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How Could a SCOTUS Justice Vote "No"?

Discussion in 'Legal' started by RDak, Jul 17, 2009.

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  1. RDak

    RDak Member

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    Just curious about how any SCOTUS Justice could now vote "no" on incorporation with Heller on the books?

    I'm somewhat at a loss as to how a Justice could wiggle their way out of Heller to say the States can still prohibit private firearms ownership.

    Especially when any liberal Justice would be all for incorporation of free speech, right to kill unborn babies, etc.

    Would just like to hear your opinions
     
  2. THE DARK KNIGHT

    THE DARK KNIGHT Member

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    Because the Supreme Court is corrupt, plain and simple. It's not a panel of neutral, unbiased, non-politically affiliated judges who judge the constitutionality of an issue. It is a council of politically opinionated, politically appointed judges who simply pay lip service to the values of the judicial system. One party stacks the judges that will help them, and the other does the same. And the struggle goes on over the years to tip the balance towards one side or the other.
     
  3. kludge

    kludge Member

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    Because some justices are intent on upholding racist rulings from the Jim Crow days.

    This is where the doctrine of selective incorporation comes from.

    Before the civil war and Imancipation, there was no question about whether the Bill of Rights applied to all white people.

    Today it is even more insidious as black mayors (Chicago, New York, New Orleans) are intent on keeping their large minority populations disarmed at all costs.
     
  4. Rmeju

    Rmeju Member

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    Er... Chicago has a white mayor...
     
  5. Phatty

    Phatty Member

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    There's a couple of ways:
    1) Adhere rigorously to precedent, proclaiming the virtues of stare decisis, and refuse to incorporate because prior Supreme Court cases already decided that the 2A is not binding on the states.
    2) Find that the RKBA is not a fundamental right.
     
  6. Dr. Tad Hussein Winslow

    Dr. Tad Hussein Winslow member

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    Phatty is correct, but #2 is the much more likely route, because they would be mocked from here to kingdom come (for good reason) if they relied on pre-incorporation era cases (presser, cruikshank, the other miller) to find no incorporation - it would be an obvious end run around the incorporation doctrine. With a finding of no fundamentalness, at least they could give enough adequate lip service to have some alleged basis for it.
    And yes, then there's that too.
     
  7. TargetTerror

    TargetTerror Member

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    The answer is much simpler: because they can. They can make up any reason that they want, or no reason at all.

    Welcome to legal realism.
     
  8. Lone_Gunman

    Lone_Gunman Member

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    The more I know about incorporation, the less I like it.
     
  9. hugh damright

    hugh damright Member

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    Couldn't one say that Heller regarded a federal district where the Second Amendment was binding, and maintain that the Second Amendment is not binding upon the States?

    But I don't see how it follows that a State can prohibit private firearms ownership, because the SCOTUS said in Presser v Illinois that while the Second Amendment doesn't bind the States, still no State can prohibit private firearms ownership "so as to deprive the United States of their rightful resource for maintaining the public security, and disable the people from performing their duty to the general government".
     
  10. arcticap

    arcticap Member

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    Because our system is based on the fragmentation and division of political power among different levels and branches of government.
    The distribution of political power is in a constant state of flux and there is a precarious balance that needs to be maintained in order to keep the bearings of the nation on kilter if it is going to survive intact and in good health into the future.
    In order for one branch or level of goverment to grab and consolidate additional power, it comes at the expense of another level of government. So someone's loss is someone else's gain which can throw off the fragmentation and distribution of power, and which then requires a reconfiguration which can not only have unpredictable and unintended consequences, but it can affect the survivability of the nation as a whole.
    So the issue has presented an insurmountable chasm so far which needs to be given enough time for development of the "caterpillar" of legal theory to catch up.
    Someone has to bring up the rear when the rear needs to be brought up.
    It's just a matter of time and for the head to find it's proper bearings without upsetting the rest of the system to the point where any stable, survivable reconfiguration becomes impossible to create.
    A decision of this magnitude needs overwhelming support, probably not just from the SCOTUS, but also with the cooperation of Congress and the states which may need to help with enforcement and compliance.
    For every revolution, there's a counter-revolution.
    Don't think that there's never a backlash as a result of a power grab by any branch or level of government.
    The survival mode of the nation is the priority and everything else is secondary.
    1. How much of a priority is attributed to incorporation?

    2. Is incorporation necessary to the survival of the nation or would it be an impediment?

    There's always the backlash to be considered.
    It's all about fragmentation vs. consolidation of power.
    The Supreme Court acts when the states and Fed's can't get their act together to do their job and protect people's rights.
    Unless there's a major clamour then who wants to fundamentally alter the balance of power and suffer the societal consequences?
    If incorporation led to the necessity to double or triple the number of police officers in the nation, would it be supported?
    Could it lead to our nation becoming more of a police state?
    And whose police and burden are they going to be, Federal, state or local?

    This is the kind of scenario that needs to be considered.
    Legal theory isn't developed in a vacuum.
    It sometimes progesses extra slow in order to promote societal stability.
    Let's examine and answer some of these questions rather than calling people and political parties names and pointing fingers.
    That begins by believing that everyone is on the same side, is a patriot and a red-blooded American. They all want what is best for the country, some just need to be convinced. And when those power brokers just can't be convinced, then society just needs to wait for them to die.
    That's the fragmentation that's built into the system, so no one or single entity has absolute authority in the end, not even the SCOTUS. That's where the forces of counter-revolution enter the picture over time.
    In the final analysis, when incorporation happens if ever, it needs to be done right the first time so there's no going back and the nation and it's citizens benefit rather than suffer for it. :)
     
    Last edited: Jul 17, 2009
  11. BossHaug

    BossHaug Member

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    This stuff gives me a headache....if the States are not bound by the Second Amendment, then logic dictates that they are not bound by ANY Amendment. So, a state could (logically) not have to enforce the 1st, 5th, 14th, etc. Does this make any sense?
     
  12. ArmedBear

    ArmedBear Member

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    I thought he's Irish.
     
  13. Guns and more

    Guns and more member

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    Why did my post disappear?
     
  14. arcticap

    arcticap Member

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    Maybe your pressed the wrong key? :)
     
    Last edited: Jul 17, 2009
  15. legaleagle_45

    legaleagle_45 Member

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    Of course a justice could vote against incorporation because said justice does not like the 2nd, but they would necessarily disguise their rationale under some legal mumbo jumbo. So I take your real question to be what sort of legal mumbo jumbo can we anticipate?

    First let me state that the foregoing is an argument involving "substantive due process". If SCOTUS were to use the Privileges or Immunities clause, there is no argument whatsoever except solely that you should not use P&I, which would bring you back and require you to use a substantive due process argument anyway in order to deny incorporation...

    Second, and before you start trying to pick apart the argument, let me state that it is a bunch of BS, using smoke and mirrors and (primarily) deflection to avoid the core right protected by the 2nd amendment. Without those tools, you are forced to look at self defense as the underlying right being protected. There is no way to avoid incorporation if you do that...

    So this is what they will do (IMHO)

    The argument which would probably be made to oppose incorporation is to take this statement in which Scalia asserts that the purpose of the 2nd Amendment is to protect the militia:

    “The Antifederalists feared that the Federal Government would disarm the people in order to disable this citizens’ militia, enabling a politicized standing army or a select militia to rule. The response was to deny Congress power to abridge the ancient right of individuals to keep and bear arms, so that the ideal of a citizens’ militia would be preserved....But the threat that the new Federal Government would destroy the citizens’ militia by taking away their arms was the reason that right—unlike some other English rights—was codified in a written Constitution.”

    I would then twist Scalia's words aroud a bit, and assert that the militia is an entity of the state (thereby disregarding Scalia's description thereof as a "citizens militia"). <Insert citations from the Constitution and from caselaw saying just exactly this>

    If you can convince the Court that the purpose of the right is the primary, necessary and sole subject for the incorporation analysis, rather than the scope of the right itself, then a whole new incorporation issue arises. In other words, how can a right who’s whole reason and purpose for existence is to restrain the new Federal Government from disrupting a state governed entity, the militia, then how on earth can such be made applicable to the states?

    You have to go this route... because there is no way you can defeat the incorporation analysis if it examines the "ancient right of individuals to keep and bear arms"... it simply can not be done.... IMHO
     
    Last edited: Jul 17, 2009
  16. arcticap

    arcticap Member

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    The states are morally bound to enforce the 2nd, but they are allowed to police themselves according to their own standards, Constitutions and Supreme Court rulings.
    It's not too unlike the definition of pornography where each locality gets to decide what is and isn't objectionable. That's like SCOTUS saying that certain issues are considered to be "political questions" which need to be decided by the political process in each locality or state and not only by the oversight of Federal Courts.
    Now there are standards for pornography being part of free speech, but there's also room for local interpretation. So what's legal in one state isn't legal in another.

    Consider the language of this landmark pornography ruling from Miller V. California:
    So some issues are considered to be political questions which are left to be decided by citizens during local & state elections. That's how the SCOTUS deals with state enforcement of 2A by letting the citizens of each state police their own state governments and not mandating too many Federal standards from thousands of miles away. That's what freedom and self-rule has traditionally been about, letting people control their own state and local government decisions according to their own standards and expectations of freedom.

    That's why the courts and Federal government doesn't like to get too involved in overturning close elections either, like Florida in 2000. They believe that political questions should be decided in the political arena and not in the legal arena.
    Regarding self-enforcement of 2A at the state level, the SCOTUS expects the state Legislative branch to do their job and be responsive to the people unless they really become too oppressive. Plus there's additional oversight by the state Supreme Courts. See how the political power is all fragmented when it comes to 2A interpretation & enforcement to promote the stability of the states and localities?
     
    Last edited: Jul 19, 2009
  17. mp510

    mp510 Member

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    Actually, arcticap, pornographic/sexually explicit (and most other media materials) are not an area tht the states are allowed to mess with (too much). Actually- even the possession of "obscene material" [the real issue in Miller](which is legally different from porn- see Roth which differentiates between secually explicit material and obscenity) has been incorporated under the 14th ammendment as a fundumental right (stanley v. Georgia, reaffirmed in Reidel, which used the incorporation/posession protection from Stanley to generally protect distribution). The folks over at PBS have it wrong- way wrong.
     
    Last edited: Jul 17, 2009
  18. mp510

    mp510 Member

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    In the past, when (what we consider less controversial; 4th and 5th) issues were up for consideration, the court considered the supposed right under the premise of whether or nto it was among the "fundumental principals of liberty and justice which lie at the base of all our civil and political institutions."
     
    Last edited: Jul 17, 2009
  19. arcticap

    arcticap Member

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    Pornography was only being used as an example that's understandable, even if it's an imperfect one.
    But the fact remains 2A has not been incorporated and people want an explanation about why it hasn't been.
    And I did provide one based on the historical reasoning that the interpretation of 2A has been treated as being more of a political question than a legal one.
    Why else then doesn't the SCOTUS or Congress act to try to incorporate it?
    Does anyone suppose that the SCOTUS wants to oversee every state firearm regulation that's gets appealed for the next millenium if they did? Then the possibility exists that everything about firearms regulations would become subject to Federal Court oversight and require a Federal stamp of approval in order to avoid endless litigation and challenges which are now largely handled by the state courts & legislatures through the state political process. :rolleyes:
     
    Last edited: Jul 19, 2009
  20. Faitmaker

    Faitmaker Member

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    You won't like what I have to say because it typically goes against gun rights. Being an anti-federalist, I believe that none of the BoR rights should have been incorporated and the Supreme Court has agreed with that many times. Boss had it right. If the 2nd had not been incorporated, why were any of the others. Currently SCOTUS has incorporated all of the substantive protections of the First, Fourth, Sixth, and Eighth Amendments and all of the Fifth Amendment other than the requirement that any criminal prosecution must follow a grand jury indictment, but none of the provisions of the Seventh Amendment relating to civil trials.

    I believe Scotus has been wrong with incorporation and that the states have a right to legislate themselves through the power of the people, which is why I disagree with the National Reciprocity bill because it would tell a state that they have to recognize my CCW even if they don't allow their citizens to CC.

    I'm only going to point out now that if the 14th amendment wasn't a BS attempt to get states under the federal government then 2A wouldn't need incorporated. Incorporation is judicial activism at it's finest. If the 14th amendment binds the states, it would do so for all 10 amendments and not just the one's the robes fancy.

    For the record, I carry because my state allows me too. Why hasn't Chicago been overturned and most of Illinois when D.C. was overturned? Because D.C. is not in a state and follows FEDERAL laws. D.C. is a town that is MOST subjected by the Constitution. Heller should have blew Chicago out of the water. Instead, the NRA is NOW working on them but haven't proven successful.

    I wish all states were to the level of freedom Vermont is (and Ohio isn't far from it in this regard) but that currently isn't the climate, which it would be if the BoR applied to the states.
     
  21. Igloodude

    Igloodude Member

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    Chicago - Daley. White.
    New York - Bloomberg. White.

    Maybe by "Chicago, New York" you meant "Washington D.C., Philadelphia".

    Though I completely disagree with your premise in any case.

    As to the OP question, legaleagle_45 pretty much nailed it, IMHO.
     
  22. stickhauler

    stickhauler Member

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    And here I thought he was just the corrupt son of a corrupt man, both of them having served as a mayor of Chicago. And from what I've seen of his actions, his father probably smacked his momma straight in the mouth, because this idiot is way stupider than his old man was.
     
  23. Pack

    Pack Member

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    Oddly enough, if you strike the word "black", and just go with "minority", he's actually right.

    Roughly 60 percent of the population of Chicago, according to the 2000 census, was comprised of persons described as other than "white".

    http://en.wikipedia.org/wiki/Demographics_of_Chicago

    By the 2007 estimate in New York, roughly the same is true, with its "white" population figure dipping to just 35 percent if you exclude "hispanic whites".

    http://en.wikipedia.org/wiki/Demographics_of_New_York_City#Racial_and_Ethnic_composition
     
  24. JimmyN

    JimmyN Member

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    You must be reading the Brady Campaign propaganda, apparently they've never actually read the bill either.

    From their latest news letter:
    It's a simple bill, only two paragraphs. Give it a read and see if you still think you'll be able to conceal carry in Wisconsin, just because you have a CCW from another state.

     
  25. Guns and more

    Guns and more member

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    Corrupt? Yes. Stupid? Not a chance. Go to the rich neighborhoods and talk to the republicans. They all vote for him. Why? He keeps their neighborhoods safe. Right or wrong, if a car with four black guys drives up to a park, within minutes there will be three police cars there. I've seen it. Daley gets it done. On the South side, the projects will all vote democrat no matter what so he doesn't care what happens there.
    Remember when his wife wanted Miggs field to be a park? Others were suing to keep it an airfield, so Daley had the runway bulldozed at midnight. It's a park.
    Don't get in his way, Chicago isn't too far from Community Organizer, Al Capone.
    Obama learned well.
     
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