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Old August 27, 2014, 02:27 PM   #24
Bartholomew Roberts
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Join Date: June 12, 2000
Location: Texas and Oklahoma area
Posts: 8,462
While Scalia certainly wrote parts of Heller that can be criticized, his "presumptively lawful" language has been both a blessing and a curse. Courts aren't doing the required analysis - they are just blessing the regulation and quoting the presumptively lawful language.

On the one hand, it has screened out a lot of undesirable plaintiffs who might have made bad case law at the appellate level. On the other hand, we're still getting bad case law at the appelate level because those courts aren't really going much further in analysis either.

Either way, the decision was going to have to have language like that or you wouldn't have lost one Justice but several. Thomas is really the only Justice whose shown an interest in interpreting things even if it upsets the apple cart.
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