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View Full Version : Alito and the McD orals: PorI is still alive and kickin!


1JimMarch
06-24-2010, 8:52 PM
Folks, we missed something critical.

We're now mostly sure Sam Alito is going to pen the decision. So it's worth taking another look at where Alito stands, on a lot of things.

First, PorI would likely strike hard at the Kelo decision. So where did Alito stand? He didn't - he came onto the court the following year. The justices on Kelo are:

Stevens, J., delivered the opinion of the Court, in which Kennedy, Souter, Ginsburg, and Breyer, JJ., joined. Kennedy, J., filed a concurring opinion. O’Connor, J., filed a dissenting opinion, in which Rehnquist, C. J., and Scalia and Thomas, JJ., joined. Thomas, J., filed a dissenting opinion.

http://www.law.cornell.edu/supct/html/04-108.ZS.html

Yes, this matters. Bigtime. Start with the assumption that at least some of the Kelo five have had regrets since, esp. since the Kelo property still stands vacant. If any are going to change their minds among the "Kelo 5" it'll be Ginsburg and Kennedy.

Now let's switch to the orals in McDonald - particularly Alito's role:

http://www.supremecourt.gov/oral_arguments/argument_transcripts/08-1521.pdf

Starting at the bottom of page 63:

JUSTICE KENNEDY: -- do you want me to leave the bench thinking grand jury indictment and civil trial and jury case -- that's it. There's no other -- what are these other unenumerated rights?

MR. GURA: We can't give a full description of all unenumerated rights that are going to be protected by the Fourteenth Amendment. Either --

JUSTICE SCALIA: It doesn't trouble you.

MR. GURA: No, it does not, and it shouldn't trouble the Court because the Court addresses due process cases all the time without saying we’re --

JUSTICE ALITO: Well, does it include the right to contract?

MR. GURA: The right to contract --

JUSTICE ALITO: Isn't that an unenumerated right?

MR. GURA: That is literally understood by the framers to be an unenumerated right under the privileged immunities.

We know that because in the Civil Rights Act of 1866, that's the very first right that they mentioned as something that people in the South should be enjoying, because they were not allowed to pursue a livelihood.

CHIEF JUSTICE ROBERTS: Your approach -- your original approach would give judges a lot more power and flexibility in determining what rights they think are a good idea than they have now with the constraints of the Due Process Clause.

MR. GURA: No, Your Honor; our approach might actually provide judges with perhaps no more than what they have now, perhaps even less, because our approach is rooted in text and history.

Jim again. Right to contract? That's what Alito is *pushing* for here! And that affects Kelo, it also DIRECTLY affects gay marriage, it affects a whole lot of stuff in employment.

OK. Alito had one more thing to say, much earlier. Everybody seems to have missed it:

JUSTICE STEVENS: -- about the majority of the Court, but it's interesting that during this whole period, Justice Harlan staked out a separate position on whether it should be just the substance of the right or the -- every detail. And we have followed Justice Harlan, rather than the majority in a number of cases in -- in the recent years.

MR. CLEMENT: Well --

JUSTICE STEVENS: He is very much against you, and he's a very important member of our -- of our history.

MR. CLEMENT: Justice Harlan was a terrific justice. Justice Black was a terrific justice in --

JUSTICE ALITO: Maybe we should go back --

MR. CLEMENT: -- in his total incorporation --

JUSTICE ALITO: Well, Mr. Clement, why shouldn't we go back completely to Justice Harlan's view about the way in which the Bill of Rights applies to the States?

So which "Justice Harlan" are we talking about? The grandfather in favor of total incorporation and the lone dissenter in the Civil Rights Cases (1883) and Plessy v. Ferguson (1896)? Or his grandson on the court who argued the exact opposite (seriously) between 1955 and 1971, usually in direct opposition to Justice Hugo Black?

It's the first - here's what I left out of that exchange from where it starts on page 27 line 3:

MR. CLEMENT [Chicago attorney]: Well, I think if we are going to go back, maybe we should go back to the first Justice Harlan, who actually had an -- an approach, I think, that would be much more similar to the approach --

...and then Breyer lurches upright and blathers in a panic for about a page - rat-brained stuff not even worth discussing.

Let's look at what Alito wrote one more time:

JUSTICE ALITO: Well, Mr. Clement, why shouldn't we go back completely to Justice Harlan's view about the way in which the Bill of Rights applies to the States?

And for THAT we need to look to Harlan 1's dissents in the Civil Rights Cases in which Harlan's dissent ran longer than the official ruling:

http://caselaw.lp.findlaw.com/scripts/getcase.pl?navby=CASE&court=US&vol=109&page=3

Before the adoption of the recent amendments it had become, as we have seen, the established doctrine of this court that negroes, whose ancestors had been imported and sold as slaves, could not become citizens of a state, or even of the United States, with the rights and privileges guarantied to citizens by the national constitution; further, that one might have all the rights and privileges of a citizen of a state without being a citizen in the sense in which that word was used in the national constitution, and without being entitled to the privileges and immunities of citizens of the several states. Still further, between the adoption of the thirteenth amendment and the proposal by congress of the fourteenth amendment, on June 16, 1866, the statute-books of several of the states, as we have seen, had become loaded down with enactments which, under the guise of apprentice, vagrant, and contract regulations, sought to keep the colored race in a condition, practically, of servitude. It was openly announced that whatever rights persons of that race might have as freemen, under the guaranties of the national constitution, they could not become citizens of a state, with the rights belonging to citizens, except by the consent of such state; consequently, that their civil rights, as citizens of the state, depended entirely upon state legislation. To meet this new peril to the black race, that the purposes of the nation might not be doubted or defeated, and by way of further enlargement of the power of congress, the fourteenth amendment was proposed for adoption.

The above might as well have been penned by John Bingham or for that matter Alan Gura. Note too that Harlan the First came after both the Slaughter-house and Cruikshank decisions.

Here's his dissent in Plessy v. Ferguson:

http://historymatters.gmu.edu/d/5484/

...where he strongly supported the PorI clause again:

The recent amendments of the Constitution, it was supposed, had eradicated these principles from our institutions. But it seems that we have yet, in some of the states, a dominant race—a superior class of citizens, which assumes to regulate the enjoyment of civil rights, common to all citizens, upon the basis of race. The present decision, it may well be apprehended, will not only stimulate aggressions, more or less brutal and irritating, upon the admitted rights of colored citizens, but will encourage the belief that it is possible, by means of state enactments, to defeat the beneficent purposes which the people of the United States had in view when they adopted the recent amendments of the Constitution, by one of which the blacks of this country were made citizens of the United States and of the states in which they respectively reside, and whose privileges and immunities as citizens the states are forbidden to abridge.

This is who Alito not only praises but says we need to go back to?

One more thing about Sammy - according to his Wikipedia entry:

He has been a member of the Federalist Society, a group of conservatives and libertarian lawyers and legal students interested in conservative legal theory.

Search for the word "Alito" here: http://www.washingtonpost.com/wp-dyn/content/article/2006/11/17/AR2006111702069.html

Still think PorI is dead? Let's count noses in favor:

Alito and Thomas for certain.

Look again at what Stevens said in the McDonald orals:

JUSTICE STEVENS: -- about the majority of the Court, but it's interesting that during this whole period, Justice Harlan staked out a separate position on whether it should be just the substance of the right or the -- every detail. And we have followed Justice Harlan, rather than the majority in a number of cases in -- in the recent years.

MR. CLEMENT: Well --

JUSTICE STEVENS: He is very much against you, and he's a very important member of our -- of our history.

You can't find ANYTHING from Stevens arguing against PorI, and he throws a nasty "devil's advocate" question against NRA attorney Feldman regarding the Due Process approach.

So add Stevens to Alito and Thomas.

NOW for the big question: can those three entice TWO Liberals to PorI incorporation, so as to strike a blow for gay marriage, against Kelo, etc?

Hell yeah. Two out of four will buy that. They'll snack it down like it was caviar. Not Breyer of course but Ginsburg for sure...and one new one who is going to want to try and prove herself "wise".

And that's five.

That's five WITHOUT Kennedy for God's sake.

I'm tellin' ya: Gura's done it. It's PorI fellow gunnies. HELL yeah.

mofugly13
06-24-2010, 9:02 PM
Good read, thanks. I'd love to see it go that way.

Left Coast Conservative
06-24-2010, 9:03 PM
That is a long chain of wishful thinking, but good luck. I think that the PorI case for gay marriage is especially strong, and it will be recognized at the Federal level, but on Monday I say it will be incorporation by due process.

Sinixstar
06-24-2010, 9:04 PM
Interesting... certainly, interesting...
I wouldn't put money on it just yet - but you certainly bring up some interesting points.

Interesting enough to out weigh the seeming flat out rejection of P/I incorporation? Time will tell I suppose.

G17GUY
06-24-2010, 9:06 PM
That's some good work. Great post!

Rascal
06-24-2010, 9:14 PM
Well it does look good on paper, but I'm still hesitant.
I pray that you are correct.

Lead-Thrower
06-24-2010, 9:19 PM
That was an excellent read. Definitely somewhat encouraging...

nick
06-24-2010, 9:20 PM
Question. Are we so fond of the mental masturbation that we're trying to predict the wording of something that will be released in a few days anyway? :p

Unless we're taking bets on it, of course.

1JimMarch
06-24-2010, 9:22 PM
NOTE: I screwed up and got the roles of Feldman and Clements backwards. Clements is the NRA attorney. It doesn't change my thesis though.

One more thing. Look at what Ginsburg says:

JUSTICE GINSBURG: Are you saying that the rights -- if you could clarify your conception of privileges and immunities. Am I right in thinking that to keep and bear arms would be included even if we had no Second Amendment, as you envision privileges and immunities?

MR. GURA: Justice Ginsburg, that is correct. The framers and the public understood the term --

JUSTICE GINSBURG: But -- just tell us the dimensions of what it is. I mean, we have the eight amendments, so I know you say that's included. Keep and bear arms would be included even absent the Second Amendment. What unenumerated rights would we be declaring privileges and immunities under your conception of it?

Spot it yet? She's *intrigued*. She's going "wait, more civil rights than just the 2A? Tell me more!" - and then Gura weasels around so as not to give Scalia an aneurysm or somedamnthing.

But there's a LOT of discussion of the "somethings else" in the various amicus briefs. And Ginsburg is nibbling on the hook.

She's very influential on the left side of the court, folks. She can swing at least one more.

jdberger
06-24-2010, 9:28 PM
I love reading tea leaves.

Great post, Jim. It's really a blessing having you here with us.

It's gonna be a looonng weekend.

Go Otis.

383green
06-24-2010, 9:28 PM
Question. Are we so fond of the mental masturbation that we're trying to predict the wording of something that will be released in a few days anyway? :p

Answer. Yes. :p

hoffmang
06-24-2010, 9:28 PM
Alito has written his full share of opinions or the term so it is possible he's not writing. The key issue for P or I is really whether it gets more than 1 vote. If it does then some folks will have to explain why they took time away from the argument in the first place.

-Gene

383green
06-24-2010, 9:32 PM
BTW, this thread got me so excited that I completely forgot that I was nuking some frozen pizza in the microwave. Now I'm eating some barely-above-room-temperature pizza. :willy_nilly:

1JimMarch
06-24-2010, 9:35 PM
I'll eat my hat if we don't have three. And my only hat these days is a fiberglas motorcycle helmet so that's saying something. :D If we get four, a lot of really evil eyeballs are gonna get directed at Fairfax...and if we get 5+ there'll be ridicule directed that way...

383green
06-24-2010, 9:38 PM
I may not have enough fiber in my diet, but I think I'll still stick with lukewarm pizza. :D

stag1500
06-24-2010, 9:40 PM
It sure seems like PorI would more likely be supported by the liberal justices so they can further their agenda later on down the road. I'm keeping my fingers crossed on this one.

stag1500
06-24-2010, 9:45 PM
She's very influential on the left side of the court, folks. She can swing at least one more.

You mean Sotomayer?

ScottB
06-24-2010, 9:54 PM
We can hope. But I think the sound of Justices exploring an interesting legal question that intrigues the "professorati" (per Scalia) is not necessarily an indication that they will hew to that line of reasoning in their decision. But its an interesting brief and I hope you're correct. There does seem to be some benefit to the liberals other views and maybe that could sway them to conclude that since incorporation is going to happen anyway, they may as well get something out of it for their side.

1JimMarch
06-24-2010, 9:59 PM
Sotomayor is the most likely candidate to jump to PorI with Ginsburg. But even if it's just Ginsburg, that leaves room at the table for Kennedy to make the 5th.

Look, turn it around: where do you get five for Due Process incorporation?

Answer: YOU DON'T.

Seriously. You don't have any of the anti-Heller four. What's in it for them? You don't have Thomas. Now you've got four.

The only thing left is a bizarre, tasteless split. You get Thomas and at least one or two more saying "incorporation via PorI", you get two or three (or four if Thomas does stand alone) for Due Process, and you get the original anti-Heller four bleating God-knows-what. You get no clear majority, you get no solid stance on scrutiny levels, you get basically a big pile of crap.

Anybody who thinks I'm wrong: explain to me which five votes go Due Process? Because I'm not seeing 'em, not unless Ginsburg switches sides from her Heller stance. Are you relying on THAT!? That's crazier than what I've constructed in this thread.

If I'm right, if Scalia was so stridently slamming PorI, it's because he was desperate. He could count these noses up too.

Legasat
06-24-2010, 10:01 PM
We should find out REAL soon....

keeping fingers crossed.

GuyW
06-24-2010, 10:05 PM
Interesting, but here's one prediction for Due Process....
.

Connor P Price
06-24-2010, 10:11 PM
While I don't see it going this way, that was a very well thought out and interesting read.

hoffmang
06-24-2010, 10:16 PM
This is obviously not my preferred outcome but there is a completely plausible makeup that looks like:

Roberts, Alito, Scalia for SDP incorporation.
Concurrence in result but preference for P or I from Kennedy and Thomas.
Anti-gun 4 come up with some complete BS.

-Gene

kf6tac
06-24-2010, 10:23 PM
The only thing left is a bizarre, tasteless split. You get Thomas and at least one or two more saying "incorporation via PorI", you get two or three (or four if Thomas does stand alone) for Due Process, and you get the original anti-Heller four bleating God-knows-what. You get no clear majority, you get no solid stance on scrutiny levels, you get basically a big pile of crap.

Sadly, it wouldn't be anywhere near the first time the Supreme Court spat out a big pile of crap with no clear majority on a key constitutional question.

Gray Peterson
06-24-2010, 10:24 PM
Decision's in less than 80 hour. Good thing McDonald is on my day off.....

1JimMarch
06-24-2010, 10:34 PM
Gene: you really think Roberts, Alito and Scalia would rather sabotage a seriously important gun case just to keep the obvious Slaughter-house fraud going? Really? In at least Alito's case I think you're wrong. That gives us three of the Heller Five for PorI.

And then there's two questions left: are the remaining two Heller justices really that dead set against PorI? And if they are, OK, you're saying there's no pair of the Liberals who might not jump sides for PorI?

<scratches head>

IF it comes out like you think, then the NRA will be damned in a lot of people's eyes for jumping in.

bulgron
06-24-2010, 10:43 PM
After reading this thread, I'm worried that a decision backed by the left wing of the court will result in PorI, but also find a way to provide a framework for 2A law that weakens the right to about that of wet tissue paper.

Gray Peterson
06-24-2010, 10:44 PM
After reading this thread, I'm worried that a decision backed by the left wing of the court will result in PorI, but also find a way to provide a framework for 2A law that weakens the right to about that of wet tissue paper.

Not really. See the Doe v. Reed decision on how plurality opinions work.

hoffmang
06-24-2010, 10:46 PM
5 for incorporation does not sabotage an important gun case. However, Scalia's ability to be a hypocrite should not be underestimated. Remember he just bagged on SDP this week but yet he'll probably side with it in this case.

I would love to be wrong.

-Gene

tdaughg
06-24-2010, 10:57 PM
forgive me for sounding dumb but im still not getting the due process vs. PorI thing. could somebody point me to the idiots explanation of the two so i can better understand why PorI is the preferred ruling. thank you.

p.s. sorry if im thread jacking thats not my intent. im just a little lost by all this upper division legal stuff.

1JimMarch
06-24-2010, 11:01 PM
If a five-vote block for PorI comes together with a couple of Liberals in it, the Liberals won't be able to drive it much in an anti-gun direction. Not with Thomas on board - he's hardcore on the RKBA.

Here's why I don't think a plurality split will happen. Consider: 3 for DP, 3 for PorI, 3 for no incorporation (theoretically). OK, gunnies win. Now later some gays push for PorI recognition of marriage. So now what? The PorI three have to go along with that. The Liberals who went no-incorporation in McDonald are going to suddenly become PorI die-hards and will vote with the prior PorI types, right? I mean, they have to: they're not going to get Due Process incorporation because for that, they're going to need the Due Process conservatives like Scalia who are NOT going to play ball, are they? And the PorI conservatives won't play ball with Due Process Liberals unless the Liberals jump to PorI.

In other words, the situation is EXACTLY like McDonald right now, except reversed. Instead of Liberals like Ginsburg being enticed over to get PorI, it's Conservatives like Thomas being enticed towards a pro-gay stance he's probably at least uncomfy with to get PorI.

So again: why don't the smarter Liberals just jump ship now and FORCE the issue in a PorI direction right now? Right, I understand Breyer won't, he's a nutjob, but the other two or even three? Why not?

And if they DO, then even by Gene's analysis, they can merge with enough Conservatives to pull out a five-vote PorI block.

faterikcartman
06-24-2010, 11:04 PM
Who knows? The only real originalist on the court is Thomas. Many Republican nominees have turned out to be dyed in the wool libs. Who knows how Bush's appointees will turn out to be in the long run be Republicans lack the nuts to put up someone with a clear record of originalist judicial theory. When it comes to the so called conservatives on the court other than Thomas I'll believe it when I see it. Most folks think they can count on Scalia but he defers to much to precedent which is a shame because the libs could give a crap unless it suits them. Thomas is the only one -- that I'm sure of so far -- who will focus on the Constitution.

Gray Peterson
06-24-2010, 11:12 PM
If a five-vote block for PorI comes together with a couple of Liberals in it, the Liberals won't be able to drive it much in an anti-gun direction. Not with Thomas on board - he's hardcore on the RKBA.

Here's why I don't think a plurality split will happen. Consider: 3 for DP, 3 for PorI, 3 for no incorporation (theoretically). OK, gunnies win. Now later some gays push for PorI recognition of marriage. So now what? The PorI three have to go along with that. The Liberals who went no-incorporation in McDonald are going to suddenly become PorI die-hards and will vote with the prior PorI types, right? I mean, they have to: they're not going to get Due Process incorporation because for that, they're going to need the Due Process conservatives like Scalia who are NOT going to play ball, are they? And the PorI conservatives won't play ball with Due Process Liberals unless the Liberals jump to PorI.

In other words, the situation is EXACTLY like McDonald right now, except reversed. Instead of Liberals like Ginsburg being enticed over to get PorI, it's Conservatives like Thomas being enticed towards a pro-gay stance he's probably at least uncomfy with to get PorI.

So again: why don't the smarter Liberals just jump ship now and FORCE the issue in a PorI direction right now? Right, I understand Breyer won't, he's a nutjob, but the other two or even three? Why not?

And if they DO, then even by Gene's analysis, they can merge with enough Conservatives to pull out a five-vote PorI block.

Except there's just one issue, as you keep bringing up marriage equality issues here:

Ted Olson is already litigating the issue purely on equal protection grounds. Though P&I could be a method to deal with the issue, I do not believe it would be the primary method of getting that issue out of the political branch's hands. There ARE other issues rather than just "gay marriage" that they're worried about.

We'll know the truth on Monday. To me it seems like nearly pointless speculation.

1JimMarch
06-24-2010, 11:30 PM
tdaughg:

If you REALLY want to understand this to the degree Gene, Gray and I do, go crack open a book. I'd start (and finish really) with Yale law professor Akhil Reed Amar's 1998 book "The Bill Of Rights" - it's not written for lawyers.

The short form is this..."incorporation of the 2nd Amendment" means it's going to get "applied to" (read: "forced down the throats of") the states. Right now Cali doesn't have to honor the 2nd Amendment - they think they can screw us on guns to whatever degree they want.

The question is, HOW is that "incorporation" going to happen?

Here's the opening paragraph of the 14th Amendment:

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.

That was written between 1865 and 1868 (passed in 1868) by Ohio Republican John Bingham, the leader of America's FIRST civil rights movement after the Civil War.

That movement failed when in a series of really crappy cases, the US Supreme Court destroyed that whole paragraph. I mean they literally ruled that both of those clauses in bold meant basically nothing at all. The cases were Slaughter-House Cases, US v. Cruikshank, Civil Rights Cases, Williams v. Mississippi, Plessy v. Ferguson and more, all from between 1872 and 1900.

