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Paladin
07-23-2009, 6:27 AM
As one radio commentator said (I forget who), if the Repubs offered up a conservative to replace a conservative, the libs would fight them tooth and nail. Here, we should fight against Sotomayor with the same enthusiasm. We should not accept the MSM line that she is a shoe in.

Please post this on the major national gun forums you belong to. We have to fight this nomination!

Note how Sotomayor doesn't answer the question re. what rules do/should SC justices use to decide what is a fundamental right when there is no precedent.

Bolding/emphasis added below.

http://online.wsj.com/article/SB124786955918160393.html

Second Amendment Confidential
Sotomayor takes the Fifth on gun rights.

Those watching Sonia Sotomayor's confirmation hearings this week didn't learn much about what she really thinks about judging. But they were treated to an Abbott and Costello legal moment on Thursday between the judge and South Carolina Republican Lindsey Graham. In the wake of the Supreme Court's recent decision in D.C. v. Heller recognizing an individual right to bear arms, Mr. Graham wondered what template Judge Sotomayor would use to determine whether that "fundamental right" also applies to the states?

"The rule of law," Judge Sotomayor answered.

So "isn't the rule of law, when it comes to what you consider to be a fundamental right, your opinion as to what is fundamental . . .?" Senator Graham asked. Or "is there sort of a legal cookbook that you can go to and say this is a fundamental right, A, and B is not?"

No, the judge replied, no cookbook, but you hire judges "for the purpose of understanding whether they respect law, whether they respect precedent." Who's on first?

That wasn't the only answer by Judge Sotomayor that was clear as mud during the hearings, but her circular tautology on gun rights is notable because of cases in lower courts that could reach the Supreme Court. Heller dealt with a Washington, D.C. statute and thus federal law. Now making their way to the Court are cases about whether the right to bear arms also applies to the 50 states via the Due Process Clause of the Fourteenth Amendment. If it doesn't, then Heller is a hollow shell.

In the Second Circuit's decision in Maloney v. Cuomo, a three-judge panel including Judge Sotomayor ruled that the right to bear arms did not apply to New York's ban on a martial arts weapon called chuka sticks. Though the decision came after Heller, the court ruled that because the Supreme Court had not addressed whether the Second Amendment applied to the states, it was bound by precedent saying it was not.

Both the Ninth and Seventh Circuits have heard cases similar to Maloney v. Cuomo on state incorporation. The Seventh Circuit allowed the city's gun regulations to stand in NRA v. Chicago, while in April the Ninth Circuit ruled in Nordyke, et al., v. King that the Second Amendment does apply to state and local governments.

The Fourteenth Amendment was drafted in part to address the rights of freed slaves to carry a weapon against the efforts of some Southern states to proscribe that right. Coming as the right to bear arms does in the Bill of Rights only after the freedom of speech, we think there's little doubt the Founders considered the Second Amendment "fundamental" enough to apply everywhere.

Judge Sotomayor has said that it would be appropriate to recuse herself from any rehearing of Maloney v. Cuomo by the Supreme Court, but this week she stopped short of promising to do so. Our guess, based on her history, is that she'll vote like the Court's four liberals who dissented in Heller and say gun rights don't apply to the states.

rabagley
07-23-2009, 6:40 AM
Both Roberts and Alito were much more conservative than their predecessors, and yes, the Dems did object, but we still got two conservative judges when we needed them.

As for Souter -> Sotomayor, it's replacing a down the middle centrist with a fairly unexceptional liberal and it replaces one judge who didn't vote for Heller with another judge who wouldn't.

Basically Souter -> Sotomayor doesn't change a thing that matters to us. Also, the next most likely to retire, Stevens and Ginsburg, are the liberal end of the court. Replacing them with other liberals? Again changes nothing.

Make a good argument. The Heller Five will incorporate.

yellowfin
07-23-2009, 6:55 AM
It does change something bigtime in that the new judges will last longer so it will be longer before we can get them switched out. We have work to do and we don't need them getting in the way.

kalguns
07-23-2009, 6:55 AM
Unless she has a mental break down she is in.

