USA – -(Ammoland.com)- With the passing of the constitutional conservative Supreme Court Justice Antonin Scalia, AmmoLand News thought we would get some comments from prominent Second Amendment lawyers on this rock of conservative “Originalism” and the effect his passing may have on the future of the court.
From C.D. Michel, Attorney
“As the author of the Heller opinion that confirmed the Second Amendment does indeed protect a fundamental individual right, Justice Scalia was a champion for the right to keep and bear arms.”
“In his absence, those statist politicians who abhor the Second Amendment will step up their efforts on multiple fronts to distort his writings and to dilute the legal protections against government infringement that Justice Scalia championed through his brilliant jurisprudence.”
~ C.D. Michel Senior Counsel. MICHEL & ASSOCIATES, P.C. Attorneys at Law. Website: www.michellawyers.com
From Alexandria Kincaid, Attorney
“Until his last day, Justice Antonin Scalia remained a true patriot and defender of our Constitution. A judicial conservative, his opinions were based not on his personal biases, but on the outcome that conformed to the plain meaning of the United States Constitution. Unlike other judges and justices, Justice Scalia refrained from judicial activism. Instead, he focused on the plain language of our Constitution and how to apply the Founders’ original intent to a situation at hand.”
“He believed that the United States Constitution says what it means and means what it says. In doing so, he recognized and supported the separation of powers between government entities, including the executive branch, the legislative branch, and the judicial branch. Justice Scalia criticized the Supreme Court justices who did not recognize such constitutional limitations: “This Court seems incapable of admitting that some matters—any matters—–are none of its business.” Sosa v. Alvarez-Machain, 124 S.Ct. 2739, 2776 (2004)(Scalia, J., concurring). In other words, he considered “activist” justices who found new “rights” out of thin air or who gave the executive branch more authority than intended by the U.S. Constitution to be overstepping their constitutional authority.”
“To destroy the Second Amendment, these leftist justices do not need to overturn the Heller decision. Rather, the new court can simply uphold more restrictions than the few examples given by Justice Scalia in the Heller decision: “assault weapons” bans, bans on magazine capacities, registration or even confiscation of these “scary” firearms may all now be deemed constitutional if the new court chooses to accept a case giving them the opportunity to review the constitutionality of these restrictive laws, and affirmatively decides that such laws are constitutional. By affirmatively upholding these restrictive laws, the destruction of much of the Second Amendment’s protection will be effected.”
“[With Justice Antonin Scalia's passing] it is not only the Second Amendment that is now in jeopardy, but our Constitution as a whole.”
~ Alexandria Kincaid, Alex Kincaid Law, www.alexkincaid.com
From Paloma A. Capanna, Attorney
“The passing of Justice Scalia could not be more untimely. The foursome of federal cases, moving through the courts since 2013 is sequenced at this minute as follows. Friedman vs. Highland Park, declined by SCOTUS in December 2015, but with an amazing dissent by Justice Thomas, joined by Justice Scalia. Plaintiffs' Motion for Cert in NYSRPA vs. Cuomo AND Connecticut Citizens Action League vs. Malloy is on a hard deadline for this Thursday, February 18 (as per Order of Justice Ginsberg). To submit or not to submit is the immediate question…
Now, as to the recent Fourth Circuit court decision in Kolbe vs. Hogan. (IL case was 7C; NY+CT is 2C.) The Fourth Circuit, yes, used “strict scrutiny,” but remanded to District Court for further submissions from both sides. This pulled the 4C case progression off what was lined up for a triple play into a flight pattern that could bring it back up and around next fall or into early 2017…much more certainly after a ninth justice is added back into SCOTUS.
Does one proceed with the Motion for Cert this week and suffer the increased risk that the only reason SCOTUS grabs the case is to stamp “approved” all over the NY/CT “assault weapons” and “large capacity magazine” statutes? The risk of this outcome is significantly enhanced at Justice Scalia's passing. I don't perceive Justice Thomas as having the leadership role or the caucus capacity within the current eight justices, on his own, that he and Justice Scalia might have accomplished, together.
So…do you not submit the Motion for Cert this week in favor of hoping for a better configuration both as to the underlying decision supporting “strict scrutiny” and as to the potential that it's a Cruz White House with a ninth conservative justice on SCOTUS…or do you risk that waiting actually makes things worse because it's a Clinton White House and an extreme leftwards justice going to the bench.
While there is a clear strategy path for the states' attorneys that would ramp them down and hunker in until after the ninth justice, there is NOT an equally clear shot for the Plaintiffs.
As to the Justice Scalia, he has filled my eyes my entire career. Crushed on Saturday by the news, I woke up Sunday morning with the pit in my stomach that the Constitution is in greater peril then ever before. What the pundits and the politicians on both sides seem to be missing is that he was brilliant and he was disciplined. He believed in the Constitution, the way one believes in the Holy Bible. He wanted all lawyers to present excellent arguments that would challenge his mind and his knowledge. He was open to the best arguments, regardless of political persuasion. His passing represents the end of an era in an entire vein of legal analysis. Even among Conservatives who might make a short list, no one will come close to his legal prowess.
I cannot tell you how sorry I am to have practiced law for near 25 years, to now be only a few weeks off my first Amicus Brief going to his desk, to now have two federal cases for which I am counsel that are likely also on track to push towards our nation's high court…and to know that I will never have the opportunity to appear before him in written words or in oral arguments.”
~ Paloma A. Capanna, Attorney & Policy Analyst, www.law-policy.com
From Donald E. J. Kilmer, Jr. Attorney
“He was a giant among giants on any topic relating to constitutional jurisprudence. For the gun rights community his opinion in District of Columbia v. Heller is not only a tour-de-force on the history and meaning of the Second Amendment, but it is a model opinion for how the rest of Constitution should be interpreted.
The irony in the passing of this indispensable man, is that he would say no judge (or justice) is indispensable if the Constitution is interpreted as it was written. He saw the language and meaning of the Constitution as the immovable object; and modern government as the entity that must conform to the philosophy of that founding document. He constantly pointed to the genius of the founders’ provision for amending the Constitution via Article V in lieu of nine robed lawyers massaging the plain meaning of words to fit modern policy choices.
While it is too soon to predict how the loss of Justice Scalia will impact future decisions at the Supreme Court, it is not too soon to state as an undisputed fact that he left his mark on the Court.
Rest in Peace.”
From Live Comments by Alan Gura, Attorney
Interview with Tom Gresham:
Alan Gura, Gura Possessky PLLC, www.gurapossessky.com