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View Full Version : Negative take on "Heller" prospects


EastBayRidge
09-19-2007, 5:20 PM
here, about halfway down (http://www.scotusblog.com/movabletype/archives/2007/09/a_true_rightwar.html).

The article is geared more towards analyzing the upcoming SC term from a "who wins, libs or cons" perspective rather than the merits, but the analysis of the court's makeup as a predictive tool is interesting:

The most prominent likely addition to the docket this Term will be the Second Amendment case involving the District of Columbia's handgun ban (District of Columbia v. Heller, petition here and appendix here, and Lyle's lead post here). (Disclosure: Akin Gump represents the District.) It would be very surprising if certiorari were denied, given the significant circuit conflict created by the ruling below.

The outcome of this case cannot be predicted because these nine Justices have not decided a similar question. The District has a cascade of arguments for reversal - that there is no individual right to bear arms unconnected to militia service, that the Second Amendment doesn't constrain the local regulation in the District, and that D.C.'s law is in any event reasonable (because it allows possession of shotguns and rifles) - and the D.C. Circuit's decision is avowedly an outlier among a fairly significant body of lower court authority. So the more likely (if still quite uncertain) outcome is that the District will prevail.

Equally important, however, is that the guns case will likely break down along ideological lines (at least on the threshold question of whether and to what extent the Second Amendment confers an individual right). The general (although not inviolate) pattern in the lower courts has been that more conservative judges are more favorably inclined to gun rights. Again recognizing the uncertainty on the question, the conventional wisdom is that it is highly unlikely that any of the four more liberal members of the U.S. Supreme Court will vote to invalidate the D.C. law. So, the left on the Court will find itself advocating against gun rights.

The popularity of that position will be mixed. Polling data (see here and here) [ED: :rolleyes:] shows that the public favors more strict gun control laws. But it is not at all clear whether the D.C. law would be regarded as too strict in this respect. Equally important, the experience of the success of the NRA shows that there is a significant portion of the population that favors gun rights and mobilizes around that one question. The Court's decision could have a profound effect on whether those voters go to the polls. By contrast, those who favor greater gun regulation overwhelmingly are not "single issue" voters.

Librarian
09-19-2007, 6:41 PM
I like the data from http://www.pollingreport.com/guns.htm.

Here's a graph of the public attitudes toward gun laws - "Should gun laws be made more strict, less strict, or remain as they are?"

bulgron
09-19-2007, 6:53 PM
I disagree that the liberal members will refuse to vote to invalidate the D.C. law. Ginsberg, at the very least, has held in the past that prefatory clauses do not limit rights and privileges found in the constitution. So if she displays any intellectual honesty at all, she should come down on an individual right interpretation.

hoffmang
09-19-2007, 7:11 PM
(Disclosure: Akin Gump represents the District.)

You think that little factoid has anything to do with their opinion?

I think it would be kind of hard for them to say:

"Our coworkers have an impossible task trying to defend this asinine law."

I've noticed that SCOTUS blog will not take my comments and has a subtle but actual bias against Parker/Heller and Gura.

-Gene

JawBone
09-19-2007, 7:29 PM
If there is one branch that has no reason to care about polls, it is SCOTUS. The lifetime appointment means they can vote their conscience without worrying about whether it will be popular.

The District has a cascade of arguments for reversal - that there is no individual right to bear arms unconnected to militia service,

That would be intellectually corrupt.

that the Second Amendment doesn't constrain the local regulation in the District,

Ummm. 14th Amendment, Privileges and Immunities Clause, Due Process Clause, Supremacy Clause...

and that D.C.'s law is in any event reasonable (because it allows possession of shotguns and rifles) -

A complete ban on handguns is not reasonable.

and the D.C. Circuit's decision is avowedly an outlier among a fairly significant body of lower court authority.

And also the most well researched and reasoned of all the opinions.

So the more likely (if still quite uncertain) outcome is that the District will prevail.

Doubt it.

EastBayRidge
09-19-2007, 7:42 PM
If you read the sidebar, the author's a partner @ AG and a quick look at their website indicates that he heads up their Supreme Court practice. Despite this I'm inclined to give him the benefit of the doubt in his analysis - the tone of the post strikes me as a practitioner giving a rundown as to what he expects might happen.

The fact that we graduated college the same year is what bugs me... but at least my gun collection is better than his... I think... gotta be... :shifty:

leelaw
09-19-2007, 7:52 PM
...that the Second Amendment doesn't constrain the local regulation in the District, and that D.C.'s law is in any event reasonable (because it allows possession of shotguns and rifles)

Huh... I thought the DC laws sure did prohibit the ownership of operational long guns, but they chose to ignore it in their petition...

hoffmang
09-19-2007, 7:57 PM
The problem with real Supreme Court attorneys and the Second Amendment cases are that they have NO exposure to the issues. In fact, if you explain to them what the actual legal situation is it is unfathomable that people actually try to claim that "The People" means something different there.

Also, DC was lying when they said that you could have long guns - or at least lying by committing the fact that they had to be in parts or bound.