Blacktail 8541
07-23-2009, 6:58 AM
My take on this is that even though Sotomayor will be confirmed and it will not affect the balance of the court, why not oppose her confirmation strongly to send a message.

tiki
07-23-2009, 7:00 AM
yeah, right now she is the media darling that barack was a few months ago. Time will show us that both were a mistake.

motorhead
07-23-2009, 7:19 AM
might as well try to hold back the ocean. our newest token justice is a done deal. republicans are even baring their hindquarters in submission.

Maestro Pistolero
07-23-2009, 8:11 AM
My take on this is that even though Sotomayor will be confirmed and it will not affect the balance of the court, why not oppose her confirmation strongly to send a message.

Yeah but Ginsburg has got one foot on a banana peel and the other one in the grave.

yellowfin
07-23-2009, 8:57 AM
might as well try to hold back the ocean. our newest token justice is a done deal. So they're willing to cast 58 votes for a pro CCW measure but not 51 votes against a rabid anti gun SC nominee that could have vastly more impact? Interesting.

"Justice" isn't a word I'd use to describe Sotomayor or anyone of her legal philosophy.

nat
07-23-2009, 9:23 AM
I'm not sure we can tell how she will vote yet. More than a few judges do not turn out like you expect.

U2BassAce
07-23-2009, 10:21 AM
might as well try to hold back the ocean. our newest token justice is a done deal. republicans are even baring their hindquarters in submission.

Yep.

dfletcher
07-23-2009, 11:11 AM
I am willing to respect that a judge could have asserted the 2nd Amendment was not an individual right before and during Heller. I disagree but they're the judge and I'm not and I suppose they know more than me. But once SCOTUS has determined it is an individual right how can a judge determine the state may abridge that 2nd Amendment right any more than they could the 1st, the 4th or the 5th?

MrClamperSir
07-23-2009, 12:11 PM
So they're willing to cast 58 votes for a pro CCW measure but not 51 votes against a rabid anti gun SC nominee that could have vastly more impact? Interesting.

"Justice" isn't a word I'd use to describe Sotomayor or anyone of her legal philosophy.

Excellent point.

KylaGWolf
07-23-2009, 12:13 PM
I just hope they don't approve her. I mean come on if she is out right saying she will not follow the law then why in the hell would they allow her to sit on SCOTUS. I mean I know our legislators are somewhat braindead...espeically CA ones but still if she won't follow law on this what else will she not follow law on.

Keep this in mind too Obamas numbers are already down. I never liked him to begin with and most of the country is now seeing what a horrid choice they made. Too bad we are stuck with him for another 3 1/2 years. If they vote that harpy in then we are stuck with her for at least 20 :(.

Theseus
07-23-2009, 12:25 PM
You know, I am now going to make it a point to misspell everything and will always use bad grammar. Sometimes I think these people correct us just to get their count up.

Wild Bill
07-23-2009, 1:34 PM
After watching some of her confirmation hearings. All I can say is she is blowing so much smoke up everyone's #ss. And the sad part about it is that they believe her!:eek:

marshaul
07-23-2009, 1:50 PM
Both Roberts and Alito were much more conservative than their predecessors, and yes, the Dems did object, but we still got two conservative judges when we needed them.

As for Souter -> Sotomayor, it's replacing a down the middle centrist with a fairly unexceptional liberal and it replaces one judge who didn't vote for Heller with another judge who wouldn't.

Basically Souter -> Sotomayor doesn't change a thing that matters to us. Also, the next most likely to retire, Stevens and Ginsburg, are the liberal end of the court. Replacing them with other liberals? Again changes nothing.

Make a good argument. The Heller Five will incorporate.

This. Sotomayor doesn't change a thing.

dexter9659
07-23-2009, 9:23 PM
Her confirmation is a moot point, one lib out, one lib in. The 5-4 count will remain. Im just waiting for her to slip on a nunchuck.

