Holding My Breath
Bill Quick

In what may turn out to be the most important Second Amendment ruling since 1939’s hideously misinterpreted Miller – and maybe the most important ruling on the Amendment in American history – the Supreme Court has granted cert to Parker v. D.C. and will be taking up the case in this session. Natch, Glenn Reynolds has tonsalinks.

My first take (I have to admit I’m shaking in my boots at the negative possibilities here, given that I thought the SCOTUS would dodge this one) is that the Court will find an individual right, but do so in such a way that almost no gun control laws currently in place are much disturbed, although pestholes like Chicago and San Francisco may be encouraged to permit their citizens to defend themselves once again. The whole issue of incorporation will be much discussed beyond the court as well, I expect.

If they do declare an individual right, no matter how tightly worded, look for a flood of litigation to follow, though.

Why do I think they’ll come down on an individual right interpretation? Because so-called “settled law” has been based on a collective or states’ rights interpretation. If they wanted that to remain, all they needed to do was…nothing.

Further, the court is a political animal. The justices, I’m sure, took note of what happened with the recent immigration debacle. They can only imagine what would happen if they threatened the RKBA of some 80 million gun owners, some tiny percentage of which are the sort of whackjobs who might take umbrage at the individual justices themselves. Politicians have never been famous for seeking out that sort of potentially lethal disagreement.

And if they do give us a reasonably unfettered individual rights interpretation, with both Bush appointees voting for it, I’ll have to give a big pat on the back to the conservatives who made sure Bush’s likely initial choices for the court were deep-sixed.

UPDATE :

Fred Thompson comments: “The Second Amendment does more than guarantee to all Americans an unalienable right to defend one’s self. William Blackstone, the 18th century English legal commentator whose works were well-read and relied on by the Framers of our Constitution, observed that the right to keep and bear firearms arises from ‘the natural right of resistance and self-preservation.’

I’ve said it over and over here: The right to life and property is absolutely worthless without the right and ability to effectively defend yourself against attacks on your person and belongings.

Go, Fred! And, actually, go Rudy! Thanks for supporting the Second, both of you!

By the way, what a stinker of an issue this is for the Democrats and the left, eh? I think Hillary will have a Sister Souljah moment and come out in support of an individual rights interpretation. In my leftist days, the New Left certainly felt that way. None of us supported disarming the Black Panthers. And, frankly, Kos isn’t exactly a hotbed of anti-gun fervor, given that a strong stream of opinion there believes they will have to take up arms to protect themselves from us Fascists.

It might be interesting to see, of those massive majorities that favor an individual right to keep and bear arms, what percentage does so because it fears the other side of the ideological divide.

UPDATE: Welcome, Instapundit readers! Thank you, Glenn!

Bill Quick

About Bill Quick

I am a small-l libertarian. My primary concern is to increase individual liberty as much as possible in the face of statist efforts to restrict it from both the right and the left. If I had to sum up my beliefs as concisely as possible, I would say, "Stay out of my wallet and my bedroom," "your liberty stops at my nose," and "don't tread on me." I will believe that things are taking a turn for the better in America when married gays are able to, and do, maintain large arsenals of automatic weapons, and tax collectors are, and do, not.

Comments

Holding My Breath — 34 Comments

  1. One can hope that SCOTUS upholds the individual right. One can also hope that they extend that right to everyone of adult age. That is to say everyone with the right to vote, marry, sign binding contracts and all those willing to put their life on the line to protect even The Appeasers(sequel to The Invaders).

  2. Fred Thompson on the 2nd Amendment

    I strongly support the Second Amendment of the Constitution, which protects an individual’s right to keep and bear arms. Gun control is touted as a major crime-control measure. But some of the places with the strictest gun-control laws also have high violent-crime rates. Disarming law-abiding citizens does not prevent crime. The answer to violent crime is smart, effective, and aggressive law enforcement. The real effect of these gun-control measures is to place onerous restrictions on law-abiding citizens who use firearms for such legal activities as self-defense, sport-shooting, hunting, and collecting. I am committed to:

    Strictly enforcing existing laws and severely punishing violent criminals.
    Protecting the rights individual Americans enjoy under the Second Amendment.

    http://www.fred08.com/Principles/PrinciplesSummary.aspx?View=OnTheIssues

  3. I would be rather surprised if any of the Democratic candidates ever supported an individual’s right to self-defense (with the possible exception of Richardson, who actually has a CCL). Certainly the top three Dem candidiates are devoted Marxists, and one’s right to self-defense is abhorrent to such folks.

