Small win for us - Young v Hawaii - CCA9

[Glenn E. Meyer]

It is nice to assume that future judges will come from a pro-Second population. I thought it was previously claimed by some that judges don't act on biases but only considered application of legal principles and don't cherry pick precedents, phrases, dicta or whatever to justify their biases.

Some day the shining genius of Scalia will win the day despite all the misinterpretations that have followed his prose. If I had hired him to write a piece of legal wisdom that could be so constantly misinterpreted, I might reinterpret his genius based on the behavioral outcomes from the use of his product.

Of course, that is not the way to look at it. It's not his fault that this happened.

 

[zukiphile]

It is certainly frustrating now; but a judge who does that was never going to be the guy who overturns a federal gun control law. By hanging his hat on Scalia’s dicta instead of doing the hard work of justifying it via textualism, he makes it that much easier for future generations of pro-Second people to overturn it.

That's a sharp observation that sheds light both on the success of Heller specifically and textualism generally. That the Heller language is not under direct attack amongst jurists who dislike it speaks either to the strength of the analysis employed or the weakness of the contrary view, or both. In a broad sense, winning the argument in legal culture that produces judges and their opinions is more literally fundamental and important than any single case.

If your critics need to misquote text or misconstrue it to get to their result, they've conceded the argument.

 

[Aguila Blanca]

Well, we have the remember that the SCOTUS majority opinion in Heller was wrong.

Hillary told is that, so it must be true.



[Sarcasm, Sheldon.]

 

[Glenn E. Meyer]

When the state bans are overturned, pistol purchases are made easier in places like NY and the like - then we might have a win.

If misinterpretation and misquoted text carry the day, we don't. If they win behaviorally, an Internet analysis that they have conceded the argument is useless.

I'm sure the denizens of CA, NY or MA are happy with Internet opinion as compared to a change in their abilities to have various items.

Do we think right minded legal scholars and legislators will spring full blown from the forehead of the God of Gun Rights (who gave us this God given right) in the future and accept that the past precedents were based on biased misinterpretations and misquotes.

If your law firm produced a document and 4 of the partners said it was stupid and folks continually misinterpreted you but won the day with those misinterpretations, I'd put that in your performance review.

Maybe the Hawaii decision is a predictor of this? I wait for change that actually frees up gun rights as compared to discussion as to whether some analysis is brilliant.

 

[Bartholomew Roberts]

It is nice to assume that future judges will come from a pro-Second population. I thought it was previously claimed by some that judges don't act on biases but only considered application of legal principles and don't cherry pick precedents, phrases, dicta or whatever to justify their biases.

Well, I’m not assuming a future pro-2nd population. That’s just one of many arenas where we have to compete. Laws or judicial decisions can crack open doors to change culture but that doesn’t mean the culture changes - look at the 100 years between the 14th Amendment and the Civil Rights Act.

We’re unlikely to see better Second Amendment jurisprudence if most judges are ignorant on the subject though.

As far as bias goes, that’s certainly the ideal - and most of the judges I’ve met work hard to meet that ideal. Still, judges are people. You work as a lawyer for a decade or so arguing the law means what your client wants it to mean and then you become a judge and are immediately possessed of Solomonic restraint? Probably not.

 

[Aguila Blanca]

Glenn is correct. We know that we're right, but the citizens of Hawaii, New Jersey, and NYC still can't get carry permits so being right doesn't help the situation at hand.

This is why we have to get the conservative Republican vote out in November. Maybe Kavanaugh (or an alternate nominee) will be confirmed before the next Senate is seated but, if the Ds take over the Senate, Trump won't have a chance of getting another SCOTUS justice approved. The Ds are still smarting over Garland, and they want revenge. I'm personally not enthusiastic about Kavanaugh because of his Fourth Amendment track record, but I guess I'd rather have him than anyone the Ds would want.

 

[Glenn E. Meyer]

I wonder if when one get to the higher level courts, you become more a political than judicial animal. There's a study out there that analyzed SCOTUS and said politics more than abstract law was a powerful predictor in socially loaded cases.

