How would SCOTUS rule on Parker v. DC

[hoffmang]

This has come up in the other thread but I wanted to do some reading to have a more informed opinion as to how I expect the Supreme Court to rule should Parker be given certatoria.

First, I believe that DC will be dumb enough to appeal and that none of the political machinations will moot the case. I expect the Federal Circuit to not hear the case en-banc.

The four solid votes we have for the individual rights interpretation are:

Thomas - In Printz v. United States he specifically requested that SCOTUS review and show its an individual right.

Alito - He's got some good appellate cases on NFA

Roberts - He hinted at his pro individual rights stance in his confirmation.

Scalia - He's almost always on the right side of gun laws. Caron v. United States is a good example.

Here are the two wobblers. I'll go from most likely to least likely.

Souter - Souter authored the opinion in United States v. Thompson/Center Arms Co. where Rhenquist and Oconner joined and Scalia and Thomas concurred in a separate opinion that Thompson's carbine kit wasn't a constructive possession of a short barreled rifle as ATF wanted to hold. Souter also held in favor of Small in Small v. United States where Small was convicted of gun smuggling in Japan but wanted to buy a gun in the United States. Further in Planned Parenthood v. Casey, Souter joined Kennedy in quoting with approval Justice Harlan's statement that the "full scope of ... liberty" is not limited to "the freedom of speech, press, and religion; the right to keep and bear arms; the freedom from unreasonable searches and seizures." Casey reaffirmed the right of privacy, a right it viewed as belonging to an individual and that can be asserted by the individual against the federal government or a state. The Justices used this quote from Justice Harlan to convey the view that such an unenumerated right had the same constitutional status as all the enumerated rights in this list. All these rights retained by the people are considered by the Court to be on a par. No mention of a militia-centric qualification is made.

Ginsburg - I know ya'll will not believe me, but here is the evidence in support of her voting for an individual second amendment right. First, she authored Eldred v. Aschroft in which she found that prefatory clauses in the Constitution don't limit the scope of a right or power in an operative clause. Here is an article with more about that issue. Also, Ginsburg refers to the Second Amendment as an individual right in the context of attempting to understand what "carry" means in Federal law in Muscarello v. United States: "Surely a most familiar meaning is, as the Constitution's Second Amendment ("keep and bear Arms")" Souter concurred in that one.

So I'm going out on a limb and saying with these odds we could see a 6-3 ruling in favor of an individual right to arms.

The only negative thing I noticed was this, written by Souter and joined by Ginsburg, Stevens, and Breyer. FN 11: "While that document protected a range of specific individual rights against federal infringement, it did not, with the possible exception of the Second Amendment, offer any similarly specific protections to areas of state sovereignty." (Justice Souter, with Stevens, Ginsburg, and Breyer, dissenting) from US v. Morrison

Please limit comments to those supported by opinions based on something other than blind political guesses. That probably means you'll need to have a link to a source that supports your opinion.

-Gene

PS. Its a bad day to be reading SCOTUS cases as law.cornell.edu is down...

[xenophobe]

The only negative thing I noticed was this, written by Souter and joined by Ginsburg, Stevens, and Breyer. FN 11: "While that document protected a range of specific individual rights against federal infringement, it did not, with the possible exception of the Second Amendment, offer any similarly specific protections to areas of state sovereignty." (Justice Souter, with Stevens, Ginsburg, and Breyer, dissenting) from US v. Morrison

That's very similar to one of the points I've been arguing about for a while, though from a slightly different perspective...

Thanks for all the research... Very informative post, Gene.

[damon1272]

Hoffmang,
I for the most part agree with how you think the SCOTUS would rule on Parker. I almost think though that the three judge opinion was well written enough that when it gets to the 12th district court or appeals review, and it will, that if the same decision is upheld and it goes to SCOTUS that they may chose not to hear the case and it would become law in a sense in that the ruling would be upheld.
In a broader note I think that if the SCOTUS rules favorably on this or does not choose to hear the case what affect it will have on shooting down other current state gun bans like our own, NY, and all of the other socialist states.

[Knauga]

I've got my money on them refusing to hear it.

[Librarian]

The general run of lawyer opinion on the web- see esp Volokh and Hardy - is that a DC circuit decision is really important. With that one and the Emerson case in the 5th, it seems unlikely that SCOTUS would not grant cert.

[edwardm]

I'm on my way out the door, but what ever became of Hamrick v Bush? I know the DC Circuit remanded to the District Court, and SCOTUS denied cert. But I never figured out where it went after that.

The denial of cert was academic in nature, but Hamrick raised some interesting questions (though I think he was generally a loose cannon).

[hoffmang]

Hamrick was a character...

David Hardy has some interesting additional info:

http://armsandthelaw.com/archives/2007/03/parker_v_dc_and.php

Two highlights from him.
1. The court almost took Silveira v. Lockyer. That means that even before the addition of Alito and Roberts, Thomas, Scalia and others thought they had 4 and maybe 5 votes for the individual rights model. Also, that case means they think that the second amendment is incorporated by the 14th. That argues strongly that SCOTUS will take Parker.