  4. None of us supported disarming the Black Panthers.

    Doesn’t this really bring to light the truth behind gun control laws? Aren’t they really racist laws designed to keep minorities down? If Clinton talks about the true jim crow roots of gun control in this country that will be the win for her. Otherwise her chaning position on this is no different than her changing accent.

  5. Fred Paxson,
    Thanks for the blurb from the other Fred.
    I can not ever vote for a man who will strictly enforce unconstitutional laws. The vast majority of gun laws, federal state and local are unconstitutional and hence illegal.

    All gun laws, and maybe most of the other laws on the books, should be repealed back to 1933.

    This fascist grab at power thru anthropomorhism deserves a public and spectacular death.

  6. Certainly the top three Dem candidiates are devoted Marxists, and one’s right to self-defense is abhorrent to such folks.

    Actually, no. As a (former) leftist so hard to the left that we planned to stand co-opted sellouts like Hillary and Obama “Up Against the Wall” ™ “After the Revolution” ™, I can tell you you’re wrong. That’s not a wild rose Che is always waving around, and it wasn’t Barry Goldwater who said, “Power comes from the barrel of a gun.”

    Marxism is not inherently opposed to firearms possession – in practice, it just opposes the RKBA for non-Marxists.

  7. Aren’t they really racist laws designed to keep minorities down?

    Yes, of course, that is one aspect of them in this country, at least. Many of the gun controls imposed in the Southern states after the Civil War were explicitly designed to do so, and even in modern times, racism was behind such things as laws outlawing “Saturday Night Specials,” cheap, easily obtainable firearms that were much owned in ghettos and among lower class whites. But in general, gun control laws are always imposed to keep firearms out of the hands of the “wrong people.” Usually, those who impose them consider themselves to be “right people,” however.

  8. Bill Quick said

    Marxism is not inherently opposed to firearms possession – in practice, it just opposes the RKBA for non-Marxists.

    I disagree with this statement. Marxists are certainly opposed to firearms possession by other Marxists, if such people are political enemies. They recognize that power does indeed emanate from the point of a gun, and that they [the ones in power] should have the guns, while all others should not, even if the ‘others’ include fellow Marxists.

    A KGB defector, Yuri Bezmenov, gave an interview around 1985 describing how he thought Marxists would be treated by fellow Marxists who come to power. I personally think that it would be useful if high school and college students all saw at least a portion of this interview,

  9. Ok, I’ve been traveling, but apparently I missed something big if Bill is praising Rudy. Can someone fill me in? BTW, I think that the Dems have backed off of gun control on a national level. Even they know that is a loser, if only the religious right would get a clue about abortion…..

  10. We don’t need some defector’s “thoughts.” All we need to do is examine actual history.

    Of course the “marxists” like Trotsky who were murdered by the “marxists” like Stalin were deemed to be “deviationists” and therefore no longer real “marxists.”

    As always, the “right” people want to disarm the “wrong” people and, also as always, they want to be the ones defining “wrong people.”

  11. “I think Hillary will have a Sister Souljah moment and come out in support of an individual rights interpretation.”

    Don’t be silly. That will never happen.

    #1, Hillary has determined not to come out with a clear position on ANYTHING – if you can’t be nailed down, then nobody can disagree with you.

    #2 “Guns” in liberal culture are the things used to kill “children” (aka teenage drug dealers) and are evil, not something that you could ever support openly. OTOH, they are aware that drooling rural hicks love their guns for inexplicable reasons and it’s bad election juju for a presidential candidate to openly oppose them. So the best thing really is to say nothing that pins you down.

