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Timetable on Supreme Court Review of the Second Amendment Case, and the Presidential Election:

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.

FantasiaWHT:
I'd guess that it won't have much effect. Not enough people understand the difference between a collective and individual right to bear arms.
3.9.2007 10:44am
Justice Fuller:
I'm with FantasiWHT. This isn't abortion; I don't think most people care, as to them the DC gun ban is pretty far removed from their daily lives.
3.9.2007 10:46am
Houston Lawyer:
A collective right ruling from the supreme court would pave the way for full scale gun confiscation. This issue alone could cost the Democrats control of the House of Representatives. While most people don't care, a lot of people do, and they vote based on this issue.
3.9.2007 10:51am
s806:
I think the sides are well entrenched on 2nd amendment issues and that people that are not already energized don't really care.

As Fantasia points out, public opinion falls into two categories: people with guns are good and protect people or with guns are bad harm people.
3.9.2007 10:55am
doc (mail):
Isn't it also possible that the Roberts Court, looking to decide the case on the narrowest ground possible, will hold (as Judge Henderson would in her dissent) that D.C. isn't a state for purposes of the Second Amendment? So, they'd uphold the D.C. ban without resolving the individual/collective rights issue. That would be a dud of an opinion -- though a plausible outcome -- and one that would have little effect on the political landscape.
3.9.2007 11:08am
Bpbatista (mail):
This will only be an issue if the DC Circuit is reversed. The idea that individuals have a constitutional right to own fire arms is not controversial outside of Hollywood and Manhattan. If the decision is reversed, particularly by a liberal majority on the Supreme Court, then Katy-Bar-The-Door. All hell will break loose -- and Dems will pay the price.
3.9.2007 11:17am
Antares79:
I don't see why, contrary to EV and most commenters thus far, that this case is any more ripe for a SCOTUS decision on the big 2d amendment collective right vs. individual right issue than previous circuit and state cases addressing the issue.

Henderson's dissent alone demonstrates that this big 2d amend issue may be easily be dodged by the issue of the District's lack of statehood status, a status which is likely to be supported by conservative jurists who might otherwise support an individual rights view (and acquiesced to by liberal jurists in lieu of reaching the individual/collective rights issue and losing). Indeed, this case appears worse than most to address the collective/individual right issue.
3.9.2007 11:19am
blackdoggerel (mail):
A SCOTUS opinion will almost certainly be a blockbuster, even politically, for the following reasons:

1. I haven't read the lower circuit opinions to determine the nature of the split. But if it truly boils down to the individual vs. the collective theory of the Second Amendment, and the Court reaches that issue (i.e., doesn't get bogged down in the "is DC a state" issue), that's huge. It's basically deciding the path forward of an entire constitutional amendment in one decision -- when has that last happened? Of course, that's just the legal impact. Politically, a reversal, with the implication that the Second Amendment is only intended to apply to government-sponsored groups (e.g., militias), would have an enormous impact, I think, because whatever one's views about gun control, such a decision would be interpreted (and spun) as restricting individual rights that an enormous part of the country has always assumed to exist.

2. Even if the Court reverses on "narrow" grounds, however, ruling that DC isn't a state, this will still have a major impact, because its decision will almost certainly be looked to in the debate over whether DC can constitutionally be given voting representation in Congress -- a debate that hinges on whether DC is a state or not.
3.9.2007 11:28am
A.S.:
It will be interesting to see if Giuliani has a position on the case. It seems to me that he will be in the most difficult position of all the candidates, given his past support for gun control in NYC.
3.9.2007 11:28am
Richard Riley (mail):
I don't see how any Supreme Court opinion in this or any Second Amendment case will be a political blockbuster, because as Instapundit and other pro-gun commentators point out regularly, Democrats are no longer pro-gun control. They figured out (thankfully) that the issue is a net political loser - blue state liberals don't care enough about it for it to change their vote (or more realistically make them less likely to vote at all since they wouldn't vote for Republicans anyway), and it can make a big difference everywhere else. So there is simply not enough of a constituency for gun control any more for either party to push it.
3.9.2007 11:36am
Per Son:
Lets face it Ohio has a liberal governer that got a very very high NRA rating. The issue is falling off the blue radar.
3.9.2007 11:45am
Brett Bellmore:

