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View Full Version : Liberals Use Supreme Court Gun Case to Bolster Other Rights


Rossi357
06-25-2010, 10:59 AM
Here is a link to an interesting slant on the P or I clause.

http://www.law.com/jsp/article.jsp?id=1202428529045

383green
06-25-2010, 11:18 AM
Even though I disagree with most liberals on a lot of topics, this is one case where I hope to be cheering along with them on Monday morning! Incorporation of the 2nd will make me very happy, but adding rejuvenation of the 14th to that would be... I can't even think of words to describe how awesomely awesome that would be.

RRangel
06-25-2010, 11:25 AM
This is the gun rights section for Second Amendment issues. Not the other way around.

bwiese
06-25-2010, 11:36 AM
This directly impinges on RKBA politics and legal-political interface, so I believe this thread is appropriate in this forum.

elenius
06-25-2010, 11:47 AM
The article is a year and a half old...

ScottB
06-25-2010, 12:12 PM
The article is a year and a half old...

Ouch.

robcoe
06-25-2010, 12:29 PM
Help is help, Ill take it.

jdberger
06-25-2010, 12:43 PM
The article is a year and a half old...

It's from before the 7th Cir. even heard the case....

In a follow-on case pending before the 7th U.S. Circuit Court of Appeals, a progressive legal group and liberal law professors including Yale Law School's Jack Balkin earlier this month joined gun-rights advocates in urging that the right established in Heller, which involved only the District of Columbia, be extended to apply against gun restrictions in the 50 states. The case is McDonald v. Chicago, a challenge to that city's strict gun control law and, no matter what, the outcome is likely to be appealed to the Supreme Court.

BillCA
06-25-2010, 12:52 PM
It may be dated, but the concepts are not out-dated.

P-or-I is still an open question until Monday.

stix213
06-25-2010, 12:57 PM
Is it answered somewhere how PorI is that significantly better with regard to gun rights specifically, over DP?

383green
06-25-2010, 1:04 PM
Is it answered somewhere how PorI is that significantly better with regard to gun rights specifically, over DP?

I don't think it makes a difference to gun rights specifically. Incorporation of the 2nd will be a huge thing, whether DP or PorI is the path.

Uh, maybe this is a dumb question: If SCOTUS decides to use PorI and overturn the decisions that gutted PorI, couldn't that also shred the whole concept of selective incorporation? Is there any chance that a side-effect of a PorI decision here could be full incorporation of the BofR?

bulgron
06-25-2010, 1:36 PM
Uh, maybe this is a dumb question: If SCOTUS decides to use PorI and overturn the decisions that gutted PorI, couldn't that also shred the whole concept of selective incorporation? Is there any chance that a side-effect of a PorI decision here could be full incorporation of the BofR?

That is exactly what restoration of PorI will mean.

Or, more to the point, that is the minimum effect that restoration of PorI will have.

wildhawker
06-25-2010, 1:50 PM
P or I will not necessarily equal incorporation en bloc (in fact, such an outcome is so improbable as to be nearing zero).

P or I could create some positive direct and relevant indirect protections not likely under total SDP theory of incorporation as it subjects fundamental rights to the politics and sensibilities of the Court. However, forcing the Court justices to disassociate from their political leanings (as real P or I revitalization would imply) makes this decision duly challenging.

BillCA
06-26-2010, 12:26 AM
I don't think it makes a difference to gun rights specifically. Incorporation of the 2nd will be a huge thing, whether DP or PorI is the path.

Uh, maybe this is a dumb question: If SCOTUS decides to use PorI and overturn the decisions that gutted PorI, couldn't that also shred the whole concept of selective incorporation? Is there any chance that a side-effect of a PorI decision here could be full incorporation of the BofR?

Short answer is yes. P-or-I will incorporate the entire BoR against all of the states. This is good and bad at the same time. Good from the perspective of your rights, bad in the sense that it will cause extra expense for the states in some areas (notably the use of Grand Jury indictments) where states don't have those protections today. And that will come at a time when state budgets are already heavily strained.

