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 oneSo what does it mean? Obviously, I still don't know, aside from the fact that we're a bit closer now.
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