Justice Anthony Kennedy is retiring-Kavanaugh Nominated

[Bartholomew Roberts]

It will be interesting to see how the next cert vote on an AWB goes. We’ll know real quick who the holdout was on the Heller majority.

 

[vicGT]

"In Heller, the Supreme Court held that handguns – the vast majority of which today are semi-automatic – are constitutionally protected because they have not traditionally been banned and are in common use by law-abiding citizens. There is no meaningful or persuasive constitutional distinction between semi-automatic handguns and semiautomatic rifles. Semi-automatic rifles, like semi-automatic handguns, have not traditionally been banned and are in common use by law-abiding citizens for self-defense in the home, hunting, and other lawful uses. Moreover, semiautomatic handguns are used in connection with violent crimes far more than semi-automatic rifles are. It follows from Heller’s protection of semi-automatic handguns that semi-automatic rifles are also constitutionally protected and that D.C.’s ban on them is unconstitutional."

I don't know enough about his other writings, but this one agrees with me.

 

[Gary L. Griffiths]

We’ll know real quick who the holdout was on the Heller majority.

Don't we pretty much know already? I'm betting that Kennedy reluctantly went along with the conservatives on Hellerwhen Scalia agreed to put in the language we all criticize about "long-standing prohibitions." He had no problem applying the 2nd Amendment to the states in McDonald but probably informed his colleagues he'd balk at applying the 2nd Amendment outside the home.

In any event, it'll be interesting to see. Roberts may well assume Kennedy's role as the reluctant 2nd Amendment supporter.

 

[turkeestalker]

It will be entertaining to see how that 'snake', (the one who's head is trapped) writhes, twists, and curls during the coming confirmation process.

 

[Al Norris]

Posted within a minute of each other, so it was only natural to merge the threads.

 

[rc]

I was hoping for Hardiman because like he has stated I am of the opinion the lifetime bans on firearms ownership for non violent people are unconstitutional. No other right is denied to people with former convictions for the rest of their life if they become respectable citizens. How many people are denied the right to own a gun due to one incidence of "domestic violence" where no gun was used but maybe a dish was thrown in the heat of the moment or someone got slapped with no lasting injury but the cops were called. It takes very little in some states for a conviction. How many cops lost their jobs over Clinton's domestic violence law which was applied retroactively to disarm a large number of people who for the most part have had uneventful and peaceful lives? I do think Kavanaugh will be a solid supporter of 2A rights given what I have read. Maybe just not as far right as Hardiman would have been. Time is almost ripe for the California "safe handgun" and "assault weapons bans" to be challenged in front of a conservative court as unconstitutional restrictions on private ownership of firearms.

 

[MTT TL]

Well I am thrilled as a gun owner. Not so much as a cell phone, internet, electronic device user.

 

[Aguila Blanca]

I'm not sure, but I think I would have preferred Kethledge.

 

[Bartholomew Roberts]

Don't we pretty much know already?

Well, there is a lot of supposition; but I think it falls way short of knowing. We know Thomas and Gorsuch think lower courts are ignoring Heller and would have granted cert on some 2A cases. We know Alito, Roberts, and Kennedy did not grant cert on those cases.

It might be that they believe the states should be given more time to experiment with different approaches before the court steps in. It might be they knew there wasn’t five votes for their preferred approach and so they didn’t vote to grant cert. It might be they just didn’t think it was the best set of facts to build on. Even when we narrow down the who, I don’t think the why is so clear.

We know at least one of the Justices (Alito) arguing against cert wrote a lower court dissent arguing Congress had no authority to ban machineguns if they had no connection to interstate commerce. So, it seems unlikely he was arguing against cert because he thought AWBs were constitutional and the lower court correctly decided.

Why Roberts and Kennedy voted against cert is less clear. If Kavanaugh is confirmed (which seems likely), that’s 3 Justices who have implied or outright stated that AWBs are unconstitutional under the Second. If Alito and Roberts share that view, we should know soon enough.

 

[Glenn E. Meyer]

A good case to eliminate state bans on weapons type should be a priority. If Roberts and Alito don't go along with a strong decision without weasel words, they should be seen for what they are on the issues.

Just saw this analysis of K.

https://reason.com/volokh/2018/07/09/judge-kavanaugh-and-the-second-amendment

A conclusion from the article:

Judge Kavanaugh's text, history, and tradition methodology for Second Amendment cases will not please people who believe that all gun control is impermissible, nor will it please advocates who want to make the Second Amendment a second-class right.

