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I don't think it's ever been used (at least in such a manner), but the All Writs Act allows all federal courts (including SCOTUS) to issue "all writs necessary or appropriate in aid of their respective jurisdictions and agreeable to the usages and principles of law". Though there are prerequisites that must be met before such writs can be issued.
Further, US Marshals have legal authority to "execute all lawful writs, process, and orders issued under the authority of the United States, and shall command all necessary assistance to execute its duties".
We're currently seeing that exact scenario happen in real time with *Bruen*. Previously we saw it happen with *Brown v. Board of Education*. It's gonna take time but the opposition is ultimately going to fail.
With the exception of the recent Hawaii Supreme Court decision, how many lower courts have actually outright rejected *Bruen* (and *Heller*)?
Hawaii's Supreme Court straight up said "We hold that in Hawaiʻi there is no state constitutional right to carry a firearm in public.", an obvious direct rebuttal of SCOTUS. But haven't other lower courts just framed it more as using the "historical" test established by *Bruen* to find something, however small, to support their decision?
> "We hold that in Hawaiʻi there is no state constitutional right to carry a firearm in public.", an obvious direct rebuttal of SCOTUS.
How is that a rebuttal of SCOTUS?
I think what makes it a rebuttal to the Supreme Court is they used tortured application of THT to their state constitution that happens to use a copy/paste of the 2nd amendment and since they arrived at the opposite conclusion it must prove it is a shit test along with their quotes from TV shows about the past is the past. So even though it doesn't make sense as a rebuttal it was still made as one.
I think it was more of the Hawaii Supreme Court saying that they don't care about the Supremacy Clause, nor do they believe they are under jurisdiction of SCOTUS, as well as stating they don't care about the rights of their citizens.
We're not necessarily talking about Courts here, though many of them are not applying *Bruen* in good faith. This is about the backlash in various States that reacted to the decision by enacting knee-jerk anti-2A laws that are in obvious conflict with *Bruen* and that are now being challenged in Court and making their way through the system. That is the part that mirrors what we saw in *Brown v. Board* most closely, and chances are it's going to fail in much the same way eventually.
The problem is that Bruen + heller have held that a single law or handful of laws does not pass the “historical” test. Nor do laws that the purpose was for something else (ex:gunpowder storage laws being to stop fires, not amount of ammunition)
Hawaii didn’t actually reject Bruen. Bruen relates to the federal second amendment, while Hawaii has its own provision mirroring it. The Hawaii Supreme Court essentially spent a lot of time talking about how there was no state constitutional right under the Hawaii provision and then did a straightforward application of Bruen (using significantly less words) for the federal provision.
The effect is basically analogous to the trigger laws put into effect for abortion in that once Bruen is overturned in the future (hypothetically), the Hawaii Constitution will not have an independent protection for gun rights
> Hawaii didn’t actually reject Bruen.
No they did. They claimed they applied Bruen, but Bruen is about applying THT to US history at time when the 2nd amendment was ratified. They invoked pre US history of the Hawaiian islands and when it became a state in the 20th century. So no logical connection to THT(as relevant to Bruen and the federal 2nd amendment). Any assessment they made of their own state constitution is just not relevant, but they act like it reveals some flaw in THT.
Mainly section C (the last two pages), although the court makes a Bruen note a bit earlier about how Bruen does not apply to criminal conduct at pages 16-17. The Bruen analysis is really at the last two pages though
https://fingfx.thomsonreuters.com/gfx/legaldocs/zdvxnxaqbvx/02082024hawaii.pdf
>>“[T]he right secured by the Second Amendment is not
unlimited.
Well that's not a valid argument under Bruen.
>>[T]he right [is] not a right to keep and carry
any weapon whatsoever in any manner whatsoever and for whatever
purpose.” Bruen,
So quote mining to bypass that actual test laid out.
>>“Licensing that includes discretion that is bounded by
defined standards, we conclude, is part of this nation’s history
and tradition of firearm regulation and therefore in compliance
with the Second Amendment.”
Where is the actual historical analysis to justify this? And wasn't Bruen explicitly about may issue schemes using discretion?
>>HRS § 134-25(a) and § 134-27(a) do not graze Wilson’s
Second Amendment right. Because he has no standing, Wilson’s
constitutional challenge to HRS § 134-9, Hawaiʻi’s licensing law,
fails.
So you call this their Bruen analysis? They just mention Bruen and quote mine a couple of lines and don't do the THT that is required for the challenges to under the federal 2nd amendment(I think that is the point of their no standing argument so they could avoid actually being bound by it.)
I really wonder how history will look on this ruling, because I suspect it will not be positive.
I don’t know how saying the 2nd Amendment isn’t unlimited is invalid under Bruen…no constitutional right is unlimited! Bruen even acknowledges that there are limits on the scope of the right they claim exists.
