[Bubbles]

Updated Stewart Docket (http://www.supremecourtus.gov/docket/04-617.htm)

Very interesting considering the Raich decision was released this past Monday.

IIRC, the conference should be on whether or not to grant cert.

[Henry Bowman]

If they deny cert., then the 9th Circuit decision stands (that homemade MGs are OK). So if they want to uphold the unlimited scope of federal power, they have to take it up and either overturn the case or remand it for reconsideration in view of their Raich decision. It would be interesting if they remanded and the 9th Cir. stood their ground.

[Beren]

I'll dance if they deny cert, but smart money says they'll remand it for reconsideration as Henry Bowman describes.

[Bartholomew Roberts]

Well there is no way the Stewart decision can stand up to SCOTUS review if Raich defines what constitutes "interstate commerce".

It would be interesting if they remanded and the 9th Cir. stood their ground.

Yes. I think that is the best case scenario now.

[Langenator]

I put up a post on this on my blog (read it here (http://heartlesslibertarian.blogspot.com/2005_06_05_heartlesslibertarian_archive.html#111814316523874336) if you're interested). I think SCOTUS is likely to remand the case.

The gist of my hypothesis for a possible strategy for Mr Stewart was this:

Case remanded. Interstate commerce is now a failing argument, so don't use it. Make the Second Amendment argument, under the test established in Miller-that the weapons are suitable for military/militia service. The argument would fail with the 9th Circuit, just like Silviera, but would allow the introduction of evidence of the usefulness of machineguns for military service, which didn't happen in Miller.

The appeal could then be made to SCOTUS based purely on 2A grounds. I think it would have a better chance of getting cert than Silviera, because this is a challenge to federal law, whereas Silviera was a challenge to CA state law, thus forcing the Supremes to deal with the incorporation of the 2A under the 14th, which I don't think they want to do.

[dolanp]

Living in the 5th Circuit, I'd actually prefer that SCOTUS not touch the 2A right now given their issues. I know that's selfish though. :D

[Henry Bowman]

The appeal could then be made to SCOTUS based purely on 2A grounds. I think it would have a better chance of getting cert than Silviera, because this is a challenge to federal law, They didn't take up Emerson. I don't think that they will touch a 2A case right now. Maybe after we get 2 or 3 more Justice Thomases. ;)

[GuyMontag]

According to this here (http://www.supremecourtus.gov/docket/04-617.htm) , they will be deciding it on June 9th.

Given that the 2nd Amendment is an issue there... what do you think will happen?

[Justin]

See Gonzales vs. Raich. :uhoh:

[Beren]

Duplicate threads merged.

[GuyMontag]

Maybe after we get 2 or 3 more Justice Thomases.

Likelihood estimate: zero. :uhoh:

[Langenator]

The name I've heard mentioned as the most likely candidate to take Rehnquist's slot (not necessarily as Chief, though) is someone named McConnell. He's apparently written a hell of a lot of scholarly type stuff, and is widely respected enough that even though he's conservative, there's not much the Dems could say about him except the usual unsubstantiated scream of "Extremist!" I don't know anything of his stance on 2A.

The 9th Circuit denied the part of Stewart's appeal based on RKBA, citing Silviera. To the best of my knowledge, Stewart did not appeal that to SCOTUS-the appeal is completely by the DOJ, appealing the interstate commerce ruling by the 9th Circuit.

[Third_Rail]

I think we all know how this one is going to end, in light of Raich.

[GuyMontag]

Langenator: The question is, is he an "extremist" like Scalia or an "extremist" like Clarence Thomas? I wouldn't know, but it seems to my extremely uneducated mind that the two demonstrates two different types of conservatism.

[Bubbles]

Remember this case still has months to play out. The conference tomorrow is only on whether or not to grant cert. If the USSC grants cert, expect oral arguments to be scheduled for sometime this fall, with a ruling next year.

If the USSC doesn't grant cert, it could simply refuse to hear the case and leave the Ninth Circuit's ruling intact, or it could remand the case back to the Ninth for a new ruling.