In the 20th century they realized they'd screwed up. One or both of those 14th Amendment bits in bold were supposed to make the Bill Of Rights (and then some) apply to the states. The piece that was supposed to do it was the PorI clause (the first bold bit).

We know that because John Bingham said so. He said very clearly that he was trying to use a constitutional amendment to overturn the US Supreme Court in the infamous Dred Scott case of 1856. That case was a moral travesty: it said that blacks in the US had never had any normal civil rights, and that the US had always been a racist nation prior (sadly true) and that therefore racist laws were OK.

Sigh.

So...crap, I'm going to have to quote that key part of Dred Scott *listing* the "privileges and immunities of US citizenship" that blacks allegedly didn't have:

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]

So. The US Supremes didn't like how the 14th Amendment took the language of Dred Scott and twisted it back on itself. So they pretended it didn't exist, and that they didn't know what the "privileges and immunities" clause of the 14th meant, and peed all over the rest.

In the 20th Century the Supremes realized they'd screwed up. So one at a time as civil rights cases came up where states were violating one part or another of the Bill Of Rights, they held each piece to be "incorporated" against the states (meaning the states have to honor that piece of the BoR) "selectively" via the "Due Process" clause.

At present there's a few pieces of the BoR still not "selectively incorporated" against the states:

* Your right to a jury in civil cases.

* Your right to grand jury indictment for major crimes - California seldom uses grand juries, which has left them weak, which means they're not the strong barrier to state and local government fraud and corruption that they should be.

* Your third amendment right not to have troops forced into your spare bedroom in peacetime.

* The 2nd Amendment.

Complicating things, the "privileges and immunities of US citizenship" from the 14th was supposed to cover the whole Bill Of Rights AND THEN SOME - for example, the "right to travel without pass or passport" from the Dred Scott decision. Other "PorI cool stuff" mentioned between 1865 and 1870 was a right to enter into contracts, a right to property and more.

So: at McDonald we have the NRA arguing that the same old crappy Due Process fraud should be used to apply the 2nd Amendment to the states. And we have Alan Gura arguing that yeah, while that'll work, everybody knows Due Process incorporation is a fraud, the Slaughter-House cases were a fraud, and that the states should have been forced to obey the WHOLE BoR starting in 1868 which would have saved us thousands of lynchings and untold numbers of other civil rights violations and oh by the way, protects all kinds of other civil rights such as a right to same-sex marriage, a right to own and keep property and not have it ripped off by corrupt local governments (see also the Kelo case), a right not to have traffic tickets moved into civil court where the rules of evidence are less and there's no right to a jury trial and a bunch more stuff.

The broader-based rights that Gura is pushing for covers a lot of stuff - some of which scares the piss out of Scalia and Roberts for sure but probably has at least Ginsburg and maybe other Liberals at least intrigued.

One more detail and I'm done.

The US Supremes had three different cases come before them that argued the states need to honor the 2nd Amendment. Two of them argued straight due process. The one they TOOK argued PorI and a broad swath of civil rights reforms, but also said that Due Process incorporation would do in a pinch. The NRA, on behalf of their Christian Conservative GOP "leaders", desperately argued otherwise.

And THAT is how a gun case ended up being the most important gay rights case since Lawrence.

(PS: remember the book by Amar I mentioned? Amar is a gun-hating Liberal. When he realized what John Bingham and his supporters said and did between 1865 and 1868, he clearly hated it. And as you read that book, you'll realize he hated what he was writing. But to his credit, he wrote it anyways. I thanked him on that personally the one time I got to meet him. It's Amar's work more than any other that's given PorI the chance Monday.)

Alaric
06-24-2010, 11:52 PM
PorI will be a beautiful and magical talisman to pin in the liberal cap. Even more so for the libertarians.

The smart money is on PorI here. The justices wouldn't have waited till the very end of the term if it was anything but. They're going to publish their opinion and run for the hills before the poop really hits the fan.

What will really be interesting to see is how the religious right responds to PorI. They are the ones arguably most threatened by it's implications. Gay marriage. No more sodomy laws. Legalization of marijuana. A stronger basis for abortion rights. These are just the future PorI rulings that come to mind immediately. What PorI really means is a literal affirmation of the constitution bereft of the shoehorned interpretation the religious right has been foisting on it for so many years.

The worst case scenario is that the recent gains made by the tea party types might crumble when the right wing moralists split out of disagreement with their libertarian allies. A PorI decision celebrated by one faction and denigrated by the other might be enough to give the Democrats back their advantage.

1JimMarch
06-24-2010, 11:56 PM
Well maybe. But look at it another way: gun owners and L/libertarians come out smelling like roses across a HUGE political swath of the American center through left.

bulgron
06-25-2010, 12:08 AM
What will really be interesting to see is how the religious right responds to PorI. They are the ones arguably most threatened by it's implications. Gay marriage. No more sodomy laws. Legalization of marijuana. A stronger basis for abortion rights. These are just the future PorI rulings that come to mind immediately. What PorI really means is a literal affirmation of the constitution bereft of the shoehorned interpretation the religious right has been foisting on it for so many years.

This is off topic, but how does PorI get you to legalization of marijuana? The feds still have interstate commerce, and as long as the feds are on their anti-drug kick they're going to continue to criminalize pot.

The whole pot issue has more to do with the feds than it really has to do with individual states.

The rest of the things you mention I can see flowing from PorI, because those are things that I see the states trying to restrict.

1JimMarch
06-25-2010, 12:15 AM
Yeah, I gotta say I'm puzzled by the pot thing. Mind you, I agree it needs to be legalized...

Mstrty
06-25-2010, 12:15 AM
Jim, I enjoyed the read. Thanks for taking the time to cliff note.

thayne
06-25-2010, 12:20 AM
Wow! I hope you're right :D

thayne
06-25-2010, 12:26 AM
PorI will be a beautiful and magical talisman to pin in the liberal cap. Even more so for the libertarians.

The smart money is on PorI here. The justices wouldn't have waited till the very end of the term if it was anything but. They're going to publish their opinion and run for the hills before the poop really hits the fan.

What will really be interesting to see is how the religious right responds to PorI. They are the ones arguably most threatened by it's implications. Gay marriage. No more sodomy laws. Legalization of marijuana. A stronger basis for abortion rights. These are just the future PorI rulings that come to mind immediately. What PorI really means is a literal affirmation of the constitution bereft of the shoehorned interpretation the religious right has been foisting on it for so many years.

The worst case scenario is that the recent gains made by the tea party types might crumble when the right wing moralists split out of disagreement with their libertarian allies. A PorI decision celebrated by one faction and denigrated by the other might be enough to give the Democrats back their advantage.

So there's a chance that we might actually get gun rights and freedom too? Like real, actual freedom? How awesome would that be?

Alaric
06-25-2010, 12:26 AM
This is off topic, but how does PorI get you to legalization of marijuana? The feds still have interstate commerce, and as long as the feds are on their anti-drug kick they're going to continue to criminalize pot.

The whole pot issue has more to do with the feds than it really has to do with individual states.

The rest of the things you mention I can see flowing from PorI, because those are things that I see the states trying to restrict.

What's the legal basis (in federal law) for restricting marijuana? Classifying it as a schedule 1 drug (http://www.justice.gov/dea/pubs/scheduling.html), which the science no longer supports? It's no longer accepted by mainstream researchers as an addictive substance or by the majority of voters and doctors in many states as being without medicinal value. So schedule 1 is inevitably arbitrary and open to being vacated by the courts. Interstate commerce is out too, as that was the basis for the original Stamp Act (http://en.wikipedia.org/wiki/Marihuana_Tax_Act_of_1937), which was ruled unconstitutional in Leary v. U.S (http://en.wikipedia.org/wiki/Leary_v._United_States). It's just a matter of time.

So, that leaves state regulation as the most viable regulatory hurdle to legalization. Hence, that's why the California legalization initiative is so groundbreaking. Should our state initiative be passed but undermined by subsequent passage of undue state or local laws (zoning, health and enviro regs come to mind) PorI might become a means to an end. Since the feds can't outlaw it, it becomes an unenumerated right, or (dare i say) a privilege or immunity. Local and state regs could thus become subject to strict scrutiny as it pertains to marijuana.

Chess, not checkers.

jl123
06-25-2010, 12:29 AM
So there's a chance that we might actually get gun rights and freedom too? Like real, actual freedom? How awesome would that be?

I think I would literally cry.

thayne
06-25-2010, 12:31 AM
I think I would literally cry.

You and me both! I've been excited about this case for a while, but this thread has taken it to a whole next level! I think im going to call in sick monday LOL

Gray Peterson
06-25-2010, 12:34 AM
You and me both! I've been excited about this case for a while, but this thread has taken it to a whole next level! I think im going to call in sick monday LOL

Luckily for me Monday is one of my days off......

and I'm sig line material now?!!! :eek::eek::eek:

383green
06-25-2010, 12:35 AM
[...]
The short form is this..."incorporation of the 2nd Amendment" means it's going to get "applied to" (read: "forced down the throats of") the states. Right now Cali doesn't have to honor the 2nd Amendment - they think they can screw us on guns to whatever degree they want.

The question is, HOW is that "incorporation" going to happen?
[...]



Jim, that was a great primer on this complex topic. I'm going to save a link to your post for future reference. Thanks!

jl123
06-25-2010, 12:37 AM
I won't be working Monday at all.....I may have to do some morning drinking in fact......which I generally reserve for when the Giants/Niners are in the playoffs......so not often recently.

I'll be sitting refreshing constantly.

thayne
06-25-2010, 12:37 AM
Luckily for me Monday is one of my days off......

and I'm sig line material now?!!! :eek::eek::eek:

Yep! That quote is awesome! :D

Alaric
06-25-2010, 12:42 AM
I won't be working Monday at all.....I may have to do some morning drinking in fact......which I generally reserve for when the Giants/Niners are in the playoffs......so not often recently.

I'll be sitting refreshing constantly.

I doubt many of us will be sleeping sunday night either. In fact, I think I'm just going to start drinking then. If we win, then I already have a good buzz started for the celebrations. If we lose then I'm properly stoked with courage to move on to the next stage, for the courts have permanently and irrevocably failed us. Trees and watering and whatnot, if you follow. :cool2:

jl123
06-25-2010, 12:43 AM
I doubt many of us will be sleeping sunday night either. In fact, I think I'm just going to start drinking then. If we win, then I already have a good buzz started for the celebrations. If we lose then I'm properly stoked with courage to move on to the next stage, for the courts have permanently and irrevocably failed us. Trees and watering and whatnot, if you follow. :cool2:

Loud and clear :43:

1JimMarch
06-25-2010, 1:13 AM
Jim, that was a great primer on this complex topic. I'm going to save a link to your post for future reference. Thanks!

Thanks. I kept adding more and more bits.

I'll add one more tidbit here:

The first of the "14th Amendment detonation cases" was Slaughter-house, technically an 1872 case, final decision in 1873. It was bad, but it wasn't as stone-cold-evil as the next one to come along: US v. Cruikshank, 1875 case, final decision in 1876.

That one said that no matter how severely state-level actors (including local cops) violate people's 1A, 2A and 15A (voting) rights, the Feds can't do a damn thing about it.

This was the case that ended Federal protection of civil rights, for generations. It's the case that launched over 4,000 lynchings and countless other civil rights violations.

Here's the results, if you can stand to look:

http://www.withoutsanctuary.org

Cruikshank was about a situation in 1873 where blacks tried out their new 15th Amendment voting rights in Colfax Louisiana. Local cops and proto-Klan rounded up their guns (2A rights), drove them away from the peaceful assembly at the courthouse (1A rights) where they were trying to vote (15A). They then launched three days of arson, riot and murder, even burning down the "contaminated" courthouse. There were over 100 dead, all but three were black. Federal troops moved in, arrested 60 of the worst rioters, charged them with Federal civil rights violations.

The Supremes said that only states could protect civil rights, and that these various violations couldn't be prosecuted by the Feds. All 60 rioters and murderers were released.

In the 2008 Heller case there are two strong condemnations of Cruikshank. In a footnote they admitted that Cruikshank was also about 1A and 15A violations that would no longer be allowed. But then towards the end they praised the book "The Day Freedom Died" by Charles Lane, new in 2008, in which "the day" was the day the final Cruikshank decision came down and the events of the Colfax Massacre and it's legal/social aftermath were explored.

DESPITE that warning, in 2009 Alameda County's lawyers cited Cruikshank for the proposition that California can violate gun rights (Nordyke brief).

Cruikshank is toast. The question is, will the court also go after the earlier Slaughter-house case that Cruikshank is based on? If they do, we're going to get PorI incorporation.

Well...one more touch. Remember that horrible Silveira decision in the 9th Circuit a few years back, when Gorski got screwed? That was a weird one. It tried to overturn two prior 9th Circuit anti-gun cases, Fresno Rifle v. Van De Camp and Hickman v. Block. Why did Judge Reinhardt try that? Heh. Because Fresno Rifle and Hickman both rely on, and cite to, Cruikshank. Reinhardt is a gun-grabbin' fool, but he's also smart enough to realize that Cruikshank's days are numbered because it's the single most evil, despicable and racist case in US Supreme Court history. He was right to worry: the US Supremes themselves agreed when they cited to Charles Lane's book on how evil Cruikshank is.

Problem for Reinhardt was, the "new foundation for gun control" he tried to built was mostly founded on Michael Bellesile's total horsecrap in "Arming America". Two weeks after the Silveira decision came out it was hastily amended to pull out the Bellesiles references - because Bellesiles was finally revealed as a fraud and tossed out of Emory U. If you look up the Silveira case in official sources you'll find the amended version; I kept a copy of the original complete with Bell-liar references:

http://www.ninehundred.com/~equalccw/Silveira.pdf

Yanking the Bell-liar references in the official copy doesn't really help because a lot of other sources in Silveira are to other law review journal articles that came out of a "Bell-liar fan club" symposium and those are all still in the official copy.

But wait, it gets weirder yet: in one of the endless losses of the Nordykes before the 9th Circus, yet another three-judge panel ripped Reinhardt a new one and basically went "WTF are you doing trying to overturn Fresno Rifle and Hickman, you can't do that you jacka#@, one three judge panel can't overturn another" which was true, but they didn't realize the point was to sidestep the waiting catastrophy that was Cruikshank, a fear fully realized in Heller.

Here's that Nordyke case:

http://www.ninehundred.com/~equalccw/nordyke.pdf

Yeah, final punchline? The other source for Reinhardt's attempted "re-founding" of all state-level gun control nationally? Some crap his wife came up with - Ramona Ripston, SoCal ACLU chapter director.

Oh what fun we've had. Sigh.

Anyways. If the McDonald decision puts a final wooden stake in the heart of Cruikshank, and FAILS to do so for Slaughter-house, well that's gonna be a neat trick. One is tied to the other. Slaughter-house isn't AS evil, instead of condoning murder, arson and mass rape it "only" allowed local financial corruption. They both suck. They need to both go away as valid case law.

N6ATF
06-25-2010, 1:20 AM
I'm going to mentally masturbate* now. The odds are 9 to 1. Place your bets.

nobody_special
06-25-2010, 1:21 AM
So there's a chance that we might actually get gun rights and freedom too? Like real, actual freedom? How awesome would that be?

No, there's no chance of that, absent another revolution (which would be extremely unlikely to result in freedom, but that's another topic). The government is not about to give up that kind of power. It's just too big. Legislators need the power to pass more laws in order to get elected... regardless of if those laws are necessary, and regardless of the metric tonnage of existing laws.


What's the legal basis (in federal law) for restricting marijuana? Classifying it as a schedule 1 drug, which the science no longer supports? It's no longer accepted by mainstream researchers as an addictive substance or by the majority of voters and doctors in many states as being without medicinal value. So schedule 1 is inevitably arbitrary and open to being vacated by the courts. Interstate commerce is out too, as that was the basis for the original Stamp Act, which was ruled unconstitutional in Leary v. U.S. It's just a matter of time.

Leary hinged on a 5th Amendment (self-incrimination) claim, I haven't read the opinion but based on a summary it doesn't appear to offer any leverage against ICC abuse. As for marijuana's schedule 1 status being arbitrary, that's also irrelevant. Regulating how much wheat a farmer can grow, as in Wickard, is not only arbitrary but severely intrusive upon property and privacy rights. It doesn't get much more basic than food production; that is a component of the fundamental right to life, after all.

PorI doesn't change any of this. Section 1 clause 2 of the 14th amendment reads "No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States..." I don't see how PorI incorporation changes federal regulation.

CaliforniaLiberal
06-25-2010, 1:53 AM
Wow! I hope you're right :D

:iagree::iagree::iagree:

I love what you write Jim but I'm afraid they are just beautiful dreams. Still, sometimes you've just got to give in to hope.

Run, Jim, run. Run free across the lonely desert. May your hooves never bleed!

You're inspirational and give comfort to many in this time of long anxious waiting.

If you're right, I'll buy you a beer.

1JimMarch
06-25-2010, 2:03 AM
Meh. I don't drink. :D

press1280
06-25-2010, 2:50 AM
I didn't catch Alito on the P or I discussion-good catch Jim.
Could they incorporate under BOTH DP and P or I?
Scalia, Roberts, Alito, Thomas, Kennedy for DP
Soto,Stevens,Ginsburg,Kennedy,Thomas, Alito for P or I

I saw Kennedy quite engaged in P or I discussion as well as the quote that (paraphrase)-If the 2A is not fundamental, then Heller was wrong.

Breyer is out because he seems obsessed with his statistical approach.

1JimMarch
06-25-2010, 3:27 AM
Yeah, see these guys talk their own language.

When I heard Alito was the most likely author, I went back over everything he said in orals. And I caught the Harlan reference. I missed it's significance entirely right after the orals. Turns out that for his era, Harlan 1 was the top 14th Amendment champion. Once you know that...wow, the orals take on a whole new meaning. That's when I started to get giddy.

As to TWO blocks of five votes each...no way. I don't think. In your model Alito and Thomas both go both ways. Nope, I don't buy that.

Has anybody else read Thomas' dissent in Saenz, 1999?

Yeah, there's a good one.

OK, setting the stage, remember when I said they totally destroyed the PorI clause in the 14th?

Well...not quite. They left one teensy bit intact. It happened in 1870 in fact, the very first 14A case, Ward v. Maryland. That was about a merchant from New Jersey who sold stuff in Maryland and didn't pay the extra tax that out-of-state merchants had to pay. The Ward court got it right: one thing the PorI clause does is block that sort of interstate discrimination. So for example, you don't drive down a California freeway and see speed limit signs that say "Cali Plates: 75 / All Others: 65". And the part of the Cali CCW system that bars out-of-state people from any chance at CCW is also going to collapse on this.

Well the Ward court got it right, but then two years later under Slaughter-house decided that this barrier to cross-border discrimination was ALL that the PorI clause was good for. And it's been that way ever since when in fact, the PorI should have been a broad barrier to state-level civil rights violations.

So flash forward to 1999 and Saenz. Cali decided that if you move in from out-of-state, your welfare payments would be radically less than somebody who's been here longer - and the PorI logic of Ward was re-stated on the same grounds...violation of the right to free travel, yadda yadda.

Except Thomas went "yeah, that's cool and all but the PorI has so much MORE going on!". Or in his own words:

The Privileges or Immunities Clause of the Fourteenth Amendment provides that “[n]o State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States.” U.S. Const., Amdt. 14, §1. Unlike the Equal Protection and Due Process Clauses, which have assumed near-talismanic status in modern constitutional law, the Court all but read the Privileges or Immunities Clause out of the Constitution in the Slaughter-House Cases, 16 Wall. 36 (1873). There, the Court held that the State of Louisiana had not abridged the Privileges or Immunities Clause by granting a partial monopoly of the slaughtering business to one company. Id., at 59—63, 66. The Court reasoned that the Privileges or Immunities Clause was not intended “as a protection to the citizen of a State against the legislative power of his own State.” Id., at 74. Rather the “privileges or immunities of citizens” guaranteed by the Fourteenth Amendment were limited to those “belonging to a citizen of the United States as such.” Id., at 75. The Court declined to specify the privileges or immunities that fell into this latter category, but it made clear that few did. See id., at 76 (stating that “nearly every civil right for the establishment and protection of which organized government is instituted,” including “those rights which are fundamental,” are not protected by the Clause).

Unlike the majority, I would look to history to ascertain the original meaning of the Clause.

I highly recommend reading the whole dissent and notes, as it's part of the prelude to the PorI arguments in McDonald:

http://www.law.cornell.edu/supct/html/98-97.ZD1.html

This dissent marks Thomas as the strongest known supporter of a full PorI clause. He's actually in the company of some well respected justices from the past on this, including Hugo Black, considered by many to be the strongest civil rights justice we've ever had and Harlan the First, sole dissenter in some really nasty cases as noted in my first post.

So. No way is Thomas going to bend, not now, not on this. This is his laughter-house fraud across generations.big moment. Even if PorI loses he joins a pantheon of giants who've spoken out against the S

I think he's got Alito with him just as strong...Alito has libertarian-leaning roots.

