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The case that I just summarized, U.S. v. Parker
(10th Cir. 2004) was decided, at least in part, because existing precedents of
the 10th Circuit held that the Second Amendment is a collective right. I
have a couple of questions.
1. The 9th Circuit operates on a similar principle,
requiring an en banc decision to overturn an existing precedent. Do
all federal circuits operate by this same rule? Or are the rules different
in different circuits?
2. If the rules are the same in all circuits,
whence comes this rule? Is it statutory? Is it tradition? Does
a federal judicial conference make up the rules?
I understand the reasoning behind this--the courts
are trying to make stare decisis win over judicial whims. I also
understand the arguments for and against stare decisis--instability of law
creates chaos; stare decisis based on a wrong or peculiar precedent leads to a
long chain of wrong decisions.
I suppose that I will learn all this in law school,
but I'm still not able to retire yet.
Clayton E. Cramer
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