DC vs. Heller: Win & Lose simultaneously ?


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usmarine0352_2005
April 14, 2008, 11:26 PM
"The petition for a writ of certiorari is granted limited to the following question: Whether the following provisions, D.C. Code 7-2502.02(a)(4), 22-4504(a), and 7-2507.02, violate the Second Amendment rights of individuals who are not affiliated with any state-regulated militia, but who wish to keep handguns and other firearms for private use in their homes?"


What if we win and lose on the Heller decision?


Lets say that SCOTUS declares it IS an idividual right, however, it's also permissible to have "reasonable" restrictions, such as the DC gun law?

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Winchester 73
April 14, 2008, 11:34 PM
Lets say that SCOTUS declares it IS an idividual right, however, it's also permissible to have "reasonable" restrictions, such as the DC gun law?

Can it logically be both?

Coronach
April 14, 2008, 11:35 PM
WE would say no (for instance, that is what "shall not be infringed" addresses), but who knows what they will decide?

Mike

usmarine0352_2005
April 14, 2008, 11:45 PM
Can it logically be both?

That's what I was thinking.

But with people thinking it's a slam dunk case for individual rights, I was thinking we could we theoretically win and lose at the same time.

I hope it doesn't end like that, but if it did, man, that would be bad.

Hypnogator
April 15, 2008, 12:14 AM
Lets say that SCOTUS declares it IS an idividual right, however, it's also permissible to have "reasonable" restrictions,
IMHO, that's exactly how they'll rule. I doubt, however, that they'll find DC's blanket prohibition on handguns "reasonable."

Defining "reasonable" will keep many, many lawyers gainfully employed, probably right into the next century. :uhoh:

Eightball
April 15, 2008, 12:19 AM
keep in mind the fact that a lot of this case dwells on Heller's and other citizen's right to keep arms in their homes.

What strikes me is the potential unintended consequences of a postive ruling from the court. If they decide in favor of the individual right and go on to say that the DC law cannot ban handguns and is too restrictive on long guns, then DC residients should then be able to keep both long guns and handguns in the home.

But, here comes the big unintended consequence. The court can rule that an individual has a right to keep and bear arms, but that right only applies in the home.

What happens when you walk out of your home? Do you lose that right? Did our forefathers keep lock boxes on their horses or buggies?This post from another thread has me decently worried at this point, for the reasons in bold. It strikes me that, depending on just what they rule, winning could possibly cost us CCW if they aren't careful--and you can bet that the "brady bunch", Obama, and most any other anti-2nd and anti-CCW group will jump on that gravy train.

Dr. Tad Hussein Winslow
April 15, 2008, 12:20 AM
The question for all the marbles is "Does strict scrutiny apply?" If they don't answer that question, it won't help us a LOT. It won't hurt us a lot either, at least in the short run, and will help us some small amount. The various circuit courts will flesh out that issue, for now.

If, OTOH, they answer a question beyond what they say they are going to answer - what level of scrutiny applies, then that would be either extremely good (strict scrutiny) or extremely bad (rational basis test adopted), or small chance, somewhere in between but mostly good (intermediate tier of scrutiny). If rational basis is adopted, then there IS NO 2nd amendment for all intents and purposes, and a level of shame and disingenuousness will come over the court like never before - in that case, the SCOTUS will have completely abrogated their duty to use the text, historical context, original intent, and stare decisis as the basis of their decisions.

Winchester 73
April 15, 2008, 12:34 AM
If rational basis is adopted, then there IS NO 2nd amendment for all intents and purposes, and a level of shame and disingenuousness will come over the court like never before - in that case, the SCOTUS will have completely abrogated their duty to use the text, historical context, original intent, and stare decisis as the basis of their decisions.

But this will not occur.I give you the same 3-1 odds as Werewolf.
Your stakes.Your sauces.:)

Rmeju
April 15, 2008, 02:25 AM
My 2 pennies:

Given that I think it will come down as an individual right...

