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Some gun owners unhappy with the NRA
- Thread starter copterdoctor
- Start date
I don't know that I'd call it a strategy given that we have two separate plaintiffs and three cases. It more like your wife making you wear a belt and still having your mom make you wear suspenders.
That's where I disagree...
There is the truth.
There is what is right.
There is the law.
There is what a judge decides.
These are all independent and lately mutually exclusive things.
![[thinking]](/xen/styles/default/xenforo/smilies.vb/010.gif "Thinking [thinking]")
What is gained is that we don't know what odd-ball coalition of 5:4 we might get on incorporation (assuming its 5:4 not 4:5
). As such, having as many means as possible to get to the "right" result regardless of how narrow, tortured, bizarre and otherwise "wrong" the courts thinking is a good thing.We have, in the NRA's "in the alternative," a reserve chute that would not otherwise be there.
Oh crap! Duck....Scriv is going to fire for effect!!!
That's where I disagree...
There is the truth.
There is what is right.
There is the law.
There is what a judge decides.
These are all independent and lately mutually exclusive things.
What is gained is that we don't know what odd-ball coalition of 5:4 we might get on incorporation (assuming its 5:4 not 4:5
We have, in the NRA's "in the alternative," a reserve chute that would not otherwise be there.
There's really no chance of not winning this case (i.e. incorporating Heller). I was fortunate enough to sit through one of Gura's mock argument sessions with some really smart constitutional law types. The practical outcome of McDonald is foregone conclusion. We're now onto the rarefied either of constitutional law.
I think this is an unfair comment. Everyone appearing before a court deserves competent legal representation.
But, at this level things are completely different. You have a lot of actors (Olsen, Clement, Dellinger) who are principally interested in the Constitution and the law and their specialty is appearing before the SC. They do so because they can, they're good at it and because they have a deep intellectual interest in the law.
NOTHING is "foregone" with this...
There are 4 votes that we can likely count right now. There is a 5th that we THINK we can count, but is anything but certain. Then there are 4 people on the bench who, judging by the content of their opinions either are completely ignorant of history or sufficiently mentally impaired that even knowing what has happened, they choose to see a different sequence of events.
Reading the dissent in Heller you see an attempt to construct an alternate reality to justify their desire to ban guns. They ignore the obvious history of the revolution. They ignore the obvious history of the English language. They ignore the timeline and sequence of events. They alternate using "period" definitions and modern ones as it suits their conclusion (in the face of CLEAR evidence to the contrary).
Much like we have in MA. The language in our state Constitution that guarantees a right to keep and bear arms is clear and VERY similar to that of other states. Yet somehow MA reads that passage entirely differently.
This court is finally moving ever so slightly in the direction of protecting the Constitution after nearly 150 years of actively trying to destroy it or at least ignore it. Take nothing for granted. I will frankly be shocked if it is anything but a 5:4 vote.
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Well, there you go again - bringing logic and a grasp of fundamental rights into a chest-thumping contest. You clearly lack the keen insight and blinding mental acuity Glasgow possesses; capable of discerning The Truth upon a mere reading of newspaper clippings and dispensing with superfluities like due process.
Well you’re correct in that anything could happen. But then again we could all be wiped out by a massive asteroid hitting the earth. But I’ll continue to believe that to NOT incorporate in this case would require the SC to make an unthinkably radical departure from modern precedent.
The SC doesn’t normally take routine cases. They take cases to settle major legal issues which have broad scope and importance. I don’t think that the incorporation of one amendment rises to that level, at least not so soon after Heller was decided. Normally I think they’d be happy to have the lower courts work it out and give them a few years to twist in the wind before getting involved. In order to NOT incorporate the 2nd amendment in this case the court would have to resuscitate a decision that they’ve been distancing themselves from for years. I don’t even think that any of the briefs on the other side are even suggesting that there’s a valid reason for not incorporating. The Brady Center isn’t arguing that.
I recently sat about 30 feet from Mr. Gura while he presented his oral arguments to a panel of pretty sharp constitutional scholars. They grilled him much as you’d expect the SC to do followed by a critique / coaching discussing. I didn’t get the sense that these folks really agreed with the Heller decision, that didn’t come up much and wasn’t the point anyway. It was very clear going in that incorporation was a done deal in these folk’s minds – the possibility wasn’t even questioned. The arguments and discussion were 98% about making a POI case for incorporation.
Sorry, I'll try to fit in and be less disruptive in the future.
The chances of a 5:4 against far outweigh those of a "planet killer" asteroid.
You are absolutely correct that SCOTUS takes cases "for a reason", but they are not "of one mind". It's Pandora's box and most everyone knows it - which is precisely why the NRA ran and hid for 40 years after 1968 GCA.
