SCOTUS - 2 incorporation cases on the docket!

[LickitySplit]

The stage is set... will they, or won't they?

Second Amendment cases up early
Friday, August 21st, 2009 3:04 pm |

The Supreme Court will consider two new cases on the scope of individuals’ Second Amendment right to have guns at its first Conference for the new Term, on Sept. 29, according to the Court’s electronic docket. Both petitions challenge a Seventh Circuit Court ruling that the Amendment does not restrict gun control laws adopted by state, county or city government, but applies only to federal laws. The cases are National Rifle Association v. Chicago (08-1497) and McDonald v. Chicago (08-1521).

The so-called “incorporation” issue is the most significant sequel issue raised in the wake of the Court’s 2008 decision in District of Columbia v. Heller, recognizing for the first time a personal right to have a gun for self-defense, at least in one’s home.

If the Court agrees to hear the new cases after its first look, that could be announced as early as the day after the Conference — that is, on Wed., Sept. 30. The first Conference of a new Term customarily is held in advance of the Term’s formal opening; this year, the Term starts Oct. 5.

The Court has not yet scheduled a time to consider another pending case on the Second Amendment issue — Maloney v. Rice (08-1592). The response in that case is now due on Aug. 28. The new Justice, Sonia Sotomayor, took part in the Maloney case when she was on the Second Circuit Court. Like the Seventh Circuit, the Second found that the Second Amendment only applies to federal laws. When the Justices consider the Maloney case, Sotomayor is not expected to take part. The fact that she had taken part in a ruling on the issue in one case, however, would not require her to withdraw from considering cases from other Circuits, like the Chicago cases.

http://www.scotusblog.com/wp/second-amendment-cases-up-early/

 

[Rmeju]

Looking forward to this one!

 

[AirForceShooter]

Fasten your seatbelts.
This will be a rocky ride.

AFS

 

[RDak]

The scotus blog states Sotomayor will not be able to participate in the Maloney case because she was involved in that case at the Appellate Court level. But she can participate in the other two cases.

Sotomayor has stated she accepts Heller as the "law of the land".

So, if she votes no on incorporation, I wonder what "can of worms" she'll open up to justify that "no" decision?

Oh, I'm sure she might rely on "States Rights" arguments but that could backfire on her on other cases in the future.

But if she really believes Heller, supra, is the "law of the land", how can she honestly not rule for incorporation?

Any thoughts?

 

[TimRB]

"Any thoughts?"

I think that Sotomayer's presence on the Court will be a net zero as regards gun rights. She replaced Souter, who was strongly anti-gun, dissenting in Heller.

Tim

 

[RoostRider]

Sure would be nice to have it set straight though wouldn't it?

I don't see how they can logically deny incorporation of rights the federal government deems to be individual.

That doesn't mean they won't...... *sigh*

 

[Kingcreek]

Sotomayor has stated she accepts Heller as the "law of the land".

She said that during confirmation hearings- it means nothing now. We may yet find out if she really believes that or was just trying to win her senate confirmation.

 

[Megistopoda]

Considering jurisprudence and stare decisis ...

Incorporation is a much more "settled" concept than was the individual right to arms. Simply put ... as long as the court decides for or against 2A incorporation, I think that there will be a strong majority in favor. That majority would dwindle if they decided to more expansively rule on what is permissible, and what is not, in the way of gun regs.

 

[ManBearPig]

Don't fool yourself into having hope that Sotomayor will make it 6-3 because she says she accepts Heller. She's extremely anti-gun. She knows it and we know it, but she had to pretend she is pro-2nd Amendment for the circus that was her confirmation. She knows damn well she is going to vote against the 2nd Amendment on any case that comes before her; doesn't matter if the case is now or in 10 years, she already knows she'll vote to crap on the 2nd. I imagine she's already working out how she'll word her dissent with the other 3; which is fine because we have the Heller 5 on our side. It will be a 5-4 victory for incorporation. Game over; we win, the Brady's lose.

 

[jakemccoy]

Was incorporation addressed directly in Heller? Or was it more like dicta? I don't feel like reading Heller right now. I was wondering if someone knew off the top of their head. As you all know, dicta is regarded as of little authority.

 

[damien]

If Sotomayor votes against Heller it might be fun to impeach her with lying to Congress as the reason.

 

[jakemccoy]

If Sotomayor votes against Heller it might be fun to impeach her with lying to Congress as the reason.

Don't hold your breath. That would never happen in the specific way you describe.

 

[mp510]

Was incorporation addressed directly in Heller? Or was it more like dicta?

It was not addressed, though there was some suggestive language.