That's two. That's enough enticement for Ginsburg to lead a Liberal pack over...

jaq
06-25-2010, 4:24 AM
Jim, thank you for an outstanding exegesis on this matter. I am not normally inclined to delve into the minutiae of constitutional law, but your exuberant presentations are contagious.

Thanks again :D

OleCuss
06-25-2010, 5:01 AM
Jim:

Excellent posts and great reads!

I think, however, that you may be reading just a little too much into what the Supremes have said and alluded to.

I'm not saying it couldn't happen (good logic) but I think the assumptions regarding SCOTUS leanings are not quite that solid.

I rather hope you're right, though.

In light of what you have put into the thread so far, is there another possible explanation for why the NRA got their SDP time? Is it possible that in an odd sense the court was trying to give Gura a chance to shine on PorI and sideline the SDP argument by having Clement argue it? Personally, I don't think so, but if that level of PorI support really exists I'd have to at least wonder.

Kharn
06-25-2010, 5:17 AM
Jim, I pray you're right

1JimMarch
06-25-2010, 5:27 AM
jaq:

I admit it. In public. I had to google "exegesis".

:)

OleCuss:

There's a bunch of ways to read the fact that the NRA got their DP time.

One thing to remember is, the Supremes have separate private conferences regarding which cases to hear. They all have equal votes. For a case to get heard, it needs four votes. Most don't get it. The two other gun cases arguing straight DP didn't get in. The one arguing strong PorI with DP as a backup did.

There's been a ton of scholarship lately that says the US Supreme Court's actions on 14A law between 1872 and 1900 were just junk. Scams at best, horrific racism and a toleration for mass murder at worst.

One of the cases of that era I mentioned was Williams v. Mississippi. Yeah, there's a winner. Every black in the state, stripped of the vote via a discretionary-issued permit program. And that was just fine because it didn't name blacks as targets by statute AND, in a paragon of racial equality for it's time, stripped half a dozen whites of the vote too. Plus a couple hundred thousand blacks. And they talk about it RIGHT in the case, and say it's OK...and that it's OK as a result for all-white juries to find a black guy guilty like the one that was hung by the neck until dead right after that decision. I'm real serious here - go read it: http://laws.findlaw.com/us/170/213.html

So. The word is getting out about how crappy these decisions were. Charles Lane wrote that whole book on Cruikshank fr'instance...and the legal scholarship is all going the same way, even among Liberals. The previous "thinking" that John Bingham and company didn't know WTF they were doing is all falling apart.

And in light of ALL THAT, the Supremes pick the one gun case out of three to hear that does PorI. And it's not a secret vote - they all know right now who voted to hear what cases. (Nobody else does, it's a secret process.)

So...yeah, they all KNOW who's a PorI supporter. They knew it before orals.

If they knew there was PorI support, it follows that they realized they were about to do something radical and flip 125+ years worth of case law on it's butt. If they were going to do THAT, they'd want to at least make it look like a fair fight.

Enter the NRA...

OleCuss
06-25-2010, 5:32 AM
You're getting my hopes up!

Oh, and I truly do mean it when I say excellent posts. They're pretty well constructed, good content and make sense to this non-lawyer. You've really made this thread a pleasure to read and informative to boot.

kcbrown
06-25-2010, 6:05 AM
A PorI victory the way Jim's predicting would be more awesome than words can describe.

And that's why I don't think it's going to happen. Not because I know anything special about law, or because I have ESP right into the brains of the Supreme Court justices, or anything of that sort.

But, simply, because things which are that awesome simply don't happen in the modern world... :(

Purple K
06-25-2010, 6:13 AM
72 hours to go

Havoc70
06-25-2010, 6:17 AM
I doubt many of us will be sleeping sunday night either. In fact, I think I'm just going to start drinking then. If we win, then I already have a good buzz started for the celebrations. If we lose then I'm properly stoked with courage to move on to the next stage, for the courts have permanently and irrevocably failed us. Trees and watering and whatnot, if you follow. :cool2:

5x5

Mulay El Raisuli
06-25-2010, 6:26 AM
And in light of ALL THAT, the Supremes pick the one gun case out of three to hear that does PorI. And it's not a secret vote - they all know right now who voted to hear what cases. (Nobody else does, it's a secret process.)

So...yeah, they all KNOW who's a PorI supporter. They knew it before orals.

If they knew there was PorI support, it follows that they realized they were about to do something radical and flip 125+ years worth of case law on it's butt. If they were going to do THAT, they'd want to at least make it look like a fair fight.

Enter the NRA...


THIS is the part that makes me think you really do know what you're talking about & gives me hope.


The Raisuli

1JimMarch
06-25-2010, 6:27 AM
Show me where five DP votes are. DP can't attract Liberals. PorI can.

Folks, ask any hardcore Liberal judge or lawyer who their true hero on the bench was. You'll get more votes for Hugo Black than almost any other. Now go read his famous dissent in Adamson. Or read this...look at the 2007 date when you do:

http://stubbornfacts.us/law/hugo_black_incorporation_and_some_various_notes_in _response_to_prof_amar

Gura knew this...he knew PorI would have right/left appeal. Us Libertarians are USED to that. Gods TEETH you wouldn't believe some of the lefties I end up hanging out with. He knew Scalia would freak out. But he also knew Ginsburg wouldn't. Gura planned this out in detail...counting PorI noses freakin' YEARS ago, plotting for this coming Monday.

Damn. Respect.

Again: find five noses for DP. They're not there. Find five for PorI. Holy crap...

They're there dammit. As Dog is my dyslexic witness...they're there.

Cnynrat
06-25-2010, 6:28 AM
Very interesting reading - thanks for taking the time to educate the rest of us.

A question from the legally challenged (me): I completely understand the implications of incorporation via PorI with respect to our rights beyond RKBA issues. What I'm not sure I understand is whether the rationale for incorporation (due process or PorI) will have any affect specifically on how 2A issues will play out in the future. What are the thoughts about that? Obviously it's a good outcome for the 2A either way, but is one better than the other?

1JimMarch
06-25-2010, 6:37 AM
Cnynrat: well that's a damned good question.

In the "short" term? Say, 10 to 15 years? I don't think it'll matter much.

But in the longer term? In terms of steering the country in a more Libertarian direction? It could make a LOT of difference.

Here, lemme show you something...16 minutes of video:

http://www.youtube.com/watch?v=h3bzypjTIWg

Totally worth your time.

What you're seeing here is strong evidence of a quietly Fascist streak running through our nation. Yeah, I said and I meant it. When you have the full power of the Federal gov't protecting BP's profits, when you have state and local armed cops plus the Coasties backing up BP's "right" to keep the full horror secret by threating anybody with a camera AT GUNPOINT if they get anywhere near the goop...then we've got a problem.

When we've got Goldman Sachs infiltrating gov't in an organized fashion and re-writing banking regulations to support the systematic looting of the country, we've got a Goddamn problem.

And guns aren't the primary solution to those problems. Maybe once they get bad enough...but trust me, nobody sane wants to go there. I sure as hell don't. So how to avoid going down that road?

Well the PorI will help - a lot. It's not the only solution needed either, but it's a step in the right direction and this country has NEVER ever needed one as bad as we do now.

So yeah. Long term, if we're going to keep a Republic that supports gun rights, we're going to need the full, unfettered genius of John Bingham and his 14th Amendment.

bruss01
06-25-2010, 6:45 AM
Great stuff Jim. Fascinating reading, and I hope you are right!:)

taperxz
06-25-2010, 6:47 AM
I wonder if we are thinking to much out of the box here. Scalia, from day one was worried about using the 14th for the 2nd. To him this was a opening a huge can of worms.

My take is that they will keep it all narrowed down to gun rights only. The fight here has been incorporation of another amendment. Gay marriage, pot, and other questionable ideas are not spelled out in the bill of rights.

Liberal justices may try to use the 14th in other avenues but arguments can be made that incorporation of the 2A was only used to clarify the 2A and who it affects. JMO

1JimMarch
06-25-2010, 6:49 AM
But that's not how the historical research is going on the 14th. Crack open Amar's book mentioned earlier.

kcbrown
06-25-2010, 6:49 AM
What you're seeing here is strong evidence of a quietly Fascist streak running through our nation. Yeah, I said and I meant it. When you have the full power of the Federal gov't protecting BP's profits, when you have state and local armed cops plus the Coasties backing up BP's "right" to keep the full horror secret by threating anybody with a camera AT GUNPOINT if they get anywhere near the goop...then we've got a problem.

When we've got Goldman Sachs infiltrating gov't in an organized fashion and re-writing banking regulations to support the systematic looting of the country, we've got a Goddamn problem.

And guns aren't the primary solution to those problems. Maybe once they get bad enough...but trust me, nobody sane wants to go there. I sure as hell don't. So how to avoid going down that road?

Well the PorI will help - a lot. It's not the only solution needed either, but it's a step in the right direction and this country has NEVER ever needed one as bad as we do now.

So yeah. Long term, if we're going to keep a Republic that supports gun rights, we're going to need the full, unfettered genius of John Bingham and his 14th Amendment.

Forgive me for asking (and not knowing the answer to) the obvious, but: how in the world does PorI help us in any way against federal corruption, except perhaps to the degree that it prevents the states from acting as part of the enforcement arm of that corruption (admittedly that is a noteworthy exception...)?

OleCuss
06-25-2010, 7:00 AM
.
.
.
.
What you're seeing here is strong evidence of a quietly Fascist streak running through our nation. Yeah, I said and I meant it.
.
.
.

Have to take you to task just a tiny bit on this one. Using "fascist" would be totally appropriate but "Fascist" should most properly be applied to the Fascists of Italy.

But you're nailing it otherwise.

What people really don't realize is how deep the Democrat's association with fascism really is. It's really interesting to read about what happened under Woodrow Wilson.

taperxz
06-25-2010, 7:07 AM
But that's not how the historical research is going on the 14th. Crack open Amar's book mentioned earlier.

I understand but, even though certain arguments were made, The justices opinions may very well be written to broaden or narrow future cases.

The one thing that catches my eye is Ginsburg and intrigue she saw in arguments and Scalia who probably doesn't want her to see those ideas.

It's my belief that the justices play games with each other just like everywhere else. I look forward to reading the opinions to see who is where and what the motives may be.

Kharn
06-25-2010, 7:12 AM
This may be a bad place to ask, but does PorI exactly mean/do?Jim explained it at least once in this thread...

yellowfin
06-25-2010, 7:14 AM
Forgive me for asking (and not knowing the answer to) the obvious, but: how in the world does PorI help us in any way against federal corruption, except perhaps to the degree that it prevents the states from acting as part of the enforcement arm of that corruption (admittedly that is a noteworthy exception...)?
The theory is it prevents it from sprouting at the state level and from there being passed up the line. It seems that, for instance, the anti gun tendencies nationally by reps and senators starts at home. At very least they can't get elected/reelected in their state on that issue if they get it wrong according to their voters, one way or the other.

1JimMarch
06-25-2010, 7:16 AM
Forgive me for asking (and not knowing the answer to) the obvious, but: how in the world does PorI help us in any way against federal corruption, except perhaps to the degree that it prevents the states from acting as part of the enforcement arm of that corruption (admittedly that is a noteworthy exception...)?

Well part of it is just "general trend" stuff. But I know of ONE really key thing.

Federal legicritters, Prez and the like are elected by state and local processes. And those processes are just totally FUBAR. Y'all have no idea. Screw it...this is getting released later today but here's an early peek - this is how bad election processes can get. See attached and turn white as a sheet.

How did the election systems get this bad? In large part because "we the people" can't sue over it. We don't have "standing" per the courts. We have no basic civil right to a fair election. I swear to Dog, this is what courts have ruled across the country. Only candidates can sue. And in the case of Conroe TX, the guy with standing (Leo Hewett who ran for city council) couldn't get the cash together for a court challenge. And nobody else was allowed to challenge.

One definite "PorI" is the right to a fair, honest election.

You think THAT won't have an effect on Federal corruption?

:chris:

This may be a bad place to ask, but does PorI exactly mean/do?

Oh it's a GREAT place to ask.

We just don't have a complete answer.

We've got partial answers though. One source is the listing of rights in Dred Scott, which is mostly the BoR plus that "right to travel without pass or passport" thing. We have statements by John Bingham that at a minimum the first eight amendments are involved. We have the various civil rights laws that were passed around the same time as the 14th or just before, that the 14th was meant to protect - a "right to contract" was part of it, which also means marriage (which is a type of contract). Property rights are also covered from that source.

Amar talks about it a lot. One possible translation is "the traditional rights of free Englishmen" believe it or not.

One thing we know for sure: a LOT of personal civil rights are protected that have basically never been protected before.

Oh yeah. One more thing. If we're going to switch from DP to PorI protection, or at least add the latter to the former, then we have an opportunity to clean up that whole "rational basis/intermediate scrutiny/strict scrutiny" rat's nest that's built up over a few generations and now doesn't make a lick of sense. They made up the whole concept originally and they've been tweaking on it ever since the...what, 1930s? Carolene Products case, footnote 4, right? Goddess alive it's worth doing for that alone.

OleCuss
06-25-2010, 7:39 AM
You seem to be describing freedom for the individual rather than freedom granted to the individual by the state as it sees fit?

1JimMarch
06-25-2010, 7:46 AM
'Zackley.

OleCuss
06-25-2010, 7:47 AM
Read the report. It is a sorry state indeed that the integrity of the elections process is so disrespected.

In this area I had the opportunity to talk to a guy who ran for the House of Representatives. Really strange things happened to the vote count. But the guy (a RKBA believer) didn't have the funds to even get a recount let alone challenge things in court. He was later effectively destroyed by the DA, IIRC.

bulgron
06-25-2010, 7:51 AM
Well, Jim, I'll say this: if you're right we'll all be toasting you on Monday.

I'll say something else: if you're right, on Monday we'll all be bowing down to Gura as some kind of a god-like being.

Is it possible that Gura got involved with 2A litigation not because he cares about guns, but because he cares about PorI and he saw the 2A as the best path to that?

1JimMarch
06-25-2010, 8:00 AM
Is it possible that Gura got involved with 2A litigation not because he cares about guns, but because he cares about PorI and he saw the 2A as the best path to that?

It's...not impossible.

The only other way to get PorI would be to find yet another major infringement of the BoR and fight with that.

Now, there ARE a couple. The most egregious would be the huge fines in "civil traffic court" some areas are starting to rack up, while at the same time acting like total kangarooville as far as rules of evidence and the like goes. If I recall right, Chicago is getting a notorious rep in that area.

We're also seeing a return of "debtor's prison" - somebody gets behind on their credit cards, the card company sues in civil court, the service of process is a bad joke, they get a judgement against 'em they don't know about, and they're in "contempt of court" and due some jail time. Yet again this is about there being no BoR protections in state civil court, and it's getting as ugly as criminal courts for blacks in the south used to be before the BoR was applied and started cleaning it up.

So...Gura DID have other options to get to the same place.

Even if this was his plan all along, it would still be only part of the plan. The Parker and "Heller II" cases back in DC don't fit into a PorI plan very well, not unless they're "second and third string shots". No, wait, they still don't fit, those are DC/Fed cases, incorporation of any sort isn't part of the deal. So that's proof he's doing some stuff with zero other interest other than guns. Cool.

If however Heller and McDonald were part of a PorI strategy, good for him. He didn't do his clients any harm, and in McDonald left DP as a backup just in case...the NRA didn't need to argue that. Look at Gura's briefs...ummm...no, not THOSE briefs (we've all got dirty minds around here).

Todd98SE
06-25-2010, 8:08 AM
jaq:

I admit it. In public. I had to google "exegesis".

:)

OleCuss:

There's a bunch of ways to read the fact that the NRA got their DP time.

One thing to remember is, the Supremes have separate private conferences regarding which cases to hear. They all have equal votes. For a case to get heard, it needs four votes. Most don't get it. The two other gun cases arguing straight DP didn't get in. The one arguing strong PorI with DP as a backup did.

There's been a ton of scholarship lately that says the US Supreme Court's actions on 14A law between 1872 and 1900 were just junk. Scams at best, horrific racism and a toleration for mass murder at worst.

One of the cases of that era I mentioned was Williams v. Mississippi. Yeah, there's a winner. Every black in the state, stripped of the vote via a discretionary-issued permit program. And that was just fine because it didn't name blacks as targets by statute AND, in a paragon of racial equality for it's time, stripped half a dozen whites of the vote too. Plus a couple hundred thousand blacks. And they talk about it RIGHT in the case, and say it's OK...and that it's OK as a result for all-white juries to find a black guy guilty like the one that was hung by the neck until dead right after that decision. I'm real serious here - go read it: http://laws.findlaw.com/us/170/213.html

So. The word is getting out about how crappy these decisions were. Charles Lane wrote that whole book on Cruikshank fr'instance...and the legal scholarship is all going the same way, even among Liberals. The previous "thinking" that John Bingham and company didn't know WTF they were doing is all falling apart.

And in light of ALL THAT, the Supremes pick the one gun case out of three to hear that does PorI. And it's not a secret vote - they all know right now who voted to hear what cases. (Nobody else does, it's a secret process.)

So...yeah, they all KNOW who's a PorI supporter. They knew it before orals.

If they knew there was PorI support, it follows that they realized they were about to do something radical and flip 125+ years worth of case law on it's butt. If they were going to do THAT, they'd want to at least make it look like a fair fight.

Enter the NRA...

Excuse me for being so forward but after reading that I just blew my load and now wish for a ham sandwich. Thank you Jim for giving me hope for this poor country. It will be a long weekend.

M. D. Van Norman
06-25-2010, 8:18 AM
Chess, not checkers.

But with a resurrected 14th Amendment, the end of the war on civil rights will come at a pace closer to that of checkers. ;)

Anyway, nice catch, Jim.

Alaric
06-25-2010, 8:31 AM
Leary hinged on a 5th Amendment (self-incrimination) claim, I haven't read the opinion but based on a summary it doesn't appear to offer any leverage against ICC abuse.

Right, Leary took the easy (and obvious) route against the Stamp Act. But that doesn't mean that there aren't problems with the prohibition on hemp/marijuana from an ICC viewpoint. The entire basis for the prohibition in rooted in two things. First, DuPont's desire to eliminate the competition (hemp) from the market his new products were entering. Second, a starkly racist element to the prohibitionists' argument. In short, it was marijuana's close association with Jazz musicians and Hispanics that did it in.

As for marijuana's schedule 1 status being arbitrary, that's also irrelevant. Regulating how much wheat a farmer can grow, as in Wickard, is not only arbitrary but severely intrusive upon property and privacy rights. It doesn't get much more basic than food production; that is a component of the fundamental right to life, after all.

PorI doesn't change any of this. Section 1 clause 2 of the 14th amendment reads "No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States..." I don't see how PorI incorporation changes federal regulation.

I'm saying the federal regs are falling for other reasons. PorI will help us protect legalization in places like California from infringement by state and local regulation. No, it's not wheat, but for a non-food crop, it doesn't get much better than hemp. George Washington and Thomas Jefferson both grew hemp. Ben Franklin owned a mill that made hemp paper. Jefferson drafted the Declaration of Independence on hemp paper.http://www.naihc.org/hemp_information/hemp_facts.html

But all of this is terribly off-topic. Great thread Jim. I agree with your logic that PorI is the likeliest scenario here.

HokeySon
06-25-2010, 8:48 AM
Question. Are we so fond of the mental masturbation that we're trying to predict the wording of something that will be released in a few days anyway? :p

Unless we're taking bets on it, of course.

You want in? I have got the pool spaces nearly filled, but I can still get you a bracket to fill out. $500 per entry. :D

Good work and reasoning in OP. We'll see soon.

tdaughg
06-25-2010, 9:05 AM
Jim,
WOW!!!!!!! thats about all i can wrap my mind around right now. the wealth of knowledge you have is absolutely amazing and your ability to put it in terms that anybody can understand is unbelievable.

you have now made it very clear why there is so much riding on this case outside of gun rights. thank you so much!

Maestro Pistolero
06-25-2010, 9:18 AM
Thanks, Jim. now go rest your fingers, son. No, don't. I am enjoying the pre-game read way too much. Awesome read.
Thanks.

Havoc70
06-25-2010, 9:39 AM
Your prognostications are interesting and seem to be logical. Hence, I think they will not come to pass. I hope I'm wrong! I'd rather be pessimistic and unsurprised than optimistic and crushed under the hobnailed boot heel of reality.

bulgron
06-25-2010, 9:41 AM
Your prognostications are interesting and seem to be logical. Hence, I think they will not come to pass. I hope I'm wrong! I'd rather be pessimistic and unsurprised than optimistic and crushed under the hobnailed boot heel of reality.

Or you can just do what I intend to do for the next few days.

Drink heavily.

Havoc70
06-25-2010, 9:42 AM
Or you can just do what I intend to do for the next few days.

Drink heavily.

I have my bottle of Glen Morangie ready to go :).

bulgron
06-25-2010, 9:52 AM
I have my bottle of Glen Morangie ready to go :).

