Place your bets, Chi. vs McD’.

[oldRoger]

What's it going to be?

The time is upon us, Monday most likely.

I will go first:

SOTUS will find for McDonald, vote 5 to 4 (6-3 possible but IMO very unlikely).
There may be more than two concurring decisions as in Skilling vs US 08-1394, this will muddy the waters further.

The right to keep and bear arms will be incorporated. Too many Justices are afraid of the "privileges or immunities clause" as I think one remarked at the orals "a favorite of the law professors".

We will not see a strict scrutiny standard, hopefully intermediate. One reason I think for multiple opinions is a difference on the level of scrutiny.

Thus it will come to continuing court fights about the standards to apply and what is "reasonable".

Good luck to us all!

 

[HKSmith]

I'm going way out on a limb - 7-2 in favor of McDonald with intermediate scrutiny. I think it will take 20 years to settle all of the issues around reasonable state and local regulation. You can all laugh at me on Monday if I'm wrong!

 

[Raspy]

I may be caught up in the momentum of it all, but I think 7-2 is a reasonable bet. But I'm expecting some clarification that attempts to keep a lid on things. Incorporation seems certain.

But, no way this will be settled in 20 years. It may be written into much more clear law by then, but it will never be settled. The interpretation issues will go on and on about carry restrictions, ammo, where and when in parks, businesses, who can carry and what each of the words in 2A mean, licensing, calibers, etc. Resistance will be strong by the anti-gun groups and there will undoubtedly be a few spectacular events that cause everyone to dig in their heels. More cases will grind their way through the courts. Some well entrenched interests, like Chicago, will just say no or drag their feet with minute interpretations for a long, long time.

 

[Lew Archer]

We will not see a strict scrutiny standard, hopefully intermediate. One reason I think for multiple opinions is a difference on the level of scrutiny.

The Court neatly dodged the "standard of review" question in Heller and may do so again in McDonald, using the same logic.

 

[Tom Servo]

The Court neatly dodged the "standard of review" question in Heller and may do so again in McDonald, using the same logic.

Actually, they did rule out "rational basis" in the Heller opinion, which helped with a subsequent 7th Circuit decision. We still don't know whether strict or "intermediate" scrutiny is appropriate, however.

Some folks are still holding out for a new reading of Privileges or Immunities. Though I'm not too optimistic, there's still a chance. After all, they could have chosen to hear the NRA's case instead, and they wouldn't have had to deal with the issue at all.

Of course this is all speculation until Monday...

 

[Lew Archer]

Actually, they did rule out "rational basis" in the Heller opinion, which helped with a subsequent 7th Circuit decision. We still don't know whether strict or "intermediate" scrutiny is appropriate, however.
QUOTE]

I stand corrected, thanks. I was recalling language in the opinion to the effect of "under any standard", the DC ban would fail to pass muter. I am doubtful, though, that McDonald will give further "standard of review" guidance and will only resolve the incorporation question.

 

[Tom Servo]

I was recalling language in the opinion to the effect of "under any standard", the DC ban would fail to pass muter. I am doubtful, though, that McDonald will give further "standard of review" guidance and will only resolve the incorporation question.

If it's not covered in McDonald, we'll have to take a shot at it next term.

The 4th Circuit tentatively ruled in Skoein that strict scrutiny applied for the "core right." If another Circuit finds differently, we've got a split, which boosts the matter up the ladder.

McDonald does not ask for a standard to be defined, so it's possible, no matter how disingenuous, that scrutiny will be ignored.

 

[oldRoger]

Incorporation

I read a speech by S.J. Markman who is a Justice of the Mich Supreme Court, and Prof. of Constitutional Law at Hillsdale.
He is opposed to the broadening the use of the privileges and immunities clause of the 14th beyond Slaughterhouse. That seems to be the general conservative position as well.
To quote from his speech regarding a broad use of the p & i clause: "The practical consequences of this would be to authorize federal judges to impose an ever broader and more stultifying uniformity upon the nation."

Whether you or I might agree with that as a practical consequence, it seems to be a fairly widely held opinion. I do agree that further encouragement of federal judges to "wing-it" constitutional does not appeal to me.

To misquote someone; "You litigate with the SCOTUS that you have, not the one you wish you had." While the SCOTUS probably looks forward to the 2nd amendment case of the year forever, it seem unlikely to me that the court will be better for us until 2013, if then, and the natural frailty of man could make it worse. Let's hope that most of the uncertainty goes away tomorrow.

 

[PDL]

Let the games begin.

Or more appropriately, here come the clowns -9 Those that will attempt to bypass the rulling of course).

But actually, they only seemed to get it half right. They seem to be locked into the home as the place where you can keep and bear. That sounds like they're half right. They got the keep down, now it's time to work on the bear. Let's get the carry rights so we can also protect ourselve while we're out and about.

 

[oldRoger]

Well I am sorry that I was right in the 5-4 guess, but the fact is that the Libs on the court do not care what the constitution says. We have three concurring decisions to read, all very good information.
I have not read it all, it may be found here; http://www.supremecourt.gov/opinions/09pdf/08-1521.pdf

Some quotes from Justice Alito:
"Self-defense is a basic right, recognized by many legal systems from ancient times to the present day, and in Heller, we held that individual self-defense is "the central component" of the Second Amendment right.
("[T]he American people have considered the handgun to be the quintessential self-defense weapon"). Thus, we concluded, citizens must be permitted "to use [handguns] for the core lawful purpose of self-defense."

In sum, it is clear that the Framers and ratifiers of the Fourteenth Amendment counted the right to keep and bear arms among those fundamental rights necessary to our system of ordered liberty."

I think it well worth reading for the history lesson in how we found ourselves in this position.