Here they talk about "strict construction, federalism, and judicial modesty." And now we see that the Heller Second Amendment argument "is about" "the abandonment of every principle of strict construction, federalism, and judicial modesty in which the Roberts Court ever purported to believe." "After all these years of deep conservative suspicion of turning over policy matters to the courts, the Roberts Court has fallen in love with a new constitutional right." That's what Dahlia Lithwick (Slate) reports.
Here's the trouble: To some people, the Second Amendment is not a new constitutional right. It's an old constitutional right, right there in the text. To say "that 'when a fundamental right is at stake, there is a role for judicial review,'" as Lithwick quotes Heller's lawyer saying, is not "in the spirit of Roe v. Wade." It's in the spirit of every case (say, every First and Fourth Amendment case) that is applying a constitutional right that's right there in the constitutional text.
Now of course some argue that the Second Amendment's text, properly interpreted, does not secure an individual right. I disagree with this, and so apparently do the conservative Justices, but there's obviously such an argument to be made. But Lithwick doesn't make it.
Lithwick says the conservatives are "abandon[ing] ... strict construction." But to actually make this bare assertion into an argument, she has to do two things. First, Lithwick must show that the conservative Supreme Court Justices have actually espoused "strict construction." Justice Scalia, for instance, has expressly rejected it: "Textualism should not be confused with so-called strict constructionism, a degraded form of textualism that brings the whole philosophy into disrepute. I am not a strict constructionist, and no one ought to be -- though better that, I suppose, than a nontextualist. A text should not be construed strictly, and it should not be construed leniently; it should be constructed reasonably, to contain all that it fairly means ...." Second, Lithwick must show that an individual rights view of the Second Amendment is inconsistent with strict construction (or, better yet, with whatever the conservative Justices have actually endorsed). Her account doesn't even try.
Likewise as to "judicial modesty." (David Bernstein has covered federalism very well in an earlier post.) Judicial modesty can mean many things; for instance, it could mean not reaching out beyond the facts of a particular case in order to set forth broad principles for the future. On this view, striking down the handgun ban on individual-rights grounds but reserving for later other questions (such as the proper standard of review for narrower regulations, the proper rules for other weapons, and so on) would be quite modest.
Or it could mean reading the provision in a way that doesn't unnecessarily interfere with the political branches, which sounds like what Lithwick is referring to. ("[Dellinger] reminds Kennedy that he of all people would hate a 'national government that sets a single standard for rural and urban areas, for East and West, North and South,' and that the right to own guns causes 'disputes among experts' such that the courts should hang back and allow the local legislatures to thrash it out.")
But again this assumes the conclusion about what the text means. After all, the conservative Justices agree that, for instance, the First and Fourth Amendments "set[] a single standard for rural and urban areas, for East and West, North and South" and constrain "local legislatures." They may disagree about the particular standard that should be chosen (and in very rare circumstances, such as obscenity law, they may endorse slightly different standards for different areas). Yet they agree that "judicial modesty" means not unnecessarily interfering with the political branches, and they agree that it is necessary to enforce those constitutional constraints that the constitutional text actually imposes.
There are a few scholars whose view of "judicial modesty" is that judicial review should be largely or entirely abandoned. (Lino Graglia at the University of Texas is one.) But none of the conservative Justices on the Court have ever endorsed this view.
Finally, consider one more quote: "When Gura says that the court should be taking normative questions out of the hands of legislature," Lithwick writes, "the transition to Upside-Down World is complete. This question is too complicated for anything but the policy judgments of the court? It's as if he's channeling the whole Warren Court at once." The conservative Justices have many disagreements with the Warren Court, on matters such as Miranda or (reaching into the early Burger Court) Roe v. Wade. But all of them have agreed that enforcing those rights that are actually constitutionally protected isn't "channeling the whole Warren Court" but rather channeling Chief Justice Marshall's position in Marbury v. Madison and in the other constitutional cases that went after it.