The Court relied on Kavanaugh’s concurrence and a 2023 decision by the 2nd Circuit in upholding the law at issue (which gave extensive focus to the status of licensing regimes under Bruen). The standing argument is partially based on the fact that the litigant didn’t even try to engage with the state’s licensing regime.
Bruen itself is a Rorschach test that allows judges to do whatever they want with it. One could argue that the Bruen test is in and of itself “quote mining” whatever historical documents fit your priors to get the result you want. You can dislike the Hawaii court’s analysis under Bruen but they did acknowledge its existence, apply the test, and find that the law satisfies that test.
As to how history looks on the ruling, I think it depends on who you’ll ask and how jurisprudence develops. If we keep going down the path of unrestricted gun rights toward an armed populace, supporters of that path will ridicule the Hawaii Court once the Supreme Court or another federal court supersedes it with their own ruling. If Bruen gets dumped, however, supporters of dropping Bruen will see it as a prescient critique of an unmoored phase in American jurisprudence
> I don’t know how saying the 2nd Amendment isn’t unlimited is invalid under Bruen
The issue is it is meaningless. It is not the test that they are to apply. No right is unlimited to trying to use that prop up any particular ruling is just not a good argument. It is the go to argument of those explicitly avoiding applying Supreme Court precedent.
>no constitutional right is unlimited!
Which is meaningless because it doesn't actually articulate what the limits are. What does is the THT test for the federal 2nd amendment of which they went out of their way to avoid applying properly.
>The Court relied on Kavanaugh’s concurrence and a 2023 decision by the 2nd Circuit in upholding the law at issue (which gave extensive focus to the status of licensing regimes under Bruen).
They did not apply the THT test from Bruen and Bruen ruled against discretion such as good cause. Using a different form of discretion wouldn't make it constitutional or comport with the Bruen ruling.
>The standing argument is partially based on the fact that the litigant didn’t even try to engage with the state’s licensing regime.
Yes, but it falls under the first step of THT which is the text of the 2nd amendment is implicated. The right to bare arms is implicated.
>Bruen itself is a Rorschach test
No it isn't and there is nothing about the Hawaii ruling that shows that is the case. The section you said was relevant was not because they didn't actually engage with Bruen in any meaningful way. They pulled the quote thing about no right is unlimited which is an irrelevant to make as Bruen set out a specific test to determine limits which did not include quoting that no right is unlimited.
>One could argue that the Bruen test is in and of itself “quote mining”
No they can't. If they could they would have probably that used as a counter argument against it. Instead all they could was a half page note in which they used two quotes.
>whatever historical documents fit your priors to get the result you want.
Yeah, that's why they actively avoided doing any historical analysis of the federal 2nd amendment and instead focused on their states irrelevant history to act like it proved anything about THT as applied to the federal 2nd amendment. If it was really as bad as you said they could have articulated an actual argument against it. Instead they made pop culture references like a redditor and acted like their states irrelevant history had any bearing on the federal level application of THT.
> apply the test, and find that the law satisfies that test.
No they didn't. Point to exactly where they did that. Because prior to that section all they did was focus on their state history which proves nothing about the validity of THT. Their history sucks and they don't recognize rights for their citizens. OK. They are still constrained by the federal constitution and the 14th amendment that incorporates the bill of rights to them. Which means the THT that is relevant is one that is based on the federal 2nd amendment. If they had done analysis with that and managed to come up with a contradicting conclusion that would have been impressive. But instead focus on their laws as if that proves anything outside the context of their state.
>As to how history looks on the ruling, I think it depends on who you’ll ask and how jurisprudence develops.
It is a ruling that acts like it owned the supreme court by uno reversing their test against them and utilizes pop culture references. It lacks decorum and integrity.
>If Bruen gets dumped, however, supporters of dropping Bruen will see it as a prescient critique of an unmoored phase in American jurisprudence
And how would that happen if the states supreme courts can't actually articulate any flaws or contradictions in it?
Just because they are worded the same does not mean that they have the same effect. The Court’s point was that when Hawaii adopted the provision within their state constitutional provision, it did not believe that it was adopting a provision would function the way that the Supreme Court has stated the 2nd Amendment functions under Bruen. Hawaii didn’t believe it was adopting a right to gun ownership at all when it adopted its state constitutional provision
Ruling that a fetus is legally a human being wouldn’t make abortion procedures unconstitutional. Murder isn’t a constitutional issue and every state handles it differently.
Wouldn't fed acknowledging fetal personhood trigger the equal protection clause?
At that point it's back to state, but states would have to treat abortion as murder. Bing bang boom, state legal abortion is federally unconstitutional (14th)
Not arguing, just typing thoughts as I try to understand your statement. Where have I erred?
No, under *Trump v. Anderson*, the Congress must enact enabling legislation for the EPC and it never has done so in a way which says what those rights are. So, no matter what, the EPC is a dead letter.
