Win in SCOTUS today..

[RetiredUSNChief]

It is encouraging that the left-leaning justices at least appear willing to hold to Heller as valid precedent.

Perhaps Spats McGee or Frank Ettin could chime in on this, but it seems to me regardless of left or right leaning individual judges, what was brought up here was the fact that a lower COURT blatantly disregarded what the highest COURT said.

They didn't defy what any particular JUDGE on the highest court said...they defied what the COURT said.

The matter of individual judge stance after a case has been decided is over upon the final decision. Individual judge stance will come up again only with another case before the court for another decision.

 

[Frank Ettin]

It is encouraging that the left-leaning justices at least appear willing to hold to Heller as valid precedent.

Perhaps Spats McGee or Frank Ettin could chime in on this, but it seems to me regardless of left or right leaning individual judges, what was brought up here was the fact that a lower COURT blatantly disregarded what the highest COURT said.....

You've got it, Chief.

 

[IdahoSkies]

It's almost irrelevant that this case happens to be about the Second Amendment. The notion that the constitution applies only to 18th century technology is so preposterous that none of the SCOTUS judges are going to buy it. But the real issue here is the lesser court ignoring the crystal clear language on the subject supplied by Heller and in the process defying SCOTUS.

None of the Supremes are going to stand for that.

I think that was a major issue. I also think that for many of the more liberal justices the question of a living vs. originalist interpretation was at stake. This decision really says, the first amendment, (and the equal protection amendment) like the 2nd are not limited to the time that they were written.

This case put the liberal justices in a corner they had to 1) affirm the Court's authority in this blatent case of disregarding president; and 2) protect their current readings of the other amendments as well. If they held that the 2nd amendment was limited by time, it would open the door to interpreting the other amendments that way, and I think was much more important to them than whether or not someone in Massachusetts can possess a stun gun.

 

[Peter Gun]

Thanks as always for great analysis guys.
I would agree that the more liberal justices joined in the thrashing not just because of the "blatant" defiance of Heller, but equally important they would like to stamp down any idea that the constitution only applies to concepts known in the 18th century. That has obvious consequences for any liberal reform

 

[Spats McGee]

Perhaps Spats McGee or Frank Ettin could chime in on this, but it seems to me regardless of left or right leaning individual judges, what was brought up here was the fact that a lower COURT blatantly disregarded what the highest COURT said.

They didn't defy what any particular JUDGE on the highest court said...they defied what the COURT said.

The matter of individual judge stance after a case has been decided is over upon the final decision. Individual judge stance will come up again only with another case before the court for another decision.

I think you nailed it, Chief. What the Court said, over and over, can be paraphrased thus: "Did we stutter? We addressed this argument and rejected it in Heller, and you (SJC) took it upon yourselves to ignore us."

Nonetheless, I think there's some really good language for us in the concurring opinion.

The Supreme Judicial Court's holding that stun guns may be banned as “dangerous and unusual weapons” fares no better. As the per curiam opinion recognizes, this is a conjunctive test: A weapon may not be banned unless it is both dangerous and unusual.

Caetano v. Massachusetts, No. 14-10078, 2016 WL 1078932, at *4 (U.S. Mar. 21, 2016)

First, the relative dangerousness of a weapon is irrelevant when the weapon belongs to a class of arms commonly used for lawful purposes. See Heller, supra, at 627, 128 S.Ct. 2783 (contrasting “ ‘dangerous and unusual weapons' ” that may be banned with protected “weapons ... ‘in common use at the time’ ”). Second, even in cases where dangerousness might be relevant, the Supreme Judicial Court's test sweeps far too broadly. Heller defined the “Arms” covered by the Second Amendment to include “ ‘any thing that a man wears for his defence, or takes into his hands, or useth in wrath to cast at or strike another.’ ” 554 U.S., at 581, 128 S.Ct. 2783. Under the decision below, however, virtually every covered arm would qualify as “dangerous.”

Caetano v. Massachusetts, No. 14-10078, 2016 WL 1078932, at *4 (U.S. Mar. 21, 2016)

As the foregoing makes clear, the pertinent Second Amendment inquiry is whether stun guns are commonly possessed by law-abiding citizens for lawful purposes today.

