Getting SCOTUS To Rule On AWB ???

Status
Not open for further replies.
7

7.62X25mm

member
Joined
Sep 16, 2008
Messages
313
Hypothetical scenario --

Let's say Pres. Elect Obama et al decides to pass an AWB; looking at his current Cabinet appointments and the Congress, he has his ducks all lined up.

And so how do we "make a Federal Case out of it" ???

Heller seems the wedge which might open the door to a SCOTUS ruling on an AWB, but what would be a legal strategy for getting the issue before the Court?

You know . . . "Article II" RKBA, "Article I" . . . "to petition the government for a redress of grievances."
 
"make a Federal Case out of it" ???
Click to expand...

you have to loose a case, loose appeals at the highest state court, file a writ of certiorari and HOPE they even care to listen to you.
 
You mean "lose the case, have appeals move up the judicial ladder."

-----------------

http://certiorari.search.ipupdater.com/certiroari

Certiorari

In English Law certiorari (Latin, "to inform") is a public law relief (i.e. something for which you ask the court in order to deal with an action of the Government, council or other (quasi)-governmental organisation.) See judicial review and writ. An order of certiorari is given by a senior court to reverse the actions of a lower court or other (quasi)-governmental organisation which has made a decision. The use of certiorari in the UK is declining, due to the changes to the remedies available for judicial review. Historically, certiorari was a prerogative writ used to direct a lower court or tribunal to certify for review the "record" in the case. In the U.S., certiorari is the writ that an appellate court issues to a lower court in order to review its judgment for legal error, where no appeal is available as a matter of right. Since most cases cannot be appealed to the U.S. Supreme Court, for example, a party who wants that court to review a decision of a federal or state court files a "petition for a writ of certiorari" in the Supreme Court. If the court grants the petition, the case is scheduled for briefing and argument. That does not necessarily mean the Supreme Court has found anything wrong with the decision, merely that it wants to look at it for some reason. Four of the nine justices must vote to grant a writ of certiorari. The great majority of cases brought to the Supreme Court are denied certiorari, because the Supreme Court is generally careful to choose only cases in which it has jurisdiction and which it considers sufficiently important to merit the use of its limited resources. Certiorari is sometimes informally referred to as cert, and cases warranting the Supreme Court's attention as certworthy. One situation where the Supreme Court sometimes grants certiorari is when the federal appeals courts in two (or more) federal judicial circuits have ruled different ways in similar situations, and the Supreme Court wants to resolve that "circuit split" about how the law is supposed to apply to that kind of situation. Some U.S. state court systems use the same terminology, but in others, writ of review or leave to appeal is used in place of writ of certiorari as the name for discretionary review of a lower court's judgment. In the administrative law context, the common-law writ of certiorari was historically used by lower courts in the U.S. for judicial review of decisions made by an administrative agency after an adversarial hearing. Some states have retained this use of the writ of certiorari, while others have replaced it with statutory procedures. In the federal courts, this use of certiorari has been abolished, and replaced by a civil action under the Administrative Procedure Act in a United States District Court, or in some circumstances, a petition for review in a United States Court of Appeals. Category:Law Category:prerogative
 
SCOTUS receives about 8,000 cert petitions annually, and has decided about 70 the last couple of years.

I can't find a decent discussion on what seems to influence them to accept a case for decision; generally a 'circuit split', where two or more federal circuit courts come to different decisions on the same point of federal law, is thought to increase the likelihood.

But Parker/Heller started in 2003.
 
Pure speculation here --

In light of the recent Heller decision, I expect that SCOTUS might be inclined to further define the specifications and applicability of Article II.

This whole area of the law has been systematically excluded from discussion by SCOTUS and it seems that the current Court may have opened the door to further considerations.
 
you have to loose a case, loose appeals at the highest state court, file a writ of certiorari and HOPE they even care to listen to you.
Click to expand...
Not entirely true. A challenge to a Federal AWB could be brought directly to the SCOTUS. (See Art. III, Sec. 2)
 
Heller

The part of Heller that intrigued me, was the reference to the parallel between the weapons of the day.

The modern equivalent to the common rifle/musket being the civilian version of the Military Rifle, not full auto.

It also might not be a good idea to rock the boat with the power brokers from Chicago (the money men) seeing the challenges to their ban on CCW looming in the wings.

It will be interesting to see how the President Elect deals with his cabinet pick, when one of them screws up? I think they will be gone so quickly, the closing door will hit them in the bum!

They all most likely will sign an un-dated letter of resignation to make the process painless.
 
obama does not have the power to pass an AWB... That would be congress...
 
The modern equivalent to the common rifle/musket being the civilian version of the Military Rifle, not full auto.
Click to expand...

i have brought this up to non-gunners who don't understand the whole gun rights issue. my argument is how can a militia be armed with hunting rifles when the 2nd amendment was written it had to be concerning the contemporary arms of the time, and EBRs are the equivalent, not shotguns and six shooters or torches and pitchforks.
 
Erm, excuse me for being dense (my Momma called me "baby boy" but I don't remember her calling me "son"). BUT:

cbrgator, referring to Article III, Section 2 of the Constitution, urged:
Yes, now go read it
Click to expand...
OK. I read it. Couple of times. I still don't see where III,2 allows an appeal to be
brought directly to the SCOTUS
Click to expand...
.

I saw where it says that in all cases
affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party, the supreme Court shall have original Jurisdiction
Click to expand...
. And I saw that
in all the other Cases before mentioned, the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make.
Click to expand...
How does that give us the option of "direct appeal"??

