The Firing Line Forums

Go Back   The Firing Line Forums > The Conference Center > Law and Civil Rights

Reply
 
Thread Tools
Old March 4, 2014, 12:49 PM   #1
Jim March
Senior Member
 
Join Date: February 14, 1999
Location: Pittsburg, CA, USA
Posts: 7,306
Is there a reason the Supremes are reluctant to consider carry rights?

If we have a right to carry, how would that affect federal buildings including courthouses? Would the US Supreme Court building be forced to install gun-check lockers near the door similar to what Arizona, Washington and a few other states do now in state courts and other state/local government buildings?

Is it possible the Supremes (including one or two of the "Heller 5") fear this and are hence unwilling to take up a "carry case"?
__________________
Jim March
Jim March is offline  
Old March 4, 2014, 01:31 PM   #2
Tom Servo
Staff
 
Join Date: September 27, 2008
Location: Foothills of the Appalachians
Posts: 10,258
We're not sure they're reluctant. They could just be waiting for the right case and right situation, like a circuit split.

Furthermore, we need at least four Justices who want to hear such a case. Any case they take is going to be controversial, and as a result, very time consuming. This is on top of an already crowded docket.

Even if we get a case heard, and we get a favorable outcome, they can ban guns from courthouses. Most states already do, so there's precedent for that. I really doubt such a thing weighs on their decision of whether or not to hear a case.
__________________
In the depth of winter I finally learned that there was in me an invincible summer.
--Albert Camus
Tom Servo is offline  
Old March 4, 2014, 01:51 PM   #3
Jim March
Senior Member
 
Join Date: February 14, 1999
Location: Pittsburg, CA, USA
Posts: 7,306
Quote:
Furthermore, we need at least four Justices who want to hear such a case.
Yes and no. If we have four solid on our side but they know there isn't a fifth, "our" four may very well not want it to come up yet.

Quote:
Even if we get a case heard, and we get a favorable outcome, they can ban guns from courthouses. Most states already do, so there's precedent for that. I really doubt such a thing weighs on their decision of whether or not to hear a case.
Ummm...under Heller guns can be banned from being brought into a courthouse. But banned from coming up to the front door? If there's a right to carry as well as a right to self defense...maybe not, because people have been murdered at the front steps of a courthouse because that was a place they would be known to be unarmed. That is exactly what happened to police chief Sid Hatfield:

http://en.wikipedia.org/wiki/Sid_Hatfield

...and that story has been repeated since. All it would take would be some woman called for jury duty or whatever who had a solid restraining order out...
__________________
Jim March
Jim March is offline  
Old March 4, 2014, 02:23 PM   #4
Nickel Plated
Senior Member
 
Join Date: January 17, 2010
Location: Brooklyn, NYC
Posts: 531
Keep in mind there are THOUSANDS of cases per year that want to be heard by the Supreme Court. And they can only do a couple dozen at best. It's a simple matter of odds. Gun rights aren't the only important issue in this country that requires the SC's attention.
They're not our personal arbiters of gun rights. They still have to maintain an image of impartiality and legitimacy. If all they hear are carry cases brought before them by pro-gun groups. Then suddenly they look like some one-issue activist court. They try very hard to avoid that since it seems the Supreme Court is really the only branch of our government that still has any shred of respect and dignity left in the eyes of the people.
Nickel Plated is offline  
Old March 4, 2014, 02:30 PM   #5
Gary L. Griffiths
Senior Member
 
Join Date: April 7, 2000
Location: AZ, IA, WA
Posts: 1,259
Quote:
If we have four solid on our side but they know there isn't a fifth, "our" four may very well not want it to come up yet.
That, frankly, is what concerns me. One of the majority in Heller and McDonald may have reluctantly voted to allow guns in the home, but has indicated an unwillingness to allow guns in public. OTOH, if the Heller minority were sure of a fifth vote, why wouldn't they vote to grant cert to one of the cases so they could effectively restrict the right to one's residence?