 

[Aguila Blanca]

Right here is where I depart from his logic. From the link Glenn provided:

Heller and later McDonald [v. Chicago, 2010] said that regulations on the sale, possession, or use of guns are permissible if they are within the class of traditional, "longstanding" gun regulations in the United States. Registration of all lawfully possessed guns—as distinct from licensing of gun owners or mandatory record-keeping by gun sellers—has not traditionally been required in the United States and even today remains highly unusual.

Indeed, Heller largely preserved the status quo of gun regulation in the United States. Heller established that traditional and common gun laws in the United States remain constitutionally permissible.

I don't think Heller or McDonald said that regulations on the sale, possession, or use of guns are permissible just because they are "longstanding." I think that's part of the broad misinterpretation of Justice Scalia's execrable language about "existing, presumptively legal" regulations. IMHO, and I really think it's quite clear from the language if viewed honestly, "presumptively" doesn't mean "definitely." It just means, "We're not discussing that question today, so for now we'll presume those other existing laws are legal until they can have their own day in court."

McDonald wasn't about expanding the scope of Heller with regard to the meaning of the Second Amendment. McDonald was about whether or not Heller and the Second Amendment applied anywhere outside of Washington, DC.

I'm not happy about Kavanaugh. I still think I would have preferred Kethledge.

 

[KyJim]

A basic rule in evaluating the constitutionality of a statute or other enacted law is that it is presumed to be constitutional. The burden is on the challenging party to show otherwise. How high that burden should be is where we start talking about strict scrutiny, rational basis, and points in-between. So, saying existing laws are presumptively constitutional really doesn't mean anything, IMO.

 

[Brian Pfleuger]

I don't think Heller or McDonald said that regulations on the sale, possession, or use of guns are permissible just because they are "longstanding." I think that's part of the broad misinterpretation of Justice Scalia's execrable language about "existing, presumptively legal" regulations. IMHO, and I really think it's quite clear from the language if viewed honestly, "presumptively" doesn't mean "definitely." It just means, "We're not discussing that question today, so for now we'll presume those other existing laws are legal until they can have their own day in court."

I find that whole line of reasoning regarding some arbitrary time frame to be questionable at best.
I mean, slavery was legal from pre-constitution until nearly 100 years after it's signing. Should there have been some sort of deference to "long-standing regulations"? Any number of issues could be substituted there. Woman's or other minority suffrage, for example?

Just because it's been illegal, or legal, for a long time, lends no credence to it's moral, ethical or constitutional validity.

Further, it actually seems to create an avenue of bypass and/or circular reasoning in some obvious ways. First, the NFA and the 1986 machine gun ban. They're certainly "long-standing". So, machine guns can be banned, because they've been banned for a long time and they're not "in common use".... but they're only not in common use because they've been banned for a long time. A person or organization so inclined could monitor technological or patent developments and pass bans on items not even fully created yet, intending to keep them out of "common use" and keep them illegal long enough to qualify as "long-standing".

Slightly tongue in cheek, but illustrative... pass a ban on "phasers" today.... by the time they're invented in 100 years, the ban is constitutional because it's "long-standing".

 

[vicGT]

Further, it actually seems to create an avenue of bypass and/or circular reasoning in some obvious ways. First, the NFA and the 1986 machine gun ban. They're certainly "long-standing". So, machine guns can be banned, because they've been banned for a long time and they're not "in common use".... but they're only not in common use because they've been banned for a long time. A person or organization so inclined could monitor technological or patent developments and pass bans on items not even fully created yet, intending to keep them out of "common use" and keep them illegal long enough to qualify as "long-standing".

We had a federal judge here in California agree with you...he said:

To say the ["large" capacity] magazines are uncommon because they have been banned for so long is something of a tautology. It cannot be used as constitutional support for further banning. See Friedman v. City of Highland Park, Illinois, 784 F3d 406, 409 (7th Cir. 2015) (“Yet it would be absurd to say that the reason why a particular weapon can be banned is that there is a statute banning it, so the it isn’t commonly used. A law’s existence can’t be the source of its own constitutional validity.”).

https://www.courthousenews.com/wp-content/uploads/2017/06/Calif.Guns_.pdf