November 19, 2007
Reading tea leaves
The U.S. Supreme Court punted last week, remaining silent on whether the justices would grant cert on Parker, the case that invalidated the Washington, D.C., gun ban. Given that there's a clear split of authority in the Federal Circuits, court watchers are trying to puzzle out what is behind the Supremes' silence.
Clayton Cramer sorts through the possibilities.
Remember: it takes four justices to grant cert. It is very, very difficult for me to believe that only three justices consider this important enough of a question of law for the Court to consider. So it may be the question above (someone is writing a dissent from the denial and needs more time). Or it may be that there are six justices who are afraid to confront this question.
Let's do the math. There are nine justices on the Court. If a majority are in favor of overturning the Court of Appeals decision, then they have the votes to grant cert plus one. If a majority are in favor of upholding the Court of Appeals decision, then they have the votes to grant cert plus one. So why wouldn't they grant cert?
Perhaps there is a majority in favor of overturning the Court of Appeals, and ruling that the Second Amendment doesn't protect an individual right, but they realize that doing so would launch a political firestorm in the U.S., and pretty well destroy any chance of the Democrats taking control of the White House next year. If so, they are prepared to destroy the existing ban on bringing handguns into the District, in order to put a Democrat in the White House next year.
This really confuses me.
Me too.
Law prof. Glenn Reynolds -- Instapundit to those of you who already read him -- has an interesting take on the politics underlying the gun control debate, as well as judges' outcome-determinative rulings.
With a decision on certiorari in the D.C. gun-ban case coming up, perhaps this week if rumors are to be believed, I've gone ahead and posted a forthcoming article of mine before publication. Entitled Guns and Gay Sex: Some Notes on Firearms, the Second Amendment, and "Reasonable Regulation," it's a look at how courts might deal with an individual right to arms, particularly in light of the D.C. Circuit's overturning of the D.C. gun ban.
Prof. Adam Winkler has looked at some state right-to-arms cases and suggests that even if the Supreme Court finds an individual right to arms, nearly all gun control laws would wind up being upheld as "reasonable regulations."
I look at some other cases that Winkler doesn't discuss -- and in particular the way the privacy and gun right cases intertwine in Tennessee -- and suggest that it doesn't have to turn out that way.
The gist: If courts pay as much attention to assessing the reasonableness of regulations aimed at firearms -- where there's a textually secured right -- as they do to regulation of gay sex -- where there isn't -- firearms owners will receive considerable protection. And if courts fail to do so, the legitimacy of courts will suffer considerably.
Of course, I think the legitimacy of the judiciary has been in a tailspin since the dark days of the Warren Court, but then again, I also believe outrageous things, radical ideas such as elected representatives of the People ought to write the laws; judges have no business re-writing laws; and the proper way to add new rights, freedoms and protections to the Constitution is to amend it, not via an out-of-control judiciary imposing its policy preferences on the rest of us.
It's disheartening to think that Parker might not become the first major gun-rights case to make it to the Supreme Court since the 1930s, only because a majority of pro-gun control justices are afraid the GOP might benefit from an anti-Second Amendment ruling.
Posted by Mike Lief at November 19, 2007 11:30 AM
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Comments
One good thing is that, for the first time in modern history, the conservatives can hire Laurence Tribe to argue their case in the Supreme Court. His conversion to the idea that the second amendment is an individual right, albeit late in the day, is thought to be an unstated basis for the DC court's opinion.
Posted by: The Little Coach at November 19, 2007 02:33 PM
For all that I personally hold the Second Amendment as a significant personal right, and for all that I hope that the Republicans nominate a candidate who believes as strongly as I do, I do not see a Supreme Court decision either way on the issue as creating a firestorm that will sweep either party into or out of power. Although the justices individually have exposed their extreme personal naivete in every possible situation, the Court as an institution retains political advisors savvy enough to tell the justices that a Second Amendment opinion won't make that much difference. Abortion or homosexual rights, now . . . there's a difference.
Posted by: The Little Coach at November 19, 2007 02:46 PM
Given that the Democrats have run screaming from gun control precisely because it's such a loser in congressional and presidential elections, I suspect that the last thing they want is a Supreme Court decision that energizes conservatives, Second Amendment activists, hunters and shooters -- all of whom are far more likely to vote conservative than liberal.
Don't forget, there are as many as four Supreme Court appointments at play during the next four years. I suspect the liberal members of the Court are loathe to turn over those appointments to Pres. Romney.
Posted by: Mike Lief at November 19, 2007 11:16 PM
May you be struck by lightning on a clear day for using the words "president" and "romney" together.
Posted by: The Little Coach at November 20, 2007 07:37 AM
Well, it's only because -- with the way he's been polling -- "President Thompson" doesn't seem very plausible.
Although one can hope.
Posted by: Mike Lief at November 20, 2007 07:52 AM