It’s brief, but here’s what Lyle Denniston has posted at SCOTUSblog:
The Supreme Court on Tuesday seemed poised to require state and local governments to obey the Second Amendment guarantee of a personal right to a gun, but with perhaps considerable authority to regulate that right. The dominant sentiment on the Court was to extend the Amendment beyond the federal level, based on the 14th Amendment’s guarantee of “due process,” since doing so through another part of the 14th Amendment would raise too many questions about what other rights might emerge.
As more detailed reports emerge, please feel free to add links to the stories in the comment thread. (It’s probably best to add only one link per comment, however, as more than that tends to trigger the spam filter..)
UPDATE: Josh Blackman adds: “The Court was not at all receptive to arguments on Privileges or Immunities but incorporation on Due Process is a slam dunk. More commentary soon.”
ANOTHER UPDATE: Tony Mauro chimes in with the first extended discussion over at the BLT:
[O]ne thing appears clear: the justices are not yet ready to open what seems to them to be a can of worms by invoking the “privileges or immunities” clause of the Fourteenth Amendment as the way to apply the right to bear arms to states and localities. The more traditional route of the “due process” clause seems almost certain to be Court’s chosen path.Alan Gura, who was arguing for the “privileges or immunities” route, ran into skepticism almost from the moment he began, when Chief Justice John Roberts Jr. said Gura had a “heavy burden” because his approach entailed striking down the Slaughterhouse cases of 1873.
Justice Antonin Scalia piled on by asking Gura why he’d take this more difficult path “unless you’re bucking for some place on a law school faculty.” The privileges or immunities clause, Scalia added sarcastically, has become the “darling of the professoriate.” Justice Stephen Breyer also seemed to opt for caution, asking Gura questions about the implications of using a new part of the Constitution to apply the Second Amendment to states.
The justices seemed almost to sigh in relief when former solicitor general Paul Clement, representing the National Rifle Association on the same side as Gura, rose to reassure the justices that using the due process clause was a “remarkably straightforward” way to apply the Second Amendment that would not involve upsetting precedent.
ANOTHER UPDATE: Lyle Denniston has expanded his post over at SCOTUSblog, and it now concludes as follows:
The first argument to collapse as the argument unfolded was the plea by the lawyer for gun rights advocates, Alan Gura of Alexandria, VA, that the Court should “incorporate” the Second Amendment into the 14th Amendment through the “privileges or immunities” clause. In the first comment from the bench after Gura had barely opened, Chief Justice John G. Roberts, Jr., noted that the Court had essentially scuttled that argument with its ruling in the SlaughterHouse Cases in 1873. And within a few minutes, Justice Antonin Scalia — the author of the Heller opinion and the Court’s most fervent gun enthusiast — was sarcastically dismissing the “privileges or immunities” argument. . . . Scalia noted that the “due process” clause — an open-ended provision that he has strongly attacked on other occasions– was available as the vehicle for incorporation, and added: “Even I have acquisced in that.” Gura somewhat meekly said “we would be extremely happy:” if the Court used the “due process” clause to extend the Second Amendment’s reach.
Justice Ruth Bader Ginsburg, one of the dissenters in Heller, then moved in to press Gura on just what “unenumerated rights” would be protected if the Court were to revive the “privileges or immunities” clause. It was a theme that would recur often thereafter, solidifying the appearance that the argument had virtually no chance of succeeding. (In fact, when Gura near the end of the argument returned to the podium for his rebuttal, his time was used up by Justices Ginsburg and Anthony M. Kennedy exploring what other rights might come into being if the Court gave new life to the “privileges or immunities” clause. He responded that he could not provide a full list, to which Justice Scalia retorted: “Doesn’ t that trouble you?” It was obvious that it troubled the Court.)
The transcript will be up this afternoon, and I’ll probably blog some thoughts about it when I get a chance to read it.
ShelbyC says:
So much for PorI. Although I’d be interested to know what type of interpretation “question avoidance” falls under. I thought their job was to answer those questions. Or, put a different way, if a right exists under PorI that might emerge, shouldn’t we let it emerge?
March 2, 2010, 11:53 amHercules says:
IF the court doesn’t take up the P&I clause now, it will be relegated to the dustbin of history. Too bad this court isn’t big enough to take up the Gauntlet of Liberty and revive the P&I to where it’s rightful place should be.
March 2, 2010, 12:05 pmht4 says:
I agree, but given the history of some of the more “liberal” members of the SCOTUS, perhaps it is feared that we will end up with, for example, a 14th Amendment right to health insurance, or something equally absurd if that can of worms is opened… Just a thought.
March 2, 2010, 12:18 pmGreg says:
We all knew that incorporation via privileges and immunities was not going to prevail.
Still, I’m hoping for a opinion that contains an admission of these sorts:
“We are sympathetic to attacks on the slaughterhouse cases. Even if it were decided incorrectly, it’s been around for 130 years… If we botched it so bad, well then it hasn’t really bothered congress enough to amend the Constitution.”
That said, I’m not holding my breath…
March 2, 2010, 12:20 pmBored Lawyer says:
This is a by-product of the Case or Controversy requirement in Article III. A federal court is only supposed to decide those issues of law necessary for the case before it. It is not supposed to go on an academic lark about what other rights might or might not exist — and that is especially the case in Constitutional adjudication.
The litigants here claim a 14th amendment right to bear arms, a right . If the SCOTUS finds that, under any clause, then that is all that is needed to decide the case.
March 2, 2010, 12:20 pmzippypinhead says:
Lyle Denniston’s updated SCOTUSblog post is greatly expanded, and reading between the lines suggests that based on the oral argument, there could be an 8-1 decision in favor of incorporation. The reported statements by Roberts and Scalia dissing P/I incorporation makes it pretty clear that selective incorporation through the due process clause will carry the day. Lyle’s update also expands the quotes from Scalia, with his surprisingly harsh skepticism towards P/I incorporation:
The transcript will be a good read – Lyle suggests the scope of the invalidation of Chicago’s challenged restrictions may be very much in play. Assuming RKBA incorporation, it will be interesting to see which of the challenged gun control regs are invalidated outright, upheld, or remanded for further proceedings (with or without a standard of review).
March 2, 2010, 12:21 pmJustinHoya says:
It’s the PorI Clause of the 14th Amendment that was at issue today. The P&I Clause is in Art. IV of the Constitution.
March 2, 2010, 12:21 pmporterhouse says:
Looks like this unethical court will end up doing the responsible thing and allow reasonable limits to be placed on the RKBA by state and local governments–although the whole exercise will have been done in a convoluted and intellectually dishonest fashion.
The court will probably ignore the word “bear” in the amendment and just pretend that it means “brandish” in “self-defense”, not carry guns around for self-defense. All of these justices should be impeached because they are nothing more than partisan hacks. We do have a right to keep guns in order to defend ourselves and our families in our home, this right is protected by the right to privacy. The Second Amendment is a federalism provision similar to how Thomas describes the Establishment Clause in Elk Grove.
March 2, 2010, 12:24 pmDavid M. Nieporent says:
I wonder if the Justices play the Bingham drinking game, too.
March 2, 2010, 12:27 pmorca says:
Are guns allowed in the Supreme Court?
March 2, 2010, 12:28 pmgullyborg says:
“All of these justices should be impeached because they are nothing more than partisan hacks.”
Pot, meet kettle.
March 2, 2010, 12:29 pmShelbyC says:
Correct, and under article III they can decide the case under either clause, or both. I’m not suggesting they look for other rights, I’m saying they shouldn’t decide under one clause for the express purpose of preventing rights under the other clause from “emerging”. If they’re there, we want them to emerge.
March 2, 2010, 12:30 pmBrett Bellmore says:
Because Slaugherhouse was bad law when it was decided, and 130 years hasn’t made the rot stink any less. The Court’s refusal to correct it’s own past instances of bad faith doesn’t do anything to advance it’s legitimacy, save perhaps in it’s own eyes.
March 2, 2010, 12:30 pmPhatty says:
The one justice who may vote in favor of the PorI argument is Thomas, who keeps quiet during oral arguments. So, even if the other eight justices are skeptical, it was still worth raising the argument if it means getting the vote from Thomas.
March 2, 2010, 12:33 pmFury says:
Oh?
March 2, 2010, 12:33 pmgullyborg says:
I would be happy with an opinion that sums up like this:
“Because we find the 2A RKBA is incorporated through the Due Process clause, we do not address the issue of P&I at this time.”
That would be a win for gun rights, and would leave P&I open for a future case.
March 2, 2010, 12:33 pmCrazyTrain says:
As I predicted long ago on some random thread here, I see the dissent looking like this. We dissent because the majority is wrong about the second amendment (either with citation to Stevens’ dissent in Heller or another discussion of why). However, the individual right guaranteed by the second amendment (which may not be much — still trying to figure out what Stevens thought was protected by that individual right) applies equally to the states as it does to the federal government, and we believe the majority’s incorporation analysis is correct.
March 2, 2010, 12:33 pmHadur says:
If the SCOTUS incorporates the 2nd amendment via due process, the only difference between today’s world and “world in which Slaughterhouse is reversed” is that states would have to use grand juries in the latter but not the former. Big ‘effin deal.
If I were on SCOTUS, I wouldn’t even address the PoI issue in my opinion, except maybe for a sentence at the end saying it was unnecessary to reach it.
As for my own pet hack theory, I think there’s a case for a substantive due process right to self-protection, which would enshrine gun rights in the Constitution without the tricky business of having to interpret the 2nd amendment.
March 2, 2010, 12:35 pmAF says:
Justice Antonin Scalia piled on by asking Gura why he’d take this more difficult path “unless you’re bucking for some place on a law school faculty.”
How about because Due Process incorporation is a foregone conclusion, so why not attempt something more difficult that you believe to represent an improvement in the law?
March 2, 2010, 12:35 pmzippypinhead says:
Oh, it’s even worse than that. You should frequent some different neighborhoods on this Intertubes thingie more often to broaden your perspective. “Right to health insurance” is only one of several P/I “rights” that have been hypothesized at some of the more left-leaning locales in the blogsphere (i.e., places where this Pinhead is generally afraid to go after dark without an armed escort…). Some other post P/I incorporation “rights” I recall seeing discussed included:
– right to adequate housing
– right to good nutrition
– right to a “living wage” and/or income generally
– right to end-of-life autonomy (whatever that means)
So maybe it’s for the best that the Slaughterhouse Cases aren’t likely to be overruled by McDonald?
