DC vs. Heller: Win & Lose simultaneously ?

[usmarine0352_2005]

"The petition for a writ of certiorari is granted limited to the following question: Whether the following provisions, D.C. Code §§ 7-2502.02(a)(4), 22-4504(a), and 7-2507.02, violate the Second Amendment rights of individuals who are not affiliated with any state-regulated militia, but who wish to keep handguns and other firearms for private use in their homes?"


What if we win and lose on the Heller decision?


Lets say that SCOTUS declares it IS an idividual right, however, it's also permissible to have "reasonable" restrictions, such as the DC gun law?

 

[Winchester 73]

Lets say that SCOTUS declares it IS an idividual right, however, it's also permissible to have "reasonable" restrictions, such as the DC gun law?

Can it logically be both?

 

[Coronach]

WE would say no (for instance, that is what "shall not be infringed" addresses), but who knows what they will decide?

Mike

 

[usmarine0352_2005]

Can it logically be both?

That's what I was thinking.

But with people thinking it's a slam dunk case for individual rights, I was thinking we could we theoretically win and lose at the same time.

I hope it doesn't end like that, but if it did, man, that would be bad.

 

[Hypnogator]

Lets say that SCOTUS declares it IS an idividual right, however, it's also permissible to have "reasonable" restrictions,

IMHO, that's exactly how they'll rule. I doubt, however, that they'll find DC's blanket prohibition on handguns "reasonable."

Defining "reasonable" will keep many, many lawyers gainfully employed, probably right into the next century.

 

[Eightball]

keep in mind the fact that a lot of this case dwells on Heller's and other citizen's right to keep arms in their homes.

What strikes me is the potential unintended consequences of a postive ruling from the court. If they decide in favor of the individual right and go on to say that the DC law cannot ban handguns and is too restrictive on long guns, then DC residients should then be able to keep both long guns and handguns in the home.

But, here comes the big unintended consequence. The court can rule that an individual has a right to keep and bear arms, but that right only applies in the home.

What happens when you walk out of your home? Do you lose that right? Did our forefathers keep lock boxes on their horses or buggies?

This post from another thread has me decently worried at this point, for the reasons in bold. It strikes me that, depending on just what they rule, winning could possibly cost us CCW if they aren't careful--and you can bet that the "brady bunch", Obama, and most any other anti-2nd and anti-CCW group will jump on that gravy train.

 

[Dr. Tad Hussein Winslow]

The question for all the marbles is "Does strict scrutiny apply?" If they don't answer that question, it won't help us a LOT. It won't hurt us a lot either, at least in the short run, and will help us some small amount. The various circuit courts will flesh out that issue, for now.

If, OTOH, they answer a question beyond what they say they are going to answer - what level of scrutiny applies, then that would be either extremely good (strict scrutiny) or extremely bad (rational basis test adopted), or small chance, somewhere in between but mostly good (intermediate tier of scrutiny). If rational basis is adopted, then there IS NO 2nd amendment for all intents and purposes, and a level of shame and disingenuousness will come over the court like never before - in that case, the SCOTUS will have completely abrogated their duty to use the text, historical context, original intent, and stare decisis as the basis of their decisions.

 

[Winchester 73]

If rational basis is adopted, then there IS NO 2nd amendment for all intents and purposes, and a level of shame and disingenuousness will come over the court like never before - in that case, the SCOTUS will have completely abrogated their duty to use the text, historical context, original intent, and stare decisis as the basis of their decisions.

But this will not occur.I give you the same 3-1 odds as Werewolf.
Your stakes.Your sauces.

 

[Rmeju]

My 2 pennies:

Given that I think it will come down as an individual right...

1. I think that the court has a good chance on NOT ruling on any scrutiny whatsoever, and would (theoretically) cite that there is no need to decide the level of scrutiny now as DC's laws cannot stand up to any kind of scrutiny whatsoever. However, if they decide that it could stand up to the rational basis test, then

2. They would then probably define the level of scrutiny as either strict, intermediate, or perhaps make up a new test. If we don't get strict scrutiny, I really feel we have protection against little but blatent, comprehensive bans. IMHO, the chance of federal laws being upended is not a good reason to lower the level of scrutiny, contrary to what the AG said. If that's a reason for the court to temper their decision, then the court has little or no reason to exist.

3. There is the slimmest of possibilities that we'll get incorporation out of this, but not only am I not holding my breath, I really don't even care too much, even in the event that we were to only get intermediate scrutiny. Chicago's handgun ban is like a great, big Christmas present from Mayor Daley (well actually Jayne Burn, but who's keeping track) to all of us gun owners who like the idea of incorporating the 2A against the states. We should all send him a nice big thank you letter the day he has to bend over for the Supreme court ruling on that one.

Can we win and lose at the same time? Oh yeah. If they rule on what level of scrutiny to give, and don't give it strict scrutiny (which I'm VERY worried about), then most chance of a judicial remedy to the many glaring infringements of the 2A are out the window, and we'll have to rely on the masses to allow us our gun rights if we ever want them.

