Clayton Cramer Reiterates My Question

In his post Why The NRA May Be Right To Not Rush a Second Amendment Case to the Supreme Court

There are a lot of gun rights activists who are upset with NRA’s reluctance to go to court with a Second Amendment case. These recent decisions by the Supreme Court are strong arguments for why that reluctance is sensible. In the University of Michigan law school case, the Supreme Court decided that even though the Fourteenth Amendment is explicit that there will be no discrimination based on race, discrimination based on race, as long as it’s not made too explicit, is okay. In the other case, the Supreme Court ignored precedent, rewrote some of Colonial America’s sodomy laws, and then used due process and a lot of armwaving to strike down a state law of the sort that has been present for centuries–and then discounted everything more than 50 years old as not particularly relevant to their decision. And you suddenly are going to trust the Supreme Court to make a decision about the meaning of the Second Amendment? All your arguments in favor of an individual right are based on:

1. Historical evidence that will be ignored, just like colonial Connecticut and Plymouth’s homosexual sodomy laws were ignored.

2. Precedents of both federal and state supreme courts that are largely more than 50 years old.

3. Notions of individual rights that are even older.

Against this, the gun control side has the same elites that wanted the sodomy law struck down. I think the NRA may be right not to rush to the Supreme Court of Urban Elitism.

I disagree. I don’t think that waiting will do us any good. I think that the Silviera case is the most cut-and-dried violation of the Second Amendment extant, and I think it’s the perfect one with which to overturn U.S. v Cruikshank and Presser v. Illinois. But he’s right: SCOTUS could very well ignore historical evidence. It very well could ignore older precedents and uphold Cruikshank. It could ignore that the right to arms was held as an individual one since before the ratification of the Constitution. It’s a hard question to consider: Do individual citizens have a Constitutionally guaranteed right to keep and bear weapons of military usefulness? And are the States restricted by the 14th Amendment from infringing on this right? Yes or no?

SCOTUS might very well answer: “No.” It might (probably would) be a 5-4 decision, and the dissents might be philosophical works of art.


That would be, to me, the signal that the system is broken beyond repair.

Right now, I still believe the system can work as designed. I think, though, that if SCOTUS can take it upon itself to render meaningless a part of the Bill of Rights that is explicit, then the Constitution is, for all intents and purposes, null and void.

I’ve often wondered if SCOTUS has denied cert. on Second Amendment cases just because the Justices couldn’t bring themselves to be that blatant in violating the Constitution. Easier to avoid than to do that.

I’m betting about 60-40 that they’ll deny cert. to Silviera, too. THEN where will that put us? In one circuit the right to arms will be legally recognized, but in another (the one where I live) it will not.


Given the newness of my Comments, I’m going to copy and reply here:

AlphaPatriot responds:

I’m going to quote an earlier post on my website because I think it’s relevant:

The other issue that mitigates against granting cert in the Silveira case is that the issue involved was a state assault weapons ban and Emerson was a Federal statute. Just two different ways of reaching a result. What you need to understand is that the Supreme Court is not in the business of doing justice in an individual case, only if taking the case will affect the law. And that case is not necessarily about whether there is an individual right, rather, about whether it’s a “reasonable regulation.” In other words, if the ban would likely be upheld on other grounds, even if the Supreme Court found an individual right, it is unlikely that it would take the case.

However, the issue that mitigates for granting a writ of certiorari is the fact that two Circuit Courts are in disagreement on a key issue. This often prompts SCOTUS to step in and settle the dispute.

I fully expect them to dodge if they do grant cert. The 5th Circuit certainly did – ruling as narrowly as the could get away with and avoiding addressing anything outside the question at hand. The 9th did not. They stated plainly that the right was not individual, and that individuals had no standing in bringing the question before the Court.

Somehow, I don’t see how SCOTUS can let that slide given the decision in Emerson.

But you might be right – they very well could decide that it’s a “reasonable regulation” of an individual right. That, I think, would be a not-quite-phyrric victory for gun owners. I’m not a lawyer, nor do I play one on TV, but I’ve read a LOT of case law concerning the right to arms. Since Silviera appears to hinge on whether or not the right is indivdual (as that’s how it was decided: “The district court dismissed all of the plaintiffs’ claims. Because the Second Amendment does not confer an individual right to own or possess arms, we affirm the dismissal of all claims brought pursuant to that constitutional provision” citing Hickman v. Block.) At a minimum it would mean remanding the case to the 9th Circuit for re-hearing on the basis that Hickman was in error. THEN the 9th would just find it a “reasonable regulation.”

Let’s be honest here: I’m not expecting a Brown v. Board of Education-like earth-shattering decision, should they decide to hear it at all.

But I can hope.

Oh, and go read AlphaPatriot’s older post on this topic. Very good.

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