Alan Gura Says Democrat Nominated Replacement for Scalia Will End Heller

[HOOfan_1]

The Supreme Court has given completely different rulings on similar cases multiple times, often within a few years of each other.

Minersville School Disctrict v Gobitis was overruled by West Virginia State Board of Education v. Barnette after only three years

 

[GEM]

I don't get this argument. SCOTUS confirmed Heller. Whats to overturn? under what grounds. SCOTUS got it right. A later SCOTUS going after a previous ruling would serve no purpose for the court to exist.

As repeatedly said - why do both parties try to get justices to rule in their preferred manner over past decisions?

In some cases the court acts well, it was evolving public and legal sentiment as in
Brown v. Board of Education of Topeka, 347 U.S. 483 (1954), overturning Plessy v. Ferguson decision - 1896.

That was a good thing. However, abortion, gay marriage, and gun rights are political totems of each party. Independent of how you feel about them, the opposing party will try to overturn the precedent.

Gun folks cannot complain about attempts to overturn Heller if they are of a conservative bent and listen to their reps also attack the abortion, marriage and sodomy rulings.

Hypocrites abound. Vote on a nominee - sez the Dems. Don't confirm Reagan appointees sez the Dems.

If the situation was reversed, the Democrats would would attack as the Republicans and vice versa.

Only blind loyalty would lead you to find this acceptable on a theoretical as compared to pragmatic basis.

Heller could have easily been 4/5 and there would be screaming to overturn it.

 

[Red Wind]

Read post #14. Then read it again.

I just re-read Post #14. It's just as clear and sobering as it was yesterday. An appointment of another Socialist to SCOTUS, who views the Constitution with that living, breathing document mindset, and Heller and McDonald are GWTW.

 

[Bartholomew Roberts]

If both parties would stop trying to overturn the current set of decisions on social issues that they disagree on, we would be better off.

I agree and it would make for a better judiciary as well as it would eliminate a great deal of uncertainty in law. Unfortunately, there are many incentives to use these types of judicial decisions to "weaponize" your base for political purposes (fundraising, vote turnout, etc.). The downside of that is you have to keep your base constantly alarmed whether real or not - and eventually they become desensitized to real threats via the same rhetoric you used to gain a temporary advantage.

This is not rhetoric or an overstatement of a minor threat to get the base excited. This is a real deal DEFCON 1 threat. There are a number of situations where we can lose the fight on Scalia's replacement and make it up somewhere else if we get lucky and we put the exact right people in office at the right time. I don't have a crystal ball to say that is impossible. I can say if we lose the Scalia replacement fight to an anti, the margin of error is beyond razor thin to recover.

On other forums, several people have attempted to make analogy between Roe v. Wade and the current Courts inability to overtirn it. I'd just note Roe v. Wade had a good 24 years as precedent and that when a conservative court did take hold, they still limited Roe substantially. Had Kennedy and O'Connor not gone with a separate concurring opinion in Casey, Roe WOULD have been overturned.

We don't have that margin of error with Heller, which is only 8 years old now and the boundaries are relatively unexplored. I'd also note that had the Dems not blocked Bork for entirely ideological reasons a full 529 days out from Reagan's last day, not only would Roe have been overturned; but Heller would be a loser as well most likely. That single decision by the Dems to block Bork has had major repercussions on what rights are recognized by our government. That's an important point to keep in mind going into this big fight.

 

[barnbwt]

The politicization has always existed, which is why they are lifetime appointments; to dampen out the social swings. The senate is consulted to ensure some measure of unity in their confirmation. The system already compensates for the political stuff, and does not rely on lofty ideals far above the realities of politics.

TCB

 

[Tommygunn]

Gun folks cannot complain about attempts to overturn Heller if they are of a conservative bent and listen to their reps also attack the abortion, marriage and sodomy rulings.

Yes we can. Overturning Heller would be wrong. Trying to overturn Roe vs. Wade, abortion, that is the right thing to do. This is not hypocrisy, it's merely defending one's philosophy.

 

[CoalTrain49]

If both parties would stop trying to overturn the current set of decisions on social issues that they disagree on, we would be better off.

The Republicans are all hot and bothered about whom one marries and choice issues. The Democrats hate gun rights.

How about they both shut up and accept the precedents. Stop mucking around on the state levels.

Defend the country and get the economy going. Get out of the nation's crotches and holsters.

That's the best solution.

The SC has no business in states rights where the constitution is silent. The SC's SSM decision was based on 14A. I read 14A, then re-read it, then read it again. I'm just at a lose to figure out how they could use 14A to justify that decision. 14A was silent regarding SSM. It's intent when it was written was to protect all rights guaranteed by the constitution. I never found the right for SSM anywhere in the constitution, anywhere. They just made that one up.

