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"Court Takes No Action on Gun Case,"

Lyle Denniston (SCOTUSblog) reports. "The next date for possible action ... is likely to be Nov. 26, following a pre-Thanksgiving Conference of the Justices set for Tuesday, Nov. 20." I offer no speculation about what the delay means.

Tracy Johnson (www):
Perhaps they're taking time out for 1st-person shooter games?
11.13.2007 10:30am
Oh My Word:
Perhaps the two coalitions of four are engaging in further Kennedyology to determine where he stands??? If one gets a positive reading, that group of four will grant cert?

Justice Kennedy must be eating it up these days being sucked up to by eight Justices of the Supreme Court.
11.13.2007 10:33am
Justin (mail):
It's unclear Roberts how friendly, given his views on exective power generally, to the 2nd Amendment. Kennedy is much more liberterian - the less cynical part of me thinks Roberts may be more on the fence than Kennedy.
11.13.2007 10:38am
Brett Bellmore:
I could see Scalia being on the fence on this one; He's rather excessively fond of precident, and an awful lot of bad precident has piled up in the sixty odd years the Supreme court has been refusing to take 2nd amendment cases.

The beauty of this case, of course, is that Parker is going to be the basis for a deluge of 2nd amendment challenges to federal gun control laws, if they don't grant cert, what with it being the D.C. circuit. This is one instance where they can't achieve an anti-gun result by simply refusing to take the case.

Anyway, a circuit split on a basic civil liberty? Granting certiori ought to be a no brainer. That they're evidently having to argue about it shows what a sick institution the Court has become.
11.13.2007 10:55am
DonP (mail):
Kicking that can down the road ...

But it provides lots of interesting and speculative fodder for the blogs for another two weeks at least.

(It also gives the Brady Group time to send at least two more fund raising appeals to their lists.)
11.13.2007 11:02am
Seamus (mail):
I could see Scalia being on the fence on this one; He's rather excessively fond of precident, and an awful lot of bad precident has piled up in the sixty odd years the Supreme court has been refusing to take 2nd amendment cases.

But he's fonder of the actual text of the constitution, and given that there's been no *Supreme Court* precedent since Miller, I don't think he'll find too much problem in ignoring 60 years of lower court precedent and setting a course that conforms to his understanding of the text.
11.13.2007 11:25am
Justin (mail):
It takes 6 justices to refuse cert, for all pragmatic purposes. So, its easier to "achieve an anti-gun result" by taking the case and ruling, then by not taking the case, if you assume that the people who don't want an "anti-gun result" is default-optioning to hear cert, which would seem to be the case unless either 1) there is a good, non-ideological reason to refuse cert in this case, or 2) there is some concern about the outcome of a 9-person vote, and there is a "pro-gun" contingent on the court that is also voting strategically.

The second seems plausible in a cynical sense.
11.13.2007 11:29am
Tony Tutins (mail):
Why was today (yesterday?) considered the due date? Is there a set time to review cert petitions?
11.13.2007 11:36am
NaG (mail):
Petitions are reviewed on Fridays and then orders for cert issued the next business day.

I think the Court will take the case, but is giving some extra time to think out what the questions presented should be. I have no doubt that there are four votes to grant cert (likely more) on the petition, but there's a disagreement as to whether the cross-petition should be a part of it as well.
11.13.2007 11:40am
DJMoore (mail) (www):
Just out of curiosity, what is the last possible day for the Court to announce the cert decision, one way or another? I have a feeling they're going to put this off as long as they can.
11.13.2007 12:41pm
Brett Bellmore:

But he's fonder of the actual text of the constitution,


Frankly, it's that "there will be few tears shed" language in "A Matter of Interpretation" that has me worried. Scalia is an oportunistic originalist, perfectly willing to dump originalism in any given instance for a wide variety of reasons.
11.13.2007 1:29pm
C. Mazur (mail):
Also, do all cases granted cert within a given court session get decided during that session? In other words, if cert is granted later this year, will the case be heard/decided before the 2008 elections?
11.13.2007 1:32pm
An0n:
I agree with Justin's assessment. Pro-individual-right justices won't necessarily vote for cert. if they believe a merits vote of the full court would give a bad result.
11.13.2007 1:34pm
Chris Bell (mail):
And how will Thomas, with his incorporation skepticism, turn out?