Fate
07-23-2009, 9:35 PM
If they vote that harpy in then we are stuck with her for at least 20 :(.Diabetic, overweight latina. I'll take the "under" bet.

cr250chevy
07-24-2009, 9:23 AM
I just don't understand, common sense speaking, how a ruling about our national constitutional right(s) has to go through an "incorporation" process!?!?Like the ruling is not enough... "hey the second amendment applies to the individual not the militia," oh but wait that is moot unless we say that our ruling applies at the state level... I mean come on why even make a ruling at the national level it if does not apply to every citizen of America!

yellowfin
07-28-2009, 8:19 PM
Does anyone know how long the vote was postponed until? It was supposed to be yesterday and I saw it was delayed. Would she have been defeated?

Meanwhile, this nugget from Cato:
David B. Kopel,
Research Director, Independence Institute, Golden, Colorado
Associate Policy Analyst, Cato Institute, Washington, D.C.

before the

Judiciary Committee of the United States Senate
Confirmation Hearings for the Appointment of Sonia Sotomayor to the Supreme Court of the United States of America

July 13-17, 2009

The case of Sonia Sotomayor versus The Second Amendment is not yet found in the record of Supreme Court decisions. Yet if Judge Sotomayor is confirmed to the Supreme Court, the opinions of the newest Justice may soon begin to tell the story of a Justice with disregard for the exercise of constitutional rights by tens of millions of Americans.

In Maloney v. Cuomo, Judge Sotomayor ruled that the peaceful ownership of arms by citizens is not a fundamental right. Her ruling was supported by no legal analysis. Rather, it was a pure declaration. New York State is the only state in the union which completely prohibits the peaceful possession of nunchaku. After President Nixon´s opening to China in the early 1970s, many Americans became interested in learning to practice the traditional martial arts of China and East Asia. At the same time, “kung fu” movies enjoyed a brief period of popularity, and some xenophobes began trying to suppress the martial arts. Unfortunately, legislators in New York State succumbed to the xenophobia, and outlawed nunchaku.1

By definition, any “martial art” involves training in some form of combat. The martial art may be “empty-handed”, such as akido, judo, or kung-fu. Or it may use an arm, such as kyudo (Japanese archery) or nunchaku.2

In a colloquy with Senator Hatch on July 14, Judge Sotomayor said that there was a rational basis for the ban because nunchaku could injure or kill someone.3 The same point could just as accurately be made about bows and arrows, swords, or guns. All of them are weapons, and all of them can be used for sporting purposes, or for legitimate self-defense.

Judge Sotomayor´s approach would allow states to ban archery equipment with no more basis than the declaring the obvious: that bows are weapons. Even if there were no issue of fundamental rights in this case, Justice Sotomayor´s application of the rational basis test was shallow and insufficiently reasoned, and it was contrary to Supreme Court precedent showing that the rational basis test is supposed to involve a genuine inquiry, not a mere repetition of a few statements made by prejudiced people who imposed the law.4

The plaintiff in Maloney had argued that (even putting aside the Second Amendment) the New York prohibition violated his rights under the Fourteenth Amendment.5 As Judge Sotomayor correctly recognized, resolution of this claim required deciding whether Mr. Maloney had been deprived of a fundamental right.

Whatever the situation regarding Circuit or Supreme Court precedent on the Second Amendment, there was no controlling precedent on whether Mr. Maloney´s activity involved an unenumerated right protected by the Fourteenth Amendment. Accordingly, Judge Sotomayor and her fellow Maloney panelists should have provided a reasoned decision on the issue. Alternatively, the panel might have declined to decide the fundamental rights issue, while issuing an opinion holding that, even if right in general were fundamental, the right to Maloney's particular arm (nunchaku) is not.

Instead, the panel simply stated a general rule about the Fourteenth Amendment: “Legislative acts that do not interfere with fundamental rights or single out suspect classifications carry with them a strong presumption of constitutionality and must be upheld if 'rationally related to a legitimate state interest.'“

The quoted language came from Beatie v. City of New York, 123 F.3d 707 (2d. Cir. 1997), an unsuccessful challenge to the City government's severe restrictions on cigar smoking. Beatie itself was quoting the Supreme Court's Cleburne v. Cleburne Living Center.

The Maloney court's approach was evasive and disingenuous. Stating the test is not the same as applying the test. Pursuant to Beatie and Cleburne, there is a two-part test:
Does the legislative act interfere with a fundamental right or single out a suspect classification?
If not, is there a rational basis for the law?

