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hoffmang
12-10-2007, 2:15 PM
Earlier (http://www.hoffmang.com/archives/000716.html#000716), I forecasted a 6-3 win in the Supreme Court for Parker v. DC, now DC v. Heller. That forecast was based on the conservative four justices being joined by Souter and Ginsburg.

Watson v. United States (http://www.law.cornell.edu/supct/html/06-571.ZO.html) was decided today. The key issue was whether or not a person buying a firearm with narcotics was "using" the firearm. Souter wrote the majority opinion joined by all but Ginsburg stating that one does not "use" an item one buys and therefor the firearm wasn't "used" in a narcotics transaction. Ginsburg concurred in the result but went further saying that the whole point behind "use" in this law was to stop the offensive or defensive use of a gun in a narcotics transaction and a prior case that said buying drugs with a gun was use should be overturned too.

The implications are that both Souter and Ginsburg even more strongly feel that even criminal laws about firearms should be construed limitedly. That's certainly not a set of opinions that the anti-gun would support. I'm actually starting to think we may actually get 9-0 or an effective 9-0 with concurring opinions in <em>Heller</em>.

Glenn Reynolds posted (http://instapundit.com/archives2/012732.php) on this as well, but his post had just reminded me that I was delinquent. Also note I re purposed this post (http://www.hoffmang.com/archives/000824.html#000824) from my blog so it may sound a little awkward.

-Gene

DrjonesUSA
12-10-2007, 2:53 PM
Does a Supreme Court decision carry more weight if there are more justices voting on one side or the other?

i.e.; if we do get an 8-1 or 9-0 pro-gun decision in Parker/Heller, does that help us even more than if we "only" got a 6-3 or 5-4 pro-gun decision?

hoffmang
12-10-2007, 3:01 PM
The more who vote for your side the more set in stone the Stare Decisis is. It's both a practical matter and a legal rule. If we get 6-3, then we have to lose 2 justices to have a 5-4 the other way and that rarely happens or it takes very long periods of time. Further, the more unanimous the decision the less likely it is from an appeals court judge's point of view that some new related issue could possibly find a 5-4 decision to, for example, more limit an individual right.

-Gene

tgriffin
12-10-2007, 3:04 PM
Excellent news. Thanks, as always, for the insightful interpretation Gene.

Rob P.
12-10-2007, 3:55 PM
Watson was 8+-0 instead of 9-0 (because of Ginberg's concurrence) but the issue was not a "gun" issue.

The issue in Watson was whether the gov could interpret a statute more broadly than had been previously decided and in direct conflict with common grammatical construction. The gov argued that the word "use" also includes "receipt". Which means, in essence, that anytime a firearm is in, on, near, within the area or control, etc/etc/etc during a drug transaction then the firearm is in "use" during the transaction. Even just having one in the location would be considered "use" under the gov's position because the firearm would be there to protect the other goods and/or person of the dealer in the event of a bad deal. Even if the weapon was hidden and not deployed.

SCOTUS decided to not go so far as to allow for the receipt of a gun to include "use". The decision would have gone the same way had the gun been instead a dildo or any other inanimate object. "Use" has an active component inherent in the meaning and mere presence is insufficient to satisfy this component.

Gov wanted to expand the statute from where it logically sits and how it is interpreted so they could justify the conviction. This has very little to do with "gun" decisions or how SCOTUS would decide a "gun" issue. I say this because no matter how you feel about a subject of litigation, the law and not your personal view is what counts. And, while viewpoint shapes the context, it cannot (and does not) indicate outcome. Those courtwatchers who depend on this often misjudge the outcome of cases. This is because judges as individuals may feel that a particular law is "bad." However, they have no choice but to uphold it as judges if it passes legal muster. This also applies to SCOTUS.

And, I'm not saying you're correct in your assessments or that we won't get a decision based on your projections. I'm just saying that this case is not a gun case nor will it have much impact on the Heller decision.

hoffmang
12-10-2007, 3:59 PM
Rob,

At minimum, this was a case where any one of the supreme court justices could have chosen to use the "menace that firearms create" to broaden a criminal use of firearms statute. Specifically Ginsburg's dissent states that she would only support an interpretation of this statute that use of the gun would actually require using the firearm to deter or threaten.

It's not a guns case, yet it certainly is.

-Gene

trashman
12-11-2007, 6:47 AM
Rob,
It's not a guns case, yet it certainly is.


I think Gene's right - and FWIW this is also part of a broader push against advisory-as-mandatory sentencing; i.e., trading a gun automatically constituting "use" during commission of a felony (which triggers other kinds of sentencing guidelines).

