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Like a growing number of public defenders, liberal judges like Freeman, Ambro, Greenaway, and Montgomery-Reeves may think that the Second Amendment can be repurposed as a weapon against over-policing and mass incarceration. If upheld by the Supreme Court, Range will certainly be a boon to the criminal defense bar, as well as a source of immense confusion for prosecutors.

The majority’s standard is extraordinarily vague: It acknowledges that some people may be disarmed for committing a felony, but a person “like Range” could not. How can judges tell when someone falls on Range’s side of the line? The majority didn’t say.

In 2019, then-Judge Amy Coney Barrett took a stab at a clearer standard, asserting that only “dangerous” and “violent felons” may be disarmed. But which crimes count as “violent”? Is selling or using cocaine “violent”? How about possessing child pornography? Drunk driving? Burglary? Harassment? In a 2015 decision, the Supreme Court found it impossible to give the term “violent felony” a “principled and objective” standard. Why should courts have any more luck today?

This uncertainty would force prosecutors to think twice before bringing felon-in-possession charges, asking first whether they could persuade a court that the defendant is sufficiently “dangerous” or “violent” or “non-law-abiding” to justify disarmament. And from a criminal justice reform perspective, that’s not necessarily a bad thing. Plenty of left-leaning commentators have argued that the felon-in-possession ban is disproportionately enforced against people of color, contributing to mass incarceration and persecution of minority communities.

For many progressives, these problems raise concerns about equal protection, unlawful policing, and unconstitutional sentences. But this Supreme Court doesn’t see them that way; it cares far more about gun rights than traditional civil rights, such as basic civic equality of Black Americans. So progressive judges may instead seek to use the Second Amendment as a stand-in for constitutional principles that SCOTUS has abandoned.

If that’s the strategy, it carries real risks. Most obviously, this approach risks legitimizing a sweeping and lethal interpretation of the Second Amendment during an epidemic of gun violence in America.

Liberal support for an expansive right to bear arms could entrench decisions like Bruen, contributing to their status as “settled” precedent that will be harder to overturn in the future. In 2023, though, progressive judges must take their wins wherever they can find them. Only they can decide whether the trade-offs are worth it.

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  1. Thank you for admitting that liberals have never really supported the 2nd amendment. Some honesty for a change. I appreciate that.

    • can we please stop calling the left a “liberal”, it has been misappropriated like the swastika… john locke would be rolling in his grave

      • Well Mr. or Miss. or whatever your sexual orientation is. Liberals have never supported the bill of rights. They have never believed in liberty.

        But they have supported burning the American flag. But they don’t support burning the rainbow flag. They have supported burning crosses. They support burning crosses on the private property of black people. Now go look up the court cases to educate yourself.
        They support urinating and defecating in public. And they support Pride parades where adults have sex in front of children. Or they can take children to strip clubs for sex shows. But they certainly do not support the second amendment.

        You support the First Amendment right for people to protest and block the entrances to military recruiting centers. But you don’t support the First Amendment right of Christians to protest and block the entrances to abortion clinics.

        You could not bring yourself to vote for a second amendment supporting right wing Conservative Christian, who has sex in the missionary position with the lights turned off.

        But please do enjoy your gl0ry h0le sex. Nothing wrong with c0nsensu@l sex with 30 or 40 people in one day.
        And yes I’m serious. I hope you have a great time.

        “Preacher ARRESTED For Protesting Pride Rally In SHOCKING Video”
        video 10 min long

        • Chris T In KY, for the 1000th time, they are NOT “liberals”. The only Liberals were our Founding Fathers. The people you refer to as “Liberals” are actually Leftists-S O C I A L I S T S.

  2. “…asserting that only “dangerous” and “violent felons” may be disarmed. But which crimes count as “violent”?”

    And, just who is it today claiming (with a straight face, no less) that speech is ‘violence’?

    • A list is too long to post here – but all of the anti-gun claim firearms advertising (which is speech) is ‘violence’ (either by direct claim, or indirect claim e.g. implying)

  3. It is the liberal who has expanded the definition of what a felony is in the law. Remove those crimes from that list of what is considered a felony. And you will reduce the prison population.
    But that is not the goal of the liberal. Having a large felony list, is a way to control the population.

