A Note to the Court About Gun Rights: "From My Col

[EmptyTimCup]

A Note to the Court About Gun Rights: "From My Cold Dead Hands!"

[Tilted]

At first I was critical of Justice Sotomayor's ruling in that case (i.e. the one referenced in that video, where her 3-judge circuit court panel ruled that the Second Amendment did not apply to state or local laws). However, after I went back and read some portions of the Heller decision, I realized that she (they) was probably right. She was just doing what she was supposed to do as a circuit court judge - follow Supreme Court precedents, regardless of whether or not they seemed right.

The reality is that there are very old Supreme Court rulings that were clearly on point - the Second Amendment doesn't apply to state and local governments. As antiquated as those rulings may seem, there aren't any more current contrary rulings that are as clearly on point as they are. Heller could be construed to mean that the Supreme Court is ready to reverse those rulings, but it is not directly on point in this regard.

Point being, I don't think it's fair to paint Justice Sotomayor as anti-Second Amendment rights on the basis of the referenced ruling. Regardless of her views on the issue, she was probably bound by precedent - at the very least, her interpretation and ruling was reasonable.

That said, she may well be anti-Second Amendment rights.

[EmptyTimCup]

Thanks Thoughtful and Inciteful as always ....

[Novus Collectus]

Originally Posted by Tilted

At first I was critical of Justice Sotomayor's ruling in that case (i.e. the one referenced in that video, where her 3-judge circuit court panel ruled that the Second Amendment did not apply to state or local laws). However, after I went back and read some portions of the Heller decision, I realized that she (they) was probably right. She was just doing what she was supposed to do as a circuit court judge - follow Supreme Court precedents, regardless of whether or not they seemed right.

The reality is that there are very old Supreme Court rulings that were clearly on point - the Second Amendment doesn't apply to state and local governments. As antiquated as those rulings may seem, there aren't any more current contrary rulings that are as clearly on point as they are. Heller could be construed to mean that the Supreme Court is ready to reverse those rulings, but it is not directly on point in this regard.

Point being, I don't think it's fair to paint Justice Sotomayor as anti-Second Amendment rights on the basis of the referenced ruling. Regardless of her views on the issue, she was probably bound by precedent - at the very least, her interpretation and ruling was reasonable.

That said, she may well be anti-Second Amendment rights.

She totally pick and chose what she wanted to use from the Heller decision to get to her conclusion. There was more than enough in the Heller decision to allow her and the appeals court to rule the 2A appled to the states. Note, the question answered by the court was one never answered by the SC before and was specifically about the RKBA when NOT in a state militia. SHe did NOT follow the Heller decision precedent.

The part that does and does not apply to state and local laws by SC precedent is the "collective only" or "militia only" interpreteation, but this was an incomplete interpretation because the fact of the 2A being asked about or addressed whern dealing with "the people" and if the 2A appllies to individual rights as well as the collective or aside from the collective "militia" right. The Heller decision was plain and simple that there IS an individual right outside of a state militia ro keep and bear arms under the Second Amendment and she totally ignored that decision which reveals she has a predertimined agenda in regards to the Second Amendment.

However, what she erroneoulsy thinks is likely moot because Kennedy is likely going to side with the majority on state incorporation when dealing with the 2A.

[Tilted]

Originally Posted by Novus Collectus

She totally pick and chose what she wanted to use from the Heller decision to get to her conclusion. There was more than enough in the Heller decision to allow her and the appeals court to rule the 2A appled to the states. Note, the question answered by the court was one never answered by the SC before and was specifically about the RKBA when NOT in a state militia. SHe did NOT follow the Heller decision precedent.

The part that does and does not apply to state and local laws by SC precedent is the "collective only" or "militia only" interpreteation, but this was an incomplete interpretation because the fact of the 2A being asked about or addressed whern dealing with "the people" and if the 2A appllies to individual rights as well as the collective or aside from the collective "militia" right. The Heller decision was plain and simple that there IS an individual right outside of a state militia ro keep and bear arms under the Second Amendment and she totally ignored that decision which reveals she has a predertimined agenda in regards to the Second Amendment.

However, what she erroneoulsy thinks is likely moot because Kennedy is likely going to side with the majority on state incorporation when dealing with the 2A.

Heller is not technically on point with regard to incorporation. The question there was individual right versus collective right. The question of incorporation was not raised by that case, a reality which Justice Scalia specifically acknowledged in a footnote to his majority opinion.

