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Posted: 2/24/2007 8:02:55 AM EST
Lately, I have been trying to put myself in the position of a Supreme Court Justice making a decision on a Second Amendment case to try and get a feel for what type of opinion might come out of a case. Here is what I am seeing:

Collective Rights argument: From a judicial perspective, this is the easiest solution. It is already the majority view in most circuits and it allows Congress to legislate firearms on a rational basis (i.e. if Congress has a rational basis for believing that single-shot squirrel rifles are a common tool for criminals they can ban single-shot squirrel rifles even if the evidence supporting this belief is scant or non-existent). Congress already legislates firearms on a rational basis (example: the 1994 AWB), so this test doesn't change the status quo.

The downside to this is something like 90% of Americans believe the Second Amendment protects an individual right to own firearms, including roughly 20% of the people who want them banned. Further, the collective rights argument is a tough sell. Some very bright legal minds have tried to justify it without much success. If you make a collective rights decision now, you have basically yelled "let's get it on!" to millions of armed Americans whose views are shared by an overwhelming majority of their fellow citizens.

Individual Rights: This comports with what most Americans believe. The arguments for it are much better supported historically. The problem now though is practically none of the individual rights in the Bill of Rights are treated under a rational basis test. Even rights not specifically protected in the Bill of Rights get a stricter test than rational basis. So if you say the Second Amendment protects an individual right, you are now stuck with a thorny problem. Even though most Americans believe you have a right to bear arms (including many who want to see that right disappear), they also tolerate a lot of impositions on that right and are jumpy about changes

If you apply the strict scrutiny standard used for the First Amendment, you have just invalidated most of the federal gun laws since 1934. None of the current justices (except maybe Thomas) are likely to go along with that. Even the conservative justices who support an individual rights view of the Second aren't going to want to undo 70 years worth of federal firearms law - especially when the current system seems to be in equilibrium. However if you use a rational basis, you are making the individual right a meaningless one and setting a new low for the Bill of Rights. If you use strict scrutiny, you have upset the applecart in a big way and the people who make it to the Supreme Court don't get there by doing that.

So what you need is an intermediate standard - something between a rational basis and strict scrutiny that will allow most of the existing federal firearms law to remain on the books for the time being. The problem here is that most of the attempts at an intermediate standard (affirmative action, abortion) have been miserable failures that have just clouded the issue more. However, if you can create a clear test for individual rights that doesn't invalidate most existing firearms law, you can have your cake and eat it too. You also stand a much better chance of getting the votes for an individual rights opinion.

In addition, you want the intermediate standard to be as clear as possible so that you don't have to tangle with the sticky constitutional problems you are going to have trying to reconcile current firearms law with the Second Amendment. If you don't give a clear line, you'll just have this problem again as soon as the circuit courts interpret your test differently - and they almost certainly will do that if you give them any leeway.

The problem as I see it is that it is incredibly difficult to craft an intermediate standard that protects an individual right to bear arms, sets a clear line for lower courts, and doesn't overturn a lot of existing firearms law.

Even at the circuit court level there is some support for an individual rights view. The 5th Circuit has supported this view in dicta and some of the concurring opinions in collective rights cases (like the 8th Circuit's US v. Hale) say things like "I also agree that Hale's possession of the particular weapons at issue in this case is not protected by the Second Amendment. I disagree, however, that Cases v. United States, 131 F.2d 916 (1st Cir.1942); United States v. Warin, 530 F.2d 103 (6th Cir.1976); United States v. Oakes, 564 F.2d 384 (10th Cir.1977) and United States v. Nelson, 859 F.2d 1318 (8th Cir.1988) properly interpret the Constitution or the Supreme Court's holding in United States v. Miller, 307 U.S. 174, 59 S.Ct. 816, 83 L.Ed. 1206 (1939) insofar as they say that Congress has the power to prohibit an individual from possessing any type of firearm, even when kept for lawful purposes. Judge Gibson's opinion seems to adopt that premise and with that holding, I disagree."

So, the circuit courts are in the same bind. None of them wants to adopt a view that puts the circuit courts in conflict or invalidates a bunch of federal gun law. It seems to me that the key to getting an individual rights decision in the courts is going to be coming up with some workable intermediate standard.


Link Posted: 2/24/2007 8:22:45 AM EST
There are still too many liberal activist judges on the SCOTUS. I would rather wait until we get more conservative judges on the SCOTUS before they get to a 2A case.
Link Posted: 2/24/2007 8:25:19 AM EST
While I can't read their minds, I bet $1 they're worried about an armed rebellion should they rule against the 2nd & the personal danger they'd face after the ruling(s).

