Problems with Bruen

[GEM]

https://www.thetruthaboutguns.com/v...imi-decision-reveals-two-problems-with-bruen/

Fair number of progun folks are seeing problems with the historical rule and it is not such a genius move as originally or originallistically (LOL) thought.

…Rahimi exposes two different problems with Bruen: The first problem is that its command to courts to measure contemporary gun regulations by the yardstick of “historical analogues” yields a profoundly subjective test that will lead principled judges acting reasonably to reach diametrically opposed conclusions about the same laws. As Rahimi makes clear, whether a historical example is sufficiently “analogous” will almost always be in the eye of the beholder.

https://www.thetruthaboutguns.com/v...imi-decision-reveals-two-problems-with-bruen/

Never a fan of the rule. I was in favor of direct and clear statments on licensing, locals and bans. Not a procedural and ambiguous rabbit hole. Nor was remanding the 4 cases to scold the lower courts a good idea when they could have been decided if Scotus already knew the constitutionality of the issues. Similarly, not sustaining the TRO is NYS' CCIA challenges to respect the procedure of the lower courts while denying basic rights was similarly quite disappointing.

 

[lilguy]

MSM report on the decision and its effect follows the same thinking.
https://www.cbsnews.com/news/supreme-court-gun-laws-second-amendment/?ftag=CNM-16-10abd6g

Why the Supreme don’t just rule draconian controls unconstitutional is beyond my comprehension.

 

[JTHunter]

Why the Supreme don’t just rule draconian controls unconstitutional is beyond my comprehension.

Could that be because to do so might be bordering on the SC "making" legislation, which isn't their job?

 

[GEM]

That's the argument but history shows they do that when they feel like that. They certainly make their opinion known on social issues that they can't wait to get to them so they can act on their beliefs.

No one today thinks that they are not a political decision maker that acts as a super legislative body when it suits them or others they listen to.

Roberts keeps putting out that they are not political but other justices admit that they are. He's looking impotent and falls back on the not political, not legislating from the bench to save face.

 

[lilguy]

“That's the argument but history shows they do that when they feel like that. They certainly make their opinion known on social issues that they can't wait to get to them so they can act on their beliefs.”

Courts render opinions, not facts. The semantics are important. SCOTUS rules a certain medical procedure is protected under the constitution, in their majority Opinion. Along comes another mix on the same court
and their majority Opinion differs, no its not.
Opinions can change with the wind
facts are facts. The court legislates through opinion all the time, saying they will not strike down bad gun laws because the want stay above the legislative fray is a red herring on their part. Drives me nuts.

 

[RickD427]

MSM report on the decision and its effect follows the same thinking.
https://www.cbsnews.com/news/supreme-court-gun-laws-second-amendment/?ftag=CNM-16-10abd6g

Why the Supreme don’t just rule draconian controls unconstitutional is beyond my comprehension.

The courts only rule on the cases that are brought before them. Ain't no one yet brought a case that included "all draconian controls."

 

[GEM]

Instead of ruling, they at first didn't take cases and then returned 4 cases that they could have decided:
https://reason.com/2022/07/01/scotu...~:text=Bruen.,Maryland's "assault weapon" ban .

Since the outcome of the cases seem clear under Bruen, why the stall. Scolding the lower courts is a waste of time. Decisively deciding these cases would have moved us forward a great deal.

 

[GEM]

Why you shouldn't trust that if cases actually come to Scotus, they will be triumphs for the RKBA. There is a potential for supporting gun control.

https://www.nytimes.com/2023/02/12/opinion/gorsuch-barrett-kavanaugh-conservative.html

Justice Kavanaugh’s concurrence in Dobbs v. Jackson Women’s Health Organization, opining that states can’t bar their residents from traveling to other states to get abortions, effectively telegraphs how he plans to vote on that issue — and, at the very least, provides useful information for lawyers deciding whether and how to litigate cases about abortion and the right to travel. Similarly, in the landmark Second Amendment case of New York State Rifle & Pistol Association v. Bruen, Justice Kavanaugh wrote a concurrence, joined by only Chief Justice Roberts, emphasizing that states can still impose licensing requirements for firearms and a wide range of gun regulations — leaving open the possibility that the two will uphold gun laws that the other conservatives will not. The Kavanaugh concurrence should be carefully considered both by advocates handling Second Amendment cases before the court and state legislators trying to assess which gun laws might pass muster in the future.

Thus, behind the scenes, the remand of cases, the failure to support the CCIA TRO might indicate that the support for clear decisions is just not there. I recall that after Heller, Scalia and Thomas were thought to raring to go on new cases for the RKBA but it didn't happen. They were reduced to dissents while AWBs just rolled on on the state level. If Scotus doesn't quickly deal with the anti carry rules such as opt in - then carry will be useless across many states. It will become a red/blue state division.

I am not sanguine about decisions in near time that end the state level attacks and fear a change in court personnel could lead to longer term support for bans. History will be mined to negate Bruen or just overturned. Stare Decisis is meaningless nowadays.

 

[the_can]

Could that be because to do so might be bordering on the SC "making" legislation, which isn't their job?

Legislation and law are different though. The constitution is law. And that very much is their job.

 

[GEM]

The NY Times is antigun on the top editorial level. However, this is a fairly decent article on the confusion sown by Bruen's rule: https://www.nytimes.com/2023/02/27/nyregion/new-york-gun-rules-supreme-court.html

There was no reason for not having decisive opinions on the 4 cases remanded and Bruen. The lack of clarity of AWBs, sensitive places, etc. is not to be praised as a genius legal move by Clarence and company. The failure to not support the TROs in NYS because of some majesty of the court procedures is BS when rights are denied.