While discussing why U.S. v Cruikshank had not foreclosed the current Court's conclusions (*), he added this footnote:

With respect to Cruikshank's continuing validity on incorporation, a question not presented by this case, we note that Cruikshank also said that the First Amendment did not apply against the States and did not engage in the sort of Fourteenth Amendment inquiry required by our later cases. Our later decisions in Presser v. Illinois, 116 U.#S. 252, 26 (1886) and Miller v. Texas, 153 U.#S. 535, 538 (1894), reaffirmed that the Second Amendment applies only to the Federal Government.

Given that this was Justice Scalia, I think this was a hint - okay, now someone should bring us a case on the question of incorporation. Essentially, he is pointing out that, while the finding in Cruikshank that the First Amendment did not apply against states has been subsequently reversed through the incorporation doctrine, the similar finding that the Second Amendment did not, has not been reversed.

Regardless of whether or not it is correct to read as much into that footnote, it makes it clear that the Court did not believe that it was addressing the question of incorporation, for the Second Amendment, in Heller. Though one might infer where the Court would go on this issue in the future, the reality remains that, technically speaking, it hasn't gone there yet. I think a lower court's deference to pre-incorporation precedents is probably proper. At the very least, it is entirely reasonable.

In hindsight, I think the high Court specifically chose Heller, with its specific conditions, because it wanted to tackle the questions of individual vs collective right and incorporated vs un-incorportated separately. Both questions are of fundamental importance.



(*) It is clear that a finding (in Heller) that the Second Amendment was incorporated against the states and local governments would have represented a reversal of Cruikshank (and Presser v Illinois and Miller v Texas). However, Justice Scalia was arguing that nothing in the Heller findings had been foreclosed by Cruikshank (et al). So, it is clear that he and the rest of the majority did not believe that they were actually incorporating the Second Amendment. Had they been doing so, Justice Scalia would have explained why it was appropriate to overrule Cruikshank (et al), not arguing that they had not done so.

[Novus Collectus]

Originally Posted by Tilted

Heller is not technically on point with regard to incorporation. The question there was individual right versus collective right. The question of incorporation was not raised by that case, a reality which Justice Scalia specifically acknowledged in a footnote to his majority opinion.

While discussing why U.S. v Cruikshank had not foreclosed the current Court's conclusions (*), he added this footnote:


Given that this was Justice Scalia, I think this was a hint - okay, now someone should bring us a case on the question of incorporation. Essentially, he is pointing out that, while the finding in Cruikshank that the First Amendment did not apply against states has been subsequently reversed through the incorporation doctrine, the similar finding that the Second Amendment did not, has not been reversed.

Regardless of whether or not it is correct to read as much into that footnote, it makes it clear that the Court did not believe that it was addressing the question of incorporation, for the Second Amendment, in Heller. Though one might infer where the Court would go on this issue in the future, the reality remains that, technically speaking, it hasn't gone there yet. I think a lower court's deference to pre-incorporation precedents is probably proper. At the very least, it is entirely reasonable.

In hindsight, I think the high Court specifically chose Heller, with its specific conditions, because it wanted to tackle the questions of individual vs collective right and incorporated vs un-incorportated separately. Both questions are of fundamental importance.



(*) It is clear that a finding (in Heller) that the Second Amendment was incorporated against the states and local governments would have represented a reversal of Cruikshank (and Presser v Illinois and Miller v Texas). However, Justice Scalia was arguing that nothing in the Heller findings had been foreclosed by Cruikshank (et al). So, it is clear that he and the rest of the majority did not believe that they were actually incorporating the Second Amendment. Had they been doing so, Justice Scalia would have explained why it was appropriate to overrule Cruikshank (et al), not arguing that they had not done so.

This is what gets me, people like her are taking Scalia's footnotes out of context when he references Cruishank. Cruishank (and Presser) was ablout the collective right only question and about the militia and that is what did not apply to the states, but Heller WAS about the individual right question OUTSIDE the militia. So yes, when talking about the right in the militia only, then yes Heller did not alter Cruishank's precedent, but that is because Cruishank was about another subject (the militia only).
Scallia tied the individual right with the individual rights in the First Amendment and those rights are incorporated to the states, but besides that, by answering the question of if there is an individual right outside the militia all the previous SC cases about the 2A no longer restrict incorporation and by default the appeals court could have affirmed incorporation at this point which she refused to do not because she couldn't, but because she had an agenda.

[Pushrod]

Originally Posted by Novus Collectus

This is what gets me, people like her are taking Scalia's footnotes out of context when he references Cruishank. Cruishank (and Presser) was ablout the collective right only question and about the militia and that is what did not apply to the states, but Heller WAS about the individual right question OUTSIDE the militia. So yes, when talking about the right in the militia only, then yes Heller did not alter Cruishank's precedent, but that is because Cruishank was about another subject (the militia only).
Scallia tied the individual right with the individual rights in the First Amendment and those rights are incorporated to the states, but besides that, by answering the question of if there is an individual right outside the militia all the previous SC cases about the 2A no longer restrict incorporation and by default the appeals court could have affirmed incorporation at this point which she refused to do not because she couldn't, but because she had an agenda.