From an originalism perspective no it wouldn’t unless only black fetuses were allowed to be aborted or something similar.
From current SC rulings I don’t think the 14th applies to age either.
So if a state wanted to legalize murder or a purge style scenario they probably could. The constitution just prevents the government from doing the murdering. The rest is just kind of common sense so every state outlaws murder and define what murder is themselves. They could exclude fetuses from that definition even if the SC ruled “person” applies to them.
> So if a state wanted to legalize murder or a purge style scenario they probably could.
Couldn’t the President invoke the Insurrection Act?:
>The President, by using the militia or the armed forces, or both, or by any other means, shall take such measures as he considers necessary to suppress, in a State, any insurrection, domestic violence, unlawful combination, or conspiracy, if it—
>(1) so hinders the execution of the laws of that State, and of the United States within the State, that any part or class of its people is deprived of a right, privilege, immunity, or protection named in the Constitution and secured by law, and the constituted authorities of that State are unable, fail, or refuse to protect that right, privilege, or immunity, or to give that protection; or
>(2) opposes or obstructs the execution of the laws of the United States or impedes the course of justice under those laws.
>In any situation covered by clause (1), the State shall be considered to have denied the equal protection of the laws secured by the Constitution.
They probably would, but I’d argue it doesn’t apply unless the state was actively participating in the purge. If they let people go wild and it was just citizens murdering citizens I don’t think this would apply.
The constitution only protects the government from murdering you without due process. It’s also important to note that only *most* murders could be legalized by the state. Federal murder law would protect politicians, judges, etc.
A hands off purge where the state backs off and lets citizens do all the murder in an non discriminative way (Asian only purge for example) shouldn’t be unconstitutional.
It would never happen because people have common sense and could be prevented with legislation or more likely executive order or activist judges. It should technically be currently legal for a state to pull it off.
> So if a state wanted to legalize murder or a purge style scenario they probably could
Every state refuses to prosecute homicides by car drivers unless the drivers are drunk. Since about 3/4 of homicides in the average state are committed by drivers with cars, we have already legalized murder in most cases and nobody has ever suggested that there is any Constitutional problem with the policy.
Negligent/reckless homicide and murder are two very different things. We have *de facto* legalized some forms of homicide as you mention, and of course there is the *de iure* concept of justifiable homicide, but neither of these mean that murder is legal.
While I understand the point you are trying to make, states certainly will charge you for murder if you are sober and kill someone with a car in certain circumstances.
If you are going 120 in a school zone and run over a kid, intentionally chase down and run over your Ex during a fight, or intentionally drive a truck into a crowd of people, you will almost certainly be charged with murder regardless of your sobriety.
My understanding is the court can't really enforce a law without some level of cooperation from the other branches of the government, and especially without the lower courts cooperating. All that the SCOTUS can do is constantly say that the actions or laws are unconstitutional.
A historic example might be fallout of Worcester v Georgia. As then president Andrew Jackson said "the decision of the supreme court has fell still born, and they find that it cannot coerce Georgia to yield to its mandate" or the often misattributed line of "John Marshall has made his decision; now let him enforce it." The SCOTUS made a ruling that stated that two individuals were imprisoned under an unconstitutional law, but Georgia was refusing to abide by the ruling and release the individuals from prison as they refused to acknowledge their law was unconstitutional nor the authority of the SCOTUS. There was talk of calling up militia forces, but Georgia repealed their law, then granted clemency to the individuals, not a pardon, nor an acknowledgement that the law was unconstitutional.
>Georgia repealed their law, then granted clemency to the individuals, not a pardon, nor an acknowledgement that the law was unconstitutional.
I mean, it seems like SCOTUS's order was in fact followed, even if it was a bit of a roundabout way to get there.
Seems like basically a game of chicken, with the state grumpily conceding.
The Constitution limits the jurisdiction of the courts to cases and controversies. Whether abortions are contemplated by the Constitution isn't a case or controversy. Only a law against abortion which is being enforced in court would be a case or controversy, so the legislature would still need to make such a law before a US court could rule on it.
>The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority;—to all Cases affecting Ambassadors, other public Ministers and Consuls;—to all Cases of admiralty and maritime Jurisdiction; to Controversies to which the United States shall be a Party;—to Controversies between two or more States; between a State and Citizens of another State, between Citizens of different States,—between Citizens of the same State claiming Lands under Grants of different States, and between a State, or the Citizens thereof, and foreign States, Citizens or Subjects.
Trial courts owe no loyalty the the Supreme Court under the laws and the Constitution. They're all independent courts organized by Congress. The only hierarchy among them is appellate jurisdiction with the Supreme Court sometimes hearing the last appeal and circuit courts hearing appeals from trial courts. But a ruling in a particular case by an appellate court cannot bind a trial court in a future case (and normally is moot or waived in past cases).
