Igloodude
Member
It would be weird, but I was getting the distinct impression that Justice Ginsburg's thinking was going exactly that way. 
DC vs. Heller: Win & Lose simultaneously ?
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Henry Bowman
Senior Member
Igloodude: I got that weird impression from her oral argument comments as well. Those comments can, however, be misleading.
It would be incredibly intellectually honest of her, even if her motivation was only to protect the unenumerated rights she holds so precious. The only "out" available to the antis is to find some unique legal mutation that can be assigned to the "well-regulated militia" language that would not taint the other amendments or the unenumerated fundamental rights held to be entitled to strict scrutiny.
It would be incredibly intellectually honest of her, even if her motivation was only to protect the unenumerated rights she holds so precious. The only "out" available to the antis is to find some unique legal mutation that can be assigned to the "well-regulated militia" language that would not taint the other amendments or the unenumerated fundamental rights held to be entitled to strict scrutiny.
Mike OTDP
Member
I think the final decision will be a combination of the Kennedy and Roberts positions.
Basically, it will hold the following:
a. Second Amendment protects an individual right.
b. The Miller decision is deficient. Second Amendment rights are NOT linked to militia service, therefore full-auto is not particularly protected. (this is Kennedy's contribution)
c. Second Amendment rights are subject to reasonable regulations.
d. DC's gun ban is NOT a reasonable restriction.
I think they will leave the entire issue of levels of scrutiny and incorporation for the future....after the Circuit Courts have had the chance to get the arguments aired out.
Basically, it will hold the following:
a. Second Amendment protects an individual right.
b. The Miller decision is deficient. Second Amendment rights are NOT linked to militia service, therefore full-auto is not particularly protected. (this is Kennedy's contribution)
c. Second Amendment rights are subject to reasonable regulations.
d. DC's gun ban is NOT a reasonable restriction.
I think they will leave the entire issue of levels of scrutiny and incorporation for the future....after the Circuit Courts have had the chance to get the arguments aired out.
divemedic
Member
Actually, I think you are all missing the mark. One thing the court does not like to do is make radical changes to the way things are done (known as rocking the boat)
The question in Heller is pretty narrow, and I don't see them straying too far from that. I see individual rights, a finding that the DC ban violates that, and stunning silence on scrutiny, making machine guns, incorporation, and a whole host of other issues a question for later.
The question in Heller is pretty narrow, and I don't see them straying too far from that. I see individual rights, a finding that the DC ban violates that, and stunning silence on scrutiny, making machine guns, incorporation, and a whole host of other issues a question for later.
mek42
Member
First, could someone please provide a link for a good explanation of the sundry and various types of scrutiny? I'm close to having a PhD in Physical Chemistry and this still eludes full understanding for me.
Second, could someone provide an example of "reasonable restrictions" with respect to the 1st amendment, specifically speech? I briefly thought that the old yelling "Fire" in a crowded theatre would be such an example. However, now I wonder if the public nuisance / inciting riot laws are more akin to assault / murder laws than a reasonable restriction to the freedom of speech.
However, I freely admit that I do not think as obtusely as lawmakers seem to - which is, sadly, setting the bar pretty high.
Second, could someone provide an example of "reasonable restrictions" with respect to the 1st amendment, specifically speech? I briefly thought that the old yelling "Fire" in a crowded theatre would be such an example. However, now I wonder if the public nuisance / inciting riot laws are more akin to assault / murder laws than a reasonable restriction to the freedom of speech.
However, I freely admit that I do not think as obtusely as lawmakers seem to - which is, sadly, setting the bar pretty high.
Coyote Blue
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usmarine0352_2005
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That website was sort of confusing.
Could one of you in layman's terms explain Strict Scrutiny?
Winchester 73
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Ergosphere
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If they use the term "reasonable regulations" (or restrictions) without a great deal of elaboration, we lose. That will quickly turn into "rational basis."
(BTW, I largely agree with your assessment.)
Mike OTDP
Member
We'll get the elaboration...but not in this case. I think Heller will be like Brown vs Board of Education - the first of many battles.
Bartholomew Roberts
Member
A lot of you guys are quick to declare the battle a loss before the first shot has been fired. If the Supreme Court affirms the Court of Appeals and says "reasonable regulations" without further comment, all that means is that we still do not know what is reasonable but that D.C.'s ban is not.
Whether that ends up being closer to rational basis or strict scrutiny will depend on many more cases and justices not even appointed yet.
Ergosphere
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I don't agree, because if they do this, they'll likely do it because they don't want to change the status quo much. In my opinion this is intellectually dishonest: the Court should not look at existing laws to decide the extent of a right, but rather take the opposite approach. Once the meaning of the 2nd amendment is known, current laws should stand or fall as they may.
I think we will get incorporation -- not in Heller, but pretty soon thereafter. Assuming incorporation, and if the Court allows "reasonable restrictions," then we'll see court cases brought against unreasonable gun regulations in the half-dozen or so anti-gun states. These cases will be heard in district courts which are strongly anti-gun, and have historically interpreted "reasonable" to include many unreasonable things.
For example, I think it's quite likely that the 9th Circuit would find all of California's gun laws to be "reasonable restrictions," and I'm not at all confident that the Supreme Court would disagree... especially if they try to decide Heller so as to uphold existing federal laws.
If the 2nd amendment had been declared an individual right by the Court 50 years ago, these same laws would almost certainly not be considered "reasonable restrictions." But because we're very late to the game and the goal-posts moved so far in the last 40 years, we need a stronger standard.
I think this depends on which judges hear the case. There are a few in the 9th that are very much in favor of treating the 2nd as a broad fundamental right. One example would be Judge Alex Kozinski.
Kozinski wrote this in decent for the Silveira v. Lockyer case:
"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 re-election 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 free people get to make only once."
"The panel's labored effort to smother the Second Amendment by sheer body weight has all the grace of a sumo wrestler trying to kill a rattlesnake by sitting on it -- and is just as likely to succeed."
There are also others sitting on the bench in the 9th circuit as well. These include Eugene Volokh and Andrew Kleinfeld. They are currently not the majority but if the SCOTUS rules that the 2nd is an individual right I think this minority will have significant influence when future cases are heard in the 9th circuit.
legaleagle_45
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Strict Scrutiny: You have to have a VERY, VERY good reason for this law and the law has to be limited to addressing that VERY, VERY good reason and NOTHING else.
Heightened scrutiny: You have to have a pretty good reason and it better not have effects too far beyond that reason.
Rationale relationship: If you can articulate a reason that does not make us burst out in laughter while we are sitting on the bench, it is okey dokey.
P. Plainsman
Member
That's a concise and effective way to boil down the meaning of the different tiers of constitutional scrutiny, legaleagle45 -- well done.
Only thing I might add is that, particularly under strict scrutiny, the courts also tend to insist that any restriction of the right must leave "ample alternative channels" open for exercising the right. (So under a right to arms that receives heightened scrutiny, and especially if it's strict scrutiny, it wouldn't be open for a lower court to reason that ALL guns are inherently a terrible danger to public safety, so that they could all be banned, consistent with targeting that danger. Instead, any government regulation will have to leave a significant range of different types of guns available for private possession.)
Only thing I might add is that, particularly under strict scrutiny, the courts also tend to insist that any restriction of the right must leave "ample alternative channels" open for exercising the right. (So under a right to arms that receives heightened scrutiny, and especially if it's strict scrutiny, it wouldn't be open for a lower court to reason that ALL guns are inherently a terrible danger to public safety, so that they could all be banned, consistent with targeting that danger. Instead, any government regulation will have to leave a significant range of different types of guns available for private possession.)
P. Plainsman
Member
The thought of what Judge Kozinski, probably my favorite federal judge, might do with a (fingers crossed, knock on wood) pro-individual rights holding on 2A in Heller is one of the things that help me go to sleep at night with a smile.
It'd be awesome. Unless you're a gun control maven, in which case the prospect should cause you to start stocking up on blood pressure and anti-stroke medication.
Dismantler
Member
As I understand from my brother the lawyer, The Supremes will rule more or less narrowly on the DC case, and while The Second and RKBA is part of this...that will not be addressed any more than is needed to settle Heller. The question is The DC Ban and Heller, not the meaning of The Second. The meaning of The Second is important to the settling of Heller, but it is not the main case.
We need to consider Roe V. Wade here. That was ruled on in 1973, and it is still alive and well all over the U.S.A. Most states have laws pertaining to abortion, as well as guns. The gun control advocates may lose this one...but they will not give up any more than the abortion sides give up.
In NH, my home state, we have an amendment in our constitution giving RKBA to individuals, with emphasis on defense. Even if The Supremes ruled that The Second was a collective right, we in NH would still have our state's rights. Your state may also have RKBA in its constitution.
We need to consider Roe V. Wade here. That was ruled on in 1973, and it is still alive and well all over the U.S.A. Most states have laws pertaining to abortion, as well as guns. The gun control advocates may lose this one...but they will not give up any more than the abortion sides give up.
In NH, my home state, we have an amendment in our constitution giving RKBA to individuals, with emphasis on defense. Even if The Supremes ruled that The Second was a collective right, we in NH would still have our state's rights. Your state may also have RKBA in its constitution.
Winchester 73
member
Over 40 states do,TMK.
The affect on these 40+ states if Heller goes south?
No one really knows.
Or do they?
There is one basic flaw in this entire discussion. It looks to me that you all have assumed that the SCOTUS will rule that gun ownership is an individual right. I think they will rule completely against us and that by the time the election comes around in November, the 2nd Amendment will virtually cease to exist.