Regardless Novus, it is a good thing for us that she ruled the way she did. This allowed a disparity in rulings in the country which allowed for the Supreme Court to grant certiorari and which will likely get us an affrimative SC ruling on incorporation of the 2nd Amendment.

If there had been two lower federal court rulings for incorporation, yes, precident would have been set, but it would not be as strong as a SC ruling in favor of incorporation.

[Tilted]

Originally Posted by Novus Collectus

This is what gets me, people like her are taking Scalia's footnotes out of context when he references Cruishank. Cruishank (and Presser) was ablout the collective right only question and about the militia and that is what did not apply to the states, but Heller WAS about the individual right question OUTSIDE the militia. So yes, when talking about the right in the militia only, then yes Heller did not alter Cruishank's precedent, but that is because Cruishank was about another subject (the militia only).
Scallia tied the individual right with the individual rights in the First Amendment and those rights are incorporated to the states, but besides that, by answering the question of if there is an individual right outside the militia all the previous SC cases about the 2A no longer restrict incorporation and by default the appeals court could have affirmed incorporation at this point which she refused to do not because she couldn't, but because she had an agenda.

They (i.e. Justice Sotomayor's panel) could have interpreted it that way, as I'm sure you are aware a Ninth Circuit panel did (i.e. as being incorporated). However, their interpretation to the contrary was completely reasonable, and probably more appropriate - that is to say, less activist. That's not because the Second Amendment shouldn't be incorporated against the states, but because it is not the role of a Circuit Court to overrule Supreme Court precedents - that is a role reserved for the Supreme Court. Her panel could have chosen to show deference to actual words of the Supreme Court, which may have been old but were unquestionably clear, or it could have chosen to read words (which would have overruled the previous words of the Court) that didn't exist into a lengthy opinion written by Justice Scalia (in which, by the way, he went to some lengths to make it clear that the Court was not overruling those previous Supreme Court decisions). Her panel chose the former. I am as ideologically committed to individual's rights to own and carry arms as any person I have ever discussed the issue with. That said, if I were in their position (on a Circuit Court as opposed to the Supreme Court), intellectual honesty would have compelled me to choose the former as well. She may well have an agenda, but her decision in that particular case doesn't necessarily demonstrate it.

Regardless of whether or not Cruishank was about a collective right, the finding in Cruikshank with regard to Second Amendment applicability to non-federal laws is unequivocal. It does not condition the finding that the amendment does not apply to non-federal laws on the context being that it is referring to a collective right. The same can be said of findings in Presser and Miller.

Do you agree with the assertion that, in 1895, the Second Amendment (without regard to whether it conferred an individual right, a collective right, or both, and without regard to which of those contexts it is being discussed within) had no applicability to non-federal laws?

If so, do you know of any Supreme Court ruling between 1895 and the Heller decision which reversed that legal condition (i.e. that the Second Amendment had no applicability to non-federal laws)?

If no, then one of 2 things has to be true:

(1) The Heller decision did not alter that legal condition.

(2) The Heller decision did alter that legal condition, and in so doing it necessarily reversed the findings of those previous Supreme Court decisions, which had theretofore not been reversed.

Considering the fact that the majority opinion goes to great lengths to make it clear that none of its conclusions (in Heller) were foreclosed by previous precedents, the second option is very clearly not true. The majority in Heller did not believe that it was overruling Cruikshank, or Presser, or Miller, with regard to whether or not the Second Amendment applied to non-federal laws. If they did think they were, then they sure had a funny way of expressing that. Not only did they argue that they had not overuled them, but if they had wanted to reverse those previous findings - it would have been very easy (and kinda important) to say that is what they were doing. In a very comprehensive opinion, not once did they say they were. Instead, what they did was choose a very particular case, one in which they wouldn't have to reverse those earlier findings in order to find that the Second Amendment conferred an individual right - and then they specifically noted that the question of reversing those earlier findings was not before them in the present case. Again, that's a rather odd way of pronouncing that you are reversing those earlier findings.

To the notion that they didn't have to reverse those findings, because those earlier findings only meant that the Second Amendment didn't apply to states to the extent that it applied to a collective right - that is to say, to the extent that the Second Amendment conferred an individual right, it had never been found to only apply to federal laws - that's just not correct. The language in the earlier cases was clear. It said the Second Amendment only applied to federal laws - it didn't condition that on anything to do with the context in which the Second Amendment was being applied. It wasn't conditioned on whether the Second Amendment conferred an individual right or a collective right. If the Second Amendment had later been interpreted to mean that people were allowed to keep their own limbs (arms), that interpretation still would not have applied to state laws unless and until the Supreme Court said it did.

