United States 2nd Amendment Legal Cases and Law Discussion

[Doomsought]

Man, leaning on the laws used to disarm black and indians back in the day to make any legal argument against Bruen really shows the mask slippage for the Left.

I expect this will get kicked to a higher court soonish.

The argument you need to make is that it is ex-post facto because the punishement is not assigned during the sentencing of a trial. There is not legal difference between this and writing a law that says all rapists must be executed, and then rounding up rapists in prisons and released to the public from prisons in order to execute them.

 

[mspence]

Too many red flags?

Red Flag Law Applications Up Over 1,000%, Even As Judges Rule Unconstitutional

Even as a judge rules that red flag laws are unconstitutional, applications are up by over 1000% in New York.

thepoliticalinsider.com

 

[Blasterbot]

Too many red flags?

Red Flag Law Applications Up Over 1,000%, Even As Judges Rule Unconstitutional

Even as a judge rules that red flag laws are unconstitutional, applications are up by over 1000% in New York.

thepoliticalinsider.com

that was always how those laws were gonna be used.

 

[PeaceMaker 03]

Void at the level of the Supreme Court, and at the time, it was extremely controversial to even give the Supreme Court that authority!

That is not what I read on the federalist papers. Tyranny of a judiciary is still tyranny. The SCOTUS job was to judge high crimes and determine if laws are constitutional. Something that is suspect historically.

Example Miller v. US, the only case before SCOTUS that was tried without a defendant or a defense lawyer @ the court.

You know when SCOTUS determined a tax equal to ~4 months of median wage was constitutional under the firearms act because sawed off shotguns had no military usefulness, so not protected by 2nd amendment.

Of coarse the same law tax short rifles and automatic weapons which the military had in common use. Yet, SCOTUS ignored completely ignored.

Or the fact that Miller had won in lower court, and no one appealed to SCOTUS, that was involved in the Miller case. Yet FDR’s Attorney General had it moved to SCOTUS.

If I remember correctly, Miller was dead from a bar room brawl before the case was heard.

 

[ShadowArxxy]

That is not what I read on the federalist papers. Tyranny of a judiciary is still tyranny. The SCOTUS job was to judge high crimes and determine if laws are constitutional. Something that is suspect historically.

The Constitution does not explicitly grant SCOTUS the authority to determine if laws are constitutional; the Supreme Court argued this to be an inherent aspect of its role as high court in Marbury v. Madison, which was extremely controversial at the time.

Note that there is actually no broad consensus among Western nations on this subject; some explicitly enshrine constitutional review as a power of the highest court, while others explicitly reject it as a violation of the principle of separation of powers. Nor is this a "must be one or the other"; France for example splits the difference by placing Constitutional review under the authority of a separate top-level administrative law court.

 

[Abhorsen]

I think you're missing my point, which is that a lower court does not have the authority to declare law or precedent unconstitutional. The limit of their authority in a matter like this is to structure their ruling to clearly highlight the deficiency such that a higher court and/or the relevant legislature can take action, and that is exactly what this court has done.

You didn't think a judge would cite those particularly odious examples so prominently otherwise, did you?

They do have authority to declare law unconstitutional (in fact, nearly any court can). Specifically, what happens is that the defendants are enjoined (legally prohibited) from carrying out the law (the law actually is still a law, just one that everyone is prevented from carrying out/enforcing).

Lower courts are bound by precedent of higher courts that have them in their jurisdiction (hence if a higher court ruled a law constitutional, the lower courts in its jurisdiction must also rule the same way, regardless of their opinion). But that's not the reason the judge reached this.

This could be correct in regards to Bruen, and may not even be overturned. Bruen is concerned with "When did the founders think you could ban people having guns." And the answer is "When the founders thought those people were dangerous." Even though the founders thought that because they were racist, it still satisfies Bruen. The supreme court/higher courts may or may not weigh in on whether racist gun control laws are permitted evidence. One argument might be that at the time, the people prevented from having guns was not because of danger, but because they were not considered part of the people (or even people at all).

 

[posh-goofiness]

Lovely. Well, 10 years tops before Bruen is twisted to justify gun confiscation for everyone the Machine doesn't like.

 

[Abhorsen]

Lovely. Well, 10 years tops before Bruen is twisted to justify gun confiscation for everyone the Machine doesn't like.

Unlikely. Basically, the Supreme Court keeps giving decisions that make attempts to evade their previous ones harder and harder to justify. Look, not everything comes at once, but Bruen has already crippled a lot of gun control.

 

[PeaceMaker 03]

The Constitution does not explicitly grant SCOTUS the authority to determine if laws are constitutional; the Supreme Court argued this to be an inherent aspect of its role as high court in Marbury v. Madison, which was extremely controversial at the time.

Note that there is actually no broad consensus among Western nations on this subject; some explicitly enshrine constitutional review as a power of the highest court, while others explicitly reject it as a violation of the principle of separation of powers. Nor is this a "must be one or the other"; France for example splits the difference by placing Constitutional review under the authority of a separate top-level administrative law court.

