An Analysis of Bruen from Duke

[JN01]

I hate the slow pace of the court system as much as anyone, but it is what we are stuck with, complaining about it isn't going to affect the judges in the least.

SCOTUS clearly and directly stated that using an interest balancing test cannot be used to determine the constitutionality of a gun law, yet there are still some lower courts that have rendered opinions outlining how they did just that. It is naive to think that if only they had worded the findings just right, all the inferior courts would have immediately abided the SCOTUS decisions and the gun grabbing politicians would stop passing unconstitutional laws. A few judges will always resist and try to run out the clock. Even when forced to heed the courts, politicians will find a way to circumvent them and trample on our rights. It will never stop.

 

[AlexanderA]

..........and the gun grabbing politicians would stop passing unconstitutional laws.

The antigun politicians have taken Bruen as a challenge, and have seriously gotten to work finding ways to get around it. So, as GEM has pointed out, Bruen has resulted in a net loss for gun rights. Who could have foreseen this? Always, look for the unintended consequences.

I've always said that AWB's should be our #1 priorities in the courts, not carry laws.

 

[GEM]

The attempt to subvert gun rights decisions would not be so easy if the justices would:

1. Speak clearly, without phrases 'but of course, sensitive places, evil guns, etc. can be banned'. These phrases actually mean that some of them support the bans and will not act against them.

2. Stop the up and down remand nonsense, if you have an opinion, implement it.

3. If there is an emergency appeal that is in accord with decision, don't play games to teach circuits a lesson, support the appeal.

An AWB would not be so likely if the court said:

Semiautomatic weapons, being in common use and crucial for modern self-defense and self-against tyranny (in accord with the 2nd Amendment) can be banned in any configuration or capacity. Nor can magazines or other ammunition holding devices of any capacity be banned. Nor are permits to obtain them constitutional except for exceptions for felons and thus adjudicated to be dangerous by courts due to mental illness.

Don't need more remands, up and downs, etc. Supporting the TROs on AWBs would be more of a message than just Alito, Thomas and ACB saying 'we are watching you kids on the lawn'.

 

[JN01]

The antigun politicians have taken Bruen as a challenge, and have seriously gotten to work finding ways to get around it. So, as GEM has pointed out, Bruen has resulted in a net loss for gun rights. Who could have foreseen this? Always, look for the unintended consequences.

I've always said that AWB's should be our #1 priorities in the courts, not carry laws.

Are you suggesting that Hochul and her crew wouldn't have passed more restrictions if it hadn't been for Bruen? You've got to be kidding.

You don't think that there will be consequences if assalt weapon bans are struck down? Democrats have already introduced a bill for a 1000% tax on them, they undoubtedly will come up with other schemes to get around any ruling. It will be a grueling, endless process of knocking down the road blocks every time they put one up.

 

[heyjoe]

that is exactly what the facts are. The legislation in new york was ready to go the minute the Bruen decision came down. This legislation is a response to the Bruen case decision. To this point the Bruen decision has been a big loss in gun rights in new york, and is only getting worse as now a backround check, more comprehensive than NICS will be required to buy ammunition in new york state. Meanwhile no response yet from the Second Circuit in the appeals process, despite the Supreme Courts admonishment that they would be watching the second circuit. i guess those pesky emergency appeals to the Supreme Court have started to interfere too much with the scheduling of those paid for junkets supreme court justices are so fond of

 

[GEM]

From what I've heard, the folks putting forward the challenge to the necessity question were warned that a law like the CCIA was ready to go. In fact, Cuomo threatened to eliminate permits totally across the state. I agree 100% with the failure of Scotus to revisit the CCIA except for that useless 'we have our eye on you'. I do regard them, to be blunt, as incompetent or deliberately not wanting to fully support gun rights for not tightening up the locale, sensitive places bans. It's not like a bit of inquiry wouldn't have indicated it was a counterstrike.

 

[AlexanderA]

Are you suggesting that Hochul and her crew wouldn't have passed more restrictions if it hadn't been for Bruen? You've got to be kidding.

Well, GEM is the NY resident and he seems to think that Bruen spurred the further restrictions. And, in turn, the NY template has spread to other states.

You don't think that there will be consequences if assault weapon bans are struck down?

More difficult to do that.

 

[D.B. Cooper]

If the original intent and history aren’t used to determine the meaning of the amendments, what is? Whatever the justices want it to mean in today’s society?

The Constitution has always said whatever the Supreme Court says it says; it has always been that way.

 

[AlexanderA]

The Constitution has always said whatever the Supreme Court says it says; it has always been that way.

Well, since 1803 at least (Marbury v. Madison). Up until that point, Supreme Court review of laws wasn't a given. In 1787, the Founders just assumed that Congress would stay within the constitutional limits.

That was a situation where the Supreme Court itself gave itself that power. A judicial coup, if you will.

 

[GEM]

Ah, civics class - do we teach that anymore? I recall such in high school. I had a class where the text was "Documents of American History'. Anyway, more laws get passed, Illinois came up with an AWB and now an advertising content law constraining how firearms will be presented in ads. Now, some of those ads may be in bad taste and even promote dangerous behavior - but are they constitutional?

 

[wayneinFL]

The attempt to subvert gun rights decisions would not be so easy if the justices would:

1. Speak clearly, without phrases 'but of course, sensitive places, evil guns, etc. can be banned'. These phrases actually mean that some of them support the bans and will not act against them.

What do you want the court to say? That carry can't be restricted? If they don't call out an exception, you'll have people in jails suing to have weapons in jail. And it has to be vague. They can't say that you can carry except for courtrooms, jails, schools, etc.- they're not ruling on those- thats for the legislature. And vague is going to be twisted across the entire executive and legislative branches, often deliberately, and some of them are going to be wrong.

