McDonald v. Chicago

@joefromchicago,

Thanks for that.

I have to think that the current courts view that individuals have a right to firearms for self-defense will cause them to incorporate through the due process clause (most people think this).

I hope they decided based on the other clause people are talking about.

I'll be very curious to read the minority opinion on this case.

2 Replies

@OCCOM BILL,

OCCOM BILL wrote:

That's an excellent argument, David, but I don't think it will change Maporsche's mind any.
(He already agrees with you.)

Thank u, Bill. I remember that u said that u r not an attorney,
but (tho we don 't agree about everything) I am very impressed
with the fine quality of your jurisprudential analysis.

David

1 Reply

@maporsche,

maporsche wrote:

Thanks for that.

I have to think that the current courts view that individuals have
a right to firearms for self-defense will cause them to incorporate through
the due process clause (most people think this).

I hope they decided based on the other clause people are talking about.

I'll be very curious to read the minority opinion on this case.

It is theoretically possible that the USSC will identify the right to KABA defensively as an IMMUNITY of citizens of the US,
under Article 4 Section 2 of the Constitution.

I agree with your prediction qua the probability of "due process" clause.

0 Replies

@Setanta,

Setanta wrote:

It would take a hell of a long time to rid society of all of those guns.
And, once again, because by definition, law-abiding citizens are
the ones who would immediately comply, they will necessarily be disarmed first.

The penalty for docile obedience to the disarmament law is DEATH,
in the discretion of violently armed predators,
even if thay be armed only with wooden or metal clubs and pointed or sharp objects; thay woud laff at the helpless victims.

Its Darwinian: perishing of the least fit.

David

0 Replies

@OCCOM BILL,

So what if i said it would be a significant break with precedent? I didn't say that i objected to Heller on that basis. It is also evident that you don't understand that those who were indicted in Cruikshank were not agents of any state, so that your comments about incorporation are meaningless. It doesn't surprise me that you don't understand that, though. I've noted that you often loud on volume, long on indignation, and short on comprehension. Quoting the court's opinion at length does nothing other than to point out the basis for their decision--which is that individuals who are not agents of any state are not required to assure that other individuals receive due process under the law.

The "Wikipedia" implied insult seems to be very popular lately. To read about decisions of the Court, i tend to rely on FindLaw, because they give the full text of a ruling, without interspersed commentary.

1 Reply

@wandeljw,

wandeljw wrote:

Brandon wrote:
how does one pass an amendment granting a right which all levels of government must obey? How would it differ from the 2nd Amendment?

Brandon's question was addressed to someone else. My guess is that we would need a different constitution to begin with.

That is like saying that amendments to the Constitution lack the power to reverse existing structure of the Constitution, which is ridiculous. Since the Constitution is the highest law, and defines the fundamental structure of government, and since amendments are changes, an amendment has the power to legislate anything whatever.

2 Replies

@Brandon9000,

I only meant that a constitution for a "unitary" government could achieve what you were asking much easier than a constitution which reserves powers to political subdivisions.

2 Replies

@wandeljw,

wandeljw wrote:

I only meant that a constitution for a "unitary" government could achieve what you were asking much easier than a constitution which reserves powers to political subdivisions.

There is certainly a legitimate interest in, from time to time, passing laws that are absolute. The main body of the Constitution itself is in that category.

0 Replies

@wandeljw,

wandeljw wrote:

I only meant that a constitution for a "unitary" government could achieve
what you were asking much easier than a constitution
which reserves powers to political subdivisions.

The theory of federalism is dual sovereignties, not "subdivisions".

David

0 Replies

@Setanta,

Setanta wrote:

I have made no effort to refute as you put it because the Supreme Court
has never recognized a right of personal self defense until Heller,
your tortured "reasoning" notwithstanding.

Well, perhaps we can look at this case a little more closely; (I cited to it earlier):
In PLANNED PARENTHOOD v. CASEY 112 S.Ct. 2791 (1992) (P. 2805)
the US Supreme Court declares that:
"...by the express provisions of the first eight amendments to the Constitution"
rights were "guaranteed to THE INDIVIDUAL... It is a promise of the Constitution
that there is a realm of personal liberty which the government may not enter."
[All emphasis has been added by David]
The 2nd Amendment is within "the first eight amendments".

