Heller - Would they really revist it?


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JonB
November 14, 2008, 11:05 PM
So after reading all the threads speculating on the future of the Supreme Court make up, my question is this: would the SC really choose to hear a case that challenges Heller so soon? 'Soon' being in the next 4 years.

Is there any other SC case that was overturned in the next presidential term with new SC justices?

What are the chances that a case would make it through the system up to the SC given that the Heller decision is in place?

I just don't see it happening anytime soon (at least I hope).

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VegasOPM
November 14, 2008, 11:10 PM
The last time that the 2nd Amendment was visited by the Supreme Court was the Miller case in 1934- and no real decision was made. Ask again in 2080 or so. I honestly believe that this Administration has bigger fish to fry.

cbrgator
November 14, 2008, 11:14 PM
It's all a matter of which justices retire and who they are replaced by. If the court can get stacked with 5 justices who would like to see the case overturned then they could do just that.

In regards to the administration having bigger fish to fry... Obama has nothing to do with the Heller decision. His control arises from appointing new justices to replace retired ones, which he'll have to do no matter how big the other fish to be fried are. It's safe to assume any justice appointed by Obama would be in favor of overturning the decision, but there would still need to be a 5-justice majority.

It's the same thing as when McCain was talking about Roe v. Wade in the 3rd debate if you saw that.

TAB
November 14, 2008, 11:21 PM
I really doubt in case would make it that far... now they could cherry pick one, but I can't see that happening.

JonB
November 14, 2008, 11:23 PM
Can the SC just overturn a decision, or does a case have to go through the lower court system first and eventually be submitted to the SC? I understand it to be the latter....ie a case would have to start at the bottom and have enough 'gray area' in it that it could make it up the chain through the appeals process.

In addition, doesn't the SC decide which cases they will hear and which they won't?

I guess all it takes is a lower judge that rules against Heller to start the dominoes.

Please correct me if my understanding of the process is incorrect. I'll have to do a bit of googling to brush up on the process.

TAB
November 14, 2008, 11:50 PM
yes they can choose the cases they want to hear, they can also take cases from lower courts, but that almost never happends.

cbrgator
November 15, 2008, 12:10 AM
I really doubt in case would make it that far... now they could cherry pick one, but I can't see that happening.
Of course a case can make it that fair... appeals process.

doesn't the SC decide which cases they will hear and which they won't?

Yes, they vote on which cases to hear. It takes 4 justices to vote yes to hear a case. So, if there is a majority in favor of overturning, they have the 4 votes needed to hear it in the first place.

Can the SC just overturn a decision, or does a case have to go through the lower court system first and eventually be submitted to the SC?
They can't just change the decision. A new case must be brought to give the Court the opportunity to reverse its decision.
*************
Note: I am not saying any of this WILL happen. I am just saying it COULD.

JohnKSa
November 15, 2008, 12:19 AM
SCOTUS is generally very reluctant to reverse itself. The reason is that the power of the SCOTUS is heavily dependent on the lasting effects of its rulings. That power is badly damaged if the rulings are seen to be transient--lasting only as long as it takes to change the face of the court.

.38 Special
November 15, 2008, 12:24 AM
The two justices who are likely to retire during the Obama administration are left wingers. Obama is not likely to have a lasting effect on the court. And as has been pointed out, the court is extremely unlikely to reverse itself any time soon.

The more pressing issue is that A) the court still kind of left the question about "reasonable restrictions" wide open, and B) it's not like any administrations in the last few decades have cared all that much about what the Supreme Court says.

Ohio Gun Guy
November 15, 2008, 12:41 AM
I agree that the court is not LIKELY to reverse itself, however the fact that 4 of them voted against the Heller ruling should make anyone here nervious. I think they would not directly reverse it, but they could chose to not support it and slowly erode it. Remember, it only takes 1 justice to change his mind (Kennedy) and they could do some damage. (Incorporation, Less than strict scrutiny, etc.) The other concern is that the government could pass a law that would eventually be found to run afoul of Heller, but could be inforce for years before it is reversed, esentially making no difference for you and me. If the Obama administration took a decidedly adversarial position like D.C. did, and then only made minor changes to their law, it could get sent through the court system again for many more years, they could esentially ignor Heller and the 2nd ammendment as long as the supreme court didnt rule on it, or took their time getting to it.

