Scholars and Gentlemen: What's the most likely outcome of Heller?

[Dr. Tad Hussein Winslow]

What will the supreme court say? The standard chosen/applied is for all the marbles, so the poll presents the actual relevant question to our future rights. ONLY TWO of the above outcomes will actually help us much at all in the long run:

-Intermediate scrutiny expressly adopted
-Strict scrutiny expressly adopted

ANY OTHER outcome either hurts us more than it helps us, or helps us very, VERY little.

In reality, the first choice (No IR) should not even be in the poll, because it is NOT a realistic option - the SCOTUS will at least find an individual right, 99.999% chance. But that still leaves essentially 5 other outcomes, 3 of which are unfavorable, 1 moderately favorable (intermediate scrutiny), and 1 highly favorable (strict scrutiny).

The WORST possible outcome is the 3rd one in the poll: IR; rational basis; this law passes rational basis; law upheld. This is actually worse than a finding of no individual right - if you want to know why, ask and I'll explain.

 

[Car Knocker]

The answer hasn't changed in the 30 or 40 times anyone else has asked this same question.

 

[Dr. Tad Hussein Winslow]

But mine has a poll asked in a superior manner which you didn't see because you posted before I finished it.

 

[nicki]

Coments

Court ruling will probalby come down to following.

The RKBA has to be balanced with reasonable public safety concerns.

The SCOTUS also wants consisitent law in across the US, so there is hope that they will apply the 14th amendment and incorporate the ruling.

I think they will avoid the machinegun issue since it is not an issue in this case.

In fact, that would be "Judical activism" in that it would be bringing up issues not related to the original case at all.

This case was designed to answer only a few questions, not everything.

It is the anti gunners that brought in all the extraneous off point arguements, not the plantiffs.

Of course, if the 2nd amendment is read as an individual right, then the Miller decision would definitley have a different reading than is currently being applied by most of the Federal courts.

Nicki

 

[Kharn]

I voted for struck, no standard, but really it depends how CJ Roberts wants to do it. Does he want 9-0 or 8-1? Then he'd have it written as the law fails all standards and no standard is identified. If he will accept 5-4 (or can get 6-3), he'll probably go for law fails strict scrutiny, obviously in this case feeling the details are more important than the number of concurrences.

Kharn

 

[Kipling79]

I personally feel that the correct test to be applied should be the strict scrutiny test since it is arguable that the 2nd amendment grants a fundamental right BUT, I don't see it being AS fundamental as the right to marry and privacy. But, if used, I feel that the DC law would fail this test since it is not narrowly tailored and because there are less intrusive means to the state's ends.

I don't imagine that intermediate scrutiny will be applied... to do so would be something new on the part of the SC... since that test has been primarily used in questions of discrimination against suspect classes. But this would be a good choice if the court doesn't want to name the 2nd amendment a "fundamental right" but still wants to void the law.

If they use rational basis, which would be a poor choice of tests since the right actually appears in the Bill of rights, the state will almost always win.

Conclusion: I am guessing that the court will skirt the issue of determining a level of review, unless they expand the intermediate scrutiny to cover 2nd amendment questions. I don't think they will look at it as a fundamental right.

 

[Dr. Tad Hussein Winslow]

Say what?

I personally feel that the correct test to be applied should be the strict scrutiny test

Yup.

Since it is arguable that the 2nd amendment grants a fundamental right.

Arguable, yes - slam dunk argument in fact to anyone who is intellectually honest about the history and case law on the 2A.

BUT, I don't see it being AS fundamental as the right to marry and privacy.

You must be joking, right? The 2A is as fundamental as it gets. Notably, the right to marry is NOT mentioned in the Constitution. The right to privacy is NOT mentioned in the Constitution. The 2A right is expressly spelled out in the Constitution. How could unmentioned rights possibly be more fundamental or important then mentioned rights (#2 on the list in fact)?

 

[BullpupBen]

You must be joking, right? The 2A is as fundamental as it gets. Notably, the right to marry is NOT mentioned in the Constitution. The right to privacy is NOT mentioned in the Constitution. The 2A right is expressly spelled out in the Constitution. How could unmentioned rights possibly be more fundamental or important then mentioned rights (#2 on the list in fact)?

Actually privacy is the 4th amendment, namely the government can not spy on you without recieving a specific warrant from a judge, the reason that the patrior act causes such a stir.

Marriage is not in the constitution, and it clearly does not affect our lives and ability to maintain a democracy nearly as much as free speech or the RKBA.

