Everyone itching for a Supreme Court showdown...

[antsi]

We often see the opinion expressed here that "wouldn't it be nice if we could get a 2nd ammendment case to the Supreme Court." The more modest idea people have is that the Supremes would affirm the individual rights interpretation of the 2nd once and for all and for good. The more ambitious idea people have is that they would go for a sweeping interpretation of "shall not be infringed," thus negating all restrictions on RKBA whatsoever.

Watching this court, I'm not so sure we want a showdown like that. It looks to me like we have 4 sensible justices. The chief is one of them, but he looks to be a guy who wants to achieve consensus - often by deciding a case as narrowly as possible.

With this court, I don't see any hope of the kind of decisions people here are looking for. An affirmation of the 2nd would be - maybe - possible, but somehow I don't see Kennedy signing on to it. I definitely do not see this court coming down with the kind of sweeping "no restrictions ever" decision that people here like to fantasize about.

Given the unlikelihood of a major RKBA victory, I think the risk of an unfavorable decision is too great at this time. I would really like to see us throw a couple more constitutionalist justices up there before we try for the big showdown.

I am strictly an amateur court-watcher, though, and not terribly diligent about it. Anyone else have an opinion about our chances with a Supreme Court case in the near future?

 

[ctdonath]

Won't know 'till we try.

We've been waiting 70+ years.
We've been waiting for a perfect case to materialize out of coincidental criminal cases.
We've been sheepishly promoting simplistic cases easily knocked down by activist judges.

Without an upstanding citizen saying "I want an M4" - preferably hundreds or thousands, making it a serious movement rather than a lone nut - we won't get anywhere.

Yes, the court's makeup is not ideal. Don't expect it to be. That's life.
Get hundreds of upstanding citizens to file suit demanding their right.
Get multiple conflicting verdicts in different jurisdictions to force SCOTUS to deal with it as an equal-protection issue.
Make the suit simple, straightforward, comprehensive, and clean.
Make the suit stand on a strong foundation where only one successful line of reasoning is needed to win.
Make the suit stand on multiple supports so if several are knocked down it still stands.
Make the suit easy for individuals to file without huge teams of expensive lawyers; file each asking only for a yes/no verdict based on what's written.

Previously discussed here.

Yes, some will play dirty. Cope. Bring it on.

I just need an attorney willing to discuss it for an hour.

Justice Thomas, among others, has indicated he's waiting for a clean case to arrive. Let's give him one.

 

[longeyes]

Better think through the Back-Up Plan. Just in case.

 

[xd9fan]

Why do we need a court to tell us(there by letting them shape the language....and limit) our "Rights" which are enumerated in the Constitution??

Never understood this approach......asking a branch of Govt to clairify OUR RIGHTS.

Todays Americans have sure lost Patrick Henry's healthy mistrust of Govt.

 

[longeyes]

I agree. Asking for permission and validation is, at root, conceding defeat before you begin.

And, pragmatically speaking, believing that this Court, with its current make-up, would produce a decision we at THR would embrace, seems implausible. Even if it did the antis will march on, using other means, including international law, to advance their cause.

Buckle up, this is going to be a never-ending struggle.

 

[roscoe]

The Supreme Court would never side with individuals against the government for the right to bear arms. Even the 'conservatives' like Scalia and Roberts have made that clear. Thomas would probably be the only one. Scalia has repeatedly sided with the government against gun owners.

 

[Hk91 Fan]

I would be quite interested in more information regarding the occasions that Scalia has sided with the government interests when pitted against the interests of American firearm enthusiasts. Do you have any specific instances? In fact, I would be interested in hearing specific citations regarding any perceived conservative siding against firearm enthusiasts.

 

[ctdonath]

Asking for permission and validation is, at root, conceding defeat before you begin.

Can YOU make an M4? P90? M2? seriously?

Realistically, you (generically speaking) can't build the equivalent of what the 2nd Amendment is about. Oh sure, some people can finish off an 80% receiver - then face getting crushed by 10 years federal prison if you drill out the select-fire bits. We're seeing the do-it-yourself MG theory getting flushed in the Stewart case.

On the whole, being able to BUY exactly what the military regularly assigns is axiomatic to exercising one's RKBA. Yes, you'll have to ask permission. If you don't, nobody can sell you an M4 legally. No retailer can sell you one (and let you take it home) without risking enormous punishments for violating federal laws.

The only hope is to submit the Form 4 paperwork to BATFE requesting transfer permission, getting rejected, then filing suit saying "you can't say no to an upstanding citizen taking ownership of a paid-for standard military weapon - go see the 'shall not be infringed' bit of the Constitution". Get a hundred other law-abiding citizens to do the same (lest they blow off the "lone nut").

