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Is there really any such thing as "settled law" regarding the 2A?


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#1 vito

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Posted 24 January 2017 - 09:01 AM

With Supreme Court decisions increasingly decided on strictly partisan basis, can there really be such a thing as "settled law" on issues related to the 2nd Amendment? Soon we will have a conservative ninth member of the Court, and we can expect favorable rulings supporting our gun rights, but isn't it likely that such ruling will only last as long as Constitutionalists have a majority on the Court? I can foresee a future where there is no such thing as "settled law" and major questions regarding the Constitution will be decided solely based on the ideological background of the appointed Justices. Probably not what the Founding Fathers envisioned. 


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#2 Hap

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Posted 24 January 2017 - 09:25 AM

Look up "stare decisis."

 

The problem with 2A law is that Heller and McDonald leave a lot of ground uncovered. There have been very few Supreme Court decisions since then, and a lot of cases at lower levels where they've denied cert. This was true even before Scalia died, so it's not clear what the effect of replacing him with a conservative would be. If one of the existing anti-2A justices leaves, that might be a different story.

 

With the ground well-covered, the question becomes how seriously the Court takes the notion of stare decisis. In general they are reluctant to do anything more than nibble away at the edges of past decisions. The more territory is covered by those decisions, the safer the Constitution is.


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#3 Plinkermostly

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Posted 24 January 2017 - 10:57 AM

Lordy yes -- would love to have some of the 'law' clarified as to what our rights really are and not have to put up with all the 'infringement' that has become a way of life in some arenas.   Hot issues include the difference between evil black looking rifles and true assault weapons, the size of clips (ops, magazines), why a GFZ doesn't mean what 'they' think it does and why that matters, 'home' vs public defensive protection, et al ad nauseam.  Oh for some clarity and real logic.  



#4 press1280

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Posted 24 January 2017 - 11:17 AM

Although a future court could overrule Heller, it's likely they would try to make it look like they're still following it. So yes, you can still own a handgun but the sky's the limit as far as regulation goes.
We've already seen the court at least once already with Caetano show that they're not going to ditch Heller.

#5 gangrel

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Posted 24 January 2017 - 11:22 AM

With Supreme Court decisions increasingly decided on strictly partisan basis, can there really be such a thing as "settled law" on issues related to the 2nd Amendment? Soon we will have a conservative ninth member of the Court, and we can expect favorable rulings supporting our gun rights, but isn't it likely that such ruling will only last as long as Constitutionalists have a majority on the Court? I can foresee a future where there is no such thing as "settled law" and major questions regarding the Constitution will be decided solely based on the ideological background of the appointed Justices. Probably not what the Founding Fathers envisioned. 

I can't agree more that we need a pro-2A replacement for Scalia, and at least one anti to be replaced with another pro-2A, for the sake of getting our cases heard on issues that are still outstanding.  But any time I see someone bring up the "McDonald will only hold up until the balance of the court shifts" argument, I feel compelled to ask...SCOTUS last had a liberal tilt in the 1969, prior to the resignation of Abe Fortas.  At times since then, the Conservative balance was as much as 8-1, after the retirement of Thurgood Marshall, when Byron White, then Ruth Bader-Ginsburg, was the only liberal justice on SCOTUS.  In fact, SCOTUS was no less than 7-2 conservative balance from William Douglas' retirement in 1975 until the appointment of Stephen Breyer in 1994.  If changing the balance of the court clearly led to reversing of opinions that lean the other direction, why was Roe v. Wade (1975) not reversed during 19 years of conservative dominance of the court?

 

The truth is, stare decisis or not, SCOTUS does not as a general rule reverse itself once it has given an opinion.  As mentioned above, Heller and McDonald gave us very good solutions to very narrow issues.  The cases were built that way on purpose, so as to give us a better chance of winning on a small bite of the apple, rather than a better chance of choking on the whole thing.  I would agree that we are one bad decision away from having our forward progress halted.  But it is a stretch to say that we are one bad decision away from losing the ground we already made.  The opinions that ground is built on have already been issued.


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#6 lawman

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Posted 24 January 2017 - 11:26 AM

The only area of law considered "settled" is contracts.  As far as 2A, Heller is not going away.  If you look up selective incorporation of the bill of rights, the concept is ridiculous; they are either all in or all out.  This was my opinion when I first heard of it as an undergraduate.  With Heller incorporating the 2A, There's no way the court could logically overturn it.  Coupled with stare decisis, it is here to stay.  However, the more decisions on regulation and scope of Heller, the better.  Leaves less wiggle room for future courts to craft b.s. rulings.



