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Old 03-01-2018, 9:20 AM
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kcbrown kcbrown is offline
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Originally Posted by Mulay El Raisuli View Post
It was always a faith-based argument. One now, I must agree, is DOA.

Well, I certainly realize that you always had faith in that argument. But interestingly enough, I didn't regard it as being a faith-based argument in the beginning, or even until relatively recently. Absent evidence to the contrary, it always had some plausibility, because it was just an interpretation of Heller like so many others (not the most well-supported interpretation, to be sure, but not entirely implausible, either).

The difference between now and before is that we do have evidence, in the form of Thomas' dissent to denial of cert in Peruta and most especially the way Norman was denied cert without so much as a comment in protest. The former cast grave doubt on the argument. The latter put a stake through its heart. Once you have substantial evidence like that against an argument, continued belief in that argument requires faith that overrides evidence and logic, thus making it "faith-based". But it's not until the point where the evidence refutes the (otherwise plausible) argument that it can legitimately be regarded as "faith-based".

So you shouldn't feel bad, at all, for getting behind the argument! Most certainly, both state courts and even the earlier Supreme Court (see Baldwin) insisted that open carry is the only protected mode of carry under the 2nd Amendment and other equivalent state provisions, so it's not like there isn't any plausibility to that interpretation. Indeed, it was sufficiently plausible that an entire case (Norman) was essentially dedicated to it. It's just that courts are political before they are anything else, so the end result is going to be whatever the players on the court want it to be, and nothing else. It's now clear that the players don't like open carry and don't want to explicitly protect it (indeed, it looks like they don't want to, as a group, protect anything at all except for poor homeless women wielding nonlethal weapons).
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; 03-01-2018 at 9:31 AM..
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