Skip to comments.We dodged a bullet - BIG TIME!
Posted on 06/26/2008 2:45:32 PM PDT by neverdem
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The more I think about it, the more I am starting to believe that Scalia deliberately wrote poor logic that would most certainly be litigated in the future, perhaps when McCain has had a chance to replace one or two of the liberals in the court with conservatives.
Well not quite. See post 99. But we may have gotten an implication that strict scrutiny should apply.
Stop smoking that stuff, it'll stunt your growth. That's not going to happen, either "Congress *shall* make a law" McCain, or "I supported every gun ban I ever heard about and I'm going to surrender to "my friends" the Jihadies" Obama is going to be our next President. And most likely we'll have a 'Rat super majority in the Senate (which if McCain wins he'll reach across the aisle to accommodate), so no filibusters of really egregious violations of the Constitution. No way to block "living document" judicial appointments.
It's going to be a jolly few years.
Maybe, to quote Admiral Painter, "This business will get out of control. It will get out of control and we'll be lucky to live through it."
I really wish we'd gotten a stronger opinion on this. But what we got is a whole lot better than what we'd have gotten if Kennedy had gone the other way. See the dissenting opinions for how bad it would have been.
There is not going to be a Dem super-majority in the Senate. The numbers aren’t there.
Scalia exposes, eviscerates and fillets Stevens' and all statist gun grabbing pretensions with irony as sharp as a stiletto: Here's one of my favorite parts of the opinion:
Between the Restoration and the Glorious Revolution, the Stuart Kings Charles II and James II succeeded in using select militias loyal to them to suppress political dissidents, in part by disarming their opponents. See J. Malcolm, To Keep and Bear Arms 3153 (1994) (hereinafter Malcolm); L. Schwoerer, The Declaration of Rights, 1689, p. 76 (1981). Under the auspices of the 1671 Game Act, for example, the Catholic James II had ordered general disarmaments of regions home to his Protestant enemies. See Malcolm 103106. These experiences caused Englishmen to be extremely wary of concentrated military forces run by the state and to be jealous of their arms. They accordingly obtained an assurance from William and Mary, in the Declaration of Right (which was codified as the English Bill of Rights), that Protestants would never be disarmed: That the subjects which are Protestants may have arms for their defense suitable to their conditions and as allowed by law. 1 W. & M., c. 2, §7, in 3 Eng. Stat. at Large 441 (1689). This right has long been understood to be the predecessor to our Second Amendment. See E. Dumbauld, The Bill of Rights and What It Means Today 51 (1957); W. Rawle, A View of the Constitution of the United States of America 122 (1825) (hereinafter Rawle). It was clearly an individual right, having nothing whatever to do with service in a militia. To be sure, it was an individual right not available to the whole population, given that it was restricted to Protestants, and like all written English rights it was held only against the Crown, not Parliament.
Thus, the right secured in 1689 as a result of the Stuarts abuses was by the time of the founding understood to be an individual right protecting against both public and private violence. And, of course, what the Stuarts had tried to do to their political enemies, George III had tried to do to the colonists. In the tumultuous decades of the 1760s and 1770s, the Crown began to disarm the inhabitants of the most rebellious areas. That provoked polemical reactions by Americans...
...Besides ignoring the historical reality that the Second Amendment was not intended to lay down a novel principl[e] but rather codified a right inherited from our English ancestors, Robertson v. Baldwin, 165 U. S. 275, 281 (1897), petitioners interpretation does not even achieve the narrower purpose that prompted codification of the right. If, as they believe, the Second Amendment right is no more than the right to keep and use weapons as a member of an organized militia, ... that is, the organized militia is the sole institutional beneficiary of the Second Amendments guarantee it does not assure the existence of a citizens militia as a safeguard against tyranny. For Congress retains plenary authority to organize the militia, which must include the authority to say who will belong to the organized force. Thus, if petitioners are correct, the Second Amendment protects citizens right to use a gun in an organization from which Congress has plenary authority to exclude them. It guarantees a select militia of the sort the Stuart kings found useful, but not the peoples militia that was the concern of the founding generation.
Now THAT, my FRiends, is a thing of beauty.
The Republicans should use this ruling and stress the importance of having conservative justices on the bench.
Could be a great campaign ploy for electing McCaniac.
While they have the potential to be there, I believe the GOP is defending 22 seat including some open seats versus 12 donkies, we can hang our energy predicament on the donkeys. We have had a no drilling on the continental shelves, no new oil refineries, no new atomic energy plants and all of the above for the last 30 years, no wind farms off Martha's Vineyard, etc. all thanks to the donkeys. The public now wants to drill. The GOP has to be dumber than a box of rocks to blow it.
Or sit it out and cry in your beer? Or join in with the McCainiacs disparaging those of us looking for alternatives?
If you won't consider other options for the vote, then what is your plan? Try and "work within the Party"? That worked real well with Jorge Arbusto didn't it? Maybe you'll want to try and "teach the GOP a lesson". Guess what, they flunked that lesson. We voted "conservative", they went more "liberal".
Maybe we just keep doing the same thing over and over again expecting different results. That'll work won't it???
Well, yes. But he's not applying any particular level. He's saying that it doesn't matter what level of scrutiny the court applies, it fails. Even "reasonable basis" scrutiny or "not arbitrary and capricious scrutiny."
He expressly refrained from deciding which scrutiny level to apply. IMHO, that means that one of the concurring judges was not ready to go as far as strict scrutiny--probably Kennedy. So to get a true majority opinion, Scalia agreed to not decide the scrutiny level.
I practiced law for 20 years and have had cases before the US Supreme Court. Language like what you quote is the way judges kick the can down the road on a contentious issue--in this case, the scrutiny level.
I haven't read the whole decision--only rather extensive excerpts. So I might change my mind on reading the whole thing. But the language you quote does not get you to a ruling that strict scrutiny is the standard. I wish it did :(
Did I say that, oh lifeless one? No I did not. But now that you ask, NO, I do not plan on voting for either the McCainiac or B. Hussein. But I'm a realist, and my estimation is that one of them is going to be President.
You can look for alternatives all you want, but this late in the game, you're not going to get enough *other* people to vote for them.
Then they very well may blow it. They allowed the primaries to be jiggered around so that McCain ended up as the "presumptive nominee" before such important states as Texas even voted.