Settled law and stare decisis

[jimmymccready]

is that really your standard?.......once upon a time a super majority thought separate but equal was a solution.........once upon a time a super majority believed that marriage meant the union of a man and a woman........once upon a time a super majority thought killing your unborn children was a bad thing.........

Those are your claims? Prove them. You can't. To guide you, my sad friend, define super majority, and see what you can find.

 

[Abatis]

You realize that Heller overturned 150 years worth of Stare Decisis..right?

Bullshit. Heller invalidated 66 years of lower federal court "collective right" opinions. SCOTUS never embraced any aspect of collective right interpretation -- it has always held for an individual right. Read the dissents, they plainly state that ALL the opinions issued in Heller and the Court's precedent all hold for an individual right.

 

[PostmodernProphet]

Those are your claims? Prove them. You can't. To guide you, my sad friend, define super majority, and see what you can find.

simple fuck......YOU were the one who brought up super majority........it each of these three cases I would define it as pretty much everyone and their dog.........

 

[Teflon Don]

And can be overturned like any other decision.

Why in the hell would ANYONE support Citizen's United anyway?

Nope according to lefties the Supreme Court cannot overturn any ruling. That is what they want with Roe v Wade. They want Kavanaugh to say it can never be overturned

With regards to Citizens United, I have no problem with money in politics. I have ZERO problem. I believe it is a form of political speech.

The only limitation I would have is donations from foreign entities. Other than that, I would allow unlimited donations from any individual, union, corporation that is a UNITED STATES citizen with the following caveats

1) The donation has to be reported within 24 hours of receiving
2) The donor cannot be anonymous and must be a US Citizen

That is it.

 

[Abatis]

How would a fool like you know since you have never read the Heller decision?

https://supreme.justia.com/cases/federal/us/554/570/opinion.html

For instance, Heller says you don't have the right to carry any weapon you want any place you want:

"Like most rights, the right secured by the Second Amendment is not unlimited. From Blackstone through the 19th-century cases, commentators and courts routinely explained that the right was not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose."

Heller says the only weapons protected were those in common use at the time of the ratification of the Second:

"We also recognize another important limitation on the right to keep and carry arms. Miller said, as we have explained, that the sorts of weapons protected were those “in common use at the time.” 307 U. S., at 179. We think that limitation is fairly supported by the historical tradition of prohibiting the carrying of “dangerous and unusual weapons.”

Heller says that it is the Militia (of which we have none anymore) that have the right to own military styled weapons:

"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."

And Heller said that the States have the right to restrict weapons within their borders:

https://www.cbsnews.com/news/supreme-court-allows-new-york-connecticut-assault-weapons-ban/

Now I know a moron like you does not agree with these decisions by SCOTUS, however, to a fucking idiot like you reality would not matter,

Laughable conclusions.

Concealed weapon prohibitions were considered not in conflict with the 2nd because the 2nd was not enforceable on state and local laws. PERIOD.

You are totally wrong on the sorts of weapons protected, Christ, don't you know that Heller expressly states that, "the Second Amendment extends, prima facie,to all instruments that constitute bearable arms, even those that were not in existence at the time of the founding"? Putting that aside, "in common use at the time" is a quote from Miller in 1939 so your statement is off by at least 148 years. But in reality, "in common use at the time" means whatever date in the future the Court takes up the question.

As for your statement that Heller holds that the right to own military style firearms is just for the militia .. . That's just f'n hilarious.

"M-16's and the like" are full autos, not semi-autos. The singular reason that M-16's can be heavily regulated is that they have an auto-sear, not because they have a barrel shroud or removable magazine or collapsible stock. The NFA-34 is silent on those parts; the only part at issue in NFA-34 is the auto-sear . . .

The lower federal court's perversion of Heller and the "and the like" language is similar to the lower federal court's perversion of Miller and their creation of the "militia right" and "state's right" in 1942 -- Cases v. U.S, 131 F.2d 916 (1 st Cir. 1942) and U.S. v. Tot, 131 F.2d 261 (3 rd Cir. 1942) respectively.

Big difference of course, the purposeful error will be corrected by SCOTUS a lot sooner than 66 years.

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[Micawber]

Laughable conclusions.

