SCOTUS considering Bianchi v Frosh/Duncan v Bonta the turning point for AW/magazine ban?

Discussion in 'General Gun Discussions' started by LiveLife, May 8, 2022.

  1. LiveLife

    LiveLife Member

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    I am reading the ruling - https://www.supremecourt.gov/opinions/21pdf/20-843_7j80.pdf

    I am sure this ruling will receive detailed and comprehensive analysis by many and these are just my initial takeaways as I await analysis by others:

    1. Chief justice Roberts sided for 2A/gun rights in the 6/3 decision - To me this is quite significant and positive development as turning point from Supreme Court not agreeing to hear 2A/gun rights cases in recent past and perhaps an indicator for how the Supreme Court may rule other gun rights cases currently on hold.

    2. Justice Kavanaugh concurred that 2A not only applies to self defense at home for possession of arms as expressed in Heller but now applies to outside of home for self-defense to carry arms.

    The Court has held that “individual self-defense is ‘the central component’ of the Second Amendment right.” McDonald, 561 U. S., at 767 (quoting Heller, 554 U. S., at 599). New York’s law is inconsistent with the Second Amendment right to possess and carry handguns for self-defense.
    3. Justice Alito concurred and reaffirmed that 2A applied to "the people", not just militia members:

    In District of Columbia v. Heller ... the Court concluded that the Second Amendment protects the right to keep a handgun in the home for self-defense. Heller found that the Amendment codified a preexisting right and that this right was regarded at the time of the Amendment’s adoption as rooted in “the natural right of resistance and self-preservation.” ... is “central to the Second Amendment right.”

    ... Although Heller concerned the possession of a handgun in the home, the key point that we decided was that “the people,” not just members of the “militia,” have the right to use a firearm to defend themselves. [Note "firearm" is used instead of "handgun"]​
     
    Last edited: Jun 23, 2022
  2. stillquietvoice
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    stillquietvoice Contributing Member

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    I'm curious @LiveLife, do yiy think yhat this decision would apply to Illinois foid card.
     
  3. Shanvanvocht

    Shanvanvocht Member

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    Unlikely. Today's decision does not invalidate permits per se, just capricious denial due to ambiguous requirements.
     
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  4. LiveLife

    LiveLife Member

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    Even with today's SCOTUS ruling, states can still pass laws to limit who/where firearm carry is allowed.
     
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  5. kwguy

    kwguy Member

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    Defining all of these firearms types and magazines limits, and all the “technical” stuff of what is protected or allowed will limit us in the future, and when the technology of “arms” progresses beyond what we have now, we will truly be “limited to muskets” so to speak, because unlike the founders, who wisely did not define “arms”, we ARE doing so, and a by product of that is limiting ourselves. In the future.
     
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  6. LiveLife

    LiveLife Member

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    You can bet efforts at state level have already started even as we read the ruling but instead of worrying about that, we should at least take a moment to embrace this ruling as tomorrow will more than likely bring "fallout" of today's ruling en force by the antis.
     
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  7. Mark_Mark
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    Mark_Mark Contributing Member

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    oooh yeah! Washington will out law murder next! Fallout … here it comes … out AG already talking about banning something
     
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  8. LiveLife

    LiveLife Member

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    Continued from post #101 - https://www.thehighroad.org/index.php?threads/scotus-considering-bianchi-v-frosh-duncan-v-bonta-the-turning-point-for-aw-magazine-ban.905531/page-5#post-12334186

    More takeaways from the ruling ...

    4. Justice Thomas references Caetano v. Massachusetts to reaffirm 2A protection applies to "modern" types of arms just as First Amendment "adapted" to protect modern forms of communications (Pages 18-19). [And I hope this will lead us to Bianchi v Frosh (MD assault weapon case), Duncan v Bonta (CA magazine ban case), and ANJRPC v. Grewal (NJ magazine ban case) to include "modern" types of arms under 2A protection ... And courts have already ruled magazines are "arms"]

    ... dramatic technological changes may require a more nuanced approach ... Fortunately, the Founders created a Constitution—and a Second Amendment— “intended to endure for ages to come, and consequently, to be adapted ... We have already recognized in Heller ... reference to “arms” does not apply “only [to] those arms in existence in the 18th century.”

    “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.” ... general definition covers modern instruments that facilitate armed self-defense.

