Supreme Court and 2nd Ammendment

[Robert B]

Now that the Supreme Court has applied the 2nd ammendment to individuals, can future justices on this court overturn this ruling? After that, could it be reversed again? Is this going to be a seesaw back and forth depending on how many left wing justices there are at any given time, or is it now over for good?

 

[watchmanjimg]

Anything's possible, but stare decisis makes it unlikely that future justices will overturn the ruling outright. The Supreme Court simply doesn't "seesaw" every time a new president takes office. Of course the right to bear arms will be further defined in the lower courts, subject to Heller and McDonald. There's typically a lot of hemming and hawing anytime a supposedly controversial ruling is handed down, but it's mostly just talk. Look at Roe v. Wade for example. People continue to make a lot of noise on both sides of the issue but the decision stands.

 

[oldRoger]

There will probably be other issues bearing on the Heller/McDonald decisions make their way to SCOTUS for more definition. So future Justices could either chip away around the edges or enforce the freedoms.

SCOTUS has not finished speaking on the subject, As Justice Thomas said, there is more heavy lifting ahead.

 

[OKFC05]

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"By its terms, the Second Amendment does not apply to the States; read correctly, it does not even apply to individuals outside of the militia context."

Minority opinion in McDonald, signed by Stevens, Breyer, Ginsburg and Sotomayor

Sotomayor, to gain confirmation, pledged that she considered Heller settled law, yet she immediately dissented that it is NOT an individual right in McDonald. Ginsburg has already publicly vowed to reverse the decisions and "create a collective right connected to the militia."

And if there had been one more anti-2A vote on the Supreme Court in McDonald, that would be the law of the land today.

With enough anti-2A Justices on a future court, both Heller and McDonald could be reversed. The Supreme Court is not controllable from the outside, and historic positions have been reversed in the past.

Like you, I hope this does not happen with the 2A.

 

[Hoplophile]

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With enough anti-2A Justices on a future court, both Heller and McDonald could be reversed. The Supreme Court is not controllable from the outside, and historic positions have been reversed in the past.

Like you, I hope this does not happen with the 2A.

Well, if it does, that's what the Second Amendment is all about.

To put it politely, it ensures THE PEOPLE retain the balance of power.

 

[LoboGunLeather]

Black's Law Dictionary seems to be devoid of "f" words, like "final" and "finished".

You can count on the anti's raising these issues again and again, forever, any time they think they have a chance of defeating the 2nd Amendment. The struggle will never truly be over.

You can also count on them to create as many "reasonable restrictions" as they can dream up to make it as difficult and expensive as possible for anyone to exercise their 2nd Amendment rights. This will shape the struggle for the foreseeable future.

In my view, should the US government (including the Supreme Court) abrogate the 2nd Amendment that would constitute cancelling the social contract established by the US Constitution, therefore the US government would no longer be a legitimate entity. If anything would get individual states to secede from the union that would be it; and maybe that would not be a bad thing.

 

[PDL]

Seems to me there was a time when alcohol was banned, then reversed. There also was one where certain people were property to be returned if captured. Not to mention the death penalty that was in use for a few hundred years all of a sudden became illegal.

Those people on the SC are political and are getting more so every year. The judicial activism doesn't stop at the appelate courts.

 

[DonD]

McDonald[/I], signed by Stevens, Breyer, Ginsburg and Sotomayor

Sotomayor, to gain confirmation, pledged that she considered Heller settled law, yet she immediately dissented that it is NOT an individual right in McDonald. Ginsburg has already publicly vowed to reverse the decisions and "create a collective right connected to the militia."

I'm no SCOTUS or Constitutional scholar but it seems to me that Sotomayor showed ethically challenged reasoning in arguing against McDonald. Seems that she lied to Congress in saying she thought Heller was established precedent and law. Ought to be removed from the bench.

Fortunately for the 2nd Amendment, the witch Ginsberg's health is not good, I don't think she will be around long enough to do any more damage. Don

 

[Rawhyde]

Unfortunately, the Constitution or any other law for that matter says whatever a majority of Supreme Court Justices say it says.

If there is ever a "finding" by the SCOTUS that the 3rd Amendment compels a 25 mph speed limit on all roads and highways in the US, then we might as well take up walking and buy stock in shoe companies.

A bad apple on the Supreme Court is dangerous. If we ever get 5 of them, we're sunk.

 

[DonD]

A bad apple on the Supreme Court is dangerous. If we ever get 5 of them, we're sunk.

Unfortunately, I think we already have 4 that are on the rotting side. Don

 

[Skeptic 9c]

Rule 1: Shysters get lots of money.
Rule 2: Judges are shysters who make sure other shysters get lots of money.
These courts are designed to make money for shysters...anything else is unimportant, especially your life and wallet if you are a victim of the shysters.
Geoff
Who is old gray and cynical this morning.

