Below is my column on Fox.com on the ruling in United States v. Rahimi and its implications for the Hunter Biden appeal. The hope for a final pass to the Court ended with an 8-1 decision against the challenge to the federal gun law.
Here is the column:
On Friday, Hunter Biden may have lost the greatest Hail Mary pass in history. When Cowboys quarterback Roger Staubach threw his famous winning touchdown pass to wide receiver Drew Pearson in 1975, he later explained “I closed my eyes and said a Hail Mary.” For Hunter, the pass to the Supreme Court roughly 50 years later just missed in equally spectacular fashion.
Hunter and his legal team were counting on the Court striking down the federal gun law at issue in the case of United States v. Rahimi. Hunter was just convicted by a unanimous jury in Delaware for false statements on a gun form and possession of a firearm as a drug addict. He has been arguing against the position of his father’s administration and adopting the same argument of the National Rifle Association (NRA) in challenging the constitutionality of the law.
The Supreme Court just voted 8-1 that the law is indeed constitutional and that a court can temporarily deprive citizens of the right to possess weapons for the protection of others. The sole dissenter was Justice Clarence Thomas.
The case involved Zackey Rahimi, a drug dealer who was under a restraining order after a 2019 argument with his girlfriend (called C.M. in the opinion) who had a child with him. Rahimi allegedly knocked C.M. down, dragged her to a car, and then (as C.M. fled) shot at either C.M. or a bystander. He was also accused of threatening to shoot her if she went to the cops.
Hunter Biden has been arguing against the position of his father’s administration and adopting the same argument of the National Rifle Association (NRA) in challenging the constitutionality of the law. (AP Photo/Matt Slocum)
The Texas trial court found that Rahimi was not only engaged in “family violence” but that additional violence was “likely to occur again in the future.” Under the protective order, Rahimi’s gun license was suspended for two years and he was barred from contacting C.M. for that period. Under the order, his gun rights would be suspended for either one or two years after his release date, depending on any imprisonment.
However, Rahimi was not done yet. He later violated the order by approaching C. M. and communicated with her by social media. Months later, Rahimi threatened a different woman with a gun and was charged with aggravated assault with a deadly weapon. Finally, a police officer later identified him as the suspect in a spate of at least five additional shootings.
That was not exactly a poster child for lawful gun owners and the Court failed to see the suspension of his gun rights as an unconstitutional deprivation. Since the Court first recognized the Second Amendment as an individual right in District of Columbia v. Heller, 554 U.S. 570 (2008), it has stated that this is not an absolute right. There are no truly absolute rights in the Constitution.
The Court found the federal statutes imposing a reasonable temporary limitation on this right. Chief Justice John G. Roberts Jr. wrote that “an individual found by a court to pose a credible threat to the physical safety of another may be temporarily disarmed consistent with the Second Amendment.”
The key is the temporary qualification. The Court is only saying that a court can make reasonable decisions based on such a record to protect others from allegedly violent defendants.
While the majority found that such temporary limits were consistent with historical practices, Justice Thomas, the author of the Bruen decision that reinforced the protections under the Second Amendment after Heller, objected that the Court could not cite “a single historical regulation” to justify the federal law. Bruen had emphasized such historical practices in interpreting the protections under the Second Amendment.
That brings us back to Hunter. While the result in Washington was not as bad as the unanimous decision in Delaware, it may well have sealed his fate on appeal. U.S. District Judge Maryellen Noreika did not leave him much for appeal in overseeing a fair and textbook trial.
The Biden legal team had been counting on Hail Mary passes since a Special Counsel was appointed. It almost worked. Special Counsel David Weiss seemed to work hard to avoid any felony charges against the president’s son.
The Justice Department not only allowed the statute of limitations to run on major crimes, but sought to finalize an obscene plea agreement with no jail time for Hunter. In the hearing to accept the plea, Judge Noreika decided to ask a couple of cursory questions of the prosecutor, particularly about a sweeping immunity provision covering any and all crimes committed by Hunter. The prosecutor admitted that he had never seen an agreement this generous for a defendant.
The plea fell apart and the Biden team seemed unwilling to accept anything but a single throw victory. They told the prosecutor in court “just rip it up.”
The Biden legal team then blundered in taking the case to trial with a jury nullification strategy. Some of us wrote that Hunter needed to plead guilty to avoid jail time. Instead, they hoped that a Delaware jury in Bidentown could never convict a Biden. They were wrong.
That left the last pass to the Supreme Court, which just seemed to land in the stadium seats. In reality, it was never a strong throw. After all, Hunter was convicted for lying on gun forms, something that the Court was never likely to excuse.
What is now left for Hunter are sentencing guidelines that strongly support jail time and a judge who has imposed such jail time in past cases.
The other group of people that may be even more upset with this ruling may be many in the media and Congress. Once again, the Court has shattered the false narrative that this is a hopelessly divided Court along ideological lines. This month the Court has continued to rule unanimously or nearly unanimously, including in cases like Rahimi in controversial constitutional claims.
Instead, the Court rendered a reasonable, balanced accommodation for public safety under the Second Amendment. It is not clear who is more disappointed: Hunter or the Court critics.
Jonathan Turley is a Fox News Media contributor and the Shapiro Professor of Public Interest Law at George Washington University. He is the author of “The Indispensable Right: Free Speech in an Age of Rage” (Simon & Schuster, June 18, 2024).
Professor Turley wrote: Instead, the Court rendered a reasonable, balanced accommodation for public safety under the Second Amendment.
I recognize that the Court took care to narrowly focus on a TEMPORARY suspension of Second Amendment rights. But many Americans, like Thomas, have a large constitutional issue with depriving people of a right automatically because they fit into a box – no individual judicial determination required prior to suspending or removing that right.
Professor Turley, deliberately or not, uses the mantra and excuse behind every single gun law, ban, and prohibition put forward by his Democrat party (and by the three complaining concurring Democrat justices in this decision who moan Bruen will block “common-sense gun laws”): it’s always reasonable and balanced in the interests of public safety and does not violate the “shall not be infringed” sections of the Second Amendment.
Would it be fair to suspect Turley doesn’t much like guns, that he would like to see more and stricter gun laws as long as they don’t grossly violate the Second Amendment, and isn’t too much troubled by that pesky “shall not be infringed” part of the Second Amendment? He is a Democrat and he’s apparently been just fine with their virulent anti-gun agenda for decades now.
Now what if a future Congress imposed similar temporary and lifelong prohibitions of First Amendment free speech rights in the interests of public safety? Again, doing that as is done with the Second Amendment, on the base of specified groups of people. For example, anyone who used the internet to commit fraud, swatting an individual, convicted of luring a minor, child pornography – and of course dishonorable discharges and mental illness.
Would Professor Turley also say in that case “this is a reasonable, balanced accommodation for public safety under the First Amendment”?
I think not. Because I am strongly suspicious it would then be a case of whose ox is being gored by prohibitions on individuals exercise of their rights.
OAD, Josh Blackman in Volokh (part of Reason.com) agrees with me that Rahimi eliminates Bruen’s historical analogue test. He also is puzzled by Gorsuch’s concurrence.
Albeit I only read so far the syllabus – I don’t see how hunter is foreclosed. If that case didn’t argue the “forms” ambiguity. The syllabus is clear – once a court found – (like rhami) vs a legislative category of ills. I read the syllabus that once a court found – vs once a person self chills bc he may or may not be in a legislative category without a court pre finding before a man fills out the form. Such a holding is actually consistent with the form too – that is you can be bat shit crazy – even volunteered for the shrink wrap – but so long as no “court” has committed you – the form itself let’s you say whatever and the law let’s you buy and possess a gun. Analog you can beat your wife threaten your wife et al … but until subject to a court found restraining order ( however they are found) you get a gun. Yet on hunters case – where was the court ruling ? That he was a user or addicted to drugs – legislative category? Doesn’t matter Navy drummed him out decade before – t he ambiguity is enough and the rule of leniency goes to the citizen. Here hunter. See we have a very under inclusive law – that the form on its face does not embrace all the wife beaters nor all the drug users nor all the alleged crazy people- it now after rhami only embraces people who the “courts” have deemed such. How they don’t get their evidence by using the same stats legislatures used – idk. But maybe by a court decision 1st there is some varnish of due process. Hunter and the “ilk” targeted don’t even get that varnish. At least in rhami a judge stood between a “legislative category” and the actual person targeted. Hunter never had that. That distinguishes him in 922.
The statute – 18US1001 which is constantly and improperly refred to as lying to an FBI agent, is ACTUALLY a law that prohibits lying to the government on a FORM and dates back to the late 19th century. Its interpretation has subsequently been (improperly) extended to include lying to a government agent in the course of an investigation.
Regardless, saying that you are not a illegal drug user when you are on a government form is a crime. The fact that the form is an application to purchase a gun is irrelevant.
Somewhat relevant to this, Canada also does lifetime revocation of the right to buy and possess firearms for convicted criminals.
HOWEVER, unlike here in the USA where there is an automatic lifetime revocation of Second Amendment rights for Americans simply because they fall into a class i.e. dishonorable discharge, felony convictions, in Canada such a revocation must by done on a individual basis one at a time, and not automatically by class.
The prosecutor can (but often does not) ask the judge to include a firearms/other weapons prohibition at sentencing. Such a request may be for a specified period of years or for life. That judge may or may not grant it. If granted, it may or may not be for the period requested by the prosecutor.
In other instances, rather than our terrible red flag laws, a prosecutor may bring a person before the courts to have a show cause hearing before the judge while they request a weapons prohibition for an individual. They are required to provide a body of facts that shows the person should be considered to be a threat to themselves and/or others.
Some prohibitions expire after a certain number of years; some are in place for life.
Where firearms/weapons prohibitions have been put in place by the courts, those subject to those prohibitions can go back to the courts later, asking for a review of their situation They may or may not get the prohibition lifted, depending on what they present.
What socialist Canada does NOT do is automatically ban citizens from firearms ownership and possession for their entire life automatically, as soon as they fall into a category of persons.
That’s what we do here in the USA, where we have the specifically written Second Amendment that says “shall not be infringed”. And even the majority of Republicans are fine with that, rather than demanding a judicial review and determination before a lifetime revocation of Second Amendment rights.
And we wonder why we’re losing the Second Amendment…
“And we wonder why we’re losing the Second Amendment…”
We are losing the country.
Yes, no disagreement with that of course. But the subject is the prohibition on individuals exercising their Second Amendment rights without judicial process – simply because they fall into a category. As I pointed out, Canada to our north only prohibits citizens from firearms possession, purchasing, etc after a government request for that prohibition has been heard by a judge. They don’t do it automatically on the basis of categories.
I doubt Professor Turley would find it reasonable if the exact same thing were done with the First Amendment, and Americans were prohibited from exercising First Amendment rights as soon as they fell into a similar series of categories. “Dishonorable discharge? No free speech for you!”
Indeed doesn’t Canada just make other people who know the person vouch for them?
No, not in anything that I’ve read. If the person that is subject to the prohibition chooses to contest the Crown asking for the prohibition, they have to do more than just have a friend or drunking buddy or the janitor at their job vouch for them. The Crown has to show cause i.e. do more than simply ask for the prohibition, and the subject person has to respond to what they present, not just call a friend.
The point is, in Canada where there are lots and lots and lots of guns but Lenin Liberal/Dipper socialism that hates guns just like Soviet Democrats infects half the country, they do not automatically prohibit people from owning firearms strictly on the basis of a class of conviction, a dishonorable discharge from their military, mental illness, etc.
Canada DOES require a judicial determination on a case by case individual basis, not just automatic stripping of Second Amendment rights for life based on categories.
