Any predictions on the SC decision?

[Indy Lurker]

MR. DELLINGER had one thing right.


MR. DELLINGER: “One of the troublesome aspects of viewing this as a right of personal use is that that is the kind of fundamental liberty interest that would create a real potential for disruption. Once you unmoor it from -- or untether it from its connection to the protection of the State militia, you have the kind of right that could easily be restrictions on State and local governments ...”


IMHO it seemed clear that RKBA will be seen as an individual right.

The question for me is whether or not gun laws will be reviewed with strict scrutiny as with freedom of speech laws.

It seems clear Roberts Scalia want strict scrutiny:

CHIEF JUSTICE ROBERTS: So if you have a law that prohibits the possession of books, it's all right if you allow the possession of newspapers?

JUSTICE SCALIA: The freedom of speech that was referred to in the Constitution was also "the" freedom of speech, which referred to the pre-existing freedom of speech. And there were indeed some restrictions on that such as libel that you were not allowed to do, and yet we've never held that simply because it was pre-existing and that there were some regulations upon it, that we would not use strict scrutiny. We certainly apply it to freedom of speech, don't we?

Alito doesn't mention strict scrutiny but says:

JUSTICE ALITO: -- “...how could the District code provision survive under any standard of review where they totally ban the possession of the type of weapon that's most commonly used for self-defense...” (referring to handguns)

Even Ginsburg seems to in favor of strict scrutiny.

JUSTICE GINSBURG: Well, it is. It's just like the First Amendment -- Second Amendment has exceptions, but strict scrutiny applies. It says strict scrutiny applies here too.


Kennedy was interested in how states with RKBA in their constitutions were able to restrict Machine Guns while applying strict scrutiny

JUSTICE GINSBURG: But wasn't there a leeway for some weapon prohibition? Let me ask you, in relation to the States that do have guarantees of the right to possess a weapon at home: Do some of those States say there are certain kinds of guns that you can't have, like machine guns?
MR. DELLINGER: Yes. And here what the opinion below would do instead -- would -- it's hard to see on the opinion below why machine guns or armor-piercing bullets or other dangerous weapons wouldn't be categorically protected --

JUSTICE BREYER: Could you go back to the --

MR. DELLINGER: -- in those States --

JUSTICE KENNEDY: If I could just have one follow-on on Justice Ginsburg real quick. Do those States -- Justice Ginsburg asked -- - that distinguish among weapons, State constitutional provisions do not do so?

MR. DELLINGER: No, it's not in the text of the State constitutional provision; it's in their --
JUSTICE GINSBURG: It's in interpretation.

MR. DELLINGER: -- reasonable application.



Thomas is a big question mark, but tends to follow Scaila.

The other three were in favor of DC.

That would give 5 possibly 6 for a majority opinion.


I predict the second amendment will be given protection similar to the first amendment, with laws against machine guns being seen as a reasonable restriction.

I see handgun bans and assault weapon bans being killed off, with the line being drawn at semi-auto vs. full auto.


I don't know what to make of concealed carry laws. On the one hand, I can see CC laws falling under "reasonable restrictions", on the other hand, it would seem complicated to recognize a right for defense in the home, but then restrict that right out in public.

What do you think?

[MaryCeleste]

1. I think the SC will uphold the lower courts, the question is and what reasoning they will use

which determines how broad it will be.

[beevul]

2. Mr. Dellinger aparently is not familiar with...

Mr. Dellinger aparently is not familiar with, or has one of those "alternate reality" interpretations...of the bill of rights.

MR. DELLINGER: “One of the troublesome aspects of viewing this as a right of personal use is that that is the kind of fundamental liberty interest that would create a real potential for disruption. Once you unmoor it from -- or untether it from its connection to the protection of the State militia, you have the kind of right that could easily be restrictions on State and local governments ...”

Gee, Mr. Dellinger, it could be "the kind of right that could easily be restrictions on State and local governments"?