I have two full cases of beer left over from my wife's birthday party (Sierra Nevada Summerfest and Fat Tire), plus a half bottle of Johnnie Walker Black Label, and I'm thinking about running out and getting a bottle of 16 year old Tomintoul just to have a celebratory drink on Monday night as I'm reading McDonald.

No way will I consume all of that in one weekend, but I'll certainly try to put some kind of a dent in it. :D

Havoc70
06-25-2010, 9:53 AM
I have two full cases of beer left over from my wife's birthday party (Sierra Nevada Summerfest and Fat Tire), plus a half bottle of Johnnie Walker Black Label, and I'm thinking about running out and getting a bottle of 16 year old Tomintoul just to have a celebratory drink on Monday night as I'm reading McDonald.

No way will I consume all of that in one weekend, but I'll certainly try to put some kind of a dent in it. :D


Want some company on Sunday? :)

Kharn
06-25-2010, 9:56 AM
I have a bottle of Blue Label for when they say PorI with strict scrutiny. Maker's Mark for anything lower. :cheers2:

Peaceful John
06-25-2010, 10:01 AM
It's...not impossible.

The only other way to get PorI would be to find yet another major infringement of the BoR and fight with that.

Now, there ARE a couple. The most egregious would be the huge fines in "civil traffic court" some areas are starting to rack up, while at the same time acting like total kangarooville as far as rules of evidence and the like goes...We're also seeing a return of "debtor's prison" - somebody gets behind on their credit cards, the card company sues in civil court, the service of process is a bad joke, they get a judgement against 'em they don't know about, and they're in "contempt of court" and due some jail time.

So...Gura DID have other options to get to the same place.

It's hard to imagine that in either civil traffic court or debtor's prison cases one could find the money required to fund the litigation. The money is in 2A.

This not to take one whit away from Gura.

BTW, Jim, your posts forcasting Monday's result are magnificent.

383green
06-25-2010, 10:02 AM
I expect to be sipping some 12 year old Macallan tonight. It's a gift for a friend who's visiting and who I haven't seen since around the time they started that batch, but I'm hoping he'll share. :cheers2:

I think I still have a little bit of Glenmorangie left, and I think I'll buy a bottle of Madeira wine to see what all of the fuss is about.

To alcohol! The cause of, and solution to, most of life's problems! :D

Edited to add: I'm quite fond of Maker's Mark, too. 90% as good as Macallan, at half the price! :thumbsup:

goodlookin1
06-25-2010, 10:03 AM
I think it's unfortunate that to go PorI, we must delve into a moral gray area with many other issues. If it wasnt for selling my soul in choosing gun rights over my morals, i'd vote for PorI all the way. As it is, i'd rather it go DP, retaining my RKBA rights while leave my soul intact.

These judges are not stupid: They know the implications of going PorI. The conservatives will surely want to go the route of DP to avoid opening the gay marriage and MJ issues, amongst a plethora of others. PorI would be great in some ways, but there are a few things where it would support issues that I just cannot stand for.

But it's not up to me so it doesn't even matter what I think ;)


Jim, thank you for your posts.....they were most helpful in easily understanding the differences in PorI and DP.

KylaGWolf
06-25-2010, 10:04 AM
I am hopign for P&I but I hope that it DOESN'T legalize pot. Sorry I am allergic and hate the fact that it send me to the ER every time I get exposed to it.

383green
06-25-2010, 10:11 AM
I think it's unfortunate that to go PorI, we must delve into a moral gray area with many other issues. If it wasnt for selling my soul in choosing gun rights over my morals, i'd vote for PorI all the way. As it is, i'd rather it go DP, retaining my RKBA rights while leave my soul intact.

These judges are not stupid: They know the implications of going PorI. The conservatives will surely want to go the route of DP to avoid opening the gay marriage and MJ issues, amongst a plethora of others. PorI would be great in some ways, but there are a few things where it would support issues that I just cannot stand for.

But it's not up to me so it doesn't even matter what I think ;)


The thing is, rights are rights, and infringement is infringement, even if they're not the particular rights that you choose to exercise. If you were to oppose PorI just because you don't like the fact that it may help people who advocate freedom of choice in the areas that they care about (and which do not directly affect you, anyway), how is that any different than another person who opposes PorI because they don't approve of you owning firearms (something which does not directly affect them, anyway)?

Support freedom for everybody, not just for yourself. You worry about your own moral compass, and let other people worry about theirs. I've never smoked pot, have no intention of starting, I'm straight, and I have no intention of marrying anybody of either gender, but I'm still in favor of all of those things not being prohibited in any combination even though none of them are for me.

stag1500
06-25-2010, 10:17 AM
To paraphrase Bill Wiese... part of living in a free society is having to tolerate things we find morally objectionable. I for one couldn't care less if homosexuals want to get married or sodomize each other in the privacy of their own bedroom. It has absolutely no impact on me or the quality of my life. Civil marriage is simply another method for the state to steal our money, which I am totally against. Since the institution of civil marraige isn't going anywhere, well then homosexuals should pay their share of the burden.

M. D. Van Norman
06-25-2010, 10:31 AM
Don’t ban my peanut butter … or you’ll find out what armed resistance is all about! :chris::eek::p;)

Chatterbox
06-25-2010, 10:34 AM
I have to concur - if we get PoI with strict scrutiny for 2nd A, I'm going to bawl like a little girl from happiness.

Peaceful John
06-25-2010, 10:56 AM
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.

Might it be that a PorI basis might limit 2A to citizens while a DP basis would include illegal aliens. A constitutional right for the arming of illegal aliens might be a political bump-in-the-road, don't you thnk?

Knuckle Dragger
06-25-2010, 11:09 AM
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.

Might it be that a PorI basis might limit 2A to citizens while a DP basis would include illegal aliens. A constitutional right for the arming of illegal aliens might be a political bump-in-the-road, don't you thnk?

PoI's impact on resident aliens' 2nd amendment right might be interesting, but probably nothing will change as they've already been upheld under equal protection.

Illegal aliens generally enjoin procedural rights, but the fact that they're here illegally would generally be a disqualify in and of itself.

otteray
06-25-2010, 11:17 AM
Wow! I have a headache after trying to absorb all of this! Thanks, Jim.;)

We need a POI/DP flow chart,

before Monday!

383green
06-25-2010, 11:23 AM
Wow! I have a headache after trying to absorb all of this! Thanks, Jim.;)

We need a POI/DP flow chart,

before Monday!

Let me try my hand at one:


McDonald -----+----- DP ------> Great!
|
\----- PorI ----> Awesomely awesome!


:D

paradox
06-25-2010, 11:39 AM
Great thread!

Just one minor detail...


At present there's a few pieces of the BoR still not "selectively incorporated" against the states:
...
* Your third amendment right not to have troops forced into your spare bedroom in peacetime.


The third was incorporated against the states in one of the few 3A cases to make it to Fed Courts: Engblom v. Carey, 677 F.2d 957 (2d. Cir. 1982)

thedrickel
06-25-2010, 11:41 AM
Please, for the love of god, let it be PorI.

goodlookin1
06-25-2010, 11:47 AM
The thing is, rights are rights, and infringement is infringement, even if they're not the particular rights that you choose to exercise. If you were to oppose PorI just because you don't like the fact that it may help people who advocate freedom of choice in the areas that they care about (and which do not directly affect you, anyway), how is that any different than another person who opposes PorI because they don't approve of you owning firearms (something which does not directly affect them, anyway)?

Support freedom for everybody, not just for yourself. You worry about your own moral compass, and let other people worry about theirs. I've never smoked pot, have no intention of starting, I'm straight, and I have no intention of marrying anybody of either gender, but I'm still in favor of all of those things not being prohibited in any combination even though none of them are for me.

I cannot expect you to hold the same belief as me: We probably adhere to different religions/belief systems. Therefore, ideologically, we could never agree. In the example of gay marriage, I dont think many have considered the consequences of it down the road. It's against nature as we were not created/designed/evolved (whatever you believe) to have sexual relations with the same sex. It's against our anatomy.....but they force it to work, and to their physical detriment. Just look down the road of history to any nation that has allowed/promoted/celebrated homosexuality: Where is their prosperity now? In the end, it's their choice, and they have that right to choose. But who says our country must condone their choices in the form of an institution, like marriage? Why not hold the traditional/natural definition (of which, I believe, was originally intended)? What right are we denying them? They can continue to do what they do without being impeded, they just want the recognition of the state. And this, I believe, will one day be found to be a mistake. But I digress...

On the other hand, anti-gunners continue to impede our rights to own/shoot any gun of any configuration we choose....in certain places they dont allow certain types at all. This is clearly unconstitutionally restrictive. I dont think the two issues can be fairly and equally compared.

I dont expect to sway you one iota, and i'm not trying to. I just want you to know where I am coming from.

thedrickel
06-25-2010, 11:57 AM
I cannot expect you to hold the same belief as me: We probably adhere to different religions/belief systems. Therefore, ideologically, we could never agree. In the example of gay marriage, I dont think many have considered the consequences of it down the road. It's against nature as we were not created/designed/evolved (whatever you believe) to have sexual relations with the same sex. It's against our anatomy.....but they force it to work, and to their physical detriment. Just look down the road of history to any nation that has allowed/promoted/celebrated homosexuality: Where is their prosperity now? In the end, it's their choice, and they have that right to choose. But who says our country must condone their choices in the form of an institution, like marriage? Why not hold the traditional/natural definition (of which, I believe, was originally intended)? What right are we denying them? They can continue to do what they do without being impeded, they just want the recognition of the state. And this, I believe, will one day be found to be a mistake. But I digress...

On the other hand, anti-gunners continue to impede our rights to own/shoot any gun of any configuration we choose....in certain places they dont allow certain types at all. This is clearly unconstitutionally restrictive. I dont think the two issues can be fairly and equally compared.

I dont expect to sway you one iota, and i'm not trying to. I just want you to know where I am coming from.

How about this . . . you keep your religion out of my civil rights, and I won't mess with your religion. Deal?

Fjold
06-25-2010, 12:04 PM
jaq:

I admit it. In public. I had to google "exegesis".

:)

...

Thanks Jim for a great post here on all this information.

I'm a "Word Nerd" and I'll also admit that I had to go look up "exegesis" because I have always seen it used only in a religious context. My first thought was "Why is the 2nd Amendment now a religion"?

dfletcher
06-25-2010, 12:11 PM
It's...not impossible.

The only other way to get PorI would be to find yet another major infringement of the BoR and fight with that.

Now, there ARE a couple. The most egregious would be the huge fines in "civil traffic court" some areas are starting to rack up, while at the same time acting like total kangarooville as far as rules of evidence and the like goes. If I recall right, Chicago is getting a notorious rep in that area.

We're also seeing a return of "debtor's prison" - somebody gets behind on their credit cards, the card company sues in civil court, the service of process is a bad joke, they get a judgement against 'em they don't know about, and they're in "contempt of court" and due some jail time. Yet again this is about there being no BoR protections in state civil court, and it's getting as ugly as criminal courts for blacks in the south used to be before the BoR was applied and started cleaning it up.

So...Gura DID have other options to get to the same place.




Legislators in AZ are (or soon shall) push for children of illegal aliens to not automatically be granted US citizenship when born in the US - may be interesting as relates to the 14th and to see if Gura gets involved in that proceeding. Rep Bingham allowed that the introductory phrase of the 14th (I believe the only part he did not write directly) applied to children born in the US of parents who "owed no allegiance" to another country - AZ may make the case an illegal alien does owe their allegiance to another country & argue the intent of Congress was to apply that phrase to black slaves only and their children. I've read the private papers of a forbear who was a contemporary of Bingham (Rep Stevens of PA) seems to be an interesting subject.

Maybe the 2nd for Gura is just a warm up round? ;)

Firestar
06-25-2010, 12:15 PM
I cannot expect you to hold the same belief as me: We probably adhere to different religions/belief systems. Therefore, ideologically, we could never agree. In the example of gay marriage, I dont think many have considered the consequences of it down the road. It's against nature as we were not created/designed/evolved (whatever you believe) to have sexual relations with the same sex. It's against our anatomy.....but they force it to work, and to their physical detriment. Just look down the road of history to any nation that has allowed/promoted/celebrated homosexuality: Where is their prosperity now? In the end, it's their choice, and they have that right to choose. But who says our country must condone their choices in the form of an institution, like marriage? Why not hold the traditional/natural definition (of which, I believe, was originally intended)? What right are we denying them? They can continue to do what they do without being impeded, they just want the recognition of the state. And this, I believe, will one day be found to be a mistake. But I digress...

On the other hand, anti-gunners continue to impede our rights to own/shoot any gun of any configuration we choose....in certain places they dont allow certain types at all. This is clearly unconstitutionally restrictive. I dont think the two issues can be fairly and equally compared.

I dont expect to sway you one iota, and i'm not trying to. I just want you to know where I am coming from.

+1. There will be a summer of discussion and reflection about long term effects of the decisions from this court.
This has been one of the best discussion threads I've seen. Jim you've really helped this "novice" understand FAR more of the background.

PS. if this decision comes in the way we hope & you guys are all hitting the juice, I'm staying the heck OFF THE ROADS Monday AND Tuesday.

ke6guj
06-25-2010, 12:16 PM
I am hopign for P&I but I hope that it DOESN'T legalize pot. Sorry I am allergic and hate the fact that it send me to the ER every time I get exposed to it.

I'm sorry, but your alergy does not trump a constitutional right.

we don't ban peanuts (yet) because some people are deadly alergic to them.

1JimMarch
06-25-2010, 12:16 PM
All: I don't think pot is at issue under the PorI. I grant that I could be wrong, but I don't think so.

As to gay sex being "unnatural"...um...I've seen gay animals. My brother's two pet rats when we were kids were very clearly lesbian :). Caused lots of household humor. Look, seriously, L/libertarians and Christian Conservatives are gonna disagree. Set that aside - the PROPERTY RIGHTS boosts (ending Kelo!) should be something we can get together on! And there's a ton more - elections are one of my personal peeves of course.

tdaughg and others who didn't understand PorI before this thread: Look, there's a lot you're still missing, m'kay? I've had to seriously crunch this crap down. This is way beyond "Reader's Digest" version, it barely qualifies as "Cliff Notes" at best and that's a stretch. You need Amar's book. He shows what the BoR was all about *before* the 14A and then shows how the 14A tweaked it - or was supposed to anyhow.

Most people don't even know that there was an entire civil rights movement that failed - crushed by the Supremes. All of us on this forum are involved in a civil rights movement...hell, I'm involved in two. You think it isn't important to study not just the movement that (mostly) succeeded, but also the one that failed? But ask anybody on the street who John Bingham is, 99% or more will go "huh?"

That's just horrible. The man was a genuine hero.

The third was incorporated against the states in one of the few 3A cases to make it to Fed Courts: Engblom v. Carey, 677 F.2d 957 (2d. Cir. 1982)

Yeah, but only in one circuit :).

It's all theoretical though, this class of civil rights abuse just doesn't happen anymore.

thayne
06-25-2010, 12:23 PM
How about this . . . you keep your religion out of my civil rights, and I won't mess with your religion. Deal?

I totally agree.

ojisan
06-25-2010, 12:24 PM
Jim...great posts except you got me all excited.
I'm trying really hard to maintain my composure through the wait.
You're not helping me at all.




:D

Foulball
06-25-2010, 12:31 PM
However, Scalia's ability to be a hypocrite should not be underestimated. Remember he just bagged on SDP this week but yet he'll probably side with it in this case...-Gene

At present there's a few pieces of the BoR still not "selectively incorporated" against the states:

* Your right to a jury in civil cases.

* Your right to grand jury indictment for major crimes - California seldom uses grand juries, which has left them weak, which means they're not the strong barrier to state and local government fraud and corruption that they should be.
....
Other "PorI cool stuff" mentioned between 1865 and 1870 was a right to enter into contracts, a right to property and more.

The broader-based rights that Gura is pushing for covers a lot of stuff - some of which scares the piss out of Scalia and Roberts for sure but probably has at least Ginsburg and maybe other Liberals at least intrigued.


Jim,

I would like to note that the parts in bold were addressed by Scalia at a forum in Arizona during a moderated debate between Scalia and Brewer. Scalia gave quite a bit of time on the issue and was quite convincing that should a case come about that addressed the jury trial issues he would undoubtedly give it his all to guarantee that right to all citizens at all levels of the court system.

So (extreme extrapolation here) if he is seeing this as broadly as you've outlined, he just might surprise us.

But then again, he probably wont.

Linky to an absolutely awesome debate (if you are turned on by this sort of thing):
http://www.cspan.org/Watch/Media/2009/10/31/SCourt/A/24809/AC+Supreme+Court+Assoc+Justices+Antonin+Scalia+Ste phen+Breyer.aspx

--

1JimMarch
06-25-2010, 12:32 PM
Jim...great posts except you got me all excited.
I'm trying really hard to maintain my composure through the wait.
You're not helping me at all.

See, I didn't think I'd be doing a thread like this at all.

I started out asking "what was Alito's role in the orals?"...and then I started getting giddy when I realized what the "Harlan" thing was about.

:taz:

There's another major source of hard data here:

http://www.scotuswiki.com/index.php?title=McDonald_v._City_of_Chicago

With luck I've given most of you enough background to make sense of these.

If you want to skim them, open 'em up and search on the term "privileges". See what pops up :).

N6ATF
06-25-2010, 12:39 PM
I'm sorry, but your alergy does not trump a constitutional right.

we don't ban peanuts (yet) because some people are deadly alergic to them.

Peanuts aren't fired into random allergy sufferer's digestive tracts with deliberate disregard for their continued survival.

Assaulting people with pepper spray not in self defense is banned. CA PC 12403.7(g)

Consistency? What's that?

ke6guj
06-25-2010, 12:41 PM
Peanuts aren't fired into random allergy sufferer's digestive tracts with deliberate disregard for their continued survival.


peanut dust does float into random allergy sufferers intake system without regard for their ability to survive.


Assaulting people with pepper spray not in self defense is banned. CA PC 12403.7(g)intent matters. Just like it could be a crime to intentially blow MJ smoke into someones face.

A person could be allergic to perfume, but it isn't illegal to wear perfurme. But it would be illegal to intentionally spray perfume in someone's face.

383green
06-25-2010, 12:54 PM
In the end, it's their choice, and they have that right to choose. But who says our country must condone their choices in the form of an institution, like marriage? Why not hold the traditional/natural definition (of which, I believe, was originally intended)? What right are we denying them?

Nobody can (or should) force your church or any other church which adheres to your belief system to conduct, condone or even recognize marriages between people of the same gender. But, since civil union is provided by and recognized by our legal system, it must be provided in a nondiscriminatory manner, even to people who don't share your belief system. In the US, government has stuck its nose into the business of marriage, including but not limited to providing marriage services, licensing and regulating the practice, and attaching tax implications to marital status. That opens up this whole can of worms, and it means that marriage (as recognized by our government) must not discriminate against people whose belief systems differ from yours.

I believe that from a perspective of liberty and civil rights, the most satisfactory way to resolve this conflict would be for government to treat civil union as a contractual obligation between consenting adults, entirely separately from anything with the word "marriage" connected to it. Let churches conduct marriages as they see fit and recognize marriages as dictated by their individual belief systems; only let government get involved to the extent where it reflects on the legal obligations and status of family units, and don't even attach the word "marriage" to the legal aspect of the union. Church and state should be separate, and should avoid interfering with each other.

As to gay sex being "unnatural"...um...I've seen gay animals.

LOL! I think that one of my dogs may be bisexual, but I still love her just as much.

Anyway, I'm not "pro-pot", "pro-gay-marriage" or even "pro-marriage" or "pro-gay"; I'm pro-liberty.

M. D. Van Norman
06-25-2010, 12:56 PM
… this class of civil rights abuse just doesn’t happen anymore.

Yet.

There are different battles and different fronts and allies and enemies who disagree on certain goals, but they’re all part of the same war. The battle for the right to arms will go down as a watershed moment in that war.

OleCuss
06-25-2010, 1:04 PM
Nobody can (or should) force your church or any other church which adheres to your belief system to conduct, condone or even recognize marriages between people of the same gender. But, since civil union is provided by and recognized by our legal system, it must be provided in a nondiscriminatory manner, even to people who don't share your belief system. In the US, government has stuck its nose into the business of marriage, including but not limited to providing marriage services, licensing and regulating the practice, and attaching tax implications to marital status. That opens up this whole can of worms, and it means that marriage (as recognized by our government) must not discriminate against people whose belief systems differ from yours.

I believe that from a perspective of liberty and civil rights, the most satisfactory way to resolve this conflict would be for government to treat civil union as a contractual obligation between consenting adults, entirely separately from anything with the word "marriage" connected to it. Let churches conduct marriages as they see fit and recognize marriages as dictated by their individual belief systems; only let government get involved to the extent where it reflects on the legal obligations and status of family units, and don't even attach the word "marriage" to the legal aspect of the union. Church and state should be separate, and should avoid interfering with each other.
.
.
.

