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Old September 2, 2010, 10:28 AM   #6
Bartholomew Roberts
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Join Date: June 12, 2000
Location: Texas and Oklahoma area
Posts: 8,462
First, I think people are focusing on the wrong issues here. If one of the majority in Heller and McDonald is replaced by President Obama, they would be EXTREMELY unlikely to overturn Heller or McDonald. Such a decision would create too much political fallout.

A much more likely strategy is that they would start "filling in the blanks" on Second Amendment litigation as fast as they can. Remember that Heller and McDonald addressed very narrow, limited issues. All Heller said was that there was an individual right to keep a handgun in the home for self-defense purposes. McDonald says that right applies to the states. Everything else is up for grabs.

An anti-Second Amendment majority of 5 Justices wouldn't need to overturn Heller or McDonald, they could just gut it by making it such a narrow right that it is practically useless. This is basically the same approach that the doctrine of substantive due process through the 14th Amendment used to gut the decision in the Slaughterhouse Cases.

The bright side? We'd be right back to where we were pre-Heller in legal terms. At the end of the day, they still have to have the votes to pass those kinds of laws. From the Miller decision until Heller, the Courts made no effort at all to slow gun control laws - that was slowed, stopped and reversed by citizens working together.
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