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Libertarian71
05-26-2009, 8:47 PM
Hello all. I am an LA-based lawyer, and have argued in the United States Supreme Court. The following post at a US Supreme Court blog caught my attention. It's an extended round up of her Second Circuit rulings in a variety of areas: http://www.scotusblog.com/wp/judge-sotomayors-appellate-opinions-in-civil-cases/

Here's the part about the Second Amendment. Apparently, she believes that the Due Process Clause of the 14th Amendment does NOT incorporate the 2d Amendment:

Second Amendment: Sotomayor was also a member of the panel that issued a per curiam opinion in another controversial case that may be headed for the Court next year. In Maloney v. Cuomo, 554 F.3d 56 (2009), the panel considered (as relevant here) a claim by a New York attorney that a state law prohibiting possession of a chuka stick (also known as nunchaku, a device used in martial arts consisting of two sticks joined by a rope or chain) violated his Second Amendment right to bear arms. The district court rejected the claim on the ground that the Second Amendment does not apply to the states. On appeal, the panel affirmed. Relying on the Supreme Court’s 1886 decision in Presser v. Illinois, it explained that it was “settled law . . . that the Second Amendment applies only to limitations the federal government seeks to impose” on the individual’s right to bear arms. The Supreme Court’s recent decision in District of Columbia v. Heller, the court continued, “does not invalidate this longstanding principle.” And while acknowledging the possibility that “Heller might be read to question the continuing validity of this principle,” the panel deemed itself bound to follow Presser because it “directly controls, leaving to the Supreme Court the prerogative of overruling its own decisions.” Maloney’s lawyers intend to file a petition for certiorari in late June.

damon1272
05-26-2009, 8:52 PM
Thanks for the post. Not what I wanted to hear but along the lines I expected. It is going to be a tough 4-8 years.:(

bwiese
05-26-2009, 8:54 PM
Relax, don't panic.

She's replacing Souter so no balance changes.

Just pray the Heller 5 eat right, exercise daily, etc.

HondaMasterTech
05-26-2009, 9:00 PM
Its funny. Correct me if Im wrong but doesnt that say essentially that the 2nd amendment protects against the feds but not the state? So the state is allowed to violate the 2nd but feds arent? That doesn't seem legal.

Liberty1
05-26-2009, 9:09 PM
Its funny. Correct me if Im wrong but doesnt that say essentially that the 2nd amendment protects against the feds but not the state? So the state is allowed to violate the 2nd but feds arent? That doesn't seem legal.

Yes that is the case. To most Americans who grew up with an apple pie view of government and the BOR (like I did) that comes as a rude awakening.


see this Supreme Court case for the explanation: http://en.wikipedia.org/wiki/Barron_v._Baltimore

What our side is arguing for in Nordyke and the Chicago cases is for the concept of "incorporation" of the 2nd A. against state law via the 14th A.

Maestro Pistolero
05-26-2009, 9:23 PM
Originally Posted by HondaMasterTech
Its funny. Correct me if Im wrong but doesnt that say essentially that the 2nd amendment protects against the feds but not the state? So the state is allowed to violate the 2nd but feds arent? That doesn't seem legal.

What you might be trying to say is 'That doesn't seem constitutional', and most people would agree. But fear not, because this very issue is likely on it's way to the Supreme Court, hopefully to be settled once and for all. There is presently a split in the circuit courts of appeal see thread (http://www.calguns.net/calgunforum/showthread.php?t=187856) that all but guarantees that the Supreme court will be hearing this case in the near term.

The 9th circuit has decided very recently, in Nordyke vs Alameda county, that the 2nd Amendment does apply to the states via the 14th amendment, but the 7th circuit appears more reluctant to overturn some bad, antiquated case law that says otherwise.

The 7th circuit thinks it is the Supreme Court that must overturn the old cases. The Supreme Court has all but said it like to would revisit, Presser vs Illinois, and what are known as the Slaughterhouse cases, which all but gutted the 14th amendment right to equal protection many years ago.

Group B
05-26-2009, 9:23 PM
Its funny. Correct me if Im wrong but doesnt that say essentially that the 2nd amendment protects against the feds but not the state? So the state is allowed to violate the 2nd but feds arent? That doesn't seem legal.

Of course it doesn't seem legal, but until the 2A is ruled to be above state and local constraints, this unfortunately is reality.

See Presser V. Illinois: http://en.wikipedia.org/wiki/Presser_v._Illinois

Nevermore
05-26-2009, 9:25 PM
Look at it this way. If she gets the nod and Nordyke, or some similar case challenging the 2nd/9th circuit split on incorporation, gets to SCOTUS, she's probably going to have to recuse herself, since she was on the panel in the 2nd circuit that decided that.

peepshowal
05-26-2009, 9:31 PM
Look at it this way. If she gets the nod and Nordyke, or some similar case challenging the 2nd/9th circuit split on incorporation, gets to SCOTUS, she's probably going to have to recuse herself, since she was on the panel in the 2nd circuit that decided that.

Would that mean that a four to four tie vote is possible?

HondaMasterTech
05-26-2009, 9:35 PM
If the constitution is the supreme law of the land, isnt the state government breaking the law?

bohoki
05-26-2009, 9:39 PM
well if the constitution only applies on the federal government not the states then the f part of the atf should be removed and all firearm control should be turned over to the states

pat038536
05-26-2009, 9:41 PM
Who said that the government (any level) had to follow the law. :willy_nilly:
Laws are for the commoners.

