Heller, Bruen, etc., should be reversed

These articles, below, state the point, perfectly:

Let's face it, this supreme court sucks. Nothing exemplifies the dangers of a out of wack 6/3 court where there is no longer a swing vote to curb a political spectrum's (left or right) excesses. Like a group of 14 year old's conversations, without an adult in the room, always descends into the kind of talk you wouldn't want your grandmother to hear. And a more liberal court's first order of business will be to repeal Bruen, at the minimum, and I'd like to see Heller take a hike, as well. Heller is based on faulty interpretation of history. (subject for another thread, but I'm game to debate it, as well).

One person I know, tried to explain to me that 'balancing tests' (Bruen) were not a novel idea, that ruling against pornography laws by the court they applied a similar kind of logic as used in Bruen. However, this misses a more poignant point, where the 'potential damage' of pornagraphy is subjective and debateable, but the actual damage of bullets IS NOT you frickin' fool. (that's what I told the guy). This is not an apples to apples comparison. To deny ALL 'balancing tests' with respect to guns means we can no longer disallow guns in the presence of the President. Is THIS the country you want to live in, where wackos can take a pot shot at the Prez?

https://www.afj.org/article/15-year...ng-chaos-but-theres-hope-for-gun-regulations/

Bruen’s requirement that modern gun laws be consistent with the Second Amendment’s “historical understanding,” either on their face or via analogy, is problematic for three reasons.

First, this historical “standard” is not a standard at all. It is unclear what level of generality courts should apply when analogizing modern and early American gun laws. It is unclear what timeframe courts should consider as relevant history. And the “standard” relies on lawyers and judges pretending to be historians to determine whether we can remain safe from gun violence.

Second, requiring modern gun laws to mirror early American gun laws ignores the ways in which the country, body politic, and weapons technology have changed beyond recognition since early America. Early American governments brutalized Native Americans, enslaved Black Americans, and oppressed women, yet Bruen would empower those early governments’ judgments to “veto” today’s diverse electorate.

Early American governments could not conceive of modern technology, like 3D printers that can produce guns and assault weapons that make it possible for lone shooters to commit mass murder in 90 seconds or even less. Yet Bruen would hinder today’s laws from regulating today’s technology.

Third, professional historians have explained that a fixed “historical understanding” of the Second Amendment right — or of anything else of this nature, for that matter — is a fallacy, but Justice Thomas’s majority opinion simply ignores that major problem. His opinion also ignores a historical record replete with support for robust gun regulation in the public square, conveniently explaining that “not all history is created equal,” and then discarding any history that Justice Thomas deems inconvenient in reaching his desired conclusion.

https://www.scotusblog.com/2022/06/...iven-outcomes-bruens-originalist-distortions/

The majority opinion in New York State Rifle & Pistol Association v. Bruen invokes the authority of history but presents a version of the past that is little more than an ideological fantasy, much of it invented by gun-rights advocates and their libertarian allies in the legal academy with the express purpose of bolstering litigation such as Bruen. Rather than applying a history, text, and tradition approach, it would be more accurate to characterize Justice Clarence Thomas’ decision as an illustration of the current Supreme Court’s new interpretive model: “Fiction, Fantasy, and Mythology.” Indeed, the distortion of the historical record, misreading of evidence, and dismissal of facts that don’t fit the gun-rights narrative favored by Thomas are genuinely breathtaking in scope. Thomas has taken law-office history to a new low, even for the Supreme Court, a body whose special brand of “law chambers history” has prompted multiple critiques and been a source of amusement for generations of scholars and court watchers.

It is particularly noteworthy that Justice Stephen Breyer called out his colleagues for engaging in the most rank form of law-office history in his dissent. Although it has become common, almost routine, for scholars to catalog the embarrassing quality of the current Supreme Court’s uses of history, it is unusual to see a sitting justice level this charge against others on the court in a published opinion.

 

Let's face it, the recent propensity of Americans to tear down the institutions we ALL rely on and that have served us well for 240 years is among the most serious challenges to OUR Republic that These United States has EVER faced and would never have been tolerated by previous generations much less imagined.

Dangling participle aside, it's not the court's fault that it is composed as it is. Mitch McConnell acted alone to control how our judiciary is composed and his misguided Republican colleagues let him.

