Local Bans are good to Go!

G

Glenn E. Meyer

New member
Thanks Scalia (oops - see below):

http://www.politico.com/story/2015/12/scotus-assault-weapons-ban-216485

The Supreme Court decided on Monday that it would not take up a challenge to a local law banning semi-automatic assault weapons and large-capacity magazines in the Chicago suburb of Highland Park, Illinois.

In doing so, the court upheld a decision from the U.S. Court of Appeals for the Seventh Circuit that the city's restrictions did not infringe upon the Second Amendment right to keep and bear arms, avoiding the prospect of a politically-charged fight over gun rights at the highest court in the land. The decision to deny the case follows months of intensified debate over gun safety and the prevalence of guns, including in last week's terrorist attack in San Bernardino, California. Those weapons were purchased legally.

Read more: http://www.politico.com/story/2015/12/scotus-assault-weapons-ban-216485#ixzz3tee2wQoZ
Click to expand...

So reasonable restrictions will be used to ban evil guns in many locals. While an AWB across the country may not get through Congress, it seems that they are constitutional for the moment. I said from the beginning that Heller was the greatest thing ever. An area could keep you to a SW Model 10 and double barrel shotgun or just the latter.

So much for the modern sporting rifle BS! Worked well!
 
My mistake then if Scalia said that.

However, folks have been using that part of his discussion in these arguments. But I shouldn't make a mistake.

If we get a sympatico president, we need a proactive policy on guns. Past candidates and presidents from the supposedly good party gave support to the AWB. We need the next one to put forward legislation and fight for its passage
 
There is a missing part to this issue as it applies to the Highland Park IL law.
Illinois passed a concealed carry bill & at that time created somewhat of a preemption law. IIRC, municipalities had a window of time to reinstate laws that they had passed prior to the state's preemption. Highland Park did that.

What the NRA & the ISRA should have done is addressed the issue on a 2nd Amendment argument & a taking of private property without compensation.

I would have liked to see the plaintiffs demand that Highland Park be asked to pay for what they out lawed. Even better would have been to ask the Village to buy the owner's houses so they could move & remove the items from the village.
 
I may be wrong, but I had read somewhere that the "reasonable restrictions" part was put in because otherwise Justice Kennedy wouldn't have gone along with the individual right interpretation. But yes, "reasonable restrictions" means "any and all gun control desired so long as you can possess a handgun you have to jump through 50,000 hoops to acquire and then only load it with one bullet."

But the conservatives on the Court have to be smart about this too. Roberts is wishy-washy as a strict conservative after twice upholding Obamacare and Kennedy may be as well. Personally, does anyone really believe that the Court would literally flat strike down assault weapons bans as unconstitutional? This Court has shown itself to be too influenced by politics unfortunately. I think Scalia would as he wouldn't care about the howling of the media and Democrats, but Roberts would and Kennedy might.

I personally think that if an AWB case went to Congress (they are trying to take the New York SAFE Act to SCOTUS I believe as they said the recent 5th circuit upholding of it was just a stepping stone to the SCOTUS as they knew the 5th would uphold it), that Roberts would try to do what he did with Obamacare, i.e. uphold it, but say something like, "Weapons such as semiautomatic rifles and handguns cannot be flat outlawed, but otherwise, it is not the job of this Court to strike down what the state and local governments have deemed as dangerous and unusual weapons, blah blah blah..." and I bet it'd say semiautomatic guns too and not semiautomatic guns with detachable magazines which is an important point, as then the antis could outlaw all semis with detachable magazines.

What we really need, IMO, is a SCOTUS ruling that says that semiautomatic firearms with detachable box magazines are protected by the Second Amendment and cannot be outlawed. That would limit the definition of "assault weapons" to semiautomatics with detachable magazines that have the "military-style" features. But without that, the gun controllers can continually redefine "assault weapon" to be whatever they want.

As for "dangerous and unusual" as far as weapons go, that is supposed to be weapons that are literally dangerous for an individual to possess, such as explosives or a nuclear weapon or say weaponized smallpox or whatnot, where even if the person has no evil intent, they could still wreak havoc by pure accident.

But there are no small arms that fit the definition of "dangerous and unusual."
 
Denying cert doesn't mean it is constitutional - just that the Court is chosing to do nothing at that time. For example, 11 Circuit Courts had decided the Second Amendment was a collective right and the Supreme Court had denied cert in those cases; but we all know how that turned out.

All this tells us is we have two solid votes that would find semi-autos protected by the Second (Thomas and Scalia). At least three of the Heller majority are either uncomfortable with reaching that conclusion (but aren't ready to uphold a ban eaither) or they want to give lower courts more time to develop working standards and tests for the Second.
 
I've said this before, and I'll say it again. The Supreme Court has become another political arm of the Administration in power and appointing the Justices. That's been true ever since FDR packed the Court with nine Justices instead of the seven that sat since 1800.

I'll live without the chance of a favorable semi-auto decision on a national level until the makeup of the Court changes to one that is assured of rendering the correct decision.

We damn near lost the 2nd Amendment in Heller, one vote was all it took and we would have seen the principle of a Collective Right become the law of the land.
 
