The Occasional Observer: Still waiting on Heller, but with good reason for hope

Monday, June 23, 2008

Still waiting on Heller, but with good reason for hope

Monday, June 23, 2008 | Posted by Fredo | | Edit Post

Those following the Heller/DC 2nd amendment case will be happy to see the following snippet. It's from SCOTUSblog's liveblog of this morning's Supreme Court shindig (my emphasis):

10:12 Tom Goldstein - The only opinion remaining from the March sitting is Heller. The only Justice without a majority opinion from that sitting is Justice Scalia.

10:14 Tom Goldstein - The Court has announced that it will release opinions against at 10am Wednesday. Because seven opinions remain, it will almost certainly have one additional day. Based on past practice, that day likely will be Thursday.

By convention, the Chief Justice tries to give each Justice a case to decide in each session.

Looks like we'll get the opinion later this week.

As a complete long-shot aside, the Court's term will probably end this week. In the unlikely event that a justice is planning to retire, it would probably come down in the next 7 days.

Labels: 2nd Amendment, Judiciary

5 comments:

SheaHeyKid said...: We've discussed the 2nd Amendment case extensively here before, and my thoughts in a nutshell are as follows. I think regardless of how you personally feel about gun rights, I don't see how a reasonable interpretation of the 2nd Amendment could result in anything other than gun ownership rights for individuals.

I further believe that "arms" as defined in the vernacular of the day meant more than just guns, and as such the 2nd Amendment as presently written gives individuals the rights to a much broader set of weaponry than just guns.

I therefore conclude the following. First, the Supreme Court will rule in favor of an individual right to bear arms. Second, as a result if Obama is elected and Dems take >60% majority in Congress, a law will be passed that more narrowly interprets the 2nd Amendment and limits rights.; 6/23/2008 11:55 AM
Fredo said...: Congress does not have the ability to "interpret" the Supreme Court as the Court can "interpret" the legislature.

So the congress could "narrowly" define the 2nd Amendment all it wants, but a Federal Circuit could invalidate those laws (in your example, by following the precedent of an expansive Heller decision) and the Supreme Court might not even hear the case.

For the record, I'm not as optimistic as you are. I personally doubt that they will rule as expansively as you would suggest.

Expect a fractured ruling, with the Court stating the DC ban should be overturned, but without specifically invalidating gun control laws outside of DC. Thomas will write a concurring decision that goes much further (following the SHK logic above), and there will be multiple dissents from the left, specifically Ginsburg & Souter.; 6/23/2008 12:04 PM
Fredo said...: Should have said "concurring opinion", not "concurring decision". Whoops.; 6/23/2008 12:05 PM
SheaHeyKid said...: If the Supreme Court rules broadly in favor of individual weapons rights, I'd expect resistance to the issue to perhaps go as far as a new amendment to bill of rights under Obama + supermajority Dem congress.

While I personally believe that the 2nd Amendment - as written and based on language of the day - gives seemingly exceptionally broad rights, I can see where the Supreme Court would limit the interpretation. I can imagine a ruling that says we must balance the language and intent of the 2nd amendment with advances in weapons over 200+ years, and find a middle ground. But IMO any ruling like that by the Court implicitly considers the Constitution as an "organic, living" document with interpretations varying with the day.; 6/23/2008 12:23 PM
Fredo said...: But IMO any ruling like that by the Court implicitly considers the Constitution as an "organic, living" document with interpretations varying with the day.

There are only two originalist justices on the Court, so for all intents and purposes, the court has impletmented a "living document" approach for the last 60 years.; 6/23/2008 12:52 PM