Brady Campaign Sees Loss on A2

[HerbM]

There are decisions from prior months, yes, but the difference is that this year's term is ending. SCOTUS MUST decide all cases it hears and issue all decisions before it ends the term (which is why certiorari is so hard to get), and it has finished before July each year for the last decade. So, SCOTUS *cannot* wait till October. However, though unlikely, it MAY run into July.

I got this (could delay to Oct) from others so I would tend to believe your certainty.

There really haven't been very many cases like this since the ink dried on the Constitution nor the Bill of Rights.

You're spot on here. We knew, from the moment SCOTUS granted certiorari, that this decision would be one of those landmarks that make their way into school textbooks. The last one we had of this caliber was Roe v Wade (9th Amendment) and that was 20 years ago. This is history in the making.

I believe it will be much more like Miranda (in the long run, not right away), and the 4th Amendment decisions of the latter half of the 20th Century.

With Miranda, we went from the police are not SUPPOSED to violate the suspects rights to avoid self-incrimination, to the police must INFORM the criminal, er, suspect, of his rights and even provide a lawyer before questioning if he requests that.

The government probably won't have to ISSUE firearms, but maybe we can get rid of some of these egregious violations of the Constitution.

There are NO gun control laws that can pass strict scrutiny, and probably none that can even pass intermediate scrutiny -- this is complicated by the possibility (as mentioned by Chief Justice Roberts during oral arguments) that they may construct a new standard of review specific to the 2nd Amendment.

Why can NO gun control law be pass strict scrutiny? Simple because none can be prove to work, must less meet a compelling state interest nor even generally be the least intrusive method.

None of the CDC, the National Academy of Sciences, nor DoJ were able to find that ANY gun control reduces VIOLENT CRIME, MURDER, SUICIDE or ACCIDENTS in any significant manner.

Don B. Kates and Gary A. Mauser, "Would Banning Firearms Reduce Murder and Suicide? A Review of International Evidence" (June 6, 2006). ExpressO Preprint Series. Working Paper 1413. http://law.bepress.com/expresso/eps/1413 http://law.bepress.com/cgi/viewcontent. ... t=expresso

Not even the "reasonable sounding" NICS/Brady background check has ever been shown to work, and probably cannot be -- it isn't even enforce on criminals thus demonstrating that it isn't necessary nor solving a compelling state interest.

Less than 100 criminals are prosecuted each year for Brady/NICS violations -- and the vast majority of these are because the authorities needed to arrest or prosecute a criminal but can't make the real charge stick, or needs a "predicate felony" for a conspiracy or RICO charge.

Review of the ATF’s Enforcement of Brady Act Violations Identified Through the National Instant Criminal Background Check System
Office of Inspector General's (OIG) Draft Report: Review of the Bureau of Alcohol, Tobacco, Firearms and Explosives' Enforcement of Brady Act Violations Identified through the National Instant Criminal Background Check System. A-2004-001
http://www.usdoj.gov/oig/reports/ATF/e0406/final.pdf

Remember: When gun control advocates say "reasonable restrictions" they mean anything that sounds vaguely reasonable -- the courts do NOT use this definition, but instead require reasonableness of the totality of the infringement.

Bumper stickers are NOT evidence of reason.

[Liko81]

There are NO gun control laws that can pass strict scrutiny, and probably none that can even pass intermediate scrutiny -- this is complicated by the possibility (as mentioned by Chief Justice Roberts during oral arguments) that they may construct a new standard of review specific to the 2nd Amendment.

Why can NO gun control law be pass strict scrutiny? Simple because none can be prove to work, must less meet a compelling state interest nor even generally be the least intrusive method.

None of the CDC, the National Academy of Sciences, nor DoJ were able to find that ANY gun control reduces VIOLENT CRIME, MURDER, SUICIDE or ACCIDENTS in any significant manner.

Remember: When gun control advocates say "reasonable restrictions" they mean anything that sounds vaguely reasonable -- the courts do NOT use this definition, but instead require reasonableness of the totality of the infringement.

Well, let's discuss. I gave my views on what guns laws might and might not hold up under strict scrutiny. In short, there's a paradox here; the compelling interest the government would claim in defending something like the '86 ban - its own survival against armed unrest - is the very reason the Framers specifically enumerated the 2A. Therefore, you're exactly right; if any gun control measures, even ones you may personally approve of, are to be defensible, a new standard of review is required.