Concealed weapon prohibitions were considered not in conflict with the 2nd because the 2nd was not enforceable on state and local laws. PERIOD.

You are totally wrong on the sorts of weapons protected, Christ, don't you know that Heller expressly states that, "the Second Amendment extends, prima facie,to all instruments that constitute bearable arms, even those that were not in existence at the time of the founding"? Putting that aside, "in common use at the time" is a quote from Miller in 1939 so your statement is off by at least 148 years. But in reality, "in common use at the time" means whatever date in the future the Court takes up the question.

As for your statement that Heller holds that the right to own military style firearms is just for the militia .. . That's just f'n hilarious.

"M-16's and the like" are full autos, not semi-autos. The singular reason that M-16's can be heavily regulated is that they have an auto-sear, not because they have a barrel shroud or removable magazine or collapsible stock. The NFA-34 is silent on those parts; the only part at issue in NFA-34 is the auto-sear . . .

The lower federal court's perversion of Heller and the "and the like" language is similar to the lower federal court's perversion of Miller and their creation of the "militia right" and "state's right" in 1942 -- Cases v. U.S, 131 F.2d 916 (1 st Cir. 1942) and U.S. v. Tot, 131 F.2d 261 (3 rd Cir. 1942) respectively.

Big difference of course, the purposeful error will be corrected by SCOTUS a lot sooner than 66 years.

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Not sure how Old Trapper can be so wrong when most of his text is directly quoting the cases. That aside, my general advice to anyone is to understand a basic rule of
legal analysis is that we cite cases for their holdings. Always try to make arguments weaving and reconciling the holdings of cases. So frequently people will take
good precedent and simply lift some rationale or dicta to say whatever the hell they want. I will read Heller and rule for you guys.

 

[Abatis]

https://en.wikipedia.org/wiki/List_of_firearm_court_cases_in_the_United_States

US v Cruikshank
Presser v. Illinois
US v. Miller
mcdonald v chicago

state cases

bliss v. commonwealth
aymette v. state
nunn v. georgia
state v. buzzard
wilson v. state of arkansas
Salina v. Blaksley
People v. Aguilar

Mentioning the Second Amendment

dred scott
duncan v. louisiana

You forgot an important one . . . Casey v Pennsylvania.

O'Connor finally raised to the opinion of the Court, Harlan's dissent in Poe which was the philosophical basis for penumbral rights recognized and secured in Griswold.

Harlan included the "right to keep and bear arms" as among the "rational continuum" of liberty embodied in the first eight provisions of the Bill of Rights.

The nature of those rights is what makes them inviolate -- but if the anti-gunners are successful and the RKBA can be dissected out of the Bill of Rights, then the entire reasoning for penumbral rights collapses. If the rational continuum can be broken, it can not be argued to exist thus penumbral rights is a myth.

The mechanism to invalidate Griswold and Roe and Casey and Lawrence and Obergefell won't be put into motion by anti-abortion / anti-gay rights conservatives -- it will be activated when the loopy lefties get rid of the citizen's right to keep and bear arms.

Justice O'Connor:

"Neither the Bill of Rights nor the specific practices of States at the time of the adoption of the Fourteenth Amendment marks the outer limits of the substantive sphere of liberty which the Fourteenth Amendment protects. See U.S. Const., Amdt. 9. As the second Justice Harlan recognized:

'[T]he full scope of the liberty guaranteed by the Due Process Clause cannot be found in or limited by the precise terms of the specific guarantees elsewhere provided in the Constitution. This `liberty´ is not a series of isolated points pricked out in terms of the taking of property; the freedom of speech, press, and religion; the right to keep and bear arms; the freedom from unreasonable searches and seizures; and so on. It is a rational continuum which, broadly speaking, includes a freedom from all substantial arbitrary impositions and purposeless restraints, . . . and which also recognizes, what a reasonable and sensitive judgment must, that certain interests require particularly careful scrutiny of the state needs asserted to justify their abridgment.'"

Casey v. Planned Parenthood, 505 U.S. 833, 848 (1992)​

.

 

[jimmymccready]

jimmymccready Those are your claims? Prove them. You can't. To guide you, my sad friend, define super majority, and see what you can find.

simple fuck......YOU were the one who brought up super majority........it each of these three cases I would define it as pretty much everyone and their dog.........

