pageok
pageok
pageok
Justice Kennedy and the Second Amendment:
What is Justice Kennedy likely to do in the Second Amendment case the Court has granted?

  As a general rule, Justice Kennedy tends to construe the Bill of Rights so its protections apply broadly but often yield to competing interests. If the question is whether a constitutional protection applies in an abstract sense to a new set of facts, Justice Kennedy is often inclined to answer that question in the affirmative. On the other hand, Kennedy often finds that the right gives way to competing governmenet interests such as law enforcement needs, security, finality, etc. (These are obviously enormous oversimplifications, but I think it's a pretty good first cut.)

  What does that mean for the Second Amendment case? Well, I looked into my SCOTUS 330CLe Model Crystal Ball (patent pending, with optional GPS system), and it's predicting that Justice Kennedy will conclude that the Second Amendment does in fact create an individual right. It also tells me that Kennedy will endorse a relatively deferential standard of review that will end up allowing a great deal of gun regulation.

  UPDATE: I have edited the post a bit for style.
Scott Scheule (mail) (www):
But what if big guns are how I define my own concept of existence, of meaning, of the universe, and of the mystery of human life? Plus, I like to blow shit up.
11.20.2007 3:03pm
tarheel:
On this view (one I buy wholeheartedly), the closest question will be the trigger lock requirements. Orin, any predictions from the 330CLe on how Kennedy might rule on that question?
11.20.2007 3:04pm
Happyshooter:
It will be one heck of a tap dance to decide a real live written right means the .gov can restrict the heck out of it, while made up rights like abortion and gay sex mean there can be no real regulations.
11.20.2007 3:07pm
tarheel:
Happyshooter:

Ever hear of the First Amendment, wherein some speech is not really speech? They do it all the time. In fact, they are quite adept at it.

That said, abortion is highly regulated, as you no doubt are aware.
11.20.2007 3:20pm
Guestpopo:
Happyshooter, please let me introduce you to the First Amendment.
11.20.2007 3:21pm
uh clem (mail):
Agree that whatever ruling the court eventually brings, it'll probably be very narrowly targeted. I doubt that the DC law will make it through unscathed, but those expecting a Brown v Board of Education -esque clean sweep of existing laws will be disappointed.
11.20.2007 3:21pm
Anon21:
Happyshooter: You don't seem to know much about Justice Kennedy's abortion jurisprudence. "[N]o real regulations" is not an accurate description of it.
11.20.2007 3:26pm
DangerMouse:
It will be one heck of a tap dance to decide a real live written right means the .gov can restrict the heck out of it, while made up rights like abortion and gay sex mean there can be no real regulations.

It won't matter in this case. Gun owners are not idiots. They will never give up their guns, whatever the Court permits the authorities to do.

Just as the pro-choicers say that back-alley abortions will exist if Roe is overturned, if the Court permits restrictive gun laws, then all they'll do is make outlaws out of everyone trying to protect themselves.
11.20.2007 3:41pm
loki13 (mail):
Happyshooter,

I'm sorry, what was the 'right' in Lawrence?
What was the level of review?

Thank goodness Lawrence gave us strict scrutiny for gay sodomy! Oh, wait... nevermind.
11.20.2007 3:43pm
REPEAL 16-17 (mail):
Considering how Justice Kennedy usually votes, I predict that he will vote that (1)the 2nd Amendment protects an individual right, but (2)the RKBA can be regulated by a government as long as (3)such regulation, or set of regulations, isn't a ban or functional equivalent of a ban.

Justice Kennedy is like a Presidential candidate. He can't simply answer "yes" or "no."
11.20.2007 3:45pm
alias:
I looked into my SCOTUS 330CLe Model Crystal Ball (patent pending, with optional GPS system), and it's predicting that Justice Kennedy will conclude that the Second Amendment does in fact create an individual right. It also tells me that Kennedy will endorse a relatively deferential standard of review that will end up allowing a great deal of gun regulation.

So... basically something that matches up roughly with current public opinion and isn't too conservative for Linda Greenhouse.
11.20.2007 3:50pm
SIG357:
The Supreme Court is much more a political body than a judicial one. Any decision will be made with an eye on the political implications.

So I agree, the result will be "a relatively deferential standard of review that will end up allowing a great deal of gun regulation". That is, pretty much the status quo.
11.20.2007 4:20pm
Gullyborg (mail) (www):
My Eludium Q-36 Exlposive SCOTUS Modulator tells me this:

There will be a 4-1-4 plurality decision.

