Bruen/nysrpa strict/intermediate scrutiny and text/history ?

[gunsmith]

strict/intermediate scrutiny and text/history ?

heller or mcdonald was ruled "intermediate scrutiny" a concept I do not understand clearly - we had to use a legal term "incorporation" to address ridding the effects of cruickshank scotus case being used against us gun owners


Why did Thomas use text/history instead of strict scrutiny?

I was under the impression strict scrutiny was the "best" test.

Is it possible he is waiting to use it to slap down the next obstruction they throw his way?

[Pb]

Heller and McDonald didn't specify any level of scrutiny... they said handgun bans would violate all levels of scrutiny.  Lower courts (with very few exceptions) typically despise gun rights and started rubber stamping all horrible gun laws.  The Supreme Court let them get away with it for the most part.  We will see if the Supremes take any more cases, or if they still let lower courts crap all over the second amendment.  There are a few assault weapon cases sitting around waiting to see if the court will take.

I do not know the answer to the other part of your other question, and am curious to learn.

[JN01]

I'm guessing the 2A cases that SCOTUS has been holding awaiting a cert decision will be sent back to the District Courts to be re-evaluated taking Bruen into account.

[Hawkmoon]

strict/intermediate scrutiny and text/history ?

heller or mcdonald was ruled "intermediate scrutiny" a concept I do not understand clearly - we had to use a legal term "incorporation" to address ridding the effects of cruickshank scotus case being used against us gun owners


Why did Thomas use text/history instead of strict scrutiny?

I was under the impression strict scrutiny was the "best" test.

Is it possible he is waiting to use it to slap down the next obstruction they throw his way?

https://www.findlaw.com/legalblogs/law-and-life/challenging-laws-3-levels-of-scrutiny-explained/

The level of scrutiny is unrelated to whether or not the analysis is based on text or history. You are conflasting two different concepts.

In reality, any case involving interference with a fundamental constitutional right should be subject to strict scrutiny. Since Heller and McDonald, lower courts and circuit courts have been basically using a rational basis analysis and calling it intermediate scrutiny.

[Hawkmoon]

This may be informative:

https://www.law.cornell.edu/supct/cert/20-843

[gunsmith]

thanks!!

[Bogie]

I would really love to see Miller examined in today's arena. Given that the defense literally could not afford to be present, it's a wonder that it stood this long.

[Pb]

US versus Miller was a set up designed to attack the Second Amendment.

The original criminal (Miller) charged with the sawed off shotgun charge wanted to plead guilty.

The judge in the original case was an anti-gun ahole (wanted to ban pistols) who declared the NFA a "violation" of the Second Amendment with no comment whatsoever to kick the case up the Supreme Court.

There was no pro-Second Amendment case presented at all... as the lower court judge intended.  He wanted to have his "ruling" overturned to screw over gun rights.

The Supreme Court unanimously approved the NFA's prohibition on sawed off shotguns.  They added language indicating military weapons probably would be protected... which every single federal judge since then has ignored. 

In the history of RKBA in the 19th century, there were a lot of cases involving what kinds of weapons we had a right to own. Most of these involved bowie knife bans.  Most of these involved state level weapons prohibitions, as the Second was not considered to apply to the states by most courts.  A minority of these courts ruled that all weapons were protected by RKBA provisions.  Every single one of those courts ruled that military weapons were protected.

[MechAg94]

WATCH: Chicago Mayor Lori Lightfoot Screams, ‘F*** Clarence Thomas’
https://www.dailywire.com/news/watch-chicago-mayor-lori-lightfoot-screams-f-clarence-thomas

The article goes into Thomas' thoughts on "substantive due process".  I need to take time to read his opinion on both cases we have talked about.

Third, substantive due process is often wielded to “disastrous ends.” … For instance, in Dred Scott v. Sandford, the Court invoked a species of substantive due process to announce that Congress was powerless to emancipate slaves brought into the federal territories.

Thomas concluded:

… in future cases, we should “follow the text of the Constitution, which sets forth certain substantive rights that cannot be taken away, and adds, beyond that, a right to due process when life, liberty, or property is to be taken away.” Substantive due process conflicts with that textual command and has harmed our country in many ways. Accordingly, we should eliminate it from our jurisprudence at the earliest opportunity.

I found this link to a PDF talking about what substantive due process is. 
https://scholarship.law.duke.edu/cgi/viewcontent.cgi?article=1638&context=faculty_scholarship

[Hawkmoon]

The article goes into Thomas' thoughts on "substantive due process".  I need to take time to read his opinion on both cases we have talked about.
I found this link to a PDF talking about what substantive due process is. 
https://scholarship.law.duke.edu/cgi/viewcontent.cgi?article=1638&context=faculty_scholarship

Aha! So "substantive due process" must be what legislators are using to justify their claims that red flag laws and ex parte confiscation orders don't violate due process ...

Got it. Translation: "Interest balancing."