The Stewart case does differ from Raich in fundamental ways, and Scalia's opinion provides some insight there. For instance, there is a legal, though highly regulated, interstate market for machine guns where none exists for mj. Also, machine guns aren't fungible like mj or even wheat; it's possible to verify (via the NFA registry) whether a particular machine gun is legal or not while such verification on a "dime bag" of mj can't easily be done. Finally, the Gun Free School Zones case (Lopez) tracks more closely to Stewart than even the Raich case, and that one went our way.

[dolanp]

I agree on that Bubbles. It may be wishful thinking, but the various 'reasonings' used in Raich to overturn the 9th in that case are not really present here. There is some hope, but I am guessing they will deny or remand.

[captain obvious]

Forgive me, but I'm confused - if SCOTUS denys cert, does the 9th Circuit ruling stand only for the 9th Circuit?

Then it would be legal to posses homemade machineguns in California (or even, say San Francisco), but NOT "assault weapons"? :confused:

[Henry Bowman]

You would be right. If cert is denied, expect the state of California to quickly pass ban on all NFA items. It would pass so fast that we would hear the sonic boom here in Ohio.

[Third_Rail]

It would pass so fast that we would hear the sonic boom here in Ohio.


No kidding. I think even here in MA we'd hear it pretty loud.



"Sonic... BAN!!!!!!!" :neener:

[Bubbles]

From the NRA-ILA web site on Kali firearm laws:

NATIONAL FIREARMS ACT FIREARMS

A machine gun is defined as any firearm which shoots, or is designed to shoot, automatically, more than one shot, without manual reloading, by single function of the trigger. The term also includes any conversion part, frame or receiver of a machine gun, or any firearm deemed as such by the federal government. Upon a showing of good cause, a permit for possession and/or transportation may be issued by the Department of Justice.

It is unlawful to possess a destructive device, including tracer or incendiary ammunition or any firearm larger than .60 caliber which fires fixed ammunition, or any fixed ammunition for such firearm. Excluded are shotguns and shotgun ammunition.

NOTE: It has been reported that the Department of Justice refuses to grant such permits.

So, it looks like a de-facto ban is already in place.

[Standing Wolf]

Maybe after we get 2 or 3 more Justice Thomases.

Next year on the 37th of April.

[LAR-15]

Tag

[beerslurpy]

If Bush gets his way, we will have more Thomases on the court. Janice Rogers Brown is cut from the same cloth as Thomas, and she is IMO as eloquent as Scalia. Brown has said many many times that she views the New Deal precedents as illigitimate and that she wishes to undo the collectivist dealings in this country.

I am confident that as long as we keep sending presidents like bush to the white house we will continue to replace existing justices with Thomases. The problem is that Kennedy, Souter, Ginsburg and Breyer are all relatively young and healthy. Stevens and Rehnquist are both getting old, but only Rehnquist is showing obvious signs of wear. Replacing Stephens with an originalist would solidly tilt the court in an anti-Wickard fashion. It would be a choice between 5-4 and 6-3 majorities in our favor.

Then again, with Scalia so eager to advance pet causes on the back of Wickard, it is hard to imagine us making progress anytime in the next 15 years, even if things go well.

Our best hope is to keep getting conservative issue federalism cases before the supreme court and possibly replace one of the anti-federalism judges with another originalist- this might work.

[stevelyn]

Ya'll don't really think that the black-robbed jackarses on the Supreme Court are really going to rule in a manner that undermines the govt's power do you? :scrutiny:
They rubber stamped their approval for the govt's propaganda regarding marijuana, they'll do likewise on Stewart. The hearing is only for the public consumption...............nothing more.

[lunaslide]

Brown has said many many times that she views the New Deal precedents as illigitimate and that she wishes to undo the collectivist dealings in this country.
THIS is why the Democrats have been screaming about her being an "extremist". Do not be fooled, this more than anything else is the holy grail of a party that has swung wildly left since the 50s and they will not let it go without a fierce fight.

