2A Supreme Court scenarios: 2008


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Fletchette
June 17, 2007, 11:58 PM
So it looks like we are going to have our day in court; as you know the DC handgun ban was ruled unconstitutional my the DC Federal Circuit court, forcing the Supreme Court to either let the ruling stand (Yay! 2A is ruled an individual right!) or hear the case. Since I see the Supreme Court justices as four pro-Bill of Rights, four statists and one unknown, it could go either way.

If the Supreme Court upholds the lower court decision, we win :D. If the Supreme Court rules differently, they could either throw the lower court's ruling out (saying that 2A only specifies a National Guard :barf:) or pass some strange, convoluted, hard to understand opinion that leaves everyone wondering what the Justices are smoking (the most likely scenario :scrutiny: ).

Lastly, I do not see a Democrat President (like Hillary) being able to stomach a ruling that allows citizens to walk around the nation's capitol carrying guns, so there could be some sort of Executive Order countering the Judicial ruling (instigating a Constitutional crisis) or even a rushed through Amendment to repeal the Second Amendment (hey, if Congress can ignore overwhelming opposition of the illegal immigrant amnesty bill, they could pass an Amendment overturning the Bill of Rights). This would also cause a Constitutional crisis as the overturning of the Bill of Rights would not be taken well by the states, and I suspect there would be more than a passing attempt by some to secede.

So, how do you think 2008 will go down? Under the various scenarios that could lead to a Constitutional crisis, what would happen and what do you think is a justifiable response?

I really hope that the Supreme Court does it’s job and confirms the Second Amendment to be an individual right, or else this country will be in a great big mess…

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ancient_philosophy
June 18, 2007, 12:04 AM
yes, dont we all know how the Draconian gun laws in DC cracked down on gun crimes...... (sic):scrutiny:

eric_t12
June 18, 2007, 12:12 AM
but they did crack down on gun crimes.

my soldier is from Baltimore, and DC (off and on) and he said all his friends who weren't on crack had a gun...

wait... did you mean something else? :P

LAK Supply
June 18, 2007, 12:29 AM
......or even a rushed through Amendment to repeal the Second Amendment (hey, if Congress can ignore overwhelming opposition of the illegal immigrant amnesty bill, they could pass an Amendment overturning the Bill of Rights)

This will not happen..... 2/3 state majority for repeal is not going to happen any time soon.

As for the Parker, the decision is highly likely to be in our favor if they grant.

Gifted
June 18, 2007, 12:32 AM
Problem with an amendment is that it doesn't just have to go through Congress, but be ratified by the states, by a large margin. That's not going to happen easily, nor quickly.

Langenator
June 18, 2007, 01:01 AM
2/3 state majority for repeal is not going to happen any time soon.

Actually, it's 2/3 of each chamber of Congress, and 3/4 of the state legislatures.

And the original poster seems to have forgotten that SCOTUS can't rule one way or the other if DC doesn't appeal the Circuit Court's decision, which hasn't happened yet.

Fletchette
June 18, 2007, 01:40 AM
Actually, it's 2/3 of each chamber of Congress, and 3/4 of the state legislatures.

Not quite, there are two, seperate ways. The first method is for a bill to pass both houses of the legislature, by a two-thirds majority in each. The second method is for a Constitutional Convention to be called by two-thirds of the legislatures of the States. Each state must then pass it by a three-fourths vote. Neither depend on each other.

And the original poster seems to have forgotten that SCOTUS can't rule one way or the other if DC doesn't appeal the Circuit Court's decision, which hasn't happened yet.

Do you really doubt that they will appeal? If they let it stand, well, the current ruling is a liberal's worst nightmare. Not only would people be allowed to own guns but DC would probably be forced to institute some form of CCW permits.

So I do not doubt that it will be appealed, unfortunately.

Kelly J
June 18, 2007, 01:57 AM
I wouldn't look for anything to happen until after the 08 Presidential Elections, at the earliest.

LAK Supply
June 18, 2007, 02:15 AM
The Parker ruling has been stayed for cert; it happened a couple of weeks ago. The only reason this happens is because there is a pending appeal. DC is in the process of appealing and the only question now is whether or not the Supremes will hear the case. There is a high likelihood that the case will be reviewed by SCOTUS because there is a definite split between circuits, and now the DC court (it's own animal) has added to this.