Pretty much where I'm at. Get government out of the business of marriage. Let people establish contracts and let the courts sort things out when contract issues arise. (And yes, I know I'm being slightly simplistic).

jl123
06-25-2010, 1:28 PM
I think it's unfortunate that to go PorI, we must delve into a moral gray area with many other issues. If it wasnt for selling my soul in choosing gun rights over my morals, i'd vote for PorI all the way. As it is, i'd rather it go DP, retaining my RKBA rights while leave my soul intact.

These judges are not stupid: They know the implications of going PorI. The conservatives will surely want to go the route of DP to avoid opening the gay marriage and MJ issues, amongst a plethora of others. PorI would be great in some ways, but there are a few things where it would support issues that I just cannot stand for.

But it's not up to me so it doesn't even matter what I think ;)


Jim, thank you for your posts.....they were most helpful in easily understanding the differences in PorI and DP.

Summary:

I want my freedoms, to hell with yours.

advocatusdiaboli
06-25-2010, 1:32 PM
Jim:

Excellent posts and great reads!

I think, however, that you may be reading just a little too much into what the Supremes have said and alluded to.

I'm not saying it couldn't happen (good logic) but I think the assumptions regarding SCOTUS leanings are not quite that solid.

I rather hope you're right, though.

^^^ This. Thanks Jim for the thoughtful legal analysis and replay.

If sportscasters can engage in this kind of game why not CalGunners with SCOTUS--the World Cup of rights and freedoms (and immunities and privileges and unenumerated rights as well)?

Oh and as for partying: It's Guinness and a Bolivar Belicoso Fino in prep and once the ribs are smoking and Lagavulin, Talisker, and Hoyo de Monterrey Double Corona after. I hope I can still read the full text of the decision after that but probably not.

Nobody can (or should) force your church or any other church which adheres to your belief system to conduct, condone or even recognize marriages between people of the same gender. But, since civil union is provided by and recognized by our legal system, it must be provided in a nondiscriminatory manner, even to people who don't share your belief system. In the US, government has stuck its nose into the business of marriage, including but not limited to providing marriage services, licensing and regulating the practice, and attaching tax implications to marital status. That opens up this whole can of worms, and it means that marriage (as recognized by our government) must not discriminate against people whose belief systems differ from yours.

I believe that from a perspective of liberty and civil rights, the most satisfactory way to resolve this conflict would be for government to treat civil union as a contractual obligation between consenting adults, entirely separately from anything with the word "marriage" connected to it. Let churches conduct marriages as they see fit and recognize marriages as dictated by their individual belief systems; only let government get involved to the extent where it reflects on the legal obligations and status of family units, and don't even attach the word "marriage" to the legal aspect of the union. Church and state should be separate, and should avoid interfering with each other.

+1 this BTW is why I have such a problem with Sister Palin of the American Taliban and angry with the Republican party for letting her run their agenda for so long now. I believe very strongly in Jefferson's separation convictions, even if the Founders were swayed by their largely identical religious perspectives and periodically incorporated them in their works anyway.

Paul E
06-25-2010, 1:48 PM
tdaughg:

If you REALLY want to understand this to the degree Gene, Gray and I do, go crack open a book. I'd start (and finish really) with Yale law professor Akhil Reed Amar's 1998 book "The Bill Of Rights" - it's not written for lawyers.

The short form is this..."incorporation of the 2nd Amendment" means it's going to get "applied to" (read: "forced down the throats of") the states. Right now Cali doesn't have to honor the 2nd Amendment - they think they can screw us on guns to whatever degree they want.
...
...
...

The broader-based rights that Gura is pushing for covers a lot of stuff - some of which scares the piss out of Scalia and Roberts for sure but probably has at least Ginsburg and maybe other Liberals at least intrigued.

One more detail and I'm done.

The US Supremes had three different cases come before them that argued the states need to honor the 2nd Amendment. Two of them argued straight due process. The one they TOOK argued PorI and a broad swath of civil rights reforms, but also said that Due Process incorporation would do in a pinch. The NRA, on behalf of their Christian Conservative GOP "leaders", desperately argued otherwise.

And THAT is how a gun case ended up being the most important gay rights case since Lawrence.

(PS: remember the book by Amar I mentioned? Amar is a gun-hating Liberal. When he realized what John Bingham and his supporters said and did between 1865 and 1868, he clearly hated it. And as you read that book, you'll realize he hated what he was writing. But to his credit, he wrote it anyways. I thanked him on that personally the one time I got to meet him. It's Amar's work more than any other that's given PorI the chance Monday.)

I dont post much, but i just want to thank you for the excellent comprehensive explaination of the two differences. As much research as I did about the two, I could still never really nail it down...until then.

Thanks a lot!

N6ATF
06-25-2010, 2:02 PM
peanut dust does float into random allergy sufferers intake system without regard for their ability to survive.


intent matters. Just like it could be a crime to intentially blow MJ smoke into someones face.

I've never heard of a single prosecution of assault by anaphylactic shock-inducing food or drug product...

By doing drugs, legal or not, you get a pass, regardless of intent, unless it's murder. I have zero faith the government will do anything but continue to protect lesser criminals if any or all drugs are legalized.

advocatusdiaboli
06-25-2010, 2:02 PM
The short form is this..."incorporation of the 2nd Amendment" means it's going to get "applied to" (read: "forced down the throats of") the states. Right now Cali doesn't have to honor the 2nd Amendment - they think they can screw us on guns to whatever degree they want.

So it's a swing of the pendulum back towards a federalism of the BOR over state's rights pushed by the judicial branch but empowering more the legislative (i.e. BOR) branch (via POI) over DP which empowered the judicial branch (and states) more?

Apocalypsenerd
06-25-2010, 2:08 PM
Not being a lawyer, i still read the 70+ pages of arguments on this case.

The language the justices used sounded to me like they were looking for a reason to go PorI. Without being there and seeing the facial expressions and hearing the tones of voice used, my perception may be wrong. But, simply looking at the language gives me reason to hope that this case will begin the process of resetting our country to following the direction of liberty.

Listening to the more knowledgeable folks on this board made me question my judgement. Jim has just made a good argument for the SCOTUS actually strengthening all freedoms.

ke6guj
06-25-2010, 2:11 PM
I've never heard of a single prosecution of assault by anaphylactic shock-inducing food or drug product...
.that's why I said could. I wasn't sure of any prosecutions, but I could easily see a prosecution where a person complained about someone else's smoke bothering them and the smoker intentionally blowing smoke in their face. With MJ smoke, it could even be argued that the smoker was trying to drug the recipient if he attempted a psuedo-shotgunning of the smoke. But that deals with intentional acts, not just smoke that floats away.

edit: found an assualt case dealing with second hand smoke, http://www.law.com/jsp/pa/PubArticlePA.jsp?hubtype=TopStories&id=1202424616383&slreturn=1&hbxlogin=1 , granted it was crack smoke, not cigarette or MJ smoke.

Californio
06-25-2010, 2:31 PM
What is so very sad that the Dream of the Republic had to be highjacked by people who wanted society in their image. All the very bad law over the decades, with tentacles all over the place trying to justify enslavement for profit. I hope they end the curse and go PorI. Time to revisit the Founders.

Very nice read, Jim.

dsmoot
06-25-2010, 2:37 PM
Nobody can (or should) force your church or any other church which adheres to your belief system to conduct, condone or even recognize marriages between people of the same gender. But, since civil union is provided by and recognized by our legal system, it must be provided in a nondiscriminatory manner, even to people who don't share your belief system. In the US, government has stuck its nose into the business of marriage, including but not limited to providing marriage services, licensing and regulating the practice, and attaching tax implications to marital status. That opens up this whole can of worms, and it means that marriage (as recognized by our government) must not discriminate against people whose belief systems differ from yours.

I would agree with you here, that marriage should be left to the churches, and have the state recognize the contract between 2 consenting adults. This is pretty close to what we have here in Ca already though, homesexuals can get a civil union that has ALL of the legal benefits of marriage, but without calling it marriage.

1JimMarch
06-25-2010, 3:01 PM
So it's a swing of the pendulum back towards a federalism of the BOR over state's rights pushed by the judicial branch but empowering more the legislative (i.e. BOR) branch (via POI) over DP which empowered the judicial branch (and states) more?

OK, I was waiting for somebody to mention that magic phrase, "state's rights".

First point, understand that a lot of really horrible people have used that phrase to support some ghastly stuff. Not saying you're one of 'em! But in times past, the most common usage of that phrase has been something along the lines of "we don't need the feds comin' in here and tellin' us how to treat our ["blacks"]" except they used a different word for folks with a naturally occurring heavy tan.

At the time the core constitution and Bill Of Rights were written, the overriding fear of gov't misconduct was a fear of centralized (Federal) misconduct. They'd been recently screwed over royally (pardon the pun) by the "home office" in London.

Before, during and after the civil war it became obvious that states could screw up too. By 1858 South Carolina had a law on the books calling for the death penalty for any preacher who spoke against slavery from the pulpit. I guess I don't need to state how many provisions of the BoR that violated.

The 14th created a new system: if one or more states violated people's civil rights, the Feds could stomp on them. BUT if the Feds went bonkers, the states collectively still had enough powers to bring the Feds under control. At least, that's how it was supposed to work - Federal control over the money supply starting in 1913 has probably made that questionable so pay attention to Dr. Paul when he says "audit the fed and then probably end it when we learn all the corruption...".

But that aside, more civil rights violations happen at the state level than the federal level. It wasn't the feds who did all those lynchings, and it's not the feds who are restricting your carry rights in Cali.

So yeah. It's time to fully implement John Bingham's vision: civil rights violations suck and states have NO RIGHT to commit them.

gunsmith
06-25-2010, 3:12 PM
Jim,you the man. Thanks & I hope you're right, even if you aint -you still da man!

PEBKAC
06-25-2010, 3:19 PM
I cannot expect you to hold the same belief as me: We probably adhere to different religions/belief systems. Therefore, ideologically, we could never agree. In the example of gay marriage, I dont think many have considered the consequences of it down the road. It's against nature as we were not created/designed/evolved (whatever you believe) to have sexual relations with the same sex. It's against our anatomy.....but they force it to work, and to their physical detriment. Just look down the road of history to any nation that has allowed/promoted/celebrated homosexuality: Where is their prosperity now? In the end, it's their choice, and they have that right to choose. But who says our country must condone their choices in the form of an institution, like marriage? Why not hold the traditional/natural definition (of which, I believe, was originally intended)? What right are we denying them? They can continue to do what they do without being impeded, they just want the recognition of the state. And this, I believe, will one day be found to be a mistake. But I digress...
There have been other philosophers since Aristotle you know...he's fun to play around with for trolling purposes but as a solid grounding for any worldview, it's got issues.

For example, if I recall Aristotle posited that humans are best at thinking, designed for it, thus most virtuous when doing so, etc. Hence our intended design purpose would be thinking. Sex of any kind and all things related impede cognitive abilities by diverting blood from the brain. This runs contrary to the design intent of humans as it is against our nature.

Conversely if you argued that, like all other animals, human's intended design purpose is simply to reproduce, thinking clearly gets in the way of this and is thus wrong and not virtuous at all (and going against nature to boot :eek:).

Thus we can justify wiping out the human race by banning reproduction based OR justify not thinking and perhaps legislating against it in favor of rampant reproduction (thus ensuring that humans as a species go absolutely nowhere technologically) on this philosophical position.

Sounds good to me. :troll:

On a somewhat more topical note:
-I'm not sure I trust humans in politics enough to think it will work out the way Jim suggests but I'd love to be wrong.
-Thanks for the very well put together summary Jim. Thread tagged for future reference when I need a way to explain these things.
-Any idea when on I should start breaking the F5 key on SCOTUS blog? I'd guess fairly early in the morning but am not really sure.

Here's hoping for PorI. :)

IGOTDIRT4U
06-25-2010, 3:35 PM
I would agree with you here, that marriage should be left to the churches, and have the state recognize the contract between 2 consenting adults. This is pretty close to what we have here in Ca already though, homesexuals can get a civil union that has ALL of the legal benefits of marriage, but without calling it marriage.

Nobody can (or should) force your church or any other church which adheres to your belief system to conduct, condone or even recognize marriages between people of the same gender. But, since civil union is provided by and recognized by our legal system, it must be provided in a nondiscriminatory manner, even to people who don't share your belief system. In the US, government has stuck its nose into the business of marriage, including but not limited to providing marriage services, licensing and regulating the practice, and attaching tax implications to marital status. That opens up this whole can of worms, and it means that marriage (as recognized by our government) must not discriminate against people whose belief systems differ from yours.

I believe that from a perspective of liberty and civil rights, the most satisfactory way to resolve this conflict would be for government to treat civil union as a contractual obligation between consenting adults, entirely separately from anything with the word "marriage" connected to it. Let churches conduct marriages as they see fit and recognize marriages as dictated by their individual belief systems; only let government get involved to the extent where it reflects on the legal obligations and status of family units, and don't even attach the word "marriage" to the legal aspect of the union. Church and state should be separate, and should avoid interfering with each other.

Oh man, this is word for word, almost, my arguments during the Prop 8 debacle!! It's so simple, but big gov doesn't get it or want to get it.

On topic, DC is closed down by now. So it's off to the weekend and high hopes for Monday.

For me, I'm on the fence about PoI versus SDP. I guess what I really pray for is strict scrutiny being clearly stated in the decision. And maybe an Order or two slapping Chicago in the face, with hints that schemes in NYC and CA are also in violation.

Gray Peterson
06-25-2010, 3:43 PM
I would agree with you here, that marriage should be left to the churches, and have the state recognize the contract between 2 consenting adults. This is pretty close to what we have here in Ca already though, homesexuals can get a civil union that has ALL of the legal benefits of marriage, but without calling it marriage.

This is not true. For example, in California you can have a private marriage, whereas domestic partners have their information directly on the Secretary of State's site for anyone to search on.

Also, some of the firearms laws involving spouses and allowing things with spouses do NOT apply to those in an SRDP.

Kharn
06-25-2010, 3:49 PM
-Any idea when on I should start breaking the F5 key on SCOTUS blog? I'd guess fairly early in the morning but am not really sure.

Here's hoping for PorI. :)They will begin live-blogging around 9:50am Eastern on Monday. You don't have to refresh with their LiveBlog stream, it automatically updates every time they make an entry but it requires Flash so it isn't very useful for those of us trying to sneak an older smartphone under the meeting table.

bulgron
06-25-2010, 3:50 PM
-Any idea when on I should start breaking the F5 key on SCOTUS blog? I'd guess fairly early in the morning but am not really sure.

I intend to be somewhat hung over on Monday morning. Probably I'll get up, have a slow morning, maybe take a swim. I'll look at CalGuns at the crack of noon, and read the first six or seven posts on the McDonald decision(s) just to get the immediate gist of how SCOTUS went with this thing. Then I'll download those McDonald opinions that look interesting (I probably won't bother with dissents, unless we somehow lose), print them, then stick them away until Tuesday when I'm on a plane to Minneapolis and so I'll have time to read them.

You see, whatever happens on Monday, we're going to be stuck with that for the rest of my life. So it's okay if it takes me a day or two to fully understand what McDonald says.

But the only thing that will make this work and have me not breaking the F5 key on my keyboard is a mild hangover on Monday morning.

Just sayin'. :D

2009_gunner
06-25-2010, 3:54 PM
Summary:

I want my freedoms, to hell with yours.

Another summary:

I'm so secure in my sexuality, that if gay marriage is permitted, I might end up switching teams :rolleyes:

bulgron
06-25-2010, 4:10 PM
Another summary:

I'm so secure in my sexuality, that if gay marriage is permitted, I might end up switching teams :rolleyes:

Please stop. The gay marriage debate has no place in a 2A discussion forum. There's an off-topic lounge on this site. That's a good place for you guys to take this discussion.

ScottB
06-25-2010, 4:13 PM
In other quarters there is speculation Roberts might be the author, given the gravity and reach of the likely decision and the fact that as Chief Justice, its his prerogative.

Supposing that's the case, what does that do to the P&I vs due process math?

N6ATF
06-25-2010, 4:18 PM
that's why I said could. I wasn't sure of any prosecutions, but I could easily see a prosecution where a person complained about someone else's smoke bothering them and the smoker intentionally blowing smoke in their face. With MJ smoke, it could even be argued that the smoker was trying to drug the recipient if he attempted a psuedo-shotgunning of the smoke. But that deals with intentional acts, not just smoke that floats away.

edit: found an assualt case dealing with second hand smoke, http://www.law.com/jsp/pa/PubArticlePA.jsp?hubtype=TopStories&id=1202424616383&slreturn=1&hbxlogin=1 , granted it was crack smoke, not cigarette or MJ smoke.

Hmm, wretched guardianship/child endangerment. That example reminds me of the difficulty finding a criminal gun-grab, of which we finally got a single example in WI recently. This seemed to happen only because a round wasn't chambered. Anyway, if it wasn't so absolutely egregious, a child exposed by their guardian, and the other non-drug charges, probably never would have been a case.

ke6guj
06-25-2010, 4:25 PM
Hmm, wretched guardianship/child endangerment. That example reminds me of the difficulty finding a criminal gun-grab, of which we finally got a single example in WI recently. This seemed to happen only because a round wasn't chambered. Anyway, if it wasn't so absolutely egregious, a child exposed by their guardian, and the other non-drug charges, probably never would have been a case.I know it wasn't the best example, but it was the best I could find with a quick yahoo search.

I also found this, granted it was a civil assault charge based on second hand smoke.

Some states have allowed an assault and battery claim to be brought against an employer for continuing to subject an employee to secondhand smoke exposure. In such cases, physical harm has to be shown and, in most cases, the exposure to secondhand smoke has to be intentional. For example, in Portenier v. Republic Hogg Robinson, a woman sued her employer for assault and battery based on her exposure to secondhand smoke at work.64 She claimed that the company permitted workers to smoke in the workplace even after she had submitted doctors’ notes advising that she should not be exposed to secondhand smoke and that she was “subjected to a series of offensive, hostile, intimidating and retaliatory remarks” after complaining about her continued exposure.65 The case settled in 1994 for an undisclosed amount after the company’s motion of summary judgment was denied. In cases like Portenier, where the employer’s actions are intentional, repeated, and egregious, an assault and battery claim may be viable.http://www.wmitchell.edu/tobaccolaw/documents/casino.pdf


My point is you probably have to deal with casual second hand smoke, and if you are alergic, sorry. But if you make it known that you are alergic and they purposely blow second hand smoke in your face, that MAY be a crime.

383green
06-25-2010, 4:35 PM
My point is you probably have to deal with casual second hand smoke, and if you are alergic, sorry. But if you make it known that you are alergic and they purposely blow second hand smoke in your face, that MAY be a crime.


This is one of the topics where I feel the most conflicted: I truly abhor the smell of tobacco smoke (though I'm not allergic to it), and thus I've been delighted by the ban on smoking in restaurants and bars that I may choose to patronize. On the other hand, my inner libertarian cringes at the thought of telling other people what to do beyond the occasional "leave me the **** alone". I have not yet come up with a suitable solution to the conflict between my extreme dislike of excessive authoritarianism and my visceral desire to turn a fire hose on nearby smokers who are upwind of me. I enjoy the largely tobacco-smoke-free environment that has been created in CA's public places, and I feel a bit guilty about it at the same time.

bulgron
06-25-2010, 4:39 PM
This is one of the topics where I feel the most conflicted: I truly abhor the smell of tobacco smoke (though I'm not allergic to it), and thus I've been delighted by the ban on smoking in restaurants and bars that I may choose to patronize. On the other hand, my inner libertarian cringes at the thought of telling other people what to do beyond the occasional "leave me the **** alone". I have not yet come up with a suitable solution to the conflict between my extreme dislike of excessive authoritarianism and my visceral desire to turn a fire hose on nearby smokers who are upwind of me. I enjoy the largely tobacco-smoke-free environment that has been created in CA's public places, and I feel a bit guilty about it at the same time.

There appears to be a clear link between second hand smoke and increased incidents of cancer. Therefore, people smoking in public places fails the "arm swinging -> tip of my nose" test.

If they can figure out how to smoke in public without fouling my lungs with their emissions, I don't care what they do.

383green
06-25-2010, 5:04 PM
There appears to be a clear link between second hand smoke and increased incidents of cancer. Therefore, people smoking in public places fails the "arm swinging -> tip of my nose" test.

If they can figure out how to smoke in public without fouling my lungs with their emissions, I don't care what they do.

It hasn't been entirely clear to me that the second hand smoke health impact claims are based on good science, as opposed to the sort of junk science that's used all too often to legitimize bad legislation. If it's real, then that would be a "tip of my nose" case, though.

I've heard that there's some sort of electric nicotine-atomizing doohickey that doesn't burn tobacco leaves or emit tobacco smoke. If those things let people get their nicotine fix near me without exposing me to objectionable smoke, then I have no problem with that. I generally don't want to legislate people's behavior when it doesn't have an adverse impact on me.

1JimMarch
06-25-2010, 5:46 PM
In other quarters there is speculation Roberts might be the author, given the gravity and reach of the likely decision and the fact that as Chief Justice, its his prerogative.

