Gun-rights advocates will challenge Md. assault-weapons ban in U.S. Supreme Court - RISK?

[Aim1]

Is this a risky move to make without Gorsuch on the court?




http://thedailyrecord.com/2017/03/1...enge-md-assault-weapons-ban-in-supreme-court/

Gun-rights advocates will challenge Md. assault-weapons ban in Supreme Court

By: Steve Lash Daily Record Legal Affairs Writer March 10, 2017

Gun-rights advocates will urge the U.S. Supreme Court to strike down as unconstitutional Maryland’s ban on military assault-style weapons.

 

[George Dickel]

With four liberals, three conservatives and one fence sitter, I believe a good comparison would be a snowball's chance in hell. The best is it being kicked back to a lower court.

 

[Mike OTDP]

It'll take time...plenty enough to get Gorsuch confirmed. But I don't think we get heard until we have five sure votes.

 

[GEM]

This has been discussed in other places. IMHO, it is a big mistake. The most likely outcomes are that they won't take it. That has happened before and thus reinforces the meme that such bans are just fine constitutionally. That's been said by antigun folks with fervor after the other lower court decisions! Even more horrifically, the 'conservative' justices just might think it is just dandy. There is not guarantee that a bunch of ivy league lawyers (even if conservative) appreciate the issue. They may buy into a SW Model 10 to shoot a burglar but an EBR - that's only for nuts. Even with a new guy - there is no guarantee that he could swing the court to abolish such. Scalia and Thomas certainly didn't as they couldn't get the court to take up previous challenges.

You would have to get more, overtly progun justices. Is this proposed new guy one? Who knows? NRA says he is progun but is that a Model 10 and shotgun in the closet vs. a full appreciation of gun rights?

The Heller decision had very negative unintended consequences. It was praised as the start of golden age. Well, it wasn't and Scalia was supposed to be our great friend. Later, when the issues raised here came up, Thomas and Scalia were left out to dry by the other 'conservatives'.

There are NOT five sure votes now or in the immediate future.

 

[jdc1244]

It'll take time...plenty enough to get Gorsuch confirmed. But I don't think we get heard until we have five sure votes.

It won't be heard until a Federal appeals court strikes down a measure similar to Maryland's FSA, regardless who might be on the Court.

 

[alsaqr]

Since the MacDonald and Heller decisions the SCOTUs has failed to grant cert in several appeals including the NY SAFE Act. When that happens the appeals court decision stands.

http://buffalonews.com/2016/06/20/supreme-court-refuses-to-hear-challenge-to-new-yorks-safe-act/

 

[jdc1244]

The Supreme Court will likely not hear a weapons ban case for the same reason it declined in 2014 to hear a case prohibiting same-sex couples from marrying:

The court did not explain why it was not taking up the issue. Among the possibilities are that a majority believes it would be premature to intervene and wants to see more lower court action, or that on this deeply polarized court neither the liberals nor the conservatives could be certain of how the issue would resolved and did not want to risk forcing a national precedent now.
[...]
In order for the Supreme Court to hear a case, at least four of the nine justices must vote to hear it.

http://www.reuters.com/article/us-usa-court-gaymarriage-idUSKCN0HV19020141006

Likewise, the Court might wish to wait to see how other appellate courts rule, allow the issue to ripen, avoiding establishing a National precedent with regard to the regulation of AR- and AK-platform rifles.

 

[herrwalther]

I doubt SCOTUS will hear a 2A related case for awhile. With the latest high profile cases such as Heller and McDonald, it is probable most of the justices on the court believe the matter is largely "settled" enough for lower courts to make rulings without their guidance.

 

[natman]

From the 4th's decision:

That is, we are convinced that the banned assault weapons and large-capacity magazines are among those arms that are “like” “M-16 rifles” — “weapons that are most useful in military service” —which the Heller Court singled out as being beyond the Second Amendment’s reach. See 554 U.S. at 627 (rejecting the notion that the Second Amendment safeguards “M-16 rifles and the like”).

Here's what Heller actually says:

It may be objected that if weapons that are most useful in military service—M-16 rifles and the like—may be banned, then the Second Amendment right is completely detached from the prefatory clause. But as we have said, the conception of the militia at the time of the Second Amendment’s ratification was the body of all citizens capable of military service, who would bring the sorts of lawful weapons that they possessed at home to militia duty.

Note that the first sentence presents a hypothetical objection and the second sentence refutes it. The 4th has seen fit to take selected words from the first sentence completely out of context and twist them 180 degrees from Heller's actual position on the definition of the meaning of the word "arms":

“Before addressing the verbs “keep” and “bear,” we interpret their object: “Arms.” The 18th-century meaning is no different from the meaning today. The 1773 edition of Samuel Johnson’s dictionary defined “arms” as “weapons of offence, or armour of defence.”

“Although one founding-era thesaurus limited “arms” (as opposed to “weapons”) to “instruments of offence generally made use of in war,” even that source stated that all firearms constituted “arms.”

“Some have made the argument, bordering on the frivolous, that only those arms in existence in the 18th century are protected by the Second Amendment. We do not interpret constitutional rights that way. Just as the First Amendment protects modern forms of communications,…and the Fourth Amendment applies to modern forms of search, …the Second Amendment extends, prima facie, to all instruments that constitute bearable arms, even those that were not in existence at the time of the founding.

DC v Heller, pages 7-8

It wouldn't surprise me if SCOTUS sends this back for reconsideration without even hearing the case via a per curiam opinion, just as they did when the Massachusetts Supreme Court tried to use the "only muzzleloaders" argument in Caetano v. Massachusetts (2015). No matter how an individual Supreme Court justice may feel about the issue at hand, they simply can't allow lower courts to dump on Supreme Court decisions like this. Not if the word "Supreme" is going to mean anything.