Waiting For Heller
Is There A Gun In My Tea Leaves?
By Dan McLaughlin Posted in D.C. v. Heller | gun control | Justice Scalia | Law | Second Amendment — Comments (6) / Email this page » / Leave a comment »
The Supreme Court's Term is likely to end this Wednesay or Thursday. I noted last Thursday, with the usual cautions about this kind of thing, SCOTUSBlog's observation that Justice Scalia was the most likely Justice to be writing the Court's opinion in DC v. Heller, given that only he and Justice Souter had yet to write majority opinions from cases the Court heard in March. Well, this morning the Court handed down the other remaining case from the March sitting, and it was written by Justice Souter. So the odds would seem now to strongly favor Justice Scalia.
How good is that news for fans of the Second Amendment? Well, it's unlikely that a Scalia opinion will be a bad one when an express provision of the Constitution is involved, but bear in mind that (1) even if he does write the opinion, there's no guarantee that it will be a majority opinion; it could be a plurality that leaves matters more unsettled than ever (e.g., 4 Justices favoring a strong individual right, 4 supporting DC's position, and 1 - usually Justice Kennedy, under the Court's current alignment - refusing to join either side's analysis) and (2) it's very possible that the Court will decide only the scope of the right against federal interference under the unique legal status of the District of Columbia, and won't address the thornier issue of whether the Second Amendment prohibits gun control measures by state governments. And of course, the guesswork could simply be wrong - even if Justice Scalia was originally assigned the opinion, it could end up as a dissent if some Justices changed their minds before it was finalized.
In other words: we can guess all we like, but until we see the opinion we can't know.
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Waiting For Heller 6 Comments (0 topical, 6 editorial, 0 hidden) Post a comment »
We know that Justice Scalia couldn't possibly be writing an opinion that alienates the fifth Justice and turns his majority opinion into a dissent . . .
I expect 5-3 with Breyer concurring in part and dissenting in part.
Breyer will find for an individual right giving 6 votes for that, but will be open to more restrictions than the 5 conservatives.
is that the decision is going to be a cluster. At least 5 opinions written. It will probably be 6-3 or 7-2 that the 2nd is an individual right, but probably three or four of the justices will feel that a complete ban is a 'reasonable regulation'.
All nine Justices writing an opinion wouldn't surprise me in the least. My original prediction, before finding out that Scalia was likely writing the lead opinion was:
Scalia/Thomas - the sane full-fledged 2nd amendment means what it says it means decision.
Alito/Roberts/(Kennedy/Stevens) - a much more nuanced 2nd amentment interpretation. Stevens will only join it if he gets to write the controlling decision. Same with Kennedy.
(Kennedy/Stevens) - a concurring somewhat opinion that either ignores the individual rights issue if it's Kennedy or agrees that it's an individual right but finds that reasonable regulations are permissable and DCs is permissable if it's Stevens.
Souter - a dissent that doesn't make much sense
Breyer/Ginsburg - a full-fledged dissent, 2nd is militias only, and even if it isn't, DC's regulations are reasonable.
However, if Scalia is writing the main opinion, I suspect that it will be joined by a few of the Justices in part, and almost none of them in full.
I support impeachment for any Justice that says that the 2nd Amendment is an individual right, but that any authority has an ability to put a total ban in place.
That ruling would suggest that the State has the right to eliminate rights for everyone.
Not. Acceptable.
The 2nd Amendment is an individual right, and it isn't there 'just for sport'... it is to protect the individual from all threats, foreign or domestic.
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Dependence is Slavery.
That so often we sit, with bated breath, for a court to decide what our laws are going to be. I live in Washington State where we have a fairly robust proposition system. Every election night we wait to find out how the state has voted on issues and then wait another few months to discover wheather the state supreme court approves of our decision.
This is not how our Republic was meant to operate.
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While I do still have a tiny bit of hope, I still predict this:
The Supreme Court will rule that the 2nd Amendment applies to the individual so that they are able to use firearms under the guise of Keep and Bear.
However, the state will be able to apply 'reasonable regulation' to this 2nd Amendment Right.
It will be left up in the air as to what 'reasonable regulation' means, but I do believe that they will turn over a TOTAL ban for DC.
They will be able to, however, have handgun licenses for ownership and the State (or in this case DC) will be able to regulate who gets them and how many are given out.
Translation: Nothing REALLY will be done, even if they rule that something will be done.
I recently read an article in my new edition of American Rifleman that the Brady folks cited as why people should be disarmed that alot of shootings come from muggings.
Seems to me that is reason to BE armed, but that shows the backwards thinking of those who are pro-gun-control.
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Dependence is Slavery.