Question on McDonald

[mack59]

Question - I have long thought that the USSC in McDonald will rule to incorporate the RKBA against the states but thought also that even given that decision - that they would mostly leave out answering the question of level of scrutiny in the case since they rarely go any farther than is necessary to answer the specific question in the case before them.

However, the justices do not live completely in a bubble, and they are certainly aware of DCs almost mocking response to the Heller decision - and Mayor Daleys camera/media mugging antics - and I am beginning to wonder if they will be moved to send a stronger message in the dicta of McDonald that will essentially state the 2nd is a fundamental right and that it deserves strict or at least serious intermediate scrutiny.

I watch the court - but am far from an expert, especially when it comes to the justices temperments and responses generally to being publically poked - so do people better educated or informed on the current court think that: A - the courts majority in Heller are feeling somewhat chapped or annoyed over the political slapdown they are getting in regard to Heller and B - will they use McDonald to vent a little smackdown back?

[Tom Servo]

I watch the court - but am far from an expert, especially when it comes to the justices temperments and responses generally to being publically poked

I can't imagine they're happy, particularly after their very public drubbing in the State of the Union address.

so do people better educated or informed on the current court think that: A - the courts majority in Heller are feeling somewhat chapped or annoyed over the political slapdown they are getting in regard to Heller

Doubtful. Once the decision is made, their job is done. At least until a challenge arises. They do have many other issues on their plate at any given time.

and B - will they use McDonald to vent a little smackdown back?

For just a second, I thought of Samuel Chase, wielding a baseball bat, screaming "ready for some smackdown?!?" It's not your fault, but it did give me a chuckle. So I'll thank you for it.

I don't think the Justices would act in such a fashion. They're already being accused of activism, no matter what they do. Any decision that smacks of retaliation would be called out as such very quickly.

Though they don't live in a vacuum, they do their best to project one. Separation of powers and all.

While they're not required to rule on a standard of scrutiny, I can't imagine a way they can avoid addressing it.

[KyJim]

While they're not required to rule on a standard of scrutiny, I can't imagine a way they can avoid addressing it.

I disagree. It would be very easy to simply incorporate it and send it back to the Court of Appeals for re-consideration under Heller because the Court of Appeals said the 2A and Heller never applied. The Supreme Court could wait for the circuits to wrestle with this for awhile before weighing in on the standard of scrutiny.

[Jim March]

I think a lot will depend on how another Gura lawsuit will go down - the one challenging the DC carry ban by a mix of out-of-district and in-district plaintiffs. Parker I think? Anyways. That one has been argued at the lower federal court level and a judge is currently drafting the decision. Should be out any day.

As I understand it, that judge is decidedly anti-gun in personal bent, however the opposition did an absolutely horrible job and it's expected to go our way at the lowest court. DC might try and appeal, or might not...they don't have a hell of a lot to work with because it's very clear the same class of people who can "keep" can also "bear".

If the McDonald case mentions that decision in a fashion favorable to us...whoa yeah, we're in great shape.

[Doc Intrepid]

Additionally, it's possible to still 'win' and yet not win much.

Look at whats happening in the District of Columbia since Heller.

Arguably it is no easier to purchase a handgun now than it was previously. In some specific cases it is even harder than it was previously.

Look for similar laws to become equally unenforceable due to bureaucratic foot-shuffling by resistant elements.

[Tom Servo]

The Supreme Court could wait for the circuits to wrestle with this for awhile before weighing in on the standard of scrutiny.

You got me there. In that case, we'd have to wait for a circuit split on the issue for it to make it back to SCOTUS.

The 4th Circuit has implied that strict scrutiny applies (at least for the "core" right). Get a conflicting verdict in another Circuit, and we're good to go.

Could take a couple of years, though.

[Jim March]

Ummm...I wouldn't get too hung up on the scrutiny level. "Rational basis" is off the table already. That's the big killer if we'd landed there. For most purposes we can cope with anything else, if the courts are even halfway decent.

Yes, that last is the kicker.

What we must not tolerate is a repeat of the lies the lower court told about Miller supporting a "collective right". It never did but that lie went on for what, 60+ years? We gotta be tougher than that.