Heller wait continuing....

Perhaps just anticipatory musings....

But anyone inclined to predict when the ruling will be released? My money is on 23 June. That's in part because it seems most filings in this case have been on the last day possible; generally, why deliver something like this before the due date...what is the advantage in doing that? My prediction is also in part due to some wishful thinking....such as...

Does anyone suppose that given the lack of precedent, it's possible (if not probable) that the majority is seriously considering/studying some of the excellent scholarly work on the 2A (eg. the founding era thinking, historical documents, personal correspondence, etc.)? For example, David Young's book "The Founders' View of the Right to Bear Arms" is just out and has been cited scads of times in the Heller briefs. Moreover, Young's older book has been cited many times as well. Unless I am mistaken, these seem like "go-to" references for the majority opinion. Is it just wishful thinking on my part that we will receive some manner of favorable ruling, and thus should also expect that the majority would like to go down in history as getting this one right?

Perhaps...the longer they wait, the more informed their opininon stands to be.

Any thoughts?

Perhaps...the longer they wait, the more informed their opinion stands to be.

I've never noticed this to be the case in state (any level) or lower Federal courts.

Methinks it'll be the last decision issued this Term.

That's what I'd do if'n I were Chief Justice Roberts.

Although I agree with 30YearProf I hope Carl and Mr. Hardy are correct.

There's no way they're going to make everyone happy; but I got to think (at least hope) they're going to have no choice but to find that there is a personal right defended by the 2nd amendment. And not one so limited as to let a total ban be acceptable.

Well...speaking to the comment that "they aren't going to make everyone happy", I agree. But when was everyone happy? That's not their job. Their job is to get it right (= correct).

Given that all the words have meaning, I still think their greatest "hurdle" is to maintain a meaningful and robust right to keep and bear arms in light one one of the rights' obvious purposes ... to enable and preserve an effective citizen's militia ... which is necessary to the security of a free state.

Much of the opinion I suppose will speak to the defense of self, of home, etc., against common individual criminals. But in reality that's just one of the more obvious and unstated purposes. The people's militia, and it's importance to our security, is a clearly stated purpose. That purpose cannot be ignored by the court.

And that is where the trick will lie...for this subject includes what Polsby and Kates correctly described as "...the argument [that]deservedly poses the highest hurdle to dispassionate argument about civilian weapons policy."

http://www.foac-pac.org/laws/Polsby.html

Here is hoping that the Supreme's don't attempt a headstand in order to reconcile the militia purpose with the right to arms.

I'm still sticking with my 6-3 predicition in support of RKBA.

Thinking outside the norm:

What about the Sixth and Seventh Amendments? What about the absence of Supreme Court opinions on the Second amendment between the Miller case in 1939 and the present Heller case (69 years?)

Of the untold number of Second Amendment criminal and civil cases denied by the U.S. Supreme Court wouldn't that amount to (1) denial of equal justice under the law, the Sixth and Seventh Amendments, and (2) human rights violations under human rights treaties?

Given the United States dismal history on human rights I suspect the U.S. Supreme Court will take the middle ground of "reasonable regulation" on the DC gun control law. They will say "individual right" but with exceptions for reasonable regulation. How far reasonable regulation can go is the pivotal question.

Delay in the DC vs Heller decision can only be a good sign. It implies that the justices and/or clerks are actually taking time to study American historical documents to better understand what the Founders' intentions were. This is a very good thing and can only help Heller and those supporting our rights because the historical record is clear and complete.

The fact is that there was a previous Federal case involving considerable delay prior to a decision on this very subject. The result of that delay was a 180 degree change in the direction Federal Appeals Courts' decisions had been going in dealing with the Second Amendment. In the Emerson case decided by the Fifth Circuit Court of Appeals on October 16, 2001, the decision followed well over two years after the case began. It is clear that the reason for the delay was that some of the Court's justices and clerks actually read The Origin of the Second Amendment document collection. As a result, the Emerson decision was based on historical fact rather than the Easter Bunny, Tooth Fairy, or Santa Clause versions of our history as presented by supporters of gun control.

Look at the situation the Supreme Court justices are in. They must decide an issue of fundamental importance to our very form of government on which the two sides completely disagree, not only about the meaning of the provision as a whole, but also about every term and phrase of the Second Amendment. There are academic historians and constitutional experts on each side of the argument providing the Court with completely contradictory views. To the extent that the justices are unfamiliar with the relevant details of our history, they must either study those details now or flip a coin to pick one of the competing arguments.

This subject is too important for the justices to forgoe studying the period sources. They will not want to produce a decision that is directly contradicted by extensive and easily available historical information, the existence of which they have been made fully aware. It would not only make them a laughing stock for the nearly 75% of Americans who can read and understand plain English, but it would also result in serious undermining of the Court's prestige, relevance, and legitimacy (as opposed to legality). There is every possibility that the Heller decision will be delayed, conceivably for a considerable period, so that the justices can thoroughly review the historical information. Any such delay can only result in a more clear and strong individual rights protecting decision because that is what the historical sources present for those willing study them.

