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Court sets Standard of review in New York


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On 6/25/2022 at 4:09 PM, Craigcr2 said:

The problem with Heller was in Scalia’s writing style. In my opinion he was not cautious with his dicta and left phrases that were ripe for misapplication. 
 

Thomas has had the benefit of 14 years of hindsight and did not leave ambiguity. 

That's why Thomas' historical analysis was so excessive; it simply needed to be.

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On 6/25/2022 at 3:45 PM, Smallbore said:

I love this decision but the judges ignored Heller, what stops current judges from ignoring this decision?

 

I don't see Thomas ignoring Heller.  He references Heller quite a bit in the opinion and starting on page 9 attacks Strict Scrutiny, Intermediate Scrutiny and Rational Basis Review.  Thomas insists that cases need to utilize “textual analysis” focused on the “‘normal and ordinary’” meaning of the Second Amendment’s language, “confirmed by the historical background."

 

Like you, I don't see anything that "stops current judges from ignoring this decision"  The fact that we had gun bans in Chicago, Evanston, Highland Park, Morton Grove, Oak Park, Wilmette and Winnetka shows that the Constitution itself can't protect the Constitution.

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On 6/26/2022 at 10:25 AM, Tvandermyde said:

 a bunch of courts ignored Heller and this was a rebuke to them. they do so at their own peril this time

I'm grateful for what you do, but I don't see any "peril."  Democrat "jurists" are nothing but political lapdogs in robes.  They will continue doing what they always do (ignore the law and the constitution).  There are no actual consequences to them (judges), personally.  Democrats appoint or elect nothing but activists they are confident will legislate from the bench on their behalf,   Then, when they don't get their way because Republicans have appointed actual jurists to the bench, they have the nerve to cry "activism" and "politics," aghast that a court would actually rule based on the law and constitution, and not on Democrats' FEEEEEEELEEEEENGS ....

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My interpretation is that now that strict scrutiny is in place at the top of the legal food chain, it makes "activist" judges decisions more risky as they will not stand when pushed upwards in the legal food chain.  It's unfortunate that they will continue to rely on whether the side they rule against can muster the resources to push the case upward.

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On 6/26/2022 at 11:58 AM, DoYouFeelLucky said:

My interpretation is that now that strict scrutiny is in place at the top of the legal food chain, it makes "activist" judges decisions more risky as they will not stand when pushed upwards in the legal food chain.  It's unfortunate that they will continue to rely on whether the side they rule against can muster the resources to push the case upward.

From my understanding of the ruling means end scrutiny has been throw out.   It is not down to Text, History, Tradition and doesn't give any leeway for how a law is tailored, other than the government now has to prove that the conflicted law had some source of regulation per say, at the time of founding.

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On 6/26/2022 at 1:42 PM, RANDY said:

From my understanding of the ruling means end scrutiny has been throw out.  ...

 

This is correct. The previous judicial analysis was 2-step.

  1. Is the issue at hand covered by the Second Amendment?
  2. If yes, what is the balance between the interest of the state and the interest of the individual (i.e., tiered scrutiny -- rational, intermediate, strict)?

The opinion says that 2 steps is 1 step too many. The analysis should stop at the first step.

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On 6/26/2022 at 10:25 AM, Tvandermyde said:

 a bunch of courts ignored Heller and this was a rebuke to them. they do so at their own peril this time

Also, just to add to what you're saying:

 

Practically speaking, I doubt most judges really care about guns one way or the other (except those who are Second Amendment or gun control advocates themselves). From a practical standpoint, I think most will simply shrug their shoulders and say, "it's out of my hands now."

 

Look at how quickly California and New Jersey folded on good cause. Again, they likely didn't care enough to drag the issue out and figured it wasn't worth the effort to do so. A lot of these folks aren't gun control ideologues; they're only doing what they think is politically prudent. Since there's no political gain to be had, they likely decided to drop the issue.

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On 6/26/2022 at 12:42 PM, RANDY said:

From my understanding of the ruling means end scrutiny has been throw out.   It is not down to Text, History, Tradition and doesn't give any leeway for how a law is tailored, other than the government now has to prove that the conflicted law had some source of regulation per say, at the time of founding.

You’re correct. All forms of interest balancing are off the table. 

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What I find most interesting, is that because it's now a one step process, for all intents all case law that used scrutiny  while justifying and supporting the infringment is now basically just toilet paper.  Any new or revisited cases from this point have to be argued entirely different from a new with basically no case law to support the infringment, unless they can find case law from from th 1700s to mid 1800s, and it should be interesting what period the courts find appropriate and how much weight is given to any previous restrictions based on the date.

 

I'm of the opinion that in the most favorable reading, any 1900s laws and newer are bunk in referencing to support a new law, dare I say the NFA is likely on very flimsy ground itself as I don't believe much of it is supported by previous regulations from earlier periods.

