My fear is that the SCOTUS, provided they agree to hear this case, will find a weasel way to uphold it, like they did with Obamacare (I am not agreeing or disagreeing with Obamacare specifically here, just I mean the upholding of it was rather fudged by Justice Roberts IMO). I can't imagine them actually overturning an assault weapons ban considering the number of such bans in place around the country right now.
Second Circuit Upholds Most of NY SAFE Act and CT Ban
- Thread starter Bartholomew Roberts
- Start date
Aguila Blanca
Staff
http://www.ccdl.us/
I need to make time to read the entire decision. An attorney of my acquaintance mentioned today that the circuit court actually found that the so-called "assault weapons" banned by both states are, in fact, in common use. That should have invalidated the bans under strict scrutiny, but the circuit court applied intermediate scrutiny to uphold [most of] the bans. That should be a simple, procedural matter to overturn.
"Should be" being the key term ...
CCDL said:
I need to make time to read the entire decision. An attorney of my acquaintance mentioned today that the circuit court actually found that the so-called "assault weapons" banned by both states are, in fact, in common use. That should have invalidated the bans under strict scrutiny, but the circuit court applied intermediate scrutiny to uphold [most of] the bans. That should be a simple, procedural matter to overturn.
"Should be" being the key term ...
Bartholomew Roberts
Moderator
They didn't find the banned firearms and magazines were in common use. They just assumed it for the purposes of this opinion (probably because it was an MSJ). They can change their minds later still.
Also, the Second Circuit uses the "core rights" analysis which means that strict scrutiny isn't applied unless the law infringes on the core right described in Heller (different courts taking different views as to the extent of the core right according to their biases). So just finding the firearm is in common use only gets some form of intermediate scrutiny (and a very mild flavor of that in the 2nd Cir. it seems).
Also, the Second Circuit uses the "core rights" analysis which means that strict scrutiny isn't applied unless the law infringes on the core right described in Heller (different courts taking different views as to the extent of the core right according to their biases). So just finding the firearm is in common use only gets some form of intermediate scrutiny (and a very mild flavor of that in the 2nd Cir. it seems).
Being a total amateur at the law, is not using strict scrutiny a weasel way to find arguments to uphold gun control laws? Shouldn't strict scrutiny be applied in all gun rights cases? Is strict scrutiny used most of the time in cases regarding other rights? I mean I can't imagine the courts at any level upholding restrictions on free speech, privacy, religion, etc...that they uphold on guns.
Bartholomew Roberts
Moderator
Being libertarian-oriented, I would probably favor an application of strict scrutiny far beyond what the courts currently use. However, intermediate scrutiny is used in many areas of law besides just gun issues. For example, many laws dealing with gender discrimination and sexual orientation receive intermediate scrutiny.
Likewise, content-neutral laws (the law applies equally to all speech regardless of the content of the speech) affecting free-speech receive intermediate scrutiny (which has led to things like "free-speech zones").
The problem with "intermediate scrutiny" (also called "heightened scrutiny" by the Second Circuit) is that it isn't well defined and as a result courts can (and do) apply a standard that is really little more than rational basis test to cases that should be holding the government to a higher standard.
In this particular case, that is exactly what happened. The only parts of the law the Second Circuit didn't strike down were those that the government literally made no effort at all to defend. This was a complex law affecting two different states and composed of hundreds of smaller provisions. It removed rights that had existed in these states since the founding of this country and directly touched on the Bill of Rights and the Second Circuit's version of heightened scrutiny upheld every single restriction the government submitted evidence on.
And then they went further and included in their decision things like "We'll assume these firearms are protected by the Second Amendment even though for these reasons that might not be the case..." which was basically a "How to"guide for gun control groups to argue the issue of common use against semi-autos. And even the two parts they overturned, they practically invited the government to submit evidence on that and try again.
I found it to be a grossly partisan decision.
Likewise, content-neutral laws (the law applies equally to all speech regardless of the content of the speech) affecting free-speech receive intermediate scrutiny (which has led to things like "free-speech zones").
The problem with "intermediate scrutiny" (also called "heightened scrutiny" by the Second Circuit) is that it isn't well defined and as a result courts can (and do) apply a standard that is really little more than rational basis test to cases that should be holding the government to a higher standard.
In this particular case, that is exactly what happened. The only parts of the law the Second Circuit didn't strike down were those that the government literally made no effort at all to defend. This was a complex law affecting two different states and composed of hundreds of smaller provisions. It removed rights that had existed in these states since the founding of this country and directly touched on the Bill of Rights and the Second Circuit's version of heightened scrutiny upheld every single restriction the government submitted evidence on.
And then they went further and included in their decision things like "We'll assume these firearms are protected by the Second Amendment even though for these reasons that might not be the case..." which was basically a "How to"guide for gun control groups to argue the issue of common use against semi-autos. And even the two parts they overturned, they practically invited the government to submit evidence on that and try again.
I found it to be a grossly partisan decision.
Aguila Blanca
Staff
And that pretty well sums it up, I think.Bartholomew Roberts said:
Question: This originally started out as two separate cases at the district court level, one for NY and one for CT. I may be mistaken, but I don't think the two cases were actually consolidated at the circuit court level, I think they were just heard/argued at the same time.
