Constitutional Opinions
Guns Are Pointed at the Constitution
Why conservative justices are wrong to invoke the “substantive due process” clause of the 14th Amendment in in deciding McDonald vs. Chicago.
On March 2, the nine justices of the United States Supreme Court met to argue about whether the State of Illinois can constitutionally ban handguns in the City of Chicago. This landmark case will not only affect gun rights, but also will determine how the Supreme Court goes about telling states and localities what they can and cannot do under the Fourteenth Amendment of the Constitution.
By all indications, the Court will soon order Chicago to lift its handgun ban, but lawyers opposing the ban are deeply divided about which part of the Fourteenth Amendment the Court should invoke. The Court’s choice about which clause of the Fourteenth Amendment to use is critically important, because that choice will likely determine the high court’s path for decades to come.
One of the two clauses at issue from the Fourteenth Amendment is this one: “No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States.” This clause comes into play because the Court already decided a couple years ago that the national government of the United States may not infringe a citizen’s right to keep and bear arms; the Privileges or Immunities Clause would extend these gun rights so that they also apply against states like Illinois.
The other clause at issue from the Fourteenth Amendment is this one: “nor shall any state deprive any person of life, liberty, or property, without due process of law.” This clause essentially addresses HOW people can be deprived of life, liberty or property rather than WHETHER people can be deprived of life, liberty or property. Nevertheless, the Court has used a controversial interpretation of this clause called “substantive due process” in order to protect the right of free speech (enumerated in the Constitution), the right of abortion (not enumerated in the Constitution), and many others, potentially including gun rights too. The Court’s liberal justices have enjoyed using substantive due process instead of the Privileges or Immunities Clause because substantive due process gives the Court flexibility to apply against the states unenumerated rights that do not already apply against the national government of the United States.
During the March 2 arguments, Justice Stephen Breyer argued that this gun case would involve an extreme use of substantive due process, because there is not only a liberty interest in gun possession on one side of the case, but also there may be an interest in “life” on the other side of the case. Of course, the liberal Justice Breyer has in the past not been shy about using substantive due process to impose his own views with regard to competing liberty interests. However, he is correct that the conservative justices’ use of substantive due process in this gun case would be among its most controversial uses, portending an even more aggressive use of the doctrine from the liberal side. The losers would then be democracy, self-government, constitutionalism, the rule of law, and federalism.
During the arguments on March 2, conservative Justice Antonin Scalia strongly hinted that he would grudgingly use “substantive due process” in this gun case even though he thinks it is wrong, in order to mimic the liberal justices’ use of that doctrine. If that is how the cookie crumbles, then the Constitution will crumble a bit too.
As if Scalia’s comments were not dispiriting enough, the usually astute Chief Justice John Roberts announced that the Privileges or Immunities Clause would give liberal judges “a lot more flexibility than due process.” Roberts has it backward, though; as mentioned above, the judicially-created fiction of “substantive due process” allows liberal judges to apply rights against the states even including rights that are not already enforceable against the federal government, whereas the plain text of the Privileges or Immunities Clause avoids such limitless flexibility. — Obviously, a “privilege or immunity of citizens of the United States” cannot mean something that the federal government is free to violate.
Instead of mimicking the liberal justices, the conservative justices ought to show how a constitutional government actually works. The doctrine of substantive due process is a lie, and the Privileges or Immunities Clause means what it says.
Letter to the Editor View all comments (115) | Leave a comment
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Brian Mc| 3.8.10 @ 6:54AM
I find it highly infuriating that the court is arguing over a point where there is no argument (to be made) due to the simplicity of the text, "No state shall make or enforce...". If they attempt to utilize the "substantive clause" concerning the due process when the 'due process' is unconstitutional, most of us will 'feel' it in our gut and a subsequent win for Chicago in this case will send us hurtling towards revolution...that might be well overdue thanks to the direction this country has been headed for the past two generations.
Please God, don't mind us, continue to Bless America.
basur | 10.27.10 @ 9:13AM
"Instead of mimicking the liberal justices, the conservative justices ought to show how a constitutional government actually works."
Amen. Preserve the Constitution by practicing constitutional governance.
Ret. Marine| 3.8.10 @ 7:20AM
What I want to know is what part of "Shall make no laws" do these so-called justices not understand. Even the SCOTUS should know what the plain language means. To consider substantive due process in this case is in fact violating the true meaning of the words of "shall make no laws". Revolution? what do these traitors of our privledges know about a revolution? Only those of us here who have shed blood and swore to protect this Constitution against all enemies, foreign and domestic know how painful these words are and could be for the rest of the sheeples.
The way to tyranny is sometimes dressed up as laws, the laws that take away our rights, no matter how slight, is not something these judges should comtemplate with the ease of words alone. Fighting words are just that, an excuss to fight and mean it.