I was talking generally while you narrowed it specifically but would not define it. You are a simple. Your pastor must look at you and think "what a retard", "what a simple," but as long as you keep giving him money, he will let you play with the other retards.

Define super majority, my sad friend.

 

[PostmodernProphet]

I've lost this argument and don't know what the fuck to do

I know, right?......

 

[Abatis]

Not sure how Old Trapper can be so wrong when most of his text is directly quoting the cases.

He isn't applying what he's reading. To say that Heller says that only arms that existed at the time of the 2nd's ratification are protected isn't supported by the quote he supplies. He quotes Heller discussing Miller (1939) for the "in common use at the time" but does not carry through Miller's context. An important point to understand about Miller is there were no briefs written or appearance for Miller -- the Court only heard the government's arguments which is why Miller's famous paragraph reads:

"In the absence of any evidence tending to show that possession or use of a "shotgun having a barrel of less than eighteen inches in length" at this time has some reasonable relationship to the preservation or efficiency of a well regulated militia, we cannot say that the Second Amendment guarantees the right to keep and bear such an instrument. Certainly it is not within judicial notice that this weapon is any part of the ordinary military equipment, or that its use could contribute to the common defense. Aymette v. State, 2 Humphreys (Tenn.) 154, 158."​

IOW, no argument was heard AT THIS TIME and we didn't go looking for any on our own. They then remanded the case. If the case comes back before the Court and some evidence is presented in the future that a shotgun with a barrel length of less than 18 inches does have military usefulness, it stands to reason the Court would hold that type of arm would enjoy 2nd Amendment protection.

Note, Miller was focused only on the usefulness of the arm in battle, not the militia enrollment status of the citizen and to understand Miller you need to read Aymette, it is the primer for Miller, where the Miller Court pulled its reasoning.

That aside, my general advice to anyone is to understand a basic rule of legal analysis is that we cite cases for their holdings. Always try to make arguments weaving and reconciling the holdings of cases. So frequently people will take good precedent and simply lift some rationale or dicta to say whatever the hell they want.

Absolutely true . . . The lower court's employment of Heller's "M-16's and the like" to sustain state assault weapon bans, is a prime example.

I will read Heller and rule for you guys.

Well, for a full understanding of the right to arms and 2nd Amendment, Heller isn't a stand alone case. The majority opinion admits it is narrow and not a complete examination of the protection sphere of the 2nd Amendment, "Although we do not undertake an exhaustive historical analysis today of the full scope of the Second Amendment . . ."

.

 

[jimmymccready]

jimmymccready I've won this argument and I am enjoying kicking the crap out of Sad Pimp

I know, right?......

It's good to admit when you are beaten, Sad Pimp

 

[jimmymccready]

. . . . Well, for a full understanding of the right to arms and 2nd Amendment, Heller isn't a stand alone case. The majority opinion admits it is narrow and not a complete examination of the protection sphere of the 2nd Amendment, "Although we do not undertake an exhaustive historical analysis today of the full scope of the Second Amendment . . ."

Because Heller is not "a stand alone case," SCOTUS has reserved the right to rule on and be the final judge, other than the amendment process, on the 2dA.

 

[Abatis]

Because Heller is not "a stand alone case," SCOTUS has reserved the right to rule on and be the final judge, other than the amendment process, on the 2dA.

Remember that McDonald held that the right to arms is a fundamental right; that should force the Court to treat the RKBA with a high degree of deference (internal citations removed).

"In Heller, we held that the Second Amendment protects the right to possess a handgun in the home for the purpose of self-defense. Unless considerations of stare decisis counsel otherwise, a provision of the Bill of Rights that protects a right that is fundamental from an American perspective applies equally to the Federal Government and the States. We therefore hold that the Due Process Clause of the Fourteenth Amendment incorporates the Second Amendment right recognized in Heller."​

Heller re-re-re-affirms the foundational rights theory that the RKBA is a pre-existing right, not granted or given or created or otherwise established by the 2nd Amendment so the RKBA is not in any manner dependent upon the Constitution for it's existence:

