Bull Moose Strikes Back

What a difference a couple of years make. When I took Constitutional Law in law school in the 2006-2007 school year, Supreme Court Second Amendment jurisprudence was sparse, and what was there was a mess.  There were two very basic questions that were left outstanding: 1) Does the Second Amendment apply to individuals or the population as a whole? and 2) Does it apply to just the federal government or is it incorporated through the Fourteenth Amendment to apply to the states?

The answer to the first question was supplied almost exactly two years ago in Heller: The SCOTUS held that the rights were indeed individual, the capstone of a long slow turn about of lower court jurisprudence (and left-wing echo chamber intellectual work) over the last half century.

Today, the court ruled in McDonald v. The City of Chicago (PDF) that the Fourteenth Amendment does indeed incorporate the Second Amendment rights to the states.

Which makes sense. Say what you will about the doctrine of Fourteenth Amendment incorporation, but either all of the constitution’s protections should apply to the states or none of them should (and the individual state’s constitutions should rule).  And since the doctrine of incorporation was pretty much settled on battlefields between 1861 and 1865, it seems like the Second Amendment is being incorporated rather late.

Note that this was a 5-4 decision which would have almost certainly been 6-3 the other way had George Bush not been reelected in 2004.  Presidential elections matter long beyond the term of the Presidents elected. The timing of this decision really emphasizes that since today we are seeing part two of a line change of the four left wing justices.

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Could Kagan be a stealth moderate? Those are some interesting finds at that link, but I’m not holding my breath. First, moderate SCOTUS nominees tend to turn into leftist SCOTUS Justices. Second, Obama knows her fairly well and must know what he’s getting. Right? Then again, Obama has not shown himself to be a spectacular judge of people.

However I will say that Kagan is head and shoulders above Obama’s other finalists in my view.  Sure, she was never a judge, but that might be a feature rather than a bug (see: William Rehnquist). I don’t understand why Kagan wasn’t nominated before Sotomayer.  Well, maybe I do. I’d theorize that it has to do with Obama’s obsession with being historical; first wise latina on the court and all of that. But if Kagan was put on the court in part  to try to win Kennedy, you’d think that would have been the priority.

I’m also getting a kick out of the gay-or-not-gay rumor mongering from the left.  I just assumed, perhaps incorrectly, that she is a lesbian. And because I’m one of those bigoted conservatives it didn’t make any difference to me either way, I’m just against her because she’s a woman (everything after the comma was a joke for those of you that are humor impaired). I was surprised to see this story yesterday.

In any case, it looks like the SCOTUS left wing line change is 2/3 done.  There’s just Ginsburg to replace before 2012.  (I’m hoping that Breyer tries to make it into a second Obama term and then… whoever… can replace him and break the perpetual 4-4-1 tie.)

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I wasn’t going to say anything about Obama’s shot at the SCOTUS, because, who cares? SCOTUS had the binding word.

But it has slowly been dawning on me how politically stupid it was: Almost all politically hot decisions are going to be 5-4 votes one way or another for the foreseeable future. So what does Obama do? He scolds the swing vote to his face in the State of the Union for the most recent majority opinion he authored.

Good luck to the next attorney trying to move Kennedy over to the administration’s point of view next term.

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When I hear fellow Federalists / conservatives urging for a fight to the death over Judge Sotomayor, this comes to mind:

Here’s why I don’t want to waste a lot of time and energy fighting her:

1. It’s an even exchange. Obama is just renewing Souter’s term for 30 years. Not great, but the politically charged decisions will still be 5-4 one way or the other.
2. She’s going to be confirmed. If she isn’t confirmed, someone as bad or worse will be confirmed eventually. This was decided in November when we elected Barack Obama and a Democratic Senate. It is one of the main reasons I threw in with McCain despite my reservations. It is the main reason I pleaded with fellow conservatives / Federalists to overlook his flaws. But that’s neither here nor there. Obama is President, the Democrats have the votes in the Senate.
3. Conservatives lose every time they get drawn into a game of race or gender politics with the left. The left is better at it because it’s been their bread and butter for so long. Plus they have control over what gets blown out of proportion or taken out of context on most TV and newspapers. (Where’s the outrage over the Sotomayor “Latinas are better judges then white men” quote? Oh yeah, no where.) The day is coming where the cry of “Racism!” will no longer mean anything, but that day is not here yet.
4. Given 1, 2, and 3, it’s not worth handing Obama and company the (brutally edited) soundbites they need to woo the increasingly important Hispanic votes.

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