Seapuss| 3.8.10 @ 9:12AM
Ret. Marine, "... shall make no laws" begins the First Amendment, not the Second. In addition, the word just before "... shall make no laws" is "Congress". The judge-made theory of "substantive due process" (which is actually an oxymoron, similar to "wet dryness") has been used by liberals to "incorporate" portions of the Bill or Rights against the states, even though the Bill of Rights were adopted to limit the power of the Federal Government, and were never designed nor intended to apply against the states.
A purist Originalist (no matter what his or her policy views on gun control are) would reject "substantive due process" and "incorporation" and hold that the Second Amendment does NOT apply against the states. Further, if this were the appropriate case, an Originalist would perhaps take this as an opportunity to overrule the entire concept of "incorporation" and "substantive due process".
Using the Privileges and Immunities clause to strike down the Chicago gun law would just be opening a Pandora's box for further liberal mischief.
Copyleft| 3.8.10 @ 10:55AM
By your argument, a "purist" must also oppose the 14th Amendment itself.
Therefore, you would agree that your home state has every right to read your mail, suppress your speech, confiscate your guns, set up a state religion, etc. Are you SURE you want to go that direction?
Seapuss| 3.8.10 @ 11:27AM
Not at all.
The 14th Amendment was adopted to protect the rights and interests of the newly-freed slaves. Accordingly, the 14th Amendment requires the states to recognize and honor four basic things that the newly-freed slaves were to enjoy, along with everyone else: (a) citizenship; (b) “privileges and immunities”; (c) “due process”; and (d) “equal protection of the laws”.
The due process clause, “nor shall any State deprive any person of life, liberty, or property, without due process of law”, simply means that a State cannot execute, imprison, or fine/penalize anyone without a fair trial. This limits HOW a state may go about achieving its ends, but does not define or limit WHAT ends the state may seek to achieve. Further, the clause says absolutely nothing about incorporating any of the Bill of Rights against the states—nor can that be fairly implied from the text.
I would certainly NOT want my state to “read [my] mail, suppress [my] speech, confiscate [my] guns, set up a state religion, etc.” I would expect those rights to be guaranteed in my state’s STATE constitution and, if not, I would seek to have the state constitution changed. If necessary, I might seek to have the federal constitution changed to protect those rights. But what I wouldn’t do is allow unelected judges on the SCOTUS to fabricate and perpetuate legal fantasies about “substantive due process” and “incorporation” of the Bill of Rights—which no one adopted or agreed to as part of the 14th Amendment.
Ryan| 3.8.10 @ 11:54AM
Without incorporation, how can the US Constitution have ANY teeth and hold ANY merit?
Under your argument, the states can annul ANY part of the US Constitution.
Incorporation is implicit, I believe, in the drafting. It protects the rights that EVERY citizen in the US is supposed to have, no matter what their state constitutions say.
Everything else is left "to the states, or to the people." The language is pretty specific there.
Seapuss| 3.8.10 @ 2:02PM
Ryan (and Roy from Canada):
The Bill of Rights existed for 134 years and was being applied ONLY against the federal government (and was working quite well, thank you) until 1925, when the SCOTUS decided the case of Gitlow v. New York. In Gitlow, the SCOTUS invented the fantasy that 14th Amendment somehow “incorporated” certain parts of the Bill of Rights (but only the parts the judges liked) against the states.
“Substantive due process” is a judge-made theory that proposes that the words “due process” in the 14th Amendment magically protect all sorts of “fundamental rights” (nowhere enumerated in the 14th Amendment), which the SCOTUS is free to discover (or simply make up) along the way. “Incorporation doctrine” holds that many of the “fundamental rights” the SCOTUS is free to recognize are actually set forth in the Bill of Rights. Accordingly, incorporation doctrine is simply a subset of the constitutional abomination we know as substantive due process.
Rights, such as freedom of speech, were being protected at the state level, through state constitutions, at the time the Bill of Rights was adopted. The Bill of Rights was not intended or designed to create any new rights at all, but merely to prohibit the federal government from trampling on those that already existed at the state level.
I don't see how you can reject Roe v. Wade, for example, but be in favor of incorporation doctrine. Both are cut from the same cloth--substantive due process.
Ryan| 3.8.10 @ 2:52PM
How, then, can gun rights - the issue at hand - be protected from states that infringe?
JP| 3.8.10 @ 3:52PM
The 2nd Amendment, like all enumerated rights does have certain limits. But those limits are quite easy to recognize. It all depends upon on how the states apply thier laws. For instance, the 1st Amendment doesn't give me the right to go into someone's house and begin lecturing them. In most states, this action would be considered a felony. States have the right to regulate who can buy weapons; but, it doesn't give the states (or the cities) the right to ban weapon's possession in the name of public safety (or make a regulation that does that through either a judicial or legislative "back-door".
The problem with incorporation is that it can federalize things that the Constitution guarentees. We've seen the mis-use of the Due Process Claus, or the right of the Federal Government to regulate interstate commerce plenty of times to see where these abuses are headed.
But, on the otherhand, the High Courts must be carefull in painting a too broad a picture. The Robert's Court has been pretty even handed in its rulings. Most of them are very narrow rulings, and do not generally strike down a lower court ruling or law; but, his court rules against a misapplication.
