Heller vs DC

[Robert B]

How many of the Supreme Court Justices were on our side in this case?

[pace40]

5 out of 9

[Robert B]

If we had 5 of 9 justices on our side in Heller vs DC, then what chance do we have in McDonald vs Chicago with Sotomayor on the bench?

[PDL]

She's not supposed to change the swing so I'd say about the same.
Later on, when/if a couple more get changed that's a different story.

[Pasifikawv]

Yep... I expect a 5-4 ruling on this one again, but Sotomayor may surprise us.

The idea of "incorporation" key to this 2A case is important for civil rights cases as well. Justice Sotmayor she may not want to risk legal ripples that could somehow challenge civil rights.

I seriously doubt it, but just maybe she surprises us and we get a 6-3 ruling...

[Spotteddog]

She won't be surprising anyone, she's an ideologue that's why she got the gig.
Isn't she one of those down as believing that the 2nd does NOT indicate entitlement to own/use/carry? Worst case is the decisions will stay the same, 5-4. If we get lucky, she'll be the last appointment this administration will get to make. The older more frail members are those on the liberal side of the bench, at least for the moment?

[PDL]

Yeah,
she definitely believes the 2nd doesn't apply to people. She'll also find a whole lot of other unwritten things in the constitution that do apply to certain people.

[nicky4968]

FWIW, in the Heller case all 9 justices said that the 2nd Amendment referred to an individual right that existed before the formation of the United States. They differed as to what might be "reasonable" restrictions (like no nukes, for instance). But they put to rest the idea that it only dealt with state militias and was did not apply to the common folk.

[Niner19]

Originally Posted by nicky4968

FWIW, in the Heller case all 9 justices said that the 2nd Amendment referred to an individual right that existed before the formation of the United States. They differed as to what might be "reasonable" restrictions (like no nukes, for instance). But they put to rest the idea that it only dealt with state militias and was did not apply to the common folk.

I will have to disagree with you here. My reading of the dessenting opinion is that they found the 2nd to be an individual right but only as it relates to being a member of a militia. Which means in practical terms that only individuals who are in the National Guard have a right to keep and bear arms. Which of course makes no sense.

http://www.scotusblog.com/wp/wp-cont.../06/07-290.pdf

"Similarly, the words “the people” in the Second Amendment
refer back to the object announced in the Amendment’s
preamble. They remind us that it is the collective
action of individuals having a duty to serve in the militia
that the text directly protects and, perhaps more importantly,
that the ultimate purpose of the Amendment was
to protect the States’ share of the divided sovereignty
created by the Constitution". p. 77

"As used in the Second
Amendment, the words “the people” do not enlarge the
right to keep and bear arms to encompass use or ownership
of weapons outside the context of service in a wellregulated
militia." p.78

"...the “right to keep and bear arms”
protects only a right to possess and use firearms in connection
with service in a state-organized militia." p. 78

"Indeed, not a word in the constitutional text even arguably
supports the Court’s overwrought and novel description
of the Second Amendment as 'elevat[ing] above
all other interests' 'the right of law-abiding, responsible
citizens to use arms in defense of hearth and home.'" p. 84

"Until today, it has been understood that legislatures
may regulate the civilian use and misuse of firearms so
long as they do not interfere with the preservation of a
well-regulated militia."p. 112

Reasonable restrictions were not addressed as they were not part of Heller.

"The Court’s announcement of a
new constitutional right to own and use firearms for private
purposes upsets that settled understanding, but
leaves for future cases the formidable task of defining the
scope of permissible regulations." p. 112

[nicky4968]

I didn't mean to say that they addressed what was a "reasonable" restriction. They won't get around to that for another 200 years.

(It took them 200 years to say that driving without seeing what's directly in front of you is the same as driving without looking.)

[Niner19]

Originally Posted by Robert B

How many of the Supreme Court Justices were on our side in this case?

SCALIA, J., delivered the opinion of the Court, in which ROBERTS,
C. J., and KENNEDY, THOMAS, and ALITO, JJ., joined.

STEVENS, J., filed a
dissenting opinion, in which SOUTER, GINSBURG, and BREYER, JJ.,
joined. BREYER, J., filed a dissenting opinion, in which STEVENS,
SOUTER, and GINSBURG, JJ., joined.

Sotomayor replaced Ginsburg so the balance in general is unchanged.

But what you have to keep in mind is that Heller is now settled law. What is not settled law in the Chicago case is whether the 2nd applies to just the Fed government or to state and local governments as well under the inclusion of the 14th amendment. This is very different. The Chicago case doe not retry Heller... the right of individual citizens to keep and bear arms is now settled law.

The question at hand is whether an established individual right to keep and bear arms is covered by the 14th. It may very well be a 9-0 decision. The fact that the 4 dissenting justices disagreed with the majority on Heller is irrelevent to the Chicago case. To not include the 2nd under the 14th would mean that there are rights in the Bill of Rights which states can violate. That will not sit well with even the most liberal judges.

[Niner19]

Originally Posted by pace40

5 out of 9

The saddest part about that figure is that 7 of the 9 sitting judges at the time were Republican appointees.

[jkc]

"The question at hand is whether an established individual right to keep and bear arms is covered by the 14th. It may very well be a 9-0 decision. The fact that the 4 dissenting justices disagreed with the majority on Heller is irrelevent to the Chicago case. To not include the 2nd under the 14th would mean that there are rights in the Bill of Rights which states can violate. That will not sit well with even the most liberal judges." ---Niner19

Well said. McDonald v.Chicago is about whether states (and their subsidiaries) have to respect the 14th Amendment, which requires them to respect both "natural" rights as well as those rights specifically enumerated in the Bill of Rights. I agree that even the most liberal members of SCOTUS will find it difficult to abrogate the 14th, as it affords civil rights protections that even the most radical ACLU lawyer wouldn't refute. Got some time on your hands? Read both the merit and amicus briefs here: www.abanet.org/publiced/preview/briefs/feb2010.shtm#mcdonald

[Bratastic007]

What surprised me most was the lack of public outcry at the closeness of the Heller decision. If the Supreme Court had ruled by a mere one-vote majority that the first or fifth Amendments actually applies to individuals, can you imagine the fury that would result?

[WR Moore]

It's been a long time since Constitutional Law, but IIRC, the 14th Ammendment is the cited justification (the Commerce Clause is the other) for a raft of federal standards being foisted onto the states. The Miranda warning and public defenders coming immediately to mind. I'm sure the devious empire builders have developed many more.