MEGA THREAD -Supreme Court Extends Gun Rights to All 50 States

[cekim]

I was thinking more along the lines of someone else.....maybe even a open carry protest?

As I said, as sympathetic as I am to the intentions of the OC movement, it simply is not yet required to make/maximize progress. We have demonstrable abuse of power and the Constitution already in "suitability."

There is a lot of work to do to force our state to make the changes required to comply with MacDonald without dealing with the myriad of (that's right, he said "myriad of") additional restrictions MA will undoubtedly attempt to impose/retain that will have to be tested/litigated as well.

Other states who have less work than we do can press such issues to SCOTUS right away while we deal with our bootstrap of restoring basic 2A rights. By the time we finish getting basic protections of "shall issue" here, it is entirely possible self-defense outside the home, carry, concealed, open, etc... are already fleshed out at the Federal level for us...

 

[cekim]

What would happen if a NH resident were to apply for a non-resident permit and get denied? Because without a non-resident permit a non-resident cannot even bring in an empty shell let alone an empty firearm. Would there be a case there now that McDonald was ruled?

Fascinating question that opens up cans of worms WRT to reciprocity and the type of "scrutiny" that the court applies to this newly minted Due Process right...

Stay tuned... All your questions and more will be answered... Yes, I think there is a case - no, I have no idea what path that will take...

 

[Half Cocked]

What would happen if a NH resident were to apply for a non-resident permit and get denied? Because without a non-resident permit a non-resident cannot even bring in an empty shell let alone an empty firearm. Would there be a case there now that McDonald was ruled?

You have got to remember............ McDonald only reinforced Heller........... which dealt with the issue of self defense in your home.

 

[cekim]

You have got to remember............ McDonald only reinforced Heller........... which dealt with the issue of self defense in your home.

Um, there is a great deal of discussion saying this, certainly Heller was very focused on this and clearly there was no specific ruling on CCW/OC, but the broad declaration of incorporation as a function the Due Process clause of the 14th amendment does indeed imply much more than "in the home."

Of course, per legal procedure, this question will have to be explicitly asked and answered either by refusal to grant cert of a lower court ruling or yet another cert to hear the case, but I think you and others are understating the basic legal finding that was made here.

Once it is acknowledged that it is a fundamental right protected by Due Process, that comes with it bunch of baggage from other such rights with similar protection. Again, it is fair to say, unless I missed something in the ruling, that the question of scrutiny is unanswered, but to say that nothing was said about anything outside the home by this ruling is a mistake in my book.

Plenty was said - the question is how it will be translated into English by the lower courts?

They've described self defense as a natural right... They reference founder discussion of protection of "homestead" (among other things), but I did not see anything in their verbiage that intended to narrow their finding to only the "homestead."

 

[cekim]

p.s. HalfCocked

Perhaps it would be more to the point to say that the issue of SD/Carry outside the home could potentially be answered without so much as a single word on this issue uttered in the high court again. The logical extension of their findings here could be made by the district or appeals court and SCOTUS could simply refuse to grant cert on those opinions. Until a circuit conflict is created, it could remain as such for decades or more...

 

[NFD9]

You have got to remember............ McDonald only reinforced Heller........... which dealt with the issue of self defense in your home.

HC
Have you read this

This is a very good summation of Heller/McDonald posted on www.thehighroad.us and should be read by everyone here:

http://www.thehighroad.us/attachment.php?attachmentid=90198&d=1277883504

What do you think?

IMHO I think there is more to the McDonald decision.

 

[M1911]

What would happen if a NH resident were to apply for a non-resident permit and get denied? Because without a non-resident permit a non-resident cannot even bring in an empty shell let alone an empty firearm. Would there be a case there now that McDonald was ruled?

The main thrust at issue in Heller and MacDonald was defense in the home. The decisions don't directly address defense outside of the home (though I have read Jim March's article that suggests that they do, that article isn't convincing to me). In your scenario, the NH resident does not need a MA non-resident permit to protect himself in his NH home.

HC
Have you read this

What do you think?

I'm not HC, but I did read that. It is my understanding (please correct me if I'm wrong), that Jim March is an activist, but not an attorney. I'm not an attorney. Some of his legal arguments went over my head. That's pretty much the only article that I've read that suggests Heller and MacDonald ruled on carry as well as defense in the home. So until I see some confirmation of his interpretation, I remain unconvinced.