    Much like we use history to determine which modern “arms” are protected by the Second Amendment, so too does history guide our consideration of modern regulations that were unimaginable at the founding. When confronting such present-day firearm regulations, this historical inquiry that courts must conduct will often involve reasoning by analogy—a commonplace task for any lawyer or judge.
    5. Justice Thomas states Second Amendment is not a second class right but first class right just like First Amendment of free speech. (Page 62)

    The constitutional right to bear arms in public for self-defense is not “a second-class right, subject to an entirely different body of rules than the other Bill of Rights guarantees.” We know of no other constitutional right that an individual may exercise only after demonstrating to government officers some special need. That is not how the First Amendment works when it comes to unpopular speech or the free exercise of religion. It is not how the Sixth Amendment works when it comes to a defendant’s right to confront the witnesses against him. And it is not how the Second Amendment works when it comes to public carry for self-defense.​
     
    Last edited: Jun 24, 2022
  9. LiveLife

    LiveLife Member

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    Breakdown of landmark Supreme Court ruling in the NYSRPA v. Bruen (New York concealed carry case) by an attorney.

    This decision is a major victory for Second Amendment rights and set the framework for future wins!
    https://rumble.com/v19mf7s-supreme-court-6-3-concealed-carry-decision-changes-everything-nysrpa-v.-bru.html
    • Huge win for Second Amendment
    • Case ruling will influence other 2A cases
    • "Two-step" approach struck down and all the cases by different states are now open to challenge (Two-step approach first looks at constitutional text and history to see whether a regulation comes under the 2A and then, if it does, looks at the government’s justification for the restriction)
    • Burden now falls on the states to prove why "shall issue" needs to be limited
    • NY's license scheme is unconstitutional ... NY's proper cause requirement violates the 14th Amendment of "ordinary" citizens' RKBA in public for self-defense
    • Consistent with Heller and McDonald, Second and Fourteenth Amendments protect individual's right to carry handguns outside of home
    • 6 "may issue" states lack the historic context to justify "proper cause" and court found them unconstitutional
    • Justice Thomas concluded constitutional right to bear arms in public for self-defense is not a "second class right" ... First Amendment does not work like this for freedom of speech/religion nor the Sixth Amendment
    • NY's claim of "sensitive places" lacks merit just because a place is crowded and protected by police department and court rejected NY's argument for "sensitive places" of 50 or more people as court found no historic basis
    • "May issue" not allowed moving forward
    • Case ruling will affect other 2A/gun rights cases moving forward
    • Happy birthday justice Thomas! (June 23rd :D)
     
    Last edited: Jun 24, 2022
  10. LiveLife

    LiveLife Member

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  11. stillquietvoice
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    stillquietvoice Contributing Member

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    Red flag laws, at least in NY, violate the 6th as the accused does nor get to confront the witness against them. Often the accused doesn't even know they were accused until Leo shows up to confiscate their guns. Then the accused has to prove that they are not a threat of any kind to get their guns back, a process that can take months.
     
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  12. AlexanderA
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    AlexanderA Member

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    Yes, but he also wrote:
    As Justice Scalia wrote in his opinion for
    the Court in Heller, and Justice Alito reiterated in
    relevant part in the principal opinion in McDonald:
    “Like most rights, the right secured by the Second
    Amendment is not unlimited. From Blackstone
    through the 19th-century cases, commentators and
    courts routinely explained that the right was not a
    right to keep and carry any weapon whatsoever in any
    manner whatsoever and for whatever purpose. . . ."
    Yes, but he also wrote:
    That is all we decide. Our holding decides nothing about
    who may lawfully possess a firearm or the requirements
    that must be met to buy a gun. Nor does it decide anything
    about the kinds of weapons that people may possess. Nor
    have we disturbed anything that we said in Heller or
    McDonald v. Chicago, 561 U. S. 742 (2010), about
    restrictions that may be imposed on the possession or
    carrying of guns.
    These comments are highly relevant for future "assault weapon" ban and magazine-limit cases. When you add the three Justices that signed on to these concurrences (Alito, Kavanaugh, and Roberts) to the three liberal Justices, overturning such bans is certainly not a slam-dunk.
     
  13. N555

    N555 Member

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    So "they are too dangerous to have a gun" but "not dangerous enough to lock up" and somehow taking their guns away no longer makes them a danger to society?
    And they can still have knives, hammers, drive a car, buy an unlimited amounts of gasoline, pool chemicals, fireworks, pressure cookers, flares ect?
    Yeah this sounds like a person injury attorneys dreams of living life like a rap video about to come true.
    So what's going to happen is the state is going to enter into public record how dangerous and disturbed some individual is. Take that individuals guns, the state attorney general and the local police are going to pat each other on the the bottom softly and lovingly for a job well done, mark everyone as safe. That will drive the disturbed individual over the edge and they will still do something that harms lots of people and the state will be liable, because they knew how dangerous this person was.
    The road to hell is paved with good intentions.
     
