Supreme Courts Heller decision

[Daewoo]

Well, it looks like it is probably coming tomorrow. I figured I would see if anybody wants to try to read the tea leaves so to speak.

Here is my best guess as to what will happen:

First, I think anybody who has reviewed the oral arguments will agree that they not only did the "collective rights" argument get beat, it got ROUTED. There has been a lot of conjecture that this is going to be a strict 5/4 decision. That seems unlikely. The 5 are basically the 4 you would expect and Kennedy who was surprisingly adamant in his support of the individual right view. Stevens and Ginsburg also had a lot to say and seemed to favor NOT striking down the ban, but NEITHER of them gave any indication at all that they thought it should stand based on the idea that the second amendment provides a collective right. Stevens and Ginsburg both referred repeatedly to the second as an individual right, but both voiced the opinion that even as an individual right the ban may be permissible as a "general welfare" type measure.

I think the most likely outcome will be at least 7 justices finding an individual right, but only 5 of them finding that the DC ban violates this right.

Originally I thought that the attorney for DC did a poor job of articulating his argument. For example he argued briefly that the Miller decision set a "collective rights" precedent, but did not argue it completely. He also tried the "bear arms is a military term" argument, but did not argue it very well. Both argument are bunk and can be EASILY be turned on their ear, but frankly I have seen them argued better by high school kids online than this guy did in front of the court. Then I spoke with one of the legal experts I hired a while back to try to figure out how this was likely to go because I had a substantial monetary interest in the outcome. He was actually IN the court and he said I was being to hard on the guy and that he did not argue those points forcefully because even the more liberal members of the court were visibly hostile to the argument he was making, so he had to adjust his strategy mid stream. Apparently you can get away with willfully mis citing a supreme court decision in a lower court, but the supreme court gets upset if you try to do it there.

Overall, I think that the individual right ruling is a sure bet. The big question is what the scope of that right will be. There has been some speculation that the court is basically going to punt because Roberts said something to the effect of "I dont see why we need to establish some kind of test or all encompassing standard" but he went on to say "Why couldn't we find that a right exists, establish the scope of the right, and then look at laws from that period and see how current laws line up against those" (paraphrasing). I don't personally see this as an indication that he is saying the court is going to punt here. This is actually in line with his philosophy when it comes to how the court should act. He has always opposed "bright line" type tests.

There has also been a lot of conjecture that Scalia is going to be the author of the opinion since he is the only justice that has not authored one from the march sitting. I do not know if that is correct or not. Personally I would think that Roberts would want to author it since this really is a groundbreaking case, but I could be wrong...that is just straight conjecture.

In other related news, Montana is apparently threatening to secede from the union if the court does not come up with an opinion they like. They are saying that a collective rights opinion would invalidate the contract they agreed to when they gained their statehood.

http://www.freerepublic.com/focus/f-news/1973142/posts

Apparently this is not just the right wing nutjobs living in shacks hidden in the mountains, this is their secretary of state and most of their state legislature...thought the nut jobs in shacks seem to support it as well.

I have also been making the rounds of the nutjobs in shacks webpages and a disturbingly large number of them seem bound and determined to declare war on the US government and fight a full scale insurgent action if they don't like the ruling.

[Atticus]

So who are these "nutjobs in shacks?" They got a 527 or something?

[Daewoo]

So who are these "nutjobs in shacks?" They got a 527 or something?

I don't know, but they seem to have a LOT of guns and have a lot of wet dreams about overthrowing the government. I am not sure how seriously to take them, though, because they seem very similar to the nutjobs in shacks in Idaho, and we all saw what all their tough talk was worth back in 1992 when federal agents besieged one of their own and killed his wife and 14 yr old son while all the tough talking, shack living nutjobs stood around with a bunch of protest signs looking eerily like a bunch of hippie war protesters.

[Daewoo]

No heller decision today. I suppose that means tomorrow at 10:00 am since that is the last day of the session.

[steveksux]

I wouldn't be surprised to see an individual right be upheld. They don't often upset the applecart in a big sweeping way though, so if the DC ban goes down, I expect more court challenges will berequired to free Chicago and New York. I expect a narrow ruling only affecting DC.

Randy

[Atticus]

I wouldn't be surprised to see an individual right be upheld. They don't often upset the applecart in a big sweeping way though, so if the DC ban goes down, I expect more court challenges will berequired to free Chicago and New York. I expect a narrow ruling only affecting DC.

RandyMaybe, but a narrow ruling will only INCREASE the number of new cases being brought, to try widening the ruling on the basis of this decision.

[Daewoo]

Maybe, but a narrow ruling will only INCREASE the number of new cases being brought, to try widening the ruling on the basis of this decision.

Of course. I am signed onto such a case myself. Nobody expects the heller case to do anything but declare an individual right, strike down the DC gun ban, and possibly declare the scope of that right (fundamental, etc...).