Supposing that's the case, what does that do to the P&I vs due process math?

Dunno. I think the basic "nose count math" still works. The cool part about Alito as author is that we seem to have a reasonable grasp on where his head is at regarding DP/PorI via his libertarian leanings and his support for Harlan the First. So if Roberts is writing, then...odds go down in that sense. But then again, if we win on DP that's...well, really NOT that big an earthshaking thing, is it? The Heller decision dropped tons of clues that incorporation would happen. If it's PorI, then WOW yeah that's a huge deal and maybe that entices Roberts to grab it from Alito...?

Mark in Eureka
06-25-2010, 5:55 PM
Thank you Jim March. I agree with you, and have thought all along that McDonald was argued for a reason. That inside the court there is another majority. This is good for the 2nd admendment, but ever better for our freedoms.

Let start winning our freedoms and country back.

As was stated early on, McDonald has the possiblity of being the biggest case since Brown vs Board of Education.

advocatusdiaboli
06-25-2010, 6:21 PM
[QUOTE=1JimMarch;4515233]OK, I was waiting for somebody to mention that magic phrase, "state's rights"./QUOTE]

I meant it in the evil, sort of, way in that some states believe there are citizen's constitutional rights they may abridge or abrogate at their whim on an individual state level making the constitution unevenly applied and creating a divisive union. The old style was based on race and religion, the new style is based on sexual preference and RKBA--still just as ugly and defiant of the Bill of Rights.

I think you built an excellent case for both the strict constitutionalist and liberal wings to support POI over due process incorporation, but a litany of nonsense decisions, even in recent years, has proven logic does not bind the reach and action of SCOTUS. Fingers crossed for Monday.

1911su16b870
06-25-2010, 6:48 PM
Thank you very much Mr. Jim March for the very passionate, well thought out and detailed postings in this thread and on this board. You have impressed me greatly! You are definitely one of our calguns founding father! Thank you.

Al Norris
06-25-2010, 7:52 PM
Justice Scalia was in private practice for 5 years. A professor for 9 years. General Counsel of the Office of Telecommunications Policy for 1 year. Assistant Attorney General for the OLC for 3 years. D.C. Court of Appeals for 3 years. Then was appointed to the Supreme Court in Sept. 1986.

I note the above in reference to Scalias supposed remarks re "professoriate." I personally think it was either a case if disingenuous talking, or perhaps pure snark.

Regardless, to see how how fair-weather a friend Justice Scalia is, just read his opinion in Raich (http://www.law.cornell.edu/supct/html/03-1454.ZC.html). That was the one that did it for me. Justice Thomas is at least consistent in his views (whether or not I agree with all of them). Scalia will jump ship to maintain any and all precedence, unless dragged through the mud to another course.

At any rate, I agree with Jim on almost all counts. PorI is not the dead issue, everyone else has made it out to be.

However, there are three things I know for absolute certainty.

1) IF incorporated through SDP, Justice Thomas will write a separate concurrence, stressing PorI. 2) If no incorporation, Justice Thomas will write a scathing dissent. 3) If PorI incorporation, Thomas won't care much who writes it.

MrBrent
06-25-2010, 9:01 PM
Jim, I have spent the last few hours reading this thread. I have to say I was getting excited about the prospects of PorI. The way you are able to put into laymen s terms was very helpful to me! What is your back ground? Your understanding and research leads me to believe your an attorney?? I like many will be waiting for the good news on Monday morning.:43:

dfletcher
06-25-2010, 9:04 PM
This is one of the topics where I feel the most conflicted: I truly abhor the smell of tobacco smoke (though I'm not allergic to it), and thus I've been delighted by the ban on smoking in restaurants and bars that I may choose to patronize. On the other hand, my inner libertarian cringes at the thought of telling other people what to do beyond the occasional "leave me the **** alone". I have not yet come up with a suitable solution to the conflict between my extreme dislike of excessive authoritarianism and my visceral desire to turn a fire hose on nearby smokers who are upwind of me. I enjoy the largely tobacco-smoke-free environment that has been created in CA's public places, and I feel a bit guilty about it at the same time.

Perhaps I can help. And I mean this in a lighthearted sort of way. :)

Unless you misspoke (mistyped?) why should disliking the "smell" be at all important? The smell is not injurious, no one ever got cancer from a smell. To ban smoking based on smell, it seems to me, is mistaken. Yes? BTW, this is a fairly common response from folks.

I can see a restaurant or store saying "no smoking allowed because it smells" as a business policy - but because of smell supporting a ban?

Do we make folks leave a restauraunt because they're wearing too much perfume? I can't stand the smell of fish (made it kind of tough growing up on the Cape) but I can't very well tell someone to not order it.

So, if you dislike smoking based on smell only I would say surrender to your Libertarian inner self.

hoffmang
06-25-2010, 9:28 PM
Jim,

Alito was referring to the second Justice Harland when he was talking about partial incorporation - which would be bad...

-Gene

1JimMarch
06-25-2010, 9:38 PM
I AM NOT A LAWYER!!!

My understanding of this stuff comes from personal discussions with Don Kates and other attorneys, and reading two key books covering the intersection between the 2A and 14A: Amar's book as mentioned and Stephen Halbrook's earlier book (1984) titled "That Every Man Be Armed". And some law review articles...this one rocks:

http://www.guncite.com/journals/cd-recon.html

Pay particular attention to the horrible snippets of southern laws passed right after the Civil War. That's the ghastly stuff the 14A was directly written to block.

(Halbrook and Amar found many...hell, most I think, of the same John Bingham quotes. Halbrook was dismissed in the legal community as an "NRA kook". But then Amar found the same thing about a decade later starting in some law review articles, and he's basically the 2nd most important constitutional law scholar in the nation behind his fellow lefty Lawrence Tribe, and Tribe backed Amar...well that's what gave PorI a chance. It's also these law review articles that led to Scalia's snarkiness in the McDonald orals.)

I read the major cases...Dred Scott, Ward v. Maryland, Slaughter-house, Cruikshank, etc.

Look, I'm an old techwriter from way back...I'm pretty good at bullet-pointing this stuff. I like writing in an informal thread like this because I can use a "loose" language style, I can "get funky" without an editor complaining :).

These days I mostly do election oversight/monitoring. I think that's actually a more important issue than the RKBA right now. I linked to a report on a Texas county in this thread...it's a freakshow. If you go into any California county elections HQ and ask to look at the central tabulator of votes, you'll find extra monitors pointed at the audience showing exactly what's there - mandated across the whole state by the California SecState's office. I like 'em. I should, the damn things cost me 18 hours locked up in the San Diego County jail. San Diego didn't have those, which violated our right to observe the election, they wouldn't move the systems closer to the window in the locked "secure" room like I asked, so I went in there to look (unarmed). They dropped all charges a week later, and by the next year the SecState's office mandated the extra transparency. I'm not trying to blow my own horn here but...I *am* quite serious about civil rights and I've been jailed projecting 'em. If it's necessary I'll take a page out of MLK's playbook again. I hope to God nothing worse is ever necessary.

Anyways. I've enjoyed this thread and will keep monitoring it. Over the weekend I think I'm going to package up key parts into a "prelude to McDonald decision" article, see if I can get it onto a decent-sized online source.

Meplat
06-25-2010, 9:56 PM
Funny. I have been working and praying for this sense I was 13 years old (50 years). This is it. This is the case I have prayed for, the definitive yes or no by SCOTUS. If yes, there is a chance to avoid the worst. If no, Clare Wolf said it best; "It's too late to work within the system, but too early to start shooting the bastards.":43:


I doubt many of us will be sleeping sunday night either. In fact, I think I'm just going to start drinking then. If we win, then I already have a good buzz started for the celebrations. If we lose then I'm properly stoked with courage to move on to the next stage, for the courts have permanently and irrevocably failed us. Trees and watering and whatnot, if you follow. :cool2:

Belt driven
06-25-2010, 9:57 PM
And we'll be waiting to read it! Rock on.

1JimMarch
06-25-2010, 10:03 PM
Gene: you MAY be right. Looking closer, it's somewhat hard to tell. But...then again, I'm not sure it matters on further review.

Obviously you've sent me scrambling almost all the way back to the drawing board. Almost terrified I'd made a major error (not at ALL impossible). But...while I think I made a mistake all right, I don't think it was major.

Now, I know it's dangerous as hell to cite Wikipedia as a source, but on long-established stuff like this they're generally OK. Plus I checked their most important source. Here's what Harlan II had to say about Due Process incorporation:

Due Process Clause

Justice Harlan advocated a broad interpretation of the Fourteenth Amendment's Due Process Clause. He subscribed to the doctrine that the clause not only provided procedural guarantees, but also protected a wide range of fundamental rights, including those that were not specifically mentioned in the text of the Constitution.[35] (See substantive due process.) However, as Justice Byron White noted in his dissenting opinion in Moore v. East Cleveland, "no one was more sensitive than Mr. Justice Harlan to any suggestion that his approach to the Due Process Clause would lead to judges 'roaming at large in the constitutional field.'"[36] Under Harlan's approach, judges would be limited in the Due Process area by "respect for the teachings of history, solid recognition of the basic values that underlie our society, and wise appreciation of the great roles that the doctrines of federalism and separation of powers have played in establishing and preserving American freedoms."[37]

Harlan set forth his interpretation in an often cited dissenting opinion to Poe v. Ullman,[38] which involved a challenge to a Connecticut law banning the use of contraceptives. The Supreme Court dismissed the case on technical grounds, holding that the case was not ripe for adjudication. Justice Harlan dissented from the dismissal, suggesting that the Court should have considered the merits of the case. Thereafter, he indicated his support for a broad view of the due process clause's reference to "liberty." He wrote, "This 'liberty' is not a series of isolated points *****ed out in terms of the taking of property; the freedom of speech, press, and religion; the right to keep and bear arms; the freedom from unreasonable searches and seizures; and so on. It is a rational continuum which, broadly speaking, includes a freedom from all substantial arbitrary impositions and purposeless restraints."[38] He suggested that the due process clause encompassed a right to privacy, and concluded that a prohibition on contraception violated this right.[39]

The same law was challenged again in Griswold v. Connecticut.[37] This time, the Supreme Court agreed to consider the case, and concluded that the law violated the Constitution. However, the decision was based not on the due process clause, but on the argument that a right to privacy was found in the "penumbras" of other provisions of the Bill of Rights. Justice Harlan concurred in the result, but criticized the Court for relying on the Bill of Rights in reaching its decision. "The Due Process Clause of the Fourteenth Amendment stands," he wrote, "on its own bottom."[37] The Supreme Court would later adopt Harlan's approach, relying on the due process clause rather than the penumbras of the Bill of Rights in right to privacy cases such as Roe v. Wade,[40] and Lawrence v. Texas.[41]

Harlan's interpretation of the Due Process Clause attracted the criticism of Justice Black, who rejected the idea that the Clause included a "substantive" component, considering this interpretation unjustifiably broad and historically unsound. The Supreme Court has agreed with Harlan, and has continued to apply the doctrine of substantive due process in a wide variety of cases.[4]

http://en.wikipedia.org/wiki/John_Marshall_Harlan_II#Due_Process_Clause

Jim again. I checked some sources; Harlan II's dissent in Poe v. Ullman seems to support this.

So...if I'm reading this right, Harlan II supported a seriously broad reading of the Due Process clause that would add up to exactly the same results as the Halbrook/Amar reading of the PorI clause based on studying the words of John Bingham and his supporters.

In other words, Justice Harlan II (career ending in 1971) would very likely have been a PorI guy if he'd had access to Amar's work...which didn't start until the early 1990s.

So...........wow, this stuff gets insanely confoosing for anybody. Gawd.

If Alito pens a decision that builds off of Harlan II's view of an expansive DP, then...hell, seems to me it won't be very different from PorI.

Wow. Just...wow.

Meplat
06-25-2010, 10:13 PM
Hell, if he's right I'll buy him a fifth of Wild Turky!:43:

:iagree::iagree::iagree:

I love what you write Jim but I'm afraid they are just beautiful dreams. Still, sometimes you've just got to give in to hope.

Run, Jim, run. Run free across the lonely desert. May your hooves never bleed!

You're inspirational and give comfort to many in this time of long anxious waiting.

If you're right, I'll buy you a beer.

thayne
06-25-2010, 10:17 PM
Gene: you MAY be right. Looking closer, it's somewhat hard to tell. But...then again, I'm not sure it matters on further review.

Obviously you've sent me scrambling almost all the way back to the drawing board. Almost terrified I'd made a major error (not at ALL impossible). But...while I think I made a mistake all right, I don't think it was major.

Now, I know it's dangerous as hell to cite Wikipedia as a source, but on long-established stuff like this they're generally OK. Plus I checked their most important source. Here's what Harlan II had to say about Due Process incorporation:



http://en.wikipedia.org/wiki/John_Marshall_Harlan_II#Due_Process_Clause

Jim again. I checked some sources; Harlan II's dissent in Poe v. Ullman seems to support this.

So...if I'm reading this right, Harlan II supported a seriously broad reading of the Due Process clause that would add up to exactly the same results as the Halbrook/Amar reading of the PorI clause based on studying the words of John Bingham and his supporters.

In other words, Justice Harlan II (career ending in 1971) would very likely have been a PorI guy if he'd had access to Amar's work...which didn't start until the early 1990s.

So...........wow, this stuff gets insanely confoosing for anybody. Gawd.

If Alito pens a decision that builds off of Harlan II's view of an expansive DP, then...hell, seems to me it won't be very different from PorI.

Wow. Just...wow.
Wait a minute. I just re-read what you posted on page one and to me judging by the context of what they were talking about it looks like the first Harlan. Didnts Clement specifically say "The first Harlan"?

1JimMarch
06-25-2010, 10:22 PM
Yeah. Clements did say that. But on further review as they say in the NFL, it looks like he was correcting Alito - Alito had said "let's go back to Harlan", then Clements said "well let's go back to the FIRST Harlan" - like Clements understood Alito to mean "Harlan II". It's like these guys were instinctively understanding which Harlan they were talking about, like they were talking in code or somedamnthing.

ARG!!!!

thayne
06-25-2010, 10:22 PM
oh wait, clement said maybe we should go back to the first harlan AFTER Alito siad the part about going back to harlan. Ugh! My heads going to explode! LOL

thayne
06-25-2010, 10:23 PM
Yeah. Clements did say that. But on further review as they say in the NFL, it looks like he was correcting Alito - Alito had said "let's go back to Harlan", then Clements said "well let's to back to the FIRST Harlan" - like Clements understood Alito to mean "Harlan II". It's like these guys were instinctively understanding which Harlan they were talking about, like they were talking in code or somedamnthing.

ARG!!!!

Looks like im following about 30 seconds behind you lol

Meplat
06-25-2010, 10:46 PM
In no way. It is actually a states rights setback.

Forgive me for asking (and not knowing the answer to) the obvious, but: how in the world does PorI help us in any way against federal corruption, except perhaps to the degree that it prevents the states from acting as part of the enforcement arm of that corruption (admittedly that is a noteworthy exception...)?

dantodd
06-25-2010, 11:07 PM
In no way. It is actually a states rights setback.

Regardless of whether the re-invigoration of the PorI clause helps or hurts "states' rights" unless you believe the constitution should be interpreted to push a political agenda then it is clear what the court "should" do.

For all those who consider themselves "originalists" there is no question that Slaughter-house was a grievous miscarriage based on the OI and OPM of the 14th amendment.

You may or may not like the political implications but the simple fact is that the 14th amendment was written to elevate the Privileges and Immunities of U.S. citizens above the "states' rights" of police power in attempting to infringe on those rights.

Anchors
06-25-2010, 11:54 PM
So I have a question.
Say this whole thing goes well.
Incorporation of 2A would definitely help us in CA.
But could it hurt gun rights as a whole (or in other places)?
If they decide we have a RKBA that shall not be infringed by the states, does that give them more sway in trying to interpret the extent of those rights?

I guess what I mean is.
Could they say,
"Yes you have the right to keep and bear arms, no matter what."
And then someday down the road have them agree to allow federal restrictions on what arms qualify? Like yes no state can tell you not to have a gun, but we agree with federal legislation (clinton-ban type bill) and it will stick harder than before.
Or somehow use it to regulate outside of interstate commerce clause by interpretation? Like possible against the several firearms freedom acts.

Disclaimer: This is not me trying to make a point or get you to think this way, this is an actual question that I would love if someone far more enlightened than I answered. I just got a B in PolSci so I'm not perfect on this stuff! :D ....:TFH:

advocatusdiaboli
06-26-2010, 12:05 AM
As we all feared but suppressed because we didn't want to admit it was completely beyond our control, the decision is completely and absolutely up to only SCOTUS and all our anticipatory rants and raves mean nothing--sound and fury signifying nothing on this world the stage and we merely players.

I'll still buy a bunch of ribs, pull those Cubans out of the humidor, and uncork that Scotch no matter how it goes. I'll either be toasting a bold and bright new beginning for California or the first big bucket of water showered over me to tell me I need to leave this state ASAP. Either way I'll enjoy some fine Scotch, some Habanos cigars, and some great smoked ribs with my own secret rub recipe shared with my family and friends. All in all, for free states, just another day but for those of us who live in purgatory, Hell will seem a bit closer and I'll pretend I am not burning...yet.

1JimMarch
06-26-2010, 2:19 AM
We're going to get incorporation regardless. OK? That's in the bag.

RyanAnchors,

So far MOST of the Bill Of Rights has been "selectively incorporated" (read as "selectively applied") to the states. Meaning, for example, that the states can't suppress your right to the religion of your choice. As long as "eating virgins" or the like isn't part of your religion, you're good to go.

Now, there's some people in state governments that will seriously say that this restricts their "rights". Seriously. They'll say the federal courts are basically forcing them to tolerate the presence of, say, a Wiccan coven opening up in their small town. Maybe there's Christian Conservatives that want to put up a pole and go fetch the firewood, ropes and gasoline. In that sense, yeah, the federal courts restrict the "rights" of "Christians" to revive the bad old days of Salem circa roughly 1650.

(No, I'm not gonna google the exact years of the Salem witch hunts. Deal with it. I think I'm ballpark close.)

Now, that sort of thing aside, for the most part this whole 14th Amendment "incorporation" thing has been a good thing. It's promoted civil rights, exactly as John Bingham planned it. Under NO circumstances has the 14th ever been used to put a "cap" on the amount of civil rights a state could respect. Instead it lays down a "floor"...a set of minimum standards.

That's how it's going to work on guns.

Over time, there will be a number of defined things state and local governments can't do to screw over gun owners. We can guess at some:

* Discretionary permit systems where people bribe their way into permit access are toast.

* Any "guns for the elite only" program is toast. This includes Chicago's system of arming politicians as "honorary cops".

* Per Heller, personal defense is part of what the 2nd Amendment means, and a mandatory-unloaded gun doesn't cut it for that purpose.

* Also per Heller, states can restrict or eliminate concealed carry ONLY so long as they respect open carry of loaded guns. See also the cases cited in Heller's footnote #9.

* We can own "commonly used weapons". No further definition of that term yet. BUT it would be damned peculiar bordering on impossible if that standard was allowed to vary from state to state. It will take time to work out the details across a few court cases, but I can assure you that in states like AZ standard semi-auto rifles with large-cap detachable mags are common as fleas...way too common to be declared "unusual".

* Gun access can't be deliberately priced out of range with monster taxes or permit fees. I predict some CCW fee structures will collapse on that basis.

Fyathyrio
06-26-2010, 3:25 AM
Jim,

In the first paragraph in your Due Process Clause quote box above concerning Justice Harlan, his description of DP sounds almost exactly like the argument Gura was using for PorI during the 3 minute rebuttal portion of the SC hearing. Are they really that similar or is this more of an interpretation change over time?

1JimMarch
06-26-2010, 3:32 AM
No...it really appears Harlan II had a very funky view of the DP. That way beyond just the BoR, it covers all kids of civil liberties stuff.

But he also hated the PorI clause. I dunno, it's as if his PorI-lovin' grandad was a pedo or something and Harlan II had "issues" left over BUT shared gramp's basic overview on civil rights. It's downright weird.

But again, seriously now, Harlan II didn't have access to Amar's scholarship. At that point the prevailing view on John Bingham was that he was a muddled nutcase who had no idea what he was doing. That's literally what the "scholarship" of the time said.

Mulay El Raisuli
06-26-2010, 6:57 AM
This is one of the topics where I feel the most conflicted: I truly abhor the smell of tobacco smoke (though I'm not allergic to it), and thus I've been delighted by the ban on smoking in restaurants and bars that I may choose to patronize. On the other hand, my inner libertarian cringes at the thought of telling other people what to do beyond the occasional "leave me the **** alone". I have not yet come up with a suitable solution to the conflict between my extreme dislike of excessive authoritarianism and my visceral desire to turn a fire hose on nearby smokers who are upwind of me. I enjoy the largely tobacco-smoke-free environment that has been created in CA's public places, and I feel a bit guilty about it at the same time.


