ShooterMcGavin said:
...Please correct me if I am wrong... it seems that, in your opinion, anything becomes constitutional (or proper, just, reasonable, etc.) based upon the courts' interpretation of that right...
Essentially, you're right. As a practical matter, as to what is and is not Constitutional, what the courts think trumps what a bunch of guys on the Internet think. Of course, sometimes lower courts make mistakes and get reversed by higher courts. And sometimes those higher courts get reversed in turn. And as far at the Constitution of the United States goes, the Supreme Court of the United States pretty much as the final say (just as do the highest courts in each state as to the state's constitution).
The way I look at it, in the real world the lives, property, rights and responsibilities of real people are actually affected by what the courts do -- not by what we on this gun forum think. What does it matter if we all agree that something is unconstitutional if the court doesn't agree and is sending a real live person to jail? So we're gnashing our teeth, rending our garments and pouring ashes on our heads blathering about how wrong that is, while someone is behind bars picking up soap in the showers for guys with no necks. And what if that person, by better understanding reality -- how courts work and what they are likely to do -- could have avoided that result?
That's one of the important reasons for understanding reality -- understanding how courts work, what they've done and what they're likely to do in the future -- it lets you make choices. It lets you make plans to avoid, or at least minimize the risks of, bad outcomes. It also helps you pick your fights.
One of the reasons we had to wait so long for
Heller is that we were waiting for a case that would allow the Court to focus on the individual right issue and not get bogged down in a lot of extraneous matters. So we got a good decision in which Scalia wrote, point blank, "The Second Amendment protects an individual right to possess a firearm unconnected with service in a militia, and to use that arm for traditionally lawful purposes,..."
But one reason I'm so negative about fighting about the question of licensing the carrying of guns, is that, at least with respect to "shall issue" laws, that remains one of the least of our problems. Not only do I think that most courts will look at shall issue laws as a minimal intrusion on the RKBA and serving a compelling state interest, and thus likely to survive a challenge, but also we have far bigger fish to fry.
Heller was wonderfully helpful, but we still have some very significant fights -- far more important than shall issue laws.
There is first the question of whether
Heller will survive. We won by only 5 to 4 with very strong dissent. If Obama is elected President and significantly changes the composition of the Court, it could reverse itself. If that happens, all bets are off.
If
Heller can survive, we still need a good Supreme Court case making the Second Amendment applicable to the states. There was a long tradition of the Supreme Court holding that the rights enumerated in the Bill of Rights don't apply to the states. After the adoption of the 14th Amendment, courts began using the 14th Amendment to make piecemeal those enumerated rights applicable to the states. So until we get a solid court decision applying the Second Amendment to the states, the question is in doubt (at least in those states without a RKBA provision in their constitutions). (For more on this issue, see
http://en.wikipedia.org/wiki/Incorporation_(Bill_of_Rights)) . While I'm not a big fan of Wikipedia, this is a decent overview of this matter.)
Then we have the outright bans to attend to, like Chicago. There will also be the discretionary and may issue laws to be dealt with.
My training, and the way I earned my living for more than 30 years, has included knowing what courts have done, predicting what courts are likely to do, and helping clients make the best choice in light of that reality. And I know that courts will do what they do without regard to my personal opinions or those of my clients.
And courts will go right on affecting real people without regard to our feelings here (and that includes yours, goon, and yours, Shadow1198).