Libertarian71
05-26-2009, 9:42 PM
Its funny. Correct me if Im wrong but doesnt that say essentially that the 2nd amendment protects against the feds but not the state? So the state is allowed to violate the 2nd but feds arent? That doesn't seem legal.

The original Bill of Rights did not apply against the several States. Rather, the Bill of Rights was only binding against the federal government, and its attempts to restrict liberty. Remember, it was the States, one by one, which ratified the Constitution. The States were concerned with limiting the power of the federal government.

But following the adoption of the post-Civil War Amendments, virtually all of the Bill of Rights were eventually ruled to apply against the States via the 14th Amendment's Due Process Clause, which provides "nor shall any State deprive any person of life, liberty, or property, without due process of law." In other words, the 14th Amendment, which by its terms applied against the States, was viewed as "incorporating" the guarantees of the Bill of Rights. "Incorporation" was a long, slow, complicated process. (And as an aside, many legal scholars at the time, and to this very day, believe that the Due Process Clause of the 14th Amendment was not the appropriate clause of the 14th Amendment for incorporating the Bill of Rights. Instead, they believed that the 14th Amendment's "Privileges or Immunities" Clause was the proper vehicle. That clause provides, "No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States." I am partial to this view. For more background on why everything went wrong, see here: http://en.wikipedia.org/wiki/Slaughterhouse_Cases)

Heller involved a challenge to the DC gun ban, so did not directly implicate a state law. The anti-Second Amendment crowd's last line of defense in the wake of Heller is to argue that, even assuming that the Second Amendment respects an INDIVIDUAL right to keep and bear arms (which they deny as a threshold matter under their "collective rights" view), the Second Amendment nevertheless binds only the federal government, and thus does not limit states or localities from enacting whichever kind of regulations they see fit.

In sum, our natural right to keep and bear arms, which in my view is pre-political and existed prior to any Constitution, is subject to the whims and caprice of nine Justices in Washington, DC.

Liberty1
05-26-2009, 9:48 PM
If the constitution is the supreme law of the land, isnt the state government breaking the law?

Aren't you reading the above links?

The Cliff notes:

The BOR doesn't apply to the states directly because of Barron v Baltimore. And later Presser v Illinois backed up that type of thinking in regard to the 2nd A.

Other BOR amendments have been separately applied to state law over the past century (this is called the "selective incorporation doctrine").

We just won (tentatively) this "selective incorportation" fight in the Federal 9th Circuit Court of Appeals (covers the Western States only - including Ca). And we are awaiting this issue being addressed by SCOTUS in the next few years hopefully to have it settled law that the 2nd A DOES apply to the states.

HondaMasterTech
05-26-2009, 9:48 PM
So, where is the Federal United States? Maybe we should move there since its where these rights are protected. Im joking, of course.

GoodEyeSniper
05-26-2009, 9:50 PM
I still find it hilariously mind boggling, in a sad way, that you can't carry "two sticks joined by rope"... I mean... REALLY???

My backpack can get pretty heavy, and if I swing it by the strap it has a lot of momentum behind it, that sounds pretty dangerous. I can also throw my steel toed work boot with surprising accuracy and speed. WATCH OUT!

HondaMasterTech
05-26-2009, 9:54 PM
Well, Id read the above links, thank you, but Ive only been abl to glue an abacus to the ***-end of a carrier pigeon for my internet access so some of the above links you so thoughtfully reminded me about dont work for some reason. Not to mention Im not a lawyer or even a particularly intelligent person. Im doing the best I can.

Liberty1
05-26-2009, 9:56 PM
So, where is the Federal United States? Maybe we should move there since its where these rights are protected. Im joking, of course.


Washington, District of Columbia for one. I hear the new president is hiring. :p

Liberty1
05-26-2009, 10:06 PM
I still find it hilariously mind boggling, in a sad way, that you can't carry "two sticks joined by rope"... I mean... REALLY???

My backpack can get pretty heavy, and if I swing it by the strap it has a lot of momentum behind it, that sounds pretty dangerous. I can also throw my steel toed work boot with surprising accuracy and speed. WATCH OUT!

What I also find interesting is that a piece of wood fashioned into a practice sword (with handle and guards and a pointy end) is legal but a fat plain broom stick (a police riot baton) is a felony.

Protected Arms should at the least include ALL bearable personal discriminating weapons like batons, chukka sticks with string, and brass knuckles as well as firearms and I'd like to see artillery too :D - (weapons which can be aimed or directed at a specific target generally as opposed to weapons of mass destruction: mustard gas, nukes, etc....)

DDT
05-26-2009, 10:08 PM
If the constitution is the supreme law of the land, isnt the state government breaking the law?

The bill of rights and constitution as written was intended to only limit and define the roles of the federal government except where specifically referencing the states. The concept of "states rights" was much stronger back then than it is now. (You can primarily thank the abuse of the Interstate Commerce Clause for the change)

Later, in the 19th century the 14th amendment was written to expand the Privileges and Immunities enjoyed by US citizens against the federal government to include the same P&I guarantees against the sates.

