Too good to check: Scalia writing the majority opinion in the upcoming Second Amendment case?

posted at 3:25 pm on June 23, 2008 by Allahpundit

Just a theory, but so tantalizing that it warrants a post all its own.

There is very little information that can be gleaned with confidence about the authorship of the remaining opinions from the Term.

It does look exceptionally likely that Justice Scalia is writing the principal opinion for the Court in Heller – the D.C. guns case. That is the only opinion remaining from the sitting and he is the only member of the Court not to have written a majority opinion from the sitting. There is no indication that he lost a majority from March. His only dissent from the sitting is for two Justices in Indiana v. Edwards. So, that’s a good sign for advocates of a strong individual rights conception of the Second Amendment and a bad sign for D.C.

Indeed: Scalia and Thomas are evidently already on record as supporting an individual rights reading of the Amendment, and from what observers could tell from the oral argument back in March, Anthony Kennedy was himself leaning that way. The decision should drop tomorrow morning so take advantage of the slow news this afternoon and read Mike O’Shea’s primer at Concurring Opinions to prepare yourself. A big win on the threshold question of whether the right is individual or collective is already assumed; the key subsidiary question is whether the Court will limit the individual right to “private purposes” (e.g., home defense against burglars), which would conceivably allow for regulations limiting ownership to handguns and rifles, or whether they’ll expand it to include “civic purposes” (e.g., resisting martial law), which could guarantee a right to possess automatic weapons(!). Another question per O’Shea: Is “keep and bear” a single right or are they two separate rights? The constitutionality of concealed carry laws may turn on the answer.

Anyway, big shakes. Exit question for legal eagles: Why would Roberts, who’s presumably in the majority here, assign an opinion this momentous to Scalia instead of to himself? Is it just an act of deference on his part to a justice who may care more about this issue than he does? Is he trying to leverage Scalia’s rhetorical skills, knowing that this is going to be pored over like few other opinions in the last 10 years? Or is there something else to it? What’s strange is that, per O’Shea, there’s likely to be a majority on the threshold question but then all kinds of splits within the court on the subsidiary questions — and Scalia, being more of an absolutist on this issue, is unlikely to represent the majority on all or most of those subsidiary questions. Roberts himself, or Kennedy, would seem to be a better bet. Is that a hint that maybe the Court’s not going to reach those subsidiary questions at all, and will content itself with a simple ruling on the individual rights issue?


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Comments

Whee! Mandatory gun ownership!

misterpeasea on June 23, 2008 at 3:27 PM

My legs are tingling.

Dr.Cwac.Cwac on June 23, 2008 at 3:28 PM

I bet it drops on Thursday. There’s still 7 left, so they’re going to have to split it out over two days. They’re probably saving that one until the end.

Big Bad John on June 23, 2008 at 3:29 PM

Big Bad John on June 23, 2008 at 3:29 PM

They should treat it like a new CD release. Drop it at 12:01 AM Tuesday morning.

Dr.Cwac.Cwac on June 23, 2008 at 3:32 PM

Scalia needs to get on a health regimen.

We need this man around for many years.

pseudonominus on June 23, 2008 at 3:33 PM

Is he trying to leverage Scalia’s rhetorical skills, knowing that this is going to be pored over like few other opinions in the last 10 years?

That would be my guess. Scalia is without question the best conservative writer on the Court.

I have to admit that even the prospect of Scalia authoring the big 2nd Amendment opinion gives me a funny feeling — in my pants.

Blacksheep on June 23, 2008 at 3:33 PM

Have to wait and see!

**wrings hands**

upinak on June 23, 2008 at 3:33 PM

Scalia ahould be writing all of the opinions. He’s hands-down the smartest guy on the court.

Cicero43 on June 23, 2008 at 3:36 PM

Scalia? Wonderful! I’m not about to get all up in Chocolate City withouts my strap, b!tches.

/sarc

Dr.Cwac.Cwac on June 23, 2008 at 3:36 PM

Cicero43 on June 23, 2008 at 3:36 PM

Um, dude? Do you remember Roberts’ confirmation hearing? He didn’t even need notes.