Rightfully so on both counts, IMO................
Link Posted: 2/24/2007 8:26:07 AM EST
[Last Edit: 2/24/2007 8:26:29 AM EST by roboman]
I think it's because, depending on the case, their ruling could either essentially wreck the 2nd Amendment for good or make all current Gun Control unconstitutional. In the eyes of the SCOTUS Judge, neither is a good idea.
Link Posted: 2/24/2007 8:29:45 AM EST
they will not ever grant cert on a broad case involving the sec. it would open a huge can of wo0rms no matter how they decide so they willcontinue to allow the hodge podge of state and fed regulation that currently exist foras long as they can get away with it.
Link Posted: 2/24/2007 4:46:08 PM EST

Originally Posted By BobCole:
While I can't read their minds, I bet $1 they're worried about an armed rebellion should they rule against the 2nd & the personal danger they'd face after the ruling(s).

Rightfully so on both counts, IMO................

Yeah, right. From the threads I've seen here, most of you guys are so ready to wet your panties at the thought of even teaching a neighborhood girl how to shoot (who knows what "lists" you might end up on then!) that an "armed rebellion" is about as likely as me winning the Miss America contest.
Link Posted: 2/24/2007 4:50:55 PM EST
[Last Edit: 2/24/2007 5:07:05 PM EST by Wombat]

Parker v. DC

edit to link to briefs.
Link Posted: 2/24/2007 4:51:15 PM EST
[Last Edit: 2/24/2007 4:52:54 PM EST by GAcop]
They know deep down in their hearts that all gun laws are unconstitutional and they don't want to admit it. What part of "THE PEOPLE" and "NOT BE INFRINGED" do they not understand?????
Link Posted: 2/24/2007 4:52:45 PM EST

Originally Posted By roboman:
I think it's because, depending on the case, their ruling could either essentially wreck the 2nd Amendment for good or make all current Gun Control unconstitutional. In the eyes of the SCOTUS Judge, neither is a good idea.


That is also EXACTLY what I believe. They believe the status quo is the right choice, and any ruling would be a complete victory for one side or the other.
Link Posted: 2/24/2007 4:58:58 PM EST

Originally Posted By RJGatling:

Originally Posted By BobCole:
While I can't read their minds, I bet $1 they're worried about an armed rebellion should they rule against the 2nd & the personal danger they'd face after the ruling(s).

Rightfully so on both counts, IMO................

Yeah, right. From the threads I've seen here, most of you guys are so ready to wet your panties at the thought of even teaching a neighborhood girl how to shoot (who knows what "lists" you might end up on then!) that an "armed rebellion" is about as likely as me winning the Miss America contest.



If she wets her's too, I'm in!
Link Posted: 2/24/2007 4:59:08 PM EST

Originally Posted By roboman:
I think it's because, depending on the case, their ruling could either essentially wreck the 2nd Amendment for good or make all current Gun Control unconstitutional. In the eyes of the SCOTUS Judge, neither is a good idea.


From my own experience, I think this is exactly right. I have a bit of insight since I was trained at the University of Virginia. It is one of the top lawschools in the country and regularly places people into supreme court clerkships and into the federal courts. My experience is that most of the elite who go on to be judges have very little experience with firearms, and don't really know how to handle the issue. They are concerned that they cannot come up with a way to negate some gun control laws without killing everything and having psychos running around with RPGs, so they duck the issue.
Link Posted: 2/24/2007 5:10:20 PM EST
Yep. I am all for the complete repeal of all federal gun laws. There were quite a few privately owned cannons back when the bill of rights was being drafted.

We don't need to worry about our neighbors going apeshit and nuking their whole town. Nukes are too expensive. Granted, there are private citizens in the US that can afford to purchase some serious hardware if it were legal for them to do so, but they didn't get that rich by making stupid decisions.

I'd rather be able to own whatever weapons I can afford. I'm not worried about criminals getting access to class III stuff. I already assume they do. Repealing gun laws just means anyone or any group can own any weapon. As it should be.

When you start to limit the "classes" of weapon that can be owned, you limit the individual's options for defense.

Think of it this way, while one man would have a hard time buying an attack helicopter, his entire neighborhood might be able to afford one. While one man might snap and go berserk, the entire neighborhood isn't likely to.

What good is the second amendment at preventing tyrrany if access to current military technology is denied?

The second amendment was written to protect the security of a free state. There is a reason they did not make a distinction in the 2nd about what kind of "arms" we are entitled to.