If the case is heard it will likely be done by this time next year, and it will have little or nothing to do with the election in terms of timeframe. As well, a favorable ruling by the justices is likely as the scope of the actual argument of Parker is very narrow. As well, a favorable ruling with Parker would not change the firearms laws across the nation; what it would do is open those laws to challenge under new jurisprudence.

jpk1md
June 18, 2007, 05:28 AM
Just because its been stayed doesn't mean that DC is 100% OBLIGATED to appeal to SCOTUS. They could simply take the time to craft new draconian laws that essentially maintain the ban due to excessive regulation and implement them at the end of the 90 stay.....IF they choose NOT to appeal they may catch hell from the courts but...oh well.

IF DC does nothing more than craft a new draconian law that is essentially a ban then we'll likely see the whole process begin again with a new equivalent of Parker...the only difference would be that it would likely hit the courts after the 2008 elections when the Anti's feel they MAY have more power.

The strings/decision to appeal/not appeal are being pulled at levels far above Fenty/DC.

I expect that we'll hear if DC is going to appeal within the next 30 days or so.

ConstitutionCowboy
June 18, 2007, 09:53 AM
Not quite, there are two, separate ways. The first method is for a bill to pass both houses of the legislature, by a two-thirds majority in each. The second method is for a Constitutional Convention to be called by two-thirds of the legislatures of the States. Each state must then pass it by a three-fourths vote. Neither depend on each other.

Amendments start either in Congress with the approval of at least 2/3 of each house, or if the legislatures of 2/3 of the states call for a convention to propose an amendment(s). Any amendments proposed by 2/3 of each house of Congress, or in convention by 2/3 of the states, must then be ratified. Congress will then decide if the proposed amendment(s) shall be ratified either by 3/4 of the states by conventions held in each state, or by the legislatures of 3/4 of the states(not 3/4 of the legislatures in each state).

In numbers, it looks like this:
Proposal

Either: Passed by 67 Senators and 290 Representatives,

Or: Passed by 34 states in convention.


Ratification: (Congress chooses which method.)

Either by 38 of the states in a convention held in each state;
Or by the legislatures of 38 states.



Woody

Henry Bowman
June 18, 2007, 10:03 AM
Not only would people be allowed to own guns but DC would probably be forced to institute some form of CCW permits. I believe you overstate the scope of the ruling. DC residents could get permission to buy a handgun (if they can find an FFL in DC) and to keep it in operable condition within their home. The next steps way follow, but not under this ruling.

Mazeman
June 18, 2007, 10:33 AM
I wouldn't look for anything to happen until after the 08 Presidential Elections, at the earliest.

DC *must* decide by August whether or not they'll appeal to SCOTUS. If they decide to, there's no reason for the Supremes to delay their decision on whether or not to grant cert. So, that decision should be made by year's end, and my guess would be they'd take the case, making this an election year issue.

Because of this, my prediction is that DC will *not* appeal. They'll let the ruling stand, and institute some very strict allowances for gun ownership, similar to NYC (as opposed to the ban they currently have). Then there will be a never-ending parade of legal challenges (to laws inside and outside of DC) through the DC circuit over the next decade. Sure it's not great for them, but the alternative- appealing (and possibly losing) during an election year- is worse. This is my guess on how national gun control advocates and Dem Party leader are advising Mayor Fenty.

That said, I hope I'm wrong, and it goes all the way to Scotus.

Fletchette
June 18, 2007, 02:35 PM
Still Not Right

--------------------------------------------------------------------------------

Quote:
Not quite, there are two, separate ways. The first method is for a bill to pass both houses of the legislature, by a two-thirds majority in each. The second method is for a Constitutional Convention to be called by two-thirds of the legislatures of the States. Each state must then pass it by a three-fourths vote. Neither depend on each other.

