Heller: "written in that sitting"?

Wouldn't it be better to have a Supreme Court Justice who is considered more anti-gun write a strong 2nd Amendment opinion

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She might surprise a lot of people. Here's my reasoning (which isn't original, btw, as I read it elsewhere around the time of the oral argument):

1. She is absolutely, utterly dedicated to preserving the effect of the Roe v. Wade decision. But she's smart enough to know that Roe is based on a foundation made of dry sawdust - Roe, itself, made up law, and was based on a case that made up law. IOW, there's nothing is explicit in the Constitution to protect the "right" to have an abortion.

2. OK, but what does abortion have to do with guns? Here it is: The RKBA is explicitly protected in the Constitution by Amendment 2. Yes, people may disagree, but consider that if the USSC can rule that an explicitly stated right isn't protected, where does that leave Roe and its unstated "right?"

IOW, you might get her on our side of this case because she views rights very, very expansively, despite any personal misgivings that she might (and probably does) have about guns. BTW, such a view isn't inconsistent with the views of the Founders - they only gave the government limited powers, and the power to ban abortion isn't there any more than the right to have an abortion is protected.

Of course, its more likely that because she's just a gun-grabbing, government-loving uber-lib, she'll vote against Heller...but speculating is fun.

I'd agree, if you could find one on our side of this. Also, how strong of an opinion are you going to get from one of them? Theoretically, though, you're right.

More important to me, no matter who writes the opinion, is what the actual holdings are. I think that we've got a win here, "win" being defined as DC's law is overturned because the 2nd protects an individual right. But you can barely win or win in a blowout. A blowout would be the application of strict scrutiny to any other limitations, and strong dicta in the majority and concurring opinions that the same rules apply to states and cities due to the 14th Amendment and also that the federal MG ban is unconstitutional. It ain't who writes it, its what is said that REALLY matters.

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So true. It's what's written that is most important. Obviously and Individual Right with Strict Scrutiny is the best.


....however, once the 2nd Amendment is ruled as an Individual Right by SCOTUS, it will probably make up a lot of people's opinions who aren't really for or against guns. And when they go to vote for people who make the pinnacle of their running for office to ban guns, these people may say, "Hey, that's illegal." And they may not want to appoint these people to high places.

Also it may make politicians shy away from making their canidacy based on anti-2nd amendment rhetoric.

The sweetest would be a Majority opinion by Scalia, specifying strict scrutiny, backed by a concurring opinion from Ginsberg, stating that the DC bans fails any level of scrutiny. 9-0 opinion.

I know- never happen, but I can dream.

Wouldn't it be better to have a Supreme Court Justice who is considered more anti-gun write a strong 2nd Amendment opinion.....that way, the anti's can't say, "It's just a rogue activist judge following their own preset opinion on the 2nd Amendment, just like we thought they would."


The only thing they could say bad about them is, "They interrpeted it wrong."

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Better, maybe??? But it wouldn't be nearly as funny. Of course, we're all just speculating, but just as you say, the antis would respond somewhat boringly if she authored it. Antis are much more fun when they're in a spittle-sprayin' lather. When they're all lathered up is when their arguments are the most ridiculous.

Ginsburg would offer the most diluted (and probably, DELUDED) opinion she could render. There would be no extraneous benefits and strengths in the opinion for the pro-2A community. You would get a much more right-affirming opinion out of a strict constructionist/federalist. I'll beg to differ with another person here in that, yes, "what is said" is the most important aspect of the opinion, but the person saying it is determining "what is said" and the strength thereof.

I think we're better off if it's a 5-4, or at most 6-3 decision. Only way they're going to reach 7-2 or better is to give up too much ground to the anti-gunners on the Court, make it a decision that rules out D.C.'s insanely harsh gun control, but allows anything short of it.

We don't want to buy those extra couple of votes at the price of a "rational basis" test anything short of a D.C. style complete ban would pass.

I think we're better off if it's a 5-4, or at most 6-3 decision. Only way they're going to reach 7-2 or better is to give up too much ground to the anti-gunners on the Court, make it a decision that rules out D.C.'s insanely harsh gun control, but allows anything short of it.

We don't want to buy those extra couple of votes at the price of a "rational basis" test anything short of a D.C. style complete ban would pass.

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Have to disagree. We are not going to get everything we want from one decision anyway. It took decades and many decision by courts for the first amendment to become what it is.
We need solid decision that 2A is individual right. Simply because president Obama may end up nominating 4 justices in the court. We want this ruling to be decisive enough to survive that.
The rest of the stuff can come later, but this individual interpretation needs to be cemented into America jurisprudence and American public mind.

I'll take narrow 7-2 over very broad 5-4.

A blowout would be the application of strict scrutiny to any other limitations, and strong dicta in the majority and concurring opinions that the same rules apply to states and cities due to the 14th Amendment and also that the federal MG ban is unconstitutional. It ain't who writes it, its what is said that REALLY matters.

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Really, that is not all that far off. I fully expect several justices to write opinions agreeing with the majority opinion and expanding on the very narrow scope that is decided. I would not be at all surprised if one of the opinions flat out stated that incorporation is a given and inferring MGs cannot be banned at the Federal level (maybe via an innocent sounding statement about banning a whole class of firearms as DC did).

I predict it'll be a 7-2 or 6-3 decision. Besides the conservative wing and Kennedy, we probably have Ginsberg, and possibly Souter. Breyer and Stevens are obviously "collective rights" (I might be confusing Souter and Breyer, but I know for a fact Stevens is "collective" through and through).

but I know for a fact Stevens is "collective" through and through).

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He does not seem to be a "pure" collective advocate, but rather a "sophisticated" collective advocate. The distinction being a pure collective position would see no individual right at all, but merely a right of the individual states to arm the militia. This is the 9th Cir view. The sophisticated collective right theory sees an individual right that protects members of the well regulated militia (read "national guard") and their militia weapons.... I believe this is the tilt Stevens revealed during oral argument.

I still have a hard time seeing how it could be anything other than 9 - 0 for Heller. The intellectual dishonesty and necessary moral gymnastics necessary to decide against Heller, given the preponderance of evidence for the second amendment as an individual right, as evidenced by PERSONAL TESTIMONY and public record of the writers of the Second Amendment is astounding.

Besides why would the government need to guarantee itself the right to keep and bear arms? Why in the world would that be necessary?

I still have a hard time seeing how it could be anything other than 9 - 0 for Heller. The intellectual dishonesty and necessary moral gymnastics necessary to decide against Heller, given the preponderance of evidence for the second amendment as an individual right, as evidenced by PERSONAL TESTIMONY and public record of the writers of the Second Amendment is astounding.

Besides why would the government need to guarantee itself the right to keep and bear arms? Why in the world would that be necessary?

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+1 for the best Heller post in ages, and I agree completely at this point...

I still have a hard time seeing how it could be anything other than 9 - 0 for Heller.

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IMHO, the very best we can hope for is 8-1. Stevens will be on the other side, regardless. Personally, I would be delighted if it was 6-3, ecstatic if it is 7-2 and delirious with joy if it was 8-1.

This brings up

a question I've never found a good answer to:

Really, that is not all that far off. I fully expect several justices to write opinions agreeing with the majority opinion and expanding on the very narrow scope that is decided.

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Why do they bother? As I understand it, concurrences carry no weight, and cannot be cited by any inferior Court. Nor do they establish any precedent.

So why write them? Is it just for the concurring Justice to get his or her ideas on paper? Then why not write a paper, or a book?

I get the dissenting opinion... the minority position should be stated. But can a dissent be cited later by the Court if it overrules the majority opinion? Did the opinion in Brown cite the dissent in Plesy?

Anyone know why and how this tradition evolved, and what, if any, real effects it has?

--Shannon

Tube_ee:
They explain the reasoning of the court and show how future cases might attack the ruling. Also, the minority writers attempt to persuade members of the majority to change sides to switch the majority/minority and thus the ruling.

Kharn

OK, so I can see the

"possible avenues of attack"... sort of. But if what is mentioned isn't part of the binding ruling, how can it be an avenue of attack against that ruling?

As to changing minds... isn't the "writing opinions" phase a little late for that? My understanding was that the opinions and concurrences are written after consultation between the Brethren (Sistren?) has moved everyone to wherever they're going to be. IOW, they all talk about it, then they put pen to paper. Or voice to clerk, as the case may be.

--Shannon

tube_ee:
The Justices can change their mind on which side they support up until the day the opinion is read from the bench. At least one case this term had the majority/minority switch after the opinions were written.

Kharn

We need solid decision that 2A is individual right. Simply because president Obama may end up nominating 4 justices in the court. We want this ruling to be decisive enough to survive that.

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LOL! There ain't no such thing as a ruling decisive enough to accomplish THAT, when he'll be nominating 'Justices' who simply don't care what the Constitution or precedent says. Obama gets 4 'Justices', with a Democratic Senate to confirm them, and it's game over as far as the Court is concerned.