Link Posted: 2/24/2007 5:28:50 PM EST
[Last Edit: 2/24/2007 5:44:29 PM EST by nightstalker]
Not to mention that the 2nd has not been formally incorporated by the 14th Amendment and can therefore be interpreted as binding on the Feds but not the States. I'm no expert but this is at least part of the problem. For instance the state of CA has a law that pre-empts local gun laws. If the 2nd were incorporated by the 14th the states would suffer this same pre-emption, at least this is my understanding. Where amendments are incorporated the feds pretty much rule the roost. Considering that some states have no RKBA in their State Constitutions it has allowed a very wide spectrum of gun rights and gun control that is nearly unwieldy if looked at in a national sense. Chaotic. This is where the 14th comes in, especially this phrase I believe, "nor deny to any person within its jurisdiction the equal protection of the laws." How can you reconcile no inringement with the sorts of laws in the feds, let alone the ones in the States. People are not "equal" before the law.

At one time even though the Feds were prohibited from using eminent domain without just compensation the states got away with it. The took the land and didn't give just compensation.



''Prior to the adoption of the Fourteenth Amendment,'' the power of eminent domain of state governments ''was unrestrained by any federal authority.'' 168 The just compensation provision of the Fifth Amendment did not apply to the States, 169 and at first the contention that the due process clause of the Fourteenth Amendment afforded property owners the same measure of protection against the States as the Fifth Amendment did against the Federal Government was rejected.


ETA the last time they let crappy Constitutional wording go unchallenged we eventually had a Civil War. Something about slavery somehow co-existing with "all men are created equal".

So far it's only been 73 years that we've put up with this non-sense. It doesn't get any more legitimate just more convoluted. It's self-deception.
Link Posted: 2/24/2007 5:33:39 PM EST
Still trying to figure out where the Constitution allows the feds to require a license to sell guns. Can't find that authorization
Link Posted: 2/24/2007 5:42:03 PM EST
Compelling State interest
Link Posted: 2/24/2007 5:42:43 PM EST
Too big of a risk.
Link Posted: 2/24/2007 5:44:18 PM EST

Originally Posted By RJGatling:

Originally Posted By BobCole:
While I can't read their minds, I bet $1 they're worried about an armed rebellion should they rule against the 2nd & the personal danger they'd face after the ruling(s).

Rightfully so on both counts, IMO................

Yeah, right. From the threads I've seen here, most of you guys are so ready to wet your panties at the thought of even teaching a neighborhood girl how to shoot (who knows what "lists" you might end up on then!) that an "armed rebellion" is about as likely as me winning the Miss America contest.


You'll have to post a picture for us to understand just how unlikely that is.

I mean, with a little ductape, some makeup and a wig, you might not be too bad.
Link Posted: 2/24/2007 5:46:13 PM EST

Originally Posted By DK-Prof:

Originally Posted By RJGatling:

Originally Posted By BobCole:
While I can't read their minds, I bet $1 they're worried about an armed rebellion should they rule against the 2nd & the personal danger they'd face after the ruling(s).

Rightfully so on both counts, IMO................

Yeah, right. From the threads I've seen here, most of you guys are so ready to wet your panties at the thought of even teaching a neighborhood girl how to shoot (who knows what "lists" you might end up on then!) that an "armed rebellion" is about as likely as me winning the Miss America contest.


You'll have to post a picture for us to understand just how unlikely that is.

I mean, with a little ductape, some makeup and a wig, you might not be too bad.


Judges love "attitude". Shrinking violets do not apply. Let's elect him our leader.
Link Posted: 2/24/2007 5:47:05 PM EST

Originally Posted By alaman:
Still trying to figure out where the Constitution allows the feds to require a license to sell guns. Can't find that authorization


Interstate Commerce clause, selling firearms, as a business, is commerce. And rarely does an FFL only deal within his/her state.
Link Posted: 2/24/2007 5:47:48 PM EST
None of the sitting judges want to be known as the ones who triggered Civil War II.

The funny thing is that the longer they sit on their hands, that's just what's going to happen through their inaction.
Link Posted: 2/24/2007 6:01:45 PM EST

Originally Posted By nationwide:

Originally Posted By alaman:
Still trying to figure out where the Constitution allows the feds to require a license to sell guns. Can't find that authorization


Interstate Commerce clause, selling firearms, as a business, is commerce. And rarely does an FFL only deal within his/her state.


In the beginnings of our country commerce had a substantially different meaning.

"The founders' understanding of the word "commerce" is unclear. Although commerce means economic activity today, it had non-economic meanings in late eighteenth century English. For example, in 18th century writing one finds expressions such as "the free and easy commerce of social life" and "our Lord's commerce with his disciples".[1] Interpreting interstate commerce to mean "substantial interstate human relations" is consistent with much additional primary source evidence concerning the meaning of commerce at the time of the writing of the Constitution.[1][2] This interpretation also makes sense for the foreign and Indian commerce clauses as one would expect Congress to be given authority to regulate non-economic relations with other nations and with Indian tribes."

