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DC v Heller


vcczar
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In this case, the Supreme Court ruled 5-4 that the 2nd Amendment protects an individual's right to own a firearm unconnected to service with a militia. What do you think would have happened if it went 4-5?

This is one issue with the supreme court. A 5-4 law really isn't settled because it could have taken just one justice to have settled the law a the other direction. It's just random luck with whom the judges are. Maybe all court cases that aren't unanimous should be reheard every 25 years or something. This would be independent of a new court case that could overturn one of these or even overturn a unanimously decided case. 

Anyway, I'm more interested in what you think Congress and the states would have done if the right to own a firearm required service in the militia. Would there have been gun grabbing? What do you think would have occurred? 

 

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Well, Heller is settled law in the legal sense for now as it is the ruling precedent (as backed up by McDonald and maybe New York State Rifle & Pistol Association later this year). Though nothing is really permanent, even unanimous decisions.

 

Blue states would have taken more extreme measures. Maybe not to the extent of going door to door (though that is a threat if such a construction of the constitution is accepted) but strict bans on many currently legal weapons. From red states, you would probably see more urgency to nullify federal gun laws. That is already happening today but at a slower pace.

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I was just thinking about that in the context of Roe v Wade potentially being overturned, because in the case Planned Parenthood v Casey, there was a majority to overturn Roe until Justice Kennedy switched his vote. Famous for being the swing vote, folks used to say, "It's Justice Kennedy's world, we're just living in it", which does not lend a sense of stability to Supreme Court rulings. 

With the Heller case, I actually do imagine it would resemble Roe. I think the backlash to the idea that the second Amendment does not protect the right to use firearms in the context of self-defense would become a similarly energizing issue for the originalist judiciary movement. I think state legislatures would try to find creative workarounds or just outright challenge the ruling on its face in the hopes of it getting overturned. Organizations like the Federalist Society would see Heller as a similar rallying cry as Roe was, and it would become an implicit litmus test for Republican-appointed judges. I don't think it would have survived up until this court, but even if it somehow had, I would be fairly confident that this current court would overturn Heller if it had gone the other way. 

Another case I think would be funny to see is how folks think overturning Roe would pave the way to overturning Obergefell, which I find dubious, but you can almost rest assured that Chief Justice Roberts, who ruled against Obergefell in 2015 would switch sides without a second thought to preserve it in 2022. 

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24 minutes ago, ShortKing said:

Another case I think would be funny to see is how folks think overturning Roe would pave the way to overturning Obergefell, which I find dubious, but you can almost rest assured that Chief Justice Roberts, who ruled against Obergefell in 2015 would switch sides without a second thought to preserve it in 2022. 

100% agree with this assessment. 

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48 minutes ago, vcczar said:

Anyway, I'm more interested in what you think Congress and the states would have done if the right to own a firearm required service in the militia. Would there have been gun grabbing? What do you think would have occurred? 

There would have little to no impact.  Congress would have continued to leave the matter to the states.

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4 hours ago, ShortKing said:

Another case I think would be funny to see is how folks think overturning Roe would pave the way to overturning Obergefell, which I find dubious, but you can almost rest assured that Chief Justice Roberts, who ruled against Obergefell in 2015 would switch sides without a second thought to preserve it in 2022.

Roberts switching would still just make it 4-5, unless Kavanaugh or Gorsuch flips (which is likely, I grant you). I don't think people are wrong to fear the worst when people were told for so long that nothing would happen to Roe. And we see where that led to. It's about working to make sure that we don't get to that point. 

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21 minutes ago, MrPotatoTed said:

I would not agree to the 25 year idea. We need stability — not completely upending our entire system of laws just because it’s the day on the calendar where we do that.

 

As a law student though, such a scheme would further increase my earning potential 🤣

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2 hours ago, Hestia said:

Roberts switching would still just make it 4-5, unless Kavanaugh or Gorsuch flips (which is likely, I grant you). I don't think people are wrong to fear the worst when people were told for so long that nothing would happen to Roe. And we see where that led to. It's about working to make sure that we don't get to that point. 

