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What cracks me up is the gun-grabbers who in 2008 insisted that the Heller decision wasn’t the big victory that pro-2A individuals said it was. The gun-grabbers said the same thing regarding the High Court’s 2010 decision in McDonald. Yet we gun nuts knew that Heller and its follow-on McDonald laid the groundwork for future adjudication over the constitutionality of carrying a firearm outside the home (with reasonable restrictions, of course).
It’s getting there...
A couple of weeks ago, Justice Anton Scalia, who the gun-grabbers hate with the intensity of a thousand suns, stated that Second Amendment cases would soon be making their way to the High Court. While I suspect laws instituting bans on so-called assault weapons and so-called high-capacity magazines will get there eventually, it’s going to take some time for cases to make their way through the lower courts.
But Scalia said "soon." I suspect Scalia knows a lot more about what’s coming down the pike in the near term more than any of us do.
That tends to happen when activist judges open the floodgates by creating a new constitutional right out of thin air.
The Heller decision was not 217 years ago. It was in 2008. Let's see where this goes, kay?
Heller was 217 years after the enactment of the 2nd Amendment. (Roughly. I can't math real good.)
Not sure what you point is.
In Heller, the Court decided that a founding principle of 2A was to afford the individual citizen the right to possess a firearm for lawful purposes, including self-defense. That decision was free and clear of any previous Court ruling. It did not reverse any previous finding. So it's a new ballgame since 2008.
Heller was narrow in scope in that it applied only to the enclave of the federal district and only to handguns in the home because that was the matter before the Court – D.C.’s total ban on handguns in the district. McDonald extended the Heller decision to the states under the due process clause of the 14th Amendment (with Justice Thomas writing that Heller applied to the states under the Fourteenth’s Privileges or Immunities Clause).
Given Heller and McDonald, it’s a natural progression to argue whether the right to self-defense using a firearm is afforded to individuals away from home. The Seventh Circuit says it does, with reasonable restrictions, and stayed their decision to allow the Illinois legislature to craft a law that balances the public safety aspect against the right of the individual.
The Illinois legislature is not mandated by the court to craft and pass any such law. It’s up to them. They can allow the 180-day stay to expire and the two cases then are reversed and remanded back to district court for declaration of unconstitutionality and permanent injunction.
Then Illinois would become, basically, Vermont where no permit to carrying a firearm concealed is required. If a person otherwise is lawful to own a handgun, that person can carry it concealed without legal repercussion. I suspect the Illinois legislature doesn’t want the state to become Vermont, so they will craft and pass something that is overly-restrictive (“may issue” not “shall issue”) and that law too will eventually be challenged, just as “may issue” laws in other jurisdictions have been challenged with cases presently pending at the court of appeals level in several districts.
This post has been edited 2 times, most recently by Murky Waters 17 months ago
That's kind of the point. The "INDIVIDUAL right to keep and bear arms, particularly handguns, for self defense" never existed prior to Heller. It was a brand new right that had never existed before.
So when you use the term “activist judges” you aren’t actually referring to the Seventh Circuit in this instance. You go all the way back to 2008 and mean the Supreme Court – specifically Thomas, Alito, Kennedy, Roberts and Scalia.
And especially Scalia.
You guys really hate Scalia. Yes, I already know that.
I actually think Scalia is very interesting. His idea that we shouldn't invent new rights because special interests really really want them is interesting, and I support it in many cases (abortion, assisted suicide, etc.). Strange that he made an exception for guns though.
Fun fact (semi-related): when Scalia was growing up in NYC, he was a member of the ROTC and used to carry his rifle on the subway. I don't know if that's allowed anymore.
Heller is a decision by an activist judge, and Scalia will burn in jurisprudence Hell for it. the 7th and 10th Circuit decision takes different paths but they are both at least on their face trying to stay within the parameters set forth in Heller.
Scalia is a hypocritical sumbitch, and a disgrace to the "originalist" or "strict constructionist" mantra that he claims to hum along to.
I think we should take some of these people, and send 'em up to Bear Mountain for a picnic.
"You can't legally drive a car without insurance"
Just when I thought you couldn't possibly get any dumber....