1. I think that the court has a good chance on NOT ruling on any scrutiny whatsoever, and would (theoretically) cite that there is no need to decide the level of scrutiny now as DC's laws cannot stand up to any kind of scrutiny whatsoever. However, if they decide that it could stand up to the rational basis test, then

2. They would then probably define the level of scrutiny as either strict, intermediate, or perhaps make up a new test. If we don't get strict scrutiny, I really feel we have protection against little but blatent, comprehensive bans. IMHO, the chance of federal laws being upended is not a good reason to lower the level of scrutiny, contrary to what the AG said. If that's a reason for the court to temper their decision, then the court has little or no reason to exist.

3. There is the slimmest of possibilities that we'll get incorporation out of this, but not only am I not holding my breath, I really don't even care too much, even in the event that we were to only get intermediate scrutiny. Chicago's handgun ban is like a great, big Christmas present from Mayor Daley (well actually Jayne Burn, but who's keeping track) to all of us gun owners who like the idea of incorporating the 2A against the states. We should all send him a nice big thank you letter the day he has to bend over for the Supreme court ruling on that one.

Can we win and lose at the same time? Oh yeah. If they rule on what level of scrutiny to give, and don't give it strict scrutiny (which I'm VERY worried about), then most chance of a judicial remedy to the many glaring infringements of the 2A are out the window, and we'll have to rely on the masses to allow us our gun rights if we ever want them.

Yeah, I'm not holding much hope for that either.

Hope my uneducated, internet 'legal analysis' helped you

Reid

Winchester 73
April 15, 2008, 03:12 AM
Hope my uneducated, internet 'legal analysis' helped you


Far from uneducated,extremely elucidating.
Thank you,Reid.

xjchief
April 15, 2008, 04:02 AM
This is a win:

Strict scrutiny
2nd Amendment incorporated
Individual right

Anything less than that is a loss. Which other amendment is as important as the one that provides the people with the means to enforce the constitution?:scrutiny:

rugerman07
April 15, 2008, 06:13 AM
I think the Supreme Court will rule it is an individual right to own firearms, but it really won't change anything. We'll still have the same restrictive rights we now have.

Igloodude
April 15, 2008, 09:17 AM
If SCOTUS declares the 2A guards an individual right, we win - unless they explicitly detach that right from any militia meanings entirely, at which point we lose the chance to ever get machine guns back in any real way.

If SCOTUS goes for "reasonable restrictions are okay" and decides the DC gun ban is reasonable, we're right back to where we started - fighting in the legislatures without an option for judicial remedy. It is a defeat in the same sense that militarily an attack repulsed by a defender is a defeat for the attacker, all other things being equal.

Ash
April 15, 2008, 09:27 AM
It seems to me hard to fathom that if it is an individual right, that banning ownership would be considered reasonable.

Ash

Bartholomew Roberts
April 15, 2008, 09:49 AM
This is a win:
Strict scrutiny, 2nd Amendment incorporated, Individual right

Anything less than that is a loss.

Well, you better expect a loss then because Heller didn't even address incorporation. In fact the whole point of Heller was to avoid incorporation as an issue and the court pretty much did that in the way they framed the question.

Given that situation, getting an incorporation ruling would be more like a bonus than a loss in my view.

Also, a right that only exists in the home would not imperil CCW because most CCW laws were passed in states where the collective rights interpretation was the controlling law. So far, not a single CCW law has been rolled back and many have been expanded. So even if this ruling did not explicitly protect CCW, it certainly doesn't harm it.

Bubbles
April 15, 2008, 11:22 AM
This is a win:

Strict scrutiny
2nd Amendment incorporated
Individual right

Anything less than that is a loss. Which other amendment is as important as the one that provides the people with the means to enforce the constitution?

Would you settle for two out of three (no incorporation, that's a future lawsuit) in a strongly-worded, unambiguous 7-2 decision? ;)

sacp81170a
April 15, 2008, 11:47 AM
Strict scrutiny
2nd Amendment incorporated
Individual right

Would you settle for two out of three (no incorporation, that's a future lawsuit) in a strongly-worded, unambiguous 7-2 decision?

