Feinstein, Gorsuch and Heller

[Aguila Blanca]

Heller was a big step, but a 5-4 precedent isn't much of one. Getting more justices who would vote for language recognizing the right as fundamental is the necessary foundation.

And, as seen in recent cases such as in the Ninth Circuit (Peruta, I think), some courts are still interpreting Heller as if the 2A addresses two separate rights: one right to "keep" arms, and a separate right (which they claim the SCOTUS hasn't yet spoken about) to "bear" arms (in public).

Grammatically, that's a fail. I may not be the sharpest knife in the drawer, but even I know the difference between a singular noun versus a plural noun, and "the right" is singular. That means "the right to keep and bear arms" is ONE right, not two separate rights. And, of course, at the time the Constitution and the Bill of Rights were written, firearms were common tools in all the colonies. The notion of allowing "the People" to keep firearms within the home but not allowing anyone to venture forth with a firearm is something that probably never occurred to any of the Founding Fathers. So, despite the fact that the immediate question before the court in Heller was keeping a functional firearm in the home, the crucial question hinged on whether the 2A is an individual right or a collective right.

Heller established that it is an individual right. Having established that the RKBA is an individual right, it therefore follows (grammatically) that individuals have the right to keep AND to bear arms. There can be no other [intellectually honest] interpretation of the Second Amendment.

Some state supreme courts have confirmed this based on the language of their respective state constitutions. Ohio is one such, and I think Idaho is another.

 

[zukiphile]

Heller established that it is an individual right.

That's why it's a big deal. It isn't the whole deal, but it's a big one.

Having established that the RKBA is an individual right, it therefore follows (grammatically) that individuals have the right to keep AND to bear arms. There can be no other [intellectually honest] interpretation of the Second Amendment.

While disagreeing with none of that, I recall that when I was admitted William Suter, the clerk at the time, advised against citing any 5-4 decision as precedent in a matter.

Unless you find a way to clone Thomas eight times and have his clones confirmed, I doubt you will ever see a "Here's the part of the COTUS that answers your question" kind of opinion.

My phantasy would involve Kennedy, Ginsberg and Breyer retiring before Thomas and being replaced by Federalists who would join Alito, Gorsuch, Thomas* and Roberts for a 7-2 "This is a fundamental right for which strict scrutiny is the correct analysis" sort of decision.

__________________________
*Thomas has a separate rationale re the 2d Am., but if the vote comes out 7-2, sidestepping a decision should be less common.

 

[5whiskey]

My phantasy would involve Kennedy, Ginsberg and Breyer retiring before Thomas and being replaced by Federalists who would join Alito, Gorsuch, Thomas* and Roberts for a 7-2 "This is a fundamental right for which strict scrutiny is the correct analysis" sort of decision.

One can only dream, lol!

The good news is it is a real possibility. Ginsburg is 84, Kennedy 80, and Breyer 78. They all have a decade on Thomas.

Like it or not, their days are numbered and they can't stay on forever. Something tells me that who is president at the moment affects a SCOTUS Justice's decision on when to step down just as much as age, though. I see us at least picking up Ginsburg's seat, though. At least that one. Possibly Kennedy's seat, as it is still unclear as to whether he has picked a partisan side to completely be in bed with.

 

[rwilson452]

Heller established that it is an individual right. Having established that the RKBA is an individual right, it therefore follows (grammatically) that individuals have the right to keep AND to bear arms. There can be no other [intellectually honest] interpretation of the Second Amendment.

Some state supreme courts have confirmed this based on the language of their respective state constitutions. Ohio is one such, and I think Idaho is another.

PA is another.

 

[ShootistPRS]

The Washington State constitution puts it this way:
Article 1; SECTION 24 RIGHT TO BEAR ARMS. The right of the individual citizen to bear arms in defense of himself, or the state, shall not be impaired, but nothing in this section shall be construed as authorizing individuals or corporations to organize, maintain or employ an armed body of men.

 

[Aguila Blanca]

^^^ Lots of state constitutions contain very similar language. The point is to have a court back it up. What eventually led to a concealed carry law in Ohio was a case that went to the Ohio Supreme Court. The court ruled that, because the state's constitution guaranteed a right to bear arms, the legislature could not ban carry. Therefore, since the legislature had made it illegal to carry concealed, open carry had to be allowed.

