SCOTUS to rule real soon?

[Codename46]

So I've heard that the SCOTUS will rule on the Heller case real soon. Anyone have any predictions on outcome?

I talked to one of my friends and he said that even a positive ruling would be bad, but I forgot exactly his reasons for saying that. Can anyone explain?

[variablebinary]

So I've heard that the SCOTUS will rule on the Heller case real soon. Anyone have any predictions on outcome?

I talked to one of my friends and he said that even a positive ruling would be bad, but I forgot exactly his reasons for saying that. Can anyone explain?


Arguments on the 18th.

Ruling wont be till May probably

[Gutshot John]

The DOJ is really upset that the ban might be overturned and actually the White House has taken two contradictory positions.

Essentially the VP Dick Cheny sent a brief to the court arguing strenuously for an individual's rights to keep and bear arms. This is the purist argument we all agree with.

The Pres (lil Bush) and his AG/DOJ argue that yes it is an individual's right but that to strike down the ban wholesale would inevitably mean that the Fed has no right to limit/tax/regulate firearms and so would undue all sorts of Federal controls we've long found onerous. They want the ban to be struck down, but to have Federal gun control regulation affirmed (so much for "strict constructionism"). This is the "have your cake and eat it too" argument.

Essentially the President is siding with the Federal bureaucracy over the people.

I'd temper your expectations as to what it will mean for the 2A.

[Codename46]

Do you think SCOTUS will agree with the Pres?

[ToddG]

The DOJ is really upset that the ban might be overturned and actually the White House has taken two contradictory positions.

Every single part of that statement is wrong.

DOJ isn't hoping the ban stays in place; they simply want the lower court to change the standard of review (think "beyond a reasonable doubt" versus "preponderance of the evidence"). What they don't want is the wholesale overturning of every single gun control law in the country just because the D.C. handgun ban is so severe.

The White House has one position, the position put forth in their brief as filed by the AG.

Congress, with Dick Cheney in his role as President of the Senate, submitted a brief that calls for the decision to be upheld. There is actually very little difference between the two positions in terms of the case at bar.


The Pres (lil Bush) and his AG/DOJ argue that yes it is an individual's right but that to strike down the ban wholesale would inevitably mean that the Fed has no right to limit/tax/regulate firearms and so would undue all sorts of Federal controls we've long found onerous. They want the ban to be struck down, but to have Federal gun control regulation affirmed (so much for "strict constructionism"). This is the "have your cake and eat it too" argument.

There isn't a single right in the Constitution that goes unfettered by limitations of some sort. Surely you're familiar with countless limits and exceptions to your right to free speech, right against self-incrimination, right against unreasonable search & seizure, etc. The Second Amendment is no different and no court is going to suddenly decide that our amendment is the one that can't be interpreted to include any reasonable regulation or limitation.

[Codename46]

There isn't a single right in the Constitution that goes unfettered by limitations of some sort. Surely you're familiar with countless limits and exceptions to your right to free speech, right against self-incrimination, right against unreasonable search & seizure, etc. The Second Amendment is no different and no court is going to suddenly decide that our amendment is the one that can't be interpreted to include any reasonable regulation or limitation.

Hmm, you do have a good point there.

I say limitations to free speech are way too much too.

[Gutshot John]

Yes I think SCOTUS will agree with the Pres, Roberts will be the deciding vote for the majority.

Short of at least a 6-3 decision however, any ruling is problematic.


Every single part of that statement is wrong.

Actually no, you either misunderstood what I was saying or simply disagree, but my analysis remains fundamentally sound.

The VP's office is part of the White House. If the VP is taking a position contrary to the President than indeed they are taking contradictory positions in their briefs. Yes he is President of the Senate, but do you really think that this nuance means anything?


DOJ isn't hoping the ban stays in place; they simply want the lower court to change the standard of review (think "beyond a reasonable doubt" versus "preponderance of the evidence"). What they don't want is the wholesale overturning of every single gun control law in the country just because the D.C. handgun ban is so severe.

I didn't say they wanted to keep the ban in place. In fact I said the exact opposite that they do argue for the individual's right (meaning that CC should be allowed in DC). I said they want the ban overturned but they don't want it eliminated wholesale (meaning the legal reasoning/basis for the ban). I concede my wording wasn't as clear on this as it should have been.


