Justice Janice Rogers Brown? It'd be great for RTKBA
There is talk that Pres. Bush might nominate Janice Rogers Brown, of the DC Circuit, formerly of the California Supreme Court, as Associate Justice (tho Orin Kerr thinks she's too libertarian for the Administration). She'd probably be one heck of a pick for gunowners.
Item, here's her opinion in Kasler v. Lockyer, 23 Cal.4th 472, 2 P.3d 581, 97 Cal.Rptr.2d 334 (2000). She writes the opinion, upholding the California "assault weapons ban" against equal protection and other challenges, and saying lots of the usual about how the legislature concluded AWs are bad. Then she adds a concurrence (that seems a bit strange to me -- presumably California courts recognize that even the writer of an opinion may have something to say that the court as a whole didn't approve):
"This case, however, illustrates the illusory nature of the distinction between "fundamental rights" and "areas of social and economic policy." Curiously, in the current dialectic, the right to keep and bear arms - a right expressly guaranteed by the Bill of Rights - is deemed less fundamental than implicit protections the court purports to find in the penumbras of other express provisions. (See, e.g., Cruzan v. Director, Mo. Dept. of Health (1990) 497 U.S. 261, 278-279; Zablocki v. Redhail (1978) 434 U.S. 374, 384-387; Moore v. City of East Cleveland (1977) 431 U.S. 494, 499-500.) But surely, the right to preserve one's life is at least as fundamental as the right to preserve one's privacy.
The founding generation certainly viewed bearing arms as an individual right based upon both English common law and natural law, a right logically linked to the natural right of self-defense. Blackstone described self-defense as the "primary law of nature," which could not be taken away by the law of society. (2 Jones's Blackstone (1976) p. 4.) "[T]he peaceable part of mankind will be continually overrun by the vile and the abandoned, while they neglect the means of self defense. . . . The supposed quietude of the good man allures the ruffian; . . . (but) arms like laws discourage and keep the invader and the plunderer in awe, and preserve order in the world. . . . Horrid mischief would ensue were (the good) deprived of the use of [weapons] . . . the weak will become a prey to the strong." (1 Paine, The Writings of Thomas Paine (Conway edit. 1894) p. 56.) Extant political writings of the period repeatedly expressed a dual concern: facilitating the natural right of self-defense and assuring an armed citizenry capable of repelling foreign invaders and quelling tyrannical leaders.
After the Civil War a series of enactments, culminating with the Fourteenth Amendment, acknowledged the correlation between self-defense, citizenship, and freedom. Section 14 of the Freedman's Bureau Act, which the 39th Congress passed over the President's veto, provided: "That in every State or district where the ordinary course of judicial proceedings has been interrupted by the rebellion, . . . the right to . . . have full and equal benefit of all laws and proceedings concerning personal liberty, personal security, and the acquisition, enjoyment, and disposition of estate, real and personal, including the constitutional right to bear arms, shall be secured to and enjoyed by all the citizens of such State or district without respect to race or color or previous condition of slavery. . . ." (Freedman's Bureau Act (July 16, 1866) 14 Stat. 176, italics added; see Halbrook, Second Class Citizenship and the Second Amendment in the District of Columbia (1995) 5 Geo. Mason U. Civ. Rts. L.J. 105, 141-150 (Second Class Citizenship).)"
Halbrook concludes the Freedman's Bureau Act, the Civil Rights Act of 1866, and the Fourteenth Amendment leave no doubt that " `the constitutional right to bear arms' is included among the `laws and proceedings concerning personal liberty, personal security,' and property, and that `the free enjoyment of such immunities and rights' is to be protected" (Second Class Citizenship, supra, 5 Geo. Mason U. Civ. Rts. L.J. at p. 150) under the Fourteenth Amendment, which would confer citizenship on all persons born in the United States and imbue them with every right of citizenship, including the right to keep and bear arms. (Ibid.) In more recent times, Congress has continued to recognize that the right of law-abiding citizens to keep and bear arms is guaranteed by the Second and the Fourteenth Amendments. (Pub.L. No. 99-308 (May 19, 1986) 100 Stat. 449.)
The judiciary, too, has consistently acknowledged the interplay between express provisions and implicit protections. In Poe v. Ullman (1960) 367 U.S. 497, the seminal case in the Supreme Court's fundamental rights jurisprudence, Justice Harlan, dissenting, argued the Fourteenth Amendment due process clause protects privacy. He claimed the due process clause covered, but was not exclusively limited to, "the precise terms of the specific guarantees elsewhere provided in the constitution," including "freedom of speech, press, and religion; the right to keep and bear arms; the freedom from unreasonable searches and seizures." (Id. at p. 549 (dis. opn. of Harlan, J.).) The court continues to cite Justice Harlan's enumeration as part of the full scope of liberty guaranteed by the Fourteenth Amendment against state infringement. (Planned Parenthood Southeastern PA v. Casey (1992) 505 U.S. 833, 848-849; Roe v. Wade (1973) 410 U.S. 113, 169 (conc. opn. of Stewart, J.); Griswold v. Connecticut (1965) 381 U.S. 479, 499 (conc. opn. of Goldberg, J.).)"
I also found her opinion in Harrott v. County of Kings, 25 Cal.4th 1138, 25 P.3d 649, 108 Cal.Rptr.2d 445 (2001). Nothing esp. quotable, but she reversed a trial court ruling forfeiting an "assault weapon." The state law prohibited certain guns and also those similar to them, and the trial court found this was similar. The ruling was that the statute should be read to mean that only the Attorney General can find whether a gun is sufficiently similar, and promulgate a regulation: she notes that the ordinary gunowner cannot be expected to decide how much similarity is required.
In Merrill v. Navegar, Inc., 26 Cal.4th 465, 28 P.3d 116, 110 Cal.Rptr.2d 370 (2001) she joined the majority opinion, rejecting a suit against a gun mfr for criminal use of a firearm they made.
No federal opinions for her, since she got confirmed to the DC circuit only three months ago (vote was 56-43, straight party lines except for one Demo crossing over to vote for her).
Item, here's Larry Pratt's review of her past firearms decisions.
Joe Biden has already threatened a filibuster.