#7 vito

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Posted 24 January 2017 - 11:32 AM

I guess I was influenced by how many times I have read the Judge Ginsburg has said that she still believes the the 2nd Amendment does not confer an individual right to keep and bear arms. I have little doubt about Kagen and Sotomayor siding with her. Had Obama's nominee been approved for the Supreme Court it seemed to me that the liberal majority would have sought out an opportunity for an outright reversal of Heller and MacDonald. I hope I am just wrong about that. But more importantly, we dodged that bullet. With a Conservative to replace Scalia, and the likelihood that Ginsburg cannot last for the entire Trump first term, we have a good chance of at least not losing ground for the foreseeable future. Maybe that's the best we can really hope for. 


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#8 skinnyb82

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Posted 24 January 2017 - 11:58 AM

There is no such thing as "settled law." SCOTUS does reverse itself but not frequently. I believe the last time it reversed itself was a Sixth Amendment case, and that decision overruled a decision ten years prior. So....yeah, it's never settled. New jurists may reverse the court, but it is done so infrequently that it's not really an issue. Especially if the ruling is several decades old as it has stood, never been challenged, so why reverse it now? Bottom line, they won't reverse a sound ruling. SCOTUS Justices respect one another as colleagues and jurists. They may have diverging views, but they are professionals (in a sense). That being said, there's such a thing as "clearly established law" (such as the right to not be tasered by police while handcuffed and not resisting), which is stare decisis. It applies to Section 1983 cases. Any intro to law course will pound "stare decisis" into the heads of students. The problem, as illustrated above, is that Scalia left Heller so open-ended that it may be interpreted in a convoluted manner by activist judges, using it to justify ammo bans, gun bans ("dangerous AND unusual," don't get me started on judges not knowing the meaning of "and"). However, it is the precedent set and it has guided a plethora of courts in deciding Second Amendment cases. As has McDonald. They're not going anywhere. In regard to Trump's upcoming SCOTUS nominee, it's worth noting that Circuit Judges Neil Gorsuch and Bill Pryor both met with Trump. Apparently he's a front-runner along with Pryor (who will have a problem on his hands as he stated Roe v. Wade is the "worst abomination in the history of constitutional law"). IMO Gorsuch is actually a better pick because of his....he absolutely despises administrative law, hates Chevron, and wants to abolish ad law. He delivered a notable dissent in a UPF case where he argued the government must establish a mens rea element (forgot actual legal lingo, but must establish the defendant had criminal intent, awareness) for the felon status (felon must know he or she is a felon and must know felons are barred from possessing firearms). He dissented in a denial of rehearing en banc and SCOTUS adopted his reasoning in overturning the same CA10 ruling. Judge Sykes is a landmine waiting to blow. She delivered an opinion that stated employers are permitted to discriminate based on sexual orientation. The panel ruling was vacated and reheard en banc. Not sure of the outcome. She also praised two men who welded a man's leg to the door of an abortion clinic (welded someone to something at an abortion clinic, believe it was a door) in Milwaukee, then gave them a slap on the wrist. Trump would be a fool to nominate her as she's too controversial and Schumer will have a field day with her if nominated. I have no doubt that Pryor or Gorsuch would be confirmed but not after an ugly fight on the Senate floor, but Sykes....not so sure. Sent from my VS987 using Tapatalk
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#9 gangrel

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Posted 24 January 2017 - 12:23 PM

Judge Sykes is a landmine waiting to blow. She delivered an opinion that stated employers are permitted to discriminate based on sexual orientation. The panel ruling was vacated and reheard en banc. Not sure of the outcome. She also praised two men who welded a man's leg to the door of an abortion clinic (welded someone to something at an abortion clinic, believe it was a door) in Milwaukee, then gave them a slap on the wrist. Trump would be a fool to nominate her as she's too controversial and Schumer will have a field day with her if nominated. I have no doubt that Pryor or Gorsuch would be confirmed but not after an ugly fight on the Senate floor, but Sykes....not so sure. Sent from my VS987 using Tapatalk

Based on what I am reading, they welded their own legs to the front of a car parked at the entrance of the clinic.  Reading the above, it sounds like the two men welded the legs of a third man to the car, possibly against his will.  That does not appear to be the case.  Still wrong, still shouldn't be praised, but if they did it to themselves, it changes the severity a bit, at least in my book...


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#10 MrTriple

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Posted 24 January 2017 - 12:33 PM

When it comes comes to stare decisis I'm reminded of Scalia who, if I'm not mistaken, was hesitant to attack Roe v. Wade because of stare decisis, despite being very pro-life personally.