Following this, the Buckeye pro-gun groups (sorry, I don't recall the name or names) began organizing "carry ins," at which citizens would lawfully appear -- wearing guns. The soccer moms were unhappy, so they called the cops, who told them there was nothing they could do because open carry was legal per the Supreme Court. That led to many soccer moms contacting their legislators, who finally took the hint and enacted a concealed carry law.

The point being: Once it is conceded that the bearing of arms is subject to regulation, the permitted mode of carry is up for grabs. One state might allow open carry but not concealed, while a neighboring state could allow concealed carry but not open carry. Either would be constitutional (if "reasonable" regulation is allowed), since carry would not be banned, only "regulated."

That said -- just as we see with the federal Second Amendment, the RKBA language in a state's constitution doesn't mean much unless and until that state's highest court rules what the language means.

As an aside, I find it painfully ironic that the state constitution of Massachusetts, the birthplace of the American Revolution, does NOT treat the RKBA as an individual right. The MA constitution guarantees the RKBA only in defense of the state. Sad.

 

[Tom Servo]

Like it or not, their days are numbered and they can't stay on forever.

They can certainly try. There's no stopping them, and there's a whole lobby of people urging Ginsburg not to step down so long as she draws breath. There's really no way to force them out, barring gross misconduct.

 

[zukiphile]

They can certainly try [to stay on the Court forever]. There's no stopping them, and there's a whole lobby of people urging Ginsburg not to step down so long as she draws breath. There's really no way to force them out, barring gross misconduct.

These calculations are made with a sense of what the future holds.

Several people here wanted Merrick Garland to be a given a hearing and or vote because they were confident HRC would win the presidency and name someone worse. I doubt many people had the foresight to see the chain of events, a chubby but apparently energetic Scalia passing, the repub primary taking a direction many within the party had discounted as impossible, the insecurity leading DJT to make a commitment based on a Federalist Society list, and DJT then honoring that promise, that led to Gorsuch being sworn in yesterday.

I know people who assure me that DJT will continue to pick this sort in the future, but they don't really know. There are a lot of openings on the various circuit courts of appeal, and I don't recall anyone being named for those important spots.

 

[5whiskey]

They can certainly try. There's no stopping them, and there's a whole lobby of people urging Ginsburg not to step down so long as she draws breath.

Well, yeah they can try. My point was they can't cheat death, and a few Justices are in their 80's. And yes there are a ton of people trying to ensure that Ginsburg stays on... but she will nearly be 90 before Trump's current term is up.

These calculations are made with a sense of what the future holds.

A simpler version of my point I guess.

I know people who assure me that DJT will continue to pick this sort in the future, but they don't really know.

And yes, exactly. I still view Trump as a wild card and unpredictable. During the campaign he was quite critical of foreign military involvement (except for fighting ISIS), and 3 months in we're chucking tomohawk missiles at an air base operated by the official government of Syria.

 

[zukiphile]

And yes, exactly. I still view Trump as a wild card and unpredictable.

I was opposed to DJT essentially because I considered him inarticulate and rudderless in a way that would be catastrophic. I have been happy to acknowledge that he hasn't turned out to be as awful as I thought he would, but many of the traits on which my doubts rested persist.

It wouldn't be worth saying "I told you so" to see him engage in a full reversal on an issue, 2d Am. rights for instance, but it isn't unimaginable either.

I saw a fellow explain the electoral choice last time around as follows. If I am presented two doors and am forced to open one, one of which says "Man Eating Tiger" and the other of which says "Could be a Man Eating Tiger", I'll choose the latter every time.

 

[Tom Servo]

And yes, exactly. I still view Trump as a wild card and unpredictable.

Not to venture too far into general politics, but I feel the same. The sudden and abrupt change on foreign military intervention shows that. The man is a human Markov chain, and he seems to react largely on impulse and whim.

And that worries me if we have a particularly horrific public shooting or enough pressure to "compromise" on a piece of "common sense" legislation.

My point? Let's not assume we're out of the woods yet as it applies to any of the three branches.

 

[Loosedhorse]

This tired "analogy" again.

You can't yell "FIRE" in a darkened movie theater because it places others in danger.

First, you most certainly CAN yell fire in a darkened movie theater...so long as the theater is on fire.

Next, the yelling of fire falsely is punished AFTER the fact. Just like we punish violent crimes committed with guns AFTER the fact.

