...but they wouldn't hear this.
Prediction: A Second Amendment case will be heard by the Supreme Court in the next few years, and it will confirm an individual right. However, the ruling will be so narrow that it will not override state interest claims. It will not require a strict scrutiny standard, but rather an intermediate one. And it will certainly not overturn "assault weapon" bans, open the door for viable challenges to permitting schemes, or declare registration mandates, background checks, and similar prior restraints unconstitutional infringements.
In short, we will achieve a "status quo," where the vast majority of "existing gun laws" are deemed enforceable and prosecutable, rather than repealable.
By dancing in the middle, the court will scuff over and camouflage the Constitutional bright line of "shall not be infringed." If you think about it, it's what anyone who wishes to maintain their position of advantage would do: If they say it's not an individual right, they'll have a rebellion on their hands. If they say it's unalienable, well, there goes the government's monopoly of power.
The brutal lesson of history: power is never ceded unless there is a fear of an "or else." Without that fear, we can play around with incrementalism on both sides, and congratulate each other on the fabulous progress we've made. We can maintain the illusion that the system can work, and there are those who won't mind that one bit.
Until "the right of the people to keep and bear arms shall not be infringed" is demanded, with real and unpleasant consequences for anyone using coercion to impose otherwise, it's all posturing and bluff. Until then, no real victory for freedom can occur.
Tags: Second Amendment, Supreme Court
Sunday, January 15, 2006
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6 comments:
It is so so clear, unmistakably evident the meaning of "the People." I don't know how they can be so dishonest and rationalize flat out contradictions to the Supreme Law in American gun laws.
They are guided by fear.
"So shall a man who lives in fear will die by fear."
I heartily agree with Mr. Codrea: there are going to have to be very unpleasant consequences for the gun grabbers' continuing to try and take away our rights, or they will never stop until they have totally disarmed us. It's all about raw power and force.
If ENOUGH OF US STAND UP IN UNISON, and DEMAND the return of OUR GOD-GIVEN and CONSTITUTIONALLY PROTECTED RIGHTS - they will have NO CHOICE but to 'listen'.
In many cases of objectionable (to us) outcome, SCOTUS has used the argument that the government has a "compelling interest" for the outcome to be as they decided.
Question: Doesn't the public have an overwhelmingly "compelling interest" in the government being limited to the terms of the contract (Constitution)?
I think you're probably in the ballpark on this one.
Still, it would be valuable, if it were the first in a sequence of steps. Confirming an individual right would repudiate lower court rulings outside the 5th district, which would then need to be re-examined. Since most of our vulnerability exists at the circuit court level, that would be fascinating in and of itself, and hard to predict where that would end up.
Only after that, could we reach the question of enforceability to the states, and the meaning of "infringed".
Once we get past that,
Some of the more interesting questions relative to the practical application of RKBA is full faith, re: carry permits, whether you can tax the instrumentality of a fundamental right (1934 NFA), applicability of various forms of arms towards preserving a well regulated militia, and so on.
At the end of the day, the lower courts assertion that 2A is not an individual right has allowed them to punt away all the other questions that WOULD have practical impact on the practice of RKBA, and breaking that keystone would inexorably lead to change.
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