I think the simplest explanation is probably correct: They are very busy and aren't willing to grant cert until a circuit split forces them to.
__________________
Violence is an ugly thing, but not the ugliest of things. The decayed and degraded state of moral and valorous feeling which believes that nothing is worth violence is much worse. Those who have nothing for which they are willing to fight; nothing they care about more than their own personal safety; are miserable creatures who have no chance of being free, unless made and kept so by the exertions of those better than themselves. Gary L. Griffiths, Chief Instructor, Advanced Force Tactics, Inc. (Paraphrasing John Stuart Mill)
Gary L. Griffiths is offline  
Old March 4, 2014, 07:25 PM   #6
KyJim
Senior Member
 
Join Date: July 26, 2005
Location: The Bluegrass
Posts: 7,553
I think another reason SCOTUS has not granted cert in earlier cases is because it wants input from the various circuit judges. Remember that, in many ways, this is "new" ground the Supreme Court would be plowing. The Supreme Court would undoubtedly like having the benefit of opinions from a variety of jurists before diving off the deep end.
__________________
Jim's Rules of Carry: 1. Any gun is better than no gun. 2. A gun that is reliable is better than a gun that is not. 3. A hole in the right place is better than a hole in the wrong place. 4. A bigger hole is a better hole.
KyJim is offline  
Old March 5, 2014, 10:32 AM   #7
jason_iowa
Senior Member
 
Join Date: July 30, 2011
Posts: 686
I think after citizens united the SCOTUS is in pretty low standing. Not looked on as low as congress but that is not a very high bar.

There is an ebb and flow to our rights. As much as we like to think of them as being hard and fast this is just not the case. Compared to free speech/press and the 4th amendment the 2ed amendment is doing pretty well. Society is struggling with the 14th amendment as well.
jason_iowa is offline  
Old March 5, 2014, 10:41 AM   #8
Spats McGee
Staff
 
Join Date: July 28, 2010
Location: Arkansas
Posts: 5,047
Quote:
Originally Posted by KyJim
I think another reason SCOTUS has not granted cert in earlier cases is because it wants input from the various circuit judges. Remember that, in many ways, this is "new" ground the Supreme Court would be plowing. The Supreme Court would undoubtedly like having the benefit of opinions from a variety of jurists before diving off the deep end.
I think this is a point that bears repeating. I have long since lost count of the times I've heard folks say, or post, to the effect of, "The 2A has been the law since 1791." It is often overlooked that the 2A was first incorporated to the States in the last 5 years. In legal timelines, that's very recent. The body of law developing for the 2A is still in its infancy.
__________________
A gunfight is not the time to learn new skills.

If you ever have a real need for more than a couple of magazines, your problem is not a shortage of magazines. It's a shortage of people on your side of the argument. -- Art Eatman
Spats McGee is offline  
Old March 5, 2014, 11:22 AM   #9
Frank Ettin
Staff
 
Join Date: November 23, 2005
Location: California - San Francisco
Posts: 6,667
Quote:
Originally Posted by jason_iowa
I think after citizens united the SCOTUS is in pretty low standing. Not looked on as low as congress but that is not a very high bar.

There is an ebb and flow to our rights. As much as we like to think of them as being hard and fast this is just not the case....
Another factor is that pretty much every time the Supreme Court (or courts of appeal for that matter) decides something it tends to make some group unhappy. It can be tough to be consistently held in high regard when whenever you do what you're supposed to do you step on some group's beliefs or values or interests or perceived rights.

And that is perhaps part of the reason the Founding Fathers shielded federal judges from the direct political influence of the body politic.
__________________
"It is long been a principle of ours that one is no more armed because he has possession of a firearm than he is a musician because he owns a piano. There is no point in having a gun if you are not capable of using it skillfully." -- Jeff Cooper
Frank Ettin is offline  
Old March 5, 2014, 11:27 AM   #10
natman
Senior Member
 
Join Date: June 24, 2008
Posts: 1,422
Quote:
Keep in mind there are THOUSANDS of cases per year that want to be heard by the Supreme Court. And they can only do a couple dozen at best.
This.

SCOTUS gets swamped by requests. They can only hear a few. That means that every year thousands of cases, all of which are important to someone, don't get heard.