Unfortunately; there were a handful of racist cases which limited the application of the 14th amendment. So, instead of having all of your P&I automatically applied against the states there were a number of cases that worked on specific rights to be incorporated into those protected by the 14th amendment. To further confuse things SCOTUS originally decided that not only were rights not completely incorporated into 14th amendment they were also not incorporated and privileges and immunities. So, the only recourse left was to apply them under the 14th amendment's "due process" clause. This way they could "selectively" incorporate one right at a time without opening up the whole can of worms. This has come to be known as "selective incorporation."

If you actually read the Nordyke decision it has an outstanding primer about how incorporation works and the 3 types of incorporation.

Libertarian71
05-26-2009, 10:11 PM
Well, Id read the above links, thank you, but Ive only been abl to glue an abacus to the ***-end of a carrier pigeon for my internet access so some of the above links you so thoughtfully reminded me about dont work for some reason. Not to mention Im not a lawyer or even a particularly intelligent person. Im doing the best I can.

I'm a lawyer, but I hear you. Our natural right of self defense should not be a complicated issue, subject to being taken away due to the clever arguments and intellectual gymnastics of lawyers. That's the problem with government: there always seems to be a slow, gradual erosion of our liberties. It's even a problem with Constitutions. No matter how clear their terms, government and courts, through the process of "interpretation" devise clever ways to take away the rights which we had thought were supposed to be secure.

HondaMasterTech
05-26-2009, 10:16 PM
I'm a lawyer, but I hear you. Our natural right of self defense should not be a complicated issue, subject to being taken away due to the clever arguments and intellectual gymnastics of lawyers. That's the problem with government: there always seems to be a slow, gradual erosion of our liberties. It's even a problem with Constitutions. No matter how clear their terms, government and courts, through the process of "interpretation" devise clever ways to take away the rights which we had thought were supposed to be secure.

The thing that throws the salt in the wound is that they get paid to do it and have successful careers while they are at it.

Libertarian71
05-26-2009, 10:48 PM
The thing that throws the salt in the wound is that they get paid to do it and have successful careers while they are at it.

But blaming lawyers is kind of like blaming guns when a criminal commits a violent crime with a gun. It's in the nature of all government to employ lawyers to come up with clever arguments to take away our rights. It's government itself that is the problem, not lawyers per se.

bohoki
05-26-2009, 10:53 PM
So, where is the Federal United States? Maybe we should move there since its where these rights are protected. Im joking, of course.


yea the federal government is a bit of an oxymoron because the federal system is the country and the states

what it should really be called is the united states government or washington dc

Theseus
05-26-2009, 10:59 PM
Then my question is. . . The States only have the power we the people give them, same as the Federal Government.

When did the people give the States the right to regulate firearms? We learn a lot about how the Fed formed, but who formed the States?

That is to say, If the state constitution is anything like the fed constitution, then wouldn't it reason that the state constitution only confers those powers expressly given them in such constitution? Sure there is no 2nd Amendment in the CA constitution, but is there any language that gives them the right to regulate 2A?

I hope that makes sense. I am pretty tired...

Model X
05-26-2009, 11:03 PM
When did the people give the States the right to regulate firearms? We learn a lot about how the Fed formed, but who formed the States?

The people of the states. It would be contingent upon the states respective constitution.

Stanze
05-26-2009, 11:10 PM
If the constitution is the supreme law of the land, isnt the state government breaking the law?

I've been saying that all along. Double standard, BIG TIME! They got the badges, guns, DAs, courts and prison. What can ya do against such thuggery?

nick
05-26-2009, 11:16 PM
Protected Arms should at the least include ALL bearable personal discriminating weapons like batons, chukka sticks with string, and brass knuckles as well as firearms and I'd like to see artillery too :D - (weapons which can be aimed or directed at a specific target generally as opposed to weapons of mass destruction: mustard gas, nukes, etc....)

My uncle spent most of his life developing guidance systems for various missiles, including ICBMs. He could aim or direct them at very specific targets. As such, I think he should be allowed to keep and bear ICBMs. Now, my question is, how do I inherit it? :)

nick
05-26-2009, 11:17 PM
So, where is the Federal United States? Maybe we should move there since its where these rights are protected. Im joking, of course.

It's the place where you have to sell your soul to the devil in order to buy a handgun :)

Nevermore
05-26-2009, 11:47 PM
Would that mean that a four to four tie vote is possible?

In theory, yes, it's possible. As I understand it, in such situations the lower courts' ruling(s) stand without comment, effectively making it as though nothing had happened.

1JimMarch
05-27-2009, 12:08 AM
The BEST way to understand incorporation is one of two books.

One was written in 1984 by Stephen Halbrook (yeah, same as is involved in the Chicago case) titled "Let Every Man Be Armed". The other was written in 1998 by wildly Liberal Yale law professor Akhil Reed Amar - "The Bill Of Rights".

Both cover the same material - historical speeches and quotes from the people who wrote the 14th Amendment, esp. Ohio Republican John Bingham, primary author of the 14th and the leader of an entire civil rights movement broader in attempted scope than anything tried by MLKJr about 100 years later.

Halbrook loved what he found. Amar is visibly distressed by it, but honest enough to report it likely without realizing he was re-treading Halbrook's work.

What they found:

The main legal case limiting post-civil-war civil rights reform wasn't Barron v. Baltimore. It was Dred Scott v. Stanford (1856).

Dred Scott was a moral atrocity, but sadly legally correct for it's time. The primary holding was that the US had always been a racist nation from it's founding and before, that major "Founding Fathers" had supported racist laws, and the court cited some of these in detail that would gag a maggot.