Amendments start either in Congress with the approval of at least 2/3 of each house, or if the legislatures of 2/3 of the states call for a convention to propose an amendment(s). Any amendments proposed by 2/3 of each house of Congress, or in convention by 2/3 of the states, must then be ratified. Congress will then decide if the proposed amendment(s) shall be ratified either by 3/4 of the states by conventions held in each state, or by the legislatures of 3/4 of the states(not 3/4 of the legislatures in each state).

In numbers, it looks like this:
Proposal

Either: Passed by 67 Senators and 290 Representatives,
Or: Passed by 34 states in convention.
Ratification: (Congress chooses which method.)
Either by 38 of the states in a convention held in each state;
Or by the legislatures of 38 states.

Gotcha. This is very clear. So basically I think we all agree that it would be very, very difficult to pass an Amendment to overturn the 2A. However, in today's make-it-up-as-you-go-along political environment, I do not think it is implausible that a Hillary would try to null out the Supreme Court ruling with an executive order with the force of law (a trick she learned from her husband). Even if we think that is completely unconstitutional a lot of Washington drones would go along with it and enforce it. That would be a constitutional crisis.

tulsamal
June 18, 2007, 02:44 PM
Gotcha. This is very clear. So basically I think we all agree that it would be very, very difficult to pass an Amendment to overturn the 2A.

It's DARN hard to pass or repeal amendments. Which is exactly the intention. Those of us who lived through the 70's remember the ERA amendment. It was going to constitutionally give women "equal rights." There were lots of men that supported it. And woman are a majority in the US anyway. And yet the amendment never did manage to become part of the Constitution.

That's what happens to nearly every proposed amendment.

Easier for politicians to just ensure that, over time, the courts rule that the written text means something different than what we all thought it meant!

Gregg

ServiceSoon
June 18, 2007, 09:12 PM
I imagine the USSC will rule the second applies to the people, because this is irrefutable truth and any other ruling would be foolish.

Some time after the ruling another tragedy will occur and politicians will preach they will fix the problem with gun control and with the help of the NRA and the likes-you know Brady etc they will further infringe upon the peoples right to bear arms and infringe upon the tenth amendment.

Then we will be one step closer to a utopia or we will be one step closer to another Germany, China, maybe Gaza, etc etc etc. You be the judge, because after all you are a part of “we the people.”

tepin
June 18, 2007, 10:24 PM
so if the ussc says the 2A is an individual right, what does that really get us? we can keep buying guns and the states keep restricting where we can take them? :confused:

ConstitutionCowboy
June 18, 2007, 10:41 PM
I'd be much happier and comfortable if the Supreme Court ruled in line with the Second Amendment - that being that the right shall not be infringed.

Lets assume the Second Amendment simply said , "The Right to Keep and Bear Arms shall not be infringed." No mention of the people, or the security of a state, or of the fact that a well regulated militia is necessary for anything. Then there would be no argument at all about who owns the right, and to whose benefit the right shall not be infringed. No law could be written that infringed upon the right.

It is no different now, except it is actually a right of the people. The Amendment says so. However, the logic remains the same and the right shall not be infringed. I don't think I can make it any simpler, though I keep trying.

Woody

A law that says you cannot fire your gun in the middle of downtown unless in self defense is not unconstitutional. Laws that prohibit brandishing except in self defense or handling your gun in a threatening or unsafe manner would not be unconstitutional. Laws can be written that govern some of the uses of guns. No law can be written that infringes upon buying, keeping, storing, carrying, limiting caliber, limiting capacity, limiting quantity, limiting action, or any other act that would infringe upon the keeping or bearing of arms. That is the truth and simple reality of the limits placed upon government by the Second Amendment to the Constitution. B.E.Wood

ctdonath
June 18, 2007, 10:56 PM
so if the ussc says the 2A is an individual right, what does that really get us? New M16s for $1000.
And no AWB-II.
And, the biggie, the chance to get RKBA "incorporated to the states" via the 14th Amendment, at which point the bulk of 20,000 gun control laws evaporate.

Ratzinger_p38
June 18, 2007, 11:25 PM
New M16s for $1000.

Whoa..droool.

Firethorn
June 18, 2007, 11:56 PM
Ratzinger_p38, those would be for good M-16. Replacement cost for the AF's was listed at $420 last time I looked.