The cigar aficionado Mr. Beatie had conceded point 1, but had argued that there was no rational basis for the anti-cigar law; so the Beatie court analyzed only the second point, and decided that there was a rational basis. Mr. Maloney, in contrast, had argued energetically and extensively that New York state's ban on nunchuku violated his fundamental rights.

Yet Judges Sotomayor, Pooler, and Katzman simply presumed--with no legal reasoning--that his use of arms in the home is not a fundamental right.6

The 2009 Maloney case was not the first time Judge Sotomayor had written about arms and fundamental rights. In the 2004 case of United States v. Sanchez-Villar, she used some dicta from an older case in order to claim that “the right to possess a gun is clearly not a fundamental right.”7 That older case was United States v. Toner.8

Post-Heller, the Toner dicta about arms was obviously invalid, since it was based on a misinterpretation of the Supreme Court´s 1939 case United States v. Miller. So when the Maloney case came to the Second Circuit, Judge Sotomayor could not, and did not, cite Toner. As a result, there was no case law from the Second Circuit or from the Supreme Court to support the proposition that peaceful possession of arms is not a fundamental right as an unemerated Fourteenth Amendment right..

Testifying before this Committee on July 14, Judge Sotomayor provided further examples of her troubling attitude to the right to arms. She told Senator Hatch that the Heller decision had authorized gun control laws which could pass the “rational basis” test.9 To the contrary, the Heller decision had explicitly rejected the weak standard of review which Justice Breyer had argued for in his dissent.10

Yet bereft of support from precedent or dicta, Judge Sotomayor simply presumed--on the basis of no legal analysis--that arms possession is not a fundamental right under the Fourteenth Amendment.
Both Judge Sotomayor11 and some of her advocates have pointed to the Seventh Circuit´s decision in NRA v. Chicago as retrospectively validating her actions in Maloney. The argument is unpersuasive. Both the Maloney and the NRA courts cited 19th century precedents which had said that the Fourteenth Amendment´s “privileges or immunities” clause did not make the Second Amendment enforceable against the states. However, as the Heller decision itself had pointed out, those cases “did not engage the sort of 14th Amendment inquiry required by our later cases.” In particular, the later cases require an analysis under a separate provision of the Fourteenth Amendment, the “due process” clause.

Notably, the Seventh Circuit addressed this very issue, and provided a detailed argument for why the existence of modern incorporation under the due process clause would not change the result in the case at bar.12
In contrast, Judge Sotomayor´s per curiam opinion in Maloney did not even acknowledge the existence of the issue.

Various talking heads have made the argument that since Maloney and NRA reached the same result, and since two of the judges in NRA v. Chicago were Republican appointees who are often called “conservatives”, then the Maloney opinion must be alright.

This argument is valid only if one presumes that conservatives and/or Republican appointees always meet the standard of strong protectiveness for constitutional rights which should be required for any Supreme Court nominee.

In the case of the NRA v. Chicago judges, that standard was plainly not met. The Seventh Circuit judges actually made the policy argument that the Second Amendment should not be incorporated because incorporation would prevent states from outlawing self-defense by people who are attacked in their own homes.13

A wise judge demonstrates and builds respect for the rule of law by writing opinions which carefully examine the relevant legal issues, and which provide careful written explanations for the judge´s decisions on those issues.
Judge Sotomayor´s record on arms rights cases has been the opposite. Her glib and dismissive attitude towards the right is manifest in her decisions, and has been further demonstrated by her testimony before this Committee. In Sonia Sotomayor´s America, the peaceful citizens who possess firearms, bows, or martial arts instruments have no rights which a state is bound to respect, and those citizens are not even worthy of a serious explanation as to why.

yellowfin
07-28-2009, 8:21 PM
<<Continued>>

2 See David B. Kopel, Self-defense in Asian Religions, 2Liberty Law Review 79 (2007).
3 "And -- and when the sticks are swung, which is what you do with them, if there's anybody near you, you're going to be seriously injured, because that swinging mechanism can break arms, it can bust someone's skull..."
HATCH: "Sure."
SOTOMAYOR: "... it can cause not only serious, but fatal damage. So to the extent that a state government would choose to address this issue of the danger of that instrument by prohibiting its possession in the way New York did, the question before our court -- because the Second Amendment has not been incorporated against the state -- was, did the state have a rational basis for prohibiting the possession of this kind of instrument?"