That means the case will likely be heard in early 2008


No, I'd say that means the certiori petition will likely be rejected without comment in mid-2007. What's going to cause the Court to depart from a nearly 7 decade long policy of refusing to hear 2nd amendment cases?
3.9.2007 11:46am
Brett Bellmore:
Whoops, commented too fast. Yes, a decision upholding the 2nd amendment might indeed get the Court to take the case.
3.9.2007 11:50am
Duffy Pratt (mail):
Maybe the court would just do the right thing and deny cert.
3.9.2007 11:51am
Clayton E. Cramer (mail) (www):

Isn't it also possible that the Roberts Court, looking to decide the case on the narrowest ground possible, will hold (as Judge Henderson would in her dissent) that D.C. isn't a state for purposes of the Second Amendment?
The Second Amendment isn't limited to the states. The bulk of 19th century judicial decisions argue that the Second Amendment is a limitation only on the federal government--which these days, largely means DC and a few remote ocean territories.
3.9.2007 11:53am
gattsuru (mail) (www):
There are liberals who've dropped the gun control side, but there are more supporting HR1022. If this goes any further, it'll be an interesting division inside the Democratic party.
3.9.2007 12:01pm
logicnazi (mail) (www):
Unlike most other people here I'm pretty liberal and sympathetic to evidence based gun control. However, I constantly find myself disgusted and disappointed when I see gun control advocates elevating emotion over reason or evidence. The assault weapons ban (based on emotion not evidence) is one example and this idiotic collective right is another.

I mean sure the 2nd ammendment is best understood as protecting the people's right to form militia's and protect themselves from a tyrannical government not own guns for hunting and self-defense. In fact I think you could probably get away with banning hand guns in a constitutional fashion as they are less useful in guerrilla war. However, if you pause to think on it just for awhile it becomes clear that the people's right to defend themselves from the government must entail an individual right to own guns.

Interpreting the 2nd ammendment 'collectively' means that the federal government could order all the guns kept locked up in armories making them easy to seize should they ever need to suppress a rebellion. It's pretty obvious that the framers intended to keep weapons readily available in the hands on individuals so that armed militia's could easily be assembled.

Any remaining shred of plausibility that the collective right theory had disappeared when Bush signed into law the most recent changes to the national gaurd. The national gaurd can now be directly ordered to march to put down disorder (or revolutions) by the president even without the approval of the state. The national gaurd is effectively part of the federal army and what any militia would need to fight if the government became tyrannical not the militia envisioned in the second ammendment. If these collective right believers took their position seriously they should by demanding the courts strike down federal involvement in the national gaurd right and left.

Admittedly I think something like the collective right theory could go pretty far in allowing gun control. I think one could get away with only letting people over 40 own guns or any other restriction compatible with local communities having easy access to weapons. But the idea that the national gaurd is what satisfies the 2nd ammendment is just dumb.
3.9.2007 12:02pm
Spartacus (www):
Clayton is (of course) correct; D.C.'s nonstatehood is exactly why this could be a federal issue under current non-incorporation 2d amend jurisprudence.

As for Dems no longer being pro-gun control, when was the last time you heard Mrs. Bill Clinton weigh in on that issue? Does anyone know where Obama stands on this? The only reason it might be less of an issue is because both major Repub candidates are pretty mushy on gun rights, too; but if they promise to appoint judges like the one who vote in favor of an individual 2d amend right, that will get my vote. A SCOTUS holding of an individual 2d amend right has been the holy grail of pro gun rights folks for some time now; the next big one would be incorporation.
3.9.2007 12:07pm
JBL:

As to what will happen, I'm really not qualified to hazard a guess.

What's interesting to me about the question is the fact that there are two ways the decision (like any decision) could influence the political process.

