Tea Leaf Reading on St. Benitez Timing????

[Bhobbs]

Originally Posted by SpudmanWP

Incorporation does nothing more than place the same restrictions on the States that were previously on the Federal government as laid out in the BoR.

Nowhere does it say or imply that the rights come "from" the government.

Unfortunately, the States proved the old axiom of "Absolute power corrupts absolutely" was true hence the 14th and the following incorporations.

If every state banned guns, would we have a right to keep and bear arms? No, of course not. It wasn?t until the 14th amendment that expanded federal power, did our ?right? come into play.

If the Bill of Rights didn?t include the states, theu aren?t rights at all and they certainly aren?t inalienable.

[SpudmanWP]

The Equal Protection Clause only dictates that everyone must be treated the same.
The word "right" is not even mentioned.

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.

History & logic of Incorporation:
https://www.law.cornell.edu/wex/incorporation_doctrine

[Drivedabizness]

Now look at the Privileges & Immunities Clause

[chris]

Originally Posted by SpudmanWP

Incorporation does nothing more than place the same restrictions on the States that were previously on the Federal government as laid out in the BoR.

Nowhere does it say or imply that the rights come "from" the government.

Unfortunately, the States proved the old axiom of "Absolute power corrupts absolutely" was true hence the 14th and the following incorporations.

California has proved that point time and time again. They care nothing for the rights that are in the Bill of Rights. They care for rights that do not exist in that document.

[Bhobbs]

Originally Posted by SpudmanWP

The Equal Protection Clause only dictates that everyone must be treated the same.
The word "right" is not even mentioned.



History & logic of Incorporation:
https://www.law.cornell.edu/wex/incorporation_doctrine

So how can the privileges and immunities clause be construed to give everyone the same rights when rights are never mentioned?

Either we have rights, which the 14th doesn't even mention, or we have privileges that are granted by the government.

[SpudmanWP]

Originally Posted by Bhobbs

So how can the privileges and immunities clause be construed to give everyone the same rights when rights are never mentioned?

The Bill of Rights is not the Government granting us rights, it is acknowledging pre-existing rights and setting a list of limits on Government interference with those enumerated rights.

Originally Posted by Drivedabizness

Now look at the Privileges & Immunities Clause

They have a link on that too:
https://www.law.cornell.edu/wex/priv...unities_clause

[bigstick61]

Originally Posted by SpudmanWP

The Equal Protection Clause only dictates that everyone must be treated the same.
The word "right" is not even mentioned.



History & logic of Incorporation:
https://www.law.cornell.edu/wex/incorporation_doctrine

The meaning is even more limited than that. They need to be treated equally when it comes to the protection of the laws, i.e. in those areas where the law serves protective functions, like the ability to sue, protection from crime, legal rights and privileges, etc. It is one of the most heavily abused clauses in the Constitution, though, up there with the Commerce Clause. For example, it was cited (without any textual or factual basis) as the basis for the rulings in the Reapportionment Cases, which impacted California by forcing it to get rid of its Senate arrangement which was primarily apportioned geographically (even with today's demographics, Republicans could win a slim majority and a Democrat supermajority would be impossible if the Senate was still apportioned the way it was), although that's a good example of desiring a political outcome and making up what you can in the ruling after the fact.

[bigstick61]

Originally Posted by Bhobbs

So how can the privileges and immunities clause be construed to give everyone the same rights when rights are never mentioned?

Either we have rights, which the 14th doesn't even mention, or we have privileges that are granted by the government.

It can't if we look at the text's plain language, the common understanding of it, and just use our logic and reasoning skills. The language goes back to before the Constitution was drafted, being an old legal term of art. It made its way into the original Constitution and the 14th Amendment modifies the pre-existing clause. It predates the Bill of Rights. If it meant the same thing as the Bill of Rights, the Bill of Rights would have been redundant, but clearly enough of the Framers thought it necessary.