It wasn't a pro-slavery decision. It was a pro-racism decision.

Dred Scott said that blacks didn't have the "privileges and immunities of US citizenship", and went on to define those in great detail while using the term "privileges and immunities" over 30 times. For example:

For if they were so received, and entitled to the privileges and immunities of citizens, it would exempt them [blacks] from the operation of the special laws and from the police regulations which they considered to be necessary for their own safety. It would give to persons of the negro race, who were recognized as citizens in any one State of the Union, the right to enter every other State whenever they pleased, singly or in companies, without pass or passport, and without obstruction, to sojourn there as long as they pleased, to go where they pleased at every hour of the day or night without molestation, unless they committed some violation of law for which a white man would be punished; and it would give them the full liberty of speech in public and in private upon all subjects upon which its own citizens might speak; to hold public meetings upon political affairs, [B]and to keep and carry arms wherever they went. [emphasis added]

Now look at the opening paragraph of the 14th:

Section 1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

Bingham (who wrote those words) was VERY public about what he was up to: overturn Dred Scott by turning the language of that decision (the phrase "privileges and immunities") on it's head. He was dead clear that this would affect every civil right of blacks short of "political rights" (voting, militia duty, jury service) which wasn't at all unusual: *women* were citizens lacking political rights but still having civil rights, a status shared to this day with green card holders (legal alien residents).

So what happened?

Well first, in 1870 the first 14th Amendment case went pretty well. Mr. Ward, a white merchant from New Jersey, refused to pay a special tax Maryland was assessing on merchants from out of state. The USSC said that the 14th Amendment limited the states abilities to discriminate in the handling of "privileges and immunities of US citizenship" possessed by visitors from out-of-state (Ward v. Maryland). That logic was revisited and upheld as recently as 1999 (Saenz v. Roe).

Then in 1872 it started heading into the toilet. In Slaugher-House (1872), the USSC decided that Ward v. Maryland was to be the ONLY implication for the 14th Amendment Privileges and Immunities clause. Again: they supported Ward's limits on cross-state discrimination, but allowed in-state discrimination even though they were pretty sure corruption was involved (read Slaughter-House).

The poop well and truly hit the rotary air movement device in Cruikshank (final decision, 1876). In that case, a group of 60 thugs, a mix of government agents and Klansmen, had chased blacks trying to vote under the new 15th Amendment from the courthouse (violating their 1st Amendment right to peaceful assembly and 15th Amendment right to vote), went around stripping them of arms (2nd Amendment violations) followed by three days of arson, riot, rape and murder now known as the Colfax Massacre (1873). Best death toll estimate: 103.

The US Supreme Court decided that NONE of these civil rights violations were punishable by the Feds. Which, if you can stomach it, led to this:

http://www.withoutsanctuary.org/main.html

WARNING: GRAPHIC PHOTOS OF PUBLIC LYNCHINGS ALERT.

Other horrifying decisions by the USSC followed Cruikshank. Presser just re-hashes Cruikshank - if you see a court supporting Presser (or the similar Miller v. Texas) they're simply cowards not wanting to support Cruikshank, the case that launched at least 4,000+ lynchings that we know about. Obama's latest nominee is exactly that sort. Plessy vs. Fergusen is the best known post-civil-war racist decision ("separate but equal") but to my eye Williams v. State of Mississippi 1898 was possibly worse and Cruikshank by far the worst (and most lethal) of all.

Anyways. What happened post-14A is obvious: the USSC did NOT like being overturned in Dred Scott (and to a lesser degree Barron v. Baltimore) via the 14th Amendment, and decided to simply destroy every single element of the 14th other than the ban on interstate discrimination.

Some time in the early 20th Century, the USSC started to realize they'd gone too far, and that the state "justice" systems lacking any control from the Bill Of Rights had gone completely bonkers. I'd like to think it had something to do with the 1907 trial of Joseph Shipp, the only criminal trial held by the USSC ever:

http://www.law.umkc.edu/faculty/projects/FTrials/shipp/shipp.html

...but I could be wrong.

Anyhow, point is they decided to bring back the 14th Amendment from the grave. But rather than have the guts to admit a screwup, they decided to rebuild it differently. Piece at a time, as civil rights cases came before them, they decided that various civil rights were "fundamental to due process" and "selectively incorporated" these civil rights against the states via the "due process clause" of the 14th instead of the privileges and immunities clause. Many USSC judges have argued this was a mistake, including Clarence Thomas (see his dissent in Saenz v. Roe 1999) and the late Hugo Black in his famous dissent in Adamson.

So where do we stand now?

The USSC in Heller gave STRONG warnings that Cruikshank can't be relied on. The circuits are ignoring this so far, although Nordyke is apparently influenced by this. Heller's first warning is in the footnote saying that the Cruikshank holding that states can violate 1st Amendment rights is long since toast. The bigger one everybody misses is the favorable reference to the book "The Day Freedom Died" by Charles Lane, covering the Colfax Massacre and it's legal aftermath: "the day" in question is the day the final Cruikshank decision was issued by the USSC.

