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Drake v. Jerejian


kevinmcc

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Frankly, I thought this was settled in Heller.

 

Like most rights, the Second Amendment right is not unlimited. It is not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose: For example, concealed weapons prohibitions have been upheld under the Amendment or state analogues. The Court’s opinion should not 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. Miller’s holding that the sorts of weapons protected are those “in common use at the time” finds support in the historical tradition of prohibiting the carrying of dangerous and unusual weapons.

 

If the second amendment (as stated in the decision) protects carrying at all, banning carry for those without 'justifiable need' is unconstitutional, you'd think, just as it would be banning all firearms. Am I wrong? How is it not clear?

 

Now, "concealed weapons prohibitions have been upheld under the Amendment or state analogues", to me, isn't saying prohibitions in general such as these - but rather 'sensitive places' and 'dangerous and unusual weapons'. Not an outright prohibition on carrying as an act.

It also doesn't say carry outright, it says "concealed carry", which doesn't shut the door on open carry.

 

Well, I think the decision (other parts) also says a lot about NFA/Hugues, but that's for another topic, I guess.

Edited by s0beit
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If the supremes find there is no right to carry concealed what happens to our law . It was based on there being that right.

The law remains until it's repealed, and there's not nearly enough votes for that to happen. Bear in mind that there was majority support in the House before Moore v. Madigan for concealed carry.
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If the supremes find there is no right to carry concealed what happens to our law . It was based on there being that right.

The law remains until it's repealed, and there's not nearly enough votes for that to happen. Bear in mind that there was majority support in the House before Moore v. Madigan for concealed carry.

 

 

We had a majority before Moore but there was zero chance of it getting past the Senate then. There was no reason not to vote for it, and no doubt at least some who did vote for it voted for it solely because it was going to fail, and everyone knew it.

 

In any case, I think it unlikely Mike Madigan would allow his handiwork to be disturbed.

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The Court granted cert in Heien v. North Carolina, that oughtta be a good one since it involves LEO mistake of law and the Fourth Amendment implications. Courts are split over the constitutionality of LEOs pulling people over for traffic violations that aren't violations at all, then searching the vehicle and finding something the driver shouldn't have.

 

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The Court granted cert in Heien v. North Carolina, that oughtta be a good one since it involves LEO mistake of law and the Fourth Amendment implications. Courts are split over the constitutionality of LEOs pulling people over for traffic violations that aren't violations at all, then searching the vehicle and finding something the driver shouldn't have. Sent from my SCH-I545 using Tapatalk 2

 

It amazes me there is a split, it's long been established that ignorance of the law is not a legal excuse/defense, but clearly some courts believe it is but only if you are a LEO...

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The ends justify the means according to the courts which allowed evidence and testimony to be admitted into the record after a LEO stops someone pursuant to a mistake of law, resulting in search (and seizure). Bottom line is that LEOs are, or had better be held to a higher standard than any of us who do not enforce the law. That "I didn't know it's legal for...." crap should not fly when the Fourth Amendment is involved. If a LEO pulls someone over or otherwise temporarily detains them pursuant to Terry, any mistake of law that resulted in the detention should result in whatever evidence found be declared inadmissible and, God forbid if some cop pulls over a motorist for quite literally no reason (oops I thought that was illegal...turns out it is legal...my bad) then it should be goodbye qualified immunity. If some cop just pulls me over and tells me he pulled me over for (insert alleged traffic violation that is not a traffic violation like doing 45 in a 45 zone and the LEO thinks the speed limit is 35) and said cop feeds me the "car smells like cannabis" line, asks for consent to search (I say no, dog comes out, dog hits on something not there, hello PC) and the police proceed to tear apart my car, find nothing, then say "sorry" and let me go....erm yeah that won't turn out well.

 

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If the supremes find there is no right to carry concealed what happens to our law . It was based on there being that right.

The law remains until it's repealed, and there's not nearly enough votes for that to happen. Bear in mind that there was majority support in the House before Moore v. Madigan for concealed carry.

 

 

 

I think you're right about that.

 

If you look back to HB148 in the 97th General Assembly, there's really no doubt we had simple majorities on our side of the vote. Even though the legislative make up has changed since then, I don't think it's changed that much. It was the super majority 71 vote needed in the House that proved problematic. We had that until the Speaker actively worked against us and pulled 3 (if memory serves) votes away, still leaving us with a good majority on the right side of things.