The White House has one position, the position put forth in their brief as filed by the AG.

Indeed, but that doesn't mean that this is the correct position if one accepts the premise that GWB is a "strict contructionist".


Congress, with Dick Cheney in his role as President of the Senate, submitted a brief that calls for the decision to be upheld. There is actually very little difference between the two positions in terms of the case at bar.

Other than the President's brief argues that the Executive branch has a right to tax/regulate/ban firearms with no constitutional authority to do so. Cheney's argues the opposite.

Moreover, legally, the legal relevance between the DOJs regulation of firearms and an overt ban passed by the US congress is dubious. Striking down the ban, only strikes down the law...not regulation. There is far too much case law that supports Federal regulatory powers from the 1930s-60s that won't be undone by this decision.


There isn't a single right in the Constitution that goes unfettered by limitations of some sort. Surely you're familiar with countless limits and exceptions to your right to free speech, right against self-incrimination, right against unreasonable search & seizure, etc. The Second Amendment is no different and no court is going to suddenly decide that our amendment is the one that can't be interpreted to include any reasonable regulation or limitation.

Indeed any right has limitations, but they have to be done within the framework of the Constitution, but again we're not talking laws, we're talking the right to regulate which is an entirely different issue.

First the Bill of Rights was meant to restrict the power of the Federal government. A baseline of rights that could NOT be violated and would be sacrosanct (except in the case of war or insurrection). As such it overtly says that the National government cannot do what it claims it can do "infringe" on the individual's right to keep and bear arms. Outside of a felon and laws passed by the states, the presumption of the 2nd, 9th and 10th Amendments is that the only constitutional way to regulate firearms is through the states.

The presumption is that the individual states could then limit the exercize of these rights (yelling "fire" in a crowded theatre) assuming their constitutions don't prohibit this. So legally there are restrictions, but the DC gun ban, and Federal regulation is aconstitutional.

If you are talking about regulation instead of legislation, the issue is even more clear. Regulatory agencies exist outside the framework of the Constitution, they are essentially extra-Constitutional bodies that have the power to create, interpret and enforce laws, for which reason the three traditional branches were deliberately divided. In short, Regulatory agencies are an extra-constitutional 4th branch of government

[Abraxas]

There isn't a single right in the Constitution that goes unfettered by limitations of some sort. Surely you're familiar with countless limits and exceptions to your right to free speech, right against self-incrimination, right against unreasonable search & seizure, etc. The Second Amendment is no different and no court is going to suddenly decide that our amendment is the one that can't be interpreted to include any reasonable regulation or limitation.

While what you say is true, one has to take into account other things. There has always been restrictions to free speech i.e. "fighting words" "slander " and things of that nature. Those things were restricted from the start, and for good reason. Now look at the 2nd, in the begenning there were no restrictions, and also look at what its purpose was, and is, "There shall be NO INFRINGEMENT". To compare the 2nd to the first is not the greatest comparison because the purpose of them is different. For the record I think that the court will sell us out

[ToddG]

The VP's office is part of the White House. If the VP is taking a position contrary to the President than indeed they are taking contradictory positions in their briefs. Yes he is President of the Senate, but do you really think that this nuance means anything?

Except insofar as the VP is part of the Executive Branch, I'd still disagree that he is part of the White House. He's got his own staff, office, residence, etc. Perhaps it's just a semantic argument but nonetheless.


I didn't say they wanted to keep the ban in place. In fact I said the exact opposite that they do argue for the individual's right (meaning that CC should be allowed in DC).

Both the President's brief and the Congressional brief (which Cheney signed onto) specifically state that they are not discussing or addressing whether concealed carry outside the home should be legal in the District.


Indeed, but that doesn't mean that this is the correct position if one accepts the premise that GWB is a "strict contructionist".

This is a misunderstanding of the phrase "strict constructionist," then. A strict constructionist isn't someone who ignores reason and simply applies each line in the Constitution like a sledgehammer. A strict constructionist is one who doesn't find "new and exciting" rights (e.g., Roe v. Wade) in the Constitution.


