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View Full Version : Post McDonald: Go After Carolene?


yellowfin
06-23-2010, 6:26 PM
Something that's been rolling around a bit in my thoughts in thinking about the road ahead for 2A rights restoration is one of the ugly cases that has contributed to the general problem we face. Once we get the McDonald ruling we'll start hammering away at all the many obstacles there's the concern of increased emphasis on denial by run around and more new obstacles put up as local governments refuse to swallow the medicine.

So do we go after US v. Carolene Products next, to cut down on all the BS'ing around that the anti side is going to try to do to nullify our forthcoming wins? Or is that going to be an incidental byproduct of the process? I was thinking that the Peña case might touch on that a bit, as Carolene seems to be the government's excuse for all manner of elaborate nonsense, the "well, we've got to do something" mantra. Any thoughts on this?

yellowfin
06-24-2010, 9:08 AM
Not a single thought...or nothing anyone can say?

Barabas
06-24-2010, 9:20 AM
I think trying to address scrutiny, when so much of our current government relies on its misuse, is perhaps too far down the line for gun rights organizations to tackle. Maybe if the government starts rounding up citizens again... I just don't know how useful it would be to attack it in the context of a gun rights suit.

Sinixstar
06-24-2010, 9:25 AM
The idea of that happening is frankly a far fetched one.
Nevermind that that decision is what gives us the concept of strict scrutiny - which is a good thing.

Would it be better to have it tossed? Maybe. Just like it would be better to get slaughterhouse tossed and get P/I restored. Let me know how that works out for you...

yellowfin
06-24-2010, 9:37 AM
Nevermind that that decision is what gives us the concept of strict scrutiny - which is a good thing. Perhaps it did that, but at the same time it put 95%+ of everything else outside of it, usually applying rational basis or no scrutiny at all, which is a very bad thing.

383green
06-24-2010, 9:50 AM
Just like it would be better to get slaughterhouse tossed and get P/I restored. Let me know how that works out for you...

I'll let you know on Monday...

Sinixstar
06-24-2010, 9:58 AM
I'll let you know on Monday...

And if that's the case - then wouldn't this entire thread become a moot point?

If the 2nd is incorporated under P/I instead of due process, then Carolene would have zero impact on incorporation of the 2nd, since Carolene deals with due process and interstate commerce.

If it goes that way - then you'd really have even less means of trying to knock out Carolene with an argument about guns.

Sinixstar
06-24-2010, 10:07 AM
The court has made it pretty clear that they're looking to rock the boat as little as possible. Looking to use incorporation of the 2nd as a means to go after bigger rulings that have farther reaching consequences is simply not a good idea.

The better strategy is to build a volume of case law by challenging lesser violations of the 2nd in lower courts which are more likely to rule in our favor. Not everything has to be taken up by SCOTUS - and in fact if we try to look to them for every single thing we want, we're going to be wanting for a very long time.

Going after Carolene doesn't get us anything in actually getting bad laws struck down. You want to get rid of the roster? Challenge the Roster directly.
You want to get rid of the AWB? Challenge it directly.

You try to take on Carolene, and not only are you likely to lose - even if you "win" - what have you done to make owning a gun easier? What gun law have you effected? How does it make having a "hi capacity" mag for your AR legal, or a threaded barrel on your H&K Mk23 legal?

Simply put - It doesn't. It doesn't get you anything.

In the process you've wasted time, effort, and money that could have been spent actually focusing on gun-related issues.
During that wasted time, you better believe the other side is going to be doing everything they can to strengthen/reaffirm whatever restrictions they think they can through.

IMO - once McDonald comes down, if it's in favor of Incorporation - it's going to be a race to see which side can get more rulings in their favor on a wider variety of specific gun-related laws and cases. You blow your wad on this over-reaching BS, and you even if you win that battle - you may find yourself losing the bigger war.

