Tuesday - November 13, 2007

When no news is news, but neither good news nor bad news

The Supreme Court of The United States has not yet reached a decision on whether it will consider the DC v Heller or the Parker v DC appeals. They might tell us by the week after Thanksgiving.

SCOTUSBLOG has been keeping an eye on things:

The Supreme Court on Tuesday announced no action on a new case testing the meaning of the Second Amendment — an issue the Court has not considered in 68 years. The Orders List contained no mention of either the District of Columbia’s appeal (07-290) or a cross-petition by challengers to the city’s flat ban on private possession of handguns (07-335). The next date for possible action on these cases is likely to be Nov. 26, following a pre-Thanksgiving Conference of the Justices set for Tuesday, Nov. 20.

The Court, of course, does not explain inaction. But among the possible reasons for delaying the case are these: one or more Justices simply asked for more time to consider the two cases; the Court may be rewriting the question or questions it will be willing to review — especially in view of the disagreement between the two sides on what should be at issue; the Court may have voted initially to deny review of one or both cases and one or more Justices are writing a dissent from the denial. The appeal in 07-290 (District of Columbia v. Heller) raises the key issue about the Second Amendment’s meaning — that is, whether it guarantees an individual right to have a handgun for private use, at least in one’s home — and the appeal in 07-335 (Parker v. District of Columbia) poses a question about who may bring lawsuits to challenge laws before they are actively enforced. Together, the cases thus present a somewhat complex mix for the Court, and it perhaps was not much of a surprise that no order issued on Tuesday. At no point is there likely to be an answer as to what happened to bring about the delay. Both cases are expected to be re-listed for the Nov. 20 Conference.

The Heller case claims that Washington DC’s gun laws are unconstitutional. Currently DC does not allow you to own a pistol, and the severely register rifle or shotguns that you are allowed to own cannot be loaded or functional within your own home. Lower court found for Heller, and DC appealed. Remember that DC is not a state, it is a city directly under the control of Congress. DC’s appeal makes the claim that they have state-like powers, and promotes other arguments based on the disastrous Miller decision of 1939. Heller focuses mainly on two points: that “keep and bear arms” includes pistols, and that a law that requires any owned firearm to be dismantled is unconstitutional.

The Parker case is somewhat different. Parker goes for the handgun-is-part-of-"keep and bear arms” just like Heller, but the decision handed down proclaimed that 2A is an Individual Right. It also hits on the concept of standing. So Parker actually eclipses Hellar in importance, though both cases are very similar. Read more about them here.

If you want a fuller understanding, do a bit of research into the recent Seegars v Aschroft case to understand DC’s concept of “standing” a bit better, and look at Medimmune v Genentech to read in wonder that it took SCOTUS more than 200 years to figure out that you don’t actually have to violate a law before challenging it’s constitutionality! (which is standing of a different kind. I think?)

These two cases carry a lot more baggage with them then just questions about owning guns in Washington DC. I only recently heard about the Standing aspects, and I may not have a clear understanding of that at all. But I gather, to my vast surprise, that no other case that questions the constitutional validity of a law has ever been brought before the SCOTUS before someone went and actually violated that law? Holy smokes. I would have thought that it would be THE DAMN JOB OF THE SUPREME COURT to pro-actively watch over all laws being made and occasionally rap down the gavel and say “Nope, no way, uh uh, can’t do that!”. Silly ‘ol naive me.

Heck, not being a lawyer, I could have the backs fact-asswards on all these cases! Because in my simple mind
1) the right of the people to keep and bear ANY KIND OF arms shall not be infringed EVER, ANYWHERE and
2) an honorable government would NEVER pass an unconstitutional law. and
3) OF COURSE it is proper to question the constitutionality of a law without having first violated it

Like I said, silly me.

Update

As is often the case, The Smallest Minority puts it so much better than I:

What is at stake here, essentially, is the tattered remnants of the Constitution. Does it still mean anything at all, or is it really just a piece of paper our officials, elected and unelected, can wipe their collective posteriors with? Will the Supreme Court do its duty to defend the Constitution, or abrogate that duty in such a way as to remove any doubt?

The First Amendment declaration “Congress shall make no law… abridging the freedom of speech....” was violated by the McCain-Feingold Incumbent Protection Campaign Finance Reform Act - and while some of the language was struck down by the Supreme Court, not all of it was. Fourth Amendment protections against unreasonable search and seizure, and its restrictions on the issuance of and wording of warrants have been shredded by the unending “War on (some) Drugs™” along with the Fifth Amendment’s prohibition against deprivation of property without due process. The Fifth has been further pulped by decisions rendering the “public use” clause moot [ie Kelo v New London]. And the Tenth Amendment?

Let’s not go there.

Oh, and Silveira v. Lockyer? The Supreme Court denied cert. in 2003 and let that weed grow and flower in our Constitutional garden.

The Court’s composition has changed. It only takes four Justices to grant cert. Those four could very easily be Roberts, Alito, Scalia, and Thomas. This leaves five other justices, just one of which needs to understand his or her guardianship of the Constitution, to be unwilling to discard like a crumpled gum wrapper a fundamental enumerated right, to make it plain that the Constitution is not a relic, that it is not a “living document” to be redefined to mean anything judges sitting on a bench decide it means, whenever they so please.

So we will see.

This one is for all the marbles.

Posted by Drew458     on 11/13/2007 at 12:36 PM   
Filed Under: • Judges-Courts-Lawyers • News-Briefs •  
• Comments (8) • Trackbacks(0)  Permalink •  

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