Conference set by SCOTUS

[legaleagle_45]

September 29, 2009 is the next date of importance for those who are following incorporation and SCOTUS. Maloney has been added to the court's calender for that date, joining the 2 Chicago cases on incorporation. The conference will decide whether to grant or deny cert for pending cases.

Of note is the addition of Maloney on the same date as the Chicago cases. It is possible for SCOTUS to join these cases for purposes of deciding the issue of incorporation. If they do that, Sotomayor will be disqualified from participating in the case due to the fact that she heard Maloney at the Court of Appeals level.

We should know within in a few days after Sept 29 if cert is granted. My bet is that Cert will indeed be granted.

 

[ilbob]

She isn't disqualified from participating, but traditionally justices have recused themselves in such cases.

 

[legaleagle_45]

She isn't disqualified from participating, but traditionally justices have recused themselves in such cases.

Yep, but I would wager large amounts of cash that she would recuse herself.

 

[Maelstrom]

So what happens in the resultant 4-4 tie?

 

[ilbob]

Yep, but I would wager large amounts of cash that she would recuse herself.

She probably will since it is unlikely to make any difference in the outcome whether she votes or not.

 

[ilbob]

So what happens in the resultant 4-4 tie?

A tie means the lower court decision is upheld. A difficult situation if they are looking at cases where the lower courts came to different conclusions. not sure what would happen then. perhaps a lawyer could advise.

 

[scurtis_34471]

So what happens in the resultant 4-4 tie?

That's not likely with the current composition of the court.

 

[Maelstrom]

I'd say it depends on the reach of the opinions.

Four conservatives, three liberals, one Kennedy.

If the conservative opinion is "radical" enough, then Kennedy will side with the liberals giving the four-four split.

Alito, Scalia, Thomas, and Roberts are likely conservative votes.

 

[legaleagle_45]

Alito, Scalia, Thomas, and Roberts are likely conservative votes.

Scalia's general disdain of standard incorporation and his previous statements concerning his then belief that the 2nd was not binding upon the states may be of some additional concern.

 

[Phatty]

Four conservatives, three liberals, one Kennedy.

It's not that easy. Traditionally, conservative judges would be the most hesistant to incorporating the bill of rights against the states and liberal judges would be very likely to incorporate against the states. However, in this case, the right at issue -- guns -- is not liked by liberal judges, so there will be an internal battle within themselves. Conversely, the conservative judges will probably not want to see a judicial result where the liberals only incorporate the rights loved by liberals.

In other words, a conservative judge will be like, "Yeah, I'm against the idea of incorporation generally speaking, but, if we are going to have a policy of incorporating rights, we should incorporate rights we should include both the rights loved by liberals and the rights hated by liberals."

Another twist is that conservative judges are generally against the use of the due process clause of the 14th amendment to incorporate the bill of rights, because it is (admittedly so) a bit of a legal stretch. However, these 2nd amendment cases are advocating that the privileges/immunities clause be returned to its rightful interpretation. A conservative judge may have disdain for due process clause incorporation doctrine, but still decide that the P/I clause incorporates the bill of rights against the states.

In short, there are a ton of complicating factors in play. Where you'll probably see a classic conservative/liberal split amongst the judges is on the question of whether the 2nd Amendment protects a fundamental right.

 

[ArmedBear]

However, these 2nd amendment cases are advocating that the privileges/immunities clause be returned to its rightful interpretation. A conservative judge may have disdain for due process clause incorporation doctrine, but still decide that the P/I clause incorporates the bill of rights against the states.

In the end, this could really be about something other than the 2nd Amendment...

I hope...

Personally, I see the extensive "due process" interpretation to be an invention, but the "priveleges and immunities" clause to incorporate the Bill of Rights among other things, plain as day. IANAL, but that appears to be the intent of those who wrote the 14th Amendment (as opposed to those who sought to undermine it later).

in this case, the right at issue -- guns -- is not liked by liberal judges

Interestingly, though, the Breyer dissent (joined by two others) does acknowledge an individual right to bear arms, but for purely and admittedly political reasons, wishes to uphold DC's laws (Breyer's language is about not wanting to have an impact on gun laws, regardless of what the constitution says -- for which he ought to be impeached IMO). So one conclusion he invents is that handguns aren't necessarily included in "arms", if rifles or shotguns can be possessed.

Only the lone Stevens dissent denies an individual right to bear arms. The support he uses for his dissent is little but a list of lies by anti-gun movement, refuted by the citations in Scalia's opinion.

The upshot, then, is that only one "liberal" judge really denies that the 2nd Amendment is about an individual right.

The other three, however, (two now) clearly indicate that they are about desired outcomes, not the Constitution.

That's just the "guns" part, though.

 

[Phatty]

Interestingly, though, the Breyer dissent (joined by two others) does acknowledge an individual right to bear arms

...in connection with service in a militia. That's sort of a huge qualifier that most people miss. Since there really isn't any state militias anymore, the liberal judges only acknowledged the existence of a completely hollow right.

Only the lone Stevens dissent denies an individual right to bear arms.

No, you are a little confused about the dissenting opinions. First, all four of the dissenters joined in Stevens' dissent, in which he held that there is an individual right to bear arms, but only in connection with militia service. All four of the dissenters also joined in Breyer's dissent, in which he argued that even if the 2nd Amendment protects a right completely unconnected from militias, the D.C. law is a reasonable regulation allowed by the 2nd Amendment. All of the dissenters were unified in their arguments. They merely split the writing duties between Stevens and Breyer to cover two separate topics.