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Old September 5, 2010, 08:49 PM   #29
Tom Servo
Join Date: September 27, 2008
Location: Foothills of the Appalachians
Posts: 12,154
1986-Bowers vs. Hardwick, SCOTUS rules 5-4 that states have the right to outlaw private homosexual acts. 2003-Lawrence vs. Texas-SCOTUS rules homosexuality is a constitutionally protected freedom.
You've got a point there. I've heard the change in judicial philosophy on the matter between 1986 and 2003 had something to do with changing attitudes in the mind of the general public. Then again, I haven't read all the amicus briefs from both cases. It could very well be that one of them advanced novel new arguments in the second case that weren't presented in the first.

There are times the Court needs to change its stance. The Citizens United case was one example. Even then, however, Justice Roberts made it quite clear that reversing precedent was a matter to be taken very seriously. After all, if the Court reverses precedent too quickly and easily, then what credibility do those precedents have in the first place?

What's ironic is that in Lawrence v. Texas, Justice Stevens wrote that the Court had read the right to privacy too narrowly in Bowers. This is the same guy who wants the 2nd Amendment narrowed to nearly nothing.

...which brings us to Bartholomew's point. We still haven't built the case law. We need to establish a strict standard while the iron's hot, and we need to know the whole topography of the right in question before the idealogical balance changes.

SCOTUS is far more likely to take a "back door" approach to repeal of the 2nd by using the discretion afforded via Heller for the local/state regulation of firearms and firearms transactions
That's what worries me. One of the worrying parts of Scalia's opinion in Heller was this bit:
(...) nothing in our opinion should be taken to cast doubt on (...) laws imposing conditions and qualifications on the commercial sale of arms. (p. 54)
We're seeing it in Chicago and Washington DC right now. A municipality could simply outlaw the sale of arms, and we've got a de facto ban. Heck, you could even skip the legislative process and do the same thing through zoning regulations.

We've still got work to do, and a limited window in which to do it.
Sometimes it’s nice not to destroy the world for a change.
--Randall Munroe
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