Caetano v. Massachusetts, No. 14-10078, 2016 WL 1078932, at *6 (U.S. Mar. 21, 2016)

I expect for the above three passages to crop up in the next challenge to a state-level AWB.

 

[ATLDave]

I think the manner in which the MA court reached its decision is why the reversal was unanimous. If you want to uphold some kind of restriction, you need to say you're applying rational-basis or intermediate scrutiny, and then find that X [gun or practice or behavior] is super-duper scary, and therefore subject to regulation even though falling within the ambit of the 2nd amendment. Problem is, it's hard to do that with a straight face re: stun guns, so the MA court went with the now-discredited approach of simply reading things out of the 2nd amendment entirely.

 

[danez71]

I agree Spats.

I'll throw in this passage too.

The lower court’s ill treatment of Heller cannot stand. The reasoning of the Massachusetts court poses a gravethreat to the fundamental right of self-defense. The Supreme Judicial Court suggested that Caetano could have simply gotten a firearm to defend herself. 470 Mass., at 783, 26 N. E. 3d, at 695. But the right to bear other weapons is “no answer” to a ban on the possession of protected arms. Heller, 554 U. S., at 629

This was reaffirmed (for lack of a better term).

I'm not sure but it seems that it should be relevant to the PEÑA case in CA against the gun roster.

The ruling against the Plaintiff said, in part, that roster, with its unobtainable microstamping requirement, wasnt an infringement because there were still over 1000 hand guns on the roster.

But what do I know.... beside this this thread isn't about the PEÑA vs CA

 

[Spats McGee]

I have to put my tinfoil hat on and point out one other item:

If the fundamental right of self-defense does not protect Caetano, then the safety of all Americans is left to the mercy of state authorities who may be more concerned about disarming the people than about keeping them safe.

Caetano v. Massachusetts, No. 14-10078, 2016 WL 1078932, at *7 (U.S. Mar. 21, 2016)

Here's where my tinfoil hat comes in: The MSM has ridiculed gun owners for decades, told us that our tinfoil hats were on too tight, and trotted out every wild-eyed bozo who could do an interview without slobbering on the microphone in an attempt to discredit the idea that our government would *ever* want us disarmed. Two sitting United States Supreme Court Justices, both graduates of Yale Law School, have just admitted "state authorities . . . may be more concerned about disarming people than keeping them safe."

 

[Red Wind]

Now that Scalia is gone, Alito and Thomas are the go to guys for the RKBA. But like Mark Twain, I repeat myself.

 

[Ohio Gun Guy]

Heller was a BIG DEAL!

 

[Sebastian the Ibis]

8-0 looks mighty good!
Excellent!

I hesitate to get too excited about this for the sake of future RTKBA cases. This is not a true 8-0, it’s per curiam. So no justice’s name is attached to it, except for Alito & Thomas who filed the concurrence. All we really know is that a majority of the court (5 justices) signed onto the first two pages (only a majority is needed for a per curiam opinion). The vote may have been, 8-0, 7-1, or 6-2, but we don’t know that, and ambiguity as to the Court’s vote is likely part of reason this is per curiam.

While it is wonderful that there was at least one liberal vote (Breyer, Ginsberg, Sotomayor, or Kagan) for this case, we should note how narrow the opinion is. It does not expand the law, nor does it vacate Ms. Caetano’s conviction. The opinion does not find that stun guns are legal. It just says that the Massachusetts’s high court was wrong, and needs to try again. This was the bare minimum that could be done to reverse a lower court that ignored the specific language of a recent Supreme Court opinion. The Massachusetts Supreme Court was fairly egregious in ignoring Heller, so a 4-4 split allowing the Massachusetts decision to stand, would have likely spelled the end of Heller.