It has to do with privileges and immunities that citizens get and non-citizens traditionally get and which non-citizens don't necessarily get except as may be generously provided by statute. They overlap with rights to some extent, but they are not exactly the same thing. Corfield v. Coryell (an antebellum case) has a pretty comprehensive enumeration of them, although that judge tried to shoehorn voting into it as well (which the rest of the judiciary rightly rejected).

[SpudmanWP]

IMHO the Commerce and General Welfare Clauses are the most abused.

[Rickybillegas]

Originally Posted by bigstick61

The militia was a local institution. In Britain it was subordinate to local and regional governments, and also to feudal lords before the laws did away with most aspects of feudalism. When the colonies were founded, militias subordinate to colonial and local governments were also raised. It could be called upon by London for some purposes, but it was not primarily beholden to it. But still, it was an institution subject to the civil authority. It was not some independent popular institution, although in sufficiently wild areas it could sometimes emerge in such a manner temporarily.

The National Guard is not a militia, despite the wording in the Federal statutes. It lacks the character of a militia and it relies on such differentiation to avoid running afoul of certain constitutional provisions that preserve State authority over the militia. It is basically a series of dual State-Federal reserve armies whereby its members are both State troops and Federal troops, meant to serve as a national reserve force that can also be of utility to the States.

The short story is that as the militia continued its decline, volunteer organizations within it with more motivation became labeled as National Guard and lobbied ultimately to become the national reserve force for wartime, replacing the militia and the volunteer system. When the laws effecting this change were passed, the units were transformed over a number of years into what they basically are today, while the other militia units languished or were eliminated in most cases, which would bite States in the *** during the world wars, forcing them to reconstitute their militias (except in those few cases where States continued to maintain them, although Federal conscription also took its toll). The NG's lobbying organization since has lobbied against any attempts to restore the militia to any meaningful degree.

Regarding the bold; That was kind of my original point without your excellent historical context. The supposed enshrinement of the right to a 'national guard' that is really an extension of the national army makes no sense. Crudely, it's like the government validating itself. There would be no such need.

[bigstick61]

Originally Posted by Rickybillegas

Regarding the bold; That was kind of my original point without your excellent historical context. The supposed enshrinement of the right to a 'national guard' that is really an extension of the national army makes no sense. Crudely, it's like the government validating itself. There would be no such need.

Not exactly. It would be the guarantee of the sovereign right to have armed forces on the part of the State, which is a different matter and something that would make sense to put in the national constitution, especially given the debates of the day. The militias were part of the military forces of the individual States and remain so to this day to the extent that they exist (CA still has a small one, for example). But of course, that is not the language of the 2nd Amendment, which deals with the RKBA and just establishes a connection between it and the militia, but imposes no qualifications upon it. There are other provisions that provide some protection for State militias, but they are in the original Constitution and not the Bill of Rights.

But the National Guard, being also Federal and not just State, and not being a militia in character, cannot be what the 2nd Amendment was referring to under either interpretation.

[bigstick61]

Originally Posted by SpudmanWP

IMHO the Commerce and General Welfare Clauses are the most abused.

14th Amendment is right up there with it and has had similarly transformational impacts on our political system, if not more so.

In some cases, the abuses have had mostly a positive impact, like incorporation doctrine (it hasn't been entirely positive, though) or Brown v. Board of Education (which was an abuse of the constitution, no matter how laudable the outcome). But in the majority of cases the abuses have had a negative impact and have involved some of the worst twisting of the laws (or imaginations of what the law should be and not the actual laws) I can think of. Roe v. Wade is a perfect example. You have the Reapportionment Cases (which allowed the Democrats to dominate a number of States they would not have been able to and has also made the urban takeover of other Republican-leaning States probable at the very least in the foreseeable future), more cases built upon those, voting cases, Obergefell, and much more. It seems that some of this, though, has been, is being, or will be undone by the present court, but the sheer mass of the abuse is a major obstacle to reform.