If the SCOTUS takes the opportunity to make a legally significant decision that would overturn a number of existing laws or have a large precedential impact, that's one thing. It could force the candidates to build a response in to their platform.

It's also possible that even if the decision is legally minimal or uninteresting, it could become a rallying point for the activists on either side. Or maybe not. This impact will depend on what other issues get attention and probably allow the candidates more flexibility.
3.9.2007 12:19pm
rbj:
A pro individual right decision by the S.Ct. could help Guliani, because then there is a constitutional block to his anti-gun position, thus that issue will matter less. People who might hesitate voting for him due to his gun control policies won't have to worry as much -- he won't be able to do as much damage.

Plus, politically, there would probably be less effort to get some sort of gun control act passed. As others have pointed out, many of the newer Dems in Congress are more sympathetic to gun rights, and that coupled with a pro gun rights decision would take a lot of wind out of the sails of those wishing to clamp down on guns.
3.9.2007 12:20pm
Erasmus (mail):
I think the odds that a Supreme Court opinion on the scope of the Second Amendment would have an impact on the presidential election is somewhere between no chance in hell to zero.
3.9.2007 12:23pm
Kevin Murphy:
To say that this isn't important to Republican and Libertarian activists (especially the non-religious wings) is like saying that abortion rights aren't important to Democratic party activists. I suggest that you don't understand your opponents. We aren't all "crazy Christians."

1) This is going to cause Giuliani an immediate problem as the "does the 2nd Amendment protect an individual right?" question will be asked often of the candidates. Allows McCain to get back some ground lost to McCain-Feingold.

2) However it plays out on the Court, the same question will be prominent in future confirmation hearings.

3) If Alito or Roberts crosses over to the gun control side, it will destroy the last shred of support for Bush among the non-Christian grassroots. You thought we were nasty over Miers?

4) "Is DC a State" only matters if you decide that the state-militia, collective rights argument holds.
3.9.2007 12:30pm
Erick:
Timeline question.

Assuming the Supreme Court upheld this, how long would it take the courts to hammer out some meaningful boundaries on the right? I assume the next step for places like DC or Chicago will be to technically allow you to own a handgun, but make a ton of restrictions (allow only particular guns - probably expensive and hard to get ones, license fees, super extensive background checks, understaff the office that processes the applications, etc.). Then those will get challenged, hopefully struck down, but we'll probably have to keep pushing back incrementally. I don't expect DC to suddenly allow open, registration-free ownership.

Hammering out boundaries on the other rights took a very long time, but then we didn't have so much of the government actively trying to completely block the exercise of those rights, so we might want to move a little quicker.
3.9.2007 12:34pm
Spartacus (www):
Just caught the cite to EV's NYU L Rev. article on p. 35 of the opinion.
3.9.2007 12:43pm
CJColucci:
Practically, a decision one way or the other will make almost no difference. Very few places are interested in outright gun bans, and the exercise of any individual right is subject to time, place, and manner regulations. Even here in NYC, a law-abiding citizen willing to jump through some bureaucratic hoops and pay for permits can build up quite an arsenal perfectly legally. Most of the United States makes it far easier than NYC does. None of that will change.
3.9.2007 12:50pm
Respondent (mail):
Roberts and Alito appear to be as different as can be on their second amendment views. Roberts told Senator Feingold that he accepts an individual rights view of the amendment; Alito told the Senate that he would unhesitatingly have upheld the federal ban on machine guns had they had a commerce nexus. The matter of fact way he made that statement convinces me that Alito is unlikely to strike down gun control laws on 2nd amendment grounds.
3.9.2007 12:57pm
Spartacus (www):
Even here in NYC, a law-abiding citizen willing to jump through some bureaucratic hoops and pay for permits can build up quite an arsenal perfectly legally.