Penagoon| 3.8.10 @ 7:15PM
SEApussy YOU NEED A HISTORY LESSON.
JoshInHb| 3.8.10 @ 11:38PM
The 2nd Ammendment applies to the federal government, not states.
If your state restricts guns more that you want, you can work to change your state's laws or move to another state.
Nick| 3.9.10 @ 12:41AM
JoshInHb,
"The 2nd Ammendment applies to the federal government, not states."
Why? Because you say so?
What part of "[...] the right of the [PEOPLE] to keep and bear Arms, shall not be infringed." is so hard to understand?
How can a "state [restrict] guns" when the people have the right to "keep and bear" guns without infringement?
azcIII| 3.9.10 @ 1:28AM
The Bill of Rights was added to the Constitution at the request of the STATES to further bind the federal government.
Preamble to the Bill of Rights:
"THE Conventions of a number of the States having at the time of their adopting the Constitution, expressed a desire, in order to prevent misconstruction or abuse of its powers, that further declaratory and restrictive clauses should be added: And as extending the ground of public confidence in the Government, will best insure the beneficent ends of its institution"
The BoR was not intended to apply to the states. It applied to the federal government. The states are sovereign entities, not administrative subsets of the federal gov. Hence, the inclusion of the 9th and 10th Amendments.
Incorporating the 2nd through the 14th opens the door to even more federal abuses and usurpation of state sovereignty. This should be a state-level issue, just as social welfare, education, gay marriage and abortion should be. The states and people never delegated these (and other) rights to the fed. To do so would require a Constitutional Amendment. That they have usurped powers over education, commerce, etc does not make it Constitutional.
Our education system is abysmal in teaching American history. Especially history relating to our founding documents. They are NOT subject to interpretation based on personal political agendas or expedience. They are LEGAL CONTRACTS, subject to change only as prescribed and agreed upon at their ratification.
Ryan| 3.9.10 @ 8:33AM
I get the argument, but I think it falls short. Yes, it can lead to abuses (subjective due process and the overuse of the commerce clause come to mind), but to believe that a state can restrict any first or second amendment rights that every citizen should hold doesn't hold water well.
George| 3.10.10 @ 8:59AM
@Ryan
Especially if you'll go an read your state constitution. You'll see that your state constitution probably has a declaration/bill of rights that mostly mirrors the federal one.
Take a look at this google cached document of state gun rights:
http://tiny.cc/L5OkZ
David Robarts| 3.10.10 @ 5:09PM
That's right nick.
If the Bill of Rights generally only apply to the Federal Government, why should the 1st Amendment state "Congress shall make no law..."
My reading says that protection of rights in amendments 2 - 8 apply to the Federal Government and State Governments under the constitution. Amendment 1 and 10 contain language specifically limiting them to the Federal Government. Unfortunately amendment 9 has so little of substance that it provides no real protection against anything (though it does give judges that favor a right a foundation to build case law on).
B. Bus| 3.10.10 @ 12:51PM
The 2A does not start with "Congress shall make no law...." or any other such qualifiers.
You are correct about working on a state level to fix the infringements, however, the infringements are a crime being perpetrated by the states, upon their owners (citizens). The federal government has duty/obligation to assist the preservation of this right, regardless of what a state or local government wishes.
It is a right..... Correct?
Like any other right (Life, Liberty....) We the People should be able to appeal to either the states or federal governmental system to rectify insults to them by the other. Each of the levels of government should be a resource for the owners of this nation to reign in tyranny of the other, if it comes to that.
It appears that Chicago's law is unConstitutional according to the Illinois Constitution: "SECTION 22. RIGHT TO ARMS
Subject only to the police power, the right of the
individual citizen to keep and bear arms shall not be
infringed.
(Source: Illinois Constitution.)"
So if the state government of Illinois will not protect the owners of the state, then the owners should appeal to the federal government (the collective of the other 49 states) to force Illinois to adhere to their Constitution....
JohnMcC_| 3.8.10 @ 10:35PM
Seapuss
One cannot pick and choose portions of the 14th amendment to make their case. It distorts the intent of the argument. The Fourteenth Amendment, as well as the Thirteenth and Fifteenth Amendments, was adopted after the Civil War (July 1868) as one of the Reconstruction Amendments. It was born, primarily, to overturn the Dred Scott decision. It gave slave, former slaves, and their descendents full US citizenship. While the ammendment doesn’t specify blacks, Section 1 states, “that all persons born or naturalized in the United States are American citizens…” and that no state may create any laws that would abridge those privileges or immunities of citizens... nor without due process of law deny any person under the state’s jurisdiction equal protection of those laws. It formally defines American citizenship and protects a person's civil and political rights from being abridged or denied by any state.
And that is why neither Chicago nor the District of Columbia deny its residences “in good standing” the protection of the second amendment. Due process of law does allow the state (or city or county) to deny possession or ownership of a firearm, it that individual has broken some law, which deems that such ownership jeopardizes other citizens.
