How Could a SCOTUS Justice Vote "No"?
Just curious about how any SCOTUS Justice could now vote "no" on incorporation with Heller on the books?
Because our system is based on the fragmentation and division of political power among different levels and branches of government.
The distribution of political power is in a constant state of flux and there is a precarious balance that needs to be maintained in order to keep the bearings of the nation on kilter if it is going to survive intact and in good health into the future.
In order for one branch or level of goverment to grab and consolidate additional power, it comes at the expense of another level of government. So someone's loss is someone else's gain which can throw off the fragmentation and distribution of power, and which then requires a reconfiguration which can not only have unpredictable and unintended consequences, but it can affect the survivability of the nation as a whole.
So the issue has presented an insurmountable chasm so far which needs to be given enough time for development of the "caterpillar" of legal theory to catch up.
Someone has to bring up the rear when the rear needs to be brought up.
It's just a matter of time and for the head to find it's proper bearings without upsetting the rest of the system to the point where any stable, survivable reconfiguration becomes impossible to create.
A decision of this magnitude needs overwhelming support, probably not just from the SCOTUS, but also with the cooperation of Congress and the states which may need to help with enforcement and compliance.
For every revolution, there's a counter-revolution.
Don't think that there's never a backlash as a result of a power grab by any branch or level of government.
The survival mode of the nation is the priority and everything else is secondary.
1. How much of a priority is attributed to incorporation?
2. Is incorporation necessary to the survival of the nation or would it be an impediment?
There's always the backlash to be considered.
It's all about fragmentation vs. consolidation of power.
The Supreme Court acts when the states and Fed's can't get their act together to do their job and protect people's rights.
Unless there's a major clamour then who wants to fundamentally alter the balance of power and suffer the societal consequences?
If incorporation led to the necessity to double or triple the number of police officers in the nation, would it be supported?
Could it lead to our nation becoming more of a police state?
And whose police and burden are they going to be, Federal, state or local?
This is the kind of scenario that needs to be considered.
Legal theory isn't developed in a vacuum.
It sometimes progesses extra slow in order to promote societal stability.
Let's examine and answer some of these questions rather than calling people and political parties names and pointing fingers.
That begins by believing that everyone is on the same side, is a patriot and a red-blooded American. They all want what is best for the country, some just need to be convinced. And when those power brokers just can't be convinced, then society just needs to wait for them to die.
That's the fragmentation that's built into the system, so no one or single entity has absolute authority in the end, not even the SCOTUS. That's where the forces of counter-revolution enter the picture over time.
In the final analysis, when incorporation happens if ever, it needs to be done right the first time so there's no going back and the nation and it's citizens benefit rather than suffer for it.