It's always appealing to accuse the other side of hypocrisy or inconsistency with its own stated beliefs -- after all, one can then set aside the hard work of actually showing why their beliefs are wrong, and instead point out that their positions are mistaken even under their own stated principles. But to do this, one actually needs to demonstrate an inconsistency, with the other side's actual beliefs and not with the beliefs that one is ascribing to them for rhetorical purposes.
Related Posts (on one page):
- Oh, Those Hypocritical Conservative Justices.
- Lithwick on Heller:
I don't think you get it, it isn't about the constitution, it is about the guns. It isn't about how you get at the answer, it is about how you get to what the answer
shouldbe.That is what the living constitution is all about.
1) Defer to legislatures
2) Act federalist
3) Never overturn a precedent, or even deviate from the line of reasoning that has gone before
Whenever there is a major issue before the SC she just drops these three rules into an article. If one is violated then the conservative judges are hypocrites. This is particularly good if the federal government passes a regulation. If conservative judges overturn it then they failed to defer to the legislature and if they don't then they fail to be federalists. Even if they manage to somehow dodge the strict lines of the rules the third rule provides more than enough wiggle room to disagree with just about anything.
Quite simply, she is not a legal scholar of any importance, nor is she a journalist of much worth. She provides some welcome snark from time to time in the otherwise stuffy world that the Supreme Court resides in. But for a person whose job is to cover the law, she has the distressing tendency to drown objectivity in her emotional biases.
Let's review: According to Lithwick - (1) interpreting a DC Law under the US constitution is somehow an abandonment of federalism; (2) interpreting "the right of the people to keep and bear arms" to mean the people have a right to keep and bear arms is somehow an abandonment of strict constructionism; and (3) and taking the case in general is somehow judicial activism.
Am I missing something or have I been grossly misinformed about the definitions of these principles?
Lithwick takes three swings with the bat and completely whiffs badly on all of them. You're out, honey. Grab a seat on the bench.
And how did this woman get her job?
And - God forbig - the rumor is that the Times is thinking about giving her Greenhouse's old slot.
Oh yeah, let's not forget that conservatives (and men, apparently) hate children.
Or take this example: “Clement has 15 minutes to represent the part of the Bush administration that isn't insane, . . .” Change “Clement” and “Bush” to “Waxman” and “Clinton” in that quote, and you have Ann Coulter.
Perhaps she's incapable of engaging on the merits. But by failing to do so, she does her cause a disservice.
George, although the case arises out of D.C., the Supremes have apparently chosen to broaden the inquiry. Prof. Doug Kmiec, who was still a card-carrying conservative the last I checked:
This is the District of Columbia and, unlike a state, Congress has plenary authority over it, and an amendment that is a limitation upon congressional power vis a vis the states is of no relevance. End of case, see ya in Salzburg, Tony.
This is not likely the answer since the justices themselves formulated the question granted cert to directly relate to states. “Does [the D.C. law] violate Second Amendment rights of individuals who are not affiliated with any state-regulated militia, but who wish to keep handguns and other firearms for private use in their homes?” If things are going badly for D.C. tomorrow, maybe it might ask politely why the issue as formulated is not an invitation to advisory opinion.
1. After the incorporation cases and after Bolling v. Sharpe, there aren't many distinctions left between the states and the federal government when it comes to constitutional rights. If you'd read past the headline of Prof. Bernstein's post, you might have noticed that. Ms. Lithwick appears to mean "federalism" in the sense that the Supreme Court is restricting the options of the state governments to regulate firearms. That's not a spurious definition, and if you have an argument to the effect that Heller will not affect the states in any way, I'd be interested in hearing it.
2. If the case were that simple, there wouldn't be any controversy. The significance of the first clause is at least open to debate. Ms Lithwick characterizes the case this way: "The constitutional question is whether that first clause limits the right to bear arms to a citizen militia, or whether the militia language represents a bit of constitutional phlegm standing between you and your full-throated right to bear arms." As Prof. Volokh notes, she doesn't try very hard on the strict construction argument, but your characterization is unfair.