 

[gjones77]

Looks like the people of Chicago are now starting to speak out....

http://cbs2chicago.com/topstories/guns.ownership.rights.2.1782144.html

Illinois and Wisconsin are the only states without laws allowing residents to holster their firearms, conceal them and carry them in public.

People like Dr. Paula Bratich want to change that.

"I feel self-defense is a basic human right," she said.

Dr. Bratich is a veterinarian who often travels alone and at night to calls. She says keeping her handgun locked in its case is worthless.

"No matter how much our family loves us, no matter how hard the police try, no one is there the moment an attack occurs," she said.

And more importantly, this was actually good reporting, the reporter seemed very fair in the article

 

[Coyote33]

p.s. HalfCocked

Perhaps it would be more to the point to say that the issue of SD/Carry outside the home could potentially be answered without so much as a single word on this issue uttered in the high court again. The logical extension of their findings here could be made by the district or appeals court and SCOTUS could simply refuse to grant cert on those opinions. Until a circuit conflict is created, it could remain as such for decades or more...

So in other words, what isn't illegal is therefore legal? Can people just start exercising their rights now without a license? I'd like to see it, but doubt any will. We need an interpretation from the AG's office, you know, for consumers.

 

[gjones77]

So in other words, what isn't illegal is therefore legal? Can people just start exercising their rights now without a license? I'd like to see it, but doubt any will. We need an interpretation from the AG's office, you know, for consumers.

Not quite, what was illegal in Massachusetts before McDonald is still illegal now.

The laws themselves we feel are infringing need to be challenged in court, in order to do that you need the right client and the right cases, which isn't always easy.

Right now Jesse Cohen is in the process of challenging the licensing procedures in Mass with regards to the COP denying licenses for no good reason other than they don't think people should have one.

I've been advocating going after the Mass approved roster and AG regs myself seeing that they violate the "firearms in common use" portion of the Heller opinion, but that too will take time.

 

[Coyote33]

Some 25 round Butler Creek magazines from out of MA used in MA should work, right? (you first)

 

[cekim]

So in other words, what isn't illegal is therefore legal? Can people just start exercising their rights now without a license? I'd like to see it, but doubt any will. We need an interpretation from the AG's office, you know, for consumers.

No, that's not what I was trying to say (though it _should_ be correct to say that while you are liable for damages or injury caused by even legal actions that are negligent, if it is not illegal then it is "legal").

What I was trying to say is that the ruling, while not mentioning SD/possession outside the home has far reaching implications for SD/carry/possession wherever it may happen.

They didn't say you have a "right to keep and bear arms in your home"

They defined 2A as a right protected by Due Process. They cited "defense of homestead" (among other things) as the historical example of the fundamental right that we all have and 2A protects (vs a "militia right" or other such non-sense as claimed by Breyer et al.).

The declaration of this as a fundamental right protected by Due Process, pre-empting (to a degree not clearly defined) state law reaches well past the bounds of the "homestead".

Had they taken a different route and narrowly declared (as they did in Heller) that you have a right to defend your home then I would agree with the assessment. By incorporating 2A as protected by Due Process they have issued a much broader statement of the strength of "shall not be infringed".

Keeping in mind that even the "right wing extremist" portion of the court views that statement as having an unspoken qualification of:

1. Which can be revoked following execution of "due process" (English common law)
2. Which may still regulate as we see fit (school zones, GCA68, etc...)

That said, the scope of the allowed infringement on this newly minted Due Process protection is MUCH narrower by tradition that what we have in MA, CA, NY, etc....

That is of course until the court is usurped by a 5th lunatic vote...

p.s. let me try again in a shorter version - they did not incorporate "Heller". They incorporated the 2nd Amendment.

 

[gjones77]

Some 25 round Butler Creek magazines from out of MA used in MA should work, right? (you first)

Sorry, I don't have an operational AR-15, so you're going to have to try that out

 

[HTRN]

Sorry, I don't have an operational AR-15, so you're going to have to try that out

Or a 10-22 for that matter.

 

[MassMark]

I've been advocating going after the Mass approved roster and AG regs myself seeing that they violate the "firearms in common use" portion of the Heller opinion, but that too will take time.

