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View Diary: Bob Costas & truly innovative gun violence solutions (52 comments)

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  •  that's only half of it (0+ / 0-)

    as it leaves unexamined what "the right of the people to keep and bear arms" means.  After all, the 4th amendment permits all kinds of warrantless searches, when, e.g., there's no expectation or privacy or when there are exigent circumstances.  So, the individual versus collective is a red herring - by its most obvious terms, it prevents the federal government from denying individuals the right to join a militia.  After that, it's fairly wide open, meaning the political branch should have the right to fill in gaps in interpretation.

    It's secondly bad legal analysis to treat a preferatory clause as having no effect at all.  At minimum, it puts at issue the "security of a free state," and that opens up who gets to make that determination on close questions - courts or legislatures.  Unless you can say that D.C. and Chicago cannot plausibly believe handgun restrictions enhance the security of citizens, it should be game over.  (This is a different standard from whether this is or is not actually the case.)  That clause tells me that gun regulations should be subject to rational basis review.  

    Difficult, difficult, lemon difficult.

    by Loge on Wed Dec 05, 2012 at 11:07:10 AM PST

    [ Parent ]

    •  Where does it say "join a militia?" (6+ / 0-)

      The prefatory clause does have an effect.  It asserts a justification, with no pretense of being exhaustive, for the right that follows.

      If DC and Chicago want to pass restrictions on any right, there's a time-honored test for ensuring they pass constitutional.  It's called strict scrutiny.

      •  that's totally consistent (0+ / 0-)

        with what i said.  The slightest difference is that I think questions that can't be answered on the face of the text (which is most), have to be construed in light of those justifications offered.  What if there's something short of a militia and a different class of weapons, where the legislature has made a policy judgment that the security of the free state is inhibited by their presence?

        Not all constitutional rights are subject to strict scrutiny, and if you're relying on the 4th amendment as the model for analysis, you'd know that.  And here, where the scope of "the right to keep and bear arms" is imperfectly clear -- by your own move of diminishing the first part of the sentence -- deference to democratic bodies is more and more appropriate.  Where courts tend to impose strict scrutiny are where there are systematic breakdowns in the process that adversely hurt "discrete and insular minorities," or where the outcome can be determined from the text itself.  Assuming either applies to the gun situation is typical bullheadedness of the gun nut contingent.

        Difficult, difficult, lemon difficult.

        by Loge on Wed Dec 05, 2012 at 11:32:02 AM PST

        [ Parent ]

        •  Funny. (5+ / 0-)

          A legislature just gets to decide a constitutionally enumerated justification--which is never mentioned to be exclusive--for a right is no longer applicable, and therefore the right isn't either?  Interesting theory.  No deal.

          Not assuming anything.  We demand the highest standard of scrutiny for gun rights.  And we'll have it eventually.  You can learn to live with it.

        •  Wow. (4+ / 0-)
          Recommended by:
          gerrilea, Tom Seaview, PavePusher, oldpunk

          You were actually doing almost okay there until

           

          Assuming either applies to the gun situation is typical bullheadedness of the gun nut contingent.
          you decided to pick a booger from your nose and flick it at me.

          But this is a problem:

          by your own move of diminishing the first part of the sentence
          That's not the commenter's own move. It's integral to the rulling in Heller: the prefatory clause does not limit the operative.

          "That the people have a right to bear arms for the defence of themselves and the State ..."- Vermont Constitution Chapter 1, Article 16

          by kestrel9000 on Wed Dec 05, 2012 at 11:49:29 AM PST

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          •  5 republican justices (0+ / 0-)

            anyway, respondents asked for that, assisted by every gun organization as amicus.  can't deny responsibility.

            Claiming the mantle of civil discourse while carnage surrounds you reminds me of Kurtz in Heart of Darkness.

