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« No Heller op today | Main | Living Constitution dilemma »

Trying to read Heller tea leaves

Posted by David Hardy · 23 June 2008 11:13 AM

Over at the Volokh Conspiracy they're trying read the tea leaves.

Court's custom is to ensure each Justice gets to write at least one majority opinion from each "sitting," i.e., a month worth of oral arguments. Of the March sitting, coming into today, only Souter and Scalia had not had that privilege, and today Souter got one, leaving only Scalia. Maybe Heller will be his, meaning Heller clearly wins. I'd add that that also means the division of votes was firm from the beginning. Scalia's outspoken style is less likely to draw additional Justices in than is, for example, that of CJ Roberts. If there was a chance to pull an additional vote in from whoever is dissenting or concurring, it seems likely to me that Roberts would have kept the opinion for himself.

Gene Volokh wonders, if Scalia does get the opinion, whether a dissent he filed Thursday might presage a point he'd make -- that he (being a textualist) declines to go with the concept that a right's wording may be disregarded if doing so would serve its purpose. I.e., that purpose cannot overcome wording. I think that may be a bit of a stretch.

· Parker v. DC

2 Comments | Leave a comment

Jim | June 23, 2008 12:36 PM | Reply

Hopefully we'll know all by Thursday noon...

David E. Young | June 24, 2008 7:00 PM | Reply

There is, however, the chance of pulling in additional votes even for a Scalia opinion because the period historical sources directly contradict the supporters of DC's gun control laws and support Heller. This fact becomes immediately apparent as soon as one looks at the period sources themselves and bypasses the middlemen. That is why this decision MAY be substantially delayed.

It will take a little while for any justices who want to actually study the history to go over the period sources thoroughly. If there was ever a case where this was a good idea, Heller has to be it. As I pointed out elsewhere, this type of delay is exactly what occurred in the Emerson decision from the Fifth Circuit Court of Appeals in 2001.

Since the period historical sources are voluminous, complete, and clear, justices who would normally be biased towards one or the other side of the question may be sincerely interested in further studying them. This will take some time, and there will be a possibly substantial delay in the Heller decision beyond June because of it if it is the case.

Any such delay will be a very good sign and increase the chances of an ovewhelming victory for Heller.

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