Firearms and the Supreme Court

David Codrea is pessimistic about the outcome of a Supreme Court firearms case, even if it is technically an individual-rights decision; SaysUncle questions how the Supreme Court could avoid ruling certain outright bans unconstitutional while issuing such a ruling; and Denise of The Ten Ring imagines how it might play out.  Those are all good points.  Here's what I think the likely outcome is.

We're likely to see one of the two cases in the DC circuit at present before the Supreme Court.  That will likely result in a ruling that proclaims an individual right.  The question is how strong the decision would be; there's little question that a correct legal reading of the Constitution forbids the DC laws, though there's always the question of whether the Justices will vote in accordance with the obvious. 

If the Parker case is the one that the Supreme Court choses to take, they will likely proclaim a protected federal right and remain silent on whether the States can regulate where the Federals cannot.  If, instead, the Court hears Seegars, some of the claims in Seegars invite 14th-amendment analysis and the ruling will probably address whether or not the 2nd Amendment should be "incorporated", as other Amendments have been.  [UPDATE: I've been informed by someone who knows more about this than I do that incorporation won't be an issue in Seegars.  They are clearly right about that.  There was a nuance I was trying to express here that clearly got lost in translation, and in the interests of clarity I will not continue attempting to express it.  The rest of the post applies to incorporation of the 2nd in general and is still valid].

My concern is that an incorporated 2nd Amendment is more threatening than one that is an admitted individual right but may or may not be applicable against state laws.  If the Justices are forced to admit that the 2nd Amendment binds the states as well, they will likely be more open to carving exceptions for "reasonable regulation" into the law.  Split into two cases separated by a few years, justices may be more open to expanding a strong, but narrow (federal only) ruling into an incorporated ruling.   I don't want a watered-down version of the 2nd to apply in case law, I want the whole thing. 

There will be ample opportunities to address incorporation -- consider San Francisco, Chicago, New York...

UPDATE: There are some questions in the comments that are worth discussing.  First, how can the SCOTUS dismiss "shall not be infringed"?  It's not easy to do, and that's probably why they haven't.  They usually just don't take the cases.  As for what can be done to force them to address it, the answer is very little.  We can (and have been trying to) put justices on the court willing to interpret the Constitution honestly.  That's about it.  If Congress wanted to force the issue, they could pass legislation expanding or restricting the jurisdiction of the Supreme Court (eg, "The Supreme Court shall have original jurisdiction in all cases involving the 2nd Amendment"), but I suspect that would be counterproductive.  A court willing to rule favorably on the 2nd Amendment would probably not duck the issue the way it has.

This entry was published Thu Jan 19 18:12:15 CST 2006 by TriggerFinger and last updated 2006-01-19 18:12:15.0. [Tweet]

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