Do you really want to go down that road?

navyinrwanda
06-24-2010, 12:20 PM
So do we go after US v. Carolene Products next, to cut down on all the BS'ing around that the anti side is going to try to do to nullify our forthcoming wins? Or is that going to be an incidental byproduct of the process? I was thinking that the Peña case might touch on that a bit, as Carolene seems to be the government's excuse for all manner of elaborate nonsense, the "well, we've got to do something" mantra. Any thoughts on this?
I assume you're more specifically referring to Footnote Four (http://legal-dictionary.thefreedictionary.com/Footnote+4) of United States v. Carolene Products Company, 304 U.S. 144 (1938) (http://www.law.cornell.edu/supct/html/historics/USSC_CR_0304_0144_ZO.html), which has been called “the most famous footnote in constitutional law (http://www.questia.com/googleScholar.qst?docId=5000314383).” Its text, minus citations, is:
There may be narrower scope for operation of the presumption of constitutionality when legislation appears on its face to be within a specific prohibition of the Constitution, such as those of the first ten amendments...

It is unnecessary to consider now whether legislation which restricts those political processes which can ordinarily be expected to bring about repeal of undesirable legislation, is to be subjected to more exacting judicial scrutiny under the general prohibitions of the Fourteenth Amendment...

Nor need we enquire ...whether prejudice against discrete and insular minorities may be a special condition, which tends seriously to curtail the operation of those political processes ordinarily to be relied upon to protect minorities, and which may call for a correspondingly more searching judicial inquiry.

Carolene Products and Footnote Four marked the beginning of so-called “modern constitutional jurisprudence” where economic liberties were to be accorded great deference by the judicial branch (see “Will, Judgment and Economic Liberty: Mr. Justice Souter and the Mistranslation of the Due Process Clause (http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1493795##),” William & Mary Law Review, Vol. 41, No. 1, 1999, for a modern criticism of this doctrine).

However, Footnote Four specifically reserved judicial review for those rights enumerated in the Constitution (so-called personal liberties). Since the Second Amendment is an enumerated personal liberty, Footnote Four — and its ensuing jurisprudence — actually supports a more activist role for the courts as a check against majoritarian impulses to curtail it.

The efforts in McDonald to secure incorporation of the Second Amendment via the Privileges or Immunities Clause were an attempt to bring some rationalization to this bifurcation of rights where certain politically-favored personal liberties have expanded and economic liberties have almost ceased to exist. Josh Blackman and Ilya Shapiro offered a roadmap for this process in “Keeping Pandora’s Box Sealed: Privileges or Immunities, The Constitution in 2020, and Properly Extending the Right to Keep and Bear Arms to the States (http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1503583),” Georgetown Journal of Law & Public Policy, Vol. 8, 2010.

An even better (and more comprehensive) approach to rehabilitating constitutional protection of all liberties is offered by Randy Barnett in his book Restoring the Lost Constitution: The Presumption of Liberty (http://www.amazon.com/Restoring-Lost-Constitution-Presumption-Liberty/dp/0691123764/).

krucam
06-24-2010, 12:49 PM
I'm hoping to see Cruikshank, Presser & Miller fall on Monday or shortly thereafter...Slaughterhouse maybe.

Next: FOPA, GCA & NFA.

It's ok to think big, right?

yellowfin
06-24-2010, 12:55 PM
I assume you're more specifically referring to Footnote Four of United States v. Carolene Products Company, 304 U.S. 144 (1938), which has been called “the most famous footnote in constitutional law.”

Well that is definitely something that I was addressing, as the narrow reservation of judicial review means most things aren't subject to review at all and instead we get an "anything goes" government, but actually I was more directing it towards:

The power to regulate commerce is the power "to prescribe the rule by which commerce is to be governed," ... The power "is complete in itself, may be exercised to its utmost extent, and acknowledges no limitations other than are prescribed by the Constitution." Hence, Congress is free to exclude from interstate commerce articles whose use in the states for which they are destined it may reasonably conceive to be injurious to the public health, morals or welfare, or which contravene the policy of the state of their destination. Such regulation is not a forbidden invasion of state power either because its motive or its consequence is to restrict the use of articles of commerce within the states of destination, and is not prohibited unless by the due process clause of the Fifth Amendment. And it is no objection to the exertion of the power to regulate interstate commerce that its exercise is attended by the same incidents which attend the exercise of the police power of the states." Combined with the Wickard ruling which says everything is interstate commerce, this means they have a compelling interest to regulate EVERYTHING and can outlaw ANYTHING.

