Skip to comments.Attorneys On What the Kennedy Supreme Court Retirement Means for Gun Owners
Posted on 06/29/2018 10:49:15 AM PDT by Simon Green
The frustration for 2A supporters of late has been why wont the Court take any 2A cases to enforce Heller? The short answer has been that the Court was in a classic Mexican standoff, with four justices (Roberts, Thomas, Alito, Gorsuch) being strongly pro-2A and four (Ginsburg, Breyer, Karen, and Sotomayor) prepared to gut Heller . . . and a notoriously unpredictable Anthony Kennedy with the swing vote. Neither side could be sure which way hed go, and thus neither side wanted to risk losing. And so lower courts learned that they could defy Heller with impunity.
Assuming that President Trump nominates someone from the existent list of 25, and that the Senate GOP hangs tough (and/or a couple of Dems facing tough reelection fights go wobbly), those days are over. The GOP has been promising a return to a conservative Supreme Court since 1968, but thanks to Blackmun, Powell, Stevens, OConnor, Kennedy, and especially Souter, our own nominees have prevented that from happening. After almost 50 years of liberal Supreme Court activism, there finally is a likelihood of a solid originalist majority. This is truly a generational event.
On gun rights, I think the first step well see will be to slap down a may issue carry license system from a place like Hawaii, NJ, NYC, etc., where may issue is in reality no issue (except for the politically connected). In so doing, I suspect the Court will explicitly require strict scrutiny of laws that affect the RKBA (which means that very, very few laws will survive the challenge). Requiring strict scrutiny will then require lower courts to revisit many of their prior decisions (like the 4th Circuits approval of the MD assault weapons ban).
Another important trend this appointment will cement is the continued gutting of the administrative state. The Court is already signaling that the days of judicial deference to bureaucratic actions and interpretation are coming to an end. This will radically impact the way government business is done across the board, including how the BATFE operates. For instance, I dont think a BATFE reinterpretation of the 1934 Act to ban bump stocks is going to fly with the new Court (although a law passed by Congress doing so might well).
The biggest thing will be that lower courts will know that the Court stalemate on 2A cases is over, and thus they will no longer be able to thumb their nose at Heller. Sure, there will be some judges barking at the moon (there always are), but once the new Court makes it clear that 2A rights are no longer second class, I think the pieces start falling into place.
Texas governor Greg Abbott nailed it when he said, the RKBA was settled in 1791 when the 2nd Amendment was adopted.
Good old Days!
Call me crazy but until the Supreme Court affords the Second Amendment the same protections as the others, meaning that individual states cannot supersede Federally guaranteed fundamental rights as expressed in the Bill of Rights that currently make the Second Amendment a hodge podge of fifty different interpretations, equal rights under the law will continue to be a mockery to the intentions of the founders.
Best damn governor in the country.
Neither side wanted to get into the nuts and bolts 2A cases with an unpredictable "swinger" like Kennedy probably determining which way the cases would be decided.
A solid 2A originalist replacing Kennedy on the Court will in all likelihood make a more receptive environment for the 2A clean up cases everyone has been waiting for and signal to the lower courts that they're going to have to stop ignoring Heller.
That will happen the new supreme court justice being seated.
This is absolutely true. Thomas penned a dissent to a Per Curiam decision (a really unusual event) this year that said essentially the same thing.
Quoting Thomas: "If a lower court treated another right so cavalierly, I have little doubt that this Court would intervene. But as evidenced by our continued inaction in this area, the Second Amendment is a disfavored right in this Court. Because I do not believe we should be in the business of choosing which constitutional rights are “really worth insisting upon,” Heller, supra, at 634, I would have granted certiorari in this case." (emph in original)
It all depends now on choosing a principled constitutionalist to replace Kennedy and then getting him/her confirmed. A crucial moment in history!
Many say abortion is the greatest Constiuional issue. This is true on its merit but the Second Amendment is vital.
Everyone is not seeing the elephant in the room. Where does it say that unelected black-robes can determine what is or what is not constitutional and make that decision binding on United States citizens?
That judicial power doesn’t exist. What’s needed is an originalist US Congress willing to impeach and remove judges who have overstepped their proper role, which is to act as an advisory body to the congress and president in constitutional matters.
That judicial power doesnt exist. Whats needed is an originalist US Congress willing to impeach and remove judges who have overstepped their proper role, which is to act as an advisory body to the congress and president in constitutional matters.
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