Other than the President's brief argues that the Executive branch has a right to tax/regulate/ban firearms with no constitutional authority to do so. Cheney's argues the opposite.

I admit it's been a few weeks since I read the Congressional brief, but I don't recall it suggesting that the Executive Branch of the United States has no power (governments have powers, not rights) to tax, regulate, or even ban firearms. I'd be willing to bet you that not one in ten of the Congressmen who signed onto that brief would be willing to repeal the restriction on firearms being sold or possessed by convicted felons, for example.


Moreover, legally, the legal relevance between the DOJs regulation of firearms and an overt ban passed by the US congress is dubious. Striking down the ban, only strikes down the law...not regulation. There is far too much case law that supports Federal regulatory powers from the 1930s-60s that won't be undone by this decision.

Congress didn't pass the ban, the D.C. City Council did. In fact it was one of the Council's very first acts once Home Rule began. It was one of the things that propelled Marion Barry into the national spotlight for the first time, if I recall correctly.

Furthermore, federal regulations exist only insofar as they are specifically empowered by a corresponding federal law. When the AWB sunset, all of the regulations ATF created to regulate it disappeared simultaneously. You can have law without regulations, but you cannot have regulations without law.


First the Bill of Rights was meant to restrict the power of the Federal government. A baseline of rights that could NOT be violated and would be sacrosanct. As such it overtly says that the National government cannot do what it claims it can do "infringe" on the individual's right to keep and bear arms. Outside of a felon and laws passed by the states, the presumption of the 2nd, 9th and 10th Amendments is that the only constitutional way to regulate firearms is through the states.

Again, I disagree and I'm not aware of a single Supreme, from the most liberal to the most conservative, who has ever taken that view. I've personally spoken to both Justice Scalia and Justice Thomas about the Second Amendment, and while these two men are the poster children for strict constructionalism neither of them would agree that the Constitution eliminates any regulation of RKBA (or speech, or any other right).

BTW, you specifically excepted felons in your argument. Can you show me where in the Constitution it says that the 2A doesn't apply to felons?


In short, Regulatory agencies are an extra-constitutional 4th branch of government

That's a whole other debate and even assuming it has some factual basis, the real politic is that regulatory agencies are here to stay. Their existence, their regulations, their rulings, and their administrative actions have all been upheld by SCOTUS many times.

[ToddG]

While what you say is true, one has to take into account other things. There has always been restrictions to free speech i.e. "fighting words" "slander " and things of that nature. Those things were restricted from the start, and for good reason. Now look at the 2nd, in the begenning there were no restrictions, and also look at what its purpose was, and is, "There shall be NO INFRINGEMENT". To compare the 2nd to the first is not the greatest comparison because the purpose of them is different. For the record I think that the court will sell us out

While I appreciate your dedication to the cause and the fervor of your beliefs, I can't agree with your argument. Saying the Second Amendment is especially protected is no different than the antis saying it deserves less protection than the rest of the Bill of Rights. It's one of the Rights enumerated in the Constitution. It's no less important and no more sacrosanct than the others.

How you can find a legitimate textual difference between "shall not be infringed" (2A) and "shall make no law" (1A) is beyond me. Both of them are absolute statements. And if you look back historically at the Framers and that time period, you will see that it was the right to press and speech that was most limited by Britain, not the right to own firearms.

[Abraxas]

How you can find a legitimate textual difference between "shall not be infringed" (2A) and "shall make no law" (1A) is beyond me. Both of them are absolute statements. And if you look back historically at the Framers and that time period, you will see that it was the right to press and speech that was most limited by Britain, not the right to own firearms.

Again you are correct; I was simply stating how it has been not my interpretation of the text. Personally I think that allot of the restrictions placed on people in society are pointless. I say this because the problems that arise from the acts that we are afraid of will correct themselves. Now having said that I do not think that we don’t need laws I just think that we cannot regulate the problems out of people or society. I think that it is like everything else, we need a happy medium, and currently I think we have went right past that happy medium and are shifting from 4th into 5th( the UK is in 6th;) )

[Gutshot John]

Except insofar as the VP is part of the Executive Branch, I'd still disagree that he is part of the White House. He's got his own staff, office, residence, etc. Perhaps it's just a semantic argument but nonetheless.

