The importance of the Supreme Court

[Valmy]

Both sides have been trying to do this, not just the right. It's just that lately the right was better at it (or possibly just luckier).

Yeah they think Bill Clinton and Obama (with his executive orders) just ripped up the Constitution and broke all norms. Thus: WAR!

Or something.

But I know it all started when Bill was President.

As for Roe vs. Wade I have no idea how those issues were looked at way back in those olden days.

[grumbler]

Maybe, but couldn't something similar be said about Roe vs Wade?

There are similarities between the determination in Roe v Wade that Americans had an un-enumerated right to privacy, and the finding of Heller that Americans had a right to armed self-defense, but the differences in judicial reasoning are far more important than the similarities.  RvW acknowledges a right that no one really disputed, and was in accordance with precedent.  Heller totally reversed precedent and created an enumerated right based on an extraordinarily loose interpretation of the Second Amendment.

Heller would have been far less damaging had its basis been, like RvW, an un-enumerated right.  By essentially saying that the Constitution can be interpreted however the court wishes, it makes a mockery of the actual text of the Constitution.  It also makes a mockery of precedent.

[The Minsky Moment]

The funny thing about Heller is that back in the Warren Court days, critics used to accuse the Court of ignoring the letter of the law in favor of "outcome-oriented" jurisprudence.

Heller, although authored by the arch-priest of constitutional literalism and originalism, Justice Scalia, is a perhaps the best example of outcome oriented jurisprudence one can cite.

The Second Amendment is a massive constitutional embarrassment.  It's an embarrassment to gun control advocates because it clearly is constitutionalizing some sort of right to possess guns.  It's an embarrassment to NRA types because just as clearly it is not an unequivocal personal right in the same sense of the more straightforwardly written rights like speech or religion.  That tricksy militia language has to mean something.

The plain language of the Second Amendment suggests that the government can't interfere with the ownership of standard military issue equipment (e.g. an M4 carbine or a standard issue fragmentation grenade) needed by a proper militia force but could freely regulate the ownership and employment of recreational arms.  That is a logical reading of the amendment and in fact its one the Supreme Court seemed to adopt in the last major pre-Heller 2nd amendment case (decided in the 1930s). But it makes no sense as policy in the 21st century.

Heller flips the literal logic of the Second Amendment completely on its head in favor of common-sense logic.  Military-type weapons aren't covered; "personal defense" weapons are.  But no amount of sophistic contortion by Scalia can fit that conclusion into the literal language of the amendment or into 18th century understanding and practice.  It's reasoning made to fit into a pre-determined and policy-driven result.