Dr.Cwac.Cwac on June 23, 2008 at 3:37 PM

Ohpleaseohpleaseohplease…

I cannot begin to tell you how nervous I am about the Heller decision. After they gave the Gitmo decision, I don’t presume to know the mind og the Supreme Court.

Does that make me a judicial agnostic?

Badger in KC on June 23, 2008 at 3:38 PM

Mike O’Shea was my Civil Procedure professor and he’s an avid gun collector. If anyone is rooting for this case to come out on individual rights, it’s Prof. O’Shea. Good to see him getting some press.

Meric1837 on June 23, 2008 at 3:38 PM

I don’t presume to know the mind og the Supreme Court.

Uhh, yeah. “Og” is supposed to be “of”. And I used to be an English major.

Badger in KC on June 23, 2008 at 3:39 PM

*Waits in anticipation of Federally issued bazooka*

Dash on June 23, 2008 at 3:40 PM

How is that bad news for DC? Crime is going to plummet.

MadisonConservative on June 23, 2008 at 3:40 PM

Keep hope alive! Change we can believe in! Su se pueda! Vermillion possum!

Akzed on June 23, 2008 at 3:42 PM

Imagined internal thinking of conservative justices: “You Liberal whackos, you want to give foreign terrorist and combatants the rights of citizens huh? Ok, we’ll arm the whole country!”

TheBigOldDog on June 23, 2008 at 3:42 PM

You’re Obama’s “Gun-Clinging, Jesus-Loving, Immigrant-Hating Racists!”

My legs are tingling.

Dr.Cwac.Cwac on June 23, 2008 at 3:28 PM

You are a Dr., be reminded. Control yourself :)

Entelechy on June 23, 2008 at 3:42 PM

How is that bad news for DC?

MadisonConservative on June 23, 2008 at 3:40 PM

The people of DC will benefit, but the anti-gun bureaucrats will find it bad news.

amerpundit on June 23, 2008 at 3:42 PM

Dr.Cwac.Cwac on June 23, 2008 at 3:32 PM

Do we have to sit on the concrete too?

upinak on June 23, 2008 at 3:42 PM

MadisonConservative on June 23, 2008 at 3:40 PM

Tru dat, playa.

Dr.Cwac.Cwac on June 23, 2008 at 3:43 PM

How is that bad news for DC? Crime is going to plummet.

MadisonConservative on June 23, 2008 at 3:40 PM

A society that carries, is a polite society! :)

upinak on June 23, 2008 at 3:44 PM

Anyway, big shakes. Exit question for legal eagles: Why would Roberts, who’s presumably in the majority here, assign an opinion this momentous to Scalia instead of to himself?

I believe Roberts promised to bring consensus to the court by trying to get less 5-4 decisions and more majority opinions. Scalia is overdue for an opinion.

William Amos on June 23, 2008 at 3:45 PM

Regardless of what any Supreme Court decision says, I will remain armed in my own home. When the 2nd Amendment is so pigeon-holed that it becomes meaningless, its true meaning and purpose will become known. Supreme Court decisions notwithstanding.

OhEssYouCowboys on June 23, 2008 at 3:45 PM

We should not get up in the air about this until we see the decision. And we should also try to remember that no matter what the ruling is, Washington D.C. is NOT a state and therefore if the D.C. gun ban is upheld, it no more applies to the 50 states than the original ban applied to the 50 states.

The Feds have special powers in Washington D.C. that do not apply to the States of the Union. See Article 1, Section 8, clause 17, known as the “District clause,” to verify this.

Clause 17 reads in part, as follows:

To exercise exclusive Legislation in all Cases whatsoever, over such District…

Maxx on June 23, 2008 at 3:45 PM

upinak on June 23, 2008 at 3:42 PM

Yep. Make sure you bring the following:

Sleeping bag
2 bottles of water (tap preferably; not that elitist Perrier stuff)
2 cans of Red Bull
Some type of jerky (gotta have protein)
Plastic bucket to pee in

Ted Nugent will be rocking a free concert all night long!

Dr.Cwac.Cwac on June 23, 2008 at 3:47 PM

Hmmmm, I’m not getting too excited…been bummed out before ala Gitmo and such but either way, tomorrow I’ll carry “Snuffy” my CC partner of choice in celebration or mourning….

MNDavenotPC on June 23, 2008 at 3:49 PM

**wrings hands**

As am I.