            Difficult, difficult, lemon difficult.

            by Loge on Wed Dec 05, 2012 at 11:53:35 AM PST

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            •  Carnage doesn't surround me. (6+ / 0-)

              I live in Vermont, which is as blue as it gets, and yet I carry a concealed handgun, no permit required. Guns are a fact of life here. I don't think everybody carries a pistol, but seriously, I know a lot more people that do have at least one firearm than don't.  And we don't have a shit-ton of so called  "gun violence." We have more hunting accidents than violent crimes involving guns.

              That's us, though; I recognize and understand that we're different here.

              That same Republican court upheld Obamacare, you know....however narrowly, and not on the basis it was  proposed to be constitutional, but the Roberts court upheld it nonetheless.

              "That the people have a right to bear arms for the defence of themselves and the State ..."- Vermont Constitution Chapter 1, Article 16

              by kestrel9000 on Wed Dec 05, 2012 at 12:03:16 PM PST

              [ Parent ]

              •  then don't begrudge (0+ / 0-)

                Washington, D.C.'s right to self-govern -- even more blue.

                You want to cite NFIB v. Sebelius?  5 votes for the proposition that the health care market isn't interstate commerce and that giving states free money is "coercion."

                Difficult, difficult, lemon difficult.

                by Loge on Wed Dec 05, 2012 at 02:32:24 PM PST

                [ Parent ]

                •  That issue of self-governance was covered by (3+ / 0-)
                  Recommended by:
                  Tom Seaview, PavePusher, KVoimakas

                  the Civil War, was it not?

                  The supreme law of the land IS the constitution.  They can "self-govern" as long as they don't abrogate our unalienable rights.

                  Pretty simple, really.

                  Is the "justification" for X policy, regulation, etc meant to effectively ban the exercise of any right? If so, it can't be done.

                  They did make that perfectly clear.

                  -7.62; -5.95 The scientists of today think deeply instead of clearly. One must be sane to think clearly, but one can think deeply and be quite insane.~Tesla

                  by gerrilea on Wed Dec 05, 2012 at 03:47:21 PM PST

                  [ Parent ]

                  •  To the small extent you are speaking English, (0+ / 0-)

                    your reasoning is (a) circular, and (b) the relationship of the civil war amendments and bill of rights is more complex.

                    Difficult, difficult, lemon difficult.

                    by Loge on Wed Dec 05, 2012 at 05:00:53 PM PST

                    [ Parent ]

                    •  LMFAO, the not so sly insults do not change (2+ / 0-)
                      Recommended by:
                      PavePusher, oldpunk

                      the facts you are trying to obfuscate here.

                      "Let them self-govern", you said.  That is exactly what the South wanted and attempted to do, they lost.  

                      The idea that the relationship between the 13th, 14th and 15th Amendments vs the first 10 is a red-herring today. It has been decided in what is termed: "incorporation".

                      The doctrine of selective incorporation, or simply the incorporation doctrine, makes the first ten amendments to the Constitution—known as the Bill of Rights—binding on the states.
                      Here's a historical list of the evolution of our Common Law System:

                      http://www.uscourts.gov/...

                      Over time though, the Court began to use the "due process" clause of the Fourteenth Amendment to achieve the same end. The following is a list of all the provisions of the Bill of Rights which have thus far been incorporated by the U.S. Supreme Court to the states through the "due process" clause.
                      What is absent from that list is Heller & McDonald cases, but it is clear the 2nd A is now incorporated against the States.

                      Historical facts cannot be ignored:

                      http://jonathanturley.org/...

                      In a 5-4 decision, the United States Supreme Court has effectively struck down Chicago’s gun law and extended its earlier ruling on the Second Amendment to all states as a fundamental right. It is the decision that some of us anticipated as consistent with past rulings on fundamental rights. The impact will be considerable as all states will now have to respect the individual right of gun ownership under the Second Amendment.
                      The "anti-rights" position tries to obfuscate and misdirect this discussion away from the legal standard of Stare Decisis.
                      Latin. "to stand by that which is decided." The principal that the precedent decisions are to be followed by the courts.
                      Now, are you trying to subvert our system of law because you don't like the results? It appears to me that you are. And it is your arguments here that are invalid and circular.