[Rickybillegas]

Originally Posted by bigstick61

Not exactly. It would be the guarantee of the sovereign right to have armed forces on the part of the State, which is a different matter and something that would make sense to put in the national constitution, especially given the debates of the day. The militias were part of the military forces of the individual States and remain so to this day to the extent that they exist (CA still has a small one, for example). But of course, that is not the language of the 2nd Amendment, which deals with the RKBA and just establishes a connection between it and the militia, but imposes no qualifications upon it. There are other provisions that provide some protection for State militias, but they are in the original Constitution and not the Bill of Rights.

But the National Guard, being also Federal and not just State, and not being a militia in character, cannot be what the 2nd Amendment was referring to under either interpretation.

But that's really my point, after all the back and forth.

[natman]

Originally Posted by Rickybillegas

Can you cite a few of these rulings? The anti gun historians insist that the individual right interpretation is only of recent analysis and twisted into an individual right by a radical NRA propelled agenda and a right wing biased supreme court.

The right to bear arms is not granted by the Constitution; neither is it in any manner dependent upon that instrument for its existence. The Second Amendments means no more than that it shall not be infringed by Congress, and has no other effect than to restrict the powers of the National Government. US v Cruikshank, 1875 page 1

The Preamble declares that the Constitution is ordained and established by "the People of the United States." The Second Amendment protects "the right of the people to keep and bear Arms," and the Ninth and Tenth Amendments provide that certain rights and powers are retained by and reserved to "the people." .... US v Verdugo-Urquidez, 1990 paragraph 8

As usual the anti gunners are lying, ignorant or both.

[wchutt]

Originally Posted by bigstick61

To say that this makes the Bill of Rights apply to the States is nonsensical as well. Neither was the common understanding of the time from what I can tell, as well.

Except? one of the authors of the 14th Amendment Representative John Bingham, specifically said about the P or I clause, ??arm the Congress . . . with the power to enforce the bill of rights? and another, Senator Jacob Howard, said of the P or I clause in the 14th Amendment, ?To these privileges and immunities, whatever they may be?for they are not and cannot be fully defined in their entire extent and precise nature?to these should be added the personal rights guaranteed and secured by the first eight amendments of the Constitution; such as the freedom of speech and of the press; the right of the people peaceably to assemble and petition the Government for a redress of grievances; a right appertaining to each and all of the people; the right to keep and to bear arms; the right to be exempted from the quartering of soldiers in a house without consent of the owner; the right to be exempt from unreasonable searches and seizures, and from any search or seizure except by virtue of a warrant issued upon a formal oath or affidavit; the right of an accused person to be informed of the nature of the accusation against him, and his right to be tried by an impartial jury of the vicinage; and also the right to be secure against excessive bail and against cruel and unusual punishments??
Read Justice Thomas? concurrence in McDonald.

[Rickybillegas]

Lots of good history lessons here. Thanks for all the contributions from those who know their stuff. My American history is limited to grade school.
But back then, American history was actually pro-American.
I hate to think what their teaching now. Howard Zinn?

[bigstick61]

Originally Posted by wchutt

Except? one of the authors of the 14th Amendment Representative John Bingham, specifically said about the P or I clause, ??arm the Congress . . . with the power to enforce the bill of rights? and another, Senator Jacob Howard, said of the P or I clause in the 14th Amendment, ?To these privileges and immunities, whatever they may be?for they are not and cannot be fully defined in their entire extent and precise nature?to these should be added the personal rights guaranteed and secured by the first eight amendments of the Constitution; such as the freedom of speech and of the press; the right of the people peaceably to assemble and petition the Government for a redress of grievances; a right appertaining to each and all of the people; the right to keep and to bear arms; the right to be exempted from the quartering of soldiers in a house without consent of the owner; the right to be exempt from unreasonable searches and seizures, and from any search or seizure except by virtue of a warrant issued upon a formal oath or affidavit; the right of an accused person to be informed of the nature of the accusation against him, and his right to be tried by an impartial jury of the vicinage; and also the right to be secure against excessive bail and against cruel and unusual punishments??
Read Justice Thomas? concurrence in McDonald.

