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March 20, 2008
Libertyzilla meets Utopiankong with special guest Generalrothra

Originally I had predicted a 6-3 decision. Now that I've reviewed the arguments a few times let me talk first about where I was wrong.

I did not expect Kennedy to be maybe the most impassioned advocate for gun rights outside of Gura. My initial response to Ginsburg's questioning was to think she was far more hostile than I expected. That said, that impression has moderated as I've looked and listened to the arguments a couple of more times. Also, I am surprised at Souter's hostility to a fairly wide individual right.

As we have 5 this is a case that the pro-gun side is going to win. The questions that remain are two fold. First, is it 7-2 or maybe even 9-0 on an individual right? I sensed some frustration from the pro-gun 5 and even Ginsburg about the currently skeptical justices. As an informed guess, I think Roberts is trying to put together a 9-0 but Souter and Stevens are holding out. I also expect that they're going to throw Miller into the dustbin of history where it belongs. The second question is what level of scrutiny and how do the votes on scrutiny break down. Ginsburg notes that the M-16 is the most protected arm in America under Miller. That said, they don't want to go there this time. I expect a 7-2 holding that Miller's done and the test is arms in common use - basically a slightly less faithful to Miller version of the DC Circuits ruling - call it a clarification of Silberman's reasoning. They'll point out that this does not hold anything about other arms as those are cases for future courts and aren't in front of them here. I also expect the Chief Justice to write it. He wants a wide and real Second Amendment holding that is long term politics proof - as it should be.

The two things that have annoyed me to no end are Gura criticism and machine guns. First, much of the Gura criticism starts out from individuals who had dreams that they would stand there at the counsel table and discuss Scalia's firearms collection. The number and size of the egos who've been attacking Gura is amusing to put it mildly. I've been repeating "Ego over the Republic" to too many comments and maneuvers. The good news is that once Gura is done winning, he'll be a rock star as he should be. Brett and I made sure that he wasn't buying his own drinks at this event.

Machine guns... Where to start. Brown v. Board of Education wasn't won in a day. It took decades for the African American civil rights movement to get from Jim Crow to real basic human rights. The good news is that we're not going to have to fight that long to really be done with securing the full meaning of the Second Amendment. Remember there was a time that the NAACP had to be happy with Plessy and separate but equal. Justice Kennedy, from not even 9 feet away, dared Alan Gura to say anything but "Yes your honor" to Kennedy's question about banning shipping machine guns in interstate commerce. Had Alan said anything else we could have kissed the right to keep and bear arms goodbye.

However, after this case is decided and the Second Amendment means something, the frame of reference will be reset. Modernizing and making NFA more shall issue is well within the federal legislative capabilities of NRA and others. For once we may finally be able to make some compromises that extend the right to arms because prohibition and rules that do not have an honest basis will not be constitutional. I'm betting that what we'll find is that we can use the 14th Amendment after incorporation to have a reasonable (as we'd define it) ability to get our NFA tax stamps - even in gun unfriendly places.

The other twist that I think is being under-reported is that the SG on balance helped us. He didn't get a lot of time on his intermediate scrutiny theory and to the extent he talked about it the court got him to agree that he probably doesn't have a problem with the DC Circuit's test - especially if it basically holds that strict scrutiny only applies to the common firearms stock. To stave off the comment, I'm aware that select fire M4s aren't common because of an arguably unconstitutional law but that is a fight for another day.

I live in California. I just want to protect the future ability for my kids to actually buy a semiautomatic handgun first. Secure that and then move forward.

Final thought: What happens to LCAV, Brady, and VPC? Will The Joyce Foundation shy away now that the real goal of an outright ban is out of reach?

Posted by hoffmang | March 20, 2008 01:11 AM


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