While I was taking a break over the week of the 4th of July holiday, a ruling was handed down by a federal court in California enjoining the state from carrying out its confiscation of standard capacity magazines. Dave Kopel’s article about the case is the best I’ve seen, so read the whole thing.
The court ruled that the Second Amendment was implicated in the magazine ban and such a ban failed intermediate scrutiny. To me this should trigger strict scrutiny, but intermediate scrutiny, prior to Second Amendment law, was still a pretty high standards if Courts actually applied it. The problem with what the lower courts have done is they’ve taken to just reclassifying rational basis review as some higher level of scrutiny, and so far SCOTUS has allowed them to get away with it.
The court here also ruled that the taking was an issue, that essentially the state can’t confiscate property without fair compensation.
It will take courts willing to buck precedent in the future if the makeup of SCOTUS improves, so that we can move cases forward. There are judges out there that think what the lower courts have done with Second Amendment law is wrong and are willing to help us address that. It should be noted that Judge Benitez, who wrote the opinion in this case, was appointed by George W. Bush. It is possible for us to improve our lot even with very imperfect presidents in the White House.
20 thoughts on “Bucking Precedent”
When New Jersey and other states enacted their assault weapons bans, the courts were a lot less friendly and let some of my property become worthless (or at least unusable in my home state).
This ruling gives me hope that when NJ elects an ultra liberal Democrat this November and he starts signing this kind of legislation – the state will at last get the federal court slap-down they’ve needed for so long.
I am betting that the 9th will overturn and the Supremes will do nothing again. Until you get Justices with backbone or judges with a respect for the Constitution, the 2nd A is dead in CA.
We need at least another one non-conservative seat to be flipped in SCOTUS. Looks like replacing Kennedy won’t mean much. We *have* to replace either Breyer or Ginsburg. Preferably both.
Clearly the Leftists on the bench know that they’ll lose if a case gets through; denying Cert. is all they have. We need to destroy that firewall, and one seat may do it, but two would be preferable.
I think JC is right, in that some of the SCOTUS justices understand that if they get a case about this kind of stuff, they really will have to twist a lot if they want to come up with a valid reason to side with the anti gun grabbers. That is why they are so dead set against hearing any 2nd amendment cases at all. But be patient, Trump will get another chance to appoint, and the stupid Democrats did us a huge favor by stepping into a pile of dogshit when they dug in on the Gorsuch nomination. They forced the nuclear option, and the Republicans called them on it. Gorsuch was a shoe in, no matter what the Dems did, but now Trump can appoint a much further right wing justice, and the Democrats can only blame themselves for going to the mat the first time. They might have had a chance if they had waited for a lesser candidate, but Gorsuch is without peer, when it comes to faithfulness to the letter of the law. And the Federal judges that Trump will appoint are also very important, as we have seen,time and again.
“They forced the nuclear option, and the Republicans called them on it.”
Thank Heaven we’ve arrived at the end of history, and only Republicans will benefit from that nuclear option from now on!
I keep getting flashbacks to B’rer Rabbit pleading “Jest don’ t’ro me in dat briar patch. . .”
Oh, I am not so naive as to think that this is only for the Republicans. However, the Republicans have the chance to add one or two more SCOTUS justices, before Trump is done, perhaps a third. If this is the case, it will alter the entire landscape of the country for at least the next generation. So yes, the Democrats fucked up on this one. If they had been patient, they might have had more public support against the Republicans invoking the 51 vote simple majority.
“Republicans have the chance to add one or two more SCOTUS justices, before Trump is done, perhaps a third.”
You are assuming the Republicans have until at least January 2021. Please consider the possibility they could lose their majority in the Senate as early as January 2019. They have eight Senate seats to defend. Yes, the Dems have something like 23 to defend, but we are not in ordinary times. The Dems could then do a turnabout-is-fair-play number, and leave any SCOTUS vacancies stand unfilled until after the next election in 2020.