March 2, 2010, 12:35 pmCrazyTrain says:
Or, if Roberts get his way, a unanimous opinion solely addressing incorporation and remanding for consideration of the claim on the merits. That would probably garner some brief concurrences by the moderate justices (what some call the “liberal” justices) that they stand by their views in Heller (obviously, Sotomayor had no views in Heller but she can say she agrees with Stevens).
March 2, 2010, 12:36 pmgullyborg says:
“there could be an 8–1 decision in favor of incorporation”
Who would be the one against? And why?
I wouldn’t be surprised to see a much more divided court. 4 justices together for a plurality that incoporates with Due Process. Thomas concurring but using P&I. 3 justices concurring in part, but favoring broad discretion by the states to enact “reasonable” or “rational basis” gun control. And then one flyer who opposes RKBA.
March 2, 2010, 12:38 pmDuffy Pratt says:
Slaughterhouse may have been bad law. The incorporation doctrine is probably equally bad. Thus, the Court will simply be saving face by showing that two wrongs actually do make a right.
March 2, 2010, 12:38 pmAshrak says:
Asking tough questions in the P or I arena doesn’t absolutely mean that Justices are closed to that avenue.
March 2, 2010, 12:39 pmTim says:
Justice Scalia has already stated that the rational basis test is insufficient for protecting our Second Amendment rights. Restrictions, if permissible, are going to have to be more than “reasonable” to pass constitutional muster.
If the Court were to ignore the word “bear,” they’d be ignoring at least half, if not more than half of the rights protected by the Second Amendment. I highly doubt this prescription comes true, and I sincerely hope that you’re wrong.
March 2, 2010, 12:41 pmgullyborg says:
Just a thought:
The P&I argument would require SCOTUS to overrule its own 130 year precedent. Doing so should not be done lightly.
Maybe some of the justices would like to overrule Slaughterhouse. But to justify it, they need to ensure the arguments are extremely sound and that any weakness is flushed out. So it makes sense to attack the argument as harshly as possible. If the argument can’t withstand attack from the devil’s advocate, then how can it be used to overrule precedent?
So maybe, just maybe, Roberts and Scalia are more open to the idea than you might think. But we’ll see soon enough.
March 2, 2010, 12:47 pmJoe says:
The SC should have simply only granted oral argument for a question reliant on DP if they didn’t take P/I seriously; after all, the only justice who really did is likely the one that doesn’t ask questions anyway.
The Scotusblog summary is amusing on one point — the concern that Gura couldn’t list all the rights protected by P/I … yeah, just like “liberty” has a closed list, right?
March 2, 2010, 12:49 pmzippypinhead says:
According to SCOTUSblog, all but Thomas (of course) were active during argument, and Breyer was the only one who expressed any significant skepticism about incorporation in general. “Why” is too metaphysical a question for this Pinhead to answer, at least on the present record.
The transcript will be a very interesting and informative read…
March 2, 2010, 12:49 pmGrover_Cleveland says:
Of course, this doesn’t apply when there is a chance to give corporations extra rights. I guess we are lucky this isn’t a case about the right of corporations to bear arms, or the court would find that the P&I clause entitles every corporation to unlimited tactical nuclear weapons.
March 2, 2010, 12:50 pmPhatty says:
It doesn’t make any sense to incorporate Stevens’ interpretation of the 2A right. According to Stevens, the 2A protects an individual’s right to keep and bear arms in connection with his militia service. So, if the right only comes up with respect to militias, why would the Supreme Court rule that states are restricted in the gun laws they can pass, when the states are the ones that have full control over its own militias?
March 2, 2010, 12:50 pmporterhouse says:
Incorporation is inevitable, so the real question going forward is what limits will be placed on the RKBA. My approach to analyzing SCOTUS decisions is to start out with the knowledge that all 9 of the justices are partisan hacks and intellectually dishonest. Both the majority and dissent in Heller were terrible opinions that were the products of partisan hacks. Sotomayor’s behavior in Ricci shows she is nothing more than a partisan hack.
These 9 people are nothing more than political operatives, they will end up doing the politically expedient thing.
March 2, 2010, 12:52 pmShelbyC says:
I’ll bet Clement couldn’t list all the rights protected by due process, either.
March 2, 2010, 12:59 pmJoe says:
It doesn’t make any sense to incorporate Stevens’ interpretation of the 2A right.
I’d like to know if he thinks there is any freestanding “liberty” interest to own firearms for personal defense.
March 2, 2010, 1:00 pmLeopold Stotch says:
At the risk of sounding like a bitter, cynical legal realist, isn’t all this talk of P or I vs. due process much ado about nothing? SDP has certainly proven sufficiently malleable to serve as the source of unenumerated rights enforceable against the states. It’s just a question of whether you have five votes. While P or I might be theoretically preferable as a source of rights against the states as a matter of legal history, do we or future generations really lose anything if P or I remains a dead letter? I have a very hard time imagining a future justice sitting in her office and thinking, “hmm, I could cast a vote in favor of that right if it were presented as a function of P or I, but since it’s presented as a SDP argument there’s just no way.” Why am I wrong?
March 2, 2010, 1:01 pmGaltish bus driver says:
Josh Blackman’s more extended analysis, part 1, is up:
March 2, 2010, 1:01 pmhttp://joshblackman.com/blog/?p=4239
CrazyTrain says:
Uhhh, no. There is a big, big, big thing that is not incorporated. It is the Seventh Amendment. Guarantees a civil jury trial where the jury must be unanimous. That would be a huge, huge, huge change in the law. And it would have real-world consequences. It’s a big reason why defendants always want to get their cases in federal court.
March 2, 2010, 1:01 pmWe Meant What We Wrote « threedonia.com says:
[...] and context of both the Founders and the drafter’s of the 14th Amendment not the case. SCOTUS apparently rejected the “privileges or immunities” argument already today. If states and municipalities want gun rights then they should vote them in — not seek [...]
March 2, 2010, 1:02 pmzippypinhead says:
Lyle Denniston is clearly still typing (as of 12:50 pm EST, at least). Every time I hit “refresh” on SCOTUSblog there is another interesting paragraph or two.
Now he reports:
So the split on the Court may be whether the rights guaranteed by the Second Amendment are fully, versus only partially, incorporated? Or to put it differently, are the Heller dissenters going to try to limit the “damage” by setting up a situation where someday they have to recognize a RKBA to concealed carry in National Parks and D.C., but not in the states? Egads… I would be shocked if they headed off on that tangent.
March 2, 2010, 1:04 pmAnon21 says:
Time for Prof. Barnett to face the music, it would seem. P or I remains dead dead dead.
March 2, 2010, 1:07 pmjnheath says:
If the courts legitimized the collectivist notion that the states can define militia enrollment differently from Congress, say goodbye to “Don’t Ask, Don’t Tell” in the National Guard on constitutional grounds. E.g. California has a non-discrimination provision that protects homosexuals and may already be required by its own law to enroll homosexuals in the National Guard even at the risk of losing federal funding for non-compliance (see Holmes v. California National Guard).
March 2, 2010, 1:08 pmomar bradley says:
Well, at least you know where the 9 members of the Court stand on the P or I issue. That was worth finding out.
Given that Thomas actually wrote an article or two on the P or I clause prior to being appointed to the Court and that in Saenz v Roe he seemed to be the only member open to it, I’m surprised he didn’t participate in the argument. I know he doesn’t usually, but you’d think if there was one case where he would, it’d have been this one. I also wonder how he feels about Scalia’s comments. I wouldn’t be surprised if he writes a concurrence expressing support.
Unfortunately it has been close to 140 yrs and that’s a long time. Even Plessy was only around 60 yrs old when it was reversed. If it had been around for 140 maybe things would have been different.
I think the historical evidence is ample enough to support whatever side of the incorporation debate you’re inclined to be on. Lets say Slaughterhouse came out 5-4 the other way and Field or Bradley or Swayne had written the majority. Would there be this huge outcry today over how wrong it is? I doubt it. I think most people would accept it.
Scalia’s question about how open-ended P or I is is a good one and I would answer that it’s the rights listed in the Bill of Rights+ the few others listed in the non-amended Constitution. That’s it.
But it does look like the McDonald will win and it will be incorporated which is a good result.
Combined with Heller this Court will have done more in 2 yrs for the 2nd Amendment than any other group in over 200. That’s a big deal, and George W Bush deserves a lot of credit. If Kerry had won in 2004, none of this would have ever happened and Stevens would have written a majority saying that the militia is all it was referring to. Just think about that if the lack of action on P or I gets you down.
March 2, 2010, 1:09 pmTRE says:
There is no way 2nd amendment gets rational basis scrutiny from a theoretical point of view. Similarly it is hard to imagine strict scrutiny from a practical point of view. (It would eventually overturn most gun laws) “intermediate” scrutiny is a possibility but dishonest and still would overturn most gun laws. They will DODGE.
March 2, 2010, 1:12 pmIt is all such a joke.
Anonsters says:
I’m waiting for the interpretive dance of how rights emerge from provisions of the Constitution.
March 2, 2010, 1:21 pmruuffles says:
You realize that without Ted Kennedy killing Bork’s nomination, and thus paving the way for Anthony Kennedy, the result would be the same as if Kerry won. How’s that for irony?
March 2, 2010, 1:31 pmSuperSkeptic says:
[shakes head] Breyer… Can anyone explain how that position is in any way intellectually honest?
March 2, 2010, 1:40 pmLeopold Stotch says:
Yep. In fact, if Bork had been confirmed and Kerry had won in ’04, there’s a good chance the outcome of Heller would’ve been a 7-2 loss rather than a 5-4 win. Maybe even an 8-1 loss, if Kennedy got weak-kneed in the face of a strong majority. We could’ve had a solo dissent by Scalia. (I’ll bet it would’ve been great fun to read.) Funny how these things work out.
March 2, 2010, 1:43 pmRailroad Gin says:
I expect that caselaw is going to turn into a lot of ad hoc rulings with no logical consistency depending on who happens to be on the Court at any given time.
Which is why I am hoping that this is the last 2A case the Court takes for a good while. There needs to be sufficient time for people (including the justices) to realize that there won’t be blood in the streets and all that. I could possibly see some as-applied challenges to NYC’s byzantine laws, but limited only to possession in the home.
