Supreme Court Will Hear D.C. Guns Case

[Agent Smith]

I just don't see how SCOTUS could come back with a ruling that the Second Amendment is not an individual right. It all seems so crystal clear. The Constitution was not written for the government, even the gun grabbers know that.

[awkx]

Originally Posted by Agent Smith

I just don't see how SCOTUS could come back with a ruling that the Second Amendment is not an individual right. It all seems so crystal clear. The Constitution was not written for the government, even the gun grabbers know that.

I totally agree; the collective-rights doctrine, both the naive and the "sophisticated" versions, are so thoroughly discredited that the justices might well be embarassed to support them.
However, there is still danger from the potentially gun-grabbing justices: they might try to justify the ban as a "reasonable restriction". Or they might argue that the Second Amendment shouldn't get 'strict scrutiny' review, and that instead the courts should defer to the legislature.
Anyhow, I remain cautiously optimistic that the court will do the right thing and uphold the decision that the DC ban is unconstitutional.

[Mtbkski]

Has anyone really given this much thought to the 2nd Amendment case that is finally going to be heard by the Supreme Court? I hadn't, till I saw something on the news the other night. It really made me think.

The guy on the news said that this vote will probably be the most important decision that they (Supreme Court) will ever make since the founding of this country. Now think about that for a second.... It will have a major tramatic impact no matter which way it goes. For or against.

That is rather scary if you think about it. If we would lose. You could actually wake up, to hear on the news that "All firearms are to be turned in to your local police departents immediately." EXTREME?? Maybe not, if we lose this ruling.

This is big. Really big.

[PAhunter]

From the tone of this writer it would seem to come down to punctuation.

http://weblogs.baltimoresun.com/news...supreme_c.html

Jack

[Rule10b5]

It is certainly one of the more important cases they've taken up in recent years. I'm, personally, not that happy that the case is going up, to be honest. The status quo, while demented and unpleasant on many levels, still allows people to move from gun-unfriendly areas of the country to gun-friendly areas. Uniform federal standards tend to make me queasy. On a scale of 1 to 10, we're at about a 6. A win in Heller puts us at a 7 or an 8, because reasonable restrictions will still be allowed. A loss, though, takes us to a 3 or a 4.

Anyway, I don't think it's going to be too bad, for a number of reasons:

First, if there were ever a court, in the past 70 years, that I'd want the case in front of (if I had to do it) it would be this one. Roberts wants this case so bad you can almost see the smirk. He's firmly in our camp. As are Alito, Scalia, and Thomas. Kennedy is probably going to concur, but write a separate opinion.
A lot of people think this will will be it -- a 5-4. I don't agree -- I think there is a legitimate possibility that Breyer will, due to his consistent focus on individual rights, come down on our side of things but take a reasonable restriction position. Even Ginsburg could do the same.

The thing people have to realize is that this isn't a liberal/conservative case, even though those are the political implications. The traditionally "liberal" justices, who typically come down in favor of expanded constitutional protections will be inclined to continue in that direction with this case. The conservatives are in the same boat, but for different reasons -- they're simply pro-gun and can go with the plain meaning argument. It's also a pure legal issue -- there isn't any wrangling or creation of nonsense necessary like we saw in Roe, for example. The clause either means what it says or it doesn't. It's much harder to bullshit a result when you have plain language.

Second, argument and decision are going to occur during the presidential campaign. Tremendous pressure in favor of a republican friendly result exists and will be brought.

Third, there isn't that much scholarly support for a collective view of the Second Amendment anymore. Even very anti-gun constitutional scholars have pretty much conceded that it's an individual right. It's hard to buck this trend, even for the justices.

Fourth, the Bush administration and the DOJ affirmatively have adopted a formal "individual" rights view.

Fifth, and perhaps most important, is that I suspect the case is going to play out like this: The court will find that the right is individual -- for all of the reasons above. However, we need to remember that individual rights are not, under current jurisprudence, unrestricted. They are subject to reasonable regulation if a legitimate government interest is advanced (too complicated to get into -- look at 1st Amendment jurisprudence if you want an idea how complicated it is). It is very easy to contemplate the result that the D.C. gun ban is unconstitutional, simply because it fails to advance a legitimate government interest or is overbroad. I think this is the compromise the court is going to reach -- they'll find it's individual, set up a test for courts to employ, strike down the ban, and leave it at that. I don't think it's going to change that much.

Also, remember what this case is about. Courts have overwhelmingly construed the Second Amendment as protecting collective rights, even in gun friendly places like Pa. If courts already hold that the right is collective, yet still permit the level of rights we exercise today, there is no reason for them to change. Basically, for all practical purposes, the law is already "bad" and given the scope of review on the issue, there is no way to make is worse. This is simply a function of the interaction of federal and states rights. The Supreme Court can't "regulate" firearms rights -- it can only say who is or isn't allowed to do so, and for what reasons and to what extent. They can't affirmatively legislate any worse than we are.

Last, state constitutions still protect us. The U.S. Constitution is a minimum floor for rights -- states can't go below it. But there is no reason why state constitutions can't protect more rights (like in Pa.). I'd expect that even in the event of a negative result, gun friendly jurisdictions won't change -- and gun-unfriendly jurisdictions will get worse.