When there is no obvious reason for the Democrats screaming "extremist" about a judicial nominee, look closer and you will find this same type of judge.
Ya'll don't really think that the black-robbed jackarses on the Supreme Court are really going to rule in a manner that undermines the govt's power do you?
They rubber stamped their approval for the govt's propaganda regarding marijuana, they'll do likewise on Stewart. The hearing is only for the public consumption...............nothing more.
It sometimes looks very bleak for federalism these days and indeed it will take decades of concerted effort on our part against an ignorant public to undo the damage that has been done to it by "living document" SC appointees. But if you look at history, it took them decades to get to this point also. There are still true believers in the constitution out there, and some of them do work in government and are potential choices for the bench. While I am disgusted with the way the 7 Republicans caved on the judicial nominations deal, I am hoping that it will backfire in the case of Brown such that when she is nominated for the SC, the Democrats will find themselves having to explain why she was suitably qualified for the district bench, but not the SC.

[beerslurpy]

Yeah, listening to the liberals rave about her extremism is almost more informative than anything the republicans have said in her favor.

Its a lot of fun reading between the lines to see all the holy cows she has been taking an axe to during her career.

[publius]

I correctly guessed the outcome of Raich when I read about the oral arguments. Scalia hammering away at Raich's attorney about Wickard told the tale. The New Deal would be upheld.

Stewart will be remanded in light of Raich. It will never get heard before the Court. Why should it? The cases are about the same fundamental issue. There's no reason to hear it, just to again affirm Wickard. They just did that. There's also no reason to expect them to let the 9th's ruling in Stewart stand, especially when they just got done slapping down the same type ruling in Raich.

Our government doesn't always make sense, but it makes enough sense enough of the time to be predictable in this matter. I can't believe it is even being discussed. Of course they will remand.

[lunaslide]

There was no mystery about Justice Kennedy's Vote in Raich (http://http://www.scotusblog.com/movabletype/archives/2005/06/justice_kennedy.html) either and how it will apply to Stewart:


But is Kennedy's vote in Raich really such a mystery? Justice Kennedy broadcast a decade ago in his Lopez concurrence that while he valued federalism, and he was going to enforce federalism values in a number of contexts, he was not going to favor any positions that upset the basic settled view of the scope of the Commerce Clause:


[T]he Court as an institution and the legal system as a whole have an immense stake in the stability of our Commerce Clause jurisprudence as it has evolved to this point. Stare decisis (http://dictionary.reference.com/search?q=stare+decisis) operates with great force in counseling us not to call in question the essential principles now in place respecting the congressional power to regulate transactions of a commercial nature. That fundamental restraint on our power forecloses us from reverting to an understanding of commerce that would serve only an 18th century economy, dependent then upon production and trading practices that had changed but little over the preceding centuries; it also mandates against returning to the time when congressional authority to regulate undoubted commercial activities was limited by a judicial determination that those matters had an insufficient connection to an interstate system.


This is why the fight over judicial nominations are so important and why Senators need to have their feet held to the fire when they capitulate on such an important matter.

One of the big problems with this kind of thinking, besides the obvious lack of restraint on Federal power, is the argument about "reverting to an understanding of commerce that would serve only an 18th century economy". In many ways, our economy is changing such that manufacturing processes traditionally available to only entities with substantial capital are now becoming available to small business and individuals to an amazing extent. Technology has made possible fabrication techniques that more closely resemble the make-up of 17-18th century industry than it does 19th and 20th century industry. Federal power to reach as far as is being allowed by decisions such as Wickard and Raich allow the federal government to regulate the smallest details of industry. This logical extention of New Deal federalism would have horrified the founders.

[publius]

This logical extention of New Deal federalism would have horrified the founders.
It horrifies small business owners every day.