We've since had problems with what is "income tax" and also what the definition of a citizen in relation to their ability to vote. These two were perverted in different ways but they both involve messing around with the meaning of words from their original definitions and usage.
Link Posted: 2/24/2007 6:06:00 PM EST

Originally Posted By happycynic:

Originally Posted By roboman:
I think it's because, depending on the case, their ruling could either essentially wreck the 2nd Amendment for good or make all current Gun Control unconstitutional. In the eyes of the SCOTUS Judge, neither is a good idea.


From my own experience, I think this is exactly right. I have a bit of insight since I was trained at the University of Virginia. It is one of the top lawschools in the country and regularly places people into supreme court clerkships and into the federal courts. My experience is that most of the elite who go on to be judges have very little experience with firearms, and don't really know how to handle the issue. They are concerned that they cannot come up with a way to negate some gun control laws without killing everything and having psychos running around with RPGs, so they duck the issue.


Really? Scalia is a hunter.

Did you go to law school at UVA? The word "trained" is unclear.
Link Posted: 2/24/2007 6:12:53 PM EST

Originally Posted By nationwide:

Originally Posted By alaman:
Still trying to figure out where the Constitution allows the feds to require a license to sell guns. Can't find that authorization


Interstate Commerce clause, selling firearms, as a business, is commerce. And rarely does an FFL only deal within his/her state.


In the beginnings of our country commerce had a substantially different meaning.

"The founders' understanding of the word "commerce" is unclear. Although commerce means economic activity today, it had non-economic meanings in late eighteenth century English. For example, in 18th century writing one finds expressions such as "the free and easy commerce of social life" and "our Lord's commerce with his disciples".[1] Interpreting interstate commerce to mean "substantial interstate human relations" is consistent with much additional primary source evidence concerning the meaning of commerce at the time of the writing of the Constitution.[1][2] This interpretation also makes sense for the foreign and Indian commerce clauses as one would expect Congress to be given authority to regulate non-economic relations with other nations and with Indian tribes."

We've since had problems with what is "income tax" and also what the definition of a citizen in relation to their ability to vote. These two were perverted in different ways but they both involve messing around with the meaning of words from their original definitions and usage.

This talks about the Commerce Clause and the "necessary and proper" clause which was pretty liberally interpreted with not much evidence.

www.umt.edu/law/faculty/natelson/articles/Commerce%20Clause.pdf

When or if judges make mistakes they sometimes build a house of cards.
Link Posted: 2/24/2007 6:18:43 PM EST
[Last Edit: 2/24/2007 6:27:21 PM EST by inkaybee]
The SCOTUS very seldom makes a single decision that changes law radically overnight. If they want to effect change they usually nibble away at an issue one small, sometimes seemingly insignificant ruling at a time. They give ques to lower courts to influence their thinking.

The SCOTUS has no real teeth, that is to say the executive has the guns and the legislature controls their jurisdiction. Arguably under the constitution they did not even have the authority to review the constitutionality of a law. They only have that power because they said they do. (marbury v madison) and nobody called them on it. So to keep that little power they carved out for themselves they don't get too radical. Congress can legislate away their appellate jurisdiction over any issue and they need the executive to enforce their rulings. In short they don't push the Legislature or the Executive to hard.
Link Posted: 2/24/2007 6:25:20 PM EST
[Last Edit: 2/24/2007 6:26:39 PM EST by zealotbat]
EX POST FACTO + Lautenberg Law + Constitution = ?

An ex post facto law (from the Latin for "from something done afterward") or retroactive law, is a law that retroactively changes the legal consequences of acts committed or the legal status of facts and relationships that existed prior to the enactment of the law. In reference to criminal law, it may criminalize actions that were legal when committed; or to aggravate a crime by bringing it into a more severe category than it was at the time it was committed; or to change or increase the punishment prescribed for a crime, such as by adding new penalties or extending terms; or to alter the rules of evidence in order to make conviction for a crime more likely than it would have been at the time of the action for which a defendant is prosecuted.

WHAT DOES THE LAUTENBERG LAW DO?
The Lautenberg Domestic Confiscation provision was signed into law on September 30, 1996, as section 658 of the Treasury-Postal portion of the omnibus appropriations bill. It adds to the list of "prohibited persons" persons convicted of a "... misdemeanor involving domestic violence."
DOES THE NEW LAW APPLY TO PAST CRIMES?
Yes. A misdemeanor committed fifty years ago would still subject an individual to a lifetime gun ban, even if he or she has lived a happily married life with the "victim" during the intervening period.

Link Posted: 2/24/2007 6:33:42 PM EST
You guys put to much stock in the idea of Ex post facto.

It would be a violation of ex post facto to make a law saying it was illegal for you to have owned an assault rifle in the past and punish you for having done so.