It's going to be a fun ride.
11.13.2007 1:35pm
KeithK (mail):

And how will Thomas, with his incorporation skepticism, turn out?


There is no incorporation question presented here. Since DC is a federal jurisdiction, the gun laws in question are purely federal.

Of course, I don't understand why there would be any incorporation issue with the 2nd at all. The text doesn't say "Congress", just that the right shall not be abridged.
11.13.2007 1:49pm
Waldensian (mail):

Of course, I don't understand why there would be any incorporation issue with the 2nd at all. The text doesn't say "Congress", just that the right shall not be abridged.

I don't see any mention of "Congress" in the 5th Amendment, either. So I assume you believe that no person can be held to answer to any state for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury?

You must be pretty hacked off at, oh, about half the states.

Amazing they've been flouting core Constitutional rights for so long without being called on it.
11.13.2007 2:54pm
Arkady:

I don't understand why there would be any incorporation issue with the 2nd at all. The text doesn't say "Congress", just that the right shall not be abridged.


Things get sticky, though. If the 2d, on this interpretation, applies tout court to federal and state jurisdictions, then could one not argue that the 1st only applies to the federal government and that the states can restrict religious practice, curtail speech, and shut down newspapers?

The 1st doesn't say:


No law shall be made respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.


It would be a strange Bill of Rights that, say, enjoined the states from requiring excessive bail, but allowed them to toss you in the clink for voicing your opinion. Or maybe it is a strange Bill of Rights.

I'm probably not wording this as clearly as I could.
11.13.2007 2:59pm
Waldensian (mail):
MAN that comment of mine was snarky for no discernible reason. Sorry about that.
11.13.2007 5:14pm
David Huberman (mail):
Tony Tutins asked:


Why was today (yesterday?) considered the due date? Is there a set time to review cert petitions?


There is no set time. Nothing says SCOTUS can't sit on a Petition for a Writ of Certiorari for years, as best I know.

... and C. Mazur asked:


Also, do all cases granted cert within a given court session get decided during that session? In other words, if cert is granted later this year, will the case be heard/decided before the 2008 elections?


No to the first question. Especially in the early part of a calender year, granted petitions are often scheduled for the next Term. To the second question, it would take a granting by end of January to get oral argument scheduled for this Term, I believe. Were that to happen, then a decision would likely be announced on or before July 1, 2008, unexpected factors nonwithstanding (cf. Claiborne)
11.13.2007 5:15pm
David Huberman (mail):
As a follow-up, I just re-read the 2007 Rules of the Court and confirmed that Rule 16., covering the dispositions of Petition for Writs of Certiorari, places no burden on the Court to accept or deny the petition in any published timeframe.
11.13.2007 5:20pm
Clayton E. Cramer (mail) (www):

There is no incorporation question presented here. Since DC is a federal jurisdiction, the gun laws in question are purely federal.
Right.


Of course, I don't understand why there would be any incorporation issue with the 2nd at all. The text doesn't say "Congress", just that the right shall not be abridged.
Because there was general agreement that the first eight amendments limited the power of the federal government alone. Madison wanted some provisions applied to the states as well, but couldn't persuade the rest of Congress to that view. Barron v. Baltimore (1833) settled it, although a few troublemakers like the Georgia Supreme Court in Nunn v. State (1846) insisted that the Second Amendment did limit the states.

Incorporation of the Second Amendment will eventually be found through the privileges and immunities clause of the 14th Amendment, as both proponents and opponents of it acknowledged it would.
11.13.2007 5:29pm
Clayton E. Cramer (mail) (www):

It would be a strange Bill of Rights that, say, enjoined the states from requiring excessive bail, but allowed them to toss you in the clink for voicing your opinion. Or maybe it is a strange Bill of Rights.
No, it is the result of the braindead selective incorporation doctrine, which has cherry picked which clauses of the Bill of Rights apply to the states, with nothing approaching a rational basis. Akhil Reed Amar's The Bill of Rights just devastates the reasoning behind selective incorporation, and then brings for his own theory which is more clever than persuasive.

Full incorporation was the intent of the authors of the 14th Amendment, and it is the only logical way to do this. Either the first eight amendments are imposed on the states, or they aren't.
11.13.2007 5:33pm
Helen (mail):
Clayton Cramer said:

Full incorporation was the intent of the authors of the 14th Amendment, and it is the only logical way to do this. Either the first eight amendments are imposed on the states, or they aren't.

I'd be interested to hear what sort of case you think might be the right vehicle for achieving this full incorporation under the P or I clause. I'm not a lawyer, so I'm probably in over my head here, but wouldn't the Court have to find a reason to overturn Slaughterhouse in order to accomplish this?
11.13.2007 5:52pm
KeithK (mail):
My point was basically that it doesn't make sense to argue that the 1st is incorporated implicitly by the 14th but that the 2nd isn't. Either fundamental rights are protected from state action via the 14th or they are not.

Though I guess if you accept the (IMO indefensible) collective rights view you could draw a rational distinction.
11.13.2007 6:46pm
Brett Bellmore:
I'm not sure it's possible to devise such a vehicle; The Court is well known to be allergic to admitting that long standing cases with a lot of subsequent rulings relying on them were wrongly decided, let alone decided in bad faith.

The best we can hope for is to continue the process of selective incorporation until it's complete, and we arrive at the point that we should have right after the 14th was adopted, albeit by bad reasoning.
11.13.2007 7:10pm
Dennis Nicholls (mail):
Actually the non-incorporation argument is the basis of the US v Cruikshank decision (92 US 542 (1875)), which held that the Free Assembly right of the 1st A and the Right to Bear Arms right of the 2nd A don't apply to state government action. Half of Cruikshank was later overturned and the right of Free Assy was held to be applicable to state government action (anyone got a cite on that one?). So Cruikshank is now a half-overturned weak precedence case with regards 2nd A incorporation doctrine.
11.13.2007 7:13pm
Dave Hardy (mail) (www):
Half of Cruikshank was later overturned and the right of Free Assy was held to be applicable to state government action (anyone got a cite on that one?).

The case has been cited by the Supremes in the last decade (for the proposition that freedom to petition *the Congress* was a right created by the Constitution and thus is a P&I of US citizenship). Don't believe it's ever been overruled. It held that the other rights mentioned were not incorporated under the P&I clause, so more recent cases under the Due Process clause could incorporate them without overruling it.

I quite agree with everything said in this thread about the Court rejecting P&I incorporation (for which there was abundant and strong legislative history) and accepting DP incorporation (for which there was little, and the nature of which is quite arbitrary).
11.13.2007 10:35pm
Justthisguy (mail) (www):
There's an Internet meme that's been going around for a while, designating November 19th as National Buy More Ammo Day.

I approve of that, and bought lots of ammo last year on that day. I intend to do so again this year.

I just think it's a bit funny that the Supremes have told us that they'll give us the word on certiorari, the day after that.

(to the tune of "It's a long way to Tipperary")

It's a long way to certiorari, it's a long way, to go...
11.14.2007 12:13am
NickM (mail) (www):
Incorporation of the Third Amendment would be meaningless, because the states lack the power to raise armies in the first place.
Incorporation of the Seventh Amendment is the one that's not going to happen. Imagine a jury trial right in every small claims case.

Nick
11.14.2007 3:32pm