Yet while keeping arms in NYC may be possibl for those "willing to jump through some bureaucratic hoops and pay for permits," it is nearly impossible to obtain a permit to bear arms in NYC unles you are politiclaly well-connected. One of my reasons for leaving.
3.9.2007 1:04pm
wooga:
Everyone who says this decision will have no effect on the presidential race obviously isn't an NRA member, and probably has never attempted to get a concealed carry permit (yes, that's a state issue, but it acutely brings to light the disdain many politicians have for the maturity and intelligence of the "common man").

The #1 obstacle to Guiliani on the right is his gun control position (abortion is effectively negated by a pledge to federalism). There are many republicans who refuse to vote for Guiliani simply because of the gun issue.

If SCOTUS puts this issue to bed, it will alleviate many (but not all) of the fears from the right of a Guiliani presidency.

As far as the other candidates go - zero effect.
3.9.2007 1:13pm
pete (mail) (www):

As for Dems no longer being pro-gun control, when was the last time you heard Mrs. Bill Clinton weigh in on that issue? Does anyone know where Obama stands on this?



Obama is on record as wanting to ban all semi-automatic firearms sales and transfers and is also in favor of the assault weapon ban and other restrictions. Clinton is in favor of licensing and registering all handgun sales and is in favor of the assault weapon ban and other restrictions such as requiring that ammunition and weapons be stored seperately.
3.9.2007 1:20pm
alkali (mail) (www):
If you think the individual right theory is a slam dunk winner among voters, consider this:

"I agree with my opponent that people should be able to own guns for self-defense and for hunting and sports. But we disagree about some other things.

"My opponent says that kids have a constitutional right to bring concealed weapons to school; I disagree.

"My opponent says that convicted criminals have a constitutional right to buy cop-killer bullets; I disagree.

"My opponent says that everyone has the constitutional right to own a shoulder-mounted rocket launcher that could shoot down a 747; I disagree."
Now you might say that's demagoguing the issue, and you'd certainly be right about that. But what's the sound-bite response that doesn't amount to a rational-basis evisceration of the individual right theory?
3.9.2007 1:36pm
gattsuru (mail) (www):
The Columbine killers had no constitutional right to bring concealed weapons to a school; that did little to protect their classmates.

"Cop Killer" bullets are no more deadly to a police officer in body armor than a kitchen knife, and the rights of convicted felons can classically be restricted.

A rocket launcher, or any other similar device, would not be construed as arms by any of our founding fathers, only ordinance, and as a result would not be protected.
3.9.2007 2:06pm
Carolina:

Now you might say that's demagoguing the issue, and you'd certainly be right about that. But what's the sound-bite response that doesn't amount to a rational-basis evisceration of the individual right theory?


How about, "I believe strongly that adults of sound mind have the right to own any pistol and rifle that is not fully-automatic (i.e., a machine gun) either for self-defense or for hunting. I challenge my opponent to either agree or disagree with this statement."

"My opponent's silly statements about rocket launchers and convicted felons show he/she is afraid to address the real issue."
3.9.2007 2:06pm
Carolina:
As to the High Court, Scalia, Alito, and Thomas are all on record as supporting the individual rights view. Although to the best of my knowledge Alito is not on record, my gut feeling based on his jurisprudence in general is that he would join them. Barring a surprise from Stevens, Souter, Ginsburg or Breyer, I'd guess the swing vote would be Kennedy's. I don't know enough to make a prediction there.

Note, though, that a surprise individual rights vote from Breyer, Stevens, Souter or Ginsburg is not a completely ridiculous proposition. In the last big dustup on the 2nd Am in the 9th Circuit, Judge Pregerson joined the dissenters (i.e., the individual rights side) and penned a very brief dissent.

Link to Dissents in Silveira v. Lockyer

For those unfamiliar with the 9th, Judge Pregerson is normally a very reliable "liberal" vote in the way that word is generally used.
3.9.2007 2:19pm
Bobbie (mail):
How many members of the NRA vote Democrat?
3.9.2007 2:22pm
Dilan Esper (mail) (www):
"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."

