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Now that Kavanaugh is confirmed as a SCOTUS justice what 2nd Amendment cases could come up next?

Discussion in 'Legal' started by Aim1, Oct 6, 2018.

  1. BSA1

    BSA1 Member

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    Justice Scalia left the possibly of banning entire class of firearms may be constitutional in Heller.
     
  2. AlexanderA
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    AlexanderA Member

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    Unfortunately yes. I have a lot of problems with what Scalia wrote in Heller. That case needs to be re-examined by a pro-2nd Amendment majority on the Court. A starting point would be returning to the rationale of the Miller case, where guns with a clear military purpose would be protected. The problem is that we still don't have a truly pro-2nd Amendment majority on the Court. They're likely just to reaffirm Heller, and that won't help us.
     
  3. BSA1

    BSA1 Member

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    Agreed. I have often posted that Heller is not as big of victory as the NRA wants us to believe.

    With Kennedy's retirement and Kavanaugh expected to be conservative that makes Chief Justice Roberts the swing vote. Roberts has shown himself not to be a reliable conservative and at times seems to be more concerned about his legacy.

    Despite reports of her failing health Ginsburg has made it clear that she will never retire. Breyer is 80. However I don't foresee him retiring while Trump is President to prevent another Conservative being appointed.

    I would like to see Miller revisited. It was a sham case that the Court should never have heard. (Miller could not present his case as he was in prison!)
     
  4. AlexanderA
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    AlexanderA Member

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    It's not that he's not a reliable conservative, it's that he's very concerned about the institutional standing of the Court. (And he should be, as Chief Justice.) To that end, he doesn't want the Court's decisions to stray too far from what he perceives to be overwhelming public opinion. That's why I'm worried that if he sees surveys that say that 75% of the public is in favor of assault weapons bans, he'll vote to uphold such bans.

    We definitely need one more pro-2nd Amendment Associate Justice.
     
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  5. Aim1

    Aim1 Member

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    I thought he passed away prior to the decision?
     
  6. AlexanderA
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    AlexanderA Member

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    He was murdered in prison. Miller, himself, was not very sympathetic as a RKBA test case.

    The principle of the case, poorly enunciated as it is, is what's important. That is, in order to be protected under the 2nd Amendment, weapons must be shown to have some reasonable relation to the military. Presumably, according to the reasoning of the case, if Miller had shown that a sawed-off shotgun was useful to the militia, his conviction under the NFA of '34 would have been thrown out.

    Or not. Realistically, the Court was not going to declare the NFA unconstitutional. It just so happened that the Court was given easy grounds and it could write a simplistic decision. Nevertheless, that simplistic decision has remained with us and can be cited as precedent in a future case. (Despite the fact that Scalia, in Heller, did his best to emasculate the Miller case.)
     
  7. gc70

    gc70 Member

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    Young v Hawaii seems like a promising SCOTUS candidate. The case involves Hawaii's refusal to give Young a license "to carry a loaded handgun in public, either concealed or openly." On 7/24/2018, a panel of the 9th Circuit Court of Appeals ruled "But, for better or for worse, the Second Amendment does protect a right to carry a firearm in public for self-defense."

    Young sets up an interesting clash with Peruta v San Diego, in which an en banc panel of the 9th Circuit ruled "there is no Second Amendment right for members of the general public to carry concealed firearms in public." In essence, Young says the 2A allows some manner of carry, and since Peruta says concealed carry is not protected, then open carry must be allowed.

    Interestingly, a response to a petition for an en banc review of Young is due tomorrow (10/9/2018).
     
  8. TTv2

    TTv2 Member

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    I believe you're referring to the phrase "reasonable restrictions" and I take from that a reasonable restriction isn't a ban on semi auto's, that's unreasonable, but more akin to a felon who has served his sentence cannot own a firearm. That in order for you to confirm you are not a prohibited person you have to fill out a form and do the instant background check via the FBI.

    AWB's, mag capacity laws, certain types of ammunition... they're not to be restricted because of 2A. SCOTUS just doesn't want to rule that NYC's de facto ban on handguns or Massachusetts requirement of a Firearm permit to own/buy a gun is unconstitutional because that's the status quo.
     
  9. AlexanderA
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    AlexanderA Member

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    As much as I wish that this were true, it's still an unsettled area of the law. I don't see the Supreme Court rushing into this.
     
  10. hdwhit

    hdwhit Member

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    Perhaps it is because the Supreme Court has't found a 2A case that requires their intervention.

    Since it only takes four (4) justices to grant certiorari, the fact there are currently four (4) "conservative" justices should suggest that the "conservatives" haven't seen any appeals that they believed worthy of their intervention. Adding a fifth "conservative" justice would not necessarily change that landscape.
     
  11. armoredman

    armoredman Member

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    Justice Thomas disagreed with that as he was very unhappy certain cases weren't granted cert. With Justice Kavanaugh that may change, but we have to wait until cases are submitted for cert.
     
  12. gc70

    gc70 Member

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    It takes four votes to grant certiorari, but five votes are needed to win a case. Neither the four conservatives or the four liberals might have been willing to take a case in which the critical fifth vote could have potentially gone to the other side.
     
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  13. cheygriz

    cheygriz Member

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    “Politics is the art of the possible, the attainable — the art of the next best”

    ― Otto von Bismarck

    Scalia got us the best deal that he could WIN with! I believe Kavanaugh will do the same.

    But they will not perform miracles. They can't get everything that WE want.

    As Bismarck said, "the art of the possible."
     
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  14. ilbob

    ilbob Member

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    It is not so much about when, but getting a case that enough justices are interested in. The court does have other issues to deal with, and I suspect they really want the lower courts do do most of the work on most things. It might take many years of legal wrangling in the lower courts before a body of legal work emerges that the court might be willing to sign onto.

    Personally, I think there are a lot of other issues that are just as important to deal with. Virtually all of our so called rights have become subject to arbitrary government curtailment.
     
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  15. Drail

    Drail Member

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    I just wish SCOTUS could stop ALL infringement of the 2nd Amendment once and for all. Get rid of the BATFE and the NFA and every law governing firearms. And then turn to the Dept. of Homeboy Security and the TSA. Of course with our Congress that will never happen. I love America but I am sick and tired of our Govt.
     
  16. MedWheeler

    MedWheeler Member

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    I'm curious how long it will take for recently-enacted state laws banning the sale of long guns to legal adults whose only crime is not having reached their 21st birthdays to come under SCOTUS scrutiny, or if they will even have to.
     
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  17. cheygriz

    cheygriz Member

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    If you know of a better one somewhere, please share it with the rest of us.
     
  18. Drail

    Drail Member

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    OK, you win.
     
  19. JTHunter

    JTHunter Member

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    That dichotomy is one of the reasons Judge Posner ruled that the total carry ban in Illinois was unconstitutional. Illinois has yet to learn that making it so costly to get said permits will have repercussions.
     
    Last edited by a moderator: Oct 13, 2018
  20. AlexanderA
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    AlexanderA Member

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    If the Supreme Court addresses carry permits first, then it might be content to let AWB's slide, thinking it has done enough on guns for a term or two. I think we should keep our powder dry, so to speak. AWB's have more far-reaching consequences than carry permits.
     
  21. hdwhit

    hdwhit Member

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    Good.

    It means he has been concerned with being "correct" on the law.
     
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  22. Tommygunn

    Tommygunn Member

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    Not .... necessarily .... true. Possibly, but not necessarily. Depends on your world-view.
     
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