I read once that once someone became a higher ranked Admiral or General, you became more of a politician as compared to a soldier or sailor. I wonder if it is the same with the higher court levels. Certainly the Senate hearings are all party politics as compared to qualifications. Became intense with Bork's rejection - I've seen stated.

 

[zukiphile]

I thought it was previously claimed by some that judges don't act on biases but only considered application of legal principles and don't cherry pick precedents, phrases, dicta or whatever to justify their biases.

You genuinely thought someone claimed that? Who?

If they win behaviorally, an Internet analysis that they have conceded the argument is useless.

I'm glad you didn't write that analysis on the internet.

 

[Glenn E. Meyer]

The search function knows.

A printed analysis on paper that they have conceded the argument would be equally useless as would be a verbal speech in the town square, if we don't get behavioral change.

 

[zukiphile]

Glenn is correct. We know that we're right, but the citizens of Hawaii, New Jersey, and NYC still can't get carry permits so being right doesn't help the situation at hand.

I don't discount your immediate concern, but Bart's observation is an exercise of foresight.

If the answer to the questions "Is this constitutional?" can be found by asking a) "What does the COTUS say about this?" or b) "What would be a good public policy result based on my values or my read of current preferences?", I would like the people who feed into the judiciary to possess a culture that favors A. If even the people whose public policy recommendations I oppose also favor method A, there is a whole genre of constitutional nonsense that is less likely to make it into a Sup Ct majority decision.

If you are obese, having a salad for lunch doesn't mean you'll be skinny in the evening, but it may contribute to a longer term solution.

 

[zukiphile]

The search function knows.

A printed analysis on paper that they have conceded the argument would be equally useless as would be a verbal speech in the town square, if we don't get behavioral change.

That you do not find utility in a thought may not reflect primarily on the thought. The Heller decision is composed of thoughts, argument and analysis on paper, as is the the body of constitutional law. Marbury, Wickard, Loving and Heart of Atlanta all share those components. Shut yourself off from understanding those ideas, and you hobble yourself analytically. It's also a strikingly anti-intellectual stance to take in a forum devoted to law and civil rights, the defense of which has been carried out with ideas written.

It is illustrative that you can identify no one who asserted "judges don't act on biases but only considered application of legal principles and don't cherry pick precedents, phrases, dicta or whatever to justify their biases." I am not accusing you of knowingly offering a strawman.

 

[Glenn E. Meyer]

You can pursue this line of argument all you want. I await legislative and court actions that remove the very tight restrictions that exist and have been upheld. That is more important than angels on the head of pin discussion.

You still are welcome to use the search function for past debates.

 

[zukiphile]

You can pursue this line of argument all you want.

Outstanding.

I await legislative and court actions that remove the very tight restrictions that exist and have been upheld. That is more important than angels on the head of pin discussion.

Really? Only a day ago you thought the that the text of Heller was important enough to assert that it demonstrated Scalia's insufficient clarity of analysis and that you don't "buy into excusing" Scalia for what others have written. You don't even need to use "search"; it's on the prior page.

Yet, today an observation that even those decisions hostile to the right are not bringing forth any frank critique of Heller, but purporting to rely on it, is useless or "angels on the head of a pin discussion"? That's a hasty retreat.

You still are welcome to use the search function for past debates.

Thanks.

You've been on this Scalia crusade for several years. You complained about his "reasonable restriction blather" even though no such thing existed. You appear to have discussed serially your "gut opposition" theory of jurisprudence with no one but me, and at no time have I asserted that "judges don't act on biases but only considered application of legal principles and don't cherry pick precedents, phrases, dicta or whatever to justify their biases."

