I was reading this link [url]http://laws.findlaw.com/10th/006129.html[/url] that nels provided on the 10th Circut Courts brief to the SCOTUS on the [i]Haney[/i] case.

It is a extremely week argument, with so many factual errors in citing case law that the government has no chance of winning. And GCA 68 and the machinegun provisions of the 86 FOPA would be history.

Which is why they are NOT going to hear that case. It would change too radicly from the status quo.

Instead they WILL hear [i]Emerson[/i].  

And they will side for the defence.

And they will declare the 2nd to be a individual right and incorprorate it via the 14th Amendment to be binding on the states.

But herein lies the danger. It is entirely possible that even THIS conservitive court could succumb to the temptation of "ending the gun control debate once and for all" and practice a small amount of judicial activism.

And what could do is say that the right to bear arms is inalienable, or at least as close to it as your right to life and liberty are, which can be taken away only through due process during which you are protected by a presumption of innocence... and they will ALSO say that the anti-gun lobby is correct and the Militia Clause [i]is[/i] an anachronism and irrelevant. It IS possible to do that and still make a logical decision. And by doing so they would make it much more difficult for a case like [i]Haney[/i] which would repeal most Federal firearms law, to ever make it this far again.

If they choose this path, it would still render the gun ownership laws and regulations of places like New York, California, Illinois, New Jersey and DC unconstitutional. Things like NYC's permit system would be gone, so would Illinois FOID cards. But, apart from the law in question, making it a federal crime to buy a firearm while under a restraining order-which the Justice Department has never been happy about dealing with and will not miss- NO Federal laws would be touched.  For the federal government the status quo will remain.

But by saying that the Millita Clause is no longer relevent (and they don't have to actually SAY anything about it, they can write a decision without ever refering to it at all-ignoring it would have the same effect as denouncing it) it would NOT extend constitutional protection to Class III and other "military style" long arms, nor would it do anything to prohibit things like import bans or the high cap mag ban being inacted in the future by Congress. It would leave us black rifle owners right where we are now, at the whim of public opinion.

I know that there are at least some votes for a strict interpretation of the Constitution in Emerson. One that would include the Milita Clause and would keep alive the chances of a case like [i]Haney[/i] someday getting a sympathetic ruling from the Supreme Court. I don't know that there are [i]five[/i] such votes.

SCOTUS cannot (without [i]judicial activism[/i]) use [i]Emerson[/i] as a basis for 14th Amendment incorporation.  If it could, I'm certain that the 5th Circuit would have.  They can't because the statute in question is a Federal, not a State one.  The constitutionality of a [u]State[/u] or [u]local[/u] law must be at question before the Court can incorporate.

Personally, I think you're right about [i]Haney[/i].  SCOTUS will avoid it because it doesn't have the testicular fortitude to overturn GCA 68, much less the '34 NFA.  Ain't gonna happen.

I also expect them to deny cert. to [i]Emerson[/i].  The lower court was unanimous, and the U.S. [i]won[/i] (Emerson gets tried.)  There is no compelling need to review.

They'll dodge these two cases like they've dodged all the rest since '39.  

First, for the most part, I agree with you about Haney.  The SCOTUS doesn't seem to be of a mind to parse the phrase "a well regulated militia" and determine its applicability to the right granted to "the people".  Of course, it is possible that the court could hear Haney and decide that any weapon with any military significance or utility could be protected under the 2nd, but then subject any law alleged to be in violation of the RKBA to mere rational basis scrutiny.  Even under intermediate scrutiny, most gun laws would still hold up unfortunately.  We end up back at square one, right where we started before Haney.  OTOH, if the SCOTUS does hear Haney, there's no guarantees that they won't find the RKBA to be conditioned upon the relation ofthe RKBA to a "well regulated militia".

Now the thing about Emerson is that the court can hear it, decide the RKBA is an individual right and still not incorporate it through the 14th.  KBaker is absolutely right why they won't tread into the question of incorporation under Emerson, but even if Emerson is successful, under a subsequent case, its doubtful the court would hold the 2nd incorporated.  Not all individual rights are incorporated and this would allow the states to continue to regulate firearms within their borders.  Again, we go back to square one, with little real change from where we are now.  This is the path I'm betting on.