I actually don't think any of the Trump justices (Kav, Gorsuch or ACB) would vote to overturn Obergefell, I don't even think they have the votes to grant cert to a case challenging Obergefell. I don't know who told folks that nothing would happen to Roe, there's been a 50 year legal movement with the explicit mission to overturn Roe v Wade. I do agree though, I get why right now things feel unsettled for sure, and I don't begrudge anyone for thinking there's a legitimate threat to Obergefell or even Griswold. I just personally, as an amateur Court watcher, think that those cases are on firmer ground than Roe, in the case of Obergefell, much firmer ground, and I don't really think they're in any danger. 

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4 minutes ago, ShortKing said:

I actually don't think any of the Trump justices (Kav, Gorsuch or ACB) would vote to overturn Obergefell, I don't even think they have the votes to grant cert to a case challenging Obergefell. I don't know who told folks that nothing would happen to Roe, there's been a 50 year legal movement with the explicit mission to overturn Roe v Wade. I do agree though, I get why right now things feel unsettled for sure, and I don't begrudge anyone for thinking there's a legitimate threat to Obergefell or even Griswold. I just personally, as an amateur Court watcher, think that those cases are on firmer ground than Roe, in the case of Obergefell, much firmer ground, and I don't really think they're in any danger. 

https://www.foxnews.com/politics/trump-supreme-court-overturning-roe-v-wade

Trump on Supreme Court overturning Roe v. Wade: 'There's nothing happening there'

Conservatives have claimed for some time that liberals were overreacting and that there was no real threat to Roe v. Wade. I don't think that there is an explicit threat to Obergefell now, nor to any of these other cases being mentioned, but I'm not going to go around telling people that they shouldn't be worried about it. We've been told not to worry before and then, it turns out, we should've been worried. I agree Obergefell is on much firmer ground as well, and I very much hope it remains that way. 

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20 minutes ago, Hestia said:

Trump on Supreme Court overturning Roe v. Wade: 'There's nothing happening there'

Haha that’s fair, but I wouldn’t call Trump the best standard bearer for the conservative legal movement. The movement to overturn Roe has been decades in the making, but it’s more than possible that my interest and casual participation in the movement leads to an outsized view of how familiar the average voter would be with it.

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1 minute ago, ShortKing said:

Haha that’s fair, but I wouldn’t call Trump the best standard bearer for the conservative legal movement. The movement to overturn Roe has been decades in the making, but it’s more than possible that my interest and casual participation in the movement leads to an outsized view of how familiar the average voter would be with it.

I mean, it's clear that there's been a movement to get rid of Roe, but conservative politicians have generally liked to have their cake and eat it too on the issue. They like to throw read meat to the base by saying they'll get rid of it, then tell liberal candidates that they're overreacting when they say that Roe is going to be overturned because they know it would energize the Democratic base. I just used Trump as one example since it was the most prominent. You could also see it when Kavanaugh and others told the Judiciary Committee (in various ways) that they would 'respect precedent' around the issue. They knew saying much else would turbo-charge opposition and force pro-choice moderate Republicans like Collins and Murkowski to take a bigger stand. There's been a lot of lying and smoke around the issue.

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2 minutes ago, Hestia said:

I mean, it's clear that there's been a movement to get rid of Roe, but conservative politicians have generally liked to have their cake and eat it too on the issue. They like to throw read meat to the base by saying they'll get rid of it, then tell liberal candidates that they're overreacting when they say that Roe is going to be overturned because they know it would energize the Democratic base. I just used Trump as one example since it was the most prominent. You could also see it when Kavanaugh and others told the Judiciary Committee (in various ways) that they would 'respect precedent' around the issue. They knew saying much else would turbo-charge opposition and force pro-choice moderate Republicans like Collins and Murkowski to take a bigger stand. There's been a lot of lying and smoke around the issue.

I do agree that the modern confirmation process has basically just become a game of who can say the least about their jurisprudence. Every judicial nominee has to say they respect precedent while winking to their base that they’ll still overturn Roe or Citizens United depending on what side they’re on.

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