The Democratic Party vs. The Supreme Court

John Vecchione at FrumForum detects a pattern of Democratic Party truculence toward Supreme Court decisions--going all the way back to Andrew Jackson, folks!--reviving after Citizens United and McDonald:

Comes news from the Windy City that in response to the resounding victory for Second Amendment Rights in McDonald v. Chicago the Mayor and City Counsel have turned to the city's problems in a manner designed to protect constitutional liberties.  Just kidding.  They have instituted a scheme of "massive resistance."

Mayor Daley has said he will not "roll over" to the Supreme Court.  Now, I'm as much for not treating Supreme Court pronouncements as gospel as the next guy (presuming he has an "Impeach Warren" bumper sticker down in the basement), but this is really a scandal.    This is not a made-up right we have come to expect from the Court. Yet Chicago, the President's home town, has in four days set out to resist, resist, resist the clear import of the Court's decision.  President Obama has said nothing.

In the same vein, when the Supreme Court, logically determined that a law that prohibits speech about elections before an election and states how much a person can spend on such speech is not in accord with the First Amendment's command that Congress "shall make no law"  prohibiting speech, the Democrats went berserk.  Did they quote: "I may disagree with what you say but will defend to the death your right to say it."  Nope.  George Will lays out a bit of what they did here.      Worse, the Democrats and the President have used the Court's decision to attack the Court in terms that explicitly state that they want to curtail speech by interests they do not like.  The President sent Elena Kagan to tell the Court that the campaign finance laws gave the government the right to ban books.  The Supremes gave her a hard time.  In his State of the Union address President Obama chastised them for this.  Al Franken specifically attacked the decision because he did not like the speech he thought would be allowed.

The partisan spin on this is silly--objections to Supreme Court actions based on policy preferences are reliably bipartisan, shaped by all the usual concerns over particular gored oxes--but sometimes without rank partisanship, we'd never get good commentary defending rights against the particular bastard the pundit hates already for different reasons.

Nick Gillespie on "Dems United Against Citizens United."

Comments

[-]

We all should be carrying donor cards and be willing at a moment's notice to sacrifice any organic part necessary for the survival of The Five who are the last bulwark against the evil Democrat hoards.

[Nick]

My appendix is theirs, should they need it. Maybe a kidney.

[-]

I'd donate my penis, but I fear Kagan would steal it.

[Ragin Cajun]

Why would Kagan need one?

[-]

Envy.

[Max]

She can use mine, but she'll have to replace the velcro straps.

[Fluffy]

Can someone give me one good reason why Daley shouldn't be considered as repugnant as George Wallace?

Frankly, Daley is WORSE than George Wallace. Wallace stood in the doorway to object to desegregation symbolically. If Wallace had openly said, "We're going to do whatever we can to use technicalities to see to it that there's no desegregation," how much worse would that have been?

[John]

Well, Wallace did worse. He just ignored the court. That is why they brought in federal marshals. Had they not done that, Wallace would have never stood aside the schoolhouse door so to speak.

But in Wallace's defense, he later repented for his behavior, something Daley is unlikely to do, and other than segregation his policies as governor were not bad. Daley in contrast is making Chicago into Detroit West.

So yeah, Daley is worse than Wallace. He is one of the most vile politicians in American history. It is too bad we don't have a media who will call him that.

[MNG]

I don't see resisting desegregation and supporting gun control as morally equivalent I'm afraid...

[John]

I do. Both actions are designed to deprive people of their constitutional rights. And both actions make people's lives more dangerous and worse. Mayor Daley is victimizing the elderly man who was the plaintiff in McDonald just as much as Wallace victimized black people living under segregation. I think telling an elderly man who is too poor to live in anything but the worst neighborhood he can't have a gun to defend himself is just as bad as telling someone they can't live in a certain neighborhood or shop at certain stores because of the color of their skin.

Gun control advocates are moral degenerates. Just because they mean well doesn't excuse their rampant ignorance and their responsibility for the horrible effects of the policies they advocate.

[MNG]

I'm opposed to gun control. But racial oppression was the dominant moral issue for this nation, gun control is a moral mosquito in comparison.

Consider this: much gun control was a subset of racial oppression.

Lesser.

[John]

They are both equally awful. I don't really view it as a football game to be scored. If it were 1960, I would find Chicago style gun control equally awful. In fact, maybe worse since gun control affects everyone rather than a minority.

