Vote counting on the Supremes

Most people assume I am conservative because I am am anti-abortion, a redneck, drive a pick-up, hunt, and own a bunch of guns. They are surprised when they discover that I have been a union member, am rabidly in favor of free speech, am mildly in favor of gay rights, am mildly in favor of polygamy (assuming all participants are acting in free will), and in favor of government programs (like Pell Grants) that allow a person to get a little money from the government that will actually allow one to improve his/her life.

We have to get cert first and I doubt there is a guarantee of it, although I think it likely. Someone mentioned that this is being considered during campaign season. That probably helps conservatives. If SCOTUS finds for an individual right, I think the big winner is Rudy. Now, Rudy can say his gun control views are off the table as SCOTUS just settled the issue.

As for vote counting, I am not so sure we will lose all the liberals. As David said, liberals begrudgingly admit there is a right for individuals there. Look at Laurence Tribe.

Ginsburg once wrote a dissent that indicates she believes bearing arms is an individual right. I don’t recall the name of the case, but it involved a drug dealer who had a firearm in his trunk. The state had a sentencing enhancement for dealing drugs while “carrying” a firearm. SCOTUS said having the gun in the trunk constituted “carrying” but Ginsburg disagreed. Details are fuzzy, I’ll try to find the case. But what she wrote gave hope she might find for an individual right.

Of course, then we have to wonder what restrictions are “reasonable.”

Ginsburg's dissent was Muscarello v. United States. I think she's a potential vote for individual rights. I wrote up my best guesses here:
http://www.hoffmang.com/archives/2007_05.html

-Gene

Whether or not cert will be granted, IMHO, would depend on what the conservative justices see on the other side of the bench. Four are required for cert. If Roberts, Alito, Scalia and Thomas see an ally on the liberal side of the bench, you can just about bet that cert will be granted. If, however, they see no ally on that side, then it would be up to the liberal side to grant cert and they may not wish to grant that opportunity with only the DC circuit affected.

RD, I am told that this has been the problem getting cert right along, particularly with Thomas and Scalia. The other side might see this as an opportunity to nullify the right, but they have had that opportunity before and have not taken it.

Also, there is still the standing issue here. SCOTUS may take it if they feel the other plaintiffs were incorrectly denied standing.

I mentioned muscarello to Halbrook when he was here at FSU last year and he didn't trust Ginsburg to be on our side. Of course, Halbrook wasn't exactly thrilled about Parker being brought in the first place and hasn't exactly been helpful to Cato's efforts.

Why are pro rights people afraid of Parker? In my opinion, pro's have nothing to lose. The Fed and various State governments have the chance now to pretend 2A doesn't exist. The fact that Federal gun control is so hard without Parker and that so many States are relatively free bears that out.

If Parker loses, then that is a message that things get to stay as they are. If Parker wins, those in free areas won't see much affect, but persons like myself that live in Chicago have a glimmer of hope on the horizon and certain those in DC have nothing to lose and everything to gain.

No matter what SCOTUS says, voters have already made up their minds. I don't see that changing.

It should be very interesting to see all maneuvers the high nine will engage to avoid giving a definitive decision upholding the second amendment.

We shouldn't expect them to read and interpret and rule in accordance with the constitution, they haven't done so on this issue in a hundred years. There will be all sorts of qualifications on the decision they do reach and we should expect them to hold only that there ruling applies to DC and leaves unmolested all the other venues where violation of the constitution is current.

I hope I am wrong, but history tells me that is the way to bet. Even the short history of this court does so. They have never ruled in a manner that returns rights to citizens. They have sided with one level of government over another, but I can think of no case where they made sweeping decisions that restored the citizen to supremacy at large.

I hope to be wrong. I'm betting the against my wishes, though.

"....to hold only that there ruling ....." should read "...to hold only that their ruling..."

i'm privately convinced that cert won't be granted, although i'm not a betting man, so i wouldn't put any money on it.

denying cert would accomplish a politically reasonably palatable result, open the door for horse-trading on what a "reasonable restriction" is, and largely avoid placing much political responsibility for the outcome on either the justices individually or the court as a whole. granting cert could not hope to produce anything less controversial, while at the same time placing a good deal more blame and credit on everyone involved. since i don't think the supremes are interested in stirring controversy on this particular subject just now, it makes sense they wouldn't take it.

Then again, if they did grant cert and a flat-out "it means what it says - Vermont carry your machine guns at will!" just imagine how famous they'd be!

Even with all the legal minds here, who can name more than a handful of former SC Justices from the past? I'll bet every one you can name is associated with a 'pivotal' ruling.

My gut feeling is the best case scenario for the good guys right now is for the SC to deny cert.

I remember several years ago seeing Justice Kennedy on C-Span get asked a leading question about the 2nd Amendment at some student law seminar, and why they haven't dealt with it. Kennedy suggested that the lower courts need to "develop" more legal history/precedent.

I wouldn't count on Scalia to affirm the decision, either, even though he supports the individual right model. His words in his 1997 book "A Matter of Interpretation, Federal Courts and the Law", (Princeton University Press) makes fairly clear that he believes that the 2nd Amendment is a restraint only on the Federal Government. In a footnote discussing the 2nd Amendment on pages 136-137, he writes, "Of course, properly understood, it is no limitation upon arms control by the states."

Dave D, that is the current understanding of the courts. It comes under the "incorporation doctrine" where any portion of the BoR that has not been incorporated does not apply to the states. So far, only clauses in the 1st, 4th, 5th, 6th and 8th amendments have been so incorporated. That same statement in other words is in the decision US v Cruikshank where the court declared that "... The second and tenth counts are equally defective. The right there specified is that of 'bearing arms for a lawful purpose.' This is not a right granted by the Constitution. Neither is it in any manner dependent upon that instrument for its existence. The second amendment declares that it shall not be infringed; but this, as has been seen, means no more than that it shall not be infringed by Congress. This is one of the amendments that has no other effect than to restrict the powers of the national government, leaving the people to look for their protection against any violation by their fellow-citizens of the rights it recognizes, to what is called, in The City of New York v. Miln, 11 Pet. 139, the 'powers which relate to merely municipal legislation, or what was, perhaps, more properly called internal police,' 'not surrendered or restrained' by the Constitution of the United States."

We needed more justices like Justice Black (total incorporation) rather than like Frankfurter (selective incorporation) on the Court.