[slicknick131]

Originally Posted by Mtbkski

The guy on the news said that this vote will probably be the most important decision that they (Supreme Court) will ever make since the founding of this country. Now think about that for a second.... It will have a major traumatic impact no matter which way it goes. For or against.

I really doubt that this is THE most important decision the Supreme Court has made thus far or will make in the future. It's an exaggeration. Besides, the problem of the justice branch of the U.S. government is that in and of itself it has no power. It relies on the other branches to actually enact and execute its rulings. If the other branches no-likey the rulings, they can virtually ignore them.

[Philadelphia]

Originally Posted by Rule10b5

Last, state constitutions still protect us. The U.S. Constitution is a minimum floor for rights -- states can't go below it. But there is no reason why state constitutions can't protect more rights (like in Pa.). I'd expect that even in the event of a negative result, gun friendly jurisdictions won't change -- and gun-unfriendly jurisdictions will get worse.

Not so. The individual rights in the bill of rights essentially spell out the limits of governmental power. Aside from the effect of the 14th amendment, it spells out limits on federal power.

If in the unlikely event that the Court determines second amendment rights are not individual rights but rather collective rights of the states to form (or not) state militias, Congress would be free to, for example, pass a law completely banning all Americans from owning guns unless actively serving in an organized state milita.

If Congress passed such a law, that federal law would preempt all contrary state laws, despite whatever a state constitution happened to say about the issue.

This case is a big one. I agree with you that the odds are on our side. At this point the issue is in the hands of the Court and there's little we can do other than providing our financial support to gun rights groups involved in the case. The Second Amendment Foundation has already filed a "Brandeis Brief" (a very good one for that matter) in the circuit court and I'd expect them to file one with the supremes. The Attorneys General of 13 states have also filed a brief in favor of the individual rights view.

Maybe we can lobby our attorney general to join in support of the individual rights view and sign on with the others.

Anyway, everyone should continue their financial support of the gun rights group of their choice. The fallout from this case, whichever way it's decided, will continue for years and years. If things go our way, we might even end up with fewer restrictions than at present (how about the right to open carry (keep and "bear" arms) in all fifty states).

[Mtbkski]

Originally Posted by Philadelphia

Not so. The individual rights in the bill of rights essentially spell out the limits of governmental power. Aside from the effect of the 14th amendment, it spells out limits on federal power.

Congress would be free to, for example, pass a law completely banning all Americans from owning guns unless actively serving in an organized state milita.

This case is a big one.

Anyway, everyone should continue their financial support of the gun rights group of their choice. The fallout from this case, whichever way it's decided, will continue for years and years. If things go our way, we might even end up with fewer restrictions than at present (how about the right to open carry (keep and "bear" arms) in all fifty states).

It makes me feel better ( I think ) to at least know I'm not concerned for no reason at all. I know that most everyone I talk to seems to have the same "lack" of concern about this issue, that most posters have. And I think that is just due to the lack of any real thought on the issue.

This gives me the chills when I think about it. They may come knocking on your door asking for weapons sooner than we all think. (Worse Case Senerio, but alas, a possible outcome)

Hate to sound all doom and gloom. But sometimes you have to, to wake up and start participating in something this important.

[Rule10b5]

Originally Posted by Philadelphia

Not so. The individual rights in the bill of rights essentially spell out the limits of governmental power. Aside from the effect of the 14th amendment, it spells out limits on federal power.

If in the unlikely event that the Court determines second amendment rights are not individual rights but rather collective rights of the states to form (or not) state militias, Congress would be free to, for example, pass a law completely banning all Americans from owning guns unless actively serving in an organized state milita.

If Congress passed such a law, that federal law would preempt all contrary state laws, despite whatever a state constitution happened to say about the issue.

I see where you're coming from, but I disagree.

First, D.C. didn't advance that argument in its cert. petition -- to the contrary, it expressly contented that "the Second Amendment restricts only federal interference with state-regulated militias and state-recognized gun rights." They've conceded the issue about state-recognized gun rights (not that a position in a cert. petition is definitive). Anyway, it doesn't matter, because the court isn't taking that up -- it's only going to deal with the D.C. issue.

And here's a snip from the 11/20 Order:

"The petition for a writ of certiorari is granted limited to
the following question: Whether the following provisions - D.C.
Code §§ 7-2502.02(a)(4), 22-4504(a), and 7-2507.02 - violate the
Second Amendment rights of individuals who are not affiliated
with any state-regulated militia, but who wish to keep handguns
and other firearms for private use in their homes?"

All the rest of the stuff we're worried about isn't even technically before the Court. They're going to sidestep -- a limited grant of cert. is a total telegraph.

Second, post-Miller (which we could debate all day long) Congress has been free to do exactly what you're afraid of -- enact a national gun ban, absent participation in a state militia. The AWB is pretty clear evidence of that. Heller isn't going to change that for the worse -- we only really stand to gain. (Notwithstanding that the Commerce Clause has been tortured, in any case, to allow such a result).

Finally, and as a complete aside, I just noticed that Walter Dellinger is lead counsel for D.C. He was my Con Law professor. How nauseating; I actually liked the guy.

[Mtbkski]

Four hours and no responses??? I guess everyone is giving this matter some thought. Kind of scary when you really think about it.

Hang tough everyone, and lets just hope that it goes our way. Hate to think that the PAFOA Shoots may one day disappear. That would be a bummer.

Guess there really isn't anything we can do to help out in this fight is there?