THR Supreme Court Justice Challenge

[Bartholomew Roberts]

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.

 

[glummer]

“ In any binding legal document, words cannot change meaning without warning. Any significant terms must mean the same throughout. Therefore, “the right of the people” has the same meaning throughout the Bill of Rights. Sent back to the lower court for reconsideration under these terms.”

 

[Bartholomew Roberts]

Except by handing the ball off to the lower court, you've essentially given the circuit courts free reign to do whatever they want to do - including gut your ruling entirely by adopting an "individual rights, subject to reasonable restrictions and all of the restrictions you can think of strike me as reasonable."

The idea is you must establish a test that lower courts will be bound by that clearly says "If you cross this line, that is too far" and at the same time, doesn't upset the applecart.

 

[geekWithA.45]

There are 3 major unsettled constitutional issues with respect to 2A:

1) To whom the right applies. (ie: individual, states, or some vague collective)

2) What is the scope of the right? (ie: what arms, if any, are protected? Where is the line between regulated and infringed?)

3) Against whom is the right enforceable? (The Feds? The States? Local municipalities?)

Most of today's major bits of gun control are less dependent on 1, and more dependent on 2 & 3, with a giant assist from the expansivist view of the Commerce Clause. Therefore, a ruling affirming 1 is actually the least threatening to the status quo.

Such a ruling would be, "Yes, RKBA is an individual right, and so long as you can, after leaping through great hoops of fire and enduring anal scrutiny, purchase a single shot .22lr, to be used at the following times and places, your individual right remains uninfringed."

More realistically, though, a ruling need merely affirm the individual nature of the right protected by 2A, and pass on all the other questions.

This would throw precedents to the contrary in the circuit courts into a cycle of review, and 2 & 3 would be brought up in due course, perhaps in a different political environment.

Unfortunately, your ground rules of engagement, specifying that the ruling may not change the status quo of gun control demands a toothless ruling.

Nonetheless, getting 1) out of the way is still of value.

We would be left with a status of "2A is an individual right of undetermined scope that is currently enforceable only against the Feds", and most of the current Federal legislation would pass that test.

Perhaps if you wangled in the Miller test, "arms reasonably related to the maintenance of the militia", you might could supress AWBish legislation, but at that point, you're starting to answer #2, the scope question.

 

[glummer]

by handing the ball off to the lower court, you've essentially given the circuit courts free reign to do whatever they want to do - including gut your ruling entirely by adopting an "individual rights, subject to reasonable restrictions and all of the restrictions you can think of strike me as reasonable."

Except they would be setting precedent for doing the same for other rights – and that would generate a LOT of public controversy, putting the pressure back on the Legislative & Executive branches. And any position the politicos try to stake out would either help us, or outrage important constituencies.

 

[Bartholomew Roberts]

Such a ruling would be, "Yes, RKBA is an individual right, and so long as you can, after leaping through great hoops of fire and enduring anal scrutiny, purchase a single shot .22lr, to be used at the following times and places, your individual right remains uninfringed."

Well, it is a clear test to be sure; but it doesn't advance RKBA much beyond protecting the owners of single-shot .22LRs to a small degree.

Think of it as kind of a firewall... we are writing a decision to erect an impenetrable barrier around the rights we currently enjoy. If we can get this administration to accept this as the baseline, then we have made a huge leap forward because all the current restrictions are still up for debate at some future point in time when the culture leans more our way. So how do we write a decision that has a clear test, that protects RKBA to the maximum extent possible, and is actually workable in our justice system?

Except they would be setting precedent for doing the same for other rights – and that would generate a LOT of public controversy, putting the pressure back on the Legislative & Executive branches. And any position the politicos try to stake out would either help us, or outrage important constituencies.

The same public that put Schumer, Kennedy and Feinstein at the reigns of power? Also, you have to remember that your power on the Court only lasts until you or one of your four justices dies or retires. When that happens, who appoints the replacement? If all you have done is say "it is an individual right; but I am not defining the scope of that right" then nothing will stop a later Court from defining it very, very narrowly.

Remember, one point here is to write a decision that protects RKBA as a minority political interest. It is always easy to do things when you represent an active majority and even precedent can be overturned if the popular culture is supportive enough.