Bob's Kid on June 23, 2008 at 3:50 PM

Too good to check: Scalia writing the majority opinion in the upcoming Second Amendment case?

So far that sounds like good news.

I wonder if Chris Matthews has anything running up, or down his leg? Never mind!

byteshredder on June 23, 2008 at 3:54 PM

Entelechy on June 23, 2008 at 3:42 PM

Yep. Damn proud of it, too.

Middle aged, educated, home owning, heterosexual, married, parent, employed, Christian, European descent 4th generation American, GUN OWNING…….Yep. I am the cause of the world’s problems. Come join me, will you not? For I am Dr.Cwac.Cwac of the HotAir-ians! Wait a minute. That doesn’t sound.

I’ll just stick with “I am John Doe.”

Dr.Cwac.Cwac on June 23, 2008 at 3:55 PM

HOOT! I’ve been expecting a 3X or 4X run up in gun prices if Barry gets elected. This might mean I can afford that orginal 1896 44-40 afterall.

Go Antonin!!!!!!!!

I don’t know if anyone caugh Scalia on Charlie Rose the other night but it was great.

My favorite part of the interview is when Scalia asked why the hell would judges know anything more then the citizens when it comes to abortion and gay marriage. Rose didn’t quite like the ‘leave-it-up-to-the-people’ argument.

Limerick on June 23, 2008 at 3:56 PM

Why would Roberts, who’s presumably in the majority here, assign an opinion this momentous to Scalia instead of to himself?

Probably because it will be 5-4 and Roberts wants more court unity. He doesn’t want to be the headline justice on a divisive opinion.

indythinker on June 23, 2008 at 3:58 PM

In Britain they took away the guns, and now they’re talking about banning large knifes. I’m just wondering about Brits with martial arts training. Will they have to chain one hand to their waist? Just cuffed ankles for kickboxers?

RBMN on June 23, 2008 at 3:59 PM

This is a potential lose-lose for the left. A strong pro-Second Amendment ruling is a loss for them, obviously. But an anti-Second Amendment ruling will enrage a lot of people and make guns a major isse in this years elections.

Since the court is an intensely political body I predict that we’ll see a ruling which does not change much. The DC law will be struck down, but in a fashion which does not touch other gun laws.

flenser on June 23, 2008 at 3:59 PM

RBMN on June 23, 2008 at 3:59 PM

Amazing. I wonder how long before the libs realize that rocks need to be licensed too.

Limerick on June 23, 2008 at 4:00 PM

If Roberts is allowing Scalia to write the decision, it may be because Roberts is getting his desired narrow opinion which will not define a standard of review. He stated as much during oral arguments. I would tend to believe this is a benefit as I doubt a majority would concur with a strict standard of review & it will allow future cases to be argued on their merits.

clancy_wiggum on June 23, 2008 at 4:03 PM

Is that a hint that maybe the Court’s not going to reach those subsidiary questions at all, and will content itself with a simple ruling on the individual rights issue?

That’s probably a pretty safe bet. The Court won’t decide issues that have not been raised.

AZCoyote on June 23, 2008 at 4:04 PM

Scalia should be writing all of the opinions. He’s hands-down the smartest guy on the court.

He is an intellectual bad*ss!

Spirit of 1776 on June 23, 2008 at 4:12 PM

I’m not partying yet, but I think I will head over to Wishing Well for some balloons and streamers.

I need a bunch of small balloons to tape to targets anyway.

Good range day yesterday with the FIL (Green Beret). My .45 is almost a tack-driver now.

Looking forward to many more…

Merovign on June 23, 2008 at 4:12 PM

Always remember that the Court is a completely political body, not a legal one. I’m sure there are five votes there to ban all guns, but that won’t happen because of the political implications this fall.

flenser on June 23, 2008 at 4:14 PM

I would tend to believe this is a benefit as I doubt a majority would concur with a strict standard of review & it will allow future cases to be argued on their merits.

That’s probably the best we can hope for. I can’t see even Roberts going along with a Second Amendment with teeth, let alone Kennedy.

flenser on June 23, 2008 at 4:17 PM

The decision should drop tomorrow morning …

No, tomorrow is Tuesday, and the court’s next decision day is Wednesday. So Wednesday is the soonest you could get a decision.

paul006 on June 23, 2008 at 4:25 PM

SCALIA 2012!