I am aware of Howard and Bingham. They are often cited because they were very vocal in these and certain other views on the 14th Amendment. But they are just two men. They seem to have been at odds with the common understanding of the amendment within Congress and among those involved in ratification. And I don't see how you can look at the plain text and extrapolate incorporation doctrine from it. Nonsensical is the right word for that sort of thing.

Privileges and immunities was an old legal term of art with a well-fleshed-out meaning that appeared in the original constitution. Someone saying that new meaning should be added to it doesn't mean it in fact was commonly understood to have that new, expanded meaning that person found desirable. If we were to understand it to have included that meaning the whole time, then there would have been no point for a Bill of Rights. The only changes in language from the original clause were with respect to what persons would be protected under what circumstances. Before only citizens of one State when in another were protected, but afterwards all citizens in any State were protected, and that change did address a specific issue involving freedmen in a number of States after slavery was abolished and the country was reunited.

If you were to set out to torture the language to extract a desired meaning, I suppose it is the better clause to use than the other one, but either still involves placing far more meaning into them than either the basic language or the common understanding of the time would support. But such is the norm when it comes to judicial activism and it is hardly the worst example of this (if you want really tortured understandings, check out Reynolds v. Sims or Roe v. Wade).

[wchutt]

Originally Posted by bigstick61

I am aware of Howard and Bingham. They are often cited because they were very vocal in these and certain other views on the 14th Amendment. But they are just two men. They seem to have been at odds with the common understanding of the amendment within Congress and among those involved in ratification. And I don't see how you can look at the plain text and extrapolate incorporation doctrine from it. Nonsensical is the right word for that sort of thing.

Privileges and immunities was an old legal term of art with a well-fleshed-out meaning that appeared in the original constitution. Someone saying that new meaning should be added to it doesn't mean it in fact was commonly understood to have that new, expanded meaning that person found desirable. If we were to understand it to have included that meaning the whole time, then there would have been no point for a Bill of Rights. The only changes in language from the original clause were with respect to what persons would be protected under what circumstances. Before only citizens of one State when in another were protected, but afterwards all citizens in any State were protected, and that change did address a specific issue involving freedmen in a number of States after slavery was abolished and the country was reunited.

If you were to set out to torture the language to extract a desired meaning, I suppose it is the better clause to use than the other one, but either still involves placing far more meaning into them than either the basic language or the common understanding of the time would support. But such is the norm when it comes to judicial activism and it is hardly the worst example of this (if you want really tortured understandings, check out Reynolds v. Sims or Roe v. Wade).

They were not just two men. Bingham was a (or THE) driving force behind the 14th, and Howard was the on the committee which drafted the 14th, and as such both were clear in what P or I meant, specifically as it was used in the 14th. It was meant to force the states had to follow Constitutional rights. Nothing tortured about it. Again, read Justice Thomas, Slaughterhouse was the tortured understanding of P or I. Incorporation is a bastardized way to try and do what P or I had already done, secure fundamental citizens rights agains the states.

[swiftone]

What was the name of this thread again? 🤔

[JiuJitsu]

And where is a Benitez decision? 🤔

[SpudmanWP]

He's waiting till my BD

[Dvrjon]

Originally Posted by swiftone

What was the name of this thread again? 🤔

That would be: Where can we send all the extraneous BS crap to keep it from cluttering the lawsuit threads? thread.

[WithinReason]

You can say that again!...

[GetMeCoffee]

Originally Posted by WithinReason

You can say that again!...

Someone flipped the select-fire switch on their mouse button

[Dvrjon]

Triple posting is a new system function, not a bug.

[Drivedabizness]

Originally Posted by Dvrjon

That would be: Where can we send all the extraneous BS crap to keep it from cluttering the lawsuit threads? thread.

^^^this^^^

[pbreed]

The clown college in sacramento can pass BS waaaaaaay faster than the courts can shovel it out of the stall...

We are all distracted with some future shiny thing.... (Benitez ruling)...
While slowly our rights drip drip away....

I'll believe that the courts work when we can all have select fire, short barreled, suppressed , blackout 500's with NVG sights.