There may be a compelling interest for some other gun control measures. Take felon in possession; studies show that the majority of felons are repeat offenders. Let's not discuss exactly why that is for the moment; instead, consider two situations. Felon is released from prison. He gets hold of a gun and commits another felony (just for grins, say it's not a first-degree felony like armed robbery which carries a life sentence by itself). In dealing with a repeat offender in such a situation, society, through the courts, demands as many tools as possible to make sure the guy doesn't see daylight for as long as possible. If it were legal for him to possess the handgun, all you can convict him of is the felony, and if it's not first-degree, the best you can do is 20 years. Felon in possession, however, nets the felon an additional ten years. It's a tool in the toolbox, and Texas (and most other states) would argue heatedly in favor of keeping it.

A tougher question may be something like licensing. Most states argue that it is necessary for them to know who is carrying, for the purposes of giving their peace officers as much information about a situation as possible. Critics argue along the lines of "criminals don't obey the law" and "concealed means concealed"; a weapon carried concealed by an LAC is no threat to an officer, and a weapon carried concealed by a BG can't be known. However, let's be honest here; a CHL does confer an advantage on the holder in dealing with peace officers. You'd probably be loath to give up the "good citizen" karma your CHL presents to the officer who pulled you over. CHLs allow officers to assume the best; in their absence, a person with a gun generally leads the officer to assume the worst.

[HerbM]

There are NO gun control laws that can pass strict scrutiny, and probably none that can even pass intermediate scrutiny -- this is complicated by the possibility (as mentioned by Chief Justice Roberts during oral arguments) that they may construct a new standard of review specific to the 2nd Amendment.

Why can NO gun control law be pass strict scrutiny? Simple because none can be prove to work, must less meet a compelling state interest nor even generally be the least intrusive method.

None of the CDC, the National Academy of Sciences, nor DoJ were able to find that ANY gun control reduces VIOLENT CRIME, MURDER, SUICIDE or ACCIDENTS in any significant manner.

Remember: When gun control advocates say "reasonable restrictions" they mean anything that sounds vaguely reasonable -- the courts do NOT use this definition, but instead require reasonableness of the totality of the infringement.

Well, let's discuss. I gave my views on what guns laws might and might not hold up under strict scrutiny. In short, there's a paradox here; the compelling interest the government would claim in defending something like the '86 ban - its own survival against armed unrest - is the very reason the Framers specifically enumerated the 2A. Therefore, you're exactly right; if any gun control measures, even ones you may personally approve of, are to be defensible, a new standard of review is required.

Yes, and that one would fail compelling state interest on the grounds that these protections are "Necessary to a Free state" -- the fact (declared as a fact by the Constitution itself) that having an armed populace is a requirement for the survival of the Constitution and a free state.

There may be a compelling interest for some other gun control measures. Take felon in possession; studies show that the majority of felons are repeat offenders. Let's not discuss exactly why that is for the moment; instead, consider two situations. Felon is released from prison. He gets hold of a gun and commits another felony (just for grins, say it's not a first-degree felony like armed robbery which carries a life sentence by itself). In dealing with a repeat offender in such a situation, society, through the courts, demands as many tools as possible to make sure the guy doesn't see daylight for as long as possible. If it were legal for him to possess the handgun, all you can convict him of is the felony, and if it's not first-degree, the best you can do is 20 years. Felon in possession, however, nets the felon an additional ten years. It's a tool in the toolbox, and Texas (and most other states) would argue heatedly in favor of keeping it.

I don't consider Felon loss of rights (after due process) to be a "gun control" law but rather a criminal control or punishment law -- in the same sense that losing "voting rights" is not a voting control law but punishment after due process. (Similarly for simply being incarcerated or paying fines.)

As to punishing felons and controlling their use of firearms in other crimes, instead of infringing the rights of the law-abiding we should merely remove the felons 4th Amendment protections as long as the 2nd Amendment protections are revoked. Police can just search the felons at will (perhaps with some administrative rules to prevent mere harassment.)

Punish the (convicted) violent criminal and not the law-abiding.

A tougher question may be something like licensing. Most states argue that it is necessary for them to know who is carrying, for the purposes of giving their peace officers as much information about a situation as possible. Critics argue along the lines of "criminals don't obey the law" and "concealed means concealed"; a weapon carried concealed by an LAC is no threat to an officer, and a weapon carried concealed by a BG can't be known. However, let's be honest here; a CHL does confer an advantage on the holder in dealing with peace officers. You'd probably be loath to give up the "good citizen" karma your CHL presents to the officer who pulled you over. CHLs allow officers to assume the best; in their absence, a person with a gun generally leads the officer to assume the worst.

