[This is Fred. I had a note from G the other day, short and to the point. “The idiots are out again,” he said, “in full force. The President has nominated a replacement for Justice Scalia, who recently died, and while the Democrats like the replacement, I can see why the Republicans don’t. After all, Scalia was a prominent Conservative, much treasured on the Right. They probably think it’s better to have a deadlocked court than an impure, moderate replacement. Please get with Larry, and try to say something intelligent about the matter.” Not exactly a graceful invitation, but nevertheless compelling; so I called Larry and here’s the result. By the way, Larry’s our legal consultant.]

Actually, I’m your retired legal consultant, as I’ve said before. Nevertheless, occasionally I have ideas I can share, for free, and that’s the case right now. First let me say that eight judges do not automatically lead to a deadlocked court. Granted that’s an even number, and the conventional wisdom is that there are 4 liberals and 4 conservatives on the bench, but liberals and conservatives don’t always vote as blocs; they are adults, after all, and can make up their own minds on individual cases. I know that shocks those of you who believe the popular media, but it’s true. Just look at the recent decision on “marriage equality,”[1] the case that ruled same sex couples have a fundamental right to marry guaranteed by the 14th Amendment to the U.S. Constitution. That was a 5-4 opinion, and was possible in spite of Justice Scalia’s best efforts, only because Justice Kennedy, a Reagan appointee[2], voted with the liberals, not the conservatives. Today, now that Justice Scalia is out of the picture, the same case probably would be decided the same way by an 8 member court, but by a 5-3 vote; the court would not be deadlocked.

Most politicians – and media types – seem to believe that judges simply are a different kind of legislator; that judges vote, one way or another, based on political pressures, and change their votes as the winds blow; or, alternatively, never change because they are ideologues. So, why not change the law by appointing different judges? That can be a lot easier than passing new laws or, heaven forbid, amending the Constitution. Appoint enough new judges and the legal will become illegal, or the constitutional unconstitutional, or vice-versa, but without the trouble and inconvenience of legislating.

That’s an easy thing to say, but it’s much more difficult to prove. You see, courts tend to follow their prior decisions, no matter who the members are.[3] This is especially true in the Supreme Court. There’s even a name for this; it’s called the doctrine of stare decisis, which is Latin for something like “let the decision stand.”[4] According to one source, staying consistent with prior cases is thought to (i) promote “the evenhanded, predictable, and consistent development of legal principles,” (ii) foster “reliance on judicial decisions,” and (iii) contribute “to the actual and perceived integrity of the judicial process.” [5] The Supreme Court will defer to its previous decisions even if their soundness is in doubt, in large part because it doesn’t want to continuously re-litigate decided issues and accepted doctrines. Moreover, predictable results help to clarify the public’s rights.[6] Unpredictable results do the opposite.

No doubt you think this is all very interesting but wonder, “how does it relate to the current dispute, i.e. to filling the Scalia vacancy? Well, we’ll get to that next, and to guns as well.

Initial Republican Objections

You remember the consternation, and gossip, that erupted when Justice Scalia died. Who will the President appoint to replace him? This is in an election year. Every nominee will be opposed by somebody, and the opposition research will be fierce; character assassination is possible, from both the left and the right. Will we have a set of big, juicy hearings right before the election? Will there be scandal? Demonstrations? Will there be a political circus? What will the Senate do?

At least, we asked those kinds of questions here at Elemental Zoo Two. And we did get an answer, of sorts. Sensing danger Senate Republicans pointed to the obvious – that this is an election year – and said they would not consider any nominations made by President Obama. The American people are choosing their next president, and their next president should nominate Justice Scalia’s replacement.

Well, of course, the President did nominate someone; he has a right – or possibly a duty – to do that.[7] He picked Merrick Garland, who I, personally, don’t know much about. But that doesn’t matter, because other people, including in the NRA, say they do, and they make the news.

The NRA’s Objection (March 18)

On March 18, in an opinion piece in the Washington Post[8], the NRA injected itself, and the 2nd Amendment into the debate about Judge Garland. The NRA said that the question of whether individuals could own firearms in their homes for self-defense was settled only in 2008, with a 5 to 4 opinion written by Justice Scalia. Citizens have that right. The case was District of Columbia v. Heller.[9] In a 2010 decision, McDonald v. Chicago,[10] the Heller ruling was applied to the states as well.  While Justice Scalia didn’t write the 2010 opinion, he joined in it, and because the decision was another 5 to 4, his vote was critical.

The NRA argued that, with Scalia’s death, “there is no longer a majority of support for Heller and McDonald among the justices. Four justices believe law-abiding Americans have the right to own a gun for self-defense, including handguns. Four justices do not.” President Obama’s prior two picks for the Court, said the NRA, “oppose our fundamental individual right to own firearms safely and responsibly” [,] and it expects nothing different from Merrick Garland.[11] So Judge Garland, or any nominee of the President’s, ought to be rejected.

