Is the Supreme Court Going to Chip Away at Heller?

The Supreme Court has been doing a very peculiar dance around an appeal from the Ninth Circuit.   The appeal is about a preliminary injunction in the case Jackson v.  San Francisco, on two regulations.   One requires that  (1) "the handgun is stored in a locked container or disabled with a trigger lock that has been approved by the California Department of Justice," or (2) "[t]he handgun is carried on the person of an individual over the age of 18.

The second regulation bans the sale of expanding ammunition.

 As Heller explicitly noted, as explained in the opinion:

In Heller, the Supreme Court considered whether the District of Columbia's regulations, which barred the possession of handguns both inside and outside the home, and required other firearms to be kept "unloaded and disassembled or bound by a trigger lock or similar device," violated the plaintiff's Second Amendment rights.

It is hard to see that a court could rule such a regulation to be Constitutional.   But the argument is made in the District Court ruling, and was upheld by the Ninth Circuit.   It was, essentially, since Heller did not explicitly say that we could not require handguns to be locked up at all times that they are not carried directly on the body of an adult, well, then that is an allowable regulation.

This goes directly against "Shall not be Infringed" and instead makes the court rulings a game of "How much infringement can we get away with."    As such, it is a direct challenge to Heller.

If the Supreme Court allows this ruling to stand, they are essentially telling the appellate courts: Heller did not really mean anything significant.  We will let you chip away at the right to bear arms until nothing meaningful is left.

That many in the Supreme Court see this seems likely.  The three judge panel  on the Ninth Circuit is pushing the Supreme Court to see how much they can get away with.

With the new Obama appointees to the Court, it may be that neither side is sure of how the vote will go.   The Court has scheduled the review of the petition for cert.  five times.   The next scheduled time is May 28th, which will be the sixth.  David Hardy, who follows such matters, says that he has seen cases be rescheduled once, but never as many as four times.

I've seen that happen once on cases (maybe the Justices wanted more time to mull it over, maybe they judge couldn't get to it in time) but never this many.

 So something different is going on in this case.  Maybe there are health problems with one of the justices.  Maybe something is happening that we do not know about.

The justices should send a clear signal to the Ninth Circuit.  A petition filed in the case by Paul Clement asks for a summary reversal.  From reason.com:

"The Court of Appeals' conclusion that San Francisco may venture where this Court forbade the District of Columbia to go is so patently wrong that summary reversal would be appropriate."

It is hard to know what is going on, but the dithering on what appears to be a clear issue is not reassuring.   If guns can be required to be locked up, unless they are carried on the body of an 18 year old or older, why not require that they be in a retention holster?  Why not require weekly inspections to insure that the locking devices are present?  

If ammunition that expands can be forbidden for sale, why not limit the ammunition to only approved government issue for sale in special "ammunition stores" with records of every round sold, and a requirement for the return of every spent case?

It is clear that appellate courts hostile to the second amendment, are trying to chip away it, so as to reduce it to a meaningless historical footnote.

  ©2015 by Dean Weingarten: Permission to share is granted when this notice is included.
Link to Gun Watch

Update: Sources have informed me that there are other cases that have been rescheduled more often, as much as 17 times, I have been told.    The rescheduling probably means that one or more justices are seriously considering the appeal.