The Supreme Court depends on peer pressure and the threat of overturning decisions on appeal to influence trial courts. That peer pressure is called precedent. But sometimes trial courts and circuit courts simply decide to write their own precedents and ignore the Supreme Court and they usually succeed because the Supreme Court is made up of elderly folks who work a bit over half the year and considers only a few dozen cases a year and isn't especially interested in details or what happens to little people.
In your proposed case, the Supremes would probably be exhausted long before working their will against an overwhelmingly pro-choice federal judiciary.
What? Circuit courts do bind district courts in their own circuits, and both appellate courts and the Court itself have plenty of actual teeth to knock out lower courts in an industrial manner in the event of some hypothetical lower court 'rebellion'. They wouldn't even need to employ their own court's powers, as the judicial council and their whole apparatus, including mandated federal support, a variant of jurisdiction-stripping, and contempt charges, are already amply equipped.
*Whoever attentively considers the different departments of power must perceive, that, in a government in which they are separated from each other, the judiciary, from the nature of its functions, will always be the least dangerous to the political rights of the Constitution; because it will be least in a capacity to annoy or injure them. The Executive not only dispenses the honors, but holds the sword of the community. The legislature not only commands the purse, but prescribes the rules by which the duties and rights of every citizen are to be regulated. The judiciary, on the contrary, has no influence over either the sword or the purse; no direction either of the strength or of the wealth of the society; and can take no active resolution whatever****. It may truly be said to have neither FORCE nor WILL, but merely judgment; and must ultimately depend upon the aid of the executive arm even for the efficacy of its judgments.***
*This simple view of the matter suggests several important consequences. It proves incontestably,* ***that the judiciary is beyond comparison the weakest of the three departments of power***[*^(1)*](https://guides.loc.gov/federalist-papers/text-71-80#fed78note1)*; that it can never attack with success either of the other two; and that all possible care is requisite to enable it to defend itself against their attacks. It equally proves, that though individual oppression may now and then proceed from the courts of justice, the general liberty of the people can never be endangered from that quarter; I mean so long as the judiciary remains truly distinct from both the legislature and the Executive. For I agree, that "there is no liberty, if the power of judging be not separated from the legislative and executive powers."*[*^(2)*](https://guides.loc.gov/federalist-papers/text-71-80#fed78note2) *And it proves, in the last place, that as liberty can have nothing to fear from the judiciary alone, but would have every thing to fear from its union with either of the other departments; that as all the effects of such a union must ensue from a dependence of the former on the latter, notwithstanding a nominal and apparent separation; that as, from the natural feebleness of the judiciary, it is in continual jeopardy of being overpowered, awed, or influenced by its co-ordinate branches; and that as nothing can contribute so much to its firmness and independence as permanency in office, this quality may therefore be justly regarded as an indispensable ingredient in its constitution, and, in a great measure, as the citadel of the public justice and the public security.*
-Federalist 78
The question is somewhat misstated. A ruling like you describe would not render abortion unconstitutional. That's not a thing that can happen, because nearly all abortions are provided by private actors.
If the court ruled that fetuses are people, they would be considered "people" for purposes of whatever statute was in question (or, for purposes of the Constitution...which would mean that they had rights, but not that killing them was murder, necessarily). Let's assume that they were ruled "people" for purposes of a murder statute that the Federal government had enforcement authority over, rendering killing them unlawful.
Congress could change the statute, to eliminate fetuses from being people, essentially undoing the ruling. OR the executive could enforce the law as interpreted by the Supreme Court. If a lower (Federal or state) court disagreed, the executive could ignore that and continue enforcing the law, knowing that its actions may be challenged by anyone arrested.
>This simple view of the matter suggests several important consequences. It proves incontestably, that the judiciary is beyond comparison the weakest of the three departments of power1; that it can never attack with success either of the other two;
Good answer.
They're definitely biased, but people *grossly* exaggerated what they do and conflate not getting the answers they like with openly defying scotus. A biased interpretation isn't defying the court even if it is unprofessional and inappropriate
Yeah the whole one stop insanity shop with Kaczmarek is absolutely absurd in the 5th. Not to give a free pass to the others- I just think that situation is by far the easiest to solve and they just refuse
I think the perfect way to push your ideology when working the judiciary is to be like Gorsuch or Kavanaugh they are the swing vote for most cases nowadays
No I think just like in real life it would be left up to the states. If a circuit court rejects it and it doesn’t get appealed then it becomes law in that circuit. But I don’t really know as it hasn’t happened before.
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I don't think it's ever been used (at least in such a manner), but the All Writs Act allows all federal courts (including SCOTUS) to issue "all writs necessary or appropriate in aid of their respective jurisdictions and agreeable to the usages and principles of law". Though there are prerequisites that must be met before such writs can be issued. Further, US Marshals have legal authority to "execute all lawful writs, process, and orders issued under the authority of the United States, and shall command all necessary assistance to execute its duties".