4 See, e.g., Cleburne v. Cleburne Living Center, 472 U.S. 432 (1985)(rejecting the claim that the mentally retarded a protected class for Equal Protection purposes, while finding that that a city´s ban on a group home for the mentally retarded was irrational because it was based on prejudice and irrational fears).

5 The brief pointed in various cases in which the Supreme Court had protected unenumerated rights, such as Meyer v. Nebraska (right to educate one´s children), Griswold v. Connecticut (right of married couples to use birth control).

6 Judges Pooler and Katxman were appointed by Republicans. The fact does not excuse Judge Sotomayor´s actions in the case. Judges who have been appointed by Republicans or Democrats alike may be hostile to constitutional rights, particularly if the right is one which is disfavored by the elite classes in the state where the judge comes from. Certainly if Judges Pooler or Katzman were ever to be considered for confirmation to another position of responsibility, their conduct in Maloney should be subject to the same kind of examination has Judge Sotomayor´s has been.

7 United States v. Sanchez-Villar, 99 Fed.Appx. 256, 2004 WL 962938 (2d. Cir. 2004)(Summary Order of Judges Sack, Sotomayor & Kaplan), judgment vacated, Sanchez-Villar v. United States, 544 U.S. 1029 (2005)(for further consideration in light of the 2005 Booker decision on sentencing).

8 United States v. Toner, 728 F.2d 115 (2d Cir., 1984).
Vincent Toner and Colm Murphy were convicted of attempting to purchase unregistered machine guns for the purpose of smuggling them to Northern Ireland, on behalf of misnamed Irish National Liberation Army. To their surprise, the purported middleman in the deal turned out to be an FBI informant.

On appeal, Murphy challenged, inter alia, the federal statute prohibiting illegal aliens from possessing firearms. He argued that since American citizens can possess firearms, the statute prohibiting illegal aliens from doing so was a denial of equal protection. The court's analysis of the issue is as follows:
Murphy was convicted under Count Four of violating 18 U.S.C.App. § 1202(a)(5) (1976), which makes it a felony for an illegal alien to receive, possess or transport “in commerce or affecting commerce ... any firearm.” Because receiving, possessing or transporting firearms in interstate commerce is not in and of itself a crime, United States v. Bass, 404 U.S. at 339 n. 4, 92 S.Ct. at 518 n. 4, and because being an illegal alien is not in and of itself a crime, Murphy argues that his Fifth Amendment right to equal protection of the law is violated by section 1202(a)(5). He concedes, however, that the statute passes constitutional muster if it rests on a rational basis, a concession which is clearly correct since the right to possess a gun is clearly not a fundamental right, cf. United States v. Miller, 307 U.S. 174, 59 S.Ct. 816, 83 L.Ed. 1206 (1939) (in the absence of evidence showing that firearm has “some reasonable relationship to the preservation or efficiency of a well regulated militia,” Second Amendment does not guarantee right to keep and bear such a weapon), and since illegal aliens are not a suspect class. The Toner court then provided reasons why there is a rational basis for treating illegal aliens differently, in regards to arms possession.

It is questionable whether Toner's language about fundamental rights created a controlling precedent; the issue was not even contested before the court, as appellant Murphy had conceded that no fundamental right was involved. However, Toner provided, at the least, some usable dicta, which Judge Sotomayor and the other two judges in her panel quoted in their Summary Order in Sanchez-Villar in 2004.

In 2008, the Supreme Court authoritatively ruled that the Second Circuit's 1984 reading of Miller was entirely wrong. In District of Columbia v. Heller, the majority opinion chastised lower court judges who had “overread Miller” and criticized Justice Stevens for wanting to defer to “their erroneous reliance” on interpretations similar to the one proffered by the Second Circuit in Toner.