    #3 Hillary and her friends long ago left the Black Panthers and ’60s radicalism behind along with their peace symbol necklaces and love beads. What they believed 40 years ago is ancient history. And in liberal thinking, it’s OK to have different standards for different groups, so just because they are ready to take up arms against Fascists doesn’t mean they think that Fascists should have guns too.

    #4 In a true Sister Souljah moment you establish your phony centrist bona fides by coming out against someone that almost no one supports in the first place. It’s a variation on the old straw man, except that the straw man is from the extreme fringe of your “side”. Sister said, “If Black people kill Black people every day, why not have a week and kill white people?” This was a painless denunciation – how may people, even black voters, would support Sister’s concept? So you move toward the center where all the votes are but leave behind almost nobody in your base. Gun control, OTOH, is first of all an issue, not a person, and second an issue that has much more support in the Democrat base than “National White People Killing Week” – by moving right on this issue, you are taking risks on your left, whereas a true Sister Souljah is a no lose proposition.

  12. Leaving aside questions about the ever-moving target we call Marxism, I can still tell you that the hard left (the New Left) in America of the 1960s did not oppose the RKBA and, in fact, opposed efforts to infringe it – most particularly in the case of the disarming of the Black Panthers in California and elsewhere, but in general as well.

    And Hillary springs, ideologically speaking, from that milieu.
    She was certainly not unaware of, nor unsympathetic to, the Panthers, either.

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  14. As always, the “right” people want to disarm the “wrong” people and, also as always, they want to be the ones defining “wrong people.”

    For sure. Unfortunately, I think that’s why some, like Reynolds, persistently use the term “right to arms”, without any persnickety verbs. Seems they’ll readily agree that the “keep” in the 2nd is synonymous with “own” and “possess”, but the “bear” part means.. Well, nothing apparently.

    That leaves the door wide open for all sorts of licensing and registration measures meant to make sure that only the “right” people can bear arms — and what’s the point of a right to possess what you have no right to use, eh? ‘Course the “wrong” people simply ignore the laws, but this never seems to discourage such efforts.

    I agree that this is a scary time for gun owners, but I also agree that the Supremes wouldn’t have taken the case if they only meant to maintain the status quo or invoke all those emanations and penumbras to further muddy the waters. I’ve got to hope they’ll uphold the 2nd as written, without parsing or ignoring those inconvenient “keep and bear” verbs. That would be most interesting.

  15. “Hillary springs, ideologically speaking, from that milieu [of the hard left].”

    I’m sorry but you are still being silly here. Wasn’t Hillary once a Goldwater Girl? Does she spring from that milieu too? Hil and Bill have totally remade themselves a dozen times since those days (according to the latest poll results). You yourself were once part of that scene and you have changed greatly – why can’t she? This is especially true for someone who has no moral core – Hillary herself doesn’t believe in anything other than the will to power – the only “ism” she believes is Clintonism. If it’s a choice between standing with Marxist principles (if she ever had those principles to begin with and if she still has any shred of them today) and doing what she perceives as enhancing electability, the latter will win every time.

    “If we elect Hilary we will have a secret Red in the White House” is really not a theme that will resonate credibly with the voters, nor even a particularly useful framework for predicting her future behavior, so I would drop it. For younger voters, Marxism is something from the history books. A “Red State” means a Republican state to them. For baby boomers, a lot of them did all kinds of weird things in the ’60s that they are willing to put behind them and they will extend the same courtesy to Hillary. Maybe this line would have played well in 1952, but not in 2007.

  16. I’m trying to think of the last time the Supreme Court said Congress couldn’t do something. The only recent case I can call to mind is Lopez, and that was twelve years ago, and went nowhere.

    Setting that aside, there are still any number of ways the Supreme Court could decide this case without touching on incorporation or the powers of the States: The local government in the District of Columbia is a municipal corporation created by Congress itself, so all the provisions of the Bill of Rights apply directly; incorporation under the Fourteenth Amendment need not come into the discussion.

    I remind everyone, only four Justices’ votes are required for a grant of certiorari; there may sill be a majority perfectly satisfied with the status quo, such as it is.

  17. I remind everyone, only four Justices’ votes are required for a grant of certiorari; there may sill be a majority perfectly satisfied with the status quo, such as it is.