    • “It is the liberal who has expanded the definition of what a felony is in the law.”

      Correct, when it benefited them.

      Now, we have an opportunity to make it work for *us*…

  4. What is this “basic civil equality of Black Americans” the SCOTUS doesn’t care about?

    • Apparently Stern is trying to bridge the chasm between equality and what the left calls equity. Its the deference between equality of opportunity and equality of outcome. The SCOTUS is absolutely right to ignore equality of outcome.

      • “Its the deference between equality of opportunity and equality of outcome. The SCOTUS is absolutely right to ignore equality of outcome.”

        Justice Thomas has alluded to that, thankfully.

        He sees quite clearly the game they are trying to run…

        • “Justice Thomas… “

          Yes, he is such a paragon of judicial integrity who would always avoid the appearance of impropriety.

          “Supreme Court Justice Clarence Thomas did not file his annual financial disclosure by a deadline, instead asking for more time to prepare the document as he faces an ethics controversy over accepting pricy vacation trips and other largesse from Republican billionaire Harlan Crow.”

          Sadly, it seems the Justice does not want to follow the law.

          28 U.S. Code § 455 – Disqualification of justice, judge, or magistrate judge
          U.S. Code

          (a) Any justice, judge, or magistrate judge of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned.
          (b) He shall also disqualify himself in the following circumstances:

          (4) He knows that he, individually or as a fiduciary, or his spouse or minor child residing in his household, has a financial interest in the subject matter in controversy or in a party to the proceeding, or any other interest that could be substantially affected by the outcome of the proceeding;

          (5) He or his spouse, or a person within the third degree of relationship to either of them, or the spouse of such a person:
          (iii) Is known by the judge to have an interest that could be substantially affected by the outcome of the proceeding;

        • MINOR Miner49er. So what is Justice Thomas asked for more time? BFD! To ask for more time does not mean that the Justice is not following the law.
          AS to the question of ‘impartiality” that is a personal choice. I trust Justice Thomas far more than I do any of your Leftist “justices” who do not follow the Constitution as WRITTEN!

    • I demand equality – if 85% of NBA players are black, then enough white players must be recruited to represent a cross-section of US society. And I need reparations to make up for the years my whiteness denied me the opportunity to play.

  5. The Criminal Misuse of a firearm, brick, bat, knife, fist, feet, vehicle, etc. does not require the parting of the Red Sea to determine who is a dirtbag that should not be allowed to play with firearms, matches, etc.

    Unfortunately it does not end with dirtbags. There is the accident waiting to happen nitwit who is easy to spot by what they say and the moment they pick up a firearm. It’s like a violinist can spot a non player the instant they pick up a fiddle.

  6. Just for discussion:

    “A well regulated militia, being necessary to the security of a free State, the right of the people to keep and bear arms, shall not be infringed.”

    Where in those 27 words does the government being restrained under this amendment have the Constitutional authority to determine ANY criteria, even “violent felon” means the person no longer has the natural right to the use of arms in self defense?

    And what law has ever been passed that prevented a “violent felon” from obtaining whatever arms he felt necessary to either pursue his/her chosen profession or use in self defense against others?

    Giving the sole authority to disarm felons to the government is to pretend that the government and those laws will protect YOU. They will not. At most they make it difficult, not impossible, for the felon to obtain a weapon. At worst they give you and others a false sense of security that the government and its agents will protect you.

    You are your own First Responder!

    • RE: It is the right of the People.

      Since the nature of criminals is to prey on the People that pretty much makes criminals not human.

      • Not true.

        Simplistically, one might claim that felons cease to be “of the people” upon conviction for sufficiently heinous a crime, but that isn’t the case, as even felons have 1A rights (“the right of the people peaceably to assemble”), 9A rights (“retained by the people”), 10A rights (“and to the people”), etc. when their sentence is done.

    • Cliff H, perhaps continued expanding of the “violent felony” list is the left’s plan.
      If the list is expanded far enough, there will only remain the good citizen and it time
      they will throw in the good citizen and thus create a complete ban. In my state
      veterans, active duty military, retired enforcement, judges, justices of the peace
      and just about everyone except the good and honest citizen has an exception to
      carrying a weapon without a permit. The legislators lack the grit/backbone/balls
      to allow a good citizen the same right.

    • I moved to a new town, pop 980 so everyone knows just about everyone, a new aquatenance ask me about me voting.
      When she told a friend of hers he asked her if I could even vote. She said ,” He must be able to, he always carries a gun.” When she told me this I told her that is bullshit because anyone can carry a gunm.

  7. “In a 2015 decision, the Supreme Court found it impossible to give the term ‘violent felony’ a ‘principled and objective’ standard. Why should courts have any more luck today?”

    Well, I would argue that it isn’t within the purview of the courts to define those terms. It’s up to legislatures. But good luck with that, given today’s political climate.

    • Lol, I have been informed at gunpoint that my whiteness is inherently violent. Over 50 years ago…

    • It seem possible to easily create a list of what is NOT a violent felony and update it from time to time.

  8. The author ignores the elephant in the room:

    ALL gun-control laws are based on the (flawed) effort to predict and stop FUTURE acts of violence, based on PAST actions of those who these laws apply to.

    Anyone who has ever heard an advertisement or presentation on stock investing knows full well that past performance cannot predict future results.

    The ONLY way to stop future acts of violence (either with or without guns) is to CONSISTENTLY hold CRIMINALS accountable for their actions, and take the violent ones out of society for a VERY long time.

    • Not so fast TFred…ALL Gun Control in any shape, matter or form is rooted/based in Racism, Discrimination, Genocide, etc.

      Gun Control’s very own history confirmed baggage is much more than enough to null and void Gun Control. Unfortunately there are ignorant gutless wonders on this forum who bark at the History of Gun Control, hopefully you are not one of them.

      • Deb you do realize anti Catholic anti native and anti black laws from the foundation of our nation were used as examples of text and tradition by New York state in the justification of the concealed carry improvement act right? The left absolutely has no fucks to give and it is going to take a whole spectrum culture war to bury them. Your assessment plays a part where people bother to study history but it is ultimately just one part of many so how about not being such a drama queen.

    • TFred stated it clearly, “The ONLY way to stop future acts of violence (either with or without guns) is to CONSISTENTLY hold CRIMINALS accountable for their actions, and take the violent ones out of society for a VERY long time.”
      All crime cannot be stopped, but who knows how many crimes could be prevented if the criminal minded knew that the consequences would be dire and they would without doubt held accountable. There is no utopia but a reduction in crime is surely possible and doable.

  9. “it cares far more about gun rights than traditional civil rights, such as basic civic equality of Black Americans.”

    Whoa! lets back up a little there…

    First its not ‘gun rights’ vs ‘civil rights’. Its not two separate things. It is only Second Amendment rights and the Second Amendment is a civil right, an unalienable right and unalienable rights are inherent and do not belong to the government. An unalienable right belongs only to the individual, collectively ‘the people’, these are rights that, no matter what happens, may never be taken away from an individual (of course, for the ones who would argue in the echo chamber void of the internet thinking its really something great to do, barring some situation where an individual uses that afforded under the right or otherwise to cause intentional harm) – and it is a civil right.

    • To add: The first 10 amendments in the Bill of Rights are first order unalienable rights. They are the explanation to the government, by the founders in writings and intent and close to 200 years of precedent and SCOTUS rulings, that these first 10 are the further clarification of the “unalienable Rights” outlined in the Declaration with …

      “We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.”

      “that among these” means that “Life, Liberty and the pursuit of Happiness” are only among other “unalienable Rights” and are not the only “unalienable Rights”. The others among those “unalienable Rights” were clarified with the first 10 amendments which includes the Second Amendment. The first 10 are first order “unalienable Rights”.

    • and not only is the Second Amendment a civil right, it is a “traditional civil right”

  10. He got it it backwards, and since progressive prosecutors almost always fail to.charge a felon in possession even for for multiple offenders this will cause little or no change. Judges don’t participate in charging and most defendants plead for a theoretic sentence reduction anyway. This might cause prosecutors in the rest of the US to swallow the gun and will cut down on some of the ridiculous overcharging some prosecutors do.

  11. “For many progressives, these problems raise concerns about equal protection, unlawful policing, and unconstitutional sentences.”

