Friday, June 27, 2008
Supreme Court Revisted
Less than 24 hours after I wrote that any 5-4 opion of SCOTUS in which Justice Kennedy is the 5th is probably a mess, we get just such an opinion, this time on gun rights. The court ruled (this time, I think rightly) that the 2nd Amendment is an individual right, and does not limit ownership of firearms to members of a militia. (As a matter of con law--in which I am certainly no expert--it seems just logical that if the founders obviously intended all the other 9 of the other rights in the Bill of Rights to apply to individuals, and there's one that can, by virtue of a funky comma, be read either way, that it's far more likely that the ten were all intended to be read the same.) This time it was Scalia who wrote the opinion, so at least we are spared Kennedy trying to explain it. So... does this mean I was wrong about Kennedy's reasoning, that I'm a hypocrite for thinking the court got this one right, or that even a stopped clock is right twice a day? I'd say it just is further evidence that Kennedy is impossible to pin down. Two days ago, he's rewriting death penalty law ex nihilo. Yesterday he's a strict constructionist. Tomorrow--who knows? It's a little sad that as your case winds its way through the intricacies of the federal judiciary, in the end, your legal fate may just depend on what mood you catch the swing justice in.