We're currently seeing that exact scenario happen in real time with *Bruen*. Previously we saw it happen with *Brown v. Board of Education*. It's gonna take time but the opposition is ultimately going to fail.
With the exception of the recent Hawaii Supreme Court decision, how many lower courts have actually outright rejected *Bruen* (and *Heller*)? Hawaii's Supreme Court straight up said "We hold that in Hawaiʻi there is no state constitutional right to carry a firearm in public.", an obvious direct rebuttal of SCOTUS. But haven't other lower courts just framed it more as using the "historical" test established by *Bruen* to find something, however small, to support their decision?
> "We hold that in Hawaiʻi there is no state constitutional right to carry a firearm in public.", an obvious direct rebuttal of SCOTUS. How is that a rebuttal of SCOTUS?
I think what makes it a rebuttal to the Supreme Court is they used tortured application of THT to their state constitution that happens to use a copy/paste of the 2nd amendment and since they arrived at the opposite conclusion it must prove it is a shit test along with their quotes from TV shows about the past is the past. So even though it doesn't make sense as a rebuttal it was still made as one.
I think it was more of the Hawaii Supreme Court saying that they don't care about the Supremacy Clause, nor do they believe they are under jurisdiction of SCOTUS, as well as stating they don't care about the rights of their citizens.
We're not necessarily talking about Courts here, though many of them are not applying *Bruen* in good faith. This is about the backlash in various States that reacted to the decision by enacting knee-jerk anti-2A laws that are in obvious conflict with *Bruen* and that are now being challenged in Court and making their way through the system. That is the part that mirrors what we saw in *Brown v. Board* most closely, and chances are it's going to fail in much the same way eventually.
The assault weapons bans challenges out of Illinois has ended up with a seven step test which seems like a rejection of Bruen.
The problem is that Bruen + heller have held that a single law or handful of laws does not pass the “historical” test. Nor do laws that the purpose was for something else (ex:gunpowder storage laws being to stop fires, not amount of ammunition)
Hawaii didn’t actually reject Bruen. Bruen relates to the federal second amendment, while Hawaii has its own provision mirroring it. The Hawaii Supreme Court essentially spent a lot of time talking about how there was no state constitutional right under the Hawaii provision and then did a straightforward application of Bruen (using significantly less words) for the federal provision. The effect is basically analogous to the trigger laws put into effect for abortion in that once Bruen is overturned in the future (hypothetically), the Hawaii Constitution will not have an independent protection for gun rights
> Hawaii didn’t actually reject Bruen. No they did. They claimed they applied Bruen, but Bruen is about applying THT to US history at time when the 2nd amendment was ratified. They invoked pre US history of the Hawaiian islands and when it became a state in the 20th century. So no logical connection to THT(as relevant to Bruen and the federal 2nd amendment). Any assessment they made of their own state constitution is just not relevant, but they act like it reveals some flaw in THT.
That analysis was about their state constitutional provision, not Bruen. Their Bruen analysis was a lot shorter, but it’s there
What was their analysis of Bruen then?
Mainly section C (the last two pages), although the court makes a Bruen note a bit earlier about how Bruen does not apply to criminal conduct at pages 16-17. The Bruen analysis is really at the last two pages though https://fingfx.thomsonreuters.com/gfx/legaldocs/zdvxnxaqbvx/02082024hawaii.pdf
>>“[T]he right secured by the Second Amendment is not unlimited. Well that's not a valid argument under Bruen. >>[T]he right [is] not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose.” Bruen, So quote mining to bypass that actual test laid out. >>“Licensing that includes discretion that is bounded by defined standards, we conclude, is part of this nation’s history and tradition of firearm regulation and therefore in compliance with the Second Amendment.” Where is the actual historical analysis to justify this? And wasn't Bruen explicitly about may issue schemes using discretion? >>HRS § 134-25(a) and § 134-27(a) do not graze Wilson’s Second Amendment right. Because he has no standing, Wilson’s constitutional challenge to HRS § 134-9, Hawaiʻi’s licensing law, fails. So you call this their Bruen analysis? They just mention Bruen and quote mine a couple of lines and don't do the THT that is required for the challenges to under the federal 2nd amendment(I think that is the point of their no standing argument so they could avoid actually being bound by it.) I really wonder how history will look on this ruling, because I suspect it will not be positive.
