Future of SCOTUS / 2A changed forever

[LiveLife]

With Trump presidency, future of SCOTUS and 2A changed forever - http://www.foxnews.com/politics/201...ice-on-president-elects-immediate-agenda.html

Now that SCOTUS nominations are secured with Republicans controlling both House and Senate, work has begun to make lasting pro 2A changes at federal level starting with the Second Amendment Coalition chaired by Donald Jr/NRA - http://www.breitbart.com/big-government/2016/11/03/trump-2nd-amendment-coalition/

I am happily anticipating writing my law makers to make my wishes known and hope that changes will be made to supersede many anti 2A laws passed at state level by the way of the Supremacy Clause - https://en.wikipedia.org/wiki/Supremacy_Clause

 

[AlexanderA]

Many Supreme Court appointees have not turned out the way those that nominated and confirmed them have expected Lifetime tenure has a way of inducing an independent streak.

Also, the wheels of Supreme Court jurisprudence turn slowly. The Justices are very loath to overturn established precedent. And suitable cases have to wind their way up through the lower courts.

 

[Jeff H]

https://www.washingtonpost.com/news...consent-of-the-senate/?utm_term=.ee46c111525a

Something I've thought about recently since I read the article. Possible??? I don't know.

 

[Sistema1927]

I do believe that we, as a nation, walked right up to the edge of the abyss, peered in, and then decided to step back. No matter who DJT appoints to the High Court, they will be orders of magnitude better than any HRC would have considered.

 

[natman]

The Justices are very loath to overturn established precedent. And suitable cases have to wind their way up through the lower courts.

Fortunately, after Heller and McDonald there's not much precedent that needs overturning. There are plenty of Second Amendment cases that have made their way up to SCOTUS, they just have to decide to hear them. As soon as there is a full 9 member court they probably will.

 

[X-Rap]

The court doesn't act on its own. There will have to be cases brought before the court unless I'm mistaken. I like the idea of a court dominated by originalists but I want to see lawmakers bring legislation eliminating or rewriting bad gun laws and having Trump sign them as law and have the courts act properly as a constitutional firewall.

 

[yokel]

The court doesn't act on its own. There will have to be cases brought before the court unless I'm mistaken. I like the idea of a court dominated by originalists but I want to see lawmakers bring legislation eliminating or rewriting bad gun laws and having Trump sign them as law and have the courts act properly as a constitutional firewall.

A pertinent example would be the odious Gun Control Act of 1968 that prevents the importation of all firearms that are not "particularly suitable for or readily adaptable to sporting purposes."

 

[AlexanderA]

Fortunately, after Heller and McDonald there's not much precedent that needs overturning.

The Heller case does not serve the RKBA as much as many gun owners think it does. Under Justice Scalia's reasoning in Heller, practically any currently proposed gun-control scheme (including an AWB) would pass muster. In fact, the lower federal courts have already said so. All that the Heller case decided was that people must be allowed to have a (registered) handgun in the home for self-defense. Nothing about carrying outside the home. Nothing about other categories of weapons. By negating the militia clause of the 2nd Amendment, Scalia left the door open for the banning of America's most popular rifle, the AR-15. In this sense, then, the Heller case needs to be overturned.

 

[Crawdad1]

Don't get your hopes up to high guys. Legislation takes 60 votes to pass in the Senate and the Republicans do not have 60 votes so any law will have to be a compromise. Good news is that President Trump will also appoint pro 2nd amendment Federal Judges to the lower circuit courts possibly a bar against future state and local laws. .

 

[Dog Soldier]

AlexanderA, Brings up a powerful point. Many of our Liberal Judges were chosen by Conservative Presidents. We never know which way a judge will lean. But our hopes keep us vigilant.

http://www.nytimes.com/2016/02/19/u...generation-to-reshape-supreme-court.html?_r=0

 

[ofitg]

The Heller case does not serve the RKBA as much as many gun owners think it does. Under Justice Scalia's reasoning in Heller, practically any currently proposed gun-control scheme (including an AWB) would pass muster. In fact, the lower federal courts have already said so. All that the Heller case decided was that people must be allowed to have a (registered) handgun in the home for self-defense. Nothing about carrying outside the home. Nothing about other categories of weapons. By negating the militia clause of the 2nd Amendment, Scalia left the door open for the banning of America's most popular rifle, the AR-15. In this sense, then, the Heller case needs to be overturned.

Texas Attorney/Professor Nelson Lund explains the Scalia/Heller flaws in considerable detail -

http://www.law.gmu.edu/assets/files/publications/working_papers/09-01 Second Amendment.pdf

...