I really had nothing to say………

ThePrez on June 23, 2008 at 4:37 PM

Yep- this is almost certainly going to be a narrowly applied decision. I don’t expect any groundbreaking, definitive ruling on the 2nd Amendment; we’ll be lucky if it will even carry over to the bans in NYC or Chicago.

Still, better than a loss but far short of what I’d like to see.

Hollowpoint on June 23, 2008 at 5:14 PM

Regardless of what any Supreme Court decision says, I will remain armed in my own home. When the 2nd Amendment is so pigeon-holed that it becomes meaningless, its true meaning and purpose will become known. Supreme Court decisions notwithstanding.

OhEssYouCowboys on June 23, 2008 at 3:45 PM

Yep, rulings against the 2nd amendment only increase its measure of importance and relevance, and vice versa.

FloatingRock on June 23, 2008 at 5:26 PM

After the Gitmo decision I have no confidnce tht the SCOTU will come down on the side of gun rights.

davod on June 23, 2008 at 5:31 PM

I am going to wait for the decision……..

Seven Percent Solution on June 23, 2008 at 5:48 PM

Maxx on June 23, 2008 at 3:45 PM

True. But if the Court writes a strong individual rights opinion, won’t people in the states have an argument that the second amendment should apply to them too? We really won’t know until we see the opinion.

bigbeas on June 23, 2008 at 5:58 PM

I say this is further ‘proof’ for my theory.

It’s based on a couple of observations:

1) The Justices are in it for the glory. They want to be remembered
2) I don’t think any of the current crop are tied to any ‘big name’ decisions (but I could easily be wrong). Even if they are, it’s obviously not common knowledge.
3) Some of them will be leaving soon.

Based on all of that, I’m going for a 9-0 ‘Individual Right’ with a majority “It says what it means and it means what it says” winner take all decision. Now that would be one that people (and not just legal types) would be talking about for generations.

But since it’s pure speculation on my part I’ll be happy if we just get something positive.

KCSteve on June 23, 2008 at 6:09 PM

Could this be a time to celebrate? I’m going to the market to buy a huge porterhouse steak. Then I’m gonna pull a nice bottle of red from the rack. If what is written above becomes true, then tomorrow at this time will be truly a time to celebrate.

Zorro on June 23, 2008 at 6:10 PM

I feel warm and fuzzy inside…

Kaptain Amerika on June 23, 2008 at 6:25 PM

True. But if the Court writes a strong individual rights opinion, won’t people in the states have an argument that the second amendment should apply to them too? We really won’t know until we see the opinion.

bigbeas on June 23, 2008 at 5:58 PM

If the Court writes a strong individual rights opinion in spite of the District Clause for Washington D.C., then its logical those same strong individual rights apply to the states.

In other words, if the Feds lack authority to ban guns in those places where they are afforded plenary jurisdiction, such as Washington D.C., then they surly cannot ban guns where they DO NOT have plenary jurisdiction, and they do not have plenary jurisdiction in any of the Fifty-States.

Plenary: Full, entire, complete, absolute, perfect, unqualified. Mashunkashey v. Mashunkashey, 191 Okl. 501, 134 P.2d 976, 979.

Maxx on June 23, 2008 at 6:36 PM

oops…. surly = surely

Maxx on June 23, 2008 at 6:38 PM

Just one more justice and we’d have good decisions like this ALL the time.

Mojave Mark on June 23, 2008 at 6:44 PM

I live in DC and I can tell you that even the liberals in this town will privately tell you what a stupid idea it is to think criminals are going to obey a ban on guns.

DCJeff on June 23, 2008 at 6:48 PM

Based on all of that, I’m going for a 9-0 ‘Individual Right’ with a majority “It says what it means and it means what it says” winner take all decision. Now that would be one that people (and not just legal types) would be talking about for generations.
KCSteve on June 23, 2008 at 6:09 PM

Best brace yourself for disappointment. They’ll find a way to weasel out a decision against the DC ban but is too narrow to be a significant precident. That’s how they roll these days- just like a hockey rink: no balls.

