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Old 08-29-2010, 9:47 PM
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kcbrown kcbrown is offline
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Originally Posted by trashman View Post
SCOTUS isn't a magical institution; it's comprised of 9 people --- 4 of whom quite plainly do not think the right is fundamental.
That's fine as far as it goes, and if the concern is that the Supreme Court's makeup will be tilted against us by the time the case reaches it, then I'm completely in agreement with that concern. After all, by my reckoning there's a roughly 75% chance that we'll lose one of the justices on our side within the next 5 years.

Don't get confused by stare decisis, either -- as Wildhawker says, it's not about "who gets there first". It's much more about building a legal consensus that will take decades and, thanks to the precarious majority on SCOTUS, must proceed cautiously.
But your statement above directly contradicts this. Either the Supreme Court will be bound by stare decisis, in which case it will continue to rule that the 2nd Amendment is a fundamental right, or it is not bound by stare decisis, in which case it will rule based on how many at the time happen to believe the right to be fundamental. Which is it?

It's worth remembering that judges don't like to have their opinions overturned. That fact by itself guarantees pro-gun cases will not produce earth-shattering "NATIONAL CCW FOR EVERYONE!" -type results.
This is true, but the Supreme Court justices are immune from this concern. That means a judge in a lower court that is ruling on the case has to figure out how the Supreme Court is likely to rule on the case before him, should it be appealed that high. I mean, a district court judge needn't be concerned about being overturned by the circuit court above him if the Supreme Court overturns the circuit court, right? Which is to say, being overturned by a higher court only matters if the higher court's opinion sticks, yes?
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.
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