SCOTUS extends Heller to the states

Originally posted by no1marauder
Then I sincerely doubt your sanity.

As insane is probably not among the 5 worst things you've called me in the last month, I appreciate the compliment.

Originally posted by sh76
As insane is probably not among the 5 worst things you've called me in the last month, I appreciate the compliment.

Personally, I find your arrogant dismissal of the very philosophical basis on our country to be disgraceful in an attorney. I find your intellectual dishonesty in referring to the Ninth Amendment and Privileges and Immunities Clause as "vague" merely because they dispose of your argument to be typical. I find your "argument" which is nothing more than an Appeal to Authority virtually devoid of any semblance of reasoning to be laughable.

It would have been interesting in 1954 to hear your ringing defense of Plessy v. Ferguson .

Stick with trying to get rich folks to not pay their fair share of taxes; a Constitutional scholar you are not.

Originally posted by no1marauder
Personally, I find your arrogant dismissal of the very philosophical basis on our country to be disgraceful in an attorney. I find your intellectual dishonesty in referring to the Ninth Amendment and Privileges and Immunities Clause as "vague" merely because they dispose of your argument to be typical. I find your "argument" which is nothing more than an ...[text shortened]... o get rich folks to not pay their fair share of taxes; a Constitutional scholar you are not.

I find your arrogant dismissal and incredible condescension for anyone and everyone who has any level of disagreement with you to be disgraceful as a human being, to say nothing of as an attorney. I find your chiding anyone for their arrogance to be ironic in the extreme and laughable.

Stick to being an sanctimonious prick; a decent person you are not.

Originally posted by sh76
I find your arrogant dismissal and incredible condescension for anyone and everyone who has any level of disagreement with you to be disgraceful as a human being, to say nothing of as an attorney. I find your chiding anyone for their arrogance to be ironic in the extreme and laughable.

Stick to being an sanctimonious prick; a decent person you are not.

ooooweee! Thats a slam dunk for sh76!!!!!😏

Originally posted by sh76
I find your arrogant dismissal and incredible condescension for anyone and everyone who has any level of disagreement with you to be disgraceful as a human being, to say nothing of as an attorney. I find your chiding anyone for their arrogance to be ironic in the extreme and laughable.

Stick to being an sanctimonious prick; a decent person you are not.

You're a pitiful a**hole. Apparently decency to you means supporting State sponsored tyranny. Then again your support of the idea that States can do virtually anything they please accords nicely with your view that a criminal nation state like Israel is immune from international law.

Originally posted by Melanerpes
I'm still trying to figure out what rights the 9th Amendment was specifically referring to.

Would those rights have included things like a "person's right to own slaves"? or a "person's right to appear nude in public"?

What is it that differentiates between an "artificial right" and a "natural right"? -- being that not everyone agrees on even the obvious things like "freedom of religion"

I'll let Justice Douglas (in his concurrence in Roe v. Wade help you out:

The Ninth Amendment obviously does not create federally enforceable rights. It merely says, "The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people." But a catalogue of these rights includes customary, traditional, and time-honored rights, amenities, privileges, and immunities that come within the sweep of "the Blessings of Liberty" mentioned in the preamble to the Constitution. Many of them, in my view, come [410 U.S. 211] within the meaning of the term "liberty" as used in the Fourteenth Amendment.

First is the autonomous control over the development and expression of one's intellect, interests, tastes, and personality.

These are rights protected by the First Amendment and, in my view, they are absolute, permitting of no exceptions. See Terminiello v. Chicago, 337 U.S. l; Roth v. United States, 354 U.S. 476, 508 (dissent); Kingsley Pictures Corp. v. Regents, 360 U.S. 684, 697 (concurring); New York Times Co. v. Sullivan, 376 U.S. 254, 293 (Black, J., concurring, in which I joined). The Free Exercise Clause of the First Amendment is one facet of this constitutional right. The right to remain silent as respects one's own beliefs, Watkins v. United States, 354 U.S. 178, 196-199, is protected by the First and the Fifth. The First Amendment grants the privacy of first-class mail, United States v. Van Leeuwen, 397 U.S. 249, 253. All of these aspects of the right of privacy are rights "retained by the people" in the meaning of the Ninth Amendment.

Second is freedom of choice in the basic decisions of one's life respecting marriage, divorce, procreation, contraception, and the education and upbringing of children.

These rights, unlike those protected by the First Amendment, are subject to some control by the police power. Thus, the Fourth Amendment speaks only of "unreasonable searches and seizures" and of "probable cause." These rights are "fundamental," and we have held that, in order to support legislative action, the statute must be narrowly and precisely drawn, and that a "compelling state interest" must be shown in support of the limitation. E.g., Kramer v. Union Free School District, 395 U.S. 621; Shapiro v. Thompson, 394 U.S. 618; [410 U.S. 212] Carrington v. Rash, 380 U.S. 89; Sherbert v. Verner, 374 U.S. 398; NAACP v. Alabama, 357 U.S. 449.

The liberty to marry a person of one' own choosing, Loving v. Virginia, 388 U.S. 1; the right of procreation, Skinner v. Oklahoma, 316 U.S. 535; the liberty to direct the education of one's children, Pierce v. Society of Sisters, 268 U.S. 510, and the privacy of the marital relation, Griswold v. Connecticut, supra, are in this category.4 [410 U.S. 213] Only last Term, in Eisenstadt v. Baird, 405 U.S. 438, another contraceptive case, we expanded the concept of Griswold by saying:

"It is true that, in Griswold, the right of privacy in question inhered in the marital relationship. Yet the marital couple is not an independent entity, with a mind and heart of its own, but an association of two individuals, each with a separate intellectual and emotional makeup. If the right of privacy means anything, it is the right of the individual, married or single, to be free from unwarranted governmental intrusion into matters so fundamentally affecting a person as the decision whether to bear or beget a child." Id., at 453.

This right of privacy was called by Mr. Justice Brandeis the right "to be let alone." Olmstead v. United States, 277 U.S. 438, 478 (dissenting opinion). That right includes the privilege of an individual to plan his own affairs, for, "'outside areas of plainly harmful conduct, every American is left to shape his own life as he thinks best, do what he pleases, go where he pleases.'" Kent v. Dulles, 357 U.S. 116, 126.

Third is the freedom to care for one's health and person, freedom from bodily restraint or compulsion, freedom to walk, stroll, or loaf.

These rights, though fundamental, are likewise subject to regulation on a showing of "compelling state interest." We stated in Papachristou v. City of Jacksonville, 405 U.S. 156, 164, that walking, strolling, and wandering "are historically part of the amenities of life as we have known them." As stated in Jacobson v. Massachusetts, 197 U.S. 11, 29:

"There is, of course, a sphere within which the individual may assert the supremacy of his own will [410 U.S. 214] and rightfully dispute the authority of any human government, especially of any free government existing under a written constitution, to interfere with the exercise of that will."

In Union Pacific R. Co. v. Botsford, 141 U.S. 250, 252, the Court said, "The inviolability of the person is as much invaded by a compulsory stripping and exposure as by a blow."

In Terry v. Ohio, 392 U.S. 1, 8-9, the Court, in speaking of the Fourth Amendment stated, "This inestimable right of personal security belongs as much to the citizen on the streets of our cities as to the homeowner closeted in his study to dispose of his secret affairs."

Katz v. United States, 389 U.S. 347, 350, emphasizes that the Fourth Amendment "protects individual privacy against certain kinds of governmental intrusion."

In Meyer v. Nebraska, 262 U.S. 390, 399, the Court said:

"Without doubt, [liberty] denotes not merely freedom from bodily restraint, but also the right of the individual to contract, to engage in any of the common occupations of life, to acquire useful knowledge, to marry, establish a home and bring up children, to worship God according to the dictates of his own conscience, and generally to enjoy those privileges long recognized at common law as essential to the orderly pursuit of happiness by free men."

http://womenshistory.about.com/library/etext/gov/bl_roe_l.htm


There never existed a "right to own slaves" or a "right to appear nude in public" as you well know.

Originally posted by no1marauder
I'll let Justice Douglas (in his concurrence in Roe v. Wade help you out:

The Ninth Amendment obviously does not create federally enforceable rights. It merely says, "The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people." But a catalogue of these rights includes custo ...[text shortened]... ght to appear nude in public" as you well know.

so justice Douglas declared that the following rights exist:

1. right to intellectual and artistic expression
2. right to make choices regarding one's spouse and family
3. right to care for one's health and to roam freely

with these rights (at least #2 and #3) subject to "compelling state interests"

But if the 9th Amendment did not exist, would that somehow prevent judges from issuing broad interpretations such as these? Indeed all three of Douglas's declarations could be drawn from an "activist" interpretation of the First Amendment that sees this Amendment as being a very broad assertion of individual freedoms. On the other hand, does the existence of the 9th Amendment prevent other judges from issuing more narrow interpretations that might not include the things Douglas asserts?

And is there anything in Douglas's declarations that prevent a pro-life judge from arguing that protecting the unborn person's right to enjoy life is a very compelling reason to restrict people's freedom to reproduce?

Originally posted by Melanerpes
so justice Douglas declared that the following rights exist:

1. right to intellectual and artistic expression
2. right to make choices regarding one's spouse and family
3. right to care for one's health and to roam freely

with these rights (at least #2 and #3) subject to "compelling state interests"

But if the 9th Amendment did not exist, would ...[text shortened]... t to enjoy life is a very compelling reason to restrict people's freedom to reproduce?

Let me give you the background of the adoption of the Bill of Rights and Ninth Amendment into the US Constitution:

The predominant political philosophy prior to Lockean Natural Rights claimed that the Sovereign had plenary power. Over time, the people had managed to force certain concessions from the Sovereign and some of these were incorporated into each colony's Bill of Rights. The idea was that the Sovereign had given to the people certain rights which (perhaps) he could not revoke.

