Second Guess The Supreme Court

[ctdonath]

Parker was very narrow, applying only to a couple laws (forbidding any registration, and forbidding functional guns), and was only rendered as it was because only ONE plaintiff was deemed to have had standing (and that only by applying for a permit he knew by law would invariably be denied).

DC may ask for an en banc appeal. That doesn't cost 'em anything, as it basically is a request for the same circuit to re-hear the case (just this time with more judges who are less sympathetic), so that could at worst not change the outcome and at best reverse to their favor.

Methinks DC will not appeal to SCOTUS. While a loss there would not per se change the outcome for DC, it would change the jurisdiction from 10 square miles to about 3,000,000 square miles - something I'm sure many mayors and governors are quietly but forcefully calling the DC mayor to avoid. Appealing Parker can't be expected to do the gun control crowd any good. From any angle, DC should suck it up and cope with the ruling as is (abusing the limited extent to create new obstacles to legal ownership). Taking it to SCOTUS risks a broader "it means what it says: 'the people' and 'shall not be infringed'.

Al Norris has it right: Parker was a very narrow verdict, only allowing functional licensed guns in the home. SCOTUS would most likely seek a very narrow ruling as well, affirming no more than that. The precedent would be powerful, but still be tricky to work with. The only viable offshoot I see from SCOTUS upholding Parker would be overturning 922(o) - and even that would take years to push thru.

 

[Gifted]

What about strict scrutiny? Would a favorable ruling say that a law would have to stand against strict scrutiny, and how would that apply to other challenges?

On the other hand, you can easily say that the RKBA doesn't stop at the door, and so there needs to be a way to carry outside of your home, and eventually to not be threatened with legal action for actual excersising the right to self defense. There are also other places where similar limits are in place(Chicago and NYC), and those would be open to attack.

 

[publius]

So what happens when we get reversed en banc and cert is denied?

Nothing. The good questions that Gifted asked won't need answers. The status quo will remain undisturbed.

The Supreme Court doesn't seem eager to disturb it. In Kelo, they refused to overturn the precedents related to "public use" in eminent domain cases, and in Stewart/Raich, they refused to overturn the precedents related to interstate commerce.

After we get reversed en banc and cert is denied, we'll be right back where we were before our side won the narrow victory in Parker.

 

[darwin-t]

I was in favor of it going to the Supreme Court, but I've changed my mid.

Yesterday the court decided that carbon dioxide is a pollutant. With Kennedy as the swing vote, we can't trust the court to decide anything as important as the second admendment.

 

[ConstitutionCowboy]

I was in favor of it going to the Supreme Court, but I've changed my mid.

Yesterday the court decided that carbon dioxide is a pollutant. With Kennedy as the swing vote, we can't trust the court to decide anything as important as the second admendment.

Funny, don't you think? The Court can find that carbon dioxide, a naturally occurring gas in the atmosphere, belched out of the earth's core by the megaton, food for just about everything green, is a pollutant but can't look at a shotgun with a short barrel and figure out that it could kill an enemy.

I can't find any definition of "law" or "equity" that would bestow the power to the Court to determine the scientific properties of a substance.

Back on track, though, I won't simply roll over and be intimidated by this decision by the Court to make me shudder in fear of what the Court might do to my Right to Keep and Bear Arms. The Court needs to be more fearful of me if they screw with my rights. That has not changed.

Woody

Thomas Jefferson worried that the Courts would overstep their authority and instead of interpreting the law would begin making law....an oligarchy...the rule of few over many. Old Tom was right, wasn't he!

 

[Smurfslayer]

Precedent may give us enough in light of parker.

Remember, United States v. Verdugo-Urquidez, 494 U.S. 259 (1990) held that all the BoR refer to the People the same way. Kennedy voted with the majority (concurring). If it does nothing else, it would kill the "collective" and "quasi collective" theories.

As previously noted here, and by DoJ, the right guarantees that the government will not infringe the right to keep and bear arms - not just keep arms. I don't see how even souter, Breyer & Ginsburg get around that... Ok, Gisnburg can make up findings out of alien poop, so that doesn't count

 

[RealGun]

As I said, this is an extremely narrow ruling.

And a jurisdiction confined to DC.

 

[ConstitutionCowboy]

Another Thought Has Occured To Me...

I wonder if the Supreme Court is awaiting a certain number of rulings from lower courts to pile up on this subject so they might be able to follow a consensus and not take all the heat for a decision that will, no matter how they rule, upset a fairly large portion of the populace.

Yes? No?

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

 

[RealGun]

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. - heypete

They do have authority via the 14A but either deny that or haven't asserted it. The RKBA is just as universal and potentially protected as freedom of speech or any other right. State regulation may be a current fact of life, but that doesn't mean it has a justification.

 

[RealGun]

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. - heypete

Yet there are other threads discussing how lists of those with licenses to carry concealed are being published in newspapers, violating the privacy of those who do not want to be identified as such, those who would rather not carry openly.

Registration lists become confiscation or taxation lists, if the law regarding certain weapons changes after registration is imposed for supposedly other reasons.