You should feel guilty. While I understand the desire to have a smoke-free dining experience, The State simply has no right to dictate to a restaurant/bar owner what sort of LEGAL conduct is allowable.


The Raisuli

PatriotnMore
06-26-2010, 7:03 AM
You should feel guilty. While I understand the desire to have a smoke-free dining experience, The State simply has no right to dictate to a restaurant/bar owner what sort of LEGAL conduct is allowable.
The Raisuli

Nor the individual. Freedom loving people, should very much be against laws such as these. Also, taxes which are sin, or other clever names designed to target one group over another.

motoguy1
06-26-2010, 7:20 AM
Please stop. The gay marriage debate has no place in a 2A discussion forum. There's an off-topic lounge on this site. That's a good place for you guys to take this discussion.

Thank you.

motoguy1
06-26-2010, 7:30 AM
Wow. GREAT read! Thank you for putting this up. I linked to this discussion through a topic on AR15.com. I agree it's all rather moot, as we'll know the outcome in a couple of days, but still...I always appreciate the opportunity to educate myself, and other's willingness to assist.

hoffmang
06-26-2010, 8:46 AM
Jim,

I'm stealing this from a law prof and may not have his permission to post his full analysis, but this was his reaction to your analysis:


I took Alito's mention of "the right to contract" to be an expression of the familiar Lochner-fear that appeared to be why the Justices were so resistant to reviving the P or I Clause. I.e., Alito was saying, "But if we overrule Slaughter-House, then the right to contract will obviously qualify as a protected, unenumerated privilege or immunity, won't it?" Which it would; but for the Justices that appeared to be a reason not to revive P or I.

In the second comment, Alito was clearly referring to the *second* Justice Harlan, who was the most prominent foe of total incorporation of the Bill of Rights in the 1960s. Harlan thought that some of the rights in the Bill of Rights might apply in full strength against the federal government, but only in a lesser or partial form, via the due process clause, against the states. (E.g., in federal prosecutions, illegal searches would be governed by the Fourth Amendment's exclusionary rule, but the states would only need to have *some* kind of remedy for unreasonable search and seizure.) That's the position Stevens and the other left-leaning Justices were trying to push in the McDonald oral argument, with respect to the Second Amendment.

-Gene

hvengel
06-26-2010, 9:58 AM
...
That case was a moral travesty: it said that blacks in the US had never had any normal civil rights, and that the US had always been a racist nation prior (sadly true) and that therefore racist laws were OK.

Sigh.


I think there is historical evidence that "...the US had always been a racist nation.." is not a correct assertion. There have always been groups and places where racism was and in some cases still is common. Certain southern states at certain time periods for example (1820s through the 1960s) were rife with wide spread racism. But there is also significant historical evidence that the period leading up to and following the founding was a period were racism was not widely practiced in much of the US (again there were exceptions just like there are still racists around today).

Like Jim I also thought that racism was wide spread in the founding era but I learned that this was not the case yesterday while watching the Glenn Beck show. On Fridays his show is now the Founders Friday show where he has guests on (usually history professors) that talk about the founding and the founders. The reason that Glenn is doing these shows is to expose people to aspects of our history that have been expunged from our history books and schools. This Friday was the second Black Founders show and the extent of racism (rather the lack of racism) during the founding period was one of the things that was talked about at some length during the show.

If any of you did not see this broadcast you should send the time to do so. I learned a bunch of stuff that directly contradicted what I thought was true about race relations in the founding era. The show supported this by citing source materials from that period. In any case the progressives want us to believe that "...the US had always been a racist nation.." because it feeds into and supports the victim hood narrative that they use to divide us and keep us fighting each other so that we will not notice what they are doing to our republic. We should learn our true history and stop repeating their lies since this only makes those who would destroy the republic stronger.

I am not trying to impune Jim's motives but rather this is an indictment of his education and of the educational system since he was clearly getting incorrect information about what race relations were like early in our history. I know I was astonished with what I learned yesterday about this subject and I am convinced that the vast majority of us have lots of historical "facts" in our heads that we learned in school that are simply contrary to what actually happened.

Hal

CaliforniaLiberal
06-26-2010, 10:18 AM
I think there is historical evidence that "...the US had always been a racist nation.." is not a correct assertion. There have always been groups and places where racism was and in some cases still is common. Certain southern states at certain time periods for example (1820s through the 1960s) were rife with wide spread racism. But there is also significant historical evidence that the period leading up to and following the founding was a period were racism was not widely practiced in much of the US (again there were exceptions just like there are still racists around today).

Hal

Was there explanation of how slavery was not racist? Were not free Black men the exception rather than the rule around the time of the founding of our nation?

In what ways were southern states not racist before 1820? (Or after 1960 for that matter?)

I wasn't able to catch the program and just thought I'd ask.

hoffmang
06-26-2010, 10:21 AM
Like Jim I also thought that racism was wide spread in the founding era but I learned that this was not the case yesterday while watching the Glenn Beck show. On Fridays his show is now the Founders Friday show where he has guests on (usually history professors) that talk about the founding and the founders. The reason that Glenn is doing these shows is to expose people to aspects of our history that have been expunged from our history books and schools. This Friday was the second Black Founders show and the extent of racism (rather the lack of racism) during the founding period was one of the things that was talked about at some length during the show.


Do you consider the ownership of only people of one race not racism? There is a lot of counter-intuitive historical issues, but the fact that Washington and Jefferson owned slaves (and thus had to hold them morally inferior or they were directly contradicting their own writing) kind of points out pretty rampant and widespread racism.

It's racist to turn a blind eye to direct racists terrorizing and murdering people simply due to their race. How else does one explain the suppression of slave rebellions (http://en.wikipedia.org/wiki/Nat_Turner%27s_slave_rebellion) or the Colfax massacre (http://en.wikipedia.org/wiki/Colfax_massacre)?

-Gene

1JimMarch
06-26-2010, 11:41 AM
Wait, Gene, what hvengel is discussing is racism in the early republic - call it "1776-1810" or so. That's different from the freakshow things turned into post-civil-war, 1865-1940ish. The latter was in many ways far worse.

hvengel: GO READ DRED SCOTT. They didn't just make that assertion...they proved it. The Dred Scott decision cites to a number of truly nasty evil laws in the early republic period, including laws from Northern states. I didn't get that tidbit from "public education", I got it from reading Dred Scott.

dustoff31
06-26-2010, 11:56 AM
If any of you did not see this broadcast you should send the time to do so. I learned a bunch of stuff that directly contradicted what I thought was true about race relations in the founding era. The show supported this by citing source materials from that period. In any case the progressives want us to believe that "...the US had always been a racist nation.." because it feeds into and supports the victim hood narrative that they use to divide us and keep us fighting each other so that we will not notice what they are doing to our republic. We should learn our true history and stop repeating their lies since this only makes those who would destroy the republic stronger.

Hal

I saw the show as well and agree with you in recommending it to all.

But I did get a bit of a different take on it than you did. Back then, no matter what color you were, if you were a free man you were a free man, on equal standing with and having all the responsibilities of any other citizen, and you were treated accordingly. On the other hand, if you were a slave, well, it sucks to be you. That's just the way it is.

So I don't know that it could be said that the country was not racist, but I'd agree that status appears to have been more important than race.

ScottB
06-26-2010, 12:11 PM
"Racism" has got to be one of the most misused words in the English language.

Traditionally, racism, strictly defined, referred to a political or legal system (like any other "ism") that held one race superior to another and granted differential rights to each group on the basis of race. It has come to be the word used in place of "bigotry", "prejudice and "racial discrimination"

By that definition, the United States was a racist nation before, during and after its founding. Also, by that definition, because of a variety of Amendments, Acts, laws and litigation, we are no longer a racist nation; although clearly prejudice, discrimination and bigotry are still common.

Words have meaning and it drives me up a wall when they are misused out of ignorance or because someone wants to play games with truth . Beck has an interesting show but it's entertainment and he only stays on so long as he is provocative. If he says something interesting, don't take it as gospel, but rather as an inspiration to research the idea via more credible sources.

bulgron
06-26-2010, 12:14 PM
Does anyone have a link to the Glenn Beck episode in question?

hvengel
06-26-2010, 12:16 PM
Of course black slavery was racist. Notice in my comments that I said that racism was not all pervasive at the time of the founding not that it didn't exist and I specifically say that it did exist in the south during that time.

In contrast there were places (particularly in non-slave states) that were actively working to over turn slavery and where blacks were treated as equals. For example shortly after Briton passed it's anti-slave trade laws (1772) several states passed laws that made slavery (not just the slave trade) against the law going even farther than British law. King George promptly vetoed all of these laws. But it is clear that there were states where the vast majority were not racist and that were passing laws designed to limit or eliminate slavery and to deal with race the were "liberal" in the classical sense even by current standards.

In addition it is clear the the Constitution was an anti-slavery document. Even Frederick Douglass said so in no uncertain terms. The intention of the founders was to end slavery 20 years after the founding. I know this sounds bad but it was a compromise that was intended to get all 13 states in the union (IE. to prevent the slave states from forming a separate union and continuing slavery forever) so that slavery would eventually be ended. If things had gone as the founders had intended slavery would have ended Jan 1 1808*. This was scuttled by racists primarily from the slave states who prevented this from being implemented. If the country as a whole were racist that would have been the end of it. But this set off a huge struggle that resulted in the civil war in which literally hundreds of thousands of white solders died to free the black slaves. This speaks volumes about how much most Americans valued freedom and how race was not an issue for many of these folks. For them it was important that everyone be free regardless of race and it was so important that they were willing to die for that cause even if the people they were freeing were black (clearly not a racist mind set).

In addition there were many free blacks in the non-slave states at the time of the founding. For the most part they were treated as equals perhaps even more so than blacks are today. The first person killed in the revolution was a free black militiamen and many free blacks fought in the revolution side by side with the white militiamen in de-segraged units. Also the military in this country was de-segraged from before the founding until sometime in the 1820s and was de-segraged again after the civil war only to be segregated again by Woodrow Wilson - a "liberal" Democrat.

"In what ways were southern states not racist before 1820? (Or after 1960 for that matter?)"

Again I didn't say they were not racist I was speaking to the degree of racism. After all this is not like a switch (were the only values are on and off) when you are talking about the population as a whole since at any given moment, even today even in a liberal area like the Bay Area, there will be individuals who are at either end of the spectrum and everything in between. It is this mix (IE. the average degree of racism) that I was speaking about.

At the time of the founding only three states said they would refuse to join the union if slavery was not allowed. The other slavery states said that would free their slaves and join the union. But the founders wanted to end slavery in north America so they compromised and allowed for slavery to be phased out over a 20 year period. By the time the 20 years was up all of the slave states were working to make slavery a permanent institution. In the 1780s there were many whites in the slave states that were willing to end slavery and who were at least less racist. But this changed over the next 20 to 30 years and by 1820 just about every white in the south was at least somewhat racist and the many (if not a majority) were extreme racists. In other words the intensity of the racism had increase greatly during the years after the founding in the south.

In general terms the level of racism in the south has declined since the 1960s and it will likely continue to do so as time passes. I know many southerners who are not in the least racist. Many of these grew up after the 1950s and have told me that there is a definite generational shift in attitudes about race. That is those who are older are likely racist but keep it to themselves since they know it is not acceptable to express it and those who are younger have for the most part put race as an issue behind them.

Again yesterdays Glenn Beck show has lots of details about this and I am sure that most here will learn something if they watch it. In addition, the show includes the titles for a number of books on the subject so that you can read more about it. I also recommend the first Black Founders program that Glenn did if you have not seen it. In the audiences for both shows were many blacks and during the shows Glenn asks the audience if they knew about these things and perhaps 2 or 3 out of 40 or 50 raised their hands. So even among blacks this history has not been taught.

Hal

* Note that we intended to eliminate slavery at the time of the founding and it was not until almost 20 years later in 1807 that Briton outlawed slavery.

hvengel
06-26-2010, 12:39 PM
Try this:

http://video.foxnews.com/v/4256317/black-heroes-in-american-history

The above is the first 14 minutes of the show but I can/t find the rest. It might also be rerun today and.or tomorrow.

corrupt
06-26-2010, 12:39 PM
You guys should get your minds off Chicago and McDonald and SCOTUS for a few days and maybe take a walk. I know you're all excited, but come on, we're talking about racism now? I think perhaps we've analyzed things a little too much now ;)

NightOwl
06-26-2010, 12:53 PM
In the second comment, Alito was clearly referring to the *second* Justice Harlan, who was the most prominent foe of total incorporation of the Bill of Rights in the 1960s. Harlan thought that some of the rights in the Bill of Rights might apply in full strength against the federal government, but only in a lesser or partial form, via the due process clause, against the states. (E.g., in federal prosecutions, illegal searches would be governed by the Fourth Amendment's exclusionary rule, but the states would only need to have *some* kind of remedy for unreasonable search and seizure.) That's the position Stevens and the other left-leaning Justices were trying to push in the McDonald oral argument, with respect to the Second Amendment.

I don't understand the reasoning behind the "left-leaing Justices" trying something like that with the 2nd. How can a watered down version of the 2nd apply with the shall not be infringed text? I don't understand how they can try to limit the 2nd in that way in light of how the 2nd is written...but it scares me. I was hoping for the words "fundamental" and "strict scrutiny" in this decision (I know, probably asking for a bit much, but even so), now I'm deeply concerned.

hoffmang
06-26-2010, 12:56 PM
You guys should get your minds off Chicago and McDonald and SCOTUS for a few days and maybe take a walk. I know you're all excited, but come on, we're talking about racism now? I think perhaps we've analyzed things a little too much now ;)

Racism is quite on point regarding McDonald. The reason state were bound by the 14A was to stop defacto racism. The reasons states generally implemented gun control initially was to disarm their local minorities (blacks in the east, hispanics and chinese in Texas and California.)

Jim - there were plenty of slave uprisings put down in the 1700's including one in 1741 in New York (http://en.wikipedia.org/wiki/New_York_Conspiracy_of_1741). There were then two in Virginia just after 1800.

-Gene

jdberger
06-26-2010, 1:05 PM
Jim - there were plenty of slave uprisings put down in the 1700's including one in 1741 in New York. There were then two in Virginia just after 1800.

However, putting down a slave uprising isn't necessarily an indicator of racism.

1JimMarch
06-26-2010, 1:06 PM
Right...there were no racist laws in the northern states in the early Republic.

Yeah...y'all can keep right on believing that.

But sadly, the Supremes in Dred Scott got that part "right" (again, this is legally factual but morally horrendous):

--------

Thus, Massachusetts, in 1786, passed a law similar to the colonial one of which we have spoken. The law of 1786, like the law of 1705, forbids the marriage of any white person with any negro, Indian, or mulatto, and inflicts a penalty of fifty pounds upon any one who shall join them in marriage; and declares all such marriage absolutely null and void, and degrades thus the unhappy issue of the marriage by fixing upon it the stain of bastardy. And this mark of degradation was renewed, and again impressed upon the race, in the careful and deliberate preparation of their revised code published in 1836. This code forbids any person from joining in marriage any white person with any Indian, negro, or mulatto, and subjects the party who shall offend in this respect, to imprisonment, not exceeding six months, in the common jail, or to hard labor, and to a fine of not less than fifty nor more than two hundred dollars; and, like the law of 1786, it declares the marriage to be absolutely null and void. It will be seen that the punishment is increased by the code upon the person who shall marry them, by adding imprisonment to a pecuniary penalty.

So, too, in Connecticut. We refer more particularly to the legislation of this State, because it was not only among the first to put an end to slavery within its own territory, but was the first to fix a mark of reprobation upon the African slave trade. The law last mentioned was passed in October, 1788, about nine months after the State had ratified and adopted the present Constitution of the United States; and by that law it prohibited its own citizens, under severe penalties, from engaging in the trade, and declared all policies of insurance on the vessel or cargo made in the State to be null and void. But, up to the time of the adoption of the Constitution, there is nothing in the legislation of the State indicating any change of opinion as to the relative rights and position of the white and black races in this country, or indicating that it meant to place the latter, when free, upon a level with its citizens. And certainly nothing which would have led the slaveholding States to suppose, that Connecticut designed to claim for them, under [60 U.S. 393, 414] the new Constitution, the equal rights and privileges and rank of citizens in every other State.

The first step taken by Connecticut upon this subject was as early as 1774, wen it passed an act forbidding the further importation of slaves into the State. But the section containing the prohibition is introduced by the following preamble:

'And whereas the increase of slaves in this State is injurious to the poor, and inconvenient.'
This recital would appear to have been carefully introduced, in order to prevent any misunderstanding of the motive which induced the Legislature to pass the law, and places it distinctly upon the interest and convenience of the white population-excluding the inference that it might have been intended in any degree for the benefit of the other.

And in the act of 1784, by which the issue of slaves, born after the time therein mentioned, were to be free at a certain age, the section is again introduced by a preamble assigning a similar motive for the act. It is in these words:

'Whereas sound policy requires that the abolition of slavery should be effected as soon as may be consistent with the rights of individuals, and the public safety and welfare'-showing that the right of property in the master was to be protected, and that the measure was one of policy, and to prevent the injury and inconvenience, to the whites, of a slave population in the State.
And still further pursuing its legislation, we find that in the same statute passed in 1774, which prohibited the further importation of slaves into the State, there is also a provision by which any negro, Indian, or mulatto servant, who was found wandering out of the town or place to which he belonged, without a written pass such as is therein described, was made liable to be seized by any one, and taken before the next authority to be examined and delivered up to his master-who was required to pay the charge which had accrued thereby. And a subsequent section of the same law provides, that if any free negro shall travel without such pass, and shall be stopped, seized, or taken up, he shall pay all charges arising thereby. And this law was in full operation when the Constitution of the United States was adopted, and was not repealed till 1797. So that up to that time free negroes and mulattoes were associated with servants and slaves in the police regulations established by the laws of the State.

And again, in 1833, Connecticut passed another law, which made it penal to set up or establish any school in that State for the instruction of persons of the African race not inhabitants of the State, or to instruct or teach in any such school or [60 U.S. 393, 415] institution, or board or harbor for that purpose, any such person, without the previous consent in writing of the civil authority of the town in which such school or institution might be.

And it appears by the case of Crandall v. The State, reported in 10 Conn. Rep., 340, that upon an information filed against Prudence Crandall for a violation of this law, one of the points raised in the defence was, that the law was a violation of the Constitution of the United States; and that the persons instructed, although of the African race, were citizens of other States, and therefore entitled to the rights and privileges of citizens in the State of Connecticut. But Chief Justice Dagget, before whom the case was tried, held, that persons of that description were not citizens of a State, within the meaning of the word citizen in the Constitution of the United States, and were not therefore entitled to the privileges and immunities of citizens in other States.

The case was carried up to the Supreme Court of Errors of the State, and the question fully argued there. But the case went off upon another point, and no opinion was expressed on this question.

We have made this particular examination into the legislative and judicial action of Connecticut, because, from the early hostility it displayed to the slave trade on the coast of Africa, we may expect to find the laws of that State as lenient and favorable to the subject race as those of any other State in the Union; and if we find that at the time the Constitution was adopted, they were not even there raised to the rank of citizens, but were still held and treated as property, and the laws relating to them passed with reference altogether to the interest and convenience of the white race, we shall hardly find them elevated to a higher rank anywhere else.

A brief notice of the laws of two other States, and we shall pass on to other considerations.

By the laws of New Hampshire, collected and finally passed in 1815, no one was permitted to be enrolled in the militia of the State, but free white citizens; and the same provision is found in a subsequent collection of the laws, made in 1855. Nothing could more strongly mark the entire repudiation of the African race. The alien is excluded, because, being born in a foreign country, he cannot be a member of the community until he is naturalized. But why are the African race, born in the State, not permitted to share in one of the highest duties of the citizen? The answer is obvious; he is not, by the institutions and laws of the State, numbered among its people. He forms no part of the sovereignty of the State, and is not therefore called on to uphold and defend it. [60 U.S. 393, 416] Again, in 1822, Rhode Island, in its revised code, passed a law forbidding persons who were authorized to join persons in marriage, from joining in marriage any white person with any negro, Indian, or mulatto, under the penalty of two hundred dollars, and declaring all such marriages absolutely null and void; and the same law was again re-enacted in its revised code of 1844. So that, down to the last-mentioned period, the strongest mark of inferiority and degradation was fastened upon the African race in that State.

It would be impossible to enumerate and compress in the space usually allotted to an opinion of a court, the various laws, marking the condition of this race, which were passed from time to time after the Revolution, and before and since the adoption of the Constitution of the United States. In addition to those already referred to, it is sufficient to say, that Chancellor Kent, whose accuracy and research no one will question, states in the sixth edition of his Commentaries, (published in 1848, 2 vol., 258, note b,) that in no part of the country except Maine, did the African race, in point of fact, participate equally with the whites in the exercise of civil and political rights.

ScottB
06-26-2010, 1:16 PM
However, putting down a slave uprising isn't necessarily an indicator of racism.

No, but the mere fact that slaves existed is the definitive indicator of racism.

Why is this hard?