I've been advocating going after the AG in court for years, but was told it was all but impossible. Perhaps now it's possible?

 

[gjones77]

Or a 10-22 for that matter.

Don't I wish, I should go get one...

 

[gjones77]

I've been advocating going after the AG in court for years, but was told it was all but impossible. Perhaps now it's possible?

It's extremely possible, with regards to the AG regs, the manufactures, Store owners, and Licensed gun owners were denied the due process of law when a large majority of firearms were essentially banned in the state due to regulations put in place.

There are many avenues we can take with regards to the AG Reg and Approved roster, I still feel that the "guns in common use" portion of the Heller ruling is strongest because "in common use" is really easy to define seeing that many of the firearms we're denied transfer of (since we can buy and own, just not have transferred via an FFL) because they don't meet the AG regs and only have greater than 10 round magazines, are all firearms in common use nationally.

 

[cekim]

I've been advocating going after the AG in court for years, but was told it was all but impossible. Perhaps now it's possible?

Without incorporation, it was a very week case at best. Since the SJC re-wrote the state Constitution it was clear they were not going to do anything.

Now the Federal Constitution limits the scope of the SJC's power and the Federal Courts have an explicit reason to intervene in these matters...

So, yes, what was previously futile is now very possible. I fully expect you will see some action on this front, though I am sure it will move frustratingly slowly for all of us... Such is the reality of the legal process.

Which is why we should continue pressing our legislators and asking them why they continue to violate our civil rights?

The legislature _could_ if they actually upheld the oath of office they took, "fix" this in a matter of days if they wished (and we demanded).

 

[Knuckle Dragger]

Without incorporation, it was a very week case at best. Since the SJC re-wrote the state Constitution it was clear they were not going to do anything.......

Not so sure I agree with this, although incorporation is still a huge asset.

The AG's grossly overreaching interpretation of their power under 93A when creating 940 CMR 16.00 and in bringing consumer protection complaints against out-of-state ammunition vendors is vulnerable on it's own merit - or lack thereof.

 

[cekim]

Not so sure I agree with this, although incorporation is still a huge asset.

The AG's grossly overreaching interpretation of their power under 93A when creating 940 CMR 16.00 and in bringing consumer protection complaints against out-of-state ammunition vendors is vulnerable on it's own merit - or lack thereof.

Has the SJC stepped in anywhere to limit the AG's power? I am not holding my breath...

 

[M1911]

Not quite, what was illegal in Massachusetts before McDonald is still illegal now.

The laws themselves we feel are infringing need to be challenged in court, in order to do that you need the right client and the right cases, which isn't always easy.

You also need a big pot of money (upwards of $1M if the case gets appealed to the SCOTUS) and a lot of time.

 

[NFD9]

They didn't say you have a "right to keep and bear arms in your home"

They defined 2A as a right protected by Due Process. They cited "defense of homestead" (among other things) as the historical example of the fundamental right that we all have and 2A protects (vs a "militia right" or other such non-sense as claimed by Breyer et al.).

By incorporating 2A as protected by Due Process they have issued a much broader statement of the strength of "shall not be infringed".

p.s. let me try again in a shorter version - they did not incorporate "Heller". They incorporated the 2nd Amendment.

My Thoughts exactly

 

[RKG]

HC
Have you read this


What do you think?

IMHO I think there is more to the McDonald decision.

Now you know what drives lawyers nuts.

On the one hand, you have to focus on the holding of a court, which is its narrow ruling.

On the other hand, you try to assess the ratio decidendi of the holding, from which one may or may not be able correctly to deduce what the court will hold in the next case, raising a related but different issue.

Now, let's make it a bit more complicated:

You are the SJC, which means you're the highest court in Massachusetts, but (as to federal issues) you are junior to the Supreme Court of the United States.

A case comes before you -- just for illustration, let's say a case involving a claim of a federal 2d Amendment right to carry outside the curtilege -- and you have to decide it.

If you are a result-oriented judge and hate guns, you'll quickly rule against the claim, observing that the holding of Heller did not extend that far. (You will, at least silently, accept the risk of being later reversed by the Supreme Court, knowing that numerically the odds are very long against the Supreme Court taking the cast on cert.)

If you are a result-oriented judge and love guns, you'll quickly rule in favor of the claim, observing that the ratio decidendi of Heller certainly extends to carrying abroad, except in a narrow class of sensitive places.

