Second Guess The Supreme Court

[ConstitutionCowboy]

Many here fear what the Supreme Court might do in the Parker case. Few of us think it'll be positive for our Right to Keep and Bear Arms.

The Court will have a tough time trying to avoid hearing this case. Too many eyes are on this. Many of those eyes(if not most) also peer through sights with an eye on protecting our Right to Keep and Bear Arms and to unfettering that same right. Some with eyes on this case have an interest in disarming the people believing it'll curb crime(or so they say...).

Looking at the word smithing in US v. Miller (1939)(a mouthful of non-binding excuses for not ruling and an extra constitutional inference that arms must be militia related), I believe the Court will try about the same thing here. I believe the Court will try to parry and lunge, pirouette and evade, dissemble and pontificate their way out by making a "judgment" in a fashion that will appear to favor everyone's opinion, and nothing of what the Constitution actually dictates. They'll try it, but...

On one side of the issue, the Court will face a flurry of legislation bent on Congress(and state governments) trying to redo what the Court might undo. On the other side, the Court will face an angry and still armed, informed, and determined significant portion of the populace.

I don't have enough insight into the Court to call it for sure, but my gut tells me the Court will fear the people more than the legislative bodies in this land and will actually abide the Constitution. I believe the Court knows where the real power in this land resides. It resides with the armed populace who wrote the Constitution in the first place.

What do you all think?

Woody

 

[Henry Bowman]

I believe the Court knows where the real power in this land resides. It resides with the armed populace who wrote the Constitution in the first place.

To the extent members of the SCOTUS are aware of this power you speak of, they are distrustful of it. They receive many threats and, though most are not genuine, there are John Hinkleys out there -- and that scares them more than loss of our liberties.

If the SCOTUS takes up the case, before it can issue an opinion, Congress will amend the DC in a small but legally significant way to render the case moot. For example: They will make it possible (discretionary) for a DC resident to get a permit to purchase a handgun. They will make it legal to carry a legally-owned handgun between rooms in your house (a much-discussed example in the court's decision). They will amend the law to, as narrowly as possible, provide some relief to and address the basis for the one plaintiff found to have standing in the Parker case.

 

[Smurfslayer]

Is the writing already on the wall?

So many things can happen now that it's tough to call ...

First, aren't the plaintiffs entitled to an en banc appeal? I don't know the court composition but I'd be surprised if the decision stood without some modification... The panel reasoning of the majority was sound, but the en banc appeal risk is pretty high. If we get whacked at this stage to a compromise - Individual rights, but current law is fine for example, Cert to SC denied.

But let's dream that we do survive en banc unscathed and plaintiff appeals for cert. No doubt congress will intervene, but what about Brady and VPC? Won't it be odd for them to be supporting a law in congress to loosen DC's gun ban, which would have to be opposed by pro rights groups?

My bet is that if congress does nothing as I suspect I give cert being granted to the plaintiff 1 chance in 4.

Not having researched this fully, I count Alito, Rogers, Thomas & Scalia for "People" meaning what it says in the BoR, consistent with precedent.

Kennedy, Stevens, souter, breyer & Ginsburg will tepidly agree, but since there is a compelling state interest, the right is secured collectively just as you have no individual right to police protection.
(who knows how the justices voted United States v. Verdugo-
Urquidez, 494 U.S. 259 (1990))

<edit>

Kennedy concurred and wrote a separate concurring opinion:
...
In cases involving the extraterritorial application of the Constitution, we have taken care to state whether the person claiming its protection is a citizen, see, e.g., Reid v. Covert, 354 U.S. 1 (1957), or an alien, see, e.g., Johnson v. Eisentrager, 339 U.S. 763 (1950). The distinction between citizens and aliens follows from the undoubted proposition that the Constitution does not create, nor do general principles of law create, any juridical relation between our country and some undefined, limitless class of noncitizens who are beyond our territory. We should note, however, that the absence of (p.276)this relation does not depend on the idea that only a limited class of persons ratified the instrument that formed our Government. Though it must be beyond dispute that persons outside the United States did not and could not assent to the Constitution, that is quite irrelevant to any construction of the powers conferred or the limitations imposed by it. As Justice Story explained in his Commentaries:

"A government may originate in the voluntary compact or assent of the people of several states, or of a people never before united, and yet when adopted and ratified by them, be no longer a matter resting in compact; but become an executed government or constitution, a fundamental law, and not a mere league. But the difficulty in asserting it to be a compact between the people of each state, and all the people of the other states is, that the constitution itself contains no such expression, and no such designation of parties." 1 Commentaries on the Constitution § 365, p. 335 (1833) (footnote omitted).