3. As you might be aware, "judicial activism" means a lot of things to a lot of people. One definition out there is that it's a propensity to invalidate statutes, take issues away from the legislature, and use unnecessarily broad reasoning in writing opinions. Ms. Lithwick doesn't use the words "judicial activism" at all in her piece, but her point seems to be that the conservatives on the court appear to be ready to make a sweeping change to the law and to take gun "policy" away from the legislatures. On this point, I'll admit that the Lithwick piece falls a little flat. She seems to equate judicial restraint with judicial laziness and doesn't acknowledge the consequences that flow from recognizing a constitutional right. I imagine that she'd hesitate to describe Brown v. Board of Education in similar terms, yet the change made in that case was no less sweeping than what she thinks the conservatives are about to do here.
As for this:
There's no need to be an ass.
But by now we all know the problem with that: when you consider the rest of the Constitution, and how the Second Amendment looks to serve no real role if its only purpose was to preserve some right to state militias--then the argument gets interesting. The problem is, that's a nuanced position that (along a genuine treatment of the historical stuff the Justices were asking) I don't think would get any readership on Slate.
No doubt any replacement would be more effective and persuasive.
In fact, even leaving her position vacant would make it more effective. She is a stereotype of the screeching, squealing, snarky, poorly-informed gasbag. All we need is more people like her, and it's, "Bye-bye NFA '34!"
Anderson: Seems to me that Justice Kennedy's questions focused on an issue that was rather prominent in the drafters' time, that being an American citizen on a frontier where there was no militia, and perhaps no state at all yet, yet needed protection in the form of a firearm. If the drafters did not believe that the 2d Amendment granted an individual right to keep and bear arms outside of the context of a militia, then frontiersmen had no rights to their guns. And how much sense did that make?
Even on this issue, she doesn't engage the reader in an honest debate, viz. whether or not the need to protect your farm and family from dangerous animals in the 18th century informed the drafting of the Second Amendment.
Rather, using a tone like that of a giggling schoolgirl, she implies that Justice Kennedy is afraid he is going to be mauled by a bear on the way to his car in S Ct parking lot.
This is not likely the answer since the justices themselves formulated the question granted cert to directly relate to states. “Does [the D.C. law] violate Second Amendment rights of individuals who are not affiliated with any state-regulated militia, but who wish to keep handguns and other firearms for private use in their homes?” If things are going badly for D.C. tomorrow, maybe it might ask politely why the issue as formulated is not an invitation to advisory opinion.
your deliberately using the words "relate to the states" to confuse the issue. and you know it.
its absolutely clear that the question was whehter the 2nd amendment says FEDS have limits on abolishing state militias or if the 2nd amendment says the FEDS have limits on prohibiting people from personally owning weapons.
nothing to do with whehter the STATES have any limitations at all.
But according to Lithwick's evolving standards of statehood, the District of Columbia IS a state. It's just those mean-spirited, hypocritical conservative justices who refuse to recognize DC's statehood.
Really?
heh
and according to my evolving standers of the progressivism-theres no such thing as absolute immunity for prosecutors-
still-if i sued one for prosecuting me in the course of their state duties and refused to retract-i would be sanctioned.
if an argument would be sanction able were it heard in court-then you probably shouldn't argue academically that "the justices are flying in the face of their jurisprudence"
its a shame that academic writing doesn't share similar ethical rules to court filings...or maybe she doesn't consider slate "academic" writing.
Uh, dude, that's Prof. Kmiec's phrase, not mine -- take your indifferent grammar to him.
whether or not the need to protect your farm and family from dangerous animals in the 18th century informed the drafting of the Second Amendment.
Okay -- bingo. Glad a couple of you walked into that, because it illustrates the point so nicely.
There is nothing, NOTHING, N-O-T-H-I-N-G, in the actual *text* of the Second Amendment, to support any such "informing" of the drafting of the Amendment.
That is exactly the kind of spurious argument that makes Justice Scalia a notorious skeptic about legislative history.
If it's okay to argue from what "informed the drafting," where there is NOTHING in the text to support that reading, then fine.