I'm not holding my breath.

[rational_behavior]

Some of the threads in this section are kind of hard to follow because the first post isn't necessarily starting at the beginning with a basic explanation of the issues at play. Obviously easier said than done, but it might cut down on the same questions asked multiple times.

[CWM4A1]

As the date is approaching, It would be very interesting if Judge Benitez decided to release his ruling on the anniversary of the Bruen decision, which will be on Friday the 23rd.

[BearCreekRoad]

Originally Posted by SpudmanWP

He's waiting till my BD

And you were born on the 29th of February?

(Sorry bad joke: That's less than a year away.)

[homelessdude]

.............Wait for it ..............................................2wee ks

[Drivedabizness]

Originally Posted by rational_behavior

Some of the threads in this section are kind of hard to follow because the first post isn't necessarily starting at the beginning with a basic explanation of the issues at play. Obviously easier said than done, but it might cut down on the same questions asked multiple times.

Did you actually READ the OP?

I thought it was pretty clear. And the purpose has been repeatedly confirmed.

[rational_behavior]

Which OP are you referring to? I'm talking about various threads in this section. Example, the Nichols thread. It's not obvious because it starts mid-flight. There are others. Not casting blame, just describing.

[Dvrjon]

Originally Posted by rational_behavior

Which OP are you referring to? I'm talking about various threads in this section. Example, the Nichols thread. It's not obvious because it starts mid-flight. There are others. Not casting blame, just describing.

Thread drift

{n} an off topic post in a thread on a specific topic; thread drift is frowned upon to a greater or lesser degree depending on the particular discussion forum or the particular thread within a discussion forum.

It happens. This is the composite thread drift of the cases currently running.

[rational_behavior]

I know this is the containment zone. That's fine in my opinion. I was just making a general observation about the 2A litigation forum area in general. My suggestion was that, if there was a pinned post at the top of each thread, "this is the synopsis of Blah v. Tyrant" it might cut down on thread drift and tangents. Or not, human nature being what it is.

[Dvrjon]

Originally Posted by rational_behavior

I know this is the containment zone. That's fine in my opinion. I was just making a general observation about the 2A litigation forum area in general. My suggestion was that, if there was a pinned post at the top of each thread, "this is the synopsis of Blah v. Tyrant" it might cut down on thread drift and tangents. Or not, human nature being what it is.

There are Stickies above virtually every subject forum explaining the basics of things within the forums. Yet, posters continue to ask questions which are answered in the stickies.

But I am sure if you were to volunteer to maintain the accuracy and currency of such an effort, all members would be appreciative.

[Drivedabizness]

Originally Posted by rational_behavior

Which OP are you referring to? I'm talking about various threads in this section. Example, the Nichols thread. It's not obvious because it starts mid-flight. There are others. Not casting blame, just describing.

Gotcha. I was referring to the Original Post in this thread - which I started to try and take some of the pressure off the other Benitez case threads - which were becoming full of "so when will we hear the ruling?" questions.

[riderr]

I hope he won't stay his decision immediately, so we have time to legally reconfigure the rifles and keeps them this way till the case goes to SCOTUS. Yeah, basically hoping for a freedom day, at least

[newbieLA]

Originally Posted by riderr

I hope he won't stay his decision immediately, so we have time to legally reconfigure the rifles and keeps them this way till the case goes to SCOTUS. Yeah, basically hoping for a freedom day, at least

I'm no legal expert but I don't think 1 freedom day will allow us to reconfigure our rifles and keep them that way until the restrictions are fully removed. Maybe someone more informed can confirm.

[Bhobbs]

Benitez shouldn’t stay his rulings but it’s almost certain he does. The 9th is waiting to shred anything he releases. Duncan is probably the easiest case to not stay. Millions already own legal hi cap mags. Zero chance he or the state allows a flood of unregistered AWs, so Miller is a guaranteed stay. Same with Fouts. The wildcard will be Rhode. I could see that one going either way.


As for timing, I’m thinking late summer to fall.