GuyW
06-26-2010, 1:36 PM
...the fact that Washington and Jefferson owned slaves (and thus had to hold them morally inferior or they were directly contradicting their own writing) kind of points out pretty rampant and widespread racism.


Historically, slavery was a common result of conquest in war, not necessarily a statement about moral inferiority...
.

jdberger
06-26-2010, 1:37 PM
No, but the mere fact that slaves existed is the definitive indicator of racism.

Why is this hard?

No - the fact that the slaves were almost exclusively black is. ;)

Gray Peterson
06-26-2010, 1:46 PM
Before anyone says "Well this topic about racism is off-topic", it's not. It is one of the biggest reasons the 14th amendment was passed.

The use of the term "race" is problematic in of itself. Edward James Olmos, in a symposium at the United Nations discussing the re-imagining of the Battlestar Galactica series (which had just ended). He went into character as of the last sentence or two as Admiral Adama, but this is one of the most telling statements I have seen:

I still find it incredible that we still use the term race as a cultural determinant. To this day—you should have never invited me here because I detest what we’ve done to ourselves out of a need to make ourselves different from one another—we’ve made the word race a way of expressing culture.

There’s no such thing and all you high school students bless your heart for being here. You are a hundred champions right now that are going to go out understanding this. The adults in the room will never understand it. Even though they’ll nod their heads and say you’re right they’ll never be able to stop using the word race as a cultural determinant.

I just heard one of the most prolific statements done by one of the great humanitarians. He’s really trying to organize and bring us all together and he used the word race as if there is a Latino race, an Asian race, Indigenous race, Caucasian race or a Latino race.

There is no such thing as a Latino race, there never has been, there never has been. There never will be. There is only one race and that is what the show brought out. That is the human race period.

Now the pressure comes, why did we start to use the word race as a cultural determinant? The truth is that over six hundred years ago the Caucasian "race" decided to use it as a cultural determinant so it would be easier for them to kill another culture. That was the total understanding, to kill one culture from another culture. You couldn’t kill your own race so you had to make them the “other” and you to this day—I’ve spent thirty-seven years of my adult life trying to get this word out and now I am done and well prepared as the admiral of the Battlestar Galactica to say it to all of you—there is but one race. That is it.



Anti-miscegenation and laws against interracial marriage were based on the incorrect belief that people other than whites were not even human beings. I believe in what Olmos is saying about using the term of "another race", but I'm somewhere between the adults who will never change and todays high school students. On top of this, "race" is now stated in our constitution.

This particular Glenn Beck show is filled with falsehoods and white washing of american history, and Dred Scott v. Sanford stated that even freed blacks had no rights. The states could order their re-enslavement at any time with no recourse.

Historically, slavery was a common result of conquest in war, not necessarily a statement about moral inferiority...
.

Perhaps during the era of the Romans, Greeks, and before, but this was not the case with form of slavery done by the European colonial powers.

Meplat
06-26-2010, 2:03 PM
I'm sure there are plenty of folks willing to help!:cool:


I have two full cases of beer left over from my wife's birthday party (Sierra Nevada Summerfest and Fat Tire), plus a half bottle of Johnnie Walker Black Label, and I'm thinking about running out and getting a bottle of 16 year old Tomintoul just to have a celebratory drink on Monday night as I'm reading McDonald.

No way will I consume all of that in one weekend, but I'll certainly try to put some kind of a dent in it. :D

Meplat
06-26-2010, 2:13 PM
I think it's unfortunate that to go PorI, we must delve into a moral gray area with many other issues. If it wasnt for selling my soul in choosing gun rights over my morals, i'd vote for PorI all the way. As it is, i'd rather it go DP, retaining my RKBA rights while leave my soul intact.

These judges are not stupid: They know the implications of going PorI. The conservatives will surely want to go the route of DP to avoid opening the gay marriage and MJ issues, amongst a plethora of others. PorI would be great in some ways, but there are a few things where it would support issues that I just cannot stand for.

Take not lightly liberty

To have it you must live it

And like love, don't you see

To keep it you must give it


But it's not up to me so it doesn't even matter what I think ;)


Jim, thank you for your posts.....they were most helpful in easily understanding the differences in PorI and DP.:):)

Meplat
06-26-2010, 2:26 PM
Equal protection will probably do that anyway. It's why Gitmo exists.:43:

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.

Might it be that a PorI basis might limit 2A to citizens while a DP basis would include illegal aliens. A constitutional right for the arming of illegal aliens might be a political bump-in-the-road, don't you thnk?

FreshTapCoke
06-26-2010, 2:38 PM
"I’ve spent thirty-seven years of my adult life trying to get this word out and now I am done and well prepared as the admiral of the Battlestar Galactica to say it to all of you—there is but one race. That is it." -Edward James Olmos


Sadly, we will all be able to purchase and own machine guns, grenade launchers, flying cars, unicorns, etc. before people realize this.

7x57
06-26-2010, 3:06 PM
This looks mostly like the same P&I cesspool that makes me avoid quite a bit of the Calguns chit-chat these days, but I suppose I haven't posted a philosophical rant for some time.

It must be understood that slavery on the ancient model was philosophically impossible within the worldview of the American colonists. Aristotle held that some men were slaves by nature (though others were made slaves by circumstance), and a culture that believes this, ironically, suffers less moral damage from the institution. It is also congenial in a situation where so many slaves were ethnically and culturally indistinguishable from their owners.

The kind of worldview that produced the Declaration of Independence foreclosed Aristotle's answer, and that produced an internal contradiction (of which I believe Jefferson and many others were quite well aware), because a theoretical mental or emotional inferiority (which they certainly did believe) could *not* be used to infer a moral inferiority. That's what Jefferson invokes in shorthand when he identifies God as the source of human rights--unlike today, no education person at that time could fail to understand, at least intuitively, that he is connecting Paul's rules for the church, in which there is neither Jew nor Greek, slave nor free, with the legal order protected by the Constitution. This isn't a legal problem, as legal protection wasn't extended, but it is an enormous philosophical problem, because it means there is no good justification for not extending legal protection. It builds in a contradiction which cannot be resolved without giving up either the concept of transcendent human rights or slave labor. That contradiction inflicts moral damage on anyone who attempts to simultaneously hold a belief in transcendent rights and also title deed to another human being.

One of the primary ways to attempt to avoid the contradiction is to amplify Aristotle's solution. Aristotle held some humans morally fit for slavery, but he (as representing the classical world) never denied their humanity so far as I have seen. But human rights apply only to humans, and so if one holds slaves to not be men then they do not possess the rights of man. This, amplified by the peculiar feature of the slaves having been all imported and therefore ethnically and culturally alien to the colonists, is what made slavery in the colonies so morally damaging. It required dehumanization. This line of thought continues unbroken through what I call the Janus face of the slave (one of which is a child and the other of which is a beast) to the terror of the freed slaves (meaning, philosophically, beasts in the philosophy of the slaveowner) having arms, Cruikshank, and post-civil war American gun control.

This is why I often repeat that philosophy matters. In some sense, it is the only thing that matters, because it controls much of human behavior and therefore history.

Anyway, the point is that there are many things that can reasonably be termed "racist." To understand American history, one must distinguish them. There is the view that some men are intellectually and legally incompetent, which we see in theories (as late as WWII, I'm not sure about Korea but I suspect it has lost importance by Vietnam) that black soldiers will not fight (gun owners should see the connection between military service and competency, derived as it is from the idea that the free citizen is one who will fight for his country). While this is certainly obnoxious, it does not require dehumanization. It is also, very significantly, falsifiable. When antebellum black men managed to acquire enough education to stand up and say in literate English that *this* document says I should be free, and *this* philosophy says I possess the rights of a man and am anyone's *moral* equal regardless of whether you think I am your equal *in ability*, what is going on is that they are demonstrating the falsehood empirically.

Since that *is* a racial theory, and it seems to have been almost universal at the time of the revolution, I can't see how you can say that "racism," any flavor, is not ubiquitous at that time. That seems not to pass the laugh test.

But the most dangerous idea is the one that says "that slave is not a man at all." That idea I think was present from the beginning (I believe there were early plantations that literally treated the slaves as animals) but grew in importance, because of the philosophical imperative. Certainly there was a time when there were free black slaveowners in the colonies (I don't recall a reference, though). Pretty few, so far as I can tell, but the existence of even one is significant--it means that pure dehumanization is not the driving philosophical paradigm everywhere. Things get worse philosophically as the colonists attempt to reconcile transcendent rights with slavery. But I think it is never monolithic and completely homogenized--there were strange cases of slaves who preached to congregations with free white men, for example, which tends to blow enormous holes in most simple pictures of American slavery.

My main point is that "racism" isn't a simple one-dimensional scale, the nature of racism in the colonies is complex and does not admit one sentence summaries, and if one insists on simplicity then one would do better to give up the subject entirely.

And maybe, once more, that philosophy matters.

7x57

jl123
06-26-2010, 3:07 PM
Alright......Sunday night I'll be drinking......see you all in chat. Let's put it to use!

jl123
06-26-2010, 3:13 PM
7x57
Wow....I'm going to need to reread when I'm not half asleep.

JimWest
06-26-2010, 3:20 PM
...And maybe, once more, that philosophy matters.
7x57

Nah, only swords mattered in Aristotle's time. Guns now. That's all.
I'll have to read the previous part of your epistle when I get insomnia.

Anchors
06-27-2010, 12:12 AM
I would agree with you here, that marriage should be left to the churches, and have the state recognize the contract between 2 consenting adults. This is pretty close to what we have here in Ca already though, homesexuals can get a civil union that has ALL of the legal benefits of marriage, but without calling it marriage.

I believe "marriage" has transcended it's basis in religion.
It is a part of our government now, which as you know is theoretically independent of religion (emphasis on theoretically).
Marriage is now a part of life for almost all Americans, regardless of race, sex, religious beliefs, etc.
I believe denying homosexuals marriage is a practice rooted in hate.
Just like a couple of different racial backgrounds could not marry legally at one time.
I don't believe in god, so does that mean I should also only be allowed to get a civil union? I completely reject the bible, jesus, and all religions from a stand point that they are not logical to me (though I respect people's right to believe what they wish if it makes them happy.) So would I still be denied marriage since I don't fit the religious definition? No, I could get married tomorrow. And therefore I think anyone should be able to be married.
No one says your church has to allow homosexuals to be wed there. Just that they enjoy the same benefits under the law that all Americans are entitled to and not have to be segregated into a group of people with "civil unions". Marriage is the civil union.
But again, I believe you are entitled to your opinions and beliefs in opposition to mine. That's what makes this country great.

We're going to get incorporation regardless. OK? That's in the bag.

RyanAnchors,

So far MOST of the Bill Of Rights has been "selectively incorporated" (read as "selectively applied") to the states. Meaning, for example, that the states can't suppress your right to the religion of your choice. As long as "eating virgins" or the like isn't part of your religion, you're good to go.

Now, there's some people in state governments that will seriously say that this restricts their "rights". Seriously. They'll say the federal courts are basically forcing them to tolerate the presence of, say, a Wiccan coven opening up in their small town. Maybe there's Christian Conservatives that want to put up a pole and go fetch the firewood, ropes and gasoline. In that sense, yeah, the federal courts restrict the "rights" of "Christians" to revive the bad old days of Salem circa roughly 1650.

(No, I'm not gonna google the exact years of the Salem witch hunts. Deal with it. I think I'm ballpark close.)

Now, that sort of thing aside, for the most part this whole 14th Amendment "incorporation" thing has been a good thing. It's promoted civil rights, exactly as John Bingham planned it. Under NO circumstances has the 14th ever been used to put a "cap" on the amount of civil rights a state could respect. Instead it lays down a "floor"...a set of minimum standards.

That's how it's going to work on guns.

Over time, there will be a number of defined things state and local governments can't do to screw over gun owners. We can guess at some:

* Discretionary permit systems where people bribe their way into permit access are toast.

* Any "guns for the elite only" program is toast. This includes Chicago's system of arming politicians as "honorary cops".

* Per Heller, personal defense is part of what the 2nd Amendment means, and a mandatory-unloaded gun doesn't cut it for that purpose.

* Also per Heller, states can restrict or eliminate concealed carry ONLY so long as they respect open carry of loaded guns. See also the cases cited in Heller's footnote #9.

* We can own "commonly used weapons". No further definition of that term yet. BUT it would be damned peculiar bordering on impossible if that standard was allowed to vary from state to state. It will take time to work out the details across a few court cases, but I can assure you that in states like AZ standard semi-auto rifles with large-cap detachable mags are common as fleas...way too common to be declared "unusual".

* Gun access can't be deliberately priced out of range with monster taxes or permit fees. I predict some CCW fee structures will collapse on that basis.

Yeah I understand most of that, but thank you for laying down specific things it might change.
The language of "Commonly used weapons" kind of scares me. Isn't there a similar phrase they used in the '94 AWB text? "Weapons with no sporting purposes" and by there definition, target shooting with an AR wasn't a sporting purpose.
I don't know, I realize even if that were the case it's still a huge step forward and that it's unlikely we will see another federal AWB anytime soon.
Just freaks me out.
Maybe I'm just spreading FUD in my own head haha.
Thanks for the in depth reply though, this thread is great.

dantodd
06-27-2010, 12:30 AM
marriage should be left to the churches, and have the state recognize the contract between 2 consenting adults.

I understand limiting marriage to consenting adults but why only 2?

monkeshine
06-27-2010, 1:58 AM
[QUOTE=1JimMarch;4511699]not unless Ginsburg switches sides from her Heller stance. Are you relying on THAT!? That's crazier than what I've constructed in this thread.[/QUOTE

Why is that crazy? OK she voted against Heller but Heller is the law. Where does she stand on stare decisis? Is she really going to say that 2A only applies in DC? Because that is basically what you are saying she will do.

I know it is a long way from the conventional wisdom around here, but we could get a 7-2 decision in our favor if Ginsberg and Stevens both decide that they don't want to make a mockery of the court's very recent precedent. The principle of stare decisis would dictate that the court vote for PorI and in our favor in a big way.

Let's see how blatantly political the court is... I hope you are wrong.

press1280
06-27-2010, 3:25 AM
I can't imagine the liberals on the court all of a sudden rolling over and embracing Heller(unless the P or I just is too much for them to ignore). For me, I'd rather have a robust 2A rights decision decided by 5-4 than a wishy washy, watered down 9-0 decision that stresses limitations on the right rather than limitations on the government's infringement. We know that the anti-courts that have ruled after Heller seize upon 1 or 2 lines of Heller, while ignoring the rest. It's time to have a 2A with actual teeth.

Gray Peterson
06-27-2010, 8:39 AM
I can't imagine the liberals on the court all of a sudden rolling over and embracing Heller(unless the P or I just is too much for them to ignore). For me, I'd rather have a robust 2A rights decision decided by 5-4 than a wishy washy, watered down 9-0 decision that stresses limitations on the right rather than limitations on the government's infringement. We know that the anti-courts that have ruled after Heller seize upon 1 or 2 lines of Heller, while ignoring the rest. It's time to have a 2A with actual teeth.

They don't have to embrace Heller. They can do concurrence/dissents and let the majority do what they want on the due process/constitutionality of the handgun regulations.

glbtrottr
06-27-2010, 9:51 AM
To me, there's no greater piece of beauty in this case than PorI, given that Gays would love to have marriage be that very right they claim, but the politicians that predominantly support their agenda would have to swallow acceptance of 2A and incorporation by PorI to do so. :)

tommyid1
06-27-2010, 1:32 PM
what is por 1 lol

CaliforniaLiberal
06-27-2010, 1:46 PM
This thread is a great beginning education on Constitutional law and the 14th Amendment and how it's going to effect the future of Firearms Law in this country after tomorrow's decision.

P or I. = Privileges or Immunities.

Refers to a part of the 14th Amendment to the Constitution that may be an important part of the McDonald SCOTUS decision we'll be reading tomorrow.


"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.
Section 2......"

http://en.wikipedia.org/wiki/14th_Amendment_to_the_United_States_Constitution

http://en.wikipedia.org/wiki/Privileges_or_Immunities_Clause


Better get to reading.

Serpentine
06-27-2010, 2:02 PM
This thread is a great beginning education on Constitutional law and the 14th Amendment and how it's going to effect the future of Firearms Law in this country after tomorrow's decision.

P or I. = Privileges or Immunities.

Refers to a part of the 14th Amendment to the Constitution that may be an important part of the McDonald SCOTUS decision we'll be reading tomorrow.


"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.
Section 2......"

http://en.wikipedia.org/wiki/14th_Amendment_to_the_United_States_Constitution

http://en.wikipedia.org/wiki/Privileges_or_Immunities_Clause


Better get to reading.

Thank you for making this easier to understand!

.

corrupt
06-27-2010, 2:16 PM
Yeah, when you actually read the 14th amendment, and then find out what is going on these days, you're just blown away by how people could hack it up and make it in to something completely bastardized. Very sad.

chiselchst
06-27-2010, 2:24 PM
Here's Alan Gura being interviewed on the steps of the court house SCOTUS heard the case. It's only been viewed some 500 times or so...(so I know not every CG'er has seen it, LOL).

Does this provide any worthwhile insight?

http://www.youtube.com/watch?v=SBrQ-Jf1v50&feature=related

Serpentine
06-27-2010, 2:49 PM
I really don't see how the SCOTUS would not fully uphold the Constitutional rights of U.S. Citizens as penned by the founders, when the U.S. and POTUS go to extremes (life and limb) to protect citizens of a multitude of countries in the world that have had their basic rights hacked by dictatorships, tyrannical governments, foreign invasions, and terrorist regimes.


.

gunsmith
06-27-2010, 4:55 PM
I really don't see how the SCOTUS would not fully uphold the Constitutional rights of U.S. Citizens as penned by the founders, when the U.S. and POTUS go to extremes (life and limb) to protect citizens of a multitude of countries in the world that have had their basic rights hacked by dictatorships, tyrannical governments, foreign invasions, and terrorist regimes.


.

We don't go there to protect their citizens we go there to nation build and protect either natural assets like oil or strategic assets like the Korean peninsula

Serpentine
06-27-2010, 7:32 PM
We don't go there to protect their citizens we go there to nation build and protect either natural assets like oil or strategic assets like the Korean peninsula

Well then, Why don't we go HERE on US soil to protect our own natural resources, financial accountability, strategic assets, homeland security, environment protection, border control, illegal immigration, fighting against amnesty for illegals immigrants, deficit control, outsourcing of jobs. It all ties in.

This Novembers elections have never meant so much for such a broad spectrum of getting back to a conservatism center, and we have so many allies on our like-minded side like the tea party movement, the seniors and baby boomer votes, and another WHOPPER - Health Care Reform for all (non-earned, cost shifted from the wealthy and middle class, and paid for by your taxes!).



.

Digital_Boy
06-27-2010, 10:13 PM
Well then, Why don't we go HERE on US soil to protect our own natural resources, financial accountability, strategic assets, homeland security, environment protection, border control, illegal immigration, fighting against amnesty for illegals immigrants, deficit control, outsourcing of jobs. It all ties in.

This Novembers elections have never meant so much for such a broad spectrum of getting back to a conservatism center, and we have so many allies on our like-minded side like the tea party movement, the seniors and baby boomer votes, and another WHOPPER - Health Care Reform for all (non-earned, cost shifted from the wealthy and middle class, and paid for by your taxes!).
.

I don't disagree with you on any of this. I think we've done enough of being the world's policeman, whether invited or not. I'd rather see those military personnel who are risking life and limb come home and put their energies towards helping secure our borders, rebuild our infrastructure, and not get shot at or bombed by factions that have been doing the same to each other for the last millennium or so.

Purple K
06-28-2010, 1:00 AM
Five hours!!

Alaric
06-28-2010, 1:04 AM
This is going to be a weird day. First the McDonald decision. Then we might get the Mehserle verdict and the riots that will follow in Oakland and possibly L.A.

And here I am running out of beer already.

Anchors
06-28-2010, 2:15 AM
This is going to be a weird day. First the McDonald decision. Then we might get the Mehserle verdict and the riots that will follow in Oakland and possibly L.A.

And here I am running out of beer already.

I only think there will be riots if he's acquitted, then again rioters will find any reason to vandalize and steal like Lakers' games.
The Lakers lose, people in L.A. riot.
The Lakers win, people in L.A. riot.
Most of the prominent figures in the prosecution of Mehserle and civil rights leaders denounce the rioting too.
I don't get why you would be mad and break some random guys windows and stuff?

kcbrown
06-28-2010, 6:38 AM
A PorI victory the way Jim's predicting would be more awesome than words can describe.

And that's why I don't think it's going to happen. Not because I know anything special about law, or because I have ESP right into the brains of the Supreme Court justices, or anything of that sort.

But, simply, because things which are that awesome simply don't happen in the modern world... :(


And it looks like, once again, reality does not "disappoint"... I would have strongly preferred to have been wrong about this... :(


But, then again, WE WON!!!! What will really be interesting is to see just how much we really won, which we won't know until analysis of the McDonald ruling is complete and other pending court cases are decided...