If we can get strict scrutiny and an individual right, I don't care if it's 7-2 or 5-4. ;)

esq_stu
April 15, 2008, 11:51 AM
My prediction:

- They will affirm the Circuit court and throw out the city ordinance.

- There will not be a majority on the reason. Instead, the court will be divided at least 2 ways on the reasons.

The vote will be 5-4 to affirm (for Heller). :)

The opinions will go 6-3 for individual rights:), 3 for collective rights. :(

There will be no majority on the standard of review/level of scrutiny. :banghead:

There will be at least 4 opinions written to address the nature of the right (collective vs individual) and the standard of review. :banghead:

a. affirm/individual right/strictest scrutiny: Alito, Thomas; :D
b. affirm/individual right/intermediate scrutiny (ordinance unreasonable): Scalia, Roberts, Kennedy; :)
c. reverse/individual right/intermediate scrutiny (ordinance reasonable): Ginsburg :(
d. reverse/collective right: Breyer, Stevens, Souter :cuss:

Kennedy or Roberts will author the majority opinion.
Alito or Thomas will write a concurring opinion.
Ginsburg will write a dissent.
The collectivists will also write a dissent.

Souter might surprise everyone. People assume he'll vote "collective" because of a brief written in '76 when he was New Hampshire A.G. But he votes kind of like Thomas on free speech issues, and might have more sympathy than expected on the second amendment. But if he does, he'll be with Ginsburg and would not affirm.

My 2 cents. I may change my opinion after lunch.

RP88
April 15, 2008, 11:55 AM
I think there is too much that can be deemed reasonable, but at the same time, it can be challenged.

however, the real threat would be what KIND of guns are reasonable. That could mean that anything outside of a hunting long arm is gone. They could still pave the way for an AWB or more legislation against handguns if their idea of 'reasonable' is not explicitly or inherently detailed, specified, or explained (in which case, it would maybe make it a state issue instead of a federal one, which is still quite a good thing).

just my opinion from how I see how things are shaping up. It looks like all this will do is just make the worst-case scenario for gun rights only a little better than it was looking before this case.

Rmeju
April 16, 2008, 03:50 AM
Stu,

Far be it from me to claim I'm a supreme court justice expert, but why do you think that Scalia, who in my opinion gave the most vocal support for the 2A, would write/want an opinion with intermediate scrutiny?

I also hardly think that Roberts or even Kennedy are reliable votes for intermediate over strict scrutiny. Roberts sounded like he wanted to avoid the discussion, suggesting that 2A (similar to 1A) could accumulate its legal baggage over time instead of one big gulp, but that doesn't mean if he was forced to confront it, he'd go with intermediate scrutiny. Kennedy's words left him open to some pretty broad possibilities about where he'd land, and my crystal ball is out of order until June. For all these reasons, I think a new test that is tougher than intermdiate but more permissive than strict could be on the table as well. Maybe that's just me showing my ignorance though.

Does anybody know what would happen if 3 out of 5 justices in the majority wanted strict scrutiny, but the author of the majority opinion (say Kennedy, for example) was in the "minority" majority, and wanted intermediate scrutiny? Does the one guy who writes the opinion get to essentially make the law, or do they have to hash it out or vote on it?

Reid

tube_ee
April 16, 2008, 04:08 AM
If he's in the majority.

The chance to define what one of the Bill of Rights amendments actually means is something that every student in every law school in the country dreams of.

This is a once-in-a-lifetime opportunity. Actually, more like once-in-several-lifetimes. By definition, it can only happen 10 times.

Rank Hath Its Privileges, and I can't see the Chief Justice passing this one up.

--Shannon

P. Plainsman
April 16, 2008, 05:12 AM
Does anybody know what would happen if 3 out of 5 justices in the majority wanted strict scrutiny, but the author of the majority opinion (say Kennedy, for example) was in the "minority" majority, and wanted intermediate scrutiny? Does the one guy who writes the opinion get to essentially make the law, or do they have to hash it out or vote on it?
In a situation like that -- a 3/2/4 split along a spectrum -- the opinion that controls is the opinion by the group of Justices in the middle, because their votes are necessary to obtain five votes for the ultimate result. In that case the opinion of the Justices in the middle is the opinion that gets cited as authority by lower courts.