In a few years a good issue might be shopkeepers who want to have a gun at their place of business. This can be extended to cab drivers whose place of business is a vehicle. Then to vehicles generally and so forth.
It’s a long ways away from challenging the NFA or declaring a right to walk down main street with a gun at the hip. And as Scalia’s comments on P&I remind us. there’s nothing worse than a bad precedent to screw things up forever.
Just as Rehnquist ultimately voted to uphold Miranda, liberal judges in future won’t be as hostile to RKBA once Heller and McDonald have been around for decades. In the meantime I am hoping the NRA doesn’t go hogwild with lawsuits that are losers in the short term.
March 2, 2010, 1:45 pmRoger the Shrubber says:
March 2, 2010, 1:47 pmruuffles says:
And liberal judges will be as willing to extend Heller and McDonald as Rehnquist was willing to extend Miranda, which is to say, not at all.
March 2, 2010, 1:51 pmShelbyC says:
Wait, if Bork was confirmed Kenedy wouldn’t be there, right?
March 2, 2010, 2:00 pmTom Huff says:
I attended argument, from the second row of the SCOTUS bar section. A few comments off the top of my head:
Scalia, Roberts, and Alito seemed uninterested in reaching the Privileges or Immunities issue. (Scalia openly said that he thought substantive due process was wrong, but indicated that he was pretty much on board regardless.) None really attacked Privileges or Immunities on the merits; but they all expressed stare decisis concerns.
Thomas was silent. (He did have a clerk bring a book out to him in the middle of argument, which led me to think he was getting ready to ask a question, but he never did.) I expect him to be on board for Privileges or Immunities in light of Saenz. Plus he usually favors originalism over stare decisis.
Kennedy and Ginsburg asked some interesting questions about Privileges or Immunities, many of which were genuinely probative. They had some problems with it, to be sure, but I wouldn’t describe them as hostile. It’s *possible* that either Justice might have something to say about it, though I don’t think either will sign on to an originalist theory.
Interesting sidenote: Ginsburg showed no interest in bailing out Feldman (Chicago’s attorney) when he started getting into trouble with some of the other Justices. Not sure which way she’s leaning overall, but she didn’t outwardly display much disdain for gun rights.
Sotomayor, Breyer, and Stevens seemed hostile to gun rights in general. Can’t guarantee they’ll actually vote against incorporation, but they seemed to be looking for a way to do so.
March 2, 2010, 2:00 pmBored Lawyer says:
On the PoI issue. I wanted to post this on one of Randy Barnett’s posts (re Justice Taney and Dred Scott) but he has not opened comments, so I figured I would post it here.
His second post cites Dred Scott to the effect that Negroes did not have national citizenship and thus did not enjoy the P&I’s of white men. He then cited some history that the purpose of the PoI was to overturn Dred Scott.
My question is, how does that support incorporation? Before the Civil War, it was established in Baron v. Baltimore that the Bill of Rights did not apply to the States. The P&I Clause means that a citizen of one state enjoys the same rights in any state. Illinois cannot discrminate in rights against a NY citizen as opposed to its own. (There is also a right to interstate travel and to move to another state.) The 14th Amendment overturned Dred Scott and now included Negroes in this national citizenship.
If that is the case, then where is there incorporation? The point is that Negroes post 14th Amendment are treated like whites pre-14th Amendment. A state has to treat them the same regardless of race and regardless of whether they are citizens of that state or another.
But that does not mean that a state has to grant any particular rights to anyone. The Bill of Rights are only rights held against the federal govt. — which was the law as to white citizens before the Civil War.
Am I missing something?
March 2, 2010, 2:00 pmBenjamin Davis says:
And to think of those ante-bellum abolitionists who insisted that slavery was inconsistent with the Constitution asserting the citizenship of slaves – whatever Taney thought.
March 2, 2010, 2:11 pmBest,
Ben
Mick says:
“How strangely will the Tools of a Tyrant pervert the plain Meaning of Words!”
–Samuel Adams
Why does it have to be so complicated? The USC was written for the common man to understand, not for the judiciary to parse into unrecognizeability. Unfortunately, the 14th Amendment, designed to preserve NATURAL rights to all citizens, has been the avenue of the government and activist judiciary to take away or to add “rights” that don’t exist.
How about this from Thomas Jefferson:
“The strongest reason for the people to retain the right to keep and bear arms is, as a last resort, to protect themselves against tyranny in government.”
Or this:
“No free man shall ever be debarred the use of arms.”
Or Samuel Adams:
“And that the said Constitution be never construed to authorize Congress to infringe the just liberty of the press, or the rights of conscience; or to prevent the people of the United States, who are peaceable citizens, from keeping their own arms; or to raise standing armies, unless necessary for the defense of the United States, or of some one or more of them; or to prevent the people from petitioning, in a peaceable and orderly manner, the federal legislature, for a redress of grievances; or to subject the people to unreasonable searches and seizures of their persons, papers or possessions.” (1788)
Or more Samuel Adams:
“mean, my friend, to let you know how deeply I am impressed with a sense of the importance of Amendments; that the good people may clearly see the distinction, for there is a distinction, between the federal powers vested in Congress and the sovereign authority belonging to the several States, which is the Palladium (the protection) of the private and personal rights of the citizens.” (1789)
Or Alexander Hamilton:
“This balance between the National and State governments ought to be dwelt on with peculiar attention, as it is of the utmost importance. It forms a double security to the people. If one encroaches on their rights they will find a powerful protection in the other. Indeed, they will both be prevented from overpassing their constitutional limits by a certain rivalship, which will ever subsist between them.”
(1789– speech at the ratification of the USC)
Or John Adams:
“To suppose arms in the hands of citizens, to be used at individual discretion, except in private self-defense, or by partial orders of towns, countries or districts of a state, is to demolish every constitution, and lay the laws prostrate, so that liberty can be enjoyed by no man; it is a dissolution of the government. The fundamental law of the militia is, that it be created, directed and commanded by the laws, and ever for the support of the laws.”
—John Adams, A Defence of the Constitutions of the United States 475 (1787-1788)
Or James Madison:
“[The Constitution preserves] the advantage of being armed which Americans possess over the people of almost every other nation…(where) the governments are afraid to trust the people with arms.”
—James Madison,The Federalist Papers, No. 46.
Why is this so complicated? Obviously the states have the right to license arms, but has no right to prevent citizens from arming themselves. This was the original thought of the founders, based on the Natural Law right of self defense.
March 2, 2010, 2:17 pmgullyborg says:
Didn’t Kennedy side with the pro-gun Heller majority? Why would Bork have made any difference (in Heller or here)?
March 2, 2010, 2:22 pmLeopold Stotch says:
@Shelby,
Sorry, right! I don’t what I was thinking! So probably 7-2. (Of course this assumes all kinds of stuff that we probably can’t fairly assume, but it’s a fun game.)
March 2, 2010, 2:26 pmCDU says:
Bork is on record as opposing an individual rights view of the Second Amendment. If he had not been ‘Borked’, Heller might have gone the other way.
March 2, 2010, 2:27 pmPatrick J. Charles says:
Being at oral arguments in person, I will say that SCOTUS Blog’s account is pretty accurate. Will the Second Amendment be incorporated? The answer is almost positively “yes” through the Due Process Clause. However, for those that were in attendance, there may be a piecemeal incorporation here. I would say, based on the dimeanor of the Justices, that all nine Justices support the incorporation of the prefatory language, and all nine agree with self-defense. Where there is disagreement is over whether armed individual self-defense should apply. Justice Breyer makes this argument, citing to our English Historians Brief. Although many have discounted Breyer’s tier of Second Amendment rights, it may gain steam in friday’s conference.
As it stands now, I would say that the vote is 5-4 in total incorporation of the entire Heller right, and 9-0 on the militia clause. After working drafts are submitted to each Justice, there could be a situation where the armed self-defense of the home is left out or given exceptions to local conditions. Whoever writes for the majority for the first draft had better write it bring along all 5 or more of the Justices in order to incorporate the entire Second Amendment in Heller.
On a side note, Scalia did concede that the Second Amendment was adopted to check the federal government’s militia powers and that it would not have been adopted otherwise.
March 2, 2010, 2:28 pmBored Lawyer says:
Now that is the Supreme irony. We have Ted Kennedy and the other libs to thank for outcome in Heller!
March 2, 2010, 2:29 pmMark says:
“He responded that he could not provide a full list, to which Justice Scalia retorted: “Doesn’ t that trouble you?” It was obvious that it troubled the Court.”
Gee, Tony, I don’t know–why should it trouble anybody? If the SC screwed this up 140 years ago, then why should anybody be “troubled” if the Constitution (the 14th Amendment) was actually restored to what it was plainly intended to mean? If “the list” is longer than you or I like, too effing bad–amend again. Instead, we have to carrying on the farce of perpetuating what is obviously bad Con Law for generation after generation.
Scalia’s smartass reply is just lazy–”Oh, we will actually have to hash all this out, and we might might not like the results!” It is so conservative, in the negative sense of the word, it is sickening.
March 2, 2010, 2:29 pmLeopold Stotch says:
@gullyborg,
Because Bork is a virulent statist and has long publicly supported the collective right view of the Second Amendment. He would’ve signed onto the dissent in Heller, if he didn’t write it himself.
March 2, 2010, 2:29 pmMike McDougal says:
We already amended the constitution to add the P or I clause. Why do we have to repeat ourselves? Is there an echo chamber rule?
I just don’t see any legitimate way in which reliance interests, which have no constitutional authority, can trump the constitution itself.
March 2, 2010, 2:29 pmNunzio says:
You have to feel a bit for Gura. It would be great if he had blurted out, “Then why do you grant cert on the P&I issue”?
March 2, 2010, 2:31 pmAshrak says:
Then so too would it have the “obvious” authority to license prayer books, right?
The point of recognizing the natural rights of each individual as such is to outwardly concede the ownership and authority over them to those people themselves.
When we hold ownership over a right, we need no permission from another to exercise it. If we must ask permission, then another holds ownership. That would mean we have no natural rights at all – besides the right to ask nanny state government for permission.
That which is not mandated shall be prohibited by government. – The opposite of Freedom, the opposite of Liberty. Tyranny it is.
March 2, 2010, 2:37 pmSGD says:
He changed his mind and joined the Meese brief in Heller.
Scalia is on record opposing the incorporation of the second amendment, and it sounds like he changed his mind too.
March 2, 2010, 2:39 pmSeaDrive says:
One of the effects of Gura’s argument is that it widens the playing field on one side. Faced with a decision, humans tend to choose the middle, or at least to discard the extremes. By providing an argument to be discarded, Gura makes the NRA argument look more acceptable and mainstream.
March 2, 2010, 2:44 pmmack says:
For one, Bork has stated that the second amendment does not protect an individual right to keep and bear arms. Subtract Kennedy and add Bork and it is a 5 to 4 decision against in Heller. I believe the poster who brought this up was pointing out the irony of Tedd Kennedy’s blocking of Borks nomination which resulted in Kennedy being appointed instead and therefore a 5 to 4 decision in favor of Heller and an individual right.
March 2, 2010, 2:44 pmMike McDougal says:
Scalia: “For teh lulz.”
March 2, 2010, 2:45 pmLeopold Stotch says:
@SGD,
Color me skeptical. The Meese brief didn’t actually say there’s an individual RKBA. It said that:
(1) Reno and her cohorts were wrong to claim that the Executive branch had consistently accepted the collective rights interpretation prior to Ashcroft.
(2) Affirming the DC Circuit’s judgment would not jeopardize existing federal firearm laws.
(3) If the Court did accept an individual right, it shouldn’t “embrace the Solicitor General’s proposed multi-tiered framework for judicial review of Second Amendment.”
None of that is intellectually inconsistent with Bork believing the 2A secures a collective right. Has he explicitly rejected his original position anywhere?
March 2, 2010, 3:00 pmed bernay says:
thank you. It drives me bonkers when people are ok with a government bureaucrat requiring me to get a license for me exercising my right…that is a called a privilege.
March 2, 2010, 3:06 pmruuffles says:
Maybe it happened after his slip-and-fall at the Yale Club.
Well churches aren’t exempt from zoning regulations and building codes. You can’t build one in the middle of a subdivision. Right?
March 2, 2010, 3:07 pmJ. Aldridge says:
I don’t understand how the liberty of person to be free from physical restraint without due process have anything to do with any right to keep and use anything at home.
Me thinks there is more going on here then constitutional law analysis.
March 2, 2010, 3:07 pmBarry D says:
Can I as a layperson ask a question?
It does appear that the 14th Amendment refers to Article IV, Section 2. That doesn’t necessarily mean that the 14th is limited by Article IV, of course. Still, can someone help me to understand exactly what “Priveleges” and “Immunities” are, per SCOTUS decisions and other relevant case law?
March 2, 2010, 3:10 pmPersonFromPorlock says:
Maybe Gura thinks that time-hallowed error isn’t one of the ways to amend the Constitution?
March 2, 2010, 3:16 pmLeopold Stotch says:
Barry,
That question is pretty hotly debated. I don’t think you’re going to get a fair picture of the possible answers in the comments section of a blog, even this one. Reading the merits briefs in McDonald would at least serve as an introduction to the subject, and would point you toward other resources. http://www.chicagoguncase.com/
March 2, 2010, 3:22 pmMike McDougal says:
Clean out your dirty penumbras.
March 2, 2010, 3:25 pmJonathan Goldstein, Esq. says:
I was present for the oral argument today. A few thoughts:
It seems to me that you have to have a Ph.D. in American History and a J.D. from a top, top school just to stand up in front of these guys. Anything less and you’re toast. It was like watching nine Enlightenment geniuses who have such a broad expanse of knowledge that it is hard to fathom how much they know. Their facility at quoting, questioning on and retorting with 225 years of the core knowledge of Western civilization is to be much admired.
I also was struck at how good our system is at ferreting out the truth. The lawyer for Chicago put forward a really intellectually tenuous position – that the rest of the rights in the Bill of Rights were fundamental, but that the 2nd Amendment was not and that the right to self defense was still important and should be protected in an unnamed way at some later date. Four of the justices saw it and jumped all over it and tore him to shreds on it. The crowd actually laughed twice at his answers they were so specious. Scalia in particular wondered why at a later date the court would protect an ephemeral, ill-defined, unnamed federal right, but not protect the 2nd Amendment with incorporation when it had the very case before it that would enable this protection.
Bryer at one point tried to argue for incorporation of only part of the 2nd Amendment (possession of those arms necessary to become part of a militia). His colleagues did not take kindly to that point of view. It was very clear that Bryer was still angry about the Heller decision and you could tell he was engaged in raw, naked political maneuvering to limit the efficacy of the 2nd Amendment in any way he could, intellectual honesty and consistency be damned. He tried several times to re-argue Heller and his colleagues wouldn’t indulge him.
Scalia and Bryer got into it a bit as Bryer tried to make a statistical argument for banning guns (by asking Gura questions about a statistical argument argument). Scalia used one of my favorite retorts when pushing back on Bryer: moral arguments are not made with statistics.
The truth came out and it is now up to these justices to decide if they’re going to be intellectually honest about what they saw. It doesn’t make any sense not to incorporate the 2nd via the 14th and the fact that the Chicago attorney was all over the map as he tried to defend the idea (read the transcript) is solid proof.
I’m adamantly pro-gun and I’m hopefully for a good, pro-gun outcome. I predict a 5-4 vote to incorporate the 2nd Amendment against the states via the Due Process clause of the 14th Amendment. Privileges or Immunities is not going to happen. No way. They were all over Gura on it in the first 5 minutes of his time. Even Scalia was all over him on it. If they do incorporate, they’re going to do it the easy way. Sorry, Institute for Justice.
If you’re pro-gun, you better be very, very thankful that the NRA hired Clement to argue for Due Process incorporation. It is the winning argument.
I believe the court will decline to entertain overturning Slaughterhouse, but that you’ll see an opinion from Justice Thomas expressing the fact that he thinks it is a good idea to do and hopes it will happen in the future.
March 2, 2010, 3:30 pmSteve says:
Well churches aren’t exempt from zoning regulations and building codes. You can’t build one in the middle of a subdivision. Right?
But those are neutral zoning laws that apply to all sorts of buildings. A gun license is only for guns.
March 2, 2010, 3:38 pmjnheath says:
What does incorporation “of the prefatory language” mean to you? As for checking the federal government’s militia powers, SCOTUS held in 1820 that “Upon the subject of the militia, Congress has exercised the powers conferred on that body by the constitution, as fully as was thought right, and has thus excluded the power of legislation by the States on these subjects, except so far as it has been permitted by Congress; although it should be conceded, that important provisions have been omitted, or that others which have been made might have been more extended, or more wisely devised,” which J. Scalia acknowledged in his opinion as well. Congress has plenary power over the militia. The Second Amendment did not reserve or un-delegate any power to the states. It apparently “protected” the state militia only to the extent of protecting an individual right that could not be made conditional on militia service, or else nothing at all would be protected from Congress. If you can show in militia law that the 2nd Amendment or any other provision limits federal power to disrupt the militia please do so. SCOTUS held in _Selective Draft Law Cases_ that Congress can abolish the militia by conscripting all the members into the army.
I thoroughly researched (and published on) the federal power to preempt state militia law. The prefatory language *becomes meaningless* if it is used to limit the second clause, because Congress can exclude anybody and everybody from the militia, or ill-regulate the militia into ineffectiveness or non-existence. If I am wrong, please show me the militia caselaw that says so.
As Judge Advocate S.T. Ansell wrote in YLJ in 1917, “Of course all state law upon the subject of militia organization, including age limits is in abeyance, since the National Defense Act so completely covers that field. Federal law alone governs.”
March 2, 2010, 3:47 pmmack says:
I could kiss Gura for this little quote:
“But at least we know one thing, which is that in 1868 the right to keep and bear arms was understood to be a privilege or immunity of citizenship, and if the Court is considering watering down the Second Amendment perhaps it should look to text and history.”
March 2, 2010, 3:48 pmAnonsters says:
I actually think that’s the right answer.
They wanted to give the finger to the law professoriat.
March 2, 2010, 3:51 pmmike says:
Sounds like the justices are comfortable with using the constitution to LIMIT our rights.
March 2, 2010, 3:52 pmLeopold Stotch says:
@ruuffles,
Yeah, what Steve said. You don’t actually think your zoning and building code argument in any way disposes of Ashrak’s point, do you? Aside from the fact that those kinds of ordinances burden free exercise only incidentally, making them anything other than neutral would probably violate the Establishment Clause? Whereas licensing possession of firearms (and prayer books, hypothetically) goes directly and intentionally to the core of the enumerated right, and is therefore far more problematic. Problematic does not mean impermissible in all cases, but surely you see the distinction. Right?
March 2, 2010, 3:52 pmSkyler says:
I guess the only solution, like with the 10th Amendment, is to re-amend the Constitution along those lines but this time to add the phrase “and we really mean it too.”
The Court seems to think that it writes the Constitution rather than merely interprets it.
March 2, 2010, 4:09 pmLeopold Stotch says:
I repeat the question I asked earlier:
March 2, 2010, 4:21 pmSkyler says:
There are two privileges and immunities clauses in the Constitution. One is in Article IV, Section 2, the other is in the 14th Amendment. The issue being argued is whether the “due process” clause or the “privileges and immunities” clause of the 14th Amendment will be used to incorporate the 2d Amendment as a right to be recognized by the states.
March 2, 2010, 4:25 pmBrett Bellmore says:
Sure, it does. Steven’s interpretation of the 2nd amendment is that he doesn’t want to be lynched by a mob of angry gun owners for denying that the 2nd amendment guarantees any sort of right AT ALL. (While not wanting to guarantee any sort of right at a…) Clearly he wants that right incorporated against the states…
March 2, 2010, 4:32 pmAnonsters says:
Actually, there’s only one privileges and immunities clause (Art. IV). And there’s one privileges or immunities clause (14A).
March 2, 2010, 4:35 pmAshrak says:
Well, it is referred to as that today. Not unlike how a statement is made “That’s Bad!” referring to something that is quite good. In terms of the 14th, rights and privileges or immunities are the same thing.
If they are actually different things, then all we do have is government allowed permissions and the 14th did the opposite of what the 13th did.
March 2, 2010, 4:45 pmGuy says:
That’s the silliness of this whole debate, it’s completely metaphysical and academic. Had the PorI Clause not been rendered a nullity, it’s difficult to imagine that it’s jurisprudential evolution would have been any different from that of SDP. At best it’s an attempt to declare a mulligan to attempt to reshape the rights protected by the 14th amendment without regard to precedent.