The First 10 Amendments to the
Constitution as Ratified by the States
December 15, 1791
Preamble
Congress OF THE United States
begun and held at the City of New York, on Wednesday
the Fourth of March, one thousand seven hundred and eighty nine.

THE Conventions of a number of the States having at the time of their adopting the Constitution, expressed a desire, in order to prevent misconstruction or abuse of its powers, that further declaratory and restrictive clauses should be added : And as extending the ground of public confidence in the Government, will best insure the beneficent ends of its institution

RESOLVED by the Senate and House of Representatives of the United States of America, in Congress assembled, two thirds of both Houses concurring, that the following Articles be proposed to the Legislatures of the several States, as Amendments to the Constitution of the United States, all or any of which Articles, when ratified by three fourths of the said Legislatures, to be valid to all intents and purposes, as part of the said Constitution; viz.:

ARTICLES in addition to, and Amendment of the Constitution of the United States of America, proposed by Congress, and ratified by the Legislatures of the several States, pursuant to the fifth Article of the original Constitution.

Amendment I
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

Amendment II
A well regulated Militia being necessary to the security of a free State, the right of the people to keep and bear Arms shall not be infringed.


So his argument in a nutshell, is that if the court does not hold to the "militia" reading of the amendment, that it might be read as a restriction on the power of government which the bill of rights explicitly states IS its purpose?

Where do people like Dellinger, that can argue such a completely dishonest and clearly contrary argument come from?


My prediction, is that if there is any honesty and integrity among the justices, they will rule that the second amendment is a restriction...a limit...on the power of government.


I don't believe that degree of honesty or integrity exist among them though, so I expect a lesser wishy washy ruling.

[Boomer 50]

3. If SCOTUS strikes down the ban then the MG ban is dead.

If DC's handgun ban dies, so does the MG ban. Why? First of all, read the two laws. The DC ban language was the basis for the MG ban. At the time, it was all that Hughes had that he correctly thought would pass muster. So, he adapted the DC ban language for the 1986 ban. It stands to reason that on this alone, should the DC handgun ban not pass muster, neither shall the MG ban.

Second, as was stated by SG Clement, machine guns fall more comfortably under the Miller edict than handguns do. If Miller is left alone or strengthened and clarified, the MG ban will be subject to elimination.

Third, there have been only two criminal uses of a legally and privately owned machinegun in the US since 1934. Both incidents involved police officers in domestic disputes with personally owned firearms. There is no legal justification to allow the ban to remain in place. No matter what scrutiny is adapted, there simply is no reason for the ban to remain in place.

Fourth, there are a significant number of people out there waiting for SCOTUS to rule on Heller. Should the MG ban not be struck down with this decision, there will be a concerted class action suit against the US Government by tens of thousands, maybe hundreds of thousands of people who wish to form 1 a machine gun. These are people in nearly every state of the Union and who have been preparing for something like this.

Last, SCOTUS granted cert for this case to fix a major problem in our society. A fundamental right has been turned into a political issue when it should never have been. Trust me, before it's over, anti-gunners are going to be compared to cross burning, bed sheet wearing, racists. SCOTUS has plenty of reason to incorporate the 2nd. I'll be surprised if they don't take this as far as they possibly can. You'll see minor language in the decision that will slap the Government down hard. If you look at the lower court ruling on Heller, you'll note that they applied their decision to ALL gun bans. Should SCOTUS simply uphold this language or enhance it, gun bans based on function, caliber, size, capacity, egonomic characteristics, etc. will be correctly unConstitutional.

The anti's are going to lose big on this one. It doesn't help their case that Fenty announced his determination to circumvent the ruling from SCOTUS. Do you really think that SCOTUS is going to look lightly upon a peon like Fenty openly showing contempt to the highest court in the land? He basically asked them to rule very broadly and I hope they do.

My prediction is that SCOTUS will rule the 2nd not only an individual right, but a civil right. They will incorporate, strike down the ban, rule for carry, mandate that the registration system be "shall issue" and word the decision so as to prevent any circumventing of the ruling by DC.