Just don't call yourself an "originalist," or complain that there's no right to privacy "in" the Constitution.
... and that the drafters of the 2d Am knew this ...
... is very strong evidence that the Amendment is NOT meant to safeguard such a right, because had they *wanted* to do so, they could and would have written it that way.
Go try the Ninth Amendment, folks.
Go try a time machine.
yes. and you completely misunderstood? what he is saying. He also uses that phrase to refer to the issue of whehter the right is a right to have state militias (i.e relates to the states) or whehter it is a personal right.
he does not-by any stretch of the imagination-use the phrase to mean a limitation on a states rights to prohibit handguns
I see how highway money relates to drunk driving. I don't see how firearms restrictions relate to subdizing health care for the poor.
Well, you may not see a relationship, and I may not, but correct me if I'm wrong; wasn't one of the claims in Chicago's suit against certain gun manufacturers that the city's healhcare system was burdened by caring for gunshot victims?
I am troubled by the continuing insistence that powers granted to the government be read expansively, while rights granted to individuals be read as constrained as possible.
What does the extent ot private recovery from civil defendants under state tort law have to do with the federal spending power?
You have a right, of at least some kind, that is explicitly mentioned in the Second Amendment to the Constitution. An Amendment that has been directly discussed by the Supreme Court exactly one time in over 200 years. In a criminal case where only the prosecution appeared. And Lithwick has the gall to call it a "new" right?
IMO, Lithwick is a gossip columnist tool posing as a serious legal journalist.
That explains it! It's all just a typo. "The right of the People to keep and bear arms" was supposed to read "the right of the People to keep arms to shoot bears."
Hmm, seems like that could spell trouble for the Endangered Species Act.
Anyway, it seems to me that the real test of hypocracy is whether someone is willing to treat the 1st and 2nd Ammendments equally.
would NOT prevent an individual from keeping an arsenal in his home nor restrain him from taking an AK-47 to the grocery store.
They don't say why cruel and unusual punishment is forbidden; they don't say why trial by jury is to be preserved; but, remarkably, there *is* a rationale given in the Second Amendment.
Why?
I'm coming at this simply as a lawyer reading the law, who furthermore owns a couple of guns, grew up shooting guns, and has no problem with any "individual right" -- there are constitutional issues that interest me, but the 2d Am is not one of them.
That said, I would find it remarkable if a certain fear of the mob did not inform that Amendment's preamble-or-whatever.
... I'm reading yet another history of the French Revolution right now (David Andress, The Terror), and a thought experiment occurs to me -- what would the Bill of Rights have looked like had it been drafted in late 1792 or early 1793, after the Tuilleries slaughter and the September massacres, instead of 1789?
It's pretty clear to me, a nonexpert although I've now read quite a bit, that there's an individual right that's not contingent on militia service. The rest of the questions can be handled by the normal judicial interpretation of fundamental rights--compelling interest scrutiny (although Roberts apparently thinks this is garbage) and time, place and manner regulation. We won't have tanks and machine guns on display on Main Street. We will have law-abiding citizens armed and ready to defend themselves and perhaps others against those who are violent law-breakers. Putting aside the second amendment, I must say this also is eminently reasonable. Isn't it?
Nothing. I'm not sure why you are asking. The question is whether Congress can condition federal healthcare to the states on state's enacting gun laws, because, it could be argued, the expenditure of healthcare dollars is affected by gun-shot related trauma. Perhaps you will recall that the Clinton administration threatened Medicdaid payments to states that forbade the use of public funds for abortions. This had nothing to do with private recovery in tort.
I will assume that the ambiguity is my fault, but I was just wondering if people here thought that the federal government would have the power to restrictively influence state gun laws if any "individual right" affirmation in Heller was not extended to the states.
I assume you're just as troubled when the right they are constraining is the rights codified in the 1st, 4th, 5th or 6th amendments?
You and Justice Kennedy.
DC is consistently in the top ten (if not #1 or #2) in firearms homicides yearly. The firearms ban clearly doesn't work, it disarms only the law-abiding.