He is part of the Executive branch. The Executive branch is led by the White House.


Both the President's brief and the Congressional brief (which Cheney signed onto) specifically state that they are not discussing or addressing whether concealed carry outside the home should be legal in the District.

Indeed I misspoke. We're talking about basic ownership. Thank you for correcting me gently.


This is a misunderstanding of the phrase "strict constructionist," then. A strict constructionist isn't someone who ignores reason and simply applies each line in the Constitution like a sledgehammer. A strict constructionist is one who doesn't find "new and exciting" rights (e.g., Roe v. Wade) in the Constitution.

A strict constructionist believes in "constructing" the meaning of the Constitution around the "original intent" of its framers. A strict constructionist believes that that the Constitution cannot be changed outside of the Amendment process. Changing the Constitution through the SCOTUS interpretation is by definition judicial activism. GWB said he was a strict constructionist, but obviously the meaning of this term is open to significant interpretation.


I admit it's been a few weeks since I read the Congressional brief, but I don't recall it suggesting that the Executive Branch of the United States has no power (governments have powers, not rights) to tax, regulate, or even ban firearms. I'd be willing to bet you that not one in ten of the Congressmen who signed onto that brief would be willing to repeal the restriction on firearms being sold or possessed by convicted felons, for example.

The whole basis for Federal firearms regulation is based on the power to tax. It cannot overtly regulate firearms, it can only tax them out of existence. The DOJ (wrongly) believes that overturning the gun ban jeopardizes this power to tax, and by extension regulate firearms.


Congress didn't pass the ban, the D.C. City Council did. In fact it was one of the Council's very first acts once Home Rule began. It was one of the things that propelled Marion Barry into the national spotlight for the first time, if I recall correctly.

I was under the impression that it was a Congressional action after the the Ford assasination attempt. I can't find anything for sure, so I could be wrong.


Furthermore, federal regulations exist only insofar as they are specifically empowered by a corresponding federal law. When the AWB sunset, all of the regulations ATF created to regulate it disappeared simultaneously. You can have law without regulations, but you cannot have regulations without law.

Actually no, I used to do this for a living. Regulatory bodies change regulations all the time without corresponding law. They are only required to announce their intention to change their "rules" and open the decision up to public hearing. By definition this means they create law in the form of regulations, interpret that law through their bureaucracy (sometimes an individual regulator choses to enforce, sometimes not), and enforce the law through penalties, fines and jail. Something no other body in the US government can do.


Again, I disagree and I'm not aware of a single Supreme, from the most liberal to the most conservative, who has ever taken that view. I've personally spoken to both Justice Scalia and Justice Thomas about the Second Amendment, and while these two men are the poster children for strict constructionalism neither of them would agree that the Constitution eliminates any regulation of RKBA (or speech, or any other right).

Funny that my experience with them seems to be different, but something of a straw man. In fact much of the regulatory argument I got from a Scalia speech at the NPC. They certainly would not say that the Constitution eliminates regulation, the would say that if you want to regulate, you need to follow a Constitutional process. Regulatory bodies, in their New Deal origins, are extra-constitutional.


BTW, you specifically excepted felons in your argument. Can you show me where in the Constitution it says that the 2A doesn't apply to felons?

I'd say that's more of a possible exception and implied. If you break the law your liberties can be infringed. No one would argue otherwise.


That's a whole other debate and even assuming it has some factual basis, the real politic is that regulatory agencies are here to stay. Their existence, their regulations, their rulings, and their administrative actions have all been upheld by SCOTUS many times.

I agree that they're here to stay, which is why the President's brief is essentially moot and simply is a way to mollify the bureacracy. In fact I said there is ample case law that supports this. My point was that if this doesn't threaten the regulatory process...why make the argument at all? Why not just say, yes you have a right to own a firearm. If you've broken the law while using that firearm, this is another issue altogether.

I think we mostly agree, you just misunderstood what I was arguing.

[Abraxas]

I'd say that's more of a possible exception and implied. If you break the law your liberties can be infringed. No one would argue otherwise.

