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Gun Control/2nd Amendment Discuss SCOTUS NY Carry Case is fast approaching, Not Good . . . at the General Forum; Originally Posted by Jeerleader As a matter of law, the ability of a citizen to "carry or bear a firearm ...

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Old 10-11-2021, 09:42 AM
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Default Re: SCOTUS NY Carry Case is fast approaching, Not Good . . .

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Originally Posted by Jeerleader View Post
As a matter of law, the ability of a citizen to "carry or bear a firearm outside their home" is not something that has been historically prohibited by the federal government (except on certain federal property).

The laws that do forbid citizens to, "carry or bear a firearm outside their home", are state or local laws and the 2nd Amendment had no effect or impact, was not enforceable on any state law, until 2010 and has been in suspended animation since . . . The only state or local laws on arms that can be argued to actually be unconstitutional right now, are outright handgun and stun gun bans.

To just declare now that state restrictions on a citizen's ability to carry a gun is unconstitutional by the 2ndA, is premature and is really just theoretical / philosophical at the current time.

The states have always possessed the power to set the rules for carry in public without any reference to the 2nd Amendment, the 2nd Amendment was never intended to be a restraint on the states since we the people also have a right to bear arms.

That state power to restrict the citizen's ability to carry or bear a firearm outside their home, was only limited by their state's recognition and respect for the right to arms under their state constitutions if their constitutions secure the right . . . Remember, NY has no RKBA provision in their state constitution so NY's and NYC's lawmakers enjoyed unrestrained power to implement what they wanted, which makes this case all the more important.

Since the 14th Amendment, and the much delayed enforcement of the 14thA for the 2ndA, the question of what the 2nd Amendment 'does' to bind state and local gun laws could finally be decided in June of 2022 . . . Or not, this case may not decide the issue fully.

That's just how this works.

.
1.It seems utter nonsense to say the bill of rights never applied at the state level when there is nothing in the bill of rights that says it only applies to the federal government. Because with that idiocy a state back then could say we are a Catholic state or jail anyone saying anything bad about an elected or appointed official or the state could say alright we are housing troops in Jeerleader's house.So what New York does or doesn't have in their constitution is irrelevant due to the fact the US constitution is the supreme law of the land.


2.If it handgun ban is illegal then a law on carrying it outside your property would also be illegal.
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Old 10-11-2021, 07:14 PM
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Default Re: SCOTUS NY Carry Case is fast approaching, Not Good . . .

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Originally Posted by jamesrage View Post
1.It seems utter nonsense to say the bill of rights never applied at the state level when there is nothing in the bill of rights that says it only applies to the federal government.
The legal fact that the BoR had no effect on state powers was settled law going back to Barron v Baltimore, 1833. SCOTUS noted that the specific areas where the the federal government is allowed to exert power over the states are expressly set-out in Article I, §9 in the body of the Constitution. The Court said, if the framers of the BoR wanted the BoR to bind the states, they would have said so, citing examples of definitive commands in §9, barring states to act (e.g., "no ex post facto laws shall be passed").

So here's a question to you, if the Bill of Rights was enforceable on the states, then the entire exercise of drafting and ratifying the 14th Amendment was what?

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Because with that idiocy a state back then could say we are a Catholic state or jail anyone saying anything bad about an elected or appointed official or the state could say alright we are housing troops in Jeerleader's house.
And there were even more horrendous affronts to liberty; it was the practices of the southern states that made the 14th Amendment necessary. Multiple Civil Rights Acts were passed after the Civil War but were ignored, the southern states continued the violations of the rights of Blacks. The only remedy was to pass an amendment and require the rebel states to ratify it as a precondition for being readmitted to the Union.

The 14th Amendment remedied the deficiencies noted in Barron v Baltimore; the 14thA expressly forbade states to, "make or enforce any law which shall abridge the privileges or immunities of citizens of the United States . . . " and granted a power to Congress, "to enforce, by appropriate legislation, the provisions of this article."