    I doubt very much if they would have touched this hot potato if that were the case.

  18. I’m sorry but you are still being silly here.

    Generally, that sort of statement earns you a hearty “fuck you, dumbass” around here, but I suspect you aren’t even close to being old enough to have any valid knowledge of the milieu Hillary and I share.

    So instead, I think I’ll just ignore you.

  19. SCOTUS’s decision could not have come at a better time. Yes, Dems have been running away from anti-2nd Amendment positions since 2000. This strategy effectively killed the issue by ignoring it. No controversy, no press. Now it’s back with a vengence in potentially the most significant SCOTUS ruling since Roe. The Dems will be forced to talk about it, and that is not good for them. The American people want to be able to keep and bear arms. The Dem establishment (though by no means all, or possibly even most Dems) want to be able to take every gun from everyone other than LE. Perhaps Madame Rodham can attempt a Sister Souljah moment, but, to run the analogy, it’s hard to say that a week of killing whitey is wrong when you are on record as supporting every opportunity to kill whitey for the past 15 years. She is hoping that SCOTUS guarantees an individual right (as it should and must) so that her idiocy on the subject will be irrelevant and Carthage must be destroyed.

  20. I remind everyone, only four Justices’ votes are required for a grant of certiorari; there may sill be a majority perfectly satisfied with the status quo, such as it is.

    Clayton, I’m not trying to be snarky here, but this certainly is a hot-button issue. Why on earth would a minority, knowing they’re a minority, force this issue before the court? Do you see some greater strategery going on here?

    (I also realize that reading the minds of the Supremes should be approached with great trepidation, so I won’t hold you to any speculations you might care to offer!)

  21. Do you see some greater strategery going on here?

    Strategery? On an issue like this, with a Court like this? The only strategery available to either side of the panel is who can blow Kennedy last and best.

    I don’t speculate on what the Court might do. I know what ought to be done, and I know what has been done, and the two are irreconcilable. The only Justice I feel at all comfortable predicting is Thomas. Even the rabid liberals might surprise us on this one.

  22. For younger voters, Marxism is something from the history books.

    Would that it (only) were.

    A growing proportion of those books are also written (and taught) by Marxists, reconstructed and otherwise. In the social sciences and humanities, its increasingly the water in which young voters learn to swim.

  23. The only strategery available to either side of the panel is who can blow Kennedy last and best.

    Well, that’s comforting. And here I’ve been looking for a reason to believe that I didn’t have to hold my breath. Could we sent the conservatives Altoids?

  24. In the social sciences and humanities, its increasingly the water in which young voters learn to swim.

    I think you sell the kids, or at least their natural contrarianism, short. Most of the twenty-somethings I know are far more conservative than I was at their age. I quiz them about their social sciences professors — many of whom I know personally — and they just roll their eyes. Gives me great hope for the future it does!

  25. Jack Denver said “#1, Hillary has determined not to come out with a clear position on ANYTHING – if you can’t be nailed down, then nobody can disagree with you.”

    I disagree. Only Nixon could go to China. If Hillary thought RKBA was necessary to fragment an overmatching adversary party, she would do it. But only if GOP looks like it’s going to beat her.

    A soft-focus interview by Katie or Bawbwah, recounting her packing her daddy’s trusty old S&W Chief’s while organizing the lunch counter sit-ins is all it would take, even if none of it ever happened or could have happened (how old was she—three?—at the time? No matter). Her people could do it, and swallow back their bile long enough to do it.

    I agree with WTQ that a Supreme Court ruling in agreement with the individual right scholarship would favor the GOP so powerfully that there would no longer be a political positive for Dems to (even quietly or tacitly) cling to a collective right position. CatotheElder said, “The Dems will be forced to talk about it, and that is not good for them.” They won’t have the option of not talking or even of changing the subject. They will be nailed down. Something to the tune of “shoot the hostage. Take him out of the equation.”

    I’m more concerned about GOPers who have not consistently held to RKBA throughout their careers. Am not often swayed by campaign-bus conversions.