[MaryCeleste]

4. Its clear that the anti gunner and anti choice gangs sure think the same way

and I am not the only one pointing this out. Anything they can find they will use to throw up as an impediment.

All that said, I expect a narrower view

[fightthegoodfightnow]

14. It will be a Much Narrower Ruling

It's clear that while we agree on that, your characterization of the 'anti gunner and anti choice gangs sure think the same way' is nothing more than mental masturbation on your part. Feels good but it's nothing more than a good jerk off.

[beevul]

5. I'm not so sure...

"A fundamental right has been turned into a political issue when it should never have been."


I believe that the republicans on the court recognise what a weapon the gun issue is against Democrats, and I'm not so sure they wont issue a ruling that keeps that intact.


Its true that it has been turned into a political issue, but I'm convinced that there are those on both sides that would like to keep it that way, for separate reasons of thier own.


Who gains if they rule it broadly an individual right?

Democrats. Gun owners.



Who loses?

The nra. Republicans. The brady bunch. The federal government.


Sure, it could be spun into saying that republicans "are responsible" for a broad individual rights ruling should one be issued, but the way the gun issue has been used to pummel Democrats has been the gift thats kept on giving...I'm not saying that this is going to be a deciding factor, but if I were a partisan republican SCOTUS justice and was considering the political ramifications of a decision, I'd be well aware that while a broad individual rights ruling would be presentable and positive for the party in the present, that it would also hurt the party in the long run.

[Hunter Muir]

6. The Supreme Court will reverse.

The problem with the Second Amendment is that the proscription against infringement does not preclude regulation; which, as made clear by the Supreme Court’s decision in United States v. Miller, is not prohibited by the provisions of the Second Amendment. See United States v. Miller, 307 U.S. 174 (1939). Prior to Miller, judicial interpretations held that the Second Amendment was a limitation on the power of Congress over states’ (not individual) rights. See United States v. Cruikshank, 92 U.S. 542, 553 (1875). However, the Miller decision opened the door to federal regulation of firearms as well, holding that objections that federal laws (i.e., National Fire Arms Act and the Harrison Narcotic Act) “usurps police power reserved to the States is plainly untenable.” Miller, p. 174. The Supreme Court is not about to overturn Miller, which is the controlling precedent; and what we will see is a decision governing issues that Miller did not address directly. In this regard, whether the Supreme Court will rule that the Second Amendment protects an individual or a collective right is uncertain; but what is certain is that the court will not rule that an individual has an unfettered right to own a gun; which, consistent with the court’s prior decision in Miller, is subject to regulation by law. Indeed, those that want their rights protected under the Second Amendment may soon find themselves the more “well regulated.”

[Indy Lurker]

7. I think Miller is in danger

Kennedy seems to dislike Miller, and he's supposed to be the moderate of the court.


JUSTICE KENNEDY: I agree that Miller is consistent with what you've just said, but it seems to me Miller, which kind of ends abruptly as an opinion writing anyway, is just insufficient to subscribe -- to describe the interests that must have been foremost in the framers' minds when they were concerned about guns being taken away from the people who needed them for their defense.


*******************

JUSTICE KENNEDY: Well, you are being faithful to Miller. I suggest that Miller may be deficient.

[Hunter Muir]

8. I think what we shall see is an “originalist” interpretation.

The appeal does not raise a justiciable challenge to Miller. To the contrary, the D.C. Court of Appeals went out of its way to reconcile its opinion with Miller. The ruling of the Supreme Court in Miller addressed the Second Amendment from a textual and an historical perspective tracing the framers’ original intent from the English common law through the adoption of the Constitution by the several states; and, in this, the decision is dispositive.