You are right when it comes to "liberties" however the 2nd amendment is on the Bill of Rights. Key word being RIGHTS, there is a difference between rights and liberties. According to the constitution owning a firearm is a right yet the ability to vote was not, and yet somehow people have missed these points. Now I do not think that Charles Manson should own a M2 or even a .22 but if a person is so dangerous that they cannot be trusted to own a firearm why are we letting them out of their cage?

[Gutshot John]

You are right when it comes to "liberties" however the 2nd amendment is on the Bill of Rights. Key word being RIGHTS, there is a difference between rights and liberties. According to the constitution owning a firearm is a right yet the ability to vote was not, and yet somehow people have missed these points. Now I do not think that Charles Manson should own a M2 or even a .22 but if a person is so dangerous that they cannot be trusted to own a firearm why are we letting them out of their cage?

I'd probably agree with Todd that there is substantive problems with that interpretation.

A right can indeed be taken away. Voting is covered under the first-amendment.

Moreover Article I, Section 9 (I believe) explicitly grants the power to Congress to suspend the right of Habeus Corpus in times of Invasion or Insurrection. If rights were completely inviolable this would not be the case.

[Codename46]

Again you are correct; I was simply stating how it has been not my interpretation of the text. Personally I think that allot of the restrictions placed on people in society are pointless. I say this because the problems that arise from the acts that we are afraid of will correct themselves. Now having said that I do not think that we don’t need laws I just think that we cannot regulate the problems out of people or society. I think that it is like everything else, we need a happy medium, and currently I think we have went right past that happy medium and are shifting from 4th into 5th( the UK is in 6th;) )

You speak of happy mediums.

Where do you draw the line on gun control?

[ToddG]

Now having said that I do not think that we don’t need laws I just think that we cannot regulate the problems out of people or society.

I agree with this wholeheartedly. Whether it's criminalizing unpopular or "scary" behavior or creating entitlements and incentives for people to be decent human beings, government has stuck its nose much too far into the everyday aspects of our lives. Let's face it, once SCOTUS decided that a man's private backyard garden could be regulated as part of interstate trade, everything began rolling downhill. :mad:


He is part of the Executive branch. The Executive branch is led by the White House.

I understand what you meant, as I said I think it's just a semantic difference of opinion.



Indeed I misspoke. We're talking about basic ownership. Thank you for correcting me gently.

Believe me, I'd piss myself if SCOTUS declared CCW protected under 2A. In fact, I can see the Brady Campaign plotting a most nefarious plot ... they convince the Supremes to rule that way, and all the gun owners in the country will spontaneously fall over dead from surprise and excitement.


A strict constructionist believes in "constructing" the meaning of the Constitution around the "original intent" of its framers. A strict constructionist believes that that the Constitution cannot be changed outside of the Amendment process. Changing the Constitution through the SCOTUS interpretation is by definition judicial activism.

Marbury v. Madison established in 1803 that SCOTUS is empowered to interpret the Constitution. Many of the men sitting on the Court at the time were Framers. The case established the concept of judicial review in the U.S. There is a significant difference between judicial review and judicial activism.


The whole basis for Federal firearms regulation is based on the power to tax. It cannot overtly regulate firearms, it can only tax them out of existence. The DOJ (wrongly) believes that overturning the gun ban jeopardizes this power to tax, and by extension regulate firearms.

No, it's based on the Constitutionally granted power of Congress to regulate interstate trade (Article I, Section 8). In fact, a gun control law was overturned by SCOTUS not that long ago because Congress failed to justify it in terms of interstate trade. Of course, all Congress has to do is write a little statement of "this impacts interstate commerce" and they're covered.

DOJ isn't worried about its authority to tax (in terms of regulating and collecting; tax power is reserved to Congress). It's worried about a SCOTUS decision that could, theoretically, throw out every piece of federal gun control legislation. We might argue about whether that would be ok or not, but certainly the majority of Americans wouldn't favor complete instant eradication of NFA and CGA68 in their entirety.


I was under the impression that it was a Congressional action after the the Ford assasination attempt. I can't find anything for sure, so I could be wrong.

I believe the history of the ban was discussed in one or both of the briefs we were discussing. But if my recollection is incorrect, I apologize.


I'd say that's more of a possible exception and implied. If you break the law your liberties can be infringed. No one would argue otherwise.