I'm with Gene Hoffman on this one. I'm reasonably sure we'll get incorporation. But I see a split decision by the court. The majority will vote to incorporate, perhaps under Due Process with some justices concurring in part and dissenting in part (in favor of P-or-I). We might see 2-3 justices reject incorporation completely using some twisted logic.

I suspect Stevens & Breyer will vote against. Ginsburg may vote for P-or-I and convince Sotamayor to climb aboard. Thomas and Alito are very likely supporters and I think Kennedy would certainly lean towards "expanded" civil rights. I suspect Roberts would prefer due process.

Regardless, we should know by Monday!

advocatusdiaboli
06-26-2010, 12:50 AM
Even if we see widespread incorporation having persuaded the liberal wing of the court to side with the strict side, I don't see the harm. The EU is failing not because they are socially liberal but because they are fiscally liberal driven by socialism. Granting a man the right to his own private affairs is not the same as funding them.The opposition to social libertarianism is founded not in sound governing nor economic principles, but in religious superstition and I have never heard it put soundly otherwise. Time to let social freedom ring gentlefolk and watch our budgets for corruption. Do what you wish in private but do no harm to others works for me as I think it should for all of us, united as we stand together in freedom and liberty. Monday we shall see if we take a great step forward following our founders or stray even farther from the path as we did so long the last century.

wildhawker
06-26-2010, 1:18 AM
There is an alternative to sdp and en bloc incorporation.

Blackman, Josh and Shapiro, Ilya, Keeping Pandora’s Box Sealed: Privileges or Immunities, The Constitution in 2020, and Properly Extending the Right to Keep and Bear Arms to the States (November 10, 2009). Georgetown Journal of Law & Public Policy, Vol. 8, 2010. Available at SSRN: http://ssrn.com/abstract=1503583

scc1909
06-26-2010, 5:21 AM
So, what are these "unenumerated rights" conservatives are afraid liberals will pursue if PorI is cited as a rationale for ruling for the plaintiffs in McDonald?

I've read the wiki entries for PorI and PandI, so have a basic understanding of the issue, but don't see these "boogiemen" I see social conservatives screaming about. Help a brother out here by talking a bit about that...

yellowfin
06-26-2010, 6:17 AM
So, what are these "unenumerated rights" conservatives are afraid liberals will pursue if PorI is cited as a rationale for ruling for the plaintiffs in McDonald?

I've read the wiki entries for PorI and PandI, so have a basic understanding of the issue, but don't see these "boogiemen" I see social conservatives screaming about. Help a brother out here by talking a bit about that...The chief concern is that it'll be a means of expanding entitlement programs because the left has somehow invented and institutionalized a "right" to other people's money. This is certainly not an unfounded fear, as they do push this substitute morality they call "social justice." Theoretically with PorI they could basically say that everyone is entitled to everything, from equal pay all occupations within a company to "right to be free from...anything that offends them", pretty much political correctness on steroids.

Cowboy T
06-26-2010, 7:23 AM
Even if we see widespread incorporation having persuaded the liberal wing of the court to side with the strict side, I don't see the harm. The EU is failing not because they are socially liberal but because they are fiscally liberal driven by socialism. Granting a man the right to his own private affairs is not the same to funding them.The opposition to social libertarianism is founded not in sound governing nor economic principles, but in religious superstition and I have never heard it put soundly otherwise. Time to let social freedom ring gentlefolk and watch our budgets for corruption. Do what you wish in private but do no harm to others works for me as I think it should for all of us, united as we stand together in freedom and liberty. Monday we shall see if we take a great step forward following our founders or stray even farther from the path as we did so long the last century.

You said it, Devil's Advocate. I'd love to see us more *socially* liberal as a nation ("live and let live"), but *fiscally* conservative. Right now, we are neither.

socal2310
06-26-2010, 7:48 AM
The chief concern is that it'll be a means of expanding entitlement programs because the left has somehow invented and institutionalized a "right" to other people's money. This is certainly not an unfounded fear, as they do push this substitute morality they call "social justice." Theoretically with PorI they could basically say that everyone is entitled to everything, from equal pay all occupations within a company to "right to be free from...anything that offends them", pretty much political correctness on steroids.

