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May 13, 2007
How would SCOTUS rule on Parker v. DC

I posted this on a forum I spend some time on but with DC losing the en-banc appeal in Parker v. DC and recent coverage of Kennedy being the new swing vote on the 5-4 decisions, it has become even more relevant.

I've done some reading to have a more informed opinion as to how I expect the Supreme Court to rule should Parker be given certatoria. I believe that the four solid votes we have for the individual rights interpretation are:

Thomas - In Printz v. United States he specifically requested that SCOTUS review and show its an individual right.

Alito - He's got some good appellate cases on NFA

Roberts - He hinted at his pro individual rights stance in his confirmation.

Scalia - He's almost always on the right side of gun laws. Caron v. United States is a good example.

Here are the two wobblers. I'll go from most likely to least likely.

Souter - Souter authored the opinion in United States v. Thompson/Center Arms Co. where Rhenquist and Oconner joined and Scalia and Thomas concurred in a separate opinion that Thompson's carbine kit wasn't a constructive possession of a short barreled rifle as ATF wanted to hold. Souter also held in favor of Small in Small v. United States where Small was convicted of gun smuggling in Japan but wanted to buy a gun in the United States. Further in Planned Parenthood v. Casey, Souter joined Kennedy in quoting with approval Justice Harlan's statement that the "full scope of ... liberty" is not limited to "the freedom of speech, press, and religion; the right to keep and bear arms; the freedom from unreasonable searches and seizures." Casey reaffirmed the right of privacy, a right it viewed as belonging to an individual and that can be asserted by the individual against the federal government or a state. The Justices used this quote from Justice Harlan to convey the view that such an unenumerated right had the same constitutional status as all the enumerated rights in this list. All these rights retained by the people are considered by the Court to be on par. No mention of a militia-centric qualification is made.

Ginsburg - I know it is a long shot, but here is the evidence in support of her voting for an individual second amendment right. First, she authored Eldred v. Aschroft in which she found that prefatory clauses in the Constitution don't limit the scope of a right or power in an operative clause. Here is an article with more about that issue. Also, Ginsburg refers to the Second Amendment as an individual right in the context of attempting to understand what "carry" means in Federal law in Muscarello v. United States: "Surely a most familiar meaning is, as the Constitution's Second Amendment ("keep and bear Arms")" Souter concurred in that one.

So I'm going out on a limb and saying with these odds we could see a 6-3 ruling in favor of an individual right to arms.

The only negative thing I noticed was this, written by Souter and joined by Ginsburg, Stevens, and Breyer. FN 11: "While that document protected a range of specific individual rights against federal infringement, it did not, with the possible exception of the Second Amendment, offer any similarly specific protections to areas of state sovereignty." (Justice Souter, with Stevens, Ginsburg, and Breyer, dissenting) from US v. Morrison.

I actually don't think we need Kennedy.

Update: US v. Rybar is the machine gun case that Alito wrote a dissent in favor of the machine gun possessor but its pretty clear that he was basing his opinion on Commerce Clause limited Federalism grounds.

Posted by hoffmang | May 13, 2007 11:46 PM


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I {looked|checked} {on the internet|on the web|on the net} {for more info|for more information|to find out more|to learn more|for additional information} about the issue
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this {great|excellent|fantastic|wonderful|good|very
good} read!! I {definitely|certainly|absolutely} {enjoyed|loved} every {little bit of|bit of} it.
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{Hi|Hello|Hi there|What's up}, just wanted to {mention|say|tell
you}, I {enjoyed|liked|loved} this {article|post|blog post}.
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I {{leave|drop|{write|create}} a {comment|leave a response}|drop a
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{each time|when|whenever} I {appreciate|like|especially enjoy} a {post|article} on a
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the {passion|fire|sincerness} {communicated|displayed} in the {post|article} I {read|looked
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{Could|Would} you {list|make a list} {all|every one|the complete urls} of
{your|all your} {social|communal|community|public|shared} {pages|sites}
like your {twitter feed, Facebook page or linkedin
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I {like|wanted} to write a little comment to support you.|
I {always|constantly|every time} spent my half an hour to read this {blog|weblog|webpage|website|web site}'s {articles|posts|articles or
reviews|content} {everyday|daily|every day|all
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all my {friends|associates|contacts}, {because|since|as|for the reason that} if like
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My {coder|programmer|developer} is trying to {persuade|convince} me to move to .net
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{expenses|costs}. But he's tryiong none the
less. I've been using {Movable-type|WordPress} on {a
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to another platform. I have heard {fantastic|very good|excellent|great|good} things about blogengine.net.
Is there a way I can {transfer|import} all my wordpress {content|posts} into it?
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{Hello|Hi|Hello there|Hi there|Howdy|Good day}!
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{I found|I discovered|I came across|I stumbled upon} it
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{Disgrace|Shame} on {the {seek|search} engines|Google} for {now not|not|no longer} positioning this {post|submit|publish|put up} {upper|higher}!

Come on over and {talk over with|discuss with|seek advice from|visit|consult with} my {site|web site|website} .
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{fantastic|wonderful|great|excellent} {blog|website|site}!|
{A person|Someone|Somebody} {necessarily|essentially} {lend a hand|help|assist} to make
{seriously|critically|significantly|severely} {articles|posts}
{I would|I might|I'd} state. {This is|That is} the {first|very first} time I frequented your {web page|website page} and
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{Hello|Hi|Hello there|Hi there|Howdy|Good day|Hey there}!
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I {always|all the time|every time} used to {read|study} {article|post|piece
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Your {way|method|means|mode} of {describing|explaining|telling} {everything|all|the
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{Hello|Hi} there, {simply|just} {turned into|became|was|become|changed into} {aware of|alert to} your
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{I will|I'll} {appreciate|be grateful} {if you|should you|when
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{A lot of|Lots of|Many|Numerous} {other folks|folks|other people|people} {will be|shall be|might
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{Either way|Anyway} keep up the {nice|excellent} quality writing,
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{I am|I'm} {extremely|really} {inspired|impressed} {with your|together
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{internet|web} explorer, {may|might|could|would} {check|test} this?
IE {still|nonetheless} is the {marketplace|market} {leader|chief}
and {a large|a good|a big|a huge} {part of|section of|component to|portion of|component of|element of} {other folks|folks|other people|people} will {leave out|omit|miss|pass over} your
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I needs to spend some time learning {more|much more} or understanding more.
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came to _return the favor_.{I am|I'm} {trying to|attempting to} find things
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