National What do you think a SCOTUS win on "assault weapon ban" will look like?

[arakboss]

What type of case (related to AW Ban) do you think they might take and if they vote against the ban what do you think the decision might look like?

Based on recent history I am not confident they will provide a clear cut decision that will solve all the various uncertainties involved in these bans.

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[User 1234]

The most I expect the US Supreme Court to do is establish a test against which specific laws must be measured. This test will likely prevent states from using the arbitrary label "assault weapon" to ban any firearm they choose. I do expect the Supreme Court to allow states some discretion to regulate firearm features.

 

[Ura-Ki]

Unfortunately, they can only hear one specific case, No where have I found a larger issue brought to them for hearing, maybe that needs to change some how! Ideally, a best case would have a full accounting of the 2nd as written, and the ruling would uphold it and remove any further challenge by the states! What that looks like I cannot say, but I bet a case could be made that brings the entire 2nd to focus!

 

[arakboss]

Unfortunately, they can only hear one specific case, No where have I found a larger issue brought to them for hearing, maybe that needs to change some how! Ideally, a best case would have a full accounting of the 2nd as written, and the ruling would uphold it and remove any further challenge by the states! What that looks like I cannot say, but I bet a case could be made that brings the entire 2nd to focus!

That's the problem, I foresee. It seems like the SCOTUS likes to take bite size chunks at a time rather then the whole plate. And it takes them many decades to eat a few bites.

I would like to seem them put an end to the debate about whether only weapons suited for military use are covered or only weapons not suited for military use are covered, or both classes of weapons are covered We had the Supreme court case US vs Miller where they indicated that only weapons suited for military use are covered but then we had lower appeals courts say only weapons not suited for military use are covered. There are so many infringement issues going on right now I can't imagine a case they would take that would address them all.

 

[User 1234]

Also keep in mind that in order to get enough votes to protect 2A rights, they might have to limit the scope of the ruling. Roberts, who has sided with the liberal justices multiple times, might only vote 2A if the issue being decided is narrow.

 

[arakboss]

Also keep in mind that in order to get enough votes to protect 2A rights, they might have to limit the scope of the ruling. Roberts, who has sided with the liberal justices multiple times, might only vote 2A if the issue being decided is narrow.

I agree, Robert's is not my favorite Justice. I won't ever forget the obamacare individual mandate he rescued.

 

[Ura-Ki]

It might be a long shot, but i can see a case brought against a State, maybe something that can include enough of a challenge to the 2nd to force a SCOTUS ruling that upholds the 2nd! Again, I dont know what that looks like, but i bet a bunch of really smart folks could figure something out!
Thats the only way i can see a case going far enough!
Is it possable for citizens to bring a case to SCOTUS outside a legal case? Or, as a preemptive against the state to prevent anti 2nd laws?

 

[11Charlie]

Great topic. Lets see if we can keep it there!

 

[arakboss]

It might be a long shot, but i can see a case brought against a State, maybe something that can include enough of a challenge to the 2nd to force a SCOTUS ruling that upholds the 2nd! Again, I dont know what that looks like, but i bet a bunch of really smart folks could figure something out!
Thats the only way i can see a case going far enough!
Is it possable for citizens to bring a case to SCOTUS outside a legal case? Or, as a preemptive against the state to prevent anti 2nd laws?

I've never heard of that. If we could find a judge that would do what the judge did in US vs Miller we might be able to get a case expedited but I think it is very rare.
This video explains how the US vs Miller case came together.

 

[User 1234]

It might be a long shot, but i can see a case brought against a State, maybe something that can include enough of a challenge to the 2nd to force a SCOTUS ruling that upholds the 2nd! Again, I dont know what that looks like, but i bet a bunch of really smart folks could figure something out!
Thats the only way i can see a case going far enough!
Is it possable for citizens to bring a case to SCOTUS outside a legal case? Or, as a preemptive against the state to prevent anti 2nd laws?

There are some types of cases where the USSC has original jurisdiction, meaning the case gets filed there to start, but generally no.

 

[Goosebrown]

I think the most important first step is to require strict scrutiny on all gun rights cases. This would be a sea change.

