Glenn Reynolds' take on Parker
It's here, with link to a pdf download. The paper discusses the upcoming Term, with Parker beginning at p. 13. Gist: Supremes vote-counting is an operation in guesswork. Prof. Mark Tushnet thinks there aren't five votes for an individual right (the four liberals will go against, and Kennedy, who comes from a conservative standpoint not sympathetic to individual rights) will join them. But Prof. Larry Tribe (the archtypical liberal) thinks individual rights will win out. He cites some writers who believe (and I quite agree) that this would be THE case of the Term. The number of Americans who feel strongly about this issue probably outnumbers those who feel the same about, oh, Gitmo detainees or other "hot" Supremes issues by a thousand to one, perhaps ten thousand to one.
I don't consider the "liberal wing" as a lost cause, as Tushnet apparently does. The leading lights on the individual rights side are all quite liberal. Akhil Amar, Sanford Levinson, William van Alstyne. Don Kates and Joe Olson got their start as civil rights workers who took up arms to defend against attack. This issue resonates across political lines. Heck, I know a devout Marxist who is a lifer in the NRA, and his explanations make more sense than the conservative ones. I.e., how will the workers defend themselves without arms? Why do most gun control schemes have exceptions for corporations' hired guards?
In Volupate Mors comments, in a comment blocked by the spam filter for some reason:
Your Marxist friend is right. As you know, the NFA contains a provision that allows corporations and trusts to purchase NFA firearms without local law enforcement sign-off; individuals have to be approved by the local CLEO.
As you also know, only the military and law enforcement can presently purchase machine guns that were made after May 1986. Someone is floating a proposal to allow security companies, who conveniently have contracts with state or federal governments, to purchase newly made machine guns.
Finally, Orwell noted that the rifle hanging above the door of a worker's cottage was the last thing standing between freedom and tyranny. He was right.
Tribe can't believe any one of the four liberals will vote for individual rights, I wonder what makes him think Kennedy will.
This case certainly will demonstrate one thing. The four liberals will show conclusively that the justices' personal ideology is what determines Constitutional law, not the Constitution and certainly not legal reasoning. The incomprehensible incantations of Henderson's dissent will look like sound reasoning compared to the majority opinion we will likely see, probably written by Ginsburg.
Our only hope, in my view, is that the liberals won't let Kennedy write the opinion and he will vote with the conservatives if they let him write the opinion.
Posted by: Flash Gordon at September 28, 2007 09:41 AM
I think Prof. Mark Tushnet is projecting an his own ignorance (and its one widely held by folks in the Ivory Towers of Academia and Media) of the nuances of issues.
Gun control isn't a liberal/conservative issue. It has become, however, over the last few decades a Democrat/Republican and a urban/rural issue - but within both those camps there are plenty of conservatives and liberals on either side who will go one way or the other.
Really though, I think its an issue to drive inner city polling and allow urban politicians to project the appearance of concern and action when in reality they are otherwise without any concrete suggestions as to how to respond to a certain incident.
I've got no doubt that the members of the Supreme Court are not only smarter than that, but understand the issue (both from the gun side and its long term pr/political impact) in far more complexity than most public commentators give them credit for.
Posted by: countertop at September 28, 2007 10:20 AM
Tribe himself got into hot water when he concluded that 2A did guarantee an individual right to bear arms. That didn't fly well in liberal circles. He didn't like it, either. But he accepted that it is the right answer. He used this as a basis to float the idea that, in a proper liberal utopia, 2A would have to be repealed in order to do away with the guns.
It would be very, very hard for even the libs on SCOTUS to reverse the DC Circuit in Parker. What I would expect to see, in all seriousness, would be a 9-0 decision to affirm. However, there would probably a 5-4 split with concurrences.
The libs would find a way to affirm, without agreeing whole-hog with the legal reasoning. They might say something like "while we don't see the same sweeping individual right as the DC Circuit, we agree that the DC gun ban fails even a much more narrow interpretation of the Second Amendment..." yadda yadda yadda. In other words, we agree THIS gun ban is unconstitutional, but good luck trying to use this decision to affect any OTHER gun ban.
The four liberals will get Kennedy to join in, preventing the four most conservative from producing a majority opinion that secures the individual right.
This would be a DISASTER. And it would kill any real attempt to secure our rights for at least a generation (or much longer).
I really hope SCOTUS simply denies cert. That would keep the issue alive until we can get one more solid supporter (preferably two, because even a really good justice can go off on a weird tangent sometimes) on the bench.
Maybe Stevens will retire before the election, and GWB can recess-appoint Janice Rogers Brown...
Posted by: Gullyborg at October 2, 2007 04:04 PM