I have commented on two posts by heypete, but don't take that as any intent to harass his contributions.

 

[The Drew]

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

The problem with the NFA is not the tax and registration, rather it is the fact that in 86 they closed the machine gun registry. They will not accept the tax for any new machine guns.

 

[Gifted]

$200 dollars in 1934 is close to $3000 today. The whole point was to keep the peons from buying the weapons. They'd be perfectly fine to slip into a spending bill an increase to $10,000 or something. There's nothing that says they can't.

 

[ConstitutionCowboy]

$200 dollars in 1934 is close to $3000 today. The whole point was to keep the peons from buying the weapons. They'd be perfectly fine to slip into a spending bill an increase to $10,000 or something. There's nothing that says they can't.

Au contraire! The Second Amendment says they can't. It says they shouldn't have in the first place. Even though it's a tax, it's still an infringement upon the right. It doesn't matter how big or small. It doesn't matter that they say they can levy a tax. The Second Amendment says they shall not levy it on arms. They need to levy the tax on something else, like booze, or refrigerators, or toilet paper... But you are right in one respect. The tax had the effect of limiting machine guns to the wealthy. It's de facto infringement at the very least - which still makes it an infringement.

Even levying a state sales tax on arms infringes upon the right.

Nothing should come between you and arms other than your pocket book, or what limited stuff you have to trade, or your lack of ability to make one. You can still pick up a rock and keep it in your pocket(if you can afford a pair of pants) or just hold it in your hand. If I can figure this out, certainly the Court can as well.

Woody

 

[.cheese.]

I'd be ok with gun registration if they'd throw in a free case of ammo and a laser site with it.

 

[Dan from MI]

After Stevens wrote that p. poor opinion, I'm real concerned about SCOTUS.

Although it may help with standing issues. If Massachusetts had standing due to an injury that did not take place, that shouldn't be a problem at all for Parker.

 

[Brett Bellmore]

If they can't levy a $5 tax on casting a vote, the idea that they can levy a $200 tax on exercising another right is absurd. I don't think it would pass scrutiny under today's conditions, if they were addressing it for the first time... But the case got heard during the New Deal era, when the Court was ruling ANYTHING FDR wanted to do constitutional. We're stuck with a lot of bad precidents from that period when the Supreme court decided to roll over and play dead.

 

[Gifted]

Brett explained it for me. The may not have the power, but the SC said they could do it, and no one got shot over it, so they got away with it. While I'd hope that any attempt to raise the tax like I said would be struck down(if it managed to pass in the first place), it's still precedent.

We already pay some taxes on firearms. Sales taxes, and then the FFL has to pay his income and property taxes and such. Thing is, they don't make up enough of the price that they start affecting the affordability of the arms by themselves, like the NFA did.

 

[Gifted]

What about strict scrutiny? Would a favorable ruling say that a law would have to stand against strict scrutiny, and how would that apply to other challenges?

I'm still interested in an answer to these questions, if someone wants to take a shot at it.

Strict scrutiny as I understand is the reasoning behind yelling "fire" in a theater being illegal. While it may restrict free speech, the consequences of doing it can be so bad as to make the first amendment right moot. Making it illegal protects others(including thier rights, since you don't really have many rights after being trampled to death), but doesn't place a big burden on speech.

Most gun laws do absolutely nothing to stop the crimes they were intended to stop, and are thus unconstitutional. The only law I could see standing up to this is the NICS check, since it can be proved that it's helped. While the millions of denials may not be up to snuff, enough could probably be pulled together to say that the law stops some crime, and so it would probably stay. Everything else would not stand up to strict scrutiny.

 

[ProguninTN]

Woody

I wonder if the Supreme Court is awaiting a certain number of rulings from lower courts to pile up on this subject so they might be able to follow a consensus and not take all the heat for a decision that will, no matter how they rule, upset a fairly large portion of the populace.

Well, you have ]Circuits saying individual right (D.C. and 5th) and otherssaying collective (9th & 10th.)

See Parker et al v. District of Columbia, US v. Emerson, Silveira v. Lockyer, and US v. Haney.

I have also seen Cockrum v. State (TX) and Aymette v. State (TN) cited many times. Are these not enough ?

 

[ConstitutionCowboy]

Are these not enough ?

If my guess is on the mark, I'd have to say "No". Otherwise, they shouldn't need any! The Second Amendment says what it says, and the right is what it is. It's clear to me!

Woody

Truth be told, soap boxes and ballot boxes are made out of empty cartridge boxes. B.E. Wood

 

[ElZorro]

antsi; without the dubious considerations of "incorporation"

and "penumbra", your precept fails. There is nothing Constitutional to allow Federal Congress to pass legislation which supercedes State law.

Whether they could make it stick is another matter. But not Constitutionally.

ElZorro

 

[ProguninTN]

Woody

The Second Amendment says what it says, and the right is what it is. It's clear to me!

We certainly can agree on that.

 

[publius]

There is nothing Constitutional to allow Federal Congress to pass legislation which supercedes State law.

Article VI:
This Constitution, and the laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every state shall be bound thereby, anything in the Constitution or laws of any State to the contrary notwithstanding.