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View Diary: People, Let's STOP (only) parsing the 2nd Amendment,Heller and McDonald remain (107 comments)

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  •  Your central point is clearl Stare Decisis (6+ / 0-)

    However... Scalia... from conservapedia:

    Justice Antonin Scalia explained the conservative view of stare decisis in a concurring and dissenting opinion joined by Justices Anthony Kennedy and Clarence Thomas in 2007:[1]

    "Stare decisis is not an inexorable command" or "a mechanical formula of adherence to the latest decision." [2] It is instead "a principle of policy," [3] and this Court has a "considered practice" not to apply that principle of policy "as rigidly in constitutional as in nonconstitutional cases." [4] This Court has not hesitated to overrule decisions offensive to the First Amendment (a "fixed star in our constitutional constellation," if there is one,[5] -- and to do so promptly where fundamental error was apparent. Just three years after our erroneous decision in Minersville School Dist. v. Gobitis, [6], the Court corrected the error in Barnette. Overruling a constitutional case decided just a few years earlier is far from unprecedented.

    And Scalia on Thomas' view of stare decisis from a 2004 WaPo article:
    But Scalia's pointed comments to Foskett complicate Bush's support for Thomas considerably. Specifically, Scalia told Foskett that Thomas "doesn't believe in stare decisis, period." Clarifying his remark, Scalia added that "if a constitutional line of authority is wrong, he would say let's get it right. I wouldn't do that."
    And Roberts in Citizens United:
    "... if adherence to a precedent actually impedes the stable and orderly adjudication of future cases, its stare decisis effect is also diminished. This can happen in a number of circumstances, such as when the precedent’s validity is so hotly contested that it cannot reliably function as a basis for decision in future cases, when its rationale threatens to upend our settled jurisprudence in related areas of law, and when the precedent’s underlying reasoning has become so discredited that the Court cannot keep the precedent alive without jury-rigging new and different justifications to shore up the original mistake." (slip op., pp. 7-8).
    "To the extent that the Government’s case for reaffirming Austin depends on radically reconceptualizing its reasoning, that argument is at odds with itself. Stare decisis is a doctrine of preservation, not transformation. It counsels deference to past mistakes, but provides no justification for making new ones. There is therefore no basis for the Court to give precedential sway to reasoning that it has never accepted, simply because that reasoning happens to support a conclusion reached on different grounds that have since been abandoned or discredited.

    Doing so would undermine the rule-of-law values that justify stare decisis in the first place. It would effectively license the Court to invent and adopt new principles of constitutional law solely for the purpose of rationalizing its past errors, without a proper analysis of whether those principles have merit on their own. This approach would allow the Court’s past missteps to spawn future mistakes, undercutting the very rule-of-law values that stare decisis is designed to protect."

    This is not a court that allows stare decisis to get in its way when it wants to make or re-make law as it did in Citizens United.

    The people reinterpreting the 2nd Amendment in a modern, post-Newtown, post-Heller, post-McDonald, world WILL direct the Supreme Court in future 2nd Amendment cases and if that means Heller and McDonald get dumped then they'll get dumped like Lochner.

    "Do what you can with what you have where you are." - Teddy Roosevelt

    by Andrew C White on Wed Dec 26, 2012 at 09:50:26 AM PST

    •  Yes (1+ / 0-)
      Recommended by:
      Dave in Northridge

      And I suppose implicitly would Heller possibly be decided the way it was today.

      But I suppose you mean that if presented with something, even a liberal Court would be in a tough position.

      IIRC when Republicans ran about changing the justices to overturn Roe, they didn't like it. They knew that their "tight rope" would get snapped if people saw that one party takes power, the Supreme Court suddenly changes their mind.

      So yes it is of import textually, historically, but for the here and now, we should all understand how Heller changed what we plainly read in the Second Amendment (again the "non Judicial Activists" completely saying, eh I am not gonna count that part, but again I do imply every Holding and Even Supreme Court Dicta is law so "Activism" in my opinion is a worthless term, as they are all imparting law - that is the job of the judge. It just so happens here (and in the Establishment Clause) they have no clothes.

      •  The courts job is to interpret the law (4+ / 0-)
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        ewmorr, Sychotic1, CroneWit, Tailfish

        not create it. That job belongs to the legislature. When the court creates law out of thin air it becomes subject to great and rightful criticism... and subsequent overturning of decisions.