Right now a few pieces of the Bill Of Rights haven't been selectively incorporated yet: the 3rd Amendment (because "quartering of troops" is no longer a popular abuse), the 2nd Amendment (except here in the 9th of course per Nordyke!), the 5th Amendment right to indictment by grand jury in major crimes (which has weakened Cali's grand jury system to a point where they're not much barrier to corruption) and the right to a jury trial in civil court (which leads to abuses like Chicago calling traffic court "civil").

Doing full, proper incorporation via the P&I clause wouldn't cause that much societal turmoil at this point because most of the BoR has already been incorporated. BUT we can live with selective incorporation of the 2nd via Due Process if the USSC wants to perpetuate 132 years of total, obvious and murderous fraud by the USSC starting with Slaughter-House.

Oh yeah. One more thing. Kind of a pet peeve. Because Ward v. Maryland 1870 is still good law, and it really IS good because that's likely part of what the P&I clause should do, the moment the 2A became a Federally recognized civil right, states lost the ability to discriminate in the handling of that right against visitors from other states. This protection kicks in even without incorporation. For that reason, since California doesn't recognize my AZ CCW *and* will not let me (as a resident of Tucson AZ) apply for a Cali CCW, I am discriminated against by Cali any time I visit there.

Which is why, on my last brief visit, I was strapped.

I don't recommend others take that stance unless you know this stuff cold, and it's risky even then.

Libertarian71
05-27-2009, 1:26 AM
Excellent post 1JimMarch. Very learned. I am very familiar with Halbrook and Amar, and think you accurately lay out the issues. As I intimated an earlier post, it went all down hill following the Slaughterhouse decision.

TheBundo
05-27-2009, 1:39 AM
Would that mean that a four to four tie vote is possible?

In theory, yes, it's possible. As I understand it, in such situations the lower courts' ruling(s) stand without comment, effectively making it as though nothing had happened.

It would make it 5-3. Souter voted against Heller

1JimMarch
05-27-2009, 1:52 AM
Excellent post 1JimMarch.

Thank you. It's just Jim. I registered long ago under a different EMail addy and had to recently re-sub with "1" in front :).

The amazing part to me is how the USSC has always (at least as a group) claimed not to know what the phrase "privileges and immunities" means (or encompasses) when they defined the bejeezus out of it in Dred Scott.

One other thing. If you look at Dred Scott's definition of P&I (and I quoted the best piece that does so), you find things in there not found explicitly in the Bill Of Rights, particularly a "right to free travel without pass or passport". I can't recall if it was Halbrook or Amar that called this section of Dred Scott "the traditional rights of free Englishmen" but it's a pretty decent description. This actually supports the "right to privacy" found in both Roe v. Wade and the recent constitutional right to private adult consensual sexual practices (Lawrence, I think?).

You find something else in Dred Scott: a very expansive version of the 2nd Amendment, covering the ability to travel armed "singly or in companies". England placed lots of limits on how many armed people could be bunched up in any one place prior to our Revolution; there's some scholarship out there that says the phrasing of our 2nd Amendment may have been geared as a response protecting the most radical form of arms-bearing: armed groups.

NSR500
05-27-2009, 2:09 AM
Relax, don't panic.

She's replacing Souter so no balance changes.

Just pray the Heller 5 eat right, exercise daily, etc.

I see the point you're trying to make, but we should not sit idle and let her get confirmed. We should still push our Representatives to block her. I don't like Barack Hussein Obama getting his way for anything. :thumbsup:

AngelDecoys
05-27-2009, 7:31 AM
Here's the part about the Second Amendment. Apparently, she believes that the Due Process Clause of the 14th Amendment does NOT incorporate the 2d Amendment:

Not trying to pick a fight, but a friend and I were discussing this last night.

Isn't she just arguing the strict constructionist viewpoint?

DDT
05-27-2009, 8:04 AM
Not trying to pick a fight, but a friend and I were discussing this last night.

Isn't she just arguing the strict constructionist viewpoint?

No, she is arguing the "14th amendment doesn't exist" viewpoint.

.454
05-27-2009, 8:10 AM
Elections have consequences.
Thank you, Obama voters. Good job.

TatankaGap
05-27-2009, 9:28 AM
IMHO, she is most vulnerable on the 2A, the 2A and the 2A. Also, for shooting from the hip, judicial activism, track record of being overruled, flippant comments and lack compared to others.

I would play up the 2A and get her to be the first nominee bounced for not being expressly supportive of 2A ~ she went out of her way to read exceptions to Heller in the Maloney case -

No one in this article mentions the 2A - if anyone knows anyone in these groups opposing Sotomayor, get them to focus on the 2A and how ridiculous her position was in Maloney and how far she will go to find the 'penumbras and emanations' (a phrase from the activist bench days of the Supremes - Douglas, Warren & Marshall) and little legal point excuses to rule in the way she wants to rule to be able to legislate from the Bench -

Slamming her on 2A and Maloney could be the best thing for the Country and the 2A - need to raise people's awareness of how far an activist judge will go to deprive the people of the RKBA ~ :cuss:

From today's NY Times:
http://thecaucus.blogs.nytimes.com/2009/05/27/interest-groups-prepare-to-battle-on-sotomayor/?hp

May 27, 2009, 7:00 am

SNIP

Conservatives, meanwhile, said the pick had energized their forces. After several conference calls to talk strategy with other conservative leaders, Tony Perkins, president of the Family Research Council, said they would be “aggressively” looking into Judge Sotomayor’s record, encouraged in part by the last-minute revelations about previous Obama nominees.
“This has not been an administration that goes through things with a fine tooth comb,” Mr. Perkins said. “They leave a lot just barely under the surface, where a little bit of digging will bring it out—whether it is tax problems or whatever,” he added. “There may be something in her judicial background that could be explosive. So I have got my metal detector out.”