My point always is: Screwing with our checks and balances and conventions, including eliminating the requirements for super-majorities, is always short-sighted. Whoever your opponent is, will someday have the opportunity to turn any weapon you create against you. There was almost always a high degree of wisdom in creating such safeguards in the first place. Once they’re gone, all bets are off in the great sweep of history. And in the great sweep of history, it now appears all factions will find it somewhere between convenient and mandatory to act in shortsighted ways.
Analogies to the Roman Empire are too trite to engage in.
Senate rules were not originally part of the checks and balances that the founders envisioned. They foresaw a very limited central government, which unfortunately, we will never again have. But I do concur with your point that the midterm elections are indeed a deal changer, save for the fact that right now the Democrats are in even worse disarray than the Republicans are. In many ways that bodes well for the county, because when Washington does the least, they govern the best. But these are interesting times we are living in, that is for certain. I wonder what the next presidential election is going to hold, as far as entertainment value.
“Senate rules were not originally part of the checks and balances that the founders envisioned.”
True, but an even more powerful argument for what I’m saying; the Senate rules evolved to create a system for which there was a broad consensus that it worked, albeit not to everyone’s satisfaction all the time. Burning them down for near-term advantage is a symptom of a collapsing system. I’m not enough of a historian to cite parallels during the pre-Civil-War era, but I suspect there were many.
If you want to cite other pivotal events like the ratification of the 17th Amendment, be my guest, but they still were all evolutionary, not revolutionary.
Who’s responsible for tearing down the rules? I say the Dems, by forcing the Republicans over a well qualified nominee. Partisan politics is of course not new, but I don’t know if I have seen this much vitriol ever. And I am not a scholar of any kind, just an interested observer.
“Whoâ€™s responsible for tearing down the rules?”
“Who started it” is irrelevant; the important point is that no one has resisted it.
I think the political climate is largely responsible for the tightening of the filibuster. It was only expanded in the 1970s. Prior to that lawmakers had to hold the floor.
I fully expect the filibuster to go back to the pre-1970s institution. Neither party will likely achieve supermajority status for the foreseeable future, and it will be impossible to get anything done in this political climate.
Of course, I’m kind of OK with Congress not getting things done, but we do need federal judges and budgets.
Sebastian, I apologize for monopolizing so much of your post. This is apparently a hot issue for many. I think that you are right that the filibuster will make a come back to what it should have always been. Both parties will come to their senses and realize that the status quo is not workable.
This. We need to return to the filibuster system that existed prior to about 1970: By making it possible for more than one bill to be pending on the floor at any given time, it has become so easy to maintain a “filibuster” that virtually EVERYTHING is filibustered.
If a senator, or group thereof, want to filibuster a bill, the topic should not be set aside for other business until either the floor is relinquished, or the senate votes to invoke cloture.
Moving back to a real filibuster system would make it significantly more difficult for a minority party to use the filibuster as a tool to block all senate business, as the democrats appear to be determined to do.
I agree, HSR47. And they should have to actually stand up and speak the entire time. Decorum in the house and senate are part of the reason for some of the rules, but many of the rules are ignored until it is convenient for the team in power to invoke them.
Perhaps you should have given your advice to Harry Reid. He might have been more inclined to listen to you.
“Perhaps you should have given your advice to Harry Reid.”
The Right never listened to authentic libertarians; why would you expect The Left to listen?
Both are interested in factions to the extent they will be useful idiots for bringing them to power.
You have got to be the only “authentic libertarian” who thinks Soros is a credible source.
I don’t remember Soros being a “source” of anything discussed recently. And of what we did discuss, you failed to demonstrate anything that was substantially wrong.
Care to try again? Give us your alternative statistics!
If Soros says the sky is blue, I am not obligated to change my definition of what is blue. And not doing so, is not an indicator of support for Soros.
But what I will give you is that neither camp can be relied upon to identify the faults and weaknesses in their own camp. But that doesn’t mean the faults they identify in their opponents’ camp are always baseless; it’s just that their opponents don’t want to hear it.
More to the point, to misquote Shakespeare’s Mercutio, “a pox on both your houses.”
Go back and read. I provided many instances of misleading information from your Soros-funded source. To which you didn’t respond.
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