View Single Post
Old 12-04-2012, 1:44 PM
kcbrown's Avatar
kcbrown kcbrown is offline
Calguns Addict
Join Date: Apr 2009
Posts: 8,546
iTrader: 1 / 100%

Originally Posted by Kukuforguns View Post
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.
I do concede that as a possibility. I'm not confident of it (guns in public is very different, and much scarier to anti-gun courts, than guns in the home), but I admit it's possible.

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.
But their reasoning is directly contrary to Heller and McDonald to the extent they rely on the notion that the 2nd Amendment does not extend outside the home until the Supreme Court explicitly holds that it does. Gura's brief in Masciandaro points this out:

Originally Posted by SAF Cert Amicus Brief for Masciandaro
The Court’s extensive discussion of carrying firearms outside the home was not dictum. It is well established that
Originally Posted by Seminole Tribe of Fla. v Florida
When an opinion issues for the Court, it is not only the result but also those portions of the opinion necessary to that result by which we are bound . . . the principle of stare decisis directs us to adhere not only to the holdings of our prior cases, but also to their explications of the governing rules of law. . . .
Seminole Tribe of Fla. v. Florida, 517 U.S. 44, 67 (1996) (citations and internal quotation marks omitted).
Again, you can't argue that the lower courts are following Supreme Court jurisprudence when they are picking and choosing which bits of that jurisprudence to follow!

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.
I agree. However, even if the Supreme Court issues a ruling on the issue, the lower courts can still ignore it in the hopes that it will reverse itself once its composition changes.

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.
You should be.

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.
That is a grave concern of mine as well. In light of that very real possibility, why wouldn't the anti-gun courts ignore, to the extent that they can get away with it (meaning, right up to, but not to, the point where the Supreme Court issues arrest orders against them), any Supreme Court decisions that support RKBA in public?
The Constitution is not "the Supreme Law of the Land, except in the face of contradicting law which has not yet been overturned by the courts". It is THE SUPREME LAW OF THE LAND, PERIOD. You break your oath to uphold the Constitution if you don't refuse to enforce unadjudicated laws you believe are Unconstitutional.

The real world laughs at optimism. And here's why.

Last edited by kcbrown; 12-04-2012 at 1:48 PM..