It would not be a violation of ex post facto to make a law saying from now on it is illegal to own your assault rifle and punish you for continuing to do so.
Link Posted: 2/24/2007 6:39:09 PM EST
[Last Edit: 2/24/2007 6:40:24 PM EST by zealotbat]

Originally Posted By inkaybee:
You guys put to much stock in the idea of Ex post facto.

It would be a violation of ex post facto to make a law saying it was illegal for you to have owned an assault rifle in the past and punish you for having done so.

It would not be a violation of ex post facto to make a law saying from now on it is illegal to own your assault rifle and punish you for continuing to do so.



Not the Gun....the crime.

I get a misdominor DV charge ten years ago. Still get to keep my guns. Bang...new

law......my past punishment has now been reinstated with new penalties.
Link Posted: 2/24/2007 6:41:26 PM EST

Originally Posted By RJGatling:

Originally Posted By BobCole:
While I can't read their minds, I bet $1 they're worried about an armed rebellion should they rule against the 2nd & the personal danger they'd face after the ruling(s).

Rightfully so on both counts, IMO................

Yeah, right. From the threads I've seen here, most of you guys are so ready to wet your panties at the thought of even teaching a neighborhood girl how to shoot (who knows what "lists" you might end up on then!) that an "armed rebellion" is about as likely as me winning the Miss America contest.


Link Posted: 2/24/2007 6:46:29 PM EST
[Last Edit: 2/24/2007 6:50:29 PM EST by inkaybee]

Originally Posted By zealotbat:

Originally Posted By inkaybee:
You guys put to much stock in the idea of Ex post facto.

It would be a violation of ex post facto to make a law saying it was illegal for you to have owned an assault rifle in the past and punish you for having done so.

It would not be a violation of ex post facto to make a law saying from now on it is illegal to own your assault rifle and punish you for continuing to do so.



Not the Gun....the crime.

I get a misdominor DV charge ten years ago. Still get to keep my guns. Bang...new

law......my past punishment has now been reinstated with new penalties.



It would be ex post facto if they punished you for possessing a gun with a DV conviction before the date Lautenberg was enacted.

It is not ex post facto to tell you from now on we will punish you if you continue to possess a gun with your DV conviction.

I think it sucks too, but it ain't ex post facto

I sympathize with you. I came within a hairs breath of having a bull shit DV conviction on my record. I know the way DV laws are written you can be convicted of virtually nothing. In some states if the cops are called somebody is going to jail -- Period
Link Posted: 2/24/2007 6:52:16 PM EST

Originally Posted By zealotbat:

Originally Posted By inkaybee:
You guys put to much stock in the idea of Ex post facto.

It would be a violation of ex post facto to make a law saying it was illegal for you to have owned an assault rifle in the past and punish you for having done so.

It would not be a violation of ex post facto to make a law saying from now on it is illegal to own your assault rifle and punish you for continuing to do so.



Not the Gun....the crime.

I get a misdominor DV charge ten years ago. Still get to keep my guns. Bang...new

law......my past punishment has now been reinstated with new penalties.


Your analysis is incorrect.

Passing a new law making something you did in the past illegal and punishing you for it is ex post facto.

The law in question does not criminalize past the behavior, which was already illegal at the time. Instead, it regulates today based on something that happened in the past. That is not an ex post facto law under the constitution.
Link Posted: 2/24/2007 6:52:49 PM EST
[Last Edit: 2/24/2007 6:57:34 PM EST by zealotbat]

Originally Posted By inkaybee:

Originally Posted By zealotbat:

Originally Posted By inkaybee:
You guys put to much stock in the idea of Ex post facto.

It would be a violation of ex post facto to make a law saying it was illegal for you to have owned an assault rifle in the past and punish you for having done so.

It would not be a violation of ex post facto to make a law saying from now on it is illegal to own your assault rifle and punish you for continuing to do so.



Not the Gun....the crime.

I get a misdominor DV charge ten years ago. Still get to keep my guns. Bang...new

law......my past punishment has now been reinstated with new penalties.



It would be ex post facto if they punished you for possessing a gun with a DV conviction before the date Lautenberg was enacted.

It is not ex post facto to tell you from now on we will punish you if you continue to possess a gun with your DV conviction.

I think it sucks too, but it ain't ex post facto

I sympathize with you. I came within a hairs breath of having a bull shit DV conviction on my record. I know the way DV laws are written you can be convicted of virtually nothing. In some states if the cops are called somebody is going to jail -- Period


The 'words and the intent' of the Ex Post Facto Clause encompass '[e]very law that changes the punishment, and inflicts a greater punishment, than the law annexed to the crime, when committed.' Calder v. Bull, 3 U.S. (1 Dall.) 386, 390 (1798) (opinion of Chase, J.).

An ex post facto law is a law passed after the occurrence of an event or action which retrospectively changes the legal consequences of the event or action.