They cherry pick which cases they are going to hear. One of the things that gets their attention is splits between the various circuit courts. Such a split may come up in the near future with the Peruta v San Diego case. So patience. The Supreme Court moves at the speed of history, not our expectations.
natman is offline  
Old March 5, 2014, 11:56 AM   #11
speedrrracer
Senior Member
 
Join Date: December 15, 2011
Location: San Diego, CA
Posts: 259
Quote:
Originally Posted by Nickel Plated
Keep in mind there are THOUSANDS of cases per year that want to be heard by the Supreme Court. And they can only do a couple dozen at best. It's a simple matter of odds. Gun rights aren't the only important issue in this country that requires the SC's attention.
Which is why there needs to be more than one group of decrepit, old folks that constitutes the "Supreme Court".

The Constitution says there is only 1 Supreme Court, but it doesn't say how that can be implemented.

There is the same number of Supreme Courts today as there were 200+ years ago, and we have 60 times the population. They are clearly a bottleneck in our legal system, so it's not unreasonable to suggest there should perhaps be 540 SCOTUS Justices in 60 chambers, hearing cases at 60 times the current rate.
speedrrracer is offline  
Old March 5, 2014, 12:27 PM   #12
Gary L. Griffiths
Senior Member
 
Join Date: April 7, 2000
Location: AZ, IA, WA
Posts: 1,259
Quote:
They are clearly a bottleneck in our legal system, so it's not unreasonable to suggest there should perhaps be 540 SCOTUS Justices in 60 chambers, hearing cases at 60 times the current rate.
Then why not do away with the Supreme Court and have the circuits be the final arbiters of the Constitution. To put it another way, who is to decide if one Supreme Court group differs with another in its interpretation of the Constitution? Would we then need a Supreme Supreme Court?
__________________
Violence is an ugly thing, but not the ugliest of things. The decayed and degraded state of moral and valorous feeling which believes that nothing is worth violence is much worse. Those who have nothing for which they are willing to fight; nothing they care about more than their own personal safety; are miserable creatures who have no chance of being free, unless made and kept so by the exertions of those better than themselves. Gary L. Griffiths, Chief Instructor, Advanced Force Tactics, Inc. (Paraphrasing John Stuart Mill)
Gary L. Griffiths is offline  
Old March 5, 2014, 12:54 PM   #13
Nickel Plated
Senior Member
 
Join Date: January 17, 2010
Location: Brooklyn, NYC
Posts: 531
Well that wouldn't be the same thing since each circuit still only oversees their own chunk of the country. so a difference in rulings between circuits means you have different laws in different parts of the country.
A larger Supreme Court with several chambers would still set the standard nationwide regardless of which chamber the case goes to.
Sure there would be the issue where the outcome of your case still depends on which particular group of judges hears is. But it's not much different from what we have now where the outcome depends on which particular judge dies and which replaces him.
Just change it so that whichever particular group gets the case, the have final say and it applies throughout the nation. No whining, No appealing to a different group of supremes.
Nickel Plated is offline  
Old March 5, 2014, 02:17 PM   #14
Vanya
Staff
 
Join Date: July 7, 2008
Location: Upper midwest
Posts: 3,871
It's hard enough now to get Senate confirmation of Federal judicial appointments, including those of Supreme Court nominees. The prospect of multiplying 9 appointments by a factor of X, presumably in one fell swoop, is, um... not pretty.

And, in any case, I don't think that having more than one group of judges as the final arbiters of Constitutional law would work out too well -- there would inevitably be conflicts, and what then?
__________________
"Once the writer in every individual comes to life (and that time is not far off), we are in for an age of universal deafness and lack of understanding."
(Milan Kundera, Book of Laughter and Forgetting, 1980)
Vanya is offline  
Old March 5, 2014, 02:33 PM   #15
JimDandy
Senior Member
 
Join Date: August 8, 2012
Posts: 2,410
Quote:
Sure there would be the issue where the outcome of your case still depends on which particular group of judges hears is. But it's not much different from what we have now where the outcome depends on which particular judge dies and which replaces him.
Just change it so that whichever particular group gets the case, the have final say and it applies throughout the nation.
The problem with that is the cases are representative. Let's say there are two Supreme Courts. Through whatever fluke of timing, One of them gets packed during Reagan's terms, and the other during Clinton's terms.