As much as the framers of the 14thA intended to enforce the federal Bill of Rights and restrict the powers of the states in those areas, then The Slaughter-House Cases was handed down by SCOTUS in 1873 and the pooch got screwed (that's another thread) . . .

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So what New York does or doesn't have in their constitution is irrelevant due to the fact the US constitution is the supreme law of the land.
The powers of the federal government over the people and the states are strictly limited. Only the specific grants of power and specific barring of state action enumerated in the Constitution is the supreme law. See the 10th Amendment:

The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.

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Originally Posted by jamesrage View Post
2.If it handgun ban is illegal then a law on carrying it outside your property would also be illegal.
SCOTUS keeps their decisions as narrow as possible, they only speak to the specific issue / challenge appealed, briefed and argued by the parties. As much as I would like SCOTUS to make big, sweeping determinations knocking down the hundreds if not a thousand gun laws I think are unconstitutional, that wouldn't be good practice.

_____

Additional . . .

Because it is interesting and informative, here is Senator Howard's introduction of the proposed 14th Amendment on May 23, 1866, explaining why it is needed and what it was intended to do. It is worthy of reading.

After referencing an explanation of the "privileges and immunities" of citizenship, Howard said:


"Such is the character of the privileges and immunities spoken of in the second section of the fourth article of the Constitution. To these privileges and immunities, whatever they may be-for they are not and cannot be fully defined in their entire extent and precise nature-to these should be added the personal rights guarantied and secured by the first eight amendments of the Constitution; such as the freedom of speech and of the press; the right of the people peaceably to assemble and petition the Government for a redress of grievances, a right appertaining to each and all the people; the right to keep and to bear arms; the right to be exempted from the quartering of soldiers in a house without the consent of the owner; the right to be exempt from unreasonable searches and seizures, and from any search or seizure except by virtue of a warrant issued upon a formal oath or affidavit; the right of an accused person to be informed of the nature of the accusation against him, and his right to be tried by an impartial jury of the vicinage; and also the right to be secure against excessive bail and against cruel and unusual punishments.

Now, sir, here is a mass of privileges, immunities, and rights, some of them secured by the second section of the fourth article of the Constitution, which I have recited, some by the first eight amendments of the Constitution; and it is a fact well worthy of attention that the course of decision of our courts and the present settled doctrine is, that all these immunities, privileges, rights, thus guarantied by the Constitution, or recognized by it, are secured to the citizens solely as a citizen of the United States and as a party in their courts. They do not operate in the slightest degree as a restraint or a prohibition upon state legislation. States are not affected by them, and it has been repeatedly held that the restriction contained in the Constitution against the taking of private property for public use without just compensation is not a restriction upon State legislation, but applies only to the legislation of Congress.

'Now, sir, there is no power given in the Constitution to enforce and to carry out any of these guarantees. They are not powers granted by the Constitution to Congress, and of course do not come within the sweeping clause of the Constitution authorizing Congress to pass all laws necessary and proper for carrying out the foregoing or granted powers, but they stand simply as a bill of rights in the Constitution, without power on the part of Congress to give them full effect; while at the same time the States are not restrained from violating the principles embraced in them except by their own local constitutions, which may be altered from year to year. The great object of the first section of this amendment is, therefore, to restrain the power of the States any compel them at all times to respect these great fundamental guarantees."




.
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Old 10-17-2021, 07:38 AM
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Default Re: SCOTUS NY Carry Case is fast approaching, Not Good . . .

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Originally Posted by Jeerleader View Post
The legal fact that the BoR had no effect on state powers was settled law going back to Barron v Baltimore, 1833. SCOTUS noted that the specific areas where the the federal government is allowed to exert power over the states are expressly set-out in Article I, §9 in the body of the Constitution. The Court said, if the framers of the BoR wanted the BoR to bind the states, they would have said so, citing examples of definitive commands in §9, barring states to act (e.g., "no ex post facto laws shall be passed").