(At the same time, they’re California lenient on the vast majority of street criminals. Like here, the unwashed masses are unhappy with that but the inertia of their justice system leveraged by ‘social justice activists’ carries the day.)
Which is what I and probably a lot of others believe is how it should be here in the USA if you are going to strip a citizen of a constitutional right – especially for life.
It would be interesting to know if Justice Thomas has a similar view? Or if he has decided that you can imprison people for life, but you cannot revoke Second Amendment rights from persons free of the judicial system and living their lives, even through an individual judicial determination to do so.
There is a reoccurring warning in this decision that many including the NRA and similar organizations continually do not see
We have held that the right to keep and bear arms is among the “fundamental rights necessary to our system of ordered liberty.” McDonald v. Chicago, 561 U. S. 742, 778 (2010). Derived from English practice and codified in the Second Amendment, the right secures for Americans a means of self-defense. Bruen, 597 U. S., at 17.
First, an aside: It is the English Bill of Rights, one of the United Kingdom’s and the Commonwealth nations constitutional documents that gave those peoples a right to bear arms. NOT “English practice”. It is every bit as codified as our Second Amendment that was derived from the EBR. So, in writing the majority opinion, did Roberts simply make a mistake in referring to it as “English practice”, rather than observing that right STILL exists in the EBR, just as the right to elections, to vote, fair trials of your peers, etc exists. Why mention the English connection at all – and then make a glaring mistake like that?
And that is the point of the warning we keep seeing regarding what Justice Roberts claims is our “secured” Second Amendment right. The English Bill of Rights STILL “secures” the right of the people to arms for their defense just as our Second Amendment does for us. In fact, in the rights listed in THEIR constitution after the Glorious Revolution, they listed the right of the people to arms for their defense above the right to vote. Because, just as the colonists did a century later, they revolted against and defeated a tyrant attempting to disarm them and impose that tyrants will.
However, while the English Bill of Rights is regularly the basis of supreme court decisions dealing with issues of constitutionality in the UK, Canada, Australia, New Zealand, etc., EVERY SINGLE COMMONWEALTH NATION’S governments and their supreme courts have made the right of their citizens to bear arms for their defense a dead letter. Not a single one of those nations has passed legislation that explicitly revokes that right of citizens to arms to their defense. Not a single nation’s supreme court has upheld their citizens’ English Bill of Rights right to arms for their defense in the face of court challenges to government revoking access to firearms, limiting the use of firearms, and outright wholesale confiscation of firearms.
In Canada, their minority government fascist and racist prime minister Trudeau (the son that Obama never had) is attempting the wholesale confiscation of all handguns and semiautomatic long guns by what we call an Executive Order – he will not put his confiscation plan to a vote in parliament because not even all members of his party will support it. Fascism by fiat. In a decision several decades ago, R. v. Sparrow (?), Canada’s Supreme Court stated that the newly minted Canadian Constitution was a “living, breathing document.” They held that despite the Constitution Act including all previous Canadian constitutional documents such as the EBR, the Canadian parliament could extinguish an existing specific constitutional right in the EBR by bringing forward a bill that was specifically intended to do that, and passing that bill to extinguish that existing right by a majority vote of parliament.
Canada, through four successive decades of majority Liberal governments and now minority governments under Trudeau attempting to criminalize firearms ownership and confiscate firearms, has NEVER repealed the right of Canadians to bear arms for their defense as provided by the EBR. (Nor did England, Australia, or New Zealand before their infamous gun bans and confiscations during those years). Liberal governments have simply gone forward with a succession of measures to progressively eliminate Canadians’ EBR rights, and other than a few detours that Canada’s Supreme Court has thrown them, they are now at the point where their court has told Trudeau he can confiscate all these firearms simply by issuing his personal fiat in the form of this Order In Council they declared to be constitutional.
Canada and all of these countries were not this way until the last half of the 20th century. In all of these countries, the right of their citizens to own arms for their defense was unquestioned until recently. Canadians could could go hunting with handguns instead of rifles in some provinces as late as 1974 and a permit to carry concealed for self defense was about as hard as going to a police department to make an application and be of good character. You could shoot handguns anywhere it was legal to shoot rifles and shotguns, whereas now, handguns can only be used at shooting ranges licensed for handgun use.
Now, by fiat of the government in power, not by majority vote of the elected politicians, those handguns have been declared prohibited and their owners await Trudeau finding the means (courage) to go throughout the country, house to house, confiscating those handguns (and rifles and shotguns) from their owners. Firearms groups appealed that to Canada’s Supreme Court, who held that Trudeau’s personal Order In Council to first declare firearms prohibited weapons and then move to confiscate them was constitutional.
That is the warning to normal Americans who believe in and demand constitutional government: we are no different from Canada where our right to bear arms is concerned. We are only different in that we’re managing to stay ahead of the gun banning fascist tyrants who have found willing partners in their Supreme Court better than they have been.
The Soviet Democrats are diligently doing everything they can to extinguish Second Amendment rights for Americans, in the same way that was done to the right to bear arms in the UK, Canada, and other Commonwealth countries. Not constitutionally, by putting the repeal of the Second Amendment to a vote during a federal election as was done with Prohibition, but instead by going around the constitution and doing it in increments by government fiat and getting the right justices on SCOTUS to deal the death blow.
What was done in the UK and Canada, whose English Bill of Rights our Second Amendment (and some other rights) comes from, is now being attempted here in the USA. Americans can regularly win a defense of the Second Amendment – the Soviet Democrats only have to win a decision to allow them to confiscate firearms ONCE.
And if you don’t think the Soviet Democrats don’t already have justices on SCOTUS eager to do that, you obviously didn’t bother reading this decision and the “concurring” opinions of the Questioning Birthing Person Jackson and Wise Latina Woman Sotomayor. The Second Amendment will be a priority target if the Soviet Democrats succeed in packing SCOTUS as they’ve plainly said they want to do.
Weird for some nobody to be using Turley’s comments section as an op-ed platform. Pretty pathetic honestly.
Aside from ad hominem do you have a conter argument to OAD ?
Regardless his reply is on topic, not falacious and well argument – unlike your short reply whose only positive attribute is that it gets everything wrong with brevity.
@John Say…
No the position stated is not right.
Now I agree w your comment about Anon being a prick and that he should attack the comment, not the poster.
But his argument is severely flawed.
I’ll address it.
-G
Weird for some nobody to be using Turley’s comments section as an op-ed platform. Pretty pathetic honestly.
Predictable that a cowardly Anonymous Soviet Democrat Marxist Useful Idiot who is so much a feckless and cowardly nobody that they will not post under a username would make such a laughably inane and sophomoric comment as that.
Now how Biden level dishonest and corrupt do you have to be to ignore Dennis McIntyre’s daily, off-topic theft of space in the comments section following each article posted by Turley – and now suddenly claim you have a problem with my pointing out what is going in with these cases is following in the footsteps of what Canada is doing?
Ever heard of possessing a sense of self awareness before attempting that comment after we all get our daily dose of Dennis McIntyre, Bribery Biden’s version of Baghdad Bob?
Try harder…
Airborne
Well said!!
@Old Dog…
Mate, your post doesn’t make a lot of sense.
First, post Dunblane, the UK has removed the rights of the ordinary citizen to own guns. Its highly restricted and how they can be used are also limited along w what they can own.
I remember Dunblane. When Sandy Hook happened, I was sitting in a pub in Edinburgh w two of our clients. (We were flying home the next morning.) They lived in and around Dunblane. So yeah that was a bit surreal. (One of their coworkers had lost a son.)
Now while the US is based on British law, there is a distinction.
The 2A is strongly codified. Not so in the UK. Nor in any of the other countries you mentioned.
If what you suggest were to happen, it would be civil war.
It would mean also removing the 1st, 4th Amendments as well.
-G
Ian Michael Gumby (Gumby) posted:
Mate, your post doesn’t make a lot of sense… The 2A is strongly codified. Not so in the UK. Nor in any of the other countries you mentioned.
What DOESN’T make sense is you recognized that the 2nd amendment is “strongly codified” (while ignoring that it has been under virulent and continual attack for over a century and that 2A rights today don’t come close to what they were less than a hundred years ago – tell everybody how you get a concealed carry permit in Hawaii…).
And then weakly claim that the English Bill of Rights ISN’T similarly codified. You know – like on a legal document also ratified by the elected representatives of the people.
The English Bill of Rights is written on those original pieces of paper that do exist, just as original copies of the US Constitution exist. You should go read it sometime and consider how many times over the centuries it has been authoritative in the highest courts throughout the Commonwealth as well as the UK House of Lords: “The Bill Of Rights is one of the basic instruments of the British constitution, the result of the long 17th-century struggle between the Stuart kings and the English people and Parliament.”
It’s written on a piece of paper, it was passed by elected Parliament as the Bill of Rights was ratified by the elected representatives of the states, it’s been an authority used by the courts for almost four centuries. That is about as codified as you can ask for.
As for those other countries, Canada’s Constitution Act explicitly says that Canada’s new constitution does not remove already existing constitutional documents such as the English Bill Of Rights and the 1960 Canadian Bill of Rights: “The guarantee in this Charter of certain rights and freedoms shall not be construed as denying the existence of any other rights or freedoms that exist in Canada.”
It would mean also removing the 1st, 4th Amendments as well.
Well, I didn’t mention that, but since you want to go there, tell everybody how well the 1st Amendment is “strongly codified” as the Biden government works with the FBI and DoJ to censor newspapers wanting to publish news of the Biden laptop, while courts censor the free speech of Trump and others to make comments regarding federal prosecutors while those federal prosecutors and their witnesses happily go out in public to make declarations about Trump prior to and during a trial.
Tell us how strongly codified the 4th Amendment is in the USA while the FBI spies on tens of thousands of Americans without any warrant and while Obama’s Attorney Generals, FBI Directors, and others repeatedly perjured themselves and uttered false documents to FISA courts without penalty. And how’s that mass NSA spying on Americans and intercepting and warehousing their communications going under the strongly codified 4th Amendment.
“Strongly codified” – but not the English Bill Of Rights, huh?
So mate, in the language from across the pond that you used, stop being a wanker claiming what I posted makes no sense – while you post nonsense lacking any evidence whatsoever that flies in the face of what has existed for nearly four centuries and been recognized for the same time period in the UK and throughout the Commonwealth as constitutional rights.
Are you hoping to disguise this threat to the Second Amendment with this ridiculous attempt that you just made?
Try doing better next time (because I’m sure there will be).
Old Airborne: “They held that despite the Constitution Act including all previous Canadian constitutional documents such as the EBR, the Canadian parliament could extinguish an existing specific constitutional right in the EBR by bringing forward a bill that was specifically intended to do that, and passing that bill to extinguish that existing right by a majority vote of parliament.”
+++
I haven’t read Canada’s Constitution Act but if it follows the English tradition then Parliament has the power to overturn previous constitutional guarantees. I think that is why our Constitution was drafted so amendments are difficult to enact. One last safety rail.
Commonwealth Parliaments such as Canada (I never looked at other nations) could revoke all or some of the EBR by bringing forward a law that explicitly says that is the intention of of the law and then passing that bill by majority vote. It would then require Senate approval to complete doing that. I suppose Canadians could hope that the SCC would exercise it’s power to say “no you don’t” – but given their choosing to treat the EBR right to Canadians’ right to arms for their defense as a dead letter, of course they wouldn’t.
The language in each country is different. We call it repealing an amendment as was done with the 18th Amendment – you can call what Canada is able to do through their different constitutional mechanisms “removing constitutional guarantees”. In both cases, part of the nation’s constitution is being removed for either good or bad purposes and not through the constitutional process required to legitimately do that.