SNIP


Some on the right outlined new strategies adapted to the nominee and the moment. Several said they planned to focus on same-sex marriage. “Gay marriage will be bigger than abortion,” said Curt Levey, executive director of the conservative legal group Committee for Justice. “People know that abortion is in some sense a stale issue that has been fought over many times, but gay marriage is very much up for grabs.”
Others focused on both the New Haven case or a past statement by Ms. Sotomayor that her background as a Hispanic woman gave her insights potentially unavailable to another judge.

“Racial prejudice is a religious issue, even when it is directed against Italian American white males,” said Richard Land, top public policy official of the 16-million-member Southern Baptist Convention. “We are going to make our constituency aware of her record,” he said, “and certainly her statement that someone from her background can render a better opinion than a white male.”
Several conservatives were already demonstrating a tactic they plan to continue: quoting criticisms of Judge Sotomayor’s temperament from commentators they call liberal, most notably a recent article by the legal scholar Jeffrey Rosen in the New Republic. (Writing on the magazine’s web site Tuesday, Mr. Rosen declared his support for the confirmation and argued that conservatives are taking his article out of context.)
Other conservatives said they saw the confirmation as a chance to dent the conciliatory image Mr. Obama built up during the presidential campaign.
“It is a chance to show the American people that we no longer have ‘both ways Barack,’” said Gary Marx, of the conservative Judicial Confirmation Network. “You can’t be a compromiser and a pragmatist and at the same time be somebody who is going to pass every Planned Parenthood litmus test, and this nominee shows he has followed the litmus test of the left.”

formerTexan
05-27-2009, 9:59 AM
This will be an interesting test for those dem senators that voted for NP CCW. Just how strong is the "blue dog" in them? Strong enough to at least put 2A issues out in the confirmation debates? Strong enough to vote no based on her past judicial decisions?

PatriotnMore
05-27-2009, 10:20 AM
This will be an interesting test for those dem senators that voted for NP CCW. Just how strong is the "blue dog" in them? Strong enough to at least put 2A issues out in the confirmation debates? Strong enough to vote no based on her past judicial decisions?

Anyone want to take bets, 2A will not come up in any confirmation hearing?

motorhead
05-27-2009, 10:27 AM
very informative guys. interesting twist with dred scott.

Scarecrow Repair
05-27-2009, 10:38 AM
Elections have consequences.
Thank you, Obama voters. Good job.

Yes, and political blinders have consequences. Thank you, unilateral Bush supporters, for not speaking out against *his* eight years of excesses. You will have your turn in another 8 or 12 years when the Obama supporters don't reign him in.

Anyone who thinks *their* politicians are the only saintly ones has no room to whine when others don't see the same saintliness. Eventually the crows come home to roost and the tables turn.

1JimMarch
05-27-2009, 10:44 AM
very informative guys. interesting twist with dred scott.

Ain't it? But it was Dred Scott that allowed Southern states to immediately pass the racist "black codes" post-civil-war (literally beginning in 1865). And when the Northern congress tried to pass *laws* banning racist behavior in the south, the constitutional stance in Dred Scott was a barrier. Hence the 14A to overturn that case.

Bingham and others were not at all shy about this point. They were very explicit in saying what the 14A was about, and it's direct connection as a counter to Dred Scott.

Sleepy1988
05-27-2009, 11:53 AM
Relax, don't panic.

She's replacing Souter so no balance changes.

Just pray the Heller 5 eat right, exercise daily, etc.

We're on a dangerous precipice considering that the liberals are one vote away from completely ignoring the second amendment.


Yes, and political blinders have consequences. Thank you, unilateral Bush supporters, for not speaking out against *his* eight years of excesses. You will have your turn in another 8 or 12 years when the Obama supporters don't reign him in.

Anyone who thinks *their* politicians are the only saintly ones has no room to whine when others don't see the same saintliness. Eventually the crows come home to roost and the tables turn.

Yeah, like "speaking out" against his "excesses" would have had any influence on the outcome of the last election.

:rolleyes:

Scarecrow Repair
05-27-2009, 12:48 PM
Yeah, like "speaking out" against his "excesses" would have had any influence on the outcome of the last election.

Speaking out while it was happening would have done wonders. Democrats did not win. very few people actually vote *for* any politician. Republicans lost because of their image of cronyism, corruption, and incompetence. If the Repubs in Congress and elsewhere had spoken up at the time and reined in the worst of it, they would have had an honorable public face. Instead they made excuse after excuse and pretended everything was hunky dory.

This cycle repeats ad nauseum. The Repubs screwed it up last time, now the Demos have a turn.

DDT
05-27-2009, 1:11 PM
Speaking out while it was happening would have done wonders. Democrats did not win. very few people actually vote *for* any politician. Republicans lost because of their image of cronyism, corruption, and incompetence.

Unfortunately the press is often working very hard to make the republicans look terrible while covering up the same behavior or worse by those on the left.

GuyW
05-27-2009, 1:22 PM
Its funny. Correct me if Im wrong but doesnt that say essentially that the 2nd amendment protects against the feds but not the state? So the state is allowed to violate the 2nd but feds arent? That doesn't seem legal.

