Say that the D.C. Circuit decides not to rehear the case en banc; that probably means the en banc petition will be denied within several months. Assume that it's denied by late June — the petition for certiorari will be due in late September, the Supreme Court will consider it in the next month or two (unless it decides to call for the views of the Solicitor General, but I doubt this will be necessary). That means the case will likely be heard in early 2008, and decide by June 2008.
What will the extra prominence of the issue do to the primaries?
Assume the decision is 5-4 in favor of the individual rights theory; what will that do to the general Presidential election race? Assume it's 5-4 in favor of the collective rights theory, with Kennedy joining the four liberals on the collective rights side — what will that do to the race? What if it's 5-4 with Roberts or Alito joining the liberals? I take it that if it's not 5-4, or (possibly) if it's 5-4 with a less liberal/conservative split, the effect will be less; is that right? Or is this decision not that relevant, either on the theory that the issue won't energize people that much, or on the theory that plenty of people would be energized on gun control and the Second Amendment regardless of how the case comes down?
Naturally, if one of the Justices retires this year or next, the effect on the Presidential race would be still greater, I suspect. And if the case is delayed (say, by en banc activity, by a call for the views of the Solicitor General, or the like) so that it's heard in Fall 2008 and expected to be decided in Spring 2009, I take it the effect on the election would be bigger still.
Finally, note that if there is a pro-individual-rights decision from the Supreme Court, I expect it will be very narrow, will leave open considerable room for gun controls that are less comprehensive than D.C.'s total ban, and will not resolve the question whether the Second Amendment is incorporated in the Fourteenth Amendment to cover state regulations.
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- Levy Cheers D.C. Circuit Gun Ruling:...
- Timetable on Supreme Court Review of the Second Amendment Case, and the Presidential Election:
- D.C. Circuit Accepts Individual Rights View of the Second Amendment,
- DC Circuit Strikes Down DC Gun Law Under the 2nd Amendment: