SCOTUS extends Heller to the states

Originally posted by sh76
I, Scalia and, apparently, Elena Kagan

http://news.yahoo.com/s/ap/20100701/ap_on_go_su_co/us_kagan_supreme_court

[/i]Questioned by Sen. Tom Coburn, R-Okla., on guns, Kagan said she accepts a recent ruling upholding individuals' rights to possess firearms, but she would not say whether she believed there was a "fundamental right" — meaning one that applies we can add Kagan to the list of people who don't understand the Framers' intent, eh?

Sotomayor was even worse at her confirmation hearing:

"The Constitution creates the rights. It's immutable. The right [sic] that the Constitutions [sic] have created can't be added onto -- neither by congress or -- except by amendment -- or by a court."

http://www.huffingtonpost.com/mark-dorlester/sotomayors-right-wing-jud_b_236195.html

The idea that the Constitution creates rights is so stunningly wrong according to the philosophy this country was created under that I wonder whether she misspoke.

Originally posted by no1marauder
Sotomayor was even worse at her confirmation hearing:

"The Constitution creates the rights. It's immutable. The right [sic] that the Constitutions [sic] have created can't be added onto -- neither by congress or -- except by amendment -- or by a court."

http://www.huffingtonpost.com/mark-dorlester/sotomayors-right-wing-jud_b_236195. ...[text shortened]... cording to the philosophy this country was created under that I wonder whether she misspoke.

Okay, so it's not just myself and Scalia. It's Scalia, Sotomayor, Kagan and presumably at least Roberts, Thomas and Alito, most likely Kennedy (I guess the jury's still out on Breyer and Ginsburg), who agree with me.

The people vested in determining which rights are protected from interference by federal and state authorities are ultimately the judges of the SCOTUS. So, in essence, your position is based on your readings of what the framers said in their papers and my position is the law of the land.

Originally posted by no1marauder
For those who don't know and are too lazy to Google, the Ninth Amendment to the Constitution states:

The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.


But that is exactly what sh76 is proposing.

The 9th Amendment doesn't say anything about application to the states, which is exactly what we're discussing.

The Bill of Rights is incorporated to be binding on the states only through the due process clause of the 14th Amendment. I know you don't like selective incorporation, so let's even assume that all enumerated rights are incorporated to the states through the 14th Amendment.

I think it's a major stretch to say that the due process clause of the 14th Amendment not only incorporates all enumerated rights in the Bill of Rights to the states, but also a host of non-enumerated rights, to be decided on an as needed basis by the federal courts.

All the "natural rights" in the World notwithstanding, without a Constitutional provision to support it, the federal courts have no jurisdiction to throw out a state law.

Originally posted by sh76
Okay, so it's not just myself and Scalia. It's Scalia, Sotomayor, Kagan and presumably at least Roberts, Thomas and Alito, most likely Kennedy (I guess the jury's still out on Breyer and Ginsburg), who agree with me.

The people vested in determining which rights are protected from interference by federal and state authorities are ultimately the judges of the ...[text shortened]... our readings of what the framers said in their papers and my position is the law of the land.

As I always say in response to such arguments: Eat s**t; a 100 billion flies can't be wrong.

Originally posted by no1marauder
As I always say in response to such arguments: Eat s**t; a 100 billion flies can't be wrong.

But these are the people that decide what the law is in that regard. The concept of them being "wrong" is irrelevant. It's not the Supreme Court's responsibility to stay loyal to the framers' writings and ideas; just what was written and crystallized in the Constitution. If the Constitution doesn't enumerate a right, it's not Sonia Sotomayor's job to read John Locke and Alexander Hamilton to determine which non-enumerated rights should be enforced.

Originally posted by sh76
It's not the Supreme Court's responsibility to stay loyal to the framers' writings and ideas; just what was written and crystallized in the Constitution.

If that's true, what practical use or application is there for the 9th amendment?

Originally posted by sh76
The 9th Amendment doesn't say anything about application to the states, which is exactly what we're discussing.

The Bill of Rights is incorporated to be binding on the states only through the due process clause of the 14th Amendment. I know you don't like selective incorporation, so let's even assume that all enumerated rights are incorporated to the states ...[text shortened]... rovision to support it, the federal courts have no jurisdiction to throw out a state law.

The idea that you possess fundamental rights but are without a legal remedy if the State violates them would have been anathema to the Framers. This is precisely the type of nitpicking that I am talking about; an attempt to defeat the actual intent of the Framers by appealing to an "originalism" that they would have rejected out of hand.

If you don't like the DPC, you can always use the Privileges and Immunities clause as Thomas suggests; surely its "original intent" was to "federalize" fundamental rights and foreclose arguments like yours.