I doubt that is the biggest concern for social conservatives, I suspect their biggest concern is for implied rights such as gay marriage and other issues the left has traditionally championed.

Me, I'm looking forward to a jury trial next time I'm issued a traffic citation...

Ryan

advocatusdiaboli
06-26-2010, 8:18 AM
The chief concern is that it'll be a means of expanding entitlement programs because the left has somehow invented and institutionalized a "right" to other people's money. This is certainly not an unfounded fear, as they do push this substitute morality they call "social justice." Theoretically with PorI they could basically say that everyone is entitled to everything, from equal pay all occupations within a company to "right to be free from...anything that offends them", pretty much political correctness on steroids.

I understand what social conservatives say is the fear but I don't believe it for a minute. It's a ruse to cloak their private prejudices and desire to discriminate against those citizens of whose life styles they disapprove. To add an unenumerated right to wealth would rip the fabric of capitalism asunder and put communism in it's place and that isn't going to happen in this nation even though we've had brief and minor brushes with it last century. As would fabricating those other "rights" against that which offends, mentally irritates, or suffers imaginary evils upon others. Political correctness exists chiefly because we have bottled up our common sense along with our rights and liberties.

In fact, communism is disgraced and rapidly falling into disfavor in its largest former advocates, Russia and China. Russia is stumbling into democracy along with the organized crime and oligarchy that is the result of their rapid withdrawal from their addiction to it and China is wrestling with a hideous monster of a two-headed capitalistic communist oligarchy but they and we know where they are going despite their foot dragging.

The dominant hidden reason for this fear of social conservatism is pernicious ego-driven organized superstition based on the legal codes of long deceased ignorant men converted from codes of law into religions long ago by somewhat younger but still ignorant men. Men ignorant of science and democracy who believed man could only be governed by fear of the supernatural rather than governed by reason and the rule of law. Why not eat pork in modern times? Why should men be put to death for cutting their hair? Why are women chattle? Why can females and homosexuals make great soldiers in the Israeli Army but wouldn't in the US? Institutionalized ignorance and superstition. As our technological and civil progress has dispelled myth after myth of the supernatural, man still fearfully clings to the beliefs as a crutch and false ethical and moral guide continuing a long and iniquitous tradition of inequality and violence based on it. I have no problem with anyone's private beliefs in the Flying Spaghetti Monster or other imaginary mythical entities nor do I deny their right to them, monotheistic, polytheistic, or other. But they become everybody's business when someone forces the consequences and dictates of their private superstitious beliefs on others.

Jefferson believed Jesus a mortal man and a philosopher and despised organized Christianity and other organized religions. He wanted them and all their direct influences banished from government and I stand firmly with him on that. I support POI incorporation and I am not afraid of true equality under the Bill of Rights--with it this nation, this bold experiment in a democratic republic with freedom and liberty for all its citizens, though currently threatened with a gradual dismantling of rights, just might make it intact to the Tricentennial. I won't be there, but my children will be and I hope they have something to celebrate.

With fingers crossed for the McDonald v. City of Chicago decision that may begin to let freedom and liberty back out of it's government cage,
Respectfully Yours,
:devil2:

PS I want RKBA, the right to a jury trial in civil cases, the right to be indicted by a grand jury, and the right to be protected from excessive bail and fines,

And if Felix "Shock the conscience cherry pick incorporation " Frankfurter were alive, I'd like to shock him with a taser. Just kidding, but it would have been fun :devil2:

scc1909
06-26-2010, 10:46 AM
The chief concern is that it'll be a means of expanding entitlement programs because the left has somehow invented and institutionalized a "right" to other people's money. This is certainly not an unfounded fear, as they do push this substitute morality they call "social justice." Theoretically with PorI they could basically say that everyone is entitled to everything, from equal pay all occupations within a company to "right to be free from...anything that offends them", pretty much political correctness on steroids.

Ah...you mean such things as the "right" to a certain minimum level of income (welfare?), housing, health care, etc.? Not just the obvious like the right to marry, to engage in work to earn a living, etc.?