I even accept that 2A doesn't give individuals an unrestricted right to be armed with anything they want. 2A just isn't clear about it so let the states work it out under 10A.

I would just as soon have the SC out of my life.

 

[yokel]

Gun folks cannot complain about attempts to overturn Heller if they are of a conservative bent and listen to their reps also attack the abortion, marriage and sodomy rulings.

By placing a right to keep and bear arms into the Constitution, the Founders sought to secure a fundamental liberty whose explicit recognition was the price of the state’s construction.

Conversely, abortion, marriage, and sodomy are nontextual "rights" fabricated by a supreme court that decided we would be better off recognizing these "rights".

 

[Deanimator]

Anyone who thinks Heller will be upheld by any Obama nominee is dreaming.
Our only hope is to win the WH for sure, and hopefully to keep the senate.
Fortunately, a lot of dems are pro 2A.
This country will decide its future once again. As Reagan said, every generation determines its freedoms, they are not given to us.

Not "dreaming", DELUSIONAL.

Stare decisis means nothing to the hard left.

Their #1 target is "Citizens United", followed closely by Heller.

 

[gtofred]

The next President will probably have a chance to appoint 3 Justices
Ginsburg is 83, Kennedy is 80 and Breyer is 78.

 

[SilentStalker]

Do you guys really believe they would ever overturn a previous decision and come after your 2A rights in totality? Do we really believe any politician would think this is a good idea? That person or persons, whoever they may be, would have to be insane to even begin down that road IMO.

Let's stop and think about this for a second. If an order was given to strike down the 2A, I don't believe people would go quietly here like they have in other parts of the world. It would be the last straw and an instant spark to a civil war IMO and I don't think that is delusional. If you really think about it do you think people would go along with this quietly? I don't. And the world in all honesty couldn't handle the US in a civil war, not in today's time. The world economy and banking system relies on the US. Many people rely on us for military protection and support. If a civil war happened here today it would be detrimental for the entire globe.

Maybe it wouldn't be as bad as I think but does anyone really want to play those cards? I sure as hell don't. I don't think the country would ever recover either, not completely. If anyone running for office wants to play those cards in the slightest bit then they don't deserve to be in office as they would be insane and should be in an institution of some sort. That's just nuts. It would literally set off a domino effect that the entire globe might not recover from. Then again some people may think I am crazy for even thinking that. Maybe I am, maybe I am not. It's something to ponder but it's certainly something I wouldn't want to test.

 

[Ohio Gun Guy]

Do you guys really believe they would ever overturn... Yes, Here's Why: You had (4) justices effectively vote that the 2nd Amendment of the Bill of Rights was not an Individual Right. Those same Justices if made the majority will find a way to get that done. A court principle is easier to trample than the Bill of Rights!

I would hope your 2nd premise is correct, but I'd rather not find out or have it come to anything close to that.

Please write your Senators and Encourage them to just not to anything.... It's that easy... Just dont have hearings, don't do anything!

 

[v35]

... Just dont have hearings, don't do anything!

That is not an effective strategy. It would just give the President more reason to demagogue, something he's very comfortable with doing. That will just play into his hand and weaken any meaningful opposition.

The Republicans, predictable as always, already screwed up by publicly announcing a strategy of obstruction.

From a leadership perspective it would have been far better for them to pressure the President to nominate someone without delay, so that that someone can be exposed for whatever he or she is. If you are going to lead, then lead, da**mit. Hold all the hearings you want, and let them take the time commensurate with the gravity of the appointment to a position that will undoubtedly influence the next few decades.

Unfortunately Congressional leadership does not appear to a position in which Republicans have found themselves comfortable. Expecting Republicans to take the lead in Congress is like expecting a pig to sing. They don't have a clue, and haven't had one, for decades. The voting public has responded to that failure by voting Democrat... or not voting at all... and lacking a clear leadership strategy from the RNC they will again.

 

[RetiredUSNChief]

While the danger of a reversal always exists, it's important to remember that the Heller decision was a 5-4 decision...therefore, the possibility of a reversal already existed prior to Scalia's death.

Second, and speaking NOT as an attorney (because I'm not one), Prior Supreme Court decision don't just get "reversed" out of the blue. The list of explicitly overruled SC decision is pretty darned short. And said "reversal" requires another case before the Supreme Court...they don't go back periodically and "review" prior decisions to see if they "need changing".

As someone already posted, it's not uncommon for any judge's apparent political beliefs (conservative or liberal) to be at odds with their later performance as a SC judge.