Seapuss| 3.9.10 @ 6:23AM
Apparently, then, you believe in substantive due process, which got us such blessings as Roe v. Wade.
The point of the author of this article is that conservatives should rely upon the Privileges and Immunities clause, not substantive due process, to apply the protections of the Second Amendment against the states. I agree that substantive due process should be avoided. But the privileges and immunities clause, if taken out of mothballs, would just open up another flood gate for liberal mischief.
Conservatives should not fall for the liberal fantasy that the Constitution rights all wrongs and is inerrant. Sometimes the Constitution doesn't protect what you want protected. That means you have to roll up your sleeves and fight for what you want, not in the courts, but in the political branches.
Steven Peters| 3.9.10 @ 5:13AM
Can we not agree that the Constitution envisions the Congress, the States, and the People? The Bill of Rights disallows Congressional encroachment on the rights of the States and the People, respectively. The 14th Amendment disallows the States from taking rights from the People. The People have the God-given right of self-defense - to keep and bear arms. No state has the lawful power to infringe this right. There is no other rational conclusion to be reached.
Nothing in the Constitution prevents judges from error or from misconstruing the meaning of plain English. Most of the mischief that ails the nation today is at least abetted by judicial error. Let's don't hamstring the proper interpretation of the Constitution by suggesting that to do so would empower further encroachment by wrong-headed judges. They have sufficient penumbras and emanations to make all the high-handed and baseless rulings they want.
New Yorker| 3.10.10 @ 1:59PM
This an interesting issue concerning Federal Law trumping State Law or vice-versa. Not being a Constitutional Scholar I can only apply a layman's logic to the issue at hand. If the Supreme Court rules in favor of McDonald then Federal Law will trump State Law and the state's power to legislate gun control will be greatly diminished. A ruling in favor of McDonald will cause many to argue that the Federal Government is garnering too much power while others would argue that this is a Constitutional right that should never have been infringed upon in the first place. However, if the court rules in favor of Chicago and denies McDonald the right to purchase and keep a pistol then State Law would trump Federal Law as many believe it should in the interest of State's Rights.
If State Law should take precedence over Federal Law, then it is conceivable that individual states could pass laws that ban free speech or allow the use of slaves within the confines of their borders. These are issues that must be thought out before a decision is made. The current political trend is a fear that the Federal Government garnering too much power. The American people should be wary of an all powerful Federal Government, but there must be an overall law of the land that even State Law cannot change. Lyndon Johnson has gone down in history as the President that escalated the Vietnam War, but he was also a proponent of civil rights legislation at the Federal level that we all take for granted today. Clearly, there are going to be times when Federal Law will need to trump state law; deciding what issues warrant the Federal Government to override State Law is not very clear and these decisions cannot be made easily.
Nick| 3.10.10 @ 11:58PM
New Yorker,
"Clearly, there are going to be times when Federal Law will need to trump state law; deciding what issues warrant the Federal Government to override State Law is not very clear and these decisions cannot be made easily."
Wrong!
This is precisely what the Constitution is for. It lays out what powers the federal and state governments have and what powers are retained by the people.
All you have to do is read it.
Ken (Old Texican)| 3.8.10 @ 8:37AM
Well, Marine
The court is gonna' do what the court is gonna' do.
The productive American people are gonna' do what they are gonna' do.
The way I understand it, one of the very first principles drilled into would-be officers in the military is: "don't give an order you know will not be obeyed."
"We are pinned down and unable to comply" is the FIRST effect according to my understanding of history.
Thoughts?
Ret. Marine| 3.9.10 @ 7:49AM
Agreeded Ken, they are ah gonna do what they are ah gonna do. I find this whole exercise frustrating. I am however pleased to know the many voices here on this site are very knowledgeable when it comes to the laws and our structure. I do not rely upon man's laws as much as I do upon the God given laws for my conduct, and no matter what mans laws say, I have learned to follow my instincts and usually these instincts are spot on and correct in regards to my moral decissions.
As to history. When man-made laws are preferred over God's laws, the usual outcome leads to anarchy. When men over-rule God's laws, and God-given rights, only Godly Men will over-rule man's laws with force. Pinned down and unable to comply, ignor it. Better to save what force I have than to lose what moral support I may have, Works for me.
Tenn Slim| 3.15.10 @ 9:56AM
Ken
You are absolutely correct. Lots of us Old Geezer vets fully understand the "dont give an order..." Ms Pelosi and Sen Reid do not nor will they ever grasp the deeper context of that statement.
end
Semper Fi
Tim| 3.8.10 @ 8:47AM
Well Texas you got it right. The court will do what it damn well pleases, just like it has for decades, centuries. It's nice to think that we finally have some good men on the court but in reality we have all had the boot of unelected judges on our necks for way too long.
Louis Jenkins| 3.8.10 @ 9:36AM
How in the details a lawyer can figure that the 14th Amendment can apply to gun laws beats the dickens out of me. It deals with who is a citizen and what offices they can hold. There are four sections, look it up.
Passed by Congress June 13, 1866. Ratified July 9, 1868.
