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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.
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.
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Comments
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.
Posted by: Kevin Baker at October 5, 2005 05:11 PM