Kelly J
June 19, 2007, 12:16 AM
I personally would hope to have the Supreme Court hear the case, and uphold the DC Circuit findings, and that decision lead to a lot of challenges to other laws, and have them reversed in favor of the 2nd Amendment, restoring the rights that have been lost over the years.

LawBot5000
June 19, 2007, 01:20 AM
New M16s for $1000.
And no AWB-II.
And, the biggie, the chance to get RKBA "incorporated to the states" via the 14th Amendment, at which point the bulk of 20,000 gun control laws evaporate.

Long term possibly but short term, no way.

If (and it looks increasingly unlikely at this point) the DC gov appeals Parker, the supreme court will not get to rule on incorporation. The only question is a narrow one about whether the 2nd amendment prohibits outlawing handguns or the keep of arms for self defense. All the dicta about reasonable restrictions would remain unanswered.

The immediate effects of such a ruling is that:
-it would conflict with a lot of precedent in the federal circuits, denying them the easy way out of saying "blah blah Miller = collective right case closed." All of those circuits would have to start accepting 2nd amendment cases again and have to start ruling in a manner consistent with the standard model
-it would open up the door for future questions (not at the suprme court level initially, that would follow many years later) about what sort of restrictions upon the right are permissible.
-and DC's little law would be overturned

tepin
June 19, 2007, 07:59 AM
makes sense. i cannot imagine any ruling creating a 180 or 360 degree turn from where we are today as far as guns go. it would just fix minor debate issues in places like DC and CA. Maybe. I just hope I die of old age before I see the U.S. go the way of the UK. I read somewhere that the crime rate in Brittian leaped ahead of New York, probably because they banned knives too.

Thanks for your reply

71Commander
June 19, 2007, 08:46 AM
If the cow wins, here's what will happen. She will arrange for an accident *wink,wink* of the 4 pro gun Justices and then get 4 anti's on the bench prior to the ruling.

ctdonath
June 19, 2007, 11:39 AM
short term, no wayAh, the problem of concise vs. thorough; idealism vs. reality.
Didn't mean it would happen instantly. Let me clarify.

The immediate result of a favorable ruling by SCOTUS on Parker would be ... nothing, unless you live in DC (at which point you would be able to buy a handgun, subject to strict licensing (yes, DC has been operating a handgun registry for 30+ years, they just said "no" to every application), and keep it in your home assembled & unlocked, and be allowed to move it from room to room).

Outside of DC, the only federal gun ban is on machineguns. As it currently stands, Parker provides a template for licensed private possession thereof; replace each "handgun" reference with "machinegun", add a note that M16s are standard/quintessential infantry/militia arms, and the case is the same. This will require a separate case. If DC doesn't appeal, the case can be filed immediately in DC court promptly upon submitting an NFA Form 4 for a new M16/M4 and having the transfer request rejected by the BATFE. This potential case is probably the strongest reason for DC to appeal, as the current state of Parker is very favorable to overturning 922(o) (machinegun ban), while a SCOTUS appeal has a viable chance (a la Kelo) of reversing Parker. Methinks this would happen pretty quickly (relative to the speed of litigation), as the case looks quite straightforward; the one concern is that the opposition would absolutely freak and do ANYTHING to prevent even NFA-level legalization of new machineguns.

In theory, SCOTUS upholding Parker should mean no AWB-II; if pistols cannot be federally banned, then surely rifles cannot either. The Leftists will try anyway, of course. SCOTUS upheld McCain-Feingold, so there is danger that they'll uphold AWB-II on the "but you can get something that isn't banned" line.

14th Amendment incorporation of 2nd Amendment to the states would surely follow as well. If something is deemed an "individual right" federally, then surely the states cannot hinder the federal protection of that right of citizens.

Of course, this is all ideal - and the lack of idealism being reality is why we're in this mess. Chicago et al won't stand for legalizing handgun carry. Those disallowing machineguns won't stand for machinegun legalization. Those on the high road too often underestimate the underhanded tactics of the opposition.

