The Volokh Conspiracy

Well the tea leaves in my cup are somewhat cloudy. Since Justice Souter wrote the opionion in Rothgery, perhaps it's less likely he wrote Heller and thus more likely that Justice Scalia wrote Heller.

This is such an odd period of history. Every opinion day I put off raising my flag until after I check in with SCOTUSBlog. I normally put up the standard 50 star flag but anticipate putting up my "old Navy" flag on the day the Heller opinion is released.

I wouldn't be surprised if Scalia was assigned Heller. But there are definitely going to be several opinions. The urge to make a mark on the Second Amendment is a temptation too great for many of the Justices. I would be surprised if Breyer, Stevens, or Ginsberg were silent. Roberts likely assigned the opinion to Scalia because the chances of him silently signing onto another opinion was nil. I would actually like to read an opinion on this by Thomas, but I don't think any opinion he wrote could garner a majority.

It will be unwieldy, but interesting. If the Chief can keep the number of opinions down I will give him lots of credit, but I don't know if that would even be a possible task.

Dan's probably right. CJ Roberts probably would wish to get a unanimous decision in an important Bill of Rights case.

I agree with Per Son's prediction. I wouldn't be surprised to see a mess of tests emerge about what level of scrutiny applies to restrictions of the right, that sort of thing, but I do expect the existence of an individual right to be unanimous.

If "individual right" is a unanimous holding, it will be quite a repudiation of all of the law school con-law professors who have long clinged to this view to justify their policy preferences.

I think they'll put it out on Thursday and get the hell out of town, because whichever way it goes, someone's gonna be out for blood...

My understanding of this case is that if there were an individual right, this statute would fail any standard of review. Thus, any writing on the appropriate standard of review would be dicta, no?

MRSquared, that is certainly an argument to make. Not one the Administration or DC would make, however.

I doubt that the Supreme Court is putting off Heller only to hope that people are distracted by a holiday weekend. First, if the Court follows tradition, it will adjourn by the end of this week. Second, I think it's more likely that Scalia has been assigned the Opinion, that he has written an opinion that's overly broad for some Justices and has only garnered a plurality, and that Roberts has delayed the announcement in hopes that, with some negotiated tweaking, he can get Scalia to narrow the opinion to something that a clear majority can join.

I would be very surprised if there were still votes in play at this point, just 2-3 days before the very end of the road The most likely explanation is that the Justices need time to write and respond to other opinions and to put finishing touches on their own. They know they're writing for the history books in Heller, so they want to do the best job they can. It's very common for the court's biggest cases to come down the last day; if history is a guide, the same will go for Heller.

A Republican Justice might decide to reduce the size of the Court to 8 members for the next seven months, but would have no power to give Bush one last appointment at this date. The Democratic Senate would simply refuse to act on the nomination.

In fact, CJ Roberts thinks that this case will hold many for a lot longer.

That fact that he gave it to Scalia

There is speculation that he gave it to Scalia. By the end of the week, we might know if that's a "fact".

Of course, the author of the opinion is unknown at this time. All indications, however, point to Scalia being the author, unless a Justice switched sides, creating a new majority. I doubt this happened from the tenor of oral argument.

Nevertheless, if we agree that it is at least likely that Scalia is writing the opinion at the CJ's request, then I think it bodes well for a strong individual rights view of the 2nd Amendment.

It would be sweet to have Justice Scalia write a comprehensive opinion laying out the historical basis for the individual right and suggesting in dicta the scope of that right. Perhaps the reason for the delay in the decision are negotiations on what will be written in the parts of the Court opinion which Kennedy and perhaps Roberts will join and those which a Kennedy/Roberts concurrence will attempt to narrow or put off for another day.

I have stayed a felony possession of a firearm case in Colorado state court waiting on this opinion. This charge is based on my client's civil juvenile record, which would not be sufficient to deny other civil rights, but has been permitted because of the Miller case. It would be very helpful to have Scalia suggest or actually hold that the Second Amendment applies to the states for my motion to dismiss.

I suspect the right will stand independently of military purpose to protect self-defense, hunting, and shooting sports, and may ironicly limit its nexus to a military purpose to uphold the federal ban on machione guns, etc.

I disagree. Any reading of a personal right to bear arms in any militia response/military small arms sense must include the M-16A3/M-4 family of rifles and the M9A1 family of pistols. Both are in common, universal issue to the military as personal small arms.

The rifle is select fire and the pistol holds 16 rounds. Both are things that the government really dislikes for a person to have.