The Heller decision stated that “Miller did not hold that and cannot possibly be read to have held” that only arms possession by the militia is protected by the Second Amendment. Quoting the exact sentence of Miller which had been quoted in Toner, the Heller decision explained that this sentence demonstrated Miller's correct meaning: “it was that the type of weapon at issue was not eligible for Second Amendment protection.” Thus, “We therefore read Miller to say only that the Second Amendment does not protect those weapons not typically possessed by law-abiding citizens for lawful purposes, such as short-barreled shotguns.”

Post-Heller, Toner's assertion that there is no fundamental right to possess a firearm was invalid. The assertion in Toner was based on solely on an interpretation of Miller, and the Supreme Court has unambiguously stated that the interpretation was wrong.

9 “But even Justice Scalia, in the majority opinion in Heller, recognized that that was a rational basis regulation for a state under all circumstances, whether or not there was a Second Amendment right.”

10 To be precise, the Breyer dissent had argued for a “reasonableness” standard. This would be somewhat stronger than mere “rational basis.”A foriori, the rejection of “reasonableness” also rejected “rational basis.”

11 In response to a question from Senator Hatch, July 14, 2009.

12 Even so, the Seventh Circuit panel was clearly straining to reach the result it did. Exemplifying what Justice Brennan had (in another context) described as “arrogance cloaked as humility,” the panel claimed that it was merely obeying the rule that lower courts should not presume that a still-valid Supreme Court precedent is going to be overruled. As the key illustration, the panel pointed to the history of the 1997 Supreme Court decision in State Oil Co. v. Khan, which overruled the 1968 Supreme Court decision Albrecht v. Herald Co. In Albrecht, the Court had interpreted section 1 of the Sherman Antitrust Act, which forbids “Every contract, combination … or conspiracy, in restraint of trade, “ to mean that manufacturers are forbidden to set maximum prices that their retailers can charge. (This is called “vertical price fixing.”) By 1996, economists had proven—and several Supreme Court cases had seemed to agree—that Albrecht’s rationale was entirely wrong. Yet Albrecht had not been overruled, and so the 7th Circuit obeyed it.

When the Supreme Court in State Oil Co. v. Khan overruled Albrecht in 1997, the Supreme Court praised the 7th Circuit for having adhered to Albrecht, since Albrecht had not yet been overruled, even though almost everyone had correctly predicted that its days were numbered.

In the handgun ban case, the 7th Circuit panel congratulates itself for its treatment of Albrecht, and said that a similar approach is required on the question of whether states must respect the Right to Keep and Bear Arms.

The panel’s claim, however, is founded on a rather obvious logical error. Albrecht’s 1968 judicial rule against vertical price fixing was an interpretation of one phrase in one federal statute, and the 1997 State Oil case was a reinterpretation of that very same phrase.

However, the plaintiffs in NRA v. Chicago were asking the court to rule on a constitutional provision that none of the 19th century cases had addressed. The 19th century cases had decided that the Second Amendment does not, by its own force, apply to the states, and that the right to arms is not protected by the “privileges or immunities” clause of the 14th Amendment. However, none of the three cases involved a decision about incorporation under the “due process” clause.

Contrary to what the 7th Circuit panel implied, the fact that the Supreme Court rejects a claim based on one constitutional clause does not prevent a lower court from ruling in favor of a claim based on a separate constitutional clause. For example, if a local government does something concerning religion, and the Supreme Court rules that the government action does not violate the First Amendment clause which forbids a government “establishment of religion,” then the plaintiff can file another lawsuit alleging that the very same government action violates the separate clause in the First Amendment that forbids “prohibiting the free exercise” of religion.

13 “Suppose a state were to decide that people cornered in their homes must surrender rather than fight back—in other words, that burglars should be deterred by the criminal law rather than self help. That decision would imply that no one is entitled to keep a handgun at home for self-defense, because self-defense would itself be a crime, and Heller concluded that the Second Amendment protects only the interests of law-abiding citizens …Our hypothetical is not as far-fetched as it sounds.”

hawk1
07-28-2009, 9:21 PM
As said before, elections have consequences. :cool:

She will be no friend of ours.

Chk Chk Boom
08-07-2009, 9:16 PM
I'm not sure we can tell how she will vote yet. More than a few judges do not turn out like you expect.

