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Petition for Certiorari in Second Circuit Right To Bear Arms Incorporation Case

is here.

zippypinhead:
Well, this is one cert petition we can safely assume Justice Sotomayor will recuse herself from voting on. And if SCOTUS grants cert this fall on the 7th and/or 9th Circuit cases as well, and consolidates everything before it on the Second Amendment incorporation issue, (as would be logical), she should be recused from participating in the cases altogether.

And for the record, yeah, notwithstanding the NRA's opposition, I'm making the wild, speculative assumption that she WILL be seated by October...
6.26.2009 5:56pm
ohwilleke:
Short Table of Contents (page numbers omitted):

I. The Circuits Are Divided by the
Questions of Whether the Second
Amendment Is Incorporated Against the
States Through the Due Process Clause of
the Fourteenth Amendment and Whether
the Courts of Appeals Have Power Even
to Reach That Issue.

II. The Court Should Also Grant Certiorari
Over the Question of Whether the
Privileges or Immunities Clause of the
Fourteenth Amendment Applies the
Second Amendment Against the States.


I would be surprised if there were four votes for cert on the second issue, and if there are, it would be a revolutionary signal with broad constitutional implications across the board. This would probably activate all the other unincorporated amendments (e.g. the 7th Amendment right to a civil jury trial and the right to a grand jury indictment in felony cases), and could have a host of other difficult to predict consequences as well. Recent SCOTUS decisions seem to have acknowledged that the road not taken may have been the better choice way back when, but acknowledge that the Slaughter House cases are still good law.

I would think that a grant on the first issue is pretty likely. The circuit split is accurately stated in my review, and the Court practically invited this question in Heller.

My view is that the SCOTUS should take the case and find that the Second Amendment is not incorporated, reaffirming its prior precedents on point.

It should take the case because there is a split in authority and there is little to be served by allowing it to percolate. This is a classic policy decision case that is very likely to be answerable with just one word, yes or no. The precedent is there to follow if one wants to turn to precedent, but can be overturned if the court thinks it is stale and a lot has changed since the Second Amendment incorporation cases were first decided more than a century ago with little litigation of the issues in between.

The evidence is reasonably good that what makes sense in one place may not make sense in another, Wyoming is not New York. Heller has already cleared the field to allow states to deregulate gun ownership if they wish to do so without undue federal interference.

Equally important to the federalism issue is all the conservative political theory scholarship that has arisen mostly out of Roe v. Wade that argues that hot button political issues belong in the hands of elected officials if the constitution can be interpreted reasonable to permit this to happen. Liberals on the Court who are presumably predisposed not to incorporate the Second Amendment have never really bought this political theory analysis in their guts and souls. But, the prospect that one of the Court's conservatives might find this argument persausive seems likely to me. Conservatives (or their clerks) who have secretly snuck off to study comparative constitutional law (despite the foreign law controversy) may even be aware that abortion rights forces ended up in about the same place abroad as they did in the U.S., despite the fact that in many countries (e.g. Germany) the constitutional question was whether it was constitutional to legalize abortion, rather than whether it was constitutional to ban it.

Pragmatically, from a SCOTUS and federal judiciary perspective, there is also an incentive not to create a new federal right that will produce litigation all over the country at both the state and local government levels, when the judiciary already considers itself to be overtaxed. If the answer is non-incorporation, there are one or two more Second Amendment suits in the high court ever; even pending cases would be stopped in their tracks. If the answer is incorporation, there will be hundreds, if not thousands of certiorari petitions, and probably dozens of argued cases defining the Second Amendment's scope.

The test for incorporation is whether one can have a civilized governmental regime with due process without it. The way the test was framed in the 9th Circuit (tradition and "importance") isn't supported by the case law. The evidence that one can have democratic government with due process without the Second Amendment is strong. After all, there have been no federal case enforcing the right against states for 220 years since the current constitution was adopted, yet democracy and due process have somehow slugged along, and both Japan and Britain have democratic governments that provide due process despite strict gun control laws. The empirical evidence also shows that the relationship between gun ownership rates and political/economic freedom is quite weak, with differences as plausibly attributable to wealth effects they are to being caused by gun ownership rates.

I predict that there will be a grant of certiorari. I won't go so far as to predict the outcome, which is a close call in my view in terms of sheer probability. But, given the strong cert split and the Heller invitation to raise the issue, I don't think that a cert creates as much of a presumption that SCOTUS is more likely than not to reverse the decision below as it normally would.
6.26.2009 6:13pm
Steve2:
The P&I clause argument advanced seems a very novel one: Slaughterhouse was right, but nobody's ever applied it properly. That seems like it would be a fun thing to see the oral argument over.
6.26.2009 6:21pm
ruuffles (mail) (www):

I predict that there will be a grant of certiorari.

Do you think that will still happen if the 9th grants en banc, reverses and lines up with the 2nd and 7th, before the conference?
6.26.2009 6:21pm
J. Aldridge:
Both the history of the 1866 Freedmen’s Bureau Act and the 1868 Fourteenth Amendment to the Constitution reveal that the Reconstruction Congress still firmly believed, decades after the Founding, that the palladium of the Second Amendment is most prominent in protecting the lawful possession of weapons kept for self-defense in the home.

That is not correct. Former rebel states were under the military jurisdiction of the United States, and when President Johnson allowed Mississippi to form militias they excluded blacks. The Freedmen’s Bureau Act was to counter the exclusion of blacks in the militia.
6.26.2009 6:28pm
Oren:

... may even be aware that abortion rights forces ended up in about the same place abroad as they did in the U.S., despite the fact that in many countries (e.g. Germany) the constitutional question was whether it was constitutional to legalize abortion, rather than whether it was constitutional to ban it.

This comment caused me to look up the debate surrounding abortion in Germany, which was quite fascinating. Thanks!
6.26.2009 6:40pm
cboldt (mail):
I keep coming back to the disconnect between the rationale that the 2nd Circuit used to uphold NY law, and the cited SCOTUS precedent.
.
SCOTUS in Presser v. Illinois: "... the states cannot, even laying the [second amendment] out of view, prohibit the people from keeping and bearing arms ..."
.
2nd Circuit, in Bach v Pataki: "Presser stands for the proposition that the right of the people to keep and bear arms, whatever else its nature, is a right only against the federal government, not against the states." cert. denied, 546 U.S. 1174 (2006)
6.26.2009 6:42pm
ohwilleke:
"Do you think that will still happen if the 9th grants en banc, reverses and lines up with the 2nd and 7th, before the conference?"

Won't happen. The incorporation holding in the 9th was essentially dicta. No one has an incentive in that case to press hard to an en banc review. If there is a "switch in time" in the 9th, it will be due to a reconsideration of the decision that makes a revision of the decision to omit that part of the analysis (as the 9th Circuit recently did in a case that had originally held that a Section 230 defense of an internet provider couldn't be raised in a Rule 12(b)(6) motion), rather than an en banc.

This also isn't likely. The Section 230 decision showed all the signs of sloppy analysis by a clerk whose panel judges weren't paying attention to the technical issues, which was made clear when a party and amici brought up the issue in a motion for reconsideration. The 9th Circuit panel's drafting, in contrast, shows ever sign of being carefully crafted, intentional and deliberate. Reconsideration motions only work when a result is unintended.
6.26.2009 6:54pm
cboldt (mail):
-- The incorporation holding in the 9th was essentially dicta. --
.
How then can be it be taken as one element of a "split?" And likewise, seeing as how it is dicta (and I agree that it is), the 9th could just remove that discussion without affecting the Nordyke decision in the least.
.
The 2nd amendment no more protects the right to conduct a gun show than it (or the 1st) protects a right to conduct a parade on public property (see Presser).
6.26.2009 7:01pm
CDR D (mail):
How then can be it be taken as one element of a "split?" And likewise, seeing as how it is dicta (and I agree that it is), the 9th could just remove that discussion without affecting the Nordyke decision in the least.
.
The 2nd amendment no more protects the right to conduct a gun show than it (or the 1st) protects a right to conduct a parade on public property (see Presser).



How could the 9th make the decision they did without examining whether the Nordykes had standing under the 2A?

Circuit precedent under *Hickman* would have dictated that Nordyke had no 2A standing, and it should have been dismissed on its face accordingly.
6.26.2009 7:13pm
http://volokh.com/?exclude=davidb :
I liked the part about how clubs (in the form of rifles sans gunpowder) helped defend patriots at Bunker Hill. Sweet.
6.26.2009 7:18pm
cboldt (mail):
-- How could the 9th make the decision they did without examining whether the Nordykes had standing under the 2A? --
.
Good point. On rehearing they would need to craft language that recognizes the shift from "collective" to "individual." Then they can assert "not incorporated, see Presser" as the 2nd and 7th have done.
6.26.2009 7:23pm
cboldt (mail):
I see Nordyke as akin to Presser. In both cases, the argument was that the 1st and 2nd amendment protect a right. In Presser, it was a right to conduct a parade on public property. In Nordyke, it is the right to conduct an indoors show/sale on public property.
.
IOW, these (Nordyke and Presser) aren't 1st or 2nd amendment cases. Denying a right to conduct a gun show is not a prohibition on keep or bear arms. Denial of a parade permit is likewise not a prohibition on RKBA.
.
The Chicago/NRA and Maloney cases are, OTOH about RKBA. And in those cases, the Circuits are in agreement as to incorporation of the 2nd.
6.26.2009 7:31pm
CDR D (mail):
I see Nordyke as akin to Presser. In both cases, the argument was that the 1st and 2nd amendment protect a right. In Presser, it was a right to conduct a parade on public property. In Nordyke, it is the right to conduct an indoors show/sale on public property.


Well, that's all well and good, but if the county is going to allow other venues (Rv's, Hot Rods, and many other show/sales) on county property, how are they justified in excluding the gun show/sales?

If the issue is "safety", they could simply outlaw any ammunition in possession at the gun shows.

The 1A was the stronger argument, in my view. The county supes have indeed said that they wanted to discourage the idea of gun ownership.

And yet they still have RV shows. RVs are rapidly falling into disfavor among our betters lately, so I won't be surprised to find those shows eventually phased out, too.

But hey, the county can do what it wishes with county property. I think they ought to be even-handed about it when dealing with legal products, though.

Still, I'm delighted to see this dysfunctional state and this county going into bankruptcy.
6.26.2009 8:21pm
Melancton Smith:
Incorporation or insurrection...pick one.
6.26.2009 9:16pm
CMB (mail):
So will the Respondent hire a big firm or stay in house?
6.26.2009 9:53pm
Melancton Smith:
As for the brevity my first submission, I was on a mobile device and wanted to be succinct.

To elaborate, I wanted to follow up on commenter ohwilleke's opinions.


Pragmatically, from a SCOTUS and federal judiciary perspective, there is also an incentive not to create a new federal right that will produce litigation all over the country at both the state and local government levels, when the judiciary already considers itself to be overtaxed. If the answer is non-incorporation, there are one or two more Second Amendment suits in the high court ever; even pending cases would be stopped in their tracks. If the answer is incorporation, there will be hundreds, if not thousands of certiorari petitions, and probably dozens of argued cases defining the Second Amendment's scope.


Wow, I mean couldn't they have saved a lot of the Court's time by not ruling in Brown? What about all those pesky 4th Amendment cases that keep cropping up? Why not save the Court time by ignoring those?


Those hundreds, if not thousands of litigants are just gun nuts anyway, why give them recourse in the courts?

Ohwilleke thinks he can save the Courts time and effort, reducing costs. But has he measured the costs of the unintended consequences of doing so?
6.26.2009 10:36pm
Dennis Nicholls (mail):
I didn't see the 5th Circuit Emerson case in the list of split circuits. Is there any particular reason for not citing it? It's been awhile since I read Emerson but IIRC it must have reached the incorporation argument and found for incorporation.
6.27.2009 3:24am
CDR D (mail):
*Emerson* found an individual right vice collective, but I do not believe it reached incorporation. It was a federal case involving the GCA68.
6.27.2009 10:38am
zippypinhead:
As a general proposition, ohwilleke's 6:13 pm comment was well-thought-out from the standpoint of an anti-incorporation argument. Wrong, IMHO, but well-reasoned. I think his arguments go off the rails in two places:

1. ohwilleke writes:
The evidence is reasonably good that what makes sense in one place may not make sense in another, Wyoming is not New York. Heller has already cleared the field to allow states to deregulate gun ownership if they wish to do so without undue federal interference.

Equally important to the federalism issue is all the conservative political theory scholarship that has arisen mostly out of Roe v. Wade that argues that hot button political issues belong in the hands of elected officials if the constitution can be interpreted reasonable to permit this to happen.
The problem is that the Second Amendment is not properly analyzed as "hot button politicial issue." It's not global warming, or TARP fund allocation, or even what to do about hanging chads. It is, to the contrary, an enumerated (and fundamental, given any reasonable reading of Heller) Constitutional right. Such a right should not, as a matter of basic Constitutional jurisprudence, be tempered by the identity of the political subdivision in which one who wishes to exercise the right happens to be located. Further, the "what makes sense in one place..." argument sounds a lot like an application of the rational basis standard of review, which was specifically disavowed in Heller. Heller made clear that an absolute ban on handguns, a la either D.C. or Chicago, fails under any SoR applicable to the Second Amendment. And I daresay that Maloney's outright ban on non-firearms "wooden sticks on a rope" arms also fails under the same reasoning, unless the trier of fact finds they flunk the Heller "common use" gloss, or are so much more dangerous than common arms that they can be banned (if so, perhaps they should have made a 70s martial arts movie entitled: "Bruce Lee: Nunchaku of Mass Destruction"?).

2. ohwillike also writes:
If the answer is incorporation, there will be hundreds, if not thousands of certiorari petitions, and probably dozens of argued cases defining the Second Amendment's scope.
The obvious rejoinder to that claim citing cases like Brown v. Board of Education, Gideon v. Wainwright, Mapp v. Ohio, etc. have already been made by others. And on an as-applied level, we know that use of firearms to further criminal acts under generally-applicable law is clearly not Constitutionally protected. As to other line-drawing questions, it's likely that the Second Amendment RKBA can be (and already has been to some extent in Heller's dicta) judicially defined with some fairly bright lines. SCOTUS already signaled that 18 U.S.C. §922(g) felon-in-possession, etc. prohibitions are generally Constitutional (leaving aside the muddy issues of non-violent felons and the amount of due process necessary to turn the subjects of domestic violence restraining orders into prohibited persons). And SCOTUS signaled that the 1934 NFA is likely Constitutional. One definitive SCOTUS holding in each area that confirms the Heller dicta will put these topics to rest, and based on my long-ago-far-away-distant-galaxy experience prosecuting Federal firearms cases, I suspect definitive SCOTUS rulings in just the FiP and NFA areas probably would cut out 80% of the potential Constitutional challenges. Off the top of my head, areas that will need more intense post-Heller judicial clarification include: (a) defense with arms outside the home (including the level of discretion governments have to regulate or prohibit concealed and open carry); (b) whether the absolute ban on registering post-1986 NFA machineguns under §922(o) while permitting continued private possession of pre-1986 machineguns passes the applicable standard of review; and (c) the extent to which government can track or limit RKBA through registration, training, sales procedures, or technical (e.g., microstamping or ammo serialization) requirements. There are probably a couple of other areas, but not a huge number.

Yes, these questions will produce a steady diet of cases for a while, until the lines are clarified. But that's not any different than a lot of areas of Constitutional jurisprudence.
6.27.2009 12:22pm
pintler:

The evidence is reasonably good that what makes sense in one place may not make sense in another, Wyoming is not New York.


Given the relative crime rates, I would think that concealed carry makes even more sense in NYC than in Cheyenne.

To look at the question the other way, is there any state where CCW doesn't make sense? Any state that has implemented it and had a bad outcome? Perhaps we should adopt a default position that CCW makes sense until there is at least one counterexample.
6.27.2009 3:09pm
cboldt (mail):
-- And SCOTUS signaled that the 1934 NFA is likely Constitutional. --
.
SCOTUS has made opposing pronouncements in this area, and then, Obama-like, claims the conflicting pronouncements are in perfect agreement. In this sort of lawless regime, the latest pronouncement is the binding one. Heller asserts that 922(o) is, in fact, constitutional as it pertains to M-16's and short barrel shotguns.
.
The Hamblen case is challenging the Heller majority construction and application of Miller. I predict the Circuit Court will say Heller got Miller right, and SCOTUS will deny cert.
6.27.2009 3:56pm
Tony Tutins (mail):
The problem with Moloney is that it's about nunchaku. I'm pretty sure no American had nunchaku at the founding of the country. The right to keep and bear nunchaku was not within the contemplation of the framers.
6.27.2009 5:00pm
Oren:

The problem with Moloney is that it's about nunchaku. I'm pretty sure no American had nunchaku at the founding of the country. The right to keep and bear nunchaku was not within the contemplation of the framers.

Why is founder contemplation/ownership the relevant criterion?
6.27.2009 7:19pm
Matthew Carberry (mail):
The Founders, like anyone with even a passing knowledge of pre-industrial agriculture, knew about clubs in general and grain flails in particular, the name given the implement is unimportant. They certainly were familiar with the concept of using such items as weapons as similar flails were used as bludgeoning weapons in feudal Eurpoe.

However, unlike Okinawan peasants in feudal Japan, the Colonists of the Gunpowder Era would typically only have to rely on such weapons when, as noted in the Petition, the powder ran out.

Or, as EV is addressing in that upcoming article, when "hitting someone" without the intent to kill them was a more appropriate response than stabbing or shooting them.

The Second Amendment is no more about "merely firearms" than it is about "merely hunting". It enumerates the pre-existing right of individuals to be armed for their defense with the weapon deemed most appropriate for a given situation.

(feel free to insert asinine comment about nukes in response)
6.27.2009 7:26pm
arbitraryaardvark (mail) (www):
I'm pretty sure no American had nunchaku at the founding of the country.
They had farm implements, which is what nunchaku were, tools for a citizen's militia to resist formal armies of an empire.
6.27.2009 7:41pm
arbitraryaardvark (mail) (www):
That's one of the best pro se cert petition's I've ever read. The guy has a compelling story. I wonder who has the movie rights.
6.27.2009 9:22pm
zippypinhead:
That's one of the best pro se cert petition's I've ever read. The guy has a compelling story. I wonder who has the movie rights.
I'm not actually sure how much of the petition Maloney wrote. He's a lawyer, but the petitiion is not actually pro se - he's only of counsel, and counsel of record is from the D.C. office of Kirkland &Ellis. Jeff Clark is a long-time appellate specialist who's not a novice at the Supreme Court, although he's been more involved in environmental law cases than pure Constitutional rights litigation.

But I'm guessing based on how thinly staffed the cert petition is (1 partner and 2 associates), that Kirkland's likely doing this one pro bono? Second Amendment-focused VC bloggers or folks who regularly visit this blog and are more directly tied into Second Amendment litigation may know more. Kopel? Cramer? Hardy?

As for the movie, the working title is: "12 Angry Ninjas..."
6.27.2009 9:44pm
JustAGuest (mail):
Obviously I'm going against roughly 200 years of legal precedent here but the text of the USC (i.e. the actual words) make it clear that the BofR applies to the States.

Article VI - "This Constitution"..."shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding."
"The Senators and Representatives before mentioned, and the Members of the several State Legislatures, and all executive and judicial Officers, both of the United States and of the several States, shall be bound by Oath or Affirmation, to support this Constitution;..."

Article V - "...Amendments, which, in either Case, shall be valid to all Intents and Purposes, as part of this Constitution,..."

The BofR not being incorporated rests largely on the word "Congress" in the 1st Amendment. It is then presumed (without justification) that all of the remaining BofR somehow also contain the word "Congress", i.e. the BofR only affects Federal legislation. The BofR however where not offered as a take it all or leave it all proposition. The preamble to the BofR (which is part of the BofR but is frequently omitted from the text) makes this clear, "... the following Articles be proposed to the Legislatures of the several States, as Amendments to the Constitution of the United States, all or any of which Articles, when ratified by three fourths of the said Legislatures, to be valid to all intents and purposes, as part of the said Constitution;". The States could have ratified anything from all 12 to none of the original amendments offered. Proposed amendments 3 - 12 were adopted becoming the BofR. (Proposed amendment 2 eventually become the 27th Amendment when it was finally ratified by enough States.) Original Bill of Rights

The BofR were adopted in accordance with Article V, thereby becoming "the supreme law of the land" which per Article VI "Judges in every State" and "State Legislatures" and "all executive and judicial Officers ...of the several States" are "bound ... to support".

The SCOTUS set a bad precedent when it ruled the BofR didn't apply to the States. The current SCOTUS could correct that error, and by the plain text of Arts. V &VI of the USC, be quite justified in doing so. They won't do so because the SCOTUS is a bureaucracy which like all bureaucracies lives to perpetuate and increase its own power. They do this by limiting what the Constitution and BofR actually says.
6.28.2009 1:10am
JustAGuest (mail):
In Barron v. Mayor &City Council of Baltimore, 32 U.S. 243 (1833) the SCOTUS said:
"These amendments [the BofR] contain no expression indicating an intention to apply them to the State governments. This court cannot so apply them." and,
"We are of opinion that the provision in the Fifth Amendment to the Constitution declaring that private property shall not be taken for public use without just compensation is intended solely as a limitation on the exercise of power by the Government of the United States, and is not applicable to the legislation of the States."

Barron v. Baltimore is what non-incorporation rests on and now the petitioner's task is to incorporate the 2nd via the 14th. It is telling that in Barron v. Baltimore the court made no mention whatsoever of USC Article V or Article VI. Obviously it is now presiding law but I really fail to see how the opinion that "These amendments contain no expression indicating an intention to apply them to the State governments" can be squared with the plain language of Article V that Amendments are "valid to all Intents and Purposes, as part of this Constitution," and Article VI that Federal and State executive and judicial Officers, and Congress, and the State Legislatures, are bound "to support this Constitution". Essentially what the court said was that any amendment must explicitly say "This amendment applies to both the Federal and State Governments, Mmkay" in order for it to be interpreted as applying to the States. Barron v. Baltimore was nothing less than the judicial repeal/amendment of portions of Articles V &VI of the USC.
6.28.2009 1:55am
Steve2:
Zippypinhead, Kirkland &Ellis is indeed doing this pro bono, as was reported on this blog (based on a press release, I think, although it might have been via another blog first) a few months back.
6.28.2009 6:55am
Oren:

Essentially what the court said was that any amendment must explicitly say "This amendment applies to both the Federal and State Governments, Mmkay" in order for it to be interpreted as applying to the States. Barron v. Baltimore was nothing less than the judicial repeal/amendment of portions of Articles V &VI of the USC.

That formulation (that the constitution binds the Federal gov't only except when explicitly binding the States) was plainly obvious at the founding. This is why the various things forbidden of the States (coining money, making alliances and such) are done in explicit fashion (No State shall ...).

You can't say that the state of MD wasn't following the US Constitution when they violated provisions of an amendment that does not apply to them in the first place.

Incidentally, it was assumed at the founding that vigorous application of the State Constitutions by the Courts of the Various States would prevent the abuses such as those made against Barron, against the slaughterhouses in LA, the bakers in Lochner, the newly-freed slaves and so forth.

That the State Courts have proven obscenely obsequious in their deference to the State Legislatures is quite disappointing but must be accepted as a matter of fact.
6.28.2009 2:48pm
Oren:

That's one of the best pro se cert petition's I've ever read. The guy has a compelling story. I wonder who has the movie rights.

He's quite the sympathetic plaintiff, yes. EMT, Naval Reserve, member of the bar -- exactly the person that you want carrying nunchaku around your city after dark!
6.28.2009 2:59pm
Harvey Mosley (mail):

EMT, Naval Reserve, member of the bar -- exactly the person that you want carrying nunchaku around your city after dark!


Isn't this the type of person, in general, at least, that is most likely to follow a law prohibiting carrying weapons? I think its a safe assumption that these laws don't really affect people who will steal, assault and kill until after they are arrested. That is, they may be used to enhance the punishment of other acts, but don't really stop the carrying of weapons by these people. So why wouldn't you want the people who are law-abiding to have legal access to the same weapons the criminals routinely carry in violation of the law? Unless you are claiming that the mere possession of such an evil device will automatically remove inhibitions against criminal behavior, and turn otherwise decent people into murderers and rapists? Of course, I'm sure you are also trying to disarm police officers, since they would be corrupted by these infernal devices as well.
6.28.2009 3:41pm
Oren:
Harvey, I wasn't being sarcastic. I would sincerely like to have more EMT/Naval Reserve/Members of the Bar walking around my city armed. He's a sympathetic client.
6.28.2009 7:21pm
omarbradley:
Ohwillike,

Conservatives have never said that actual constituional provisions shouldn't be applied. You compare it to the abortion context which is totally different. If the 3rd amendment for example said, "The right of a woman to have an abortion shall not be infringed", then even Clarence Thomas would write an opinion upholding it. It would be clear as day.

The difference is that the abortion right was fashioned out of nothing. You could have taken every single member of the Constitutional Convention, every single state rep who voted to ratify, every single drafter and ratifier of the 14th amendment, all of them. Not one would say that "no person shall be...liberty...due process..." has anything whatsoever to do with abortion. I don't see how any objective thinker would really, deep down, think such a thing.

Conservatives believe that if it's not mentioned in the text, as abortion is not mentioned, then it's left to the states, as per the 10th amendment. If it is mentioned in the text, such as the right to keep and bear arms, then it's a whole different story. For example, no conservative thinks a state can leave the free exercise of religion or the freedom of speech to the states, because they are mentioned in the text. It's pretty simple.

As for the case and the P or I argument, I doubt they'll take that but I would love to see it. For the Court to reorient its jurisprudence on the P or I clause and end the substantive due process fraud that has ruined the Court for the past 100+ yrs would be the biggest step towards fixing it in quite some time. Interestingly, Justice Thomas in Saenz V Roe indicated he accepts the P or I argument and would be willing to do just that. I don't know how any of the other Justices feel. It would be such a huge change I doubt they'd do it. I'd like to see them try though.

Could be a very interesting term next year with a 2nd amendment case as well as a possible abortion case if the 4th circuits decision is appealed.
6.28.2009 7:30pm
kunkmiester (mail):
ohwilleke, claiming that democracy works with gun regulation is like saying tyranny works without it. Both exist, the key point is that the people need the will and knowledge to resist. Every democracy that has turned into a tyranny has enacted gun control first. This simple fact shows that the potential for abuse of the power in such laws far exceeds the dubious claims of lower crime. As such, a law is unnatural, and should not be made. The Constitution, and the amenedments, were an attempt to codify some of that natural law, and quite clearly indicate that they are not the be-all end-all of rights.
6.29.2009 12:50am
Harvey Mosley (mail):
Oren, my sincere apologies. I misread the tone of your post. Thank you for the correction.
6.29.2009 6:47pm

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