The only way they justify not allowing ownership and bearing of those exact weapons is to totally rewrite the 2nd to exclude effective arms. That requires changing the entire meaning, perhaps to a collective right.

I doubt the opinion will reach the incorporation issue to apply the 2nd Amendment to the states since DC is a federal enclave. However, you may well get some strong language from Scalia stating that this is a fundemental liberty interest akin to the other personal liberties enshrined in the Bill of Rights. I also expect that, given Kennedy's statements at oral argument, Miller will be defenestrated. Thus, while you may need to wait for a challenge to Chicago's ban for the incorporation issue to be decided, I suspect a Scalia opinion will jettison Miller and declare a strong / fundemental libtery interest in the right to keep and bear arms.

Can you point to the case where . . . a release was authorized?

Even assuming that everyone at GITMO is a terrorist, something the military has never come close to saying, where is this case that releases them?

Notice of ruling directing release in Parhat v. Gates, pending a CSRT review "consistent with the court's opinion":

"Pursuant to the Detainee Treatment Act of 2005, the
court held invalid a decision of a Combatant Status Review Tribunal that petitioner Huzaifa Parhat is an enemy combatant. The court directed the government to release or to transfer Parhat, or to expeditiously hold a new Tribunal consistent with the court's opinion. The court also stated that its disposition was without prejudice to Parhat's right to seek release immediately
through a writ of habeas corpus in the district court, pursuant to the Supreme Court's decision in Boumediene v. Bush, No. 06-1195, slip op. at 65-66 (U.S. June 12, 2008)."

It should be clear to everybody that the Court is trying for a Judicial Coup! All the signs are there. After allying with Terror, it will now strip is of our guns in 2 days time. The Court will choose "hump day" in the hope that average Joe will be dispirited and not notice the decision.

Next term there will be a very low-key, not well-covered decision allowing each Justice to have a personal militia, and then they STRIKE!

Quite right, this Supreme court ruling that upsets so many releases nobody, unless the government can't produce a good reason for holding them.

What's the standard for "good"? Hearsay is good enough in the military context. What's the standard for a civilian court without military expertise making a military judgement call? Given that the opinion itself will surely be heavily redacted, I'm not sure one can tell if any given ruling is sound on the merits. It reduces to "trust the courts' military expertise."

I have little doubt that Heller will win the case. Whether such a ruling does anything for us who believe in an "absolute" right to keep and bear arms is unclear. Just as there are restrictions on the first and fourth amendments, we expect politicians to attempt to restrict our rkba. Even if Heller wins, an opinion does nothing to keep the federal government out of the business of determining what mechanical and cosmetic features a gun may have. The majority could issue an order, but that is unlikely to occur.

(By "absolute" rkba I mean: rkba without restrictions on caliber, weapon style, intended weapon purpose, mechanical or cosmetic features of the weapon, etc.)

Additionally, there is the issue of Presser v. Illinois to address. This case rules that the Second Amendment is not binding to the states. To me, this implies that unless a Heller decision explicitly overturns Presser, it may still be ambiguous whether the Second Amendment can hold up to a "states rights" argument for restrictions on the RKBA (consider California for instance).

One may be inclined to argue my statement on the grounds that if Heller rules that the Second Amendment applies to DC, then surely it applies to Chicago, L.A., etc. However, we must remember that DC's "backup argument" - that the Second Amendment not applying to DC because DC is a federal city - could work both ways: municipalities such as Chicago and states such as California may be inclined to argue on that same basis if the Heller decision does not preempt such an argument.

Unfortunately, there is little support for the notion that Heller will be a "cure-all" for us. It is a positive sign for the citizens of DC. While precedent and contemporaneous sources affirm that the Second Amendment provides an individual right, such sources also provide for the state and federal regulation of those rights. While those of us who believe in the "spirit" of the rights may continue to fight for an "absolute" interpretation - ie. legislation free of bans on certain cosmetic of mechanical features - there is little hope that the need to fight will ever end, or that the fight will ease up. The fight will become harder and harder as those who do not understand that "firearms don't kill, people do" continue to drum up fear in the public about the frightful "assault" weapons, "cop killer" bullets, and "heat seeking" rounds. Additionally, with a socialist-dominated white house and congress for the next 4+ years, it is likely that we will see a left/right imbalance in the SCOTUS again, as well as a quickly-passed reauthorization of the 1994 AWB.