Roberts, Alito, Thomas and Scalia will write an intense plurality opinion that affirms the Second Amendment guarantees an individual right to keep and bear arms for personal and civil defense; that this right applies to DC and also to the States (although the incorporation of the states would be dicta); and that infringement of this right requires strict scrutiny.

Kennedy will concur with the judgment in that the DC gun ban in question is unconstitutional. However, he will disagree with the reasoning and will seriously water down the plurality, writing that the individual right is not very strong. He will say the DC ban fails a rational basis test, and that rational basis is the appropriate test. He will say it applies to DC, but is not incoroprated to the states under the 14th Amendment (again, dicta).

Here is the scary part:

The dissents could be concur in part, dissent in part, with Kennedy's opinion. They could agree with the watering down of the individual right. They could agree that rational basis is the test, but disagree that the DC ban fails rational basis. In this case, what could theoretically happen is that a MAJORITY of the court says "not so much" to the individual right and establishes rational basis as THE standard for ALL gun laws -- even while rejecting the DC gun ban.
11.20.2007 4:20pm
Bruce Hayden (mail) (www):
Considering how Justice Kennedy usually votes, I predict that he will vote that (1)the 2nd Amendment protects an individual right, but (2)the RKBA can be regulated by a government as long as (3)such regulation, or set of regulations, isn't a ban or functional equivalent of a ban.
The problem that I see with this is that the law in question was pretty close to a ban. If the case had been about being able to openly carry machine guns, etc., then he would have a chance here to split the baby. But the D.C. ban went into homes and prevented stuff that would be allowed in (most of the?) the rest of the country.

There is a saying that bad facts make bad law. In this case, given the D.C. law, I think Kennedy is going to be hard pressed to make any distinctions.
11.20.2007 4:24pm
SIG357:
But what if big guns are how I define my own concept of existence, of meaning, of the universe, and of the mystery of human life?




Don't be silly. When Kennedy said that we have the right to do these things, he meant that HE has the right to say what is and is not a legitimate concept of existence./sarc
11.20.2007 4:25pm
tarheel:
It would be some delicious irony if the Court recognizes an individual right and sets an "undue burden" standard. Not so far-fetched, actually.
11.20.2007 4:30pm
Def. Atty.:
I'm just curious,

How and to what extent does sharing an "inside view" of your Justice's jurisprudential views square with the confidentiality obligation of clerks?

I'm not slinging accusations around here, I'm genuinely curious. You haven't expressly revealed a confidence or predicted his vote, but discussing his views generally tends in the direction of at least the latter. (If it didn't, it wouldn't be interesting.) There's a matter of degrees here. Where do you draw the line? And do different Justices have different expectations in this regard?
11.20.2007 4:45pm
Zathras (mail):
Maybe I'm being a little more optimistic on the issue than most, but on the instant issue I would be surprised to see more than 2 votes to uphold the laws. However, I agree that the rationales probably will be very fractured--as it often is when confronting truly untouched areas of law--like in last year's Granholm case.
11.20.2007 4:47pm
Def. Atty.:
Well, OK, you actually did predict his vote. But in a defensible "crystal ball" way, I think.
11.20.2007 4:47pm
Richard Hill (mail):
Why does everyone assume that the four "liberals" on the court are going to vote against an individual right? Have any of them written or opined about this?

I can easily see a 9-0 or 8-1 decision on the individual right issue (JPS, maybe). As alluded to in many of the comments above, however, the fight will be over the standard.

I'm going to go out on a limb and predict that the Court will rule 9-0, in a noncontroversial and brief section A, that the Second Amendment protects an individual right to keep arms (hence the wording of the question), but will fracture on the standard. AS, SA, CT will want strict scrutiny, and find all three provisions unconstitutional. CJ R, AK, and maybe SB and DS will argue for some sort of intermediate scrutiny, under which the three provisions would also likely not stand. G and JPS may (but not necessarilly) argue for rational basis scrutiny and find that one or more of the challenged regulations pass the scrutiny.

Just some thoughts. There are a number of ways it can turn out. I, for one, am not convinced that Souter will find against an individual right or that Scalia is necessarilly a solid vote for strict scrutiny.
11.20.2007 4:47pm
Bob from Ohio (mail):
Difficult to tell the legal ramifications of this, but the political ones are much clearer.

