The Heller Oral Argument Headcount

[Kharn]

I think we'll get 7-2 on individual right, but 5-4 (possibly 6-3) on the DC ban violating that right.

Roberts, Scalia, Alito, Thomas & Kennedy for the ban is in violation, Ginsberg and Souter for individual-but-not-violated, and Breyer & Stevens copy VPC/Brady propragana to write their dissent saying it prevents the feds from disarming the National Guard.

Kharn

 

[legaleagle_45]

Answer to Stevens:


At the time the 2nd was being drafted, only 4 states had an analogous provision in their respective constituions which dovetailed the 2nd Amend. Of those 4, 2 clearly protected an individual right of self defense, while the other 2 arguably protected an individual right of self defense.

Shortly after the ratification of the 2nd, several states passed analogous provisions with almost all of them clearly protecting an individual right of self defense.

 

[Beagle-zebub]

If this does come out in our favor, Oleg needs to make a lolcats-like poster consisting of a shot of Fenty's reaction, with the caption *EPIC FAIL*

In any case, I'm going to guess that at least three opinions are going to be written, and that feels like low-balling.

 

[Boats]

I think we are looking at a 7-2 vote in favor of an individual right and a 5-4 or 6-3 vote (concur in part; dissent in part) on the strict scrutiny standard being applicable to the 2A as a fundamental right.

Only Breyer and Stevens came across as totally collectivist yesterday. The rest will probably vote for the recognition of an individual right and split more severely on the test applied for regulation of the right.

 

[ctdonath]

Why mention MGs at all on either side?

Because one side (and some on the other) view it as a "third rail": touch it and [politically] die. Linking an argument to a third rail is one way to quickly eliminate that argument. If someone said "why yes, overturning the DC ban would mean overturning the MG ban" then half the court would go crazy writing anything they could to uphold the DC ban.

 

[armoredman]

Dave, sorry, that must have been one of the times C-Span internet connection went blank for a few seconds, I didn't hear that part. My bad.

 

[Vibe]

Because one side (and some on the other) view it as a "third rail": touch it and [politically] die. Linking an argument to a third rail is one way to quickly eliminate that argument. If someone said "why yes, overturning the DC ban would mean overturning the MG ban" then half the court would go crazy writing anything they could to uphold the DC ban.

It's a shame that this is probably true regardless of how they may actually interpret the Constitution. I always thought that that was one of the reasons that SC Justices were removed from the political pressure of seeking re-election/appointment once seated. To remove just such influence.

 

[TexasRifleman]

Why mention MGs at all on either side?

Because President Bush's Solicitor General put them all over his brief to the court. There was no way it wasn't going to come up.

 

[Cosmoline]

I can appreciate that, however my opinion still stands. Throwing grandma under the bus might fly in the People's Court, but not in the USSC.

Again, it comes back to WHO IS ASKING THE QUESTIONS. Go look at the transcript and tell me who was asking him about the machine guns. I've been up in front of our state supreme court a half dozen times, and I always keep this mental picture with me for certain questions from certain justices:

We're in the process of hacking through three generations of constitutional weedbed going back to Miller. This must be done in small steps or the process will founder. Demand too much, or go beyond the case at bar, and the whole thing can be shut down.