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dfletcher
08-24-2009, 9:56 PM
Is the subject of the 2nd Amendment important with respect to SCOTUS and the 14th or is the court to make a decision based on the 14th and incorporation only? For example, Stevens voted against Heller - despite that, could Stevens decide in favor of the 14th based on the principle of the 14th being more important than the specific right discussed? Likewise, could Scalia or Thomas - being cut from the original intent cloth - vote against the 14th (incorporation) because they do not believe the Bill of Rights applies to the states?

What is the voting background of the current Justices regarding incorporation in general?

Perhaps I'm being foolish, but I don't view a vote against Heller as a slam dunk against incorporation nor the 5 votes for Heller as a slam dunk in favor.

snobord99
08-24-2009, 10:00 PM
I don't view a vote against Heller as a slam dunk against incorporation nor the 5 votes for Heller as a slam dunk in favor.

And you would be right. It's no slam dunk, but it's probably a good indication as to how they'll likely vote.

Heller doesn't have anything to do with incorporation in the first place, but if they found that the 2nd is incorporated, then Heller would help a hell of a lot.

hoffmang
08-24-2009, 10:54 PM
It is possible that a SCOTUS incorporation decision could have more than 5 judges in favor since the issues are discreet and stare decisis means Heller is the law of the land now. Also, depending on which questions they grant and how they rule, there may be other important bill of rights issues on the table - mainly overturning Slaughterhouse Cases - that has appeal to the minority 4 to come vote for the majority.

-Gene

press1280
08-25-2009, 3:56 AM
It is possible that a SCOTUS incorporation decision could have more than 5 judges in favor since the issues are discreet and stare decisis means Heller is the law of the land now. Also, depending on which questions they grant and how they rule, there may be other important bill of rights issues on the table - mainly overturning Slaughterhouse Cases - that has appeal to the minority 4 to come vote for the majority.

-Gene

I just wonder how stare decisis will work for a follow-up case like this that takes place so soon after the original. It may be a different story if Heller were 10 years old, but 1 year? Sort of seems weird that the remaining 3 dissenters will all of a sudden accept the Heller decision. But as you say Slaughterhouse being on the table has the potential for getting a larger majority of the court.

yellowfin
08-25-2009, 6:06 AM
About the only thing we know for 100% certain is that the new appointee will vote against incorporation and anything that can possibly benefit the 2nd Amendment no matter what. If there was a provision attached to it that could cure AIDS, cancer, Alzheimers, and MS if she'd vote yes she'd still vote no.

dfletcher
08-25-2009, 9:02 AM
About the only thing we know for 100% certain is that the new appointee will vote against incorporation and anything that can possibly benefit the 2nd Amendment no matter what. If there was a provision attached to it that could cure AIDS, cancer, Alzheimers, and MS if she'd vote yes she'd still vote no.

And the shameful part of that scenario is here we have a new justice who has said she'd respect precedent and no doubt would (or is) in favor of incorporating all rights (actual or perceived) against the states - except the one she doesn't like which is of course the 2nd. I guess I'll hold out a little hope that she'll hold her nose and say the 14th applies. I just hope we don't get surprised by one of the conservatives.

Mulay El Raisuli
08-25-2009, 9:08 AM
It is possible that a SCOTUS incorporation decision could have more than 5 judges in favor since the issues are discreet and stare decisis means Heller is the law of the land now. Also, depending on which questions they grant and how they rule, there may be other important bill of rights issues on the table - mainly overturning Slaughterhouse Cases - that has appeal to the minority 4 to come vote for the majority.

-Gene



Might be better than that. Even the ACLU wants (P & I) incorporation.

The Raisuli

snobord99
08-25-2009, 9:31 AM
I just wonder how stare decisis will work for a follow-up case like this that takes place so soon after the original. It may be a different story if Heller were 10 years old, but 1 year? Sort of seems weird that the remaining 3 dissenters will all of a sudden accept the Heller decision. But as you say Slaughterhouse being on the table has the potential for getting a larger majority of the court.

Generally, issues that come up again soon after it was decided will be decided the same way. The reasoning is generally that it's been so soon, social conditions probably haven't changed to a point where it could justify overruling the prior holding. On the other hand, if a really old issue has more or less been accepted by most to be an accurate interpretation of the law, it's often upheld as well established law.