The supposed third rail that Americans have is that it takes more than a simple majority vote like in Canada to repeal an amendment as was done with Prohibition. But if the government passed that threshold, at that point our Congress would be out of the loop. Want to bet SCOTUS would be outraged and say this repeal of the Second Amendment under our constitution’s process for removing/altering the 18th and now 2nd amendments could not stand because the Second Amendment is a natural right?
The more scary thing is that in all these countries, whether the USA, Canada, the UK, etc, they are not diminishing and removing constitutional rights to bear arms by way of formal actions of elected federal governments. They are ignoring what each constitution says regarding the right to bear arms, and simply passing laws and regulations that clearly violate what those constitutions say.
And in all these countries including ours, the courts increasingly allow them to do it. Rather than demand that if they’re going to remove that right, they must do it through the process laid out in the constitution, getting the approval of the citizenry by ballot.
Which what you will see in the supposedly concurring decisions posted by Jackson, Sotomayor and Kagan.
It is passed time to jail that little piece of excrement.
Joe’s entire criminal family needs time in jail … lot of time ….
“past”, not “passed”
The school marm speaks.
… “an individual found by a court to pose a credible threat to the physical safety of another may be temporarily disarmed consistent with the Second Amendment.”…
So a court can find that all registered Republicans are a credible threat and should be disarmed?
Oddly enough, it is Democrats who are constantly a credible threat to our Constitutional rights..
True story – blue cities loads of crime, VIOLENT CRIME. It’s what D branders bring to the table , oh and illegal aliens.
If anything, it found that Soviet Democrat Marxist Useful Idiots like mikegre2014 (no doubt a recipient of a participation medal for The Year Of Mostly Peaceful Rioting, Pillaging, Arson and Murder) are parasites infecting the republic’s body public and should have their right to vote suspended until a cure is found for Marxist police state fascism as a mental illness.
And this is why CNN and the Washington Post are going broke: the Useful Idiots they depend on as their customers are over here randomly throwing shyte around while pimping for The Big Guy.
Precisely why the court is wrong. To infringe on a constitutional right, requires a substantial amount of due process – typically a criminal conviction beyond a reasonable doubt.
And ?”Temporarily” is just the effort of tyrants to justify totalitarian actions.
It is only temporary,
It is just for an emergency.
The rule of law is for always and everywhere – if it can be ignored temporarily or in an emergency then it does not exist at all.
John, as a pretty strong 2A supporter and someone who always reads and almost always enjoys your legal comments I have to disagree with you a bit. If your neighbor is threatening you with physical harm, has shown a propensity for violence with say his dog, drink to a stupor every night and has been hit with a restraining order by his wife who left him recently you might want his guns taken away before you leave your family to go on your business trip.
I understand about due process, I understand about the weaknesses of red flag laws, but in the real world you don’t want this guy having a gun until your complaint has been adjudicated, his wife’s claim has been adjudicated and before the authorities have a chance to investigate further.
The 2A is not absolute, just as the 1st isn’t either.
If he is the subject of a domestic violence restraining order, that order didn’t require him to surrender all firearms and not be in possession of firearms while the order was in force? If you know he still has firearms, the simple remedy is to call police.
If he’s threatening you, why didn’t you make that 911 call – that’s a crime. And when you want his firearms removed, you also want police to ensure they also take any bows he has, crossbows, knives or anything else he could use to do you harm? In this area of Montana, people are just as likely to have High Powered Assault Bows as they are likely to have a Baby Killer Assault Rifle 15.
No violence restraining order for domestic violence or threatening the neighbors, but your neighbor drinks to a stupor every night so you want that to be justification for the government taking his firearms, bows, crossbows, etc and revoking his 2A rights? For how long?
I assume you want his drivers license revoked as well as his firearms seized and a prohibition because he’s more likely to drive impaired and harm you or somebody else than attack you with a firearm? After all, a driver’s license is a permission to drive, not a right. This should be done on the strength of your word, correct? Your word and opinion must be accepted by the government as more important than an individual’s Bill of Rights (or permission to drive)?
Propensity to violence towards his dog? There’s laws regarding that – you’d prefer to ask the government to suspend an individual’s Second Amendment rights rather than use your cellphone to take pictures of what you’re seeing and then call the local doggy cops who can prosecute him for animal cruelty?
Whose definition of “violence to his dog” should the government use to trigger Second Amendment rights suspension?
One set of our neighbors is appalled that we use e-collars while training our gun dogs and the gun dogs of people who send their dogs to live with us and be trained; they fervently believe that is cruelty to animals.
If they call police, should those government agents rightfully confiscate my and my wife’s firearms because the neighbor thinks they’re watching cruelty and violence being done to those dogs they watch being trained in our yard? Revoke our 2A rights at the same time?
We have some sort of a guarantee that your complaint of what is violence to a pet is reasonable and informed? I’m sure our neighbor believes their opinions on violence and cruelty to animals is also reasonable and informed.
I’m going to be the very first one to make a phone call if I see just one single instance of cruelty to a pet; it won’t take a propensity of violence towards pets to trigger a call. Nor will that call be a demand that law enforcement show up to seize firearms – it will be to deal with the cruelty to animals and seize the pet that’s in danger.
Red flag laws are almost or always a constitutional abomination, where just about every justification for them is also a reason that could be used instead to charge the individual with a crime and bring them before a judge. Many observers have pointed that out; red flag laws don’t just have weaknesses – they’re just a mechanism for driving around the Second Amendment and only the Second Amendment… all other means of doing harm to others or yourself are left untouched.
Not only do they regularly fail miserably (about the same as the “reasonable gun laws” in force in blood soaked Chicago, DC, Baltimore, etc), but when they’re used as a weapon by somebody making a false complaint against a firearms owner, that person is hidden and protected without being held accountable for the harm they deliberately caused.
And while you appear to favor Second Amendment rights being removed in the instances you you gave as examples until adjudication some months/years later, that’s rather reminiscent of the non-violent J6 defendants who were in in jail for (how long?) until the courts got around to dealing with their trespassing and wrongful parading charges.
There is no guarantee of safety accompanying the freedom of the Second Amendment right, and Gorsuch addressed that in his concurring opinion:
When the people ratified the Second Amendment, they surely understood an arms-bearing citizenry posed some risks. But just as surely they believed that the right protected by the Second Amendment was itself vital to the preservation of life and liberty.
The constitution demands that no right guaranteed in the Bill of Rights be removed until and after a judicial hearing where the subject person gets to face their accusers (in your examples, you and the government you’re asking to revoke their 2A rights) and a determination made after that judicial proceeding.
That’s how it should be, not based on “what if” scenarios.
Justice Thomas’ dissent on this particular decision is as wrong as it can possibly be.
And the pie i had last night was delicious
Because you sayt so ?
Thomas’s disent is spot on – and this is not really a 2nd amendment case.
The core issue is whether aright – especially a constitutional right can be taken away without due process.
There is little doubt that Rahimi is a “bad dude”.
There is little doubt that most of us would support barring him from ownership or posession of guns.
That is NOT the question. A ruling in favor of Rahimi would NOT have precluded classifying him as a person not to posess.
The core question is can you take away a constitutional right in an ex parte civil hearing where the person whose right is being abdridged is not even present.
The answer SHOULD have been a resounding KNOW.
Again the core issue is NOT a 2nd amendment issue, This is more like an egregious form of Civil asset forfeiture,
Where the police get to confiscate your propertry if they suspect it is the proceeds of criminal activity and YOU have to go to court and prove that it was not to get your property back.
Convict Rahimi or anyone else of a violent crime and you can bar them from posession of firearms. That is established.
Thomas is correct and the remaining 8 justices have FAILED to grasp the core of the constitution.
Rights are NOT absolute.
But they are more than a speed bump to government abridging them.
Again convict Rahimi of a violent crime and you can restrict his right to firearms. You can take his liberty and lock him in prison.
You can restrict peoples Rights confiscate their property AFTER you have proven beyond a reasonable doubt they engaged in violent criminal conduct.
Thomas is wrong about one thing – this country DOES have a long history of abusing civil processes to deprive people of their rights.
Civil asset forfeiture is still constitutional
Forced sterilization of those with mental health issues is still constitutional.
Forced institutionalization of those who are allegedly incompetent is still constitutional.
Thomas is correct, the court is WRONG.
Abridgement of a persons constitutional rights should not be tolerated without FULL due process.
Government can confiscate your property if that property is the proceeds of criminal conduct – AFTER you have been convicted beyond a reasonable doubt of that conduct.
I am hard pressed to think of any situation in which government can forceably sterilize you – yet that IS the current state of the law.
Government can institutionalize you against your will AFTER meaningful due process where there is a hearing in court, where Government is FORCED to prove beyond a reasonable doubt that you are a danger to yourself or others or that you are incompetent to care for yourself,
And Government can deny you posession of firearms AFTER proving beyond a reasonable doubt that you are violent and a danger to others.
Lessor standards for serious infringements on constitutional rights are unconstitutional.
When you make it trivial to infringe on a constitutional right – especially when you make it possible to do so with little or no due process you destroy not merely that right – but the entire concept of individual rights.
Thomas says explicitly at the end of his opinion that Texas could have imprisoned and disarmed Rahimi by charging him with aggravated assault for some of his conduct but chose not to do so. So in that sense this was a case about process.
On the other hand, it was also a case about how to determine the limits of the 2nd Amendment. Here, Thomas faithfully applied Bruen and demonstrated that no historical analogy applied. Instead, he argued, and the other justices acknowledged, that this test was being abandoned, in favour of judicially discovered “principles” discernible in historical practices considered as a whole. How general these principles can be, and what historical period is to be considered, remain open questions. Barrett’s concurrence most clearly defines the new approach.
This was me.
I knew it was before you claimed it because you repeated your lie from earlier.
And what lie would that be ?
When you accuse someone else of lying – the burden of proof is on you.
You have not even identified what Daniel said that was a lie.
I do not think this represents a deliberate rejection of Bruen. It more represents the Roberts Courts wishy washy approach to the constitution.
Principle established in other decisions, get ignored when inconvenient in others.
Thomas’s “historical proactice” observation regarding Bruen is just a restatement of the requirement that the meaning of the law MUST be understandable, and it must not change over time without actually changing the law or constitution – in otherwords it is just a restatement of originalism.
I think I understnd the majority opinion – and they are WRONG.
Again no one feels sorry for Rahimi. Nor is there anyone who thinks he should be in posession of firearms.
No right is absolute.
The question is entirely about the conditions that government must meet to overcome a right.
This is also not specifically a 2nd amendment decision. We unfortunately have other instances where constitutional rights are trampled with very little due process.
I beleive Rahimi was subsequently convicted of violent crimes – at that point – and NOT BEFORE, he can lose those rights that can be infringed for those convicted of violent crimes.
The Court rejects Bruen insofar as its requirement to identify an historical analogue is concerned. There was none here, as Thomas showed. Now, all that is needed to limit the scope of the 2nd Amendment is a “principle” somehow discerned by judges through their consideration of history. This may be good or bad, depending on your view of gun control laws. But it is certainly a change from Bruen.
John Say posted: I do not think this represents a deliberate rejection of Bruen. It more represents the Roberts Courts wishy washy approach to the constitution.
It wasn’t – other than the three “concurring” opinions added by the three Soviet Democrat police state fascist justices whose opinions directly attacked Bruen and had little to do with the specific question before the court.