Earl Warren was a Republican and Eisenhower nominated him "knowing" that would rule conservatively. We all know how the Warren court ruled though... Eisenhower even said something like "nominating Warren was the biggest damned fool mistake I ever made."

Despite the whole gun control thing, sotomayor is actually a relatively moderate justice. I think that if she came out and flat out said "I will not take your guns away" or "I affirm my support and belief in the meaning of the 2nd ammendment" or some crap like that, she wouldn't be half bad.

javabum
08-07-2009, 9:29 PM
sotomayor is anti 2A...she dosent believe in our right to self defense.
she is going to be as self serving as she can possibly be.

look we have a president most if not all of us don't approve of...so he stood by a person he knew would do his bidding as a supreme court justice.he trying to mold this country to his liking.
im not the brightest penny in the glass jar but i see things going down a bad road for the US.

ScottB
08-07-2009, 9:37 PM
Can someone please explain why the Court didn't just close the loop and incorporate in the original ruling, if that is in fact the belief of the majority holding for Heller? Why all this drama and uncertainty?

Souter probably would not have voted for incorporation either, so hopefully it will still happen, but It seems like a colossal waste of judicial time.

I the meantime pray for the continued good health of the Heller majority

RomanDad
08-07-2009, 11:11 PM
Can someone please explain why the Court didn't just close the loop and incorporate in the original ruling, if that is in fact the belief of the majority holding for Heller? Why all this drama and uncertainty?



For the same reason they didn't rule that airlines should serve salty snacks in-flight. The question was not before the Court. The law in question was a FEDERAL law. The Distinct is NOT a State. The Constitution grants the U.S. Congress with the ultimate power to make law for the District (they have abdicated some of that power to the D.C. Council, but they retain the final say). Therefore, incorporation to the states was not at issue in the D.C. gun ban.

The Court does not make advisory rulings as to do so is beyond the scope of their power granted in Article 3 Section 2 of the Constitution.

.454
08-08-2009, 5:00 AM
As said before, elections have consequences. :cool:

She will be no friend of ours.

Guns are just a hobby, anyway.;)

press1280
08-08-2009, 6:31 AM
Guns are just a hobby, anyway.;)

But I wonder where she'll come down if McDonald gets cert. with the privleges or immunities on the table? It seems a number of liberal justices don't agree with the holdings of Slaughterhouse.

tazmanian devil dog
08-08-2009, 8:24 AM
Her confirmation is a slap in the face to everyone that believes in freedom.

thebronze
08-08-2009, 8:29 AM
Her confirmation is a slap in the face to everyone that believes in freedom.

And that the GOP did not mount a more vigorous opposition to her, shows just how morally bankrupt and cowardly they are.

dwtt
08-08-2009, 8:40 AM
And that the GOP did not mount a more vigorous opposition to her, shows just how morally bankrupt and cowardly they are.

That's not the reason why the GOP didn't put up a big opposition.
They didn't have the votes to stop the nomination.
They can't even filibuster a bill in the senate. The GOP would have made themselves look like a bunch of crybabies by strongly opposing Soda Meyer when they didn't have the votes to do anything. They're likely picking their battles for later bills.

There's a way to help fix this problem. The next time your Representative is up for election, donate $100 to the Republican candidate. Get your friends to all donate too. Then you will be on the moral high ground with respect to being morally bankrupt and cowardly.

Gray Peterson
08-08-2009, 11:26 AM
I am willing to respect that a judge could have asserted the 2nd Amendment was not an individual right before and during Heller. I disagree but they're the judge and I'm not and I suppose they know more than me. But once SCOTUS has determined it is an individual right how can a judge determine the state may abridge that 2nd Amendment right any more than they could the 1st, the 4th or the 5th?

I might add just one thing to the situation here. The plaintiff in the case, Maloney, is not a firearms attorney in the vein of Gura, Kilmer, and Jason Davis. He made especially weak arguments, and has been roundly criticized as not competent in matters of 2nd amendment and 14th amendment law. Maloney, who is a "constitutional law" attorney, represented himself in a case. He was repeatedly told not to bring a case because he did not have enough experience in this particular kind of case, but he brought it anyway. I am personally hoping that SCOTUS will take McDonald, rule 2A incorporated or restore P&I, and GVR the Maloney case in light of it.

