Second Amendment Oral Argument:
I'm very hesitant to draw inferences from oral argument, but this time I can't help it. Here's Lyle Denniston on SCOTUSblog:
In an argument that ran 23 minutes beyond the allotted time, Justice Anthony M. Kennedy emerged as a fervent defender of the right of domestic self-defense.
"With Chief Justice John G. Roberts, Jr., and Justices Samuel A. Alito, Jr., and Antonin Scalia leaving little doubt that they favor an individual rights interpretation of the Amendment (and with Justice Clarence Thomas, though silent on Tuesday, having intimated earlier that he may well be sympathetic to that view), Kennedy’s inclinations might make him -- once more -- the holder of the deciding vote."
That would be something like shooting your mouth off?
In Heller, I understand the SG's brief to take the view that the 2d A guaranteees an individual right, but that the DC regulations do not violate that right.
If that is correct, then isn't the resolution of the first question (individual vs. collective right) unnecessary? The DC regulation would clearly violate no collective right (and if it's a collective right, might Heller not have a standing problem). So the Court could assume without deciding, the existence of an individual right, and explain why the givernment interests here trump that right (using SS/narrow tailoring or whatever SOR they felt appropriate).
If I'm right so far, and if the CJ means what he says in the quotation above, is there any chance we see a decision along those lines (CJ plus the four "liberals")?
I don't think there's a snowball's chance of it, and I may be wrong in one or more of my premises (NOT my area of expertise), but I thought it worth throwing out there.
How is this different?
"With Kennedy, Roberts, Alito, and Scalia leaving little doubt they favor an individual rights interpretation, Thomas' inclination might make him -- once more -- the holder of the deciding vote"
Or
"With Thomas, Kennedy, Roberts, and Scalia leaving little doubt Alito's inclination might make him -- once more -- the holder of the deciding vote"
Or
"With Kennedy, Thomas, Alito, and Scalia leaving little doubt they favor an individual rights interpretation, Roberts' inclination might make him -- once more -- the holder of the deciding vote"
Or
"With Kennedy, Thomas, Alito, and Roberts leaving little doubt they favor an individual rights interpretation, Scalia's inclination might make him -- once more -- the holder of the deciding vote"
???
sk
Souter wants legislatures to decide these issues in the future.
Ginsburg and Stevens dissent on everything.
It's the idea that Kennedy is the deciding vote because sometimes he votes the way conservatives want, and other times the way liberals want. But with the other four justices, conventional wisdom is that we already know which way they will vote.
It's the same idea as saying moderates elect the president. Core party members will always support their candidate, but a presidential candidate must convince the moderates that he's worth their vote. Likewise, at this particular oral argument, an advocate would best spend his effort persuading Justice Kennedy rather than "preaching to the choir" by making arguments that only resound with a Justice already on your side.
When one of the top appellate advocates of the day cannot even bring himself to argue in favor of a "collective-rights" version of the 2nd Amendment -- in fact, he disavows it immediately! -- I suppose the big question after all is said and done is to wonder why so many practitioners, judges, and professors got it so, so wrong for so, so long.
Does it say that? I thought it said something to the effect that they needed to remand to determine whether it did violate the right or not based on a more deferential standard than that used by the appeals court. There's a distinction there even if it might end up with the same result.
I saw the SG as defending the host of federal gun laws from being invalidated by a broad ruling here rather than defending the DC ban itself.defending
Kennedy writes for 5 and says that a law infringing the right to keep guns in the home will get strict scrutiny
Breyer writes for 4. Absolute bans are no good, but there should be lots of deference to the legislature.
I believe it is well accepted doctrine in the relevant social sciences that long-guns and rifles are far more lethal than handguns. That is to say, all things being equal, one would expect far more deaths in a city where everyone had a rifle but no handgun than in a city where everyone had a handgun but no rifle...
Hope you're right. It would be a lovely result, and a burr under all the right saddles.
If not, I think its time to go invest in a Barrett 50BMG and a couple hundred rounds. Just to stash away. An investment for the future.
Come to think of it, might an upholding of the DC law create a surge in gun sales nationwide?
Of course, as lawyers, we should welcome the latter type of opinion, as increasing the opportunities for employment in cases that will take years to wind through the federal courts, while generating much passion (&opportunity for getting the attorneys' names in the papers).
I predict Heller wins abut we don't quite get strict scrutiny, although the Court hints that it would rule that way in the next case.