 

[usmarine0352_2005]

If Sotomayor votes against Heller it might be fun to impeach her with lying to Congress as the reason.

Why don't I see this happening?

 

[Zoogster]

Sotomayor has stated she accepts Heller as the "law of the land".

Which means nothing unless you live in D.C. or another federally governed district.

Heller sets a principle, but a principle that is not currently applied to the states because it is not considered "incorporated".

So it could be "the law of the land", and still be held to only apply to exactly what it applied to by someone so inclined.

Lip service, that appears to mean to the listener what the listener wants it to mean, but really means only what it says. That the Heller decision for the District of Columbia is the "law of the land" for the District of Columbia.

She could still decide it is not incorporated against the states without altering the "law of the land" for the District of Columbia. Therefor never lying.

She said that during confirmation hearings- it means nothing now. We may yet find out if she really believes that or was just trying to win her senate confirmation.

Of course, even outright lying to be sworn in or elected, and then doing something different is done by politicians all the time.
She replaced another anti, so whether she voted for or against would not change the immediate makeup of the court.

The primary deciding factor is if one of those that barely voted for Heller decided to vote differently (Kennedy could easily go either way based on the politics of the moment), or any of them decide to add in extra "reasonable restriction" type wording. "Reasonable restriction" type wording would result in most states arguing any restrictions they currently have or propose in the future are "reasonable". Resulting in very little immediate change or future protections for the 2nd Amendment, and every state and locality arguing any anti-gun laws they have are "reasonable".
So even a "win" with "reasonable restrictions" like in Heller just means many localities will start new lawsuits with various outcomes, some upholding anti laws and some not.
It would then only be when some of those specific laws once again reached the SCOTUS in new cases that they could declare whether that particular law was "reasonable" or not, which may not happen for many years.
Years in which the makeup of the court can change (and Obama or someone else appoints some new ones.)

 

[usmarine0352_2005]

.

So when could we see a decision if they choose to hear the case(s)?


.

 

[rl2669]

All but a few states have RTKBA in their state level constitutions. This makes winning incorporation of the second a lower priority than poking the reasonableness boundaries of Heller itself.

 

[Yellowfin]

Can a sitting judge such as the most recent appointed lady be disbarred and thus kicked off the bench? A lawyer or judge who practices or rules against the 2nd Amendment is guilty of malpractice--they are no different from a doctor who poisons patients.

 

[TexasRifleman]

Can a sitting judge such as the most recent appointed lady be disbarred and thus kicked off the bench?

To remove a Supreme Court Justice they must be impeached by a majority in the House and then convicted by 2/3 of the Senate.

No Justice has ever been removed.

As for being disbarred, you don't have to be a lawyer to be on the Supreme Court. I'm still awaiting my appointment

 

[jakemccoy]

Can a sitting judge such as the most recent appointed lady be disbarred and thus kicked off the bench? A lawyer or judge who practices or rules against the 2nd Amendment is guilty of malpractice--they are no different from a doctor who poisons patients.

Don't confuse media hype with an honest reading of a legal opinion.

In this case, what you have described is not going to happen by any stretch of the most creative imagination.

 

[Al Norris]

Depending upon the question the Court will answer (assuming arguendo that cert is granted), once incorporated, the bare minimum that the court will do is to decide if the regulations are constitutional or not. The precedent being, what they ruled in D.C.

This means that if the Court decides that the 2A is incorporated against the States and local governments, the Chicago codes will fall.

I don't expect any more expansion than that.

 

[Eightball]

Which one would be "better" for them to take, as far as our rights go?

 

[usmarine0352_2005]

.
And any response to when this case would be decided if it was heard?




And will they merge the two cases?

.

 

[TexasRifleman]

This means that if the Court decides that the 2A is incorporated against the States and local governments, the Chicago codes will fall.

I don't expect any more expansion than tha

At first that's likely true.

The line of lawsuits that would come behind it, however, is mind boggling.

 

[Phatty]

once incorporated, the bare minimum that the court will do is to decide if the regulations are constitutional or not.

The bare minimum would be the court remanding the cases for the lower judges to determine whether the regulations at issue violate the 2A. That scenario is actually quite likely to happen.

So when could we see a decision if they choose to hear the case(s)?

And any response to when this case would be decided if it was heard?

The earliest the court would hear oral arguments in the case would be early 2010, however, it's more likely that oral argument would occur early spring of 2010. Very high profile cases such as this one are generally not published until the last week of the term, which is usually the last week of June. So don't expect a decision on these incorporation cases until late June 2010.

And will they merge the two cases?

It is extremely likely that the three incorporation cases will be consolidated and heard together by the court.