[AZRickD]

Yes, the logical extension is that the Supreme Court would uphold Soviet-style central planning and would say something along the lines of, "That millions of people are starving due to inefficient market forces is troubling, but we must respect the concept of stare decisis...perhaps the People can enjoin their legislators in the democratic process to..."

James Madison is spinning in his grave:
The powers delegated by the proposed Constitution to the federal government, are few and defined. Those which are to remain in the State governments are numerous and indefinite. The former will be exercised principally on external objects, as war, peace, negotiation, and foreign commerce; with which last the power of taxation will, for the most part, be connected. The powers reserved to the several States will extend to all the objects which, in the ordinary course of affairs, concern the lives, liberties, and properties of the people, and the internal order, improvement, and prosperity of the State.

The operations of the federal government will be most extensive and important in times of war and danger; those of the State governments, in times of peace and security. As the former periods will probably bear a small proportion to the latter, the State governments will here enjoy another advantage over the federal government. The more adequate, indeed, the federal powers may be rendered to the national defense, the less frequent will be those scenes of danger which might favor their ascendancy over the governments of the particular States. --James Madison, Federalist #45

Rick

[Beren]

Publius or other legal types, would you like to take a stab at wording an Amendment which would specifically curtail the current abuse of the Commerce Clause?

[beerslurpy]

A new amendment:
Congress shall enact no law under the authority of Article 1 Section 8 relating to interstate commerce. Abuse it and lose it. Congress shall make no law under the authority of the "general welfare" clause either.

Still, do you think that the federal government will pass a law removing its own power? Do you think the judciary who already ignores the plain english text in the constitution will pay any more heed to another amendment? We already have the 10th amendment and the constitution telling us this is bull????. More stuff tacked on to the constitution wont help.

It would be easier to get congress to simply repeal all the offending laws than to try and get a new amendment and get the supreme court to not misinterpret it. By the time we accomplish that, we could have all textualists on the supreme court, at which point it would become a moot issue.

[publius]

I'm not really a legal type, I just play one on the internet.

But I'll take a shot.

How about this:

The Congress shall have the power to regulate interstate commerce, but that power shall not extend to objects which, in the ordinary course of affairs, concern the lives, liberties, and properties of the people, and the internal order, improvement, and prosperity of the State.

OK, OK, so Madison ghost-wrote it for me. Sue me! ;)

[Control Group]

Amendment XXVIII

The Congress shall have the power to regulate commerce between the several states, or between the several states and foreign nations. This power shall not be construed to include direct regulation of commerce between citizens of different states, and is limited solely to regulation of commerce between the states themselves. This power shall not be construed to include any authority to enact laws or regulations which restrict commerce beyond restrictions enacted by an interested state.

The Supreme Court, and such lesser courts as may be designated by same, shall be the sole arbiters of disputes between the states regarding commerce, and shall always rule bearing in mind the ideal of unrestricted trade.
And, for good measure:

Amendment XXIX

Each of the several states shall be guaranteed equal treatment by the Congress in matters relating to the budget set by the Congress. In the event that the Congress determines a course of action involving disbursement of federal monies to any of the several states, such disbursement shall be made available to each of the several states and apportioned according to either population or land area of each state. No other conditions or restrictions may be required by the Congress for the disbursement of funds.

The President may, at his discretion, make exception to this amendment in cases of natural disaster, invasion by a foreign entity, or civil unrest, affecting only one or a few of the several states. Such exceptions are limited to the duration of the emergency, and, once enacted, may be overturned at any time by a simple majority of either house of Congress, or by a ruling of the Supreme Court.
IMHO, those two amendments would go a long, long way towards fixing the fed.gov, and bringing the country more in-line with what the founders wanted it to be.

[ID_shooting]

Any word yet?

[Kharn]

The SC releases its orders on Mondays.

Kharn

[ctdonath]

The current abuse of the Commerce Clause, as Thomas notes, is based on redefining "commerce" as "business". Those who deny the meanings of words will not be swayed by more words.

"Commerce", as intended by the Founders, does not include "manufacture", "possession", or anything other than the actual sale of something.