March 2, 2010, 4:46 pmAshrak says:
I am not so sure about. Due Process implies government affords us a right. Heller was clear that is not the case. I remain confident that a substantial P or I decision of the positive nature is afoot. Gura’s opening and closing statements are pretty tough to ignore.
March 2, 2010, 4:58 pmRepeal 16-17 says:
My prediction:
1 – The Court will unanimously vote for incorporation of the Second Amendment.
2 – The vote will be 5-4 to declare the Chicago gun ban to be Unconstitutional.
3 – The Court, with the possible exception of Thomas, will punt on the Privileges or Immunities Clause.
March 2, 2010, 5:11 pmRick Randall says:
Not quite. The Court could simply IGNORE the P&I clause in THIS ruling, leaving P&I at status quo.
March 2, 2010, 5:16 pmAshrak says:
It seems to me that if the court wanted to just punt the P or I question, it would not have allowed it to be asked in the first place.
The best thing that could happen over the course of the next few months is for members of the so called “black community” to stand up tall just like Otis did. Some are, it is my hope many more do.
March 2, 2010, 5:25 pmKharn says:
See Dred Scott.
March 2, 2010, 5:31 pmParatrooperJJ says:
Except for the fact that the federal National Guard and the state National Guard are two entirely separate entities.
March 2, 2010, 5:42 pmBobN says:
Not winning on P&I now does not toss that eminently reasonable position into the dustbin of history. The track record of creeping incrementalism by the Progressives over the last century demonstrates that this fight will take patience and continued pressure, but it is not over.
March 2, 2010, 5:47 pmPersonFromPorlock says:
However, it will be the Heller Second Amendment, not the Constitution’s. The one that lets you keep and bear arms around the house, once the paperwork’s been approved.
March 2, 2010, 5:58 pmDon Miller says:
I agree that it appears the Court will incorporate the 2nd amendment against the States and communities.
Whoever asked that the NRA show constraint in choosing future cases to argue to define the extent of this right missed the obvious problem.
The NRA didn’t want this case to go forward. They didn’t want Heller to go forward either. They did an admirable of stepping up and helping this case along when it got to the Supreme Court level, but they didn’t start this.
I believe the driving force in future 2nd amendment litigation will be:
1) Private Citizens who want to own weapons that their community bans
2) Criminals, with aggressive Defense Attornies or Pro Se, who will try and get their convictions overturned
March 2, 2010, 6:06 pmCrafty Hunter says:
While the current leaning of the Court on this issue is good news, I cannot help but be depressed that the substantive outcome will likely be (once again) so narrowly supported. One really wonders what Benjamin Franklin and Thomas Jefferson would have thought of this wordy tempest over the plain meaning of the right to keep and bear arms, and further what they would have thought of an entire Constitutional amendment being needed to give that right any real chance against the States.
March 2, 2010, 6:10 pmgullyborg says:
OK, after reading all of this, here is my prediction:
Plurality:
Roberts writes, joined by Scalia, Kennedy and Alito. Holds the specific Chiago ban unconstitutional and incorporates 2A under DP. Does not address P&I. Leaves open the idea that less restrictive laws may be constitutional.
Concurrence:
Thomas concurs in the outcome, but supports P&I argument. Suggests that other laws be viewed with strict scrutiny.
Concurring in part and dissenting in part:
Stevens writes, with Ginsburg and Sotomayor. Concurrs with incorporation under DP, but suggests partial incorporation. Suggests Chicago ban remains constitutional under rational basis.
Dissent:
Breyer writes about imaginary triangles and pyramids of incorporation, supports rational basis for all 2A laws, cites foreign law and the international community, quotes fine legal scholarship and statistical analyses of gun violence, mentions unicorns eminating in the penumbras, and argues that Heller was wrongly decided and should not be part of the reasoning here.
March 2, 2010, 6:11 pmSGD says:
The brief does end with “For the foregoing reasons, the decision of the Court of Appeals should be affirmed.” I don’t see how that can be reconciled with a belief that the second amendment does not protect an individual RKBA. There are are other places in the brief where the individual interpretation is labeled as “correct” or something like that.
But no, I can’t point to any specific quote by Bork, outside of the brief, showing that he has come to Jesus on the second amendment.
Skimming that brief again, the approach it takes was largely adopted in the Heller opinion (individual right, core protected but no level of scrutiny specified, exceptions outside of the right).
March 2, 2010, 6:20 pmJoe K. says:
Jonathan Goldstein, Esq., said: “If you’re pro-gun, you better be very, very thankful that the NRA hired Clement to argue for Due Process incorporation. It is the winning argument.”
Come on; give us a break. Clement’s 10 minutes could have been held in silence and Gura’s case still wouldn’t have been even 1% weaker. Everyone knew the due-process argument was a slam dunk heading into oral argument. As Gura previously said re: P or I, “You can’t get what you don’t ask for,” so ask he did. Nothing ventured, nothing gained.
As for the NRA and Clement, they shamelessly jumped into this case at the last minute for their own selfish gain. End of story. Anyone who knows anything about the NRA’s attempts to undermine Heller knows this to be true.
March 2, 2010, 6:27 pmRecentGrad, BarSurvivor says:
I wonder this too: Why isn’t this (or why can’t it be) simply a case of supremacy? On its very face, the 2nd amendment isn’t limited to Congress. You can’t very well protect yourself from the federal gov’t if you allow the state gov’t to supervene. Especially if you accept this is a personal right. Of all the mess of law, conlaw is the most needlessly messy.
March 2, 2010, 6:31 pmRepeal 16-17 says:
I don’t believe Thomas would prevent a majority from forming. What he would do under your scenario would be to join the 4 Justices wanting to incorporate under the DPC, while also submitting his own concurrence saying he believes incorporation also could have been done via PIC.
March 2, 2010, 6:32 pmYu-Ain Gonnano says:
@Leopold Stotch
This layperson’s understanding of where the differences are between SDP and P/I is that under SDP, Chicago’s ban *could* potentially be constitutional if they were to put “due process” around it. For example a blanket ban wouldn’t work, but including a “sentence” of RKBA revocation to any and all crimes (including speeding and/or parking violations thus practically ensuring no one could own firearms) would be acceptable since “due process” would have been observed.
P/I would say you can’t do it period, no matter the process.
And before anyone jumps on allowing murderers to own guns, it seems to me that if we can’t trust someone to excersize their rights peacefully, they shouldn’t be let out of jail to start with.
March 2, 2010, 6:44 pmPatrick J. Charles says:
Well, the militia clause means something different to me than it does to you. I am not sure what and where you researched. In my book, The Second Amendment: The Intent and Its Interpretation by the States and the Supreme Court, I take note of the substantial historical data that shows the power over the militia was concurrent unless the militia was called upon by the federal government. I am not the only person to come to this conclusion. Steven Vladeck has a similar conclusion in his article Emergency Power and the Militia Acts, 114 YALE L.J. 149 (2004). Here is what I wrote in my forthcoming article to Northeastern Law Review:
I cannot provide footnotes here, but I would turn your attention to the Selective Draft Cases where the Supreme Court determined the power was concurrent. The court wrote:
March 2, 2010, 6:57 pmLeopold Stotch says:
@Don Miller
“The NRA didn’t want this case to go forward.”
Wrong. NRA didn’t want Heller to go forward, because it didn’t think the votes were there. (And if the Court hadn’t gotten two new members between the time Heller was filed, and the time it got to the Supremes, they’d probably have been right.) But NRA was fully on board with incorporation litigation from day one, and filed its own parallel suit against various Illinois municipalities immediately after the Heller decision was released, just as Gura did. The cases were consolidated in the 7th Circuit. It just so happens that the Supremes granted cert. in Gura’s case.
Nevertheless, you’re probably right about the future of 2A litigation. Development of Fourth, Fifth and Sixth Amendment jurisprudence is largely driven by individual citizens with legal troubles, not by advocacy groups, and the Second Amendment may turn out to be much the same.
@SGD,
Meh, that’s your basic, pro forma conclusion to a brief, as taught in first semester legal writing. I’m not sure I give it much weight as an expression of Bork’s position on the 2A. I suspect Bork agreed to sign onto that brief because he believed the arguments, read narrowly, were correct and were not inconsistent with his expressed views of the 2A — and because some of his conservative buddies begged him to help them out. But I could be wrong. Maybe he really has come to Jesus. Not that it matters much anyway, now.
March 2, 2010, 7:00 pmSteph says:
Yes by not following the law to reach the right result we give more amo to legal realists which leads to more political hackary by judges.
March 2, 2010, 7:04 pmPubliusFL says:
Separate entities, but the same members. Each Guardsman is a member of both the federal National Guard and state National Guard. As far as I know, it’s not possible to join JUST the state Guard.
March 2, 2010, 7:09 pmWilliam O. B'Livion says:
You have the same right to all of those that you have to the means to defend yourself, your family and your community. Well, almost the same, since “keep and bear” is an enumerated right.
However, like Arms, having a right to something is different than there existing an obligation on someone else to provide it.
The 1st amendment does not require the government to build me a church, to provide me access to a printing press, or even to paper on which to write my petition.
The second does not mean the government must provide me with a firearm. It “merely” (on plain language reading) allows me to provide my own.
I don’t know what other rights are out there, but since “We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness. — That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed…” maybe Gura should have manned up and suggested that there certainly *were* other rights out there, and maybe some of them SHOULD be protected at the federal level, but that that was beyond the scope of his arguments–he was just worrying about this one.
That probably wouldn’t have been the best course of action, which is why I do what I do, and not argue obscure crap in front of 12 old judges.
March 2, 2010, 7:09 pmporterhouse says:
The Stevens’ dissent was the correct interpretation of the 2nd Amendment. I would suggest that the 2nd Amendment is a federalism provision and, much like Thomas’ analysis of the Establishment Clause in Elk Grove, should not be incorporated.
Scalia’s majority opinion in Heller is so convoluted and intellectually dishonest that it makes it very difficult for the liberal justices to go forward in McDonald, which is why they just need to incorporate and try to limit the right to self-defense in the home.
March 2, 2010, 7:12 pmMick says:
I know you are right, logically.
March 2, 2010, 7:17 pmPeter K. Boucher says:
Does anyone else find it odd that the justices are “troubled” by the idea of Gura not being able to enumerate a complete list of unenumerated rights?