So without sounding snotty, I hope, I see this as contradicting your concept of "strict constructionalism." If there are possible exceptions implied, then you and I agree and the only difference is how many or drastic those exceptions can be. In either case, it's agreement that 2A isn't without restriction even from a strict constructionalist sense.

And fwiw, I'm not blowing off the regulatory powers debate. My wife is an education lobbyist and I've worked in the firearms industry for ten years. Believe me, I deal with it every day. It's just that, as we both agree, the point is sort of moot. Extra-constitutional or not, they exist and their existence has been affirmed countless times.

[Abraxas]

I'd probably agree with Todd that there is substantive problems with that interpretation.

A right can indeed be taken away. Voting is covered under the first-amendment.

Moreover Article I, Section 9 (I believe) explicitly grants the power to Congress to suspend the right of Habeus Corpus in times of Invasion or Insurrection. If rights were completely inviolable this would not be the case.

Like Todd these are good points, and while driving would have been a better analogy, I used voting because the ability to vote was not granted to all err go not a right per say like the rest. Now as you illustrated there is always an exception to the rule. The point that I was trying to make is that not all convicts are evil or even guilty I have worked with two (that I know of) one was just a wrong place wrong time and what scared the hell out of me was I could see myself haveing done the same in his case. The other I truly belive was innocent. Neither were people that should not be allowed their rights. On the flip side I have met several that NEVER should have been let out. But those will put themselfs back in regardless of the laws and the others are being punished for something that is no more likely to happen that any one else.

[Abraxas]

You speak of happy mediums.

Where do you draw the line on gun control?

Personally speaking nukes:D

[Gutshot John]

Marbury v. Madison established in 1803 that SCOTUS is empowered to interpret the Constitution. Many of the men sitting on the Court at the time were Framers. The case established the concept of judicial review in the U.S. There is a significant difference between judicial review and judicial activism.


I said nothing about judicial review. Judicial review is predicated on the notion that laws violate the Constitution need to be overturned. Seeking out new things that otherwise don't exist is activism. Strict Constructionist "review" of laws is based on a strict interpretation of the Constitution, rather than what Congress says it should. That is exactly what I said.


No, it's based on the Constitutionally granted power of Congress to regulate interstate trade (Article I, Section 8). In fact, a gun control law was overturned by SCOTUS not that long ago because Congress failed to justify it in terms of interstate trade. Of course, all Congress has to do is write a little statement of "this impacts interstate commerce" and they're covered.

The commerce clause is the basis for their authority, taxation is the means by which they enforce it. Moreover the commerce clause has been abused to justify any law it wishes to pass. More than one decision (thanks to the Rehnquist court) has made the point that there has to be a legitimate commercial interests if not than the Commerce clause does not apply. The DC gunban does not fall under interstate commerce


DOJ isn't worried about its authority to tax (in terms of regulating and collecting; tax power is reserved to Congress). It's worried about a SCOTUS decision that could, theoretically, throw out every piece of federal gun control legislation. We might argue about whether that would be ok or not, but certainly the majority of Americans wouldn't favor complete instant eradication of NFA and CGA68 in their entirety.

The power to tax is the whole basis for Federal Firearms regulation. This is how they skirt the letter of the Constitution. They can't overtly ban firearms, so they tax them and make it next to impossible to pay the tax. This is why you have a tax stamp on all NFA firearms.


So without sounding snotty, I hope, I see this as contradicting your concept of "strict constructionalism." If there are possible exceptions implied, then you and I agree and the only difference is how many or drastic those exceptions can be. In either case, it's agreement that 2A isn't without restriction even from a strict constructionalist sense.

So long as that restriction is performed within the Constitutional framework. Up to this point it hasn't been.


And fwiw, I'm not blowing off the regulatory powers debate. My wife is an education lobbyist and I've worked in the firearms industry for ten years. Believe me, I deal with it every day. It's just that, as we both agree, the point is sort of moot. Extra-constitutional or not, they exist and their existence has been affirmed countless times.

Agreed, but that doesn't mean it can't be resisted/altered within the legal means at our disposal.

[Gutshot John]

No not all convicts/felons should neccessarily have their rights taken away just because they are felons.

I just think the onus is on them to prove why it shouldn't.