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Law barring people with domestic violence restraining orders from having guns is unconstitutional, court rules



I've explained this many times, but yet again it doesn't sink in. What part of the following are you unable to comprehend?:

Some have made the argument, bordering on the frivolous, that only those arms in existence in the 18th century are protected by the Second Amendment. We do not interpret constitutional rights that way. Just as the First Amendment protects modern forms of communications,... and the Fourth Amendment applies to modern forms of search, ... the Second Amendment extends, prima facie, to all instruments that constitute bearable arms, even those that were not in existence at the time of the founding. DC v Heller, page 8 [emphasis added]

Do you REALLY think that the First Amendment only covers documents written with a quill pen? Do you think that wiretaps can be done at will because telephones were unknown to the Founders? The Bill of Rights is not technology dependent, and the Second Amendment is no exception.

And before you whine about a "right wing court", the Massachusetts Supreme Judicial Court tried the "not available in the 18th century" ploy in the case Caetano v Mass. The Court unanimously rejected the notion:

 The Supreme Judicial Court’s conclusion that stun guns are “unusual” rested largely on its premise that one must ask whether a weapon was commonly used in 1789. ...... As already discussed, that is simply wrong.
 
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Your response has received all of the respect and consideration that it deserves.
 
mrjurrs said:
I concur, with a quick addendum. There is nothing in any Justices words that Congress cannot attempt, and sometimes succeed, at circumventing by new law.
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Bearing in mind "The Presumption of Constitutionality", that's even easier than you think it is.
mrjurrs said:
I'd be okay with that. How fast were the repeating rifles of the 1700's?
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I don't know, but I would hazard a guess that they fired at roughly the same rate as Mr. Spender's or Mr. Henry's "Repeating Rifles" (both of which predated Mr. Winchester's). Of course, since they were "black powder, non-cartridge, weapons" the reloading process after their full load had been discharged was much longer.
mrjurrs said:
I'd always thought that Winchester developed the first repeating rifle.
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Naturally you were. After all Mr. Winchester was an American (whose name has been kept in the forefront of people's minds because there is a gun company named after him) and no one in the whole world - EXCEPT Americans - has ever developed anything. (At least that's what you would think if you believed the stuff that is taught to innocent young American school children [and STRONGLY implied by the American news/entertainment industry].)

Why I'll bet that you were taught that an American (Guglielmo Giovanni Maria Marconi) invented radio when

In 1900, Marconi filed a U.S. patent for radio technology—and was turned down, because it too closely resembled Tesla’swork. Then in 1904, the court abruptly reversed its decision, which is often chalked up to political maneuverings behind the scenes. Marconi even won the Nobel Prize for inventing radio in 1911. Tesla was emotionally destroyed by the whole affair. He was vindicated in 1945, when the U.S. Supreme Court decided that the radio patent should belong to Tesla—and the justices used his St. Louis lecture as evidence to invalidate Marconi’s claims to it.​
[SOURCE]​

PS - Marconi was born at Bologna, Italy, on April 25, 1874, the second son of Giuseppe Marconi, an Italian country gentleman, and Annie Jameson, daughter of Andrew Jameson of Daphne Castle in the County Wexford, Ireland. He was educated privately at Bologna, Florence and Leghorn. Even as a boy he took a keen interest in physical and electrical science and studied the works of Maxwell, Hertz, Righi, Lodge and others. In 1895 he began laboratory experiments at his father’s country estate at Pontecchio where he succeeded in sending wireless signals over a distance of one and a half miles. He never lived in the United States of America at all. Tesla, although an Austrian Serb at least moved (in 1884) to the United States of America and took out citizenship. The less said about Reginald Aubrey Fessenden, the better.
mrjurrs said:
That would be judicial activism and no conservative judge would ever be activist would they?
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ACTIVIST JUDGE

"ad – tiv – ist ju – d - ge"​
​
NOUN PHRASE​
​
"a judicial officer who makes a decision that I do not like, regardless of how well founded that decision is in law and how closely that decision bears on the actual facts of the case"​

[See also – “LEARNED JUSTICE”]

​

LEARNED JUSTICE

"lear - ned jus – tice"​
​
NOUN PHRASE​
​
"a judicial officer who makes a decision that I do like, regardless of how poorly founded that decision is in law and how little that decision bears on the actual facts of the case"​

[See also – “ACTIVIST JUDGE”]

[From the AKME Dictionary of Current American Political Usage - still in pre-press preparation]
​
 
I never said that I did.

You overlook the fact that the "we do not" applies to a specific point in time and that, at some later date, the courts could well change that to be "we do". When the courts change that "we do not" to "we do" then whatever went before is subsumed by the later ruling.

