Wednesday, November 14, 2007

Parker/Heller stalled out

If you haven't heard, the USSC has stalled out on deciding cert. More brilliant legal minds than mine won't speculate on what this means. Since I am not so smart, I WILL speculate.

The justices DID discuss the Heller case, but reached no decision on cert. It could because:

1. Not enough consensus on the question presented. Both sides are seeking cert, but on different questions. DC frames it as "allowed to band handguns while allowing others," and the Heller team frames it as "does 2d Amendment protect functional self-defense firearms in the home."

2. Not enough confidence in how the court would rule in the end. Since only four justices are needed to grant cert, it may be that four pro-Heller and four anti-Heller justices are not sure if the ninth justice would side with them. No one wants to be on the losing side. Since the stakes are so high the pro- and anti- sides would want to be sure they would prevail in the final opinion. Popular opinion seems to think that the swing justice is Kennedy. It could be that the justices are feeling out Kennedy to see what he would do. Kennedy may not be sure of what he wants to do.

3. Not enough briefing on cert. This is a laugh, but it is possible that the numerous cert petitions and amicus briefs missed something and the justices want to research the missing issue before rendering a cert decision.

4. Want more time. The simplest explanation is that the justices didn't get enough time to discuss the case (I understand it was last that day) and want to think about it some more before deciding on cert.

There you have it. Tune in after Nov. 26 (the earliest date for another cert decision) and we'll see what happens.


Post a Comment

<< Home

Locations of visitors to this page