So let's make this concrete. Suppose there are five votes on the Supreme Court in Heller to affirm the D.C. Circuit, and four votes to reverse. OK, so the result, the decision handed down by the Supreme Court, will be an affirmance. But suppose three of the five Justices in the majority think strict scrutiny is appropriate, while the other two think intermediate scrutiny is appropriate, and the four dissenters want some lesser level of scrutiny (or no individual right at all).

Then the controlling opinion is the one by the Justices who vote to reach the result of the Court's majority (affirmance), on the narrowest grounds (here, intermediate scrutiny).

If Heller were to break down like this, then lower courts would treat the two-Justice opinion as the binding law, and would apply intermediate scrutiny to Second Amendment questions unless and until the Supremes take up the issue again. (When SCOTUS examines an earlier decision that only yielded a plurality opinion on a particular legal issue, it is usually somewhat more willing to re-think that issue than when there is a genuine majority opinion on point.)

There is a SCOTUS case that specifically deals with these types of splits: Marks v. United States, 430 U.S. 188 (1977). The "rule of Marks" is what I just described: "When a fragmented Court decides a case and no single rationale explaining the result enjoys the assent of five Justices, the holding of the Court may be viewed as that position taken by those Members who concurred in the judgments on the narrowest grounds." Id. at 193.

Jim March
April 16, 2008, 06:10 AM
I don't know how this one will go.

One odd ray of hope I see is that Kennedy (a likely swing vote) was clearly in favor of an individual right, but was also trying to figure out how NOT to expand rights on full-auto.

Well there's a way to get there that's at least somewhat intellectually honest: claim that the 14th Amendment transmuted the 2nd from a "political right" akin to jury duty and militia service to a "personal civil right".

The authors of the 14th were dead clear that they were trying to allow newly freed blacks (1868) from the proto-KKK and rogue southern state agents. But since blacks didn't get the vote until a few years later (15A) they didn't have political rights in 1868...and the authors of the 14A knew that. (Blacks were supposed to get the same rights as white women back then and green-card holders today.)

This approach abandons Miller's "militia weapon" connection completely. BUT the approach absolutely requires incorporation of the 2A against the states and could maybe be argued to support CCW in some form. As extreme a Liberal as Yale law professor Akhil Reed Amar was forced to support full incorporation of the 2nd via the 14th after studying the 14th's passage and creation.

Kennedy and the rest understand full well that under a "rational basis" review the 2nd is dead and DC can do whatever the hell they want. So I have less fears there - I think they'll either knock yet another hole in the whole strict/rational wall (which has come under it's own scholarly fire) or create a new standard just for bangthings, or go strict with limitations.

Rmeju
April 16, 2008, 07:07 AM
Plainsman,

So if we get a 5/4 for individual vs. collective, but 4/1 for strict vs. intermediate, then the binding result on lower courts is individual and intermediate scrutiny?

Reid

P. Plainsman
April 16, 2008, 03:39 PM
Rmeju,

Yes, that's right. Unless some of the four dissenters also accept strict scrutiny (which would be weird, but technically possible).

In that weird circumstance, you'd actually have a full five votes for a particular holding on a particular legal issue (2A gets strict scrutiny), and that would be controlling even if the necessary five votes are sprinkled among plurality, concurring, and/or dissenting opinions.

Igloodude
April 16, 2008, 04:32 PM
It would be weird, but I was getting the distinct impression that Justice Ginsburg's thinking was going exactly that way. :scrutiny:

Henry Bowman
April 16, 2008, 05:41 PM
Igloodude: I got that weird impression from her oral argument comments as well. Those comments can, however, be misleading.