So the Conservative Court A takes an abortion case, and somehow finagles overturning Roe. Abortion is now illegal. At the same time, Liberal Court B is doing the same thing to Heller. So while Court A takes a case to re-establish Heller, Court B re-establishes Roe, then expands Fair Housing to cover Purple People from Planet Xylon. Conservative Court A gets a little miffed, and not only gets rid of protection for the Purple People from Planet Xylon, they strike the Fair Housing Act altogether for discriminating against people not in a protected class at all.

And they continue back and forth. Not only does everyone have to keep track of both courts to know what the supreme law of the land is, it's flipping back and forth as the two courts bicker with each other. So you may have had a right to concealed carry when you applied for your permit but by the time the State gets around to issuing it, you don't. So they refuse. Then they have to issue it, and the day it shows up in the mail, they no longer have to issue it, so they revoke it that day.

Even worse, what happens if they take the same case? People for Superpacs sues the FEC to be able to donate more to political campaigns gets taken up by one court, while People for Individual Expression suing the FEC because they think ANY money from superpacs are destroying the one-man-one-vote concept. Then on the same day they issue opposing rulings. Then what?
JimDandy is offline  
Old March 5, 2014, 08:08 PM   #16
2ndsojourn
Senior Member
 
Join Date: January 15, 2013
Location: South Jersey
Posts: 623
Just getting one Supreme Court Justice approved by congress is a challenge. Can you all, even in your wildest imagination, see another entire panel nominated by this or any president, passing congressional approval?
2ndsojourn is offline  
Old March 5, 2014, 10:03 PM   #17
KyJim
Senior Member
 
Join Date: July 26, 2005
Location: The Bluegrass
Posts: 7,553
Quote:
There is the same number of Supreme Courts today as there were 200+ years ago, and we have 60 times the population. They are clearly a bottleneck in our legal system, so it's not unreasonable to suggest there should perhaps be 540 SCOTUS Justices in 60 chambers, hearing cases at 60 times the current rate.
You are wrong on a number of points. The Supreme Court originally consisted of six members and the number of members has varied somewhat. It has been at nine for a good number of years. There was no intermediate appellate court. There were simply the trial courts, called circuit courts then, and the Supreme Court. Supreme Court justices were required to ride the circuit, meaning they had to travel many miles and act as trial judges in cases. This constituted the biggest part of their workload for the first hundred years or so.

So, with intermediate appellate courts, no trial court duties, and larger staffs, I'm not sure the actual workload on the justices is really any greater than it has traditionally been. While they (or their staff) may have to review thousands of requests for review, most are clearly not worthy of review and are easily disposed of.
__________________
Jim's Rules of Carry: 1. Any gun is better than no gun. 2. A gun that is reliable is better than a gun that is not. 3. A hole in the right place is better than a hole in the wrong place. 4. A bigger hole is a better hole.
KyJim is offline  
Old March 6, 2014, 12:19 PM   #18
62coltnavy
Senior Member
 
Join Date: February 1, 2011
Posts: 211
In my opinion, the reasons the Supreme Court has not accepted a carry case outside the home are:
1. Moore did not create a true split, at least not technically in regards to its holding and the holdings in the other circuits on the east coast.
2. The Ninth Circuit had not weighed in when those other cases were considered, and until it issued Peruta, was the last remaining circuit in which a "may issue" law was in effect (in California and Hawaii.) I believe the Supreme Court wanted to hear from the Ninth before acting--and had Peruta come out affirming the concealed carry law, there would be no split and nothing for the high court to resolve.

Pertuta created not just a split but a chasm--that is, as long as it remains the controlling authority in the circuit. IF affirmed on en banc, or if en banc is declined, there is a substantial probability that the case will be appealed to the Supreme Court, and that the Supreme Court will take the case to resolve the massive philosophical split on the scope of the Second Amendment outside the hoe, as well as the massive confusion as to the manner in which "intermediate scrutiny" is to be applied.
62coltnavy is offline  
Old March 6, 2014, 02:37 PM   #19
Jim March
Senior Member
 
Join Date: February 14, 1999
Location: Pittsburg, CA, USA
Posts: 7,306
Quote:
IF affirmed on en banc, or if en banc is declined, there is a substantial probability that the case will be appealed to the Supreme Court
Like heck there is.

If the grabber side wanted a "carry case" at the Supreme Court they would have appealed Moore v. Madigan instead of allowing IL to go shall-issue.