If you are a judge who actually understands the judicial role (sometimes a rare breed), you will examine Heller to see if a result either way is dictated (by the holding) or precluded (by either the holding or the ratio decidendi), and, if neither, you will attempt to figure out how the Heller Court would rule, applying its own underlying ratio decidendi. And you will, all the while, put aside your own preference as what you'd like the result to be.

When the SJC was reversed 9-0 on the 1st Amendment claims of the organizers of the South Boston St. Patrick's Day parade, this was an example of the first type.

 

[jar]

If you are a judge who actually understands the judicial role (sometimes a rare breed), you will examine Heller to see if a result either way is dictated (by the holding) or precluded (by either the holding or the ratio decidendi), and, if not, you will attempt to figure out how the Heller Court would rule, applying its own underlying ratio decidendi. And you will, all the while, put aside your own preference as what you'd like the result to be.

And Santa Claus will come down the chimney with collapsible stocks and p-mags for all the girls and boys.

 

[terraformer]

When the SJC was reversed 9-0 on the 1st Amendment claims of the organizers of the South Boston St. Patrick's Day parade, this was an example of the first type.

Why am I figuring that this is a common record for anything that the SJC rules on that gets review...

 

[cekim]

Now you know what drives lawyers nuts.

On the one hand, you have to focus on the holding of a court, which is its narrow ruling.

On the other hand, you try to assess the ratio decidendi of the holding, from which one may or may not be able correctly to deduce what the court will hold in the next case, raising a related but different issue.

Indeed...

It would seem to me this case is even more difficult because of the broad scope of the holding:

We have previously held that most of the provisions of the Bill of Rights apply with full force to both the Federal Government and the States. Applying the standard that is well established in our caselaw, we hold that the Second Amendment right is fully applicable to the States.

As I previously mentioned, this holding comes with all sorts of baggage (other highly parallel settled law on elements of the Constitution previously incorproated) that will be sorted out at all levels of the court system (I suspect the SJC will do as you suggest every chance they get and ignore this, but the Federal Courts are another manner).

 

[Teej]

You also need a big pot of money (upwards of $1M if the case gets appealed to the SCOTUS) and a lot of time.

Out of curiosity, why is it so expensive? Is it filling/court fees or is it the rates the lawyers charge?

 

[Kamal Jain]

Friends, fellow sportsmen:

The [McDonald v.] Chicago decision is great news, but as with the Heller decision, I have mixed reactions.

What I find troubling in both cases is that the Justices of the Supreme Court appear to be interpreting the Constitution and deciding what its intent was, thereby informing their opinions on the law in question.

More importantly, there seems to be a loss of the fact that the Bill of Rights -- reinforced through the 9th Amendment within -- is not a defined list of our rights.

We the People reserve ALL rights, enumerated and otherwise. Our Constitution was the first in the world (and is still one of the only) to clearly state that the people retained all rights, save those held by the member states of the Republic, and those fewer still ENUMERATED POWERS granted to the Federal government.

Let us rejoice in this decision because it is a positive outcome, but let us remember that danger lurks within the Court exceeding its Constitutional mandate by interpreting the Constitution, for they may not always side in our favor.

Kamal Jain
Candidate for Massachusetts State Auditor
Lifetime GOAL & Endowment NRA member
http://MassTransparency.com

 

[jar]

Out of curiosity, why is it so expensive? Is it filling/court fees or is it the rates the lawyers charge?

The lawyers' rates. I have several friends who are 3rd year associates at big law firms in Boston. Their hourly rates are in the $400s. Partners are $500-$800. Gura's rate *during* Heller was $557, according to his filing to recover costs from DC. With now two blockbuster SCOTUS wins under his belt, I expect it's now much higher.

 

[terraformer]

Out of curiosity, why is it so expensive? Is it filling/court fees or is it the rates the lawyers charge?

You don't take on the NY yankees with the Lowell Spinners.

The lawyers' rates. I have several friends who are 3rd year associates at big law firms in Boston. Their hourly rates are in the $400s. Partners are $500-$800. Gura's rate *during* Heller was $557, according to his filing to recover costs from DC. With now two blockbuster SCOTUS wins under his belt, I expect it's now much higher.

That $557 may be an average rate of him and his staff.