The only alternative is to do something that makes you a criminal, a law-breaker - something which the courts will NOT take kindly to, and WILL find a way to deny rights to. This notion of gaining "standing" only when indicted is absurd.

Keep the case clean. Do it up-front, full-exposure, ask permission (as SCOTUS has ruled NFA reasonably requires), and when stopped point out that 922(o) contradicts 2nd Amendment and the latter trumps the former.

We have yet to bring a case which rests firmly, clearly, and unavoidably on "shall not be infringed"; until we do, there won't be a win. Yes, there is a risk of loss - but we are living "lost" until the case is pushed to conclusion.

(Yes, I'm hung up on the M4. It's the modern standard for weapons which 2nd Amendment recognizes a right to. That which is legal (AR15 or older designs) is stuck in history more than 20 years old.)

 

[Werewolf]

FWIW my take on the current court is that it takes a very practical view of things and looks at the potential consequences of a decision more so than other courts have. This court tries to minimize the impact of it's decisions and so far has tossed the ball back into congress' court.

NOT GOOD! Not good at all for any 2nd amendment case.

The practical impact of incorporating the 2nd into the 14th and/or deciding that shall not infringe means exactly what it says on the states and current pack of laws would be too great for this court to abide even if it got a case that from a purely legal point of view could be decided that way.

In addition I don't see this court even going so far as to affirm an individual right because that would IMO necessitate the incorporation of the 2nd into the 14th and again the practical impact would be too great.

The currrent batch of supremes are a bunch of wishy washy, don't make waves kinda guys (with one or two exceptions).

Don't hold your collective breaths waiting for this court to do anything historical. It just isn't in their nature.

 

[Waitone]

As long as the current court majority feels free to incorporate foreign law and international agreements I'd just as soon not have a showdown case on the second amendment. At least 5 members of the court are completely off the rails. I'd feel fairly confident if we had a 5 to 3 majority of justices who can read. Short of that? Leave it alone.

 

[Creeping Incrementalism]

The practical impact of incorporating the 2nd into the 14th and/or deciding that shall not infringe means exactly what it says on the states and current pack of laws would be too great for this court to abide even if it got a case that from a purely legal point of view could be decided that way.

In addition I don't see this court even going so far as to affirm an individual right because that would IMO necessitate the incorporation of the 2nd into the 14th and again the practical impact would be too great.

I think it should be said that the 2A has been incorporated in the 14A from the start. If you read the debate about 14A when it was first brought before Congress, you will see this. For example, when 14A was brought before the Senate, the fact that it was being brought up specifically to preserve RKBA (among other rights) for newly-freed slaves was mentioned by the Senator who introduced it.

SCOTUS won't hear 2A until the makeup of the court becomes less anti. The antis won't hear a case because they don't want to overrule laws banning guns, and the pros don't want to bring it up for fear the antis might win.

 

[yucaipa]

I'd feel a lot better if Bush got to replace Ginsburg or Stevens 1st.

I know, but it could happen.

 

[longeyes]

Sure, and Bush's buddy Alberto Gonsalez is still available.

 

[roscoe]

I would be quite interested in more information regarding the occasions that Scalia has sided with the government interests when pitted against the interests of American firearm enthusiasts. Do you have any specific instances? In fact, I would be interested in hearing specific citations regarding any perceived conservative siding against firearm enthusiasts.

hk91 fan, check out this thread, and look up Small vs. United States:

http://www.thehighroad.org/showthread.php?t=136432&highlight=scalia]

It is not specifically a question of guns - whatever it is, guns, privacy, drugs, etc., Scalia thinks the federal gov. has a right to regulate it irrespective of constitutional provisions otherwise.

 

[Waitone]

Yeah, Albert is still out there in a holding pattern. Can you say "deal"? Congress gets its enforcement first legislation and Bush gets his bud on the court. Bush will do and / or say anything to get amnesty set up. Too conspiratorial you say? Ginsberg has a hard time holding her head up much less forming coherent thoughts.

 

[Langenator]

It isn't really 'Congress' that wants 'enforcement first' on illegal immigration. It's the House. The Senate simply, desperately wants something to show the voters in November to show they're doing something, and if the House will only give them enforcement first, then they'll take it, even though they want amnesty, too.

And it's the Senate that votes on judges/justices.

 

[MudPuppy]

I'd prefer a showdown no matter the outcome. Let's clear the air and if the Government wants to act like NAZIs, let them come out and say it. If that means an outright ban, I still think that would be better than the non-stop incrementalism of anti-gun legislation we've been seeing and will continue to see.

