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Old 04-05-2013, 11:17 AM
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kcbrown kcbrown is offline
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Originally Posted by IVC View Post
Agreed, but I still stand by assertion that the lower courts act the way they act primarily due to the lack of established framework and not so much out of their free will.
Of course they act the way they do out of their own free will. Or did you not read Kozinski's dissent in Silveira v Lockyer?

To refresh your memory:

Originally Posted by Kozinski's dissent in Silveira v Lockyer
When a particular right comports especially well with our notions of good social policy, we build magnificent legal edifices on elliptical constitutional phrases —or even the white spaces between lines of constitutional text. See, e.g., Compassion in Dying v. Washington, 79 F.3d 790 (9th Cir. 1996) (en banc), rev’d sub nom. Washington v. Glucksberg, 521 U.S. 702 (1997). But, as the panel amply demonstrates, when we’re none too keen on a particular constitutional guarantee, we can be equally ingenious in burying language that is incontrovertibly there.

That is a direct admission, by an appellate court judge no less, that the courts rule in whatever fashion they wish to. And the pattern of the court rulings to date should make it plain that this is precisely what they are doing. The 7th Circuit is the only appellate court to break from that pattern (Posner penned the 7th Circuit ruling against McDonald, and yet also penned their decision in Moore).

The trips to SCOTUS are required precisely in order to provide the required guidance.
Normally that would be true. The problem here is that the Supreme Court has already provided much of the required guidance and the lower courts are refusing to listen. As Gura notes quite succinctly, the lower courts are limiting Heller to its facts. This is not something lower courts do accidentally.

Remember, there was a recent court case where the appellate court stated something along the lines: "If the Supreme Court intended the right to arms to extend outside the home they should say so." Is it a cynical defiance, or a genuine call for guidance?
Since Heller discusses the right in the context of public locations (government buildings, schools, etc.), it is quite plain to anyone with a functioning neuron between his ears that Heller all but outright says that the right applies to more than just the home. So it quite clearly is cynical defiance.
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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