    The same people intent on destroying the family unit and traditions that bring us all together? The same people who make up the get Trump coalition? I love how they pretend like they care about equality and justice. They don’t believe in anything other than virtue signaling, persecuting political enemies, and men having babies. The current state of inner-city black Americans is proof they don’t care. We can barely speak about it without being shouted down as a “racist.” The only problem they’re interested in solving is gaining more power.

  12. Tyrannical Regimes, Governments, and Politicians have never supported the idea of it’s Subjects having the ability and tools to defend themselves from the minions of their evil and destructive ideologies. That is why they can never be allowed to have control over a populace. As long as their ideology is allowed to hold sway. They will always be a danger to a Free People. All that Evil needs to be triumphant is for good people to nothing to Stop it. Something the Founding Patriots grew to understand and dealt with in the most extreme of terms. A lesson that has eluded the Free People of our time and at their own peril.

  13. We all know there are two judge personas:

    1. Those that believe they are empowered to make judgements based upon their own sense justice, their own belief system, their own political viewpoint.

    2. Those who believe the US Constitution is the primary law of the land with local laws subordinate to it. These judges try not to impose their personal opinions on the law and try to derive their judicial opinions from the law.

    Type 1? Traitors. Deliberately subverting the law for their own satisfaction.

    Type 2? We need more of these.

    • You are completely correct. And I would say that the left sees those who maintain fidelity to the Constitution as enemies of “democracy” who must be destroyed.

  14. The entire reason ambiguity exists on this question is simply caused by the stupidity of the laws fundamental idea in the first place. We should not be bantering the idea of who should and who should not be “trusted” with a gun at all. Anyone who wants a gun will get one. Laws do not prevent, they punish. So the real question is that if we, as a sober society, cannot trust you with a gun, then why do we allow you amongst us in the first place. And this is the same flaw in red flag laws seeking to disarm certain people. Not even addressing the due process concerns, if someone is deemed (properly and with due process) such a threat to themselves or others, then taking the guns they have is just plain moronic. If they really mean to do harm, they will find a way. The only prevention is to remove them from society until deemed safe. And then they can go on their revenge mayhem extravaganza.

    • Based on the illogical thinking of the left vehicle owners must be a criminal waiting for an opportunity.

  15. At the time of the 2nds Ratification, the Historical Records pretty damn clear. Dangerous and Violent Felons got strung up. No released.
    It’s rather obvious where and when, we took the wrong path.

  16. The 2A’s earliest predecessors only applied to “peaceable citizens”. This was deliberately removed in the final version because the founders knew people like Clinton would apply that exclusion to everyone.

  17. In common use ain’t such a great idea.
    That goes back to the era of muskets and ” Did they envision full automatic.”
    There will come a day when conventional firearmns are obsolete and they definitely will not be in common use.
    The Second Amendment’s main goal was for the protection of America, when “they” have phasers and we the people are slinging bullets, Not Fair.
    The Supreme Court should quit fcking around with The Right To Bear Arms Shall Not Be Infringed.

  18. The equation that gun rights somehow limit or threaten civil rights is completely wrong. The right to keep and bear, along with the implied right of self defense and self determination are the basis of all civil rights. If someone can’t defend themselves, or their property or even their country in time of need, those rights of free speech, due process, freedom of assembly, freedom of religion, etc. become privileges granted by government to be taken away at whim.
    Next is the issue of violent crime or felony crimes. Disarming the law abiding will do nothing to prevent those with evil, violent, or criminal intent from both finding ways of arming themselves, nor from committing their acts. The one thing that has ever prevented a crime, and even this could be debated, is the sure and absolute knowledge there will be swift and terrible retribution and sure knowledge the perpetrator will be held accountable.

    • The Bill of Rights protected by the dessisions of 5 government appointed judges.

  19. “…it cares far more about gun rights than traditional civil rights…”
    gun rights are civil rights. it don’t get much more traditional than that.

    • It’s a comment meant to set the table for future attacks on judges who fall on the wrong side of the “wedge”.

  20. The idea that we have “progressive” and “conservative” judges in the first place should be a sign that we’re on the wrong road.

    Fidelity to the Constitution first and to the law as written second should be what judges care about and are themselves judged in terms of.

    The fact that this has turned into a political shuttlecock of getting what you want at the expense of larger considerations has been a problem for decades, and in some ways it set the stage for the attempted cultural revolution we’re currently embroiled in.

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