[MNG]

Segregation meant humiliation and unequal treatment along with ever present tension of aggression in so many facets of a black person's life at the time, gun control means you can't have certain weapons at certain places and times. I've lived with guns and without, it's not the worst thing in the world you know...

[John]

"I've lived with guns and without, it's not the worst thing in the world you know..."

That is because you are a rich white person. If you were someone like the plaintiff in McDonald, you might have a different view. Regardless, if the best thing you can say about Daley is that "he is not as bad as Wallace", that pretty much says all you need to know about Daley.

[MNG]

"That is because you are a rich white person"

That first qualifier was certainly not always so...I've lived in very bad places where being white was not an advantage...

[John]

And were you young and strong in those places or old and frail? I have lived and worked in bad neighborhoods to. And I never had a conceal and carry permit. But, I was always a young male who was big enough to at least make mugging me a pain in the ass. If I had been a 100 lb woman worth raping or been 70 years old, life would have been a lot harder without a gun. Guns are the great equalizer. Grandma may only weigh 80 pounds but her revolver will kill you just as dead.

[Feminister]

Check your privilege, oppresser!

[Ted S.]

Gun control advocates are moral degenerates. Just because they mean well

They don't mean well.

[Michael Ejercito]

I don't see resisting desegregation and supporting gun control as morally equivalent I'm afraid...

Supporting gun control is a thousand times worse.

[Pablo]

They're both forms of bigorty, which Thomas Sowell defined as denying others rights which you yourself enjoy. I'd love to see Daley give up any guns he has, give up his bodyguards, etc as he goes about his day-to-day life.

[Michael Ejercito]

They're both forms of bigorty, which Thomas Sowell defined as denying others rights which you yourself enjoy. I'd love to see Daley give up any guns he has, give up his bodyguards, etc as he goes about his day-to-day life.

This bigotry seems to be unique to the gun debate.

Opponents of Mormon polygamy did not themselves engage in polygamy.

Opponents of homosexual same-sex "marriage" did not themselves engage in same-sex "marriage".

I wonder why the mainstream media never points out the hypocrisy of Mayor Daley having an armed security detail, or Chuck Schumer having his own pistol permit.

[Nick]

Do you have a cite for Schumer having a permit. That's too delicious for me not to have.

[Pablo]

Well it depends on how you are describing the rights in question. Are we discussing the "right to marry more than one spouse," "right to marry someone of the same sex," or "right to marry the consenting adult of your choice."

[hmm]

Totally off topic:

I happen to know the owner (private citizen) of a fully automatic M16 used by the Arkansas state troopers to protect Governor Bill Clinton.

How's that for some awesome irony.

[Pablo]

Yeah there are so many anti gun politicians who themselves own/owned guns and/or had heavily armed bodyguard details--Feinstien, the Clintons, Daley, the twit who authored the CA assault weapons ban, the whole Kennedy gang, too many others to mention.

[hmm]

I've been told that all of AR M16s that were used for the Clinton detail were sold to the public and that there were quite a few. I find it funny they get released to the public.

I don't mind heavily armed details protecting public figures. All it takes is one nut to kill you and if you're out in the public eye doing anything someone will always vehemently disagree with you some to the point of violence. I'd want some protection for me and my family, then again I'd want to carry my own M16 lol.

[EscapedWestOfTheBigMuddy]

The objection isn't about them having armed protection, hmm.

It is about them having armed protection and daring to suggestion that I should have to go without.

[Warty]

Just as the new health care legislation is a step toward elimination, by slow strangulation, of private health insurance and establishment of government as the "single payer," laws like Arizona's are steps toward total public financing of campaigns - government monopolizing funding for campaigns that determine the control of government.

Well said, George Will.

[Rahm Emmanuel?s kippah]

Sad to say, but the only folks commenting on George Will's article are people who call him an elitist without apparently having a clue what he's arguing. I think that the crux of their criticism is "he's using big words to argue for people and positions that we don't like, so let's call him an elitist". Far from anti-intellectualist populism being the province of the Tea Party, it's all parties that use it...

[P Brooks]

Some say Mayor Daley is doing God's work.

Bullets are flying on city streets, but the vital work of limiting gun use has become a cat-and-mouse game. Beleaguered citizens deserve better from both sides.

We strongly disagreed with the reasoning that led the court to find an individual right to bear arms in the Second Amendment, ending handgun bans in Washington, D.C., in 2008 and everywhere else last month.

[Nick]

I disagreed, too. Should have been "the right of the People to bear arms shall not be infringed" all the way, 9-0.

(or at least P&I, 9-0)

[Michael Ejercito]

I disagreed, too. Should have been "the right of the People to bear arms shall not be infringed" all the way, 9-0.

Yes, it should have been 9-0.

Those four justices are an example of what happens when judges reject original public understanding and turn constititutional interpretation from becoming a result-oriented process in which everyone twists the text to fit his own policy preferences.

[TallDave]

Good article. Also, it reminded me to shave my frum.

[marlok]

I have learned that the ladies definitely do not dig the frum.

[MNG]

There was this party recently having rallies and marches and telethons against "activist judges" and such, and I'm pretty sure it was not the Democratic Party...

[John]

And I am pretty sure it wasn't the Republican Party who was recently talking about the "sanctity of the Courts" when the Court was telling George Bush what he could and could not do to combat terrorism.

Yeah, both sides are hypocritical. But that doesn't make either one of them right. And for the millionth time "they did it to" is a school yard taunt not an argument. There were plenty of posts about Republican hypocrisy on the issue of the courts. Now there is a post on Democratic hypocrisy. If you want to defend them, fine. But do so in a meaningful way rather than screaming about how the other side doing it somehow makes it all better.

[R C Dean]

There is no contradiction between small government advocates protesting judges who legislate from the bench to expand the scope of government, and small government advocates applauding judges who apply the Constitution to limit the scope of government.

Pretending that these are one and the same is partisan stupidity.

[MNG]

This post is about the Democrats bitching about SCOTUS. But it is the GOP that has made SCOTUS hate a central feature of their party lately,

[John]

Yeah, it is all Republicans. That is why a Republican President called out the Supreme Court in a State of the Union address. Oh wait that was Obama. Sorry but when your messiah President criticizes the Supreme Court to their faces in front of the nation in a forum never used for such, your party now pretty much owns the issue Supreme Court hate.

[The Libertarian Guy]

But... but... they did it, too!

Just posting for MNG, as he passed up an opportunity to shill for Team Blue just now. But he'll make up for it.

[capitol l]

MNG: Republicans did it too!

John: For the millionth time "they did it to" is a school yard taunt not an argument.

MNG: But, but...ummm,err, Republicans did it too!! *louder*

[Tony]

There is a distinct lack of pro-gay discussion in the Citizens United decision. Therefore, the Supreme Court is heteronormative and should be replaced accordingly as they retire.

[MNG]

It's only wrong when THEIR side does it!

[Jonas]

I agree that it's hypocritical for conservatives to chastise liberals for their reactions to SCOTUS decisions, but at the same time, it's worth pointing out that conservatives usually oppose "judicial activism" in more debatable cases: like believing that activist judges have "created" a right to abortion.

Liberals are actually arguing that phrases like "Congress shall make no law abridging the freedom of speech" and "The right of the people to keep and bear arms shall not be infringed" not only don't mean what they mean, but if they did mean what they mean, it still doesn't matter because they should be allowed to ignore decisions that say they mean what they mean.

I do think there's a genuine difference between conservatives arguing that they should be allowed to outlaw abortion in spite of Roe v. Wade, for example, and liberals arguing that laws that could technically be used to ban books should stand because "no one's ever tried to ban a book before" (just lots of other kind of speech). The freedom of speech and the right to bear arms are actually, explicitly guaranteed in the Constitution, and the Court decided they were, and there's still outrage.

[McCain-Feingold]

We knew what we were doing. It was for our own good.

Not YOUR own good... for us. Politicians.

[Michael Ejercito]

I do think there's a genuine difference between conservatives arguing that they should be allowed to outlaw abortion in spite of Roe v. Wade, for example, and liberals arguing that laws that could technically be used to ban books should stand because "no one's ever tried to ban a book before" (just lots of other kind of speech). The freedom of speech and the right to bear arms are actually, explicitly guaranteed in the Constitution, and the Court decided they were, and there's still outrage.

This is why I must disagree with Jacob Sullum's statement in an earlier post :

But you know what? Screw them. I am tired of defending the constitutional principles that social conservatives use to restrict liberty, because they so rarely return the favor by supporting those same principles when the effect is to expand liberty. When a supposedly principled originalist like Antonin Scalia can endorse a ridiculously broad reading of the Commerce Clause because the case happens to involve pot, why should I stick my neck out by arguing that the people who wrote and ratified the Fifth and 14th amendments never imagined they were guaranteeing equal treatment for homosexual couples? Of course they didn't, because the very notion of gay marriage would have been incomprehensible to them.

The reason we should demand that judges stick with the original public understanding of constitutional provisions is because it keeps the protections that we already have . Sure, we needed the 19th Amendment to moot Minor v. Happersett , and we may need an Equal Rights Amendment to moot Baker v. Nelson , Rostker v. Goldberg , and Michael M. v. Superior Court , but at least we would not have to worry about McDonald being overturned by five people who do not like guns except in government hands.

[Enjoy Every Sandwich]

This is interesting, given that Democrats usually say that nullification is a crazy idea only embraced by Neo-Confederates who want to bring slavery back.

[MNG]

The courts in their ruling often lay out what will still be allowed. Politicians are not evil for trying to follow that.

Were the politicians who came up with a death penalty post-Furman that would pass muster in Gregg evil?

[R C Dean]

Politicians operating in bad faith to limit the Constitutional rights of their subjects are always and everywhere evil.

[P Brooks]

supporting gun control

Is that what he's doing? I'm not sure it's working.

[P Brooks]

Pretending that these are one and the same is partisan stupidity.

Come on, R C, we all know any time the Supreme Court overturns any law they are legislating from the bench.

[R C Dean]

No, when the SCOTUS applies the Constitution to overturn a law, they are applying existing law, not legislating from the bench.

When they de facto amend the Constitution to uphold laws (such as with eminent domain) they are legislating from the bench. When they amend statutes that are on the books rather than overturning them (as the CA court did on gay marriage), they are legislating from the bench.

I will even say that when they overturn laws by de facto amending the Constitution (as with abortion rights), they are legislating from the bench.

There is a difference.

[R2]

Name one case where the court legislated from the bench, and you agreed with the idea they were supporting. Or is it only legislating from the bench when you disgree with the court?

[R C Dean]

Name one case where the court legislated from the bench, and you agreed with the idea they were supporting.

I'm mildly supportive of gay marriage, in a live and let live kind of way. I think what the CA Supreme Court did is wrong.

Was that so hard?

[Michael Ejercito]

I'm mildly supportive of gay marriage, in a live and let live kind of way. I think what the CA Supreme Court did is wrong.

Was that so hard?

Clearly not.

Concerning same-sex "marriage" and the United States Constitution, the Supreme Court had already ruled on that issue in Baker v. Nelson , where they dismissed an appeal for want of a substantial federal question. Such an dismissal constitutes a decision on the merits, and is thus binding on lower courts on the issue (specifically, the question of whether or not the 14th Amendment requires states to legally recognize same-sex "marriage")

The Supreme Court Justices who joined in on the appeal include Chief Justice Earl Warren, the author of the landmark opinion in Loving v. Virginia , and Justice Thurgood Marshall, one of the more liberal Justices in Supreme Court history. (He had dissented in Crawford v. Board of Education .)

If one wants the courts to use the Constitution to defend a right to same-sex "marriage", then the proper method is to amend the Constitution.

[Michael Ejercito]

The Supreme Court Justices who joined in on the appeal include Chief Justice Earl Warren, the author of the landmark opinion in Loving v. Virginia , and Justice Thurgood Marshall, one of the more liberal Justices in Supreme Court history. (He had dissented in Crawford v. Board of Education .)

A typo.

Those two justices joined in on the dismissal of the appeal in Baker .

[The Libertarian Guy]

Gays should give up on their quest for marriage, and focus on domestic-partnership reforms. The symbolism of a state-sanctioned wedding is just that... symbolism.

I now await someone to come along and claim homophobia on my part.

Max?

[T]

Err. Yes and no. There is a tremendous amount of symbolic weight to the word 'marriage'. It's one of the reasons it's such a hot button issue. Gays want to be able to define themselves as married, not domestically-partnered or civilly-unioned.

But there's also an incredibly well-defined and long-standing body of law that goes with the word and status. You don't get the benefits of that body of law without the state sanction. I am dubious about the claims that a legally equivalent status can be managed without being married, it's just harder.

[Michael Ejercito]

Err. Yes and no. There is a tremendous amount of symbolic weight to the word 'marriage'. It's one of the reasons it's such a hot button issue. Gays want to be able to define themselves as married, not domestically-partnered or civilly-unioned.

It is for that exact same reason that traditionalists want to preserve the definition of marriage to mean a union between a man and a woman.

But there's also an incredibly well-defined and long-standing body of law that goes with the word and status. You don't get the benefits of that body of law without the state sanction. I am dubious about the claims that a legally equivalent status can be managed without being married, it's just harder.

It is not too difficult.

A state, like Colorado, Kansas, or Texas, can define farriages as a union between two people of the same sex and then legislate that "the privileges enjoyed by partners in farriages, and the qualifications and responsibilities thereof, shall be the same as for partners in marriages .

How hard was that?

[T]

I was referring to people who claim through the proper application of contracts and wills, you can get an equivalent status, not to the idea of states providing an equivalent status.

[The Angry Optimist]

Roe v. Wade. I agree with legal abortion, to a point, but arbitrarily drawing lines is legislating.

[John J. Vecchione]

Well,thanks for the link Nick but I think that there is a difference between the parties on what actions of the Court they decry. We are against "making stuff up" they are against enforcing things that have always been there.

[R2]

I love the blatant political bias in the article. Republicans never question the court and try to push the limits of the law. Look at the recent Republican party platform views on sodomy or any commentary on how wrong Roe vs. Wade is. Both political parties fight court decisions they disagree with. Actually, ask libertarians about the Kelo decision. All political parties do it, for an article to focus on one party just shows the bias of the author.

[John]

What you are saying is horseshit. By your standard anyone who disagrees with any court decision is a hypocrite. Libertarians are not hypocritical for objecting to Kelo. The Constitution says "for public purpose" and the Supreme Court read the language out of the Constitution. Thinking that there is no right to abortion in the Constitution does not preclude you from requiring the Court to enforce rights like the right to bear arms, free speech or not have your property taken for a private purpose.

[R2]

If you read the article, it pushes the idea that the Democrats resistance to Supreme Court decisions is somehow different than the Republican party. If you read my post, I'm saying that all political parties do this, not just Democrats. As your post indicates, libertarians have a history of fighting Supreme Court decisions--just like the Democrats.

[John]

"Both political parties fight court decisions they disagree with. Actually, ask libertarians about the Kelo decision."

You are saying there that Libertarian objections to Kelo are on the same level of intellectual dishonesty as Democratic objections to Citizens United. I do not think that is true.

[R2]

I'm saying that it's no different than Republicans passing laws that push up to the very limits of Roe vs. Wade. Libertarians view Kelo as wrongly decided. Democrats view Citizens United as wrongly decided because they don't think money equals speech. Just because someone disagrees with you doesn't mean they aren't honest. They just see the world and the Constitution differently than you. Attacking the honesty of your opponents without evidence is just propaganda.

[The Libertarian Guy]

Either we have property rights... or we don't. One need not be a rocket surgeon to figure that one out, R2.

[Nick]

If you don't think money is equal to speech, let me break it down for you. If I speak about X, that is my right, is it not? I may peaceably assemble with others, right? Now, instead of me speaking out of my own mouth, what if I pay so-and-so to speak for me? How is that not my protected political speech and right to peaceably assemble? What if I ask so-and-so to speak on my behalf and no money is exchanged? That would be OK, but if I pay so-and-so suddenly I am restricted? 4 justices have logic failures as a general rule. They are trying to manipulate outcomes, not protect people's rights as protected by the Constitution.

[Urban Hicks]

"Democrats view Citizens United as wrongly decided because they don't think money equals speech. Just because someone disagrees with you doesn't mean they aren't honest. They just see the world and the Constitution differently than you."

Or perhaps they are illiterate morons:

Congress shall pass no law...

[MJ]

"Democrats view Citizens United as wrongly decided because they don't think money equals speech."

Exactly how does that trite little mantra apply to the Citizen's United case? Citizen's United was not donating money to a candidate, they produced and attempted to distribute a documentary critical of Hilary Clinton. The argument for regulating what Citizen's United did turns the mantra on it's head and makes speech is money and therefore bannable.

The "money is not speech" meme is ultimately indefensible, it is a product of shallow, if not, dishonest rationalization.

[Tony]

Can we stop with the disingenuous bullshit of pretending that Citizens United and McDonald were the obvious, inevitable result of a clear reading of the constitution? These decisions are every bit as activist as anything the left has come up with.

[Urkobold?]

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[Tony]

I disagree profoundly that the constitution requires "limited government," especially as you interpret it, and I'm not then only one.

[Urkobold?]

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1110

[Tony]

Yeah, whose constitution was necessitated by the failure of the "limited government" that came with the Articles of Confederation. Individual and states' rights are just half of the equation. The other half is a strong central government.

[John]

"A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed"

That is only not clear if you just refuse to read it as it is written.

[Tony]

So the reason the meaning of that amendment has been debated for so many centuries is not because it's unclear or controversial, but because everyone who doesn't agree with you is stupid?

[T]

It wasn't debated until the Congress began passing laws to infringe upon it. You didn't hear a peep about the 2nd in the 19th century because there weren't any federal gun laws. People started debating what it meant in the 30s with the passage of the National Firearms Act.

[Tony]

But there were plenty of local gun laws from the very beginning. It wasn't until Chief Justice Roberts got a hair up his ass that SCOTUS decided to make a national standard on the issue, albeit tilting in the direction of legal Uzis for every gangbanger in Chicago.

[Urban Hicks]

"But there were plenty of local gun laws from the very beginning."

[citation needed]

[Michael Ejercito]

Even so, under Barron v. Mayor of Baltimore , the Bill of Rights did not apply to the states. That was made moot by the 14th Amendment.

[Michael Ejercito]

But there were plenty of local gun laws from the very beginning. It wasn't until Chief Justice Roberts got a hair up his ass that SCOTUS decided to make a national standard on the issue, albeit tilting in the direction of legal Uzis for every gangbanger in Chicago.

A national standard on this issue was already decided over one hundred fifty years ago in Dred Scott v. Sanford .

For if they were so received, and entitled to the privileges and immunities of citizens, it would exempt them from the operation of the special laws and from the police regulations which they considered to be necessary for their own safety. It would give to persons of the negro race, who were recognized as citizens in any one State of the Union, the right to enter every other State whenever they pleased, singly or in companies, without pass or passport, and without obstruction, to sojourn there as long as they pleased, to go where they pleased at every hour of the day or night without molestation, unless they committed some violation of law for which a white man would be punished; and it would give them the full liberty of speech in public and in private upon all subjects upon which its own citizens might speak; to hold public meetings upon political affairs, and to keep and carry arms wherever they went. And all of this would be done in the face of the subject race of the same color, both free and slaves, and inevitably producing discontent and insubordination among them, and endangering the peace and safety of the State

While : Dred Scott's relevance to slavery and racial restrictions on citizenship were made moot by the 13th and 14th Amendments, its relevance to the rights of citizens were not made moot.

[Michael Ejercito]

It wasn't debated until the Congress began passing laws to infringe upon it. You didn't hear a peep about the 2nd in the 19th century because there weren't any federal gun laws. People started debating what it meant in the 30s with the passage of the National Firearms Act.

And in fact, in 1857, the Supreme Court recognized the right to keep and bear arms. From Dred Scott v. Sanford :

For if they were so received, and entitled to the privileges and immunities of citizens, it would exempt them from the operation of the special laws and from the police regulations which they considered to be necessary for their own safety. It would give to persons of the negro race, who were recognized as citizens in any one State of the Union, the right to enter every other State whenever they pleased, singly or in companies, without pass or passport, and without obstruction, to sojourn there as long as they pleased, to go where they pleased at every hour of the day or night without molestation, unless they committed some violation of law for which a white man would be punished; and it would give them the full liberty of speech in public and in private upon all subjects upon which its own citizens might speak; to hold public meetings upon political affairs, and to keep and carry arms wherever they went. And all of this would be done in the face of the subject race of the same color, both free and slaves, and inevitably producing discontent and insubordination among them, and endangering the peace and safety of the State

[Michael Ejercito]

Can we stop with the disingenuous bullshit of pretending that Citizens United and McDonald were the obvious, inevitable result of a clear reading of the constitution?

No.

Freedom of speech and the right to keep and bear arms are clearly mentioned.

[R2]

Define a well regulated Militia? If the Constitution is so clear, why is the well regulated Militia mentioned?

[PR]

Define a free State. Is it one where people can't own a gun?

Define shall not be infringed. Does banning infringe anything?

[Pro Libertate]

Define well. Every scholar of the period knows that "well" meant a hole in the ground used to retrieve water. Therefore, "well-regulated" meant Navy and merchant marine personnel only. In fact, it's unconstitutional for soldiers in the Army to carry guns.

[Michael Ejercito]

Define a well regulated Militia? If the Constitution is so clear, why is the well regulated Militia mentioned?

The militia is the people.

And in Dred Scott v. Sanford :

For if they were so received, and entitled to the privileges and immunities of citizens, it would exempt them from the operation of the special laws and from the police regulations which they considered to be necessary for their own safety. It would give to persons of the negro race, who were recognized as citizens in any one State of the Union, the right to enter every other State whenever they pleased, singly or in companies, without pass or passport, and without obstruction, to sojourn there as long as they pleased, to go where they pleased at every hour of the day or night without molestation, unless they committed some violation of law for which a white man would be punished; and it would give them the full liberty of speech in public and in private upon all subjects upon which its own citizens might speak; to hold public meetings upon political affairs, and to keep and carry arms wherever they went. And all of this would be done in the face of the subject race of the same color, both free and slaves, and inevitably producing discontent and insubordination among them, and endangering the peace and safety of the State

While Dred Scott's relevance to slavery and denial of citizenship on the basis of race was made moot by the 13th and 14th Amendments, its holding on the rights of citizens was not made moot.

[tarran]

The militia of the United States was already defined; all able bodied males between 18 - 45 (if memory serves) and back then when someone said "well regulated" they were expressing a concept that we now use the phrase "consciouly competent" or "well trained".

In other words, in order that able bodied men knew how to fight, Congress couldn't limit access to firearms.

Not so hard, really, unless you are trying to come up with an excuse for preventing black people, or mormons, or poor people, or black people again from having access to the tools of self defense. Then suddenly it becomes very vague & uncertain...

[wayne]

It is a prefatory clause, hence it does not constrain the conclusion of 2A: the right of the people to keep and bear Arms, shall not be infringed.

[The Libertarian Guy]

Tony? Is that you?

[wayne]

"An intelligent and educated populace, being necessary to the security and prosperity of a free State, the right of the people to own and read books, shall not be infringed"

This obviously means that the state, and only the state, shall maintain and operate libraries.

[P Brooks]

Define a well regulated Militia? If the Constitution is so clear, why is the well regulated Militia mentioned?

Define "enumerated".

[R C Dean]

Define a well regulated Militia?

Its been done, but a militia member is an armed citizen (as opposed to a professional soldier); the Founders were quite clear on this.

This definition has been reflected in statute, although the statute limits it to males between a certain age because the statute is concerned with identifying a militia that can be called to active duty in some way.

What does it mean to say a "well-regulated" militia (consisting of all armed citizens)? This is probably a reference to the "ready" militia of the time, a concept sadly lost. The ready militia is analogized, perhaps, to volunteer fire departments: a group of citizens who have identified themselves as ready to respond to a militia call-up. You can't be ready unless you are armed, of course.

[Tony]

I think the interesting question is, ready for what? What makes the most sense to me given the language and context is that the answer is foreign invasion--states have a right to be able to protect themselves in the absence of a standing national army. I think it's clearly "activist" to interpret the 2nd as legitimizing the right of people to engage in armed insurrection against the federal government, or that it is the constitution's guarantee of individual self-defense against trespassers. I just don't think the constitution sanctions treason or vigilantism.

[Michael Ejercito]

I think the interesting question is, ready for what? What makes the most sense to me given the language and context is that the answer is foreign invasion--states have a right to be able to protect themselves in the absence of a standing national army. I think it's clearly "activist" to interpret the 2nd as legitimizing the right of people to engage in armed insurrection against the federal government, or that it is the constitution's guarantee of individual self-defense against trespassers. I just don't think the constitution sanctions treason or vigilantism.

The following phrase from a Supreme Court decision explains it all.

For if they were so received, and entitled to the privileges and immunities of citizens, it would exempt them from the operation of the special laws and from the police regulations which they considered to be necessary for their own safety. It would give to persons of the negro race, who were recognized as citizens in any one State of the Union, the right to enter every other State whenever they pleased, singly or in companies, without pass or passport, and without obstruction, to sojourn there as long as they pleased, to go where they pleased at every hour of the day or night without molestation, unless they committed some violation of law for which a white man would be punished; and it would give them the full liberty of speech in public and in private upon all subjects upon which its own citizens might speak; to hold public meetings upon political affairs, and to keep and carry arms wherever they went. And all of this would be done in the face of the subject race of the same color, both free and slaves, and inevitably producing discontent and insubordination among them, and endangering the peace and safety of the State

[Nick]

You must not have read the Founders very much. They most certainly did account for defending oneself as well as one's own liberty against all comers, including the government they aimed to establish.

[T]

I think it's clearly "activist" to interpret the 2nd as legitimizing the right of people to engage in armed insurrection against the federal government

Given this:

But when a long train of abuses and usurpations, pursuing invariably the same Object evinces a design to reduce them under absolute Despotism, it is their right, it is their duty, to throw off such Government, and to provide new Guards for their future security.

I'm sure it occurred to somebody at the time it might be necessary. And as we all should know, revolution is legitimized only by victory.

[Tony]

I don't think that's part of 2nd amendment case law...

[R C Dean]

Tony, what in the language of the 2A leads you to believe that it guarantees a right to be armed only for certain activities?

You seem to contemplate a Second Amendment that would view the right of a citizen to bee armed only in the context of a foreign invasion, but I see nothing in the Amendment that supports a right of the people that springs into existence only during a state of war.

Why on earth would you think that the Founders would say that a citizen has no right to individual self-defense using a firearm? Do you even understand how crazy that sounds?

[Nick]

Yeah, Tony. If the people are not armed when this foreign invasion occurs how the hell are they supposed to spring into action to defend their state or country? And if they may not be armed (the 2A says nothing about guns in particular) then it stands to reason they may not have swords, rocks, kitchen knives, baseball bats, crow bars, tire irons, bows and arrows, machetes, garden tools, sling shots, pointy sticks, etc because all those things could harm someone somewhere...unless the invading army approaches, of course. In that case, go somewhere (where?) to pick up a gun you've never used or even seen and good luck against the bad guys!

[Tony]

Of course the right to self-defense is self-evident. I'm just not sure it's what the 2nd Amendment is about. The right to violent self-defense is, of course, a state-granted exception to its monopoly on the legitimate use of force (meaning it's not really an exception since the state gives the permission slip), but that should be a statutory (even local) matter. The militia language at least muddles this interpretation.

Since, as has been pointed out, militias would have been made up of every able-bodied (male) citizen, it may amount to an individual right to carry, but not necessarily for the purposes the NRA claims.

I believe in strict gun regulation, notwithstanding the constitution, so if it takes an amendment in order for localities to be able to deal with gun proliferation then I'm ok with that. I think that gun proliferation is a real problem for some jurisdictions, and that's part of the context of the world we live in, whereas citizen militias defending against armed invasion are not.

[T]

I'm curious, then. You seem to be implicitly in favor of the right to self-defense, (correct me if I'm wrong), but are against citizens having the most effective means to do so? So we should be reduced to using found objects, pepper spray, and tasers against muggers?

I don't have a feel for what you consider "strict gun regulation" to be, so help me out here. Is it background checks? Permits to own, like the Illinois FOI? Absolute prohibition on some things but not others?

[Tony]

In theory I'm for strict gun regulation, knowing full well that guns may be too entrenched in American society for that to be workable. At the very least I'd like for localities to be able to assess their own needs and to make prudent restrictions where necessary. You know, because localities are better at determining such things than the broad brush of the feds, as I'm constantly told here.

[T]

What is "strict gun regulation" to you, Tony? Give me a short summary.

[Tony]

Outright ban on the sale and ownership of anything other than sporting rifles sounds good to me. I'm venturing into liberaltopia, though, and realize it.

[P Brooks]

if it takes an amendment in order for localities to be able to deal with gun proliferation then I'm ok with that.

There's a surprise.

And, of course, "gun proliferation" is a result of disparate laws, allowing teh criminal elementz to buy evil guns in one place and bring them to another. All laws must then be synchronized at maximum restriction.

Presto- no more guns, anywhere. Ever. For the, you know, children.

[P Brooks]

"But there were plenty of local gun laws from the very beginning."

[citation needed]

Tony saw a movie where the sheriff took the cowboys' guns away.

[R C Dean]

The right to violent self-defense is, of course, a state-granted exception to its monopoly on the legitimate use of force

Tony, the totalitarian. Nothing outside the state, nothing against the state, everything for the state.

Self-defense, armed or not, isn't a "state-granted exception" to anything. It is a human right.

[Tony]

Fine, so is healthcare. See how far that gets us?

If states don't have a monopoly on the legitimate use of force, then they are called failed states. People acting in self-defense and things like private security are only allowed to use force because they are licensed to do so by the state. Self-defense is a legal justification for harming someone, and you have to prove it, otherwise the state will rightly imprison you.

[Michael Ejercito]

Fine, so is healthcare. See how far that gets us?

Any evidence that health care is a human right?

[Tony]

The same that exists for any other such claim.

[?????]

thanks