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SCOTUS justices and 2nd Amendment

Discussion in 'Legal' started by Frohickey, Jun 14, 2006.

  1. Frohickey

    Frohickey Well-Known Member

    With the recent changes in the SCOTUS, how do you think this court would rule if/when a 2nd Amendment case were to land on this court (and they grant it certiorare).

    Antonin Scalia and Clarence Thomas, I could see they would be on the BoR/2A side.

    Stephen Breyer, Ruth Bader Ginsburg and David Souter, I could see in the palm of Sarah Brady.

    How about John Roberts, John Paul Stevens, Anthony Kennedy and Samuel Alito? Any libertarians among these?
  2. Malum Prohibitum

    Malum Prohibitum Well-Known Member

    This is an easy call.

    They would rule that it is an individual right. They would decline to rule on the scope of that right, which lower courts would define slowly over time to be about where we are now . . .

    Kind of like the Emerson decision out of the Fifth Circuit, and the DOJ amicus brief that was filed - yeah, it's an individual right, but this law does not violate it.

    That would continue on for many years until the courts had found that just about every federal law fails to violate the Second Amendment. Same for state restrictions - if they even choose to incorporate the Second through the Fourteenth.

    The only people that would be helped are those that live in Chicago and DC.
  3. Malum Prohibitum

    Malum Prohibitum Well-Known Member

    By the way, the Cato Institute lawsuit, up on appeal to the DC circuit, seems about the best bet to bring this challenge.

    It is a clean case.

    The NRA tried to torpedo the litigation, first through forcibly consolidating it with their own messy case (since lost - I bet you didn't read about that in their press releases), and then through legislation (introduced by Orrin Hatch).

    Anyway, the case is framed very carefully. It asks the courts to recognize a Second Amendment right to have a functioning gun in the home for self defense. If they can't rule positively on that case, then there is no case that will succeed.
  4. Malum Prohibitum

    Malum Prohibitum Well-Known Member

    For those who are interested in finding out more -

    Here is a link to some discussion of both cases. http://www.georgiapacking.org/forum/viewtopic.php?t=344&highlight=parker

    The Seegars case is the NRA case, and the Parker case is the Cato Institute case (which is not mentioned until about halfway down the thread). There are also helpful and informative links to sources in a few of the posts.
  5. Bartholomew Roberts

    Bartholomew Roberts Moderator Emeritus

    Stevens is a hardcore lefty who is already on record saying that the Feds can prohibit guns anywhere for any reason (dicta from U.S. v. Lopez).

    No idea on Roberts or Alito, though I would be suprised if they were better than Miers would have been. I'd guess pro-RKBA but I wouldn't bet the farm on it.

    Kennedy likes to issue opinions case by case because that gives the court more power. His vote would depend a lot on the facts of the case and whether he was the swing vote or not.

    Other than the outcome of whether we would get an individual rights decision is such an easy question, I agree with Malum Prohibitum as far as the likely result of an individual rights decision. They would probably adopt an Emerson approach of "individual right subject to reasonable restriction and all current federal restrictions are reasonable."

    I imagine they would also avoid the incorporation issue for as long as possible; but I think that even with a view of the Second Amendment as a collective right, an extremely strong argument can still be made for an individual right to keep and bear arms as a fundamental right requiring substantive due process.
  6. boofus

    boofus Guest

    Why bother ruling on the 2A ? They've already given governments the right to take anything of yours for any reason they want. From the Kelo vs New Conn. decision. They just have to call it eminent domain and say somehow somewhere the public benefits from it and poof it isn't yours any more and you can't do a thing about it.
  7. Standing Wolf

    Standing Wolf Member in memoriam

    Government always looks after the interests of government.

    Next question?
  8. Bartholomew Roberts

    Bartholomew Roberts Moderator Emeritus

    Actually that was already the law and had been since before 1965. Kelo just expanded "public use" to include economic development that increased the tax base. As for taking your property for public use (where public use is defined as turning it over to a private group because the use benefits the public at large) that has been the case since Berman v. Parker in 1965.