I think this hits the nail on the head. Indeed, I think the only way of rationalizing the two clauses of the Second Amendment is that it permits regulation but not prohibition. (I realize that still leaves some ambiguity as to what is regulation and what is prohibition, but that's going to be the general tenor of the interpretation that will be settled upon.) A lot of people who would like to use the Second Amendment to strike down various sorts of regulations short of gun bans are likely to be disappointed as to where this ends up.
3.9.2007 2:29pm
alkali (mail) (www):
gattsuru:

My point isn't that there aren't legitimate responses to each of the issues raised in my hypothetical speech: indeed, that's part of what makes it demagoguery. My point is that it appears that it would be quite difficult to address those issues without drawing distinctions (1) that persons unfamiliar with these kind of debates would find puzzling, or (2) that would be unacceptable to many people on the individual rights "side."

As an example of (1), I would point to your response re: the founding fathers. I understand it, because I've heard the argument before, but I don't think that the argument is readily comprehensible to the general public.

As an example of (2), I would point to Carolina's response, although maybe I'm mistaken about that.
3.9.2007 2:33pm
wooga:
How many members of the NRA vote Democrat?
I would guess very few. But a whole lot of democrats will vote for Guiliani.
3.9.2007 2:34pm
CJColucci:
How about, "I believe strongly that adults of sound mind have the right to own any pistol and rifle that is not fully-automatic (i.e., a machine gun) either for self-defense or for hunting. I challenge my opponent to either agree or disagree with this statement."

Vast numbers of people, including most political liberals I know, actually agree with that (at least if we assume that "sound mind" includes "law abiding"). The real disputes are about such things as registration, training requirements (there's a very large "treat guns like cars" contingent), storage safety, and open or concealed carrying. There's also a small but vocal "I want my machine gun and I want it now" crowd that finds Carolina's views too "wet." If we let them and the "guns ---yuck!" crowd fight each other, maybe the rest of us could work something out.
3.9.2007 2:38pm
Barry Sanders 20 (mail):
This absolutely will be a big deal in both the primaries and the general election, because the gun-rights groups will make it so. For huge numbers of voters, perhaps into the millions, there is no bigger mobilizing issue than individual ownership of firearms. Suggest that a court can take away those rights, and you have an issue. Suggest that another court can use the precedent in other jurisdictions, and you have an issue. There is no way the NRA will let this one pass, nor should it. Suggesting that this is not an issue of national scope is the same as asserting that gay marriage would only be an issue in Massachusetts. Politics doesn't work that way.
3.9.2007 2:38pm
Carolina:

How about, "I believe strongly that adults of sound mind have the right to own any pistol and rifle that is not fully-automatic (i.e., a machine gun) either for self-defense or for hunting. I challenge my opponent to either agree or disagree with this statement."

Vast numbers of people, including most political liberals I know, actually agree with that (at least if we assume that "sound mind" includes "law abiding"). The real disputes are about such things as registration . . . .


CJ, I am gratified to hear that "most political liberals" would agree with my hypothetical position statement. I certainly hope that's true. But I would point you to H.R. 1022, currently pending in the House, which would ban a huge number of rifles on the basis they are "assault weapons."

The listed weapons are NOT automatic (i.e., machine guns), but rather are banned on the basis of having things like pistol grips or folding stocks. Banning rifles on the basis of whether they have features like pistol grips seems risible to me, but apparently not to some in Congress.
3.9.2007 2:51pm
sjalterego (mail):
I hope that the Supreme Court, if it reviews and affirms this case on the merits, would do so by a greater majority than by 5-4. Maybe I am too blinded by my own interest but I find it very difficult to believe that any legal scholar can with any intellectual honesty and credibility read the 2A as anything other than an individual rights amendment given the "the people" language of 1A, 2A, 4A etc.

I would hope the more liberal members of the Court could agree that it is an individual right and then merely state in dicta or otherwise that this does not prohibit ALL gun regulation. Just as various other amendments are subject to various restrictions/limitations so to are "the peoples" right to keep and bear arms.