Combine that with:
Even in the absence of such aids, the existence of facts supporting the legislative judgment is to be presumed, for regulatory legislation affecting ordinary commercial transactions is not to be pronounced unconstitutional unless, in the light of the facts made known or generally assumed, it is of such a character as to preclude the assumption that it rests upon some rational basis within the knowledge and experience of the legislators.

And you have a recipe for disaster. This applied to gun rights means that if legislators, like ones coming from L.A. making laws for all of California and ones from Manhattan making laws for all of New York, think within their own minds because of the information they have--and we know what that is--that all manner of absurd anti gun laws are necessary and proper, such laws can stand until we pick them apart one by one. Even post McDonald they can still claim that because they're not totally voiding your rights entirely, there's no problem because they want to make your rights less scary to them. They can say that what gun you have and cosmetic features, or ammo, or holsters, or anything else they can pick on isn't part of your 2nd Amendment right but merely what you can buy, which is their domain under "public safety" via consumer protection from unsafe things for sale.

Unless we fix the Carolene problem, they can continue that charade as long as they want.

stag1500
06-24-2010, 1:31 PM
I'm hoping to see Cruikshank, Presser & Miller fall on Monday or shortly thereafter...Slaughterhouse maybe.

Miller is about what arms are protected by the 2nd Amendment. That is way outside the scope of what McDonald is arguing for. Not going to happen tomorrow.

1JimMarch
06-24-2010, 2:41 PM
I dunno. The court invented this whole concept of "scrutiny levels" out of whole cloth. But now they're getting downright sloppy on what's what...we've got overlap ALL OVER THE PLACE between rational basis, intermediate and strict. We've got "strict lite" in some cases, we've got "rational heavy", we've got "intermediate weak". It's no longer really possible to guess what's going to happen even when we *know* that a particular case falls into one of the three broad categories.

Intermediate was designed for GENDER BIAS for God's sake. Now it's likely to be applied to guns? Yeah, so...we now HAVE to name our guns in the feminine? <scratches head> Seriously, the whole point of the law is that any two lawyers are supposed to be able to reasonably predict what's gonna happen in a particular case. And that's gone flying out the window with it's a...butt on fire.

It's insane. Seriously. Bonkers.

bulgron
06-24-2010, 2:46 PM
It's insane. Seriously. Bonkers.

This is what happens when emotion and ideology is used to decide law, instead of logic.

It represents a great threat to our republic.

advocatusdiaboli
06-24-2010, 8:24 PM
Challenge the Roster directly.

You mean like this: news release (http://saf.org/viewpr-new.asp?id=293), ca-roster-lawsuit (http://saf.org/default.asp?p=legalaction#ca-roster-lawsuit)

Sinixstar
06-24-2010, 9:01 PM
You mean like this: news release (http://saf.org/viewpr-new.asp?id=293), ca-roster-lawsuit (http://saf.org/default.asp?p=legalaction#ca-roster-lawsuit)

Exactly.

yellowfin
06-24-2010, 9:19 PM
This is what happens when emotion and ideology is used to decide law, instead of logic.

It represents a great threat to our republic.And lack of respect for and enforcement of the Constitution. It's when "Let's see if there's a reason and a way we can do this" has replaced "Constitution says we can't do it, sorry. We want to, but we can't, so that's that. Sorry, no, not doing it." NO doesn't mean NO when they have different levels of scrutiny; we've let this horrible legal and moral relativism monster in and have taken the easy way out because of politics. FDR was a big example: virtually none of the "New Deal" cases should have gone the way they did but they couldn't tell FDR NO when he needed to be told that and more. The SCOTUS took the cowardly way out on Miller, Wickard, Carolene, and others instead of standing up for what was right and striking all of those laws, instead using the absolute nonsense we now have as established law which we, they, and everyone knows is absolutely wrong but they did it anyway. Further courts giving deference to that junk is complicity in it. They know it's wrong too, but we've hamstrung ourselves by saying don't change anything for the better because it might change things for the worse---again, because we've made right and wrong a coin toss, not absolute values we demand.