Interestingly, the Solicitor General's brief filed in the Court increases the chances that it will take the case, even though it urges the Court NOT to accept the case. Sounds like a paradox, but it isn't. And maybe SG Olson intended that very paradox.
Here'e the logic: The Supreme Court has been largely ducking 2nd Amendment cases, Its last pronouncement was in 1939 when it adopted the view that the Amendment refers to military units, not individuals. But it did not entirely slam the door on the latter interpretation.
Both the legal analysis of the Circuit Court in Dr. Emerson's case, and the position taken by the SG, conflict with the last pronouncement of the Court, and with similar conclusions reached by other Circuit Courts. So, the position taken by SG Olson may compel the Court to take this case, even though Olson suggested that they should not take the case.
I hope that is the outcome, since the "Rule of Four" applies. Only if at least four Justices believe that the case is worthy of review, does the Court accept any case. So, if they accept Emerson, there is at least a reasonable chance that the Court will move to an honest and accurate reading of the 2nd Amendment.
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Stevens, Souter, Ginsburg, and Breyer will vote for the "collective" interpretation. Rhenquist, Scalia, and Thomas will definitely go individual. Kennedy leans individual. That leaves, as always, O'Connor. She's backed Garwood before in U.S. v. Lopez, but for this case, the stakes are VERY high. A loss here, and we are screwed big time.
That was also my impression. The Justice Department has to at least nominally act like they are defending the statute in question, so that the case has two sides. But the overwhelmingly important facet of the Solicitor General's brief is that he concedes the assertion that the plaintiff in general has a 2nd Amendment individual Constitutional right to keep and bear arms (the Washington Post is very upset about this). So if the Supreme Court takes the case, both of the principals in the matter are agreeing on that issue.
It used to be that the anti-gunners would taunt the NRA and other pro-gun groups for being unwilling to push a 2nd Amendment challenge of any gun-control law all the way to the Supreme Court, for fear of the outcome. And that was true. Now the anti-gunners are terrified that the Supreme Court might take the Emerson case, and in so doing validate the individual rights interpretation of the 2nd Amendment. That sort of says it all.
(In this case the weapon in question was a sawed-off shotgun, I think--and the military DOES use them.)
Thus, 'the militia' becomes US--and now includes our womenfolk, also eligible for military service.
Ain'a??
Seems a small-time crook committed a robbery and was in possession. He gets nailed for possession.
His lawyer argues that Wisconsin's ban on possession is a violation of the 2A, (separate from the robbery count.)
The crook loses, AND APPEALS!!
In two years or less the Wisconsin Supremes will have to rule on the case.
IMHO, the Wisconsin ban is patently contrary to the 2A (no CCW without extra-special reasons.)
We shall see.
PLEASE!
If you believe this to be true, please do not file a brief related to the Emerson case!
Notwithstanding the Verdugo-Urquidez (sp?)case which clearly held that "the people" in the various amendments of the Bill of Rights all do indeed refer to "The people", I assume the 1939 case you're referring to was Miller.
In Miller, the SCOTUS held that Miller's sawed-off shotgun was not protected from the NFA law because it was not a "militia weapon". Miller wasn't there to make the point that shotguns were indeed used by the military, to the dismay of German soldiers in the trenches of France in WWI. The Miller case was "about" the Second Amendment, but really said very little,` and shouldn't be considered among the top 5 or 10 citations or precedents for a Second Amendment case.