"it has always been widely understood that the Second Amendment , like the First and Fourth Amendments, codified a pre-existing right. The very text of the Second Amendment implicitly recognizes the pre-existence of the right and declares only that it “shall not be infringed.” As we said in United States v. Cruikshank, 92 U. S. 542, 553 (1876) , “[t]his is not a right granted by the Constitution. Neither is it in any manner dependent upon that instrument for its existence. The Second amendment declares that it shall not be infringed … .”"
​

Heller has restricted the the ability of future courts (and legislatures) to continually reassess whether the right to arms is worth preserving:

"The very enumeration of the right takes out of the hands of government—even the Third Branch of Government—the power to decide on a case-by-case basis whether the right is really worth insisting upon. A constitutional guarantee subject to future judges’ assessments of its usefulness is no constitutional guarantee at all. Constitutional rights are enshrined with the scope they were understood to have when the people adopted them, whether or not future legislatures or (yes) even future judges think that scope too broad."​

While Heller says that the right to arms isn't unlimited, Heller also sends Congress (and now after McDonald, state and local legislatures) a message, that their power to restrict the right isn't limitless;

"the enshrinement of constitutional rights necessarily takes certain policy choices off the table".
​

Of course this is where the greatest work remains for the Court. That so many laws were sustained over nearly 7 decades before Heller invalidated the "collective right" theory, means that hundreds if not thousands of federal and state gun control laws are infirm and ready to be invalidated themselves.

Heller wasn't everything we needed but it was a decent step in the right direction!

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[jimmymccready]

Heller may be a foundational step but is not so yet. If it rules on 'weapons of war' in such a way that it guts Heller, the door is wide open to state regulations.

 

[HillbillyStyle]

The leftists seem apoplectic about Roe v Wade and always want a judge or politician to be on record saying it is “SETTLED LAW”

But do you lefties apply the SETTLED LAW argument to other areas?

For example

Is Heller SETTLED LAW?

Is Citizens United SETTLED LAW?

They only bring it up for elections. They have been using that tool for thier minions for decades along with the other things they always bring up to divide people.

Sent from my SM-G955U1 using Tapatalk

 

[HillbillyStyle]

I don't disagree with you.

Stare Decisis is a fantasy that has only occasionally been honored.

Roe V Wade is absolutely in jeopardy

This is what you get when you have Republicans running anything

Forget that at your peril

The republican congress has had the majority quite a few times since row v wade and they never have over turned it so why do you people keep bringing it up?

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[SmarterthanYou]

Because Heller is not "a stand alone case," SCOTUS has reserved the right to rule on and be the final judge, other than the amendment process, on the 2dA.

SCOTUS has no power or authority in the constitution to grab more power over the constitution. the laughable thing about marbury is that the court says exactly what it cannot do, then proceeds to do it anyway.

 

[jimmymccready]

Yet here we are with SCOTUS exercising judicial review.

 

[SmarterthanYou]

Yet here we are with SCOTUS exercising judicial review.

and a majority of the idiots in this once free nation accept it, stupidly.

 

[Abatis]

Heller may be a foundational step but is not so yet. If it rules on 'weapons of war' in such a way that it guts Heller, the door is wide open to state regulations.

The phrase "weapon of war", in the context of modern rifles (actually, the laws that ban them) is a modern term, coined just for emotional response in constitutionally ignorant sheep. The phrase has no presence in any SCOTUS precedent, it only exists in anti-gun pleadings and parroted in anti-gun lower court opinion in the last few years.

The crazy thing is, to say assault weapons aren't protected because they are a "weapon of war" is diametrically opposite to what the SCOTUS demands . . .

Heller did not disturb Miller which established what types of arms are immune to federal government restriction. The arms must be of a type that is part of the ordinary military equipment and usual in civilized warfare and / or of a type that their use could contribute to the common defense of the citizen and / or of course, a type that is in common use by the citizens at the time of the Court's inspection.

The Court in Heller did not narrow the protection criteria established by Miller or overrule it or blot it out . . . It's just that the Heller Court only needed "in common use" to dispense with the DC statutes.

When an assault weapon ban comes before the Court, have no fear, they will utilize the other prongs of the protection criteria to invalidate any assault weapon / high capacity magazine or ammunition ban.