The problem here, and it seems a lot of people here are confused on this, is that there is no precedent. Heller was pro-2A, but the simple fact of the matter is that it didn't decide whether 2A was incorporated. Legal issues are very specific. That's one of the hardest things to do as a new law student, figure out the narrow issue and don't go beyond that. Heller ruled on what the 2A meant whereas what we're presented with now is if 2A is incorporated through the 14th Amendment. These are two VERY different issues despite the fact that they both involve the 2nd.

nat
08-25-2009, 9:45 AM
About the only thing we know for 100% certain is that the new appointee will vote against incorporation and anything that can possibly benefit the 2nd Amendment no matter what. If there was a provision attached to it that could cure AIDS, cancer, Alzheimers, and MS if she'd vote yes she'd still vote no.

And how is this 100% certain? Judges have a long history of voting differently than their appointers expect.

snobord99
08-25-2009, 9:57 AM
And how is this 100% certain? Judges have a long history of voting differently than their appointers expect.

While that's true and I wouldn't call it 100%, I'd say it is damn near 100% in light of the fact that she just ruled on this issue a few months ago.

Scarecrow Repair
08-25-2009, 10:24 AM
While that's true and I wouldn't call it 100%, I'd say it is damn near 100% in light of the fact that she just ruled on this issue a few months ago.

She voted on very strict legal grounds, not ethical or moral grounds. That's what the right usually says they want, except when they don't. Regardless of what other baggage she has, her judicial record is pretty solid on being very strict about the law, not about what people want or don't want.

wash
08-25-2009, 10:32 AM
I don't understand how any one can read "shall not be infringed" and think that everything is OK.

I can understand that a judge in a lower court would accept the precedent from SCOTUS but I don't see how any judge that has made it there can read "shall not be infringed" and vote against a pro RKBA issue with any intellectual honesty.

Just look at the anti-federalists, they didn't think a bill of rights was needed because they didn't think any one would try to steal our freedom of speech, religion, RKBA, etc. I'm damn glad that they lost that argument and we have the bill of rights but the fact is that even people who thought we didn't need a BOR thought we had a fundamental RKBA.

It's sad that racism was enough to mess up incorporation through the 14'th amendment but that makes the argument to throw out those decisions seem like a no-brainer.

Any SCOTUS judge against incorporation and overturning the Slaughterhouse cases is intellectually dishonest and endorsing racism.

If they want to infringe on our second amendment rights, they need to go to congress and get the votes to amend the constitution. That's the only legal way to do it. I don't think it will happen.

7x57
08-25-2009, 10:33 AM
She voted on very strict legal grounds, not ethical or moral grounds.


Because it served her political purposes. This is no different than the Chicago appeals court suddenly having a religious conversion to (a bizarrely ahistorical form of) Federalism simply because they were desperate for arguments.


That's what the right usually says they want, except when they don't.


It would be nice if she could do it correctly if she has a new-found appreciation for the law.


Regardless of what other baggage she has, her judicial record is pretty solid on being very strict about the law, not about what people want or don't want.

I have not looked at her record, but her plain statements (up until the senate hearings, when she had a Damascus-road conversion to whatever would get her confirmed) contradict this. So she's either a bad judge or a liar. She has to be at least one.

7x57

snobord99
08-25-2009, 10:52 AM
Any SCOTUS judge against incorporation and overturning the Slaughterhouse cases is intellectually dishonest and endorsing racism.

Wow. Talk about statements that make a person seem like one whose arguments may be dismissed despite how much their other statements may make sense.

hoffmang
08-25-2009, 10:57 AM
One of the issues floating around this case is the timing of a likely announcement. Should the case not be GVR'ed, the decision will be released before the 4th of July next year - about 4 months before the mid-term elections. Bringing 2A up right then can make the blue dogs sweat.

-Gene

tiki
08-25-2009, 11:03 AM
Should the case not be GVR'ed...
-Gene

Too long since breakfast; what is that?

wash
08-25-2009, 11:33 AM
Wow. Talk about statements that make a person seem like one whose arguments may be dismissed despite how much their other statements may make sense.

I call it like I see it.

Any judge that does not uphold the law because they don't like the outcome deserves to be branded as harshly as we can.

It's not their job to interpret the law in a way to support the outcome they desire. That was the problem with Slaughterhouse. They need to read the law and apply it the way it was originally intended. Anything beyond that is exceeding their authority. If the American people don't like the law as written, they can tell congress to change it.