The reason there won't be a showdown is because there's no need for one. They'll continue doing as they please with the status quo.

Molan Labe! Uhm, okay you can have that one, but I'll never give up this one...what? You want this one too? Okay, but I'll nev--oh come on, now you want my airgun? *Welcome to your future*

 

[Brett Bellmore]

The RKBA is dying the death of a thousand cuts in the circuit courts. And with every adverse lower court ruling, the Supreme court gets more reluctant to over-turn the accumulating precidents, no matter how wrong they might be.

I think we're better off having that confrontation. Anything short of complete defeat would give us something to build from, and represent an improvement over standing precident in most of the circuits.

And a complete defeat? We could ride the outrage from THAT ruling right into ratifying a new amendment.

 

[spartacus2002]

Complete defeat? You mean defeat like the 5th Amendment and eminent domain received in the Kelo case? Yes, several states have enacted anti-eminent-domain laws in response, but that's because there are so many homeowners in America -- hell, our federal tax code benefits and promotes home ownership.

Where is the similar cross-strata luvin' for gun owners? It doesn't exist. If SCOTUS says the 2A is kaput, it's kaput for all legal purposes. Sure, you can grind that 80% receiver into a fullauto receiver, but the entire weight of the government will be against you -- and your fellow Americans won't hold a Second American Revolution on your behalf.

Not trying to be defeatist; as a lawyer and someone who spent a LOT of time working for the government, I'm more of a hardboiled realist.

 

[longeyes]

Confrontation? Most people can live without guns just as they can live without liberty, at least the kind people on this forum want. If we get screwed by SCOTUS we might as well plan a mass exodus to New Zealand and start a new nation.

 

[Third_Rail]

I still can't find where in the Second Amendment it says that I can't have a particular firearm.

 

[Fletchette]

Very interesting topic indeed.

I too, am worried about our Supreme Court as they seem to either be in conspiracy to undermine the sovereignty of the United States, or simply out of their minds. Several recent cases and public statements made by a few of the Justices are alarming. If they did decide against the 2nd Amendment, we would have little recourse. We need to place some sane and loyal Justices to the Court in order to rectify the present insanity.

The only recourse to an Orwellian rulling (ex: Supreme Court decides that the Second Amendment really says that the Federal Government can have an Army) would be an attempt at secession.

That, could get ugly.

 

[1wildbill]

Better think through the Back-Up Plan. Just in case.

I very much agree with this statement, except for the, "Just in case." I don't trust the Judicial Branch much. Then I don't trust any of the branches of government much. Best to have the back-up plan in place.

 

[atlctyslkr]

I've always wondered why the Goetz case wasn't the perfect fodder for a 2nd ammendment show down. He was aquitted on self defense but served time for gun posession. He might have not lived had he not had that gun. Since he ran from the scene that may have damaged his case.

Maybe a better case to appeal all the way up is the Archie Bunker type living in Queens who shoots an intruder with his "illegal" .45 brought back from war gets brought up on gun charges.

One of the reasons I have always felt that the Supreme Court has been reluctant to make a stand on the 2nd is that they would be forced to rule in the strictest terms of the text. This would mean that if they ruled in favor of 2nd ammendment protection it would be absolute. They could not say New York hangun laws are unconstitutional but the crazy stuff the ATF does is okay. They would have to throw it all out, they'll never do it.

 

[spartacus2002]

I too, am worried about our Supreme Court as they seem to either be in conspiracy to undermine the sovereignty of the United States, or simply out of their minds. Several recent cases and public statements made by a few of the Justices are alarming. If they did decide against the 2nd Amendment, we would have little recourse. We need to place some sane and loyal Justices to the Court in order to rectify the present insanity.

No, I don't think it is a conspiracy. I think that if you walk the dog backwards from the Supreme Court Justice to the nominee to how they got on the radar screen to become a nominee, you find that they are people who have made their living in and around government, supporting what government does. They live and breath government, rules, and regulations -- like oxygen for us or water to fish, it permeates all they do for a living and it permeates their outlook on life. They are, after all, lawyers.

The Supremes may be another branch of government, but they still belong to the government. Face it -- Presidents don't nominate firebreathing anarchists or Thomas Jeffersons who believe a little revolution now and then is a good thing. Instead, they nominate folks to appease the political base who expects a certain type of governmental viewpoint from the President's nominees. That governmental viewpoint may be from the Left or from the Right, but it is still pro-governmental.

I personally believe the recent Hamdan decision was less about the "right thing to do" and more about SCOTUS smacking the Executive Branch back into co-equal status.