Well, two out of three ain’t bad.
The Supreme Court will hear DC vs. Heller starting at 10:00AM on March 18th. Petitioner and Respondents will each have 30 minutes to make their arguments.
What’s interesting is that they will be releasing the audio of the proceedings (Souter has forbidden video cameras in the courtroom) on the same day. Check with Oyez, where it should be available for download.
If you’re just tuning in, 31 state-level Attorney Generals have filed a brief [pdf] in support of individual rights, and Dick Cheney has signed on to Congress’ brief, indirectly breaking ranks with the President, who’d tasked Solicitor General Clement to call for “closer scrutiny” in the Court’s deliberations.
It’s somewhat disappointing that Clement will get 15 minutes to argue his point, irrespective of the time limits imposed on Petitioner and Respondent.
But, I guess that’s politics. Still, we’ve now got 46 briefs in our corner, while supporters of the DC ban have 20.
So, what’s likely to happen? I don’t see SCOTUS ruling in favor of the “collective rights” argument. After all, there’s no such thing. Under the Constitution, individuals have rights, and the government has powers. A “right” applies to the individual, or it is not a right.
Which brings us to semantics. The 2nd Amendment does say, “the Right of the People to Keep and Bear Arms.” It doesn’t mention government powers at all. Nor would it; the Bill of Rights preserves individual freedoms.
Scalia and Ginsburg have both shown a tendency for reading the law very literally, and a literal reading can only be interpreted as pertaining to individual rights. What’s more, Scalia has displayed a truly frightening lack of patience for facile arguments, especially when emotional appeals are part of the package (which all of the Petitioner’s are).
Alito has ruled in favor of gun rights in the past, and is a strong literalist, and Clarence Thomas has written,
“Perhaps, at some future date, this Court will have the opportunity to determine whether Justice Story was correct when he wrote that the right to bear arms “has justly been considered, as the palladium of the liberties of a republic.”
Printz v. United States, declaring several aspects of the Brady Act to be in violation of the 10th Amendment.
Stevens is a wild card, and Breyer…well, he’s a Clinton appointee, and a big fan of the “living Constitution” claptrap. Although Kennedy leans a bit to the left on social issues, he seems to take the Bill of Rights at face value, and he’s likely to side with the respondents.
So, where’s that leave us? Most likely a 5-4 decision in favor of Heller, but possibly as much as a 7-2 majority. They simply can’t waffle out of an interpretation of the 2nd Amendment (otherwise they wouldn’t have taken the case), and given the facts as presented, ruling in petitioners’ favor wouldn’t make sense.
Does that mean every gun law in this country will be repealed tomorrow? Sorry, but no.
Most likely, they’ll rule that the 2nd Amendment guarantees an individual right to own firearms, subject to “reasonable restrictions.” Many existing laws, particularly regulatory ones, will still stand.
What a ruling will do is set precedent. Expect to see Constitutional challenges to state laws in New York, Chicago, Maryland and Hawaii (where lawyers are already preparing cases). Still, these will come slowly.
The most immediate effect will be what we don’t see. Another Assault Weapons Ban will be impossible to pass, and no legislator will try to advance one if they know it’s likely to be struck down. Further infringements such as ballistic fingerprinting and a national registry will also die quietly.
Notice that nobody on the Democratic side of this election has said word one about gun control? Not only do they remember the fallout from 1994, but they’re waiting on this decision. Both Obama and Clinton have supported strict gun control measures in the past, but when asked now, they mumble something about “illegal guns” and change the subject as quickly as possible.
Politicians are cowardly animals, and they’re smart enough to know when the odds are against them. Calling for more infringements on the 2nd Amendment would amount to political suicide after this.
Eventually, we may see challenges to things like the NFA and Hughes Amendment, but for now, I’ll be happy to see the brakes put on any new legislation.