Langenator
June 19, 2007, 02:33 PM
TennTucker-if DC appeals, and SCOTUS grants cert, the case would be heard and decided before the election. One reason that some Anti groups are thought to be leaning on DC not to appeal is that they don't want to make gun control an issue in the election, since, barring Bill Richardson winning the Donk nomination, that would generally play in the GOPs favor.

I agree with Lawbot that the immediate effects of even a pro-2A ruling would be limited. Best case would be that SCOTUS decides that the 2A protects a "fundamental right" and any federal laws impinging on that right must meet the strict scrutiny test:

-must meet a compelling government interest
-must be narrowly tailored to meet that interest
-must be the least restrictive means possible to meet that interest

This is the test that is applied to freedom of speech, most notably, and most laws that come up against this test tend to be overturned.

those would be for good M-16. Replacement cost for the AF's was listed at $420 last time I looked..

The M16A2s on my company property book were listed at $471 when I left command in 2005. Add about $225-250 for A4s. Of course, you have to buy them in lots of 10,000 to get prices like that.

Sam Adams
June 19, 2007, 06:42 PM
I personally would hope to have the Supreme Court hear the case, and uphold the DC Circuit findings, and that decision lead to a lot of challenges to other laws, and have them reversed in favor of the 2nd Amendment, restoring the rights that have been lost over the years.

I couldn't agree more. I look forward to Parker either being denied cert. or explicitly upheld (I think that there's a decent chance of that). Either way, the next step will be someone trying to buy a full auto, being denied, and appealing to the courts. With a Parker win, I don't see the '86 full auto ban being upheld. Frankly, even under the Miller standard, we should all be able to get NEW M4s, M16s and M14s, plus maybe M249s (all current-issue military firearms).

The NFA itself, IMHO, is grossly unconstitutional, and it could probably be overturned because of Section 922(o)...which prevents the government from collecting the $200 transfer tax. It is that "revenue raising purpose" that the fed.gov relied upon in arguing the NFA's constitutionality in many cases. Well, what about now that no revenue can be collected for full autos? Certainly it is ripe for challenge even without a Parker win, but with it the case would be that much stronger.

I'm old enough that my grandfathers, had they so chosen, could've walked into a Sears or other hardware store, plunked down some cash, and walked out with a full auto Tommy Gun, Colt Monitor, etc. OK, LOTS of cash, but the point is: they could get a new gun; no $200 tax; no background check, no LEO permission, no record of the transaction. That they didn't do this ticks me off, but they had no use for the guns and were busy trying to feed their immigrant families. Oh, and I can't do that now, nor has anyone been able to do that for 73 years (or even buy a new gun, even with the tax and restrictions, for 21 years). What kind of "right" is it when people born later have less or none of it vs. people who lived earlier?

My father is old enough to have been able to buy any long gun he wanted to via mail order from Sears or any other source. No background check. No fingerprints. No waiting period. No restrictions on 20mm cannons (Lahti, etc.) or the ammo for them. I repeat, "What kind of "right" is it when people born later have less or none of it vs. people who lived earlier?"

Heck, I cannot even buy some of the ammo and bullets that I could have as recently as 15 years ago. Am I somehow less trustworthy, less of a citizen than before? If anything, I'm more responsible and more risk averse, since now I've got a family and more things to lose. Again...

What kind of "right" is it when people born later have less or none of it vs. people who lived earlier?

Sam Adams
June 19, 2007, 06:46 PM
If DC doesn't appeal, the case can be filed immediately in DC court promptly upon submitting an NFA Form 4 for a new M16/M4 and having the transfer request rejected by the BATFE. This potential case is probably the strongest reason for DC to appeal, as the current state of Parker is very favorable to overturning 922(o) (machinegun ban)

So why wait until the DC appeal decision is made? Why doesn't someone in the DC Circuit do this NOW, and get the case noticed by Fenty and his legal eagles, to encourage them to appeal?

For that matter, why doesn't 1 person in each circuit do that NOW? What would be the upside & downside? Seems to me that it'd force the 922(o) issue to the USSC because of a conflict between the circuits (5th would likely rule in favor of overturning, the others would try to screw us...again).

Sam Adams
June 19, 2007, 06:51 PM
The M16A2s on my company property book were listed at $471 when I left command in 2005. Add about $225-250 for A4s. Of course, you have to buy them in lots of 10,000 to get prices like that.

