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Old 12-04-2012, 1:12 PM
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Kukuforguns Kukuforguns is offline
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Originally Posted by kcbrown View Post
You can't argue that these courts have been following Supreme Court jurisprudence when they pick and choose which jurisprudence to follow!
No, what I am arguing is that once the Supreme Court holds that the RKBA extends to public areas (other than sensitive areas, which will require further litigation to define), the vast majority of courts will apply that holding.

Look, the Supreme Court intentionally issued two very limited opinions. Although I disagree with how the lower courts have applied Heller/McDonald to public carry cases, I believe that the holdings are not directly contrary to Heller/McDonald.

The lower courts, like many posters on this board, know that the scope of the RKBA depends upon a conservative majority on the Supreme Court. They know that if the Court changes its composition to a liberal majority before the scope of the RKBA is resolved, that the scope of the RKBA will be much narrower than if resolved with the Court's current composition. Accordingly, the lower courts that want a narrow RKBA, interpret Heller/McDonald as narrowly as they can. These decisions are creating their own precedent that will persist until the S. Ct. issues a contradictory opinion. If, because of a change in composition, the S. Ct. never issues a contradictory opinion, then the lower courts will have prevailed without ever having directly misapplied S. Ct. precedent. They are, in short, playing a waiting game.

On the other hand, I think that the odds of the S. Ct. accepting a public carry case in the relatively near future went up as a result of President Obama's victory. I'm not concerned we're going to lose the majority in the next 4 years. I'm concerned that the next President of the U.S. will not be a friend of the RKBA, and that we will lose the majority in the next 8 years.