 

[Aguila Blanca]

Scalia did throw in that footnote about existing, longstanding regulations being "presumptively" lawful, and it has turned out to be exceptionally vexatious, because it is being so widely abused by being cited (or referred to without strict citation) out of context. On page 54 and ending on page 55, Scalia wrote this:

Like most rights, the right secured by the Second Amendment is not unlimited. [Here I must respectfully disagree with Mr. Scalia. As I have posted in other discussions, the Second Amendment is the only one of the rights enumerated in the Bill of Rights that expressly says it is unlimited. To regulate is to infringe, and the Second Amendment does not say the RKBA shall not be "unreasonably" infringed.] From Blackstone through the 19th-century cases, commentators and courts routinely explained that the right was not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose. See, e.g., Sheldon, in 5 Blume 346; Rawle 123; Pomeroy 152–153; Abbott 333. For example, the majority of the 19th-century courts to consider the question held that prohibitions on carrying concealed weapons were lawful under the Second Amendment or state analogues. See, e.g., State v. Chandler, 5 La. Ann., at 489–490; Nunn v. State, 1 Ga., at 251; see generally 2 Kent *340, n. 2; The American Students’ Blackstone 84, n. 11 (G. Chase ed. 1884). [This question has been addressed by multiple state courts and they seem to agree that if a legislature chooses to prohibit concealed carry, then necessarily open carry must be allowed. It was precisely this that led rather directly to Ohio's adoption of a concealed carry statute about a decade ago.] Although we do not undertake an exhaustive historical analysis today of the full scope of the Second Amendment, nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms.

A careful reading of this tells us that Mr. Scalia did not say that all existing firearms laws are even "presumptively" lawful. He assigned this only to those laws addressing "the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings." Using this to try to justify a virtually complete de facto ban, such as encountered in Hawaii and New Jersey, is simply intellectual dishonesty. But, Glenn is correct -- as long as anti-gun judges are willing to check their intellectual honesty at the door and continue to misconstrue Heller, we are basically screwed unless/until we can get a Supreme Court that will interpret and apply the Second Amendment correctly (which is to say, of course, the way we think it should be interpreted. )

 

[Bartholomew Roberts]

This is the point I keep trying to communicate unsuccessfully. Scalia’s prose isn’t vexatious but necessary. If you flip the table over and yell “Second Amendment!”, you won’t get five votes. Based on hindsight, you might get two. You’re coming from a culture that approved the 1968 GCA and 1994 AWB. The justices making these decisions are drawn from that culture, and not from the good ol’ boy segment either.*

So, you need language to get the other justices to vote for you. And to the extent it gives lazy or lemming-like judges an easy out until you can change the culture, that’s great.

*All of the current justices graduated from Yale or Harvard. Kavanaugh is a Yale grad as well. You can drag a free MSTN AR-10 Lightweight Ti build through either school and not get any takers; but we’ve managed to find five unicorns and put them on SCOTUS. One of the biggest problems with SCOTUS right now is it poorly reflects America; but it reflects Harvard and Yale grads pretty darn well.

 

[Aguila Blanca]

This is the point I keep trying to communicate unsuccessfully. Scalia’s prose isn’t vexatious but necessary. If you flip the table over and yell “Second Amendment!”, you won’t get five votes. Based on hindsight, you might get two. You’re coming from a culture that approved the 1968 GCA and 1994 AWB. The justices making these decisions are drawn from that culture, and not from the good ol’ boy segment either.*

I still think the language is vexatious, by definition, since it has been vexing us almost from the day it was released. Nonetheless, I recognize why he wrote it -- he needed to write something that would keep (or get) Kennedy on the pro-2A side. It did that, but in retrospect one has to wonder if there might not have been a better way to express it.

 

[44 AMP]

our biggest problem with these issues is that the courts speak in their own arcane tongue, little known and less understood by those outside the court system.

The court knows clearly what it said, and what it meant, but other people take the court's words and use them for their own ends. And the court does not correct them. Indeed, the court is under no compulsion to do so, until and unless a case involving those issues comes before it, and they deign to hear it.

In the Miller case, the High Court made a very narrow ruling about a sawed off shotgun. In fact they didn't even rule it illegal, they stated "we have been shown no evidence" and therefore agreed with the govt's position. The Govt, took that ruling and ran with it, stating that they won the case and EVERY portion of the 1934 NFA was constitutional. That court, and no succeeding court ever corrected the govt's interpretation.

