Souter to retire: what does that mean for 2A jurisprudence?

[bossy22]

I thought i'd start a discussion on Obama's nominee to the supreme court and what there position will be on the interpretation of the second amendment.

My personal feeling is that the nominee will probably say something to the effect of "i agree that the second amendment is an individual right but that its subject to reasonable restrictions"

what do you guys think?

[Caliman73]

1. most likely...

the overall balance of the court will not change however. Also, the practice of every right is subject to reasonable restrictions. You cannot yell "fire" in a crowded theater and create a panic. Your right to free speech does not extend to making threats against fellow citizens either. The problem is in defining "reasonable" in relation to firearms. That is where most firearm owners are skeptical of people who wish to impose more "reasonable" restrictions because that "one more law" will make things safer.

[virginia mountainman]

4. A bit more about "reasonable"...

Yes, it is a crime, to yell fire, in a crowded theater BUT....


The law, does not restrict your mouth before hand, Your mouth is not subject, to waiting periods, extensive background checks, thousands, of local and state laws, etc..etc..

You only get into trouble, once you yell fire...The means to yell fire, are not restricted, UNTIL you misuse it. We don't sew up people's mouths, when they go into a theater, because they MIGHT yell "fire".

It seems with a lot of gun laws, that folks are treated as if they have already, or are about to commit a crime.

For example, in Virginia, their is a law, banning me, a CCW holder, from going in ANY place that serves alcohol, with my gun concealed...

It does not matter, that I, and my wife, are non drinkers, this law, if I want to enter, by law, I must open carry, and unhide my side arm..

The Virginia, Governor in his "wisdom" vetoed a law, allowing me to carry, concealed in a pizza hut, or Applebees, by simply saying "Alcohol and guns don't mix" Well DUH....

The revised law, would have allowed me, to eat, with my concealed gun, as long as I did not drink, which to me, is a reasonable restriction...But for him to imply, that I, would could not fight the temptation and get drunk, and because of that, I cannot carry concealed but, only open.. it is so mind bending as too be asinine.

[Caliman73]

5. that is the crux isn't it...

I too believe that laws that may curtail fundamental rights need be made to prohibit misbehavior and not prohibit on the purpose of "potential". "Reasonable" laws are usually based on a fear reaction which naturally precludes reasoning.

Alcohol mixes well with no potentially dangerous behavior, but as you said, the assumption should not be made that the presence of alcohol will automatically lead to all people abusing the substance. As for your state, that seems a poorly thought out law, but I live in California so...

[virginia mountainman]

9. Yes it is... NT

[JDPriestly]

2. Yes. Of course. Even the hallowed rights to free speech and

freedom of religion are subject to restrictions. Your freedom of religion does not permit you to smoke marijuana just because it is part of your religious rites. And you can be required to get a permit for a demonstration. The regulations have to be reasonable. I would not expect the Supreme Court to veer from that principle, no matter who is on it.

[old mark]

3. There are already regulations on gun ownership and I'd really

be surprised to see more - the court just defined the 2nd ammendment individual rights - I don't see any impetus to limit that right.
With all the guns sold over the last year, if guns actually caused violent crime, we'd all be dead.

mark

[Taitertots]

6. Reasonable Restrictions

Considering Obama considers the DC and Chicago gun bans to be reasonable, that doesn't mean much.

[jody]

7. IMO we'll see well funded campaigns by pro and anti RKBA proponents if any candidate has a record

on RKBA tilting toward either side.

The key might be how a candidate has ruled or written about "natural, inherent, inalienable/unalienable" or "pre-existing" rights in general and whether those records suggest how much latitude a candidate will allow government when attempting to infringe on rights government is obligated to protect that are enumerated in our Constitution or unenumerated but protected by the Ninth Amendment.

I say that because I doubt any future SCOTUS will rule that RKBA is not an "individual right" and because it's highly probable that SCOTUS will incorporate the Second Amendment in the Fourteenth Amendment.

That would mean future battles over RKBA will be over the extent to which SCOTUS allows governments to infringe on any inalienable/unalienable right such as protected by the First, Second, and Fourth Amendments.

[virginia mountainman]

8. Yea, waiting for the day...

When we get to argue, just exactly what does "Shall not be infringed" mean?

I wonder if they will get Walter Delinger to argue that case too??

[benEzra]

10. None whatsoever. Souter was one of the most anti-gun members of the court.

I don't think it would be possible for anyone replacing him to be worse than Souter on civil liberties issues, whether 1stA, 2ndA, or 4thA. Hopefully, she/he will be considerably better.

[jody]

12. Agree & I wondered why Souter did not write a separate dissent from Stevens and Breyer in Heller?

Stevens & Breyer recognized RKBA for self-defense although they disagreed with the majority by arguing the 2nd protected a militia but leaving unanswered the question of whether RKBA for individuals was an unenumerated right protected by the 9th.

IMO Souter's failure to write a dissent in Heller could mean he realizes that RKBA for individuals is protected either by the 2nd or 9th and it really doesn't matter because RKBA is protected.

[Abq_Sarah]

13. Or 5th.

His behavior in Kelo vs New London was horrendous. His vacancy is absolutely no loss.

[57_TomCat]

11. I believe that Souter...

is one of the most anti-gun Justices there is. I do believe Obama will select a replacement that will be a bit more progressive on many issues to help balance the court but I hope the anti-gun aspect will not be so strong.