If one believes that Heller is correct that the RKBA predates the Constitution (and incidentally the creation of any US state), then under the Founders philosophy, the states can't violate the pre-existing RKBA either.

Yeah, I know, they don't WANT to recognize it, but after Heller, they may (eventually) have to...even if the 2nd isn't incorporated (which won't happen)...

EDITED IN:

Paraphrase: All powers not delegated to the federal government, remain vested in the states, or the people.

If the Founders believed that the 2nd was a pre-existing fundamental individual right, then the right remains with the people (individuals), not states.




.

formerTexan
05-27-2009, 1:27 PM
Unfortunately the press is often working very hard to make the republicans look terrible while covering up the same behavior or worse by those on the left.

Like how dem attacks on Clarence Thomas somehow "didn't hurt" them? How about their attacks on Miguel Estrada or Alberto Gonzales? They talked of Estrada as the "affirmative action candidate", and did they catch hell for that?

Another quote from a "staffer" during their take-down of Estrada (link to full article) (http://www.newmajority.com/ShowScroll.aspx?ID=273a272f-fbf2-409e-b786-b3f15531ad55):
A staffer to Sen. Dick Durban, who sits on the Senate Judiciary Committee, noted that liberal interest groups saw Estrada as “dangerous”, because he was “Latino and the White House seems to be grooming him for a Supreme Court appointment.” The memo stressed that these groups wanted to “hold Estrada off as long as possible.”

Here, we have non-racial/gender objections to Sotomayor, based on her past decisions in court, as well as out-of-court statements that shows her to be a "legislate from the bench" judge. The question is, will the media allow these objects to be made, without biased commentary attached to them?

wash
05-27-2009, 1:58 PM
I've heard she is type 1 diabetic. She can go loopy at any time if her blood sugar goes low.

My father has that (for almost 35 years) and it will turn him from a rational person in to the equivalent of an angry drunk very quickly.

When judgement is the issue, I don't want her on the bench no matter what her politics are.

bulgron
05-27-2009, 3:27 PM
I haven't read through this whole thread, so maybe I missed it. But isn't Sotomayor's opinion in Maloney actually sound law? She's sitting on a lower court, so Supreme Court decisions must direct her opinions. More, if my memory isn't seriously wrong, I believe the defense in Maloney did a crappy job, and didn't do all the things it needed to do in order to have the court consider selective incorporation.

I could be all wet on this, but I am under the belief that the Maloney decision was more about crappy defense lawyers than it was about the judges hearing the case.

Anyway, I'm no fan of Sotomayor's and I have reasons for disliking her that go beyond Maloney. I'm just wondering if she's as hostile to us as this one case would seem to suggest.

vrand
05-27-2009, 3:43 PM
Like how dem attacks on Clarence Thomas somehow "didn't hurt" them? How about their attacks on Miguel Estrada or Alberto Gonzales? They talked of Estrada as the "affirmative action candidate", and did they catch hell for that?

Another quote from a "staffer" during their take-down of Estrada (link to full article) (http://www.newmajority.com/ShowScroll.aspx?ID=273a272f-fbf2-409e-b786-b3f15531ad55):


Here, we have non-racial/gender objections to Sotomayor, based on her past decisions in court, as well as out-of-court statements that shows her to be a "legislate from the bench" judge. The question is, will the media allow these objects to be made, without biased commentary attached to them?

No :tank:

truthseeker
05-27-2009, 4:00 PM
Here is what I don't get about judges and how they are nominated.

Why do all the judges that have been nominated seem to be either way right or way left on their beliefs and how they interpret the Constitution?

I thought the MAIN qualification for being a judge is to NOT let your personal beliefs affect your judgement on ANY case brought before you.

Has this nation lost the qualities that MOST military men possess (honesty, integrity under ALL circumstances, and serving ones country with pride without expectations of reward or notoriety)?

GaryV
05-27-2009, 4:27 PM
Here is what I don't get about judges and how they are nominated.

Why do all the judges that have been nominated seem to be either way right or way left on their beliefs and how they interpret the Constitution?

I thought the MAIN qualification for being a judge is to NOT let your personal beliefs affect your judgement on ANY case brought before you.

Has this nation lost the qualities that MOST military men possess (honesty, integrity under ALL circumstances, and serving ones country with pride without expectations of reward or notoriety)?

The problem is that in cases like federal judges, they're appointed by politicians. And politicians are all about pushing their personal beliefs on everyone else, so they make the most of the opportunity. The last thing any of them want is an impartial judge.

HondaMasterTech
05-27-2009, 5:56 PM
But blaming lawyers is kind of like blaming guns when a criminal commits a violent crime with a gun. It's in the nature of all government to employ lawyers to come up with clever arguments to take away our rights. It's government itself that is the problem, not lawyers per se.

I was talking about individuals who try to pass laws with the advancement of their careers in mind rather than what is actually right/best/fair etc. I agree that when government becomes a business it becomes corrupt. The authors of this country knew that.

sierratangofoxtrotunion
05-27-2009, 11:49 PM
Look at it this way. If she gets the nod and Nordyke, or some similar case challenging the 2nd/9th circuit split on incorporation, gets to SCOTUS, she's probably going to have to recuse herself, since she was on the panel in the 2nd circuit that decided that.