Reading the opinion of Justice Questioning Birthing Person Jackson in particular, what it looked like was laying the foundation for a later court to attempt to overturn Bruen (and Heller) at a later date when Soviet Democrat appointed police state fascists are the majority on SCOTUS. Just as Stevens did in the Heller decision – quoted in this decision by Jackson in her strident attack on Bruen.
I also don’t think this was just Roberts’ usual squish – after reading all the additional concurring decisions after the court’s decision, and Thomas’ dissent opinion, what was going on within SCOTUS before this decision was released would be fascinating to know.
It does look to me like this is SCOTUS trying not to irritate the masses with a decision throwing out this law that would have been akin to the Dobbs decision. Had this court found 18 U. S. C. §922(g)(8) unconstitutional, the public outrage from both Republicans and Democrats would have made Dobbs look like a kiddy spat in a kindergarten sandbox.
Soviet Democrats because they want the ability to punish gun owners whenever possible (other than favored Soviet Democrats like Hunter Biden and felons who are found with guns who are from the black identity politics class). Republicans, because many choose to believe that it is constitutional to remove Second Amendment rights for life after a felony conviction and serving out the full sentence of the court without any further judicial proceedings (and only remove Second Amendment rights in that manner, no other).
Not wanting to go through something worse than Dobbs, at least eight on SCOTUS punted – and the three Soviet Democrat justices took advantage of that with their political concurrences that focused on not this decision, but attacking the Second Amendment, Bruen, and Heller.
What a smorgasbord this decision is – as well as a view into how SCOTUS is currently positioned where the Second Amendment is concerned. Those who couldn’t bother carefully reading the decision missed a show.
The court claims – and held – that the 18 U. S. C. §922(g)(8) prohibition that removes Second Amendment rights after a civil restraining order is constitutional because it meets the text and historical requirements. They offered by way of justification for this finding the historical presence of surety and affray laws.
Justice Thomas in great detail tears that apart, piece by piece, showing that there is little to no common context/history and outcome of those laws, an analysis which is now mandatory after Heller and Bruen. He explicitly notes that this court previously held in its own Bruen decision that surety laws impose a far less relative burden and removal of Second Amendment rights.
And yet now – in this decision – the court is suddenly switching back to saying those surety laws now save §922(g)(8). Thomas went even further into why this is wrong, essentially detailing why the entirety of 18 U. S. C. §922 is unconstitutional, while the majority decision emphasized that this decision just narrowly dealt with a TEMPORARY suspension of a right. But he killed their focusing on justifying a temporary decision by pointing out they weren’t compliant with their own test following Bruen and Heller.
So there’s a question: did Roberts get this pacifying “strong” 8-1 decision with the attempted punt by focusing only on the temporary suspension of Second Amendment rights, which is also done in regard to other amendments contained within the Bill of Rights? “If you all sign on with a focus on the temporary, we won’t consider whether every/most revocations of Second Amendment rights in §922 are unconstitutional!”
And then there’s all the under the surface content with all of the concurring decisions. There’s a lot of meat on those bones!
You have the three Soviet Democrat justices concurring – while the great majority of the text of their concurring decisions is condemning Bruen especially and Heller as well. Calling for a return to times prior to that where the question of whether individuals had a right to bear arms prior to Heller was already well settled law – which in reality means they didn’t concur with any of this. Law abiding American, American under a civil undertaking, convicted felon… doesn’t matter, they do not believe anybody has an individual right to bear arms despite Heller and Bruen that many were part of.
There was the race baiting whining of the racist Wise Latina Woman Sotomayor (who at least knows what a woman is, unlike the genius Justice Jackson), which began by bemoaning along with Kagan and Jackson that Bruen was wrongly decided.
Sotomayor/Kagan took the opportunity in their concurrence to state that they were fearful that Bruen that this case was decided on would “make it nearly impossible to sustain common-sense regulations necessary to our Nation’s safety and security.”
Well, there it is in plain view: the Soviet Democrat claim that their state and federal regulations that clearly violate the Second Amendment supersede that right because (a) they are actually common-sense, because they say so, and (b) necessary to our safety and security (actually putting violent street felons in jail under existing laws as a lesser attempt to protect safety and security is NOT necessary, nor common-sense).
Sotomayor/Kagen followed by critiquing both Heller and Bruen because firearms of the 18th century took much longer to load unlike firearms today – but who believes they would use that rational if laws that impacted the First Amendment rights of CNN, the Washington Post, etc had government arguing to defend regulatory attacks on the press that digital media and it’s publishing speeds today do not resemble that of the printing presses of the 18th century like the firearms they singled out in these comments?
And predictably, Sotomayor/Kagen ended with attacking how history can be used to interpret the Second Amendment – because that period of history excluded women and “people of color” as full members of the polity at that time. And therefore, using history to interpret the Second Amendment impoverishes and hamstrings our democracy (not republic).
And then the ever disappointing “Can’t we all just get along” Kavanaugh…
Almost predictably weighed in with a long treatise on why this case was properly decided using the tests established by Heller and Bruen in particular (which it did the opposite of, as detailed by Thomas’ dissent). The central theme of his treatise, regularly repeated, is that the Second Amendment is actually vague in meaning i.e. A recurring and difficult issue for judges, therefore, is how to interpret vague constitutional text. That issue often arises (as here) in the context of determining exceptions to textually guaranteed individual rights… Absent precedent, therefore, history guides the interpretation of vague constitutional text.
There is nothing vague about the Second Amendment, and the meaning of the portion of that amendment referring to the militia of that time is known and has already been decided by SCOTUS. Numerous times. But that’s what you get from Play Along To Get Along Kavanaugh, who regularly almost ties himself in knots trying to please those on both sides – while Soviet Democrats tried to destroy his life, still do, and their street thugs are arrested while stalking him to attempt to murder him.
Barrett weighed in to mostly try and be the grey woman in the crowd with something about “today isn’t the day and this isn’t the case”. No surprise from me regarding this allegedly textualist justice. If it contributed anything to the decision by adding her concurrence, I missed it.
And then Gorsuch used his concurring decision to point out that he and Thomas could disagree on whether §922(g)(8) was in fact analogous to surety laws – but he Thomas and the other dissenting justices find that interpretive tests based on history and the text of the Constitution are in fact the right tests of constitutionality in all cases. And that judges have no business legislating their politics and personal beliefs and animosities from the SCOTUS bench.
whatever indeterminacy may be associated with seeking to honor the Constitution’s original meaning in modern disputes, that path offers surer footing than any other this Court has attempted from time to time. Come to this Court with arguments from text and history, and we are bound to reason through them as best we can. (As we have today.)
Allow judges to reign unbounded by those materials, or permit them to extrapolate their own broad new principles from those sources, and no one can have any idea how they might rule. (Except the judges themselves.) Faithful adherence to the Constitution’s original meaning may be an imperfect guide, but I can think of no more perfect one for us to follow.
He then proceeded to use his pages of decision to tear apart everything from Sotomayor, Kagan, and Jackson attacking Bruen, Heller, and the Second Amendment in their concurring/dissenting opinions. Along with a few sideways kicks at Kavanaugh’s claims that the problem here is “vague constitutional text”.
I am left wondering whether Gorsuch was thinking of siding with Thomas in that dissent – but decided instead to be one of the concurring voices and then use his concurrence to tear apart the concurring decisions registered by Sotomayor, Kagan, and Jackson with their irrational attacks on Bruen, Heller, and the Second Amendment.
If Gorsuch saw the text of their supposed concurrences as a strategy to lay the groundwork for a future reversal of both Bruen and Heller, he may well have decided it was more important to have another concurring opinion for future SCOTUS courts that pointed out how terribly flawed their comments on Bruen and Heller were.
Yep… what a show THAT must have been as the drafts of all the concurring and dissenting opinions went out – after Stevens cut whatever deal he got on the wording of the decision he ultimately offered. Four concurring opinions from five justices and one dissenting justice. How much writing/rewriting of those concurring decisions as the others saw the drafts of the Thomas and Gorsuch decisions??? How many versions went around the table before the final versions were settled? Those law clerks will have a lot to talk about over beers in private in the years that come.
Those who didn’t bother to actually take a few hours to work their way through the text of the decision cheated themselves.
And we now have a wide open window to how all of these justices are going to deal with future Second Amendment cases. And probably any issue that has political overtones where they could get a Dobbs style reaction.
Being wrongly decided as per Justice Thomas has helped at the same time by glaringly showing us the intentions of the Soviet Democrat justices for both future cases and planning towards reversing Heller and Bruen. And just how unreliable Roberts, Kavanaugh, and Barrett are concerning upholding an originalist/constitutionalist view of the Second Amendment and the Constitution. They have spines of paper machete.
OAD, great comment.
I think Barrett wrote to make it crystal clear that “principle” not historical analogue is now the relevant standard, thus gutting Bruen. That “principle” must somehow be divined from history is cold comfort.
Gorsuch is puzzling. He appears to have sympathised with Thomas’s analysis of surety and affray, yet he did not join him in dissent. At the same time, in the very passage you cited, he opposed the recourse to “principle.” So what was he relying on?
Daniel posted: Gorsuch is puzzling
I went into some detail previously with each concurring separate decision. Rather than repeating that, if I had to GUESS, my guess would be that Gorsuch didn’t disagree with Thomas at all – he takes some pains to say he only differs with Thomas in whether or not surety and affray laws meet the required similarity to the law in question. And that while he probably is on the same page as Thomas, he believes that a concurring decision attacking and tearing down what Sotomayor, Kagan, and Jackson posted in THEIR concurring decisions is far more important than just joining Thomas in dissent.
I would suggest to you that’s the point: while all three Soviet Democrat Birthing Person justices specifically attacked Bruen and how historical precedence and text must be the basis of any challenge to the exercise of Second Amendment rights, Gorsuch sided with Thomas in saying that ALL concurring justicesincluding those three were (with their concurring vote) saying that the test in Bruen that was used in this case was a proper test. Whether they went on to cry about Bruen or not.
I appreciate that one of our colleagues sees things differently. Post, at 6–7 (THOMAS, J., dissenting). But if reasonable minds can disagree whether §922(g)(8) is analogous to past practices originally understood to fall outside the Second Amendment’s scope, we at least agree that is the only proper question a court may ask.
Discerning what the original meaning of the Constitution requires in this or that case may sometimes be difficult. Asking that question, however, at least keeps judges in their proper lane, seeking to honor the supreme law the people have ordained rather than substituting our will for theirs.
In saying that, Gorsuch was pointing out that despite their focus on attacking Bruen and Heller before it, the Three SCOTUS Stygian Witches had voted to confirm that the Bruen test was proper, and therefore that’s why it was valid to use it here to deny this appeal. And that justices wanting to legislate their politics, prejudices, and hatred of firearms and the Second Amendment from the bench must stay in their proper, constitutionally defined lane.
Then having done that, Gorsuch went to great detail in pointing out how serious a constitutional violation you get when judges such as these three Soviet Democrat justices could do before Bruen that they loath so much:
Just consider how lower courts approached the Second Amendment before our decision in Bruen. They reviewed firearm regulations under a two-step test that quickly “devolved” into an interest-balancing inquiry, where courts would weigh a law’s burden on the right against the supposed benefits the law offered. See Rogers v. Grewal, 590 U. S. ___, ___, and n. 1 (2020) (THOMAS, J., joined by KAVANAUGH, J., dissenting from denial of certiorari) (slip op., at 5, and n. 1); see also, e.g., Peruta v. County of San Diego, 742 F. 3d 1144, 1167–1168, 1176–1177 (CA9 2014); Drake v. Filko, 724
F. 3d 426, 457 (CA3 2013) (Hardiman, J., dissenting).
How did the government fare under that regime? In one circuit, it had an “undefeated, 50–0 record.” Id., at 1167, n. 8 (VanDyke, J., dissenting). In Bruen, we rejected that approach for one guided by constitutional text and history.