A strong pro-individual rights decision is ideological pleasing to me as well as most conservatives and libertarians.

A decision reversing the DC Circuit, however, would be more politically pleasing to Republicans. It would strongly motivate pro-gun voters to come out and support the GOP presidential nominee. Not merely in "red" states but also in "blue" ones. It would have a huge impact in Pennslyvania and especially Ohio. Might make thedifference in Ohio even.

Depending on how the Dem freshman congess people react, it should help the GOP in the House and the Senate also.

Even Rudy would benefit. Whatever his past gun stands, compared to any Dem nominee, he is, in his current incarnation, pro-gun. The need to appoint the right justices angle would work well for him.

A weak, Kennedy driven decision would likely still benefit the GOP, the angle would still be appointing justices.
11.20.2007 4:54pm
CWuestefeld (mail) (www):
I've got a more general question about Constitutional law. Up above, Orin says:

it's predicting that Justice Kennedy will conclude that the Second Amendment does in fact create an individual right.
(emphasis mine)

Do we actually view the Constitution as creating rights? I would think it more rational to think of it as "recognizing" rights that exist on their own, because that's how I think the framers, influenced by Locke et al, would have considered it.
11.20.2007 5:03pm
Anderson (mail):
Roberts, Alito, Thomas and Scalia will write an intense plurality opinion that affirms the Second Amendment guarantees an individual right to keep and bear arms for personal and civil defense

Really? Is this based on any track record of these 4 justices, or just the assumption that they "vote conservative"?

I just don't see "strict scrutiny" being upheld, and I think that there will be some surprises. Scalia in particular may not decide that an originalist reading supports an unfettered right to keep whatever arms one likes.
11.20.2007 5:05pm
GV_:
If you want to see how Kennedy will vote, just go here.
11.20.2007 5:05pm
CrazyTrain (mail):
[Deleted by OK on civility grounds]
11.20.2007 5:24pm
Justin (mail):
The cynical side of me tends to agree about 4-1-4, but you are using the wrong term when you say "rational basis test." Much more likely is "overbroad." Kennedy will rule that an outright ban on guns is in violation of the 2nd Amendment, and give no guidence as to whether any lesser bans or restrictions violate the 2nd Amendment.

Bonus points if Kennedy explicitly states that they do not reach any 14th Amendment/incorporation questions, and that the decision is binding only on DC-as-federal-entity.
11.20.2007 5:25pm
Justin (mail):
BTW - am I not missing something, or is there any reason to believe that the court will discuss RKBA laws at all?
11.20.2007 5:26pm
Justin (mail):
I am missing something - I'm confusing the constitutional language acronym for concealed carry permits.
11.20.2007 5:27pm
ronnie dobbs (mail):
[Deleted as a response to a post deleted above]
11.20.2007 5:37pm
DangerMouse:
[Deleted by OK on civility grounds.]
11.20.2007 6:00pm
Vinnie:
[Deleted as a response to a deleted comment above]
11.20.2007 6:06pm
tarheel:

Because they want to outlaw guns

And this assertion is based on . . . what? All the gun jurisprudence the Court has heard? Their stated opinions in speeches and other writings? Or simply your ill-informed guess based on how they have ruled in other unrelated contexts? If one or more of the four find an individual right, can we expect a retraction? Thought not.
11.20.2007 6:07pm
Mike& (mail):
I'm going to go out on a limb and predict that the Court will rule 9-0, in a noncontroversial and brief section A, that the Second Amendment protects an individual right to keep arms

I've got a Benji on the contrary position, and I'll even be a good sport about it and give you a "spread" of two justices. So if it's 7-2 on the issue, you still win. E-mail me if you're interested.
11.20.2007 6:09pm
Mike& (mail):
[Deleted by OK on civility grounds. C'mon everyone, if you want to rip into each other about what hacks the other one is, surely there's another forum for that.]
11.20.2007 6:16pm
CJColucci:
Anyone who thinks gay sex is subject to "no real regulations" is hereby invited to do it in the middle of Main Street, or with a nine-year-old, or with an adult who doesn't want it. Then see what happens. Lots of undoubted rights are nevertheless subject to extensive regulation. Nobody thought you didn't have a right to own a six-gun in the Old West, but Wyatt Earp made you check them in anyway when you hit Tombstone -- and if not him, and not there, someone else somewhere else. My prediction is for a bunch of sound and fury, signifying nothing.
11.20.2007 6:38pm
Dilan Esper (mail) (www):
Roberts, Alito, Thomas and Scalia will write an intense plurality opinion that affirms the Second Amendment guarantees an individual right to keep and bear arms for personal and civil defense; that this right applies to DC and also to the States (although the incorporation of the states would be dicta); and that infringement of this right requires strict scrutiny.