Locke Natural Rights philosophy rejected these ideas holding that the People had inalienable Rights given them by their Creator (though a Creator is not really necessary in the modern view). Thus, a Bill of Rights didn't make a lot of sense as Hamilton stated; one hardly needed to carve out exceptions from a Sovereign's absolute power when the Sovereign had no such power.

So when the Constitutional Convention hammered out the provisions of the Constitution,no Bill of Rights was included. The Federalists found it philosophically unnecessary. However, in the ratification fights in the States, anti-Federalists argued the lack of a BOR would reduce the People's rights. In a few States, a small portion of the representatives voting on ratification insisted on a later inclusion of a BOR in order to get their vote. This position was an extreme minority position, but in some States the ratification vote was razor thin. So this compromise was accepted even though ideologically the vast majority of Federalists saw no need for a BOR (and the vast majority of anti-Federalists opposed the Constitution regardless of whether a BOR was included).

Once it was decided some type of BOR was a political necessity, Madison and a few others set about writing one borrowing liberally from the State BORs. But Madison and most Federalists were concerned that the inclusion of a listing of rights would lead to the unwarranted conclusion that sh76 makes i.e. that none others exist. Madison himself came up with the novel innovation of the 9th Amendment (though his opinion on what it meant is apparently worthless) to once and for all foreclose the possibility of said argument. Unfortunately, that has not stopped those who favor local elite power over the rights of the People from attempting (rather successfully by appealing to the most elitist branch of government) to nullify it.

That's the historical background of the BOR and 9th Amendment even though it doesn't matter to sh76.

Originally posted by no1marauder
Let me give you the background of the adoption of the Bill of Rights and Ninth Amendment into the US Constitution:

The predominant political philosophy prior to Lockean Natural Rights claimed that the Sovereign had plenary power. Over time, the people had managed to force certain concessions from the Sovereign and some of these were incorpo historical background of the BOR and 9th Amendment even though it doesn't matter to sh76.

So what did the Federalists who opposed having a BOR have in mind?

Did they essentially want to have a Supreme Court that would be given free rein to overturn any legislation on the grounds that it violated some right as defined by said court?

For example - assuming the absence of a BOR - if someone took a case to the Supreme Court and claimed that their state or local government was violating their right to speak freely, were the judges expected to just make up their own minds about whether such a right to free speech existed? Or did everyone living in the late 18th century just consider it to be so obvious that a right to free speech existed that the whole idea of writing it down seemed to be a waste of time?

Then again -- the Constitution itself doesn't say anything specifically about judicial review regarding "constitutionality" of laws, so perhaps the Framers had something else in mind entirely regarding the role of the Supreme Court?

Originally posted by no1marauder
Let me give you the background of the adoption of the Bill of Rights and Ninth Amendment into the US Constitution:

The predominant political philosophy prior to Lockean Natural Rights claimed that the Sovereign had plenary power. Over time, the people had managed to force certain concessions from the Sovereign and some of these were incorpo ...[text shortened]... historical background of the BOR and 9th Amendment even though it doesn't matter to sh76.

In spite of your consistent posing of strawmen to represent me in your fantasy land, I have never once said that rights are limited to those stated in the Constitution. I stated that the federal government and its courts have no authority to force the states to recognize non-enumerated rights. The federal courts have only the authority over the states that are given to it by the Constitution. The state courts also get some say in determine what rights are natural, inherent or whatever. You still have not once even attempted to establish where federal courts get their authority to bind states to something other than what is stated in the Constitution.

Originally posted by Melanerpes
So what did the Federalists who opposed having a BOR have in mind?

Did they essentially want to have a Supreme Court that would be given free rein to overturn any legislation on the grounds that it violated some right as defined by said court?

For example - assuming the absence of a BOR - if someone took a case to the Supreme Court and claimed that ...[text shortened]... haps the Framers had something else in mind entirely regarding the role of the Supreme Court?

Federalist 78 discussed judicial review though it certainly was not a non-controversial issue until and even after Marbury v. Madison. Authority of the Supreme Court to bind the states wasn't asserted by the SC until much later. It has never been asserted by the SC other than in the context that the SC can declare state actions un-CONSTITUTION-al; not unnatural or inconsistent with anything other than the Constitution.

Obviously, allowing the SC to overturn a state act on any ground they damn well please would have been completely unpalatable to the states (and still would be).

Originally posted by no1marauder
I'll let Justice Douglas (in his concurrence in Roe v. Wade help you out:

The Ninth Amendment obviously does not create federally enforceable rights. It merely says, "The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people." But a catalogue of these rights includes custo ...[text shortened]... ght to appear nude in public" as you well know.

Odd to appeal to case law when you've been ripping the case law in this area all thread.

Which one is it? Does the SC know what it's talking about on this issue or are they a bunch of ignorant morons like everyone else on Earth except for you?

Originally posted by sh76

Obviously, allowing the SC to overturn a state act on any ground they damn well please would have been completely unpalatable to the states (and still would be).

so - regarding those Framers who were opposed to including any Bill of Rights in the Constitution - what was their intent? - did they not want to give the Supreme Court any grounds at all to overturn state or local laws? - or did they believe that the Supreme Court would choose to abide by some sort of unstated common law when making these decisions?