The relevancy of whether the Second Amendment provides for an “individual” or a “collective” right, which was dismissed by the Eighth Circuit Court of Appeals in United States v. Hale, has caused a change of position by several leading legal commentators, including Laurence Tribe, whose treatise on constitutional law was cited by the majority in Parker. In the most recent edition of his work, Professor Tribe now asserts that the Second Amendment protects an important right that should not be dismissed as wholly irrelevant and that “the federal government may not disarm individuals without some unusually strong justification.” See Laurence Tribe, American Constitutional Law, Third Ed., Vol. 1 (2000). Still, the limits and scope of such a right are somewhat nebulous and difficult to define whatever judicial test may be applied, which is the real issue.

The important point is that the Second Amendment does not bar the regulation of the possession, sale or transportation of firearms. The Second Amendment does not grant any rights, either individual or collective. The right to have a gun is defined by law, which is to say that such right is not unlimited, much less absolute; and whatever rights may be protected under the Second Amendment, they are nevertheless subject to law.

[fightthegoodfightnow]

15. Welcome to the Gun World of DU

How refreshing to read someone who actually has an intellectual capacity to engage readers.

Thank you for your posts and observations.

[selador]

19. lol "grants"

no amendment GRANTS rights

"The Second Amendment does not grant any rights, either individual or collective"

[L1A1Rocker]

12. And he is correct that Miller may be deficient.

Mostly because that was a VERY bad case to have herd. It started out good but then Miller died in jail and his lawyer never showed up to argue before SCOTUS. As a result you only had one side of the argument to rule on.


I'm very surprised that we got what we did from Miller. It COULD have been VERY bad for gun rights. Miller does need to be revisited and fixed. The whole argument was that the short barreled shotgun had no military purpose, but it in fact does!

[S_B_Jackson]

13. [i]Miller[/i] is indeed deficient...

but Miller did not die in jail, nor did his lawyer, "fail to show up"...

Miller and Layton were released from custody when Judge Heartsill Ragon upheld a pre-trial demurrer from the defense that the NFA violated their second amendment rights. The US goverment appealed the decision to the USSC...Miller and Layton were no longer represented...in 1939, the USSC reviewing only the briefs filed by the Attorney' General's office and reviewing the meager transcript record of Judge Ragon's court issued the a simple reverse and remand, and ordering the court to conduct a trial before striking down an act of Congress on constitutional grounds.

No retrial was ever conducted, however, as Jack Miller while free had been, ironically, shot and killed. And Layton, entered into a plea agreement for a 5 year probated sentence from which he was released in 1944.

I do agree with you that Miller is a mighty weak hook for gun control advocates to hang their hat, so to speak. Much of the text which anti-gun activists are so enamoured of is in fact an in dicta list of many issues of fact which should be determined in an adversarial proceeding, both sides laying out arguments and presenting evidence, in order that the court could make an informed decision. When it says, "Certainly it is not within judicial notice that this weapon is any part of the ordinary military equipment or that its use could contribute to the common defense." They were absolutely correct....the court couldn't "know because no evidence had been presented as yet!

[L1A1Rocker]

11. But if you read

the papers and writings of the time (Federalist papers come to mind) you will understand what the intent of the 2A is. Basically the unorganized militia is supposed to have keep and be ready to muster with typical "load-out" of todays foot soldier. It's limit is to have the militia armed with everything but arms that must be transported by carriage.

That in modern language means that citizens should be able to keep and use anything that would be considered to be "man portable". That of course takes away the crazy hyperbole that "antis" like to through out regarding weapons of mass destruction.

The 2A is really not that complicated. The citizens are supposed to keep, have, and use the same weapons that the current military foot soldiers have. It's that simple.

[L1A1Rocker]

10. I disagree a little here.

A broad ruling will no more endanger the NRA as broad rulings has endangered the ACLU. In fact, I believe that a broad ruling will give the NRA a new purpose. A broad ruling will be the beginning of a whole new level of litigation to challenge unconstitutional gun laws across the country at all levels.

As I've said before, a big win at SCOTUS will not be the end of it, it will be just the start of it. There will be lots for the NRA and other gun rights organizations to do. It's just that they will be on the offensive rather than on the defensive.