That's not an opinion, that's the way our government is supposed to work.

yellowfin
08-25-2009, 11:58 AM
And how is this 100% certain? Judges have a long history of voting differently than their appointers expect.She has a 100% anti gun voting record in the 2nd Circuit, which itself has an almost 100% anti gun decision record. She was appointed by a 100% anti gun White House occupant. Her affiliations have an anti gun slant. Do I need to draw a diagram?

yellowfin
08-25-2009, 12:03 PM
Wow. Talk about statements that make a person seem like one whose arguments may be dismissed despite how much their other statements may make sense. Consider the SCOTUS decisions he's talking about and the laws which have been affected by them. They were indeed racist rulings and laws--Cruikshank, the Mulford Act, the Sullivan Act, etc. are about as racist as you can get. It is almost certain that Cruikshank and Slaughterhouse together produced Plessy v. Ferguson. He's completely right.

IGOTDIRT4U
08-25-2009, 12:22 PM
I call it like I see it.

Any judge that does not uphold the law because they don't like the outcome deserves to be branded as harshly as we can.

It's not their job to interpret the law in a way to support the outcome they desire. That was the problem with Slaughterhouse. They need to read the law and apply it the way it was originally intended. Anything beyond that is exceeding their authority. If the American people don't like the law as written, they can tell congress to change it.

That's not an opinion, that's the way our government is supposed to work.

I absolutely agree with you. The history of the Cruikshank case and it's subsequent application speaks volumes about it. Judges should not and will not decide cases based upon a preset outcome they desire; to do so diminishes the court.

hoffmang
08-25-2009, 12:23 PM
Too long since breakfast; what is that?

GVR = Grant, Vacate, and Remand for further proceedings.

-Gene

nat
08-25-2009, 12:35 PM
She has a 100% anti gun voting record in the 2nd Circuit, which itself has an almost 100% anti gun decision record. She was appointed by a 100% anti gun White House occupant. Her affiliations have an anti gun slant. Do I need to draw a diagram?

I love all the in-fighting that occurs around here.

It is not clear that the WH is 100% anti-gun, nor is it possible to be clear on how she will vote. I agree that it doesn't seem likely, but nobody can be 100% sure on what will happen.

If we were to look at this situation in relation to quantum mechanics, she is voting both for and against incorporation. It isn't until we observe her decision that we can know what it is.

dfletcher
08-25-2009, 12:35 PM
She has a 100% anti gun voting record in the 2nd Circuit, which itself has an almost 100% anti gun decision record. She was appointed by a 100% anti gun White House occupant. Her affiliations have an anti gun slant. Do I need to draw a diagram?

It seems like the only justices in recent memory that surprise us are the ones appointed by Republicans who thought they'd be conservative on the bench - Earl Warren and Justice Brennan, Souter, Breyer. I'd like to see just one liberal Democratic President be surprised by their supposedly left leaning nominee.

Mention was made of Heller being a very recent decision - should timing play an issue? Could the court agree the 2nd should be incorporated, just not yet?

I'm still at a loss as to how the court can say the federal government can not violate the 1st, 4th and 5th, etc and the states through the 14th can not violate the 1st, 4th and 5th, etc. And the federal government can not violate the 2nd - but the 14th doesn't apply and the states can because ....?

I may not agree that a right exists, but it seems to me that once the court has decided it does then the question shifts entirely to "does this right via the 14th apply to the states?" and discussion as to whether the right exists has ended.

yellowfin
08-25-2009, 12:49 PM
Judges should not and will not decide cases based upon a preset outcome they desire; to do so diminishes the court.Yet they do it all the time.

IGOTDIRT4U
08-25-2009, 1:00 PM
Yet they do it all the time.

Yep, they sure do. My post was more of a rhetorical, principled request. If the lower courts were devoid of error and opinion, the higher courts would be nearly empty!

snobord99
08-25-2009, 1:37 PM
Consider the SCOTUS decisions he's talking about and the laws which have been affected by them. They were indeed racist rulings and laws--Cruikshank, the Mulford Act, the Sullivan Act, etc. are about as racist as you can get. It is almost certain that Cruikshank and Slaughterhouse together produced Plessy v. Ferguson. He's completely right.

It's one thing to say that the holdings were motivated by racism; it's something completely different to say that because they don't overrule it, they themselves are endorsing racism. It's statements such as these that hurt a cause more than they help it.

snobord99
08-25-2009, 1:47 PM
I call it like I see it.

Any judge that does not uphold the law because they don't like the outcome deserves to be branded as harshly as we can.

It's not their job to interpret the law in a way to support the outcome they desire. That was the problem with Slaughterhouse. They need to read the law and apply it the way it was originally intended. Anything beyond that is exceeding their authority. If the American people don't like the law as written, they can tell congress to change it.

That's not an opinion, that's the way our government is supposed to work.