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On 6/26/2022 at 11:21 AM, 2A4Cook said:

I'm grateful for what you do, but I don't see any "peril."  Democrat "jurists" are nothing but political lapdogs in robes.  They will continue doing what they always do (ignore the law and the constitution).  There are no actual consequences to them (judges), personally. 


A peril now is that their rulings will be overturned, it goes on their record of how many of their cases get overturned - this could effect getting reelected to the bench or elected or appointed to a higher bench.
 

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This overturns Peruta and a lot of other badly decided cases which applied improper standards of review.

 

Judge William Fletcher, United States Court of Appeals for the Ninth Circuit:

Peruta v San Diego

 

Based on the overwhelming consensus of historical sources, we conclude that the protection of the Second Amendment — whatever the scope of that protection may be — simply does not extend to the carrying of concealed firearms in public by members of the general public.

http://cdn.ca9.uscourts.gov/datastore/general/2016/06/09/10-56971 6-9 EB opinion plus webcites.pdf


Justice Thomas, Supreme Court of The United States

New York State Rifle & Pistol Association Inc,. et al. v Bruen, Superintendant of New York State Police, et al.
 

To confine the right to “bear” arms to the home would nullify half of the Second Amendment’s operative protections. The Second Amendment’s plain text thus presumptively guarantees petitioners Koch and Nash a right to “bear” arms in public for self-defense.

https://www.supremecourt.gov/opinions/21pdf/20-843_7j80.pdf

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On 6/26/2022 at 1:08 PM, Craigcr2 said:

You’re correct. All forms of interest balancing are off the table. 

I have supposed lawyers that practiced at the supreme court saying that Text, History, Tradition is strict scrutiny.     So they are saying that strict scrutiny is now the standard but can't seem to get past that the ruling rejects all forms of ends mean scrutiny.   I guess the plum will be in the pudding when the lawsuits start and see how they word the briefs.

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On 6/26/2022 at 12:58 PM, MrTriple said:

Look at how quickly California and New Jersey folded on good cause.

 

Of course, the letter the California AG sent out states that they intend to abuse "Good Moral Character" going forward, so they are not folding but intending to simply abuse another portion of the law for a few years.

 

They're also considering using viewpoints they dislike to be disqualifying.. including anyone they consider "Racist" for example.  Anyone arrested for any reason, regardless of disposition in the last 5 years, etc.

 

https://reason.com/volokh/2022/06/26/state-attorney-general-suggests-considering-applicants-ideological-viewpoints-in-denying-carry-licenses/

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On 6/27/2022 at 10:22 AM, RANDY said:

I have supposed lawyers that practiced at the supreme court saying that Text, History, Tradition is strict scrutiny.   ...

 

Tiered scrutiny was a "balancing" of the interest between the state and the individual (i.e., does the interest of the state override the interest of the individual, even though the issue at hand is a constitutionally-protected civil liberty). In a few words:

 

Rational basis: Is the law not arbitrary, capricious, or unreasonable?

Intermediate scrutiny: Does the law achieve its intended effect?

Strict scrutiny: Is the law narrowly tailored?

 

Strict scrutiny would still consider the interest of the state. So a narrowly tailored law, which would have passed tiered scrutiny before, can now fail Constitutional review. The interest of the state is no longer considered. (IMO it will be interesting to see how much, in practice, it's not considered.)

 

For example, before the 1960s, the only crimes for which people convicted would lose their 2A rights were murder, rape, burglary, and treason. In the 1960s the prohibition was expanded to all felonies, as a matter of backdoor racism, because the majority of felons (particularly drug offenders) are non-white. During the 1960s, politicians were worried that non-white people might actually choose to exercise their 2A rights. Nevertheless, such a law is narrowly tailored, since felons are still a small minority of the population overall and arguably a disproportionately greater danger. So people who, e.g., write bad checks, lie on a loan application, or rip a DVD online (and get convicted) are denied their 2A rights, because those things are felonies.

 

It makes a lot of sense to me for the ACLU to be all over my example, but they probably won't be.

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On 6/27/2022 at 10:11 AM, Upholder said:

 

Of course, the letter the California AG sent out states that they intend to abuse "Good Moral Character" going forward, so they are not folding but intending to simply abuse another portion of the law for a few years.

 

They're also considering using viewpoints they dislike to be disqualifying.. including anyone they consider "Racist" for example.  Anyone arrested for any reason, regardless of disposition in the last 5 years, etc.

 

https://reason.com/volokh/2022/06/26/state-attorney-general-suggests-considering-applicants-ideological-viewpoints-in-denying-carry-licenses/

 

Not really surprising, since some states or localities will fight these changes (or any others) tooth and nail. The real questions will be:

 

-How far will they care to drag the issue out?

-How far will the courts care to drag the issue out?

