KBCraig wrote:Here's my overall feeling: the holding was correct, but all the dicta leading up to the holding constitute the weakest possible correct ruling.
I believe Scalia had to insert lots of weasel language to bring Kennedy (certainly) and Roberts (possibly) on board for a single 5-vote ruling.
This case reveals the lunacy of reliance on stare decisis. In a true case of first impression, like this one, there are no prior rulings to compare and weigh. Without guidance, the Court wandered timidly out of its comfort zone and blinked at the blinding light glaring off a Constitution unfiltered by judicial opinion; they hovered near the the mouth of the cave, eager to dart back inside at the first hint of danger or controversy.
Subsequent rulings won't have to suffer such anxiety: they won't have to rule "This is what the Constitution says," they can just say "This is what previous Courts have ruled."
Stare decisis has its place in statutory and tort law, where it can be relied on to assure equal treatment before the law. In constitutional law, it is ridiculous: the first examination of every constitutional question should begin with the plain language of the Constitution itself.
I believe you (KBCraig) are pretty much correct in the above but without sharing your lament (re: lunacy) on
stare decisis since next time we can expect that as you say, they can get on with the law and ignore the given that the 2nd Amendment protects an individual right.
Once we reach this point, everyone will be able to argue, and hopefully they will take another step out of the cave, that as an individual right it must be treated approximately the same as other enumerated and essential rights that are both explicitly protected and long standing even prior to the Constitution.
At that point we need to demand (something like)
strict scrutiny, whether they call it this or not.
Now that would be a win, the win we all hope to achieve, but for now, this was a great first step.
It is not quite a "ratchet" though, even though it is close to one. They CAN go back into the cave or just stay chained by fear around the entrance.
Our goal is get them on the outside and then to brick up that cave so that no future Court can ever retreat again.
About the only thing that could have conceivably (given reality) been better would have been for it to be 9-0. It really should have been but weakening further was likely not worth the danger and thus Scalia likely made the best choices available to him.
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