The McConnell Opposition (March 20, 2016)

Shortly thereafter Mitch McConnell, the Senate majority leader, gave an interview to Fox News about the Garland nomination. “I can’t imagine that a Republican majority in the United States Senate would want to confirm … a nominee opposed by the National Rifle Association, [and] the National Federation of Independent Business that represents small businesses,” he said. He also didn’t think that Senate Republicans, before or after the election, “would want to confirm a judge that would move the court dramatically to the left…,” [12] which apparently he thinks Judge Garland would do.

In any case, there will be no action on Judge Garland’s nomination. “The principle is the same. Whether it’s before the election or after the election. The principle is the American people are choosing their next president, and their next president should pick this Supreme Court nominee.”[13]

Caetano v. Massachusetts (March 21)

Now let’s take a look at a brand new gun rights case, Caetano v. Massachusetts[14], decided the next day. We’re not going to take a deep look, because it’s very brief. Also the main opinion is styled per curiam – an opinion of the court – which means that it’s not signed.  It may[15] or may not[16] be unanimous, but with a court of only 8 judges, at least 5 must have agreed with it, and up to 3 may have disagreed.

Jaime Caetano had an abusive boyfriend who put her in the hospital on at least one occasion. “She obtained multiple restraining orders against her abuser, but they proved futile.” So when a friend offered her a stun gun ‘for self-defense against him,’ she accepted the weapon. Then one night, after leaving work,

Caetano found her ex-boyfriend “waiting for [her] outside.”… He “started screaming” that she was “not gonna [expletive deleted] work at this place” anymore because she “should be home with the kids” they had together…. Caetano’s abuser towered over her by nearly a foot and outweighed her by close to 100 pounds. But she didn’t need physical strength to protect herself. She stood her ground, displayed the stun gun, and announced: “I’m not gonna take this anymore. . . . I don’t wanna have to [use the stun gun on] you, but if you don’t leave me alone, I’m gonna have to.” … The gambit worked. The ex-boyfriend “got scared and he left [her] alone.”[17]

Sounds like a good result, doesn’t it? Everybody went home and nobody was hurt. Unfortunately in Massachusetts stun guns were illegal, and the mere possession of one was a crime. Caetano was prosecuted; her case went up the Massachusetts judicial system to the top court in that state, where she lost; the court ruled that the Massachusetts prohibition was consistent with the U.S. Constitution, including the 2nd Amendment.

On review, the U.S. Supreme Court disagreed. It said:

  • We’ve been here before. “The Court has held that ‘the Second Amendment extends, prima facie, to all instruments that constitute bearable arms, even those that were not in existence at the time of the founding,’ District of Columbia v. Heller, 554 U. S. 570, 582 (2008), and that this ‘[2nd] Amendment right is fully applicable to the States,’ McDonald v. Chicago, 561 U. S. 742, 750 (2010).”[18]
  • Massachusetts says that stun guns were not known to the Founders when the Second Amendment was passed, so they are not protected by it. That’s wrong. Heller ruled that all bearable arms are protected, “even those that were not in existence at the time of the founding.”[19]
  • The Massachusetts court also examined whether stun guns are “dangerous per se at common law and unusual;” if so, Heller would permit them to be limited. It then determined that stun guns are indeed unusual because are “a thoroughly modern invention.” In other words, they are “unusual” because they didn’t exist at the time the 2nd Amendment was enacted. But again that reasoning is inconsistent with Heller. Heller ruled that bearable arms are protected even if “they were not in existence at the time of the founding.”[20]
  • Finally, “the [Massachusetts] court used ‘a contemporary lens’ [to find] ‘nothing in the record to suggest that [stun guns] are readily adaptable to use in the military….’ But Heller rejected the proposition ‘that only those weapons useful in warfare are protected.’”[21]

Three strikes and Massachusetts was out. “The judgment of the Supreme Judicial Court of Massachusetts is vacated, and the case is remanded for further proceedings not inconsistent with this opinion.”[22]

So what does this mean? Caetano basically reaffirms District of Columbia v. Heller, and McDonald. However, for that to have happened one or more of the “liberal” justices on the Supreme Court must have crossed over to the “conservative” side to form a majority. Now why would a liberal judge or liberal judges do such a thing? Well, perhaps on the theory of stare decisis. Established rights shouldn’t be revoked simply because there might be new members on the court.


[Thanks for your hard work, Larry; you certainly covered a lot of ground in a short space. But I don’t think what you said will satisfy the NRA. After all, there’s no guaranty that the Court will continue to uphold Heller and McDonald once Judge Gardner, or someone like him, gets on board. Can’t you be a little more positive, to make them happy?]