That being said, I feel much better about the situation than I would have otherwise! Also, Cheif Justice Roberts through case selection could help us; he voted for / with Heller. We still need to keep up the pressure.

catfish101
November 15, 2008, 12:54 AM
I wouldn't worry about the SC revisiting anything. What we need to worry about is another AWB and others issues like that. CDW permits being federally revoked.That has nothing to with the 2nd. It does in our eyes but not on paper.

thebucket
November 15, 2008, 01:21 AM
Out of curosity, where would Congress get its authority to ban concealed carry? I know the NFA was based on the commerce clause but where would the Constitution provide authority to restrict the carrying of weapons by citizens? I don't think the commerce clause can apply in that situation and even a "collective" rights interpretation of the 2nd Amendment still gives states the right to arm their citizens. So does Congress even have legitmate authority to restrict concealed carry?

mljdeckard
November 15, 2008, 01:22 AM
The federal gov can't revoke permits issued by states. The president can't generate new laws with executive orders, he can only regulate existing federal agencies and laws with them.

.38 Special
November 15, 2008, 01:24 AM
Between the commerce clause and the general welfare clause, the federal government seems to have invented themselves the right to do essentially anything they want. And a serious percentage of of the citizenry enthusiastically cheers it on.

Frank Ettin
November 15, 2008, 01:33 AM
While SCOTUS is reluctant to reverse itself, it can easily narrow Heller in future decisions. Remember also that Heller has already started to spawn litigation, and will likely lead to a good deal more. So there will be a good size pool of 2d Amendment cases that SCOTUS will be asked to take. Of those there will likely be a number potentially significant enough to attract their attention, especially if four Justices are of a mind to try to tinker with Heller.

mljdeckard
November 15, 2008, 01:40 AM
But only if they actually MAKE IT as far as SCOTUS. Remember, the only reason Heller did was that D.C. was stupid enough to push the issue when it was unlikely they would win, and the main reason the court decided to hear it was that there were divided rulings in lower courts, they wanted to resolve the conflict. Heller means that the antis have to back off, re-tool, and start from scratch.

Ohio Gun Guy
November 15, 2008, 01:41 AM
One of the points that I dont seem to make very well is....

Eventhough congress and or the executive does not have the power, authority, permission, etc. they can try. THe problem is, our system leaves it to Judicial review (After the fact) to correct any constitutional problems. THis means that crap can be made into law and implimented long before it is deemed unconstitutional. THAT is the problem. Then, the judicail branch has little to no enforcement capabilities, leaving really determined people to stall for time, make minor revisions, and do it all over again. Having the effect of their policies being law.:fire:

everallm
November 15, 2008, 09:06 AM
First off all, there will be post Heller, SC cases/decisions.

The very first and most vital one will concern whether 2A is incorporated or not which hopefully will come out of either Chicago or California (Nordyke).

To take the example of Chicago, the case is an almost identical re-run of DC on hand gun bans, grandfathering, storage etc.

No matter who wins it, I can guarantee the loser will appeal in about 3.2 pico-seconds.

As the case is functionally so similar to DC it is unlikely that the case can go any other route than DC.

Now, judges in general and Supreme Court Justices in particular are VERY conservative, that is conservative with a small c, in the actual meaning of the word.

Their pronouncements are "for the ages" and they take a lonnnnnng time to re-interpret previous rulings and even then incrementally. I haven't been able to find any occasion where the same court or even a court with one original justice has ever repealed an existing judgment.

However, where there is potential embarrassment for the court they can refuse to grant certiori (decline to hear the case). It is eminently possible for example that that they will refuse to hear a 2A incorporation case until a large body of case law has built up.

This is possible also for the issues of defining what are "reasonable restrictions", what standards of scrutiny must be applied etc.

IMHO, the real cases that will force the hand of the SC will be as/if/when cases, in for example NYC or NJ, dealing with "may issue" and onerous permit and cosmetic feature restrictions come up.

