tag:blogger.com,1999:blog-3152270.post109694315137156540..comments2024-03-17T10:40:52.762-05:00Comments on The Buck Stops Here: Denial of CertStuart Buckhttp://www.blogger.com/profile/05731724396708879386noreply@blogger.comBlogger3125tag:blogger.com,1999:blog-3152270.post-1097021841123174712004-10-05T19:17:00.000-05:002004-10-05T19:17:00.000-05:00As a practical matter, no, the Fifth circuit is NO...As a practical matter, no, the Fifth circuit is NOT in conflict with the others. The rest of the circuits declare that it's not a right, the Fifth calls it a right, and then proceeds to analyze Emerson's situation *as if it were a privilege*, and rule against him on that basis. The split is purely rhetorical.<br /><br />A right that can be stripped from you by a bit of legal boilerplate, without any finding of guilt, and without you even having to be TOLD that it was taken away in order to be punished for continuing to exercise it, is not a right worthy of the name.Anonymousnoreply@blogger.comtag:blogger.com,1999:blog-3152270.post-1097005010238073812004-10-05T14:36:00.000-05:002004-10-05T14:36:00.000-05:00Not every circuit. The Fifth Circuit recognized a...Not every circuit. The Fifth Circuit recognized a couple of years back in <I>United States v. Emerson</I> that the Second Amendment confers an individual right enforceable against the state. (They didn't let the other shoe drop, as they should have, and hold that federal or state laws impinging on the right to possess handheld firearms must satisfy strict scrutiny, just like any other enumerated fundamental right under the post-<I>Carolene Products</I> regime. But it's a start.)<br /><br />Anyway, the best example of how a cert. denial doesn't mean the Court agrees with the holding below is <I>Hopwood v. Texas</I> (1996), the Fifth Circuit case that held that race preferences based on "diversity" in university admissions violated the Fourteenth Amendment. The Supreme Court denied cert. in <I>Hopwood</I>, creating much speculation, hope, and consternation ... but then it took up the same issue seven years later in <I>Grutter v. Bollinger</I> (2003), and reached a conclusion opposite to <I>Hopwood</I>'s. <br /><br />That illustrates the point pretty sharply.Halle Barrymoorehttps://www.blogger.com/profile/05458513540433343198noreply@blogger.comtag:blogger.com,1999:blog-3152270.post-1096971633224407042004-10-05T05:20:00.000-05:002004-10-05T05:20:00.000-05:00While it's true that, technically, denial of cert ...While it's true that, technically, denial of cert means nothing more than that they didn't take the case, I don't think it's fair to say that it NEVER means anything. For instance, the Supreme court has, for over sixty years, refused certiori to every last case where somebody tried to raise the 2nd amendment as an issue. The result being an accumulation of lower court precidents hostile to that amendment in every circuit. Tell me seriously that that's not a way of killing the 2nd amendment without getting their fingerprints on the murder weapon...Anonymousnoreply@blogger.com