I would argue that SCOTUS is incapable of determining constitutionality as they pick what case they want to look at.
With no requirements to judge obvious unconstitutional laws.
Or
Example US v. Miller picked such a narrow interpretation of the law it ignores the aspects of the Firearms act that the court's own findings said made the law unconstitutional if their finding was applied to the entire law and not just the “short-barreled shotgun”.

Ironically one the court justices was an Army officer during WW I and has to know about Trench guns used by the army, so the finding of Shorty shotguns not being militarily useful was a lie. A lie that allowed the infringement of civil liberties under FDR.

Ironic that you listed the case that the SCOTUS assumed powers not given to them by the social contract called the US Constitution.

The 10 th Amendment applies to the Supreme Court, oh wait the supreme court said “the 10th Amendment is not applicable to them....Neener Neener, what you gonna do”.

 

[Doomsought]

The jury is the first and last line of defense against problematic law. I think we need to give them some additional powers:
1: Legislation to make jury nullification official, with usage report in the legislature.
2: Give them an "Innocent with proprietorial malice" verdict where if they find that the accused is innocent and the prosecutor knew it prior to the trial, the prosecutor is stripped of immunity and made personally liable for the accused legal costs plus some other stuff available at a sanctions hearing. Needs some language to deal with lesser included charges.

 

[LordsFire]

The jury is the first and last line of defense against problematic law. I think we need to give them some additional powers:
1: Legislation to make jury nullification official, with usage report in the legislature.
2: Give them an "Innocent with proprietorial malice" verdict where if they find that the accused is innocent and the prosecutor knew it prior to the trial, the prosecutor is stripped of immunity and made personally liable for the accused legal costs plus some other stuff available at a sanctions hearing. Needs some language to deal with lesser included charges.

I hate that I can see how badly these powers could be misused...

...But that things are getting so bad with prosecutorial misconduct, that it might be better than where we are now.

 

[ShadowArxxy]

Ironically one the court justices was an Army officer during WW I and has to know about Trench guns used by the army, so the finding of Shorty shotguns not being militarily useful was a lie. A lie that allowed the infringement of civil liberties under FDR.

All of the military shotguns used during WWI were full size, long barrel shotguns, not short barrel setups.

 

[ShadowArxxy]

I would argue that SCOTUS is incapable of determining constitutionality as they pick what case they want to look at.
With no requirements to judge obvious unconstitutional laws.

The ability to pick and choose cases is more or less philosophically inherent *and* practically necessary to the function of a high court. All cases in Western systems of due process are entitled to an appeal; they are not entitled to double appeals except as they can make a convincing case for one.

That said, here I point out the advantages of the French system, where the "high court for appealing criminal convictions" and the "high court for appealing Constitutionality" are in fact separate courts, with the latter being full-time dedicated to that purpose.

The jury is the first and last line of defense against problematic law. I think we need to give them some additional powers:
1: Legislation to make jury nullification official, with usage report in the legislature.
2: Give them an "Innocent with proprietorial malice" verdict where if they find that the accused is innocent and the prosecutor knew it prior to the trial, the prosecutor is stripped of immunity and made personally liable for the accused legal costs plus some other stuff available at a sanctions hearing. Needs some language to deal with lesser included charges.

I would say that the problem with your idea is prosecutorial misconduct is almost always only found retroactively, long after the jury phase of trial has run its course.

 

[Doomsought]

I would say that the problem with your idea is prosecutorial misconduct is almost always only found retroactively, long after the jury phase of trial has run its course.

That is purely due to a matter of procedure. Also victims of punishment through process will typically lack the resources to do anything about it. They have gone into significant dept to finance their legal defense.

 

[bintananth]

Heard about this on the radio this morning.

https://www.cnn.com/2023/05/11/politics/federal-handgun-ban-18-20-year-olds/index.html

The article mentioned that the 11th Circuit ruled the other way on a Florida state law, so SCOTUS might take up the issue if this decision is upheld on appeal.

 

[bullethead]

Another big L for the gun control states:

Article:

LEGAL ALERT: A federal judge has issued a preliminary injunction against numerous parts of New Jersey's Bruen response bill. Read the 235-page opinion in our lawsuit here: https://firearmspolicy.org/koons

Source: https://twitter.com/gunpolicy/status/1658505825076256769

Spoiler: Details

 

[ShadowArxxy]

Ehhh. Preliminary injunctions are pretty standard fare, and are supposed to err on the side of permissiveness; it's not really a big win or lose either way.

 

[Zyobot]

Who bets they’ll turn this into the next January 6th?

If so, I have no sympathy for them if it blows up in their face — much less for the judge that issued this ruling in the first place.

 

[DarthOne]

Who bets they’ll turn this into the next January 6th?

If so, I have no sympathy for them if it blows up in their face, much less for the judge that issued this ruling in the first place.

Would not surprise me.

 

[Zyobot]

Would not surprise me.

Kinda’ surprises me, actually, though that’s more because I haven’t been paying as much attention as I should.

At any rate, I’m apprehensively curious as to how Judge Stephen McGlynn will react to all the mass-noncompliance from law enforcement and private citizens alike? Have long believed the way laws are enforced in practice depends on who has the most guns and how eager they are to use them, but in this case, that might actually work against the idiots who green-lit this law for a change!