Back in the Lawsuit Business

Cases are starting to be filed and hopefully moved again, including this one in Massachusetts. I don’t want to say I’m wary, but I am. Replacing Scalia with someone solid on the Second Amendment doesn’t get us anywhere; it prevents us from sliding backwards. Trump’s leading candidate for replacing Scalia is Neil Gorsuch from the 10th Circuit Court of Appeals.

We did litigate the Colorado magazine limitations in the 10th Circuit. The District Court upheld the ban, but that ruling was thrown out by the Circuit Court because they argued none of the plaintiffs had standing to sue. Judge Gorsuch didn’t have anything to do with that case, so the best we can do is the quote from SCOTUSBlog link above:

Together §§ 922(g) and 924(a)(2) operate to criminalize the possession of any kind of gun. But gun possession is often lawful and sometimes even protected as a matter of constitutional right. The only statutory element separating innocent (even constitutionally protected) gun possession from criminal conduct in §§ 922(g) and 924(a) is a prior felony conviction. So the presumption that the government must prove mens rea here applies with full force.

I think more will have to come out in the confirmation hearing, but his position on that case makes him promising. We will have to replace one of the liberals to move forward. Otherwise I’m afraid we’re just going to create more bad precedent in the circuit courts that the Supreme Court will leave in place when they refuse to hear the case.

5 Responses to “Back in the Lawsuit Business”

  1. Lance Lot Link says:

    Remember that it will take years to get to the SCOTUS.

    In addition to Scalia’s empty seat, there are three justices who are getting up there, both Ginsburg and Breyer are on the left wing, and Kennedy is the swing vote.

    Scalia’s replacement will give a squishy 5-4 majority, that could swing to 4-5. But replacing 1 to 3 of the elderly justices means it could be a solid 5-4, or even 6-3 or 7-2 majority by the time any case reaches the SCOTUS.

    And of course Justice Kagan just might not be as left on the 2A either. We have to assume she will be, but there’s a glimmer of hope here.

  2. Patrick says:

    Not sure if the Gorsuch article is trial-balloon or last-minute lobbying. At various times various articles have declared some judge or another “the one” but only based on guesswork related to who knows who, who was pushing who-else, and whether Mr. X is going to be a cabinet secretary who might also push Judge Y…

    I don’t think anyone knows who isn’t in the Oval Office on a regular basis, and I wouldn’t be shocked to find that even the prime occupant is still working it all out.

    However, Trump is sitting with the top four Senators (including Feinstein/Schumer) today to talk about the whole affair. I hope he tells them they have Harry Reid to thank for what will come if Trump’s pick is denied.

    Trump does say he’ll likely have a name next week, so there is that.

  3. There is a very real chance that Ginsburg will be replaced in the next four years as could Thomas be replaced since he’s hinted at retirement. The replacement of Ginsburg would be massive for years to come. Breyer and Kennedy are also possible replacements before 2020.

    I’m with Lance on Kagan, she could surprise us all. She turned out to be quite the trap shooting buddy of Scalia.

  4. Terraformer says:

    As someone with more than a passing knowledge of this new case in MA, I can tell you that one way or another we were going to get bad precedent on the issues here in MA. Basically, we have 250K+ gun owners who were made felons overnight and the cops were starting to see that if they couldn’t make criminal charges stick on someone, they now had this new “interpretation” at their disposal. It was either a gang banger or law abiding citizens taking the case. Which would you have wanted?

    I can tell you more than one of the orgs involved in that case were more than happy to leave the status quo in place for some time prior to July 20th, 2016.

  5. Patrick Henry, the 2nd says:

    I’m hopeful the biggest thing to come out of the Trump administration is better judges. His three potential SCOTUS picks look great. And he could fill many open seats around the country in circuit courts with good ones. Getting to SCOTUS might not be required if we have good judges.

    I still think the best move is legislatively, but a three pronged approach is still worthwhile.


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