2A Supreme Court scenarios: 2008

[ctdonath]

short term, no way

Ah, 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]

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]

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]

ctdonath

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]

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.

 

[Fletchette]

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]

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]

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]

The Road to Incorporation

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]

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]

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]

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]

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]

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]

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]

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]

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]

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]

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]

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]

Ctdonath

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]

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.

 

[Crunker1337]

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]

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