March 2, 2010, 7:42 pmLeopold Stotch says:
@Steph,
This is an important point only if one believes the justices don’t already have more than sufficient “ammo” for that purpose. I think they do, and I don’t see how deciding this case on P or I grounds would change that. If anything, it seems to me that a revitalized P or I Clause would be just as tempting an invitation to invent rights as SDP ever has been. I think that’s precisely why all sorts of academics and media types who don’t like guns and think Heller was wrongly decided nevertheless got behind P or I incorporation in McDonald.
March 2, 2010, 8:26 pmjnheath says:
Patrick J. Charles — My article is online at http://guncite.com/journals/heath.html. The militia power is concurrent only to the extent that Congress allows it to be concurrent. A power “concurrent” to that delegated Congress is only concurrent until preempted by federal action. The passage of _Select Draft_ you quote above explicitly recognizes the power of Congress to eliminate the militia by concription. Per _Houston v. Moore_, which was an important antecedent to _Gibbons v. Ogden_ and which was cited as precedent in _Prigg v. Penn._, _Cooley v. Board of Port Wardens, _Penn. v. Nelson_, and other important cases, Congress can wipe state militia laws away even with an admittedly *deficient* federal militia law.
I can cite many examples.
E.g. Houston v. Moore: “Upon the subject of the militia, Congress has exercised the powers conferred on that body by the constitution, as fully as was thought right, and has thus excluded the power of legislation by the States on these subjects, except so far as it has been permitted by Congress; although it should be conceded, that important provisions have been omitted, or that others which have been made might have been more extended, or more wisely devised.”
Or the unanimous advisory opinion at 80 Mass. 614: “The question upon the construction of this provision of the Constitution is, whether this power to determine who shall compose the militia is exclusive. And we are of opinion that it is. . . . The general government having authority to determine who shall and who may not compose the militia, and having so determined, the state government has no legal authority to prescribe a different enrolment.”
I found counter-examples, too, that prove my point by having been invalidated. E.g an 1812 Mass. advisory in which the court wrote “”subjecting them to the command of the president, would place all the militia in effect at the will of Congress and produce a military consolidation of the States without any constitutional remedy.” This argument was invalidated by _Martin v. Mott_ in 1827.
Or Kneedler v. Lane, in which the Penn. court invalidated federal conscription in part because it “interfered” with the state militia. This decision stood for nine weeks in 1863, and was definitively rejected by SCOTUS in _Selective Draft_.
March 2, 2010, 8:29 pmLeopold Stotch says:
@Yu-Ain Gonnano,
You’re conflating substantive due process and procedural due process.
March 2, 2010, 8:30 pmjnheath says:
It appears to be possible for a state to retain a Guardsman after he has been disqualified from federal service, but the state risks losing all its federal funding if it does this. There’s a California case on this, Holmes v. Cal. Nat. Guard.
March 2, 2010, 8:43 pmSteph says:
That is corect, that is why Allan Gura Argued the P or I clause, because the RKBA is a privilage or imunity of federal citizens. It is the P or I cluase that ought to incorporate the bill of rights against the states, not the due process clause, though they both protect rights, just different ones.
March 2, 2010, 8:43 pmPatrick J. Charles says:
We will have to agree to disagree. A look at the original intent in this area disagrees and so does a James Madison advisory opinion on this issue. Look also in the congressional debates on the militia clause when there were problems with the 1792 National Militia Act. If I remember right, from Heller, Scalia does not cite to the cases you sight. Moreover, all the early constitutional commentators disagree with you on this point as well. So we will agree to disagree.
March 2, 2010, 8:50 pmLeopold Stotch says:
@Joe K,
NRA obviously wasn’t happy about being shut out of the second Supreme Court Second Amendment case in the past seventy years, and it’s safe to say that hiring Clement and barging into oral argument didn’t endear them to Gura. But they were involved in incorporation litigation from the day Heller was decided. And frankly, it’s unlikely Heller ever would’ve happened if NRA hadn’t been laying the political groundwork for the past forty years, and helping support many of the guys who began the process of laying the intellectual groundwork. Gura deserves credit for making a winning argument in Heller, but he didn’t do it in a vacuum.
March 2, 2010, 8:55 pmsfalphageek says:
While all members of the National Guard are members of their respective state militias, not all members of the state militia are in the National Guard. Many states have laws defining their “unorganized militias” liable to be called into service by the state as all able-bodied males between certain ages, and some states have organized volunteer militia units (called the “State Guard” or similiar) not part of the National Guard, that are intended the take over the state mission when the NG is in federal service. As an example, officers in these militia units hold a commission from the Governor of their state but these commissions are not federally recognized.
March 2, 2010, 8:58 pmjnheath says:
HA! That’s really cheap, Patrick. A bald, unsupported claim that “a look at original intent” proves your argument is hardly worthy of you. SCOTUS adjudicated this point in 1820 and has been consistent on it since that day. All the justices agreed at that time that conflicting state militia laws must yield to federal ones. The Court’s opinion held that *all* state laws were preempted, whether they conflicted by their terms or not. EVERY standing court decision on the preemption of state militia law I could find, is consistent with this. If you have some militia law to cite, please do so. If you don’t, then you don’t have a legal argument.
March 2, 2010, 9:14 pmPayback101 says:
I’ll make this really simple, the court goes for McDonald AT LEAST 5-4, possibly 6-3, maybe 7-2. Remember Obama spanking the court for its decision on campaign finance during the state of the union speech? Payback101 baby! You’ll be able to defend yourself on the streets of Chicago before long. In addition to Obama being the NRA’s gun salesman of the year, he’ll now become the excelerant for legal firearms ownership across the country with this case. Mmmmm, MMMmmmm, MMMMMMM!
March 2, 2010, 10:15 pmDowlan Smith says:
If the 2nd is incorporated how long before a case based on “shall not be infringed” is brought?
March 2, 2010, 11:33 pmKazinski says:
I liked the Scalia exchange with Breyer, where Breyer argued the use of statistics by a legislature in the calculus between gun rights and excess deaths should take precedence over the 2nd amendment, and Scalia countered that nobody looked at statistics on how many excess deaths were attributable to improperly Mirandized suspects that were let go.
March 3, 2010, 1:53 amAlphecca » McDonald v Chicago: Opening Arguments says:
[...] See: Here [...]
March 3, 2010, 5:13 amRick Randall says:
For all that “unanimous verdict” is enshrined in criminal practice and federal civil cases, NOTHING in the 7th Amendment actually says the verdict of any jury must be unanimous. Any claim that teh 7th Amendment requires unanimous jury verdicts must find it’s support outside the words of the Amendment.
Overturning Slaughterhouse and reviving a strong Privileges or Immunities incorporation path would not NECESSARILY change current practice in regards to state civil juries. (It PROBABLY would, not not NECESSARILY.)
March 3, 2010, 9:47 amRick Randall says:
True, but they can’t stop you from holding religious services in your home, either.
March 3, 2010, 9:58 amRick Randall says:
Depends on the state. In fact, many states have an organization entitled “State Defence Force” or “State Guard”, which is the portion of the enrolled militia of the state that is NOT part of the state National Guard.
And, almost all of those people are ALSO members of the unenrolled federal militia (some states do not discriminate against females in tehir militia law, unlike federal militia law).
Now, Congress can remove the entire state militia from state control by the simple expedient of calling them all up as federal militia. But that doesn’t mean Congress can simply destroy the state militia — only that they can borrow it at will. (That’s basically what the draft was — retail militia call ups, rather than wholesale.)
March 3, 2010, 10:11 amRick Randall says:
One response: “You have the right to an attorney. If you cannot afford one, one will be provided.”
March 3, 2010, 10:15 amcboldt says:
– but they can’t stop you from holding religious services in your home, either. –
Yes, they can, depending on what you mean by “holding services.” Too many cars parked in residential areas is a rational basis for limiting “holding services”
Under the Watchful Eye: Free Exercise of Religion in the Home?
March 3, 2010, 10:44 amRick Randall says:
And yet, form further down in the VERY ARTICLE YOU LINK, there is the outcome of the case:
(Emphasis added)
Your own citation supports MY postion, not yours.
March 3, 2010, 11:52 amjnheath says:
I do not think we necessarily disagree, but bccording to _Selective Draft Law Cases_, Congress can abolish the militia by conscripting all the members. And according to _Houston v. Moore, Congress can preempt all state militia laws even with federal legislation that is deficient for the purpose of regulating the militia. And I’ve seen state decisions holding that Congress can exclude pretty much any class of citizens from the militia, thereby preempting the state from including them in the militia.
March 3, 2010, 12:01 pmRick Randall says:
For some reason, I went in to make an edit, and none of my edits were saved. . .
For further clarification, your own citation supports my position, not yours — as the Maryland case law cited by the Pacino’s attorney showed:
March 3, 2010, 12:03 pmcboldt says:
– Your own citation supports MY postion, not yours. –
March 3, 2010, 1:45 pmMy position was “it depends.” Pachino’s activities didn’t trigger the criteria, but that doesn’t mean the criteria can’t be met in another case.
Rastafarian’s don’t get a pass, even if the services are intermittent.
I haven’t read through these yet, but they seem to cover a larger set of cases.
The Intersection of Zoning Regulations, Religious House Meetings …
House Church Meetings: A Legal Analysis 2
Rick Randall says:
Don’t overlook the phrase
While Congress has wide discretion in calling up the militia — even the entirity of the militia — that is the extent of it’s ability to take away the power of the state to haven a militia.
In other words, if Congress decides to draft so many members of the militia that the state does not have one, that’s fine.
Of course, that means conscripting basically the entire able-bodied adult male population. . .
The cases in question concerned draft resisters who were claiming the entire conscription system was unconstitutional because they, as members of the state militia, were not subject to it.
This ruling means that Congress can draft into federal service as much (or as little) of the militia of the states as they wish. Once in federal service, they are under federal control.
No more, and no less.
Of course, I have issues with the Court’s conclusion that involuntary military service is not “involuntary servitude” as prohibited by the Thirteenth Amendment, but that’s a different issue altogether.
March 3, 2010, 2:21 pmRick Randall says:
The “cirteria” in question is whether they use the building as a church, in which peole incidentally live, or whether they hold religious services in their private home.
An analogous comparison is the difference between setting up a cot and hotplate in your office, and bringing some work home.
As one of your newer citations indicates (the other link not working for me), the question may be “Is religion the primary use of the property?”
