The Partisan Divide on Issues

[Bob Butler 54]

(08-20-2020, 12:26 PM)Classic-Xer Wrote: Interpretation and changing American laws is not the job of of the lower courts. The job of the lower courts is to enforce and uphold American laws that are in place and maintain the integrity of the American legal system.

And yet a court case has to go through the lower courts before it reaches the high courts.

Much of the new thinking on gun rights was developed in the colleges.  Various professors created the 'Standard Model' of the Second Amendment creating on paper an individual right in it's entirety before anything happened in the courts.  Many times the Standard Model was included by rote by a defense attorney, but the judge would ignore it and ratify the existing Jim Crow law under a 'stare decisis' basis.  

The start of reinterpretation came when a judge familiar with the academic theory was presented with a case ideally suited for challenging stare decisis.  He included the academic work in his decision and did well enough that the appeals to higher courts kept giving the case to higher courts still.  The government lawyers with a a preference for the Jim Crow interpretation kept appealing, and with each appeal the Standard Model elements of the case became the law of the land in ever larger portions of the country.  The lower courts had the Standard Model as stare decisis.

That is more a glimpse about how to legislate from the bench.  The right case has to be presented before the right judge who has kept up with the academics.  The new ideas have to be presented in such a way that they will be appealed to ever higher courts influencing an ever increasing area.