Section 1. All persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. 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; nor deny to any person within its jurisdiction the equal protection of the laws.
Yosemeti Sam| 3.8.10 @ 10:05AM
Amendment XIV:
"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; nor deny to any person within its jurisdiction the equal protection of the laws...."
A salient 'privilege' - the 2nd amendment bullet point to the Constitution - is a license to own as contingency an 'equalizer'. Along with said 'privilege' there be ZERO Constitutional
specificity of any US geographically enumerated limitations of its' use; sort of includes all 57 States - don't you know :)
SCOTUS - please keep it simple. Go with privileges!
Petronius| 3.8.10 @ 10:57AM
Just a reminder; the Oklahoma National Guard obeyed orders from Mayor Nagin in New Orleans. And West Pt. cadets must gainsay the Governments definition of the Bill of Rights to get comissioned. The topkicks who train new recruits get put through the psycholiberal meet grinder called the Social Office. This is the U.S. Army Speaker Pelosi says she will send forth to crush us.
Only problem there is, they are otherwise engaged.
tailgunner| 3.19.10 @ 11:02AM
I was in the military police for ten years. Let me tell you, there are many otherwise good men and women who will unquestioningly obey unconstitutional orders if given by their recognized superior officers.
I guess that's the rationale behind 'posse comitatus'.
The Constitution doesn't seem to have the same meaning to today's generation.
Pingback| 3.8.10 @ 11:38AM
Common Sense « COSMEGG links to this page. Here’s an excerpt:
blackwatch| 3.8.10 @ 11:53AM
I don't believe that we would ever see a standing army vs. militia battle in America. It's too easy not too. My point is that the tyrants live amongst us. They are literally all around us and they are readily accessible to our justice if it ever came too it.
Jlizz| 3.9.10 @ 4:31PM
"We cook your meals. We haul your trash. We connect your calls. We drive your ambulances. We guard you while you sleep..."
tailgunner| 3.8.10 @ 12:04PM
"Due Process" has become a pretext and a joke for governments who routinely seize assets and cash on mere suspicion and condemn personal property for the benefit of other, more connected, persons and private entities.
Determined anti-gun states will have no problem fabricating complicated, byzantine, lengthy and expensive 'due processes' for owning a gun.
New York City already has such a system which requires up to two years, an experienced attorney, and a whole lot of money for a gun permit that allows you to carry your gun from the bedroom to the living room.
The same folks who tried to evade civil rights laws with 'Jim Crow' legal fictions will have no problem at all nullifying a SCOTUS ruling based on the 'due process' clause.
Northern Rebel | 3.8.10 @ 12:07PM
I think Americans are eyes wide open, in the wake of "President" Anti-Christ's assault on our constitution, and the values that stem from it.
They won't be confiscating our guns any time soon, unless they aim to take it from the wrong end.
It's just too bad we didn't act differently, when fools like McCain, Fiengold, and Fred Thompson, (voted for it, folks) assualted our Constitution.
Pingback| 3.8.10 @ 12:35PM
Guns Magazine April 2010 | Ebook Online Free links to this page. Here’s an excerpt:
Roy in Canada| 3.8.10 @ 12:42PM
Seapuss, while not an American, even I can see the error in your claim that the Bill of Rights applies only to the Federal government, and not the States...Would you, therefore, have me believe hat free speech only applies in Washington, D.C. and not Ohio or Florida if some politicians decide they want a restriction on a certain newspaper?....Can you not see how silly this sounds?...This belief renders the Constitution useless and reduces the U.S. to nothing more than the medieval "City-States"....A nation cannot exist without a uniformity of laws that applies to all individuals, regardless of where they live in the country...There must be a standard of unalienable rights to all the people that exist in nature, ie: they exist by your own existence....Your Constitution does not "give" rights, it only reaffirms rights for all to read....Understand and embrace what you have, then protect it with all your heart...Almost all countries have no relevant Constitution, and Canada is no exception..Our Constitution is not worth the paper it`s written on....Don`t let what you have be consigned to the same irrelevance....
George S| 3.8.10 @ 1:12PM
Substantive due process is a "lie"?... then what protects us from the federal government forcing us to buy health insurance? Seriously, where in the Bill of Rights is it spelled out that we have the freedom to buy what we want and not buy what we don't want. That's the heart of substantive due process -- liberty, as opposed to standard due process, which is the process that is owed to you prior to acts of government intervention with your liberty.
The whole point is that government cannot infringe on our freedoms and say they can do so because they give us due process such as holding committee hearings or giving you a chance to speak in front of bored bureaucrats.
The Chicago gun ban IS a due process violation because the only Amendments, to date, that the 14th Amendment has not applied to the states are the Second, Third, and the grand jury indictment portion of the Fifth. That's why Stevens has his panties in an uproar; and I don't think you are accurately portraying Scalia's intentions -- it doesn't sound like him.