It would be incredibly intellectually honest of her, even if her motivation was only to protect the unenumerated rights she holds so precious. The only "out" available to the antis is to find some unique legal mutation that can be assigned to the "well-regulated militia" language that would not taint the other amendments or the unenumerated fundamental rights held to be entitled to strict scrutiny.

Mike OTDP
April 16, 2008, 06:00 PM
I think the final decision will be a combination of the Kennedy and Roberts positions.

Basically, it will hold the following:

a. Second Amendment protects an individual right.

b. The Miller decision is deficient. Second Amendment rights are NOT linked to militia service, therefore full-auto is not particularly protected. (this is Kennedy's contribution)

c. Second Amendment rights are subject to reasonable regulations.

d. DC's gun ban is NOT a reasonable restriction.

I think they will leave the entire issue of levels of scrutiny and incorporation for the future....after the Circuit Courts have had the chance to get the arguments aired out.

RP88
April 16, 2008, 08:30 PM
but what would constitute as reasonable regulation/restriction? Thats too vague in my opinion. It sounds like a way to keep status quo, and also sounds like a gateway to ridiculous regulation laws (technically not unconstitutional)

divemedic
April 16, 2008, 09:01 PM
Actually, I think you are all missing the mark. One thing the court does not like to do is make radical changes to the way things are done (known as rocking the boat)

The question in Heller is pretty narrow, and I don't see them straying too far from that. I see individual rights, a finding that the DC ban violates that, and stunning silence on scrutiny, making machine guns, incorporation, and a whole host of other issues a question for later.

mek42
April 16, 2008, 09:15 PM
First, could someone please provide a link for a good explanation of the sundry and various types of scrutiny? I'm close to having a PhD in Physical Chemistry and this still eludes full understanding for me.

Second, could someone provide an example of "reasonable restrictions" with respect to the 1st amendment, specifically speech? I briefly thought that the old yelling "Fire" in a crowded theatre would be such an example. However, now I wonder if the public nuisance / inciting riot laws are more akin to assault / murder laws than a reasonable restriction to the freedom of speech.

However, I freely admit that I do not think as obtusely as lawmakers seem to - which is, sadly, setting the bar pretty high.

Coyote Blue
April 16, 2008, 09:42 PM
First, could someone please provide a link for a good explanation of the sundry and various types of scrutiny? I'm close to having a PhD in Physical Chemistry and this still eludes full understanding for me.

http://www.law.umkc.edu/faculty/projects/ftrials/conlaw/epcscrutiny.htm

Will this help?

usmarine0352_2005
April 17, 2008, 01:45 AM
http://www.law.umkc.edu/faculty/proj...pcscrutiny.htm

Will this help?

That website was sort of confusing.


Could one of you in layman's terms explain Strict Scrutiny?

Winchester 73
April 17, 2008, 02:08 AM
Could one of you in layman's terms explain Strict Scutiny?

Hopefully,this will help:

http://en.wikipedia.org/wiki/Strict_scrutiny

Ergosphere
April 17, 2008, 04:56 AM
c. Second Amendment rights are subject to reasonable regulations.

If they use the term "reasonable regulations" (or restrictions) without a great deal of elaboration, we lose. That will quickly turn into "rational basis."

(BTW, I largely agree with your assessment.)

Mike OTDP
April 17, 2008, 07:59 AM
We'll get the elaboration...but not in this case. I think Heller will be like Brown vs Board of Education - the first of many battles.

Bartholomew Roberts
April 17, 2008, 10:42 AM
If they use the term "reasonable regulations" (or restrictions) without a great deal of elaboration, we lose.

A lot of you guys are quick to declare the battle a loss before the first shot has been fired. If the Supreme Court affirms the Court of Appeals and says "reasonable regulations" without further comment, all that means is that we still do not know what is reasonable but that D.C.'s ban is not.

Whether that ends up being closer to rational basis or strict scrutiny will depend on many more cases and justices not even appointed yet.

Ergosphere
April 17, 2008, 05:43 PM
If the Supreme Court affirms the Court of Appeals and says "reasonable regulations" without further comment, all that means is that we still do not know what is reasonable but that D.C.'s ban is not.