I don't need quite that many, and I'd be prepared to spend $1,000 with great pleasure to get a new M16A4. Of course, I'd be more in the market for a .308 BAR or Colt Monitor, or a Tommy Gun, but I'd be satisfied with the M16 for now.:D

Fletchette
June 19, 2007, 11:58 PM
Lawbot said:

If (and it looks increasingly unlikely at this point) the DC gov appeals Parker, the supreme court will not get to rule on incorporation. The only question is a narrow one about whether the 2nd amendment prohibits outlawing handguns or the keep of arms for self defense. All the dicta about reasonable restrictions would remain unanswered.

Why would it only be an incremental change? Why would it not have an all-encompasing effect to throw out gun laws like Roe vs. Wade had an all-encompassing effect making abortion a "right"?

BTW, I am not saying anything here about whether abortion should be illegal or not; it just isn't mentioned in the Constitution and therefore should be left to the states. But Roe v. Wade didn't do that; it made it illegal for a state to outlaw abortion. Why wouldn't a positive outcome for Parker also have the same effect, with the added arguement that the Right to Keep and Bear Arms is indeed mentioned in the Constitution?

Gifted
June 20, 2007, 03:09 AM
flechette, pretty much every single law will need it's own individual challenge, except where the state/locality actively fixes their laws, or something like a state MG ban where 922o has been defeated, and the amendment incorporated.

The abortion issue was like the latter, where it hit everything immediately. Most of the various local and state laws are different enough, you can't group them together easily, and people like Bloomberg will not let go willingly, which will lead to a fight.

Langenator
June 20, 2007, 02:11 PM
The other thing you need to remember Fletch, is the temperment and philosophy of the Court and the Justices sitting at any given time.

SCOTUS, since at least Rehnquist's elevation to Chief-and I haven't seen any indication of change since Roberts took over-has shown a decided distaste for the kind of sweeping rulings that the Warren Court was known for.

SCOTUS for at least the last 20 years has tended to issue very narrow decisions that are pretty much limited to the issues specific to the case before them. A good example of this is the recent affirmative action case involving the University of Michigan-the Court's ruling could potentially have been much broader, encompassing all sorts of AA, but they limited it to just college and grad school admissions.

Sam Adams
June 20, 2007, 02:58 PM
I see it happening this way:

1) We win in Parker. Maybe its DC not appealing or a denial of cert, leaving the existing ruling standing as is, or maybe an outright victory stating that the 2A protects an individual right, and DC's law is struck down, stake through heart. In any event, this should automatically lead to...

2) Someone in the DC Circuit applies to BATFE to purchase a full auto. BATFE says, "no, you remember 922(o), don't you?" Immediate appeal to DC District Court suing to overturn 922(o). The DC District Court is bound by the Parker precedent, except that the object of this case is machine guns instead of handguns. Since the Parker precedent says that the 2A protects an individual RKBA and that bans on entire classes of guns under the 2A is forbidden, 922(o) goes away in the DC Circuit. THEN you will have 1 of 2 things happen...

3a) The case is appealed to the USSC by the fed.gov. Cert WILL NOT be denied - no way, no how (though I'd be tickled pink if we did - see 3b, below). We get a ruling. Between the Miller case requirement that a firearm protected by the 2A must be useful to efficiency and effectiveness of the militia (and how could a now-standard issue M-4 or M16A4 NOT be so useful?) and the Parker prohibition on sweeping bans on classes of guns (oh, and the 5th Circuit's ruling in Emerson that the 2A protects an individual RKBA), the USSC will really have no choice. 922(o) dies, the registry is opened up, and before the feds can make the tax $10,000 there are 500,000 full autos and receivers sold.

Now, with 922(o) gone, anyone in almost any state can buy a full auto. But not in certain states. Someone in one of those states files a Form 4, and is denied because under the '34 NFA the BATF won't approve it without the purchase being legal in the applicant's jurisdiction, and without the CLEO's approval, neither of which exist. Immediate suit in Federal District Court, claiming Equal Protection violation vs. residents of "NFA states." Immediate win - it is SOOOO clear that even a liberal can see it. Appeals, etc., until USSC level - where we win. Bingo, 2A is incorporated via full autos. If any state thereafter would still contend "You can't own any semi-auto 'assault rifle' " that would be challenged in court and the full auto precedent would cover the semis.