The Court also adopted the Harlan dissent in POE v. ULLMAN 367 US 497 that:
"...'liberty' is not a series of isolated points...in terms of the taking of property;
the freedom of speech, press and religion; the RIGHT TO KEEP and BEAR ARMS;
the freedom from unreasonable searches and seizures....
It is a rational continuum which...includes a freedom from all arbitrary impositions ..."
[All emphasis has been added by David]

It seems to me that the USSC relied upon this reasoning
to reach its conclusion in this case; presumably, u will deny that,
alleging that these statements r only obiter dicta; be that as it may.

Do u allege that the "personal liberty" defended by the 2nd of these first 8 amendments, as set forth herein by USSC,
is NOT for purposes of self-defense? I don 't see it there in expressed words, I but I thought it was clearly implied; disagree?

Do u take the position, Setanta,
that the liberty protected by the 2nd of those amendments "which the government may not enter"
is only a constitutional right to join a unit of militia, like the right to join Club Med ?

David

1 Reply

@Brandon9000,

Brandon9000 wrote:

wandeljw wrote:

Brandon wrote:
how does one pass an amendment granting a right which all levels of government must obey?
How would it differ from the 2nd Amendment?

Brandon's question was addressed to someone else.
My guess is that we would need a different constitution to begin with.

That is like saying that amendments to the Constitution lack the power to reverse existing structure of the Constitution, which is ridiculous. Since the Constitution is the highest law, and defines the fundamental structure of government, and since amendments are changes, an amendment has the power to legislate anything whatever.

Yes, tho there may be some dispute qua endurance of natural rights.

David

0 Replies

@oralloy,

oralloy wrote:

joefromchicago wrote:
oralloy wrote:
I see the collective version as being the correct interpretation of the Second Amendment, but I think the government violates the Constitution by not having an organization like the Swiss Militia for people to join.

So you think an individual's right to bear arms is covered by the ninth amendment, and that the second amendment requires the states to maintain militias? Really?

Yes. I see the first half of the Second Amendment
as a requirement that the states maintain militias.
And I see the second half of the Second Amendment as being the right
of those militiamen to be adequately armed.

I see the Ninth Amendment as covering guns for personal self defense for non-militiamen
(or even off duty militiamen who might have to have their militia equipment stored at home in a safe).

Oralloy, if that were the historically correct
intendment of the 2 A, then what is the reason that the Founders
wrote "a well regulated " militia, instead of a "SELECTED" militia,
to indicate that the militia was public and not a private group,
as per the term of art "well regulated militia" for private militia.
Obviously, the militia of Article I Section 8 Subsections 15 & 16 are SELECTED militia,
in that thay 've been organized and armed at public expense
and are under government control, as distinct from well regulated militia.

Y didn 't Madison write:
" A SELECTED militia being necessary to the security of a free state,
the right of the militiamen to keep and bear arms shall not be infringed,
and if it IS, then the underarmed militiamen can bring suit in mandamus
to force the government to issue them better equipment."

James Madison went out of his way
to indicate that these were WELL REGULATED militia,
as distinct from the SELECTED militia of Article I Section 8.

David

0 Replies

@Setanta,

Setanta wrote:

It is also evident that you don't understand that those who were indicted in Cruikshank were not agents of any state, so that your comments about incorporation are meaningless.

Spare me your tortured Non sequiturs. Not only would I quibble over whether or not the white supremacist murderers (including Bill Cruikshank) actions were condoned by the state via inaction before and after the massacre; that single consideration in no way invalidates my comments about incorporation.

The Federal Government insisted blacks be treated equally; and the State of Louisiana turned the blind eye to rabid terrorism and probably thousands of heinous, racist murders, including but not limited to the Racist Massacre at Colfax. What purpose was the 14th amendment to serve if not to force states like Louisiana to enforce the rights of the black man? And how can you condone this court's epic failure to do so... or look past the fact that said epic failure paved the way for another century of wanton violation of the rights guaranteed by the 14th? While you are correct that their ruling resulted in a lack of authority; you seem ignorant of the fact that it didn't have to be that way. This court had the perfect opportunity to give the 14th amendment its intended teeth; and chose instead to release the White Supremacist perpetrators of this heinous atrocity. This resulted essentially in green-lighting White Supremacist groups to carry on their campaign of hate, through heinous oppression and left it upon a State who couldn't care less about crimes against the black man to enforce. How can this be considered anything but absurd?