Thats if the next President doesnt just pack the court with extra Justices like FDR threatened to do. The Constitution doesnt say how many Justices sit on the Court, the tradition has just been 9.

Kharn

As to changing minds... isn't the "writing opinions" phase a little late for that?

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Not at all... reading older opinions you can often see the Court adopt the dissenting position from even 20-50 years earlier.

In many cases, the dissent is an outline of how the majority opinion can be attacked in a future battle.

The number of justices for the USSC is set by law. Originally, the number was set as six in the Judiciary Act of 1789.

FDR's threat to pack the court would have been an empty threat without Congress to back him.

The history of the great depression era is a good lesson for us today. In a time of great distress for the American people, we had a Republican government which had refused to take action or took ineffective action to address the problems it faced resulting in a landslide election of the Democrats.

While American tend to prefer divided government because it doesn't trust too much power in the hands of one group or another, at times the problems are so aggrieving, they'll bit the bullet to solve the problems.

The current Republican administration has a pretty strong record of ineptitude in addressing the problems of the American people. If, as a result, the election gives the Democrat a landslide, don't count on the USSC standing in the way of what they want to do.

I honestly believe there will be a 6-3 decision (Breyer-Stevens-Ginsburg dissenting); it will be interesting and valuable to read the dissenting opinion(s). My reasons are that the key points in the dissenting opinions will likely be used by the anti-gunners and disseminated by the MSM. Those will be the arguments we will be hearing for the next decade or two and of course they will be fueled by "a Supreme court justice said that ..."

For the record, Antonin Scalia is my bet on the author. If he is, we may get the 7-2 with Ginsburg adding in the strict scrutiny part of the majority opinion. No slam against Thomas, he is a fine SC Justice, I just wish he'd speak up more during case hearings!

One last point about CJ Roberts, he said he would bring out more agreement amongst the justices, and this season he has done that. There have been fewer 5-4 decisions, and more 9-0, 7-2, etc, type opinions rendered than last year. Giving habeas rights to foreign enemy combatants is still a mystery to me though...

The current Republican administration has a pretty strong record of ineptitude in addressing the problems of the American people. If, as a result, the election gives the Democrat a landslide, don't count on the USSC standing in the way of what they want to do. - Phil Lee

I understand what you are saying here Phil, but answer this: How many people on September 12th, 2001 honestly believed that there would not be more attacks on the American people? The current administration's Job #1 was to keep us safe and so far in 7 years the terrorists have attacked Spain, the UK, etc, but not one more attack on US soil.

Bush's communication record is terrible, his domestic agenda perhaps equally so, and for that the Republicans may lose this election to the most liberal senator ever to run as a presidential nominee. If he gets in, the SC will be tilted left as justices retire for the remainder of my years on this planet!

I don't see it this way...

giving habeas rights to foreign enemy combatants is still a mystery to me though...

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First, Habeas Corpus is specifically mentioned as a privilege, and not a right. I think this is the only use of the word in the Constitution.

Second, and more importantly for Heller, the Article I section that describes how Habeas may be denied is not a grant of rights, ala the BoR (and spare me the "rights come from God/natural law/basic humanity arguments... I agree, minus the skypeople part, but it's not relevant here), but a specific restriction on the actions of the Government. "Except in cases (a) and (b), the Government may not do (x)."

Arguments about this that start from the premise that the SCOTUS granted Habeas Corpus to detainees are looking through the wrong end of telescope, IMHO.

How is this related to Heller? Because the whole basis of our argument re: the 2nd Amendment is that, even if there were compelling public safety reasons to do so, the Constitution says that Government cannot take away the people's right to be armed.

It's the same argument that civil libertarians make regarding wiretaps, the Patriot Act, and the whole security-state apparatus set up since 9/11. The 1st, 2nd, 3rd, 4th and 5th Amendments say to the government, "Thou Shalt Not..." Period. Full stop. No exceptions.

The idea of a "national security" or "time of war" exception to the 4th Amendment is as silly as the "collective rights" interpretation of the 2nd.

--Shannon

Really, all of the rulings that people have gotten in such a twist about are really sound rulings if people would learn to look past the press hyperbole and actually read the decisions. Even Kelo makes sense.

First, Habeas Corpus is specifically mentioned as a privilege, and not a right. I think this is the only use of the word in the Constitution.

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How did you derive at this conclusion?