Gun control, by contrast, is prior restraint. It is preventing you from having a gun, on the theory that such a restriction might somewhere, someday prevent somebody from committing a violent crime.

Therefore, the correct analogy for gun control is forcing everyone to enter movie theaters gagged, on the theory that that requirement will somewhere, someday prevent somebody from falsely yelling fire in a theater.

Unconstitutional and ridiculous. Even if someone calls it "reasonable."

 

[Frank Ettin]

...Next, the yelling of fire falsely is punished AFTER the fact. Just like we punish violent crimes committed with guns AFTER the fact...

The "yelling fire" nonsense is a very poor, and meaningless, example of the regulation of a right protected by the First Amendment.

So for the purposes of illustration, let's consider the real life 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:

1. Various laws (both state and federal) prohibiting such things as false advertising, fraud or misrepresentation. There are also state and federal laws requiring certain disclosures in connection with various transactions, would are valid and routinely enforced even though such laws do impinge on the freedom of speech.
   
   
2. 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 (a type of "prior restraint"). 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.
   
   
3. 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 (prior restraint again) in order to hold an assembly or a parade and may prohibit such activities during, for example, the very early morning hours. Such regulations would be permitted only to the extent necessary to serve the compelling state interest of protecting public health and safety. Any such regulations, to be constitutionally permissible, could not consider the content of the speech or assembly; and they would need to be applied in an even handed manner based on set guidelines and not subject to the discretion of a public official. 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:

     ...We are likewise persuaded that the statute is "narrowly tailored" to serve those interests and that it leaves open ample alternative channels for communication. As we have emphasized on more than one occasion, when a content-neutral regulation does not entirely foreclose any means of communication, it may satisfy the tailoring requirement...

     
     
     • 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):

       ….The statute [the prior Massachusetts law] was modeled on a similar Colorado law that this Court had upheld in Hill v. Colorado, 530 U. S. 703 (2000). Relying on Hill, the United States Court of Appeals for the First Circuit sustained the Massachusetts statute against a First Amendment challenge. McGuire v. Reilly, 386 F. 3d 45 (2004) (McGuire II), cert. denied, 544 U. S. 974 (2005); McGuire v. Reilly, 260 F. 3d 36 (2001) (McGuire I).
       
       By 2007, some Massachusetts legislators and law enforcement officials had come to regard the 2000 statute as inadequate.....

     
     
   • 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:

     ...A narrowly-tailored permitting regulation need not be the least restrictive means of furthering a locality's asserted interests. The regulation may not, however, burden substantially more speech than necessary to achieve a scheme's important goals. See United States v. Baugh, 187 F.3d 1037, 1043 (9th Cir.1999). "[T]he requirement of narrow tailoring is satisfied `so long as the . . . regulation promotes a substantial government interest that would be achieved less effectively absent the regulation.'" Ward, 491 U.S. at 799, 109 S.Ct. 2746 (quoting United States v. Albertini, 472 U.S. 675, 689, 105 S.Ct. 2897, 86 L.Ed.2d 536 (1985))...

   
   
4. 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):

   ...The objection has also been made that the principle as to immunity from previous restraint is stated too broadly, if every such restraint is deemed to be prohibited. That is undoubtedly true; the protection even as to previous restraint is not absolutely unlimited. But the limitation has been recognized only in exceptional cases. 'When a nation is at war many things that might be said in time of peace are such a hindrance to its error that their utterance will not be endured so long as men fight and that no Court could regard them as protected by any constitutional right.' Schenck v. United States, 249 U. S. 47, 52, 39 S. Ct. 247, 249, 63 L. Ed. 470. No one would question but that a government might prevent actual obstruction to its recruiting service or the publication of the sailing dates of transports or the number and location of troops. On similar grounds, the primary requirements of decency may be enforced against obscene publications. The security of the community life may be protected against incitements to acts of violence and the overthrow by force of orderly government. The constitutional guaranty of free speech does not 'protect a man from an injunction against uttering words that may have all the effect of force. Gompers v. Buck's Stove & Range Co., 221 U. S. 418, 139, 31 S. Ct. 492, 55 L. Ed. 797, 34 L. R. A. (N. S.) 874.' Schenck v. United States, supra. These limitations are not applicable here. Nor are we now concerned with questions as to the extent of authority to prevent publications in order to protect private rights according to the principles governing the exercise of the jurisdiction of courts of equity...

   
   
5. 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.

