Second Question from the Dave Hardy chat

Dave Hardy of Arms of the Law (and one author of amici briefs in Heller) participated in an online chat on the Heller case last Friday. I logged in to get a few of my own questions answered.

TriggerFinger: Second question. The more-liberal side of the court is famous for reading rights into the "penumbras" of the Constitution. Would it be fair to read similar implications into any common federal gun control laws not referenced by Scalia as permissible? I'm thinking in particular of Lautenberg's domestic-violence rules, which came close to the brink in US v Emerson and which, as I recall, was notably absent from Scalia's list. (at least as summarized in the syllabus -- still working through the whole opinion)

It should be pretty clear what I'm getting at here. What Scalia leaves off his suggested "ok list" for gun control is a ripe target for challenge precisely because it's left off and we won't have to argue with a recent Supreme Court "suggestion" even in dicta.

David H (davehardy): Possibly. I did notice that Scalia omitted mention of Lautenberg. That wouldn't be significant in a purely legal sense, but suggests to that Scalia at least has heartburn with it, and the four Justice who joined him did not suggest its mention.

And it seems that Dave is thinking the same thing. Left unstated is the effect that US v Hayes will have on the law:

In the second grant Monday, the Court agreed to hear a Justice Department appeal in U.S. v. Hayes (07-608), urging it to clarify the federal law that makes it a crime to have a gun after being convicted of a misdemeanor crime of domestic violence. The specific issue is whether the federal ban at issue requires that the convicted individual and the victim in the underlying crime have a domestic relationship ? that is, as a spouse, parent or guardian.

It's hard to get a good plaintiff for a Lautenberg case. This case was picked by the Justice Department rather than our side, and the plaintiff is not one that I would have chosen, though the court grants certiori for its own reasons. Are they planning to use this case to strike down the ban? Probably not, even if Scalia left the rhetorical door open. But it's possible.

I wouldn't be surprised to lose Hayes (especially since the 2nd Amendment question isn't presented at this point) and win a subsequent case involving a restraining order rather than a conviction. Nor would it surprise me to see a ruling indicating that the 2nd Amendment requires careful dotting of i's and crossing of t's in order to uphold any regulations -- sort of a "you didn't get this case quite right, please come back later with your paperwork in order." Reading tea leaves from the Court is not always easy.

Clearly, though, I'll have to pay attention to the briefs in this case to see if and how the issue gets raised.

The full transcript is available here.

Posted on 2008-06-27 15:41:21.0 by matthew@triggerfinger.org

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