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My take on Parker v. DC
The Parker case, and anticipated cert. petition, has attracted a lot of attention lately, and I thought to give my take on it.
Forward: it's long been my observation that litigators are bold about such a case, and scholars reluctant. I suppose it goes with the turf. A litigator has to be convinced he can fight his way out of a difficult situation, and as a matter of course goes into cases where he has no idea of the feelings of the court, let alone of a jury. It's how you earn a living, and you have to develop the attitude that you can do it or else find another job.
I was on a panel that explored the idea of a test case, perhaps ten years ago, and at the end it was a straight party-line vote. All academics were reluctant, all litigators were gung-ho. I'm a litigator and occasional semi-academic, so take my feelings with that caveat as to outlook and bias.
Case itself: VERY well done. It was brought in one of the very few circuits with no caselaw on the issue, against a near-absolute ban, and with plaintiffs who are thoroughly upstanding types, and whose situations were structured so as to survive an attack on their standing to sue (not easy to do, by the way). Oh, and since it's DC there's no federal 14th amendment incorporation question. An excellent example of how to structure a test case for maximum chances of winning.
Vote count: I'd be sure of Scalia and Thomas, fairly sure of Roberts and Alito. That leaves us with four probable votes and five unknowns. The litigator in me says those are pretty good odds... you have to lose all five unknowns to lose. Against that, you have to figure Breyer is probably a lost cause (the second amendment just isn't Euro enough for his taste) and a friend who is a court watcher said that Souter displays negative body language when firearms come up. Perhaps, I dunno. Still, unless you lose five out of five, you win. With most appeals, you go in without the vaguest idea of the vote count.
Benefit of waiting: I'd say minimal. At most you have the thought that Stevens (age 77 at last check) might retire. Since he's on the "liberal wing," he might be a vote against (again, a guess: he might just be a Don Kates/Mark Benenson/Wm van Alstyne type of liberal who is right now worrying that while field-stripping his 1911 he got WD-40 all over his ACLU membership renewal).
But to change things any, (1) Stevens would have to retire quickly, which is very unlikely, or the Repubs win the 2008 election, which is unknown; (2) Bush would have to appoint a pro-second amendment type, which is pure coincidence (likely priorities in nomination would be favoring executive power and opposition to Roe v. Wade -- where the nominee stands on the right to arms might not even be asked) and (3) the nominee would have to get Senate approval, which was difficult enough when the Demos were the minority. So I have to say today is as auspicious as anytime.
Concern: it might yield a ruling that the right exists, but is subject to extensive regulation. In recent years we've learned that "Congress shall make no law" abriding freedom of the press means Congress can make it illegal to mention candidates within so many months of an election, etc.. Roberts seems to have a tendency toward narrow decisions, which might reduce this risk some -- the ruling could be as narow as "a complete ban on a large category of guns violates this guarantee -- we can worry about what else might later." And even this would be an advance on the current situation, where outside of the 5th and DC Circuits, there is no right at all.
In toto, I can see the risks, and have been doing this too long to believe that "we're in the right, therefore we must win." I've been reamed, steamed, and drycleaned too often in cases where the law, as a matter of logic and intellect, was utterly clear, but the appeal failed the test of "the judge can't believe this is a good idea." On the other hand, the case is carefully chosen, it won a stunning victory already, the vote count seems good if not totally certain, and the situation is as good as we're likely to see in our lifetimes. I'd say it's a go.
I wouldn't have said this a few decades ago, mind you. It was entirely rational to wait. I have "inside information," which I won't detail, that indicates quite strongly that if the Court had reached the issue in the early 1980s we would have been flattened. But 25 years of research has changed things.
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What you say about Souter is interesting and I actually think there is some evidence he'll come along. I did some reading of recent SCOTUS cases that were firearms related and here is what I saw:
Souter authored the opinion in United States v. Thompson/Center Arms Co. where Rhenquist and Oconner joined and Scalia and Thomas concurred in a separate opinion that Thompson's carbine kit wasn't a constructive possession of a short barreled rifle as ATF wanted to hold. Souter also held in favor of Small in Small v. United States where Small was convicted of gun smuggling in Japan but wanted to buy a gun in the United States. Further in Planned Parenthood v. Casey, Souter joined Kennedy in quoting with approval Justice Harlan's statement that the "full scope of ... liberty" is not limited to "the freedom of speech, press, and religion; the right to keep and bear arms; the freedom from unreasonable searches and seizures." Casey reaffirmed the right of privacy, a right it viewed as belonging to an individual and that can be asserted by the individual against the federal government or a state. The Justices used this quote from Justice Harlan to convey the view that such an unenumerated right had the same constitutional status as all the enumerated rights in this list. All these rights retained by the people are considered by the Court to be on a par. No mention of a militia-centric qualification is made.
