Mission statement:

Armed and Safe is a gun rights advocacy blog, with the mission of debunking the "logic" of the enemies of the Constitutionally guaranteed, fundamental human right of the individual to keep and bear arms.

I can be reached at 45superman@gmail.com.You can follow me on Twitter at http://twitter.com/45superman.

Wednesday, May 09, 2007

So--what does it mean

I made brief mention yesterday of the decision by the DC Circuit Court to not hear the Parker v. DC case again (this time in front of the entire court, rather than a panel of only three judges), but where does that take us? Hell--I don't know, but I'll give it a look.

Certainly, timing is affected--according to the Volokh Consipiracy (this was back in March), the removal of the necessity for an en banc hearing moves the timetable along considerably.

Say that the D.C. Circuit decides not to rehear the case en banc; that probably means the en banc petition will be denied within several months. Assume that it's denied by late June — the petition for certiorari will be due in late September, the Supreme Court will consider it in the next month or two (unless it decides to call for the views of the Solicitor General, but I doubt this will be necessary). That means the case will likely be heard in early 2008, and decide by June 2008.
I'm getting a bit ahead of things, though--there is certainly no guarantee that the Supreme Court will agree to hear it--they have, after all, managed to dodge the necessity to make a substantive ruling on the Second Amendment for almost seventy years, and there is little to indicate a newfound desire to jump in now. Still, while we're speculating, we might as well speculate on what happens if SCOTUS does agree to hear the case--otherwise, we're already done, and what's the fun in that?

So, the next question gets right to the heart of it--what will a SCOTUS decision look like? I don't think that anyone doesn't believe that Justice Scalia and Justice Thomas will uphold the individual rights (as if there's another kind) interpretation. Many seem to have little doubt that Justice Alito and Chief Justice Roberts will also hold to that view--although one observer for whom I have a good deal of respect is not nearly so confident in those two. Stupidly, I neglected to ask him about what it is on which he bases those doubts. Even if we Roberts and Alito do dismiss the uphold the individual rights interpretation, that still leaves us one justice short, and we're starting to run low on "conservative" ones. Some help may come from an unexpected quarter--the Parker v. DC ruling (on page 27) notes that Justices Ginsberg and Souter--not normally considered staunch friends of private gun ownership--might still be unwilling to buy the odd assertion that the right to keep and bear arms is tied to military service.
We also note that at least three current members (and one
former member) of the Supreme Court have read “bear Arms”
in the Second Amendment to have meaning beyond mere
soldiering: “Surely a most familiar meaning [of ‘carries a
firearm’] is, as the Constitution’s Second Amendment (‘keep
and bear Arms’) and Black’s Law Dictionary . . . indicate:
‘wear, bear, or carry . . . upon the person or in the clothing or in
a pocket, for the purpose . . . of being armed and ready for
offensive or defensive action in a case of conflict with another
person.” Muscarello v. United States, 524 U.S. 125, 143 (1998)
(Ginsburg, J., dissenting, joined by Rehnquist, C.J., Scalia, J.,
and Souter, J.) (emphasis in original). Based on the foregoing,
we think the operative clause includes a private meaning for
“bear Arms.”
So what does it mean? Obviously, I still don't know, aside from the fact that we're a bit closer now.

6 comments:

1957... said...

A judge inclined to avoid an issue can always find the way. Here, there's an underlying jurisdictional question under Art. III. That'd be one way to vacate the holding of the circuit and avoid answering the question (long enough for the coming NAU to make the issue moot).

But, at heart S.Ct. decisions are policy questions. You do know that Alito's a former prosecutor, don't you? Ever know any US attorneys to be concerned with the individual's right to possess weapons? I like John Roberts (not that that makes any difference to anyone) and don't mean to put him down, but he is a preppie Harvard kind of guy with a wife who is former legal counsel to "Feminists for Life," a pro-life/anti-violence group. Holding that states, municipalities , etc., can't regulate guns would be boat-rocking to the extreme. Just can't see Roberts doing that. (That kind of stuff can be left to Thomas and Scalia. Boat-rocking is their speciality!) And Roberts is not known to be an "ideologue" but rather is often called a "pragmatist."

Over the past 20 or so years, the Court has adopted a jurisprudence that defers to state political action as opposed to federal action on certain questions. Underlying this view is the notion that the political process within the states will arrive at the best solution to local problems and, as well, lead to more "democratic" answers to social ills. In the case of guns, I just can't see the Court suddenly saying that NO ONE can regulate their possession because of the 2d amendment. After all, the Court has NEVER found any constitutional rights to be absolute. Can't believe it would, during this age of permanent war, find that the states are powerless to regulate firearms.

Also, there's the little issue of whether the 2d amendment even applies to the states via the 14th amendment (the incorporation doctrine), let alone to D.C. So, as I said, tons of ways for the Court to avoid the question altogether, as it has done, nearly forever.

Just my opinion, of course. Hope I'm wrong.

45superman said...

I think that if the Supreme Court hears the case, and if they uphold the individual right to bear arms, it will be an extremely narrow ruling (I understand Roberts is known for those). It will allow for plenty of "reasonable restrictions," (as if there is a way to "reasonably restrict" a right that shall not be infringed), and won't be incorporated to cover the states.

What made this a perfect case is the ridiculous, draconian extremism of the DC law--in establishing an outright ban of a huge class of very popular firearms. That, plus the fact that state's rights aren't involved, is what (I think) makes this case a winner, but at the same time, makes the victory a smaller one than we might be hoping for.

I see even a Supreme Court ruling in our favor as more of a shift in what the next battles will be fought over, than anything like an end to the "war."

1957... said...

If I correctly understand your use of the term "state's rights," I'd disagree that those aren't involved here. The criminal law is traditionally a state, not federal, matter, so criminalization of the possession of something, even guns, pushes the balance of power to the states as opposed to the feds. Of course, the states' right to regulate would be subject to the 2d amendment, in this case, but within the state's police power nonetheless. I see it more like United States v. Lopez, but without the commerce clause issue, if that makes any sense.

"What made this a perfect case is the ridiculous, draconian extremism of the DC law--in establishing an outright ban of a huge class of very popular firearms." The extent of any regulation not subject to strict scrutiny is, of course, a policy question to be answered by the "democratic process." (Yuck-how I do hate to use that phrase!)

Of course, the crux of the biscuit is whether the gunbanners' law would be strictly construed against enforcement because of the 2d amendment, or if it's merely examined to see if there's a reasonable relationship to an assumed police power (here, the DC's criminal laws). If the later, we lose.

And the Court will see that endorsement of the appeals court's holding will cause government to lose power. Leviathan may share power with its minions for purposes of administrative efficiencies, but Leviathan never gives up power over the common man. Where you been for the past 94 years?

straightarrow said...

I think perhaps those of us that think the USSC will not take it up, of which I am one, is that if they do not grant cert, all the infringements now in effect in all but two Federal Judicial Districts remain in effect.

I think there is a very good likelihood that the court will not want to divest the state of all that power. A thing like that could change completely the awe with which the majority surrender their rights willingly. Ergo, I think the Court will be unwilling to do that. An unfavorable ruling for our side may be seen by the majority as the last straw, and I suspect the Court does not want to be the fomenting agent of civil unrest or outright rebellion.

On the other hand, I think the anti's are not willing to take the chance that the Court will rule properly on this issue, but in order to placate their bases may feel forced to petition for cert, all the while hoping it is not granted.

In other words, I suspect we may see an ungentlemanly agreement for the petition and denial in order to maintain the status quo in all the Federal Judicial Districts not affected by recent rulings in favor of the Constitution. This would, after all, leave the yoke of suppression of rights on the vast majority of the American people and geography.

The Court only needs a flimsy and ephemeral reason to deny cert. A much lower standard than they would need to reverse Parker. A denial would leave them on the side of the state without exposing them to the criticisms and actions of a betrayed people, who will then be arguing about how stupid the denial was, rather than discussing the real issue.

I hope I am wrong. However, this has been the history of the Court with no exceptions so far since Miller on 2A.

1957... said...

I agree with most of what straightarrow says, except that the Court needs no reason to deny cert. and, in fact, never gives one. Not so sure either that the American sheeple will rise up in revolt over anything anymore.

straightarrow said...

they often give a reason for denial, but they are not obligated to do so and many times haven't. Doesn't get much more ephemeral than that, does it?