[publius]

Any word yet?

Yes, you have an absolute gold-plated guarantee directly from publius that the Stewart case will be sent back to the 9th with a nasty note stapled to it saying "See Raich."

[EasternShore]

If I am reading this right, they denied the case...

http://www.supremecourtus.gov/docket/04-617.htm

[publius]

Dec 22 2004 DISTRIBUTED for Conference of January 7, 2005.
Jun 6 2005 DISTRIBUTED for Conference of June 9, 2005.

That means they're talking about it. They're deciding what color pen to use on the note that says "See Raich" when they send it back to the 9th.

At least, I assume that's the only issue remaining to have a conference about.

[Flyboy]

While we're dreaming of amendments, I'd like to throw this little gem into the ring:

Amendment the Somethingth:
1. Any Bill introduced in Congress shall have, as its first section, Findings of Fact explaining the necessity of the Bill, and, as its second section, a Citation of Authority explaining the Constitutional authority for such a law.
2. In the event that the Findings of fact shall be incorrect, be it by initial error, advancements in the state of learning, changes in circumstance, or any other cause, the entire bill shall immediately and irrevokably be null and void, and stricken from the law; the law shall also be stricken if the Supreme Court overturns the law based on the cited authority. The Court shall not allow the law under any Constitutional authority other than that cited.
3. All Bills must be read aloud, in a full session, by their Sponsor, in their entirety, with no interruption. Any interruption shall require the Sponsor begin again from the beginning.

The first part, obviously, is to justify the reason for the law, and also to force our elected representatives to justify their use of power. It should also make it easier for the High Court (I'm really growing to like that term!) to overturn abusive laws, as they'll be able to see what authority the Congress is attempting to use.

The second part is threefold in its purpose. First, it requires laws to be rational in the face of facts. If Congress just plain gets the facts wrong, and passes a law based on bad facts, the law dies. If further research (for example, medical research) later shows that the facts were incorrect (through no fault of the Congress), then the law dies. If circumstances change (for example, a law limiting the number of broadcasting stations, due to the limited amount of spectrum available; new technology allows narrower channel widths, so the circumstances have changed), the law dies. Second, it prevents the Court from "finding" an excuse to keep a law around; the law must be considered only in light of the cited justification. Third, and, IMHO, most important, is the "entire Bill" clause: if a single mistake can cause a three-hundred-page law to be tossed, Congress will have a huge incentive to pass tiny, narrowly-crafted laws, rather than great, sweeping laws. This in itself has two benefits: first, narrow laws are, by definition, more restrictive; if Congress really wants to restrict something, it had better not include anything extraneous that could be used as a challenge later. Second, it places a natural restriction on Congress's ability to restrict us, as there are a fixed number of hours in the year (8760, if you're interested), and passing a law just takes time.

(3) is just because I'm mean that way. And by "no interruptions," I mean, not even a bathroom break. That'll keep things down to a reasonable size.

[publius]

Ron Paul introduces a bill pretty much like that each session. It's one of the great things about him. ;)

That guy from Arizona (I think), Hayworth or Haywood or something. Anchormanface. Look it up. Anyway, he also introduced more or less the same bill a few sessions back.

A few conservative warhorses sign on as sponsors sometimes, but the bills go nowhere, of course.

[Bill St. Clair]

I prefer simply: "Congress shall make no law."

[Kharn]

The SC vacated and remanded Stewart back to the 9th Circuit for further consideration in light of Raich. Will the same 3 judges hear it? Can they pull a "Raich doesnt apply" or find some other avenue?

Kharn

[dolanp]

04-617
UNITED STATES V. STEWART, ROBERT W.
The motion of respondent for leave to proceed in forma pauperis is granted.
The petition for a writ of certiorari is granted.
The judgment is vacated and the case is remanded to
the United States Court of Appeals for the Ninth Circuit for
further consideration in light of Gonzales v. Raich, 545 U.S.
____ (2005).