"Sensitive" is a relative term, and the sensitive place can't be everywhere. If everything is sensitive then nothing is sensitive. New York is wrong, and everyone knows it, including New York.

I don't see how could be fixed in the short term wIthout a gun friendly Congress and president. It's going to drag out.

 

[GEM]

I guess you didn't read what I said, nor how since they already spoke to the locale issues they could have done a better job. Whatever, let's just praise Scotus for screwing up! I just hope Hunter and domestic abusers can use it to get their gun rights!

Here's a neat bill: https://www.ilga.gov/legislation/103/HB/PDF/10300HB0218enr.pdf

How many years and remands will it take Scotus to deal with it?

 

[Frank Ettin]

... In 1787, the Founders just assumed that Congress would stay within the constitutional limits....

Really? Are you sure? See --

• Madison in Federalist No. 39:

  ....the proposed government cannot be deemed a NATIONAL one; since its jurisdiction extends to certain enumerated objects only, and leaves to the several States a residuary and inviolable sovereignty over all other objects. It is true that in controversies relating to the boundary between the two jurisdictions, the tribunal which is ultimately to decide, is to be established under the general government. But this does not change the principle of the case. The decision is to be impartially made, according to the rules of the Constitution; and all the usual and most effectual precautions are taken to secure this impartiality. Some such tribunal is clearly essential to prevent an appeal to the sword and a dissolution of the compact; and that it ought to be established under the general rather than under the local governments, or, to speak more properly, that it could be safely established under the first alone, is a position not likely to be combated....

  
  
• And Hamilton in Federalist No. 78:

  .......If it be said that the legislative body are themselves the constitutional judges of their own powers, and that the construction they put upon them is conclusive upon the other departments, it may be answered, that this cannot be the natural presumption, where it is not to be collected from any particular provisions in the Constitution. It is not otherwise to be supposed, that the Constitution could intend to enable the representatives of the people to substitute their WILL to that of their constituents. It is far more rational to suppose, that the courts were designed to be an intermediate body between the people and the legislature, in order, among other things, to keep the latter within the limits assigned to their authority. The interpretation of the laws is the proper and peculiar province of the courts. A constitution is, in fact, and must be regarded by the judges, as a fundamental law. It therefore belongs to them to ascertain its meaning, as well as the meaning of any particular act proceeding from the legislative body. If there should happen to be an irreconcilable variance between the two, that which has the superior obligation and validity ought, of course, to be preferred; or, in other words, the Constitution ought to be preferred to the statute, ....

 

[LiveLife]

the Founders just assumed that Congress would stay within the constitutional limits.

Really? Are you sure?

I thought founders ADDED the Bill of Rights to the Constitution because they were distrusting of Congress after separating governmental powers into three branches of executive, judicial and legislative (And to limit majority mob rule based on population, Senate with EQUAL representation from each state regardless of population can over rule House bills) so the rights of the minority could be protected.

Then state/federal governments kept violating First Amendment right of "We the People" and the Supreme Court had to step in to keep ruling these laws UNCONSTITUTIONAL until permanent enforcement was applied by state/federal laws - https://en.wikipedia.org/wiki/List_...eme_Court_cases_involving_the_First_Amendment

And we are going through the same thing with state/federal governments violating Second Amendment right of "We the People" and the Supreme Court stepped in and eliminated the "two step" process for Second Amendment cases in Bruen and mandated "text and history" approach only requiring analogous regulation by the time of signing of the Bill of Rights. Since the Second Amendment is not a "second class right", the Supreme Court will keep ruling these anti-2A laws UNCONSTITUTIONAL until permanent enforcement is applied by state/federal laws.

9th Circuit just ruled that state of Hawaii did not provide evidence of historical tradition of ban on "arms" and ruled against the state's regulation - https://www.thehighroad.org/index.p...ed-by-9th-circuit-panel.921829/#post-12694387

Yes, this was 9th Circuit's first post-Bruen ruling on ban on arms.

I am not a lawyer, just a layperson posting on THR.

 

[wayneinFL]

I guess you didn't read what I said, nor how since they already spoke to the locale issues they could have done a better job. Whatever, let's just praise Scotus for screwing up! I just hope Hunter and domestic abusers can use it to get their gun rights!

Here's a neat bill: https://www.ilga.gov/legislation/103/HB/PDF/10300HB0218enr.pdf

How many years and remands will it take Scotus to deal with it?

I read it. I just don't agree with it.

As much as I would like SCOTUS legislating from the bench when it suits me, I don't want a liberal SCOTUS legislating from the bench. They are not, and should not, be doing the job of the entire government.

As far as misdemeanor domestic violence goes, yeah, I hope we get a decision gives them their gun rights. If the "domestic abuser" did something that the state thought warranted a fine and just sent him back home to his family, I don't think the federal government needs to step in and end a civil right.

The IL bill- is that the one that limits advertising? It might not even make it to the Supreme Court.

 

[Styx]

As far as Bruen being a failure because some liberal states have enacted retaliatory legislation, I disagree. The OP seems to be upset with Bruen because NY, DC, and liberal states and courts are purposely misinterpreting and circumventing their ruling. That's not a fault of the ruling but rather those states and judges who choose to ignore it.

If I see any fault with SCOTUS and their Heller, Mcdonald, and Bruen decisions, it's not with the decisions itself, but rather their unwillingness to enforce it and make lower courts abide by it via large fines, emergency stays, and contempt of court. Any laws are effectively mooted without enforcement or repercussions for breaking them. The same is true for SCOTUS rulings.

 

[heyjoe]

Styx, it isnt the Bruen decision itself that is considered a failure by those of us in new york, its the second part of your post that rankles, unwillingness to enforce and dithering.