Second amendment debate
At the Federalist Society. Interesting to me that Glenn Reynolds predicts the court will deny cert. noting:
If I’m right, a denial of certioriari is the only way for the Court to avoid a very difficult situation.
That would make them cowards, in my book.
Equally funny is Saul Cornell, which the society notes: This debate has mostly been conducted on a high level. Regrettably, Saul Cornell’s final post has stooped to ad hominem attacks, barefaced attempts to promote Cornell’s book, and reliance on a quote for which Cornell inexplicably provides no source. Well, that’s what I expect from Cornell.
And Henigan sticks to the collective right mythology.
September 4th, 2007 at 10:18 am
WRT Saul cornell, me too!
And it’s nice that someone as high-profile as Glenn Reynolds agrees with me on SCOTUS denying cert.
They’ve been dodging the question since 1939. I think he’s right – they don’t want to deal with the question. No matter how they decide, it means tossing a lit torch on a powder keg.
The only question: how big a keg?
September 4th, 2007 at 10:22 am
There’s something about the supremes that I just can’t wrap my head around. They spend their whole career up to their final appointment holding their legal views of important controversial topics like Roe, or the RKBA close to their chest (using various mischief such as senior status, so they can palm off those defining cases to someone else), just so they won’t be subject to a “litmus test”., and then once they make it to the very top of their profession they seem to refuse to touch important weighty matters.
anyway, what’s the scorecard?
deny cert (not even four supremes thought the case worthy): We win, but only in DC.
We win: We win some undefined right to keep (but not bear, i.e. only inside the home) a firearm, but the ruling applies nation-wide. Since every other plaintiff was denied standing, that’s all we win.
We lose: No right to keep a gun at home. Second amendment reinterpreted to mean something else entirely.
September 4th, 2007 at 10:46 am
The case for a less active court is pretty simple: The SCt considers part of its mission to decide only the right cases, and as few of them as needed. Because SCt decisions are such big, blunt weapons and precedent gets unwieldy, there’s a lot of value in producing mature decisions with comfortable majorities– stuff that won’t get overturned in a generation. They’d rather nibble at the uncontroversial edges than make grand pronouncements right in the middle of a society-wide divisive fight.
The less charitable explanation is even simpler: The court takes a lot of heat from both the right and left for not taking enough cases, and rightly so. I know several former clerks who note that the court took many more cases 20 years ago than they do today. They say the problem is a combination of laziness, fear and old age.
Sometimes I want a more active court, and sometimes I celebrate the laziness of the people who gave us such incredible decisions as Gore v. Bush. One thing I can say, though, is that the recent SCt clerks I know are the sharpest and most hard-working legal minds I’ve ever seen. Whatever the problems is, it’s not a lack of intellectual resources.
September 4th, 2007 at 11:06 am
Makes me wonder what kind of supremes we would have if we knew their views on RKBA, privacy of all kinds – including medical privacy of one specific procedure preformed only on females- interstate commerce, or the incredibly elastic clause. BEFORE they were confirmed to the supreme lifetime appointment.
September 4th, 2007 at 1:47 pm
i’ve been calling this as a “deny cert” for a while, mostly in comments here at Uncle’s place, exactly because it’s too much of a political hot potato for them to do otherwise. SCOTUS is way too political a body to make waves about a matter like this.
it’s still a fair win if they do, though. the DC circuit is also the default federal circuit, so it’d stand as precedent any time somebody wanted to sue the fedgov on a 2nd am. case. the repercussions of that will be interesting to see, fifteen to twenty years down the line.
September 4th, 2007 at 3:54 pm
I, also, have opined that the court will refuse to hear it. This is basically the same court that gave us Kelo v. New London. It may be a good thing if they dodge their duty to hear this case.
September 4th, 2007 at 4:48 pm
Cornell isn’t funny, he’s pathetically disengenuous. Couldn’t the symposium organizers have found a competent, intellectually honest voice to propound the anti view?