US v. Stewart to be considered tomorrow!

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If they deny cert., then the 9th Circuit decision stands (that homemade MGs are OK). So if they want to uphold the unlimited scope of federal power, they have to take it up and either overturn the case or remand it for reconsideration in view of their Raich decision. It would be interesting if they remanded and the 9th Cir. stood their ground.
 
I'll dance if they deny cert, but smart money says they'll remand it for reconsideration as Henry Bowman describes.
 
Well there is no way the Stewart decision can stand up to SCOTUS review if Raich defines what constitutes "interstate commerce".

It would be interesting if they remanded and the 9th Cir. stood their ground.
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Yes. I think that is the best case scenario now.
 
I put up a post on this on my blog (read it here if you're interested). I think SCOTUS is likely to remand the case.

The gist of my hypothesis for a possible strategy for Mr Stewart was this:

Case remanded. Interstate commerce is now a failing argument, so don't use it. Make the Second Amendment argument, under the test established in Miller-that the weapons are suitable for military/militia service. The argument would fail with the 9th Circuit, just like Silviera, but would allow the introduction of evidence of the usefulness of machineguns for military service, which didn't happen in Miller.

The appeal could then be made to SCOTUS based purely on 2A grounds. I think it would have a better chance of getting cert than Silviera, because this is a challenge to federal law, whereas Silviera was a challenge to CA state law, thus forcing the Supremes to deal with the incorporation of the 2A under the 14th, which I don't think they want to do.
 
Living in the 5th Circuit, I'd actually prefer that SCOTUS not touch the 2A right now given their issues. I know that's selfish though. :D
 
The appeal could then be made to SCOTUS based purely on 2A grounds. I think it would have a better chance of getting cert than Silviera, because this is a challenge to federal law,
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They didn't take up Emerson. I don't think that they will touch a 2A case right now. Maybe after we get 2 or 3 more Justice Thomases. ;)
 
The name I've heard mentioned as the most likely candidate to take Rehnquist's slot (not necessarily as Chief, though) is someone named McConnell. He's apparently written a hell of a lot of scholarly type stuff, and is widely respected enough that even though he's conservative, there's not much the Dems could say about him except the usual unsubstantiated scream of "Extremist!" I don't know anything of his stance on 2A.

The 9th Circuit denied the part of Stewart's appeal based on RKBA, citing Silviera. To the best of my knowledge, Stewart did not appeal that to SCOTUS-the appeal is completely by the DOJ, appealing the interstate commerce ruling by the 9th Circuit.
 
Langenator: The question is, is he an "extremist" like Scalia or an "extremist" like Clarence Thomas? I wouldn't know, but it seems to my extremely uneducated mind that the two demonstrates two different types of conservatism.
 
Remember this case still has months to play out. The conference tomorrow is only on whether or not to grant cert. If the USSC grants cert, expect oral arguments to be scheduled for sometime this fall, with a ruling next year.

If the USSC doesn't grant cert, it could simply refuse to hear the case and leave the Ninth Circuit's ruling intact, or it could remand the case back to the Ninth for a new ruling.

The Stewart case does differ from Raich in fundamental ways, and Scalia's opinion provides some insight there. For instance, there is a legal, though highly regulated, interstate market for machine guns where none exists for mj. Also, machine guns aren't fungible like mj or even wheat; it's possible to verify (via the NFA registry) whether a particular machine gun is legal or not while such verification on a "dime bag" of mj can't easily be done. Finally, the Gun Free School Zones case (Lopez) tracks more closely to Stewart than even the Raich case, and that one went our way.
 
I agree on that Bubbles. It may be wishful thinking, but the various 'reasonings' used in Raich to overturn the 9th in that case are not really present here. There is some hope, but I am guessing they will deny or remand.
 
You would be right. If cert is denied, expect the state of California to quickly pass ban on all NFA items. It would pass so fast that we would hear the sonic boom here in Ohio.
 
From the NRA-ILA web site on Kali firearm laws:

NATIONAL FIREARMS ACT FIREARMS

A machine gun is defined as any firearm which shoots, or is designed to shoot, automatically, more than one shot, without manual reloading, by single function of the trigger. The term also includes any conversion part, frame or receiver of a machine gun, or any firearm deemed as such by the federal government. Upon a showing of good cause, a permit for possession and/or transportation may be issued by the Department of Justice.

It is unlawful to possess a destructive device, including tracer or incendiary ammunition or any firearm larger than .60 caliber which fires fixed ammunition, or any fixed ammunition for such firearm. Excluded are shotguns and shotgun ammunition.

NOTE: It has been reported that the Department of Justice refuses to grant such permits.
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So, it looks like a de-facto ban is already in place.
 
If Bush gets his way, we will have more Thomases on the court. Janice Rogers Brown is cut from the same cloth as Thomas, and she is IMO as eloquent as Scalia. Brown has said many many times that she views the New Deal precedents as illigitimate and that she wishes to undo the collectivist dealings in this country.

I am confident that as long as we keep sending presidents like bush to the white house we will continue to replace existing justices with Thomases. The problem is that Kennedy, Souter, Ginsburg and Breyer are all relatively young and healthy. Stevens and Rehnquist are both getting old, but only Rehnquist is showing obvious signs of wear. Replacing Stephens with an originalist would solidly tilt the court in an anti-Wickard fashion. It would be a choice between 5-4 and 6-3 majorities in our favor.

Then again, with Scalia so eager to advance pet causes on the back of Wickard, it is hard to imagine us making progress anytime in the next 15 years, even if things go well.

Our best hope is to keep getting conservative issue federalism cases before the supreme court and possibly replace one of the anti-federalism judges with another originalist- this might work.
 
Ya'll don't really think that the black-robbed jackarses on the Supreme Court are really going to rule in a manner that undermines the govt's power do you? :scrutiny:
They rubber stamped their approval for the govt's propaganda regarding marijuana, they'll do likewise on Stewart. The hearing is only for the public consumption...............nothing more.
 
Brown has said many many times that she views the New Deal precedents as illigitimate and that she wishes to undo the collectivist dealings in this country.
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THIS is why the Democrats have been screaming about her being an "extremist". Do not be fooled, this more than anything else is the holy grail of a party that has swung wildly left since the 50s and they will not let it go without a fierce fight.

When there is no obvious reason for the Democrats screaming "extremist" about a judicial nominee, look closer and you will find this same type of judge.
Ya'll don't really think that the black-robbed jackarses on the Supreme Court are really going to rule in a manner that undermines the govt's power do you?
They rubber stamped their approval for the govt's propaganda regarding marijuana, they'll do likewise on Stewart. The hearing is only for the public consumption...............nothing more.
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It sometimes looks very bleak for federalism these days and indeed it will take decades of concerted effort on our part against an ignorant public to undo the damage that has been done to it by "living document" SC appointees. But if you look at history, it took them decades to get to this point also. There are still true believers in the constitution out there, and some of them do work in government and are potential choices for the bench. While I am disgusted with the way the 7 Republicans caved on the judicial nominations deal, I am hoping that it will backfire in the case of Brown such that when she is nominated for the SC, the Democrats will find themselves having to explain why she was suitably qualified for the district bench, but not the SC.
 
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