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Old October 27, 2020, 01:56 PM   #101
Aguila Blanca
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Join Date: September 25, 2008
Location: CONUS
Posts: 15,087
The problem with writing for the majority in a 5-4 majority is that if you hew too closely to a strict, textualist approach you may find yourself writing for the minority. I have no way of knowing, but I have always believed that's why the Heller decision included some of the truly horrible things such as the "existing, presumptively lawful" reference to other gun laws on the books, and the general ducking of all issues pertaining to evil black, "military looking" rifles. With no proof whatsoever, I believe that Scalia included those provisions in order to get Kennedy's vote on the issue.

It's fine to be "true to your colors" but, if holding to your principles results in losing the case for posterity, what good do your principles serve? Perhaps "pragmatic originalism" is a viable strategy.

I am hopeful that having ACB on the court may result in Roberts growing a pair.
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