As for the reference earlier to Roe v Wade...how many people here realize that the judges that made up the Supreme Court during that decision were majority conservative?

Blackmun (Nixon)
Burger (Nixon)
Powell (Nixon)
Stewart (Eisenhower)
Brennan (Eisenhower)
Douglas (FDR)
Marshall (LBJ)

So 5 of the 7 justices who voted for Roe were nominated by conservative presidents and most have clearly documented conservative political leanings.

The two who dissented? One of them was conservative, too:

White (JFK)
Rehnquist (Nixon)


Don't give up hope, and certainly don't give up fighting when it comes to who is to replace Scalia. But don't kid yourself that one or the other will necessarily result in a "reversal" of a SC decision. Or, conversely, work to preserve it.

 

[Sebastian the Ibis]

Do you guys really believe they would ever overturn a previous decision and come after your 2A rights in totality? Do we really believe any politician would think this is a good idea? That person or persons, whoever they may be, would have to be insane to even begin down that road IMO.

Supreme Court Justices are appointed for life, there is no re-election. The don't care about highly vocal and influential minorities, who would substantially support their campaigns (or those of their opponents). Also, there is no-recall option for SCOTUS short of impeachment. In this regard they are not like your mayo/governor/president/state legislators and congressmen.

RTKBA groups have done a masterful job of making anti-politicians suffer (see 2013 Colorado recall). Indeed, this is likely why Obama and Harry Reid rolled out such impotent gun control measures last month. Had they thought there would be a political benefit (in a presidential election year) they would have proposed draconian gun control measures and played it out on the airwaves. However, they recognized that this would drive RTKBA voters to the polls and their pocketbooks.

Liberals have recognized that much of their social agenda (gun control included) cannot be accomplished through the democratic process. As such, for decades they have tried to accomplish through the courts what they could not do legislatively. This is why they ridicule ideas such as abiding by the text of the Constitution or U.S. Code (textualism) and prefer a “living” document which grows outdated and confirms to the whims of those in a position to interpret it.

This is why selecting a new Supreme Court justice is so important.

 

[tuj]

USN chief makes a great point; you cannot know how a judge will go just because they were appointed by a D or an R. Sandra Day O'Conner (ret.) was a Reagan appointee, but generally voted with the so-called liberal bloc.

But hey, what do I know, just live in a 100+ year old system of colonization. That's right, I don't even get to vote for President, and I have NO voting representation in Congress.

How's that for democracy?

 

[fastbolt]

It's not like I don't love Gura, but at the same time, I think he is overstating it a bit. It's about the same thing as saying that if a conservative justice is nominated, that's the end of Roe v Wade. There have been many conservative justices since then, and it's very much still there.

I tend to agree.

As much momentum in pro-gun owner laws, and clarification of laws, as gun owners have seen in recent years, I'd also suspect it's going to take more than a simple 'reversal' to erase the second amendment clarification that has occurred to date.

As mentioned, abortion advocates are consistently trying to scare their voting demographics into fearing a new "conservative" SC justice will overturn the '73 ruling, but it hasn't happened in all the time there's been a "conservative majority" on the court.

This isn't exactly a "sky is falling" moment.

 

[RetiredUSNChief]

Finally found what I was looking for, but couldn't find in time for my last posting.

It would have been so much easier if I could have just gone to a past posting I had made on another site a few years ago, but alas...that site is gone now. Ah, well.

Copy/pasted from wikipedia:

Stare decisis (Anglo-Latin pronunciation: /ˈstɛəriː dᵻˈsaɪsᵻs/) is a legal principle by which judges are obligated to respect the precedent established by prior decisions. The words originate from the phrasing of the principle in the Latin maxim Stare decisis et non quieta movere: "to stand by decisions and not disturb the undisturbed." In a legal context, this is understood to mean that courts should generally abide by precedent and not disturb settled matters. The principle of stare decisis can be divided into two components.

The first is the rule that a decision made by a superior court, or by the same court in an earlier decision, is binding precedent that the court itself and all its inferior courts are obligated to follow. The second is the principle that a court should not overturn its own precedent unless there is a strong reason to do so and should be guided by principles from lateral and inferior courts. The second principle, regarding persuasive precedent, is an advisory one that courts can and do ignore occasionally.

https://en.m.wikipedia.org/wiki/Precedent#Principle


I'll defer to some of the members here who are attorneys on the matter of stare decisis, but in a nutshell it means that precedent is not easily, or arbitrarily, "reversed".

