What kind of Scrutiny does SCOTUS use

This is a discussion on What kind of Scrutiny does SCOTUS use within the The Second Amendment & Gun Legislation Discussion forums, part of the Related Topics category; Quote Originally Posted by Smitty901 Any ruling the court makes only stands as long as 5 of the 9 want it to. You can make ...

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  1. #16
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    Quote Originally Posted by Smitty901
    Any ruling the court makes only stands as long as 5 of the 9 want it to. You can make the Constitution say or not say anything you want as along as 5 of the 9 go along.
    5 of the 9 say 2nd does not apply to individuals then that is that. Turn them in it is all over.
    Anyone that thinks different has not been paying attention. So the only thing that madders is who is currently sitting in those seats and who will be.
    The deck is being stacked and soon 5 of the 9 will have a different view .
    "They got it wrong and when I appoint one more justice I will fix that".


    Quote Originally Posted by suntzu View Post
    And that applies to this discussion how?
    It does apply because the 5 out of 9 will be using their scrutiny in the decision.
    "One of the greatest delusions in the world is the hope that the evils in this world are to be cured by legislation."
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    Second Amendment -- Established December 15, 1791 and slowly eroded ever since What happened to "..... shall not be infringed."

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  3. #17
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    Quote Originally Posted by Hopyard View Post

    Strict scrutiny is something else. "B. Strict scrutiny

    1. Law must serve a compelling government interest

    2. Law must be narrowly tailored—typically must be the least restrictive means

    What kind of Scrutiny does SCOTUS use
    What compelling government interest is served by allowing private businesses to ban lawful carry?

    Isn't more tax revenue generated when costumers aren't turned away for a perfectly legal and peaceful act? Isn't more tax revenue created when more people buy permits because they can carry more freely? Isn't crime lowered when the public is freer to arm?

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    You just answered your own question. There is not compelling Government interest, on the federal level anyway, in this type low level decisions made by state and local Governments. That is why Strict Scrutiny is not applied to it.

    U.S. courts apply the strict scrutiny standard in two contexts, when a fundamental constitutional right is infringed,[1] particularly those found in the Bill of Rights and those the court has deemed a fundamental right protected by the "liberty" or "due process" clause of the 14th Amendment, or when a government action applies to a "suspect classification" such as race or, sometimes, national origin.
    Generally speaking the 2A is upheld you have the right to bear arms and it is not infringed as far as they are concerned the rest up to the states to figure out the local enforcement and as long as it does not violate the big picture so to speak, which they have shown that state licensing and postings do not, they are not going to get involved.
    Gun toters are not in a protected class and probably never will be so strict scrutiny does not apply either. Strict scrutiny would not be applied to a local business owners decision to post his store it's a state/local decision.

    The 10th Amendment says that,
    "that powers not granted to the federal government by the Constitution, nor prohibited to the States, are reserved to the States or the people."
    What is not federal law or prohibited by the states is left up to local, State, County, Municipal Governments to decide and enforce.

    In regards to the tax comments, any tax collected from a business would be either a state or local sales tax and goes to the State or Local Government and by provision is used by the entity collecting the tax not the Federal Government. In many states there is no sales tax at all nor personal property tax so a state or local tax revenue does not concern the feds.

    Permit fees collected by a state do not go to the feds either. As a matter of fact many are earmarked for certain programs or to actually cover the costs of the licensing program itself so again they have no interest in it at all.

    It comes down to unless there is a Violation of a Constitutional nature which again CC licensing and posting of businesses do not meet a Violation of Constitutional nature, it is left up to the state or local government to regulate what goes on.
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  5. #19
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    Quote Originally Posted by tacman605 View Post
    You just answered your own question. There is not compelling Government interest, on the federal level anyway, in this type low level decisions made by state and local Governments. That is why Strict Scrutiny is not applied to it.



    Generally speaking the 2A is upheld you have the right to bear arms and it is not infringed as far as they are concerned the rest up to the states to figure out the local enforcement and as long as it does not violate the big picture so to speak, which they have shown that state licensing and postings do not, they are not going to get involved.
    Gun toters are not in a protected class and probably never will be so strict scrutiny does not apply either. Strict scrutiny would not be applied to a local business owners decision to post his store it's a state/local decision.

    The 10th Amendment says that,

    What is not federal law or prohibited by the states is left up to local, State, County, Municipal Governments to decide and enforce.

    In regards to the tax comments, any tax collected from a business would be either a state or local sales tax and goes to the State or Local Government and by provision is used by the entity collecting the tax not the Federal Government. In many states there is no sales tax at all nor personal property tax so a state or local tax revenue does not concern the feds.

    Permit fees collected by a state do not go to the feds either. As a matter of fact many are earmarked for certain programs or to actually cover the costs of the licensing program itself so again they have no interest in it at all.

