Merkinball
Deity
Leading law scholars that have blatantly rewritten constitutional history. Yup. These people not only deserve work, but should be molding minds in Harvard and Yale. That's great. This is just great.
SCOTUS to rule on 2nd Amendment
- Thread starter Bugfatty300
- Start date
Leading law scholars that have blatantly rewritten constitutional history. Yup. These people not only deserve work, but should be molding minds in Harvard and Yale. That's great. This is just great.
Cool. We'll ramp up our alleged (and actually non-existent) torture program!
Instead of making a blanket statement, you could actually post a response detailing how this so-called scholar has rewritten constitutional history.
It shouldn't be too hard right, if its so blatant.
First, thanks to you and Cleo for correcting my understanding of "not arbitrary or capricious".
As to a Kennedy concurrence, the only thing I can think of is that that would have effectively provided a laundry list of sub-issues that implicitly did not have a SCOTUS majority to support them, and also leaves no room for plurality discussions and 4-1-4 math to confuse the plebs.
You would think so, but they try (and Chief Justice Roberts tries particularly hard) to only answering the question they're asked, which when you think about it is only fair - the folks arguing either side didn't argue about machine gun laws and so the justices really didn't hear a proper argument about them. Them going and striking down 922(o) (the law that covers automatic weapons registration) without being asked would truly be judicial activism.
They also weren't asked about incorporation (indeed, being able to set aside the incorporation question was why this case was brought up in Washington DC in the first place), but while it wasn't ruled on, I think that Scalia really left no valid argument for why the 2A shouldn't apply to states and cities. The wheels of justice turn slowly (the case that we just got a SCOTUS ruling on was first filed in February 2003), but a lawsuit has already been filed in Chicago which should answer the incorporation issue one way or the other, hopefully in less than five more years. And in the meantime Mayors Daley (Chicago) Newsom (SanFran) and Bloomberg (NYC) get to sweat it out thanks partly to Mayor Fenty (DC) deciding to risk an appeal to SCOTUS. The "city" of Morton Grove, Illinois has already suspended their municipal gun ban, presumably figuring that the big cities with the big pockets to pay big law firms can fight the upcoming court battles.
Merkinball,
Did you even read the quotes or follow my link? Jack Balkin, the author of the second quote, thinks Heller was rightly decided. He agrees with you on the Second Amendment. He just thinks Scalia doesn't do what he says he does. Tushnet, the author of the first, doesn't really decide the issue, but notes that Scalia and Stevens don't do real history in their opinions.
Cleo
While catching up on some reading this morning, I noticed in a Wall Street Journal op-ed piece on Heller that Scalia may not be a slam dunk for incorporation. To the internets I went:
http://www.concurringopinions.com/archives/2008/06/so_lets_say_jus.html
http://www.concurringopinions.com/archives/2008/06/so_lets_say_jus.html
But they created the First Amendment to keep the federal government out of the press and religion, too. I don't understand why the First should be incorporated, but the Second shouldn't be - it just seems like blatantly ignoring the facts because it supports a certain political view. Is it actually any more nuanced than that, JR?
Indeed, and I for one really wish he had elaborated even slightly on "Of course, properly understood, it is no limitation upon arms control by the states." Does he mean what he said in Heller about there being other avenues to regulate guns, or that with something like 42 out of 50 states having rough 2A equivalents in their own state constitutions the federal one didn't matter, or something else?
As I've previously noted, his decision seems to divorce "militia" from "state" and so with an understanding that the 2A protects an individual right (one that is inherent and predates the US Constitution) and involves individual self-defense, I don't see any logic in states being allowed to violate the right while only the Feds are restricted from doing so.
I was quoting Scalia, so I don't think the "ignoring the facts because it supports a certain political view" is a very potent line of attack in regards to his potential failure to incorporate. My guess is that Scalia would brush off his 1997 writings as not mentioning the 14th Amendment and go ahead and incorporate, although the doctrine of incorporation (and 14th Amendment due process expansions) has, in general, met resistance from conservatives rather than liberals.
In a way, in winning the battles on the 2nd Amendment, the Scalias on the Court may be losing the war on several fundamental elements of their jurisprudence. Scalia reads a right to self-defense into the Bill of Rights in much the same way the so-called crazies in the 60's and 70's read in a right to privacy. On incoporation, many jabs contained in various concurrences and dissents penned by Thomas and Scalia will be implicitly abandoned if they take the incorporation plunge on the 2nd.
Well, his opinion in Heller seems to me to be using the militia clause to justify some sort of limitation on "shall not infringe", just not allowing the militia clause to stand for the proposition that the 2nd is a collective rather than individual right. Even the dissent seems to concede quite a bit on the individual vs. collective debate. As for 42 states having their own equivalent of the 2nd Amendment, it might be instructive on how the 42 justify (and their courts uphold) various infringements in light of those 2nd Amendment equivalents.