 

[AlexanderA]

Don't get your hopes up to high guys. Legislation takes 60 votes to pass in the Senate and the Republicans do not have 60 votes

Ordinary legislation takes 60 votes in the Senate (to invoke cloture against a filibuster), but budget reconciliation can pass with 51 votes (including Pence's tie-breaker, if necessary). Things with a revenue impact -- such as NFA reform -- can be added to a budget reconciliation bill.

Also, some Senate Democrats, such as Heidi Heitkamp of North Dakota, are known to be pro-gun.

 

[yokel]

By negating the militia clause of the 2nd Amendment, Scalia left the door open for the banning of America's most popular rifle, the AR-15. In this sense, then, the Heller case needs to be overturned.

The truth of the matter is that Justice Scalia did no such thing in writing the Heller majority opinion!

The Supreme Court held in part:

(1) The Second Amendment protects an individual right to possess a firearm unconnected with service in a militia, and to use that arm for traditionally lawful purposes, such as self-defense within the home. Pp. 2–53.

(a) The Amendment’s prefatory clause announces a purpose, but does not limit or expand the scope of the second part, the operative clause[emphasis added]. The operative clause’s text and history demonstrate that it connotes an individual right to keep and bear arms. Pp. 2–22.

(b) The prefatory clause comports with the Court’s interpretation of the operative clause. The “militia” comprised all males physically capable of acting in concert for the common defense. The Antifederalists feared that the Federal Government would disarm the people in order to disable this citizens’ militia, enabling a politicized standing army or a select militia to rule. The response was to deny Congress power to abridge the ancient right of individuals to keep and bear arms, so that the ideal of a citizens’ militia would be preserved. [emphasis added]Pp. 22–28.

In D.C. v. Heller Justice Antonin Scalia writes that “when able-bodied men of a nation are trained in arms and organized, they are better able to resist tyranny.” Maj. Op. at 25

Justice Scalia’s majority opinion in Heller revisits that "ideal of a citizens' militia" theme in reviewing efforts by George III's government to disarm American colonists (pg. 21). Discussing the ancient origins of the right, Scalia notes that "the Stuart Kings Charles II and James II succeeded in using select militias loyal to them to suppress political dissidents, in part by disarming their opponents" (pg. 19).

 

[Sunray]

Arguing about "laws passed at state level" Is how that really big argument in the 1860s got started. What ya'll need to do is get after your elected representatives to stop unelected civil servants making law by regulation. Kind of like it if it were possible to stop 'em exporting their daft ideas too.
Wouldn't count on The Donald doing much of anything on the firearms legislation front though. Didn't appear to be even a remote priority during the campaign.

 

[AlexanderA]

Texas Attorney/Professor Nelson Lund explains the Scalia/Heller flaws in considerable detail -

http://www.law.gmu.edu/assets/files/publications/working_papers/09-01 Second Amendment.pdf

Thank you for the reference. I read the paper, and the author makes several good points. About the only thing to be applauded about the Heller case is its result. The decision is full of dicta, which are being (improperly) treated by the lower courts as law, and which are truly pernicious to the RKBA. I guarantee you that the decision has been studied in detail by the anti-gunners, and that they are tailoring their future efforts accordingly.

 

[barnbwt]

It's worth noting that Scalia's "reasonable restrictions" aren't really justified by his supporting arguments/precedents. It actually sticks out in a rather obvious manner the way it does as something of a non sequitor, the theory being Kennedy demanded some consolation to come on board. It'd be easy to re-affirm Heller without that bit, and make a much more cohesive argument (and I'm of the mind that Scalia intended to do this all along)

In fact, this defect in the ruling has been latched onto desperately by anti-gunners, almost to a law they all cite this portion of precedent. Without those two words "reasonable restrictions" they don't have a leg to stand on. Maybe Scalia was subverting his own brilliant ruling, maybe it was a tempting bait of enough rope for the anti's to hang themselves in the event the court became more conservative

TCB

 

[AlexanderA]

The truth of the matter is that Justice Scalia did no such thing in writing the Heller majority opinion!

Read this and see if you still feel the same way:

http://www.law.gmu.edu/assets/files/publications/working_papers/09-01 Second Amendment.pdf

 

[yokel]

Read this and see if you still feel the same way:

http://www.law.gmu.edu/assets/files/publications/working_papers/09-01 Second Amendment.pdf

Irrespective of Heller’s logical flaws and inconsistencies, your assertion that Justice Scalia "negated" the prefatory clause of the Second Amendment has no basis in reason or fact.