-Gene

jdberger
09-19-2007, 8:05 PM
The concern that I have about Heller is that SCOTUS will boil it down to a public policy question. The final lines of DC's petition state that the Constitution is not a suicide pact, that the rights of folks to own guns, whatever they be, cannot come at the expense of the safety of potential victims. "Whatever right the Second Amendment guarantees, it does not require the District to stand by while it's citizens die."

I'm afraid that SCOTUS will try to split the baby on this one, or come up with a O'Connoresqe solution that doesn't work for anyone but the status quo.

Anyway, we'll see...

hoffmang
09-19-2007, 8:17 PM
I think it will be very hard for SCOTUS to misread their own holding in Miller that the 2A is an individual right.

As to the "suicide pact" item, that cuts both ways. Gura should simply point out that if crime is so bad in DC we should just suspend the Writ of Habeas Corpus using that logic.

-Gene

JawBone
09-19-2007, 8:19 PM
As to the "suicide pact" item, that cuts both ways. Gura should simply point out that if crime is so bad in DC we should just suspend the Writ of Habeas Corpus using that logic.

+1. SCOUTS can't rewrite the Constitution. If the "suicide pact" argument is the reasoning, then the antis need to have the 2A repealed.

bulgron
09-19-2007, 9:07 PM
The fascinating thing about Heller is that it asks the court to arrive at a conclusion with which it most likely is not comfortable. At the very heart of the matter is that the 2A demands the government protect the people's right to destroy the government. It's sort of a fox watching the hen house kind of a thing.

My expectation is that if SCOTUS can't do the right thing here; that is, uphold Heller; then they will simply refuse to hear the case. In fact, I suspect that this is the very problem that has caused the court to steadfastly refuse 2A cases all these years. As long as they're silent on the matter, they're not morally culpable for the heinously broken interpretation of the 2A that has bewitched the courts since 1939.

JawBone
09-19-2007, 9:16 PM
So as members of the government, the very government which the 2A keeps in check, they all have to recuse themselves from the case due to conflict of interest? :smash:

Nope, I don't think Roberts is going to pass up this opportunity. If I read him right he wants to leave a big mark and it starts with this case. Would you rather be remembered for "Bong hits 4 Jesus" or the first 2A case in 70 years.

aileron
09-20-2007, 5:51 AM
Just the t-shirt that says bong hits for Jesus on the front and 2A is an individual right on the back. Can you get more politically incorrect than that?

hoffmang
09-20-2007, 8:59 AM
They will hear it. They almost took Silveira and that was a far less favorable court. Justice Thomas was the one deciding to take Silviera or not...

We're going to win by the following mixes:
5-4 - Individual right, DC is smoking crack on almost all of their laws, and its certainly incorporated against the states (take that NY, MD, IL, CA)
7-2 - It's an individual right and certainly an entire ban on handgun ownership by the law abiding is in conflict with the right.
9-0 - Roberts and Ginsburg shame the 2 hold outs.

-Gene

EastBayRidge
09-20-2007, 10:39 AM
Well, Gene, from your lips to Roberts ears...

Say your 5-4 scenario pans out - any idea if there are stays of enforcement on the assault weapons ban/hi cap ban etc. drafted and ready to go ?

hoffmang
09-20-2007, 11:12 AM
Maybe.

There are some complicating factors that may mean we want one more case even in the 5-4 scenario. Know that a general strategic plan is being worked on amongst The Right People.

-Gene

bulgron
09-20-2007, 11:59 AM
Maybe.

There are some complicating factors that may mean we want one more case even in the 5-4 scenario. Know that a general strategic plan is being worked on amongst The Right People.

-Gene

Hopefully this general strategic plan includes allowing little nobodies like me to have a CCW. I really don't want to move to Arizona (too hot).

BaronW
09-20-2007, 1:48 PM
Hopefully this general strategic plan includes allowing little nobodies like me to have a CCW. I really don't want to move to Arizona (too hot).

Just move to Orange County. :D

FreedomIsNotFree
09-20-2007, 4:06 PM
That's one of the beautiful aspects of our Constitution. Regardless of what the polls say, even if you believe them when they claim the public wants stricter gun control laws, the Constitution protects the minority against the majority.

bulgron
09-20-2007, 4:11 PM
Just move to Orange County. :D

lol. I'd rather move to Alpine county. :D

EastBayRidge
09-22-2007, 7:07 AM
Just a small update to the original post - according to a comment here (http://armsandthelaw.com/archives/2007/09/scotusblog_on_p_2.php#comments), Mr. Goldstein has a bit more involvement with the case than his disclaimer would suggest.

hoffmang
09-22-2007, 8:08 AM
Ok... Now that's funny. Above I had mentioned that he was covering for his co-workers... I had no idea he was covering for himself.

-Gene

EastBayRidge
09-22-2007, 8:34 AM
I hereby take back my assumption of good faith... :chris:

I think Countertop is reliable - he seems pretty plugged into DC federal politics and his blog indicates he's a lobbyist or some such.