I originally saw this from Michael Bane, but didn’t get around to it until today. Looks like the Supreme Court granted a motion to allow the solicitor general to argue on the side of Washington DC for an addition 15 minutes over the time alloted for DC’s attorneys.  Dave Hardy weighs in on this too:
Hard to read much into it, beyond the fact that it gives a tactical advantage to DC. 45 minutes of argument for reversing D.C. Circuit, only 30 of argument for affirmance. DC can probably figure the SG won’t use a lot of time arguing for the individual right. The key to the SG getting where they want to go is standard of review, intermediate rather than strict scrutiny, so that’s where the SG will spend his time. DC can cut back on argument over standard of review — which might have occupied half their time, and more than half if they appeared to be losing on individual right — and use the time elsewhere.
So Bush’s Solictor General is not only going to file the brief, but he’s going to argue in front of the Supreme Court against gun owners! Am I surprised? No. Bush’s strategy has been to throw gun owners token gestures, but to do nothing, or actively screw us on stuff that really matters.
Do I regret voting for the bastard? No. Because if we had been stuck with 8 years of Al Gore, or Kerry, the outcome of this case would be a foredrawn conclusion, and that conclusion would be we’d flat out lose. The Socilitor General is offering The Court the option of handing us a win on the individual rights count, but handing DC a win in terms of getting the case remanded, and forcing us to go through this process all over again.
I fully believe if the case is remanded, the district court will uphold DC’s ban as a reasonable exercise of governmental power to limit the second amendment. We will have to appeal, possibly winning at the circuit court again, and the fight will continue. But the Supreme Court probably won’t touch another gun case for a while, letting the lower courts hash through the new precident. End result is nothing changes much, but it’s an individual right. The real danger is a strongly anti-gun president stacks the court with justices who would be willing to overturn or severely restrict the scope of the second amendment post Heller, and when the next case goes before The Supreme Court, we end up with a constitutional right that’s individual and not collective, but still doesn’t mean anything.
Hardy has updated his article to point out that when the SG asks for time, he generally gets it. Given that, I don’t think much can be read into this.
I think it’s much more significant that the Court rewrote the question to clarify that the case pits the D.C. statutes directly against the Second Amendment. It simply makes no sense for them to take the question they themselves framed, and then remand. I believe this shows that, for better or worse, the Court means to grapple directly with the problem and settle the basic issue of whether or not the 2nd meaningfully protects anything at all, and can be used to overturn at least the most egregious laws.
For the record: I predict the court will agree with the individual rights model, and make the gesture of overturning D.C.’s laws, but will then set the standard of review such that anything short of that effective ban will pass muster. Long-term, they will tend to uphold state court decisions, no matter which way those decisions cut.
This prediction subject to revision after orals, when the Justice’s questions and attitudes will give us the first clues as to how they feel.
(Note: I am not an experienced SC watcher, or even a lawyer, and am basically talking out of my ass. )
I love long comments followed by that disclaimer :) But I think your assessment is reasonable and likely. I think we can almost be guaranteed to not be entirely happy with the decision.
But then again, I’m also not a SC watcher or lawyer.
Yeah – I’m waiting on the results of the oral argument as well – but would much more love to be a fly on the wall for the deliberations…
Not only did the SG get 15 minutes, but Heller’s side isn’t allowed to divide their time with Texas.
Having an individual right that is meaningless is worse then having the right in the first place. Face it, the odds are that if you’re 21 you’ll never live to see another gun case get to the SC. We’ll be stuck with whatever “laws” they can make that don’t completely disarm you. A single shot 22 would be acceptable. Heck, why stop at guns, it’s NOT just guns protected by the amdt, so maybe you can have a kitchen knife to satisfy the requirements.
Anything short of stating that it means what it says is a total loss because the bills are written. The enemy is inside the government.
The NRA’s been fooling themselves on this for some time. Their constant donation begging will cease to be, their magazine will be pointless if there’s only one gun approved for sale. They’re going to be a reminder of a time long gone, like the buggy whip. The sad thing will be that their own board’s willingness to compromise will have done them in.
That’s my 2¢, but you may have to adjust for the depreciation of our currency.
I’m going to remain a bit more optimistic. Early first amendment cases weren’t revolutionary, but developed into a body of law that I think, for the most part, has gotten it right. Early civil rights cases suffered major setbacks. Most people today look at Plessy v. Ferguson, which is considered by many to be a repugnant ruling that ran completely contrary to just civil rights, actually laid the foundation for Brown v. Board of Education. In Plessy, the court conceded that blacks had to treated equal to whites under the law, but that provided seperate but equal facilities were provided, this would not run afoul of the constitution. The court created a standard here that was effectively impossible to meet. Brown argued that separate was inherently unequal, and The Court agreed, and overturned Plessy.
The only outright defeat is for The Court to say it’s not an individual right. Any individual rights ruling, we can work with. Even if The Court follows the argument made by the Solicitor General.