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Old 12-04-2012, 2:34 PM
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kcbrown kcbrown is offline
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Originally Posted by Kukuforguns View Post
I suggest that the Court is unlikely to reverse itself. Before a liberal majority would reverse Heller/McDonald they would have to be very sure that there would never again be a conservative majority, because a conservative majority could reverse Roe v. Wade.
A conservative majority could reverse Roe v Wade, but to do so would mean they would be ignoring stare decisis, which is a conservative construct (meaning that it minimizes change). And while conservatism has changed its nature over time, it still has some elements of traditional conservatism (reluctance to change).

A liberal majority would be a majority composed of people who believe that the Constitution means what they want it to mean. Stare decisis would be used by such people only to bolster their arguments to uphold and reinforce decisions they agree with. Said majority would almost certainly realize that a conservative majority would be more inclined to follow stare decisis than they would, and so would probably be relatively unconcerned about the possibility of Roe v Wade being reversed.

That being said, the scope of the RKBA is largely unresolved. A liberal majority could neuter the RKBA without ever reversing Heller/McDonald.
That depends partly on how much Supreme Court jurisprudence is built up before they gain control. If the liberal majority is inclined to ignore stare decisis for the decisions in question, then it could neuter RKBA entirely, including reversing Heller and McDonald. But absent such an inclination, the degree of neutering would depend on how much of the right has already been spelled out by the Court previously.
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.

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