Even if Scalia gets to incorporation, he may be reluctant to do more than just strike down the worst of the worst infringements. The dissents in Heller would use some sort of balancing test. The Wall Street Journal op-ed suggests following 1st Amendment case law such as allowing a certain degree of time, place, and manner restrictions and testing whether an infringment is narrowly tailored to meet a compelling state objective. With this type of standard, ex-felons can't possess, gun crime enhancements, and certain licensing laws would likely stick. Silly aspects of licensing laws (student loan deadbeats can't possess) and outrights bans of many weapons (handguns) would be have a better chance of being struck. Zoning laws for gun shops and weapons-specific bans for certain weapons (assualt rifles) would be a battleground area.
When I have time I'll try and read through more of the posts. Good to read so many different perspectives from some of my favorite posters...
That said, here's my few copper's worth plus a couple questions...
*It doesn't appear to deal w/ incorporation at all, does it? Nothing here that says that California could ban all guns tomorrow or that Texas could require 3-year olds to be armed. So, however you read this, its extremely limited until incorporation is determined, correct?
*That said, I disagree w/ a lot of Scalia's logic (I'll nod to JRoger in this regard), but on a personal level, I agree with the basic decision. In that, IMO, the 2A, as written and intended at the time, deals w/ the issue of allowing citizens armed for the purpose of state militias (stay with me before you flip out and start throwing stones). That said, I find it completely contrary that we don't allow people to own heavy weapons, hand grenades, etc... since they would be much more useful, from a militia standpoint, than, say, handguns. But, we all know the real reason we don't... because, good lord, we don't want people owning them. So, we're stuck in this catch-22 where we have a law that if interpreted as originally intended, would allow us to be armed way beyond a level that most of would feel comfortable with. So, we twist our logic, create strawmen, try to re-write (or ignore) history, etc...
I say, admit the truth, admit the realities of how our country has evolved and re-write the damned thing. So, IMO, the 2A, like the amendment on Quartering, is essentially archaic and not well-written for how our country has evolved.
My preference would be to, by the process of amendment, declare the 2A null and void, and make a new amendment that acknowledges the REAL reason people own or should own guns: Hunting, sport, and self-defense. Then allow for practical regulation of such.
Tell me if I'm wrong, but it seems Scalia agrees with me, but rather than go through the whole messy amendment business, he's taking the short-cut of simply reinterpreting the 2A.
*What I like about this is that it will cause some people to disclose their real agendas. In that there a lot of folks *cough*NRA*cough* who's like, essentially, anyone to own anything. The acknowledgment that guns can be regulated, I think, will upset this applecart. In essence, again, correct me if I'm wrong, the court says you can own handguns, but that reasonable regulation is OK. (again acknowledging that this is still at the fed level, states can do as they please).
Interesting. I think this is not the victory or the loss that a lot of people think it is.
So, Igloo, JH, JR, Cleo, VRCW, once you've read and more thoroughly understood this decision, are you happy with it in terms of your own personal views and desires on the issue of guns?
That said, here's my few copper's worth plus a couple questions...
*It doesn't appear to deal w/ incorporation at all, does it? Nothing here that says that California could ban all guns tomorrow or that Texas could require 3-year olds to be armed. So, however you read this, its extremely limited until incorporation is determined, correct?
*That said, I disagree w/ a lot of Scalia's logic (I'll nod to JRoger in this regard), but on a personal level, I agree with the basic decision. In that, IMO, the 2A, as written and intended at the time, deals w/ the issue of allowing citizens armed for the purpose of state militias (stay with me before you flip out and start throwing stones). That said, I find it completely contrary that we don't allow people to own heavy weapons, hand grenades, etc... since they would be much more useful, from a militia standpoint, than, say, handguns. But, we all know the real reason we don't... because, good lord, we don't want people owning them. So, we're stuck in this catch-22 where we have a law that if interpreted as originally intended, would allow us to be armed way beyond a level that most of would feel comfortable with. So, we twist our logic, create strawmen, try to re-write (or ignore) history, etc...
I say, admit the truth, admit the realities of how our country has evolved and re-write the damned thing. So, IMO, the 2A, like the amendment on Quartering, is essentially archaic and not well-written for how our country has evolved.
My preference would be to, by the process of amendment, declare the 2A null and void, and make a new amendment that acknowledges the REAL reason people own or should own guns: Hunting, sport, and self-defense. Then allow for practical regulation of such.
Tell me if I'm wrong, but it seems Scalia agrees with me, but rather than go through the whole messy amendment business, he's taking the short-cut of simply reinterpreting the 2A.
*What I like about this is that it will cause some people to disclose their real agendas. In that there a lot of folks *cough*NRA*cough* who's like, essentially, anyone to own anything. The acknowledgment that guns can be regulated, I think, will upset this applecart. In essence, again, correct me if I'm wrong, the court says you can own handguns, but that reasonable regulation is OK. (again acknowledging that this is still at the fed level, states can do as they please).
Interesting. I think this is not the victory or the loss that a lot of people think it is.
So, Igloo, JH, JR, Cleo, VRCW, once you've read and more thoroughly understood this decision, are you happy with it in terms of your own personal views and desires on the issue of guns?
Berzerker
Deity
I thought this case involved DC and not the states, incorporation shouldn't be an issue.
You're correct, except that incorporation has just become the issue. If SCOTUS says that 2A doesn't apply to the states, the effective result of the Heller decision is a hundredth of what it would otherwise be, as far as practical results.
Hey, welcome back!
On a philosophical level, I do think that private ownership of weapons up to (but not including) weapons of mass destruction should be allowed. And IMHO, the Second Amendment was written with that meaning. And like JR (and, I gather, you) I think Scalia managed to draft a decision that neatly neutralizes that while drawing a very firm line against the sort of "duty to retreat" type laws that Europe still seems to be experimenting with.
But on my more cynical days, I remember that SCOTUS can only lead American society by a small margin. Can you imagine if in Dred Scott v. Sandford (1857) SCOTUS had ruled that slavery was illegal?
So, I'm willing to cut Scalia a little slack on that basis, and also the understanding that he might have had to scale back purely because anything beyond might have dropped Kennedy from the majority decision and made it a dissent instead of a ruling. I'm disappointed (as I so regularly am lately) with supreme court justices seeming to decide the result they want and then crafting a judicial philosophy to support it. But being a fan of judicial restraint, "the DC gun ban is in violation of the Second Amendment, and here's why we say so" is a pretty good decision. Hell, if nothing else, I'm just happy that a bunch of courts aren't ruling on a Second Amendment interpretation formed by reading the tea leaves of US v. Miller, where one side never even showed up to argue the case. At least in this one, SCOTUS got the cream of the crop in terms of scholarly support on both sides of the case and all parties got their say.
On a practical level, I have two faults with the ruling. First, the "in common use" standard that Scalia puts forward is wide open to abuse by the government because it can effectively freeze commercial firearm technology at 2008. Rifle-sized electric railguns might become commonly used by 2015, except the Feds banned their commercial ownership in 2010 following the manufacture of the first prototype. Second, he appears to be open (in dicta, to be sure) to registration of individual guns. This, to me, is contrary to the spirit of the 2A, as it makes it too easy for the government to implement confiscation. I'm okay (except on a philosophical level) with licensing of gun owners assuming it is legitimately "you're not insane and not a violent felon" rather than "you're not a politician, lawyer, celebrity, or major campaign contributor, so jump through these thirty hoops after which we'll probably say no anyway".
On the other hand, I think the ruling has pretty decisively put a barrier (pretty far down at this point) on the slippery slope to a nationwide complete gun ban and I'm pretty happy about that. I'll be a lot happier if/when incorporation happens, and happier still if/when "shall issue" and "bear arms" become interpreted as constitutionally mandated. After that, it's all gravy for me.
.Shane.,
I'm in substantial agreement with you. I'm a little uncomfortable with Scalia's admittedly unique writing out of the Militia Clause, but I think the real interpretation is like the Catch-22 you describe: either you're letting people have bazookas, or you're removing the legal power of the Militia Clause. In the end, it's what I expected, and I think it's a reasonable interpretation of the Amendment. Like you, I'd support amending its language since it isn't really serving its purpose anymore.
The opinion itself: eh. Typical Scalia stuff, but I thought that Stevens might have been trying to undercut the originalist premise a bit by saying, "Oh hey, here's a whole bunch of historical evidence that you didn't include, and suggests the opposite." Sort of showing by example that "originalism" doesn't work like (some) originalists say it does.
Cleo
Cleo
I'm in substantial agreement with you. I'm a little uncomfortable with Scalia's admittedly unique writing out of the Militia Clause, but I think the real interpretation is like the Catch-22 you describe: either you're letting people have bazookas, or you're removing the legal power of the Militia Clause. In the end, it's what I expected, and I think it's a reasonable interpretation of the Amendment. Like you, I'd support amending its language since it isn't really serving its purpose anymore.
The opinion itself: eh. Typical Scalia stuff, but I thought that Stevens might have been trying to undercut the originalist premise a bit by saying, "Oh hey, here's a whole bunch of historical evidence that you didn't include, and suggests the opposite." Sort of showing by example that "originalism" doesn't work like (some) originalists say it does.
Cleo
Cleo
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