Perhaps as early as today, the U.S. Supreme Court could take up an issue the justices have not confronted for nearly 70 years: Does the Second Amendment’s “right to keep and bear arms” apply to individuals or to states for the purpose of managing their militias?
We believe the history of the Second Amendment points to only one credible conclusion: The Constitution guarantees an individual right to own firearms. So we hope the court will hear the appeal of Parker v. District of Columbia. If it refuses, then the district’s sweeping gun ban - which does not recognize even an individual right of self-defense - would stand.
This is a weird op-ed. The author is clearly aware that Parker reached SCOTUS because the lower court overturned the DC ban, so if SCOTUS refuses to take the case, DC ban will be overturned - but the ruling will have no effect on the rest of the nation.
The bigger question: even if SCOTUS takes the case and upholds the lower court ruling, will it “incorporate” the Second so that it covers the states as well as the federal government? If not, then the same problem occurs that I have pointed out previously: A national constitution that does not actually protect the unalienable rights of its citizens from the depredations of lower governments is a worthless, not worth the tissue paper on which it is written.
UPDATE: The court did nothing today.
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Even if SCOTUS takes the case, there will be no ruling on the “incorporation” issue, since it isn’t necessary to decide the case.
My gut is that cert will be denied. My thinking is that if there is a general holding that the 2nd Amendment creates an individual right to bear arms, you’ll have a flood of litigation in the District Courts who’ll be left holding the bag deciding which particular firearms regulations are constitutional and which aren’t. (I can guarantee you that even the most “pro-gun” decision would create some sort of “reasonableness” test). More conservative courts (which, relatively speaking, we have now) tend to try to avoid these results.
Is this because the only thing affected is the Federal District?
If SCOTUS does take the case and does find an individual right, can we assume there will then shortly be a case that would involve incorporation?
SCOTUS can’t dodge this forever. Well, they could, I suppose, if they are willing to let the Circuits have ever-growing disparities in how a constitutional amendment is interpreted. If they deny cert, we will have two Circuits finding an individual right, and the remainder doing - well, who knows? The Ninth Circus will forever find the most twisted, statist interpretation of any constitutional question, but what about the rest? With two circuits and a fair body of constitutional thought among scholars - including, and this is no minor matter, Lawrence Tribe, who has had a major influence on modern constitutional jurisprudence.
And by the way, speaking of Tribe, here’s the obligatory Singularity twist: Tribe decided not to write the second volume of the third edition of his work American Constitutional Law. The reason?
Law.com - Laurence Tribe’s Big Surprise
In other words, Tribe views American law changing so quickly that he can’t capture what is actually happening in something so slow-moving as a hardcopy book.
Sounds sort of singular to me.
That’s my understanding.
Just read this:
Supreme Court May Take Gun Case - New York Times
Okay, lawyers: This is part of the brief from the DC team. Is it invoking anything that could touch on the incorporation issue?
As they teach us to respond in law school, “it depends.” Before you get to that question, the court has to rule that the DC regulation in question is the equivalent of a state regulation, in which case you get to the incorporation issue. I read (or more or less scanned) the DC Circuit opinion a while ago, but recall that this was one of the arguments DC made. I’m not all too familiar with decisions addressing the nature of DC ordinances, but I would think that the Court would hold that it’s federal, if there’s some justification for doing so, to avoid the incorporation issue. I think the Court has rarely, if ever, tackled the meaning of a provision in the Bill of Rights and the incorporation issue all at once — although I could be wrong here.
Sounds sort of Crazy Years to me.
Science and technology advancing so fast that prediction is worthless marks the Singularity. Legal decisions and financial markets and pop culture hopping around so randomly that prediction is worthless is something else.
If technology is increasingly driving decentralization and devolution (and it is) the logical result should be a plethora of cultures, until an endpoint is reached - all culture is personal culture, discrete and individual.