"Losing" Chicago to the pro-gun side was an enormous blow for the bad guys. In a year or two when crimes drops in Chicago and "blood doesn't run in the streets" what are they going to say?

Why did they agree to the loss? Because the "Heller 5" were still there. Still are NOW.

The grabbers aren't going to appeal a loss for their team in Peruta to the Supremes. To en banc, yes, absolutely. Unless Kamela Harris is just...incredibly stupid.

Their side needs to delay a carry case until Obama or his successor gets a chance to replace a Heller 5 justice. Our side needs to hurry it up before that happens.
__________________
Jim March
Jim March is offline  
Old March 6, 2014, 08:09 PM   #20
62coltnavy
Senior Member
 
Join Date: February 1, 2011
Posts: 211
The problem with Moore for the grabber side is that it merely concluded and directed that Illinois enact a carry law--but did not direct what kind of carry law. Illinois was perfectly free (aside from politics) to enact a "may issue" concealed carry law, or even an open carry law. Although you see the argument often enough (as in the Brady Campaign motion for rehearing in Peruta, and the similar arguments made by LCAV), there is a substantial likelihood that the Supreme Court will recognize a right to "bear" arms outside the home--Heller tells us as much, no matter how often that specific language is ignored by the anits.

So instead what they are trying to do is to ban or severely restrict concealed carry, arguing that even if there is a right to carry, concealed carry may be constitutionally banned. That is what all of the east coast cases have said and where they want the Ninth Circuit to go.

Moore therefore was not a good case for the banners to appeal. And they've won all of the others at the Circuit level, so it is only the 2A supporters who are appealing, not governmental authorities or associated anti groups. Peruta, on the other hand, is a must win case for their side--the only reason "they" would not appeal it is because of an interest in preserving the decisions they've gotten in 2, 3, and 4. But none of those groups get to tell Kamala Harris what to do--and unless she is denied intervention, or fails to obtain a reversal through en banc proceedings, will likely appeal no matter. You have to understand that she is a true believer in gun bans, gun registration and a ban on concealed carry for the whole state of California, nor is she beholden to any activist group, and as far as can be ascertained from the pleadings, did not coordinating with them before filing her motions.

Last edited by 62coltnavy; March 6, 2014 at 08:15 PM.
62coltnavy is offline  
Old March 7, 2014, 08:54 AM   #21
esqappellate
Member
 
Join Date: October 16, 2012
Posts: 69
Interesting analysis and one with which I largely agree. It seems to me that the AG really screwed up in failing to intervene earlier. She stands a real risk of having her motion to intervene denied, as California's statute is not directly implicated by the panel's decision. They were either ignorant or arrogant in failing to intervene earlier and, given the repeated opportunities, I doubt they were merely ignorant. You have to enjoy the fix in which they find themselves now. I rather hope that the motion to intervene is denied and the court lets them stew in it.
esqappellate is offline  
Old March 7, 2014, 01:43 PM   #22
JimDandy
Senior Member
 
Join Date: August 8, 2012
Posts: 2,410
Quote:
nor is she beholden to any activist group
Who does she serve at the pleasure of, if anyone? i.e. who can fire her, and/or tell her what to do? The only people who aren't beholden to an interest group have a lifetime appointment and can't be fired, only impeached.
JimDandy is offline  
Old March 7, 2014, 03:45 PM   #23
Al Norris
Staff
 
Join Date: June 29, 2000
Location: Rupert, Idaho
Posts: 9,311
Kamela Harris is elected to the position of Attroney General. So it is the people that can "fire" her.
__________________
National listings of the Current 2A Cases.
Al Norris is offline  
Reply

Thread Tools

Posting Rules
You may not post new threads
You may not post replies
You may not post attachments
You may not edit your posts

BB code is On
Smilies are On
[IMG] code is On
HTML code is Off

Forum Jump


All times are GMT -5. The time now is 09:12 PM.


Powered by vBulletin® Version 3.8.7
Copyright ©2000 - 2014, vBulletin Solutions, Inc.
This site and contents, including all posts, Copyright © 1998-2014 S.W.A.T. Magazine
Copyright Complaints: Please direct DMCA Takedown Notices to the registered agent: thefiringline.com
Contact Us
Page generated in 0.12728 seconds with 9 queries