Posted on 11/09/2007 3:17:09 AM PST by cbkaty
Justices to decide whether to take up case on strict limits approved in D.C.
WASHINGTON — The Supreme Court will discuss gun control today in a private conference that soon could explode publicly.
Behind closed doors, the nine justices will consider taking a case that challenges the District of Columbia's stringent handgun ban. Their ultimate decision will shape how far other cities and states can go with their own gun restrictions.
"If the court decides to take this up, it's very likely it will end up being the most important Second Amendment case in history," said Dennis Henigan, the legal director for the Brady Campaign to Prevent Gun Violence.
Henigan predicted "it's more likely than not" that the necessary four justices will vote to consider the case. The court will announce its decision Tuesday, and oral arguments could be heard next year.
Lawyers are swarming.
Texas, Florida and 11 other states weighed in on behalf of gun owners who are challenging D.C.'s strict gun laws. New York and three other states want the gun restrictions upheld. Pediatricians filed a brief supporting the ban. A Northern California gun dealer, Russell Nordyke, filed a brief opposing it.
From a victim's view: Tom Palmer considers the case a matter of life and death.
Palmer turns 51 this month. He's an openly gay scholar in international relations at the Cato Institute, a libertarian research center, and holds a Ph.D. from Oxford University. He thinks that a handgun saved him years ago in San Jose, Calif., when a gang threatened him.
"A group of young men started yelling at us, 'we're going to kill you' (and) 'they'll never find your bodies,' " Palmer said in a March 2003 declaration. "Fortunately, I was able to pull my handgun out of my backpack, and our assailants backed off."
He and five other plaintiffs named in the original lawsuit challenged Washington's ban on possessing handguns. The District of Columbia permits possession of other firearms, if they're disassembled or stored with trigger locks.
Their broader challenge is to the fundamental meaning of the Second Amendment. Here, commas, clauses and history all matter.
The Second Amendment says, "A well-regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear arms shall not be infringed."
Gun-control advocates say this means that the government can limit firearms ownership as part of its power to regulate the militia. Gun ownership is cast as a collective right, with the government organizing armed citizens to protect homeland security.
"The Second Amendment permits reasonable regulation of firearms to protect public safety and does not guarantee individuals the absolute right to own the weapons of their choice," New York and the three other states declared in an amicus brief.
Gun-control critics contend that the well-regulated militia is beside the point, and say the Constitution protects an individual's right to possess guns.
Clashing decisions
Last March, a divided appellate court panel sided with the individual-rights interpretation and threw out the D.C. ban.
The ruling clashed with other appellate courts, creating the kind of appellate-circuit split that the Supreme Court likes to resolve. The ruling obviously stung D.C. officials, but it perplexed gun-control advocates.
If D.C. officials tried to salvage their gun-control law by appealing to the Supreme Court — as they then did — they could give the court's conservative majority a chance to undermine gun-control laws nationwide.
Yes, it would. Thomas drank a different flavor.
Again:
His “minimum baseline” theory of rights is just as slippery and disingenuous as anything in Roe v. Wade or Lawrence v. Texas.
The Constitution, the Bill of Rights, federalism, state sovereignty, historic police powers, the integrity of the Supreme Court... It was a political decision.
It's easy to stay true to the Constitution as a conservative justice; honest construction constitutional nearly always matches conservative political goals. Liberals constantly engage in judicial activism because the Constitution nearly always stands in their way. That not even one of the court's "conservatives" were willing to subordinate a political agenda to well established constitutional principles speaks very poorly of all of them.
Well, there's no closing Pandora's Box.
Nope. I just have a clearer view of the actual composition of the court. For example, it used to be Alito's position that "substantive due process inquiry must be informed by history." Too bad his words turned out to be empty rhetoric.
you could at least admit that the Second Amendment Foundation and the NRA won
At the cost of the Constitution, the Bill of Rights, federalism, state sovereignty, historic police powers, the integrity of the Supreme Court...
Pyhrric victory. A little more of the Framer's original intent died and the child of leftist judicial activism (substantive due process) grew a little stronger.
while the gun banners in the Chicago government lost.
They'll have their functionally equivalent replacement written shortly.
Didn't I tell you almost exactly two years ago that incorporation was coming?
You did. It's too bad that the original 2nd Amendment only had two more years to live.
This usurpation of power stuff can be fun!
That's why the left chases that dragon.
Alito’s opinion was informed by recent history. That history shows that incorporation has already been irreversibly embraced, and under the current standards, the 2nd amendment qualified.
Too recent? You never made that complaint about Wickard when discussing Raich. ;)
That history shows that incorporation has already been irreversibly embraced
As the preferred tool embraced by the left to alter the Constitution by judicial fiat.
You never made that complaint about Wickard when discussing Raich.
I never even offered the 14th Amendment, "recent history" incorporation or substantive due process as arguments at all when discussing Wickard or Raich.
Do you think Wickard and its descendants have altered the Constitution by judicial fiat?
I think they have done so every bit as much as the incorporation mess, but through the aggregation and substantial effects tests.
I've never managed to have a discussion on FR with anyone who knew (or was even willing to learn) anything about the actual facts in the Wickard case. Feel free to discuss that case further here.
I think they have done so every bit as much as the incorporation mess, but through the aggregation and substantial effects tests.
Even assuming that for the sake of discussion, you're just offering a two wrongs make a right argument.
False accusation. I gave you a link to the Wickard thread.
I’m enjoying the thread, but the link doesn’t mean I now agree with you about the commerce clause interpretations. But we can carry on over there.
Here’s an interesting quotation from a firearms forum I visit:
“Extending the limitation of federal power to the states does some violence to the corpse of federalism, but we should not pretend we’ve witnessed a murder. The victim was gravely ill decades before any of us were born.”
The same rationale a late arriving looter might use if a store was already mostly stripped.
So how do you think that one is going to go on rehearing in light of Heller and McDonald?
I agree in one sense, but typically there is some prospect that a store may be rebuilt and resume normal business. Normal people don’t loot, and wait for that day.
We would be waiting for a day that will never come: the day President Ron Paul starts proposing legislation to a receptive Congress and American public to undo decades of incorporation.
I’d like to see that day come as much as you would, but it never will. ;)
Why would there be a rehearing in light of Heller and McDonald? The 9th based its ruling on Heller.
McDonald's "reasoning" followed Nordyke's misapplication of Heller to the states. What's different?
The District of Columbia ban was ruled unconstitutional, and the Second Amendment is indeed incorporated and applicable to the states.
It's been a remarkable run since the darkest days of the 1970s.
We now have three states with Constitutional Carry. We have shall-issue CCW permits in most of the states. We have several states that have passed firearms freedom laws. The grotesquely stupid "assault weapons" ban has expired.
To quote the Silberman decision:
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