US v. Stewart to be considered tomorrow!

[dolanp]

Suppose for the sake of discussion that the 9th held its previous ruling. Could the gov't then repeal once more or would that be the end of it in the 9th circuit jurisdiction?

 

[publius]

Zero chance of that, dolan, but if the 9th did reach the same conclusion, even in light of Raich, it probably would be appealed once again to the Supremes who would probably not bother sending it back this time. They'd just overturn it.

 

[Kharn]

Publius:
So the SC said the 9th is wrong and to write a new opinion, based on Raich, that says 922(o) is ok?

But what about the 9th (or another defendant/court) using the US v. Rock Island/US v. Dalton approach of saying its unconstitutional since it doesnt generate revenune and the NFA has been held by the courts to be a tax statue (Sonzinsky v US)?

Kharn

 

[Langenator]

Maybe someone more familiar with court operations can correct me here, but what's to stop Mr Stewart from arguing that 922(o) is unconstitutional by the test established in US v Miller? It shouldn't be hard to show the suitability for military/militia use of machineguns.

The 9th would deny him this argument (they already have said that the 2A does not guard an individual right in Silveira, and cited thier Silviera decision in denying Stewart's 2A claims the first time, on his appeal of his conviction for possession of firearms by a felon.

When the 9th upholds his conviction on the machineguns (which they will), Stewart can then make an appeal to SCOTUS based solely on the Second Amendment. And unlike in Silveira, there wouldn't be any 14th Amendment issues to clutter things up, since 922(o) is a federal statute.

This would be a new appeal, since the one that was just remanded today was an appeal by the government.

Looking at the odds, I'd put Thomas on our side for sure, with Scalia (based on his reverence for precendent) and Rehnquist's replacement likely on our side, with the 4 big libs (Ginsburg, Stevens, Breyer, and Souter) on the bad side. That would mean we'd need to get O'Connor and Kennedy. Just one for cert, both for the win.

 

[publius]

Kharn,

I think your idea would not work for the same reason that Raich cannot now go back and challenge the ruling by saying that the Marihuana Tax Act was a revenue act. Yes, it was, but the Controlled Substances Act is not. Aren't living documents wonderful?

 

[tyme]

Likely screwed now. Raich aside, just sending it back for review will likely get different judges who will most likely not be so kind to MGs. That Stewart succeeded there before was a fluke where 2 conservatives, out of a herd of liberals, were put on the case. Stewart's done and gone.

It is possible that the 9th circuit will say, "we don't like machineguns, but there'll be snow in San Diego before we apply Raich to anything." In which case the SCOTUS will probably take the case again and smack the 9th circuit around some more, the feds will continue with their spot-enforcement of immoral and unconstitutional drug laws, and the locals will continue giving them the finger.