Guns

Citizens United, Stare Decisis, and the Chicago Gun Case

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During his Senate confirmation hearings, soon-to-be Chief Justice John Roberts stressed his belief that the Supreme Court should practice "judicial modesty," a respect for precedent and consensus that he extended all the way to the abortion-affirming Roe v. Wade, a decision Roberts described as "the settled law of the Land."

In his concurrence in yesterday's landmark free speech case Citizens United v. F.E.C., Roberts elaborated on when it is acceptable for the Court to overturn precedent:

… if adherence to a precedent actually impedes the stable and orderly adjudication of future cases, its stare decisis effect is also diminished. This can happen in a number of circumstances, such as when the precedent's validity is so hotly contested that it cannot reliably function as a basis for decision in future cases, when its rationale threatens to upend our settled jurisprudence in related areas of law, and when the precedent's underlying reasoning has become so discredited that the Court cannot keep the precedent alive without jury-rigging new and different justifications to shore up the original mistake.

In early March, the Supreme Court will have the opportunity to consider another precedent, this time in a case centering on Section One of the 14th Amendment, which reads in part, "No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law." Specifically, the gun rights case McDonald v. Chicago will address "Whether the Second Amendment right to keep and bear arms is incorporated as against the States by the Fourteenth Amendment's Privileges or Immunities or Due Process Clauses."

For the past century, the Supreme Court has selectively applied the Bill of Rights and other unenumerated rights against state and local governments via the Due Process Clause. Yet the historical evidence overwhelmingly shows that it was the Privileges or Immunities Clause that was written and ratified to protect civil and natural rights against abuse by the states. The Due Process Clause came into play thanks to the Court's notorious 1873 decision in The Slaughterhouse Cases, which basically eviscerated the Privileges or Immunities Clause. Slaughterhouse has never been overturned.

That's where Roberts' Citizens United concurrence comes in. If any "precedent's underlying reasoning has become so discredited that the Court cannot keep the precedent alive without jury-rigging new and different justifications to shore up the original mistake," it's Slaughterhouse. Robert's opinion yesterday suggests that it will take more than "judicial modesty" to save this atrocious precedent from the death it so richly deserves.

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  1. Sadly, I tend to believe that this Court has exhausted its willingness to enforce the Constitution as written, at least for this session.

    For them to issue two broad, pro-liberty rulings in a single session would be, what’s the word?

    Oh, yeah. Unprecedented.

    1. dude. Thats a thread win and a first post all in one nice bundle.

  2. Let’s hear it for the right kind of “judicial activism.”

  3. We just ended one of the best weeks for freedom since the collapse of the USSR. Let’s not get greedy, now.

  4. Jurists love to be willing slaves to past fuck-ups. I suppose it’s easier than sitting around all day considering a bunch of new cases dealing with those past fuck-ups.

    1. That and it saves them the worry about their own fuck-ups being re-evaluated by future justices.

  5. The sentence “the precedent’s underlying reasoning has become so discredited that the Court cannot keep the precedent alive without jury-rigging new and different justifications to shore up the original mistake.” is applicable to most drug laws, gun regs, FCC rules, etc.

    But discreditation requires the recognition of some knowledgable authority on the matter, as opposed to the shrieking of imbeciles.

  6. But discreditation requires the recognition of some knowledgable authority on the matter, as opposed to the shrieking of imbeciles.

    What’s the difference?

  7. Thank God Roberts is on the court. Just think, if Kerry had won in 04, Heller and Citizens United would have gone the other way.

  8. Laurel & Hardy jailed on drug charges

    Carlos Laurel, 31, and Andre “Sug” Hardy, 39, of Lincoln Street, face eight charges related to cocaine trafficking. Police arrested Laurel and Hardy after they showed up at a Kingston residence and allegedly delivered 50 bags of cocaine to the unidentified occupant Tuesday at about 5:53 p.m. Police estimate street value of the cocaine was $2,500.

    http://citizensvoice.com/news/…..s-1.559215

    1. Huh. So there’s a Kingston in PA as well as one in NY, and not that far apart. So if you’re in Brodheadsville, PA at the intersection of US 209 & Penna. 115 and the sign points to Kingston…?

  9. This could end up being a decent year (or at least not as bad of a one).

    Now if we could just get people to stop worrying about other people that like to smoke a joint every once in a while…

  10. Isn’t what the Constitution ACTUALLY SAYS far more important than what other people in the past have CLAIMED it says?

    1. +100000

    2. Not unless you want the actual meaning to unintentionally change due to shifts in the use of language. If at some point everyone gets so ironic that “no” eventually means yes, that doesn’t mean that “Congress shall pass no law” should reverse its meaning. Ultimately, it’s the ideas that are important; the words are just a vehicle for delivering those ideas.

  11. when the precedent’s underlying reasoning has become so discredited that the Court cannot keep the precedent alive without jury-rigging new and different justifications to shore up the original mistake.

    Chalk up another vote for gay marriage in the Supreme Court if he truly believes that.

    1. Chalk up another vote for gay marriage in the Supreme Court if he truly believes that.

      How were the decisions in Minor v. Happersett , Rostker v. Goldberg , and Michael M. v. Superior Court wrong?

  12. ‘… if adherence to a precedent actually impedes the stable and orderly adjudication of future cases, its stare decisis effect is also diminished. This can happen in a number of circumstances, such as when the precedent’s validity is so hotly contested that it cannot reliably function as a basis for decision in future cases, when its rationale threatens to upend our settled jurisprudence in related areas of law, and when the precedent’s underlying reasoning has become so discredited that the Court cannot keep the precedent alive without jury-rigging new and different justifications to shore up the original mistake.’

    On a totally different note, today is January 22, the thirty-seventh anniversary of *Roe v. Wade.* To observe this sad anniversary, prolifers gathered at the March for Life.

    In 1933, *Plessy v. Ferguson* was as old as *Roe v. Wade* is now, and was considered even more sacrosanct than *Roe v. Wade* is considered now.

  13. Unconstitutional precedent is still unconstitutional and needs to be thrown out! New laws built upon unconstitutional precedent only take us farther and farther from what our nation should, and can, be. ALL laws MUST adhere to the Constitution, period.

  14. Now, if we can only dump the erroneous misinterpretation of “regulate interstate commerce” that came out of FDR’s New Deal SCOTUS, we’ll really have made some progress.

  15. [ Source: ldrlongdistancerider[dot]com/06 ]

    LABELS

    “Democrat”, “Republican”,
    The parties of the system;
    Puppets both, for sale their votes,
    No character or wisdom.

    “Liberal”, “Conservative”,
    For change or status quo?
    Pick either one, the change is none,
    For charlatans are both.

    Far “Left” we place the Anarchists,
    Libertarians claim far “Right”;
    Yet both decry the government:
    False continuum brought to light.

    For oil, “We” bomb their mud huts,
    Strip them bare, then offer “Aid”;
    And fake their retribution as
    Pretext–a false flag raised.

    Unarmed hundred thousands killed
    By weapons of “Defense”,
    While rights are lost for “Freedom” sake–
    On profit, all depends.

    With stroke of pen, the “Patriot” Act,
    And patriots’ gifts are taken;
    Then “Citizens United” leaves
    Our citizens forsaken.

    We protest loss of liberties,
    Put “World Wide Web” to use;
    Cloudmark Authority censors us
    For “messaging abuse”.

    They label us to finger-point,
    With labels, “They” deride us;
    Their labels keep us all at bay,
    For with labels, “They” divide us.

    –a poem of protest by Bruce Arnold

  16. I have long been concerned that the social contract between citizen and government is eroded and strained as Court decisions get further and further away from how the man in the street would read and interpret the plain language of the Constitution and Bill of Rights. When a person cannot know what is legal or not by reading this precious document, judges and government officials may think we have the rule of law, but the citizen will view it as arbitrary and capricious. Worse, citizens will find themselves under arrest for violating laws when they only had what they thought were lawful intentions.

    Stare is important must never become more important than the plain reading of the Document itself. Speaking of which, has anyone seen the Tenth Amendment lately? I caught a glimpse of it in Lopez.

  17. They now do as they wish because at present, there are no consequences. This will change over time and at some point there will start, individual acts of resistance or warfare, if you prefer. “They” are waiting for this and will use this to upgrade their apparatus and control and the abuses will become more numerous and bestial, until fear no longer holds sway. Then will you see “them” head for the tall grass and the exit door, not before, and “they” will retire where the average person cannot “reach” them. “Abused” persons have a long memory and a very unforgiving nature and so their retirements may become shorter than they had imagined.

    Traitors are universally hated by patriots of the American type and there are few who will forget those who now betray our country and Constitution, our citizens and their children, in their various capacities. We will eventually identify them all and I suspect that “I’m sorry” won’t have very much meaning at that point.

  18. I’m with WackeyMacky and strongly believe that if the Statists don’t change their ways immediately and return to the principles of our founding, We the People should execute Operation Consequence on them post haste. They’ve had a free ride for too long already! Consequences are the key.

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