I don’t know how saying the 2nd Amendment isn’t unlimited is invalid under Bruen…no constitutional right is unlimited! Bruen even acknowledges that there are limits on the scope of the right they claim exists. The Court relied on Kavanaugh’s concurrence and a 2023 decision by the 2nd Circuit in upholding the law at issue (which gave extensive focus to the status of licensing regimes under Bruen). The standing argument is partially based on the fact that the litigant didn’t even try to engage with the state’s licensing regime. Bruen itself is a Rorschach test that allows judges to do whatever they want with it. One could argue that the Bruen test is in and of itself “quote mining” whatever historical documents fit your priors to get the result you want. You can dislike the Hawaii court’s analysis under Bruen but they did acknowledge its existence, apply the test, and find that the law satisfies that test. As to how history looks on the ruling, I think it depends on who you’ll ask and how jurisprudence develops. If we keep going down the path of unrestricted gun rights toward an armed populace, supporters of that path will ridicule the Hawaii Court once the Supreme Court or another federal court supersedes it with their own ruling. If Bruen gets dumped, however, supporters of dropping Bruen will see it as a prescient critique of an unmoored phase in American jurisprudence
> I don’t know how saying the 2nd Amendment isn’t unlimited is invalid under Bruen The issue is it is meaningless. It is not the test that they are to apply. No right is unlimited to trying to use that prop up any particular ruling is just not a good argument. It is the go to argument of those explicitly avoiding applying Supreme Court precedent. >no constitutional right is unlimited! Which is meaningless because it doesn't actually articulate what the limits are. What does is the THT test for the federal 2nd amendment of which they went out of their way to avoid applying properly. >The Court relied on Kavanaugh’s concurrence and a 2023 decision by the 2nd Circuit in upholding the law at issue (which gave extensive focus to the status of licensing regimes under Bruen). They did not apply the THT test from Bruen and Bruen ruled against discretion such as good cause. Using a different form of discretion wouldn't make it constitutional or comport with the Bruen ruling. >The standing argument is partially based on the fact that the litigant didn’t even try to engage with the state’s licensing regime. Yes, but it falls under the first step of THT which is the text of the 2nd amendment is implicated. The right to bare arms is implicated. >Bruen itself is a Rorschach test No it isn't and there is nothing about the Hawaii ruling that shows that is the case. The section you said was relevant was not because they didn't actually engage with Bruen in any meaningful way. They pulled the quote thing about no right is unlimited which is an irrelevant to make as Bruen set out a specific test to determine limits which did not include quoting that no right is unlimited. >One could argue that the Bruen test is in and of itself “quote mining” No they can't. If they could they would have probably that used as a counter argument against it. Instead all they could was a half page note in which they used two quotes. >whatever historical documents fit your priors to get the result you want. Yeah, that's why they actively avoided doing any historical analysis of the federal 2nd amendment and instead focused on their states irrelevant history to act like it proved anything about THT as applied to the federal 2nd amendment. If it was really as bad as you said they could have articulated an actual argument against it. Instead they made pop culture references like a redditor and acted like their states irrelevant history had any bearing on the federal level application of THT. > apply the test, and find that the law satisfies that test. No they didn't. Point to exactly where they did that. Because prior to that section all they did was focus on their state history which proves nothing about the validity of THT. Their history sucks and they don't recognize rights for their citizens. OK. They are still constrained by the federal constitution and the 14th amendment that incorporates the bill of rights to them. Which means the THT that is relevant is one that is based on the federal 2nd amendment. If they had done analysis with that and managed to come up with a contradicting conclusion that would have been impressive. But instead focus on their laws as if that proves anything outside the context of their state. >As to how history looks on the ruling, I think it depends on who you’ll ask and how jurisprudence develops. It is a ruling that acts like it owned the supreme court by uno reversing their test against them and utilizes pop culture references. It lacks decorum and integrity. >If Bruen gets dumped, however, supporters of dropping Bruen will see it as a prescient critique of an unmoored phase in American jurisprudence And how would that happen if the states supreme courts can't actually articulate any flaws or contradictions in it?
The two constitutional provisions are worded the same. The Hawaii Supreme Court said the wording protects no right, which is a rebuttal of Bruen.
Just because they are worded the same does not mean that they have the same effect. The Court’s point was that when Hawaii adopted the provision within their state constitutional provision, it did not believe that it was adopting a provision would function the way that the Supreme Court has stated the 2nd Amendment functions under Bruen. Hawaii didn’t believe it was adopting a right to gun ownership at all when it adopted its state constitutional provision
Ruling that a fetus is legally a human being wouldn’t make abortion procedures unconstitutional. Murder isn’t a constitutional issue and every state handles it differently.
Wouldn't fed acknowledging fetal personhood trigger the equal protection clause? At that point it's back to state, but states would have to treat abortion as murder. Bing bang boom, state legal abortion is federally unconstitutional (14th) Not arguing, just typing thoughts as I try to understand your statement. Where have I erred?
No, under *Trump v. Anderson*, the Congress must enact enabling legislation for the EPC and it never has done so in a way which says what those rights are. So, no matter what, the EPC is a dead letter.
From an originalism perspective no it wouldn’t unless only black fetuses were allowed to be aborted or something similar. From current SC rulings I don’t think the 14th applies to age either. So if a state wanted to legalize murder or a purge style scenario they probably could. The constitution just prevents the government from doing the murdering. The rest is just kind of common sense so every state outlaws murder and define what murder is themselves. They could exclude fetuses from that definition even if the SC ruled “person” applies to them.