 

[Tom Servo]

Anything's possible, but stare decisis makes it unlikely that future justices will overturn the ruling outright.

True. If they make a habit of overturning their own precedents in short order, then the question arises: what credibility do their precedents have in the first place? This was a bit of hand-wringing in the Citizens United decision.

The biggest victory in McDonald wasn't getting incorporation. It was getting the word "fundamental" paired with the RKBA. The Court has never defined a right as "fundamental" and then changed their minds.

Some Justices may want to overturn McDonald (and Heller), but to do so would call their very authority into question.

However, let's bear in mind that, as the Court has defined it, the 2nd Amendment protects a right to keep a handgun in the home, subject to "reasonable" restrictions. That's the long and short of it.

A less-friendly Court could make sure that's all the 2A is acknowledged to protect. Since we don't have an established standard of scrutiny yet, we could find the RKBA very, very narrowed down.

As yet, 2A jurisprudence is still in its infancy, and we've yet to develop much case law. That'll come in the lower courts for the most part.

 

[jtpur]

We should rectify the Second Amendment once and for all... I propose.
THE RIGHT OF THE PEOPLE TO KEEP AND BARE ARMS SHALL NOT BE INFRINGED BY ANY GOVERMENTAL BODY. NO CITIZEN SHALL BE DENIED THE RIGHT TO KEEP AND BARE ARMS. A CITIZEN SHALL BE A NATURAL BORN CITIZEN OR ONE WHO HAS BEEN NATURALIZED. THIS AMENDMENT SHALL NOT APPLY TO ANY PERSON CONVICTED OF A FELONY CRIME OF VIOLENCE IN ANY COURT OF THE UNITED STATES OR ANY COURT OF ANY STATE.

SECTION 2: NO TREATY WITH ANY FORIEGN GOVERNMENT OR ANY FORIEGN BODY, NOR ANY FORIEGN LAW SHALL NULLIFY ANY OF THE PROVISIONS OF THIS AMENDMENT.

SECTION 3: THE PROVISIONS OF THIS AMENDMENT SHALL BE IN FULL FORCE AND EFFECT EVEN IN THE EVENT OF A NATURAL OR MAN MADE DISASTER, RIOT, REBELLION OR INSURRECTION.

anyone who would care to comment is most welcome..I think even Bryer, Sotomayore, Ginsberg, and Stevens would have trouble with ruling contrary to this language but leave nothing to Statest elites that they may not try.

 

[Engineer1911]

Bare arms comes with a short sleeve shirt. Right to bear arms is the subject of the 2nd Amendment.

 

[PDL]

You're obviously more of a scholar than I.
I can't argue your first 2 points. My point was simply that the 'law of the land' is open to interpretation as the players change.

As far as point 3, the effect was the same, regardless of the wording. Even now, the death penalty, where it exists doesn't happen 'till after years of review. It's been banned in a number of states due to it's costliness. Personally, I don't care if it inhibits crime, it sure does stop repeat offenders.

And remember Sotomeyer's 'settled law' quote about the 2nd amendment, followed by her actual rulling that she couldn't find anything that showed the 2nd applied to individuals.

So what was your take on the orriginal question?

 

[jtpur]

Bare arms comes with a short sleeve shirt. Right to bear arms is the subject of the 2nd Amendment.

BEAR is a four legged wooly animal. Bare defined might be to expose an arm, but it also means exposed to view... I beg to differ with you, but the only definition I can find for "bear" is the four legged wooly animal. Since I have no original copy of the Constitution in front of me I do not know how the framers spelled the word, but until proven differently I will stick with "Bare"

 

[PDL]

BEAR is a four legged wooly animal. Bare defined might be to expose an arm, but it also means exposed to view... I beg to differ with you, but the only definition I can find for "bear" is the four legged wooly animal. Since I have no original copy of the Constitution in front of me I do not know how the framers spelled the word, but until proven differently I will stick with "Bare"

Go get'em JT.
Don't you know if you were talking face to face, they wouldn't know how you were spelling it. And it wouldn't matter anymore then than now.

 

[HKSmith]

You're obviously more of a scholar than I.
I can't argue your first 2 points. My point was simply that the 'law of the land' is open to interpretation as the players change.

As far as point 3, the effect was the same, regardless of the wording. Even now, the death penalty, where it exists doesn't happen 'till after years of review. It's been banned in a number of states due to it's costliness. Personally, I don't care if it inhibits crime, it sure does stop repeat offenders.

And remember Sotomeyer's 'settled law' quote about the 2nd amendment, followed by her actual rulling that she couldn't find anything that showed the 2nd applied to individuals.

