Parker Supreme Court Pool

[Bartholomew Roberts]

Ok, if Parker goes to the Supreme Court, how will the justices fall out? Get your guesses in now and we'll see who comes closest to the bullseye. If you want to discuss some tangential issue (i.e. something other than how the Supremes will vote in Parker), then please start a new thread.

Here is my breakdown (subject to revision prior to the Parker decision and I investigate more )


Individual rights:

Justice Alito - His dissent in Rybar was a strong argument for Federalism. He was in a circuit where there was already a collective rights precedent that he wasn't free to overturn and he made no Second Amendment argument. However, as the sole judge to challenge 922(o) on commerce clause grounds, I feel good about Alito.

Justice Thomas - Easy pick. Thomas has already written several Supreme Court decisions that strongly suggest he regards the Second as an individual right. Thomas is also one of the few Justices who is OK with overturning a great deal of law if he feels it is unconstitutional. If there was one safe bet in the bunch, a pro-Second opinion from Thomas has to be it.

Justice Scalia - Likes to hunt. Hangs out with the NRA. However, my concern is that Scalia is a true conservative in the sense that he does not like radical change. I think he is a definite individual rights vote; but I think he will be more likely to support a narrow interpretation that is targeted only at the law in Parker.

Chief Justice Roberts - I have no idea what Roberts will do. I need to read more of his past cases and testimony before the Senate; but I am going to include him here as a proxy for Rehnquist

Just don't know:

Justice Kennedy - Kennedy is typically the swing vote and as a result, his opinion will be a critical one since even if he does support an individual right, he can limit it to almost nothing if he is the swing vote on it. I have no idea what Kennedy might do. If you look at Lopez (Commerce clause issue over gun-free school zones) and Printz (States right issue where sheriff's refused to do background checks required by Brady), Kennedy was on the right side; but even there you could tell he was at the limit of where he was comfortable and those cases aren't really about guns.

If we look at two cases that are more gun-related (Staples and Thompson Contender), we don't get much more info. In Staples, he signed on to the majority opinion saying that firearms are legal and common in the United States and you can't simply throw someone in jail for possessing a machinegun unless you can show they knew it was a machinegun. The majority opinion was fairly pro-gun (I think Thomas wrote it IIRC). So that is a plus. On the flip side, in Thompson Contender, he signed on to the dissent that supported the idea of constructive possession of a short barrelled rifle (if you have a Thompson Contender rifle and a Thompson Contender pistol, you automatically have an SBR even if you leave them in their legal configurations). That is a very harsh result and says to me that the dissent doesn't understand firearms well or care much about their legal use.

Justice Souter - Doesn't often side with his more conservative colleagues anymore; but he was on the right side of the decision in both Staples and Thompson Contender. If I had to pick someone from the "other" side that is most likely to vote for an individual rights interpretation of the Second, I'd probably choose Souter.

Added: On the other hand, Souter spoke highly of Breyer's dissent in Lopez which made a lot of commentary about how guns were clearly interfering with the legislative process. Souter may have just meant that that Breyer's research showed a rational basis sufficient to justify regulating under the commerce clause; but it doesn't make me feel real solid on Souter.

Collective Rights

Justice Ginsburg - Ginsburg was also on the right side of the Staples and Thompson Contender opinions; however her concurrence in Staples makes it pretty clear she does not like firearms and thinks they are underregulated:

"The Government, however, does not take adequate account of the "widespread lawful gun ownership" Congress and the States have allowed to persist in this country. See United States v. Harris, 959 F. 2d 246, 261 (CADC) (per curiam), cert. denied, 506 U. S. ___ (1992). Given the notable lack of comprehensive regulation, "mere unregistered possession of certain types of [regulated weapons]--often [difficult todistinguish] from other, [non regulated] types," has been held inadequate to establish the requisite knowledge. See 959 F. 2d, at 261."

Given the comments in blue, I find it hard to believe that she will support an individual rights argument that will allow attacks on much of the existing regulation. This also goes to show the danger in relying too much on past votes as an indicator of future performance.

Justice Breyer - OK, I've read Breyer's dissent in Lopez and his comments in a debate between him and Scalia at GOA. Breyer seems solidly anti to me. His comments in Lopez certainly don't give me much hope.

Justice Stevens - A consistent record of supporting all gun legislation no matter how harsh the result on the individual. On record in Lopez as saying that Congress can regulate firearms anywhere it likes, including regulating them out of existence. He is as sure a bet for a collective rights vote as Thomas is for an individual rights vote.

 

[LAR-15]

I would not be be suprised if the Supremes (other than Stevens ) would try to come up with some 'compromise' that espoused individual rights but gave Congress the power to regulate most every gun as if they might as well be banned (see NFA). Sorta like now.

Try to "please" both sides so they do not face any fallout.

 

[The Law]

Scalia is really strict on interpretation. However, the great history behind the 2nd Amendment as laid out in Parker will only benefit the cause. Justice Kennedy is probably, once again, the swing vote.