In DC, when seconds count, the police are only minutes away.
Well I do live in the West and I know some people who've met grizzlies face to face, albeit admittedly not in central Los Angeles.
Whereas when "kids keep dying" for a different "holy blessed right" that's spelled out just a bit further down (somewhere) in the Bill of Rights, Lithwick applauds. Guess which right?
> "distressing tendency to drown objectivity in her emotional biases"
This is Carol Gilligan 101 stuff.
Which would of course be evidence of her claim if anyone ever accused Kennedy of being a strict constructionist, federalist, or proponent of judicial modesty. As such accusations have not been reasonably leveled at Kennedy for at least fifteen years, Lithwick's claims are either moronic or deliberately dishonest.
I'm open to debate on which of the two is the proper charge.
The militia prong of the 2nd is intended to act as a check on the government. The militia is in large part equivalent to the people themselves due to the universal membership requirement, and if the people become corrupt any parchment barriers to their actions will be ineffective anyway.
But the expenditure of federal healthcare dollars is not affected by gun-shot related trauma if Medicaid funding is not conditioned on it, so the above is question-begging.
Evene if it were, is it even true that gunshot trauma has a disparate impact on Medicaid recipients?
And, can the federal government force a state to pass a statute that violates the state constitution without actually preempting the state constitutional provision?
If by the boldfaced "healthcare dollars" you mean "[state] healthcare dollars," or that more shot people = more public hospital bills, that is a poor analogy to the Chicago suit, which, if I recall, dealt with a public nuisance action against gun manufacturers asking for civil damages, unless your analogy is meant to ask whether the federal government may withhold Medicaid funds from states that do not increase their civil tort damage awards against private plaintiffs.
Why not both?
Maybe they think "constructionism" refers to the construction of judicial activist-liberal thought combined with stare decisis?
What the heck do we do with these things?
Well, just who do you think pays the tab for all those GSWs at major metro (e.g. D.C.) trauma centers? Gang bangers and crack dealers do not get major medical.
Of course witholding Federal healthcare monies in lieu of stricter gun laws presumes that those laws are even effective in reducing violence committed with firearms (i.e. D.C.) But when has common sense ever been a factor in this issue.
That doesn't mean they are on Medicaid.
Of course witholding Federal healthcare monies in lieu of stricter gun laws presumes that those laws are even effective in reducing violence committed with firearms
And that the state constitution doesn't prevent the enactment of these stricter gun laws. But a step is also missing here. Plenty of poor people rely on Medicaid for reasons totally unrelated to gun violence. There really isn't any connection between Medicaid and gun violence, so I don't see that passing South Dakota v. Dole, especially since withholding the funding won't reduce gun violence, it will just deprive Medicaid recipients with diabetes of insulin for no reason, for example. Really, the hypo makes no sense.
I disagree completely. Medicaid funding for any number of conditions is not conditioned on policies related to those conditions but is most definitely affected by those conditions.
Who cares? You'll have to explain where there is a "disparate impact" test related to the relative prevalence of any condition in Medicaid and non-medicaid populations. The question is whether government expenditures are influenced at all by a particular condition, not whether that condition disproportionatly affects government beneficiaries.
This is part of the question that I was asking. Can they?
With regard to your last paragraph, I don't think you and I agree on what the purpose of an analogy is. Think more in terms of what government interest justifies any action, whether it be a nuisance suit or enacting a statute or regulation, regarding the expenditure of healthcare funds.
This was an astonishingly poor analogy made by Justice Stevens. Only the most truly diehard of the NRA argue that the government has no place in regulating firearms. The government might ban a public protest meeting on a rickety bridge, but that doesnt touch on the 1st Amendment.
For someone who needs a refresher course in logic and federalism, your condescension is unnecesary.
A nuisance suit by a municipality asking for civil damages from a state judge is not the same as federal preemption by way of Congressional Act. In any event, you haven't made the case for either, because conditioning money through the federal spending power is not an imposition, it requires the state's consent. And, I have never heard of Congress saying, "We won't give you any money unless your judges start assessing more penalties against civil defendants we don't like." Please cite me a case. Love to see it.