 

[abajaj11]

Got this from Gun Owners of America:


Anti-gun Liberals Pulling Out the Stops to Get a Radical Supreme Court Justice

ACTION: Contact Senator Mitch McConnell and urge him to stand strong against the media pressure. Demand that he block any anti-gun “swing vote” from moving through the Senate and being confirmed to the Supreme Court.
This is the link to contact him:
https://www.mcconnell.senate.gov/public/?p=ContactForm

Don’t Let McConnell Backtrack on Blocking Obama’s Anti-gun Nominee!

Mitch McConnell is under a lot of heat from the liberal media.

But he got it right when he recently indicated that Obama's effort to snuff out the Second Amendment needs to be nipped in the bud.

No radical Supreme Court nominee to make the rounds and visit with Republican senators.

No hearings. No floor votes. No possibility of movement or confirmation.

Nothing … period.

Because, make no mistake about it: If Obama gets his pick, the Second Amendment, as far as the corrupt courts are concerned, is dead.

Senator McConnell said that the next president should get to fill Antonin Scalia’s seat. But he’s now coming under intense pressure to buckle under.

The liberal media and legislators are demanding that McConnell begin the process of reviewing a presidential nominee once he’s put forward -- a process that would, almost invariably, result in the confirmation of a radical, anti-gun “swing vote” Justice to the Supreme Court.

If this happens, the court will reverse Heller, and will, for the remainder of our lifetimes, hold that the Second Amendment applies only to militias, not individual rights.

If Obama gets his pick, the court will reverse McDonald, meaning that the states will be free to impose a total confiscation of all guns.

If Obama gets his pick, 5,000,000 illegals will be legalized by executive fiat. And the electorate will be so transformed that the national government will become like California's -- for the remainder of our lifetimes.

So it is no surprise that Obama and the "puppet press" is going "full goosestep" in their efforts to beat Republicans into submission.

On Thursday, the New York Times effectively called the GOP "racists" for refusing to approve Obama's anti-gun pick.

Tragically, some brain-dead Republicans think they can buy off Obama and the puppet press by moving the nomination forward, but stopping short of confirmation.

This is insanity, and GOA has posted a Fact Sheet on the GOA site which answers point-by-point the nay-sayers who claim that Republican Senators will shoot themselves in the proverbial foot by blocking Obama’s eventual nominee.

It’s just not so.

We Don’t Need to Play “Cutesy” with the Potential Repeal of the 2nd Amendment

MSNBC has echoed Obama's strategy over and over again.

They want to put a "human face" on the nominee by having Senate Democrats parade him or her around Senate offices.

To some extent, this will happen when the nomination is made. But, if the nominee treks from one Republican office to the next in anticipation of hearings, the process will be dramatically intensified.

If the nominee testifies before the Judiciary Committee, with his or her photogenic as a backdrop, the process will accelerate.

And, when the nominee gives Hillary Clinton-like fraudulent testimony about his or her love for the Second Amendment and stare decisis, the process will become very difficult to stop.

Each step of the way will encourage the press to focus white-hot attention on the nominee and white-hot attacks on Republicans.

And make no mistake about it: It is not procedurally possible to hold hearings and not open the door to a Senate floor vote.

Under those circumstances, Harry Reid will use the Senate rules to discharge the nomination from committee and onto the senate floor for a vote.

So enough of this mythology that Republicans can "feed the alligator" but not be eaten by it.

If Republicans cannot withstand the pressure to "do something," they will not be able to withstand the pressure to vote "yes." Particularly given the possibility that Senate Minority Leader Harry Reid is going to use parliamentary tools to "nuke" the filibuster and confirm the nomination with 50 votes (plus Biden) -- rather than being blocked by 60-vote supermajority.

Realize that when Obama says about his nominations that "They deserve a vote," what he really means is "They deserve a ‘yes’ vote!"

And, by giving Obama step-by-step victories at each stage of the process, Republicans only make it harder on themselves and more difficult later on.

The liberal media is pulling out the stops to shame Mitch McConnell into allowing votes on a presidential nominee.

We need to exert counter pressure.

We need to swamp Senator Mitch McConnell’s office with phone calls and mail from gun owners nationwide, encouraging him NOT to back down.

Urge Senator McConnell to block any anti-gun “swing vote” from moving through the Senate and being confirmed to the Supreme Court.

Thank you for taking action. We need your activism like never before!

Sincerely,

Michael Hammond
GOA Legislative Counsel

P.S. Contact Senator Mitch McConnell and urge him to stand strong against the media pressure. You can send a pre-written letter or call Sen. McConnell’s office at 202-224-2541.