So your beef is really with Marbury v. Madison? I mean, theoretically, it's the province of the court to interpret the law.

If, under your theory, there was only one possible interpretation of the law, then why do we even need a court to interpret the law? Why not just tell the executive branch to do what they need to do since the law, as written, only has one possible interpretation? Under your theory, we only need the courts to read the law, not interpret it. I reckon the executive could read the law just as well as the judicial, so why bother with the judicial in the first place? :confused:

wash
08-25-2009, 1:48 PM
No, that is exactly endorsing racism.

en·dorse Pronunciation (n-dôrs) also in·dorse (n-)
tr.v. en·dorsed also in·dorsed, en·dors·ing also in·dors·ing, en·dors·es also in·dors·es
1. To write one's signature on the back of (a check, for example) as evidence of the legal transfer of its ownership, especially in return for the cash or credit indicated on its face.
2. To place (one's signature), as on a contract, to indicate approval of its contents or terms.
3. To acknowledge (receipt of payment) by signing a bill, draft, or other instrument.
4. To give approval of or support to, especially by public statement; sanction: endorse a political candidate. See Synonyms at approve. (http://www.thefreedictionary.com/endorse)

Definition 2 and 4 apply here.

wash
08-25-2009, 1:52 PM
If you only carry a torch and tag along at a lynching, you are still part of a lynch mob.

snobord99
08-25-2009, 2:07 PM
No, that is exactly endorsing racism.

en·dorse Pronunciation (n-dôrs) also in·dorse (n-)
tr.v. en·dorsed also in·dorsed, en·dors·ing also in·dors·ing, en·dors·es also in·dors·es
1. To write one's signature on the back of (a check, for example) as evidence of the legal transfer of its ownership, especially in return for the cash or credit indicated on its face.
2. To place (one's signature), as on a contract, to indicate approval of its contents or terms.
3. To acknowledge (receipt of payment) by signing a bill, draft, or other instrument.
4. To give approval of or support to, especially by public statement; sanction: endorse a political candidate. See Synonyms at approve. (http://www.thefreedictionary.com/endorse)

Definition 2 and 4 apply here.

I don't think you understand the distinction I was making. I'm saying there's a difference between endorsing the case(s) and endorsing its motives. Their endorsement of the holding (which I'm not sure if they do) doesn't mean they endorse the motives behind the holding. There's nothing I can remember from reading the actual opinion that said something along the lines of "yay racism!" Improper motives may still lead to a proper result just as proper motives may lead to an improper result.

Saying that they endorse racism because of this would be like me saying you support slavery because you support the Constitution (I assume) since the founding fathers supported slavery by putting in the 3/5 clause.

wash
08-25-2009, 2:25 PM
I understand what you are saying.

I don't care which sick fantasy they might indulging by voting for Slaughterhouse or against incorporation. I call it racist because that will sting the most and it's demonstratively correct.

If any of the Supreme Court Justices don't want to be racist they can vote to overturn Slaughterhouse and Incorporate the second ammendment.

bulgron
08-25-2009, 3:29 PM
I understand what you are saying.

I don't care which sick fantasy they might indulging by voting for Slaughterhouse or against incorporation. I call it racist because that will sting the most and it's demonstratively correct.

If any of the Supreme Court Justices don't want to be racist they can vote to overturn Slaughterhouse and Incorporate the second ammendment.

Just remember that they can incorporate the 2A without throwing out Slaughterhouse.

Throwing out Slaughterhouse is arguably a much more radical thing to do than incorporating the 2A under Due Process. There's this stare decisis (sp?) thing that judges cling to, and it seems to be the one thing that binds both liberals and conservatives on the bench. We should be happy that they cling to it, too, because it means that as we make big wins on the 2A front, some liberal court down the road can't just ignore all of that on a whim.

All of that said, I do hope they toss out Slaughterhouse & children because from everything I've been able to learn about those cases, they were wrongly decided. But that's of decidedly lower importance to me than 2A incorporation. 2A incorporation affects my personal life, right now, immediately, because it gates whether we can force CA into being a shall-issue state. Tossing out Slaughterhouse and reinstating P&I is of intellectual & philosophical interest to me, but I don't believe it affects my life immediately, one way or another, other than it means that the 2A becomes instantly incorporated along with everything else.

Scarecrow Repair
08-25-2009, 3:43 PM
She has a 100% anti gun voting record in the 2nd Circuit, which itself has an almost 100% anti gun decision record. She was appointed by a 100% anti gun White House occupant. Her affiliations have an anti gun slant. Do I need to draw a diagram?

