Vermont Supreme Court upholds historic gun control law - High capacity magazines

SCOTUS is not inevitable, as that court may and usually does deny cert.
Be careful what you wish for, as a case with bad facts can do more harm than good, even though some members view the Constitution differently than others. The Vermont case, according to one account I have read, involved a white supremacist likely caught in the act of some unsavory activities, so may not be the best poster child for the cause.

 

A reminder is apparently in order that political discussions are frowned upon here at THR.

 

What is against the rules in non 2A politics. What violates the rule everyone agreed to when they signed up was getting outside of that agreement. The problem is that people want to rant and expand their gripe more broadly than the scope of THR.

 

What our Constitution means and how it applies has been a matter for dispute almost as soon as the ink was dry. Hylton v. United States in 1796 appears to be the first major litigation involving a question of the interpretation and application of the Constitution. Then came Marbury v. Madison decided in 1803; and McCulloch v. Maryland was decided 10 years later, in 1813.

In the real world the Founding Fathers assigned the role of deciding what the Constitution means and how it applies to the federal courts (Article III, Sections 1 and 2):

The exercise of judicial power and the deciding of cases arising under the Constitution necessarily involves interpreting and applying the Constitution to the circumstances of the matter in controversy in order to decide the dispute. Many of the Founding Fathers were lawyers and well understood what the exercise of judicial power meant and entailed.

Thus if there is disagreement about whether a statute enacted by Congress applies to decide a controversy or the application of the statute is barred by the Constitution, the matter is one within the province of the federal courts to decide. As the Supreme Court ruled back in 1803 (Marbury v. Madison, 5 U.S. 137, 2 L. Ed. 60, 1 Cranch 137 (1803), 1 Cranch at 177 -- 178):

It's well settled law that under certain circumstance and to some extent a constitutionally protected right may be regulated. What those circumstance might be and the nature and extent of permissible regulation will be worked out by the courts. To do so, a court will consider, among other things, the nature of the right, the nature of the regulation, and the governmental purpose intended to be served.

For the purposes of illustration, let's consider the regulation of rights protected by the First Amendment. While the First Amendment protects freedom of speech, assembly and religion against laws that abridge those rights we know there has been a history of certain regulation of speech, assembly and religion. A few examples are:

• Laws prohibiting such things as false advertising, fraud or misrepresentation, as well as laws requiring certain disclosures in connection with various transactions, would absolutely survive a challenge to their validity on Constitutional grounds even though such laws do impinge on the freedom of speech.
  
  
• If you are offering securities or certain other types of investments to the public, your written solicitation materials will have to first be approved prior to use by one or more regulatory agencies. If you are selling medicines in interstate commerce, your labeling will have to be approved in advance by the FDA, and you will have to have demonstrated, through hard, scientific data, that any claims or representations made are true. These are also laws that abridge freedom of speech, and yet they are regularly enforced.
  
  
• Laws respecting the time, place and manner of speech or assembly have also survived Constitutional challenges. Thus a municipality may require that organizers obtain a permit in order to hold an assembly or a parade and may prohibit such activities during, for example, the very early morning hours. See, for example:
  
  
  • Hill v Colorado, 530 U.S. 703, 120 S.Ct. 2480, 147 L.Ed.2d 597 (2000), in which the Court, in upholding a Colorado law restricting protesting, educational or counseling activities within 100 feet of the entrance to a health facility, noted:
    
    
    • Cf. McCullen v. Coakley (U. S. Supreme Court, No. 12–1168, 2014)
      
      
      
    • In McCullen the Court struck down a new Massachusetts "buffer zone" law. As noted in the opinion the Court had previously sustained a different sort of buffer zone law in Colorado, and nothing in McCullen casts any doubt on the continued validity of the Colorado law (McCullen, slip opinion at 2):
    
    
    
  • Santa Monica Food Not Bombs v. Santa Monica, 450 F.3d 1022 (9th Cir., 2006) in which the court upheld a Santa Monica ordinance requiring a permit for public assemblies. In fact in Santa Monica Food Not Bombs the court specifically acknowledges that the ordinance may burden the protected right, noting, at pg 1038:
  
  
• In the leading case on prior restraint (Near v. State of Minnesota Olson, 283 U.S. 697, 51 S.Ct. 625, 75 L.Ed. 1357 (1931)) the Court in striking down a Minnesota statute allowing for the abatement, as a public nuisance, of malicious, scandalous and defamatory news analyzed in considerable detail and depth the scope and extent of the infringement of the freedom of press, the interests served and the availability of other and narrower remedies. And the Court then reached the conclusion that the statute went too far to be a permissible regulation.
  
  But nonetheless the Court also noted that certain interests, under certain circumstances would justify even prior restraint (Near, 283 U. S. 657, at 715 - 716):
  
  
• In the past, laws prohibiting polygamy have been upheld against challenges that they violate the right to free exercise of religion (Davis v. Beason, 133 U.S. 333, 10 S.Ct. 299, 33 L.Ed. 637 (1890)).

So in fact the reality is that rights protected by the Constitution may nonetheless be subject to some limited regulation. The foregoing discussion of First Amendment jurisprudence serves the limited purpose of demonstrating that the courts do permit limited regulation of a constitutionally protected right. There are numerous examples of laws sustained by the courts which abridge freedom of speech, freedom of assembly, freedom of association, and freedom of religion. And First Amendment jurisprudence also offers some clues as to how such regulations will be evaluated by the courts.

We can not expect, nor will we see, perfect correspondence between the regulation of rights protected by the First Amendment and the regulation of rights protected by the Second Amendment. First Amendment jurisprudence is quite mature at this point, but Second Amendment jurisprudence, in the wake of Heller, is in its infancy. However, we can expect some regulation of Second Amendment rights to be upheld by the courts.

 

So you claim to know the one, true meaning of the Constitution; and anyone who disagrees with your interpretation is wrong? In other words, you favor tyranny, as long as it's your brand of tyranny.

On the other hand, in the words of two of our Founding Fathers:

• Madison in Federalist 39:
• Hamilton in Federalist 78:

In our system the people, all citizens, do have a say.

• The Founding Fathers well understood how people do disagree and how politics works. They were active, mostly successfully, in the commercial and political world of the time. Almost all were very well educated. They were generally politically savvy. Many were members at various times of their home colonial assemblies or were otherwise active in local government or administration. They were solidly grounded in the real world and knew how to make things work in the real world. That is why they were able to bring our nation into being.
  
  
• But we live in a pluralistic, political society, and not everyone thinks as you do. People have varying beliefs, values, needs, wants and fears. People have differing views on the proper role of government. So while you and those who share your views may use the tools the Constitution, our laws and our system give you to promote your vision of how things should be, others may and will be using those same tools to promote their visions.
  
  
• The Constitution, our laws, and our system give you resources and remedies. You can associate with others who think as you do and exercise what political power that association gives you to influence legislation. You have the opportunity to try to join with enough other people to enable you to elect legislators and other public officials who you think will be more attuned to your interests. And others who believe differently have the same opportunities.
  
  
• So if you want things to be different, by all means, get politically active and try to marshal sufficient political power to change things. But of course that doesn't guarantee that you will get your way. People who think that things should be different from the way you think things should be also have a say. If you don't believe that they do, you believe in tyranny -- as long as it's your tyranny.

The reality is that our Constitution has served as a governing document of this republic for over 200 years. We've survived a panoply of travails, including civil war, economic ups and downs, an assortment of lousy elected officials, and some really lousy laws (like Prohibition) -- and yet we endure. From The Wall Street Journal, "The Culture That Sustains America’s Constitution", 2 July 2018: