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What if?

Armed Canadian ask of the Parker/Heller case:

What If We Lose?

Then, giddy up. Talk about energizing a bunch of gun owners.

13 Responses to “What if?”

  1. gattsuru Says:

    Just like everyone saddled up after [i]Silveira v. Lockyer, US v. Haney, US v. Oakes[/i]? I mean, they were *only* covering a twelfth of the country, but you’d at least think that [i]US v. Warner[/i]’s declaration that the Federal and Utah Constitution granted [b]permission[/b] would be something to get the civil libertarians in a frothy rage. I can’t even find a note by the ACLU or the NRA on the damned thing.

    If we lose, it’ll be some ugly technicality thing that will take too long to explain to the laymen. There will be a lot of pissed off gun owners, but the majority won’t know or won’t care — it’s just DC, or it’s something that couldn’t happen/wouldn’t apply to them — and those who do care would have cared beforehand, and remain full of sound and fury; signifying nothing.

  2. gattsuru Says:

    And… used ubb code on an HTML site. Wonderful.

    I don’t want to discourage people. It’ll get notice, and it’ll have meaning, but if you think that meaning is going to stretch over to the 99% of the populace that gets their version of reality from CNN, I think you’ve got a rude awakening coming.

  3. Sebastian Says:

    I honestly have to say, while I think a Supreme Court ruling would have far greater impact than a circuit court ruling, I agree with gattsuru. I’m not sure it would energize gun owners intensely enough for long enough to affect enough change on the court to undo it. Kelo outraged people too, but it hasn’t really changed anything.

    Don’t get me wrong, I think it will energize a lot of gun owners. NRA membership numbers will go up, my guess would be my a million or more. But a court strategy is the long game of long games, and it’ll take many years of high intensity to alter the court to the degree where it could be reversed.

  4. chris Says:

    This whole issue scares me.

    Look at the Court’s nonsensical rulings from a couple of years ago regarding affirmative action policies at the University of Michigan and its law school.

    One was deemed to be okay, the other wasn’t, even though they were only marginally different.

    I don’t trust a court, which would make such ridiculous hair-splitting decisions, to decide what “shall not be infringed” means.

    I just don’t see the complexity in simple Constitutional language, like “equal protection” and “interstate commerce.” The Court does.

  5. Kevin Baker Says:

    Just out of curiosity, what if the Court came down with a 5-4 decision reversing the DC Circuit based on Heller’s standing to sue? That’s what the 9th Circuit did in Hickman v. Block. That’s what the DC Circuit did to all of the plaintiffs in Parker with the exception of Heller. There is, I think, a real risk of another “Go away, kid. Yer botherin’ me.” decision from SCOTUS on this one. And if it overturns on that ground then the individual right question is STILL not addressed, our opposition STILL gets to claim “collective rights” status, and we’re right back where we started from.

    And this decision would not surprise me in the least. I think the Court is terrified of stating that the 2nd Amendment protects an individual right, as it has been since 1939.

  6. Jim W Says:

    A lot of that wishy-washy nonsense left the court with O’Connor. She wrote the Bollinger affirmative action decision and many of the other confused landmark decisions like Casey. The only member of the court who isn’t firmly on one side or another is Kennedy.

    I think we have 4 solid votes for a standard model of the 2nd amendment.

    I think Kennedy will join us again as he did in US v Staples. I think Souter might as well.

    Ginsburg might go against us, but it is entirely possible that she has changed her mind in the 13 years since her Staples concurrence where she asserted that the government “[has] allowed [widespread gun ownership] to persist in this country.” Obviously this isn’t friendly to an individual right to keep and bear arms, but I think that she is overall a civil libertarian. I also think that her dissent in Muscarello shows that she understands what keeping and bearing mean. Overall I am optimistic.

    Stephens is a die hard antigunner who has no interest in the facts. Read his error-riddled dissent in Staples. It might as well have been a Brady press release. I predict that he will either issue a weak dissent or a concurrence in part that accuses the majority of going too far.

    I’m not sure about Breyer. He espouses this complicated Living Document sort of philosophy that at least on its face appears extremely supportive of individual rights. The problem is that his judicial philosophy isn’t really grounded in such a way that it demands a particular outcome in any situation. It’s like the worst of Scalia (who deviates from originalism for stuff like narcotics regulation) only extended to an entire philosophy. I see him as a vote against us.

    My only worry is that the majority will try to go too far and end up with a 4-2-2-1 plurality as every justice tries to write their own essay on exactly how far the 2nd amendment goes. I don’t think this is too likely an occurrence because this isn’t that sort of case. I think that we will end up with anything from a 6-3 to a 9-0 victory, depending how embarrassingly bad the dissent’s argument is for lack of an individual right.

    They also might split on whether handguns are protected, 5-4. I still think we come out ahead on this one. Handguns certainly existed at the time of the founding, they were certainly protected back then (See 1840s decision Nunn v State (of Georgia) striking down handgun ban on 2nd amendment grounds), and they have been part of the standard armament of soldiers since centuries before the founding. There really is no non-absurd legal rule that can be devised from the 2nd amendment that doesn’t protect handguns.

  7. Jim W Says:

    The DC circuit’s standing rules are the exception, not the rule. They clearly go against Congress’ intent to grant standing in such cases by passing the Judicial Review Act.

    I think that the DC Circuit’s standing rules are very likely to fall in the future. Probably not in this case, but they are pretty obviously wrong.

  8. straightarrow Says:

    Too many of us want to be liked and want to “play nice”. If the court outlaws all guns period, I see only a very few resisting.

  9. gattsuru Says:

    The SCOTUS has no problem declaring it an individual right, or at least a right that protected certain actions by individuals — they did so in 1939 when they declared that “… the Militia comprised all males physically capable of acting in concert for the common defense. ‘A body of citizens enrolled for military discipline.’ And further, that ordinarily when called for service these men were expected to appear bearing arms supplied by themselves and of the kind in common use at the time.”

    It’s not the idea that scares them. The Brady Bunchites had no problem making the collective rights argument out of whole cloth and illogic. They’ll have no problem saying that a well-regulated militia is no longer necessary for the security of a free state, or that the guns they want to ban today aren’t arms, or that the sky is green today.

    It’s actually enforcing it.

    I’d expect a statement that the right to bear arms is individual. It’d be hard to go any other logical way; the 6th circuits actions in particular showing why. But actually putting forward a decision to change the law is a risky wager.

  10. Gildas Says:

    I am actually more optimistic about this scenario than most. Check out the Lawful Commerce in Arms Act: it contains a clause that says ‘2A is an individual right, in Congress’ opinion’. That law passed 2 votes in the Senate and 4 in the House shy of 2/3rds. Amending the Constitution on the back of a defeat is feasible (indeed I believe that very thing happened in Maine a few years ago).

    Jim W: I had been hopeful about Ginsburg, but that language is very discouraging. Hopefully, it was slipped in either at O’Connor’s suggestion or by one of her Clerks. I do not believe there is any uncertainty about Breyer being against us. Read his separate dissent in Printz v US to see his take on the 10th Amendment.

  11. Gildas Says:

    Forgot to add to last post:

    But also read Souter’s separate dissent in Printz, which he bases on what is written in The Federalist Papers. Very interesting…

  12. acanback Says:

    Suppose the court would rule for the collective right of the states.
    What if a state would get a petition by the voters that says the voters shall vote on what type of arms shall be regulated by the state for the militia. Would this take away federal authority for all federal firearms laws, since federal law must apply the same to all.
    If the militia is a states right, then the state has the right to regulate it including arms.
    Would the government be willing lose this much authority by calling it a states right?
    What if a petition were started before the courts ruling, would this force the court to look for the real meaning of the 2nd.
    What if the court rules for the individual right. Beware rights can be curtailed ( my rights can be curtailed when they interfere whith yours)

  13. straightarrow Says:

    Beware rights can be curtailed ( my rights can be curtailed when they interfere whith yours)

    But only then. And his rights can only be curtailed when his interferes with yours. That is the most individual freedom that can be achieved in a society. There is no such thing as collective liberty, or what is falsely called the “greater good for the greater number”. If liberty cannot be assured for the individual it is certainly too difficult to be assured for millions.

    But liberty assured to the individual may be done millions of times, thus actually achieving the greater good for the greater number. That is the only way liberty can flourish and survive and enable a free society.

Remember, I do this to entertain me, not you.

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