I don't agree, because if they do this, they'll likely do it because they don't want to change the status quo much. In my opinion this is intellectually dishonest: the Court should not look at existing laws to decide the extent of a right, but rather take the opposite approach. Once the meaning of the 2nd amendment is known, current laws should stand or fall as they may.

I think we will get incorporation -- not in Heller, but pretty soon thereafter. Assuming incorporation, and if the Court allows "reasonable restrictions," then we'll see court cases brought against unreasonable gun regulations in the half-dozen or so anti-gun states. These cases will be heard in district courts which are strongly anti-gun, and have historically interpreted "reasonable" to include many unreasonable things.

For example, I think it's quite likely that the 9th Circuit would find all of California's gun laws to be "reasonable restrictions," and I'm not at all confident that the Supreme Court would disagree... especially if they try to decide Heller so as to uphold existing federal laws.

If the 2nd amendment had been declared an individual right by the Court 50 years ago, these same laws would almost certainly not be considered "reasonable restrictions." But because we're very late to the game and the goal-posts moved so far in the last 40 years, we need a stronger standard.

hvengel
April 18, 2008, 05:32 PM
For example, I think it's quite likely that the 9th Circuit would find all of California's gun laws to be "reasonable restrictions,"

I think this depends on which judges hear the case. There are a few in the 9th that are very much in favor of treating the 2nd as a broad fundamental right. One example would be Judge Alex Kozinski.

Kozinski wrote this in decent for the Silveira v. Lockyer case:

"The Second Amendment is a doomsday provision, one designed for those exceptionally rare circumstances where all other rights have failed -- where the government refuses to stand for re-election and silences those who protest; where courts have lost the courage to oppose, or can find no one to enforce their decrees,"

"However improbable these contingencies may seem today, facing them unprepared is a mistake free people get to make only once."

"The panel's labored effort to smother the Second Amendment by sheer body weight has all the grace of a sumo wrestler trying to kill a rattlesnake by sitting on it -- and is just as likely to succeed."

There are also others sitting on the bench in the 9th circuit as well. These include Eugene Volokh and Andrew Kleinfeld. They are currently not the majority but if the SCOTUS rules that the 2nd is an individual right I think this minority will have significant influence when future cases are heard in the 9th circuit.

legaleagle_45
April 18, 2008, 11:25 PM
Could one of you in layman's terms explain Strict Scrutiny?

Strict Scrutiny: You have to have a VERY, VERY good reason for this law and the law has to be limited to addressing that VERY, VERY good reason and NOTHING else.

Heightened scrutiny: You have to have a pretty good reason and it better not have effects too far beyond that reason.

Rationale relationship: If you can articulate a reason that does not make us burst out in laughter while we are sitting on the bench, it is okey dokey.

P. Plainsman
April 19, 2008, 06:10 PM
That's a concise and effective way to boil down the meaning of the different tiers of constitutional scrutiny, legaleagle45 -- well done.

Only thing I might add is that, particularly under strict scrutiny, the courts also tend to insist that any restriction of the right must leave "ample alternative channels" open for exercising the right. (So under a right to arms that receives heightened scrutiny, and especially if it's strict scrutiny, it wouldn't be open for a lower court to reason that ALL guns are inherently a terrible danger to public safety, so that they could all be banned, consistent with targeting that danger. Instead, any government regulation will have to leave a significant range of different types of guns available for private possession.)

P. Plainsman
April 19, 2008, 06:16 PM
There are a few in the 9th that are very much in favor of treating the 2nd as a broad fundamental right. One example would be Judge Alex Kozinski.
The thought of what Judge Kozinski, probably my favorite federal judge, might do with a (fingers crossed, knock on wood) pro-individual rights holding on 2A in Heller is one of the things that help me go to sleep at night with a smile.

It'd be awesome. Unless you're a gun control maven, in which case the prospect should cause you to start stocking up on blood pressure and anti-stroke medication.