.
I am sure slave owners and their buddies in the supreme court used some major ass fuckery to say the bill of rights did not apply at the federal level. Doesn't change the fact that there is nothing in the bill of rights that says it doesn't apply at the state level. States practically controlled the federal government back then.So a ban on the feds doing this or that was irrelevant.



Quote:
So here's a question to you, if the Bill of Rights was enforceable on the states, then the entire exercise of drafting and ratifying the 14th Amendment was what?

- ensure people that were freed were counted as citizens. Southern states tried to **** over their former victims. So this amendment was created.

- ensure traitorous southerners were punished, couldn't be compensated for losing their victims, and couldn't serve in office.

- ensure states couldn't subvert the 14th with some sort of judicial ass fuckery . Which failed because additional amendments had to be created.

- ensure that enforcement couldn't be dumped on a less caring state entity.
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Old 11-03-2021, 07:52 PM
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Default Re: SCOTUS NY Carry Case is fast approaching, Not Good . . .

Did anyone listen to the oral arguments?

I am very happy with the way they went.

My decision prediction has not changed and I think there will be some firm direction for the lower courts and some cleaning up of Heller that has allowed so much misconstruction.
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Old 11-04-2021, 06:43 AM
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Default Re: SCOTUS NY Carry Case is fast approaching, Not Good . . .

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Did anyone listen to the oral arguments?

I am very happy with the way they went.

My decision prediction has not changed and I think there will be some firm direction for the lower courts and some cleaning up of Heller that has allowed so much misconstruction.
While I didn't get to listen to the oral arguments, I did hear a few clips from such. I was very much surprised the Chief Justice Roberts asked some truly honest questions that seem to put aside the notion that people should not be able to defend themselves anywhere but in the middle of the woods.

I was a little disturbed, but not surprised, the Justice Kagan asked about what restrictions could be enforced citing a ball park with 50,000 people in attendance.

While I am not an attorney and never have claimed to be (unlike others in this forum whose names I won't mention), my response to that question would have been along the lines of "I cannot find in the 2nd Amendment or anywhere in the Constitution where that right has to be justified to be exercised. Would you suggest that we put the same restrictions on the right to Free Speech?"

But overall, from what I heard, it appears that the 6 Conservative judges, asked some good, probing questions that indicate that they see some major flaws in the New York laws. Let's hope it plays out that way.
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Old 11-04-2021, 07:49 AM
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Default Re: SCOTUS NY Carry Case is fast approaching, Not Good . . .

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I was a little disturbed, but not surprised, the Justice Kagan asked about what restrictions could be enforced citing a ball park with 50,000 people in attendance.


For the benefit of Kagan, somebody might need to remind her that it's not legal for anybody to shoot innocent people. Maybe that will stop the bad guys who intend to do a mass shooting.
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Old 11-04-2021, 12:00 PM
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Default Re: SCOTUS NY Carry Case is fast approaching, Not Good . . .

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Originally Posted by GetAClue View Post
While I didn't get to listen to the oral arguments, I did hear a few clips from such. I was very much surprised the Chief Justice Roberts asked some truly honest questions that seem to put aside the notion that people should not be able to defend themselves anywhere but in the middle of the woods.

I was a little disturbed, but not surprised, the Justice Kagan asked about what restrictions could be enforced citing a ball park with 50,000 people in attendance.

While I am not an attorney and never have claimed to be (unlike others in this forum whose names I won't mention), my response to that question would have been along the lines of "I cannot find in the 2nd Amendment or anywhere in the Constitution where that right has to be justified to be exercised. Would you suggest that we put the same restrictions on the right to Free Speech?"

But overall, from what I heard, it appears that the 6 Conservative judges, asked some good, probing questions that indicate that they see some major flaws in the New York laws. Let's hope it plays out that way.
I am kind of skeptical on how they rule. We been burned numerous times before on republican appointed judges.
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Old 11-04-2021, 12:04 PM
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Default Re: SCOTUS NY Carry Case is fast approaching, Not Good . . .