    It comes down to unless there is a Violation of a Constitutional nature which again CC licensing and posting of businesses do not meet a Violation of Constitutional nature, it is left up to the state or local government to regulate what goes on.
    I don't see how I answered my own question and you didn't clarify that, you're kinda all over the place....so I'll just ask, if it's up to the state to regulate, then how is a state ban on no-gun signs any kind of property rights violation?

    You just said this is the state's jurisdiction...so is that true or not?

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    You answered your own question by this

    What compelling government interest is served by allowing private businesses to ban lawful carry?
    That's just it there is no compelling government interest, on a federal level, in a local store posting their business, it does not equal a Constitutional violation. They do not care if a state says it is legal to post a business or whether the signs carry the weight of law behind them.

    I thought I answered in pretty much the order of your last post but whatever.

    how is a state ban on no-gun signs any kind of property rights violation?
    I think I understand your question. Yes it is a states decision whether or not a gun buster sign has the weight of law. I do not believe I have ever stated that a state ban on a no gun signs was a property rights violation, it is governed by whatever law is in place in that state. If a state says that a no gun sign carries no weight of law then so be it. It is still the owners right to put up the sign as it is his property, it is your choice to follow it or not. If the sign does carry the weight of law then so be it, you choose to violate it then the penalty is on you it's still their right to put up the sign.

    But we digress this is not another gun buster sign thread. In the overall picture strict scrutiny is reserved for a major Constitutional violation, generally speaking, and the fact that a state says the signs have weight of law/no weight of law or even exist in the first place does not fall under a Constitutional Violation.

    I did want to add to the other post in regards to taxes. The only taxes that the Federal Government would be concerned with would be the end of the year income taxes of the individual/owner. I would bet that the fact a gun buster sign and related people that do not shop and spend their money in the store because of the sign would be .000000000000000000000001% of any overall taxable income due to their lost revenue. Again the feds do not care if your business is open one day a week, one hour a day or what you charge for something as long as you pay the appropriate tax on any income received.
    "A first rate man with a third rate gun is far better than the other way around". The gun is a tool, you are the craftsman that makes it work. There are those who say "if I had to do it, I could" yet they never go out and train to do it. Don't let stupid be your mindset. Harryball 2013

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    Quote Originally Posted by ArmyMan View Post
    What compelling government interest is served by allowing private businesses to ban lawful carry?
    Protection of property rights. The very same compelling government interest that allows
    the individual home owner to tell visitors to his home that they are not welcome if they
    use foul language.
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    "What we have here is a failure to communicate."

    Trying to carry on an intelligent discussion with some folks is like
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    Don't confuse them with facts their mind is made up.

    The states have pretty much settled the property rights issue in regards to gun buster signs, I think. Either they carry the weight of law or they don't but the individual owner is free to decide to put the signs up or simply allow whatever they are comfortable with since it is beyond a shadow of a doubt, without question private property under the control of the owner.

    Yes some states have different variations and there have been some decisions stating that the employees can store the gun in their cars but overall, again I think, it has settled in for the most part.

    In my home state if you are carrying you must inform the homeowner that you are in fact armed before entering. I like that. Some folks I would not allow in my home with a gun and it is my property, my choice so says the law.
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    "A first rate man with a third rate gun is far better than the other way around". The gun is a tool, you are the craftsman that makes it work. There are those who say "if I had to do it, I could" yet they never go out and train to do it. Don't let stupid be your mindset. Harryball 2013

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    Agreed. What you believe you can do anywhere yuo want may be in conflict with what the law allows wherever you are. It may be very well to tell so-and-so in state A what you would do living in state B, but state A law says differently.

    Legal weight or not, NO Gun signs show the intent of the owners, and your choice to enter is entirely up to you.
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  11. #25
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    Quote Originally Posted by Hopyard View Post
    Protection of property rights.
    That's vauge and ambiguis. Could you expand in detail please, offering examples of how the owner would suffer a damage?

    Quote Originally Posted by Hopyard View Post
    The very same compelling government interest that allows
    the individual home owner to tell visitors to his home that they are not welcome if they
    use foul language.
    Oh for the love of Christ, people, no one's talking about residences.

    Residences are not open to the public and non of the Public Accommodation law applies to residences. How many times have we gon over the differences between a "social guest", a "customer" and an "employee". Jesus, Hopyard, you have to just be trolling.

  12. #26
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    Quote Originally Posted by tacman605 View Post
    Don't confuse them with facts their mind is made up.

    The states have pretty much settled the property rights issue in regards to gun buster signs, I think. Either they carry the weight of law or they don't but the individual owner is free to decide to put the signs up or simply allow whatever they are comfortable with since it is beyond a shadow of a doubt, without question private property under the control of the owner.

    Yes some states have different variations and there have been some decisions stating that the employees can store the gun in their cars but overall, again I think, it has settled in for the most part.

    In my home state if you are carrying you must inform the homeowner that you are in fact armed before entering. I like that. Some folks I would not allow in my home with a gun and it is my property, my choice so says the law.
    Not as settled as you think....laws are changing....

