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2007 Term -- "the Second Amendment Term"?
At Concurring Opinions, the question is will the Court's 2007 Term be the Second Amendment Term?
"If the Court takes the case, then October Term 2007 becomes The Second Amendment Term. Parker would swiftly overshadow, for example, the Court’s important recent cert grant in the Guantanamo cases.
How many Americans would view District of Columbia v. Parker as the most important court case of the last thirty years? The answer must run into seven figures. The decision would have far-reaching effects, particularly in the event of a reversal."
He points out that the only way the Court could overturn the DC Circuit ruling would be to become obviously inconsistent in its treatment of the First, and of the Second, Amendments. The First Amendment establishment clause (as Akhil Amar points out) doesn't proclaim a "right," of the people or otherwise, but only that Congress shall make no law -- meaning Congress also couldn't interfere with State establishments of religion, which would continue to exist for decades. So it can be read as a federalism guarantee -- religious establishment will be a state rather than federal question. Nonetheless, the Court has read the establishment clause very broadly as creating an individual right.
In contrast, the Second Amendment does guarantee a "right of the people." It's hard to see how that can be read as something other than a guarantee of a right, and be consistent with establishment clause jurisprudence.
Finally, he suggests that in the popular eye there would be simpler reaction to ruling against Parker: "Wait a minute. I have a fundamental right to obtain an abortion or to engage in sodomy, even tho the Bill of Rights says nothing about either, yet I *don't* have a right that is spelled out in plain English? The Justices are just making it up as they go along, constitutionalizing anything they think should be protected, and abolishing and right they don't think should be protected."
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Letalis, not only am I not a betting man, I'm not a lawyer, and I don't follow the SC on any but a few issues.
I'll still bet with you: the only way to contain the political wildfire that a Parker decision would ignite is to not decide, to deny cert. There will still be a flare-up in the blogosphere, but the only law affected will be D.C.'s.
In response, Fenty and Co. will write new, slightly less restrictive, "may issue" permit laws, akin to those in NYC or Chicago.
(In fact, I wonder if this is the source of their delays. I think they're writing those laws right now. They want to be spring-loaded and ready to go, to minimize the time between cert denial and voting the new laws into effect, when D.C. subjects would have an opportunity to legally arm themselves.)
The SC may also be playing for time: the spread of concealed-carry, castle-doctrine, and no-retreat laws shows that the pro-RKBA movement is growing. If the SC can wait out another couple of Presidential terms, maybe the pressure for a decision will subside as anti-gun laws relax legislatively.
I don't recall that the DC Circuit set aside the DC carry laws. The laws implicated here were those governing possession. Granted, carry laws are the next logical target, but DC has a more fundamental issue to deal with first.
Appealing to SCOTUS was the right thing for the DC government to do. They have little other than money to lose. They believe that their cause is right (even though we would all disagree) and they have an obligation to the people of DC, not the rest of the country. They are concerned about defending their laws and the impact on the rest of us should not be their concern. From their perspective, they did the right thing.
I also think, although others here sure know more than I on this, that granting cert is more a political thing than a legal one. If the conservatives think they can win, they will vote to grant cert. At this point, the much talked about "split in the circuits" exists, so they can make a plausable case for taking Parker.
Also, the last part about David's blog was amusing. Is he telling us that SCOTUS DOES NOT ALREADY make it up as they go?
I think they'll grant cert. There's is a circuit split that needs to be resolved. As it stands, we can now challenge any federal gun law in the DC circuit on second amendment grounds. I think the Supreme Court will want to have a say in this, resolve the current circuit split, then leave the lower courts to hash out what restrictions are acceptable over the next few years.
I don't agree that carry laws are the next target. That shouldn't come until more groundwork has been laid. Too many state constitutions make a distinction between bearing arms and carrying a concealed weapon. I think it's unlikely the court would accept that the second amendment means every state has to adopt Vermont carry.
The next thing to go after will probably be whatever law DC comes up with to get around Parker. I don't think the city will go gentle into the good night in regards to their gun laws. There are plenty of other stupid and onerous restrictions in DC on firearms that won't be set aside by Parker, like their regulations for gun shops.
I think a reasonable strategy is to use DC for the next few years, before even going after incorporation. But it probably won't work out that way, because the lower courts will be hit with a lot of second amendment cases once they have to reconsider the whole collective rights stuff. I figure at least one of the circuit courts will try to incorporate the second amendment.
Since when did the text of the Constitution get in the way of the "right" ruling?
The Bill of Rights might as well be painted on the side of a barn with midnight edits replacing "the people" with "the government".
Can I double down on this bet?
I think logically they wouldn't normally take it. They didn't take the Emerson Case or the Silveira Case but they did take the Anna Nichole Case. I think the Court like other Human Beings are star struck and like the Limelight. This Case has been built up by their legals peers as the case of the century. They will take it for the same reason they took the Anna Nichole case, the publicity and fame and fortune. That's my bet.
"The Justices are just making it up as they go along, constitutionalizing anything they think should be protected, and abolishing any right they don't think should be protected."
Yes. This is why Con Law I and II are such an artful dance. And why professors love to teach it. Hundreds of articles have been written each trotting out a new "theory" to justify the last decision or to influence the next. Students love the course because there is no "answer," much less no "correct answer" to any question.
I passed TWO bar exams on Col Law without ever taking the course in law school (notwithstanding that I dropped it twice - each time taught by a BIG name in the subject - because it failed to pass my "no B. S." test). Why? Because I can do "legal analysis" 'til the cows come home. You tell me the result you want and I'll get it for you.
The next thing to go after will probably be whatever law DC comes up with to get around Parker.
No, the next thing to go after is incorporation.
Maybe the SCOTUS is waiting for a non-criminal case challenging 18 USC 922(o)! :)
Certainly Silbermann's (correct) interpretation of Miller would seem to indicate the susceptibility of banning short barrel shotguns and full auto firearms, since the are commonly used military weapons of the time.
"I think it's unlikely the court would accept that the second amendment means every state has to adopt Vermont carry."-Sebastian
I believe you are right. Which means that neither of us trust them to do their jobs properly and honorably, or that we think them too ignorant to understand "...shall not be infringed."
Well, old Letalis is in no way a betting man. However, he will go out on his limb here and predict (treacherous as it may be to predict anything about the Supremes) that they will deny certiorari.
Any takers?