Question on 4 Dissenting Justices in Heller

Discussion in 'The Constitutional & RKBA Forum' started by RDak, Oct 29, 2009.

  1. RDak

    RDak New Member

    Aug 7, 2008
    I have a question for you guys:

    In Heller, supra, we had four Justices who said the 2nd Amendment only applies to individuals connected with a militia.

    The majority ruled, however, that the 2nd Amendment applied to individuals not connected with a militia also.

    So, the not connected with a militia is now the law of the land.

    In the incorporation case now before the SCOTUS do all the Justices have to move forward with their analysis and accept the fact that the 2nd Amendment now applies to individuals not connected with a militia?

    I mean, don't the remaining three minority opinion Justices (Souter now retired) have to accept the majority's decision and make their judgment on incorporation within the boundaries of Heller?

    I'm unaware of any cases where this has occurred with the same Justices on the Court (Souter retired though). Maybe there are some cases that were decided under similar circumstances?

    It would seem to me that the three dissenting Justices who went against Heller would have to respect the holding in Heller as much as I would have to? Am I wrong?

    ETA: If you guys don't mind, I'm going to ask this same question at the various gunsites I'm a member of.
    Last edited: Oct 29, 2009
  2. armedandsafe

    armedandsafe Guest

    No justice has to shape his opinion based on precedent. They are, however, supposed to shape the decision on established law. If they weree not allowed to overturn previous bad decisions, they would have lost half of their purpose.


  3. RDak

    RDak New Member

    Aug 7, 2008
    Yes Pops, that is the "flavor" of the answers I'm getting at all the gunsites where I posted this question.

    Precedent is important but not ironclad.

    At least, it is normal procedure to respect prior decisions and only go against that prior decision if it is clearly "out of line".

    I guess that is all I could ever really hope for.
  4. Negative. If I understand the case you're talking about, the question is whether the 2nd applies to states at all. It never has, and there are cases that say it doesn't. The reason for taking this case at all is that the 9th Circuit Ct. of Appeals recently ruled to the contrary, and there is a need to unify the approach to interpretation among the circuits.
    Last edited: Oct 30, 2009
  5. RDak

    RDak New Member

    Aug 7, 2008
    I agree in the main with what you state.

    However, Nordyke (CA-9) discussed Heller and, that discussion/analysis, caused the Ninth Circuit to overrule their previous collective rights only determination in other cases.

    I was asking, in so many words, if the three remaining dissenting Justices have to rethink their position based on Heller when deciding McDonald?

    In fact, it was the reasoning and analysis of Heller in the Ninth Circuit decision that made me ask this question.
    Last edited: Oct 30, 2009
  6. rentalguy1

    rentalguy1 Former Guest

    A Supreme Court decision basically becomes the law of the land. It is a precedent opinion, and all lower courts are bound to follow it. Theoretically, the dissenting justices could issue a decision on a similar case, should it ever make it to the Supreme Court, but they most likely would never do so. If they did, it would call into question, every single decision that the SCOTUS has ever issued. It would be pandemonium among lawyers and the lines to file cases to the court would stretch for mile. For the dissenting justices to go against a precedent opinion, would be to turn the entire justice system on its head.
  7. Blackhawk Dave

    Blackhawk Dave Member

    Nov 20, 2008
    Denton, TX
    The key here is Heller applied to DC, which is a Federal Enclave, not a state. The new case is whether the 2nd, and possibly all Fed Amendments apply to the States. SCOTUS has interpreted the 14th, etc to make all amendments applicable to the States, and that's what the case is based on.
  8. Bobitis

    Bobitis Guest

    Now that's a novel idea.
    How many would move to DC if this was not applicable to their home state?

    Could this be their way to eliminate crime in the capitol?
    Gun totin' red necks: 30 million.
    Gangstas: 10 thousand. For a little while anyways.:D

    Kinda a novel approach really. How better to get crime and the fed under control?:p:D:D

    So we can call this a closed deal eh?
  9. You should run for Congress with a great plan like that:D:D
  10. dbrodin

    dbrodin New Member

    Apr 15, 2009
    Duluth MN
    In my opinion, it will be very difficult for the court to not rule for incorporation. The first amendment starts out Congress shall make no law Very specific, Congress, no mention of the states. Yet the court has ruled that the first is incorporated. The Second uses the phrase shall not be infringed. Nothing is said as to by who, just shall not be infringed. To make a ruling that such a broad statement does not apply to the states, when they have already ruled the First, which is very specific does, would create an inconsistency that I don't think they can allow.
  11. graehaven

    graehaven Well-Known Member

    May 26, 2007
    Rochester, NY
    It's absurd that a justice could be even nominated, let alone, confirmed, when they don't agree with the founders' interpretation of the Bill of Rights and Constitution, and in this case, especially where it concerns the 2nd Amendment.

    The fact that a justice could believe that the 2nd amendment does not protect the individual's right to own any and all firearms of their choice should immediately disqualify them, not to mention disagreeing with ANY of the other liberties protected in said documents.

    The whole thing is asinine.
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