I don’t do guaranties. In my business, anybody who does probably is a shyster. I can make predictions, based on probabilities, but – just like in war – all plans go out the window once the first shot is fired. Really, when litigation starts it can be really hard to know how things will turn out. Facts change, the law moves around, the forum might change and so forth. A friend of mine once said, in litigation there’s a 30% chance that anything might happen before it’s done.

Judge Garner may be perfectly fine from the NRA’s standpoint, vis-à-vis the 2nd Amendment, if he’s appointed to the Supreme Court; or his opinions may not matter, if the rest of the Court in fact has realigned in favor of Heller and McDonald. I can’t guaranty either result, but by the same token, I can’t prove that they won’t happen. It’s all guesswork right now.

If you want my opinion, I think Judge Garner’s opposition should take another look at their crystal ball; polish it and check it for cracks before they get too excited about this business. Perhaps they should spend their political capital elsewhere.

[1] See Obergefell v. Hodges, 576 U.S. ___ (2015), available as a slip opinion from the U.S. Supreme Court’s website.

[2] For the biographical details, check out Wikipedia at https://en.wikipedia.org/wiki/Anthony_Kennedy

[3] See, e.g., the Wikipedia entry on precedent, available at https://en.wikipedia.org/wiki/Precedent 

[4] Id. Wikipedia says the words come from the Latin maxim Stare decisis et non quieta movere: “to stand by decisions and not disturb the undisturbed.”

[5] One of our go-to sites for matters legal is the LII website hosted by the Cornell Law School. Among other things, you can pick up definitions of legal terms you otherwise might find only in a law dictionary. Don’t rely on it if you’re writing a brief, etc.; you should go to the original case law instead; but I think this is a perfectly good source for a blog. The Cornell service is available, on line, for free! See, e.g., Cornell Law School, Wex Toolbox, Stare decisis, available at https://www.law.cornell.edu/wex/stare_decisis

[6] Id.

[7] Article II, Section 2, Clause 2 says: “He shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur; and he shall nominate, and by and with the Advice and Consent of the Senate, shall appoint …  Judges of the supreme Court….”   For an authoritative version the U.S. Constitution, and its Amendments, check out the National Archives. For the Constitution alone, go to: http://www.archives.gov/exhibits/charters/constitution.html . That’s the version we’ll be citing here.

[8] See Washington Post, Cox, NRA: Why we oppose Merrick Garland’s Supreme Court nomination (March 18, 2016),

available at https://www.washingtonpost.com/opinions/nra-why-we-oppose-merrick-garlands-supreme-court-nomination/2016/03/18/1ea4c9d0-ec5b-11e5-b0fd-073d5930a7b7_story.html

[9] See District of Columbia v. Heller, 554 U.S. 570 (2008). You can get volume 554 directly from the Supreme Court as a pdf file. Just go to the web site, at http://www.supremecourt.gov/default.aspx  click on opinions, then on bound volumes. Not all Supreme Court opinions are available this way; the newer opinions have yet to be bound into volumes; and many of the older volumes have yet to be converted to pdf files.  But volume 554 is available as a pdf download.

[10] See McDonald v. Chicago 561 U.S. 742 (2010). Volume 561 also is available from the Court as a pdf download.

[11] See NRA article cited at n. 6.

[12] This quote is taken [and edited somewhat] from an article in the New York Times. See The New York Times, Fandos, Garland Shouldn’t Be Considered after Election, McConnell Says (March 20, 2016), available at http://www.nytimes.com/2016/03/21/us/politics/merrick-garland-supreme-court-mitch-mcconnell.html?_r=0

[13] Id.

[14] See Caetano v. Massachusetts, 577 U.S. ___ (2016), available from the Supreme Court as a “slip opinion” at  http://www.supremecourt.gov/opinions/slipopinion/15 Hereafter this will be cited as Caetano slip opinion at __ (per curiam) or Caetano slip opinion at __ (concurring).

[15] The Oxford Dictionaries describe a per curiam decision as a “decision of a court in unanimous agreement.” You can find the definition at http://www.oxforddictionaries.com/definition/american_english/per-curiam

[16] See, e.g., Cornell Law School, Wex Toolbox, per curiam, available at https://www.law.cornell.edu/wex/per_curiam  The Toolbox says: “Per curiam” decisions are given that label by the Court itself and tend to be short. Usually, though not always, they deal with issues the Court views as relatively non-controversial … However, they are not necessarily unanimous. Indeed, some per curiam decisions are accompanied by dissenting opinions.” [Citing Bush v. Gore, 531 US 98 (2000)]. 

[17] See Caetano slip opinion at p. 1 (concurring).

[18] See Caetano slip opinion at p. 1 (per curiam)

[19] See Caetano slip opinion at p. 1 (per curiam)

[20] Id.

[21] See Caetano slip opinion at p. 2 (per curiam)

[22] See Caetano slip opinion at p. 2 (per curiam)