In many other cases, the question may be, is there a compelling state interest in prohibiting certain behaviors in certain zones, even if in this individual case, the activity is religious. For example, if I worship at the altar of John Moses Browning (PBUH), I am NOT free to celebrate his birthday by firing my 1911 in a residential area — even I truly believe that Browning is divine and Cooper was his annointed prophet.
Most of the cases in the Law Review you cited where the courts upheld the restirctions, invloved regular, scheduled, meetings of large (for the house size — i.e., 25 to 40) participants. A church is not free to ignore zoning requirements and just build it’s house of worship wherever it pleases, even if someone sleeps there.
As for Rastafarians, the biggest issue they have is the fact that smoking marijuana is one of their religious practices, and the federal courts have refused to uphold marijuana smoking, even at home, even for religious purposes. The problem isn’t with zoning laws in those cases — it’s the War on (Some) Drugs.
March 3, 2010, 2:50 pmBored Lawyer says:
Without wading into the details of the zoning debate, it seems to me that any zoning regulation has to be religion neutral.
A regulation which allowed you to have a bridge-club meeting in your house once a week but which forbade you to a prayer meeting in your house once a week (assume same number of people — e.g. 12 attendees), would run afoul of the Free Exercise Clause.
In our town, they allow a gathering of up to 49 people in a private residence — for any purpose. If you do it regularly, you need to get a safety certificate from the Fire Marshall (about $25). Again, any purpose, religious or secular.
March 3, 2010, 3:18 pmporterhouse says:
Also keep in mind the states were to appoint officers for the militias–so the officers would be loyal to the states, not the federal government…which is a federalism provision.
The 2nd Amendment is difficult for so many people to grasp because they simply do not understand the concept of federalism at the time our Constitution was written. For example, senators were appointed by state legislatures, not directly elected…this was a federalism provision.
Scalia plays on this ignorance in his majority opinion in Heller, and that is why the opinion is so intellectually dishonest. Thomas comes off just as bad for joining the majority, because in Elk Grove he proves that he has a deep understanding of federalism, but ignores it for political expediency.
March 3, 2010, 3:28 pmAshrak says:
Federalism at the time of the Founding was not a banner under which to bury natural rights at the state and local level.
March 3, 2010, 6:47 pmporterhouse says:
So why didn’t the SCOTUS rule Virginia’s original state Constitution unconstitutional due to the fact that it did not include the RKBA? George Mason, James Madison, and Thomas Jefferson clearly had NO clue what they were doing.
March 3, 2010, 7:41 pmAshrak says:
Why did SCOTUS decide KELO the way it did?
March 3, 2010, 8:49 pmBecause it can.
porterhouse says:
Conservatives have benefited greatly from private use of eminent domain. None other than George W. Bush was able to get the city of Arlington to condemn land in order for him build his baseball stadium that made him a multi-millionaire. Bush also advocated a sales TAX INCREASE to get his stadium built. If that stadium is never built Bush would never have become governor or president, and he would never have appointed Roberts and Alito.
So next time you criticize Kelo keep in mind that you might be denying a Bush the ability to become a millionaire and then run for governor of a Sun Belt state and then become a Republican president that tries to cut taxes and limit Kelo.
March 3, 2010, 10:22 pmRick Randall says:
Article 13, Virginia Declaration of Rights, June 12, 1776. Unlike the Declaration of Independence (which is not actually part of the US Constitution), the Virginia Decalration of Rights IS a part of Virginia’s Constitution. One reason is that they were both written by the same group of men, about two weeks apart.
They were developed in conjunction. The Virginia Declaration of Rights was the BASIS of the Bill of Rights. The REASON they were done as seperate documents was to seperate the document covering GOVERNMENT (the Constitution) form the one covering RIGHTS (the Declaration). They are NO rights garanteed in the 1776 Virginia Constitution, other than to establish the method of selecting members of the House of Delegates as unchanged — this Constitution basically says, “Everywhere you read ‘King’ or ‘Crown’ in existing Virginia law, substitute ‘Commonwealth of Virginia’, and here’s a few places we have to step in, since the King and Parliment won’t be appointing people for us anymore.”
RKBA (along with what was basically later seperated out into the Declaration) was even present in the first drafts of the Virginia COnstitution of 1776.
Now, the Supreme Court cannot just “invent” a case — while it can reach down and grab a case from a lower level if it chooses, there must actually BE a case in the first place.
There is no record of ANY challenges to the Virginia Constitution on teh basis of RKBA until well after the US Bill of Rights in December 1791 (a mere three and a half years after the US Constitution was adopted which; with the 9th and 10th Amendments, means that the failure to explicitly spell out a right does not mean it doesn’t exist), much less 1830 (when the entire 1776 Virginia Declaration of Rights was formally inserted as Article I of the 1830 state constitution).
Heck the very first case actually HEARD by SCOTUS was a mere four and a half MONTHS before the US Bill of Rights was ratified — which made your hypothetical case for invalidating the VA Constitution of 1776 moot. The first SCOTUS case where a citizen sued a state wasn’t until February 1792!
Of course, this all begs the question — on WHAT basis could SCOTUS have invalidated teh Virginia Constitution of 1776, even if teh virginia Declaration of Rights had never existed, and even if SCOTUS heard and decided teh case before the Bill of Rights rendered it moot?
Was the US Constitution invalid from 1789 to December of 1791, since it also lacked RKBA? If it was invalid, how could it have been amended? How could it be Constitutionally invalid when it is ITSELF the only measure by which constitutionality can be determined?
Hint: The Constitution CANNOT be unconstitutional; even if you amend it and take something out — those sections were Constitutional, right up to the instant where the amendment that changed them went into effect. Take a minute and Wiki the 12th, 13th, 17th, 20th, 21st, 23rd, and 25th (all of which inarguably “overwrote” previous passages, not an exhasutive list). Everything those amendments changes was 100% Constitutional right up until the amendment that repealed or amended them in the existing Constitution went into effect.
March 4, 2010, 10:10 amRick Randall says:
Um, it was ANN RICHARDS (Democratic governor of Texas at teh time — and a personal and political ENEMY of all things Bush) who used eminent domain to sieze 13 acres of land for the new baseball stadium.
In addition to cash payments to repay the bonds, the Rangers GAVE their existing stadium (same footprint) to the City of Arlington, in exchange for the new stadium.
The City of Arlington agreed THEY would pay for the new stadium on the new grounds (on the 13 acres siezed on their behalf by Gov. Richards’s commission). When the bill came due, Arlington refused to pay, even though the agreement clearly stated it was their responsibility.
The land in question was NEVER given to the Rangers — it was ALWAYS held by the City of Arlingon, for the direct profit of the city through revenues.
Maybe if you did a little research before just whipping out old, tired Democratic Underground propaganda, you might be more successful.
March 4, 2010, 10:37 amRick Randall says:
And that’s how the court rulings tend to shake out.
They can ban large, regularly scheduled meetings, slaughterhouses, etc. in a particular zoning area — even if those activities are for “religious” purposes, provided they do so in a manner that is not singling out a particular religion.
For example, if they passed a zoning regulation about killing chickens only AFTER a bunch of Haitian immigrants moved in and started practicing Santaria. That would be a pretty obvious attempt to target a specific religious group.
But, most areas already have laws on the books about smoking weed. So the Rastafarians aren’t being discriminated against when they are told that they can’t smoke marijuana in large groups in their homes, even if it’s a sacrament to them. Despite the stupidity of the law, bannign the smoking of dope is a religiously neutral prohibition. It’s not like ONLY Rastafarians smoke weed.
March 4, 2010, 10:58 amRick Randall says:
Your disagreement with Scalia wpould be relevant if the Right to Keep and Bear Arms ONLY existed to allow the states to fight off the federal government.
In other words, the tired old collective rights theory.
The problem is that it runs counter to the history of the Revolution itself.
The colonists ALSO overthrew the exsiting colonial governments — in fact, AT THE BEGINNING, many “Rebels” were pleading with the KING to intervene, and protect them against the colonial governors and Parliment. Even after shooting had started.
The Second Amendment DOES have as A purpose, the people being able to fight off the government. It ALSO has as a purpose, being able yto fight off local tyranny (as has happened, even in the 20th Century. Google “Battle of Athens” — 1946, in Georgia). Where returning veterans took up arms, including cleaning out the local National Guard armory, and took control of the county government by force, ensuring a free and fair election count.
March 4, 2010, 11:10 amporterhouse says:
You are extremely naive and do not appear to be a sports fan. Stadiums are a big part of the value of a sports franchise, so the owners of the franchise receive a huge benefit (the value of their franchise increases) from new stadiums. The new stadium increased the value of the Rangers and increased Bush’s profit. Maybe if you did a little research before just whipping out old, tired Republican propaganda, you might be more successful.
Once again, Alito and Roberts are on the court today because private citizen Bush benefited from eminent domain.
March 4, 2010, 11:23 amporterhouse says:
Exactly, and the Virginia Declaration of Rights did NOT include a RKBA. The VDR does stress the importance of a militia to the defense of a free state. The several state militias were one of the foundations of federalism and would provide a check on tyranny.
March 4, 2010, 11:36 amporterhouse says:
The RKBA is a federalism provision, it was designed to prevent the federal government from disarming the several state militias. I suggest you read the Stevens’ dissent if you would like to learn moore about the purpose of the 2nd Amendment, Scalia’s majority is intellectually dishonest and just plain wrong.
The Framers were worried about anarchy as well as tyranny, so they wanted strong militias in order for stability and to prevent tyranny. This is the reason the 2nd Amendment stresses the importance of the state militias–the word “milita” in the 2nd Amendment does not refer to federal militia. The key to preventing tyranny would not be a bunch of individuals with guns, but well regulated militias at the state level that could stand up to a federal army attempting to impose tyranny. Once again, this is all in the Stevens’ dissent–you should check it out.
March 4, 2010, 11:45 amRon says:
The problem here is even if the thumbs up is given to incorporation we still have the problem with the level of scrutiny. We all know that it should be strict scrutiny, but even the SCOTUS is afraid of guns and what such a pronouncement might mean (i.e., most gun laws violate the Constitution). Also, Heller contains enormous holes. The acknowledgement by the Heller court that severe regulation and even bans can occur in “sensitive areas”, (intended for secure areas with armed guards, like airports and courthouses) was extended by the 9th Circuit in Nordyke to a county fair ground. Effectively, anything can be deemed “sensitive”, hence a de facto ban can be enacted. Exceptions swallowing the rule and all that.