Sorry....no cookie for you.
Link Posted: 2/24/2007 7:00:12 PM EST

Originally Posted By zealotbat:

Originally Posted By inkaybee:

Originally Posted By zealotbat:

Originally Posted By inkaybee:
You guys put to much stock in the idea of Ex post facto.

It would be a violation of ex post facto to make a law saying it was illegal for you to have owned an assault rifle in the past and punish you for having done so.

It would not be a violation of ex post facto to make a law saying from now on it is illegal to own your assault rifle and punish you for continuing to do so.



Not the Gun....the crime.

I get a misdominor DV charge ten years ago. Still get to keep my guns. Bang...new

law......my past punishment has now been reinstated with new penalties.



It would be ex post facto if they punished you for possessing a gun with a DV conviction before the date Lautenberg was enacted.

It is not ex post facto to tell you from now on we will punish you if you continue to possess a gun with your DV conviction.

I think it sucks too, but it ain't ex post facto

I sympathize with you. I came within a hairs breath of having a bull shit DV conviction on my record. I know the way DV laws are written you can be convicted of virtually nothing. In some states if the cops are called somebody is going to jail -- Period


The 'words and the intent' of the Ex Post Facto Clause encompass '[e]very law that changes the punishment, and inflicts a greater punishment, than the law annexed to the crime, when committed.' Calder v. Bull, 3 U.S. (1 Dall.) 386, 390 (1798) (opinion of Chase, J.).

An ex post facto law is a law passed after the occurrence of an event or action which retrospectively changes the legal consequences of the event or action.


Sorry....no cookie for you.



They would not be punishing you for your old DV conviction, they would be punishing you for a new crime, the continued possession of a gun while having a DV conviction on your record.
Link Posted: 2/24/2007 7:14:22 PM EST

Originally Posted By inkaybee:

Originally Posted By zealotbat:

Originally Posted By inkaybee:

Originally Posted By zealotbat:

Originally Posted By inkaybee:
You guys put to much stock in the idea of Ex post facto.

It would be a violation of ex post facto to make a law saying it was illegal for you to have owned an assault rifle in the past and punish you for having done so.

It would not be a violation of ex post facto to make a law saying from now on it is illegal to own your assault rifle and punish you for continuing to do so.



Not the Gun....the crime.

I get a misdominor DV charge ten years ago. Still get to keep my guns. Bang...new

law......my past punishment has now been reinstated with new penalties.



It would be ex post facto if they punished you for possessing a gun with a DV conviction before the date Lautenberg was enacted.

It is not ex post facto to tell you from now on we will punish you if you continue to possess a gun with your DV conviction.

I think it sucks too, but it ain't ex post facto

I sympathize with you. I came within a hairs breath of having a bull shit DV conviction on my record. I know the way DV laws are written you can be convicted of virtually nothing. In some states if the cops are called somebody is going to jail -- Period


The 'words and the intent' of the Ex Post Facto Clause encompass '[e]very law that changes the punishment, and inflicts a greater punishment, than the law annexed to the crime, when committed.' Calder v. Bull, 3 U.S. (1 Dall.) 386, 390 (1798) (opinion of Chase, J.).

An ex post facto law is a law passed after the occurrence of an event or action which retrospectively changes the legal consequences of the event or action.


Sorry....no cookie for you.



They would not be punishing you for your old DV conviction, they would be punishing you for a new crime, the continued possession of a gun while having a DV conviction on your record.


Did you even read it bro...?


DOES THE NEW LAW APPLY TO PAST CRIMES?

Yes. A misdemeanor committed fifty years ago would still subject an individual to a

lifetime gun ban, even if he or she has lived a happily married life with the "victim"

during the intervening period.
Link Posted: 2/24/2007 7:20:52 PM EST


“The FOP is also lobbying Congress to amend the law and make the firearms disability provision apply “prospectively to offenders those who were convicted after enactment, not persons who 15 or 20 years ago got into an argument with their spouse,” said Gilbert G. Gallegos, the National FOP’s president.”


http://www.lib.jjay.cuny.edu/len/97/14feb/html/feature.html
Link Posted: 2/24/2007 7:25:01 PM EST
Coincidence that his has come up. Representative Ron Paul (R- Tex) has proposed a bill in the Ways and Means Committee to protect the 2A permenantly - HR 1096. I suggest checking it out and e-mailing the W&M committee to let them know your stance.
Link Posted: 2/24/2007 7:29:02 PM EST


Funny....I just got pissed off at my brothers....instead of "the Man"... like I should

have.

Link Posted: 2/24/2007 7:43:04 PM EST

Originally Posted By BenDover:
None of the sitting judges want to be known as the ones who triggered Civil War II.