In re: Mr. David E. Young, posted at June 2, 2008 07:38 PM . . .

"To the extent that the justices are unfamiliar with the relevant details of our history, they must either study those details now or flip a coin to pick one of the competing arguments."

I greatly admire you and your work and have bought 1 copy of your previous tome and about 5 or 6 copies of your latest work.

But I have to disagree with this obviously casual surmise of yours.

For there is a third and perhaps more cynical option for the anti-self-defense, anti-rights, and anti-gun crowd to exercise: they can simply consult their horde of prejudices and decide based on what they already believe, regardless of whether it has any basis in history, fact, logic, or humanity.

Reverting to decision-making on the basis of prejudice is one of the oldest, most pernicious, and, sadly, perhaps the most ineradicable of human intellectual vices.

I think we'll be lucky to win on a 5-4 split.

Admittedly, I am not dialed in to the inner workings of the SCOTUS.

I'm just a cautious skeptic when it comes to estimating the intellectual and moral integrity of my fellow man.

As for having faith based on anyone's desire to not be regarded a laughingstock . . . the Founding Fathers condoned slavery . . . as did Roger Brooke Taney (of "Scott v. Sandford "fame") . . . and Supreme Court Chief Justice Morrison Remick Waite reached some disturbed and disturbing conclusions in his "UNITED STATES v. CRUIKSHANK," 92 U.S. 542 (1876), which found that the U.S. Constitution does not protect us from being murdered by government employees (the murdered in question being unlucky enough to have been born black--and not merely members of a queer little religious sect somewhere in Texas).

I would laugh at all these things I've mentioned above if they were not so nauseating.

In sum, I'm just hoping that the SCOTUS does not F^*K this thing up.

I'd prefer a narrow, inconsequential opinion to a royal F^*K-up of the whole situation.

I don't think we will ever be able to count ourselves as having made profound or lasting "progress" (another fond myth) unless and until the SCOTUS has the backbone to fully incorporate the 2nd Amendment and to impose a very strict level of scrutiny on any attempts to infringe it to any degree whatsoever.

Considering that a constitutional issue that has no limit prior decisions, I would think Roberts would like to get it right. I also think they do not want a broad ruling. The issue is "Does DC law banning handguns violate 2nd Amendment?"

Answer is yes but with what restrictions? The may not want to get into the needs for militia and the ability to have and posses military arms and all that can imply. They may just wish to allow DC residents to have handguns without restrictions such as registration and what type of handguns. Leave it simple. I am sure that conceal carry is to be left up to the city to decide if allowed or not. Open carry is within DC authroity to regulate. The ability to have in home or transport will be allowed as long as owner is not a minor or felon.

>>>It would not only make them a laughing stock for the nearly 75% of Americans who can read and understand plain English, but it would also result in serious undermining of the Court's prestige, relevance, and legitimacy (as opposed to legality).

True enough, but my guess would be that they will somehow try to "split the baby".

After all, they won't want to be shunned on the Washington cocktail party circuit.

JMHO, but I would expect some kind of fractured and convoluted decision, which will leave the issue just as much in the air as it has been. Something along the line that while the 2A protects an individual right, the handgun ban is "reasonable regulation" that localities can impose.

I'll be surprised if they actually sustain the DC Circuit.

But, I'm a natural born cynic.

Hope I'm wrong.

My money is on SCOTUS upholding the DC Circuit's ruling. It was pretty clear where Scalia, Roberts, Thomas an Alito were coming from - they all clearly understand the right to be individual and almost certainly understand that D.C.'s law, being an effective outright ban, cannot withstand the constitutional protection of such a right. Kennedy, to my surprise, also seemed to be coming from that direction. If so, that's 5 right there. Ginsburg, amazingly enough, has indicated in dicta in another opinion, that she understands 2A to protect an individual right. If she is at all consistent and intellectually honest, she must find that D.C.'s outright ban violates that right.

Breyer and Souter can go pound sand, for all I care. They are so far left, I can't believe Souter was appointed by G.H.W. Bush. Breyer is the very epitome of an activist judge - he not only admits it, he advocates it in his book "Active Liberty." To me, this discloses a fundamental lack of suitability to sit on any appelate-level court, as it evidences a lack of understanding of what John Marshall meant by the notion that it's the judiciary's job to say what the law is - not what it should be.

Anyhow, based mostly on what I heard from the justices at the oral arguments (not that I was there; I mean reading the transcripts and listening to the audio), I feel pretty confident we'll get a ruling that is more positive than negative. Given Roberts' inclination towards ruling on the narrowest grounds available, I'm betting it won't do much more than answer the specific question asked - i.e., yes, 2A protects an individual right and yes, D.C.'s law violates 2A. There is no reason for the court to go into any kind of discourse as to what is or is not allowable in the way of regulation - other than saying an outright ban is not allowable.

If so, it surely will open the door for more litigation to explore the outer limits of what is allowable and what is not. But I doubt the Court will try to answer that question with this case.