Parker/Heller still spooks the antis
We’re still mixed on what would be the better blessing for the District — for the court to grant their appeal or to just turn it down. On the one hand, if the justices voted to take the case, the District would at least have a chance to save its gun laws, but at the expense of a monster case that could well reshape the national debate on gun control. On the other, should the court choose not to hear it, the city will have to deal with the more immediate problem of re-writing their gun restrictions, but other urban areas won’t be forced to scrap their own gun regulations.
Longball or smallball, I don’t care. Either way, it’s likely a win.
November 2nd, 2007 at 4:16 pm
I look for one of two outcomes. Either the court won’t hear the case, in which instant the ruling applies only to DC, thus keeping intact the court’s decades old record of not supporting citizen rights at the expense of governmental power.
Or, just as likely, if they hear the case, will be a ruling so limited in scope and so narrow with all sorts of machinations, maneuvers, and reinvention of the English language that it will uphold the lower court, but not extend the findings on a national stage and thus endangering the power of the other unconstutionally restrictive gun laws and ordinances of population centers such as NYC, Chicago, California, etc.
I sincerely hope I am wrong, I would be the happiest man alive if I were to be in error due to my cynicism as regards my expectations of dereliction of duty and honor among our power elite.
However, we must remember that this court, albeit with a slightly different make-up gave us Kelo v. New London.
It would neither surprise me if the high court remanded the case back to the District Court with instructions to rule on the motions and arguments of the litigants filed since the original decision.
Please, everybody pray that I have called this one wrongly. I know I am.
November 2nd, 2007 at 5:06 pm
The motions the litigants filed since filed for cert were to overturn portions of the stay in effect while the petition to SCOTUS was pending. If the Court denies cert, I believe the stay is lifted and Heller stands. The motions I don’t think having any bearing on a determination of whether Heller requires instructions since that is what the motions were not about.
Heller will stand as-is and the District will be left to craft new gun rules that comply with the ruling. They’ll have no choice. They may try for Sullivan-type behavior in New York (for licensing, registration, etc) but they will no longer be able to deny people from keeping functional arms in their homes. They may keep (bet money on it) their registration requirements in place but a permit would no longer be required to assemble or move a loaded gun in your own home.
Since Heller also covers the Constitutionality of banning a speciifc class of arms (handguns) and found said ban to be Unconstitutional, the District would likewise have no choice but to open their registry up for new registrations.
This is how I read it. I do believe the District will look for every way possible to make the process as harsh and draconian as they can but still stay under the bar of Heller which prohibits outright prohibition or functional arms within the home.
That alone is a victory. However, as you say, it would be interesting to see the Court jump through flowery legal hoops to tailor their ruling narrowly but manage to avoid gun bans in other places (Chicago’s being the obvious immediate target in a post-Heller world). Given the fact Heller is a Federal ruling, not State, finding a way to keep it from being used as precedent in a Federal challenge will be very interesting indeed. I don’t think it’s possible but what do I know not being a lawyer and all?
If they overturn Heller and hold it to a collective right and the ban stays, that is a far more ominous outcome. I think it is the only outcome gun rights folks actually fear. I fear it not only from the guns perspective but the ability of the Court to read away “the People” formally out of a Constitutional amendment as meaning something totally different than every other time where that language is used and the fact it applies to individuals. If they can do it there, the other amendments will not be far behind and it will only take a suitable test case to challenge an individual right elsewhere not applying to specific individuals.
That would be the beginning of the end of the Republic as far as I am concerned. I think history later will show that as the point the Fall began.
November 2nd, 2007 at 5:29 pm
It will most definitely be a narrow ruing. I wouldn’t expect much else. The Court is probably too divided on the issue to get a lot of pro-gun rights language out of the ruling. We should consider a victory if the court says a) it’s an individual right, and b) DC’s gun ban violates that right. The first amendment rulings started off narrow in scope. I’d be shocked if we end up any different. Just getting the court to do a and b will be a giant leap in the right direction.
November 3rd, 2007 at 3:57 am
A legal analysis of Heller/Parker just went up over at SCOTUSBlog.
Although there’s a few points that aren’t quite right (the Court didn’t overturn Miller, but remanded the case for further fact-finding), I think it’s reasonably unbiased. The discussion isn’t centered so much on the meaning of the 2nd Amendment, but on how the case may affect other areas of law, which is probably what SCOTUS is going to look at.
November 3rd, 2007 at 2:23 pm
I think history will show that the turning point was circa 1972 when Warren Burger stated, “…..that is what the second amendment says, but that is not what it means…..”. in a majority opinion the court had just recently ruled upon. I’m sorry, I don’t remember the case, but I will never forget the perfidy.