No, but I'd like to know what horse is going to win in the 5th at Belmont, since you seem to be able to predict the future.

IGOTDIRT4U
08-25-2009, 3:54 PM
Just remember that they can incorporate the 2A without throwing out Slaughterhouse.

Throwing out Slaughterhouse is arguably a much more radical thing to do than incorporating the 2A under Due Process. There's this stare decisis (sp?) thing that judges cling to, and it seems to be the one thing that binds both liberals and conservatives on the bench. We should be happy that they cling to it, too, because it means that as we make big wins on the 2A front, some liberal court down the road can't just ignore all of that on a whim.

All of that said, I do hope they toss out Slaughterhouse & children because from everything I've been able to learn about those cases, they were wrongly decided. But that's of decidedly lower importance to me than 2A incorporation. 2A incorporation affects my personal life, right now, immediately, because it gates whether we can force CA into being a shall-issue state. Tossing out Slaughterhouse and reinstating P&I is of intellectual & philosophical interest to me, but I don't believe it affects my life immediately, one way or another, other than it means that the 2A becomes instantly incorporated along with everything else.

Well stated! And I agree, going after Slaughterhouse would be nice as a package deal, but the immediate goals you state are so tangibly near that in the excitement for incorporation, I hope we don't lose sight of the bigger, longer term picture of getting rid of bad precedent along the road of setting good. We only get limited cracks at the pinata.

snobord99
08-25-2009, 6:57 PM
I understand what you are saying.

I don't care which sick fantasy they might indulging by voting for Slaughterhouse or against incorporation. I call it racist because that will sting the most and it's demonstratively correct.

If any of the Supreme Court Justices don't want to be racist they can vote to overturn Slaughterhouse and Incorporate the second ammendment.

I get what you're saying and what you're trying to do, but I'm saying that doing that is actually counterproductive. When you make statements or arguments that are just...absurd...people stop taking you seriously and write you off even if your other points are good and valid.

Shotgun Man
08-25-2009, 7:04 PM
Originally Posted by wash http://www.calguns.net/calgunforum/images/buttons/viewpost.gif (http://www.calguns.net/calgunforum/showthread.php?p=2971666#post2971666)
I understand what you are saying.

I don't care which sick fantasy they might indulging by voting for Slaughterhouse or against incorporation. I call it racist because that will sting the most and it's demonstratively correct.

If any of the Supreme Court Justices don't want to be racist they can vote to overturn Slaughterhouse and Incorporate the second ammendment.


I get what you're saying and what you're trying to do, but I'm saying that doing that is actually counterproductive. When you make statements or arguments that are just...absurd...people stop taking you seriously and write you off even if your other points are good and valid.

Pardon me? Where is the absurdity?

snobord99
08-25-2009, 9:47 PM
Pardon me? Where is the absurdity?

Don't worry about it. Some people just don't get it.

press1280
08-26-2009, 3:16 AM
Well stated! And I agree, going after Slaughterhouse would be nice as a package deal, but the immediate goals you state are so tangibly near that in the excitement for incorporation, I hope we don't lose sight of the bigger, longer term picture of getting rid of bad precedent along the road of setting good. We only get limited cracks at the pinata.

I'm wondering if the selection of one of the 3 incorporation cases might give the answer. If McDonald is NOT picked, it may indicate the court is not willing to overturn Slaughterhouse, and instead sticks with a due process case(NRA or Maloney).

Mulay El Raisuli
08-26-2009, 7:54 AM
Well stated! And I agree, going after Slaughterhouse would be nice as a package deal, but the immediate goals you state are so tangibly near that in the excitement for incorporation, I hope we don't lose sight of the bigger, longer term picture of getting rid of bad precedent along the road of setting good. We only get limited cracks at the pinata.



It is for the last reason that I disagree with you & bulgron. We do only get limited cracks at the pinata. Slaughterhouse did lots of bad for the country, not just to the 2A. It isn't for intellectual reasons that I'd like to see it go bye-bye. I don't know often the chance to toss this has come up in the last 136 years (I'm guessing not too often), but we have the chance to do so NOW & we might not get the chance again for a long while.

NOW then is the time to do so.

Besides, doing so will only help us in the other battles yet to be fought in re the 2A.

The Raisuli

wash
08-26-2009, 8:38 AM
I would hope that they have enough sense to write a decision that is going to make them look good.

If the anti-gun justices know they are going to lose, ditching Slaughterhouse will at least make them look good on racism. They could even say "guns are bad M-kay but racism is worse".