I'll try to see if I can find the Maloney arguments.

yellowfin
08-08-2009, 11:43 AM
I might add just one thing to the situation here. The plaintiff in the case, Maloney, is not a firearms attorney in the vein of Gura, Kilmer, and Jason Davis. He made especially weak arguments, and has been roundly criticized as not competent in matters of 2nd amendment and 14th amendment law. Maloney, who is a "constitutional law" attorney, represented himself in a case. He was repeatedly told not to bring a case because he did not have enough experience in this particular kind of case, but he brought it anyway. I am personally hoping that SCOTUS will take McDonald, rule 2A incorporated or restore P&I, and GVR the Maloney case in light of it.

I'll try to see if I can find the Maloney arguments.Maloney was/is a saboteur. He doesn't want to win. He wanted to raise all of our points so that they can be enumerated and struck down item by item in a losing decision to screw us, and for NY he succeeded. We can't prove at this point where or not he had motivation or help by our usual enemies, but it's for sure he did their dirty work for them better than just about anyone could have and it points too strongly towards him doing it on purpose for me to think otherwise. Having a pair of welding tanks blow up in the back of your truck is an accident. Having it happen next to a school makes it a dangerous accident. Having 10 boxes of screws next to the tanks and it's 3:00pm as school's getting out makes it likely not an accident.

I'm pretty sure the Right People have reached the same conclusion. Or am I wrong?

POLICESTATE
08-08-2009, 12:06 PM
What I fail to understand with all this amendment stuff is if the 1st, 4th, 5th amendments apply to the states then why the hell wouldn't the 2nd and all the others? Am I missing something here? It seems to me that this is no-brainer stuff here. The COTUS is the highest law in the land and no laws, federal, state or local are supposed to supersede it right?

The problem with law is all the damn lawyers involved in it, the problem with judges is they all used to be lawyers! Seems to me the greatest problem with our judicial system is that there is too much conflict of interest anymore.

snobord99
08-08-2009, 12:29 PM
What I fail to understand with all this amendment stuff is if the 1st, 4th, 5th amendments apply to the states then why the hell wouldn't the 2nd and all the others? Am I missing something here? It seems to me that this is no-brainer stuff here. The COTUS is the highest law in the land and no laws, federal, state or local are supposed to supersede it right?

The problem with law is all the damn lawyers involved in it, the problem with judges is they all used to be lawyers! Seems to me the greatest problem with our judicial system is that there is too much conflict of interest anymore.

Here's what happened. SCOTUS has held that the BoR only applies to the states through the 14th Amendment. In the 150 years since the 14th Amendment, there have been three camps as to how the BoR should apply to the states through the 14th. First, there are those that say total incorporation (all apply to the states). Second, there are those that say no incorporation (they've mostly fallen out but were more relevant when incorporation became an issue about 100 years ago). Finally, there's selective incorporation (some apply to the states, some don't).

SCOTUS has gone with selective incorporation but they can't incorporate what hasn't come before them. The court has also opted not to incorporate certain provisions (e.g., right to an indictment by a grand jury or right to jury trial in civil cases). The deal with the 2nd is that there has yet to be a case brought before the SCOTUS on whether it should be incorporated so they've yet to speak on the issue.

POLICESTATE
08-08-2009, 1:21 PM
That is a great explanation. Obviously I think the idea that the BoR not only should apply to the whole country but should a fair and honest conclusion by any perspective. Kind of like we can all agree that dirt is dirt, and the sky is blue. Selective application just sounds sneaky and underhanded to me, and is in contradiction with the spirit of liberty that this country is based upon.

It's too bad there were not some safeguards built into the constitution to help guarantee that crooks wouldn't come along and twist it to their ends, but from what I remember from school the founding fathers had always intended for the people to take action against tyrants, they just didn't write it into the constitution. Too bad!

Gray Peterson
08-08-2009, 3:36 PM
Found it: http://homepages.nyu.edu/~jmm257/files.html

http://homepages.nyu.edu/~jmm257/argument-corrected.pdf