Spelling out your biasis's at the outset is appreciated. It might "be" that a future liberal court will overturn much of what McConnell's overly conservative court has done.

Your article is biased to your point of view, which is why you chose it. But lets not pretend it's a basis for fair discussion.

That's just word salad that assumes the Court can/did consider the wording of the Second Amendment ONLY, and ignored the many writing's of our Founders on their fear of tyranny and that they believed they were, in the Constitution, creating a timeless document.

That is patently disingenuous; all of it. It assumes the founders lived in an 18th century vacuum and had no reason to believe that firearm technology wouldn't progress; which is nonsense. Equating today's governments to oppressive governments of our past is an unfair and false equivalency and as such isn't worth debate.

What the founders intended the Second Amendment accomplish was to ensure that future Americans would have the means to stand up to tyranny.

Gun requlation within the confines of the Constitution are not prohibited by Bruen, Heller, McDonald ... "et all". Those decisions clarify the Second Amendment, not expand it. It's hilarious that your article accuses our Supreme Court of "Cherry Picking" facts and then immediately goes right on to ... cherry pick facts. As the following paragraph proves.

I probably like Justice Thomas as much or more as any American; and I can't stand the son of a bitch. But recent revelations of his personal avarice don't nullify his legal authority of two years ago. This article is just a further attempt to make believe that the founders lived in a vacuum and reinforce it by pointing out that Thomas is, personally, a snake.

Breyer's decent was well written and makes some interesting arguments, maybe in the future they will be taken into account.

 

"Shall not be infringed".

 

What, shall not be infringed, is what he's challenging. Which is what Heller, Bruen, McDonald ... CLARIFY!

 

ANd what is it that 'shall not be infringed'?

The right, and only the right.

the scope of that right is not specified in 2A, and that is addressed in court rulings.

It's regarding scope that regulation is allowed, but regulation is further constrained by Heller and Bruen, and since I disagree with both, I'm arguing against them. Therefore, your comment misses the point of the thread.

 

No, it's further clarified, better defined, not further constrained. It's what it's always been.

 

That is all they want.

 

Keep trying - it's amusing to watch you play word games and argue what "scholars" say.

By the way; the last data I saw on "swing" votes indicated that the members of evil conservative wing of the court far more often crossed over to join with the angelic liberal side, than did the lefties to join right wing opinions.

If you're more interested in reducing gun deaths than scoring partisan points get on the questionable antics of hard left prosecutors more interesting in scoring ideological points than enforce the laws.

 

The scope is pretty well defined already. No machine guns, Abrams tanks, or F-18 fighters. Legal purchasers must pass a background check. The effectiveness in preventing illegal shootings you've proposed in the passed would have minuscule to no effect for reasons I and other posters have gone into great detail to explain to you.

 

Agreed

Well, I wasn't blaming the court, I was implying it's the fault of Republicans, and yes McConnell is the guy who stole an appointment from Obama. That was wrong. But for that one, the court would be 5/4, a safe place to be with Roberts as the swing vote, though I'd prefer 5/4 in favor of libs.

No liberal justice I know of approves of Heller, or Bruen.

Your premise is unfair. It's not "unfair" to have a political philosophy that is left or right.
What would be unfair would be if a moderator were unfair. But, unmoderated, every subject is 'fair' (game).

Hold it, right there; 'word salad' suggests the verbiage says nothing, or the verbiage is incoherent, the premise of which you've contradicted where you go on to state 'it assumes...', which is establishing that something was, indeed, asserted and understood (your disagreement notwithstanding).

I didn't mean to imply that, but we can, indeed, argue on commonly debated points, as this one, I believe is.

I don't know if it is disingenuous, the criticism is interpreting Bruen rather literally, following it through to it's logical conclusion, and what is posited there is Bruen's absurd logic, given that it could easily lead to such absurdities by right wing zealot legislators. Your reaction, therefore, doesn't appear to me to be a fair assessment of the criticism given who Trump is, and the kind of folks he wants under him if he were to be reelected.

Moving on....