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The Court granted cert in Heien v. North Carolina, that oughtta be a good one since it involves LEO mistake of law and the Fourth Amendment implications. Courts are split over the constitutionality of LEOs pulling people over for traffic violations that aren't violations at all, then searching the vehicle and finding something the driver shouldn't have. Sent from my SCH-I545 using Tapatalk 2

 

Yeah, speaking of that, they released Navarette v California today. Upheld the state's ability to search your vehicle based on an anonymous tip.

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I read the syllabus. Odd that Thomasdelivered the opinion with Roberts, Alito, Kennedy and Breyer either joining or concurring and Scalia, Ginsburg, Sotomayor and Kagan dissenting. Breyer also went with the majority in Schuette (sp?). I thought Navarette would be a good case but now an anonymous tip gives a LEO enough PC to initiate a traffic stop without actually observong someone's erratic driving. It's kinda troubling in that anyone can just call the cops on any car and have them pulled over on suspicion of DUI.

 

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Back to Drake. Scotusblog has a very encouraging post up today. They note that all cert grants from the past several conferences had all been relisted. They speculate that a relist may indicate a provisional acceptance, an opportunity for one last review pending cert.

 

Certainly no guarantee, but that's another angle to look at this as we wait for Monday.

 

Sorry for not linking, can't figure out how on tapatalk.

 

Edited by Matt B
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I read the syllabus. Odd that Thomasdelivered the opinion with Roberts, Alito, Kennedy and Breyer either joining or concurring and Scalia, Ginsburg, Sotomayor and Kagan dissenting. Breyer also went with the majority in Schuette (sp?). I thought Navarette would be a good case but now an anonymous tip gives a LEO enough PC to initiate a traffic stop without actually observong someone's erratic driving. It's kinda troubling in that anyone can just call the cops on any car and have them pulled over on suspicion of DUI. Sent from my SCH-I545 using Tapatalk 2

 

I agree, but really nothing changes, police have been making up fantasy excuses for decades to pull people over... Having real and justified probable cause for any police action pretty went out the window long ago from stop and frisk to full out gun blazing no knock warrants...

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Police don't need "fantasy excuses" for probably cause. The traffic law is written as such that someone inadvertently violates the law ever minute while driving. I never had a problem finding a legitimate PC. I don't see why an officer would pull over a dui suspect on hearsay. The driving violations are a large part of the case in showing that the driver was a threat to themselves and the community. Of course, waiting to see if a reckless driver will sideswipe another car is probably not a good idea.

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Police don't need "fantasy excuses" for probably cause. The traffic law is written as such that someone inadvertently violates the law ever minute while driving. I never had a problem finding a legitimate PC. I don't see why an officer would pull over a dui suspect on hearsay. The driving violations are a large part of the case in showing that the driver was a threat to themselves and the community. Of course, waiting to see if a reckless driver will sideswipe another car is probably not a good idea.

 

Well having been on the receiving end of 'fantasy excuses' for both traffic stops and even warrants being served against me I fully beg to differ...

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Back to Drake. Scotusblog has a very encouraging post up today. They note that all cert grants from the past several conferences had all been relisted. They speculate that a relist may indicate a provisional acceptance, an opportunity for one last review pending cert.

 

Certainly no guarantee, but that's another angle to look at this as we wait for Monday.

 

Sorry for not linking, can't figure out how on tapatalk.

 

http://www.scotusblog.com/2014/04/relist-watch-what-does-the-courts-relist-streak-mean/

 

This is indeed the theory, after 3 cert grants were reversed as improperly granted.... They want to be sure I think.

 

Edited by RoadyRunner
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Improvidently granted cert petitions are rare so the fact that they have had three of them during the 2013-2014 term is shocking in and of itself. Levin v. Madigan is the first one. Scalia even told Scodro (or Levin's counsel) during arguments that the petition should be dismissed.

 

This case is an excellent vehicle, better than Woollard IMO because CA3 all but admitted that carry outside the home is a constitutionally protected right but the NJ law is constitutional because of "long-standing tradition" (and they were off by about 40 years in re existence of the statute itself). So uh, NJ law trumps the Federal Constitution, I guess I wasn't paying attention in, well, every history, political science, and law class. Or the majority just didn't care and wanted to get it off their plate, or didn't want to make a favorable ruling for Drake/Mueller but blew the door wide open for a SCOTUS reversal. If they deliberately ignored everything one learns in Law 101, that's a royal screw-up (an attorney I work with read the opinion and kept saying "Oh my God this is horrible they need to be put on notice that they cannot apply rational basis in cases like this then (expletive, bull excrement) call it intermediate scrutiny when that's not even the correct standard of review.").

 

I'd also bet money that Judge Hardimann's scathing dissent caught the Justices' eyes because he tore the majority a new one. It's a Kozinski style dissent.

 

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