June 23, 2008

Will Heller Come Down on Wednesday?

Following this morning's opinions Tom Goldstein noted the following:

The only opinion remaining from the March sitting is Heller. The only Justice without a majority opinion from that sitting is Justice Scalia

Is Morris smiling?

Here's a handy reminder of what to watch for in the Supreme Court's biggest gun case in many years.

Posted by armand at June 23, 2008 10:38 AM | TrackBack | Posted to Law and the Courts


Comments

If Scalia writes it I'll be smiling, or at least relieved. Presumably that means we will (in all likelihood) at least have salvaged ONE bit of the Bill of Rights from the Bush 43 years.

Posted by: jacflash at June 23, 2008 01:24 PM | PERMALINK

I may be proved wrong, but for entirely non-partisan reasons, I have serious doubts that Scalia ends up with the Heller MO. He's far more polar on the issue than the Court is going to be. Heller has Kennedy written all over it. Given the nature of the issue and the extravagance of Kennedy's most self-conscious opinions, he's probably just refining his outlandish metaphors.

Seriously, this case is going to be all about finding a limited individual right as a matter of course, and assessing the draconian and indisputably extreme law in D.C. the likes of which is matched by no other city that I know of through what's going to be the more important aspect of this case: the adoption or formulation of an existing or newly-minted constitutional test (something on par with undue burden, I suspect) against which to measure gun regulations, which test in whatever form will surely flunk D.C.

And in this vein, it's worth noting that a major circuit split is forming with regard to what level of scrutiny Lawrence applied. I offer that just as a further elaboration on my suspicion that Kennedy's opinion, assuming it is his, will be long on rhetoric and short on clarity.

Posted by: moon at June 23, 2008 01:40 PM | PERMALINK

"he's probably just refining his outlandish metaphors" - I tend to cut Justice Kennedy a lot of slack, that's a good line.

Posted by: Armand at June 23, 2008 04:08 PM | PERMALINK

I cut Scalia very little slack, but my favorite Scalia line has to be when he explicitly mocked Kennedy's "sweet mystery of human life" from Casey, or whatever case it appered in. Classic.

Posted by: moon at June 24, 2008 08:55 AM | PERMALINK

Looks like today's the day. My guess is that we find a fairly solid individual right as applied to federal law, but see a reluctance to 14th-amendment (that's a verb because I'm not yet awake enough to remember the correct one) that right out the states. Or maybe we just fail to address how this should be viewed at the state level.

Anyone else want to post a guess before the magic hour?

Posted by: jacflash at June 26, 2008 08:12 AM | PERMALINK

Well in other SCOTUS action Davis (the "millionaire's amendment" campaign finance case) has been decided 5-4 (splitting the "conservatives" and the "liberals", with Alito writing for the majority).

Posted by: Armand at June 26, 2008 10:09 AM | PERMALINK

Well, I'm through 22 pages of the MO, and I'm basically fine with what I've read so far, if not thrilled with Scalia's predictably caustic tone. Such a sore winner.

Thing is, if I understand the syllabus correctly, we've established no test. We've now established that there is an individual right to bear arms for hunting and self-defense, which is true in most states as a matter of state constitutional law in any event (and hence reflects very little change in the status quo), but, much as I suspected (although I imagined Kennedy writing), the Court said simply: the D.C. bans could survive no level of scrutiny applicable to "ennumerated rights" and thus the Court passed on settling what level of scrutiny survives.

Sure, the decision punctuates with a full stop the debate over the right at issue, and that's something, but it does so unsurprisingly (in light of text and the Court's composition). But it doesn't answer the hard question, just as it didn't in Lawrence (much to the detriment of the law in its wake): How do we assess the validity of any particular restriction?

Btw, Mo, in the first 22 pages alone Scalia clearly admits what you've never been able to: that the Second Amendment right, like every other right in the Bill of same, is amenable to restrictions, and that may include fees, registration, etc.

Anyway, at 22 pages, which is still in the heart of Scalia's textual analysis, I'm really quite persuaded by his historical analysis. Of course, I've never strongly felt the collective view of the Second Amendment; I've only ever insisted that reasonable people acknowledge that there is a robust argument to that effect. The two four-justice dissents ought to reinforce the fact that, as we say, reasonable people may differ.

Posted by: moon at June 26, 2008 02:48 PM | PERMALINK

Yeah, the extent of what's not addressed is perhaps the most interesting part of this. Will be interesting to see what related cases the Court chooses to hear next term.

Posted by: Armand at June 26, 2008 03:29 PM | PERMALINK

I have always felt the so-called collective view to be utter nonsense, a fantasy of those who would aggressively microregulate every aspect of American life. I think Scalia could have been much more caustic, with good reason. "Robust argument" my ass, Moon, they don't even have emanations and penumbras to lean on.

Posted by: jacflash at June 26, 2008 06:33 PM | PERMALINK

the collective rights view has commanded verbiage in prior Supreme Court precedent, and been the majority rule among the courts of appeals for the century that anybody's cared. if it's nonsense, it's nonsense that consistently reflects the views of a majority of appellate panels, and the views of at least as many scholars as feel the other way and probably far more.

sore winning is sore winning. and "the other side's a bunch of ass faces" has no place in opinions defining the law of the land. it's a style thing. it's a class thing. and scalia, who used to have some sense of decorum, has proven of late that in his senescence he is entirely indifferent to notions of civility and professionalism.

he could have inserted into his opinion a picture of himself flipping the dissenters the bird. doesn't make it right, appropriate, or befitting the institution.

Posted by: moon at June 27, 2008 09:24 AM | PERMALINK

And one does of course wonder if Scalia's caustic tone (to put it nicely - and which has existed for years) has hurt his cause. Jan Crawford Greenburg's book argues it's one of the things that drove Justice O'Connor away from him.