At that time the SC will have to rule on direct state level issues and by implication what level of federal restrictions (aka AWB 2) are acceptable in constitutional law.

Interesting times ahead

mljdeckard
November 15, 2008, 01:42 PM
If the case is so functionally similar to Heller, and Heller has already been decided, why would it possibly go the same route as Heller? The existing ruling will now be used to decide similar cases so that they WON'T go all the way up the chain. Stare Decisis states that the existing ruling has the preponderance of law behind it, and when not given a reason it is different, it will stand.

DKSuddeth
November 15, 2008, 01:54 PM
any cases like nordyke or chicago can be incorporated by any lower court, depending on the judicial methods of that particular bench. The USSC is not the end all be all of incorporation, however, it certainly can be. The 9th could indeed incorporate the 2nd, but it would really only apply to those states in the 9th circuit. Same with the chicago case. The 7th COULD incorporate the 2nd, but it would also technically only apply to those states.
If the 9th incorporates, then the 7th is left with a very weighty decision. It could incorporate as well, citing the 9th circuits decision, and it would probably result in decisions in other circuits much like the collective rights argument did until the split. If either circuit incorporates, don't look for the USSC to take the case. I think they will wait to see how other circuits deal with it first, waiting for a split.

IMO, should the 9th circuit incorporate, gun rights activists would stand a greater shot at long term favorable decisions if the next gun rights case came in the 5th circuit.

everallm
November 15, 2008, 02:00 PM
If the case is so functionally similar to Heller, and Heller has already been decided, why would it possibly go the same route as Heller? The existing ruling will now be used to decide similar cases so that they WON'T go all the way up the chain. Stare Decisis states that the existing ruling has the preponderance of law behind it, and when not given a reason it is different, it will stand.

The case is functionally the same, the location, context, ramifications and legal setting are very different, with Heller there is as yet no preponderance of law merely one very limited hand gun case in DC.

Differences include but not limited to, State versus Federal enclave with limited self rule, no case law as yet, no incorporation of 2A as yet, State and limited city self rule etc.

cbrgator
November 15, 2008, 02:41 PM
IMO, should the 9th circuit incorporate, gun rights activists would stand a greater shot at long term favorable decisions if the next gun rights case came in the 5th circuit.
Not sure if you are aware but the Ninth Circuit is the most liberal of all Federal Circuits. No gun case brought in their jurisdiction will ever come down in our favor.

everallm
November 15, 2008, 04:33 PM
The Nordyke case is the one to watch in the 9th and one with a surprisingly even handed if not pro-firearm set of judges.

http://www.calgunlaws.com/index.php/topic-summaries/576-historic-briefs-on-second-amendment-qincorporation-filed-in-gun-show-ban-appealq-.html

boom boom
November 15, 2008, 09:31 PM
First, it is not unknown for the Supremes do reverse themselves on occasion during a relatively short period on controversial issues (see National League of Cities v. Usery and Garcia v. San Antonio Metro). Better yet is the switch in time that saved nine where two justices opposing the new deal on constitutional grounds suddenly switched their votes after the 1936 presidential elections. If activist judges are appointed by the new administration, precedent means little to an activist judge and the court may revisit the issue. That is why the next few years are so important to deeply engrain the individualist perspective of the 2nd Amendment. The distorted view of Miller has dominated the perspective of legislatures and thus many laws such as the Gun Control Act of 1968 were viewed positively and quite legitimate. A whole cottage anti gun group industry sprang up after Hinckley shot Reagan that argued for even more "reasonable" regulations or sometimes even calling for outright bans because of Miller spawned the wrongheaded societal idea that the 2nd Amendment only applied to state militias as a collective right to self defense. Some constitutional law professors even wrote this right out of the Constitution as obsolete (think it can't happen? It has happened at various times to the 14th Amendment, equal protection and privileges and immunities clause, the Guaranty clause and the contract clause (If you ever have a dull moment, look up what Justice Marshall said in Dartmouth College v. Woodward and compare it with Home Building & Loan Assn. v. Blaisdell about the sanctity of a contract). What we must do now is seize the day and establish a comparable 2nd Amendment individual rights doctrine that will then act to govern what future legislatures believe are legitimate regulations regarding guns. Most would squawk if their or others freedom of speech is abridged but not so much when gun rights are involved. Then, even activist judges would be uneasy about overturning well established precedent because of the body of laws established by legislatures become societal expectations (eg Roe).