    The great thing Kelo did do was get people upset about something that had been going on for over 40 years. Many states have now passed laws prohibiting that kind of eminent domain seizure (and the Supreme Court made it clear in Kelo that states can do this) . It has also resulted in House bills H.R. 3083 and 3087 stating that "economic development is not public use" and a companion bill in the Senate S. 1313

    From a Second Amendment standpoint Kelo is irrelevant because confiscation is a taking that the government would have to pay for and they can't afford to buy up some 300 million firearms at market value AND pay for enforcement. Since we already have multiple Kelo threads in the archives, why not revive one of those if you would like to discuss THAT issue further?
  9. saltydog

    saltydog Well-Known Member

    I agree. I could not imagine them ever doing the right thing, only compromise. I always have said "we would be lucky if things did not get any worse than they are today":barf:
  10. Malum Prohibitum

    Malum Prohibitum Well-Known Member

    Alito has no published writing on the Second Amendment. He did, however, author a strong dissent while on the Third Circuit stating that Congress has no power under the Commerce Clause to regulate machine guns. That is a good dissent for a lot of different reasons . . .

    Roberts, same on the Second Amendment, but he testified about the Commerce Clause during his Senate confirmation hearings, stating that the Gun Free School Zones Act would be constitutional if Congress had included findings on the effect on interstate commerce (something he should know Congress did more than a decade ago).
  11. Frohickey

    Frohickey Well-Known Member

    So, we are not quite to the point where we shoot the bastards (yet)? Hmm... reminds me of a book title that I have seen a while ago.
  12. Don't Worry, Folks.

    There is a case that will win our uninfringed and unabridged rights if all else fails. It is the case our Founding Fathers recognized and employed in the very beginning of our nation. Well, they didn't really come in cases back then, but they do now. They are cases of cartridges. Stock up and learn how to use them proficiently.


    As the Court said in Boyd v. United States:

    "It may be that it is the obnoxious thing in its mildest and least repulsive form; but illegitimate and unconstitutional practices get their first footing in that way, namely, by silent approaches and slight deviations from legal modes of procedure. This can only be obviated by adhering to the rule that constitutional provisions for the security of person and property should be liberally construed. A close and literal construction deprives them of half their efficacy, and leads to gradual depreciation of the right, as if it consisted more in sound than in substance. It is the duty of courts to be watchful for the constitutional rights of the citizen, and against any stealthy encroachments thereon."

    We should not wait solely upon the Court to protect our rights for us, but should take an active part in protecting our rights as well.
  13. Joey2

    Joey2 member

    I think it would be a crap shoot. Somehow every time a anti-gun bill comes before congress or a decision pending by the Supreme Court, a shooting occurs that garners national attention and is all over the 6'oclock news.

    I believe that all of the Supreme Court judges have their own agenda and it does not bode well for us peons.

    They give us crumbs for decisions and is not backed up with force of law.

    This is all off the top of my head and I have not links to back me up. I'll say this straight out.

    So if you flame me please just flame my head and not the rest of my body. Thank you.
  14. bg

    bg Well-Known Member

  15. saltydog

    saltydog Well-Known Member

    That will never happen either. That would require and organized Militia. Organized, by defininition in this country means, how many people can gather at a football game.:rolleyes:
  16. K-Romulus

    K-Romulus Well-Known Member

    not sure about this one

    The "Takings Clause" concerns taking property "for public use" (like in Kelo).

    The Takings Clause doesn't seem to have done much good when it comes to the .gov "taking" things like MJ . . .:scrutiny:
  17. AirForceShooter

    AirForceShooter Well-Known Member

    the idea of a 2A issue even coming before the SCOTUS scares the crap out of me.
    I'm not sure where these Justices are coming from.
    After Kelso anything is possible.

  18. Creeping Incrementalism

    Creeping Incrementalism Well-Known Member

    What I heard is the anti justices don't want to take the cases because they want the gun control laws to stand, and the pro justices don't want to take the cases because they are waiting until they have a sure majority with a good case.
  19. TallPine

    TallPine Well-Known Member

    I'm not holding my breath waiting for a branch of the government to protect us from the government :uhoh:
  20. Bartholomew Roberts

    Bartholomew Roberts Moderator Emeritus

    I haven't read any cases involving takings and MJ; but I would guess the argument would go something like "You can't have a property interest in something you couldn't legally own to start with."

    Any type of confiscation of firearms bought and acquired legally would clearly be a taking in my uninformed opinion.

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