No, the CHL does not confer an advantage -- it makes HAVING that advantage legal. Not the same thing at all.

And again, "states argue" something like this doesn't work under strict scrutiny without PROOF.

And none of the gun control laws have ever been proven to be effective -- despite loads of trying. In many states there is no CHL required, further proving that it is not compelling; in others no notification is required...ditto.

You would always be FREE (emphasis necessary) to show the CHL (if you chose to obtain one) with the DL. There is no reason not to have an optional CHL like Alaska does.

Choice is good.

No gun control law can pass strict strutiny -- probably none of them can pass intermediate either. They just don't work and that is a fatal flaw.

[Pinkycatcher]

I don't consider Felon loss of rights (after due process) to be a "gun control" law but rather a criminal control or punishment law -- in the same sense that losing "voting rights" is not a voting control law but punishment after due process. (Similarly for simply being incarcerated or paying fines.)

As to punishing felons and controlling their use of firearms in other crimes, instead of infringing the rights of the law-abiding we should merely remove the felons 4th Amendment protections as long as the 2nd Amendment protections are revoked. Police can just search the felons at will (perhaps with some administrative rules to prevent mere harassment.)

Punish the (convicted) violent criminal and not the law-abiding.

A 4th amendment suspension would be abused way too often by too many cops in my opinion, I don't like criminals at all, but you make them submit to the whims of some ticked off officer who just had a bad day is no way to get him to integrate back into society. Although maybe a comprimise might be worth it, instead of probable cause an officer needs, change it to reasonable suspicion, and allow it to be challenged just like a regular search would be.

[HerbM]

I don't consider Felon loss of rights (after due process) to be a "gun control" law but rather a criminal control or punishment law -- in the same sense that losing "voting rights" is not a voting control law but punishment after due process. (Similarly for simply being incarcerated or paying fines.)

As to punishing felons and controlling their use of firearms in other crimes, instead of infringing the rights of the law-abiding we should merely remove the felons 4th Amendment protections as long as the 2nd Amendment protections are revoked. Police can just search the felons at will (perhaps with some administrative rules to prevent mere harassment.)

Punish the (convicted) violent criminal and not the law-abiding.

A 4th amendment suspension would be abused way too often by too many cops in my opinion, I don't like criminals at all, but you make them submit to the whims of some ticked off officer who just had a bad day is no way to get him to integrate back into society. Although maybe a comprimise might be worth it, instead of probable cause an officer needs, change it to reasonable suspicion, and allow it to be challenged just like a regular search would be.

I actually find this quite acceptable as opposed to violating the rights of the law-abiding by continually requiring us/them to prove our innocence, and for the simple fact that if someone cannot be trusted with a firearm then he cannot be trusted to obey that law without supervision.

Besides, violate the law, and go back to jail. Get more violent criminals off the streets for longer.

[Liko81]

No, the CHL does not confer an advantage -- it makes HAVING that advantage legal. Not the same thing at all.

And again, "states argue" something like this doesn't work under strict scrutiny without PROOF.

And none of the gun control laws have ever been proven to be effective -- despite loads of trying. In many states there is no CHL required, further proving that it is not compelling; in others no notification is required...ditto.

There are only two states in the union that do not require a license to carry concealed; Vermont and Alaska. They don't require a permit for any carry. Alaska has a CHL program purely for reciprocity purposes. Two more states are no-issue, a further half-dozen are technically may-issue but no-issue in practice, and the rest are either shall-issue or may-issue but de facto shall-issue. Now, 44 of 50 states do allow open carry in some form; 13 of them require a license to do so. All but 11 of the rest are considered "anomalous", either because the state does not pre-empt local law (Texas law technically does but cities still pass extra restrictions) or because of severe restrictions such as no car carry or widely-defined "no guns" signage. Only 11 states are "gold" OC states where state law pre-empts most additional local restrictions, and presents few if any restrictions to carry.

Anyway, I think you're missing the point I was trying to make. In Texas, a preponderance of peace officers know what you have to go through to get a CHL, and they are also told or know outright that CHL holders are GGs. There are many anecdotes here regarding being pulled over, handing over a CHL with your DL, and having the officer's demeanor toward you change considerably, often resulting in preferential treatment. The point I was trying to make is that, above and beyond the advantage of having a weapon in the first place, your CHL is an "in" with peace officers, and if they did away with licensing you would lose that fringe benefit.

