Supreme Court

[mpolans]

Wouldn't it be difficult for SCOTUS to make a ruling on incorporation, given that the issue wasn't before the Court? Further, wouldn't they, in someway, have to make the call on scrutiny?

If they find for the Respondent (Heller), if the lower court's opinion was based on strict scrutiny, it would seem that strict scrutiny would prevail unless the Court says specifically says otherwise. If they find for the Petitioner (D.C.), wouldn't they have to discuss the correct standard of review to be used if the case is remanded?

Ideally, we'd get a ruling that it's a fundamental individual right that is incorporated via the 14th amendment and any attempts to pass laws restricting the right should meet strict scrutiny. I don't think all that's going to happen.

Right now, I think that we will get a ruling that it's an individual right, but I'm more than a little concerned that we might be looking at a rational basis test, which would drop the level of scrutiny to pass a gun control law about as low as whale crap.

[Michael Carlin]

I think Carlos said that that the Court will find the 2d clearly an individual right; thus striking the D.C. ban as unconstitutional. They will leave the determination of the standard of review alone as not germane to the issue before the court today as the ban fails both standards of review.

I pray that is the least that they do! I agree it is the most likely course of action too. It would be marvelous if they said that the strict review standard was appropriate, but I would bet a beer they don't.

[Carlos]

I think Carlos said that that the Court will find the 2d clearly an individual right; thus striking the D.C. ban as unconstitutional. They will leave the determination of the standard of review alone as not germane to the issue before the court today as the ban fails both standards of review.

Exactly! (thanks - I should have been more clear).

The written / transcribed argument from today's hearing is now available HERE AS A PDF FILE

The following question from the Chief Justice (I believe) tells us they are not likely to find ANY standard of review applicable to this newly-defined individual right. Instead, they will let the standard of review develop over time through future litigation:

"CHIEF JUSTICE ROBERTS: Well, these various phrases under the different standards that are proposed, "compelling interest," "significant interest," "narrowly tailored," none of them appear in the Constitution; and I wonder why in this case we have to articulate an all-encompassing standard. Isn't it enough to determine the scope of the existing right that the amendment refers to, look at the various regulations that were available at the time, including you can't take the gun to the marketplace and all that, and determine how these -- how this restriction and the scope of this right looks in relation to those?

I'm not sure why we have to articulate some very intricate standard. I mean, these standards that apply in the First Amendment just kind of developed over the years as sort of baggage that the First Amendment picked up. But I don't know why when we are starting afresh, we would try to articulate a whole standard that would apply in every case?"

Edited March 18, 2008 by Carlos

[walangkatapat]

Solicitor General Paul Clement, the Bush administration's top Supreme Court lawyer, supported the individual right but urged the justices not to decide the other question. Instead, Clement said the court should say that governments may impose reasonable restrictions, including federal laws that ban certain types of weapons.

Talk about political double speak, disturbing, and very contradicting.

[j2fast]

Solicitor General Paul Clement, the Bush administration's top Supreme Court lawyer, supported the individual right but urged the justices not to decide the other question. Instead, Clement said the court should say that governments may impose reasonable restrictions, including federal laws that ban certain types of weapons.

Talk about political double speak, disturbing, and very contradicting.

Par for the course though when you mix politics into anything anymore. I'm cautiously optimistic about how the court will rule; although it seems a lot of the time all the "experts" pick one team to win there's an upset...... It seems a lot of news sources are already calling it a win for the folks that want the 2nd declared an individual right; lets hope we don't all get smack in the face with something unexpected.

[jimbob_texas]

I think Carlos said that that the Court will find the 2d clearly an individual right; thus striking the D.C. ban as unconstitutional. They will leave the determination of the standard of review alone as not germane to the issue before the court today as the ban fails both standards of review.

Exactly! (thanks - I should have been more clear).

The written / transcribed argument from today's hearing is now available HERE AS A PDF FILE

The following question from the Chief Justice (I believe) tells us they are not likely to find ANY standard of review applicable to this newly-defined individual right. Instead, they will let the standard of review develop over time through future litigation:

"CHIEF JUSTICE ROBERTS: Well, these various phrases under the different standards that are proposed, "compelling interest," "significant interest," "narrowly tailored," none of them appear in the Constitution; and I wonder why in this case we have to articulate an all-encompassing standard. Isn't it enough to determine the scope of the existing right that the amendment refers to, look at the various regulations that were available at the time, including you can't take the gun to the marketplace and all that, and determine how these -- how this restriction and the scope of this right looks in relation to those?

I'm not sure why we have to articulate some very intricate standard. I mean, these standards that apply in the First Amendment just kind of developed over the years as sort of baggage that the First Amendment picked up. But I don't know why when we are starting afresh, we would try to articulate a whole standard that would apply in every case?"

