First, Doctor Krauthammer: [1]
Heller [the Supreme Court ruling that the Second Amendment guarantees gun ownership for individuals] is hardly settled law. It is law in its infancy. It’s a couple years old. And if she is on the court, she might be inclined to revisit it, either overturn it or reinterpret it in a way where it’s weakened beyond measure.
[2]Looking at her ruling on the other Second Amendment case, in which she joined with the majority of the second circuit in saying that it’s settled a law that the Second Amendment doesn’t apply to the states, she’s relying on a case, the Presser case of 1886, which is true. It excludes the application to the states.
However, we have 100 years of Supreme Court rulings since which have established the so-called “incorporation doctrine,” in which all of the first Ten Amendments, the Bill of Rights, are incorporated into the state and are applied to the states.
So it is not only Congress that can’t curtail speech, a state can’t either.
So it’s extremely odd that she would reach all the way back to 1886 and say that a gun case is excluded because it is under state jurisdiction. It would imply to me that she was reaching as a way to undermine gun rights. And it would also imply that she might be inclined to overturn Heller or restrict it in the future.
This is why I was never overly happy with the apparent victory Heller provided. As I said at the time:
My own read (Now that I’ve actually had the chance to read the ruling) is that the court, in this case, was no friend to gun rights with this one. Or, individual rights, in general, for that matter. Granted, that the court did strike down DC’s ban on handguns, but in not specifying where, exactly, the border lies between constitutional and unconstitutional, what we have here is ammunition for the Gun Grabbers who will doubtless be hauling these questions through the lower courts all over again. Quite a boon to the lawyers, certainly, but not to individual freedom.
In my view, this ruling does reinforce the concept of the need of a conservative in the White House. Perhaps just as importantly, however, does it point to the need for less in the way of Senate Liberals, who after all, the White House has to get it’s Supreme Court Nominees by. this because for all the fighting and namecalling and so on that goes on during the confirmation process, those who are nominated, are nominated by Republican Presidents because they’re conservative, but more for their ability to get by the Senate. As such instead of real conservatives such as Scalia, we end up with more centrists like Arthur Kennedy, who at best slow the growth of liberalism somewhat, rather than reverse it…. and reversing it is decidedly what is needed.
Or, Sonia Sotomayor.
The problem with Sotomayor, of course isn’t that she’s arguing from the Constitution, but rather against it, toward a pre-set goal… a policy precluding private gun ownership. What all this boils down to is who is the best at protecting us… we, ourselves, or the government. No shock, that the left, who never sees a government power it doesn’t like, is on the leading edge of this fight. No shock, either that Sotomayor, the farthest left nomination for the court in a generation, is already bending decided cases to move in that direction.
It interests me that Obama supporter the Heller decision. can it be that support was based on the wiggle room provided for elimination of the individual’s rights to bear arms?