If the Court rejects the individual right reading, or if it accepts that reading but holds that the DC ban does not infringe the right, it may be the gun rights movement's Roe. I believe that the reaction to a perceived anti-gun ruling in Heller could turn the already-powerful gun rights movement into a political behemoth.
I could be wrong, though.
I expect that the gun rights movement will paint any ruling short of individual rights/strict scrutiny as "anti-gun" and will fund raise and organize on that basis. In any case, this will not be a Roe, since the individual rights view is almost sure to win, perhaps even 9-0.
NaG, despite not knowing what a "leftist" is (really, conservatives, if you don't know the difference between a liberal and a leftist, don't embarrass yourself by using the term "leftist"), has identified what the result is going to be. Roberts indicated that there's no need for a special standard of review; rather, any regulation that is analogous to one that was permissible in 1791 is going to be constitutional.
By THAT standard, we'd be free to arm ourselves with the latest military firearms, complete with grenade launchers and bayonettes. But the concealed carry movement might be in trouble... In 1791 they WANTED the public armed comparably to the military, it was only weapons less suitable to military use than criminal they thought to prohibit.
Come to think of it, I don't recall reading anything about ANY weapon being prohibited, as opposed to the carrying under certain circumstances.
That's likely true, but those claims won't have much traction if the DC statutes are invalidated.
If the individual rights view prevailed but the DC statutes were nevertheless allowed to stand, it could well be a Roe; an individual right holding that tolerates such extreme regulation would outrage many gun owners nearly as much as a straight collective rights holding. As well it should.
they didn't bring up the case of a woman or handicapped person being more able to handle a handgun more readily than a long arm- for those who care, they blew a PC moment, there.
Yes, Dilan, we heard you the first time. I didn't take that away from the CJ's questions -- at least not with the great certainty that you express. But even if it's true, what 1791 law do you think was analogous to the DC statutes at issue in this case?
I think the DC statute is going to be struck down.
But I do think that just about everything short of outright prohibition of long guns or handguns is going to get upheld under the Chief Justice's standard.
There's plenty of wishful thinking going on in these comment threads. Strict scrutiny isn't in the cards.
I agree with you there. I have always maintained that the outcome of this case likely won't make a lot of practical difference in the long run: I expect that regardless of the outcome of Heller, gun rights will remain a largely political issue.
It was much more fun in the O'Connor days, when it would be 4 for strict scrutiny, 4 for deference, and O'Connor in a separate concurrence advocating an incomprehensible balancing test that basically meant "see me" for any future case.
But since standing likely rests on the question of the existence of an individual right, assuming there is such a right to reach the second question decides too little--or too much, because if the P. actually lacks standing, the second question should not be reached. So the court must answer the individ. v collective right q.
No, NaG, you don't. You referred to "leftist" justices on the US Supreme Court. Not one of the 9 is a leftist. There are 4 who could be called "liberals" depending on your definition. But not one leftist.
Okay, both of you: please give us your definitions. And no fair going the Clayton Cramer route (his definition of "leftist" apparently amounts to "imaginary people I don't like").
The whole oral argument was a big disappointment. I’ve heard dormitory bull sessions with more intellectual content.
Yes, well, half an hour isn't really enough time to do more than skim the surface of 80 or so briefs, is it? But I think Orin's right: I don't think it matters. Those 80 or so briefs had settled the justices' positions before Dellinger opened his mouth.
It's a good thing, too, because Gura didn't impress me. (Neither did Dellinger, but I thought Gura was worse.)
I define "leftist" as one who promotes policies and interpretations of law that favor the interests and positions of those who are politically progressive.
I define "leftist" as one who promotes policies and interpretations of law that favor the interests and positions of those who are politically progressive.
Well, that's a Humpty Dumpty definition. There are plenty of liberal non-leftists-- you want to eliminate them from the equation and imply that every liberal is a Pinko.
Kennedy:
Wow.
Oh. Like both Democratic unpresidential candidates.
Yours, TDP, ml, msl, &pfpp
In what language? Certainly not English; perhaps Esperese.
In any case, it would be refreshing if so-called progressives like Dilan would chafe more about carrying the ideological baggage (or, if you prefer, bilge) of socialism than about carrying the nomenclature of socialism.
I have to question your thinking in the rifles and shotguns vs. handguns passage. Yes, the bullets are different sizes and some guns fire a larger bullet with more energy. It shorthand, we could agree for brevity that rifle bullets are more lethal.
And hell is hot, rice in China is cheap, and war is hell. How does the having a rifle matter when confronting a mugger, rapist, or killer in the park? You seem to have detached from reality. Allowing citizens to only own rifles or shotguns denies them the ability to have a weapon available for self-defense in parking garages, offices, in public, in the park, on the way to the gold course, between college school buildings, or any other place that self-defense is required.
The deterance value of handguns is that the attacker cannot discern who is carrying and who is not.
Also, rifles and shotguns are hard for smaller individuals to use. Further, individuals with physical impairments cannot readily handle a rifle.
Just how do you see this issue in regards to the current question?
I also think your version of "liberal" probably won't pass muster, either. I have a feeling you think a "liberal" is somewhere between a leftist and a moderate. Sadly, we classical liberals -- the only real liberals -- have taken the term back from you leftists who have screwed it up.
they don't.
Left-- a radical opposed to a conservative position
liberalism: a political philosophy based on belief in progress, the essential goodness of the human race, and the autonomy of the individual and standing for the protection of political and civil liberties.
Got it? Leftism = radicalism (i.e., socialism, communism, syndicalism, etc.). Liberalism = believer in civil liberties and government programs that assume the goodness of the human race.
I don't think you guys are arguing in good faith. You know the difference between leftism and liberalism. You just like saying "leftist" as a smear.
2 other points:
1. "Leftism" does not mean left of center. There are plenty of ideologies between socialism and centrism which are not leftist.
2. Yes, I am aware of classical liberalism. And I don't begrudge those libertarians and free marketeers who want to describe themselves in that way. But the modern usage of liberalism in politics is to refer to the ideology described above, i.e., an ideology that rejects government ownership of the means of production or repression of civil liberties but supports government programs to help the poor and disadvantaged.
And "leftism", in common usage, encompasses but is not exclusive to socialist radicalism: though they are ideologically distinguishable, Che Guevarra, Noam Chomsky, and Dilan Esper are all men of the left; hence, leftists. Pretending otherwise -- to the point of claiming that those of us using the language correctly are arguing in bad faith and peddling a smear -- is laughable, no matter what Webster's says.
Esper's definitions of liberal and leftist are outdated:
"the autonomy of the individual and standing for the protection of political and civil liberties"
Lefties and liberals do not believe in the autonomy of individuals, they believe in the power of government to get things right more often than individuals, therefore government should have in hand in everything.
Liberals show no limits to their grasp but what they recognize they can't get away with yet, or what isn't personally popular with them.
Leftists are the more openly and radically ideological liberals.
Neither category of person has classical liberalism inhering to their schools of thought.
Yours, TDP, ml, msl, &pfpp
You listening Scalia?
You hadn't heard it before because it's obviously silly: You don't amend a constitution in order to make clear what is already clear, AND hasn't yet been deliberately obfuscated, having been adopted only a few years prior.
The preface is there to make clear that it's a right to military arms, because the point of guaranteeing the right is that the people will ALREADY possess them, and be experienced in their use, when called up to join a militia. But Kennedy, who doesn't want to kill the amendment off entirely, can't bear the thought of upholding it in it's original sense, either. (Which is why he dissed Miller, which got it right.)
So he remakes it as a right to own whatever firearms the government decides are suitable for civilians, (Let's hope they don't decide it's supersoakers.) while the good stuff gets reserved for the military. Only, having remade it into something he can tolerate, he has to explain that pesky preface, can't leave it just dangling there.
So we get this hokey explanation, which honestly makes no sense.
Oh, and for liberalism: "Liberalism refers to a broad array of related ideas and theories of government that consider individual liberty to be the most important political goal."
Needless to say, Wikipedia will have the more modern usage of the word than the dictionary.
In other words, you KNOW that "leftism" connotes socialism, but you CLAIM that you are really being neutral. But if you were really being neutral, you wouldn't have any great desire to use the term.
And again, the Left has lost its claim over the word "liberal." True liberals do share some causes and beliefs with the Left, but are a separate breed completely.
JUSTICE KENNEDY: So in your view this amendment has nothing to do with the right of people living in the wilderness to protect themselves, despite maybe an attempt by the Federal Government, which is what the Second Amendment applies to, to take away their weapons?
That's silly. For 95 percent of Americans, the opposite of conservativism is "liberalism", not "leftism".
You are just being dishonest. You love making it sound like everyone who doesn't agree with you is a radical. And that's why you use the term "leftist".
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