I don't know the precise date that the shift occurred, but I think it's safe to say had Heller come up in the 70's it would have gone the other way. Look at a "shall issue" carry map in time lapse and you will see that our re-embracing 2A in "the mainstream" has been a growing, but relatively recent phenomenon in the geological time frame of the SC.
I caution because even the majority opinion in Heller is written by people who "don't get it". "Reasonable Restrictions" has no place in the context of civil rights. Particularly in the case of a right designed to preserve the power of a people to put off an oppressive government.
I think we all understand as a matter of reality that there will always be "reasonable restrictions" (such as revoking civil rights upon conviction of a felony), but that is a far cry from restricting the rights of those of us not convicted of anything. Revocation of rights upon conviction is concept that goes back to common law - but the important thing that was said out-loud in the Constitution is that it requires DUE PROCESS. That is, we all have the full protection of the Constitution and presumption of innocence until proven otherwise.
RKBA is the "nuclear option" of the people when all other checks and balances fail. There would be nothing "reasonable" about the situation/circumstances in which this "nuclear option" needed to be used.
Double plus good brother...
![[laugh]](/xen/styles/default/xenforo/smilies.vb/012.gif "Laugh [laugh]")
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I hear you, but I can’t conceive of HOW they could decide this case and not incorporate. You’re not supplying the vehicle by which the court would NOT incorporate. I know the history, but the arguments in front of the court are more relevant and none of them make any reasonable case for not incorporating. I just don’t see 5 justices making it up on their own. It’s wholly out of character for the current court and to do so would send shock waves through the legal community.
To reject incorporation, they would have to gut the entire 14th amendment. They would have to throw out due process (which is part of Gura’s case, just not the headliner). The Heller decision was ground breaking. To incorporate it would be dotting the i’s and crossing the t’s. Not incorporating it would be earth shattering. No one is asking for that, so they’re not going to give it.
The Pandora’s Box is POI because if the court buys that argument it potentially changes a lot of stuff. That’s also the reason the court granted certiorari to McDonald and NOT the two NRA cases. The underlying issue – incorporation – is the same for all three cases. But McDonald has the hook that makes it interesting for the court. If we didn’t have that, these cases would make the rounds of the district courts for the next half century.
On the other hand, apart from incorporation, I don’t think we’re going to get anything directly out of this case. I’d be surprised if they added anything at all to Heller.
To reject incorporation, they would have to gut the entire 14th amendment. They would have to throw out due process (which is part of Gura’s case, just not the headliner). The Heller decision was ground breaking. To incorporate it would be dotting the i’s and crossing the t’s. Not incorporating it would be earth shattering. No one is asking for that, so they’re not going to give it.
The Pandora’s Box is POI because if the court buys that argument it potentially changes a lot of stuff. That’s also the reason the court granted certiorari to McDonald and NOT the two NRA cases. The underlying issue – incorporation – is the same for all three cases. But McDonald has the hook that makes it interesting for the court. If we didn’t have that, these cases would make the rounds of the district courts for the next half century.
On the other hand, apart from incorporation, I don’t think we’re going to get anything directly out of this case. I’d be surprised if they added anything at all to Heller.
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What's that hook?
http://en.wikipedia.org/wiki/Hook_(music)
ETA: Oh 'that' hook.
The McDonald brief puts POI front and center where as the other cases rely on due process. By accepting McDonald they get to hear and perhaps rule on something pertaining to POI which was all but gutted by the court's decision in the Slaughter House Cases (pun intended). If they accepted one of the other cases this would be a routine matter of incorporation via the 14thA due process clause. BFD - not something that's particularly interesting from a legal point of view.
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Oh, I thought there was more than just the PoI that you were referring to. I thought they were involved in two of the three cases and not just mcdonald.
The 7th circuit opinion covered three cases. McDonald v Chicago, NRA v Chicago, and NRA v Oak Park. The questions were the same, so one decision. But they were not consolidated. Each petitioned the SC separately. My theory as to why only McDonald got in is just that: My theory. I pulled it out of now where earlier today, but I'm sticking to it. I like it, and it makes sense.
It's a decent theory. I think where we disagree is on the unity of "the court's" mind.
Agreed. I mean disagree, oh shit I'm lost
I think their unity will be tested around POI. That's a crap shoot I think. To some degree I've moved on from my interest as a gun owner and have become kind of of constitutional law groupie.
Unless you are a Fudd and believe in the inanity of "hunter's rights", then there really shouldn't be any difference.
![[wink]](/xen/styles/default/xenforo/smilies.vb/002.gif "Wink [wink]")