Meh. The Chief was looking for a narrowing of the arguments, in order to prevent taking an actual stand. I think Kennedy's position has reduced the chances of that happening. Should be very interesting.

jr

[Michael Carlin]

Exactly! (thanks - I should have been more clear).

Carlos,

You were clear, what I wanted to do was merely comment that I agreed.

I just wanted to agree with your well reasoned and clearly articulated position. The court seems clearly from the outset to be aiming towards a clear majority view that this is an individual right.

From what I know of the SCOTUS past, they will be as narrow as they can. You have this exactly. ( I HOPE!)

[Genghis]

Encouraging signs:

Swing vote - Kennedy - "And in my view it [2A] supplemented it [states' power to maintain militias] by saying there's a general right to bear arms quite without reference to the militia either way." (p. 13 of transcript). Does this mean we have five votes in favor of an individual right?

First Amendment analogy - Roberts - "So if you have a law that prohibits the possession of books, it's all right if you allow the possession of newspapers?" (p. 18 - 19) Comparing the 1st to the 2nd Amendment is a GREAT step. The 1st Amendment rights are considered fundamental rights. Prior restraints on the 1st Amendment right get strict scrutiny. States are governed by the 1st Amendment by virtue of the 14th. Applying 1st Amendment precedent to the 2nd would gain us a huge amount of mileage. But on p. 44 he criticizes the "baggage that the First Amendment picked up" including strict scrutiny, which could indicate the opposite.

Shocking - Stevens - "Are you, in effect, reading the amendment to say that the right shall not be unreasonably infringed instead of shall not be infringed?" The language of the 2nd (" . . . shall not be infringed") is more absolute than the 1st ("Congress shall make no law . . ."). On its face it seems to say no one can infringe it (rather than just restricting Congress and the states). Could Stevens be reading it as an absolute right?

[EricW]

Any news...? Isn't the ruling supposed to be this AM?

[Jay870]

Any news...? Isn't the ruling supposed to be this AM?

The ruling is not expected until mid summer.

[Miranda]

"infringed"

if it was a carpet, it means the boarders are clean and even.

no little cuts at the edges.... nor tassels etc.

so legally what does "infringed" mean?

The legal world dislikes absolutes

and I see a word that by definition means an absolute.

miranda

[EricW]

I wasn't trying to restart a RKBA debate. Honest.

[el pres]

Looking good so far !!!

Wahington Post

[dirty whiteboy]

http://www.bloomberg.com/apps/news?pid=206...&refer=home

[Duane Thomas]

National Public Radio has an excellent track record on predicting the results of Supreme Court decisions, based on examining the questions asked by the Justices, and what that reveals of their biases, and their known positions and voting records on similiar issues. Based on this, they predict a 5-4 win for the "individual right" interpretation.

[el pres]

Edited...

I had a guy at work come talk to me the other day asking about what this Supreme Court stuff was all about. I explained to him about the case and mentioned how certain groups work really hard to take away your guns etc.......

Scary Part : He laughed at me and said ,"whatever, they can never ban guns, it's in the Constitution" !!! I asked if he

votes and he said ,"for what, they cant change the Constitution".

Also did not know that DC had a ban!!

Edited March 19, 2008 by DIRTY CHAMBER

[BritinUSA]

The National Guard was not formed until 1903. Therefore the US Constitution cannot be referring to that organisation as it was written over 100 years before the National Guard was formed.

The Militia Act of 1903 organized the various state militias into the present National Guard system. The Army National Guard is part of the United States Army, comprising approximately one half of its available combat forces and approximately one third of its support organization. The Air National Guard is part of the United States Air Force.

[j2fast]

I cant belive that the malitia is even being discused like this. For years "The Malitia" was always portrayed (book,movies) as a rag tag group of "citizens" with guns keeping order somewhere. Now the news keeps refering to the malitia as the

National Guard or something ?? What an insult to the National Guard. What a crock of sh**, everything nowadays has

to be twisted and spun and "the people" are just a bunch of idiots ready to soak it all up....

I had a guy at work come talk to me the other day asking about what this Supreme Court stuff was all about. I explained to him about the case and mentioned how certain groups work really hard to take away your guns etc.......

Scary Part : He laughed at me and said ,"whatever, they can never ban guns, it's in the Constitution" !!! I asked if he

votes and he said ,"for what, they cant change the Constitution".

Also did not know that DC had a ban!!

I guess ignorance really is bliss for some people.....