The force of the Constitution is not confined because it was brought into being by certain persons who gave their immediate assent to its terms.

Stevens is a tougher to read commentary:

Justice Stevens, concurring in the judgment.

In my opinion aliens who are lawfully present in the United States are among those "people" who are entitled to the protection of the Bill of Rights, including the Fourth Amendment. Respondent is surely such a person even though he was brought and held here against his will. I therefore cannot join the Court's sweeping opinion.[279.*] I do agree, however, with the Government's submission that the search conducted by the United States agents with the approval and cooperation of the Mexican authorities was not "unreasonable" as that term is used in the first Clause of the Amendment. I do not believe the Warrant Clause has any application to searches of noncitizens' homes in foreign jurisdictions because American magistrates have no power to authorize such searches. I therefore concur in the Court's judgment.



On the issue of whether the district ban violates 2A, I think they will have a very, very hard time applying anything other than that since the 2A is secured to the people, who are American citizens or aliens legally in this country, the district's all out ban is a violation. However, they will of course add in that thre are things that the district prevents which aren't violations, or they will vaguely point the way for the district to amend it's laws.


It will probably be a ruling that only narrowly addresses a couple specific questions. Still, I can't help having this ominous feeling the justices are cognizant that if they rule as they should, Pandora's box will have been flung open to legal challenges across the nation. In this respect, I would not be surprised for them to green light registration - like NFA and similar schemes, the general outlawing of concealed carry with permitted exceptions. The latter could broach the pesky "open carry" issue to them. The accepted legal doctrine is that all rights can be restrained by regulation, but not eliminated by it... There's loads of precedent on this so this will put gun hating justices in a bind as well as the police statists...

 

[heypete]

It is not the purpose of the court to fear the people or the legislative bodies.

They are supposed to be a neutral, unbiased interpreter of if laws are constitutional or not. So far, I'd say they've been doing a pretty good job; nobody's perfect, but I'd say the impartial rule of law is still quite strong in this country.

This is also not the same court that ruled on US vs. Miller (meaning that the justices are not the same -- obviously, this is the Supreme Court and that hasn't changed), nor is this about the same issues brought up in the Miller case.

I don't really think of the Parker case as being a terribly big, controversial issue that the court would need to hem and haw over -- every other state in the country allows people to own firearms [to a greater or lesser degree of regulation], and no state bans handguns like DC does, nor prohibits firearms from being possessed in one's home in a state of readiness.

Parker isn't asking for anything that nobody else has -- they're asking for the same rights to purchase and own firearms as everyone else does.

I consider the majority opinion in the Parker case to be very well-reasoned, logical, and proper. I've read the various briefs that third parties have submitted, and the logic presented by the anti-gun side (VPC, Brady, etc.) is weak at best. The Second Amendment defense, which the court agreed with, seems to be based quite solidly in fact and history.

I might be optimistic in saying that if Parker goes to the Supreme Court, it'll be a "slam-dunk" case for the good guys, but I don't think it'll be that hard. Remember that the DOJ issued a lengthy, well-reasoned publication that states that the Second Amendment protects an individual right to keep and bear arms, and have cited their reasons for reaching that conclusion. That has some weight on the issue, I think.

 

[heypete]

I would not be surprised for them to green light registration - like NFA and similar schemes, the general outlawing of concealed carry with permitted exceptions. The latter could broach the pesky "open carry" issue to them.

I respectfully disagree. Registration is not prohibited by the Constitution or the Second Amendment, and that isn't the issue at hand here. Personally, I find registration repugnant, and an affront to liberty, but it's not a federal matter at all. The 1986 Firearm Owners Protection Act prohibits the feds from maintaining any sort of gun registry for non-NFA firearms. Since the NFA has existed almost (completely?) unchanged since 1934, even under various gun-unfriendly administrations, I don't foresee it changing anytime soon.

