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To: Simon Green
The frustration for 2A supporters of late has been “why won’t 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 he’d go, and thus neither side wanted to risk losing. And so lower courts learned that they could defy Heller with impunity.

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.

8 posted on 06/29/2018 11:49:58 AM PDT by zeugma (Power without accountability is fertilizer for tyranny.)
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To: zeugma
My apologies. It wasn't a Per curiam dissent. It was a dissent on a Writ of Certiorari. For those interested, you'll find it here.

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)

9 posted on 06/29/2018 12:01:00 PM PDT by zeugma (Power without accountability is fertilizer for tyranny.)
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