Thanks for your reply. My point about the death penalty was that the Supreme Court's rulings didn't involve a finding about the constitutionality of the death penalty per se or a reversal of prior Supreme Court precedent.



So what was your take on the orriginal question?

My opinion (and it's just that) is that Heller and McDonald will not be reversed even if the composition of the court changes adversely. But these 2 decisions only addressed the most fundamental of rights - the ability to keep a commonly used weapon in the home for self defense. They explicitly left open questions about concealed carry, regulation of commerce in firearms, possession of firearms by felons, and possession of "dangerous" weapons. The last item I assume is a hint that they would not find the NFA, which regulates machine guns etc., to be unconstitutional.

The crunch will come as cases related to these issues make their way through the lower courts and further define just what the 2nd Amendment means to the courts. The Supreme Court could just let the lower court rulings stand by not hearing further appeals or take a more active role in defining the limitations of the right to keep and bear arms. Heller certainly made clear that Justice Scalia, the most conservative pro-gun Justice of our time, believes that such limitations exist. Those who believe that the 2nd Amendment gives you the right to ride around New York City with a loaded machine gun on the front seat will be disappointed!

 

[shawn mccarver]

Rule 1: Shysters get lots of money.
Rule 2: Judges are shysters who make sure other shysters get lots of money.
These courts are designed to make money for shysters...anything else is unimportant, especially your life and wallet if you are a victim of the shysters.
Geoff
Who is old gray and cynical this morning.

Old, gray and cynical? At least you are aware of your limitations.

Remember the definition of a conservative is a liberal who has been robbed, while a liberal is defined as a conservative who has been arrested.

Your sweeping and simplistic over generalization about lawyers (I assume that is what you mean by the term "shyster") and courts has to be the most profoundly offensive comment I have read on this forum for a long time.

As a lawyer, I have spent 26 years honestly representing clients in court, and I have never brought a case that I thought was not supported by facts and law. I have certainly NEVER seen ANY judge who regarded it as his or her mission to make sure lawyers make lots of money. In some cases, quite the contrary, in fact.

I know many lawyers who represent poor people, who volunteer their time, who attend mass or church services, who work tirelessly in civic organizations. Quite a number work as prosecutors, public defenders and for legal aid societies, and all of those work for less money than many of my divorce clients make on the assembly lines at some manufacturing plants.

I do not know what you do for a living, but my guess is that within your profession there are good people and there are bad people. Yet, it is unfair to trash your profession because some people within it do not share my views or because some may be criminals.

It is equally unfair to trash all lawyers and all judges because some express views different than what you believe or because some may act out of other motives than devotion to the law.

Remember, from another perspective, it is the courts who keep the legislature and the executive in check, safeguard the civil rights of the citizens, and so forth.

Where I live, it is difficult to find an anti-gun lawyer or judge, and the important thing to remember is that lawyers and judges swear an oath to uphold the law and the constitution regardless of their personal view of what they might think it means or should say.

The oath is to enforce the meaning of a law as written or as interpreted by previous court decisions. And that oath applies even if the previous appellate court decision is not the same as the lawyer or judge in question believes it should be.

For example, you may believe we should still be segregated as a society, but if you were a judge, you would be required, despite that personal belief, to enforce laws and the court decisions interpreting those laws that were enacted to end segregation.

Some lawyers and judges see things differently than other lawyers and judges. That is no different than any other area of discussion. Put nine (that is the number of justices on the US Supreme Court) theologians in a room, and I suspect you will have significant disagreement on areas that "seem clear" to you, and I bet you would hear opinions that are contrary to your own opinions on that topic.

Many people on this forum bash lawyers and blame lawyers and the courts for S&W's inclusion of internal locks on its revovlers, yet it is juries who make big awards in cases where a revolver operated exactly as it was designed. The problem would not exist if juries, made up of lay persons such as yourself, would "just say no."

You are certainly entitled to your opinion about so-called "shysters" and judges and courts, but I am equally entitled to respond to it, and I have tried to do so in a respectful way, without trashing you, your personal beliefs (even though I do not think much of them) or your profession, etc.

 

[oldman45]

While I doubt any reversal of decision by the Supreme Court, I feel there may be decisions made in the future that will not go well with gun owners.

Any first year law student knows never to ask a question that the answer is not yet known. Any question put before the SC may get an answer that we do not want. There are issues for which many would like an answer but the potential for the wrong answer is always there.

Before going before any court, one side or another feels they have an edge. Often the ruling is not the one they want.

I do not have to go to Las Vegas to gamble but simple go before a Judge. Such as it is with the Supreme Court. Each side gets 30 minutes minutes to argue their case. The ruling will depend on the way each Judge interprets the law. That is often subject to political leanings.