Roger Schlafly: There's only one case left from the March sitting, Justice Scalia hasn't written any majority opinions from that sitting, and generally speaking each Justice gets at least one majority opinion per sitting. That's why people are guessing that Justice Scalia is writing the majority in this one.

Then I explained why the law was unconstitituional. ... Hey, we all were 1st years at one time. :-) ... I also explained in my answer that professor had some gun terms wrong in his question. Talk about 1st year stupidity.

First year at University of Michigan Law I was in Pete Westen's class, and he kept using an example of the evil US military using a Claymore Mine to blow up a bridge and plunge children into the river to die.

I finally corrected him. (The claymore is a shaped container on short stilts with explosive in the back and metal bits in the front. Upon firing it has the effect of a giant shotgun shot in a given direction.)

You would have thought I attacked every article he ever written, insulted his faith, and kicked his dog.

I was wrong, I was wrong in every way, and I was rude for even suggesting he could be wrong. Thank goodness for blind grading in that class.

One more off-topic: Parhat isn't a habeas case, it's a DTA case. That's the remedy advanced by the Administration. Release of this opinion (end of the week??) could be a very big deal as well: if Judge Sentelle and Griffith find that there's no such thing as a war on "terror" but instead a war as exactly described in the AUMF, those already unhinged will get more so. Tell it to John Marshall, who might have gone the other way in Little v. Barreme.

NI:

Another is that the Bush administration will quit playing cutesy with semantics and acknowledge that they are prisoners of war, in which case they aren't entitled to habeas. Of course, the administration would then have to stop torturing them, which is why it didn't want them classified as POWs in the first place, but they can't have it both ways.

Argh, this is completely off-topic and I apologize, but this really needs to be corrected.

If the Bush Administration were to reclassify them as POWs, they would be breaking the Geneva Convention, not following it. The Geneva Convention explictly lays out requirements that combatants must meet in order to be classified as POWs. Just being captured on the battlefield is not enough and to extend the protections for POWs to combatants who do not meet the requirements to be classified as POWs weakens the Geneva Convention and makes it less likely to be followed in the future.

That is all. Please resume DC v. Heller speculation.

There's only one case left from the March sitting, Justice Scalia hasn't written any majority opinions from that sitting, and generally speaking each Justice gets at least one majority opinion per sitting. That's why people are guessing that Justice Scalia is writing the majority in this one.

That would explain Kennedy's vote in Boumediene. He just had to be in the spotlight this term!

Happyshooter:

I also feel a lot worse about this decision after five members of the court flat out made up new law in deciding to release terrorists to kill more military members in the middle of a war.

I really doubt that's a good summary but even if it is, the Justices' oath - and for that matter, the military members' osth - is to defend the Constitution, not the lives of our troops.

The habeas claim is a criminal case claim, not something you could ever use in a war.

Actually, no. The government imprisons you and refuses to say why or let you go - no criminal charge at all. That's prime territory for a habeas claim.

Presumably civilians who are not POWs can then be tried (posibly by military courts).

Unlawful combatants, under the law of land warfare, can be shot out of hand by the commander.

Example: Post WWII Werewolves who were captured got summary field military hearings and were shot by American forces.

Under the Supremes new rule, they would get airlifted to the states, along with every witness and member of the capturing unit, to stand federal trial for some crime...or more likely would be released for lack of an arrest warrant.

if Judge Sentelle and Griffith find that there's no such thing as a war on "terror" but instead a war as exactly described in the AUMF

Because nothing "is" until some judge somewhere "finds" it. You people need to get over yourselves. The law is a make believe world.

1. I can't think of a single judge qualifed to make military decisions.

2. Our current criminal law system is set up for professional investigators dealing with single or a few criminals in civilized areas. No way is it designed for military field use.

3. Many of our judges are simply unable to make good decisions, either because of lack of judgment or politics. They simply cannot be trusted to make military decisions.

4. The second time an enlisted man sees the same enemy he captured back to kill him again, is the last person he captures.

5. If judges become rulers of the military, then they are the rulers of all American society. I don't like nobles, and I don't care to be ruled by them.

6. I think America is worth defending, an America ruled by federal district court judges will not hold.

7. I have never met a judge who can run important operations. I have never met one I would trust to run the city water supply, much less defend my family.

If the prognosticators are correct in saying Scalia gets a shot at writing the Heller opinion because of some customary deference...

***(There's only one case left from the March sitting, Justice Scalia hasn't written any majority opinions from that sitting, and generally speaking each Justice gets at least one majority opinion per sitting.)*** EV


...I wouldn't necessarily assume that the opinion will be all that friendly to the pro-2A side. Unless Scalia has changed his mind since the publication of his book "A Matter of Opinion" (1997), his view of the 2A will have no effect on state laws. i.e. "Of course, properly understood, it is no limitation upon arms control by the states."

If Scalia does not find an individual right to keep and bear arms in the 2nd Amendment, he is neither a textualist nor an originalist.

Russ said:

Per son said:

Can you point to the case where any terrorists were released, or a release was authorized?

example

This fails as an example:

1. It's not an example of a terrorist being released.
2. The military has not shown that the detainee is a terrorist.
3. Release is but one of three possible actions that the military can take. From the linked CNN article:

A brief one-page order from the U.S. Court of Appeals in Washington directed military officials to either "release or transfer Parhat, or to expeditiously hold a new [military] tribunal."

As I understand this, when the military has neglected due process they can yet supply it.

To briefly visit the topic of the thread, I strongly second the speculation that Scalia will write the majority in Heller. I make no speculation as to when it will be released, and I predict there will be as many as five opinions.

There's my 2 mils (inflation, don'tcha know).

Yours, TDP, ml, msl, &pfpp

Tony, the Geneva Conventions permit unlawful combatants to be shot dead with no appeal after conviction by quite expedient--even instant--evaluation by a competent authority. Congress gave that authority to the military. The SCOTUS is indulging in a very quiet constitutional crisis by ignoring the power of Congress to strip the SCOTUS of its jurisdiction WRT to matters military (and almost every other matter, FWIW).

The guarantees against torture apply solely to POWs and civilians, which an unlawful combatant is not, and just what reprisals do you are imagine are at issue?

The persons taken and held at Guantanamo can be lawfully held for rest of their natural lives, or until no imams of consequence call for the destruction of the West. That's the war the enemy picked, and habeus claims are not properly the privilege of unlawful combatants or POWS.

Yours, TDP, ml, msl, &pfpp

his view of the 2A will have no effect on state laws. i.e. "Of course, properly understood, it is no limitation upon arms control by the states."

When I was in law school about 12 years ago, Scalia visited us and made himself available for a Q&A session with the students. One of the questions was about the Second Amendment. His answer was roughly "You don't have to worry about us applying it against the states...". I don't know if this was his own legal view, or rather a prediction of how the SCOTUS would act.

Sincerely,
Corkie the Dog

Regarding application of the RKBA to the states, it seems like the 2nd amendment was aimed more squarely at 'militia' purposes (defense against foreign nations and federal tyranny), while the concerns that lead to the adoption of the 14th amendment were more centered around individual self-defense (from the KKK). Should the scope of the right conferred by each amendment be different because they were adopted for different reasons?

Scalia has rejected incorporation of the 2nd amendment in the past, but there has been a lot of scholarship published since he formed his opinions. I understand that this what changed Bork's mind on the RKBA. Scalia IMHO is more open minded than Bork.

With all due respect, am I the only one here who has noticed that we are not actually at war? The men held in Cuba may be enemy combatants captured on the battlefield. But they cannot possibly be POW's because we are not at war. First, only Congress has the power to declare war, and Congress has not done so. Congress wrote the president a blank check, literally and figuratively, to conduct military operations any way he saw fit after 911 as long as they didn't have to get their hands dirty and actually make any decisions or take any responsibility. But they stopped short of declaring war on anybody. All they did was authorize military operations.

Second, how can you declare war on terror? Terror is an emotion. That phrase irritates me no end. "War on Terror" is as ludicrous a piece of mindless propaganda as anything I have ever heard. We are fighting Islamic radical terrorists, not Terror itself. But the administration is understandably reluctant to call a spade a spade in this case, so it babbles instead.

You can't declare war on a religion. You can't declare war on a group of outlaw bandit murderers. You declare war on political entities. Ergo, we are NOT at war.

Let me add another question.

If an NGO (such as Al Qaeda), declares "war" on a recognized sovereign nation, and carries out an act of war against that nation, does the sovereign nation just ignore it because the NGO is not a member of the community of nations?

How Victorian that seems to be.

I don't understand how the Court can render any long-lasting opinion on the 2nd Amendement in the Heller case. The 2nd Amendment literally speaks of a state-regulated milita, but DC is not a state. I think this case is more about delineation of state and federal powers. I wonder if we will see any dissenting opinions to this regard.

Ergo, we are NOT at war.

If Congress says it will foot the bill for the military to go get someone, we're at war.

Yours, TDP, ml, msl, &pfpp