Pingback| 3.8.10 @ 1:12PM
The American Spectator : Guns Are Pointed at the Constitution | the world cares.com links to this page. Here’s an excerpt:
Pat| 3.8.10 @ 1:14PM
Bring up the Constitution within a Conservative’s hearing and even money says he or she goes a little nuts – this particular Amendment demands that, but a different Amendment can modify previous Amendments, the “rule of law”, “stare decisis”, the “English common law” – heck, throw in a few “res ipsa loquitors” for seasoning and added flavor. Finding an unending fascination within its archaic grammar, Conservatives value the Constitution in and of itself, relish the lovely legal debates, eagerly perform their mental bench presses within its weighty strictures. But wave the Constitution at a Liberal and you’re more than likely to get a shrug - a Liberal knows the Constitution is only valuable when it supports doing what you’ve already decided to do.
Pack the Bench with Justices committed to your philosophy, the Supreme Court is really just a shadow legislature, unelected but far more powerful and not intimidated by the voters – ordinary folks in black robes who can be counted on to find your argument sound and willing to rationalize the most outrageous decision based on scholarly “interpretations” of the venerated text. These are realities discovered by Liberals soon after they stop believing in Santa Claus – the Constitution is simply an old piece of parchment lovingly preserved within the National Archives – real power comes from living men and women who will use their authority to award their philosophical allies with favorable decisions. After finding a convenient rationalization for abortion within the Constitution, it’s hard to imagine an encore which would ever top that – it would be like asking Evel Kneivel to jump 51 tractor trailers after he just soared over 50 of them parked end to end.
You’re probably thinking “So what?” - every intelligent Conservative realizes that. But the next time a Constitutional question demands adjudication, Conservatives will once again be intoxicated with the Chanel No. 5 of Amendments and the real intentions of the Founding Fathers, befuddled by the Liberals bait and switch perfume, thoroughly in love with a beautiful illusion.
John McC_| 3.8.10 @ 10:48PM
Pat,
It is truly too bad that you toil, prosper, live, and sleep under the protection of that "old piece of parchment." There are many of us living in this land who would gladly die to protect it and those who are deserving of its protections. The words, thoughts, and ideas on that "old parchment" are just as fresh and relevant today as they ever were.
If you think so little of it, move somewhere else.
Ryan| 3.9.10 @ 8:35AM
So what's the solution?
Rob| 3.8.10 @ 1:44PM
In Massachusetts, the Registry of Motor Vehicles says that anyone born of one gender can get a driver's license that identifies them as having a different gender if a physician so approves. Via the privileges and immunities clause, offenses against the truth like this could potentially be used as a a subterfuge to impose same-sex marriage on other states. If a state that declares a right to carry concealed firearms can have this right made applicable in other states via the courts, then why not a right to same-sex marriage or a document declaring a change in gender identity that could lead to the same end? I don't claim to know what the answer might be, but sympathize with the justices' sense of caution.
wolflen| 3.8.10 @ 2:03PM
the quick of all this for me is..states/congress/lawyers/ballot propositions..can pass local laws that "infringe" on any or all parts of the constitution/ bill of rights..from who and what may be taxed to who can get "married"..and these decisions are legal until they are argued and overturned and on it goes..my dilemma is..living in los angeles..if they make guns "illegal to own" .. will i give mine up..
maverick muse| 3.8.10 @ 3:16PM
"Instead of mimicking the liberal justices, the conservative justices ought to show how a constitutional government actually works."
Amen. Preserve the Constitution by practicing constitutional governance.
Jim O'Brien| 3.8.10 @ 5:11PM
If Chicago banned free speech would the SC cite the 14th, or would it just say the Chicago ban violates the 1st amendment? Why doesn't the SC simply say that Chicago is violating the 2nd amendment? Could free speech be denied using "due process"? No. Should the right to keep and bear arms ever be denied using "due process"? No. As so many have written before, "what part of 'shall not be infringed' is ambiguous or hard to understand?"
Nick| 3.8.10 @ 7:01PM
Mr. O'Brien,
I agree with you.
Why are "originalist" justices even contemplating using either clause of the 14th article of amendment?
I'm not a constitutional scholar, but the language of the 2nd article of amendment is pretty clear. Although, I disagree with you about the words "shall not be infringed" being the pertinent point. The words "the right of [THE PEOPLE]" plainly state that neither the federal or state governments may "infringe" on the right to bear arms.
I disagree with those who make the blanket statement that the Bill of Rights applied only to the federal government. James Madison and the first Congress knew exactly what they were writting when they sent the Bill of Rights to the states for ratification.
This is why the 1st article of amendment begins with the words "C[ONGRESS] shall make no law [...]." It is also why the 9th and 10th are worded in the way in which they are. They were very explicit to whom each article of amendment applied to.
When they meant Congress, they wrote "Congress." When they meant the states, they wrote "State." And when they meant the people, they wrote "the people."
Nick| 3.8.10 @ 7:05PM
That should be "CONGRESS" in all caps. It looks a little confusing. Sorry.