PLUS, Even if we DO have the right of direct appeal, there is nothing to require SCOTUS to grant cert. If they do not grant cert or if they remand it to lower courts first, the the law will stand.

RIGHT??

Or did I miss something?
--------------------------------------------------------------------------
Cyborg
Burying your head in the sand only makes your a** a better target.
 
I'm no lawyer and I certainly don't claim to understand the entirety, or for the most part, any of the Constitution to a level that would allow me to answer such a question definitively, but I believe the reason would be that SCOTUS has appellate jurisdiction over federal laws. Sure they have to be followed state to state, but I believe, or it would seem likely that a Federal AWB would be something SCOTUS is more likely to rule on than a State level court...Also, SCOTUS does have the ability to rule legislation as unconstitutional from the getgo, and never let it get off the ground. If I'm not mistaken, they hold a power similar to a presidential veto in that respect...And while Obama can't PASS said legislation, he certainly can introduce it to Congress (which I greatly hope that he will not)...Just a thought, but I am eagerly awaiting someone with more knowledge commenting on the question.

On another note, for whatever reason, I do not see a Fed. AWB coming, although looming might be a term I that could describe it...I think it is a Pandora's Box that the people in office, the President included, might feel is better left alone. I certainly hope that this feeling is correct.
 
Cyborg,

I wasn't referring to appellate jurisdiction. I was referring to original jurisdiction. I said that an AWB could be bright directly to the SCOTUS because of the first sentence of Sec. 2.

The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority;
Click to expand...

The AWB ban could be challenged directly as a violation of the Second Amendment under either "arising under this constitution" OR "the laws of the United States" as an AWB falls under both.

And you are absolutely right that they are not required to grant cert, but they aren't required to grant Cert in any case whatsoever. And yes, the law would stand unless and until they ruled it unconstitutional.

Does that clear it up at all?
 
cbrgator said:
I said that an AWB could be bright directly to the SCOTUS because of the first sentence of Sec. 2.
Click to expand...
But my understanding of the terms "original" and "appellate" jurisdiction is that SCOTUS only has appellate jurisdiction over laws passed by congress and that was what I was asking about. So any law passed by Congress has to be ruled upon by lower courts before it can be considered by/argued before SCOTUS since SCOTUS only has "original" jurisdiction on matters "affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party". Of course I am not a legal scholar - hardly a scholar of any sort - and could be badly mistaken on the definitions of different types of jurisdiction.

I do expect Barama to get a new AWB passed fairly soon. I would be surprised if the recent tragedy in Mumbai did not figure heavily in the rhetoric used to sell the new legislation. If something happens that can be spun to be a "terrorist incident" here in the U.S. it will only make it easier to get a new AWB passed.

------------------------------------------------------------------------------------
Cyborg
Burying your head in the sand only makes your a** a better target.
 
My apologies, I left one essential part out. Challenging the AWB would make the United States a party.
 
I fear the current court might rule that they are constitutional, but then again, that won't change anything from how it is now.
 
Well, here is a paragraph from the opinion I always thought was heavily in our favor regarding an AWB.

It may be objected that if weapons that are most useful in military service—M-16 rifles and the like—may be banned, then the Second Amendment right is completely detached from the prefatory clause. But as we have said, the conception of the militia at the time of the Second Amendment’s ratification was the body of all citizens capable of military service, who would bring the sorts of lawful weapons that they possessed at home to militia duty. It may well be true today that a militia, to be as effective as militias in the 18th century, would require sophisticated arms that are highly unusual in society at large. Indeed, it may be true that no amount of small arms could be useful against modern-day bombers and tanks. But the fact that modern developments have limited the degree of fit between the prefatory clause and the protected right cannot change our interpretation of the right.
Click to expand...

I think the 4 conservatives would hold an AWB unconstitutional but Kennedy might jump ship and cost us. No way to know until it happens.
 
Pure speculation here --

In light of the recent Heller decision, I expect that SCOTUS might be inclined to further define the specifications and applicability of Article II.

This whole area of the law has been systematically excluded from discussion by SCOTUS and it seems that the current Court may have opened the door to further considerations.
Click to expand...

Or this might have just been the "yea yea, alright, here i made a decision on the issue - now leave me alone about it for awhile..." kinda case...
 
jerryrigger said:
...Also, SCOTUS does have the ability to rule legislation as unconstitutional from the getgo, and never let it get off the ground. If I'm not mistaken, they hold a power similar to a presidential veto in that respect...
Click to expand...
Nope, SCOTUS is a court, and like all courts decides cases. They will not "head off" a law, and they have no veto power. They in theory may, but virtually never, by pass intermediate levels of appeal.
 
Last edited:
Or this might have just been the "yea yea, alright, here i made a decision on the issue - now leave me alone about it for awhile..." kinda case...
Click to expand...

Totally untrue. Scalia said in the opinion itself that this was only one case and that they couldn't decide the full scope of the 2nd amendment with just this opinion and that it would take additional cases to further define the limits.

It might be mentioned elsewhere but here is at least part of what I'm talking about.
JUSTICE BREYER chides us for leaving so many applications
of the right to keep and bear arms in doubt, and for
not providing extensive historical justification for those
regulations of the right that we describe as permissible.
See post, at 42–43. But since this case represents this
Court’s first in-depth examination of the Second Amendment,
one should not expect it to clarify the entire field,
any more than Reynolds v. United States, 98 U. S. 145
(1879), our first in-depth Free Exercise Clause case, left
that area in a state of utter certainty. And there will be
time enough to expound upon the historical justifications
for the exceptions we have mentioned if and when those
exceptions come before us.
Click to expand...
 
Status
Not open for further replies.
Back
Top