And (provocatively to me), after the three Soviet Justices laid an opinion framework to later overturn Bruen and Heller, Gorsuch responded by laying a countering opinion framework for the future: He added that this decision did not preclude later SCOTUS decisions finding that the Second Amendment restriction they have allowed to stand in this case can be rejected by SCOTUS at another time in another case. In short Gorsuch said that this law, §922(g)(8), is not absolute nor is it a permission slip for categorical denial of Second Amendment rights (which is exactly what this statute does, although that wasn’t the question put before the court in this case):
We do not determine whether §922(g)(8) may be constitutionally enforced against a person who uses a firearm in self-defense. Notably, the surety laws that inform today’s decision allowed even an individual found to pose a threat to another to “obtain an exception if he needed his arms for self-defense.” Ante, at 12; see also post, at 23 (THOMAS, J., dissenting).
Nor do we purport to approve in advance other laws denying firearms on a categorical basis to any group of persons a legislature happens to deem, as the government puts it, “not ‘responsible.’”
Suffice it to say, there is a lot to unpack in these concurring decisions, and I have a strong suspicion that Gorsuch’s concurrence was more about countering and exposing what the Soviet Democrats three police state fascists on SCOTUS were attempting to do with their concurring opinions.
And for bonus points, Gorsuch then twisted the knife in all three co-conspirators by laying the groundwork for a future overturning this law’s removal of Second Amendment rights from persons on a categorical rather than individual basis i.e. convicted felons after serving their sentences in full.
I like what I see in Gorsuch’s opinion just as much as I like and pretty much agree with Thomas’ – despite the fact they supposedly disagreed, when in fact they agreed on pretty much everything, including the threat of justices legislating their personal police state fascism from the SCOTUS bench.
Barrett… meh… maybe I should give her opinion another read, but on first reading it was weak sauce kicking this can that is the core question down the road to avoid dealing with it.
I actually don’t believe Gorsuch disagrees with Thomas about whether surety and affray are valid analogies. But he has to say he does if he also wants to disagree with Barrett that “principle” not analogy is what matters. Unlike Barrett and the majority he also expressly wants to see the constitution fixed in amber. Yet he did not want to allow Rahimi to be armed. So he made a big deal of how this was a facial challenge, saying it was the most difficult kind to win. I think he did his best to get the result he wanted in this case regarding Rahimi specifically when there was no real way to do that under Bruen. He should have dissented.
I think Barrett defines precisely how this decision overturns the historical analogy test of Bruen yet does not embrace fully the views of the three Soviets.
But he has to say he does if he also wants to disagree with Barrett that “principle” not analogy is what matters.
????? Gorsuch never mentions Barrett by name or any part of her opinion – which isn’t much different than her theorizing on time periods in the Bruen decision. Much less a disagreement between the two that you apparently have found in his opinion. Where did you find that disagreement?
When reading Barrett’s opinion, you would notice Barrett was in disagreement with basing originalist analysis of the Second Amendment on anything beyond the time of the founding. There’s a frozen moment in amber moment for you: not just existing laws and regulations frozen, but the weapons existing in that period of time frozen in amber as well:
In Bruen, the Court took history beyond the founding era, considering gun regulations that spanned the 19th century. I expressed reservations about the scope of that inquiry but concluded that the timing question did not matter to Bruen’s holding. It bears emphasis, however, that my questions were about the time period relevant to discerning the Second Amendment’s original meaning
And later Barrett, for part of her opinion she was a momentarily adrift originalist, having a problem with specific analogues – specific analogues that Thomas in his dissent pointed out were not present in this decision:
Besides, imposing a test that demands overly specific analogues has serious problems. To name two: It forces 21st-century regulations to follow late 18th-century policy choices, giving us “a law trapped in amber.” (NB… oh no, no more guns if they aren’t found trapped in the 18th century amber!) And it assumes that founding-era legislatures maximally exercised their power to regulate, thereby adopting a “use it or lose it” view of legislative authority. Such assumptions are flawed, and originalism does not require them.
As for your belief that Barrett was defending Bruen and discussion of Bruen because principle not analogy is what matters, Barrett wrote that Bruen was about ‘analogical reasoning’ and that is what revealed the principle:
“Analogical reasoning” under Bruen demands a wider lens: Historical regulations reveal a principle, not a mold.
A wider lens used in Bruen to reveal the principle – referring to a longer time period rather than just limited to the 1700’s as she wrote having reservations about the court doing in deciding Bruen – the “amber period” you have concluded what Gorsuch wants. Gorsuch’s opinion on “trapped in amber” is at least as much originalist as Barrett who had reservations about parts of the Bruen decision then and she expresses them here again.
Gorsuch stated:
we seek to honor the fact that the Second Amendment “codified a pre-existing right” belonging to the American people, one that carries the same “scope” today that it was “understood to have when the people adopted” it.
When the people ratified the Second Amendment, they surely understood an arms-bearing citizenry posed some risks. But just as surely they believed that the right protected by the Second Amendment was itself vital to the preservation of life and liberty.
We have no authority to question that judgment. As judges charged with respecting the people’s directions in the Constitution—directions that are “trapped in amber,” see ante, at 7—our only lawful role is to apply them in the cases that come before us. Developments in the world may change, facts on the ground may evolve, and new laws may invite new challenges, but the Constitution the people adopted remains our enduring guide.
If changes are to be made to the Constitution’s directions, they must be made by the American people. Nor is there anything remotely unusual about any of this. Routinely, litigants and courts alike must consult history when seeking to discern the meaning and scope of a constitutional provision. And when doing so, litigants and courts “must exercise care.” See post, at 3, n. (BARRETT, J., concurring).
I don’t see anything in that to disagree with. In fact, it looks pretty originalist/textualist to me.
I think the only real disagreement between Barrett and Gorsuch is in your mind, particularly when originalist thought holds that judges do not make new laws and have no authority to question the the judgement of the people who ratified the Second Amendment – and Barrett concurs with Gorsuch that courts must take care when messing around with constitutional rights like the Second Amendment.
And this is where again I just don’t know where you’re coming from:
So he made a big deal of how this was a facial challenge, saying it was the most difficult kind to win.
HE made a big deal of it? Barrett referred to it as a facial challenge in her opinion. Every justice concurring with the majority decision also made a big deal out of it – the majority opinion references facial challenges at least four separate times. But you’re taking issue with Gorsuch – and not the rest?
The majority opinion that Barrett signed onto dwelled on it being a facial challenge at times – Gorsuch didn’t write it, he just voted for it as Barrett did. A facial challenge in law is a type of challenge. It is one of the hardest ways to win a constitutional challenge – that is not a personal opinion from Gorsuch; it is simply fact.
He should have dissented.
Achieving nothing but an 8-1 decision changing to a 7-2 decision. And the concurring opinions of Sotomayor, Kagen, and Jackson where they wrote their attacks on Bruen, Heller, and the Second Amendment as though their opinions were established fact would gave gone into the court record unchallenged and repudiated. The shared opinions of three concurring justices attacking Bruen, Heller, and the Second Amendment left untouched in this decision like a minefield – waiting for a future SCOTUS controlled by Soviet Democrats to reference them in a decision minimizing or throwing out those decisions and the Second Amendment.
Outstanding.
Meanwhile, no statement that Barrett should have also dissented? No statement that Kavanaugh should have also dissented. Just Gorsuch? Why did you choose to single out only him?
Because Gorsuch didn’t dissent, we have another concurring justice, Gorsuch, taking great care to demolish these three judges’ attacks on those decisions and the Second Amendment. Also taking great care to write that this court and all judges are constitutionally prohibited from legislating from the bench, that the ratification of the Bill of Rights and Second Amendment must be respected rather than the opinions of people living today, whether or not they’re judges or legislators wanting to do away with the Second Amendment.
And finally, ensuring to state that a similar case coming before the court in future may like the surety laws Roberts used writing this opinion, lead to a finding that in that case the government cannot constitutionally temporarily suspend Second Amendment rights as has been done in this case. Perhaps best of all, stating that this decision does not mean that this section of law that prohibits people from Second Amendment rights due to group classification is necessarily constitutional to begin with. It may not be constitutional – that just wasn’t the question put before the court that led to this decision.
When I read all of these individual opinions and imagine how many times drafts and then revised drafts keep going around the court… I wonder of Thomas and Gorsuch decided: “You write the dissent; I’m going to concur and then use my concurring opinion to counter every single attack on Bruen, Heller, the Second Amendment made by these three in their concurring opinions. Doing so while while condemning judicial activism, pitching for originalism, and laying out a counter groundwork in future striking down this entire statute which removes Second Amendment rights from Americans by the classes they fall in to.
But perhaps that’s a bridge too far.
OAD, while Gorsuch did not refer to Barrett, he said explicitly, in a passage you quoted, that discerning a “principle” is NOT what Bruen allows for.
And Barrett’s “wider lens” is not referring to an extended time period but to the act of moving beyond the need for a specific historical analogy to the discovery of a “principle” that is wider than any specific law or regulation.
Gorsuch wants to reject this, which forces him to say, contra Thomas, that surety and affray are valid analogies. Yet he never says why Thomas is wrong. He, like Thomas, is seeking to preserve the historical analogy standard, which Barrett and the others have moved beyond.
John, the problem is that in the real world you would have had Rahimi, a man that shot at his girl friend, shot at another woman and shot at another man, walking around with his gun UNTIL he was convicted. I am sure you are against the no-bail laws in NY, as am I, well this is just the same idea, you are allowing a known danger to remain a danger due to some false idea about the sanctity of the 2A. Notice I said False idea, I too support the 2A, but as someone far smarter than me has said, “the Constitution isn’t a suicide pact”.
in the real world you would have had Rahimi, a man that shot at his girl friend, shot at another woman and shot at another man, walking around with his gun UNTIL he was convicted.
This all happened in Texas, not in NY, so I am missing the connection to the NY no-bail laws. I also don’t know anything about how law enforcement functions in Tarrant County Texas. It does appear that this drug dealer enjoyed a pretty busy crime spree of violent offences in Texas until finally being hit with this charge relating to violating the domestic violence order.
Looking at the background of the decision, here in Montana there would be at least three attempted murder charges alone. She swore an affidavit that after assaulting her he fired a handgun at her or a witness as she fled – an affidavit that he did not contest. But the police didn’t indict him on any number of felonies i.e. assault, reckless endangerment, etc. (I don’t know anything about the Texas criminal code).
A few months later he threatens a different woman with a gun while his Texas gun license has been revoked; police charge him then with aggravated assault with a deadly weapon. They don’t add on a similar charge for the original aggravated assault on his girlfriend, nor charge him with having the gun without the required license, nor with being in violation of the restraining order.
They then determine that after the restraining order, Rahimi drove to one of his customers’ houses and shot into it – but police didn’t charge him with that. Then he drives through a residential neighborhood firing the gun he isn’t supposed to possess in the air – but police don’t charge him with that. Then the next day he gets into a collision with another vehicle, gets out and shoots at the other driver in the accident – but police didn’t charge him with that. A few weeks later in a road rage incident he cuts across oncoming traffic to chase another vehicle and then fires that the vehicle he was chasing and another vehicle – but police didn’t charge him for that. And finally, after Rahimi pulls the gun he isn’t supposed to have and fires shots into the ceiling of a restaurant when it refuses a friend’s credit card, police get a search warrant for weapons and while doing that they find a copy of the restraining order.