So it's basically an order to redecide huh? What does 'vacated' mean in layman's terms in this context?

[LAR-15]

I need to destroy my homemade machinegun making equipment now. :mad:

[Brett Bellmore]

Did they even bother to let us know who was on what side of that "Think again!" ruling?

[Kharn]

Brett:
That's never disclosed.

Kharn

[ctdonath]

Likely screwed now. Raich aside, just sending it back for review will likely get different judges who will most likely not be so kind to MGs. That Stewart succeeded there before was a fluke where 2 conservatives, out of a herd of liberals, were put on the case. Stewart's done and gone.

Anyone STILL want to rest our RKBA restoration hopes on the coincidental convergence of felons, criminal activity, judge assignments, and non-RKBA arguments?

[armoredman]

Not unexpected. Another terrible blow to freedom, and another nail in lady Liberty's coffin, but not unexpected. The 9th being what it is, undoubdtedly it will be very quickly churned out eh "correct" way, and all those Sten kits will continue to languish....

[dolanp]

Suppose for the sake of discussion that the 9th held its previous ruling. Could the gov't then repeal once more or would that be the end of it in the 9th circuit jurisdiction?

[publius]

Zero chance of that, dolan, but if the 9th did reach the same conclusion, even in light of Raich, it probably would be appealed once again to the Supremes who would probably not bother sending it back this time. They'd just overturn it.

[Kharn]

Publius:
So the SC said the 9th is wrong and to write a new opinion, based on Raich, that says 922(o) is ok?

But what about the 9th (or another defendant/court) using the US v. Rock Island (http://www.constitution.org/2ll/court/fed/us_v_rock_island.htm)/US v. Dalton (http://www.constitution.org/2ll/court/fed/us_v_dalton.htm) approach of saying its unconstitutional since it doesnt generate revenune and the NFA has been held by the courts to be a tax statue (Sonzinsky v US (http://caselaw.lp.findlaw.com/cgi-bin/getcase.pl?court=us&vol=300&invol=506))?

Kharn

[Langenator]

Maybe someone more familiar with court operations can correct me here, but what's to stop Mr Stewart from arguing that 922(o) is unconstitutional by the test established in US v Miller? It shouldn't be hard to show the suitability for military/militia use of machineguns.

The 9th would deny him this argument (they already have said that the 2A does not guard an individual right in Silveira, and cited thier Silviera decision in denying Stewart's 2A claims the first time, on his appeal of his conviction for possession of firearms by a felon.

When the 9th upholds his conviction on the machineguns (which they will), Stewart can then make an appeal to SCOTUS based solely on the Second Amendment. And unlike in Silveira, there wouldn't be any 14th Amendment issues to clutter things up, since 922(o) is a federal statute.

This would be a new appeal, since the one that was just remanded today was an appeal by the government.

Looking at the odds, I'd put Thomas on our side for sure, with Scalia (based on his reverence for precendent) and Rehnquist's replacement likely on our side, with the 4 big libs (Ginsburg, Stevens, Breyer, and Souter) on the bad side. That would mean we'd need to get O'Connor and Kennedy. Just one for cert, both for the win.

[publius]

Kharn,

I think your idea would not work for the same reason that Raich cannot now go back and challenge the ruling by saying that the Marihuana Tax Act was a revenue act. Yes, it was, but the Controlled Substances Act is not. Aren't living documents wonderful?

[tyme]

Likely screwed now. Raich aside, just sending it back for review will likely get different judges who will most likely not be so kind to MGs. That Stewart succeeded there before was a fluke where 2 conservatives, out of a herd of liberals, were put on the case. Stewart's done and gone.
It is possible that the 9th circuit will say, "we don't like machineguns, but there'll be snow in San Diego before we apply Raich to anything." In which case the SCOTUS will probably take the case again and smack the 9th circuit around some more, the feds will continue with their spot-enforcement of immoral and unconstitutional drug laws, and the locals will continue giving them the finger.