I don't see her involvement in the Maloney decision to cause her to recuse from a Nordyke or MacDonald appearance in the Supremes. If it was the Maloney case moving forward, definitely, she'd have to stay out of it. But the fact that she ruled on a case that dealt with similar topics I don't think is enough legal reason for her to stay out of a Nordyke or MacDonald.

CA_Libertarian
05-27-2009, 11:51 PM
Would that mean that a four to four tie vote is possible?

Possible, but unlikely since she would be replacing one of the dissenting judges anyhow. If the Heller 5 vote to incorporate, the decision would be 5-3.

leadchucker
05-28-2009, 12:06 AM
I am usually calm and rational (I think), but enough is enough. It's gotten to the point where I couldn't begin to know where to begin!
I think if the Founding Fathers were here today, there would be alot of slapping around going on. The Bill of Rights is so stinkin' simple that it takes an idiot to misunderstand what each part means. Each individual is entitled to the rights enumerated therein. "The right of the people...SHALL NOT BE INFRINGED" means just that. It doesn't mean the States have any say in restricting any individual's inalienable rights at all- Not the 2nd amendment, not the 1st, or any other. I don't give a rat's behind about so-and-so vs. so-and-so, and this decision or that decision. I understand that the purpose of case law is to simplify the process, but it has become the very opposite. All of this case law mumbo jumbo makes me ill. All of this in 1863, and that in 1898, and the other thing in 1908, but then again they in 1785, them in 1814, and theirs in 1879 is pure bullhockey and doesn't impress me in the least. It's ridiculous and silly, but not at all funny. Like a group of engineers overcomplicating something a simpleton could figure out in thirty seconds. Sometimes you want to throttle the numbskulls and rub the document they swore to uphold in their faces until they read it for once. INTERPRET THIS, YOUR "HONOR"!
Case Law....blah and double blah!!!
Finally got about 2% of my rant out.

dustoff31
05-28-2009, 9:27 AM
But blaming lawyers is kind of like blaming guns when a criminal commits a violent crime with a gun. It's in the nature of all government to employ lawyers to come up with clever arguments to take away our rights. It's government itself that is the problem, not lawyers per se.


I understand your point. But the analogy you use is quite flawed IMHO. What you have said is that lawyers, like guns, have no conscience, no morals, no sense of right and wrong. They just do whatever their operator tells them to do.

gregorylucas
05-28-2009, 9:33 AM
The problem is that in cases like federal judges, they're appointed by politicians. And politicians are all about pushing their personal beliefs on everyone else, so they make the most of the opportunity. The last thing any of them want is an impartial judge.

Well and it seems to me that the majority of politicians are narcissistic. They want their "influence" to last for alot longer that their time in office. Otherwise why would president appoint people in their 50's?

Greg

Bugei
05-28-2009, 9:50 AM
I still find it hilariously mind boggling, in a sad way, that you can't carry "two sticks joined by rope"... I mean... REALLY???

My backpack can get pretty heavy, and if I swing it by the strap it has a lot of momentum behind it, that sounds pretty dangerous. I can also throw my steel toed work boot with surprising accuracy and speed. WATCH OUT!

There was a brief craze in the seventies, I believe, for banning anything that a legislator saw in a martial arts film. You'd be surprised at the list.

12020. (a) Any person in this state who does any of the following
is punishable by imprisonment in a county jail not exceeding one year
or in the state prison:
(1) Manufactures or causes to be manufactured, imports into the
state, keeps for sale, or offers or exposes for sale, or who gives,
lends, or possesses any cane gun or wallet gun, any undetectable
firearm, any firearm which is not immediately recognizable as a
firearm, any camouflaging firearm container, any ammunition which
contains or consists of any flechette dart, any bullet containing or
carrying an explosive agent, any ballistic knife, any multiburst
trigger activator, any nunchaku, any short-barreled shotgun, any
short-barreled rifle, any metal knuckles, any belt buckle knife, any
leaded cane, any zip gun, any shuriken, any unconventional pistol,
any lipstick case knife, any cane sword, any shobi-zue, any air gauge
knife, any writing pen knife, any metal military practice
handgrenade or metal replica handgrenade, or any instrument or weapon
of the kind commonly known as a blackjack, slungshot, billy,
sandclub, sap, or sandbag.

12582. Any person who knowingly manufactures, sells, offers for
sale, possesses, or uses a blowgun or blowgun ammunition in this
state is guilty of a misdemeanor.

All completely indefensible under the Second Amendment, of course, but perfectly banned under CA law. Until CA law is fixed.

Bugei
05-28-2009, 9:58 AM
I haven't read through this whole thread, so maybe I missed it. But isn't Sotomayor's opinion in Maloney actually sound law?

Seems that way to me. And her opinions that the Second isn't incorporated and doesn't protect an individual right were pretty much the majority opinion among the judicial crowd, at least prior to Heller.

She'll be bound by everything Heller does say if she's confirmed. But the parts of Heller that were left for future clarification are still up for grabs. As well as all the other things she'll be called upon to judge.

My objection is that she was dumb enough to make statements to the effect that she's not uncomfortable being a racist and a sexist and that she fully intends to make policy from the bench and she's okay with that too. If a judge wants to seem...well, judicial, he or she ought to avoid that kind of thing. It cannot help to reveal things like that.

Too dumb for the job.