Setanta wrote:

It doesn't surprise me that you don't understand that, though. I've noted that you often loud on volume, long on indignation, and short on comprehension. Quoting the court's opinion at length does nothing other than to point out the basis for their decision--which is that individuals who are not agents of any state are not required to assure that other individuals receive due process under the law.

Look in the mirror you babbling hypocrite. Paraphrasing this very court's disastrous decision is a sorry excuse for actual thought, and a despicable excuse for accepting the probably unintended catastrophic results. You never did answer which other acts of incorporation (that have subsequently shredded this court's absurd decision) do you have a quibble with? Any?

Setanta wrote:

The "Wikipedia" implied insult seems to be very popular lately. To read about decisions of the Court, i tend to rely on FindLaw, because they give the full text of a ruling, without interspersed commentary.

The implied insult stems from your penchant for behaving as if you're an authority on subjects you lack a comprehensive understanding of; while claiming anyone who disagrees is ignorant. In this exact case; even a sufficient amount of time spent on wiki would have eliminated the possibility of your absurd claim that viewing this decision as racist is the product of ignorance. While this shirking of responsibility may well have been done out of fear of a second civil war; the imminently predictable results are no less founded in racism. Meaning: the court itself may not have had racist motivation; but it most certainly lacked the courage to stand up against it… and that is precisely what it should have done.

I usually respect your historical analysis Setanta, really I do, but in this exact case you lazily relied on too little information to make a ridiculous sweeping judgment about this disastrous legal precedent... seemingly oblivious to the probably unintended ( and to this day still being corrected) results. Were you not so hell-bent on pretending you never err; you would probably agree with my assessment... and would likely articulate it in a far more interesting way. Bill Cruikshank & Co. can only be described as racist murderers. This Court should have identified them as such, and set the precedent right there and then that every man will be treated equally, in every state of the union, exactly as the 14th intended... and the way it is belatedly being applied today.

I am really curious which other Cruikshank obliterating acts of incorporation you have a problem with. The 1st? The 4th? The 5th? The 6th? The 8th?

Imagine how much faster civil rights would have developed if the Supreme Court would have properly defended the obvious intention of the 14th amendment at this early opportunity. Can you put your knives away long enough to do that? Imagine how subsequent courts would have ruled on a multitude issues; were they NEVER crippled by this disastrous decision in the first place.

This court shirked it's responsibility, and in so doing put it on racist states to police (NOT police) the racist actions of groups like the White League, who in turn heinously oppressed the black man for many years to come. This result was predictable and the decision itself should be apologized for, not relied upon. The very people responsible for the Colfax massacre went on to be empowered by this decision and the results were equally tragic, heinous, and racist. I'm having difficulty understanding how anyone with your historical perspective could possibly disagree.

1 Reply

@OmSigDAVID,

OmSigDAVID wrote:

OCCOM BILL wrote:
That's an excellent argument, David, but I don't think it will change Maporsche's mind any.
(He already agrees with you.)
Thank u, Bill. I remember that u said that u r not an attorney,
but (tho we don 't agree about everything) I am very impressed
with the fine quality of your jurisprudential analysis.

Thank you David, that's very kind of you. While I frequently, very much disagree with you personal points of view; your own jurisprudential analysis usually strikes me as very sound indeed. I do wish you'd write in something closer to proper English, however, because I strongly suspect many of your very valid arguments are not given the intellectual consideration they are due.

1 Reply

@OCCOM BILL,

OCCOM BILL wrote:

OmSigDAVID wrote:

OCCOM BILL wrote:
That's an excellent argument, David, but I don't think it will change Maporsche's mind any.
(He already agrees with you.)
Thank u, Bill. I remember that u said that u r not an attorney,
but (tho we don 't agree about everything) I am very impressed
with the fine quality of your jurisprudential analysis.
Thank you David, that's very kind of you. While I frequently, very much disagree with you personal points of view; your own jurisprudential analysis usually strikes me as very sound indeed. I do wish you'd write in something closer to proper English, however, because I strongly suspect many of your very valid arguments are not given the intellectual consideration they are due.

Understood; in point of fact, on those occasions
when I am earnestly endeavoring to drive home a serious point,
sometimes I consciously reduce the degree of my deviation from
the strictly accepted paradigm.

David

1 Reply

@OmSigDAVID,

A word of friendly advice. Anyone who has paid attention to your posts can see that you're a very competent lawyer, and I don't think that phonetic crap is helping you.