The NFA could conceivably be justified under the interstate commerce clause, as such items are almost always transported interstate, or imported. Montana had an interesting state bill that would permit the ownership of machineguns made in Montana by Montana residents, so long as the machinegun did not cross state lines. I believe it failed, but it was still interesting. It would certainly make for an interesting legal challenge.

The feds don't really have any authority over state-level registration or licensing (such as for concealed carry), just like they don't have any authority over private-party transfers.

 

[MudCamper]

Registration is not prohibited by the Constitution or the Second Amendment

Not so sure about that.

"shall not be infringed"

http://www.m-w.com/dictionary/infringe

Basically infringe means encroach.

http://www.m-w.com/dictionary/encroach

I suppose if you use the second definition of encroach there, you could argue that registration is "usual and proper limits". Of course, none of this is legal language... It's just Merriam-Webster's consensus.

 

[heypete]

Hey, I'm with you here...I believe that the spirit of the law says that registration should be not be done, but it's difficult to argue that the letter of the law says that.

Keeping a list of guns and gun owners does not infringe upon their right to keep and bear arms. Yes, it makes it easier to infringe using other methods, but the list itself does not infringe upon one's rights.

I strongly and wholehearted oppose registration, but from a debate standpoint using the Second Amendment to oppose registration is less likely to succeed in comparison to other arguments (it's ineffective, could lead to infringements in the future, violates privacy rights, etc.).

 

[hugh damright]

I was listening to Larry Pratt's (GOA) latest weekly radio show (on demand at soundwaves2000.com/livefire), and they were talking about how our history includes instances where guns had to be registered, and people were subject to spot inspections to check their weapon, because the militia concept was taken seriously ... I think it might be easier to argue that the Second Amendment requires registration than to argue that it prohibits registration.

 

[Brett Bellmore]

If the 2nd amendment were being interpreted similarly to other rights, the track record of use of registration to facilitate violations of the 2nd amendment, and absence of any evidence that it actually has any positive utility, would be enough to damn it constitutionally.

But it won't be.

If it goes to en banc, and goes against us, the Supreme court will, as usual, refuse cert. without comment. They simply do not take such cases. Note that the Supreme court has rejected cert. on these cases, without comment, and that getting certiori only requires four votes. That means, I take it, that there are only three or less Justices who really want to tackle this issue.

If it doesn't go to en banc, or we win at that level, we've got a chance at Supreme court cert. The Justices who actually want a chance to uphold the 2nd amendment will vote for cert., and at least one or two of the Justices who want to strike it down will do so, too, to avoid having the 2nd amendment enforced right in their backyards.

At that point we have three or fewer Justices who really want to uphold the 2nd, and have to make up the other two or three with Justices who didn't want to touch the issue, but who are too honest to rule wrongly if they can't avoid ruling at all.

I'm not sure I'd count Scalia in that group, after the Raich decision. So I don't think there are enough in that column.

My prediction is that we win at the en banc level, get cert., and lose 5-4 or 6-3, with Scalia voting with the majority, along with one of the other 'conservatives'. Unless we do something to change the dynamic on the court.

We need to convince the 'conservatives' that this issue is too important to too many people for them to take a dive. And we need to take the Justices who are already scared of us, and make them so stark raving terrified of how many people they'd piss off by ruling wrong, that they rule correctly out of sheer terror.

I think we need a march on Washington, after cert. is granted, and before the case is heard. And forget a million man march, we should go for five or ten.

 

[ConstitutionCowboy]

To the extent members of the SCOTUS are aware of this power you speak of, they are distrustful of it. They receive many threats and, though most are not genuine, there are John Hinkleys out there -- and that scares them more than loss of our liberties.

I would think the members of the Court would only be wary of our power if they were to do something to cause that power to be turned in their direction. No one here that I'm aware of is here to overthrow them or any other part of the government. We are armed in protection of ourselves, to protect our land, and to protect THOSE WE HAVE PLACED IN POWER to administer that government. When they strip us of the power, they place themselves in double jeopardy - jeopardy from without the country, and jeopardy from us within the country.

It doesn't make sense that those in our government would fear us more than the Hinkley types.The Hinkley types will get their arms regardless of the law, and do not need to be threatened with a loss of liberty to strike.

Registration is not prohibited by the Constitution or the Second Amendment,...

While it is true that registration is not prohibited in the original text of the Constitution, it is not necessary to prohibit registration. The power to register gun ownership would have to be granted to Congress first. It is not. But then, registration would be an infringement and is prohibited by the Second Amendment. For the rest of what you wrote, the Commerce Clause does not constitutionally override the Second Amendment's prohibition on infringing the RKBA. All the law written to limit or govern our keeping and bearing of arms under the guise of the Commerce Clause is unconstitutional.

State level registration or licensing is just as much unconstitutional as federal would be. ANYTHING that touches in any fashion, no matter in how big and obtrusive a fashion, nor how small and seemingly negligible, is an infringement. One could consider a sales tax collected on the sale of a gun to be an infringement, and it is. It is an obstacle(government intrusion) that must be overcome(paid) for you to buy that beautiful gun, where the sale price of it to you from the owner of the gun is not a government intrusion.

We need to convince the 'conservatives' that this issue is too important to too many people for them to take a dive. And we need to take the Justices who are already scared of us, and make them so stark raving terrified of how many people they'd piss off by ruling wrong, that they rule correctly out of sheer terror.

Absolutely. Those without the honor to rule according to the Constitution need to fear not ruling according to the Constitution. Some of those justices on the Court were put there to carry out certain agendas. Their thwarting of the Constitution, ignorance of the Constitution, and for some to reference foreign law proves this assertion. If they are willing to be guided by foreign law, willing to ignore the Constitution, and willing to rule in spite of it's dictates, they should be capable of ruling according to it out of fear of retribution - or get the Hell out of the way and make room for people who WILL abide the Constitution. I'll accept either from them as long as what they do is constitutional, unspun, and unfetters the RKBA.

Woody

It is way past time we in this country got back to arming ourselves the way our Founding Fathers so wisely saw fit to insure us the impunity to do so in the Constitution. B.E.Wood

 

[Waitone]

I might be optimistic in saying that if Parker goes to the Supreme Court, it'll be a "slam-dunk" case for the good guys, but I don't think it'll be that hard. Remember that the DOJ issued a lengthy, well-reasoned publication that states that the Second Amendment protects an individual right to keep and bear arms, and have cited their reasons for reaching that conclusion. That has some weight on the issue, I think.

Kelo forever did away with the notion of a reasoning supreme court. With one decision the foundation, property rights, of our constitutional republic was undermined. With the decision in Campaign Finance Control political speech was limited. As I type congress just tried to pass legislation which would limit if not eliminate the right to redress of grievances. Does anyone doubt the court's ability screw up that particular right in view of its past performance.

It is foolishness to count on SCOTUS to issue a constitutional decision on basic rights. The same cast of characters struck down property rights and freedom of political speech. Why does anyone think the second amendment will be treated any differently?

 

[Baba Louie]

From my POV as a simpleton, pick the worst possible solution, clarify it using convoluted legalese that no one can understand simply and can only be interpretted 14 ways, factor in Uncle Sam's 1st Cousin Murphy (who is an optimist BTW) urging the majority to Redefine the words "...being necessary for a free state...", toss in a well documented, clearly thought out dissent by Thomas and claimed VICTORY by Brady/VPC... well, you know the drill.

My cynicism knows no bounds.

Other interesting readings... re: 2nd Amendment SCOTUS cases
http://www.cs.cmu.edu/afs/cs/usr/wbardwel/public/nfalist/supreme_cases.html

 

[ConstitutionCowboy]

My cynicism knows no bounds.

And well founded, my friend.

Woody

"It is up to We the People to decide if and when we shall revolt. It is not up to those in government to prevent it. It is up to those in government to see that revolution never becomes necessary." B.E.Wood

 

[Aguila Blanca]

Registration is not prohibited by the Constitution or the Second Amendment

Not so sure about that.

"shall not be infringed"

http://www.m-w.com/dictionary/infringe

Basically infringe means encroach.

http://www.m-w.com/dictionary/encroach

I suppose if you use the second definition of encroach there, you could argue that registration is "usual and proper limits". Of course, none of this is legal language... It's just Merriam-Webster's consensus.

MudCamper, I happen to agree with you 100% regarding the meaning of "infringe." But, if I step back for a moment and look at registration in a totally objective way, I am reluctantly forced to conclude that registration does not equate to infringement..