And finally, after that, the decision says Rahimi was indicted on ONE crime from this lengthy little violent crime spree: possessing a firearm while subject to a violence restraining order. No aggravated assault with a deadly weapon charges; not even one for any of the other instances. Nothing about possessing firearms without the required Texas gun license at the time.
I don’t see the rational for supporting infringements on the 2A throughout the entire country because there are a few jurisdictions like where this occurred in Texas that have chosen NOT to use the far less infringing means to deal with criminals like Rahimi i.e. arrest and jail while indicting each time they commit a violent offense. But instead prefer to deal with government unwillingness to enforce the law by instead infringing on ALL Americans’ 2A rights rather than deal with individual criminals by applying existing felony lies.
Lets choose collective punishment for all Americans with national infringements on 2A rights instead of punishment for individual criminals like Rahimi because of how police in these jurisdictions let criminals like Rahimi slide.
The constitution isn’t a suicide pact, but a lot of Americans are willing to engage in a suicide pact for the 2A for the Soviet Democrats and their justices currently on SCOTUS.
Instead, he (Thomas) argued, and the other justices acknowledged, that this test was being abandoned
That particular part of your analysis is completely wrong.
Not one justice whether Republican appointee or Soviet Democrat appointee wrote they were abandoning Bruen – even the Three Soviet Sisters wrote (and whined) that they were applying the Bruen test. Not a single word from any of those three that they were abandoning Bruen. What they wrote in their “concurring” opinions is that Bruen was fatally flawed and they need to go back to prior to Heller, when it was supposedly settled law that there was no individual right to a firearm. A time when and judges like themselves could do a constitutional test of a law affecting Second Amendment rights by deciding whether what the law claimed to accomplish was more important than Second Amendment rights.
The only thing that comes close to what you suggest is Gorsuch’s concurring opinion that said he and Thomas only disagreed on whether the surety and affray historical laws met the definition of the type and kind of historical legislation test they all signed off on in Bruen. Thomas dissent said it didn’t (I believe he is right); Gorsuch’s concurring opinion wrote that it did.
Barret just served up another round of “at what exact time in Constitutional history is the cutoff for what can be used for historical interpretation” – pretty much an edited copy of her concurring opinion earlier in the Bruen decision.
And did nothing to supposedly define a new approach that also does not exist, just as the other justices did not abandon the Bruen test as you claim they did.
Whats hilarious is, i said the exact same thing as john, but i did it with 9 words.
You did it with 9 words but made an a$$ of yourself. That is nothing new.
That Thomas noted there is no historical precedent in any way to support it was correct. Facts , not feeling here.
That’s what I think too. Which is why this decision changes the meaning of Bruen in a significant way. It’s now conceivable that the courts will start deferring to legislative determinations that categories of individuals pose a credible threat to others and so can be disarmed, based on a “principle” discerned by judges from a variety of different historical practices.
You are atleast partly correct – SEVERAL SCOTUS decisions have atleast partly ignored Bruen encouraging lower courts to test the limits.
But on several important occuasions SCOTUS has returned to Bruen without acknowledging that it had ever deviated.
The result is various states and lower courts HOPING that their egregious violations of peoples rights will sneak through.
This is pretty typical of the roberts court and roberts specifically. Every single decision tends to be a one-off.
Roberts found that PPACA was constitutional only under the narrowest of grounds, then when those grounds disappeared he manufactured a new reason to uphold it.
SCOTUS has made several good 2nd amendment decisions.
It has also ignored those decisions several times when expedient.
The Supreme Court decisions decided nothing except to set the stage for producing more laws and cases. It would have been better not to take that case. I believe Clarence Thomas believes decisions should make the rule over the land clearer, and when in doubt, do not let such uncertainty and fractured thinking destroy the Constitution.
Daniel posted: Which is why this decision changes the meaning of Bruen in a significant way. It’s now conceivable that the courts will start deferring to legislative determinations that categories of individuals pose a credible threat to others and so can be disarmed, based on a “principle” discerned by judges from a variety of different historical practices.
I disagree for a number of reasons after reading the content of the concurring decisions.
1. First, Roberts took great pains to make this a decision only about a TEMPORARY removal of Second Amendment rights while under a court’s restraining order. There is lot to dislike in the holding concerning the rational and what they find to be precedent legislation (Thomas pretty much covered it all in his dissent).
That said, unless all future legislative determinations that concern you are about temporary removals, this leaves little for lower courts to take advantage of in the aftermath of this decision while Bruen is still in place.
Held: When an individual has been found by a court to pose a credible threat to the physical safety of another, that individual may be TEMPORARILY disarmed consistent with the Second Amendment.
2. All three Soviet Democrat Birthing Person justices raged in their concurring opinions that Bruen was improperly decided and a threat to proper judicial Second Amendment analysis – but they said the fact that it existed was forcing them to comply with Bruen and use the specific test they developed in SCOTUS to hold in concurrence with the majority.
Nothing in any of their decisions even suggested that lower courts should start deferring to legislative determinations about categories when they themselves said Bruen prevents them from doing that. Instead they complained about what lower courts could no longer do in the way of tests due to Bruen. At least one of them whined that this decision was likely to make the impact of Bruen even worse in their mind. Judicial theatrics? Perhaps.
3. Gorsuch in his concurring opinion first took a wrecking ball to the theories posed by the three Soviet Democrat justices regarding Bruen. His opinion reminded all reading it that despite all three going at length to complain about Bruen (and Heller), by their concurring votes rather than voting in dissent, they affirmed that constitutional tests of Second Amendment questions before the court were properly done using the tests this same court established in Bruen. No room provided for lower courts trying to insert legislative determinations.
4. Gorsuch reinforced with Thomas that all judges must stay in their lane following the requirements laid out for them in the Constitution and properly apply the constitution, not legislate from the bench by bringing their biases, politics, legislative determinations, etc into the question. He most likely did that after Justice Jackson in her assenting opinion complained that Bruen no longer allowed judges to give deference to legislative intent as a priority over the Second Amendment right. No room for lower courts trying to insert legislative determinations there.
5. Gorsuch addressed your concern about determinations about categories of individuals by holding that this decision did not preclude later SCOTUS decisions finding that the Second Amendment restriction they have allowed to stand in this case can be rejected by SCOTUS at another time in another case. In short Gorsuch said that this law, §922(g)(8), is not absolute nor is it a permission slip for categorical denial of Second Amendment rights (which is exactly what this statute does, although that wasn’t the question put before the court in this case):
We do not determine whether §922(g)(8) may be constitutionally enforced against a person who uses a firearm in self-defense. Notably, the surety laws that inform today’s decision allowed even an individual found to pose a threat to another to “obtain an exception if he needed his arms for self-defense.” Ante, at 12; see also post, at 23 (THOMAS, J., dissenting).
Nor do we purport to approve in advance other laws denying firearms on a categorical basis to any group of persons a legislature happens to deem, as the government puts it, “not ‘responsible.’”
6. Where Sotomayor, Kagan, and Jackson attempted to lay a foundation for later weakening or overturning Bruen and/or Heller, Gorsuch countered that by saying that this decision did not mean that future decisions must find all such restraining orders prevent the subject from being armed – just as the surety laws used to justify this decision did not automatically remove the right to firearms. He further held that this decision regarding one individual and one situation under one subsection, 922(g)(8), did not mean that a later SCOTUS decision considering removing Second Amendment rights from Americans on a categorical basis (as much of Section 922 does) is unconstitutional.
I think that between Gorsuch and Thomas, if anything Bruen is strengthened. And while the three hoped to build a basis to later attack Bruen, Gorsuch in countering that made it more likely that a future decision would find all of Section 922 unconstitutional.
The concurring opinions from Go Along To Get Along Kavanaugh and that huge disappointment Barrett… between them and Roberts I was left with an image of fighter with a spine of yellow jello.
All that said, what lower courts do and what SCOTUS chooses to allow them to do can make everything meaningless, whether the issue is the Second Amendment or anything else.
We’ll see. The point I am making is that the historical analogy test of Bruen is now dead. The test now is whether historical restrictions considered in toto can give rise to a “principle” that supports a modern day restriction. As Barrett says, the question of how general the principle can be and what historical period should count are now the issues that will be considered. The search for a specific historical analogue is no longer critical. Whether categorical restrictions will now survive depends on what principles judges discern in future cases. For that reason, the specific narrow holding here is less significant than the introduction of more flexibility for judges.
Daniel posted:
The point I am making is that the historical analogy test of Bruen is now dead.
No it is not. And your opinion is just that: opinion, not fact.
Where in either the main decision or the concurring opinions do you find any mention of the Bruen test being dead. Copy and past that for all to see.
The only difference here is the majority held that Roberts combining a mishmash of the affray and surety laws was good enough to serve as an analogy to §922(g)(8). The majority argued that combination was close enough to Bruen test criteria to save §922(g)(8). Thomas, properly I believe, said that it did not.
As a personal opinion which I have no evidence for, the other Republican appointed judges went along with accepting Roberts’ test despite Thomas dissent simply to make life easier for themselves in exchange for what they thought/hoped would be minimal damage to the Constitution.
Had the majority thrown out §922 as unconstitutional, the rage mobs coming at them from both the Soviet Democrat and Republican side would have made what they went through before, during, and after Dobbs look like a kindergarten sandbox dispute.
All while the Soviet Democrats and their Mainstream Media Marxist spokesmen continue claiming this is a GOP court that gives the GOP everything they want, striking down abortion laws and gun laws alike.
The Bruen test is still there, and Barrett pretty much copying and pasting her assenting opinion concerns from earlier in Bruen has no impact now than it did for Bruen in the aftermath of the decision.
Justice Clarence Thomas was the only right statement in free Republic. If a person is being threatened by a criminal then he who is threatened should buy himself a gun and learn to use it. If a community of supposedly law abiding citizens sees that there is an infection raging amongst the community, then those citizens should inject the curing medicine into that infection.
Anonymous coward: Justice Thomas’ dissent on this particular decision is as wrong as it can possibly be.
I don’t believe for one second that you actually took the several hours to actually read and understand the reasoning being put forward in the decision – much less bothered to read Justice Thomas’ dissent. We could suspect that if you had, you could offer some sort of rational explanation to support your claim regarding Thomas’ dissent.
But let’s give you a shot at redeeming yourself by explaining where you find the error in Thomas’ dissent relating to just one small part of it:
The combination of the Government’s sweeping view of the firearms and ammunition within its regulatory reach and the broad prohibition on any conduct regarding covered firearms and ammunition makes §922(g)(8)’s burden unmistakable: The statute revokes a citizen’s Second Amendment right while the civil restraining order is in place. And, that revocation is absolute. It makes no difference if the covered individual agrees to a no-contact order, posts a bond, or even moves across the country from his former domestic partner—the bar on exercising the Second Amendment right remains. See United States v. Wilkey, 2020 WL 4464668, *1 (D Mont., Aug. 4, 2020) (defendant agreed to Florida protection order so he could “‘just walk away’” and was prosecuted several years later for possessing firearms in Montana).
That combination of burdens places §922(g)(8) in an entirely different stratum from surety laws. Surety laws preserve the Second Amendment right, whereas §922(g)(8) strips an individual of that right. While a breach of a surety demand was punishable by a fine, §922(g)(8) is punishable by a felony conviction, which in turn permanently revokes an individual’s Second Amendment right. At base, it is difficult to imagine how surety laws can be considered relevantly similar to a complete ban on firearm ownership, possession, and use.