  26. Wow! The InstaPundit has just linked Bob Krumm:

    If, however, the Supreme Court rules that the Second Amendment is a group right afforded to governmentally organized militias, then watch out. Such a decision would immediately put a constitutional amendment to reverse its effect on the fast track. The ruling would upset millions of voters, many of whom aren’t currently happy with Iraq, the economy, immigration, and Bush, and who might otherwise be persuaded to turn to a Clinton, Edwards, or Obama. But they won’t with gun rights at stake. If the Supreme Court takes away the individual right to bear arms next spring, automatically every Southern and Western state is unwinnable for any of the leading Democrats next November.

    What would such a new constitutional amendment say? That “The right of the people to keep and bear arms shall not be infringed, and we Really, Really Mean It this time”?

    If the Supremes can essentially void the 2nd, part of the Bill of Rights, wouldn’t they dismiss another gun rights amendment with a sniff and a wave of their hands? Not to mention that it takes (what?) 37 states to ratify a constitutional amendment?

    Now I’m gettin’ scared.

  27. But then I tell myself “I live in Wyoming!” (like Fuz. Hey Fuz!) We don’t need no stinkin’ federal gun rights. If the Supremes rule that the 2nd only insures a state’s right it wouldn’t be long before our governor and/or state legislature officially inducted all of us into the state militia — I think we already are covered by a state militia law, but I’m not sure — we’re also covered by the state constitution. Likewise most of the rest of those western and southern states could probably dodge the bullet. Not so good for the folks in the coastal blue states though..

    Surely, surely, they won’t rule that the 2nd doesn’t protect a right of the people? Would they? Are there any legitimate legal scholars who’ve studied the 2nd and believe that? I figure at the very worst they’ll come up with something non-committal, or that only applies to DC, or overturn the appellate court and go back to the status quo.

  28. From Chisholm v. Georgia to the Eleventh Amendment was three years.

    Good point. Once I stop hyperventilating I don’t suppose that the Supremes can literally void a constitutional amendment. Worst they could do is opine that it only protects the states’ right to arm their National Guards. A new, completely unambiguous amendment asserting a personal right could do the trick. But how likely is it that we could get 38 states to ratify an amendment asserting an unambiguous personal right to keep and bear? They’ve been trying to get the Equal Rights Amendment ratified since 1923.

  29. Swen: “Sec. 24. The right of citizens to bear arms in defense of themselves and the state shall not be denied.”

    Of whom does the State Militia constist? Of all able bodied male citizens of the state between the ages of eighteen and forty-five except those lawfully exempted.”
    Clear enough for me.

    I’m going out on a limb again: the nature of communications networks has changed how fast-ones can be pulled by the U S Government. The RKBA argument has propagated through these networks, been added upon, refined, dissected, biopsied, and so forth so many times and so many ways, that the Supreme Court’s virtual neglect of it has given the historians and philosophers enough time to make the argument ironclad.

    The Supremes will deny the existence of an individual right only at the expense of their legitimacy, in a way that they could have gotten away with, say 25 years ago but not now.

    I admit to that peculiar bias, plus the Strauss & Howe Generations prediction of overall pro-gun attitudes locking in between Boomers and Millennials. America may already be more tolerant of private gun ownership than of cigarette smoking; the laws just haven’t caught up on the former and they’re not done with the latter.

    Krumm’s piece referred to the veneer of SupCt legitimacy in comparison with Lawrence v Georgia and Roe v Wade, said it’s at stake.

    I predict that they’ll find for an individual RKBA, but allow plenty of room for most gun control as we know it to stand. That room also gives us time and incentive to island-hop with both legislative and judiciary work.

    Anyone who thinks that this one case alone will evaporate all gun control at once and liberate us to mail-order Glocks direct from Smyrna is too stupid to deserve one. Get out your checkbooks. Help fund A2A’s amicus brief.

    Through opining, now asking my betters: what would a very modest individual right ruling do regarding existing convictions, such as machinists building full autos from scratch or making 80% receivers ? Will there be a flood of appeals that could paralyze the judicial system? And could that prospect influence the SupCt? Would they admit to that influence?

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