Hollowpoint on June 23, 2008 at 6:57 PM

After the Gitmo decision I have no confidnce tht the SCOTU will come down on the side of gun rights.

Not sure how that follows. I mean, unless you’re suggesting that the court makes decisions based on how you’ll like them. The Heller case is strong, and that it’s near-impossible that 5 judges will willfully misread the plain-as-day text: “the right of the people to keep and bear arms shall not be infringed.”

Mark Jaquith on June 23, 2008 at 7:11 PM

The longer this goes on, the more I think this has been a “lobby Kennedy” time. And it makes me think we could get a 5-4 decision for an individual right, but at the same time a 5-4 decision in the other direction for “rational basis review”.

Dark clouds among the silver linings – that’s my job!

eeyore on June 23, 2008 at 7:11 PM

Lord, just Let Scalia or Thomas wrote the majority opinion

Gatordoug on June 23, 2008 at 7:33 PM

Why would Roberts, who’s presumably in the majority here, assign an opinion this momentous to Scalia instead of to himself?

It does seem curious to me. I mean, why Scalia? What would an Italian guy from New Jersey know about guns, for goodness sakes? (Rim shot.)

radjah shelduck on June 23, 2008 at 7:33 PM

he’s actually a duck hunter from the bronx

wildweasel on June 23, 2008 at 8:11 PM

The Heller case is strong, and that it’s near-impossible that 5 judges will willfully misread the plain-as-day text: “the right of the people to keep and bear arms shall not be infringed.”

Mark Jaquith on June 23, 2008 at 7:11 PM

That’s incredibly naive. The Supreme Court has a long history of willfully misreading plain-as-day text as it suits their political stance and desired outcome.

Hollowpoint on June 23, 2008 at 9:40 PM

Amazing. I wonder how long before the libs realize that rocks need to be licensed too.

Limerick on June 23, 2008 at 4:00 PM

No can do. Palestinians need rocks to throw at Israelis. It’s a civil right, donchaknow?

platypus on June 23, 2008 at 9:45 PM

i’ll wait for the decision and read the opinions first …

then, i will sit down and figure out if i am an outlaw or will be an outlaw … and if i am to be an outlaw, how much of one i will be.

AZ_Redneck on June 23, 2008 at 10:47 PM

The Heller case is strong, and that it’s near-impossible that 5 judges will willfully misread the plain-as-day text: “the right of the people to keep and bear arms shall not be infringed.”

Mark Jaquith on June 23, 2008 at 7:11 PM

… somewhere in the constitution they “found”

– the right for a mother to abort her baby
– the legitimacy of the federal department of education
– legitimacy for a federal bank
– that terrorists have rights

… don’t hold your breath.

AZ_Redneck on June 23, 2008 at 10:51 PM

– the right for a mother to abort her baby
– the legitimacy of the federal department of education
– legitimacy for a federal bank
– that terrorists have rights

… don’t hold your breath.

AZ_Redneck on June 23, 2008 at 10:51 PM

-That citizens only have a right to private property so long as it can’t be used by somebody else to generate additional tax revenue for the government.

FloatingRock on June 24, 2008 at 2:42 AM

-That citizens only have a right to private property so long as it can’t be used by somebody else to generate additional tax revenue for the government.

…And I think that that ruling may have been the next progression on the slippery slope that was pioneered by civil-forfeiture laws.

FloatingRock on June 24, 2008 at 2:47 AM

Whee! Mandatory gun ownership!

misterpeasea on June 23, 2008 at 3:27 PM

If that’s the case is it a universal right like health care? ‘Cause if so I’ve been eyeing those Mauser rifles in America’s First Freedom Magazine, there are a couple of Glocks and Smiths I’ve been coveting for a while now and, what the heck I’m a sentimental guy, I liked the M4 rifle and the Chek made Kalashnikov I carried in Afganistan too.

Wait, I’ll have to get a new gun safe . . . is that covered under Universal Gun Ownership? If so I might have to tear out the back all of my basement and have a walk in gun safe, yeah.

srhoades on June 24, 2008 at 10:00 AM

Well….whatever they ‘rule’, it has absolutely no force, even if they ‘rule’ the way I would like. Their opinion may carry weight with the executive and legislative branches, and spur change in the law.

LimeyGeek on June 24, 2008 at 11:52 AM