FDR's court packing plan failed. (9 to 15)


I'm wondering who on court would actually use strict scrutiny for the 2nd Amendment. The fact that I wonder this should be scary!
 
Bartholomew Roberts said:
All this tells us is we have two solid votes that would find semi-autos protected by the Second (Thomas and Scalia). At least three of the Heller majority are either uncomfortable with reaching that conclusion (but aren't ready to uphold a ban eaither) or they want to give lower courts more time to develop working standards and tests for the Second.
Click to expand...
Plus Alito? He did a decent job on the McDonald decision.
 
Well, Scalia and Thomas straight out said they would have voted to overturn the Seventh in the denial of cert. That's essentially saying you are so wrong we don't even need to hear evidence to rule and is a very rare step. So we know where they stand on the issue.

There may be others sympathetic to that point of view but who didn't vote to grant cert for a variety of reasons (lower courts need more time to develop caselaw, more pressing issues for Court to address, they suspect the 5th vote isn't there right now, etc.) but all we can reliably assume is that Scalia and Thomas support it.
 
Well, I can't remember if we talked about it here or on another forum; but I think that if any of the current Democratic nominees win in 2016 and replace any of the Heller majority, then Heller is effectively dead. The only question is whether they overturn it outright, or keep it so narrow that the only right protected is the right to keep a loaded .22LR revolver in your home subject to licensing, registration, mandatory training and burdensome fees and time requirements.

As the San Francisco case already shows, the original Heller majority does not appear to be a strong one. At least two Justices who voted with the Heller majority declined to grant cert on the 9th Circuit case which directly challenged a key part of the Heller decision. That says to me that at least some of the Justices in the Heller majority are having second thoughts about at least some of the specific applications of the Heller decision as written by Scalia.

Why are they having second thoughts? No idea. They could just think it isn't high priority. They might be concerned about the strong pushback from lower courts and want to avoid damaging their authority. They might be concerned that there are consequences to the Heller ruling they didn't anticipate and want to wait and see how that plays out in federal firearms law before they make even more waves.

The GOOD news to take away from this, is the Heller dissent isn't making any friends either. If we assume Kagan is going to vote with the dissent (which seems probable to me, though she is the only Justice without a record vote on a Second Amendment case in SCOTUS), then the dissent has enough votes to grant cert by themselves. The fact that they haven't suggests strongly that whatever problems the fence-sitters in the Heller majority are having with that decision, the dissent still doesn't see them as receptive to their arguments concerning the Second.

Looking at the post-Heller decisions, I'm starting to wonder whether Breyer's weird concurrence to the dissent in Heller wasn't an attempt to reach out to some of the fence-sitters on the majority by declaring an "individual right" with no substantive protection.

So my take is there are at least two Justices (and as the Atlantic mentioned, maybe not even the same two in every case) that won't take either a strong pro-RKBA stand or a strong anti-RKBA stand and the remaining Justices aren't willing to push the issue on Second Amendment cases for fear that they end up pushing them to the other side.

We know those Justices aren't Scalia or Thomas. So that leaves Alito (unlikely I think), Roberts and Kennedy.
 
As much as I would have liked to see them take the case, I am not surprised they did not. As previously mentioned there is not a split in lower courts. They have a lot of cases to look at and accept a very limited number.
 
http://www.nytimes.com/2015/12/09/opinion/an-opening-for-states-to-restrict-guns.html

The NY Times seems to think (as I do) that the decision is a failure for gun rights and a great way for corrected minded localities to institute stiff, sensible gun control.

I'm afraid the various rationalizations (waiting for this or that legal nuance) miss the meta-problem of the rest of the Heller majority being quite OK with the local rules. I don't think there is a magic case that will say - ARs for all. High caps in your stockings.

There will have to be legislative action with a new president that is actually gun proactive or new court members.

Or course, multiple this statement by -1 for an alternate universe fate. State elections are crucial now.
 
We know those Justices [who are reluctant to take a strong pro-RKBA stand] aren't Scalia or Thomas. So that leaves Alito (unlikely I think), Roberts and Kennedy.
Click to expand...
I think there's a decent case to be made that it's probably Roberts.

I believe that he's a strongly conservative justice, and by this, I don't mean that he backs right-wing causes—I mean that he's reluctant to go against both judicial precedent and the will of an elected legislature, unless it's very clear that a strong stand on an issue is particularly needed from the SCOTUS.

As evidence, I point to the vague "reasonable restrictions" and "sensitive places" language in the Heller decision from the Roberts court, and to the fact that—despite wailing from both sides of the aisle on some recent controversial decisions—the Roberts court has actually issued relatively more unanimous or relatively one-sided decisions than 5-4 decisions compared to other recent Supreme Courts.
 
The rest of the Heller majority is OK with the status quo currently. How long that might last remains to be seen - it was 74 years between Miller and Heller. I doubt that we'll wait that long but absent new court members it looks like the current SCOTUS isn't even willing to address direct challenges to Heller by the lower courts. Which makes it hard to imagine a situation in the near future where they would grant cert on a 2A issue.
 
You must log in or register to reply here.
Back
Top