 

[Thin Black Line]

Maybe we should read this first and then add some tipping weight for the individual?:

http://www.amazon.com/Militia-Second-Amendment-Constitutional-Conflicts/dp/0822330172/

 

[bouis]

It's kind of a silly scenario. The Courts might not be able to force the executive to, say, pull our troops out of Iraq; but they sure as heck can stop any convictions under laws they don't like. If it really got ugly they could stop the entire criminal justice system in its tracks.

Also, I'm not sure what precedential value any decision is going to have beyond a twin of the instant case-- all you have to do is look at the state of 4th amendment law to see just how weak a proclamation of a test can be. Short of taking a *lot* of 2nd amendment cases there's no reason to expect that your test would survive you.

But, okay -- my test would be that:

It's unreasonable to limit the right of any individual to keep and bear arms unless the government can show:

(1) that that individual is unfit to keep arms; or
(2) a compelling interest linked to a specific location or class of locations subject to jurisdiction of the legislative body making the law [i.e., Congress can legislate bearing arms in federal prisons but not state schools].

I'd also add that the government cannot interfere in the lawful inter- or intra-state commerce in arms except where it's can show compelling "special needs" to enforce (1) above. Laws regulating commerce that are calculated to or have the practical effect of either: (a) penalizing arms purchasers, or (b) restricting access to certain arms, are unconstitutional.

That's not quite what you asked for but it's as far as I'd go.

 

[Caimlas]

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.

In that climate, the Court is no longer a check or balance, or anything of the sort. If our elected officials are ignoring the Constitution of our country, those laws they ignore are being written out via popular opinion by default.

I'd go balls to the wall with my decision. It would, at least, make note of their unconstitutional attempts when making the news. At the very least, it'd hopefully lead to a couple of them losing office.

 

[geekWithA.45]

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.

And if the courts fail to challenge the E & L branches, they aren't much a check on the anti-liberty forces to begin with.

Your rules of engagement, as stated, pass the Kozinski test:

The Second
Amendment is a doomsday provision, one designed for those
exceptionally rare circumstances where all other rights have
failed—where the government refuses to stand for reelection
and silences those who protest; where courts have lost the
courage to oppose, or can find no one to enforce their decrees.
However improbable these contingencies may seem today,
facing them unprepared is a mistake a free people get to make
only once."

--Judge Kozinski

 

[Tim Burke]

How many divisions has the Pope?

If the other 2 branches of the Government are going to ignore Court rulings that displease them, then the Court has two choices.

• It can pretend to be meaningful, by ruling in a fashion that pleases the other 2 branches.
• It can be intellectually honest, and at least show that we are no longer a nation of laws.

Stalin thought he was being so practical, but the Pope is still here, and the USSR is gone. Truth and Right are powerful tools, for those that aren't afraid to wield them.

 

[carpediem]

Nevermind

 

[Cosmoline]

The hypo if flawed. The SCT is at base just a court of appeals. It hears CASES, not ISSUES. So the specifics of the case at bar are never some minor point. What exactly is at issue in the "promising second amendment case"? Who was arrested, and for what?

Also, the notion that the other branches will "put you on notice" that they will ignore the Court's ruling is outrageous. It's far more reasonable to suggest that you will only get a majority of the court's members to support you if you craft the holding so that it will not overturn existing federal gun control laws.

 

[TX1911fan]

I understand the constraints you made above (e.g., Democrats control the other 2 branches and are very popular). However, if it were me, I would write the opinion I wanted, despite the public perception at the time. As we have seen with Roe v Wade, precedent is a very hard thing to discard, even though a majority of justices agree that it is wrong (as has happened with Roe v Wade several times). The Dems won't always be popular, but the decision will still be there.

As to what opinion I write, I don't have time right now to pen it, but it would be well reasoned, and supported by past case law, historical texts, and common sense.

 

[DKSuddeth]

the main text of my opinion would read "The Second Amendment means that the right of the people, that is the individual AND the whole of the people as a militia, shall not be infringed. It is the opinion of this court that the 14th Amendment ALSO forces all 50 states of the union to respect the right of the people and that no laws shall be enforced in any federal, state, county, or municipal court that would infringe on the inalienable right of any person to keep and bear their own personal arms. This decision is applicable to all federal and state courts pursuant to the constitution of the united states."

This would effectively bind ALL lower courts, fed and state, to dismiss any charge of a violation that conflicted with the right to keep and bear arms.