[HerbM]

No, the CHL does not confer an advantage -- it makes HAVING that advantage legal. Not the same thing at all.

And again, "states argue" something like this doesn't work under strict scrutiny without PROOF.

And none of the gun control laws have ever been proven to be effective -- despite loads of trying. In many states there is no CHL required, further proving that it is not compelling; in others no notification is required...ditto.

There are only two states in the union that do not require a license to carry concealed; Vermont and Alaska. They don't require a permit for any carry. Alaska has a CHL program purely for reciprocity purposes. Two more states are no-issue, a further half-dozen are technically may-issue but no-issue in practice, and the rest are either shall-issue or may-issue but de facto shall-issue. Now, 44 of 50 states do allow open carry in some form; 13 of them require a license to do so. All but 11 of the rest are considered "anomalous", either because the state does not pre-empt local law (Texas law technically does but cities still pass extra restrictions) or because of severe restrictions such as no car carry or widely-defined "no guns" signage. Only 11 states are "gold" OC states where state law pre-empts most additional local restrictions, and presents few if any restrictions to carry.

Anyway, I think you're missing the point I was trying to make. In Texas, a preponderance of peace officers know what you have to go through to get a CHL, and they are also told or know outright that CHL holders are GGs. There are many anecdotes here regarding being pulled over, handing over a CHL with your DL, and having the officer's demeanor toward you change considerably, often resulting in preferential treatment. The point I was trying to make is that, above and beyond the advantage of having a weapon in the first place, your CHL is an "in" with peace officers, and if they did away with licensing you would lose that fringe benefit.

No. You are wrong. I understood precisely and answered your point, but you didn't copy that part:

You would always be FREE (emphasis necessary) to show the CHL (if you chose to obtain one) with the DL. There is no reason not to have an optional CHL like Alaska does.

Emphasis in the original.

Alaska has it correct. Pay for an obtain a CHL if you wish (for whatever reason you deem appropriate). Requiring one to license a right is always wrong, even if we (including me) choose to go along for now instead of travel less safely.

Claiming that having to genuflect for a right that then gives you some protected status, is to point out the advantages and enjoyment of being the government's pet.

[Liko81]

Alaska has it correct. Pay for an obtain a CHL if you wish (for whatever reason you deem appropriate). Requiring one to license a right is always wrong, even if we (including me) choose to go along for now instead of travel less safely.

But you're contradicting yourself. And it doesn't make much sense anyway. The only reason Alaska has a concealed-carry license at all is because all but one other state requires one, so AK citizens wouldn't be able to travel outside the state while carrying. It's purely for reciprocity; if there were no licensing requirement anywhere as you would advocate, Alaska wouldn't have bothered.

More generally, listen to yourself: an "optional" license. An "optional" license to carry would be the same as an "optional" driver's license, an "optional" liquor license, or an "optional" license to practice medicine. We're not talking about a high school diploma or college degree here, nor the quality of education differeng colleges or degrees represent; this is a license that shows you meet the minimum legal standard of expertise to do something safely, when doing it incorrectly could cause serious harm. You either do or do not meet that standard, and if you do not meet that standard then the state says it is dangerous for you to perform the licensed activity and prohibits you from doing it. An "optional" license is little more than a certification; it has no legal standing and only exists as a feel-good "I know how to do this" measure.

Back to strict scrutiny, the government has a compelling interest to "provide for the public welfare" (a specific goal of the government set up by the Constitution, enumerated in the Preamble). State and Federal governments can and do issue and require licenses for many activities that are not malum in se but, if done improperly, endanger public health, safety and welfare. The handling and carry of weapons is just such an activity; done improperly, people can get hurt. The 4 rules may be simple, but firearm accidents by novices demonstrate that safe handling is not common knowledge, nor is it immediately intuitive; it must be learned and practiced. If the state has a compelling interest to proactively require this, licensing public carry is the least restrictive and most narrowly-defined method.

Now, having said all this, I don't like licensing. I think making improper firearm handling a criminal offense, added to the guilt I would feel if I negligently injured someone (even if they never sat a day in court), is more than enough to get me to study the applicable law and practice, and thus requiring such steps is redundant in my case. However, the entire state of Texas is not me. People are basically good, but they are also basically lazy (not to mention busy), and if there is not an immediate and important reason to spend extra effort on a task, more often than not such effort will not be taken. This pattern, applied to guns, inevitably results in disaster.