Anybody talking about this out in the open? If so I haven't found it in limited searching.

yellowfin
06-26-2010, 5:48 PM
I understand what social conservatives say is the fear but I don't believe it for a minute. It's a ruse to cloak their private prejudices and desire to discriminate against those citizens of whose life styles they disapprove. To add an unenumerated right to wealth would rip the fabric of capitalism asunder and put communism in it's place and that isn't going to happen in this nation even though we've had brief and minor brushes with it last century. As would fabricating those other "rights" against that which offends, mentally irritates, or suffers imaginary evils upon others. Political correctness exists chiefly because we have bottled up our common sense along with our rights and liberties.
Perhaps, but that's if you're sure you're dealing with people who are -ONLY- or at very least 80% social and not actually conservative (fiscal and constitutionally), as for the latter it most definitely IS the real concern. I wasn't referring to the liars. Don't you agree that while perhaps fewer than a majority there are in fact a substantial number on the left, the "progressive" sect, for whom the destruction of capitalism and replacing it with communism is in fact their stated goal and the fabrication of anti-rights is their means of doing so? Sure, there's the so-called "religious right" who are nothing more than the flip side of the coin to the anti-American left who like their counterparts prop up a set of rights they like and rabidly beat down the ones they don't, but that's not what we're talking about here.

Men ignorant of science and democracy who believed man could only be governed by fear of the supernatural rather than governed by reason and the rule of law. Adams was very clear on that for the Constitution to work and for people to have a government that would allow them to be free, the citizenry must have moral standards, perhaps religious belief based but certainly approximate to it. With such they keep themselves in good behavior so that force of law to compel them to do so won't be necessary. We have seen with the last generation or two just how correct Adams was: without morals, society runs amuck; virtue is a necessary input to liberty, without which it dies like a plant without water.

advocatusdiaboli
06-26-2010, 10:12 PM
We have seen with the last generation or two just how correct Adams was: without morals, society runs amuck; virtue is a necessary input to liberty, without which it dies like a plant without water.

The morals of organized religion like the rampant pedophilia n the Catholic Church for instance? They are not a solution having been part of the problem for generations, even it seems since their inception, they are religious institutionalized pedophilia. Superstition has not place in the world of science which you know is right as it governs daily life including your firearms.

Religion offers no sanctuary--you must abandon it to even strive to achieve the the pinnacle from supreme Thomas Jefferson wrote the Declaration of Independence.

GaryV
06-27-2010, 6:54 AM
We have seen with the last generation or two just how correct Adams was: without morals, society runs amuck; virtue is a necessary input to liberty, without which it dies like a plant without water.

While I think this statement has the same flaw all such "good ole' days" statements do (in that the "good ole' days" weren't any better, just remembered that way through nostalgia and a a change in perception and age of the speaker), the basic premise of the idea that society needs morality and ethics is sound. The real problem with the statement is that it assumes religion and morality are synonymous, or that one is necessary for the other. Nothing could be further from the truth. Religion neither equates with morality, nor is it in any way necessary for it to exist. A morality based on religion is a second rate morality built on myth, superstition, fear, and bribery.

Morality is about doing the right thing when no one is watching. If you truly believe that someone (imaginary or not) is ALWAYS watching, then you're essentially saying that none of your actions are done from morality, but from guilt or fear.

socal2310
06-27-2010, 7:26 AM
The morals of organized religion like the rampant pedophilia n the Catholic Church for instance? They are not a solution having been part of the problem for generations, even it seems since their inception, they are religious institutionalized pedophilia. Superstition has not place in the world of science which you know is right as it governs daily life including your firearms.

Religion offers no sanctuary--you must abandon it to even strive to achieve the the pinnacle from supreme Thomas Jefferson wrote the Declaration of Independence.

I'm not a Roman Catholic but feel the need to interject here. Pedophilia, is no more rampant in priests than it is in teachers, day care workers and others who have unsupervised contact with stranger's children and would be a non story were it not for the church's lack of an effective response to priests accused of altering alter boys.

Ryan