We are seeing the same thing with Heller. What was actually written in the decision, and what some people are saying was decided are two distinctly different things. But don't expect the Court to fix that, they will tell you, and rightly so, that its not THEIR job!

As I understand the Hawaii ruling, the higher court simply said the lower court did not correctly interpret the law, go back and do it over....

That's not a "win". it is, however, not a total loss, either.

 

[zukiphile]

This is the point I keep trying to communicate unsuccessfully. Scalia’s prose isn’t vexatious but necessary. If you flip the table over and yell “Second Amendment!”, you won’t get five votes. Based on hindsight, you might get two. You’re coming from a culture that approved the 1968 GCA and 1994 AWB. The justices making these decisions are drawn from that culture, and not from the good ol’ boy segment either.*

I still think the language is vexatious, by definition, since it has been vexing us almost from the day it was released. Nonetheless, I recognize why he wrote it -- he needed to write something that would keep (or get) Kennedy on the pro-2A side. It did that, but in retrospect one has to wonder if there might not have been a better way to express it.

Emphasis added. Unless I am remembering oral argument incorrectly, Paul Clemente indicated that if Heller's claim were so broad that it would include NFA items, then the government would oppose recognition of the individual right. It was an argument suggested by Ginsburg and Breyer and made explicitly by DC counsel that granting Heller an individual right would necessarily invalidate firearms regulation generally, not just the one before the court. They raised the specter of legalized machine guns and (heaven forfend) armor piercing bullets!

So, advocates of reading an individual right out of the constitution saw a fear of crazy people walking out of an asylum to the machine gun store as an excellent prudential argument against the right. The majority opinion took that argument away from the minority. It is both correct (a case about a fellow having a right to an assembled pistol in his home resolves that specific question, but not every question), and it was politically necessary (those people who wouldn't take a free MSTN AR-10 Lightweight Ti aren't going to give insane people machine guns).

Aguila, I'd suggest that there are no magic way to convey that one is letting all other restrictions but DC's stand without communicating that you are letting them stand. As necessary as that signal was to the establishment of the individual right, it marks the beginning of the fight, not its conclusion.

The court knows clearly what it said, and what it meant, but other people take the court's words and use them for their own ends. And the court does not correct them.

Emphasis added. That is not gratifying. There was a bit of a brushback in Caetano, but we all hope circumstance brings a more full throated correction.

 

[Brian Pfleuger]

the courts speak in their own arcane tongue, little known and less understood by those outside the court system.

Sadly, that "arcane tongue" is no more than "high" education... I have a friend that owns a high-school (he says 9th grade but it doesn't say that anywhere) grade English Literature text book dated late 1800s... has the feel of a 2nd year college course in 2018.

Dumbing down the populace is a big part of the equation, and no accident.

 

[Metal god]

This ruling is likely to be appealed to the full Ninth Circuit now. However, it is precedent in the Ninth Circuit until overruled.

One would think there's an appeal coming but I don't think so . Not because Hawaii has given up but because it will take longer to get to the SCOTUS . Think about it , if they let it go back down to the lower court . It will take some time to work through that process and who ever looses there will appeal back to the 9th . A 3 judge panel will then rule again on the new-ish case and that will then be appealed either to the SCOTUS or en-banc .

I followed the Peruta case closely where the 9th en-banc panel ruled the right to carry concealed outside the home was not protected under the second amendment . Interestingly enough the 3 judge panel decision that prompted the en-banc to be called was authored by the same judge that authored this Hawaii decision . So the 9th has already ruled concealed carry is not protected in Peruta . So the judge in this case took that as precedent and ruled If conceal carry is not protected outside the home then open carry must be .

This brings up the question if the en-banc panel rules open carry is not protected either . That leaves a clear split between the DC circuit and the 9th circuit which the SCOTUS in theory must resolve .