Originally posted by sh76
But these are the people that decide what the law is in that regard. The concept of them being "wrong" is irrelevant. It's not the Supreme Court's responsibility to stay loyal to the framers' writings and ideas; just what was written and crystallized in the Constitution. If the Constitution doesn't enumerate a right, it's not Sonia Sotomayor's job to read John ...[text shortened]... ocke and Alexander Hamilton to determine which non-enumerated rights should be enforced.

Whatever happened to "original intent"? Using a crabbed reading of the Constitution to limit the rights of the people is about as far from the original intent of the Framers as you can get.

Originally posted by Sleepyguy
If that's true, what practical use or application is there for the 9th amendment?

You can read all about various interpretations of the 9th Amendment here:

http://en.wikipedia.org/wiki/Ninth_Amendment_to_the_United_States_Constitution#Interpretation

None of these (or almost none) interpret it as broadly as does No1.

Originally posted by no1marauder
Whatever happened to "original intent"? Using a crabbed reading of the Constitution to limit the rights of the people is about as far from the original intent of the Framers as you can get.

I don't care about original intent. I care about what the Constitution actually says. I also have no problem with the constitution adapting to fit the times. For example, I would agree that "cruel and unusual punishment" can be interpreted differently in different eras. But at least the interpretation should have some basis in the text.

Edit: Regarding originalism, what do you think the framers would have thought of the SCOTUS using their words to protect abortion rights against state prohibitions?

Originally posted by sh76
You can read all about various interpretations of the 9th Amendment here:

http://en.wikipedia.org/wiki/Ninth_Amendment_to_the_United_States_Constitution#Interpretation

None of these (or almost none) interpret is as broadly as does No1.

or Madison, but what did he know?

Originally posted by sh76
I don't care about original intent. I care about what the Constitution actually says. I also have no problem with the constitution adapting to fit the times. For example, I would agree that "cruel and unusual punishment" can be interpreted differently in different areas. But at least the interpretation should have some basis in the text. Otherwise, you can amend the text.

You seem to be ducking the Privileges and Immunities clause rationale. Interesting. I'll quote some Thomas from his concurrence in McDonald:

At the time of Reconstruction, the terms “privileges” and“immunities” had an established meaning as synonyms for “rights.” p. 9

By the time of Reconstruction, it had long been established that both the States and the Federal Government existed to preserve their citizens’ inalienable rights, and that these rights were considered “privileges” or “immunities” of citizenship. p. 11

I see no reason to assume that such hazards apply to the Privileges or Immunities Clause. The mere fact that the Clause does not expressly list the rights it protects does not render it incapable of principled judicial application. The Constitution contains many provisions that require an examination of more than just constitutional text to determine whether a particular act is within Congress’ power or is otherwise prohibited. See, e.g., Art. I, §8, cl. 18 (Necessary and Proper Clause); Amdt. 8 (Cruel and Unusual PunishmentsClause). When the inquiry focuses on what the ratifying era understood the Privileges or Immunities Clause to mean, interpreting it should be no more “hazardous” than interpreting these other constitutional provisions by using the same approach. p. 52


While not fully agreeing with everything Thomas says, surely his framework disposes of your argument that there is no Constitutional basis for federal judicial review of State violations of unenumerated fundamental rights.

Originally posted by no1marauder
or Madison, but what did he know?

Ha! There's the whole problem in a nutshell - Madison replaced by Wikipedia.

I tend to agree with you on this one no1, not that you care what my stunted right winger brain is up to.

It seems obvious that "original intent" should be the guide in interpretation of the Constitution, and clearly the 9th amendment is referring to SOME un-enumerated rights. But it seems impractical and maybe dangerous to go much beyond the writings of the Framers themselves in determining what original intent was, and what those rights might be.

Do you really believe SC Justices should be referencing Locke, or other previous sources that influenced them, to determine what the Framer's themselves meant? Isn't that just operationally impractical? Shouldn't they at least limit themselves to the writings of the Framer's themselves (Federalist Papers, etc.) to make those judgments?

Otherwise me might end up with nutty interpretations like...

Natural Law -> Cave Paintings! -> Locke - > Framer's were communists -> Chavez rocks!

You know, for example.

Originally posted by Sleepyguy
Ha! There's the whole problem in a nutshell - Madison replaced by Wikipedia.

No...

Madison replaced by generations of binding Supreme Court case law, as quoted on Wikipedia.

Originally posted by sh76
No...

Madison replaced by generations of binding Supreme Court case law, as quoted on Wikipedia.

No. Screw that.

How stare decisis Subverts the Law...

http://www.constitution.org/col/0610staredrift.htm

Edit: I know I'm out of my depth here among you Esquires, but that kind of thinking has moved us too far away from the Constitution.