                      -7.62; -5.95 The scientists of today think deeply instead of clearly. One must be sane to think clearly, but one can think deeply and be quite insane.~Tesla

                      by gerrilea on Wed Dec 05, 2012 at 05:35:13 PM PST

                      [ Parent ]

                      •  Lol (0+ / 0-)

                        What is absent from that list is Heller & McDonald cases, but it is clear the 2dA is now incorporated against the States.  The standard for that is "implicit in the concept of ordered liberty," and the only way that applies is if one is a total gun fetishist. That's because it took until the Rehnquist / Roberts court for the NRA Position to take hold.  But, by all means, keep talking, as you are Mary Rosh made flesh.

                        The South?  Read Sandy Levinson -- the Second Amendment's origins were about stopping the feds from quashing slave rebellions.  The civil war went the other way, which is partly why you don't make sense.  That, and your problems with subject verb agreement.

                        Difficult, difficult, lemon difficult.

                        by Loge on Wed Dec 05, 2012 at 10:53:15 PM PST

                        [ Parent ]

                        •  I don't know what history books you are reading (0+ / 0-)

                          clearly you've missed a few.

                          The 2nd A had nothing to do with slavery. In fact the origins of gun control were to keep the slaves FROM owning guns.  

                          http://articles.chicagotribune.com/...

                          On his journey through the legal process, McDonald said he came to understand more about his history and the "slave codes" enacted in Southern states during the Civil War that prohibited slaves from owning guns. After slavery was abolished, states adopted "black codes" that applied to freed blacks.

                          "There was a wrong done a long time ago that dates back to slavery time," said McDonald. "I could feel the spirit of those people running through me as I sat in the Supreme Court."

                          As for the claim that it took any Jurist this past century pushed by the NRA to make real what was already settle law is dishonest storytelling.

                          The Blackwell Report of 1918 makes clear the fears governments had over the universal awaking occurring against their tyranny. And it makes clear what they were going to do about it.

                          The US followed suit soon thereafter.  

                          As for how I write, it's how I speak, don't like it, demand I get a permit before I practice my right to free speech, will ya?

                          -7.62; -5.95 The scientists of today think deeply instead of clearly. One must be sane to think clearly, but one can think deeply and be quite insane.~Tesla

                          by gerrilea on Thu Dec 06, 2012 at 12:01:12 PM PST

                          [ Parent ]

                •  Why can't we begrudge? (3+ / 0-)
                  Recommended by:
                  PavePusher, kestrel9000, oldpunk

                  Not only is DC impeding people's constitutional rights, but the idiots running the joint are doing so in pursuit of policies that actually get people killed.  They must be stopped, and they will be.

                  •  let me guess (0+ / 0-)

                    you're happy to sell more guns to DC residents, or anyone else.  You are to gun policy as used car salesman are to lemon laws.

                    Jeffrey Goldberg is literally an anti-Palestinian thug (read his book if you doubt it - he was a prison guard).  I'm not interested in his opinion on this or any other subject.  But, regardless, my position is that he's free to try his luck before the DC city council.  There are, however, plenty of idiots running the joint, but somehow I doubt that your ilk would be an improvement.

                    Difficult, difficult, lemon difficult.

                    by Loge on Wed Dec 05, 2012 at 11:06:20 PM PST

                    [ Parent ]

                    •  Something like that. (0+ / 0-)

                      Though I doubt we'd get a whole lot of orders from DC.  Anyways, my personal reasons are my own.

                      I don't give a good goddamn what you think of Goldberg.  The only thing that matters here in that whole piece is what that idiot Vincent Gray had to say.  And personally, I'm sick and tired of your ilk getting young men and women killed.

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