John McC_| 3.8.10 @ 11:15PM
Nick,
I’m not a constitutional scholar either. But I believe the original Bill of Rights (the first ten) were written to pertain to the Federal Government. They were written and so stated to prevent the Federal Government from denying these “inalienable rights” from being denied to the citizens of the United States. There was a ‘fly in the ointment’ though and it was blacks were not considered citizens as of the writing of that wonderful document. There is no way the southern states would have ever signed on to the Constitution should blacks have been included with those protections. Jefferson (a slave owner) knew we (the newly formed country) were going to have problems with that discrepancy, but he and others “kicked the can down the road” for future generations to deal with that problem at our leisure.
And we did. It was called the Civil War. The fourteenth amendment overturned the Dred Scott decision and finally formalized the definition of an American citizen. Section 1 of that amendment also says that the states may not deprive American citizens the privileges protected by the Constitution and the Bill of Rights without due process of law. So now the State (neither Illinois, nor the District of Columbia) can neither write nor enact any rule that nullifies those rights. At least that’s what the current dither is all about.
Nick| 3.9.10 @ 12:28AM
John McC,
This was precisely the point of my post. You don't have to "believe" at all. Just read the plain text of the Bill of Rights.
When they meant "Federal", they wrote it:
-"Congress shall make no law [...]", First Article of Amendment.
-"No Soldier shall, in time of peace be quartered in any house [...], Third Article of Amendment.
When they meant "State", they wrote it:
"In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State [...]", Sixth Article of Amendment.
And when they meant the "People", they wrote it:
"The right of the people to be secure in their persons, [...]", Fourth Article of Amendment.
Read the Bill of Rights carefully, and you will see the distinctions that the first Congress made.
Grant Bratrud| 3.9.10 @ 5:35AM
Absolutely right! Remember, there's meaning in the order the rights are stated, as well. For example, the 10th Amendment says, "And if we left anything out, you can't do that to us either." Just because they didn't have lasers and cellphones doesn't mean they weren't as smart as we are. Much more likely is the contrary.
As unhappy as it makes me, I would nonetheless like to point out that even if the SCOTUS gets this one wrong, we live in a complex republic, and this or any future unholy triumvirate will have a very hard time restricting movement from state to state. The Socialist states are already collapsing fiscally. The social hazard one faces living in them grows dramatically at some point. The mobile will move, and live free or die.
Ken (Old Texican)| 3.8.10 @ 7:03PM
I refer Y'all to the blog on American Thinker today.
Lots of folks have moved to Texas.
Heh, I can jjust picture someone trying to take or register Texans' guns.
Riiiiight!
It is the old question: "Would you rather argue your gun rights in a courtroom...or on a dark street with armed criminals?"
Uh, I will take the courtroom any day.
John Marshall Fan| 3.8.10 @ 7:13PM
The original Bill of Rights did not apply to the states. John Marshall's opinion in the 1833 case of Barron v. Baltimore gives a very convincing explanation.
http://caselaw.lp.findlaw.com/.....;invol=243
mark| 3.8.10 @ 8:03PM
meanwhile, Obama's appointee to the 9th circuit court believes that the constitution is a ever changing document, stay vigilent America
communism is just a step away
Obama 9th Circuit Nominee: Constitution Must Adapt to Changes in the World
Updated March 04, 2010
Obama 9th Circuit Nominee: Constitution Must Adapt to Changes in the World
By Shannon Bream
- FOXNews.com
Even his critics describe him as "brilliant," but newly-nominated law professor Goodwin Liu will not have an easy time getting to the 9th Circuit bench.
Goodwin Liu is President Obama's nominee to be a judge on the 9th Circuit Court of Appeals (Stanford University).
Even his critics describe him as "brilliant," but President Obama's newly minted judicial nominee -- law professor Goodwin Liu -- will not have an easy time getting to the 9th Circuit bench.
At age 39, Liu has compiled an impressive resume: Rhodes Scholar, Supreme Court clerk, top grades at both Stanford University and Yale Law School and now law professor University of California, Berkeley.
Liu has also aligned himself with progressive legal groups, including the American Constitution Society, where he is chairman of the board of directors. That's prompting opponents to argue that Liu is "too far outside the mainstream" to take a seat on a court just one step below the Supreme Court of the United States.
"He believes the Constitution is something judges can manipulate to have it say what they think culture or evolving standards of decency requires of it in a given day," said the Senate Judiciary Committee's top Republican Jeff Sessions, R-Ala.
Ed Whelan, a one-time clerk to Justice Antonin Scalia and now president of the Ethics and Public Policy Center, echoed those concerns.
"Liu believes that judges have the authority to impose their views ... using clever verbal camouflage to disguise what they're doing."
Liu opponents point to a number of his writings, including a book he co-authored in 2009 called "Keeping Faith with the Constitution," in which the authors opine about their concept of judicial interpretation.
"Applications of constitutional text and principles must be open to adaptation and change ... as the conditions and norms of our society become ever more distant from those of the Founding generation."
That theme -- that the Constitution's text and principles must be adapted to changes in the world -- repeats throughout the book and raises eyebrows among conservatives.