"New Hampshire does not automatically require motorists to carry an auto liability insurance policy or provide some of financial backing in order to drive a vehicle within its boundaries"
New Hampshire car insurance information center. What insurance to buy in New Hampshire, how to decide, compare policies, purchase NH car insurance.
On the issue of constitutionality of “may issue” concealed carry laws…
Kachalsky v Cacase is a win at the Court of Appeals level (2nd Circuit) for the gun grabbers. Petition for Cert has been filed with SCOTUS.
Meanwhile, Woollard v Sheridan is a win for the good guys at the federal district level with Fourth Circuit panel appeal decision due soon. If Woollard is upheld…
I love this argument because it is so ironic.
One of the theories of constitutional interpretation out there that is typically adhered to by liberals is that the Constitution should be interpreted in the light of modern times. Conservatives/strict constructionalists of course like to treat the Constitution as a "dead document" (Scalia's words) that means the same today as it did at the time of ratification. One can make a good argument that Heller and it's progeny interpreted the Second Amendment in the light of today's evolving circumstances. Of course don't tell Scalia this because he will scream that Heller and McDonald were based on a strict constructionist theory of interpretation but when there is virtually zero caselaw to support interpretation of the Second Amendment by any theory of interpretation, it is going to be interpreted in the light of the individual justices' views and experiences. In reality, the closest thing to a strict constructionist view concerning gun ownership was probably most accurately stated in Justice Thomas' concurring opinion in McDonald in which he stated the Second Amendment applied to the states through the Privileges or Immunities Clause. However, even that is based on the new and groundbreaking decision that there is an individual right to gun ownership.
So what we have here are conservatives saying the Second Amendment creates an individual right to bear arms, which is a brand new right that has not been recognized by the courts until today and liberals saying the Second Amendment by its text only applied to militias. Ironic, isn't it?
As for the term "activist judge," the term is relative to the eye of the beholder. CJ Roberts is a prime example of this. He was one of those "conservative activist judges" in the eyes of tons of liberals until the decision on the Affordable Care Act came down. After that a lot of those same liberals were applauding him.
The RCMB...is one of the most awful, alarming, inappropriate, disgusting, and offensive msg boards in the history of the internet.
Yeah, it's pretty interesting when people flip flop their philosophies to reach their desired outcome. Conservatives are doing the same thing about DOMA, which is a major infringement on states' rights. This stuff lends support to the idea that Constitutional jurisprudence can be simply politics by another name.
A court playing slow ball on a case, refusing to render a decision, is a form of judicial activism, too.
Palmer v. D.C. is similar to Moore v. Madigan. It was filed in D.C. federal district court in 2009 with virtually no movement on the case since September, 2010. Meanwhile, Moore v Madigan was filed in federal district court in July, 2011 and we already have the appellate court decision.
The second judge assigned to Palmer should be chained to a cell and denied food and water until he (she?) renders a decision.
I don't know shit about irony, but I am a strict constructionist to a degree that would make any jurist blush, and Heller is judge-made law by an activist jurist. Scalia, btw, is hardly a "strict constructionist", he has simply been a master at pulling parol evidence out of his ass to support his desired political outcome. the Second Amendment, just like the rest of the Constitution and the Bill of Rights, says what it says in very plain English - Scalia, like nearly all judges, is simply intellectually dishonest and reasons back from his desired outcome.
You sure are an angry fucker.
DOMA has been unconstitutional from day 1. It is amazing that it has lasted this long.
I am curious about your opinion on Incorporation Doctrine as a whole.
I believe that the Bill of Rights gives very clear evidence that the founders knew how to address limits on state power when they wanted, and I do not believe that the 14th Amendment provides for anything different. in other words, the "incorporation doctrine" is judge-made law.
So you'd be cool with a state (if they so chose) randomly searching people, arresting them without probable cause, torturing them, and executing them without trial?
And the Privileges or Immunities Clause?
the amendments you're referring to are not limited solely to actions by the fed, they would protect citizens from actions of the individual states already.
had the Supreme Court done their job in the first place, most of the 14th Amendment would never have been necessary. fyi, the real danger in the "incorporation doctrine" is not the extension of the Bill of Rights to the States, since all but the 1st Amendment apply to the state already. the danger of the "incorporation doctrine" is the application of the balance of the Constitution to the states, which has resulted in a total usurpation of governing power by the fed.
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