-How far will they be willing to go before they simply give up and/or decide it isn't worth the effort?

 

California really is the exception rather than the norm on these sort of things (and on other issues, too). They're willing to go full throttle on something insane rather than admit defeat, no matter how damaging it is to their cause.

 

The truth is, this new standard of review isn't friendly towards gun control at all. And while some judges or circuits (like the ninth) may try finding sly little workarounds here and there, the question remains of how far other judges or circuits are willing to let the gun control movement go. Some, I believe, will simply side with the pro-gun side rather than waste their energy on a fight they can't win.

 

Maybe I'm wrong, but we have to remember that not all circuits are like the ninth.

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Also remember that the court is still sitting on four other gun cases. What they do with those will reverberate down through the circuits. If they GVR them? That'll serve as a signal of the court's thinking. Would any judge want to, say, uphold Cook County's "assault weapons" ban if Bianchi v. Frosh gets GVR'ed?

 

And what if they actually grant cert on one of these cases? That would have a tremendous impact.

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On 6/27/2022 at 11:55 AM, Euler said:

 

Tiered scrutiny was a "balancing" of the interest between the state and the individual (i.e., does the interest of the state override the interest of the individual, even though the issue at hand is a constitutionally-protected civil liberty). In a few words:

 

Rational basis: Is the law not arbitrary, capricious, or unreasonable?

Intermediate scrutiny: Does the law achieve its intended effect?

Strict scrutiny: Is the law narrowly tailored?

 

Strict scrutiny would still consider the interest of the state. So a narrowly tailored law, which would have passed tiered scrutiny before, can now fail Constitutional review. The interest of the state is no longer considered. (IMO it will be interesting to see how much, in practice, it's not considered.)

 

For example, before the 1960s, the only crimes for which people convicted would lose their 2A rights were murder, rape, burglary, and treason. In the 1960s the prohibition was expanded to all felonies, as a matter of backdoor racism, because the majority of felons (particularly drug offenders) are non-white. During the 1960s, politicians were worried that non-white people might actually choose to exercise their 2A rights. Nevertheless, such a law is narrowly tailored, since felons are still a small minority of the population overall and arguably a disproportionately greater danger. So people who, e.g., write bad checks, lie on a loan application, or rip a DVD online (and get convicted) are denied their 2A rights, because those things are felonies.

 

It makes a lot of sense to me for the ACLU to be all over my example, but they probably won't be.

 

So does this mean that the varying levels of Scrutiny only applies only to 2A matters or all Constitutional matters? 

Reading the latest decision from Goursech I think he is applying strict scrutiny in that case?

I believe the case is Kennedy v. Bremerton School Dist.  

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On 6/27/2022 at 1:06 PM, mab22 said:

 

So does this mean that the varying levels of Scrutiny only applies only to 2A matters or all Constitutional matters? 

Reading the latest decision from Goursech I think he is applying strict scrutiny in that case?

I believe the case is Kennedy v. Bremerton School Dist.  

Basically the varying levels of Scrutiny are not to be considered in 2A matters.. IE,  ends mean scrutiny was rejected in the ruling.  The SCOTUS claims they didn't use scrutiny in their ruling in Heller and the courts can't read because we said we didn't use scrutiny in Heller but you didn't listen so we had to spell it out for you.

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On 6/27/2022 at 2:06 PM, mab22 said:

So does this mean that the varying levels of Scrutiny only applies only to 2A matters or all Constitutional matters? 

...

 

On 6/27/2022 at 3:30 PM, RANDY said:

Basically the varying levels of Scrutiny are not to be considered in 2A matters.. ...

 

That's my understanding. Tiered scrutiny can apparently still be used for other civil liberties. NYSRPA needed a heavier hand.

 

Kennedy v Bremerton was also more complex than the NYSRPA case. Kennedy could have been acting in his capacity as a government employee rather than as an individual. The court determined that he was acting as an individual, not as a government agent. I believe even the school understood him to be acting as an individual. The school fired him because of the ambiguity that someone else might perceive him to be acting as a government agent, which would put the school at risk of a civil suit. The irony is that firing him precipitated a civil suit, anyway.

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On 6/28/2022 at 12:41 AM, Euler said:

NYSRPA needed a heavier hand.

 

I think it was less of NYSRPA needing the heavier hand and more like the lower courts needing a heavier hand forcing them to accept Heller and that the 2nd is in fact a right, a right that is codified in the Constitution as "Shall not be infringed"

 

Sadly I think we all know the SCOTUS is going to have to remind the lower courts a few more times before they actually 'get it'

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I agree with you @Flynn,   SCOTUS is going to either grant cert, or basically tell the lower courts that is you send us a 2A case were are going to GVR it back for reconsideration.   They will need to stop denying those cases and actually fix them.  If they done that to previous cases that got denied we wouldn't be in this mess now.

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