Yeah, I'm not holding much hope for that either.

Hope my uneducated, internet 'legal analysis' helped you

Reid

 

[Winchester 73]

Hope my uneducated, internet 'legal analysis' helped you

Far from uneducated,extremely elucidating.
Thank you,Reid.

 

[xjchief]

This is a win:

Strict scrutiny
2nd Amendment incorporated
Individual right

Anything less than that is a loss. Which other amendment is as important as the one that provides the people with the means to enforce the constitution?

 

[rugerman07]

I think the Supreme Court will rule it is an individual right to own firearms, but it really won't change anything. We'll still have the same restrictive rights we now have.

 

[Igloodude]

If SCOTUS declares the 2A guards an individual right, we win - unless they explicitly detach that right from any militia meanings entirely, at which point we lose the chance to ever get machine guns back in any real way.

If SCOTUS goes for "reasonable restrictions are okay" and decides the DC gun ban is reasonable, we're right back to where we started - fighting in the legislatures without an option for judicial remedy. It is a defeat in the same sense that militarily an attack repulsed by a defender is a defeat for the attacker, all other things being equal.

 

[Ash]

It seems to me hard to fathom that if it is an individual right, that banning ownership would be considered reasonable.

Ash

 

[Bartholomew Roberts]

This is a win:
Strict scrutiny, 2nd Amendment incorporated, Individual right

Anything less than that is a loss.

Well, you better expect a loss then because Heller didn't even address incorporation. In fact the whole point of Heller was to avoid incorporation as an issue and the court pretty much did that in the way they framed the question.

Given that situation, getting an incorporation ruling would be more like a bonus than a loss in my view.

Also, a right that only exists in the home would not imperil CCW because most CCW laws were passed in states where the collective rights interpretation was the controlling law. So far, not a single CCW law has been rolled back and many have been expanded. So even if this ruling did not explicitly protect CCW, it certainly doesn't harm it.

 

[Bubbles]

This is a win:

Strict scrutiny
2nd Amendment incorporated
Individual right

Anything less than that is a loss. Which other amendment is as important as the one that provides the people with the means to enforce the constitution?

Would you settle for two out of three (no incorporation, that's a future lawsuit) in a strongly-worded, unambiguous 7-2 decision?

 

[sacp81170a]

Strict scrutiny
2nd Amendment incorporated
Individual right

Would you settle for two out of three (no incorporation, that's a future lawsuit) in a strongly-worded, unambiguous 7-2 decision?

If we can get strict scrutiny and an individual right, I don't care if it's 7-2 or 5-4.

 

[esq_stu]

My prediction:

- They will affirm the Circuit court and throw out the city ordinance.

- There will not be a majority on the reason. Instead, the court will be divided at least 2 ways on the reasons.

The vote will be 5-4 to affirm (for Heller).

The opinions will go 6-3 for individual rights, 3 for collective rights.

There will be no majority on the standard of review/level of scrutiny. :banghead:

There will be at least 4 opinions written to address the nature of the right (collective vs individual) and the standard of review. :banghead:

a. affirm/individual right/strictest scrutiny: Alito, Thomas;
b. affirm/individual right/intermediate scrutiny (ordinance unreasonable): Scalia, Roberts, Kennedy;
c. reverse/individual right/intermediate scrutiny (ordinance reasonable): Ginsburg
d. reverse/collective right: Breyer, Stevens, Souter

Kennedy or Roberts will author the majority opinion.
Alito or Thomas will write a concurring opinion.
Ginsburg will write a dissent.
The collectivists will also write a dissent.

Souter might surprise everyone. People assume he'll vote "collective" because of a brief written in '76 when he was New Hampshire A.G. But he votes kind of like Thomas on free speech issues, and might have more sympathy than expected on the second amendment. But if he does, he'll be with Ginsburg and would not affirm.

My 2 cents. I may change my opinion after lunch.

 

[RP88]

I think there is too much that can be deemed reasonable, but at the same time, it can be challenged.

however, the real threat would be what KIND of guns are reasonable. That could mean that anything outside of a hunting long arm is gone. They could still pave the way for an AWB or more legislation against handguns if their idea of 'reasonable' is not explicitly or inherently detailed, specified, or explained (in which case, it would maybe make it a state issue instead of a federal one, which is still quite a good thing).

just my opinion from how I see how things are shaping up. It looks like all this will do is just make the worst-case scenario for gun rights only a little better than it was looking before this case.

 

[Rmeju]

Stu,

Far be it from me to claim I'm a supreme court justice expert, but why do you think that Scalia, who in my opinion gave the most vocal support for the 2A, would write/want an opinion with intermediate scrutiny?

I also hardly think that Roberts or even Kennedy are reliable votes for intermediate over strict scrutiny. Roberts sounded like he wanted to avoid the discussion, suggesting that 2A (similar to 1A) could accumulate its legal baggage over time instead of one big gulp, but that doesn't mean if he was forced to confront it, he'd go with intermediate scrutiny. Kennedy's words left him open to some pretty broad possibilities about where he'd land, and my crystal ball is out of order until June. For all these reasons, I think a new test that is tougher than intermdiate but more permissive than strict could be on the table as well. Maybe that's just me showing my ignorance though.

Does anybody know what would happen if 3 out of 5 justices in the majority wanted strict scrutiny, but the author of the majority opinion (say Kennedy, for example) was in the "minority" majority, and wanted intermediate scrutiny? Does the one guy who writes the opinion get to essentially make the law, or do they have to hash it out or vote on it?

Reid

 

[tube_ee]

My bet is that Roberts will write it,

If he's in the majority.

The chance to define what one of the Bill of Rights amendments actually means is something that every student in every law school in the country dreams of.

This is a once-in-a-lifetime opportunity. Actually, more like once-in-several-lifetimes. By definition, it can only happen 10 times.

Rank Hath Its Privileges, and I can't see the Chief Justice passing this one up.

--Shannon

 

[P. Plainsman]

Does anybody know what would happen if 3 out of 5 justices in the majority wanted strict scrutiny, but the author of the majority opinion (say Kennedy, for example) was in the "minority" majority, and wanted intermediate scrutiny? Does the one guy who writes the opinion get to essentially make the law, or do they have to hash it out or vote on it?

In a situation like that -- a 3/2/4 split along a spectrum -- the opinion that controls is the opinion by the group of Justices in the middle, because their votes are necessary to obtain five votes for the ultimate result. In that case the opinion of the Justices in the middle is the opinion that gets cited as authority by lower courts.

So let's make this concrete. Suppose there are five votes on the Supreme Court in Heller to affirm the D.C. Circuit, and four votes to reverse. OK, so the result, the decision handed down by the Supreme Court, will be an affirmance. But suppose three of the five Justices in the majority think strict scrutiny is appropriate, while the other two think intermediate scrutiny is appropriate, and the four dissenters want some lesser level of scrutiny (or no individual right at all).

Then the controlling opinion is the one by the Justices who vote to reach the result of the Court's majority (affirmance), on the narrowest grounds (here, intermediate scrutiny).

If Heller were to break down like this, then lower courts would treat the two-Justice opinion as the binding law, and would apply intermediate scrutiny to Second Amendment questions unless and until the Supremes take up the issue again. (When SCOTUS examines an earlier decision that only yielded a plurality opinion on a particular legal issue, it is usually somewhat more willing to re-think that issue than when there is a genuine majority opinion on point.)

There is a SCOTUS case that specifically deals with these types of splits: Marks v. United States, 430 U.S. 188 (1977). The "rule of Marks" is what I just described: "When a fragmented Court decides a case and no single rationale explaining the result enjoys the assent of five Justices, the holding of the Court may be viewed as that position taken by those Members who concurred in the judgments on the narrowest grounds." Id. at 193.

 

[Jim March]

I don't know how this one will go.

One odd ray of hope I see is that Kennedy (a likely swing vote) was clearly in favor of an individual right, but was also trying to figure out how NOT to expand rights on full-auto.

Well there's a way to get there that's at least somewhat intellectually honest: claim that the 14th Amendment transmuted the 2nd from a "political right" akin to jury duty and militia service to a "personal civil right".

The authors of the 14th were dead clear that they were trying to allow newly freed blacks (1868) from the proto-KKK and rogue southern state agents. But since blacks didn't get the vote until a few years later (15A) they didn't have political rights in 1868...and the authors of the 14A knew that. (Blacks were supposed to get the same rights as white women back then and green-card holders today.)

This approach abandons Miller's "militia weapon" connection completely. BUT the approach absolutely requires incorporation of the 2A against the states and could maybe be argued to support CCW in some form. As extreme a Liberal as Yale law professor Akhil Reed Amar was forced to support full incorporation of the 2nd via the 14th after studying the 14th's passage and creation.

Kennedy and the rest understand full well that under a "rational basis" review the 2nd is dead and DC can do whatever the hell they want. So I have less fears there - I think they'll either knock yet another hole in the whole strict/rational wall (which has come under it's own scholarly fire) or create a new standard just for bangthings, or go strict with limitations.

 

[Rmeju]

Plainsman,

So if we get a 5/4 for individual vs. collective, but 4/1 for strict vs. intermediate, then the binding result on lower courts is individual and intermediate scrutiny?

Reid

 

[P. Plainsman]

Rmeju,

Yes, that's right. Unless some of the four dissenters also accept strict scrutiny (which would be weird, but technically possible).

In that weird circumstance, you'd actually have a full five votes for a particular holding on a particular legal issue (2A gets strict scrutiny), and that would be controlling even if the necessary five votes are sprinkled among plurality, concurring, and/or dissenting opinions.