For example, the courts could decide that a "transgendered" individual is neither "male" not "female" and is therefor not a "person" for the purposes of the law since only "males" and "females" qualify as "persons".
And if the Supreme Court of the United States of America decides differently (after putting in Herculean labours to "distinguish" all prior cases) then what?

You appear to be confusing "could" with "will". However, I will give an example that you might possibly comprehend. "In 2024 you COULD be elected to the office of President of the United States is true while "In 2024 you WILL be elected to the office of President of the United States of America." is highly likely to be false.
 
The courts COULD do any number of things. However, given that the entire Supreme Court has clearly and repeatedly stated that the Bill of Rights is not technology dependent exposes your argument for the empty waste of time that it is.
 
natman said:
The courts COULD do any number of things. However, given that the entire Supreme Court has clearly and repeatedly stated that the Bill of Rights is not technology dependent exposes your argument for the empty waste of time that it is.
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The entirety of the Supreme Court as it was then constituted has, indeed, said that.

The make-up of the justices of the US Supreme Court does change over time you know?
 
TU Curmudgeon said:
The entirety of the Supreme Court as it was then constituted has, indeed, said that.

The make-up of the justices of the US Supreme Court does change over time you know?
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I am well aware that the makeup of the Supreme Court can change. I am also aware that sometimes the Supreme Court reverses its former decisions.

That said, your coulda, woulda, shoulda speculation is still a waste of time. Unless you have something of substance to say, let's let it stop there.
 
There is no "coulda, woulda, shoulda" involved in pointing out "Given the right circumstances it is possible for 'X' to happen.".

Taking the position that 'X' will never happen because it has never happened before

​

is one really good way of increasing the odds that it will happen.
 

Heller, of course, upset generations of precedent. So hey, why not just make it all up?
 
j brown's body said:
Heller, of course, upset generations of precedent. So hey, why not just make it all up?
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Really? Kindly cite the precedent setting Supreme Court cases that you think Heller upset.
 
You don't have to convince me, that is the standard SCOTUS has been using when it fits their purpose. You keep returning to your point yet have not mentioned Alito and Thomas both referencing the historical nature of the right in their opinions.

As a matter of fact, wiretaps have their own laws (that have been found constitutional) governing their use.
 
mrjurrs said:
You don't have to convince me, that is the standard SCOTUS has been using when it fits their purpose.
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When it fits their purpose? They have been remarkably consistent. First the Heller citation, which I've already quoted.

Then they reaffirmed it in Caetano v Massachusetts in 2016:
The Massachusetts Supreme Judicial Court affirmed the conviction, holding that a stun gun “is not the type of weapon that is eligible for Second Amendment protection” because it was “not in common use at the time of [the Second Amendment’s] enactment.” ....
This reasoning defies our decision in Heller, which rejected as “bordering on the frivolous” the argument “that only those arms in existence in the 18th century are protected by the Second Amendment.”

The Caetano case was especially noteworthy because SCOTUS sent it back for reconsideration per curiam, without even deeming it worthy of hearing arguments. This is the equivalent of saying (correctly) that the case was so badly reasoned it didn't deserve a hearing and was rejected out of hand.

Then in NYRPA v Bruen in 2022, SCOTUS cited BOTH of these cases:
Its [the 2nd amendment] reference to “arms” does not apply “only [to] those arms in existence in the 18th century.” “Just as the First Amendment protects modern forms of communications, and the Fourth Amendment applies to modern forms of search, the Second Amendment extends, prima facie, to all instruments that constitute bearable arms, even those that were not in existence at the time of the founding.” Ibid. (citations omitted). Thus, even though the Second Amendment’s definition of “arms” is fixed according to its historical understanding, that general definition covers modern instruments that facilitate armed self-defense. Cf. Caetano v. Massachusetts, 577 U. S. 411, 411–412 (2016) (per curiam)

I'd say their pretty well committed. Can you cite a single example of when they ruled otherwise?


mrjurrs said:
You keep returning to your point yet have not mentioned Alito and Thomas both referencing the historical nature of the right in their opinions.
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If you think there's something relevant in Alito's and Thomas' opinions, then quote it.

mrjurrs said:
As a matter of fact, wiretaps have their own laws (that have been found constitutional) governing their use.
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The procedures for searches is written right in the Fourth Amendment.
Amendment IV
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

This is in marked contrast to the Second, which clearly states that the right shall not be infringed.
 
I am a huge supporter of the second amendment. However I would not put much gravitas to the reasoning around any decisions by this Supreme Court. Even though I hope the decisions are pro gun.