The question is whether government expenditures are influenced at all by a particular condition, not whether that condition disproportionatly affects government beneficiaries.
This is about the third time you have changed your question, and here now you inject an equivocation on the word "condition". "Medical condition suffered" and "condition (or terms) upon which the state accepts the money" are distinct. Sophistry really has no place here.
Medicaid funding for any number of conditions is not conditioned on policies related to those conditions but is most definitely affected by those conditions.
This is pure nonsense.
Oh, were it only as simple as that. I asked above whether the DC gun law was effective, and the only resonse that addressed teh question said that it was not. But my hypothetical was not "Does it make sense for the federal government to try to influence state gun laws through the spending power," it was "Can they?" Congress, and the Supreme Court do lots of things that make no sense; yet, for political purposes, or to stick a thumb in the eye of political opponents, or whatever, it still does them. Personally, I think the "collective rights" argument, in addition to being a mild oxymoron, makes no sense. But there is nothing to prevent ideologues from promoting postions that make no sense in the service of broader goals.
As I alluded to previously, the Clinton DHS passed a rule that threatened Medicaid reimbursement to states that resticted the use of public funds for abortions. Talk about not making sense. But the impetus for this was political, not practical. I suspect that gun-control true believers will inspect any Heller opinion for cracks or ambiguity to exploit as a part of their planning. My question was whether, as a matter of law (not unfortunately, common sense) Congress could use the spending power, (or any other Constitutional Swiss Army Knife) to achieve such a political result.
I have to credit Lithwick here, she goes to the weakest point in Scalia's argument, of course any rational gun control scheme is going to keep arms out of the hands of Scottish Highlanders. But just as there is an valid exclusion for felons, well how is wearing a kilt all that different? Catholics are however another matter, as long as they are willing to sign an oath rejecting the doctrine of transubstantiation then I see no reason to restrict their rights to keep and bear arms.
But seriously if a right to "keep and bear arms" only refers to a military usage, then obviously a ban on keeping and bearing arms would then only pertain to drilling and assembly for military purposes wouldn't it?
Thank you!
There was no condescension contained in my post. It's interesting that you think that there was. And I made no personal reamarks regarding anyone, yet you seem to want to deflect the discussion from the question that I asked to whether I need educated regarding federalism and logic, a form of ad hominem that adds little to the discussion. And it is interesting that you said I changed my question three times. Who brought up preemption? And if you are having a hard time distinguishing between the noun and verb forms of "condition," life may hold many surprises for you. As to your last comment, "this is pure nonsense," well, I'll leave to others to judge how persuasive this comment is. If they would like me justify my position to them I would be happy to. It would seem though that the exchange between you and I has degenerated to quibbling, and really is not the reason that I post to this site.
Should the opportunity arise for us to engage in a thoughtful and respectful back-and-forth, I would be happy to do so. Best to you.
Eugene, you are right, of course, and I will certainly follow your request an apologize for my previous effort. However, to be fair, Ms. Lithwick wasn't particulary interested in substantive discussion and seems pretty comfortable insulting the opinions of others. As such, its understandable that people respond in kind. However, per your request, such people should avoid doing it here.
In my opinion, Prof. Kmeic is trying to insinuate that there is a "natural law" interpretation that resuscitates the "obsolete" Second Amendment. I don't think that his argument is very persuasive.
The same law also prohibited keeping your cannon, mortars, and howitzers, loaded in town. Clearly, the Framers were supporters of restrictive gun control. They just forgot to do anything about all those privately owned artillery.
The militia need not be state regulated, and the unorganized militia would reasonably be less regulated than the organized militia. In fact the militia units in DC were crucial to the Inauguration of President Lincoln.
A right to arms would suggest that strict scrutiny should be given to regulations that inhibit keeping and bearing arms with military calibers, such as .30/06, 7.62x51mm, 5.56x45mm, or .30/40Krag, or pistol rounds such as .45Colt, .45ACP or 9mm Parabellum. One could even make a point that 7.62X54R would be protected, as that was issued to US Army units in the first world war.
Possible but unlikely. Wolves, catamounts, and black bears were common in (I believe) all of the colonies. Any one of those critters could pose a lethal threat to human life.
Is this specific point crucial to interpreting the 2nd Amendment?
There's bears and 'bears', and I imagine most American cities are well supplied with the latter.
Also Prof. Kmeic seems to believe that if the 2nd were to have a self defense purposee it would have said so.
Also Prof. Kmeic claims that "the people" is a collective term rather than individual. Just how that fits in with BYOG is rather puzzling.
One simple refutation to the Prof. Kmeic illogic is this: who is to say that at some point in the future BYOG would become a reasonable method for ensuring national security? After all it can hardly be argued that armed insurgents pose no challanges to modern conventional militaries. What would that argument look like: Americans are less capable than Iraqi?
I already mentioned South Dakota v. Dole. I think your hypo fails its test. As another commenter suggested, the lawsuit you describe sound "frivolous."
Damn, Bob from Ohio anticipated my pun.
Of course it's not crucial. I was just having a little factual fun at Justice Kennedy's expense. But if his legal history turns out to be no better than his natural history, then I can't hold out much hope for his opinion.
All too common these days, in fact. Of course, they might object to an interpretation of the 2d A which authorizes "defense" against them.
Ah, now we are getting somewhere. Thanks for the reference. I think that the operative language in that case is
The whole point of this discussion is that, if the Supreme Court decision in Heller is somehow not extended to the states (which I think unlikely, but seems to be a remote hope of those who embraced a collective rights view), then there is the potential for Congress to meddle under the spending power.
The issue of whether or not you or I think that suit against gun manufacturers was frivolous (the other poster said the suit was frivolous, not my hypothetical), and I think it was, if Congress adopts the same philosophy as the city officials who brought suit, I'm not sure Dole gives much comfort:
Two of the three other elements of the Dole test don't seem to be seriously in dispute: as long as the condition is unambiguous and that it is related to "the federal interest in particular projects or programs," it gets a pass. I'm sure Ms. Pelosi will think of something.
This leaves the last element of the test. In Dole the question was whether the 21st Amendment prohibited Congressional meddling. Would the Second Amendment receive the same treatment, if it is interpreted as not applying to the states? Rehnquist's "mild encouragement" v. "coersion" distinction isn't very comforting.
I don't see how highway money relates to drunk driving. If anything, I'd see how emergency services money or health care dollars related to drunk driving, but not highway dollars.
When I was working there in the 90's, during the Crack Wars, a guy in the office had a betting pool on when the city would break 300 homicides (i.e., a rate of about 50/100,000, when the rest of the country was at maybe 10/100,000. I forget who won, but the winning date wasn't in Nov/Dec..
As for Lithwick, I think she's a great writer, is pretty good at reading which way the Court is leaning, which is what I thought people read Court reporting for, and that her bias is a fair price to pay for her wit. All things being equal, I'd like her work better if she were ever right about anything, but you don't read someone like her for incisive legal analysis.
I don't know whether this meets the criteria of a ban, but the then-legitimate Government attempted on 19 Apr 1775 to seize munitions being stored by the popular Militia of Massachusetts in Lexington and Concord.
Then why read Dalia Lithwick at all? She's a useless Ann Coulterish hack.
The lawsuit was actually thrown out of court as frivolous, so the other commenter's point was that the Congressional spending power can't rest on a bogus legal basis. The Court in Dole agrees:
As was pointed out before, withholding all Medicaid funding harms poor people. Period. There is no justification for withholding the subsidy to all poor people simply because some patients in some state hospitals are gunshot victims. Perhaps if there were a disparate impact of gunshot wounds on poor people covered by Medicaid, that might conceivably be logical; even then, as noted above, it still wouldn't in fact be logical, as withholding the funding would not induce shooters to fire less. By contrast, in Dole, the amount of funding at risk directly and rationally relates to the problem Congress seeks to solve, and the State can choose to reject the offer. As a practical matter, a State cannot simply reject all Medicaid funding for all people. That would be coercion, even under Dole. Note that I am repeating the very same argument made before, before you had even bothered to read South Dakota v. Dole.
In Dole the question was whether the 21st Amendment prohibited Congressional meddling. Would the Second Amendment receive the same treatment, if it is interpreted as not applying to the states?
Your argument has nothing to do with the Second Amendment at all. The Second Amendment is not a basis for Congressional legislation. It is a limitation on federal power. Not a grant to meddle in state affairs.
Rehnquist's "mild encouragement" v. "coersion" distinction isn't very comforting.
Only if you are discomforted by reason itself.
If the second amendment right to bear arms has nothing to do with a well-regulated militia, why is the militia clause there at all?
Steve
http://trueconservative.typepad.com
Why is freedom of the press mentioned in the same Amendment at freedom of speech? Could it be that freedom of speech applies only in the context of publication? ;^)
As was pointed out before, withholding all Medicaid funding harms poor people
ALL Medicaid funding? Show me where I said this. It is obvious that you are more interested in arguing with what you wish I had said rather than what I actually did, so actually, you are arguing with yourself. (As is the case with you bringing up the non-sequitur of "increasing civil damage awards in tort cases." Where did you get that?)
So here's a point for you to morph into an point that you you would like it to be rather than what is:
Is the twenty first amendment a basis for congressional legislation?
O.K. I get it. You're not serious. Anybody who can't point out the flaws in this to you is free to pick up the argument, and you can amuse yourself at their expense.
That's not a real answer. They mentioned freedom of the press because otherwise there was a risk of inclusio unius, exclusio alterius. That's NOT why the militia is in the 2d A.
Fortunately, we have not had to do this in over a hundred years, but the potential must remain.
I posted on this at the end of another thread recently. So here goes another late statement:
1. The term "militia" was not used in 18th century parlance only to mean organized military units under government control. It referred to an armed populace or citizenry that could be called on to serve. Congress around 1800 even offered a definition of the militia along those lines.
2. The term "well-regulated" was used in a way that is absent or rare now, to mean "well-coordinated" or "well-operating" or "effectively working."
From the above, what makes sense of the militia clause is the following: the right of the people to keep and bear arms serves the purpose of maintaining an effective militia, that purpose being the security of a free state.
The attempt to draw a sharp line between the militia on one misguided. Citizens might be called on to serve in organized militia units. But when armed citizens defend themselves, their homes, and their families or come to the aid of their neighbors against attackers, they are also serving the purpose of a militia. A salient example would be when one or more armed citizens stops one of those mall shootings or campus massacres.
No interpretation that I've heard, if it uses the militia phrase to negate the individual right, is plausibly consistent with the very existence of the Second Amendment in the Bill of Rights.
According to an online list of source material compiled by a Professor Volokh, at the time of the Bill of Rights, the well-regulated militia comprised either the body of the people trained to arms, or the body of the people capable of bearing arms. Substitute "an armed populace" for the word "militia," and all will be clear.
There you go: they mention "the right of the people" for the same reason.
One of us is confused, and I'm honestly not sure which one.
"militia" = the people who keep and bear arms
"well regulated" = irregular but capable of approaching regular military with regard to effective armament
The "Right to Keep and Bear Arms" is distinct from the Second Amendment and existed before the Constitution. The Second Amendment incorporated this pre-existing right (see Blackstone and the Parker decision), which included personal defense, as from frontier wolves. So, yes, the Second Amendment guarantees the right to arms for that use as well as all traditionally legal uses. For the first time, however, the right was also linked to militia readiness.
Yeah. Almost as funny as all though 'pro-family' politicians who are closeted gays or otherwise cheating on their wives.
Definition of "sexual harassment": unwanted sexual advances made to a woman by a male who is not a pro-abortion politician.
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