 

[Kipling79]

I completely agree, in my opinion at least, that this is a fundamental right. But I came to my previous conclusion because there are several rights named explicitly in the bill of rights that are not tested under strict scrutiny (4th amendment- search and seizure for example)

Here, I imagine the court would refrain from applying strict scrutiny here as well, for fear of "opening the floodgates" and having every gun regulation attacked in court. This is all purely my opinion though. Let the dice fall as they may.

 

[xjchief]

IR; law void; Rational basis standard expressly applied

Why? Because it gives lip service to the deeply held belief of the people of this country that the second amendment says we can have guns AND leaves the power of the government intact.

I've always been a glass empty kind of guy.

 

[Dr. Tad Hussein Winslow]

Dangit - just realized a small mistake in my poll - choice #3 says "....rational basis standard strictly applied." after "IR; law UPHELD."

It should say "...rational basis standard expressly applied."

P.S. I'm a *slight* optimist, so I voted "intermediate scrutiny." (choice 5). If I were a *slight* pessimist, I'd have chosen "court punts; no need to decide which standard to apply; this law doesn't pass any test." (choice 2). If I was a severe pessimist, I'd have chosen what xjchief chose. (choice 3)

I completely agree, in my opinion at least, that this is a fundamental right. But I came to my previous conclusion because there are several rights named explicitly in the bill of rights that are not tested under strict scrutiny (4th amendment- search and seizure for example)

OK, I'll buy that; point well taken.

 

[El Tejon]

I attened the 11th Annual Firearms Law Seminar which was held concurrently with the NRA Member Convention in Louisville on May 16th. I believe that the DC law will be struck down with strict scrutiny applied. The future problem will be balancing this "reasonable regulation" nonsense that has sprung up with "shall not be infringed" (no balancing necessary in my book, but I do not sit on the Supreme Court).

The focus of the seminar was the issue of incorporation, applying the Second to the states and cities. As well, how to use §1983 and the FTCA to attack cities and states for infringing upon the right to arms. These will be the next steps after Heller. If Chicago is the next front, then things will not go well for the antis in the 7th Circuit (9th Circuit will be more receptive to them, so relief for California will not come immediately).

I, for one, was uneasy with all this "reasonable regulation" talk. However, the speakers seem to think that the Supreme Court will never completely enforce the Second Amendment as it would give up too much power from the government. Depends on how the Supreme Court draws the line.

Professor Glenn Reynolds (U of TN) believed that an anti-individual rights ruling would trigger a political earthquake and make be the only thing that allows a McCain victory in November. He analogized it to Bowers.

 

[ConstitutionCowboy]

Some Clarity:

The Second Amendment grants nothing. It is a limit upon government.

The Right to Keep and Bear Arms is inalienable. To call it "fundamental" is possibly correct but incomplete.

Marriage is not a right. You can not marry without the consent of the person you wish to marry, so, it can't remotely be compared to the Right to Keep and Bear Arms. This is just a guess, but if we had a right to marry, 90% of the men would be married to Hally Berry, and 90% of the women would be married to Harrison Ford.

Woody

 

[PTK]

What's the most likely outcome of Heller?

Ask me in a month or two.

 

[Mike OTDP]

My take on it is as follows:

Individual right: Yes.

DC law unconstutitional: Yes. Heller wins.

Standard of scrutiny: Not mentioned. Left to the future.

Incorporation: Not mentioned. Left for future cases. Levy & Co. need to pick their case VERY carefully to establish a favorable precedent - but they know that already.

Big surprise: The Miller decision gets thrown under the bus as deficient. Justice Kennedy was clearly leaning in that direction - and doing so is the cleanest way to reconcile the Second Amendment with a desire to put machine gun ownership under tighter scrutiny that most small arms.

 

[Guido2006]

Posted by: Mike OTDP

My take on it is as follows:

Individual right: Yes.

DC law unconstutitional: Yes. Heller wins.

Standard of scrutiny: Not mentioned. Left to the future.

Incorporation: Not mentioned. Left for future cases. Levy & Co. need to pick their case VERY carefully to establish a favorable precedent - but they know that already.

Big surprise: The Miller decision gets thrown under the bus as deficient. Justice Kennedy was clearly leaning in that direction - and doing so is the cleanest way to reconcile the Second Amendment with a desire to put machine gun ownership under tighter scrutiny that most small arms.

Agree with all of the above.

Tossing Miller is the easiest way to detach MGs (as a militarily suitable weapon) from an individual right ruling.

 

[ConstitutionCowboy]

The only thing in Miller that could possibly be thrown under the bus is - well - nothing! Miller includes nothing but obiter dictum and an excuse as to why the Court couldn't rule on the case.