This observation is nothing new; the Court has already recognized that surety laws impose a lesser relative burden on the Second Amendment right. In Bruen, the Court explained that surety laws merely “provide financial incentives for responsible arms carrying.” 597 U. S., at 59. “[A]n accused arms-bearer ‘could go on carrying without criminal penalty’ so long as he ‘post[ed] money that would be forfeited if he breached the peace or injured others.’”
Despite the foregoing evidence, the Court insists that surety laws in fact support §922(g)(8). To make its case, the Court studiously avoids discussing the full extent of §922(g)(8)’s burden as compared to surety laws.
Now… feel free to explain to everybody why Thomas is wrong and the majority are right in claiming §922(g)(8) is justified by being similar to surety laws and their penalties as their chosen historical precedent.
How long should we wait for your explanation, Anonymous coward?
OAD, you are exactly right. And Thomas also showed how affray laws were also not relevantly similar. Instead, the Court combined non-analogues to invent a “principle” that it then used to support its decision. Barrett’s concurrence describes this precisely. The majority opinion mentions but does not highlight this, to preserve the notion that they are simply applying Bruen.
As applicable today as in the 1960s but perhaps more so today
🎶 And how many years can some people exist
Before they’re allowed to be free?
Yes, and how many times can a man turn his head
And pretend that he just doesn’t see?
The answer, my friend, is blowin’ in the wind
The answer is blowin’ in the wind
Yes, and how many times must a man look up
Before he can see the sky?
And how many ears must one man have
Before he can hear people cry?
Yes, and how many deaths will it take ’til he knows
That too many people have died?
The answer, my friend, is blowin’ in the wind
The answer is blowin’ in the wind 🎶
– Bob Dylan, 1963
Then sitting-Pres. Obama twice committed first degree murder, using two separate mid-east drone strikes to kill two American citizens without judicial charge (one death per strike,) father and age 16 (child) son both named Anwar Al-Awlaki.
It’s interesting that murderer Obama hung a medal around the neck of Bob Dylan, the composer of Blowin’ In The Wind and dozens of other classic anti-establishment songs. I presume Bob knew about Obama’s murders when Bob received his award, but he was not about to refuse the award solely because the sitting POTUS was a depraved, establishment, war mongering, scum of the earth.
On a separate note, Bob Mueller would never miss his chance to confirm his joy in Obama’s murders: Mueller told Obama he could also legally commit first degree murder on American soil. And all the blood-lusting war mongers yelled in unison, “Hallelujah!”
Trump would never do it, but oh the joy if he charged that sick F Obama with murder, the trial being in, oh maybe, DETROIT? (Both Awlakis were Muslim.) Even if Obama won on jury nullification, they could maybe convict downstream personnel including the drone operator.
Professor Turley has a succint and informative article on New York’s legal wasteland in The Hill here:
https://thehill.com/opinion/criminal-justice/4734339-at-the-supreme-court-two-cases-lay-bare-new-yorks-legal-wasteland/
Bragg and James together with judges Merchan and Engoron have effectively been undermining load bearing supports in the New York legal system. No business concerned with survival will risk assets on the evidently woobly, unpredictable, grasping, politicized lawless courts of New York. They may or may not succeed in destroying Trump but they have gone a long way toward destroying New York. They seem like trying to outdo Mohammed Atta. Maybe they have but it could take a little while for the rest of the buildings to collapse. It’s a process.
In possibly related news a new stock exchange is being established in Texas and designed to compete with the NASDAQ. If successful perhaps a competitor to the NYSE can get underway as well. And here I thought Escape From New York was only a movie.
It is unlikely that Businesses will flea NY en masse – that does not alter the fact that the consequences of this will still do great harm to NY.
Your analysis is correct and exactly what businesses will do.
Many businesses will decide that the risk of their being in Trump’s posistion is low. But even there ANY risk will result in different business decisions – such as factoring that small increase in risk into prices.
But a small number of businesses and Billionaires will just leave NY – that was going on BEFORE these cases it will accelerate.
AnheiserBusch was damaged to the tune of Billions of dollars, by an unorgnaized boycott that has reduced the value of AHB by 25%.
Disney’s value remains 50% lower than it was before it started sticking its nose into politics.
NY has been losing capital for a long time – expect that to accelerate.
I expect that Jud EnMoron’s decision will const NY several Billion in tax revenue per year into the future.
That cost will continue – even after the decision is reversed.
John Say: “I expect that Jud EnMoron’s decision will const NY several Billion in tax revenue per year into the future.
That cost will continue – even after the decision is reversed.”
I believe you are right. The probable costs of having to fight off a corrupt government could destroy a business, or a person, even when the attacks are ultimately overturned on appeal. I suspect that is a factor in the lawfare against President Trump, stopping or crushing him now regardless of the law to keep him from regaining the White House. If they can keep him from winning the election they won’t really care if their cases are ultimately overturned.
The most significant factor in almost every economic decision is RISK.
Increase the risk and two things happen – fewer people take the risk, and those that do demand a higher return.
The profits of McD’s franchises are quite low – because the RISK is quite low. But altering the price McD’s must pay for labor raises prices, AND increases risk – the higher McD’s prices are the more they are competing with Applebees or Olive Garden not Burger King. That inreases their risk and reduces the number of people willing to invest in McD’s – particularly at locations that a re marginal.
The vast majority of NY Businesses are going to correctly look at the Trump cases and say – this will not happen to me.
The few that decide that it might – will leave NY.
But of those that stay – they will STILL factor in the small probability this WILL happen to them and that WILL result in fewer deals and greater costs.
There is as an example one trivial outcome of the EnMoron decision – and that is that businesses will REFUSE to provide lenders any valuation of their assets.
I am less sure of the direct impact of the Merchan decision. Though I can tell you even though I do NOT live in NY, the decision has given me even MORE reason not to keep traditional books in my businesses.
I primarily manage multiple small businesses from BANK RECORDS. That is harder to do as the scale of the business increases.
But there is no risk of being accused of falsifying records that you did not produce.
John: “There is as an example one trivial outcome of the EnMoron decision – and that is that businesses will REFUSE to provide lenders any valuation of their assets.”
I hadn’t thought of that but it sounds right. I suppose that valuations could always come with a disclaimer that they are only wishful thinking and not to be relied upon and that lenders alone have the duty to determine actual values. Lenders do anyhow but the borrower’s estimate could be useful in other ways, providing there is an Engorgeron Disclaimer for protection.
“But there is no risk of being accused of falsifying records that you did not produce.”
John, not surprisingly, that idea has already permeated many sectors of the economy. Say, write and do less, and one will have a reduced risk. Using healthcare as a known example, we see that in physician notes, the very academic-minded physicians, knowing all the potential diagnoses from a set of facts, might be at more risk than another because his notes create more diagnoses that cannot be excluded. He would be more suit-proof if he didn’t think of them and write them down. It is the same almost everywhere, including hiring practices and renting apartments, since the additional words are openings for trouble. One would hope physicians communicated better about their mistakes (not malpractice but a better alternative) so that others learned from them. But in today’s environment, that important avenue of learning is nearly impossible.
The most satisfying point of this case, along with several others in this tern, is that the Court is reaching nearly unanimous decisions on many of these cases. And whether one feels the decision is right or wrong, it is showing that the Court is not acting based upon political motivations.
Courts penalize the guilty routinely.
All decisions must be unanimous.
The law is nothing if not clear.
Impeachment was provided in the Constitution to address dissent.
The number of Justices must relate solely to workload, not concurrence or dissent, as was the case in 1789 when the Supreme Court consisted of six Justices.
Then i guess the law is nothing.
Are citizen-convicts in prison allowed to posses arms?
Good observation. While this decision is WRONG and Thomas is RIGHT in his dissent, There is no evidence this decision was based on left/right politics.
I would further note that While Thomas is RIGHT on the constitution, and right on the absence of a historic tradition for THIS specific constitutional infringement,
He is absolutely Wrong in that the court has allowed more egregiious infringements of rights on even weaker foundations and many of those remain good law.
The 8 Justices who decided this Wrongly did so consistent with centuries of similarly bad constitutional decisions abridging rights with little due process.
Kevin Beck posted: The most satisfying point of this case, along with several others in this tern, is that the Court is reaching nearly unanimous decisions on many of these cases.
I am almost certain that you did NOT actually read this SCOTUS decision before posting this. Particularly after the THREE “assenting” opinions that were used to provide encompassing dissenting attacks on the Second Amendment and the prior Bruen decision from the racist Wise Latina Sotomayor (joined by Kagen) and the Woke Questioning Birthing Person Jackson (who for this decision has suddenly developed the ability to identify what a man is, and what a woman is – unlike during her confirmation hearings).
If the wording of those “assenting” opinions aren’t political motivations straight out of Soviet Democrat headquarters – including Sotomayor’s race baiting and attacks on males – then all they lack is a label identifying the political party who own runs on those politics.
What they are is what you are going to see when a Soviet Democrat police state fascist dominated SCOTUS has a chance to throw out both the Heller and Bruen decisions.
Let me help you wake you up from your dangerous assumption with some quotes from Questioning Birthing Person Justice Jackson’s “assenting” opinion:
This case tests our Second Amendment jurisprudence as shaped in particular by New York State Rifle & Pistol Assn., Inc. v. Bruen, 597 U. S. 1 (2022). I disagree with the methodology of that decision; I would have joined the dissent had I been a Member of the Court at that time.
The message that lower courts are sending now in Second Amendment cases could not be clearer. They say there is little method to Bruen’s madness.1 (NB she/it/questioning gives case references to three California and one NY state decisions crying about Bruen forcing them to recognize the Second Amendment)
After all, before Heller, “[t]he meaning of the Second Amendment ha[d] been considered settled b ycourts and legislatures for over two centuries,” and “judges and legislators . . . properly believed . . . that the Second Amendment did not reach possession of firearms for purely private activities.” (NB: That’s the Birthing Person justice quoting the DISSENT of Justice Stevens in the Heller decision.)
Maybe appellate courts, including ours, will find a way to “[b]rin[g] discipline to the increasingly erratic and unprincipled body of law that is emerging after Bruen.” (NB: here Justice Birthing Person is quoted from two long time Second Amendment deniers at the Yale Law Review who claim no individual right to arms exists)
If you don’t see anything political in those “concurring” separate opinions, along with laying the foundation to repeal Bruen and Heller when there’s a Soviet Democrat majority SCOTUS (as Stevens repeatedly did during and after Heller before the Birthing Person Justice), then you need to start drinking coffee before reading SCOTUS decisions.
Or actually read the opinion before posting – because given the level of political and anti Second Amendment retoric in these “concurring” opinions from these three Soviet Democrat justices, nothing could be further from being close to unanimous belief in the Second Amendment or apolitical in nature.
Off topic but always relevant:
https://www.msn.com/en-us/tv/news/former-gov-cuomo-hits-trump-conviction-if-he-wasn-t-running-case-would-ve-never-been-brought/ar-BB1oHCwH?ocid=msedgdhp&cvid=0741827d28c444abb242e991fe691621&ei=20
This abuse of power by NYC Democrats will not age well.
Forget Hunter Biden!
Look What Turley Writes!!
The Supreme Court just voted 8-1 that the law is indeed constitutional and that a court can temporarily deprive citizens of the right to possess weapons for the protection of others
The Texas trial court found that Rahimi was not only engaged in “family violence” but that additional violence was “likely to occur again in the future.”
Rahimi was not exactly a poster child for lawful gun owners and the Court failed to see the suspension of his gun rights as an unconstitutional deprivation.
Months later, Rahimi threatened a different woman with a gun and was charged with aggravated assault with a deadly weapon.