Posted by: Armand at June 27, 2008 10:39 AM | PERMALINK

Speaking from . . . well you know my background and I know a thing or two about this stuff . . . it's really worth it to save the snark for a handful of worthy situations, and otherwise play nice. You attract more [insert appropriate insect] with honey, and respectful disagreements generally are better for everyone involved. That way, when you are genuinely outraged, the people who matter recognize it as such and maybe think twice about what they're doing. It's a familiar story; and I've watched it work time and again, as have I watched its opposite fail, alienate natural allies, etc.

Scalia has always been scathing, but he used to save it for his dissents rather than his majority opinions. I can't help but track an amping up of his public intellectual pretensions and his unremitting mouthiness on the Court to the appointment and confirmation of Chief Justice Roberts. No matter how improbable, I'd bet a lot that, in the dead of night, Scalia was holding out hope to be Chief, something that even he could only have imagined was plausible under a president like Dubya. When that failed to pan out, Scalia realized his status on the Court would never appreciably change, and that he had no reason to make nice.

But like you say, it's interesting that he chooses to do so given that he might be able to serenade Kennedy over to his side more often if he were more cordial about their disagreements. Indeed, it suggests a degree of self-defeating egotism (something that Kennedy shares, methinks, although it manifests more in his unnecessarily purple prose, which itself is alienating of more modestly-inclined justices) that has a higher priority for Scalia than maximizing his chance of winning the day for the betterment of the law.

Which, again, ought to be the point for a person of conviction.

Posted by: moon at June 27, 2008 11:01 AM | PERMALINK

the collective rights view has commanded verbiage in prior Supreme Court precedent,

Has it? Where?

(Don't say Miller. Really, just don't. IANAL and all but I do know what really went on there.)

Posted by: jacflash at June 27, 2008 12:03 PM | PERMALINK

I don't know what IANAL means.

And sorry to disappoint, but my answer is Miller, which I know is inconvenient, but nonetheless was the law of the land for some 70 years, as well as being the only germane precedent the Court had to work from in the way of stare decisis. I mean, I'm sure you have your reasons -- perhaps hidden in IANAL -- for not wanting to have Miller cited back at you, but none of them are germane to the operative question which is whether the Court ever espoused a collective right. I'll grant you that Miller didn't do so as such, but only a deliberately dense reading could deny that such is lurking through Miller. For instance:

The Constitution as originally adopted granted to the Congress power -- "To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions; To provide for organizing, arming, and disciplining, the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress." With obvious purpose to assure the continuation and render possible the effectiveness of such forces the declaration and guarantee of the Second Amendment were made. It must be interpreted and applied with that end in view.
United States v. Miller, 307 U.S. 174, 178 (1939). You can be as cryptically derisive as you want to be, but in light of that passage and its immediate surround, I daresay the burden of proof to the contrary is on you, and sneering isn't going to carry it.

Now, I still haven't had time to go through Heller with any sort of rigor, and I'm sure Scalia has a great deal of fun circumlocuting us all into believing that Heller follows logically from Miller, when what he really means is Miller is wrong, so who gives a damn. But the case is there.

And more importantly, you're not really responding to my point, which is that one can disagree in principle with those courts that adopted a collective rights view (and if you want an even more interesting treatment than Scalia's seems to be, I recommend Emerson, a 2004-ish case in whatever court of appeal encompasses Texas (I always forget), that made a hell of an argument for an individual right), but one accomplishes very little by casting "they're dumbasses" aspersions on the majority of federal appellate panels that have considered the question, whether relying on Miller, as some have, or not.

Also, I'm thinking that Akhil Reed Amar also espoused a novel approach tending to support an individual rights model of the Second Amendment, and Amar is a temperate, non-partisan, and very highly regarded constitutional scholar. Armand, a little help here? You read it more recently than I, and you have a better memory generally for what you read.

Posted by: moon at June 27, 2008 02:53 PM | PERMALINK

Sure, Akhil Reed Amar, whose approach or politics are quite eclectic, but who I'd assume is more likely to be labeled as part of the left than the right (and whose American Constitution: A Biography is really interesting) has indeed made a pro-individual rights argument.

And Texas (along with LA and MS) is what remains of the 5th Circuit (which used to also include what's now the 11th Circuit). The 5th is probably the most "conservative" Circuit. Judge Garwood (a Reagan appointee) wrote Emerson.

As to other matters related to Heller, I'm enjoying the posts today about how freakin' awful (or shall we say convenient) the historical coverage in both Scalia's and Stevens' opinions appparently is (check out Balkinization).

Posted by: Armand at June 27, 2008 03:39 PM | PERMALINK

Re Amar, I would agree that an outside assessment of Amar's scholarship would place him somewhere left of center, but eclectically, as you aptly put it, and independently, as is more relevant to my claim of non-partisanship, by which I stand.

I skimmed Balkinazation, and I loved this from Tushnet, which echoes, in slightly different form, my deep disdain for people who cite "judicial activism" as a shorthand for "what the other side's judges do, which I don't like:"

For now, it may be worth observing the rhetorical difference between Justice Breyer?s description of his job as one requiring him to exercise ?legal judgment,? and Chief Justice Roberts?s description of the job as that of an umpire calling balls and strikes. As to the latter ? and with implications for the question of judicial empowerment ? it seems to me striking, so to speak, that, as one might put it, when Chief Justice Roberts calls the balls and strikes, it turns out that the home team?s pitchers have a truly amazing capacity to get the ball in the strike zone while the visitors? pitchers quite frequently throw wildly. And, we really should try to figure why exactly it?s a bad thing for people we call judges to exercise judgment.

Well said.

Posted by: moon at June 27, 2008 03:50 PM | PERMALINK
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