"In the absence of any evidence ... we cannot say ..." ​

They didn't say the shotgun was or was not a viable military weapon - nor that any other weapon was a viable military weapon for that matter. They didn't say a weapon has to meet any such standard though they tried to imply it with the statement:

"And further, that ordinarily when called for service these men were expected to appear bearing arms supplied by themselves and of the kind in common use at the time. "​

No where in the Constitution is any such requirement that arms must be "of a kind in common use at the time", or at any time. Frankly, if it existed, it was in use. If there is only ten of a given design and a thousand of another, if both are used, both are in common use - "common use" meaning used in common, or for the same purpose regardless of how many of any kind are used.

What you read in any of these cases is as important as what isn't written. This Court doesn't appear to be as devious as the Court in Miller, however, so I don't expect to see anything as confounding. People are paying attention in a way that was absent in 1939. That said, it'll still depend upon how ill informed the Court perceives the majority of the people to be.

Woody

 

[azredhawk44]

People are paying attention in a way that was absent in 1939. That said, it'll still depend upon how ill informed the Court perceives the majority of the people to be.

A HUGE +1 to this statement. Literacy is infinitely higher today than in the 1930's... I don't have stats, but I'd bet that as much as 30% of the country was illiterate back then. And less than 5% actually paying attention to politics not directly related to depressions or wars.

Wait... what did I just say? I need to get on E-trade and sell my oil stocks before Ahkmedinejahd nukes my oil platforms!

In all seriousness though, we are a more literate society than we were before, with greater information access. Just like the Japanese knew in 1941, we are a sleeping dragon. The court knows enough to keep us asleep.

 

[TAB]

As the old judge says:

"I always know I got it right when both sides aren't happy"

 

[Shade00]

Honestly, there's no way to predict what this court is going to do. Their recent decisions have defied predictability.

 

[divemedic]

Actually, I think the rulings of this court have made quite a lot of sense. Even the Kelo decision was well in keeping with the CONUS.

 

[frankie_the_yankee]

My take on it is as follows:

Individual right: Yes.

DC law unconstutitional: Yes. Heller wins.

Standard of scrutiny: Not mentioned. Left to the future.

Incorporation: Not mentioned. Left for future cases. Levy & Co. need to pick their case VERY carefully to establish a favorable precedent - but they know that already.

Big surprise: The Miller decision gets thrown under the bus as deficient. Justice Kennedy was clearly leaning in that direction - and doing so is the cleanest way to reconcile the Second Amendment with a desire to put machine gun ownership under tighter scrutiny that most small arms.

I think you nailed it Mike.

I would love to see strict scrutiny and incorporation. But neither of these things is essential to deciding the case so I'm betting that The Court will not go there just yet. But perhaps in some future case, say against Chicago and/or NYC.

 

[ctdonath]

Mike nailed it.

Individual right: A given. Heck, the court-phrased question addressed by the case basically makes it clear that's a given; the question wouldn't have been asked that way if there was viable potential that the right is not individual.

DC law unconstutitional: Yes. You can't get a case better than this; heck, the guy carries one for his JOB.

Standard of scrutiny: Much as strict scrutiny applies, the standard is irrelevant because the prohibition indeed fails all standards - and the court is notorious for making rulings as minimally as possible.

Incorporation: Irrelevant. DC isn't a state; the buck stops with Congress on this one.

Consequences: Indications were that Miller will be "revisited". Will be interesting to see 70 years of influence evaporate overnight. Miller is improper for where Heller obviously must go. I don't see this as a Big Surprise, but it is a Big Deal. The court can't pass up an opportunity to make as big a ruling as Miller by replacing it.

Big surprise: The court's quandry is that a fair ruling, no matter how limited to the instant DC case, will all but instantly topple 922(o) - and a majority of the court can't stand to see new M16s & AK47s & Uzis be legal. It's a third-rail issue, and the court will tie themselves in knots trying to not allow that consequence ... consequently, something very strange will emerge from the ruling.

 

[Brett Bellmore]

That's my take on it: The legal reasoning is sure to be warped by the majority's gut level need to leave most federal gun laws intact, no matter what the legal logic might say. The result will be an example of constitutional gymnastics even a Romanian judge would give a 9.2.

But that's something we can work on repairing in years to come. At least a favorable ruling will give us SOME kind of constitutional backstop during the dark days of the Obama administration. I expect we'll need it.

 

[Henry Bowman]

The legal reasoning is sure to be warped by the majority's gut level need to leave most federal gun laws intact, no matter what the legal logic might say.

This has been exactly my fear for years.