March 4, 2010, 11:46 amRick Randall says:
Yes, Bush was so devious he convinced all the voters of the City of Rlington to just throw money at him, when the public referendum on teh matter was voted on.
Yeah, a backdoor deal — it only involved the voting public.
Must have been a very large smoky room. . .
The PEOPLE of Arlington voted, and decided to do it. The DEMOCRATIC governor appointed teh panel to conduct the emminent domain. The CITY refused to pay fair value for the property, as they had agreed to do in accordance with the referendum.
Yeah, it’s ALL Bush’s fault. What a devious, cunning person for someone who is such a drooling idiot — according to the memes.
March 4, 2010, 11:59 amRon says:
Do you really think that the right to self defense only exists in the home? As an aside, Scalia may have written the opinion but it is naiive to think that he didn’t have to give it to Kennedy for tweaking to gain Kennedy’s vote. I see Kennedy’s fingerprints all over it.
March 4, 2010, 12:04 pmRick Randall says:
Um, it defines the militia as the body of the people — not some selected few, and “militia” had, for 150 or so years in Virginia law, meant people keeping and bearing their OWN arms.
It was against the LAW to be without arms in Virginia. Had consistantly been so since Jamestown.
At the time the VDR was passed, there WAS no federal government to hold those rights against.
The original wording was “No freeman shall be debarred the use of arms” and another important phrase that carried over the existing colonial laws on militia was, “The laws heretofore in force in this colony shall remain in force, except so far as they are altered by the foregoing fundamental laws, or so far as they may be hereafter altered by acts of the Legislature.”
Heck, when Virginia ratified the COnstitution, it did so conditionally, with teh condition that bill or declaration of rights usfficient to protect certain enumerated rights was adopted to teh COnstutution, including:
Note the position of the semicolon — these are two different phrases here. First is the right of the PEOPLE to “keep and bear arms” (no qualifier as to purpose), the second is the declaration that a militia is a good idea. (There’s another sentance in 17 after this, stating that standing armies should be avoided in peacetime.)
The Commonwealth of Virginia’s Founding Fathers understood EXACTLY what they wrote. And they CONSISTANTLY treated Article 13 of the Virginia Declaration of Rights as enumerating an INDIVIDUAL right to keep and bear arms.
March 4, 2010, 12:26 pmRick Randall says:
Stevens dissent is:
First, the dissent — the side that lost the argument. This is the side whose reasoning was REJECTED by the Court.
Second, logically incoherent.
Third, proveably and historically false.
ALL of the writings by the men who actually wrote the Declaration of Rights, the US Constitution, and the Second Amendment are quite consistant. When they mentioned the limits of the right to “arms” AT ALL, they were insistant that it is an individual right, that it includes self defence, and that it is NOT limited to any connection to a militia (although it enables a militia), and that it includes individual defence of self and home.
It’s easier to make a logical Constitutional argument that “sporting” weapons with little military value are not protected, but selective fire assault rifles and high capacity handguns are protected beyond ANY regulation outside of the bare minimums (ensuring each member of the militia has at least one and can use it, not letting prisoners in jail keep guns, etc.), than it is to buy Stevens’s rambling.
Even liberal anti-gun law professors discarded the argument Stevens made ten years before he wrote the dissent! Which is why some were calling for an Amendment or Constitutional Convention as the ONLY way to lawfully get rid of guns!
March 4, 2010, 12:34 pmporterhouse says:
You have your facts wrong. Let me just give you advice for the future when you are analyzing facts–first look to see who makes money on a deal, and then start the process of analysis–this deal put millions into Bush’s pocket! Or are you suggesting the evil Ann Richards conspired to put millions of dollars into the pocket of Bush in an effort to discredit him?!? Were Hillary Clinton and Al Gore involved in this diabolical plan?!?
Bush advocated a sales TAX INCREASE to build his stadium, this was approved by voters–so Bush is for tax increases when it directly benefits him. The land grab was part of a back room deal and did not go before the voters, it did go before the Texas legislature…but not the voters. The city (actually a municipal sports authority created by legislation) condemned land for the Rangers, the landowners then sued the city for paying below market value. You seem to be under the impression the Rangers sued the city–the city was working with the Rangers.
Once again, a land grab that put millions into Bush’s pocket is what made him governor, president, and put Roberts and Alito on the court–the ends justify the means for conservatives.
March 4, 2010, 12:55 pmporterhouse says:
I actually do believe the right to wield a gun for self defense in one’s home is covered by the right to privacy. I think the 2nd Amendment is a federalism provision as laid out in Elk Grove by Thomas.
I agree with you that Scalia’s opinion has Kennedy’s fingerprints all over it. Kennedy most likely agrees with me and the general public that we do have some right to self defense and a gun is a great tool for self defense and part of culture and traditions. The liberal partisan hacks on the SCOTUS refused to expand the right to privacy so Kennedy did what was right and signed on with Scalia.
March 4, 2010, 1:02 pmporterhouse says:
The militia was a specific institution, the Framers believed civic virtue and that belonging to civic organizations was extremely important for free citizens. One of the reasons the US was able to break free of the British was because of the tradition of participation in organizations–such as the House of Burgesses. Some of the Founders were not necessarily Christians as we think of Christians today–but they all expressed the benefits of organized religion. The various churches were another institution in which citizens could organize and create a power structure. All of these various power structures independent of each other but made up of from the same pool of citizens would become powerful tools to check tyranny.
March 4, 2010, 1:13 pmporterhouse says:
Who cares which side won, we are discussing the meaning of the 2nd Amendment…was Kelo correctly decided, what about Roe v Wade? And why would anybody care what liberal professors think about a certain subject?
The BoR is concerned with preventing tyranny. Federalism was a big part of preventing tyranny, but it federalism has been greatly undermined over the last 200 years. The notion that the Framers would be concerned about self-defense from burglars while drafting the BoR is absurd. They were concerned with tyranny and ANARCHY. If individuals with guns are fighting the federal government then that means we would be in a state of anarchy. The key is prevent a state of anarchy and provide a check on tyranny that prevents a power grab by the federal government. Organized militias at the state level are the logical check on tyranny by the federal government–and this is the institution the Framers would have had in mind when drafting the 2nd Amendment.
March 4, 2010, 1:23 pmDavid E. Young says:
There is no doubt the militia powers, other than appointment of officers and training, are concurrent, as explained by Madison in the Virginia Ratifying Convention debates. There is also no doubt that the laws of Congress passed in pursuance of the constitution are the supreme law of the land and are paramount to state constitutions and laws, per Article VI of the Constitution, the supremacy clause. That is why both Mason and Henry argued that the militia powers given to Congress were “exclusive” and would allow the federal government to destroy the militia, either by ignoring them or abusing them. They wanted state militia powers to be gauranteed. J. N. Heath’s citations to Surpeme Court decisions of the early republic back up these historical points because federal courts have interpreted the powers as Mason and Henry did.
The problem for those trying to understand Second Amendment intent is that the militia powers related discussions in the Virginia Ratifiying Convention that relate to the above points have always been erroneously conflated with the Second Amendment. During the militia powers debate there, Mason specified a militia powers amendment as the sole solution he sought for the problem under discussion. The amendment he sought was not the Second Amendment but an entirely different amendment specifying state power to arm and discipline the militia, as examined at the final link below.
Far from relating to that subject, the Second Amendment resulted from debate over the necessity of including the individual rights protections found in the existing state decarations of rights in a new federal bill of rights, an argument which had nothing to do with state/federal militia powers distribution. Madison based the two clauses of his Second Amendment predecessor directly on Virginia’s proposed bill of rights, which consisted of quotes from the existing Virginia and other state declarations of rights. This reliance on state bill of rights provisions indicates the Second Amendment predecessor has nothing to do with guaranteeing militia power to the states, nor does it have a federalism intent because that is not something that can be based on the actual state bill of rights sources.
A major reason for continuing confusion regarding the Second Amendment is the astonishing number of documented historical errors in the professional historians’ Heller amicus brief as well as the English/Early American historians’ brief and the Pennsylvania history brief in McDonald. Analysis and documentation of the historians’ numerous historical errors are contained in 35 posts in three different series, each relating to one brief, at On Second Opinion Blog.
Justice Steven’s Heller dissent was founded upon the professional historians’ erroneous conflation of militia powers debate and the Second Amendment in Virginia’s Convention. This particular post directly addresses the conflation problem in that earlier Heller brief and by extension in the dissent.
March 4, 2010, 2:16 pmporterhouse says:
All of that is great, only one problem–the actual 2nd Amendment. I would argue that the most important scholarship regarding the 2nd Amendment is Volokh’s law review article in which he comes up with an alternative definition for the word “state” in the amendment. Up until right wing scholars figured out a way to deal with that word the supposed facts you lay out are meaningless–which is why Scalia used Volokh’s argument.
I actually agree with the outcome of Heller, so I owe a debt of gratitude to Volokh even though I know his argument regarding the word “state” is wrong. My problem with Heller is with the dissent, the left wing needed some creative scholars like Volokh figuring out a way to give us a right to self defense that would strengthen the right to privacy.
March 4, 2010, 5:13 pmRick Randall says:
Actually, the problem is that you are taking an dependant clause, and treating it as if teh OTHER half oif the Amendment is the dependant part.
Explaining one reason why RKBA is a good idea doesn’t change the fact of the actual meat of the sentance:
The right of the people to keep and bear arms shall not be infringed.
Semantically, the meaning of the Amendment doesn’t change, whether the dependant clause reads that the militia is necessary to the security of a free state, or whether it reads “Clowns being scary, the right of the people to keep and bear arms shall not be infringed.”
The right is still the same — the right of the PEOPLE to keep and bear arms without infringement.
Where is the state given any actual authority (or “rights” if you prefer that terminology?)
What is the prohibited conduct? Keeping and bearing arms by the people, or the infringement thereof.
March 4, 2010, 5:35 pmporterhouse says:
If all you said was true, why would I want to argue with you about the meaning of the word “clown”? I wouldn’t cite a law review article from 2007 on the meaning of the word “clown” if the clause didn’t matter.
March 4, 2010, 6:09 pmJ. Aldridge says:
But apparently Slaughterhouse was very correct with their interpretation of the P&I clause as pointed out here.
March 5, 2010, 5:07 am