Dismantler
April 19, 2008, 06:30 PM
As I understand from my brother the lawyer, The Supremes will rule more or less narrowly on the DC case, and while The Second and RKBA is part of this...that will not be addressed any more than is needed to settle Heller. The question is The DC Ban and Heller, not the meaning of The Second. The meaning of The Second is important to the settling of Heller, but it is not the main case.

We need to consider Roe V. Wade here. That was ruled on in 1973, and it is still alive and well all over the U.S.A. Most states have laws pertaining to abortion, as well as guns. The gun control advocates may lose this one...but they will not give up any more than the abortion sides give up.

In NH, my home state, we have an amendment in our constitution giving RKBA to individuals, with emphasis on defense. Even if The Supremes ruled that The Second was a collective right, we in NH would still have our state's rights. Your state may also have RKBA in its constitution.

Winchester 73
April 19, 2008, 07:26 PM
Your state may also have RKBA in its constitution.

Over 40 states do,TMK.
The affect on these 40+ states if Heller goes south?
No one really knows.
Or do they?

dalepres
April 20, 2008, 12:43 PM
There is one basic flaw in this entire discussion. It looks to me that you all have assumed that the SCOTUS will rule that gun ownership is an individual right. I think they will rule completely against us and that by the time the election comes around in November, the 2nd Amendment will virtually cease to exist.

First, consider that this is not the first case filed with the Supreme Court in my memory; it's just the first one they agreed to hear. Why did they agree to hear this one? What makes it different? Easy. The other cases have been where gun restrictions were upheld by the appeals courts. The SCOTUS, by not taking those cases, affirmed their support for gun restrictions. In this case, on the other hand, the appeals court overturned a gun restriction and actually had the nerve to uphold the 2nd Amendment. If the SCOTUS supported that action or the 2nd Amendment, they would have simply refused to take up the case. *Edit* The Supreme Court generally takes cases only when they see a likelihood that they would overturn the case. */Edit*

Next, consider the questions during the oral arguments that so many believe point to the expected vote of various court members. These are Supreme Court justices. They didn't need oral arguments at all. Other than Ginsburg -who thinks the Constitution was an early blog article - have spent most of their lives studying the Constitution and have, long before this question ever came up, formed their opinions on the validity of the 2nd Amendment. Nothing presented during oral arguments will change those opinions.

I believe the purpose of the questions during oral arguments was simply to give the Justices and their clerks the foundations upon which they will base their rejection of the 2nd Amendment. Asking a hard question of supporters of the DC ban wasn't done because the Justices were challenging the idea of undoing the 2nd Amendment. Those questions were asked because they allow the DC ban supporters to provide the hard answers enabling the rejection of the 2nd Amendment as an individual right to withstand the scrutiny of future courts and legal historians.

ctdonath
April 21, 2008, 01:57 PM
They took this case because
- it's the first "clean" case (others were screwed up by red herrings or highly undesirable defendants/outcomes)
- it's a rare opportunity to make a definitive ruling on a BoR issue
- the case is unavoidable (split in circuit court views forces an "equal protection" issue)
- a significant jurisdiction brought the case, not a mere peon

Oral arguments are, indeed, largely pointless. That's why J. Thomas effectively does not participate. It's the only public proceeding of the Court, a chance to clear up a few small but notable points, the only opportunity to ask "do you really mean this" questions, a little facetime for those involved, a chance to berate those who submit stupid ideas, and the only moment in the spotlight the judges get (everything else is secret).

A collective right opinion, even by the minority vote, will be hard to support - and they know the right will be self-enforcing.

dalepres
April 22, 2008, 12:19 AM
A collective right opinion, even by the minority vote, will be hard to support - and they know the right will be self-enforcing.


Nah. When they come for them, you'll hand yours over just like I will; just like tens of thousands did in New Orleans. They've had their test and not one gun was found attached to cold, dead fingers.

And the collective right, versus the individual right, opinion won't be the minority vote; it will be the majority.

I hope I am wrong; I'd love to come back and be all embarassed for being a doom and gloom kind of guy... We'll see what happens.

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