[L1A1Rocker]

9. I'm hoping your right but not that confident.

The judges during oral arguments seemd to think that a MG ban was reasonable. At least that is the impression I got from the transcript.

[Hunter Muir]

16. The Constitution doesn't mean what it says.

Since the Supreme Court published its opinion in United States v. Miller, there has hardly been any advocacy group, either for or against the Second Amendment, that has not endeavored to support their positions by arguments drawn from this decision, however misinterpreted or misapplied. It is absurd. And, even now, the Supreme Court has agreed to hear an appeal on an issue that, as pointed out by the Eighth Circuit Court of Appeals (i.e.,whether the protected right is “individual” or “collective”), is irrelevant. See United States v. Hale, 798 F.2d 1016 (8th Cir. 1992).

Miller was a direct appeal by the United States challenging the ruling of the lower court quashing an indictment under a federal statute (i..e., the National Firearms Act of 1934) based on the Second Amendment. The issue before the court was whether section 11 of the Act violated the Second Amendment. The Supreme Court found no conflict between the National Firearms Act and the Second Amendment, and reversed the judgment of the District Court and remanded the case for further proceedings. The ratio decidendi of Supreme Court’s ruling in Miller was that regulation of firearms was not prohibited by the Second Amendment. As the court noted: “Most if not all of the States have adopted provisions touching the right to keep and bear arms. Differences in the language employed in these have naturally led to somewhat variant conclusions concerning the scope of the right guaranteed. But none of them seem to afford any material support for the challenged ruling of the court below.” United States v. Miller, 307 U.S. 174 (1939). The relevant point is that the Second Amendment does not grant an individual the right to keep and bear arms. United States v. Cruikshank, 92 U.S. 542, 553 (1875). The right to have a gun is provided by law, not the Second Amendment.

In the face of this decision, there are still those that argue that the Second Amendment doesn’t mean what it says; and that the Supreme Court’s decision in Miller doesn’t mean what it says. Well, to them I say this: We will soon have it spelled out for us. The Supreme Court is the final arbiter of the interpretation of the constitution, and its decisions are binding as law until overturned by the court or by Constitutional amendment. As Mr. Justice Jackson put it: “We are not final because we are infallible, but we are infallible only because we are final.” Associate Justice Robert H. Jackson, Concurring Opinion in Brown v. Allen, 344 U.S. 443 (1953). To put it simply: The Constitution says what the Supreme Court says it says.

[iiibbb]

17. 6-3 or 7-2

Since the court definitely looked like it was trying to stick to the nature of the DC ban (whether someone can have a gun in their home for self defense). I think the court is going to be pragmatic, so I believe it will be 6-3 or 7-2 decision.

The decision will support the individual rights interpretation, will ban prohibitions, but leave room for certain restrictions (such as the class III restrictions). I don't think it will affect restrictions on carrying weapons that vary widely from location to location and state to state.

Little will change except the basis of the argument (militia vs individual rights). States will effectively be given control over the nature of their militias. Therefore, only the only places that will definitely be affected by the decision are those with outright bans. It's unlikely to affect concealed carry laws because the decision will be restricted to whether guns can be used to defend one's home.

We may see a few may-issue states go shall-issue, but I don't think many will.


Nope-- the main thing this decision will do for gun rights is close down the argument that it is not an individual rights issue... but gun-control advocates will merely reshape the arguments in order to define the nature of militias.


Personally, I think we should be able to have the same equipment that a beat-cop would have with the exception of automatic weapons (I don't think the police should have automatic weapons either). I think that is reasonable. If the gov't wants to restrict our access to a given weapon, they should restrict their own access to the same weapons.

[L1A1Rocker]

18. I'm betting on 7-2 affirming individual rights.

with Ginsberg voting in the majority. I'm also expecting some other rulings to come out of it as far as setting limits on "reasonable restriction" that will go 6-3 or even 5-4.