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  14. Mark_Mark
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    Mark_Mark Contributing Member

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    Red Flag law will be abused by tyrants as permission. I hope you LEO remember that “you” can be the tyrant you fought against. I hope Supreme Court of the United States of America, reviews Red Flag Laws
     
  15. F-111 John

    F-111 John Member

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    But Justice Thomas wrote:

    In sum, the Courts of Appeals’ second step is inconsistent with Heller’s historical approach and its rejection of means-end scrutiny. We reiterate that the standard for applying the Second Amendment is as follows: When the Second Amendment’s plain text covers an individual’s conduct, the Constitution presumptively protects that conduct. The government must then justify its regulation by demonstrating that it is consistent with the Nation’s historical tradition of firearm regulation. Only then may a court conclude that the individual’s conduct falls outside the Second Amendment’s “unqualified command.”
    Which says to me that this is an order to lower courts that large capacity magazines and certain semi-automatic rifles are presumptively constitutional, unless and until the historical record shows a tradition of limiting magazine capacities or banning rifles with certain cosmetic or functional qualities.

    And if one wishes to bring up the 1994 Assault Weapons Ban as historical precedent, Justice Thomas also wrote:

    If the last decade of Second Amendment litigation has taught this Court anything, it is that federal courts tasked with making such difficult empirical judgments regarding firearm regulations under the banner of “intermediate scrutiny” often defer to the determinations of legislatures. But while that judicial deference to legislative interest balancing is understandable—and, elsewhere, appropriate—it is not deference that the Constitution demands here. The Second Amendment “is the very product of an interest balancing by the people” and it “surely elevates above all other interests the right of law-abiding, responsible citizens to use arms” for self-defense. Heller, 554 U. S., at 635. It is this balance—struck by the traditions of the American people—that demands our unqualified deference.
     
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  16. CoalTrain49

    CoalTrain49 Member

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    WA (the state) already has stricter gun control than anything in this bill. We have a 10 day waiting period, an enhanced BC, 21 to purchase and red flag (ERPO) provisions in state law already. Bob Furguson talks about more gun control all the time, nothing new there. It's his claim to fame.
     
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  17. natman

    natman Member

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    Heller made it crystal clear that weapons "in common use for lawful purposes" are protected by the Second. AR-15s are certainly in common use for lawful purposes. Magazines over 10 rounds are in common use for lawful purposes.

    What's really encouraging is Thomas' denial of the "two-step" process, which has been the basis of several cases upholding AW bans.
     
  18. Mark_Mark
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    Mark_Mark Contributing Member

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    yeah, every state out west had a Bob Furguson. Few more years and I’m out!
     
  19. AlexanderA
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    AlexanderA Member

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    I don't like the "in common use" test. Machine guns are not "in common use" (thanks to the NFA of 1934), and yet they, and other "weapons of war" are precisely the kinds of things that should be protected by the 2nd Amendment.

    The test should be "in common use among the military."
     
  20. LiveLife

    LiveLife Member

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    The way I take "in common use" is that as stated by justice Thomas, just as modern forms of communication "in common use" like email/texting/online forum are protected by the First Amendment to exercise free speech/religion, modern types of arms "in common use" such as semi-auto magazine fed pistols/carbines/rifles are protected by the Second Amendment to exercise self-defense at home and out in public. ;)

    And the Second Amendment is not a "second class right", and to be treated as same as the First Amendment. :thumbup:
     
    Last edited: Jun 24, 2022
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  21. natman

    natman Member

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    You raise a good point; there is a weakness in the common use test in that some weapons are not in common use because of legislative roadblocks. This creates a circular argument when addressing the constitutionality of such a roadblock; the law that bans the weapon is the reason it's not in common use. A law can't create it's own constitutional basis.

    However, this issue does not apply to so-called "assault weapons". They ARE in common use and any sane application of the common use test gives them Second Amendment protection.
     
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  22. Insignificant bill

    Insignificant bill Member

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    Actually you do. Basically as long as you don't physically harm another person or their property it supposed to be allowed.
     
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  23. Jim Watson

    Jim Watson Member

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    Is that one of those penumbra things like abortion? 'Cause unlike guns, it sure isn't enumerated.
     
  24. Insignificant bill

    Insignificant bill Member

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    Abortion harms another person. Drug prohibition is just like alcohol prohibition and they had to pass a Constitutional amendment to do it.
     
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  25. kwguy

    kwguy Member

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    The 9th amendment is the “catch all” to ensure that rights are not limited to those that are actually listed in the constitution.

    Amendment IX
    The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.
     
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