        Interpretation of the law however, grants the court great leeway in defining just what the legislature meant. The same is true for Presidential signing statements and other instructions to executive branch administrators for carrying out the law passed by Congress.

        All that said, I think Heller leaves all sorts of room for reasonable regulation of weaponry. I also don't have a personal problem with a recognition of a personal, individual right to keep and bear arms.

        I continue however object strongly and vociforously to the idea that debating and parsing the 2nd Amendment is pointless. Quite the opposite. Unlike the dead constitutionalists I believe the text should be debated and parsed in a modern context on a regular and consistent basis... and amended as needed to fit that modern context when the original wording no longer fits... something that can only be determined by parsing the words as they stand today. Stare decisis should be an important guideline in both the law and the politics but it is a critical guideline only and not an absolute. On that I actually agree with the three conservative justices I quoted above.

        "Do what you can with what you have where you are." - Teddy Roosevelt

        by Andrew C White on Wed Dec 26, 2012 at 10:13:27 AM PST

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        •  I don't entirely disagree (1+ / 0-)
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          Except, that every decision is creating law.

          In theory the legislature would foresee complications and draft laws thousands of pages covering everything.

          They cannot.

          Are the street light enforcement cameras in OH constitutional? Was not clear and the argument they were not was correct. The "Court interpreted the law" and now those arguing about it will refer to the Supreme Court of Ohio as the "Law". Not the Legislation alone.

          When the SCOTUS or any court (because of Stare Decisis) interprets anything and puts pen to paper, they create law. Whether it is expected, or out of bounds- it will be cited and is always "activism". They supposedly provide clarity, but lawyers as per the English System utilize it to further arguments in their case as it is the Law (the Decision) as much as the text.

          I do not at all disagree tho with focus on the 2nd Amendment. Again, I took many quotes from former posts, but I am concerned with right now.

          We cannot say the 2nd Amendment says Militias even if 99% of people thought that. Because Heller says otherwise. Now that would put the Court in a precarious position (why do we care about Heller we all disagree).

          And the internet, I agree, as well as these decisions (CU) may create an interesting backlash themselves such that it is relevant and more understanding of the 2nd Amendment Foundationally is of great import to attack like CU.

          But right now. We cannot say you're no Militia, why do you have a gun. I care right now and in the future, both are of import, perhaps I should have clarified about the consequences of parsing (one is more of a social narrative/force (Citizens United Reaction, 2nd Amendment), I am focusing on let's know that "Militia" etc has been defined FOR NOW. And leaves room for action/law.

          •  The difference between the words create and (0+ / 0-)

            interpret is of critical importance and I cannot agree that the courts constitutionally create law. They do so on occasion and on every occasion that they do so they are wrong to do so. The court interprets the law. Contained in that power of interpretation is great leeway to define what the law actually means... a well crafted piece of legislation limits their ability to do so... a vaguely crafted piece of legislation enhances their ability to do so... but the word "create" is the wrong word to apply even if effectively it seems the correct word. When the court creates law it is automatically wrong to have done so even if their interpreation was a good one. To concede the power of creation to the court is too disruptive to the form of the constitution.

            "Do what you can with what you have where you are." - Teddy Roosevelt

            by Andrew C White on Wed Dec 26, 2012 at 10:40:03 AM PST

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          •  "Activist" judges (1+ / 0-)
            Recommended by:

            Are only at the lower level, doncha know. The Supremes.. are well, faultless gods ensconced in pure white alabaster and gold leaf.

            Quis custodiet ipsos custodes?

            They are mortals, with mortal faults and mortal biases. For the life of me I cannot think of a method which would prevent a person with position of lifetime appointment from acting on whatever they choose to.

            While there is an impeachment process, it requires that the House agree with the result of a Senate trial. That ain't gonna happen.

            I tremble for my country when I reflect that God is just and that his justice cannot sleep forever. - Thomas Jefferson

            by MightyMoose on Wed Dec 26, 2012 at 12:42:54 PM PST

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    •  Now we're getting somewhere (1+ / 0-)
      Recommended by:
      Andrew C White

      We follow certain principles of law when it gets us the results we want. We stop following those principles when they obstruct the results we want. We rely on the media noise machine to obscure this hypocrisy and manipulate American law to be whatever we damn well please.

      A thousand Sharkeys are invading a thousand Shires every day across our country.--James Wells

      by SouthernLiberalinMD on Wed Dec 26, 2012 at 11:24:23 AM PST

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