My law school dean (and my Constitutional Law professor) clerked for the supremes many moons ago and had some interesting stories to tell, especially regarding 'Nino Scalia. I'm still a fan regardless!

 

[Rev. DeadCorpse]

I think Roberts will side with Alito, Scalia and Thomas. His credentials as a "conservative Constitutionalist" were bandied about over on Free Republic a bit back during his confirmation hearings. He appears biased towards conservative ideology, but in this instance it works in Parkers favor.

Kennedy and Souter are the Iffy votes, as you noted. I think the arguments presented in Parker may appeal to them however. They may try and moderate the ruling, making its effect as narrow as possible, but I also think they'd vote to uphold the 2:1 decision.

The Ginsberg et al cabal no longer follow the Constitution and it's Art 6 Para 2 restraints on Justices. Their use of International Law and foreign legal precedent for deciding domestic cases is abhorrent. If any of the remaining 3 decide in favor of Parker I would be truly shocked. With them, ideology over justice appears to be de rigeur.

 

[Duncan223]

Nice layout.

The dissents by White, Blackmun, Stevens, and Kennedy in United States v. Thompson-Center Arms Company, 504 U.S. 505 (1992)[1] still bothers me. I believe these Justices fail to comprehend the illegalities of the NFA. Rather than believing the Second Amendment is an individual right and should not be infringed, these Justices appear to believe that a person with a rifle and pistol with similar and interchanging barrels/handles/grips would lead to a violation of the NFA. The fact that a person has, lets say, an AR rifle and an AR pistol DOES NOT mean the person will place the short barrel upper on the rifle lower just by simply having these items in possession. Nor does it mean that a person with a rifle and a saw capable of cutting metal will create a SBR simply because they have these two items in their possession.

Moreover, the whole arguement regarding the revenue (tax) application of the law versus the criminal penalty is also bothersome. While they recognized the BATFE is a revenue body, there are also criminal charges and penalties associated with said (NFA) violations.

Sorry... didn't mean to start a hijack.

Justice Kennedy - Thompson Contender he signed on to the dissent that supported the idea of constructive possession of a short barreled rifle (if you have a Thompson Contender rifle and a Thompson Contender pistol, you automatically have an SBR even if you leave them in their legal configurations). That is a very harsh result and says to me that the dissent doesn't understand firearms well or care much about their legal use.

 

[gopguy]

When I wrote this article for BFA about the Parker case, http://www.buckeyefirearms.org/modules.php?name=News&file=article&sid=3616

I also speculated on the way the Supremes would break down on their decision. In the end we edited out my analysis of the Court as we decided to not play soothsayer. The article was long enough as it was. However I found it very interesting to note that Bartholomew's break down is exactly as mine was with Souter and Kennedy as the wild cards. I think he has it right, I just hope the wild cards can be persuaded to right decision.

In digging I found we discussed this back on March 12th too.

http://www.thehighroad.org/showthread.php?t=261738&highlight=gopguy

jnojr wrote;
Quote:
If SCOTUS hears it, they'll hear it when they hear it. SCOTUS is supposedly "impartial", so it doesn't matter when they hear it, or who's sitting when they hear it.



It would be nice it that was the truth but it is not. The make up of the court and their willingness to adhere to the constitution rather than being activists makes a big difference. Some of our liberal justices have shown a penchant for using ideology rather than the law in some of the rulings. As my friend Rachel Winkler would say how else does one get "eminations from a penumbra"? That was in 1973 but things have not been much better in recent years. So Alito and Roberts will indeed make a difference. The other issue of concern is the liberal members of the court liking to look at foreign cases to see how the rest of the world handles things. Looking at how the rest of the world treats its gun owners should have nothing to do with this....but I strongly suspect Ginsburg and Breyer will try to go this route based on other issues.

Davec is worried about Scalia. No need to. His pro gun views are well known. You need to worry about Ginsburg, Breyer,Stephens. The question is what Souter and Kennedy will do. I think they are the only wild cards.

Tim

 

[ConstitutionCowboy]

It'll Be Somewhere In The Middle, I Do Believe

What ever comes down from the Supreme Court will most likely favor the individual rights view - the correct view - but may include something to the effect that Congress might have some say in what might be considered "reasonable limitations". If the Court leans on the dicta in US v. Miller(1939), this ruling would have to assure any limits placed upon our RKBA will have to exclude limitations on automatic weapons since such weapons undeniably have a "...reasonable relationship to the preservation or efficiency of a well regulated militia,..." I'm sure RPGs would fall under such protection as well.

What ever does come down from the Court has to be something that at least five of them can agree on. They'd ALL better think long and hard about this and the potential consequences. Full protection of the right is the only guarantee they can secure for themselves that they will not be the cause of revolution.

Woody

"Impeachment is the Right of the People, vested in the powers granted to Congress, to preserve or restore Justice and preserve the Constitution of the United States. Those vested with power shall neither deprive the People the means, nor compel such recourse." B.E.Wood