A new vote count on the Supreme Court?
Below, I've blogged notes on John Robert's confirmation testimony, in which he displayed a remarkably detailed knowledge of US v. Miller and other Second Amendment caselaw, and Dave Kopel's discovery of a rather pro-RKBA writing by nominee Harriet Miers. [UPDATE: On the Volokh Conspiracy, Orin Kerr posts an email from a former White House attorney, who describes her, inter alia: "She also happens to be a gun-toting evangelical..."] [Another update, from Dan Gifford, who says it comes from a solid DC source: "FYI the White House folks told me she owns a gun and has a concealed carry permit."]
Assuming both are (as they appear to be) votes for an individual right, and that she gets confirmed, they join two sure votes -- Scalia and Thomas. The remaining question is -- is there a fifth vote out there?
As Dave Kopel pointed out to Bob Cottrol and I, as we were enjoying an overpriced lunch recently, the fifth vote might come from an unusual source: Justice Ruth Bader Ginsberg, traditionally ranked in the Court's liberal wing.
Justice Ginsburg dissented in Muscarello v. United States, 118 S.Ct. 1911 (1998) . That case concerned a 5 year sentencing enhancement for carrying a firearm during commission of a drug crime, and majority held that transporting drugs in a car which had a gun in glove compartment was sufficient.
She dissented, and noted with regard to "carry,"
"Surely a most familiar meaning is, as the Constitution's Second Amendment ("keep and bear Arms") (emphasis added) and Black's Law Dictionary, at 214, indicate: "wear, bear, or carry ... upon the person or in the clothing or in a pocket, for the purpose . . . of being armed and ready for offensive or defensive action in a case of conflict with another person.""
That's rather thin as an indicator, but suggests she thinks the Second Amendment's "bear arms" = "pack your personal iron." Apart from suggesting an individual right, this puts her somewhat beyond some individual rights theorists, who see "keep" as clearly individual, but "bear" as perhaps military only.