Bartholomew Roberts
Member
OK, here is the scenario. You have just been nominated Chief Justice of the Supreme Court. In your short; but brilliant tenure you have so impressed four other justices that they will support you unquestioningly. As a result, you have no need to accomodate the views of other Supreme Court justices and can decide the majority view of any case.
A promising Second Amendment case has worked its way up through the Circuit Courts. You have the opportunity to once and for all resolve the individual rights v. collective rights debate; but there is a problem. Diane Feinstein is Speaker of the House, where she holds a solid super-majority. In the Senate, Chuck Schumer leads and holds a 2/3 majority there as well. The newly elected President is Teddy Kennedy. Their party is unquestionably popular with the people who have vaulted them to unquestioned control of both the Legislative and Executive branches despite their gun-grabbing ways.
You have a chance to write a pro-RKBA decision that will crimp their gun-grabbing ways seriously; but you also have a problem. You have no enforcement powers and must rely on Congress and the President to enforce any ruling you issue. Further, there is only so far you can go in the face of public opinion without stirring up an uproar because you represent only nine people. The Executive and Legislative have heard of the case and put you on notice that they will not abide by any decision that invalidates a major federal firearms law (GCA 1968, Brady, NFA 1934); but they have left some gray area about how far you can trim back certain provisions of that legislation. In this political climate, if you challenge the Executive and Legislative branches, the Court will lose that battle and the last check on the anti-liberty forces will be gone.
So your challenge is to write a ruling that establishes an individual right to bear arms and sets forth a clear test for what laws may not infringe that right; but at the same time does not invalidate any of the major federal firearms laws already in existence. The test must be workable for the justice system as it exists currently.
WARNING: This thread has two major points:
1) To show just a few of the constraints on Justices of the Supreme Court in writing opinions and how that shapes the decisions they make.
2) To brainstorm some good tests for an Emerson style "individual right subject to reasonable regulation" that are actually pro-RKBA in actual practice.
As a result, comments along the lines of "I would write SHALL NOT BE INFRINGED period." or "Start the revolution! Feed the hogs!" are both unwelcome and off-topic. Off-topic comments will be deleted without mercy or warning.
A promising Second Amendment case has worked its way up through the Circuit Courts. You have the opportunity to once and for all resolve the individual rights v. collective rights debate; but there is a problem. Diane Feinstein is Speaker of the House, where she holds a solid super-majority. In the Senate, Chuck Schumer leads and holds a 2/3 majority there as well. The newly elected President is Teddy Kennedy. Their party is unquestionably popular with the people who have vaulted them to unquestioned control of both the Legislative and Executive branches despite their gun-grabbing ways.
You have a chance to write a pro-RKBA decision that will crimp their gun-grabbing ways seriously; but you also have a problem. You have no enforcement powers and must rely on Congress and the President to enforce any ruling you issue. Further, there is only so far you can go in the face of public opinion without stirring up an uproar because you represent only nine people. The Executive and Legislative have heard of the case and put you on notice that they will not abide by any decision that invalidates a major federal firearms law (GCA 1968, Brady, NFA 1934); but they have left some gray area about how far you can trim back certain provisions of that legislation. In this political climate, if you challenge the Executive and Legislative branches, the Court will lose that battle and the last check on the anti-liberty forces will be gone.
So your challenge is to write a ruling that establishes an individual right to bear arms and sets forth a clear test for what laws may not infringe that right; but at the same time does not invalidate any of the major federal firearms laws already in existence. The test must be workable for the justice system as it exists currently.
WARNING: This thread has two major points:
1) To show just a few of the constraints on Justices of the Supreme Court in writing opinions and how that shapes the decisions they make.
2) To brainstorm some good tests for an Emerson style "individual right subject to reasonable regulation" that are actually pro-RKBA in actual practice.
As a result, comments along the lines of "I would write SHALL NOT BE INFRINGED period." or "Start the revolution! Feed the hogs!" are both unwelcome and off-topic. Off-topic comments will be deleted without mercy or warning.