Or: Business as usual in the land of Huh?
Yesterday, George Will wrote regarding the amazing interpretational flexibility of the US Supreme Court, with respect to Establishment Clause issues. Hairsplitting
I don't take any particular exception to his conclusions, but I do wonder why it's supposed to be news?
Consider:
So why is today's court preoccupied with the supposed problem of mere displays of the Commandments? Because beginning about 25 years ago the court evidently decided that the Establishment Clause's historical context, and the Framers' intentions regarding it, are irrelevant.
All due respect, Mr. Will, but this is hardly the first Constitutional clause to be sacrificed on the altar of 'progress', nor is this the first panel to wield the dagger.
Certainly the 'Miller' court (307 US 174 (1939)) viewed original intent and the historical context of the 2nd Amendment as not only irrelevant, but somehow incorrect. Still, one must remember that this was the same decision which held that a short-barreled shotgun was not 'part of the ordinary military equipment', despite the extensive use of exactly such firearms in the trenches of Europe in the recent world conflict.
At that, butchering the intent of the 2nd Amendment was not the high court's first foray into interpretational expediency. A good case can be made regarding their treatment of the 14th Amendment, starting in 1874 or so...
This isn't the first time they screwed up, it probably won't be the last.
The last I can cut him some slack on mainly because SCOTUS is not a trial court &the way the world works is SCOTUS can only consider facts introduced at trial court (unless it's something fairly obvious). So on that one it was ignorance of the facts but partially because of th enature of the system.
But he didn't say that they didn't have a martial use. He said that it was "beneath judicial notice" that they had a martial use. Fancy words meaning that the court didn't know if they did or not but since no evidence was introduced they were inclined to assume there wasn't a martial use.
But a sproblematic as Miller ha sbeen that's mainly due to misinterpretaion of Miller by the lower courts. Actually if Miller was correctly applied 99.9% of gun owners could live with it.
You're correct though; the courts have been coming up with unusual logic to achieve things that should have been clear to them that the constitution prohibited. &unfortunately you're right again that they won't rpeent &see th elight naytime soon - least not on the whole.