Assuming that both the NY and CT plaintiffs go forward with appeals, will there be two separate appeals, or will the NY and CT cases forever be bound together from here forward? After all, despite there being only one decision, the case is still about two different state laws, and two different groups of plaintiffs.
Aguila Blanca
Staff
Just to keep everyone on the same page, and relating to my post #27, this decision was not about "a law" that affects two states. It was about two separate acts of legislature, in two different states, each of which revised, repealed, and/or create numerous laws within each of the respective state's body of statutes. IIRC, the Connecticut act alone ran to 169 pages, and affected numerous individual section of Connecticut statutes. The NY "SAFE Act" did pretty much the same thing in New York.Bartholomew Roberts said:
Now that the court has ruled, let's go out on a limb and postulate possible results. Enforcement in the states by the legal system? Considering the non-compliance rate in both states it is a certain thing that there would be bloodshed. Possible executive order placing the same restrictions on guns nationwide? Certainly would seem like political suicide, but would not surprise me in the least, especially concerning the rhetoric spewing forth from the nation's capital these days. Let's look at what this portends for gun owners nationwide. Does it have any affect whatsoever? Will it have any affect on public opinion? These are questions that need to be considered.
One thing I've been reading is that the court here made a major blunder in making the statement that, "These weapons are used disproportionately in crimes..." the thing is, the exact opposite is the case. People are killed very rarely and crimes period are committed very rarely with weapons like AR-15s or weapons labeled as "assault weapons" period.
Logicman, I would hope that is the case, but we have seen EO's used to ban gun imports, ammo, etc. Let's just say that an EO is ordered banning all evil black rifles and handguns. What recourse do we the public have? Legislation could be enacted to reverse it and passed, but vetoed. It would take time for such a legal battle to work itself through the courts and it would still be on the books the entire time. Even if it did work through the courts, it could be dicey. I realize that this scenario is a stretch, but not as long a one as I would like for it to be.
Can anyone explain how the decision can quote Heller: "Instead, the Second Amendment protects only those weapons ‘in common use’ by citizens 'for lawful purposes like self ‐ defense'.” then reason, correctly:
"In the absence of clearer guidance from the Supreme Court or stronger evidence in the record, we follow the approach taken by the District Courts and by the D.C. Circuit in Heller II and assume for the sake of argument that these “commonly used” weapons and magazines are also “typically possessed by law ‐ abiding citizens for lawful purposes.” In short, we proceed on the assumption that these laws ban weapons protected by the Second Amendment. ",
yet still somehow uphold the very same laws?
Anyone who's a regular reader to this subforum should be familiar with the levels of scrutiny: strict scrutiny, intermediate scrutiny and rational scrutiny.
I would suggest that the Second Circuit has invented a new level: irrational scrutiny.
"In the absence of clearer guidance from the Supreme Court or stronger evidence in the record, we follow the approach taken by the District Courts and by the D.C. Circuit in Heller II and assume for the sake of argument that these “commonly used” weapons and magazines are also “typically possessed by law ‐ abiding citizens for lawful purposes.” In short, we proceed on the assumption that these laws ban weapons protected by the Second Amendment. ",
yet still somehow uphold the very same laws?
Anyone who's a regular reader to this subforum should be familiar with the levels of scrutiny: strict scrutiny, intermediate scrutiny and rational scrutiny.
I would suggest that the Second Circuit has invented a new level: irrational scrutiny.
Frank Ettin
Administrator
I suggest that you re-read Miller. There's nothing in the opinion that could reasonably be cited to support that proposition.imp said:
Furthermore, Miller is a largely discredited and superseded opinion. Basically it's a mess. Heller has pretty much eroded Miller, and it would be best for the opinion in Miller to fade away into the obscurity it deserves.
At the core of Miller was the notion that a firearm needed to be suitable for use by a militia to be within the protection of the Second Amendment. Heller severed that connection. At the core of Heller is the recognition that there is a personal right to keep and bear arms for lawful purposes without regard to service in a militia.
The part of the opinion that could support that proposition is the part you note below.
A rifle identical to one used in federal service or state organised militias would presumably be suitable for militia service, and therefore possession of such an item would be within the protection of the 2d Am. as employed in Miller.
Imp, we all know the name US v. Miller not because it was insightful or well written, but because until Heller it was the only Sup. Ct. case on the issue to look toward. Combine that with the circumstances surrounding the case and you had a half century of people combing over the text of Miller to tease out something coherent or useful as you have done above, or alternatively dismissing it as useless.
As a work of constitutional scholarship the decision in Heller does, as Frank notes, "erode" Miller to a status of tangential historical curiosity.
EDIT - I would also note another facet of the curiosity. If I recall correctly, the item at issue was a sawed-off shotgun which the court found not suitable for militia use.
As a factual matter, in the actions of the last decade plus just such an item has been employed by our services as a piece of entry equipment.
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Armed_Chicagoan
New member
Exactly! Even Justice Stevens, who dissented, is on record as saying that Heller did not overturn Miller.44_AMP said: