ConstitutionCowboy
member
Here's My Reply In The Other Thread:
Gura opened the door wide with his answer to Sotomayor's question:
Gura opened the door wide with his answer to Sotomayor's question:
JUSTICE SOTOMAYOR: said:"What is it that has -has been caused by it that we have to remedy, meaning States have relied on having no grand juries, States have relied on not having civil trials in certain money cases, they have relied on regulating the use of firearms based on us, the Court, not incorporating the Privileges and Immunities Clause in the way that you identify it. What -- in which ways has ordered liberty been badly affected?"
MR. GURA: said:"Justice Sotomayor, States may have grown accustomed to violating the rights of American citizens, but that does not bootstrap those violations into something that is constitutional."
I'd like to point out that Sotomayor talked of laws regulating the use of arms based on the Court not incorporating the Second Amendment. It wouldn't matter! Either she is ignorant or tried to make a point disingenuously. The Second Amendment doesn't cover the use of arms at all. That's why you'll probably never see a challenge to laws that say you can't shoot your guns in the middle of town except in self defense.
JUSTICE SOTOMAYOR: said:I found this exchange encouraging.
JUSTICE SCALIA: said:No, no. I'm not talking about whether -- whether the Slaughter-House Cases were right or wrong. I'm saying, assuming we give, you know, the Privileges and Immunities Clause your definition, does that make it any easier to get the Second Amendment adopted with respect to the States?
MR. GURA: said:Justice Scalia, I suppose the answer to that would be no, because -
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JUSTICE SCALIA: said:What you argue is the darling of the professoriate, for sure, but it's also contrary to 140 years of our jurisprudence. Why do you want to undertake that burden instead of just arguing substantive due process, which as much as I think it's wrong, I have -- even I have acquiesced in it?
Gura didn't get a chance to answer directly, but I think Scalia hinted he's ready to incorporate under the P&I clause. Gura certainly did get in that Slaughter-House needs to go, though, and the only hurdle mentioned was the 140 years S-H has been around. Being wrong for 140 years is a rather feeble excuse to continue to be wrong.[/indent]
The following backs up what I've been saying about Heller - that those "presumptive reasonable restrictions" were just that: Presumptive. Refer to what I highlighted in bold:
JUSTICE SCALIA: said:Well, why would this one be resolved on the basis of statistics? If there is a constitutional right, we find what the minimum constitutional right is and everything above that is up to the States. If you want to have, you know -- I think we mentioned in Heller concealed carry laws. I mean, those are -- those are matter that we didn't decide in Heller. And you may have a great deal of divergence from State to State, and on that I suppose you would do statistics, wouldn't you? Or the legislature would.
Scalia went out of his way to point out that those things like concealed carry mentioned in Heller as long standing laws, that "those are matter that we didn't decide in Heller."
CHIEF JUSTICE ROBERTS: said:"That still allows scope, once you determine that the right is incorporated, for recognizing that the States might have broader interests that the Federal Government doesn't have. But I would suppose that would come up in the application of the right, rather than in an effort to determine whether parts of it are incorporated or not."
This statement by Roberts really exposes the mind-set we too often see at all levels of government. I'd like to inform all in government that it isn't about the interests of the different levels of government. It's about the interests of We the People! That's the way ALL levels of government should be looking at this! What good is the protection of a right at one level of government if a different level can infringe upon the right? Infringed is infringed. Does it matter to your face if a federal agent slaps it or if your local sheriff slaps it?
Gura got the last word and it went unchallenged:
MR. GURA: said:We believe that it's more limited because that -- that text had a specific understanding and that there are guideposts left behind in texts and history that tell us how to apply it, unlike the due process. But at least we know one thing, which is that in 1868 the right to keep and bear arms was understood to be a privilege or immunity of citizenship, and if the Court is considering watering down the Second Amendment perhaps it should look to text and history.
My prediction: We'll get a not less than 5-4 and possibly as much as an 8-1 win, with a better than 50/50 chance of incorporation under the P & I clause coupled with a sure Due Process win as well. The RKBA being a definitive privilege and with the Second Amendment making it immune to government infringement, how can we lose?
My biggest disappointment in this whole process has been the disregard for Madison's reasoning why we need a bill of rights to begin with:
An Excerpt: Mr. Madison from the Congressional Record of 8 June, 1789, debating the proposal of a Bill of Rights:
I admit the force of this observation, but I do not look upon it to be conclusive. In the first place, it is too uncertain ground to leave this provision upon, if a provision is at all necessary to secure rights so important as many of those I have mentioned are conceived to be, by the public in general, as well as those in particular who opposed the adoption of this Constitution. Besides, some States have no bills of rights, there are others provided with very defective ones, and there are others whose bills of rights are not only defective, but absolutely improper; instead of securing some in the full extent which republican principles would require, they limit them too much to agree with the common ideas of liberty.
When you have such clarity from a Founding Father, how can there be any doubt? Maybe whomever writes the majority opinion will include it.
Woody
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