2. The DC Circuit is the "seat" of the Federal Government. The 9th Circuit wouldn't hear a case against Federal gun law from a Californian because they've ruled that the 2A isn't an individual right. However we Californians can sue the Federal Government in DC once Parker gets past an en banc hearing.

Note for the poster above - the Federal Circuit is the Federal Circuit - not the 12th. There is an en banc appeal to the Federal Circuit. Once that is decided either by denial or a hearing and an overturn, the next step is certatoria to SCOTUS.

Good times.... Very good times.

-Gene

[AfricanHunter]

If Parker did go to SCOTUS, what would be the timeframe?

[hoffmang]

Dr. Volokh is predicting a hearing in early 2008 and a ruling by June of 2008.

-Gene

[M. Sage]

I'm really encouraged by the fact that nobody has come up with info refuting what you posted.

What I'm wondering about now, if everything goes as you say, is the scope of a ruling SCOTUS would hand down, and its effects. If they hand down a ruling that the 2A is an individual right in broad language, would that mean those of us with OLLs would be able to reconfigure them however they liked as soon as we found out?

Tell us, oh guru of legalese.

[hoffmang]

The answer to your question is that a SCOTUS ruling on Parker would most likely not give us what we want in California - yet.

The issue is that this case is solely limited to the question, "does the 2nd Amendment confer an individual right to keep and bear arms that are considered the average infantry weapons?" It would make clear that Federal laws are subservient to the second amendment. It does not explore whether the 2nd Amendment applies to state regulations.

There is an outside chance that SCOTUS would place enough dicta in the case to make it clear that the 2nd also applies to the states, but even that wouldn't be binding. There will have to be one or more additional cases to show that the 14th applies the 2nd to the states and that case has to be brought in one of the states that doesn't have a strong state RKBA constitutional clause.

-Gene

[hoffmang]

That's very similar to one of the points I've been arguing about for a while, though from a slightly different perspective...

Thanks for all the research... Very informative post, Gene.

One interesting item there Xeno is that Souter may have had to phrase that sentence that way to get Stevens and/or Breyer to join him. You'll notice its absence in other Souter/Ginsburg writings.

-Gene

[xenophobe]

One interesting item there Xeno is that Souter may have had to phrase that sentence that way to get Stevens and/or Breyer to join him. You'll notice its absence in other Souter/Ginsburg writings.

I think they're all interesting items... When I was young I lived near the Capitol and visited the White House, Monument, Congress, the Lincoln Memorial, etc... Also traveled to quite a few of the Founding Father's homes, the Liberty Bell, etc... and all of the celebrations of the Bi-Centennial really helped to form my respect and love for the country.

Ever since I was a child I've been really into the early government and from the time I was around 12 or 13 I was really fascinated with Constitutional Law and read and studied the subject a lot. Back then there wasn't this very loud progressive liberal sect that we have now and Democrats and Republicans both worked well together, for the most part, and the parties weren't as split or splintered like they are now and many of the issues, like the 2nd Amendment weren't split on party lines, but more region.

One thing I found of interest was in the Parker decision, they mentioned the three basic groups of people who interpret the 2nd Amendment, the BOR and the Constitution, and I was glad that I found myself not conforming to either of those three groups. I'm closer to the majority opinion and somewhat to the middle group, but don't really fall into either. To me I found the dissent even had a little validity in it's opinion, but of course on the issue at hand was mostly described correctly by the decision.

Sorry for the longwinded reply, but I did find great comfort that my opinions agreed with most but stuck outside of the bounds of the 3 groups that were mentioned... Even the first few sessions of Congress which were mosttly directly responsible and tasked with creating the Constitution and BOR still had to debate exactly what they meant after they were ratified, and from even the beginning a lot of issues were never clear cut or completely agreed upon. Anyways, thanks for the research as I really appreciate it when I see someone going through the time and effort into doing so.

[Richie Rich]

If this case is heard by the supreme court (and it sounds like it is headed that way) AND the 2A is declared an individual right, how many decades do you think the state of Ca and other socialist leaning states (N.Y, IL etc) could hold it up with appeals, stays and the like?

Or could they just ignore the ruling, like this state does with marijuana posession laws?

[mblat]

If this case is heard by the supreme court (and it sounds like it is headed that way) AND the 2A is declared an individual right, how many decades do you think the state of Ca and other socialist leaning states (N.Y, IL etc) could hold it up with appeals, stays and the like?

Or could they just ignore the ruling, like this state does with marijuana posession laws?

Well, first of all even if SCOTUS rules pro-2nd it won't make California anti-gun laws disappear overnight. They likely will have to be challanged individually one by one and they will have to be proven violating 2nd ammendment.
That may take years.
Second it is one think to ignore the law and don't put people to jail and totally other ignore the law and actually procecute. That not likely to happend.