1 Reply

@Brandon9000,

Brandon9000 wrote:

A word of friendly advice.
Anyone who has paid attention to your posts can see that you're a very competent lawyer,
and I don't think that phonetic crap is helping you.

Friendly noted, but let 's not lose sight of the fact
that this is only an Internet discussion group, devoid of effect.
This is not litigation in a court of law.
I approach it in a lite hearted spirit.
Obviously, if I resumed professional practice, I 'd have to render
strict paradigmatic compliance, but this discussion is only for fun,
and I am lazy. I know that there is some degree of distraction
when I write tho instead of thoUGH or enuf instead of enough,
or u instead of you, but most of the regulars r used to it by now,
and when I am arguing matters of particular controversy, or that
r especially serious, I may reduce & decrease most of my use of fonetic spelling.

David

1 Reply

@OmSigDAVID,

OmSigDAVID wrote:

Brandon9000 wrote:
A word of friendly advice.
Anyone who has paid attention to your posts can see that you're a very competent lawyer,
and I don't think that phonetic crap is helping you.

Friendly noted, but let 's not lose sight of the fact
that this is only an Internet discussion group, devoid of effect.
This is not litigation in a court of law.
I approach it in a lite hearted spirit.
Obviously, if I resumed professional practice, I 'd have to render
strict paradigmatic compliance, but this discussion is only for fun,
and I am lazy. I know that there is some degree of distraction
when I write tho instead of thoUGH or enuf instead of enough,
or u instead of you, but most of the regulars r used to it by now,
and when I am arguing matters of particular controversy, or that
r especially serious, I may reduce & decrease most of my use of fonetic spelling.

David

Just an opinion.

1 Reply

@Brandon9000,

Brandon9000 wrote:

OmSigDAVID wrote:

Brandon9000 wrote:
A word of friendly advice.
Anyone who has paid attention to your posts can see that you're a very competent lawyer,
and I don't think that phonetic crap is helping you.

Friendly noted, but let 's not lose sight of the fact
that this is only an Internet discussion group, devoid of effect.
This is not litigation in a court of law.
I approach it in a lite hearted spirit.
Obviously, if I resumed professional practice, I 'd have to render
strict paradigmatic compliance, but this discussion is only for fun,
and I am lazy. I know that there is some degree of distraction
when I write tho instead of thoUGH or enuf instead of enough,
or u instead of you, but most of the regulars r used to it by now,
and when I am arguing matters of particular controversy, or that
r especially serious, I may reduce & decrease most of my use of fonetic spelling.

David

Just an opinion.

The libertarians said the same thing to me at their website.

0 Replies

@OCCOM BILL,

OCCOM BILL wrote:

joefromchicago wrote:

The court has typically taken the view that old precedent has more binding force than new precedent. There are a lot of reasons for that (I won't go into it, unless you're interested),
Interested!

It's largely because society has had time to adjust to and accommodate old precedents. For instance, as the oral argument in McDonald shows, Scalia thinks that the Slaughterhouse Cases were wrongly decided, and that the framers of the fourteenth amendment intended to apply the bill of rights to the states via the "privileges or immunities" clause -- and he's probably not the only justice who holds that opinion. But since the Slaughterhouse Cases were decided nearly 140 years ago, a large body of jurisprudence has developed over those decades, primarily in the area of incorporation under the due process clause, that would be tossed out entirely if the court were to hold that it got everything ass-backwards in 1873. Nobody, least of all Scalia, knows what sort of upheaval that would cause in constitutional jurisprudence, so they are content to leave the precedent in place, even though very few people are genuinely happy with it (or even understand it).

Nevertheless, the court will throw out an old precedent on occasion -- there were four votes to overturn the Slaughterhouse Cases as late as 1947 in Adamson v. California. It is much more likely, however, that the court will find it easier to overturn a recent precedent than an old one, as the court recently did in the Citizens United case, which overturned cases that were no more than 20 years old. Another good example is the case of Bowers v. Hardwick (1986), which upheld the constitutionality of state laws criminalizing private consensual homosexual acts. The court reversed itself 17 years later in Lawrence v. Texas. In those instances, the same sort of substantial body of case law had not yet developed under the recent precedents, which allowed the justices the luxury to second-guess their previous opinions.

2 Replies

McDonald v. Chicago

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