This current court has proven they are more about ideology and agenda than the actual constitution.
 
And, of course, an outright prohibition (such as banning the possession of firearms by felons, the insane, the mentally incompetent, or six year old children) isn't the same as "infringe" because to "infringe" implies that there is some portion of the thing "infringed" upon remaining.

Right?
 
Grand Mal said:
Any talk of remedying the gun violence problem in the US always comes up against the constitutional rights of the shooters.
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All conservative voters say the same thing: "Gun control laws are unconstitutional." But you know what else they do?

Save money to pay for expensive firearms and ammunition because their right to get one is infringed by price tags.

If "the right of the people to keep and bear arms shall not be infringed" was intended to be interpreted literally, being required to buy your guns, bullets, and magazines also is unconstitutional. Where are the gun rights supporters who think about that? Obviously, we all are given a privilege, not a right, because to be a right, it must be totally free. The people who are most likely to need guns are the ones who can't afford them. But no gun rights advocates seem to care about the fact they are really infringed by gun prices.

At what time in history did 2A mean we are allowed to steal guns? The literal interpretation would make arresting gun thieves illegal because they have the right to "keep and bear arms." So there is more explaining for 2A advocates to do .

I will not stop asking these questions until I get real answers - no deflecting, no whataboutisms, no questionable sources everyone knows are fiction. Just the truth, the whole truth, and nothing but the truth, so help your God.
 
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JMB802 said:
Restraining orders are reviewed and approved by Judges and courts. Is that not due process of law?
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No it is not. Same way a search warrant is not due process. It is a court order based on probable cause. The standard of proof for probable cause is much lower than the standard of proof that is REQUIRED to prove guilt beyond a reasonable doubt by a jury of your peers.
 

Like the four-digit price tags that prevent the people who need guns from buying them?

I am trying to make people figure out that obvious fact and explain to me how it is not an infringement to people who actually do need guns.
 
What a load of horse crap.
 
Exhibit A in telling me that you have not read or do not understand the Constitution or Bill or Rights.

The BoR does not grant any rights. It prevents the government (initially on the Federal government, then incorporated to the states by the 14A) from infringing upon them. It says nothing about private business.

BoR Preamble:

THE Conventions of a number of the States, having at the time of their adopting the Constitution, expressed a desire, in order to prevent misconstruction or abuse of its powers, that further declaratory and restrictive clauses should be added: And as extending the ground of public confidence in the Government, will best ensure the beneficent ends of its institution.

Abuse of powers. By who? The Federal Government
Declaratory and restrictive clauses. On who? The Federal Government
 
The INTERIM ("temporary") restraining order is, indeed, based on "probably cause" (read as "assuming that everything that is said is true, is there SOME case to be made in support of the application"). However the PERMANENT restraining order is NOT based on "probable cause", rather it is based on "the balance of probabilities" (read as "once the matter comes before a trier of fact is it more likely than not [i.e.'better than 50%'] that the case will be made out").

As the issue is in a "civil" (as opposed to a "criminal") case there is no need for the claimant to reach the "beyond a reasonable doubt" stage. Had there been such a need, then OJ Simpson would not have been found liable in the civil case arising out of the killing of his wife as the issue would have fallen into the "issue estoppel" category as having once been litigated and decided.

That "jury of your peers" bit applies (constitutionally) only to CRIMINAL cases and is not in the least bit a requirement in CIVIL matters. That means that there are two different sets of "due process" and you have to use the applicable one and not just pick the one that you want.
 
Patriotic Voter said:
Like the four-digit price tags that prevent the people who need guns from buying them?

I am trying to make people figure out that obvious fact and explain to me how it is not an infringement to people who actually do need guns.
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I hadn't, previously, considered your point, but you do have an arguable one. The Second Amendment does NOT specify that it is ONLY "The Government" that may not infringe on a persons right to "keep and bear arms".

Mind you, it also does not mandate that everyone SHALL have the right to possess ANY arms that they feel like having either.
 

I have argued many times about the fact there is nothing about having the right to own a military firearm, automatic or semiautomatic rifle, etc. It is just the right to keep and bear "arms." So why do people insist that right must mean banning certain types of guns, such as the AR-15 or AK-47, is unconstitutional?
 
Because doing such infringes on the right to bear arms. An AR 15 does not materially differ in its action than say a bar used for hunting.
There is no justification for said banning.
The constitution works by restricting what hovernment can do. For the government to restrict firearms it must have a legitimate constitutional reason.
Otherwise the government could ban all firearms except a . 22 single shot rifle.
 
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