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    The Constitution of the United States is based on "negative liberties". It prohibits the government from doing things, not individuals. As SCOTUS and many other comparable courts around the world have consistantly held one of the most basic rights of a property owner is the right of exclusion. The right to control who may use the property, when and how they may use it. Denying the property owner the right of exclusion converts their private property to public property and is therefor a taking under the fifth amendment. For that taking to be constitutional the government must compensate the property owner.

    So if one is looking for a question to apply strict scrutiny to it should be what is the compelling government interest to perform this taking (banning the prohibition of firearms) under the fifth amendment?

    The argument that government would lose taxes from sales in an establishment that prohibits arms is invalid as the government would receive those same tax dollars from the other merchant who ends up with the customer who refused to patronize the first store. It could also be argued that the store might actually do more business by attracting customers who feel safer doing business in a store where firearms are prohibited. If not for a shopping environment that bans guns they might do all their shopping on line from home and thereby deny the state it's sales tax revenue.
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    Quote Originally Posted by ArmyMan View Post
    That's vauge and ambiguis. Could you expand in detail please, offering examples of how the owner would suffer a damage?


    Oh for the love of Christ, people, no one's talking about residences.

    Residences are not open to the public and non of the Public Accommodation law applies to residences. How many times have we gon over the differences between a "social guest", a "customer" and an "employee". Jesus, Hopyard, you have to just be trolling.
    No I am certainly not trolling. Property rights means you get to control what occurs on your property; residence or
    business, or land. Needless to say there are exceptions carved out in the law; hence the owner of a privately
    owned hotel may not (because of a law, not constitution) refuse to accommodate a person based on their
    national origin. But, the owner would be well within his rights to refuse to rent a room to someone who wears a
    toupee, a nose ring, or Nike gym shoes, or just because, no explanation needed.

    You asked, " Could you expand in detail please, offering examples of how the owner would suffer a damage?"

    What makes you think a private business property owner must be able to articulate some "damage" that would
    be suffered by him before he can tell you he doesn't want you as a customer? "No shirt, no shoes, no service."
    Get it? Owner's choice.

    The public accommodation non-discrimination laws have nothing to do with concealed carry.
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  15. #29
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    Quote Originally Posted by Hopyard View Post
    No I am certainly not trolling. Property rights means you get to control what occurs on your property; residence or
    business, or land. Needless to say there are exceptions carved out in the law; hence the owner of a privately
    owned hotel may not (because of a law, not constitution) refuse to accommodate a person based on their
    national origin. But, the owner would be well within his rights to refuse to rent a room to someone who wears a
    toupee, a nose ring, or Nike gym shoes, or just because, no explanation needed.

    You asked, " Could you expand in detail please, offering examples of how the owner would suffer a damage?"

    What makes you think a private business property owner must be able to articulate some "damage" that would
    be suffered by him before he can tell you he doesn't want you as a customer? "No shirt, no shoes, no service."
    Get it? Owner's choice.

    The public accommodation non-discrimination laws have nothing to do with concealed carry.
    For the millionth time, because of "Strict Scrutiny". Right trumps preference every time, according to SCOTUS. In order to block a right you need to be able to show that you would be damaged. It's to easy for me to point to anyone killed in a gun-free-zone to prove how I can be damaged if my right were blocked, and so the property owner needs to demonstrate how they would be damaged were guns permitted.

    Failure to demonstrate a damage is failure to meet "Strict Scrutiny" standard to block a specifically enumerated right.


    ****
    Me looking at from the property owner's view: Yes, forcing me to allow guns in my business is an encroachment on my property rights. It is, however, justified and "narrowly tailored" (because the pro-gun side has to comply with strict scrutiny as well, we all play by the same rules).
    • Justified: Customers remain responsible for their own safety while in my business, and self-defense while in places open to the public is a traditionally lawful purpose for carrying a firearm.
    • Narrowly tailored: As the business owner I can still require a dress code, and any lawfully carried firearm may not interfere with the wear and appearance of any dress code I set forth. Additionally, all existing laws remain in effect, prohibiting brandishing, requiring responsible handling of any firearm, and restraint from doing anything that may cause a disturbance or disruption to my business; the "keep it holstered" test is ongoing the entire time you're in my business.

  16. #30
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    The reason why I started this thread is there obviously is a difference of opinion on how SCTUS used "struct scrutiny" in its rulings. There are many times with 2A or gun related issues that the views of the justices were defined by using intermediate scrutiny, not stricy scrutiny. So to me, as a lay person, we can wish all we want that they apply stirct scrutiny to their decision making. Whether they do or not is not up to us. But as far as I can tell strict scrutiny is not the form of judicial review that courts use to determine the constitutionality of certain laws, including 2A all of the time.
    So IMO saying "strict scrutiny" all the time is a flasehood not based on how the court has been ruling
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