It is possible, indeed it is likely, that given Justice Scalia’s demise, the Court just wanted to get rid of this case. This case is similar to some other recent cases (i.e. Sturgeon v. Frost) where the Court similarly did not take a position other than saying the court below got it wrong and needs to try again. The difference between Sturgeon and Caetano, is that Caetano is per curiam. As a result of Caetano, no justice (other than Alito and Thomas) will contradict themselves by later saying that the RTKBA is a collective right and voting to undo Heller and McDonald. Merrick Garland or whomever Hillary (or Trump) appoints, may supply that 5th vote.

Also, just because the Supreme Court sent this case back, it does not mean that they will take it up again if the Massachusetts high court again rules against Ms. Caetano. The moldy washing machine cases are a recent example, the Supreme Court summarily reversed the 6th and 7th Circuits and sent the cases back for re-consideration. The 6th and 7th Circuits did the same exact thing again, and the Supreme Court did nothing. While this was a slightly different procedural context, it will suggest to Massachusetts that they can do the same thing again (albeit with a slightly tweaked justification) and the Supreme Court may let it slide, especially if there is a new 5th vote on the Court.

 

[Red Wind]

It doesn't matter. I reserve the right to get excited about ANY unanimous SCOTUS decision. It's immaterial to me how they arrived at the verdict!

Try to relax and be happy, Sebastian. You're out of the courtroom today. Go Canes!

 

[danez71]

UPDATE to this case

UPDATE to this case

https://www.washingtonpost.com/news...massachusetts-second-amendment-stun-gun-case/

In March, the Supreme Court unanimously reversed a Massachusetts high court decision that upheld the state’s stun gun ban. The Massachusetts court’s justifications for upholding the ban, the Supreme Court said, were inadequate:

(They remanded the case back down to MA)

Indeed, Caetano’s lawyer, Benjamin Keehn, reports that Caetano got more than just dismissal of the charges: Rather, she was formally found not guilty. “The judge … agreed that the record should show that she was vindicated, and found [her] not guilty after a jury-waived, facts-stipulated trial. [The j]udge then allowed a petition to seal her record.

It was all about her record — a record check by a landlord or prospective employer showing that a felony weapons charge had been dismissed (after a guilty verdict had been vacated) would have been very problematic. So the [not guilty] plus the allowed petition to seal should put her as close to what should have been the correct status quo ante, which is that she would not have been charged in the first place for exercising her right to armed self-defense in the face of an unconstitutional statute (which is still on the books — but the client comes first).

 

[barnbwt]

Certainly sounds hopeful for the striking of the law, if a person found guilty should have all record of that fact sealed utterly.

A rather important case, from the perspective of those seeking the ban of entire classes of firearms or other weapons, since 'stun guns' aren't exactly all that common themselves, yet were protected under that (rather poorly justified) criteria laid out in Heller (from nearly whole cloth)

The real question will be whether a ban on these items in another state in the same district would be struck down, based upon commonality of the item in the other state. So far, they've basically agreed that the 'stun gun horse' was already out of the barn when this ban went into effect, but what about items or technologies long banned or uninvented, and therefore no in common use? Like 'Smart Guns' for example

TCB

 

[danez71]

When SCOUTS remanded it

The [Massachusetts] court offered three explanations to support its holding that the Second Amendment does not extend to stun guns. First, the court explained that stun guns are not protected because they “were not in common use at the time of the Second Amendment’s enactment.” This is inconsistent with D.C. v. Heller’s clear statement that the Second Amendment “extends … to … arms … that were not in existence at the time of the founding.”

The court next asked whether stun guns are “dangerous per se at common law and unusual,” in an attempt to apply one “important limitation on the right to keep and carry arms,” Heller; see ibid. (referring to “the historical tradition of prohibiting the carrying of ‘dangerous and unusual weapons’”). In so doing, the court concluded that stun guns are “unusual” because they are “a thoroughly modern invention.” By equating “unusual” with “in common use at the time of the Second Amendment’s enactment,” the court’s second explanation is the same as the first; it is inconsistent with Heller for the same reason.

Finally, the court used “a contemporary lens” and found “nothing in the record to suggest that [stun guns] are readily adaptable to use in the military.” But Heller rejected the proposition “that only those weapons useful in warfare are protected.”