My bet is there won't be a single vote on the Court for strict scrutiny, and certainly not 4.
11.20.2007 6:52pm
KeithK (mail):

"They. Do. Not. Care. What. The. Words. Say."

None of them do. "The right of the people to keep and bear arms hall not be infringed" is written at about the third grade level. The same authors used words like "congress shall make no law" and "but in a manner to be prescribed by law." in the surrounding amendments.

Wrong. The justices simply invoke Article III, Section 4 of the Constitution, which states "The judiciary shall have power to override any provision of this Constitution if there is a really, really good reason." It's there in the original - it's just written in invisible ink that you can only read after ebing initiated into the judiciary.
11.20.2007 7:03pm
KeithK (mail):
Apologies in advance if my 7:03pm comment is delete worthy. Just trying to be funny.
11.20.2007 7:05pm
Kazinski:
If the liberal justices are politically motivated they couldn't give a better present to the democrats than declare an individual right to bears arms with strict scrutiny. That would remove the issue from the active issues the right has to beat democratic candidates over the head with. The national party already runs from the issue whenever it comes up. I live in a solid blue state (Washington) and it is an issue that never comes up as a serious issue in elections. Washington has some of the most liberal (loose) laws in the country on guns and the use of force, and there isn't even a glimmer of a movement to tighten them.

Crazytrain,
The combined topic of gay sex and gun control were brought up this week by this paper by Glenn Reynolds. Not everybody that draws comparisons of the two topics is a repressed right wing hack, Reynolds isn't repressed. He makes a fair comparison of the regulation courts have allowed of an unenumerated right, and an enumerated right. Indeed why should people "free as adults to engage in the private conduct in the exercise of their liberty under the Due Process Clause", have less regulation than people exercising rights under the second amendment that "shall not be infringed".
11.20.2007 7:09pm
Tom the hobbit (mail):
If Kennedy does divine that the second amendment creates a right, the first thing we need to do is add another amendment, one stating those sitting judges ignorant of the constitution can be removed from the bench immediately by any 5 Americans off the street.

Assuming an individual right is (once again) a guaranteed right where does the line start on all the new challenges? It'll open the courts to a huge flood of challenges that I'd be willing to bet they'd like to avoid. A challenge on the '86 law prohibiting "new" automatic weapons to members of the unorganized militia, the $200 tax on owning a "militia appropriate weapon" It's a big can or worms they're playing with.
11.20.2007 11:15pm
dwlawson (www):
I don't understand why people tout the existence of restrictions on how you USE speech (harming someone) as evidence that we need restrictions on arms themselves? Aren't the laws restricting how we USE (murder, etc) our arms enough?
11.21.2007 1:01am
Josh N. (mail):
"Anyone who thinks gay sex is subject to "no real regulations" is hereby invited to do it in the middle of Main Street, or with a nine-year-old, or with an adult who doesn't want it."

There were already laws on the books against public lewdness, child abuse and rape. To lump all those as "gay sex regulations" is incorrect, imho.
11.21.2007 2:35am
Doc (mail):
"What does that mean for the Second Amendment case? Well, I looked into my SCOTUS 330CLe Model Crystal Ball (patent pending, with optional GPS system), and it's predicting that Justice Kennedy will conclude that the Second Amendment does in fact create an individual right."

Since when do we consider the Bill of rights as "creating" rights, rather than recognising pre-existing rights?
11.21.2007 3:52am
Jules.S (mail):
Well, I don't expect that they'll spend much time on the Miller decision since isn't very helpful in clarifying the meaning of the 2nd amendment. The money quote in Miller -
Certainly it is not within judicial notice that this weapon is any part of the ordinary military equipment or that its use could contribute to the common defense.

So we can own any weapon that is "part of the ordinary military equipment" or could "contribute to the common defense"?

That would certainly shake up a few of those assault gun bans. Where's my RPG, M-16 &SAM? Those are all part of the "ordinary military equipment" and would contribute to the common defense.

Although unlikely, I wonder if any of the Justices will bring up the issue of the modern reality of terrorism in the context of self-defense and the common defense?
11.21.2007 6:51am
CJColucci:
"Anyone who thinks gay sex is subject to "no real regulations" is hereby invited to do it in the middle of Main Street, or with a nine-year-old, or with an adult who doesn't want it."

There were already laws on the books against public lewdness, child abuse and rape. To lump all those as "gay sex regulations" is incorrect, imho.


It's certainly true that those regulations cover straight sex as well as gay sex, but that just reinforces my point. There are some people who don't believe in a right to gay sex. Some of them say if there is such a right it can't be meaningfully regulated. But nobody doubts the existence of a right to straight sex, and everyone concedes that it can be regulated. It just so happens that both kinds of sex can be regulated the same way.
11.21.2007 10:39am
pdanielson (mail) (www):
I'd like to see a truly originalist interpretation in the decision: everyone can have a gun, but it has to be a musket. I feel like that would cut down on gun violence considerably. Much harder to do drive-bys, anyway.

"There he is!"

*BANG*

"Damnit. Drive around the block a couple times. I gotta reload."
11.21.2007 12:06pm
Clayton E. Cramer (mail) (www):

I'd like to see a truly originalist interpretation in the decision: everyone can have a gun, but it has to be a musket. I feel like that would cut down on gun violence considerably. Much harder to do drive-bys, anyway.
If applied consistently, it would guarantee the right to hand-cranked printing presses, but would provide no protection for "assault media" that can print thousands of pages an hour, and certainly not for broadcasters that are capable of spreading lies to millions of people at once.

Similarly, there would be no protection from search and seizure in automobiles, airplanes, or other "modern" technologies.

Wiretapping of phone calls and the Internet? Why would the government need warrants for those? They didn't exist in 1791.

I guess that the "cruel and unusual punishments" clause would only apply to such as were known in 1791.

Get back to me when you are prepared to engage in a serious conversation.
11.21.2007 12:52pm
Clayton E. Cramer (mail) (www):

Assuming an individual right is (once again) a guaranteed right where does the line start on all the new challenges? It'll open the courts to a huge flood of challenges that I'd be willing to bet they'd like to avoid. A challenge on the '86 law prohibiting "new" automatic weapons to members of the unorganized militia, the $200 tax on owning a "militia appropriate weapon" It's a big can or worms they're playing with.
After striking down DC's law, the proper sequence is:

1. Does the Second Amendment guarantee a right to be armed for self-defense in national parks? I feel rather nervous in Yellowstone without a grizzly bear discouragement device. The courts might well find that hunting can be prohibited, and thus hunting weapons, but that a handgun is protected if carried for self-defense.

2. Does the Second Amendment guarantee a right to carry a firearm for self-defense in DC, the territories, and other federal jurisdictions? My guess is that courthouses, jails, and military installations would not be protected, but that most other places would, perhaps allowing licensing of such carry, as long as it conforms to equal protection requirements.

3. Does the Second Amendment apply to the States? Sure, and that's where the excitement will really start.
11.21.2007 12:58pm
luagha:
The founders had access to rifled barrels (the famed Pennsylvania rifles and Kentucky rifles) and 'pepperbox' style multi-shot revolvers.
11.21.2007 1:02pm
tarheel:

If applied consistently

That's the rub, of course. That dreaded "Living Constitution" is helpful sometimes, isn't it?
11.21.2007 1:38pm
Ian Argent (mail) (www):
There was even a contemporary breech-loading arm - the Ferguson Rifle.
11.21.2007 2:36pm
Vinnie (mail):
The founders were talking about current weapons that any army would use. Then it was the musket, Kentucky Rifle, etc. Now that would mean m 16s M2 machine guns and ak-47s.
I don't have a problem with that. I support making misuse of them a crime. Not mere possession. There is a danger that I may misuse my ability to speak but I get to keep my tongue.
11.21.2007 3:08pm
Clayton E. Cramer (mail) (www):

That's the rub, of course. That dreaded "Living Constitution" is helpful sometimes, isn't it?
That's not "living Constitution." The fundamental principles of a right to be armed, to publish your opinions, to be secure from arbitrary search and seizure, haven't changed.

Living, breathing, constantly mutating Constitution is what happens when entirely new principles suddenly get found hiding in places that no one ever suspected them before. That's why what was a FELONY everywhere (theoretically a capital felony in most of the states) in 1791 is now a constitutional right.
11.21.2007 7:57pm