As for the rest, government has the right to time and place limitations of a right. So gun free zones are going to stay legal. I think they might enforce universal background checks as constitutional. Age limits? Constitutional for the most part. Bump stock ban yes. Constitutional.

What I think we can get is shall issue concealed carry. I think we can keep semi autos as Scalia drew the line at m16s and to me that threshold is semi vs full auto. I think we can negate limits on ammunition. I think states with gun rosters are going to lose. Limits on numbers of guns per month will fail.

What we should probably insist upon is that any crime committed with a gun must get long prison sentences. We need to keep gun criminals locked up because they become gun murderers on release.

 

[Stomper]

Roberts will declare all anti-2A laws a tax, and therefore Constitutional under government's authority to tax.....

 

[arakboss]

Roberts will declare all anti-2A laws a tax, and therefore Constituional under government's authority to tax.....

I talked to "Barry" this morning and he said the anti-2a laws are a penalty

 

[User 1234]

Roberts will declare all anti-2A laws a tax, and therefore Constituional under government's authority to tax.....

That's not even funny. Unfortunately you are right that is essentially what he did with Obamacare. The difference there is that Obamacare was not directly infringing on a constitutional right, the question was whether Obamacare had been given birth under any valid constitutional source.

I believe that if the government imposed a $500 tax on a criminal defendant's right to remain silent Roberts would not approve it as constitutional just because it was a tax. And in the earlier Obamacare litigation the government had argued that it wasn't a tax, yet Roberts ruled that it was a tax and therefore valid. Absurd.

 

[Ura-Ki]

This is the whole issue, states whittling away at the 2nd with out actually addressing it directly because they know full well that a strong constitutional SCOTUS would strike down much of this nonsense! That effectively leaves us screwed because we would have to take up each issue in the courts and then go from there!

 

[teflon6string]

When it's time to bury them, it's time to dig them up.

 

[Ura-Ki]

Its just like the NFA, not an outright restriction, simply a tax and back ground check!
Then tjey added import restrictions, and a total limit on transferables and we are where we are today!

 

[Boats]

What type of case (related to AW Ban) do you think they might take and if they vote against the ban what do you think the decision might look like?

Based on recent history I am not confident they will provide a clear cut decision that will solve all the various uncertainties involved in these bans.

That case was already taken up when they agreed to hear the firearms transport ban out of NYC.

If you read the underlying decision from the 2nd Circuit, which took a single speculative affidavit from an NYC licensing official as gospel as to the need for the transport ban, and the near sneeering way that the court told the plaintiffs to rent or buy other handguns in other jurisdictions to comply with the law, you get a sense of what SCOTUS is going to do with this case.

Heller v. DC explicitly forbade interest balancing tests imported from 1A jurisprudence. Scalia knew that certain circuits and certain jurists would NEVER find that the 2A outweighed any governmental interest, and that view has been vindicated by the aftermath of the case, which scandalously has not been much defended by the High Court.

Now, with Kavanaugh there, such interest balancing tests are going to be expressly forbidden under no uncertain terms, in favor of a historical and textual analysis, one that Kavanaugh road mapped in a dissent on a firearms ban in the DC Circuit.

Such a test was attempted by adoption in Heller, but the language of it had to be watered down to get Kennedy's vote. Now, Roberts is the limiter, but that limit on this topic is well to the right of Kennedy's old limit. The practical result of a historical and textual approach to the 2A might look something like this:

Place restrictions: There have always been places that firearms have not been allowed to be carried by law or custom. Those restrictions will likely remain for justifiably sensitive places like prison visits, courthouses, etcetera, but zoning gun stores out of commercial areas wholesale or barring ranges as "nuisances" are likely gone.

Bans: US v. Miller gave clear and unequivocal HIGHER protection to firearms useful to the common defense. The gist of that decision is that if you want to ban the possession of a certain something, you're going to have to go after the suitability of the person to possess it and not the firearm itself, if the firearm is in common use, useful in self-defense or in defense of the community, and not dangerous or unusual in its features. Under such an analysis, a 30 round magazine equipped AR of today presents no more objective "danger" to the public than semi-auto Colt Monitor did in the 1930s. Banning ARs or high capacity mags would be unconstitutional.

Bearing: Bearing restrictions have some historical basis to them, especially as regards concealed carry. That said, for much of American history, no one could tell a citizen traveling that they could not open carry. A jurisdiction may be able to ban concealed carry and not open carry, but if the also try to temper open carry that will not pass muster. If a jurisdiction allows any concealed carry at all, equal protection argues that it must be available to all on the exact same terms if not criminally or legally disqualified.

Ammo quantity restrictions: Historically there has been no such thing and they could not survive even a cursory historical analysis.

Storage requirements: These too have some historical basis. Like in Heller, their main object cannot be to render firearms instantly useless. A storage law that mandates locking up the firearm while you are not physically present to control it may be able to withstand the new test.

Now, all of those issues will NOT be incorporated into the decision that will come down by next June, for good reason, because the transport case doesn't touch upon all of these issues, but the constitutional cure to all but the oldest forms of gun control will likely be crafted.

 

[mrblond]

I dont think it will stop anything. from what I am seeing, they dont seem to bother with the Constitution when they are writing laws, they just write them, pass them and wait for someone to blow alot of money to challenge them.

 

[arakboss]

That case was already taken up when they agreed to hear the firearms transport ban out of NYC.

If you read the underlying decision from the 2nd Circuit, which took a single speculative affidavit from an NYC licensing official as gospel as to the need for the transport ban, and the near sneeering way that the court told the plaintiffs to rent or buy other handguns in other jurisdictions to comply with the law, you get a sense of what SCOTUS is going to do with this case.

Heller v. DC explicitly forbade interest balancing tests imported from 1A jurisprudence. Scalia knew that certain circuits and certain jurists would NEVER find that the 2A outweighed any governmental interest, and that view has been vindicated by the aftermath of the case, which scandalously has not been much defended by the High Court.

Now, with Kavanaugh there, such interest balancing tests are going to be expressly forbidden under no uncertain terms, in favor of a historical and textual analysis, one that Kavanaugh road mapped in a dissent on a firearms ban in the DC Circuit.

Such a test was attempted by adoption in Heller, but the language of it had to be watered down to get Kennedy's vote. Now, Roberts is the limiter, but that limit on this topic is well to the right of Kennedy's old limit. The practical result of a historical and textual approach to the 2A might look something like this:

Place restrictions: There have always been places that firearms have not been allowed to be carried by law or custom. Those restrictions will likely remain for justifiably sensitive places like prison visits, courthouses, etcetera, but zoning gun stores out of commercial areas wholesale or barring ranges as "nuisances" are likely gone.

Bans: US v. Miller gave clear and unequivocal HIGHER protection to firearms useful to the common defense. The gist of that decision is that if you want to ban the possession of a certain something, you're going to have to go after the suitability of the person to possess it and not the firearm itself, if the firearm is in common use, useful in self-defense or in defense of the community, and not dangerous or unusual in its features. Under such an analysis, a 30 round magazine equipped AR of today presents no more objective "danger" to the public than semi-auto Colt Monitor did in the 1930s. Banning ARs or high capacity mags would be unconstitutional.

Bearing: Bearing restrictions have some historical basis to them, especially as regards concealed carry. That said, for much of American history, no one could tell a citizen traveling that they could not open carry. A jurisdiction may be able to ban concealed carry and not open carry, but if the also try to temper open carry that will not pass muster. If a jurisdiction allows any concealed carry at all, equal protection argues that it must be available to all on the exact same terms if not criminally or legally disqualified.

Ammo quantity restrictions: Historically there has been no such thing and they could not survive even a cursory historical analysis.

Storage requirements: These too have some historical basis. Like in Heller, their main object cannot be to render firearms instantly useless. A storage law that mandates locking up the firearm while you are not physically present to control it may be able to withstand the new test.

Now, all of those issues will NOT be incorporated into the decision that will come down by next June, for good reason, because the transport case doesn't touch upon all of these issues, but the constitutional cure to all but the oldest forms of gun control will likely be crafted.

Under you paragraph on bans you indicated that in US vs Miller that they gave higher protections to firearms useful for common defense. My understanding of the case was that Justices didn't see the short barreled shotgun as suitable for use in a military application therefore regardless of it's suitability for self defense it was ok to be included as an NFA weapon. Was that not the case?