3b) 922(o) is overturned at the DC Circuit Court level and the USSC denies cert. (unlikely, but possible). Now someone in an NFA state fills out a Form 4, is denied, appeals, and very quickly either wins at their Circuit Court, or appeals to the USSC. Clear conflict of circuits - here the USSC MUST grant cert. I think that the failure to grant cert. at DC Circuit Court level will have some bearing (even though, officially, it means nothing). Why deny it if the decision isn't viewed as being ripe for being overturned?

Just my $0.02.

Langenator
June 20, 2007, 04:11 PM
SCOTUS doesn't have to take any case that 6 Justices don't want to, even where they have conflicting rulings in different circuits.

If they did, they would have taken Silviera because of the conflict with Emerson.

jselvy
June 20, 2007, 04:16 PM
Is the acceptance of a case completely optional for the Supremes?
I don't quite understand under what circumstances they have to take a case. Would it be possible for some of our legal eagles to explain in dummy voter language.

Jefferson

Langenator
June 20, 2007, 07:20 PM
Pretty much. When a case is appealed to SCOTUS, 4 of the 9 must vote in favor of granting cert (sorry, I can't spell the full latin term) in order for the case to be heard.

Thus, like I said, if 6 of the 9 want to bury their heads in the sand and ignore an issue, the case won't be heard.

Oh, and don't necessarily count Scalia as a vote for our side. He's expressed that he might have issues voting in a manner that would overturn large amounts of existing law. In that way, he can sometimes be more 'conservative' than 'strict constructionist.'

Sam Adams
June 20, 2007, 08:03 PM
SCOTUS doesn't have to take any case that 6 Justices don't want to, even where they have conflicting rulings in different circuits.

True enough - but do you really think that they'll deny cert. if one or more Circuits toss 922(o) and allow purchases of new machine guns by civilians, and the rest don't?

ServiceSoon
June 20, 2007, 08:17 PM
The M16A2s on my company property book were listed at $471 when I left command in 2005. Add about $225-250 for A4s. Of course, you have to buy them in lots of 10,000 to get prices like that.

I will sponsor a group buy. Put me down for 6 rilfes of all shapes and sizes. :)

Gifted
June 21, 2007, 03:09 AM
Between the Miller case requirement that a firearm protected by the 2A must be useful to efficiency and effectiveness of the militia (and how could a now-standard issue M-4 or M16A4 NOT be so useful?) and the Parker prohibition on sweeping bans on classes of guns (oh, and the 5th Circuit's ruling in Emerson that the 2A protects an individual RKBA), the USSC will really have no choice. 922(o) dies, the registry is opened up, and before the feds can make the tax $10,000 there are 500,000 full autos and receivers sold.Two things: The .gov would need to prove that there's no reasonable use for a firearm for militia use. The Isrealis use 10/22s for riot control purposes(at least they used to, not sure about now), and just about anything can be used for training. Thus, the gov can't ban ANYTHING, because ANYTHING could be used for a legitimate purpose. Second, the $10,000 tax would be shot down, since it's prohibition by taxation. This fails at strict scrutiny, and the fact that a lower tax would allow more purchases that would generate more revenue would mean that the purpose is prohibition through other means.

Here's you a question, if D.C. people can buy post-86 MGs, could those then be transfered out of the district? There's you another lawsuit.

LawBot5000
June 21, 2007, 03:13 AM
The deadline already passed for them to appeal and the extension they got has nearly passed as well. Either they are leaving it till the last minute, or they have decided not to appeal.

Mazeman
June 21, 2007, 10:33 AM
The deadline did not pass. It is August 7th.

The "stay" that was granted to DC was not an extension of the deadline; it just allowed them to postpone changes to their existing laws while deciding whether or not to appeal to SCOTUS.

