrived interpretation - see page 53 in the Heller syllabus (page 56 of the PDF file) -

http://www.scotusblog.com/wp-content/uploads/2008/06/07-290.pdf

We therefore read Miller to say only that the Second Amendment does not protect those weapons not typically possessed by law-abiding citizens for lawful purposes, such as short-barreled shotguns.

And this is where Scalia went wrong. The proper interpretation of Miller is that the 2nd Amendment protects all weapons typically possessed by militias, not only those typically possessed by civilians. (Of course, "militia" here means what it meant in 1791, that is, basically the entire body of the people capable of bearing arms.) I believe that the result in Miller would have been different, if the weapon in question had been a Browning machine gun, rather than a sawed-off shotgun. The Court could not help but take judicial notice that a Browning machine gun was in common use by the military.

 

[yokel]

Alas, much has changed since 1791. The traditional militia system of the Founding Era fell into desuetude, and state-based militia organizations were eventually incorporated into the federal military structure. The nation’s military establishment has become vastly more powerful than 18th century armies. We still hear political rhetoric about federal tyranny, but Americans on the average do not fear the nation’s armed forces or believe that an armed populace could thwart those forces in battle. Furthermore, 18th century civilians routinely kept at home the very same weapons they would need if called to serve in the militia, while modern soldiers are equipped with weapons such as machine guns, grenade launchers, man-portable anti-tank and anti-aircraft guns and missile launchers, recoilless rifles, and mortars that differ significantly from those generally thought appropriate for civilian uses. Civilians no longer expect to use their household weapons for militia duty call up, although they still keep and bear arms to defend against street level criminals (as well as for hunting and other forms of recreation).

 

[Somewhere in NM]

The main thing I want from SCOTUS is a ruling that requires strict scrutiny https://en.wikipedia.org/wiki/Strict_scrutiny for 2A cases.

 

[AlexanderA]

Alas, much has changed since 1791.

That's very true, but originalist judges should look at the conceptual scheme of the militia as it existed in 1791, the year of adoption of the Amendment. Membership in the militia was universal (OK, that applied to able-bodied free white males between certain ages -- but these are small details). This is the "constitutional militia," or as the Founding Fathers described it, "the entire body of the people." The fact that the universality of the militia began to be eroded as early as the Militia Act of 1792, and that today's system is entirely different, should be irrelevant to the discussion.

The constitutional principle embodied in the 2nd Amendment is that the people, as a whole, should be armed and prepared to defend themselves and their political system, from enemies foreign and domestic. Obviously, to do this, they have to be armed with current military weapons. The 2nd Amendment has absolutely nothing to do with hunting or recreational uses.

If times have changed to the point where the people (individually and as a whole) should not be armed militarily, the remedy is to repeal the 2nd Amendment. Until that is done, the anti-gunners have to live with it. If this is "2nd Amendment absolutism," so be it.

 

[AlexanderA]

The main thing I want from SCOTUS is a ruling that requires strict scrutiny https://en.wikipedia.org/wiki/Strict_scrutiny for 2A cases.

Since we're getting technical, the "incorporation" of the 2nd Amendment under the 14th, in McDonald v. Chicago, should have been done under the "privileges and immunities" clause rather than as "substantive due process." Justice Thomas was the sole voice that would have done this, as explained in his concurring opinion. The Court should have taken the opportunity to overrule the Slaughter House cases.

 

[yokel]

The constitutional principle embodied in the 2nd Amendment is that the people, as a whole, should be armed and prepared to defend themselves and their political system, from enemies foreign and domestic. Obviously, to do this, they have to be armed with current military weapons. The 2nd Amendment has absolutely nothing to do with hunting or recreational uses.

Justice Scalia's historical analysis in District of Columbia v. Heller made it abundantly clear that the Founding Fathers did anticipate lawful non-military uses such as personal defense and hunting.

If times have changed to the point where the people (individually and as a whole) should not be armed militarily, the remedy is to repeal the 2nd Amendment. Until that is done, the anti-gunners have to live with it. If this is "2nd Amendment absolutism," so be it.

Methinks that repeal is a nonstarter.

The ideal remedy would be to somehow resurrect the well regulated Militia, which had a vitally important moral purpose. By serving in the militia, a citizen said he was prepared to stand up for his country and his rights, even at the cost of his life. Militia service brought together people from disparate social backgrounds and reminded them of their shared citizenship. It also bred a familiarity with military matters that helped to dispel the mystique of professional soldiers, an otherwise potent political tool of the establishment.

 

[AlexanderA]

Justice Scalia's historical analysis in District of Columbia v. Heller made it abundantly clear that the Founding Fathers did anticipate lawful non-military uses such as personal defense and hunting.

Scalia was wrong in this, as he was in many other things in the Heller opinion. There was no need for a 2nd Amendment to enshrine personal defense and hunting, since these were simply givens in 18th century America. The right to keep and bear arms was first and foremost a political right. It was the way of preserving the ultimate power of the people.

 

[natman]

Scalia was wrong in this, as he was in many other things in the Heller opinion. There was no need for a 2nd Amendment to enshrine personal defense and hunting, since these were simply givens in 18th century America. The right to keep and bear arms was first and foremost a political right. It was the way of preserving the ultimate power of the people.

It doesn't have to be either / or. I agree that the Second is primarily a political right, with personal defense and hunting also under the umbrella.

 

[yokel]

There was no need for a 2nd Amendment to enshrine personal defense and hunting, since these were simply givens in 18th century America.

Similar state constitutional provisions from the era address the right to use firearms in personal defense and hunting.