This works in our favor over the long haul, generally speaking, because one of the principal arguments gun-control advocates have advanced (when confronted with the illogic of laws like the Federal AWB) is that "it's just a tool to help law enforcement put criminals behind bars".

--Neill

AfricanHunter
12-11-2007, 9:42 AM
what kind of odds are you giving?

hoffmang
12-11-2007, 11:11 AM
Put your odds and then your money where your mouth is Black :43:

-Gene

sierratangofoxtrotunion
12-11-2007, 11:32 AM
OK, I've been reading these predictions for a while now, I think I'm going to have to throw in my 2 cents. I'm predicting a conservative 5-4 decision in our favor, with Roberts, Scalia, Alito, Thomas, and Kennedy on our side.

Gene, I know you keep pushing Ginsberg as favoring our position, but I have to say there ain't NO WAY in hell Ginsberg's coming down in favor of the 2nd amendment. Ginsberg is a joke, and is exactly the kind of "justice" who will realize that the 2nd guarantees an individual right, but she'll just say it doesn't anyway because she hates guns on a personal level. We're talking about the same woman who's gone on record saying the SCOTUS should take into account the opinions and laws of the UN when making its decisions. I'm even willing to entertain long-odds side bets on Ginsberg's decision if anyone's interested. I wonder if Vegas offers odds on SCOTUS decisions...

I thought I heard somewhere that Ginsburg has guns and shoots regularly.

Scarecrow Repair
12-11-2007, 11:37 AM
We're talking about the same woman who's gone on record saying the SCOTUS should take into account the opinions and laws of the UN when making its decisions.

I'd like to see the context for whatever "record" you have on that. Treaties ARE part of the law that has to be taken into account, just like other laws, and we signed plenty of UN treaties, just like we signed plenty of treaties with Britain, France, Russia ... tons and tons of treaties of all sorts with all sorts of countries and organizations. This sounds like the typical extremist fear mongering common to all politicians.

E Pluribus Unum
12-11-2007, 11:43 AM
I thought I heard somewhere that Ginsburg has guns and shoots regularly.

I heard on the national news that Al Gore was president.

sierratangofoxtrotunion
12-11-2007, 12:35 PM
I heard on the national news that Al Gore was president.

It's 1:30, I've got work to do, I can't search this right now!

hoffmang
12-11-2007, 12:38 PM
BR: SAS's not real money tends to be the easiest. I'm in for $100 on 3:1 that Ginsburg votes that the 2A is an individual right.

Scarecrow: Ratified treaties are the law of the land, but the Ginsburg issue is that she's been advocating that we should use international law norms that are not part of treaties to help interpret the US Constitution. That could have seriously negative outcomes around speech and arms regardless of the US ratifying a treaty. Also, no treaty can or should be able to abrogate the Bill of Rights in the US.

-Gene

sierratangofoxtrotunion
12-11-2007, 12:46 PM
Gene, what's an "SAS"?

Lol I think he's referring to SemiAutoSam and his love for alternate methods of payment.

E Pluribus Unum
12-11-2007, 1:05 PM
It's 1:30, I've got work to do, I can't search this right now!

My point was "I heard" is hearsay.... it's not used in court for a reason.

sierratangofoxtrotunion
12-11-2007, 1:46 PM
My point was "I heard" is hearsay.... it's not used in court for a reason.

Here's the source of my hearsay:

Last night, I heard a VERY interesting interview of a Supreme Court analyst on a talk radio show. As it sits right now, there are 4 Justices who are most likely going to favor "our" side, so there needs to be a "swing" vote cast. His opinion was that it could boil down to Justice Kennedy (a Reagan appointee), but also stated that Justice Ginsberg MIGHT come through, too (Ginsberg supposedly owns guns, and goes target practising quite often).

sierratangofoxtrotunion
12-11-2007, 1:49 PM
Ahh, I see. OK Gene, I've got you down for $100 of "not real money"; if Ginsberg sides with us you get 3x your money back, but if she votes against us I keep it all. I'm going to be virtually rich! Any other takers?!

Just thought I should clarify. SAS is always saying about how the green pieces of paper we carry in our wallets isn't real money. It looks like Gene is proposing a bet of $100 in green federal reserve note cash.

Fjold
12-11-2007, 2:11 PM
LOL.

We need to make a pool for the number of justices that vote for and against and what the individual justices do.

The only problem is the matrix isn't big enough to let enough people get in on it.

Smokeybehr
12-11-2007, 2:48 PM
Ahh, I see. OK Gene, I've got you down for $100 of "not real money"; if Ginsberg sides with us you get 3x your money back, but if she votes against us I keep it all. I'm going to be virtually rich! Any other takers?!


