tag:blogger.com,1999:blog-1237087217187172116.post3298244727656002592..comments2024-03-28T10:44:30.518-06:00Comments on American Creation: Washington Supreme Court rules that the 2nd Amendment is incorporated against the statesBrad Harthttp://www.blogger.com/profile/17669677047039491864noreply@blogger.comBlogger5125tag:blogger.com,1999:blog-1237087217187172116.post-51505846351225924922010-02-19T19:34:59.251-07:002010-02-19T19:34:59.251-07:00Thx, Mark. According to this
http://reason.com/bl...Thx, Mark. According to this<br /><br />http://reason.com/blog/2009/12/09/justice-anthony-kennedy-faint<br /><br /> <br />swing vote Kennedy tends to go for a "libertarian" view, which would 5-4 it as you say.<br /><br />I'd feel the earth move if Stevens or Breyer incorporated the 2nd when push came to shove. But even Scalia surprises his critics occasionally.<br /><br />Sotomayor and Ginsburg we would think are in the bag. Like Justice O'Connor, they favor pragmatism above all.<br /><br />BTW, Chief Justice Roberts is on record as favoring decisions as narrow as possible for the reasons you admire; Scalia favors decisions as broad as possible to establish principle and precedent so that various lower courts don't jump the gun and start building a Tower of Babel---reasons you note as well in the Washington court's decision.<br /><br />I have sympathy for both points of view.Tom Van Dykehttps://www.blogger.com/profile/07121072404143877596noreply@blogger.comtag:blogger.com,1999:blog-1237087217187172116.post-88105124810121077652010-02-19T18:20:53.817-07:002010-02-19T18:20:53.817-07:00No kidding. But the judge she replaced (Souter) w...No kidding. But the judge she replaced (Souter) was no fan of gun rights, so I doubt that her appointment will shift the Supreme Court. I imagine it will be a 5-4 decision in favor of incorporation, but it is possible that Stevens and Breyer might join with the majority -- unlikely but possible. Both Stevens and Breyer are strong supporters of the incorporation doctrine.Mark D.https://www.blogger.com/profile/05000893614655251587noreply@blogger.comtag:blogger.com,1999:blog-1237087217187172116.post-81773258162091308112010-02-19T14:32:20.459-07:002010-02-19T14:32:20.459-07:00If I recall correctly, Justice Sotmayor's last...If I recall correctly, Justice Sotmayor's last decision before heading for the Supreme Court was that the 2nd Amendment <i>didn't</i> incorporate against the states, and that local gun bans were legal.<br /><br />Should be fun.Tom Van Dykehttps://www.blogger.com/profile/07121072404143877596noreply@blogger.comtag:blogger.com,1999:blog-1237087217187172116.post-67000875548613482792010-02-19T09:16:14.790-07:002010-02-19T09:16:14.790-07:00Yes. And in this particular case it serves anothe...Yes. And in this particular case it serves another function as well. If the Supreme Court rules that the 2nd Amendment isn't incorporated against the states (an unlikely outcome but one that is well within the real of possibility), then the Washington supreme court's ruling will be undone. The Wash. court would be in the position of having jumped the gun (pun intended!) on the question, with disastrous consequences for its ruling. Justice Stephens' approach would avoid that problem. <br /><br />So, not only is it more restrained from a judicial point of view, it is more institutionally stable. If her approach had been followed, the court's decision would stand regardless of how the Supreme Court decides the question of incorporation. If one is concerned about the stability of precedent, that's a good approach to take.Mark D.https://www.blogger.com/profile/05000893614655251587noreply@blogger.comtag:blogger.com,1999:blog-1237087217187172116.post-68003117894298723352010-02-19T04:58:37.044-07:002010-02-19T04:58:37.044-07:00I'm also fan of Justice Stephens' prudent ...I'm also fan of Justice Stephens' prudent approach. By minimizing the impact of each decision, law may be refined without drastic changes in direction.<br /><br />I think that approach serves to keep politics out of the court.bpabbotthttps://www.blogger.com/profile/17047791198702983998noreply@blogger.com