by Fred Sisto | Nov 29, 2022 | Blog, Criminal Law, Monmouth County, New Jersey, Ocean County
Justice Breyer continued: The Court, not an expert in history, had misread Blackstone and other sources explaining the English Bill of Rights. And that was not the Heller Court’s only questionable judgment. The majority rejected Justice Stevens’ argument that the...
by Fred Sisto | Nov 27, 2022 | Blog, Criminal Law, Monmouth County, New Jersey, Ocean County
The dissent continued: Consider Heller itself. That case, fraught with difficult historical questions, illustrates the practical problems with expecting courts to decide important constitutional questions based solely on history. The majority in Heller undertook 40...
by Fred Sisto | Nov 25, 2022 | Blog, Criminal Law, Monmouth County, New Jersey, Ocean County
Justice Breyer continued: The Court’s near-exclusive reliance on history is not only unnecessary, it is deeply impractical. It imposes a task on the lower courts that judges cannot easily accomplish. Judges understand well how to weigh a law’s objectives against the...
by Fred Sisto | Nov 23, 2022 | Blog, Criminal Law, Monmouth County, New Jersey, Ocean County
The dissent continued: And the degree of scrutiny we apply often depends on the type of speech burdened and the severity of the burden. See, e.g., Arizona Free Enterprise Club’s Freedom Club PAC v. Bennett, 564 U. S. 721, 734 (2011) (applying strict scrutiny to laws...
by Fred Sisto | Nov 21, 2022 | Blog, Criminal Law, Monmouth County, New Jersey, Ocean County
Justice Breyer continued: The majority rejected my dissent not because I proposed using means-end scrutiny, but because, in its view, I had done the opposite. In its own words, the majority faulted my dissent for proposing “a freestanding ‘interest-balancing’...