 

[ilbob]

so basically the woman gets a directed verdict of innocent and the law stays on the books to trap the next person since the court only remanded it back to a lower court who disposed of it in a way that apparently was satisfactory to the defendant but does nothing to specifically eliminate the law.

 

[Radagast]

Bob, it was a woman fighting to clear her record. She done good.
The correct next step is for a hand picked litigant, backed by the financial resources of a political foundation, to try and have the law overturned.

Thats how Heller & McDonald were fought and won.

Before that can happen a pro-rights majority is needed on SCOTUS. A split decision on any case will uphold the law.

From an outsiders perspective, SCOTUS judges protect their privileges from lower court judges like territorial cats. Just because they slapped down an uppity lower court, does not mean they will rule 5:3 in our favor if a case reaches them that would expand second amendment protections.

That brings up politics. The potential Felon-in-Chief will appoint anti-2a judges. The potential Huckster-in-Chief may or may not.

 

[Carl N. Brown]

How long was the Virginia 1924 Racial Integrity Act (and its sister the Sterilisation Act) considered constitutional until it was found not?

Unconstitutional laws get passed because the legislators believe they enhance public safety or the general welfare and are willing to do it "for the children" in spite of the Constitution, until successful challenges to their constitutionality reach SCOTUS.

The Florida pistol permit laws were passed in the 1890s and amended in 1902. In a 1940s Florida court ruling, a justice of the state supreme court wrote that he knew the history of this law: it was passed to give reason to prosecute migrant negro workers (believed to be prone to drunken Saturday night brawls) caught armed and was never enforced against anyone with standing to challenge it in court (especially whites) because it was unconstitutional and would not withstand a challenge.

Justice Breyer is one of those who believe that the perceived utility of a law. like the handgun ban overturned in Heller '08, trumps that old, dead Constitution. Gun control is built on a deliberate ignoring of the words of the Bill of Rights, not just 2A, but 4A and 5A, because they believe the end justifies unconstitutional means. Norvall Morris of the Chicago Law School, who taught a whole generation of anti-gun American scholars, advocated suspending the 4A if the objects of searchs were guns, stop'n'frisk on the streets extended to private homes.

To a lot of our gun control advocates, perceived utility trumps the Constitution and apparently Massachusetts' legislature and courts are full of that attitude. They pretend the 2A does not say what it says because the benefits of gun control exceeds the cost in their eyes. What will influence them is not Constitutional argument, but a demonstration that gun control is more cost than benefit, as happened in the repeal of the Maryland and New York ballistic fingerprint database laws.

 

[RetiredUSNChief]

If I may:

"To a lot of our gun control advocates, [strike]perceived utility[/strike] tyranny trumps the Constitution and apparently Massachusetts' legislature and courts are full of that attitude."


No issue with what you posted...just with what these gun control advocates call "tyranny" in order to make it palatable.

 

[Carl N. Brown]

^
"Of all tyrannies, a tyranny exercised for the good of its victims may be the most oppressive. It may be better to live under robber barons than under omnipotent moral busybodies. The robber baron's cruelty may sometimes sleep, his cupidity may at some point be satiated; but those who torment us for our own good will torment us without end, for they do so with the approval of their own conscience."
- C.S. Lewis

 

[Hurricane]

So then, this clearly shows that "modern sporting rifles" should be covered as well. Would that mean a ban would be considered unconstitutional?

 

[ATN082268]

To a lot of our gun control advocates, perceived utility trumps the Constitution and apparently Massachusetts' legislature and courts are full of that attitude. They pretend the 2A does not say what it says because the benefits of gun control exceeds the cost in their eyes. What will influence them is not Constitutional argument, but a demonstration that gun control is more cost than benefit, as happened in the repeal of the Maryland and New York ballistic fingerprint database laws.

The endgame of gun control advocates seems to be the elimination of private gun ownership. Besides Constitutional issues and damages resulting from disarming people, there is a relatively objective financial cost (taxes, regulations, etc.) imposed on the manufactures, stores, etc. for each gun as a result of gun control. Can gun control advocates even show an objective financial benefit for their gun control policies?

 

[Frank Ettin]

Since no one seems to have any further insights into the actual case I guess we're done.