Secondly, if we can get more pro-gun rulings that'll further cement our gains and further cripple the gun control movement. It's like building a house: once you start laying bricks on that foundation, it's hard to reverse course and "unbuild" things. I suspect that the only reason why Friedman was denied cert was because Alito and Roberts didn't trust Kennedy and decided to strategically deny cert to avoid him siding with the liberals. Supposedly Kennedy came to regret being in the majority on Heller and McDonald, and Roberts didn't wanna risk it.

As for Ginsberg, she promised to retire soon, so I hope she keeps her promise. Once she does, then we have the five-justice, pro-gun majority we need to settle other contentious issues like "assault weapons", magazines, and concealed carry. If we're lucky, we might even be able to attack gun registration and gun owner licensing.

Edited by MrTriple, 24 January 2017 - 12:34 PM.

"The point of [so-called "assault weapon" bans]...is not to ban firearms that are dangerous, it's to ban firearms that gun owners want to own because the people making the laws don't like gun owners. If we want to buy non-semiauto AR-style rifles, they'll ban those too, and for the same reason."

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#11 skinnyb82

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Posted 24 January 2017 - 05:18 PM

Speaking of retirements, Kennedy stated back 2010 that he will not retire until Obama is out of office. Well, time to put your money where your mouth is, Justice Kennedy. Rumor has it he's planning to sit for another term, then retire. Rumors of Thomas entertaining retirement as well. Sent from my VS987 using Tapatalk

Edited by skinnyb82, 24 January 2017 - 05:20 PM.

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#12 MrTriple

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Posted 24 January 2017 - 06:16 PM

Speaking of retirements, Kennedy stated back 2010 that he will not retire until Obama is out of office. Well, time to put your money where your mouth is, Justice Kennedy. Rumor has it he's planning to sit for another term, then retire. Rumors of Thomas entertaining retirement as well.

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No, Thomas' wife cleared the record and said that was an unsubstantiated rumor; he's not planning on retiring soon.

As for Kennedy, he'll probably pull a Ginsberg and change his mind.
"The point of [so-called "assault weapon" bans]...is not to ban firearms that are dangerous, it's to ban firearms that gun owners want to own because the people making the laws don't like gun owners. If we want to buy non-semiauto AR-style rifles, they'll ban those too, and for the same reason."

-Hapless

#13 GTX63

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Posted 24 January 2017 - 06:35 PM

The term "settled law" is used a lot by the left (and by a well known liberal member of this forum, who is no longer active) as a means of silencing any rebuttal. "Settled science" is also used in the same way regarding global warming; don't bother debating since 97% of all liberal scientists and Al Gore say it is real. The irony is that they still quiver every time a conservative runs for any meaningful position, that if they are elected, a woman's right to choose and get health care will be ripped from the books. It is settled law when they favor it, yet for ie the second amendment, well, don't look away or you might miss something.



#14 press1280

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Posted 25 January 2017 - 09:16 AM

Just look at the Slaughterhouse cases. Basically everyone says it was wrongly decided and SCOTUS has incorporated almost all of the Bill of Rights, but yet, it's "settled law" so it isn't directly overturned.

#15 BobPistol

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Posted 26 January 2017 - 06:36 AM

Just look at the Slaughterhouse cases. Basically everyone says it was wrongly decided and SCOTUS has incorporated almost all of the Bill of Rights, but yet, it's "settled law" so it isn't directly overturned.

 

Filburn as well, another "settled case" which SCOTUS is hesistant to shut down, so they settle for tiny chips here and there.  The Feds have the right to regulate intrastate commerce?  Where is that in the Constitution? Oh, the court sez so, that's why.


The Second Amendment of the Constitution protects the rest.

#16 press1280

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Posted 26 January 2017 - 08:43 AM

There's the commerce clause although it's a guarantee the founders didn't intend that someone growing wheat in their own yard would be interstate commerce.

#17 skinnyb82

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Posted 26 January 2017 - 09:13 AM

Nope. The Supreme Court has effectively been redrafting the federal constitution ever since the institution was created. I mean, Dred Scott isn't a human being so he had no rights? That's a seriously convoluted interpretation of the constitution. Slaughterhouse cases, yeah. Not only specific case law but the 4A Exclusionary Rule has been chipped away over the years, adding in a general Automobile Exception, attenuation, etc. Latest is Utah v. Strieff, so now you may be approached by any LEO for any reason whatsoever (no RS required), be required to produce identification on demand, and, if one has a warrant out for something trivial such as FTA for a speeding ticket, the person may be arrested and any fruits of the seizure are admitted into evidence. Sent from my VS987 using Tapatalk
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