Jerk
3/18/2008, 11:44 AM
Read this blog and tell me what you think
http://www.scotusblog.com/wp/uncategorized/guns-case-reply-brief-available/
excerpts:
Based just on the questioning, which can prove inaccurate, the Court is divided along ideological lines in Heller, with Justice Kennedy taking a strong view that the "operative clause" of the Second Amendment protects an individual right unconnected with militia service that guarantees the right to hunt and engage in self-defense. If the oral argument line up were to hold when the Court votes, the Court will recognize an individual right to bear arms that will not be seriously constrained by military service of any kind. There was a seemingly broad consensus that the right would not extend to machine guns, plastic guns that could evade metal detectors, and the like. There was relatively little disccusion of the trigger lock provision. Justice Breyer seemingly sought to pick up a fifth vote for a narrower reading of the Second Amendment by attempting to tie the question of the reasonableness of the regulation to whether the challenged statute left individuals with the ability to possess weapons that could be used in milita service. But at argument, at least, none of the Court's more conservative members expressed much interest in that approach, and Justice Kennedy's view that the operative clause is not directed at militia service would seem not to point in that direction.
Justice Kennedy was very active in today's argument. He asked the second question, advancing a theme to which he repeatedly returned: that the first clause of the Second Amendment merely was a "reaffirmation" of the Constitution's militia clauses, and suggested that the first clause did not limit the distinct right to keep and bear arms (which he referred to as the "operative clause"), which was unconnected -- he used the phrase "quite independent" -- from militia service. Kennedy expressed the view that the Second Amendment was a "supplement to" the militia clauses. Kennedy also returned several times to the 1689 English Bill of Rights as the model for the Second Amendment. Kennedy also indicated that he does not put a lot of stake in the Court's opinion in Miller, saying that it ends abruptly and does not fully elaborate the interests encompassed by the Amendment. Is Kennedy a 'swing vote'?
Justice Scalia says he sees no contradiction between reading the second clause as guaranteeing an individual right and the first clause as affirming the importance of the militia. "The two clauses go together beautifully," Scalia says. Not a real surprise.
Chief Justice Roberts asks why the Framers would refer to "the right of the people" if the Second Amendment was not intended to protect an individual right. Duh!
Here is more from Lyle's take on the argument, available in full here (http://www.scotusblog.com/wp/uncategorized/analysis-defining-a-right-of-self-defense/): In an argument that ran 23 minutes beyond the allotted time, Justice Anthony M. Kennedy emerged as a strong defender of the right of domestic self-defense. At one key point, he suggested that the one Supreme Court precedent that at least hints that gun rights are tied to military not private needs — the 1939 decision in U.S. v. Miller — “may be deficient” in that respect. With Chief Justice John G. Roberts, Jr., and Justices Samuel A. Alito, Jr., and Antonin Scalia leaving little doubt that they favor an individual rights interpretation of the Amendment (and with Justice Clarence Thomas, though silent on Tuesday, having intimated earlier that he may well be sympathetic to that view), Kennedy’s inclinations might make him — once more — the holder of the decisive vote To where do I send Justice Kennedy a boquette of flowers, some nice bath soup, and a wal-mart gift card?
It appears to me that Kennedy will decide this matter.
http://www.scotusblog.com/wp/uncategorized/guns-case-reply-brief-available/
excerpts:
Based just on the questioning, which can prove inaccurate, the Court is divided along ideological lines in Heller, with Justice Kennedy taking a strong view that the "operative clause" of the Second Amendment protects an individual right unconnected with militia service that guarantees the right to hunt and engage in self-defense. If the oral argument line up were to hold when the Court votes, the Court will recognize an individual right to bear arms that will not be seriously constrained by military service of any kind. There was a seemingly broad consensus that the right would not extend to machine guns, plastic guns that could evade metal detectors, and the like. There was relatively little disccusion of the trigger lock provision. Justice Breyer seemingly sought to pick up a fifth vote for a narrower reading of the Second Amendment by attempting to tie the question of the reasonableness of the regulation to whether the challenged statute left individuals with the ability to possess weapons that could be used in milita service. But at argument, at least, none of the Court's more conservative members expressed much interest in that approach, and Justice Kennedy's view that the operative clause is not directed at militia service would seem not to point in that direction.
Justice Kennedy was very active in today's argument. He asked the second question, advancing a theme to which he repeatedly returned: that the first clause of the Second Amendment merely was a "reaffirmation" of the Constitution's militia clauses, and suggested that the first clause did not limit the distinct right to keep and bear arms (which he referred to as the "operative clause"), which was unconnected -- he used the phrase "quite independent" -- from militia service. Kennedy expressed the view that the Second Amendment was a "supplement to" the militia clauses. Kennedy also returned several times to the 1689 English Bill of Rights as the model for the Second Amendment. Kennedy also indicated that he does not put a lot of stake in the Court's opinion in Miller, saying that it ends abruptly and does not fully elaborate the interests encompassed by the Amendment. Is Kennedy a 'swing vote'?
Justice Scalia says he sees no contradiction between reading the second clause as guaranteeing an individual right and the first clause as affirming the importance of the militia. "The two clauses go together beautifully," Scalia says. Not a real surprise.
Chief Justice Roberts asks why the Framers would refer to "the right of the people" if the Second Amendment was not intended to protect an individual right. Duh!
Here is more from Lyle's take on the argument, available in full here (http://www.scotusblog.com/wp/uncategorized/analysis-defining-a-right-of-self-defense/): In an argument that ran 23 minutes beyond the allotted time, Justice Anthony M. Kennedy emerged as a strong defender of the right of domestic self-defense. At one key point, he suggested that the one Supreme Court precedent that at least hints that gun rights are tied to military not private needs — the 1939 decision in U.S. v. Miller — “may be deficient” in that respect. With Chief Justice John G. Roberts, Jr., and Justices Samuel A. Alito, Jr., and Antonin Scalia leaving little doubt that they favor an individual rights interpretation of the Amendment (and with Justice Clarence Thomas, though silent on Tuesday, having intimated earlier that he may well be sympathetic to that view), Kennedy’s inclinations might make him — once more — the holder of the decisive vote To where do I send Justice Kennedy a boquette of flowers, some nice bath soup, and a wal-mart gift card?
It appears to me that Kennedy will decide this matter.