Big Sky Cairn

As previous posts might suggest, I proudly exercise my right to keep and bear arms. Thus, I will be up early tomorrow to find out how the Supreme Court ruled in the case District of Columbia v. Heller.

There is much speculation that Justice Antonin Scalia will be writing an opinion for the Court. However, it is important to remember that even though Scalia is a conservative, this does not mean that the Supreme Court will decide in favor of Heller. Some SCOTUS watchers are speculating that Heller could be decided using the seldom utilized “plurality opinion.”

A plurality opinion is the opinion from a group of justices, often in an appellate court, in which no single opinion received the support of a majority of the court. The final decision is determined by the opinion which received support from a mere plurality of the court. That is, the plurality opinion did not receive the support of half the justices, but received more support than any other opinion.

So, what is a plurality opinion?

It takes five votes for an opinion to become a binding “Opinion of the Court.” When there is no one majority opinion, the Court has generally embraced what is known as the Marks rule, after Marks v. United States, 430 U.S. 188 (1977). The Marks rule is (essentially) that if there is no one majority opinion for the Court, the controlling opinion for future cases is the narrowest decision in favor of the winning side. As the Court put it in Marks, “When a fragmented Court decides a case and no single rationale explaining the result enjoys the assent of five Justices, the holding of the Court may be viewed as that position taken by those Members who concurred in the judgment on the narrowest grounds.”

There isn’t any one “opinion of the Court” in such cases, but the lower courts must follow the narrowest opinion for the winning side as if it were the majority opinion. And in recent years, the Justices themselves have largely treated the controlling opinions under Marks as if they were majority opinions for purposes of stare decisis.

Can I get an example?

For example, on Monday the Supreme Court decided United States v. Santos, a case where the Marks rule applies. In Santos, a money-laundering case, the Court divided with four Justices on either side of the issue, and a concurrence by Justice Stevens in the result of Justice Scalia’s opinion, whose opinion was supported by three other Justices. In this case, Justice Stevens’ concurrence formed the narrowest basis for the decision, and thus under the Marks rule, is effectively the controlling opinion, even though all eight of the Court’s other Justices did not share his legal reasoning on the issue!

So, from what I can tell, a plurality opinion is not the binding f-off to the District that many NRA supporters would like. But it is also not the end because lower courts will use the majority opinion or the concurrence to decide future cases. And if said cases come before the Supreme Court, we might be able to get the five we need for a controlling decision.

Again, we do not know it will be a “plurality opinion” but there is a chance, so be forewarned. And I will be back at 10am EST tomorrow morning with the good/bad/indifferent news!

Most of the SCOTUS watchers I’ve been following expect nothing of the sort. They expect a clear win for Heller; but you’re right, there is no telling. I think confidence would be higher if the Justice Department hadn’t sent it’s minions to file an amicus brief on behalf of DC as a local entity …

If you have an explanation for that, I’d sure love to see it. The only reason I can see is the Republican administration doesn’t want gun-control taken off the table as an election issue. But they wouldn’t do that … would they?

I’m looking forward to all the good Montana Republicans losing their rational ability to whimper about ‘Obama gonna take yer guns’. It won’t mean that they’ll stop. It will just means they won’t make any sense any more. And that will happen even with a plurality decision leaning to Heller.

Either way, I’m predicting that this ruling won’t affect Montana negatively in the least, which truly is all I’ve ever cared about this issue you want everyone quivering over.

Excuse me, I meant to write “a plurality decision leaning to DC.”

(I suppose I should explain for your readership who don’t follow such things but instead rely on the BS panic bulletins of the NRA and of course, on BSCairn. There are two issues at stake. 1) The right to individual gun ownership. I’ll put ten dollars down right now that the SCOTUS upholds that. 2) The right of localities to restrict the nature of guns an individual can own. That’s the tricky one that could cause a plurality decision. If decided strictly for Heller, then what stops me from owning an M-1 Abrams (as if I don’t already, sheesh) ? However they rule on #2, Montana will not be affected. Our Constitution gives wide latitude to gun ownership, as in grants it as a universal right. The worst that will happen is that I have to mortgage my house a second time to buy my LAW rockets.)

Wulfgar-

If you’d really read my previous post on gun control, you would see that there is no panicking and no encouragement for others to shake in their boots about their second amendment rights. Instead, I encourage people to decide what is important to them, examine the facts and decide accordingly.

And one of those facts that you eschew in favor of partisan bickering is that during the 93rd General Assembly of the Illinois State Legislature, Barack Obama voted to allow the city of Chicago to punish people for defending themselves in their own homes.

The bill was SB 2165.

And the reason that I was so looking forward to Heller, is because for 130 years the Supreme Court has allowed us to languish in questions about an individual right to bear arms. Today, they said that I have a constitutionally protected one.

Kate, I’d written about Chicago area gun laws and Barack Obama well before this blog ever started. And the one thing I’ve said consistently is that I don’t a salient crap where politicians come down on issues they have no control over. As President, Barack Obama will have no control over gun rights. This is exactly what I’ve known for going on a year now. To be honest, that’s why I expected the SCOTUS to delay ruling on Heller until after the election. I’m glad they didn’t. Now we can focus of crap that actually matters as opposed to NRA fear-mongering.

But still, in your post up above there, you wail and gnash teeth about the scary liberal and his gun control record. You fail to acknowledge what has been all over the news this morning. Obama has pledged full support in defense of the Constitution, and the ruling of the SCOTUS as regards the 2nd Amendment. There are still a few of us, you see, who expect the system to work in the way it was designed. Guess what? It did.

Kate, I’d written about Chicago area gun laws and Barack Obama well before this blog ever started. And the one thing I’ve said consistently is that I don’t a salient crap where politicians come down on issues they have no control over. As President, Barack Obama will have no control over gun rights. This is exactly what I’ve known for going on a year now. To be honest, that’s why I expected the SCOTUS to delay ruling on Heller until after the election. I’m glad they didn’t. Now we can focus of crap that actually matters as opposed to NRA fear-mongering.

But still, in your post up above there, you wail and gnash teeth about the scary liberal and his gun control record. You fail to acknowledge what has been all over the news this morning. Obama has pledged full support in defense of the Constitution, and the ruling of the SCOTUS as regards the 2nd Amendment. There are still a few of us, you see, who expect the system to work in the way it was designed. Guess what? It did. I’d probably be a whole lot less snarky about it if there was such interest in defending Article 1, section 9, and the 4th Amendment.

You might find it funny, me being a dirty hippy and all, but we agree completely on the significance of this ruling, and our almost desperate wait for it. I was beginning to think it wouldn’t happen in my lifetime. I join you in celebrating the fact that it did.

Sorry about the double.