 

[Lupinus]

Few points-

A) They know damn well the media chit storm they would be in for shrugging off a supreme court decision they don't happen to like.

B) It opens the flood gates for the more freedom loving/friendly states to tell the federal goverment to shove it and to do so legaly.

 

[Brett Bellmore]

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.

I pass. Any ruling that met those criteria would have to so water down the concept of "individual right" as to not merely be worthless, but possibly even a threat to the significance of other "individual rights".

Unless you overturned at least one law, everybody would recognize the ruling was nothing but empty verbage, and ignore it as such.

Kind of like they have the 5th circuit's Emerson ruling...

Besides, even under the circumstances you relate, it would not be futile for the Supreme court to uphold the 2nd amendment effectively. Short of a majority in Congress large enough and motivated enough to impeach you for the ruling, (In which case even a meaningless ruling would get you in trouble.) a clear, straightforward ruling defended in simple honest terms would be political dynamite for the Executive branch to ignore.

I'd go for the gold: Direct incorporation of the entire Bill of Rights via the "privileges and immunities" clause of the 14th. Let's you go right back to Reconstruction, and bring to bear all the evidence of gun control's origins as part of Jim Crow.

AND, it has the virtue of being right.

 

[Langenator]

I think the best route would be to craft an opinion which (rightly) places the Second Amendment on the same level as the First, and further that the Second is enforceable against both the Federal and state governments (to include any subdivisions thereof) via the Equal Protection Clause of the 14th.

Putting the Second on the same level as the First (sorry, I can't recall the appropriate ConLaw terminology at the moment) means that any restrictions must pass the 'strict scrutiny' test-i.e., narrowly tailored, must serve a compelling government interest, must not be less restrictive means available. (There may be more elements to this that I can't recall).

Then decide if whatever clause of the subsection of the subparagraph of the paragraph of the section of US Code or state law in question meets that test.

On the subject of the hypo, if a law or portion of one is declared unConstitutional, I'm kind of unclear as to what the Executive and Congress could do.

-The Executive can't enforce a law that effectively no longer exists

-Congress can try to re-enact it, but you could just kill it again.

-They could try an amendment, if, in your scenario, they also control 3/4s of the state legislatures. That's about it.

 

[Technosavant]

If two whole branches of Congress admit publicly that they have no intent to follow either the Constitution of the United States of America or the interpretation of the Supreme Court of the United States if they do not like what results, then I do not believe any opinion written will matter one bit.

Remembering that Pelosi, Schumer, Kennedy, and their ideological clones would be pleased with a complete and total ban on all private firearms ownership, no matter the person, firearm, or jurisdiction, an opinion intending to "slide under their radar" is doomed to fail. Even upholding the NFA and GCA while striking down the closure of the NFA registry, Lautenberg ban, or "sporting purposes" clause (all together or even any by itself) would be ignored. Sure, the SCOTUS can say that certain laws are illegal, but if the police still arrest for those actions, and the judges appointed by and confirmed by those gun grabbers will ignore the ruling.

I agree with the folks who said "go for it, strike them all down, and let the chips fall where they may."

At best, you would be able to show the nation that two and a half of the three branches of government have slipped the tracks. Still, though, keep in mind that the American public would have approved of the aforementioned legislative slate and presidential administration, so it would probably not be too hard for the grabbers to pass a repeal of the 2nd Amendment, negating any opinion you might write.

I don't want to devolve into a "feed the hogs" state, but quite honestly, I think that in the specified case, our beloved firearms would be fully and completely banned in short order, and we would be left with three choices:
1) Hide them and hope you are never discovered
2) Turn them in, find another hobby, and try to forget that our beloved nation has become yet another tyrannical state
3) Join with others, revolt, and risk destruction in an attempt to secure your freedom.

 

[bouis]

You have to admit that this thread is very ironic, with everyone defending the Judiciary in some magical world where it's a defender of the 2nd amendment instead of the worst offender of the three branches...

 

[Bartholomew Roberts]

Well I could delete all the posts from people who can't read and understand bolded text explaining the purpose or I can just close another pointless, useless thread in L&P.

My purpose here was not to examine the magical land of limitless firearm rights; but to see if I could get ideas on how a Court might create a realistic individual rights decision that had a chance in hell of standing up to the current culture. To those who did participate in the flawed attempt, my thanks.