"Back in the day," the Colonial militias kept a gun registry. They wanted (and needed) to know exactly who owned firearms, and what type, so they could plan for what resources they would have available if they had a turnout. But that was the positive aspect of firearms registration.

Today we fear registration, not because it matters today whether or not there's a list in some agency's computer of what guns I own, but because tomorrow that list could be used as the basis for finding and confiscating personally-owned small arms. The registration, in and of itself, is not an infringement. The problem arises if/when that registration becomes a tool for some other action of government that does represent an infringement.

Disclaimer: Today, because I think it considerably more likely that the government will seek to confiscate my small arms than that they will ask me to turn out with them on the village green to defend against an invasion of the State, I oppose registrations. But I oppose them because of how they might be used, not because of what they are.

 

[LawBot5000]

I oppose registration because we already HAVE registration necessary to regulate the militia. We have the the selective service system. All that is necessary to ensure that the militia is adequately armed is for congress to pass another militia act requiring us to be armed and then sanction anyone that shows up to muster without a firearm.

Registration doesnt work because:
-militia members need only 1-2 firearms per person for militia duty. Knowing about the other 10 doenst help with militia readyness.
-people who arent militia members can own firearms and these dont contribute towards readyness
-registering the firearms doesnt tell us if they have been properly maintained and whether they are of an appropriate nature for military use
-registering firearms mostly helps the government find non-militia firearms because most people who own firearms own at least one non-military firearm. There is no legitimate reason the government could need such information.

 

[Brett Bellmore]

If, I repeat, IF, the Supreme court wanted to address the issue of registration and the 2nd amendment honestly, they'd observe that 'registration' contemporary with the 2nd amendment's ratification always required you to prove you had at least one of the relevant firearm, whereas modern registration requires you to report any relevant firearms you might own.

And rule that gun registration was constitutional only for the first firearm you registered, and after that you couldn't be constitutionally required to register any more.

 

[antsi]

Guessing what SCOTUS will or won't do:

I think the best kind of decision we can realistically hope for would be something like:
1) the 2nd ammendment does refer to an individual right
2) like other rights, the 2nd can be "reasonably" restricted or limited, but the .gov must demonstrate a strong need for such restriction
Implications:
1) could make it somewhat more difficult for cities to outright ban guns (ie; Chicago, DC, SanFran)
2) might possibly make it easier to challenge gun control laws in court, but would not guarantee legal victory in such cases

I would of course like to see a stronger pro-RKBA decision than this, but I don't think it's going to happen.

One thing I'm totally sure isn't going to happen is a sweeping victory for RKBA that invalidates all gun control laws in one fell swoop. Those folks who are holding their breath for a SCOTUS decision where we win in court on Monday and we're all out buying machine guns on Tuesday are living in a fantasy land. I'd like to see it happen, but the Court is too conscious of public opinion and political trends and not at all likely to make a purist or idealist principled stand that would generate as much heat and backlash as this one would.

Worst case scenario could be very bad:
We could get a decision that essentially says the 2nd refers to a collective right of states, has nothing to do with individual people, and any and all gun control laws anyone might want to pass are all perfectly okay. This is less likely than my "best case," but I do think there is a realistic chance of this happening. And whatever the fantasiasts may say, such a decision would not create such a huge public uproar as to incite a popular widely supported uprising. Any such uprising would be limited to a handful of Timothy McVeigh types and would do still more to set back our cause than help it. Worse yet, such a decision that essentially guts a constitutional right in the name of public expediency could fatally undermine the entire bill of rights in future cases.

That's why I am not as excited about this case as many who post here apparently are.

The decision everyone fantasizes about is not going to happen.
Best case scenario, we get a decision that is mildly helpful to our cause.
Worst case scenario, we get a decision that is fatal to our cause.

Worst case is more likely than best case; most likely is some kind of wishy-washy "compromise" decision that doesn't really change anything.

 

[RocketMan]

Waitone hit it right on the head. The McCain/Feingold and Kelo decisions have proven this court is not making their decisions based on the Constitution.

 

[publius]

The NFA could conceivably be justified under the interstate commerce clause, as such items are almost always transported interstate, or imported. Montana had an interesting state bill that would permit the ownership of machineguns made in Montana by Montana residents, so long as the machinegun did not cross state lines. I believe it failed, but it was still interesting. It would certainly make for an interesting legal challenge.