Others who know Liu point to what he's accomplished, starting as the son of Taiwanese immigrants who didn't speak much English.
"He embodies the American dream," said Doug Kendall, president of the progressive Constitutional Accountability Center (CAC).
Kendall's group does not make a decision about whether to officially support nominees until their confirmation process has concluded, but he is impressed by what he knows of Liu so far.
Kendall said he believes Liu's critics are wrongly portraying him as extreme.
"If you look at Liu's scholarship, he rejects both the conservative idea that judges should strictly construe the Constitution and the liberal idea that the Constitution is a living, breathing document," he said.
Liu is no stranger to Capitol Hill. He testified against the nomination of Justice Samuel Alito during Alito's 2006 confirmation hearings.
In a 2005 report Liu co-authored prior to his testimony, he wrote that Alito's opinions "show a disturbing tendency to tolerate serious errors" and "reveal troubling perspectives on federalism, race, and due process of law."
His testimony didn't derail Alito but now Liu will face similar probing. Already, questions are being asked about whether the president's is putting the young nominee on the fast track to the high court.
Kendall said only time will tell whether Liu would be the right fit, but it's possible he could be in the running if he is confirmed to and serves well at the 9th Circuit. However, that is a possibility that "concerns" Liu's detractors, including Whelan.
"That's certainly an added factor that folks in the Senate need to take into account," he said.
__________________
philfl63| 3.8.10 @ 10:51PM
All very complex points of law. But the 2nd Amendment says I can keep and bear arms and no lawyer's, judge's, or politician's twaddle is going to keep me from having firearms.
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Thomas| 3.9.10 @ 10:32AM
Interesting reading. I have to agree with Seapuss on his interpretation of Constitutional history and the application of the 14th Amendment. The Civil War was fought over states' rights. The states lost and the Federal government won. And it has been chipping away at states' rights and sovereignty ever since.
What seems to slip everyone's attention is the fact that regardless of how the High Court rules, they refuse to adhere to the wording of the 2nd Amendment. In the operations clause, it states "the right of the people to keep and bear arms shall not be infringed". Yet, they readily agreed to allow "reasonable restrictions" of that abridge that right in Heller. And that applied directly to the Federal government, as the District is a federal preserve.
The Court has overstepped its bounds time and time again, reading legal "rights" and justifications into the Constitution and it's amendments that do not reside there time and time again. The trend has been to grant greater power to the Federal government and less to the states and the people.
COnservative Bob| 3.9.10 @ 11:15AM
Thomas
I think you are onto an important point.
Reading the transcripts of the Mc Donald argument what I found most disturbing is that Roberts, Scalia, Alito et.al seemed to acquiesce to the Breyer and Ginsberg’s point of the government’s authority to place “reasonable limits” on ownership and possession.
If one reads Heller the major focus of their debate was establishing that the right was individual, that the militia portion was not the operative clause.
I am uncertain as to whether or not the 14th applies the bill of rights to the states via “due Process” or “privileges or immunities”, or at all, but think that the due process position is wrong: regardless they are missing the broader more important point. If as they affirmed in Heller the second is an individual right; meaning that clause the state “the right… shall not be infringed is operative.
The most important word in the operative phrase is infringed. Use any dictionary you choose, search all of the historical meaning of the word, “…not infringed” leaves absolutely no room for “reasonable limits”.
Whether or not McDonald is the right case to settle the issue, or whether or not the “Bill of Rights” in general or the 2nd amendment in particular applies to the states through the 14ths amendment’s “due process” or “privileges or immunities” the court needs to clarify once and for all the that “..not infringed” means exactly what it says and illuminate forever the federal government’s restriction of our inalienable rights.
Conservative Bob| 3.9.10 @ 11:17AM
oops illuminate should be eliminate
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danfromatlanta| 3.10.10 @ 1:04PM
What's wrong with citing both clauses if the Illinois ban violates both? I don't see the 2 as mutually exclusive (either, or), they are mutually supportive, and ought to be employed to overturn the ban.
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Charlie| 3.11.10 @ 4:48PM
Americans have been arguing States Rights vs Federal since our conception. It's standard. Weak Fed/Strong State? Strong State/Weak Fed.
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Jon B| 3.13.10 @ 5:47AM
I completely support the 2nd amendment. It's a great joy watching Republicans shoot themselves in the foot.
Nick| 3.13.10 @ 7:40PM
Pay no attention to Jon B, folks.
He peddles lies and marxist propaganda. Oops! Redundant.
Like the lie that President Reagan gave the Soviets $425 billion.
After 3 days of trying to belittle those of us who called him out on his lie, he finally admitted his fabrication.
Although, now he claims it was a mistake That it was actually $425 million, but he offers no source. Just his deeply flawed memories.
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tailgunner| 3.22.10 @ 10:27PM
"...the Right of the People to Keep and Bear Arms shall not be Infringed."
Period. That includes any and all local, state and federal entities.
We're having another unnecessary battle over the plain text of the Constitution.
It says what it says, nothing more or less.
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