Does anybody have an educated guess as to how the justices might vote on this?
3.9.2007 3:24pm
Carolina:

Does anybody have an educated guess as to how the justices might vote on this?



I posted one a few posts up.

I curious though, if there is anyone who thinks there is anything in the background/writings/opinions of Breyer, Ginsburg, Souter, or Stevens that suggests they might vote to affirm. I don't know of any offhand, but I am far from expert with regard to these justices.
3.9.2007 3:32pm
Spartacus (www):
A lot of people who would like to use the Second Amendment to strike down various sorts of regulations short of gun bans are likely to be disappointed as to where this ends up

Hardly. I happen to be a member of the "I want my machine gun and I want it now" crowd, and I don't expect a SCOTUS decision affirming that right anytime soon. But the individual rights interpretation is the foundation, the starting point. after that, debates about the contours of the right can truly begin, once the "collective right" theory has finally been put to bed.

Ginsburg's comment in Muscarello, 524 U.S. at 143, cited in Parker at 27, seems to indicate that she might me amendable to such a theory. Souter along with Rehnquist and Scalia also Joined her dissent, so they might also be open to the idea. Or perhaps that's just wishful thinking.
3.9.2007 3:35pm
Respondent (mail):
Carolina,
Why do you think Alito would support the individual rights view? As I noted in my previous comment on this thread, Alito told the Senate that he wouldn't have hesitated to uphold a federal ban on machine gun ownership if a commerce clause nexus had been inserted.
3.9.2007 3:49pm
Respondent (mail):
Gattsuru,
Why wouldn't the founding fathers have construed rocket launchers to be "arms"? The point of the second amendment is to allow citizens to bear weapons that can be used to defend against tyranny. While nuclear weapons wouldn't really be useful to this cause, and thus should be outside the scope of the amendment, rocket launchers would be quite useful in shooting down planes coming to attack a civil defense target.
3.9.2007 3:54pm
alkali (mail) (www):
Spartacus writes:

... debates about the contours of the right can truly begin, once the "collective right" theory has finally been put to bed.

This strikes me as not a path that the probable swing votes on this Supreme Court would be willing to take. Compare Lawrence, where the bar on prosecution for sodomy between consenting adults was qualified by multiple "by the way, this doesn't mean we think X is legal." I can't imagine that the SCOTUS will find an individual right while leaving open the question of whether RPGs may be banned.
3.9.2007 3:54pm
Justin (mail):
"How many members of the NRA vote Democrat?

I would guess very few. But a whole lot of democrats will vote for Guiliani."

Would NRA members vote for Giuliani over Democratic candidates who have little or no position on gun control - say Obama, Easley, or Richardson?
3.9.2007 4:21pm
Carolina:

Carolina,
Why do you think Alito would support the individual rights view? As I noted in my previous comment on this thread, Alito told the Senate that he wouldn't have hesitated to uphold a federal ban on machine gun ownership if a commerce clause nexus had been inserted.


Judge Alito's actual quote was: "So an easy way in which Congress could regulate the possession of a machine gun would be to insert a jurisdictional element. And as I just pointed out, in my experience as the U.S. attorney in New Jersey, that was never a practical problem."

Note that he referred to regulation, not banning. No one seriously argues that the 2nd Am. prohibits Congress from any regulation of firearms whatsoever.

Further, assuming an individual rights view, reasonable people can differ as to whether that right extends to "machine guns."

I don't think a very modest statement that Congress could "regulate" machine guns given the appropriate jurisdictional nexus suggests anything regarding his general view on the 2nd Am.

I stand by my view that considering his overall judicial philosophy, Alito would be a very likely vote to affirm.
3.9.2007 4:22pm
Spartacus (www):
I can't imagine that the SCOTUS will find an individual right while leaving open the question of whether RPGs may be banned.

That (the latter) would be dicta.
3.9.2007 5:13pm
blcjr (mail):
1) This is going to cause Giuliani an immediate problem as the "does the 2nd Amendment protect an individual right?" question will be asked often of the candidates. Allows McCain to get back some ground lost to McCain-Feingold.