Hmmm. In a civil war between anti gunners and gun owners, I have a hunch the gun owners would win.

The only way the anti gunners could stand a chance would be by eating their words and taking up arms against us, at which point they BECOME the very enemy they are fighting.
Link Posted: 2/24/2007 7:54:48 PM EST

Originally Posted By jrkarp:

Originally Posted By happycynic:

Originally Posted By roboman:
I think it's because, depending on the case, their ruling could either essentially wreck the 2nd Amendment for good or make all current Gun Control unconstitutional. In the eyes of the SCOTUS Judge, neither is a good idea.


From my own experience, I think this is exactly right. I have a bit of insight since I was trained at the University of Virginia. It is one of the top lawschools in the country and regularly places people into supreme court clerkships and into the federal courts. My experience is that most of the elite who go on to be judges have very little experience with firearms, and don't really know how to handle the issue. They are concerned that they cannot come up with a way to negate some gun control laws without killing everything and having psychos running around with RPGs, so they duck the issue.


Really? Scalia is a hunter.

Did you go to law school at UVA? The word "trained" is unclear.


Yes, I have a JD from Virginia. And I'd say that Scalia is an exception. Most of the people going into the elite law schools are city kids who haven't hunted, who lived in safe communities where people didn't keep guns for self-defense, and who haven't served in the military. Their only experience with guns comes from TV.
Link Posted: 2/24/2007 7:59:23 PM EST
[Last Edit: 2/24/2007 8:02:08 PM EST by DADX3]
You sir, are a very wise man.

I have always felt that the situation is exactly as you describe. You can not understand the 2nd amendment problem facing the court without first understanding the standard of scrutiny issue.

I personally believe that most gun advocates and gun rights zealots (I am one) would not be willing to tolerate what a strict scruntiy standard would do for gun rights. Hell, violent felons in prison for acts of terrorism could probably buy machine guns and have them delivered to the prison under the current concept of strict scrutiny. Even most gun rights advocates will tolerate a reasonable regulation. Islamic radicals in prison should not be allowed to own machine guns and grenade launchers (of course this sentence is inflamatory, but under a strict scrutiny test, would the government have the right to prohibit this?).

In my opinion, your analysis is exactly why the SCOTUS has not taken this issue up. We all know what the true answer would be, and not one wants to deal with its implications. In light of all the other doctrines and opinions, there is no way to square the box under current judispurdence when the 2nd amendment is involved.

(edit: I was out and just returned home, so any spelling errors are the result of evil liquor)
Link Posted: 2/25/2007 3:55:16 AM EST
[Last Edit: 2/25/2007 3:56:18 AM EST by tc556guy]

Originally Posted By Bloencustoms:
Yep. I am all for the complete repeal of all federal gun laws. There were quite a few privately owned cannons back when the bill of rights was being drafted.

And there are still plenty of privately owned cannon.

The Justices have to agree to hear a case, and apparently theres no agreement nowadays that theres a gun case with sufficient interest to them or legal merit that needs to be heard.
Link Posted: 2/25/2007 4:06:19 AM EST
The SC Justices are societal tools and they know it.

If they were strict interpretors of the Constitution we wouldn't have had the recent "land grab" decision!

I don't trust one of them!!!
Link Posted: 2/25/2007 5:08:06 AM EST
Ultimately, the Second Amendment will probably not matter at all. They can leave it, and all the rulings supporting intact -- and they can still ban guns.
Link Posted: 2/25/2007 5:10:14 AM EST

Originally Posted By Sixgun_Symphony:
There are still too many liberal activist judges on the SCOTUS. I would rather wait until we get more conservative judges on the SCOTUS before they get to a 2A case.


The problem is if Hillary or Obama are President they'll appoint even more left-wing Justices and then we'll be really screwed.

Oh and its Justices at Supreme Court Level, lower courts are called judges. Just FYI. Not trying to be a smart ass (most folks don't know that).

Link Posted: 2/25/2007 5:16:44 AM EST

Originally Posted By SilentType:

Originally Posted By Sixgun_Symphony:
There are still too many liberal activist judges on the SCOTUS. I would rather wait until we get more conservative judges on the SCOTUS before they get to a 2A case.


The problem is if Hillary or Obama are President they'll appoint even more left-wing Justices and then we'll be really screwed.

Oh and its Justices at Supreme Court Level, lower courts are called judges. Just FYI. Not trying to be a smart ass (most folks don't know that).



Pardon my ignorance, but don't Justices have to "retire" for the Pres. to appoint a new one? Wasn't that the case with the new appointees under the Bush administration. I thought the judges held out retiring until a somwhat conservative Pres. (Bush) came into office?
Link Posted: 2/25/2007 5:19:35 AM EST
[Last Edit: 2/25/2007 5:21:11 AM EST by SilentType]
SHORT answer:

They don't see the Second Amendment as a FUNDAMENTAL RIGHT, which would cause it to be reviewed using a strict scrutiny standard.

