Trump just got his first approval rating as president — and it's not good

[StefanM]

But without applying strict scrutiny.

Fair enough. So we are left without clarity on the matter.

 

[TCassidy]

Fair enough. So we are left without clarity on the matter.

Exactly. The only time SCOTUS has ruled using strict scrutiny they have over turned the issue before the court. But the greater issue of defining "shall not be infringed" has never been brought before the court so Stare Decisis reigns. In previous cases the court has acted as if "shall not be infringed" was not absolute, so, Justice Scalia had no option but opine “We also recognize another important limitation on the right to keep and carry arms. ‘Miller’ said, as we have explained, that the sorts of weapons protected were those ‘in common use at the time.’ 307 U.S., at 179, 59 S.Ct. 816. We think that limitation is fairly supported by the historical tradition of prohibiting the carrying of ‘dangerous and unusual weapons.’”

But the question remains, what did Miller mean by "common use at the time?" If it meant "weapons of war" than any ban would be an infringement.

And, oddly enough, United States v. Miller (1939) was the only Supreme Court case that directly addressed the Second Amendment until District of Columbia v. Heller in 2008.

So a strong argument can be made that Stare Decisis does not apply and that a precedent setting case could (and should) be brought before the Court.

 

[Alcott]

That dictionary definition is irrelevant in US jurisprudence.

And jurisprudence is irrelevant if any word or term means whatever someone-- lawyer, judge-- wants it to mean.

 

[Salty]

For example - you cannot yell fire in a crowded theater.

 

[Alcott]

For example - you cannot yell fire in a crowded theater.

Yeah? What CAN you do in a crowded theater?

 

[TCassidy]

For example - you cannot yell fire in a crowded theater.

Of course you can. If there is no fire you may be held liable both criminally and civilly, but you can still yell.

And if there IS a fire you may well be lauded as a hero.

And if there IS a fire and you DON'T yell "Fire" you may be held civilly and criminally liable for not warning people of imminent danger.

 

[Salty]

Clarification

For example - you cannot yell fire in a crowded theater.

You can not legally year fire in a crowed theater - if there is no fire

Ninety-sevem years ago, Justice Oliver Wendell Holmes wrote what is perhaps the most well-known -- yet misquoted and misused -- phrase in Supreme Court history: "The most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre and causing a panic.