 

[JN01]

There's no stopping them, and there's a whole lobby of people urging Ginsburg not to step down so long as she draws breath. There's really no way to force them out, barring gross misconduct.

I know SC Justices can be impeached for criminal conduct, but is there a procedure for removing them for health reasons- dementia for example?

 

[Glenn E. Meyer]

Removing judges on suspect mental health issues because you disagree with them is a terrible move.

It would have to be incredibly obvious to the other members of the court.

But, again with all the theory - I wait for the behavior. Will the new SCOTUS really take on and make decisions that remove restrictions and negate state laws? I'm not holding my breath on that.

 

[JN01]

Removing judges on suspect mental health issues because you disagree with them is a terrible move.

I wasn't suggesting any such thing. People, particularly at an advanced age, can suffer from diseases such as Alzheimer's which can seriously compromise one's ability to reason. My question was, if such a case arose and the justice was no longer entirely in touch with reality, is there a procedure to remove them from the bench?

 

[Loosedhorse]

I appreciate your support...

Various laws (both state and federal) prohibiting such things as false advertising...

A great example of punishing something after the fact.

your written solicitation materials will have to first be approved prior to use by one or more regulatory agencies (a type of "prior restraint").

Much closer to the point. However, that is commercials speech; if it pertains at all to the RPKBA, it would seem to (perhaps) be analogous to having the policies of a cmmercial armed security service reviewed prior to granting them a license to operate. Its illumination of the private citizen's RKBA is less clear.

We are likewise persuaded that the statute is "narrowly tailored"...

Ah. Strict scrutiny for public (political) speech. As I have already said, I would be quite happy if the standard for regulations on the public carry of arms are tested by strict-scrutiny standards; and I absolutely think that strict scrutiny should apply to restrictions on ownership, since they touch on how the RPKBA can be exercised within the citizen's private home.

In McCullen the Court struck down a new Massachusetts "buffer zone" law.

We should hardly be surprised if a government (and legal culture) that is so hostile to the RPKBA and to guns they don't like ("assault weapons" and handguns that have not received the state AG's blessing) is also hostile to the 1st Amendment and speech it doesn't like. I appreciate the feds stepping in when state restrictions went too far on speech; and am still waiting for the day when the feds take on MA's too-far restrictions on the RPKBA regarding firearms.

Perhaps, with either a national reciprocity law (which I agree has very low chance of passage), or with the Gorsuch-staffed Court (taking on, I hope, Peruta and also rulings in districts where "assault weapons" bans have been pronounced okay), that day will soon be at hand.

But nonetheless the Court also noted that certain interests, under certain circumstances would justify even prior restraint

The exceptions listed (regarding allowable "previous restraint" on free speech) are quite narrow. It is therefore very hard to see how they would apply via analogy to the RPKBA, beyond the "previous restraint" implicit in the prosecution (after the fact) of criminal misuse of firearms.

We should be careful not to imply that the Court's "the protection even as to previous restraint is not absolutely unlimited" actually means that any "reasonable" prior restraint on speech is acceptable; that would be as dishonest as claiming (as anti-gunners do) that the Court's "the Second Amendment right is not unlimited" means that all restrictions deemed "reasonable" by gun-controllers are constitutional.

(Frank, that was a wonderful review of First Amendment boundaries, as delineated by the Court. Thanks.)

 

[Loosedhorse]

I know SC Justices can be impeached...

We should remember, as I think was well illustrated by the Clinton impeachment, that impeachment is a political procedure--by design and in practice--not a judicial/"legal" one.

A justice could be removed IMO only if there was overwhelming public sentiment that such a removal was necessary, thus providing senators the political "cover" they'd need for an unprecedented vote to remove one.

 

[zukiphile]

And that worries me if we have a particularly horrific public shooting or enough pressure to "compromise" on a piece of "common sense" legislation.

That's a well stated and rational anxiety.

I wasn't suggesting any such thing. People, particularly at an advanced age, can suffer from diseases such as Alzheimer's which can seriously compromise one's ability to reason. My question was, if such a case arose and the justice was no longer entirely in touch with reality, is there a procedure to remove them from the bench?

I believe it is widely acknowledged that Thurgood Marshall's competence left before his body did. The problem is that there was still a political constituency for his general opinion, and getting him out involuntarily would be a politically bloody task.

In the end, he did leave voluntarily though not happily and we got Thomas in his place.