The Volokh Conspiracy, Instapundit & Kim du Toit along with a few others are talking about the number of dissenting judges & the intensity of their dissents in 2nd amendment cases. What seems to be of interest are the dissents in Nordyke v. King. Of particular interest is that Justice Kozinski concurred with the majority opinion to deny an en banc hearing. This is the same Justice Kozinski who wrote a passionate dissent in Silveira v Lockyer & wrote the majority opinion in U.S. v Stewart(which stated that privately manufactured machine guns do not affect interstate commerce & therefore can't be used as a basis for NFA prosecutions).
I am simply not heartened by the dissents. their intensity is admirable & many good points are made in them, but they are still an underwhelming minority. The main reason I'm not as optimistic is that despite their personal feelings all these judges are bound by precedent. Justice Kozinski is arguably the most outspoken supporter of the Right to Arms on the federal bench today, yet he has denied 2nd amendment claims because he was bound by previous rulings of the court. He even concurred with the majority in Nordyke for what he deemed "prudential considerations".
If you haven't read "Game Over, Man. Game Over." by Kevin of The Smallest Minority then please do so. It sums things up quite nicely.
What we have is a judiciary that keeps building on very bad decisions even when the judges disagree with those decisions. Some will say this is a triumph of the rule of law or the impartiality of the courts. I disagree. I'm more inclined to say it's a sign of failure of the rule of law & shows the bias of the courts.
The rule of law is a very simple idea: a ruler is bound by the law just as the common person is. In this country we have a pecking order as far as the law goes. Deference must be given to the federal constitution when a conflict arises between it & a federal or in some cases a state law. The main purpose of the federal constitution is to place limits on government authority. What the courts have been doing with regards to the 2nd amendment is not to make the common folk & government equals in the eyes of the law but to side with the government against the common folk despite the constitutions limitations on government. They have done this through exercises in acrobatics of logic that are at times quite astonishing.
This demonstrates not only their personal prejudice in the matter but a deference to the government rather than the constitution. When a judge who openly agrees that the 2nd amendment protects an individual right feels compelled to abide by a system that whittles all the substance from said amendment he is not acting impartially. What he's doing is showing deference not to the constitution but to the courts.
You might disagree with my view on this. A very good argument could be made that without the system of precedent that the courts have long honored we'd have judicial activism of the worst sort. But I fail to see how that would be any worse than a system in which a man must forsake common sense & his oath to defend the constitution (assuming judges are still sworn in with an oath that affirms such) because he is verboten to rule against the government (i.e. the courts).
Let me make this clear - the judiciary is a branch of government. Some will say that the courts are not swayed as easily by politics & other factors which seem to drive the legislative & executive branches, but supposing that's true they are still swayed by considerations other than what their original purpose was: protecting the people.
Courts were instituted so that the ruler would be seen as fair in matters that directly effect the people. A murderer could not be summarily executed w/o a trial to determine if he was in fact a murderer. Similarly a person could not be punished for refusing to abide an unlawful act on the part of the government. (& yes I realize this is a rather simplistic explanation but bear with me as I'm a bit rushed.) For these reasons the courts were viewed as a good idea as a way to impose fairness on a government which by its very nature is unfair.
In our system the constitution is supposed to be the highest law in the land. No law that conflicts with the constitution is supposed to be upheld as valid by any court. In this way the courts are supposed to check the excesses of the legislature which in most circles are a recognized & unavoidable part of a legislative system.
But now it seems the courts are (& have been for some time) bending over backwards to explain why the laws which seem unconstitutional on their face are in fact quite constitutional. As many others & myself have said the lengths some courts have gone to in order to justify laws they approve of despite conflicts with the constitution are simply amazing.
But what discourages me is not so much that the courts are doing this, but that even judges who see this as blatently wrong are going along with it. Sixty four years of bad precedent is more compelling to them than their own conscience. That to me is the main source of my discouregment & disgust with the courts.
Some have opined that for reasons similar to what I stated above that we should be glad that a lot of 2nd amendment based cases are not heard by the higher courts. The idea being that until the courts are more favorable we should thank judges who vote against hearing such cases. & this I disagree with as well.
There is simply no practical effect that a Supreme Court ruling would have as far as the 2nd amendment goes unless it reversed those 64 years of bad precedent. If they sustain a federal courts ruling in whole that the 2nd amendment means the states have a right to a militia but individuals have no right to arms, then what difference will it make? Since the Supreme Court hasn't heard a direct 2nd amendment case in the last 64 years the district court rulings are binding on all lower courts. In other words the practical effect is the same whether the Supreme Court upholds a bad ruling or they simply refuse to address it.
This is because all federal district courts have promoted a collective rights view of the 2nd amendment. The 5th Circuit is the only notable exception & as yet hasn't been tested in their district. Considering the lengths judges have gone to in order to refute the meaning of a constitutional amendment I have no doubts that the 5th Circuit ruling in Emerson will be worked around in some fashion. Perhaps by a direct reversal or possibly even by stating that the 2nd amendment shouldn't have been addressed & the opinion concerning it was merely dicta (which is part of an judicial opinion that holds no legal weight). & as the recent Parker v DC demonstrates the 5th's view of the 2nd amendment is not seen as persuasive by other districts.
& you must remember that in Emerson the court did say that the 2nd amendment protected an individual right, but it was subject to reasonable government restrictions. To me there is little if any practical difference between the "collective right" view & the "reasonable government restriction of an individual right" view. It all revolves around what is considered reasonable & given what I've seen of the courts I'd wager that their idea of reasonable is a lot closer to Sarah Brady's than mine.
I wish I could share the optimism expressed by some, but for the reasons stated above I cannot put any more faith in the judiciary than I can in the legislative or the executive branches of government.