If I recall correctly what Giuliani said about this issue when asked by Sean Hannity, I can easily imagine him saying that he agrees with it. What I remember him saying was something along the lines that he recognizes the individual's right to bear arms under the 2nd Amendment, but believes that that doesn't prevent "reasonable regulation" and that what was reasonable for NYC might not be needed elsewhere. Sure, it comes off a bit weasily to the jaundiced eye, but he could, to please the pro 2nd Amendment forces of the Republican party, say that he believes that the DC decision was the right decision, and reconcile that with his support for gun control in NYC, and in his mind no doubt see no inconsistency.
3.9.2007 5:44pm
luagha:
And of course, what about knives, machetes, and similar blades that pass the Miller test as 'arms' still currently issued to our military?

(Can't have those Brits and their samurai sword wielding vigilantes get a leg up on us now...)
3.9.2007 6:03pm
PubliusFL:
Carolina: "I don't think a very modest statement that Congress could 'regulate' machine guns given the appropriate jurisdictional nexus suggests anything regarding his general view on the 2nd Am."

Agree 100%. Keep in mind that Alito was trying to get confirmed. Saying "Heck yeah, everyone should have a machine gun! Yee-haw!" would not have been a good answer.

Let's consider how machine guns actually are regulated in the U.S. today. Under federal law, machine guns can be bought and sold, but you need to pay a $200 transfer tax to the ATF and get a local law enforcement officer to sign off on your transfer form. Also, manufacture of NEW machine guns has been prohibited (for most purposes) since 1986. So you can buy a machine gun, but it's extremely expensive because you're limited to the pool of guns that were available for transfer prior to 1986.

I think Alito's statement would be very easy to square with a ruling that *regulating* machine gun possession is reasonable under the 2nd Amendment, but the prohibition on all manufacture of new machine guns for private possession is not.
3.9.2007 7:31pm
juris_imprudent (mail):
alkali-

You could be quite right that way too many people don't know or don't care about the RKBA. And if that is so, then I imagine that one day, they will get precisely the gov't they so richly deserve.
3.9.2007 9:06pm
Harvey Mosley (mail):
The best thing that could happen to the Democrat candidate in the presidential election would be for the Supremes to come down clearly on the individual rights side with a huge majority (8-1 or 7-2.)

Gun owners come from all over the political spectrum, and it takes a lot to unite us. If we think everything is hunky-dory at the SCOTUS level, we tend to look at other issues when voting.


However, let the issue go the other way, and the gloves come off. Gun owners have to believe they've been backed into a corner to be effective at the polls, but if you put us in that corner, watch out.

Just my opinion.
3.10.2007 4:44am
Clayton E. Cramer (mail) (www):

How many members of the NRA vote Democrat?
I've read that about 55% of NRA members are registered Democrats. When Democrats run pro-gun candidates, it largely defuses the question. But Democrats at the national level are too afraid of the fiercely anti-gun media to run a pro-gun Democrat for President.
3.10.2007 1:22pm
NickM (mail) (www):
Justin - Obama does have a record (state legislator and campaign speeches) on gun issues - and one that will not endear him to NRA members. Easley doesn't appear to be running. As for Richardson, he would get a lot of NRA votes against Giuliani (not that I see him getting the nomination).

Nick
3.11.2007 4:56pm
Robert Jackson (mail):
Ginsburg is on-record as supporting an individual rights view of the Second Amendment.

Alito said that as an appellate judge he would have upheld the gun control regulation pursuant to commerce clause jurisprudence -- it was a question about stare decisis. Here, the Second Amendment precedents are open and ambiguous and the question for the Supreme Court is the nature of the Second Amendment itself. Even if the precedents were clear, the constitution beats constitutional law.

Breyer supports gun control. But Kennedy and Breyer may pick up on the sentencing enchancement issue. Who knows what Stevens will say. The point is Henderson's dissent is incoherent mess. There is no decent dissent for liberals at the Supreme Court level to latch onto.
3.11.2007 10:00pm