SCOTUS-Heller... one step closer to incorporation.

[LoginName]

Personally... I'm feeling more anxious about this than I was about the Heller case.

This is going to be our best, only and last chance at changing at least some of the gun control laws in this sorry state.

Second Amendment cases up early

The Supreme Court will consider two new cases on the scope of individuals’ Second Amendment right to have guns at its first Conference for the new Term, on Sept. 29, according to the Court’s electronic docket. Both petitions challenge a Seventh Circuit Court ruling that the Amendment does not restrict gun control laws adopted by state, county or city government, but applies only to federal laws. The cases are National Rifle Association v. Chicago (08-1497) and McDonald v. Chicago (08-1521).

The so-called “incorporation” issue is the most significant sequel issue raised in the wake of the Court’s 2008 decision in District of Columbia v. Heller, recognizing for the first time a personal right to have a gun for self-defense, at least in one’s home.

If the Court agrees to hear the new cases after its first look, that could be announced as early as the day after the Conference — that is, on Wed., Sept. 30. The first Conference of a new Term customarily is held in advance of the Term’s formal opening; this year, the Term starts Oct. 5.

The Court has not yet scheduled a time to consider another pending case on the Second Amendment issue — Maloney v. Rice (08-1592). The response in that case is now due on Aug. 28. The new Justice, Sonia Sotomayor, took part in the Maloney case when she was on the Second Circuit Court. Like the Seventh Circuit, the Second found that the Second Amendment only applies to federal laws. When the Justices consider the Maloney case, Sotomayor is not expected to take part. The fact that she had taken part in a ruling on the issue in one case, however, would not require her to withdraw from considering cases from other Circuits, like the Chicago cases.

http://www.scotusblog.com/wp/second-amendment-cases-up-early/

 

[center442]

Thanks for the update. I will be following this closely.

 

[P-14]

It's a new SCOTUS with a new player. Stand by for disappointment unless there is a larger margin pro 2A than with Heller.

 

[nephlim]

Incorporation would seem implicit, wouldn't it? It's not as if 1A only applies on the federal level, and it's not as if local agencies can decide that one can own this book but not the other, and that all pornography must be kept under lock and key.

It would be foolish to decide that Heller only has affect on the federal level.

 

[Shooter28]

Incorporation would seem implicit, wouldn't it? It's not as if 1A only applies on the federal level, and it's not as if local agencies can decide that one can own this book but not the other, and that all pornography must be kept under lock and key.

It would be foolish to decide that Heller only has affect on the federal level.

only reasonable people would ever think that.....

 

[M1911]

It's a new SCOTUS with a new player. Stand by for disappointment unless there is a larger margin pro 2A than with Heller.

Why would you expect the votes to be different this time around? Souter dissented in DC v. Heller. Sotomayor will likely vote the same way Souter did.

 

[nephlim]

only reasonable people would ever think that.....

Point well taken. Cheers, mate

I do have a feeling of optimism about this argument, however. Perhaps the recent media exposure of pro 2A individuals and the sheer volume of legal arguments following Heller will work in our favour for a change.

If the SCOTUS rules that Heller is federal only and has no incorporation, we are all back to square one. They can expect more appeals and more noise from the pro 2A crowd. If they rule that Heller does apply to state and local levels, it would save everyone (both local and federal) a great deal of time and energy, and of course, money in legal fees.

I don't think that state supreme bodies want to keep hearing these arguments, and I reckon the SCOTUS must tire of this also. The antis and the SCOTUS may just have to bite the bullet and side with us, for a change.

Or perhaps, not. We shall see.

 

[cekim]

It's a new SCOTUS with a new player. Stand by for disappointment unless there is a larger margin pro 2A than with Heller.

See prior post - the vote tally likely remains the same 5:4 in favor (same as before with one liberal moonbat replaced by another), but its possible that "state's rights" might mess things up here...

only reasonable people would ever think that.....

Particularly in light of these rights being described as endowed by the creator and infringement prohibited... Oh well...

 

[JimB]

+1000

i agree with 1911, we only traded one for another.... should not see any
change..


JimB

 

[hicksonj]

Assuming incorporation... it should be interesting to see how MA recasts Commonwealth v. Davis to keep the status quo.

 

[cekim]

Assuming incorporation... it should be interesting to see how MA recasts Commonwealth v. Davis to keep the status quo.

Two words come to mind WRT to MA's expected response to this:

"Kicking" and "Screaming"

 

[Beansie_Time]

Assuming that the 2nd is incorporated, what would be the next steps for you guys?
Sue the state and hope the court rules that MA laws are unconstitutional in light of these rulings and the Heller ruling?

 

[cekim]

Assuming that the 2nd is incorporated, what would be the next steps for you guys?
Sue the state and hope the court rules that MA laws are unconstitutional in light of these rulings and the Heller ruling?

It will be interesting to see if the SJC tries to sneak in and rule counter-heller before SCOTUS....

IIRC, they are reviewing the Heller/non-Heller split in the MA cases...

If they uphold the Heller approach, at least WRT to storage, that makes the issue moot... If not, then I would presume that one of those cases will head on up the chain...

Next is the "shall" vs "may" which someone will likely have to "test" but IANAL...

Then there's the "reasonable restriction" unpleasantness that they dropped into Heller that I am sure MA will push to the point of requiring another SCOTUS case...

 

[M1911]

If they uphold the Heller approach, at least WRT to storage, that makes the issue moot... If not, then I would presume that one of those cases will head on up the chain...

Our storage requirements are significantly less stringent than the DC requirements. It would not surprise me if the MA SJC ruled that our storage law is consistent with Heller vs. DC.

Next is the "shall" vs "may" which someone will likely have to "test" but IANAL...

Heller vs DC did not address carry at all, so I don't follow your argument there.

Then there's the "reasonable restriction" unpleasantness that they dropped into Heller that I am sure MA will push to the point of requiring another SCOTUS case...

And there's the rub.

 

[Rob Boudrie]

Heller vs DC did not address carry at all, so I don't follow your argument there.

An LTC is required for possession of a handgun. A case about a restriction would not be good Heller material, but the case of a denial for "suitability" absent disqualifiers would be an excellent Heller test case. Consider the case of the marine who was found not guilty of assault for firing a shotgun out the window but who was denied getting his LTC back by his chief, and had that denial upheld by the district court.

Also consider also the case of the man in Wellesley who had his LTC revoked because he exercised his 5th ammendment rights, or the applicant who lost his LTC denial appeal when the court upheld a department's policy that no LTC shall be issued to any person who has had a restraining order issued by a judge, even if the order expired without any violations occurring.

Each of these cases has a common thread - since owning a handgun is not a right, denial of an LTC is not punishment or removal of a right and therefore not subject to constitutional safeguards. A decent Heller case could change that.

 

[LoginName]

Heller vs DC did not address carry at all, so I don't follow your argument there.


And there's the rub.

An LTC is required for possession of a handgun. A case about a restriction would not be good Heller material, but the case of a denial for "suitability" absent disqualifiers would be an excellent Heller test case. Consider the case of the marine who was found not guilty of assault for firing a shotgun out the window but who was denied getting his LTC back by his chief, and had that denial upheld by the district court.

Also consider also the case of the man in Wellesley who had his LTC revoked because he exercised his 5th ammendment rights, or the applicant who lost his LTC denial appeal when the court upheld a department's policy that no LTC shall be issued to any person who has had a restraining order issued by a judge, even if the order expired without any violations occurring.

Each of these cases has a common thread - since owning a handgun is not a right, denial of an LTC is not punishment or removal of a right and therefore not subject to constitutional safeguards. A decent Heller case could change that.

And this bit of commentary by the majority could be our salvation to that little problem (relevant parts highlighted)...

The Court applies as remedy that "[a]ssuming that Heller is not disqualified from the exercise of Second Amendment rights, the District must permit him to register his handgun and must issue him a license to carry it in the home."

The Court, additionally, hinted that other remedy might be available in the form of eliminating the license requirement for carry in the home, but that no such relief had been requested: "Respondent conceded at oral argument that he does not 'have a problem with . . . licensing' and that the District's law is permissible so long as it is 'not enforced in an arbitrary and capricious manner.' Tr. of Oral Arg. 74–75. We therefore assume that petitioners' issuance of a license will satisfy respondent’s prayer for relief and do not address the licensing requirement."

http://en.wikipedia.org/wiki/District_of_Columbia_v._Heller#Issues_addressed_by_the_majority

Reading between the lines (or taking the "hint"), it sounds as if the majority was puzzled as to why the defendant didn't challenge the licensing requirement in his argument.

It's almost like they're saying... "had you challenged this as well, we would have ruled in your favor. Maybe the next litigants will get the "hint"".

Seems to me like the court is sending out a message that "may issue" licensing (at least WRT purchase, possession and ownership), is an infringement of our 2nd amendment rights.

I just hope the Chicago folks take this "hint" into consideration.

 

[cekim]

Heller vs DC did not address carry at all, so I don't follow your argument there.

Sorry, I wasn't clear - incorporation would imply RKBA from the constitution preempting state law... Which _should_ mean that ownership/carry is a Constitutionally protected right...

Heller is not important for "shall" vs "may", only incorporation itself...

 

[pdm]

MA might go back to the old status quo: arbitrary LTC for CCW, shall issue FID for mere possession. I don't expect Beacon Hill to do something novel.

 

[M1911]

Sorry, I wasn't clear - incorporation would imply RKBA from the constitution preempting state law... Which _should_ mean that ownership/carry is a Constitutionally protected right...

Heller is not important for "shall" vs "may", only incorporation itself...

Ownership != carry. Heller did not address carry outside of the home.

 

[cekim]

Ownership != carry. Heller did not address carry outside of the home.

Also understood, but you do realize we have to get an LTC with a "may issue" to even own right?

As I said, Heller's only relevance to that part of my comment is the broader implication of incorporation of 2A... The SJC and SCOTUS are in effect both reviewing not whether Heller is incorporated, but whether Heller's precedent trumps state law by virtue of incorporation...

If it does, it obviously has sweeping implications well beyond storage...

Concealed carry is a special/strange issue all its own...

IMO, Open Carry is not... That would be "bearing arms" - but as I mentioned, I am sure MA will jump all over "reasonable restrictions" until they have been spanked so hard by the courts that they cannot sit for a week...