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I am kind of skeptical on how they rule. We been burned numerous times before on republican appointed judges.
That is why I said that "Let's hope it plays out that way." That was not a statement of fact or even that I expect it to happen.

All I am saying is that if you listen to some of the oral arguments, it sounded like they were asking some very good and pointed questions that would lead one to believe that they are moving in the right direction.
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Old 11-05-2021, 11:08 AM
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Default Re: SCOTUS NY Carry Case is fast approaching, Not Good . . .

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For the benefit of Kagan, somebody might need to remind her that it's not legal for anybody to shoot innocent people. Maybe that will stop the bad guys who intend to do a mass shooting.
OMG! is that a new law? Thank God, now we won't have any more of THAT!
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Old 12-30-2021, 09:07 AM
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Default Re: SCOTUS NY Carry Case is fast approaching, Not Good . . .

Here's a look at some fallout from this case already happening, even with the decision still pending.

During oral argument (on Nov. 3) both lawyers defending the NY law were queried by the Justices about the legal process used by the lower federal courts to decide the constitutionality of challenged gun control laws.

The Circuit courts use a self-created "two-step inquiry"; under this test, those lower federal courts first ask if the challenged law burdens / implicates conduct protected by the Second Amendment. If they conclude the law does infringe on the RKBA, they proceed to the second step, deciding how severe the infringement is, whether it is really worth worrying about and that step seems like is done simply by declaring the gun control law is absolutely needed for public safety then inventing ways to explain why the violation of the right must be allowed -- and guess what, they never fail!

Understandably, the two lawyers could not defend the "two-step inquiry" and in fact, the Principal Deputy Solicitor General of the USA, Brian Fletcher (representing the Biden Administration, who requested oral argument time) conceded that applying the "text [of the 2ndA], informed by history and tradition" (as articulated years ago by Thomas and explained by Kavanaugh in his dissent in Heller II) is the proper process.

This is huge . . . The 9th Circuit has read the tea leaves and it knows what is coming.

The losing (gun rights) party in the recent hi-cap mag case in the 9th Circuit (Duncan, decided on December 22nd) made a motion to stay the enforcement of the ban on possession of hi-cap mags until they can appeal to SCOTUS; it was uncontested by California and was granted. The 9th has also suspended (held in abeyance) two assault weapon ban cases until NYSRPA is decided and the 3rd Circuit has also held a NJ hi-cap mag ban case for the NYSRPA decision.

What we can draw from all this is the lower federal courts realize the "two-step inquiry" is dead, and all the cases decided using the "two-step inquiry" are at best, infirm.

It seems a forgone conclusion (by all parties), that SCOTUS will invalidate the "circuit judge two-step" and demand "text, informed by history and tradition" be the only acceptable standard to apply the 2ndA to a challenged gun control law.

Just like the challenge to Chicago's handgun ban was already written and filed in the 7th Circuit immediately after Heller was handed down, (which subsequently became McDonald) there will be a tsunami of appeals filed in Circuits all across the nation immediately after NYSRPA is handed down (expected in June, 2022). Unlike the 7th's post Heller rehearing and upholding of the Chicago ban in 2009, (NRA v Chicago), the Circuits will have no wiggle-room.

Understand, NYSRPA will result in a deluge of motions for rehearings in these Circuits of all these decisions sustaining gun laws including state assault weapon (AW) and large capacity magazine (LCM) bans and safe storage laws etc., will follow -- and be reversed -- quickly (there is no legal defense).

Note, these rehearings and reversals / invalidations of these bans will not require any appeals or acceptance or decision by SCOTUS; it all happens in the Circuits that screwed the pooch originally -- forced to reconsider those laws using the "text, informed by history and tradition" standard, deciding those cases like they should have done since Heller and McDonald, declaring those bans invalid / unconstitutional.

.
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