First, consider that this is not the first case filed with the Supreme Court in my memory; it's just the first one they agreed to hear. Why did they agree to hear this one? What makes it different? Easy. The other cases have been where gun restrictions were upheld by the appeals courts. The SCOTUS, by not taking those cases, affirmed their support for gun restrictions. In this case, on the other hand, the appeals court overturned a gun restriction and actually had the nerve to uphold the 2nd Amendment. If the SCOTUS supported that action or the 2nd Amendment, they would have simply refused to take up the case. *Edit* The Supreme Court generally takes cases only when they see a likelihood that they would overturn the case. */Edit*
Next, consider the questions during the oral arguments that so many believe point to the expected vote of various court members. These are Supreme Court justices. They didn't need oral arguments at all. Other than Ginsburg -who thinks the Constitution was an early blog article - have spent most of their lives studying the Constitution and have, long before this question ever came up, formed their opinions on the validity of the 2nd Amendment. Nothing presented during oral arguments will change those opinions.
I believe the purpose of the questions during oral arguments was simply to give the Justices and their clerks the foundations upon which they will base their rejection of the 2nd Amendment. Asking a hard question of supporters of the DC ban wasn't done because the Justices were challenging the idea of undoing the 2nd Amendment. Those questions were asked because they allow the DC ban supporters to provide the hard answers enabling the rejection of the 2nd Amendment as an individual right to withstand the scrutiny of future courts and legal historians.
First, consider that this is not the first case filed with the Supreme Court in my memory; it's just the first one they agreed to hear. Why did they agree to hear this one? What makes it different? Easy. The other cases have been where gun restrictions were upheld by the appeals courts. The SCOTUS, by not taking those cases, affirmed their support for gun restrictions. In this case, on the other hand, the appeals court overturned a gun restriction and actually had the nerve to uphold the 2nd Amendment. If the SCOTUS supported that action or the 2nd Amendment, they would have simply refused to take up the case. *Edit* The Supreme Court generally takes cases only when they see a likelihood that they would overturn the case. */Edit*
Next, consider the questions during the oral arguments that so many believe point to the expected vote of various court members. These are Supreme Court justices. They didn't need oral arguments at all. Other than Ginsburg -who thinks the Constitution was an early blog article - have spent most of their lives studying the Constitution and have, long before this question ever came up, formed their opinions on the validity of the 2nd Amendment. Nothing presented during oral arguments will change those opinions.
I believe the purpose of the questions during oral arguments was simply to give the Justices and their clerks the foundations upon which they will base their rejection of the 2nd Amendment. Asking a hard question of supporters of the DC ban wasn't done because the Justices were challenging the idea of undoing the 2nd Amendment. Those questions were asked because they allow the DC ban supporters to provide the hard answers enabling the rejection of the 2nd Amendment as an individual right to withstand the scrutiny of future courts and legal historians.
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ctdonath
Member
They took this case because
- it's the first "clean" case (others were screwed up by red herrings or highly undesirable defendants/outcomes)
- it's a rare opportunity to make a definitive ruling on a BoR issue
- the case is unavoidable (split in circuit court views forces an "equal protection" issue)
- a significant jurisdiction brought the case, not a mere peon
Oral arguments are, indeed, largely pointless. That's why J. Thomas effectively does not participate. It's the only public proceeding of the Court, a chance to clear up a few small but notable points, the only opportunity to ask "do you really mean this" questions, a little facetime for those involved, a chance to berate those who submit stupid ideas, and the only moment in the spotlight the judges get (everything else is secret).
A collective right opinion, even by the minority vote, will be hard to support - and they know the right will be self-enforcing.
- it's the first "clean" case (others were screwed up by red herrings or highly undesirable defendants/outcomes)
- it's a rare opportunity to make a definitive ruling on a BoR issue
- the case is unavoidable (split in circuit court views forces an "equal protection" issue)
- a significant jurisdiction brought the case, not a mere peon
Oral arguments are, indeed, largely pointless. That's why J. Thomas effectively does not participate. It's the only public proceeding of the Court, a chance to clear up a few small but notable points, the only opportunity to ask "do you really mean this" questions, a little facetime for those involved, a chance to berate those who submit stupid ideas, and the only moment in the spotlight the judges get (everything else is secret).
A collective right opinion, even by the minority vote, will be hard to support - and they know the right will be self-enforcing.
Nah. When they come for them, you'll hand yours over just like I will; just like tens of thousands did in New Orleans. They've had their test and not one gun was found attached to cold, dead fingers.
And the collective right, versus the individual right, opinion won't be the minority vote; it will be the majority.
I hope I am wrong; I'd love to come back and be all embarassed for being a doom and gloom kind of guy... We'll see what happens.
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