While the majority found such temporary limits were consistent with historical practices, Justice Thomas,
author of Bruen, objected that the Court could not cite “a single historical regulation”.
………………………….
With efficient editing, Turley makes a powerful case for common sense gun regulations.
By all accounts Rahimi was a disaster waiting to happen. Miraculously he hasn’t killed anybody ‘yet’; but not for lack of recklessness.
Yet Clarence Thomas isn’t disturbed by Rahimi’s mindlessness. Instead Clarence Thomas frets that restraining orders have no roots in 18th Century law!
With this dissent Clarence Thomas raises an obvious question: ‘Why is an 18th Century mind sitting on the court?’
Seriously! Professor Turley successfully argues that ‘X’ number Rahimi’s are out there all around the country. And we don’t want them armed!
Therefore the Bruin Decision, which Clarence Thomas wrote, totally disregards all the Rahimi’s out there.
Bruen will go down as the most aggressively ignorant decision the court ever issued. For years the court will have to defend Bruen while chipping away at it.
Clarence Thomas is sure to go down as a sour apple whose real intelligence was greatly overrated.
The question is not who done what, retard. The question is not “what makes sense” retard. The question is not “should he or shouldnt he” ya spastic.
The question is constitutionality. Period.
The only thing you got right is that Bruen is unconstitutional horse shit.
Hey, is Alito done fvcking your wife, yet?
Another cowardly Anonymous Soviet Democrat Bolshevik Biden Birthing Boy:Hey, is Alito done fvcking your wife, yet?
Another projecting useful idiot that claims to be unaware that it was The Family Cashier Formerly Known As The Crackhead kid who was fvcking his dead brother’s wife before his brother’s body was cold in the ground.
Which happened after The Big Guy was fvcking his teenage daughter in the shower during those “inappropriate showers”.
And not to be compared to eight years of Blow Jobs Bill Clinton and then eight years of Bolshevik Barack allowing a known pedophile and serial rapist in the White House to hang around their daughters – knowing that he was still out there fvcking other peoples’ young girls.
Sophomoric projection of their own evil… Soviet Democrats and their Marxist Useful Idiot grooming perverts do it like it’s a mark of honor.
You lieberals are predictable and pathetic in your hate of Clarence Thomas.
Another cowardly Soviet Democrat Police state fascist attempted to channel Justice Birthing Person Jackson’s “concurrence” whining and snivelling with this:
Bruen will go down as the most aggressively ignorant decision the court ever issued. For years the court will have to defend Bruen while chipping away at it.
Oh yeah! Dredd Scott wasn’t aggressively ignorant because it allowed Democrats to not only disarm black Americans despite the Second Amendment. But in a double victory, found black American slaves were just chattel property. In Dredd Scott, there SCOTUS properly got it done for Democrats.
No, it was Bruen, which allowed now free black Americans after Dredd Scott was reversed the right to bear arms for their defense against the violent felon Soviet Democrat identity politics voter class that was aggressively ignorant!
Bruen is hated by Soviet Democrats because it allowed black Americans to bear arms, whereas Dredd Scott decided that black Americans could not possess firearms. Therefore, Bruen is “aggressively ignorant” – while Dredd Scott couldn’t have been better written if done instead by Sotomayor, Kagan, and the author’s favorite, Justice Questioning Birthing Person Jackson.
It is helpful that while this feckless Anonymous coward was channeling Justice Birthing Person Jackson (who isn’t sure what having a vagina means), he also showcased the intentions of the Soviet Democrat justices on SCOTUS. All gave similar “concurring” decisions: they signaled their intention is to ultimately reverse both the Bruen and Heller decision. And their “concurring” opinions are the groundwork to do that.
Let’s have a look at how closely this cowardly Anonymous Soviet Democrat is channeling Justice Birthing Person Jackson’s occurance:
there is little method to Bruen’s madness… Maybe appellate courts, including ours, will find a way to bring discipline to the increasingly erratic and unprincipled body of law that is emerging after Bruen.
So close that it seems quite possible that this cowardly Anonymous Soviet Democrat police state fascist is actually Justice Questioning Birthing Person Jackson itself/herself!
Clarence Thomas is sure to go down as a sour apple whose real intelligence was greatly overrated.
Oh yeah… unlike the Soviet Democrats’ Justice Questioning Birthing Person Jackson – the one who apparently possesses a vagina (due to the fact it/she’s given birth to children) – but in her confirmation hearings testified that it couldn’t define what a woman is even by taking a look down inside it’s/her panties.
But Thomas is apparently the one who lacks intelligence… not Justice Questioning Birthing Person Jackson who this cowardly Anonymous Soviet Democrat is acting as a doppelganger for with this post.
ATS – your rant here will go down as one of the more ignorant ones.
There will ALWAYS be X Rahimi’s out there – at any given time in this country there are about 1% of the people who are violent criminals.
We STILL expect them to be convicted by a jury beyond a resonable doubt before we abridge their rights.
This is trivially simple – any right that can be plowed under “temporarily” or “in an emergency” – particularly as in the case of Rahimi WITHOUT proof beyond a reasonable doubt that a crime was committed – then there are no rights.
The least rights you have personally are the least rights you are willing to allow others.
Like ALL left wing nuts you confuse what you FEAR with what has been proven.
We do not have rights only so long as no one is afraid that we might misuse them. We have rights until we have PROVEN that we will misuse them.
You rant about “18th century minds” – that would be the age of enlightenment that has created the fertile fields that have resulted in representative govenrment throughout most of the world.
We could use far more 18th century minds like that of Thomas, and Madison, and Jefferson and Adam’s and far fewer Roberts or Bragg’s or Sotomayors.
Of course Bruen disregards all the Rahimi’s out there. For TWO excellent reasons.
The rights of each of us are not conditioned on the good conduct of a few of the worst of us.
If they were no rights would exist.
The worst of us are going to engage in egregious misconduct regardless of whether their rights are protected or not.
You and the Justices seem to forget that Rahmine WAS denied of his right to posess firearms and STILL threatened harrassed and assaulted others.
So the only thing that lower courts ignoring the constitution accomplished was to abuse many peoples rights.
Every day dozens of people are obligated to turn over their property or become fellon’s based on ax parte procedingings in domestic courts with no jury and the lowest of possible standards.
SOME of those people – like Rahimi are bad dudes. But the overwhelming majority are not. Only a tiny portion of protection orders ever result in actual violence.
With very little if any change from today to before protection orders developed criminal teeth.
Again typical stupidity of the left.
You nut jobs beleive that manufacturing crimes results in LESS crime – how stupid can you be.
Nearly all of those who are subject to protection orders that require them to surrender their property, never commit a gun crime.
The very few who do – would have done so order or not.
Regardless it is NOT the creation of laws that reduces crimes.
It is the ENFORCEMENT of laws that does so.
We do NOT need more laws – we need far far less.
But we do need to enforce those we have.
When someone with a weapon threatens another with actual harm – charge them, convict them proving the charges beyond a reasonable doubt and send them to jail – and take away their guns.
What you do not get to do is jump into a court – alone, accuse someone else of misconduct and have he court take away their rights based on your vague allegations alone.
Pretty sure this is the same spastic idiot who keeps posting multiple responses to himself. My guess is this is another example. Lets see.
Yep, i thought so.
No, that’s not me
Yeah, it is !!!
It is definitely not me.
Thought so
Gotta say, Elvis, if these are examples of the quality of writing you do for “tv and film”, its easy to see why you are unemployed.
Who is Elvis ??
He left the building
No, I’m right here.
Thought so
ATS, you entirely miss the point of constitutional rights. But I guess that is excusable – as the justices did too.
You say a Texas Trial court found …. That is FALSE, A Texas Domestic (civil) court, found in an Ex Parte hearing that Rahimi was a danger.
Would you support taking away YOUR freedom – because judges in an exparte hearing heard from someone who FELT that you were a danger to them ?
The issue here has NOTHING to do with the 2nd amendment – even Thomas gets that wrong,
And EVERYTHING to do with requiring due process, before infringing on a constitutional right,
Before taking someone’s life, liberty or property.
Your Fears – founded or not that a person MIGHT int he future be dangerous are NOT sufficient to deprive someone of their rights.
The Rahimi case was a BAD case to use for this – because Rahimi LATER engaged in further violent acts.
But the error – of the lower courts, and of SCOTUS is using guesses about the future as the basis for depriving someone of rights in the present.
The fact that SOMETIMES those guesses prove correct is irrelevant.
We do not execute people because they have been accused of murder.
We deprive them of their life, because they have had their day in court, because their lawyers corss examined the witnesses against them, and presented their own evidence and a jury still found unanimously that they had committed a capital offenses AND that the correct punishment was forfeiting their life.
Put simply ALOT of due process is required for the state to infringe on a persons right to life.
The standard is lower for taking their property, but it is NOT supposed to be so low as to rest on the feelings of a domestic court judge in an ex parte proceding.
I do not think that ANYONE has a problem with baring Rahimi from the posession of firearms,
AFTER a criminal trial in which he is found guilty by a jury of crimes of violence.
Many of us would even support a lower standard.
What NO reasonable person Should support is depriving anyone of their rights in a civil proceding where they were not present, not represented, unable to present evidence, or cross examine witnesses, and where the standard of proof is abysmally low – no more than “I feel threatened’
Common sense implies using common sense. Our courts and the govt have upended common sense on its head. Brazenly they have contorted laws and created laws via agency dictates. Its people like you that give them this unholy unconstitutional power with such mockery of due process.
Another cowardly Soviet Democrat Anonymous Useful Idiot posted: With efficient editing, Turley makes a powerful case for common sense gun regulations.
The brand label for Soviet Democrat police state fascists is their ongoing use of their favorite Soviet fascist term “common sense gun regulations”.
Like the “common sense gun regulations” that have produced the murderous Soviet Democrat utopias like Baltimore, Chicago and similar blood soaked Soviet Democrat run hellhole states like DE, IL, MD, DC, etc.
Not one single Soviet Democrat police state fascist – especially the feckless Anonymous cowards – will attempt to explain why states like Idaho, Montana, etc without any of those “common sense gun regulations”, where you can legally carry a legally purchased belt fed machine gun down Main Street without so much as a permit, have murder rates far lower than the national murder rate and especially lower than their Soviet Democrat police state fascist run states.
Murder rates that are a half to a third the murder rate of Soviet Democrat utopias with “common sense gun laws” ( MD: 9.0/100k and Il: 6.6 versus ID: 2.0/100k and MT: 2.5/100k) – how is that?
And despite these constitutional states lacking those Soviet Democrat police state fascist gun laws, these states also have murder rates the same as or lower than the socialist Canadian provinces that they border to the north. Normally, Soviet Democrat police state fascists LOVE comparing Canadian gun laws and murder rates to America – but they certainly don’t like these state to province comparisons. They hate this comparison just as much as they hate comparing MT and ID to DC, MD, IL, etc.
Any rational adult explanation for why this is so? Any of you Soviet Democrat police state fascists with your anti-American hatred of the Second Amendment?
BTW… “With powerful editing” – what anti-Second Amendment comment are you attempting to insinuate Turley edited out, Anonymous coward?
Many criminals thought to have committed a violent act can be set free based on legal arguments proving the evidence wasn’t strong enough. Sometimes, it takes more than one murder to put a person away, yet we uphold the law. So should the Second Amendment be upheld.
Looking for rhetorical ways to amend #2 is inappropriate, especially when other remedies exist. The Supreme Court should not look for rhetorical ways to abridge the Second Amendment to satisfy the need to curtail significant threats. Instead, the court should focus on alternative ways of managing problems rather than destroying the intent behind the amendment.