 

[ofitg]

And this is where Scalia went wrong. The proper interpretation of Miller is that the 2nd Amendment protects all weapons typically possessed by militias, not only those typically possessed by civilians. (Of course, "militia" here means what it meant in 1791, that is, basically the entire body of the people capable of bearing arms.) I believe that the result in Miller would have been different, if the weapon in question had been a Browning machine gun, rather than a sawed-off shotgun. The Court could not help but take judicial notice that a Browning machine gun was in common use by the military.

It is interesting to review the Congressional hearings which led to NFA'34 -

https://docs.google.com/file/d/0B4x...NTQyLTk1N2ItMWRmMzI2MThjM2U3/edit?hl=en&pli=1

On page 13 of the transcript (page 17 of the PDF file), U.S. Attorney General Homer Cummings states that it would be unconstitutional to require owners of NFA weapons to register their guns.
On page 19 of the transcript (page 23 of the PDF file), he explains that the transfer tax would be instituted because outright prohibition would be unconstitutional.

A lot has changed since 1934.... but the language of the Second Amendment has not changed, neither did the intent of the country's founders. What changed was the federal establishment's willingness to comply with the Constitution.

 

[SSN Vet]

The very narrow Republican majority in the Senate needs to drop the nuclear option on day one.

60 votes for cloture is, imo, a violation of the Constitution, which is very careful to only require super-majorities in a few, well defined instances. The senate cloture rules have given the senate disproportionate influence and have hamstrung the legislative process as a result. It's gone on for far too long and needs to stop.

 

[AlexanderA]

On page 13 of the transcript (page 17 of the PDF file), U.S. Attorney General Homer Cummings states that it would be unconstitutional to require owners of NFA weapons to register their guns.
On page 19 of the transcript (page 23 of the PDF file), he explains that the transfer tax would be instituted because outright prohibition would be unconstitutional.

And these are things which could be cited in overturning the Hughes Amendment, which, as an outright ban, is clearly unconstitutional. But don't expect the judicial system to do this, because it's under the thrall of Scalia's dicta in the Heller case. It would be easier for Congress to legislatively repeal Hughes, as part of a wide-ranging NFA reform. But the whole issue would have to be explained in a logical, reasonable way. And it would take first-class legislative tacticians to shepherd it through the process. Is the NRA-ILA up to this task?

 

[AlexanderA]

The very narrow Republican majority in the Senate needs to drop the nuclear option on day one.

60 votes for cloture is, imo, a violation of the Constitution, which is very careful to only require super-majorities in a few, well defined instances. The senate cloture rules have given the senate disproportionate influence and have hamstrung the legislative process as a result. It's gone on for far too long and needs to stop.

I agree completely. But Sen. Orrin Hatch, the president pro tem of the Senate, chairman of the Finance Committee, and former chairman of the Judiciary Committee, has already announced that he will vote against any change in the filibuster rules. (His rationale is that he wants to preserve the rights of the Republicans, if and when they are again in the minority.) That means that any legislation in the coming session will require 60 votes in the Senate, unless it's covered under the streamlined budget reconciliation procedure. (BTW, anything having to do with NFA reform can come under budget reconciliation, while nationwide concealed-carry reciprocity cannot. That's because the NFA is basically a tax law.)

 

[ofitg]

And these are things which could be cited in overturning the Hughes Amendment, which, as an outright ban, is clearly unconstitutional. But don't expect the judicial system to do this, because it's under the thrall of Scalia's dicta in the Heller case. It would be easier for Congress to legislatively repeal Hughes, as part of a wide-ranging NFA reform. But the whole issue would have to be explained in a logical, reasonable way. And it would take first-class legislative tacticians to shepherd it through the process. Is the NRA-ILA up to this task?

“Repealing the machine gun ban amendment tacked on to the McClure-Volkmer bill will be a high priority.”

- Wayne LaPierre, 1986

...

 

[Carl N. Brown]

Repeal of the Hughes Amendment will require going beyond just the courts and should not be attempted only through the courts. Freeing the NFA registry for new civilian machinegun registrations will probably be resisted by the rich professionals who invested in skyrocketing prices on collectible machineguns brought about by the 19 May 1986 Hughes Amendment freeze. And talk of re-opening the machinegun registry would be exploited and misrepresented by the gun control crowd.

From 1934 to 1986, there was no criminal use of NFA registered machineguns by civilian owners and one homicide by a crooked cop involved in drug dealing using a registered machinegun. In 1986 the Hughes Amendment froze the registry to new civilian-eligible machinegun. Since then, there have been no crimes with civilian registered machine guns, which is cited as a "success" by gun control advocates, even though there are a couple hundred thousands registered. But there have been hundreds of machinegun crimes with smuggled MGs or MGs stolen from police or military or MGs manufactured by underground groups like CSAL. Which to me demonstrates the futility of the Hughes Amendment. They restricted legal guns and their owners, because they cannot control illegal guns and criminal users. Proposals to re-open the NFA MG registry will be met with full tilt boogie propaganda campaigns about flooding the streets with weapons of war and rivers of blood.

I don't think Hughes should be repealed through a court campaign. It could be repealed legislatively with public education on the nature of the NFA registry and the history of legal machinegun ownership and the ineffectiveness of restrictions on the law-abiding in controlling bad behavior by bad people. We ought to study why and how the Maryland and New York ballistic fingerprint databases were repealed.

To be real about it: a lot of the public are willing to put up with unconstitutional infringement on free speech, right to keep and bear arms, search and seizure, due process, unusual punishment because they think it makes them safer when it does not.