Right now it escapes me which just mentioned it when talking about the term militia but one of them started to make the argument that the framers were talking about individual people having the right to firearms because they may need to form a militia. I'm sure I'm butchering the what was said but it was basically that because the people had their own arms they were able to rise up against the British. It didn't have anything to do with a government controlled militia, it was the farmers, etc. putting down their tools to rise up against the gov't.

Edited March 19, 2008 by j2fast

[BritinUSA]

My opinion:

The framers were concerned about any standing army, not just the British (see 3rd amendment to the Constitution). Once the Republic of states had been formed there was the concern that a standing army controlled by the Government would be used to enforce tyranny on the people (exactly as the British had done).

The right to bear arms was to protect 'We the People' from any standing army, be it British or American.

[tightloop]

My opinion:

The framers were concerned about any standing army, not just the British (see 3rd amendment to the Constitution). Once the Republic of states had been formed there was the concern that a standing army controlled by the Government would be used to enforce tyranny on the people (exactly as the British had done).

The right to bear arms was to protect 'We the People' from any standing army, be it British or American.

That is YOUR opinion

[Jake Di Vita]

Guys let's keep this thread on track...this is about specifically the Supreme Court case and any developments that we hear about. We are straying dangerously close to the political discussion that almost got this thread closed in the first place.

Jake Di Vita

Forum Moderator

[el pres]

It was not my intention to start any back and forth about what anybody meant at this or that time !!!!

And get this thread closed !!!!

I'm editing my original post...

I just thought that I should share this incident. I think now, with the case on the front page and cables news all over it,

its a great time for us to share information with friends and nieghbors about the facts!!!

They "may" acually pay attention !!!

[Carlos]

Encouraging signs:

I agree! Who exactly is predicting that the "individual right" interpretation will win? -the very people who OPPOSE an individual right to own a gun!

Reminder: one of the best sources of factual information on this case comes from the law firm hired by D.C. to convince the Court that you & I (individuals) do not have a right to own a firearm of any type. That lawfirm's website is (again) www.scotusblog.com

Here is a quote from that firm's analysis as to what happened in Court yesterday (Justices in BOLD):

"... Justice Anthony M. Kennedy emerged as a fervent defender of the right of domestic self-defense. At one key point, he suggested that the one Supreme Court precedent that at least hints that gun rights are tied to military not private needs — the 1939 decision in U.S. v. Miller — “may be deficient” in that respect. “Why does any of that have any real relevance to the situation that faces the homeowner today?” Kennedy asked rhetorically.

With Chief Justice John G. Roberts, Jr., and Justices Samuel A. Alito, Jr., and Antonin Scalia leaving little doubt that they favor an individual rights interpretation of the Amendment (and with Justice Clarence Thomas, though silent on Tuesday, having intimated earlier that he may well be sympathetic to that view), Kennedy’s inclinations might make him — once more — the holder of the deciding vote. There also remained a chance, it appeared, that Justice Stephen G. Breyer, one of the Court’s moderates, would be willing to support an individual right to have a gun — provided that a ruling left considerable room for government regulation of weapons, particularly in urban areas with high crime rates."

I am counting 5-4, at a minimum, in favor of an individual right. If you have followed this thread all along, there were several predictions that we had 4 Justices who are likely to vote for an individual right (Roberts, Alito, Scalia and Thomas) while the "swing vote" was thought to be Kennedy. Seems Kennedy tipped his hand yesterday and he's likely to vote our way.

Our friends usually tell us what we want to hear. But, when even our opponents are telling us that we will win this case, it sounds to me like they are conceding defeat.

It's obvious we will not know for certain until June or early July. No need to remind me not to "count chickens" (etc etc).

But is there reason to be optimistic after yesterday? Obviously so.

Again, I believe that following Robert's quote above, the Court will state that they do not need to state what level of scrutiny applies to gun control laws because the D.C. ban would not survive any level of Constitutional scrutiny.

If so, the immediate laws in danger under the future Heller decision would be the Chicago city and Morton Grove handgun bans. Any further prediction will have to wait until we see what the Court's decision contains.

Edited March 19, 2008 by Carlos

[markcic]

I had a guy at work come talk to me the other day asking about what this Supreme Court stuff was all about. I explained to him about the case and mentioned how certain groups work really hard to take away your guns etc.......

Scary Part : He laughed at me and said ,"whatever, they can never ban guns, it's in the Constitution" !!! I asked if he

votes and he said ,"for what, they cant change the Constitution".

Also did not know that DC had a ban!!

That is one of the scariest things I have read. It is amazing how ignorant how people are and don't even know the basics of how our government works. It isn't like the constitution has been changed 27 times so far and it was written when the first try at government in the US didn't work so well (the Articles of Confederation). I almost started a separate hate rant about it.

[jimbob_texas]

Let's summarize: