What Happened in Heller, Chapter I: The Certiorari Briefing

Discussion in 'National Laws, Bills and Politics' started by jgullock, Oct 26, 2007.

  1. jgullock

    jgullock Active Member

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    I found this today. Good read that gives you an overall look at what's been happening with Parker/Heller. :D

    http://prawfsblawg.blogs.com/prawfsblaw ... t-87626846

     
  2. blind_shake

    blind_shake Well-Known Member

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    Man my eyes are going cross eyed reading that stuff. I get more info from reading the posts going back and forth.
     

  3. Gunstar1

    Gunstar1 Administrator

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    One thing I have not found anyone mention is what will happen if SCOTUS grants the cross petition?

    Does SCOTUS then decide the entire group or just Heller and send the rest back to the lower court saying they have standing?
     
  4. boom boom

    boom boom Guest

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    Thoughtful post and a lengthy response

    So far, the 2nd amendment has not been "incorporated" by the Supreme Court partially because of the scarcity of 2nd Amendment decisions since the 1930's. Since D.C. is regarded by the Constitution as a creature of the federal government, any D.C. gun ban only implicates the original Bill of Rights limits on federal power and not the 14th amendment's limits on state government powers.

    The 13th, 14th, and 15th amendments were directed at remedying several different Supreme Court decisions issued under the late Marshall and Taney courts. The 13th, 14th and 15th Amendments specifically reversed the Supreme Court's Dred Scott and Barron v. Baltimore decisions. These decisions placed regulating slavery beyond the national government's control (Dred Scott), concluded that slaves could never be considered "citizens" under the Constitution (Dred Scott), and decided that the 5th Amendment protections of property only applied to the federal government and not the states . Thus, Congress reversed these decisions by amendment. The 13th eliminated slavery, while the 15th made sure that the freed slaves could vote in state and federal elections. The 14th amendment made citizens (both state and federal) of those born within the boundaries of the U.S. Citizens (and to some degree non-citizens) were given the 5th Amendment's Bill of Rights protections regarding due process protections of life, liberty and property, equal protections under the law , and privileges and immunities of U.S. citizens to protect them from the actions of state legislatures. It also enabled Congress to enforce this clause through lawmaking.

    In the 1870's, the Supreme Court reacted by effectively limiting the reach of the 14th Amendment on state government actions through the so-called Slaughterhouse and Civil Rights cases. However, starting with the protection of property rights and then First Amendment protections, the Supreme Court gradually applied most of the Bill of Rights protections (1-10th Amendments) to actions of state and local governments. Thus, even a city council may not limit the right to free speech which is enforced by both state and federal courts.

    But, the "selective incorporation" doctrine has been that certain rights under the Bill of Rights as understood by the federal courts do not require states to grant the same identical protections. Thus, states do not have to have unanimous guilty verdicts in criminal trials, (6th Amendment) require indictments through grand juries (5th Amendment), or conduct criminal trials with only a twelve person jury (6th Amendment).
     
  5. kkennett

    kkennett New Member

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    They could do a number of things. They could GVR (grant, vacate, & remand) on the cross-petition, which would put the standing issue back in the Circuit, but the other case would be live. They could grant the cross petition and sever the arguments. They could grant the cross petition and have the standing arguments in the first part of the hour. They could grant the cross petition and schedule two hours of argument. Or, perhaps even likely, they could grant the cross-petition and reinstate the Parker group in a brief per curiam opinion or even order. They could even just issue an order, paraphrased of course: Cross-petition granted, Seegars overruled in light of Smith v Jones, US Sup Ct ...
     
  6. Malum Prohibitum

    Malum Prohibitum Moderator Staff Member

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    The decision will be reached on Nov 9 and most likely leaked, with every gun board getting the news about five minutes after the leak.

    The decision will be officially published on Tuesday, Nov 13. Normally it would be published on Monday, but that's a Federal holiday (Veteran's Day).
     
  7. kkennett

    kkennett New Member

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    The court also sometimes issues orders of grant on that Friday afternoon. That certainly is possible in this case as well. Tomorrow is a big day.
     
  8. kkennett

    kkennett New Member

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    As has been mentioned before, it should also be noted that in this particular instance, the Court will have to decide how to word the question(s) upon which it grants cert. That choice of questions could well signal a great deal about the outcome itself.
     
  9. slabertooch

    slabertooch New Member

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    I tried to get on the main page of http://www.scotusblog.com, but it appears to be non functioning, I wonder if they are updating anything.
     
  10. Malum Prohibitum

    Malum Prohibitum Moderator Staff Member

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    They are probably overwhelmed with millions of people accessing it.
     
  11. slabertooch

    slabertooch New Member

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    Reading the Appeals Court Decision right now, and yes I am constantly refreshing SCOTUSblog from time to time, as are many others I imagine. :)
     
  12. Malum Prohibitum

    Malum Prohibitum Moderator Staff Member

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    Well, since you are reading it:
    Notice the Court of Appeals, in dicta, stated that the Second Amendment is not absolute, and thus the right could be regulated, and they offered some examples of the types of things that could be regulated. One of them was "concealed carry." Does this imply that, in Judge Silberman's view, the District of Columbia cannot regulate openly carried firearms without violating the Second Amendment?
     
  13. slabertooch

    slabertooch New Member

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    It would appear to be the case, however the District could place reasonable restrictions on the open carry of firearms:

    1: pistol must be contained in a holster that has a folding cover flap that secures to the holster.
    Rebuttal: a pistol contained in a complete holster, would be concealed, thus violating the law, by attempting to comply with the law.

    2: Pistol must be openly carried on your head.

    3: Pistol must be openly carried mexican style.

    4: etc, etc

    5: Persons carrying firearms openly, must declare to all persons in the immediate area, verbally, that they are carrying a firearm.
     
  14. Malum Prohibitum

    Malum Prohibitum Moderator Staff Member

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    Did they make some "reasonableness" distinction? I recall them simply discussing that some things could be regulated and then some examples. Mostly location and concealed carry, IIRC.
     
  15. slabertooch

    slabertooch New Member

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    And
     
  16. Brian618

    Brian618 New Member

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    We won't know if they granted cert until Tuesday :(

     
  17. slabertooch

    slabertooch New Member

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    someone will leak it, specially with a case this big.
     
  18. Malum Prohibitum

    Malum Prohibitum Moderator Staff Member

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    I bet they don't.
     
  19. jrm

    jrm Sledgehammer

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    I can't keep up. :lol: