Reason: “Gun nuts” battle “Constitution nuts”
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Al Norris
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Sebastion, I am in favor of a correct interpretation of the constitution. Therefore, I would like to see P or I incorporation, if only because it requires greater scrutiny of our rights, by the courts. However...
My point was to show that we will get incorporation, but not on P or I grounds. It will remain a dead letter issue (right or wrong), and incorporation will come via SDP.
P or I incorporation has no chance, based upon the last two points of my prior post.
My point was to show that we will get incorporation, but not on P or I grounds. It will remain a dead letter issue (right or wrong), and incorporation will come via SDP.
P or I incorporation has no chance, based upon the last two points of my prior post.
testosterone
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To understand why it matters you need to understand what the slaughterhouse ruling has meant to economic freedom in the US for the last 100 years.
I barely get it, but in essence the slaughterhouse ruling, in effect, allows government to do things like pass minimum wage laws, require special licensing for some occupations and associated fees for said licenses, etc...
Whether you think these things are "good" or "bad" is not the question, what these things *are* are barriers to entry of economic liberty, and economic liberty, the right to earn an honest living free of arbitrary or excessive government intrusion, is what is at question.
Winning on P&I, which is what Gura and the CatO institute as economic libertarians, want, opens the door to strike down thousands of laws that run contrary to the above.
The case is being argued as a 2nd amendment thing, but that outcome on due process is all but decided, winning on P&I is shooting for the stars.
Testosterone,
Minimum wage was issued under authority of the Commerce Clause, not Slaughterhouse. Slaughterhouse basically held that P&I guaranteed by the Fed govt were rights arising out of federal citizenship like protection on the high seas and being able to go to the US embassy in a foreign country. Rights arising out of state citizenship are what we generally think of as our fundamental rights (bill of rights) and those are not entitled to federal protection under P&I. The states have the power to police those.
Now, the court circumvented that ruling by opening up the Due Process clause to incorporate the amendments, but Slaughterhouse doesn't have much to do with minimum wage.
Minimum wage was issued under authority of the Commerce Clause, not Slaughterhouse. Slaughterhouse basically held that P&I guaranteed by the Fed govt were rights arising out of federal citizenship like protection on the high seas and being able to go to the US embassy in a foreign country. Rights arising out of state citizenship are what we generally think of as our fundamental rights (bill of rights) and those are not entitled to federal protection under P&I. The states have the power to police those.
Now, the court circumvented that ruling by opening up the Due Process clause to incorporate the amendments, but Slaughterhouse doesn't have much to do with minimum wage.
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testosterone
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thanks, like I said, barely getting it, an apparently not...
Autolycus
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Thanks for the article.
230therapy
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Why do we need the 14A to tell us we have 2A rights?
It makes no sense, especially since the 2A came long before the 14A.
This whole 14A thing is a trap. It turns rights into legislatively regulatable privileges.
It makes no sense, especially since the 2A came long before the 14A.
This whole 14A thing is a trap. It turns rights into legislatively regulatable privileges.
Because the bill of rights originally only applied to the federal government. They saw states as protectors of freedom from the feds and never envisioned states trampling on rights. Well, we all know how that turned out and so the 14th Amendment has been used to force the states to respect those amendments/rights as well.
Yes, Testosterone, that was my original question: whether P&I was just icing on the cake. I learned from Sebastian's post a page or so back that arguing for P&I could actually have some negative effects on the case, since (for one thing) it could split SCOTUS along different lines. Not intending to pick on you, just noting that I too am only beginning to see all the implications.
Cbrgator, I'm not quoting you, but it would be nice to think up some good reasons why a liberal justice might swing our way in order to rescue P&I, wouldn't it? Sotomayor is a great one for substituting political activism for jurisprudence. Wonder if there's some smarmy liberal ideal or program she'd be willing to support by activating P&I, since she will no doubt figure that incorporation through due process is very likely (whoops there I go again).
Cbrgator, I'm not quoting you, but it would be nice to think up some good reasons why a liberal justice might swing our way in order to rescue P&I, wouldn't it? Sotomayor is a great one for substituting political activism for jurisprudence. Wonder if there's some smarmy liberal ideal or program she'd be willing to support by activating P&I, since she will no doubt figure that incorporation through due process is very likely (whoops there I go again).
Bartholomew Roberts
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Slaughterhouse doesn't have much to do with minimum wage; but if you look at the earlier case of Coryfield where the opinion lists some of the "privileges and immunities" of a United States citizen, freedom to contract is one of those. There was a whole line of decisions striking down similar laws that started with a case called Lochner. Lochnerism eventually was killed off by the New Deal and appointees of FDR.
However, a win on P&I could revive that doctrine - which is great for libertarians, a bit of a status quo shake up for conservatives and terrifying for progressives. All in all, both conservatives and progressives have things to fear and like about a P&I win.
I think P&I will get some votes; but I don't see it being a majority decision.
Reinstatement of Lochner is a great hope of mine.
We won't know exactly what they have up their sleeve until they reveal it, but I think that healthcare (perhaps a suit brought by someone who can't afford it) could be given fundamental right status under P&I, and perhaps housing (brought by a homeless person). Those are probably two areas where progressives/liberals would love to extend benefits and entitlements to all people. Even more controversial, abortion could be sought as a P&I as well. That more than anything else will delight and terrify the American people and ignite vigorous debate.
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Sebastian the Ibis
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Cbrgator
I don't think it will be healthcare or housing, at least I sure hope it is not. The Constitution does not provide persons with anything unless the government takes something away from you first, i.e. you are entitled to just compensation if the government takes your property and you are entitled to a lawyer if you are charged with a crime. Blanket entitlements to housing, healthcare, jobs and rations of food are more synonymous with constitutional protections of certain former Eastern European countries, see e.g. Soviet Constitution of 1977. I sure hope that the justices realize what a fundamental change such a right would be.
Abortion is a possibility, but I think it is more likely that the liberals tie 2A incorporation to abortion substantive due process jurisprudence. That way striking down Roe on due process grounds would also cut off 2A incorporation.
230
The Bill of Rights originally only applied to the Federal Government, the 14th amendment extends its protections against the states too.
Jeff
I disagree. P & I might bring another justice to the table (Thomas and maybee Salia) who do not feel comfortable supporting substantive due process, it is essential to the argument. It's like getting picky kids to eat dinner, If your main goal is to get them to eat, prepare all their favorite mealS. It is not as easy as just preparing one meal, but if you want them to eat its what you have to do.
I could be wrong and Thomas might have no problem stomaching substantive due process, however, it would still be a win. We've got to use all our possible arguments to get 5 justices to the table.
I don't think it will be healthcare or housing, at least I sure hope it is not. The Constitution does not provide persons with anything unless the government takes something away from you first, i.e. you are entitled to just compensation if the government takes your property and you are entitled to a lawyer if you are charged with a crime. Blanket entitlements to housing, healthcare, jobs and rations of food are more synonymous with constitutional protections of certain former Eastern European countries, see e.g. Soviet Constitution of 1977. I sure hope that the justices realize what a fundamental change such a right would be.
Abortion is a possibility, but I think it is more likely that the liberals tie 2A incorporation to abortion substantive due process jurisprudence. That way striking down Roe on due process grounds would also cut off 2A incorporation.
230
The Bill of Rights originally only applied to the Federal Government, the 14th amendment extends its protections against the states too.
Jeff
I disagree. P & I might bring another justice to the table (Thomas and maybee Salia) who do not feel comfortable supporting substantive due process, it is essential to the argument. It's like getting picky kids to eat dinner, If your main goal is to get them to eat, prepare all their favorite mealS. It is not as easy as just preparing one meal, but if you want them to eat its what you have to do.
I could be wrong and Thomas might have no problem stomaching substantive due process, however, it would still be a win. We've got to use all our possible arguments to get 5 justices to the table.
Al Norris
Member
However you feel about abortion, a womans right to her own bodily integrity is a better fit under the P or I clause than Due Process. That this and perhaps a couple more, certainly hold interest for the liberal side of the Court.
On the other hand, this is precisely what scares the conservatives.
It's the economical rights that scare both sides.
See Josh Blackman & Ilya Shapiro, Opening Pandora’s Box? Privileges or Immunities, The Constitution in 2020, and Properly Incorporating the Second Amendment for a good take on all of this.
On the other hand, this is precisely what scares the conservatives.
It's the economical rights that scare both sides.
See Josh Blackman & Ilya Shapiro, Opening Pandora’s Box? Privileges or Immunities, The Constitution in 2020, and Properly Incorporating the Second Amendment for a good take on all of this.
Bartholomew Roberts
Member
I read that and listened to Ilya Shapiro and Dave Kopel discussing it on the Independence Institute podcast. It seems to me that the basis of his argument is that if you take an originalist view of P&I that looks at the term how it was envisioned at the time of the Framer's then you can cut out a lot of the "right to welfare", "right to housing", "right to healthcare" type of newfound rights.
However, it seems to me that the big problem with that argument is that if we looked to an Originalist understanding of the Constitution we wouldn't have 50% of the precedent we have. It also overlooks the fact that at least 4 (and possibly more) members of the Court aren't Originalists at all when it comes to constitutional interpretation.
They have nicely outlined a way to keep P&I from being Pandora's Box; but the practical aspects of the method he outlined strike me as unlikely.
How do we all feel after today? I've read the transcript (albeit at hydroplane speed). P&I seems doomed to me. But who can know what Thomas is thinking? Scalia sounds downright derisive about it. Due process seems like a fat pitch, but there are going to be a thousand little legal brush wars over state and local "limitations"--sigh. Carry laws look especially vulnerable. Please, tell me I'm wrong!
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Sebastian the Ibis
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Jeff
I think you are right. But I wouldn't worry. Those thousand little brush wars over state and local limitations, will be fought to secure gun rights. McDonald won't make one iota of difference to the free states which currently allow carrying. However, if it comes out on our side, it is a crucial step to overturning Brady Bunch legislation in the Non-free states.
I think you are right. But I wouldn't worry. Those thousand little brush wars over state and local limitations, will be fought to secure gun rights. McDonald won't make one iota of difference to the free states which currently allow carrying. However, if it comes out on our side, it is a crucial step to overturning Brady Bunch legislation in the Non-free states.
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Sebastian the Ibis
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+ 1
My armchair quarterback solution:
We form a new nationwide organization (or maybe just a new wing of the NRA or SAF). State Gun Law Coalition. The new SGLC will appoint one highly qualified appellate attorney in each state responsible for challenging strict gun laws.
Maybe 2 or 3 in California.
EDIT: OK. A dozen.
We form a new nationwide organization (or maybe just a new wing of the NRA or SAF). State Gun Law Coalition. The new SGLC will appoint one highly qualified appellate attorney in each state responsible for challenging strict gun laws.
Maybe 2 or 3 in California.
EDIT: OK. A dozen.
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Ohio Gun Guy
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I think you need the Dirty Dozen for California.
Bartholomew Roberts
Member
P&I is a dead issue, though I expect Thomas will write a separate opinion on it and give it a vote. The big concern now is it looks like the left wing of the Court plans to suggest incorporation-lite where the militia purpose (what they termed a "core right") of the Second Amendment will be incorporated against the States (which should make the Firearms Freedom Act litigation interesting) but self-defense, hunting and other individual uses of firearms (i.e. the individual right protected by Heller) will not be incorporated.
I don't think the incorporation lite view will gain a majority vote; but I do think it could gain more than just Stevens and Breyer.
I don't think the incorporation lite view will gain a majority vote; but I do think it could gain more than just Stevens and Breyer.
Ohio Gun Guy
Member
^^^
Heller determined the scope = Individual right.
The City Of Chicago, tried to re-argue that but was pounced on by Roberts and Scalia.
The incorporation will be a narrow issue. We'll still have to fight the limits for years to come, but we will have the protected stand point of an individual right, incorporated against the state & local govts. There is a LOT of case law on that, and we'll have alot of compairable cases, etc to use in that fight.
(I hope that Roberts & Scalia have a big enough majority that they can get some language in the decision that makes it clear that the 2nd is no different than the 1st, etc, etc. That would build in a lot of protection to the right)
Heller determined the scope = Individual right.
The City Of Chicago, tried to re-argue that but was pounced on by Roberts and Scalia.
The incorporation will be a narrow issue. We'll still have to fight the limits for years to come, but we will have the protected stand point of an individual right, incorporated against the state & local govts. There is a LOT of case law on that, and we'll have alot of compairable cases, etc to use in that fight.
(I hope that Roberts & Scalia have a big enough majority that they can get some language in the decision that makes it clear that the 2nd is no different than the 1st, etc, etc. That would build in a lot of protection to the right)
Well, thanks guys. Looking around the board, I like our McDonald thread the best. It's a bit more nuanced than some of the others.
Connecticut is a land of convoluted state gun laws, and new ones are brought up in the state assembly every year. Local authorities simply ignore the ones they don't like and do so with impunity; the bureaucracy helps them by insuring that there's a two-year backlog on appeals over carry permit denials or revocations. Since it appears that Slaughterhouse isn't going to the slaughterhouse any time soon, we'll at least have a firmer foundation from which to fight. It ain't over, and won't be over in our lifetime.
Connecticut is a land of convoluted state gun laws, and new ones are brought up in the state assembly every year. Local authorities simply ignore the ones they don't like and do so with impunity; the bureaucracy helps them by insuring that there's a two-year backlog on appeals over carry permit denials or revocations. Since it appears that Slaughterhouse isn't going to the slaughterhouse any time soon, we'll at least have a firmer foundation from which to fight. It ain't over, and won't be over in our lifetime.
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