The NFA is a tax, and we actually have a long history of the feds using the power to tax to get the power to regulate evil activities like drinking, gambling, and having guns.

It was anticipated by Hamilton in Federalist 12:

The single article of ardent spirits, under federal regulation, might be made to furnish a considerable revenue. Upon a ratio to the importation into this State, the whole quantity imported into the United States may be estimated at four millions of gallons; which, at a shilling per gallon, would produce two hundred thousand pounds. That article would well bear this rate of duty; and if it should tend to diminish the consumption of it, such an effect would be equally favorable to the agriculture, to the economy, to the morals, and to the health of the society. There is, perhaps, nothing so much a subject of national extravagance as these spirits.

The NFA is a "sin tax" just like the tax which led to the Whiskey rebellion and the Marihuana Tax Act of 1937. It's a pretty well-established power of our government. But it doesn't really matter any more. The Montana issue you are talking about is dead. Homegrown machine guns are interstate commerce. See Stewart, see Raich.

Maybe we'll have better luck with the Supreme Court on the 2nd amendment, but I'll be kind of surprised if they take the case.

 

[stevelyn]

The Supremes aren't going to allow the rebellious DC COA get away with deviating from the script.

 

[Al Norris]

I believe that many commenting here, do not fully appreciate the nature of this case.

It was decided upon very narrow grounds. [As an aside, such narrowness is exactly why I believe the SCOTUS will take the case and rule favorably.]

First, that the right is an individual right.

That it is within the meaning of the text of the right that to "keep" means to own or possess.

That such possession includes the ordinary guns of the day used for self protection within the home.

That's it. That's the entire ruling.

The ruling says nothing about partial bans of certain types of guns - that's for another day, another court case. The ruling does not touch the actual scope of what arms may or may not be possessed.

In dicta, the ruling says that registration can be constitutional. It doesn't say it is or isn't, merely provides an opinion outside of the actual decision that may or may not help another case on another day.

The ruling does not even approach the meaning of "bear." Again, another case on another day will decide that issue.

The ruling also does not approach "may not be infringed." Once again, another case on another day.

As I said, this is an extremely narrow ruling.

 

[ConstitutionCowboy]

It's Narrow To A Degree, But...

I don't think you can separate "Bear" and "Keep". The right is described as the Right to Keep and bear, and not the Rights to keep and bear. The Second Amendment does not distinguish between the two aspects of the right. Besides, what good is either part of the right without the other?

If one part is considered as pertaining to the individual, so must be the other. Our Founding Fathers wrote the amendment in that fashion. Obviously, they meant it that way.

Woody

"I pledge allegiance to the rights that made and keep me free. I will preserve and defend those rights for all who live in this Union, founded on the belief and principles that those rights are inalienable and essential to the pursuit and preservation of life, liberty, and happiness." B.E.Wood

 

[Bubbles]

Not to hijack the thread, but...

The Parker ruling was released on Friday, March 9th, 24 days ago.

DC has 30 days to file the appeal or ask for an extension. AFAIK DC has done neither. So, look for something on this case to break in the next week.

My bet is that DC asks for an extension.

 

[Ratzinger_p38]

I read somewhere they asked for an en blanc. I think the congress is already being lobbied by the Bradys to shut this down (IE get rid of the ban) and allow some kind of NYC style system where people can own them. This will moot the gun ban, and prevent SCOTUS from hearing this another day, thus leaving the 2A somewhat murky (on legal grounds) for some time. I think the gun controllers have more to worry about then we do, youve seen how up in arms they are about the decision.

Those of you worrying about 'the court in worse case will say you can pass whatever gun law/ban you want' are forgetting the right to keep and bear arms is more clearly written down on the state level. Now, I know this is not true in all states, but it is in most.

 

[antsi]

--------quote-------
Those of you worrying about 'the court in worse case will say you can pass whatever gun law/ban you want' are forgetting the right to keep and bear arms is more clearly written down on the state level.
---------------------

So, how would that work exactly?

Let's say the US Congress passes a law banning civilian posession of handguns.

That violates my state constitution, yes.

Are you saying that the Federal law would then be invalid within Indiana borders?

I don't think it works like that.