Under "strict scrutiny" the government would need a compelling reason for restrictions on the Second Amendment, the restrictions would have to be narrowly tailored to prevent the harm they were seeking to protect us from, the state would have to show that the restrictions were certain to prevent the harm, and in the end most things reviewed under "strict scrutiny" like discrimination fail and those law are overturned.

Right now the Supreme Court reviews the Second Amendment using the "rational basis" review.

Under "rational review" the state need only show the most basic fundamental rational basis either contained in the bill or presented afterwards upon challenge for the restriction on the Second Amendment to be upheld. In fact, the court can supply its own ratinoal basis for the restriction to uphold it. Most bills reviewed under rational basis are upheld.

Link Posted: 2/25/2007 5:21:23 AM EST


The second amendment was written to protect the security of a free state. There is a reason they did not make a distinction in the 2nd about what kind of "arms" we are entitled to.


When the 2nd Amendment was drafted, there weren't too many "kinds" of arms available. They hadn't even invented the percussion lock, for Chrissake! The only kind of firearm was still a flintlock!
Link Posted: 2/25/2007 5:22:36 AM EST

Originally Posted By shootemup:

Originally Posted By SilentType:

Originally Posted By Sixgun_Symphony:
There are still too many liberal activist judges on the SCOTUS. I would rather wait until we get more conservative judges on the SCOTUS before they get to a 2A case.


The problem is if Hillary or Obama are President they'll appoint even more left-wing Justices and then we'll be really screwed.

Oh and its Justices at Supreme Court Level, lower courts are called judges. Just FYI. Not trying to be a smart ass (most folks don't know that).



Pardon my ignorance, but don't Justices have to "retire" for the Pres. to appoint a new one? Wasn't that the case with the new appointees under the Bush administration. I thought the judges held out retiring until a somwhat conservative Pres. (Bush) came into office?


Yup, you're right they have to retire or die. Life appointments afterall.

That said, most the Justices could go at any second they are so old. At least one or two will probably kick the bucket in the next four years.
Link Posted: 2/25/2007 7:02:39 AM EST
[Last Edit: 2/25/2007 7:03:48 AM EST by jrkarp]
Stevens is getting up there. He has no doubt been waiting for President Hillary Clinton to appoint his successor. He is very liberal and will not retire under a Republican president unless he has no choice.

This is part of what makes this next presidential election so critical, as Stevens will probably either die or retire before 2012 (will be 87 in April). His successor will help shape the court (and this nation) for decades. Any justice appointed by McCain (who I think will get the Republican nomination) would be better than any justice appointed by Hillary, Obama, or Edwards.
Link Posted: 2/25/2007 7:20:25 AM EST

Originally Posted By SilentType:
They don't see the Second Amendment as a FUNDAMENTAL RIGHT, which would cause it to be reviewed using a strict scrutiny standard.


Fundamental rights are not necessarily reviewed under a strict scrutiny standard. Look at Roe v. Wade which says that the right to privacy is a fundamental right and then establishes the trimester test. You can look further to Planned Parenthood v. Casey which reaffirms that the right to privacy is a fundamental right and then write the even more vague "undue burden" test that is clearly not strict scrutiny. In fact, Rehnquist's dissent in Casey makes the point that the majority claims this is a fundamental right and then applies a standard of less protection than any other fundamental right.

Under Rehnquist, the Court seemed to be willing to "split the baby" as it were by creating in-between standards that didn't fit either rational basis or strict scrutiny for cases like abortion, gender discrimination, and affirmative action. I think part of the reason the Court won't hear a Second Amendment case is because nobody has been able to think of an intermediate standard that would work and the previous attempts (Casey, Grutter, etc.) have not been a rousing success.
Link Posted: 2/25/2007 7:28:56 AM EST

Originally Posted By jrkarp:

Originally Posted By happycynic:
(snip)My experience is that most of the elite who go on to be judges have very little experience with firearms, and don't really know how to handle the issue. They are concerned that they cannot come up with a way to negate some gun control laws without killing everything and having psychos running around with RPGs, so they duck the issue.


Really? Scalia is a hunter.



Yes, and, judging from the numerous threads here on hunters lately, we all know how well-versed hunters are in gun knowledge and how pro-RKBA they are....



I'd prefer a judge who owns and shoots an AK or AR, myself. Then he/she might know what he/she is talking about.


Link Posted: 2/25/2007 7:29:42 AM EST

They don't see the Second Amendment as a FUNDAMENTAL RIGHT.......


I don't know any non-gunner who see's the 2nd Amendment as a fundamental right.

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