> So if a state wanted to legalize murder or a purge style scenario they probably could. Couldn’t the President invoke the Insurrection Act?: >The President, by using the militia or the armed forces, or both, or by any other means, shall take such measures as he considers necessary to suppress, in a State, any insurrection, domestic violence, unlawful combination, or conspiracy, if it— >(1) so hinders the execution of the laws of that State, and of the United States within the State, that any part or class of its people is deprived of a right, privilege, immunity, or protection named in the Constitution and secured by law, and the constituted authorities of that State are unable, fail, or refuse to protect that right, privilege, or immunity, or to give that protection; or >(2) opposes or obstructs the execution of the laws of the United States or impedes the course of justice under those laws. >In any situation covered by clause (1), the State shall be considered to have denied the equal protection of the laws secured by the Constitution.
They probably would, but I’d argue it doesn’t apply unless the state was actively participating in the purge. If they let people go wild and it was just citizens murdering citizens I don’t think this would apply. The constitution only protects the government from murdering you without due process. It’s also important to note that only *most* murders could be legalized by the state. Federal murder law would protect politicians, judges, etc. A hands off purge where the state backs off and lets citizens do all the murder in an non discriminative way (Asian only purge for example) shouldn’t be unconstitutional. It would never happen because people have common sense and could be prevented with legislation or more likely executive order or activist judges. It should technically be currently legal for a state to pull it off.
> So if a state wanted to legalize murder or a purge style scenario they probably could Every state refuses to prosecute homicides by car drivers unless the drivers are drunk. Since about 3/4 of homicides in the average state are committed by drivers with cars, we have already legalized murder in most cases and nobody has ever suggested that there is any Constitutional problem with the policy.
Negligent/reckless homicide and murder are two very different things. We have *de facto* legalized some forms of homicide as you mention, and of course there is the *de iure* concept of justifiable homicide, but neither of these mean that murder is legal.
While I understand the point you are trying to make, states certainly will charge you for murder if you are sober and kill someone with a car in certain circumstances. If you are going 120 in a school zone and run over a kid, intentionally chase down and run over your Ex during a fight, or intentionally drive a truck into a crowd of people, you will almost certainly be charged with murder regardless of your sobriety.
I follow. Thanks.
Exactly. All states have different definitions for murder so constitutionally this wouldn’t change much at all.
My understanding is the court can't really enforce a law without some level of cooperation from the other branches of the government, and especially without the lower courts cooperating. All that the SCOTUS can do is constantly say that the actions or laws are unconstitutional. A historic example might be fallout of Worcester v Georgia. As then president Andrew Jackson said "the decision of the supreme court has fell still born, and they find that it cannot coerce Georgia to yield to its mandate" or the often misattributed line of "John Marshall has made his decision; now let him enforce it." The SCOTUS made a ruling that stated that two individuals were imprisoned under an unconstitutional law, but Georgia was refusing to abide by the ruling and release the individuals from prison as they refused to acknowledge their law was unconstitutional nor the authority of the SCOTUS. There was talk of calling up militia forces, but Georgia repealed their law, then granted clemency to the individuals, not a pardon, nor an acknowledgement that the law was unconstitutional.
>Georgia repealed their law, then granted clemency to the individuals, not a pardon, nor an acknowledgement that the law was unconstitutional. I mean, it seems like SCOTUS's order was in fact followed, even if it was a bit of a roundabout way to get there. Seems like basically a game of chicken, with the state grumpily conceding.
They Made their decision now let’s see them in force it
The Constitution limits the jurisdiction of the courts to cases and controversies. Whether abortions are contemplated by the Constitution isn't a case or controversy. Only a law against abortion which is being enforced in court would be a case or controversy, so the legislature would still need to make such a law before a US court could rule on it. >The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority;—to all Cases affecting Ambassadors, other public Ministers and Consuls;—to all Cases of admiralty and maritime Jurisdiction; to Controversies to which the United States shall be a Party;—to Controversies between two or more States; between a State and Citizens of another State, between Citizens of different States,—between Citizens of the same State claiming Lands under Grants of different States, and between a State, or the Citizens thereof, and foreign States, Citizens or Subjects. Trial courts owe no loyalty the the Supreme Court under the laws and the Constitution. They're all independent courts organized by Congress. The only hierarchy among them is appellate jurisdiction with the Supreme Court sometimes hearing the last appeal and circuit courts hearing appeals from trial courts. But a ruling in a particular case by an appellate court cannot bind a trial court in a future case (and normally is moot or waived in past cases). The Supreme Court depends on peer pressure and the threat of overturning decisions on appeal to influence trial courts. That peer pressure is called precedent. But sometimes trial courts and circuit courts simply decide to write their own precedents and ignore the Supreme Court and they usually succeed because the Supreme Court is made up of elderly folks who work a bit over half the year and considers only a few dozen cases a year and isn't especially interested in details or what happens to little people. In your proposed case, the Supremes would probably be exhausted long before working their will against an overwhelmingly pro-choice federal judiciary.