Justice Bryer's dissent raised, in my opinion, these key points (source BING);

1. Breyer began with the observation that U.S. civilians possess a disproportionately high number of guns compared to civilians in other countries.
2. He cited statistical evidence of the dangers posed by firearms and listed recent mass shootings.
3. Breyer asserted that states need flexibility to tailor regulations to their specific demographic environments, which may dictate different regulatory choices for urban and rural areas.
4. He stated that these considerations illustrate that the question of firearm regulation presents a complex problem—one that should be solved by legislators rather than courts.
5. Breyer asserted that the Court’s opinion will leave states without the ability to account for these issues in formulating gun policy.
6. He lamented that there was “no evidentiary record to demonstrate how the standard has actually been applied in practice”.
7. Breyer argued that, in drawing a neat line between “may issue” and “shall issue” permitting schemes, “the Court ignored the degree of variation within and across those categories,” failed to evaluate how permitting regimes actually function in practice, and did not consider that the seven “outlier” may-issue states have unique demographic challenges bearing on gun violence prevention strategies.
8. Finally, he cited empirical studies showing that shall-issue frameworks lead to more gun violence.

Breyer’s dissent then levied three major methodological criticisms at the Court’s historical-tradition test:

1. Breyer argued that the test is not actually faithful to Heller, because Heller expressly contemplated some form of means-ends scrutiny and only rejected a more freestanding “interest-balancing” approach.
2. Breyer observed that the historical-tradition test is not consistent with how courts evaluate other constitutional rights—while they may consult history to determine the scope of the right, they then commonly move on to apply means-ends scrutiny to determine whether the law at issue should be upheld or struck down.
3. Breyer criticized the Court’s reliance on “anecdotal evidence” and “cherry-picked” historical sources, arguing that the Court should have deferred to the “vast body of empirical evidence” showing that permissive gun laws lead to more violence.

In responding to Justice Bryer's dissent Alito wrote: "Our holding decides nothing about who may lawfully possess a firearm or the requirements that must be met to buy a gun". Well, Bruen, in my view, goes a long ways to tell legislators (as a framework/guidelines, etc) who they can allow and disallow to have guns and how they can own them, so, given Alito's dissent on Breyer's dissent, I think Bruen requires some kind of clarification by the court.

Ahh, the old 'fighting tyranny' argument, well, okay, how much of the arguments presented at the constitutional ratification convention in 1787 were focused on the 'fighting against tyranny'? I ask because in the constitution, there is the militia clause, which grants Congress the power to call forth state militias for the purpose of suppressing insurrections and uprisings. This posits a conundrum, because if a group people, say 'the Proud Boys" or "The Oath Keepers" honestly believed they were honoring that spirit, the one that goes, 'the founders created 2A to fight an overreaching government", which they used as justification in their premeditated attack on the capitol on January 6 which led to their subsequent indictments and convictions. See, this interpretation (fighting tyranny), which begs for qualification, is what apparently gives rise to the very uprisings the militia clause commands Congress to suppress.

Do you not see the conundrum, here? Now, I'm not saying so-called 'fight against tyranny' spirit of 2a necessarily conflicts with the militia clause, but it does appear some rogue militia groups are using the idea to justify their acts. Seems to me, that, at the very minimum, 2A needs to be revised to at least clarify this point.

Moreover, was not the arguments given at the constitution ratification convention regarding the second amendment more focused on their fear that the new constitution would grant the new congress the power to usurp state militias and subsume them into the continental army (noting their fears of a 'standing army') than they were about 'fighting tyranny'?

Hmm, you pointed out my 'dangling participle' (probably in jest, though I'm usually more careful about such a thing) , well, if you do that, make sure you spell 'dissent' correctly.

We agree on Thomas, thank you. I think he needs to be impeached, given his corruption/financial scandals.

I thought Breyer's dissent was the framework for a more liberal court to reverse Bruen.

 

A citizen's right in fact more nearly a duty, to own militarily useful fire arms without which a viable militia force is not possible. The National guard is not a militia nor is the reserve.

 

Talking citizens not in military, NG, or SDFs.

 

Well, an attorney on this forum told me that ALL 'means-tested' laws are moot now, due to Bruen. Does that include the above? I'm sure some of them, like machine guns, will be challenged given Bruen. No?

Not the point.

Arguing about the efficacy of regulation is not the topic of this thread.

 

It's all three. But, since Heller is a 5/4 vote, and not that long ago, it's not a strong precedent, in my view.