Second thing to watch, a leftward lurch of the Supremes would be over what test to use for gun regulations. If it is the rational basis test, then most gun regulations outside of DC (and perhaps Chicago's) outlandish gun laws would meet that standard. Thus, assault weapons bans, bans on high powered rifles capable of defeating body armor (most good hunting rifles), handgun caliber limits, smartgun technology, 10 round or less capacity limits (magazines etc), limits on interstate trade and importation, gun show regulations or banning, etc. could be construed as "reasonable". What we should hope for is at least requiring an "important" government reason for these laws (intermediate scrutiny) or better yet a "compelling" reason for such laws which requires "strict scrutiny" (think of First Amendment type analysis here--almost all govt regulations other than time and place restrictions are automatically suspect). Given the incorporation issue and what tests apply to government actions regulating guns are still up in the air and J. Kennedy is a swing justice, we still face the necessity to not let up our guard during the next administration. Sorry about the preaching but now is not the time to let your guard down and think Heller solves everything. Vigilance over the Courts, the new Administration, the new Congress, and state governments is more necessary now than ever until we basically build a consistent 60-70 percent slice of the American public that regards the 2nd as important as other provisions in the Bill of Rights.

DKSuddeth
November 15, 2008, 09:53 PM
Not sure if you are aware but the Ninth Circuit is the most liberal of all Federal Circuits. No gun case brought in their jurisdiction will ever come down in our favor.

granted, for time immemorial it has seemed that the 9th circuit has been extremely liberal, however, the panel that is hearing this case appears to be strongly pro-2nd amendment. In the past, this wouldn't have meant squat because they were bound by prior decisions but Heller changes that landscape entirely.

JonB
November 16, 2008, 10:24 AM
Since 2A hasn't been incorporated, how many states include a 2A type of provision in the State Bill of Rights?

I looked up SD (where I live) and we have section 24 which states 'The right of citizens to bear arms in defense of themselves and the state shall not be denied.'


After I posted this I thought I would look up IL and heres what I found:
'Subject only to the police power, the right of the individual citizen to keep and bear arms shall not be infringed.'

The first phrase is interesting....

cbrgator
November 16, 2008, 12:13 PM
granted, for time immemorial it has seemed that the 9th circuit has been extremely liberal, however, the panel that is hearing this case appears to be strongly pro-2nd amendment. In the past, this wouldn't have meant squat because they were bound by prior decisions but Heller changes that landscape entirely.
Well, I was unaware a such a panel existed in the Ninth. I guess we found the needle in the haystack. Can't wait for the decision!

Jorg Nysgerrig
November 16, 2008, 12:45 PM
Stare Decisis states that the existing ruling has the preponderance of law behind it, and when not given a reason it is different, it will stand.

While lower courts tend to stick with state decisis, the SCOTUS doesn't necessarily do so. From Wikipedia (http://en.wikipedia.org/wiki/Stare_decisis):

In the United States Supreme Court, the principle of stare decisis is most flexible in constitutional cases:

Stare decisis is usually the wise policy, because in most matters it is more important that the applicable rule of law be settled than that it be settled right.... But in cases involving the Federal Constitution, where correction through legislative action is practically impossible, this Court has often overruled its earlier decisions.... This is strikingly true of cases under the due process clause. Burnet v. Coronado Oil & Gas Co., 285 U.S. 393, 406407, 410 (1932) (Brandeis, J., dissenting).
For example, in the years 19461992, the U.S. Supreme Court reversed itself in about 130 cases.[5] The U.S. Supreme Court has further explained as follows:

[W]hen convinced of former error, this Court has never felt constrained to follow precedent. In constitutional questions, where correction depends upon amendment, and not upon legislative action, this Court throughout its history has freely exercised its power to reexamine the basis of its constitutional decisions. Smith v. Allwright, 321 U.S. 649, 665 (1944).

On matters such as this stare decisis isn't a sure bet.

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