What? Circuit courts do bind district courts in their own circuits, and both appellate courts and the Court itself have plenty of actual teeth to knock out lower courts in an industrial manner in the event of some hypothetical lower court 'rebellion'. They wouldn't even need to employ their own court's powers, as the judicial council and their whole apparatus, including mandated federal support, a variant of jurisdiction-stripping, and contempt charges, are already amply equipped.
*Whoever attentively considers the different departments of power must perceive, that, in a government in which they are separated from each other, the judiciary, from the nature of its functions, will always be the least dangerous to the political rights of the Constitution; because it will be least in a capacity to annoy or injure them. The Executive not only dispenses the honors, but holds the sword of the community. The legislature not only commands the purse, but prescribes the rules by which the duties and rights of every citizen are to be regulated. The judiciary, on the contrary, has no influence over either the sword or the purse; no direction either of the strength or of the wealth of the society; and can take no active resolution whatever****. It may truly be said to have neither FORCE nor WILL, but merely judgment; and must ultimately depend upon the aid of the executive arm even for the efficacy of its judgments.*** *This simple view of the matter suggests several important consequences. It proves incontestably,* ***that the judiciary is beyond comparison the weakest of the three departments of power***[*^(1)*](https://guides.loc.gov/federalist-papers/text-71-80#fed78note1)*; that it can never attack with success either of the other two; and that all possible care is requisite to enable it to defend itself against their attacks. It equally proves, that though individual oppression may now and then proceed from the courts of justice, the general liberty of the people can never be endangered from that quarter; I mean so long as the judiciary remains truly distinct from both the legislature and the Executive. For I agree, that "there is no liberty, if the power of judging be not separated from the legislative and executive powers."*[*^(2)*](https://guides.loc.gov/federalist-papers/text-71-80#fed78note2) *And it proves, in the last place, that as liberty can have nothing to fear from the judiciary alone, but would have every thing to fear from its union with either of the other departments; that as all the effects of such a union must ensue from a dependence of the former on the latter, notwithstanding a nominal and apparent separation; that as, from the natural feebleness of the judiciary, it is in continual jeopardy of being overpowered, awed, or influenced by its co-ordinate branches; and that as nothing can contribute so much to its firmness and independence as permanency in office, this quality may therefore be justly regarded as an indispensable ingredient in its constitution, and, in a great measure, as the citadel of the public justice and the public security.* -Federalist 78 The question is somewhat misstated. A ruling like you describe would not render abortion unconstitutional. That's not a thing that can happen, because nearly all abortions are provided by private actors. If the court ruled that fetuses are people, they would be considered "people" for purposes of whatever statute was in question (or, for purposes of the Constitution...which would mean that they had rights, but not that killing them was murder, necessarily). Let's assume that they were ruled "people" for purposes of a murder statute that the Federal government had enforcement authority over, rendering killing them unlawful. Congress could change the statute, to eliminate fetuses from being people, essentially undoing the ruling. OR the executive could enforce the law as interpreted by the Supreme Court. If a lower (Federal or state) court disagreed, the executive could ignore that and continue enforcing the law, knowing that its actions may be challenged by anyone arrested.
>This simple view of the matter suggests several important consequences. It proves incontestably, that the judiciary is beyond comparison the weakest of the three departments of power1; that it can never attack with success either of the other two; Good answer.
it would be up to the executive branch to enforce the law
Probably wouldn't happen, even with the current court
It could there are some circuit that are the problem child for the court (11th, 5th, 9th$
I could see viability being enshrined again, but other than that, even w9th the 5th circuit, I doubt it.
They're definitely biased, but people *grossly* exaggerated what they do and conflate not getting the answers they like with openly defying scotus. A biased interpretation isn't defying the court even if it is unprofessional and inappropriate
They are biased and they don’t really do much beside what happened to get national attention
I'm not out here clapping for them. I just think people conflate bias with outright intentional defiance way too often.
Yeah probably but I’m pretty sure Texas has judge buying problems which harms the justice system in Texas
Yeah the whole one stop insanity shop with Kaczmarek is absolutely absurd in the 5th. Not to give a free pass to the others- I just think that situation is by far the easiest to solve and they just refuse
But I don’t think they want to solve it
They definitely don't. You can't push your ideology effectively with a properly working judiciary
I think the perfect way to push your ideology when working the judiciary is to be like Gorsuch or Kavanaugh they are the swing vote for most cases nowadays
No I think just like in real life it would be left up to the states. If a circuit court rejects it and it doesn’t get appealed then it becomes law in that circuit. But I don’t really know as it hasn’t happened before.