 

Yes the supreme Court doesn't do what you think it should then it's terrible right but when it's doing what you think it should then it's great.

 

Challenge it you can do that.

Bring a case that should be interesting

How are you going to show that you are injured because someone has the right to own something.

I'll get the popcorn going

 

I have no idea what bias he's applying so any comment I could make would be meaningless.

Nonsense. If you're questioning how Gruen will affect gun laws it's completely the issue.

 

What the hell is an SDF. The US recognizes the National Guard and the reserves as part of its current military force structure. But in the end the militia is external to all. And is historically to consist of all able bodied men between 14 and 65. Note Both older and younger and more than a few women have served in the militia as well in fact most of those serving in our wars prior to 1900 belonged to militia units, not the regular Army.

 

You're making this much more complicated than it needs to be and that I'm willing to argue.

Heller, Bruen and McDonald (and maybe some I should be more aware of, but am not) Clarified the meaning and ramifications of the Second Amendment. Which to my understanding are:

• The Second Amendment doesn't require membership in a militia for an individual to own firearms.
• Individuals have the right to own firearms in popular current use.

That's the important parts as I understand it. Which, -> IMHO <-, is in keeping with the founders intention that American's should never be deprived of the means to stand up to tyranny. Which is, IMHO, why we have a Second Amendment as part of OUR rights defined in the bill of rights. Those recent SC rulings clarified the ambiguity created by the kludgy wording of the Second Amendment and are now law ... until ... they aren't as Roe/Wade teaches. Stephens was a great Justice, but his opinions are left at that, opinions with respect to Second Amendment law. They may be cited in some future case, but for now they are opinions.

You said; "Nothing exemplifies the dangers of a out of wack 6/3 court where there is no longer a swing vote to curb a political spectrum's (left or right) excesses." It seemed to me that you didn't finish your thought. Noting exemplifies the danger of ... ??? ... (gestures hands in the air) what or like what or ... something. ""Nothing exemplifies the dangers of a out of wack 6/3 court ... like a (I'm spit balling) overturn of Roe/Wade ... Like Thomas getting caught with his pants down. I just felt like ... like I was left "dangling".

But! Thanks for correcting my spelling error, I never take offense when I'm corrected like that. How else can I improve. Good catch!

 

The Second Amendment IS what IT'S always been, just clarified.

 

The Constitution and its 2nd amendment were written in simpler times when the meaning of words were finite and not quibbled about by political hacks which is why to this day still stands after decades of attacks trying to misconstrue its simple meaning. I think the founding fathers new exactly what they were doing knowing how governments gone bad would try and weasel in different meanings to tear it apart.

Its strength is in its simplicity. .

A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.

It really doesn't get much simpler than that.

 

I'll bet that person is happy with the uber bullshit that the FDR courts allowed to exist that created a federal gun control power in the commerce clause. want to get rid of cases that use the Second amendment to overturn state gun laws based on incorporation? well until the gun banners admit that federal gun control is blatantly unconstitutional under the TENTH amendment first of all, and the second, secondarily, they have no room to whine. Breyer's position on guns was dishonest, unprincipled and lacking support from the Constitution itself

 

BTW the Alliance for Justice is a marxist disinformation site and the first comment in that article is dishonest

For two centuries, judges and scholars generally agreed that the Second Amendment protects a collective right to bear arms in defense of the state — until the Supreme Court decided District of Columbia v. Heller 15 years ago this week. The consequences of that decision are still unfolding today.

that is a bald faced lie-until FDR came along, no one believed the federal government had any gun control power and Cruikshank pretty well proved that. Justice Story, St George Tucker and Rawls all noted an individual right

 

you never seem to understand the tenth amendment argument

now at the state level-that doesn't exist, because I have noted that states had broad police powers to regulate firearms. Just as they could ban interracial marriage, homosexual conduct etc before the bill of rights were incorporated (in some cases)-the second has been incorporated entirely so laws that interfere with the keeping (ownership, acquisition and possession) of arms or bearing arms (carrying transporting) are suspect-at best, most likely unconstitutional in most cases

 

Yeah I wonder what the motivation is-and I reject "crime control" or public safety. To me it appears purely political-weaponizing laws to attack a culture that doesn't support the leftwing agendas