[HerbM]

Alaska has it correct. Pay for an obtain a CHL if you wish (for whatever reason you deem appropriate). Requiring one to license a right is always wrong, even if we (including me) choose to go along for now instead of travel less safely.

But you're contradicting yourself. And it doesn't make much sense anyway. The only reason Alaska has a concealed-carry license at all is because all but one other state requires one, so AK citizens wouldn't be able to travel outside the state while carrying. It's purely for reciprocity; if there were no licensing requirement anywhere, Alaska wouldn't have bothered.

More generally, listen to yourself: an "optional" license. An "optional" license to carry would be the same as an "optional" driver's license, ...

Back to strict scrutiny, the government has a compelling interest to "provide for the public welfare" (a specific goal of the government set up by the Constitution, enumerated in the Preamble). State and Federal governments can and do issue and require licenses for many activities that are not malum in se but, if done improperly, endanger public health, safety and welfare. The handling and carry of weapons is just such an activity; done improperly, people can get hurt. The 4 rules may be simple, but firearm accidents by novices demonstrate that safe handling is not common knowledge, nor is it immediately intuitive; it must be learned and practiced. If the state has a compelling interest to proactively require this, licensing public carry is the least restrictive and most narrowly-defined method.

No, you have presumed that Alaska does it purely for the reason YOU understand or support and apparently you have chosen not to understand "optional" and then explained Alaska's law as in fact OPTIONAL (as I did.)

Alaska offers the OPTION of obtaining a CHL -- you can then use it for reciprocity or to try to curry favor at a traffic stop if you wish. Your choice but it is exactly OPTIONAL.

The government might have a compelling state interest in public welfare but that is insufficient reason to make any gun control law -- such laws properly require PROOF of efficacy towards that provably specific interest and proof that there is no other less intrusive way to meet that requirement.

No gun control law can pass this test. Not one. Not one has ever been shown to work.

None of the CDC, the National Academy of Sciences, nor DoJ were able to find that ANY gun control reduces VIOLENT CRIME, MURDER, SUICIDE or ACCIDENTS in any significant manner.

No matter how many gun control advocates try to sell such laws as useful there is insufficient evidence to show that even one gun control law works.

Even the very reasonable SOUNDING NICS/Brady Backgroun check is worthless and this is further demonstrated by the simple fact that it cannot serve a compelling state interest since it is not even enforce on criminals.

Less than 100 criminals are prosecuted each year for Brady/NICS violations -- and the vast majority of these are because the authorities needed to arrest or prosecute a criminal but can't make the real charge stick, or needs a "predicate felony" for a conspiracy or RICO charge.

We we, those who intend to respect the right to keep and bear arms, cannot even remember that gun control does not work we become part of the problem.

Please don't do that but instead insist on every using FACTS, EVIDENCE, and LOGIC when considering such violations of rights.

[HerbM]

Heller will be releases on Thursday, June 26, at 10 AM Eastern (along with all remaining opinions.)

[Rugrash]

Watch it live on: http://www.scotusblog.com/wp/

I was watching the blog today when the other opinions were coming down and I think there are 3 final ones tomorrow (including the Heller case).

<fingers-crossed>
-Rug

[bdickens]

If the decision goes right, whaddaya wanna bet that the media all but ignores it?

[anygunanywhere]

If the decision goes right, whaddaya wanna bet that the media all but ignores it?

Fox News was waiting today specifically for the Heller decision.

So was I.

Anygunanywhere

[HerbM]

If the decision goes right, whaddaya wanna bet that the media all but ignores it?

Actually, I would bet against that -- they will run scare pieces about how dangerous this will make America's cities (hah!) and then they will begin repeating the NEW Brady Bunch mantra "reasonable gun control". (It's always been part of their mantra but this is a refocusing on this phrase as this is all they have left to cling to. )

This was part of (a big part of) the reason that Hemlke admitted they expected to lose. By doing so, they will now try to seize on any scrap of support to announce something like, "We expected an activist Court to override an outright ban, but we are very encouraged that the decision supports reasonable gun control."

"reasonable gun control" ==> means anything that propaganda or a bumper sticker can make SOUNDS reasonable

Once you look at the EVIDENCE, there is NO reasonable gun control simply because none of it (none) can be proven to even work.

Not even NICS/Brady background checks are reasonable which aren't enforce on criminals anyway.

[KBCraig]

I read earlier today that the international press is also watching closely for the Heller decision. I guess they're going to prove just what Neanderthals we all are.