Regardless of why Justice Scalia noted the fact that the question of incorporation was not raised by the Heller case - he did note it (in an opinion which the majority concurred with) - which means that it was the position of the Court that the question was not raised by the case. Given that it wasn't a question raised by the case, and given that they didn't state that they were answering it anyway (i.e. even though doing so wasn't necessary to resolve the case), how can someone conclude that they answered the question one way or another? These Justices are not stupid - they know full well what they are saying. If they had wanted to answer the question (of whether or not the Second Amendment applied to non-federal laws), they would have - and they would have been clear about it. Heaven knows that Justice Scalia, of all people, would have been clear about that, had the Court been inclined to go so far as to make such a finding in that case, as he is not wanting for a bold tongue or pen. This is such a fundamental legal question (as was the individual right vs collective right question), that there is no chance that they would have been vague about it or hidden a supposed answer to it from plain view - no chance. There would have been a cite-able passage that one could point to and say - see, the Second Amendment has been incorporated against the states now. Such an answer was not necessary in this case (and really wouldn't even have been appropriate), as this case didn't ask the question. Accordingly, the Court's not having answered the question means that their previous answers to the question still stand - for now.

Hopefully, sometime next year we will get the 'right' answer. If we do, then the real fun can begin - though I doubt it will be as fruitful as many would like it to be.

[Tilted]

Originally Posted by Pushrod

Regardless Novus, it is a good thing for us that she ruled the way she did. This allowed a disparity in rulings in the country which allowed for the Supreme Court to grant certiorari and which will likely get us an affrimative SC ruling on incorporation of the 2nd Amendment.

If there had been two lower federal court rulings for incorporation, yes, precident would have been set, but it would not be as strong as a SC ruling in favor of incorporation.

We'd still have the 7th Circuit ruling - which is actually the one that will be reviewed by the Supreme Court. I suspect they would have preferred not to review the 2nd Circuit ruling (Justice Sotomayor's), as she may have seen fit to recuse herself had they done so. (There are other reasons as well.)

[Novus Collectus]

Originally Posted by Tilted

...

I believe you are missing hte point, Presser and Cruishank had a specific point to address about the 2A and were limited to the questions before them which were about the collective right ONLY.
Since Heller was about an entirely different aspect about the 2A, the individual right outside of the militia, it set a new criteria by it having addressed a previously unaddressed aspect of the 2A, so therefore Cruishand and Presser are basically moot for this discussion and not a part of the context when discussing incorporation and the individual right interpretation of the 2A and therfore can be ignored.
Preser and Cruishank are not overturned nor reveresed by Heller, they are just about a totally different subject and just do not apply to the individual right now recognized in Heller, so therefore their non-incorporation is about a different subject and the lack of incorporation being addressed for the individual right by SC precedence should have given the freedom of the Sotomayer court to decide what they wanted on state incorporation for the newly recognized individual right outside the state controlled militia.

From what I understand of this, there are three basic interpretatiosn prior to Heller about what the 2A meant. First is the collective right only interpretation, second is the collective/individual right interpretation and the third is the individual right only interpretation.
The last is where the "people" is the operative word alone and the militia is not an opertative word and is just used as an example to reference as to why the individual right exist, or the interpretationit is a reference as to another reason why the individual right exists.
The second is where the miltia and the people are both provided the right and this does seem to be what the Heller majority seems to have adopted for the most part. They are two seperate parts that apply differently where the collective is regulated by the states and the individual (the people's) right is also recognized by the 2A, however the SC has basically never addressed the individual right aspect before Heller and now that the appeals courts were offered this new option to decide for deciding on incorporation they should have been able to address incorporation without prior precedent restrictions because this was new territory using this never addressed interpretation before. The Sotomayer court either chickened out and weasled out of goign this route, or they had an agenda and just found weak excuses by ignoring the original question posed before the Heler court and taking unrelated footnotes totally out of context.
The First is the interpretation that the 2A ONLY applied to the collective right ignoring the "people" wording. This was never adopted by a previous SC and in Cruishank and Presser as I understand it was never brought up by the defense and therefore never addressed. So therefore the collective only interpretation has little basis to be used and sure as hell cannot be used as an excuse to dismiss the individual right interpretation for incorporation.

ALl in all, if the individual right outside of the militia was never un-incorporated by ANY Supreme Court opinion AND it was now recognized as an existing right that was never addresed for or against incorporation by the SC, then there is no basis for Sotamyer to try and argue any court precedent addressing only the collective right part kept her from making a new opinion which no precendet restricted her on.