Sam Adams
June 21, 2007, 01:05 PM
Two things: The .gov would need to prove that there's no reasonable use for a firearm for militia use. The Isrealis use 10/22s for riot control purposes(at least they used to, not sure about now), and just about anything can be used for training. Thus, the gov can't ban ANYTHING, because ANYTHING could be used for a legitimate purpose.

I agree wholeheartedly - that is the biggest flaw in the Miller decision, IMHO. That "...in the absence of judicial notice..." crap was just a way of ruling for the government - yet another in a long and continuing line of cases where the USSC refused to do its job of limiting government infringements of the various rights of the People.

BTW, the Israelis have also used silenced .22LR rifles for the uh, neutralization, of enemy command and control elements. They are VERY effective. The argument about training is something that I believe was an element of the original Parker majority opinion (which is also another argument for not limiting the 2A protections to only those of "militia" age - we older than 45 dinosaurs can teach the kids and teens how to shoot, clean, maintain, safely use and reload militia arms, so you can't take them).

Second, the $10,000 tax would be shot down, since it's prohibition by taxation. This fails at strict scrutiny, and the fact that a lower tax would allow more purchases that would generate more revenue would mean that the purpose is prohibition through other means.

One would hope so - and I, were I a Justice, would vote that way. I'd certainly join a class action to challenge such an abomination.

ctdonath
June 22, 2007, 12:05 PM
Why doesn't someone in the DC Circuit do this NOW, and get the case noticed by Fenty and his legal eagles, to encourage them to appeal?Great idea.
For that matter, why doesn't 1 person in each circuit do that NOW?I've been advocating a variant of that for some time now. I just don't have the legal connections to arrange it (need lawyer to write up a DIY-type BATFE Form 4 Rejection complaint & appeals, and have LOTS of people do it simultaniously; key is making it cheap, easy, & straightforward). Haven't seen any case done where coordinated suits induce inconsistent rulings, forcing SCOTUS to address it; I like the idea, I just need some lawyer time to do details.

Why would it only be an incremental change?Because in all likelyhood SCOTUS will render the verdict as narrowly as possible, which would be to say guns can't be banned outright and/or must be rendered useless, but they can be heavily regulated.

ServiceSoon
June 22, 2007, 12:53 PM
Why would it only be an incremental change?

Because in all likelyhood SCOTUS will render the verdict as narrowly as possible, which would be to say guns can't be banned outright and/or must be rendered useless, but they can be heavily regulated.

Although regulation is a type of infringment.

Sam Adams
June 22, 2007, 01:08 PM
I've been advocating a variant of that for some time now. I just don't have the legal connections to arrange it (need lawyer to write up a DIY-type BATFE Form 4 Rejection complaint & appeals, and have LOTS of people do it simultaniously; key is making it cheap, easy, & straightforward). Haven't seen any case done where coordinated suits induce inconsistent rulings, forcing SCOTUS to address it; I like the idea, I just need some lawyer time to do details.

Maybe this, and having someone do the Form 4 stuff in DC, could be arranged with the guy who got Parker started in the first place (Robert Levy at the CATO Institute)? I don't know him at all, but maybe you could get into contact with him, since you seem to know a bunch more about the procedures than I do (I'm an Estate Planning attorney/gun nut, not a litigator). Here's his bio and contact info at CATO: http://www.cato.org/people/levy.html

Bubbles
June 22, 2007, 02:28 PM
Not to nitpick but a new machine gun will be filed on a Form 1, not a Form 4... and don't worry, should Parker go the right way next year, there are people who already have them filled out and waiting to go. :D

Crunker1337
June 22, 2007, 04:11 PM
Form I is personal construction of an NFA device.

If this case is appealed to the SCOTUS, if they decide to hear it, they probably won't rule definitively on one side or another... just like in Miller. They'll leave us wondering where we stand, and probably existing gun laws will still stand but politicians will be wary of trying to pass new ones.

Kentak
June 22, 2007, 04:20 PM
or even a rushed through Amendment to repeal the Second Amendment (hey, if Congress can ignore overwhelming opposition of the illegal immigrant amnesty bill, they could pass an Amendment overturning the Bill of Rights).

Please review your understanding of how the Constitution is amended.

K

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