The pre-written letter is at:
http://www.gunowners.org/contact-senator-mitch-mcconnell.htm?src=021916


Urge him to block the legislative process and prevent any consideration of an anti-Supreme Court Justice who is nominated by this lawless president. Let him know that you, and the entire nation, will be closely watching he does.

Please forward this on to others.

We need to start calling again, folks. Once a week.

 

[Red Wind]

Agree with GOA and you, 100%.

 

[SilentStalker]

See, this is my point. I don't know what to believe. On one side of the camp you have people arguing that this is really not that big if a deal and that previous decisions are not so easily overturned. On the other side of the camp you have people arguing this is a very big deal and that they certainly can and will use the courts to eradicate the 2A. So, which is it? If we cannot even agree on something like this then I have have no idea how we can reasonably fight any legislation that may come down.

 

[abajaj11]

See, this is my point. I don't know what to believe. On one side of the camp you have people arguing that this is really not that big if a deal and that previous decisions are not so easily overturned. On the other side of the camp you have people arguing this is a very big deal and that they certainly can and will use the courts to eradicate the 2A. So, which is it? If we cannot even agree on something like this then I have have no idea how we can reasonably fight any legislation that may come down.

Any one who is a GENUINE supporter of RKBA and 2A and has ANY idea how things work, KNOWS this is a VERY BIG DEAL.

I am not sure of the motivations of others who may post here, but it seems to me that creating disinformation amongst your opponents is an old strategy. Feigning confusion and pretending that this is not a big deal seems like a great way to proceed here if you are ANTI RKBA.

 

[barnbwt]

"This isn't exactly a "sky is falling" moment."
The sky is certainly cloudier, though. It is an unspoken truth that everyone assumed that if the court were to strike down some of these more onerous laws (bans) and return us to something approaching the proper state of gun control, it would be as an opinion authored by Scalia. That is no longer the case, and we need either a new champion on the court to take over, or more realistically, a way to achieve our ends without or (even more realistically) in spite of the court.

I'm sure it's the same type of feeling experienced by the Hebrews when Moses died before they reached the promised land; what do we do now? The goal is still very much achievable, but the watershed moment that we were seemingly building toward (shall-issue, AWBs, mag-bans, registration, NFA) has been delayed once again. The nature of the delay is itself an unknown, due to the simultaneous watershed moment we appear to be experiencing in national politics as well.

TCB

 

[SilentStalker]

^^^^thats kind of how I feel abajaj11

 

[RetiredUSNChief]

Any one who is a GENUINE supporter of RKBA and 2A and has ANY idea how things work, KNOWS this is a VERY BIG DEAL.

I am not sure of the motivations of others who may post here, but it seems to me that creating disinformation amongst your opponents is an old strategy. Feigning confusion and pretending that this is not a big deal seems like a great way to proceed here if you are ANTI RKBA.

First of all, even though you named no one, lets not wander off the beaten path with statements about who is and who is not a "GENUINE supporter of RKBA and 2A".



This IS a big deal PRECISELY because the changing of ANY Supreme Court Justice is a big deal. Moreover, ANY case which goes to the SC is likewise ALWAYS a big deal.

Therefore our strategy is, and should ever be, continued vigilance now and forever.

Most people here (not all) tend to focus on the here-and-now, and perhaps the future in a somewhat longer term. They also tend to focus on our more distant past, meaning the history of the Second Amendment. And while this is good (great, even), some have lost sight of our history in the last half century or so.

Namely that it is our due diligence which has gotten us to where we are today, relatively speaking, since the enactment of untold scores if laws and restrictions to the RKBA since the 1968 GCA. This has been, and continues to be, a steady improvement in our favor because of the long term commitment of those of us who dearly value our RKBA.

The Heller decision, landmark decision that it is, was not something that just "came out of the blue" and established some kind of "new" way of legally looking at our RKBA. It was the product of decades of diligent pursuit of our 2A Amendment rights in the face of its opposition.

Rest assured...people like myself aren't thinking such matters are "no big deal". We fully realize that the moment we all lie down and show our bellies we'll be steamrolled and start losing rights right and left...2A being one of them. We realized that we must ALWAYS be vigilant when protecting our liberty, in all its forms.

BUT...that does not mean we take every possible worse-case scenario at face value. It is important to actually understand how our legal system does and does not work and develope tactics and strategies which effectively utilize that understanding. A realistic perspective is important.

Heller was not a win for us because it just "happened". It was a win for us precisely because a great deal of work went into developing the tactics and stratigies required based on the knowledge of how our legal system works.


The fact that stare decisis exists is important...it is part of the foundation of our legal system which provides for long term stability. It is another tool in our toolbox, which may, properly utilized, be used to further our battle in securing the long term RKBA for all citizens.