 

[AlexanderA]

Irrespective of Heller’s logical flaws and inconsistencies, your assertion that Justice Scalia "negated" the prefatory clause of the Second Amendment has no basis in reason or fact.

Well, we have to disagree on that. He turned the militia clause into a nullity. If the militia clause was given due weight, it would mean that we, as the unorganized militia (the "whole body of the people"), would have the individual right to all standard military weapons. This is an idea which Scalia and the other Justices could not stomach, but which was the very basis of the Founders' thinking. So much for "originalism." Scalia, when the crunch came, turned out to be as much a "living constitutionalist" as Breyer.

 

[barnbwt]

He didn't refute them, he separated them. The militia was the primary, but not sole, reason for the RKBA. Militia weaponry was not at issue in the case, so it was not addressed in depth as were the means of self defense (pistols). There is clearly a need for a followup to address this separate issue.

 

[AlexanderA]

He didn't refute them, he separated them. The militia was the primary, but not sole, reason for the RKBA. Militia weaponry was not at issue in the case, so it was not addressed in depth as were the means of self defense (pistols). There is clearly a need for a followup to address this separate issue.

That's just it. Scalia did not confine himself to the specific issues in the case (whether handguns could be banned in the District of Columbia, and whether guns had to be kept in an unloaded and inoperable condition). He littered the opinion with all sorts of unnecessary dicta (including specifically naming machine guns as items that could be banned), which, because Heller was a case of first impression, took on the force of law in the lower courts. That's why the lower courts had no trouble at all upholding the New York SAFE act while citing Heller. I say again, this decision is a hidden minefield for gun owners.

 

[yokel]

I don’t see the door being shut on overturning the post-'86 MG ban in the Heller opinion. Perhaps with registration of some kind, but the 86 ban makes no sense in light of Heller, especially when pre-'86 NFA weapons are legal for civilians to own.

If a machine gun was made and registered before the '86 ban, it is legal for me to own, but if it was made after the ban it’s illegal. Not to mention the $200 NFA tax, the sole purpose of which was to price machine guns out of the market for regular people in the 1930s.

Talk about arbitrary and capricious!

I imagine that most folks are unacquainted with the history of machine gun laws in the US.

Yes it is completely legal for a civilian to own a machine gun in the United States provided that there are no state or local laws that would otherwise restrict it.

In 1934, the National Firearms Act placed a $200 tax on the transfer of ownership of a machine gun. Since then the BATF has added numerous other regulations like requiring law enforcement sign off and fingerprints. The $200 tax was specifically intended to be so exorbitant most people wouldn’t pay it. In 1934, Thompson Submachine guns sold for $50 and were considered overpriced. (Think H&K today) No one was willing to pay four times the price of an already overpriced gun in addition to the cost of the gun just to own a machine gun.

The 1968 Gun Control Act banned from importation any “non-sporting” firearms. Machine guns were defined as non-sporting.

In 1986, in the dead of night, some legislator named Hughs (Democrat) slipped an amendment into the 1986 Firearm Owners Protection Act that banned civilian ownership of machine guns manufactured after May 19, 1986.

I suspect each of these three laws are vulnerable now because of Heller. Each was arbitrary and capricious when passed, and they collectively ban (sort of) an entire class of firearms. That “sort of” is the key because there are between 100,000 and 200,000 (nobody, not even the BATF, knows the precise number) legal machine guns in civilian hands today. It makes entirely no sense to ban some machine guns and allow others depending only on when or where they were made.

 

[Prijador]

I second what Yokel said.
I just hope the roll-back of the idiotic laws happens sooner rather than later... I'm not sure how much time we really have, before the marxists throw a monkey wrench back into the works.

 

[AlexanderA]

I'm a big cheerleader for overturning the 1986 Hughes Amendment ban on machine guns, but the Supreme Court won't do it -- unless it's prepared to ignore Scalia's dicta in the Heller opinion (he explicitly said that machine guns could be banned). That just won't happen, no matter who is on the Court. In fact, I don't see the Court taking any gun cases for the foreseeable future.

The lifting of the ban will have to come legislatively (through NFA reform, attached to a budget reconciliation bill) or administratively (by declaring a series of 90-day amnesties, as authorized by the GCA).

 

[AlexanderA]

In 1934, Thompson Submachine guns sold for $50

More like $250. Few people bought them at that price. The tax effectively doubled the price.

I bought my first Thompson in 1975 for $750 (plus the tax). So the price only tripled in 40 years. If you adjust for inflation, the price didn't go up much at all.

Today's astronomical machine gun prices are due solely to the artificial scarcity caused by the Hughes Amendment. You are buying the paper, not the gun.