Author Topic: The Next Big Second Amendment Case?  (Read 655 times)

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Offline Elderberry

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The Next Big Second Amendment Case?
« on: February 19, 2021, 08:52:21 pm »
Duke Center for Firearms Law By Jake Charles on February 19, 2021

Today, at its weekly conference, the Supreme Court will consider whether to grant review in McGinnis v. United States. In the case, Eric McGinnis challenges his conviction under 18 U.S.C. § 922(g)(8) for possessing a firearm while subject to a protective order. Both Darrell and I have previously blogged about the case after the Fifth Circuit upheld the conviction. What makes the case most interesting is that more than the challenge to 922(g)(8), McGinnis challenges the methodological framework by which the Fifth Circuit upheld his conviction.

In the Fifth Circuit, the panel applied the traditional two-part framework for deciding Second Amendment challenges that governs in all the federal courts of appeals to have considered the methodological question. Under that test, the panel first assumed that 922(g)(8) burdened conduct protected under the Second Amendment, and then at the second stage applied intermediate scrutiny. It upheld the law as closely related to the government’s interest in preventing gun violence. What is more noteworthy than that holding—with which every circuit court to consider the question has agreed—is Judge Duncan’s separate concurrence, which was joined by Judge Jones. In that concurrence, he questioned the two-step framework and advocated “retir[ing] this framework in favor of an approach focused on the Second Amendment’s text and history.” He indicated he’d be happy to do that en banc in McGinnis or any other case. The Fifth Circuit did not take the case en banc (and it appears no active judge even sought a vote on rehearing en banc).

McGinnis framed his cert petition around this methodological issue. After all, there’s no circuit split on whether 922(g)(8) is constitutional, and there aren’t many dissenting voices on that question either. But with respect to methodology, judges are split. (Circuits, to reiterate, are not.) Many conservative judges have come out strongly in favor of the text, history, and tradition (THT) approach that then-Judge Kavanaugh announced while he was serving on the D.C. Circuit. Justice Barrett wrote a THT-friendly opinion—without expressly endorsing or rejecting it—while a judge on the Seventh Circuit. It’s likely that at least one more of the conservative justices would like that test to govern Second Amendment challenges.

More: https://firearmslaw.duke.edu/2021/02/the-next-big-second-amendment-case/

Offline txradioguy

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Re: The Next Big Second Amendment Case?
« Reply #1 on: February 20, 2021, 12:05:29 am »
It will be interesting to see if they finally take up a 2nd Amendment Case.

They haven't touched one since Heller and McDonald.
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Offline verga

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Re: The Next Big Second Amendment Case?
« Reply #2 on: February 20, 2021, 12:52:52 pm »
 :bkmk:
In a time of universal deceit - telling the truth is a revolutionary act.
�More than any other time in history, mankind faces a crossroads. One path leads to despair and utter hopelessness. The other, to total extinction. Let us pray we have the wisdom to choose correctly.�-Woody Allen
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Offline thackney

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Re: The Next Big Second Amendment Case?
« Reply #3 on: February 20, 2021, 09:12:04 pm »
It will be interesting to see if they finally take up a 2nd Amendment Case.

They haven't touched one since Heller and McDonald.

Caetano vs. Massachusetts, 2016?
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Offline txradioguy

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Re: The Next Big Second Amendment Case?
« Reply #4 on: February 20, 2021, 09:13:49 pm »
Caetano vs. Massachusetts, 2016?

Yeah kinda.  It was a case about a stun gun.  Probably why it didn't register in my memory about recent 2A cases.
The libs/dems of today are the Quislings of former years. The cowards who would vote a fraud into office in exchange for handouts from the devil.

Here lies in honored glory an American soldier, known but to God

THE ESTABLISHMENT IS THE PROBLEM...NOT THE SOLUTION

Republicans Don't Need A Back Bench...They Need a BACKBONE!

Offline thackney

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Re: The Next Big Second Amendment Case?
« Reply #5 on: February 20, 2021, 09:24:08 pm »
Yeah kinda.  It was a case about a stun gun.  Probably why it didn't register in my memory about recent 2A cases.

But what the court said was:

The Court has held that “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,” and that this “Second Amendment right is fully applicable to the States.

So now it just needs to be applied in the real world.

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Offline txradioguy

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Re: The Next Big Second Amendment Case?
« Reply #6 on: February 20, 2021, 09:24:57 pm »
But what the court said was:

The Court has held that “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,” and that this “Second Amendment right is fully applicable to the States.

So now it just needs to be applied in the real world.



Agreed.

But wasn't it just a couple years ago that Justice Thomas chided the court for not having taken on a significant 2A case since McDonald and chided the lower courts for subverting that ruling and Heller?
« Last Edit: February 20, 2021, 09:26:10 pm by txradioguy »
The libs/dems of today are the Quislings of former years. The cowards who would vote a fraud into office in exchange for handouts from the devil.

Here lies in honored glory an American soldier, known but to God

THE ESTABLISHMENT IS THE PROBLEM...NOT THE SOLUTION

Republicans Don't Need A Back Bench...They Need a BACKBONE!

Offline Elderberry

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Re: The Next Big Second Amendment Case?
« Reply #7 on: February 22, 2021, 04:12:34 pm »


https://www.supremecourt.gov/orders/courtorders/022221zor_2cp3.pdf

Quote
CERTIORARI DENIED

20-6046   McGINNIS, ERIC G. V. UNITED STATES

Offline verga

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Re: The Next Big Second Amendment Case?
« Reply #8 on: February 22, 2021, 05:34:06 pm »
In a time of universal deceit - telling the truth is a revolutionary act.
�More than any other time in history, mankind faces a crossroads. One path leads to despair and utter hopelessness. The other, to total extinction. Let us pray we have the wisdom to choose correctly.�-Woody Allen
If God invented marathons to keep people from doing anything more stupid, the triathlon must have taken him completely by surprise.

Offline txradioguy

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Re: The Next Big Second Amendment Case?
« Reply #9 on: February 22, 2021, 06:58:33 pm »
For those of us that don't speak "Lawyer" is this a good thing or a bad thing?

@verga

No it's not good.

Quote
The effect of denying Petition for Certiorari by the Supreme Court of the United States is that the original Court of Appeals' decision still stands as the final decision. Denying the petition for certiorari affects the parties, but it does not necessarily impact other cases.
The libs/dems of today are the Quislings of former years. The cowards who would vote a fraud into office in exchange for handouts from the devil.

Here lies in honored glory an American soldier, known but to God

THE ESTABLISHMENT IS THE PROBLEM...NOT THE SOLUTION

Republicans Don't Need A Back Bench...They Need a BACKBONE!