There is an alternative path to incorporation.  Congress can act to declare that the 2nd Amendment applies to the states.  It could do so through passing a law such as:
Citizens' Self-Defense Act of 2001 (H.R. 31)
http://[url]thomas.loc.gov/cgi-bin/query/z?c107:h.r.31:[/url]

and stating that Congress has the power to do so through the 2nd Amendment.  This would change the playing field drastically.  All courts must operate with the presumption that acts of Congress are constitutional, which in effect means that the burden of proof will be upon the opposition.

Snowball + Hell = chance.

Elaborate, please.

Snowball + Hell = chance

"That bill has a snowball's chance in Hell of getting passed."

My money is on SCOTUS.  To Show.

Why?  The meat of the bill is as follows:



Something like 90% of the American public believe that there is a right to self defense.  Even the anti-gunners keep trying to tell us that they are not against "law abiding" citizens owning guns for security.  It would be hard for them to work against this.  I predict that this bill could easily pass the House of Representatives, with Republican and Democratic support, especially if our NRA worked for something positive instead of always fighting a rearguard battle.  The Senate would be more difficult, but it could be done.  I suspect that the President would sign it.  The state and local laws that would likely be found in violation would be:
1) Washington D.C.'s ban on loaded firearms.
2) D.C.'s and Chicago's handgun ban, especially if challenged by a disabled or elderly person.
3) New York State's 6 month licensing procedure for handguns.

I agree with your views on the Supreme Court option, but we need to start being more aggressive and retake lost ground legislatively, rather than just trying to stop new bans.

I'll second the snowball's chance in hell vote. Citing your "meat of the bill" as justification.

Glad to hear that we have already surrendered before the battle began.

Why did you even bother to try to fight for CCW in Wisconsin?  CCW is a much harder sell than this bill, IMHO.

At this point, I'd settle for any laws being repealed or nullified.  Any ray of hope.  Any.

I just want to own (or better yet, build) a subgun and pay for it what it's really worth, not the artificial government induced scarcity price.  And not worry about having JBTs crashing through my door wielding subguns that they never paid a $200 tax on or waited months and months for "approval" to get.

Because the job of the politician isn't to do what's right, it's to do whatever is necessary to keep getting re-elected.  And this bill would be the kiss of death.  The anti-gun forces would spin the befreekingjezus out of it and they know they'd have a hard time getting elected dog-catcher afterward.  

They aren't going to pass it.  I doubt they'll even debate it much.  It's radioactive from a political perspective.  SCOTUS, since it doesn't have that pressure, can do something with little fear.  Politicians are recognizeable for their large open palms, lack of vertebrae, and the large yellow stripe on their backs.  

Ninety percent of the population might be in favor of "self defense," but the soccer-mom contingent is virulently anti-gun when inspired.  Legislators fear soccermoms more than thugs with "assault weapons."  This isn't a "nibble," this is a chunk they'll choke on, and they know it.

KBaker,

How do you then explain the success that we have had with getting concealed carry legislation passed?  Poll after poll shows much less support for concealed carry than for keeping a gun in the home.  Yet, we have expanded concealed carry to 34 states, and I predict we will add a few more in the next few years: Colorado, Kansas, Minnesota, Missouri, Nebraska, Ohio and Wisconsin.  In all of these states, CCW is being held up by only a few recalcitrant legislators or a chief executive.

[Edited to add:  In every one of the CCW battles, the gun banners have spun the debate to claim that child molesters will be able to carry Uzis into schools.  They have done this with the willing help of the media, yet we have usually prevailed.]

If we don't try, we will never know.  In any case, my point is not to debate the merits or success of this particular bill.  To steer this back to the topic, I wish to point out that Congress is a co-equal branch of the government, whose actions and pronouncements, especially through legislation, can have a large impact on the actions of the court.

Concealed carry legislation passes at the state level.  And those fights have been tough and dirty.  This bill is Federal.  The fight gets dirtier and the money gets much, much bigger.  The [i]NATIONAL[/i]  media gets involved.  Politicians do two things when ABC, NBC, CBS, CNN, FOX, et. al. point the bright lights at them - smile and open their arms, or run like hell.  Gun rights are still a "run like hell" topic.  The Democrats are backing off, and for that matter so are the Republicans, Ashcroft notwithstanding.

You might be right, but I'm not betting the farm on it.

The FOPA of 1986 wrote this into the US Code:



I cannot find the text of the FOPA on the web, but I seem to remember that its preamble talked about the Second Amendment rights of gun owners.

However, no state or locality has challenged this law, and probably will not.  But if any did...