Eternal Salvation or triple your money back? :D

hoffmang
12-11-2007, 2:58 PM
Just to be clear, the $100 I speak of is the worthless paper money variety with the words "THIS NOTE IS LEGAL TENDER FOR ALL DEBTS, PUBLIC AND PRIVATE" This particular one has Mr. Franklin slightly offset left, with the signature of Marry Ellen Withrow on the left and the signature of Robert E Rubin on the right and is a series 1996. No guarantees I'll use this note, but suffice it to say that I'll use notes of the same value or a cash equivalent.

:smartass:

-Gene

E Pluribus Unum
12-11-2007, 3:19 PM
Just to be clear, the $100 I speak of is the worthless paper money variety with the words "THIS NOTE IS LEGAL TENDER FOR ALL DEBTS, PUBLIC AND PRIVATE"

Oh... well... you never said that ...

you keep it then, I don't want it.

AfricanHunter
12-11-2007, 3:30 PM
OK.... my gut tells me that 3:1 would be a bet in my favor, so those are the odds I would accept; i.e. if Ginsberg rules with us, I pay 3, if she rules against us, I collect 1. Now the only question is, what to bet? Money, beers, OLL's? :)

I'm in for $50

EastBayRidge
12-11-2007, 4:59 PM
Just to be clear, the $100 I speak of is the worthless paper money variety with the words "THIS NOTE IS LEGAL TENDER FOR ALL DEBTS, PUBLIC AND PRIVATE" This particular one has Mr. Franklin slightly offset left, with the signature of Marry Ellen Withrow on the left and the signature of Robert E Rubin on the right and is a series 1996. No guarantees I'll use this note, but suffice it to say that I'll use notes of the same value or a cash equivalent.

:smartass:

-Gene

And here I thought you'd be handing out 33.33333 of those $3 bills with William Jefferson Clinton on the front that were making the rounds circa the late '90's... :D

artherd
12-11-2007, 6:18 PM
Ahh, I see. OK Gene, I've got you down for $100 of "not real money"; if Ginsberg sides with us you get 3x your money back, but if she votes against us I keep it all. I'm going to be virtually rich! Any other takers?!
I'll take that bet!

You can pay me in dinner and OLLs :)

hoffmang
12-11-2007, 10:21 PM
Ahem... I thought we had a good gentlemen's wager here. I certainly know where to send the $100 if I lose and I can make available a street address or paypal when you have to pay me $300.

Public shaming is better than a certified check.

-Gene

tiki
12-12-2007, 3:36 AM
Anyone planning on heading out to D.C. for oral arguments? I'm thinking of heading out there for a week. I wouldn't mind a few drinking buddies that week. :)

P.S. Are there any strip clubs in D.C.?

Scarecrow Repair
12-12-2007, 5:39 AM
Hmmm, methinks I've misunderstood the situation. I don't see how the bills you speak of are worthless, especially since said bills can be exchanged for guns, cars, and other... stuff.

It's a joke at SemiAutoSam's expense. He aperiodically floats the idea that those bills are not real money because they are not backed by gold.

Sgt Raven
12-12-2007, 9:10 AM
Anyone planning on heading out to D.C. for oral arguments? I'm thinking of heading out there for a week. I wouldn't mind a few drinking buddies that week. :)

P.S. Are there any strip clubs in D.C.?

There was a good one in Georgetown on 'M' st. but that was in '74 the last time I was there. :p

hoffmang
12-12-2007, 10:24 AM
blackrazor,

The bet is on. I have one minor change and that is that if I win, I can direct the $300 to either BWO's fund or one of my retainer accounts at either TMLLP or Kilmer's office for use in furthering our side.

I'm flying to DC once I know the schedule and I believe that the_quark is coming too.

-Gene

Fjold
12-12-2007, 12:00 PM
I would love to go listen to oral arguments in March but does anyone think that there is even the remotest chance of getting a seat in the gallery?

Since they're first-come, first-serve and there are only two one-hour sessions on Monday, Tuesday and Wednesday of the week what are the chances of getting in to hear the arguments?

Davidwhitewolf
12-12-2007, 12:51 PM
I would imagine the public interest will be so great that the recording of this particular oral argument will be released rather quickly by the Court, for those of us who can't be there.

ghettoshecky
12-12-2007, 3:01 PM
If there isn't a 9-0 decision favoring Heller, then I will be pissed! Every judge at least better recognize the second amend. is an individual not a collective one! I expect there to be differing opinions, but every single one of them better not be a judicial activist and try to take away our rights!

Jarhead4
12-12-2007, 7:33 PM
Anyone planning on heading out to D.C. for oral arguments? I'm thinking of heading out there for a week. I wouldn't mind a few drinking buddies that week. :)

P.S. Are there any strip clubs in D.C.?

There’s a Hooter’s in D.C. that I've seen.