I think the dark horse might be Ginsburg:
Ginsburg authored Eldred v. Aschroft in which she found that prefatory clauses in the Constitution don't limit the scope of a right or power in an operative clause. Also, Ginsburg refers to the Second Amendment as an individual right in the context of attempting to understand what "carry" means in Federal law in Muscarello v. United States: "Surely a most familiar meaning is, as the Constitution's Second Amendment ("keep and bear Arms")" Souter concurred in that one.
The only negative thing I noticed was this, written by Souter and joined by Ginsburg, Stevens, and Breyer. FN 11: "While that document protected a range of specific individual rights against federal infringement, it did not, with the possible exception of the Second Amendment, offer any similarly specific protections to areas of state sovereignty." (Justice Souter, with Stevens, Ginsburg, and Breyer, dissenting) from US v. Morrison.
I'm going out on a limb and saying 6-3 without much narrowing or widening from Silberman's opinion.
-Gene
I was chairman of the NRA Board Committee that looked into bringing a DC case in 1992 and actually recommended "yes" on litigation BUT only after NRA spends time and big money setting the intellectual stage.
As the Emerson case indicates (notwithstanding it turned out well), if a "proper" case (like Parker v. D. C.) doesn't get to the Supreme Court, some desperate public defender is going to get a "bad" case there.
Don't believe me? Consider the recent Tenth Circuit case [U. S. v. Parker, that's not a pun], where the federal PD made a sound legal motion but didn't know enough about guns to challenge the government witness's clearly incorrect testimony regarding the firearm or to put in ANY relevant firearm-related testimony through his own witnesses. Deja Vu with the evidence-free motion in the 1939 Miller case. Yes, folks, some clumsey dufuss is going to lose it all in a very bad case in a very big way. NRA cannot stop this from happening.
So, the "proper" case has to get there first. NRA has sat on its hands for 15 years.
Unless they can sink the Parker v. DC case through mooting it by a repeal of DC's power to regulate firearms, they had better get in the boat and start pulling on the oars. At the moment NRA's actions are inconsistent with their words.
I think the odds are pretty decent too, and as time passes, they will only get worse.
Although we should prepare contingency plans:
Plan A: If the Supreme Court rules against us, we pass another Constitutional amendment clarifying that the Second is and always has been an individual right applying to all persons.
Plan B: If a Democratic Congress doesn't want to go along, then we get the state legislatures to call the first ever constitutional convention to restore the amendment.
At one time I would have thought an amendment to the US Constitution to clarify the RKBA would be unthinkable but now I’m not so sure. If the SCOTUS actually held the amendment to only confer some kind of collective right it might just happen. In Maine, the state Supreme Court held that their constitution’s RKBA clause was collective in nature. The people of Maine, less than 2 year later, amended their constitution as a result and the Maine Supreme Court immediately reversed itself.
So, now is the time to go to the SCOTUS. Most states are improving on gun laws, due to changes in the prevailing attitude toward gun control. So, even if we lose in SCOTUS, we can probably use it as a motivator to win at the ballot box.
if you read the framers correctly you will see that the 1st amendment was the third amendment it was put in as the 1st because of the preamble CONGRESS SHALL MAKE NO LAW ---this does not only pretain to the 1st it means every one of the following amendments --now if now one points this out we may lose --if i were to help in a small way and could give the attorneys advice i would ask them to study rule 57 of the federal rules of court and fight for declaratory relief HAVING ALL RIGHT DECLARED ONE BY ONE ---THIS CAN BE DONE WITH OUT ANY COURT CASE AND SHALL BE HEARD AND DETERMINED BY THE FULL BANK OF THE SUPREME COURT IN FRONT OF MOST EVERY CASE IN FRONT OF IT---i am not an attorne ,however i do have a law degree , and have researched the declaratory for many years ,it seen most attorneys --seem to be afraid of this course of action --maybe one of them will hear me as for the last 20 years it has been on deaf ears---- ray hawkin
Justice Stevens is 87, not 77.
http://www.supremecourtus.gov/about/biographiescurrent.pdf
if you read the framers correctly you will see that the 1st amendment was the third amendment it was put in as the 1st because of the preamble CONGRESS SHALL MAKE NO LAW ---this does not only pretain to the 1st it
Actually it wasn't MOVED to first, it became first when the first and second were not ratified.
As a resident of Chicago, I spent the entire weekend after the ruling walking on air. My hope is that this goes all the way to the Supreme Court. It's worth the risk in my opinion, at least of an Illinois and especially Chicago perspective. We have less to lose than most.
I'm very eager for a similar lawsuit to come to Chicago. Count me in. That is unless I move...which is likely.
Lawsuits against Chicago and Morton Grove have only gone to the Illinois Supreme Court as far as I know.
It seems me, admittedly an amateur, that the Second Amendment protects my right to keep and bear arms from *anyone*? The First Amendment says "Congress shall pass no law..." but the Second has no such limited scope.
I think the Second was meant to apply to anyone's attempt to disarm...whether they be another citizen, a rival government, a local municipality or the Federal Government itself.
As to original intent, I wonder how the founding generation would have reacted to, say, an entire state disarming its citizens?
My guess is they expect those citizens to rise up and overthrow the tyrannical state.