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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.
5 Comments
I think we could get one vote out of the other five justices. Especially considering that Breyer, Stevens, Souter, and Ginsburg were in the majority of the Small v. U.S. decision, granting people convicted of felonies in foreign countries the ability to own guns in the U.S.
C.A.G.
"think we could get one vote out of the other five justices. Especially considering that Breyer, Stevens, Souter, and Ginsburg were in the majority of the Small v. U.S. decision, granting people convicted of felonies in foreign countries the ability to own guns in the U.S.
C.A.G."
True, but that decision also followed the common liberal theme of helping out those poor defenseless felons. I happen to agree with the ruling, but that doesn't mean they ruled that way for the same reasons that I would have.
One of the cornerstones of Leftist thought is that we are not individuals, but members of a collective society...that the actions of a few bad apples are indicative of failures within the society, not individual failures of the criminals. Their solution is to change society, not to hold individuals accountable for their actions. Hence, the rulings that ostensibly support gun rights, but could easily be construed to more accurately reflect "rights" of criminals.
Miers just said her favorite justice is Warren Burger, who emphatically rejected RKBA.
Perhaps she meant Earl Warren, who may have been better on the issue?
Exactly. "Assault weapons" are not "arms". When we lose the 2nd amendment it will be on a decision that the arms at issue are not arms at all, because they are neithr kept nor borne in a militia context. The decision will mean that the 2nd amendment applies only to mustered, serving, active militia bearing arms issued to them for that service.
RBG will be fine with that, because she will be expanding state power over what she sees as the REAL problem- people who don't make good subjects.
You expect consistency from Ginsberg? Is there any reason for this that I'm not aware of? It's been my experience that people who hold strict ideologies will change the meanings of concepts to meet their ideologies. In the case you cite, she would be trying to reduce the sentence of a criminal involved in a drug crime, not protecting the Second Amendment rights of all individuals (at least not on purpose.)
Given, say, a case similar to Silveira, I'm sure she'd have absolutely no problem deciding that a State ban on "assault weapons" wasn't a violation of the Second Amendment.