Any other regulations that are unconstitutional will have to be struck down in court. An individual rights ruling give pro gunner ammunition to challenge those laws. A ruling that declares an individual right and declares that right to be fundamental provides a LOT of ammunition.

[NiteGuy]

Of course. I am signed onto such a case myself. Nobody expects the heller case to do anything but declare an individual right, strike down the DC gun ban, and possibly declare the scope of that right (fundamental, etc...).

Any other regulations that are unconstitutional will have to be struck down in court. An individual rights ruling give pro gunner ammunition to challenge those laws. A ruling that declares an individual right and declares that right to be fundamental provides a LOT of ammunition.

I don't know, Daewoo. While I would love for that to be the case, DC is an extraordinary circumstance.

I could see for example, where they make a clear case for lifting the ban in DC, while while asserting that states have the right to regulate, and allow cities within their borders to regulate arms in any way they see fit.

It would be a classic "states rights" over federal rights argument, and the court getting away with it because DC is a federal protectorate, and not part of any state, per se.

Now, that's really splitting hairs, and it would still give gun-rights folks a strong argument, I think. But if the Supremes do make the ruling this granular, then it's certainly not going to be a slam dunk for the pro-gun groups.

[Daewoo]

I don't know, Daewoo. While I would love for that to be the case, DC is an extraordinary circumstance.

I could see for example, where they make a clear case for lifting the ban in DC, while while asserting that states have the right to regulate, and allow cities within their borders to regulate arms in any way they see fit.

It would be a classic "states rights" over federal rights argument, and the court getting away with it because DC is a federal protectorate, and not part of any state, per se.

Now, that's really splitting hairs, and it would still give gun-rights folks a strong argument, I think. But if the Supremes do make the ruling this granular, then it's certainly not going to be a slam dunk for the pro-gun groups.

What you are poking at here are questions of incorporation. That IS a question that the courts are eventually going to have to answer. There seem to be a couple of different views on how that is likely to work out. Some argue that the incorporation question will end up in the supreme court and there are no assurances as to how it will turn out. Others do not seem to think it will get there since precedent re: incorporation is so incredibly clear. They feel that it will be handled in the lower courts and incorporated easily. Personally I do not have an opinion on which way this will go until we see what happens as far as how many justices sign on the individual right, regardless of their opinion regarding the scope of that right.

The case I have signed on to does not have incorporation problems or questions. We are going to be challenging the 1986 production ban on machine guns. To clarify for those who do not follow such things, machine guns are RIGHT NOW legal to own...there is jsut some paperwork involved and a $200 tax you have to pay. In order to manufacture a new machine gun for civilian ownership you have to file a form II with the ATF. The ATF has to approve your application (after performing a background check). What the '86 law did was prohibit the ATF from using any federal money to review and approve new Form IIs. They did it this way (literally) because the sponsors of the bill did not believe it was constitutional and they were trying to do an end run around the bill of rights.

How the case is argued will depend on how the heller decision is written, but it would be EXTREMELY difficult to find an individual right and then uphold the '86 ban since the historical evidence OVERWHELMINGLY supports the concept that the RKBA includes "weapons in ordinary military usage" which today means selective fire weapons. There is simply no evidence to the contrary. Even a "general welfare" type argument is unlikely to gain any traction since we are not opposing the background check or registration aspects. We are still sitting the fence as to whether or not we should oppose the $200 tax (and probably will not since we know of another well funded group that is opposing the tax and the CLEO sign off). Since there are no state laws involved, there are no states rights issues.

I continue to watch the anti gunners as we wait for the decision and still think they are grasping at straws. Their wishful thinking about Roberts statement about looking at current laws and comparing them to laws that existed when the country was young are getting downright funny. Roberts specifically pointed out that "you cant take a gun to the market" was a law at the time (in Pennsylvania) and a lot of the antis I correspond with regularly seem sure that they can use that line of reasoning to either get a federal law prohibiting concealed carry passed, or shut down all gun stores since they are a market :)

First, the antis have already lost the concealed carry issue. A decade ago only a few states allowed concealed carry. Today nearly all of them do, and over half of them are "shall issue" states. One lady I was chatting with online the other day said that if her state ever passed concealed carry she was moving because she was sure it would lead to shootouts in the street. She was SHOCKED to learn that her state had passed concealed carry over 5 years ago and that over a million of her fellow citizens had licenses.

Clinging desperately to the idea that comparing todays laws to those that were around at the founding of the nation is going to give the antis anything they want at all is pretty foolish. We are talking about a time when they LITERALLY put people in jail for failing to own and maintain a suitable firearm of current military design. We are talking about laws passed by people who literally went to war because the government tried to seize their privately owned CANNONS and ARTILLERY pieces. They protested taxes and a whole range of other things, but by god when the british came for their personally owned heavy weapons, they fought. I just don't see that line of reasoning going well for the antis.