27 May

Dems Set Precedent for the “Borking” of Nominees

                                       

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This entry was posted in Uncategorized. Bookmark the permalink. Wednesday, May 27th, 2009 at 7:50 pm
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35 Responses to Dems Set Precedent for the “Borking” of Nominees

  1. kcanova says: 1

    Well one thing that the Republican Party and some of the Democratic party is her ruling on Second Amendment Rights (Maloney v. Como 2nd District court of Appeals). She stated in her ruling that the Supreme Court has ruled that the Second Amendment is a right but not a fundamental right therefore it does not apply to state and local governments.

    This is to be heard by the SCOTUS during the next session to which she could be sitting and does not have to bow out. She will have to be vetted big time.

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  2. JohnMcClane says: 2

    The speech that is drawing the most attention, the one leading Newt Gingrich to call her a sexist and a racist (because, I suppose, that 200 years ago the Latinas who wrote the Constitution were putting down the black race) is worth reading:

    http://www.nytimes.com/2009/05/15/us/politics/15judge.text.html?pagewanted=all

    She (Judge Cedarbaum) sees danger in presuming that judging should be gender or anything else based. She rightly points out that the perception of the differences between men and women is what led to many paternalistic laws and to the denial to women of the right to vote because we were described then “as not capable of reasoning or thinking logically” but instead of “acting intuitively.”

    and

    Justice O’Connor has often been cited as saying that a wise old man and wise old woman will reach the same conclusion in deciding cases. I am not so sure Justice O’Connor is the author of that line since Professor Resnik attributes that line to Supreme Court Justice Coyle. I am also not so sure that I agree with the statement. First, as Professor Martha Minnow has noted, there can never be a universal definition of wise. Second, I would hope that a wise Latina woman with the richness of her experiences would more often than not reach a better conclusion than a white male who hasn’t lived that life.

    Let us not forget that wise men like Oliver Wendell Holmes and Justice Cardozo voted on cases which upheld both sex and race discrimination in our society. Until 1972, no Supreme Court case ever upheld the claim of a woman in a gender discrimination case.

    and finally:

    Each day on the bench I learn something new about the judicial process and about being a professional Latina woman in a world that sometimes looks at me with suspicion. I am reminded each day that I render decisions that affect people concretely and that I owe them constant and complete vigilance in checking my assumptions, presumptions and perspectives and ensuring that to the extent that my limited abilities and capabilities permit me, that I reevaluate them and change as circumstances and cases before me requires. I can and do aspire to be greater than the sum total of my experiences but I accept my limitations. I willingly accept that we who judge must not deny the differences resulting from experience and heritage but attempt, as the Supreme Court suggests, continuously to judge when those opinions, sympathies and prejudices are appropriate.

    One thing that did in Judge Bork was his response that his “controversial” opinions were just “legal musings.”

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  3. robert m. simon says: 3

    Despite the smarmy comments of some reminding those “evil white men” of their historical mistakes,I don’t understand how that lets her off the hook for her arrogant statement that a Latina woman would issue a wiser decision when confronted with the same issue as a white man.If she can get away with that statement,surely I can make the comment that white males of European extraction have a better perception of true freedom than Latinos whose historical heritage includes too many authoritarian regimes.

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  4. Hard Right says: 4

    John her statement is a racist statement. There is no spinning it like you have tried. And yes, she is also sexist. The pst sins of others do not excuse her.
    However, that is but one of many concerns I and others here have about her.
    She feels her personal opinions should be law and any other criteria be damned.

    I don’t care what her race is.
    I don’t care what her gender is.
    I don’t care about her growing up rich or poor.
    I just care about her abiding by the Constitution/law in her decisions.
    That seems to be a problem for her as has been shown.

    BTW, I am old enough to remember what they did to Bork and how they celebrated their successful smear afterwards. Leftists are evil fascists.

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  5. ditto says: 5

    I agree completely with you Hard Right. Conservatives need to stick to their guns and nail her on her rulings inconsistencies with the Constitution. The majority of the public is against judicial activism, so keep rubbing her nose in it.

    Screw Schumer.

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  6. bill-tb says: 6

    Why deprive the Court of their village idiot? She has such a compelling life’s story. I mean dirt poor to village idiot, she has shown how people can do a lot on affirmative action.

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  7. philly_nj says: 7

    “*Senator Schumer (D-NY) and the White House are both warning the GOP that we risk damage to our party by opposing Sotomayer.”

    When the Democrats are offering strategic advice my instincts tell me they are afraid of a fight.
    Oppose their candidate, drag all her skelletons out of the closet, expose them and pick em bare.
    .

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  8. Aleric says: 8

    I sent an e-mail to my Senator Mitch McConnell and told him in bold letters, FILIBUSTER. Grill her like she is a raw hamburger on a grill. If she can’t take it she needs to go back to working for the ACLU.

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  9. JohnMcClane says: 9

    The majority of the public is against judicial activism
    Like Brown vs Topeka BOE?
    Griswold vs Connecticut?
    Mapp vs Ohio?
    one man, one vote?

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  10. JohnMcClane says: 10

    Don’t forget the Impeach Earl Warren campaign.
    http://upload.wikimedia.org/wikipedia/commons/d/dd/Impeach_Warren.png

    PS> I left out the judicial activism of Loving vs. VA.

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  11. Dc says: 11

    You don’t have to go back to Bork to find examples of how Dems set the tone for nominees grilling.
    Alito was surely such an example. Personal attacks, etc.

    Dems have also set a bad precedent for former executives getting involved in active media campaigns to affect policy of a sitting president. (Carter, Clinton and Gore). Now they complain because Cheney is speaking out and want everyone to shut up, give them what they want, and move on.

    Sorry….ain’t gonna happen.

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  12. Hard Right says: 12

    Ummmm John, got anything from say, the last two decades? Not to mention those so called examples you gave are questionable as to whether or not they are judicial activism.
    Keep trying to spin. You might get it right eventually.

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  13. @Hard Right:

    You’ll notice that John didn’t mention Kelo v. City of New London as an example.

    Wonder why….

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  14. Hard Right says: 14

    Because if it doesn’t fit the leftist POV it doesn’t exist.

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  15. JohnMcClane says: 15

    Aye Chihuahua and Hard Right, by their line of argument, would seem to think Brown Vs. Topeka BOE and Loving vs VA are examples of JUDICIAL ACTIVISM.
    Had their views been on the Supreme Court in the 1950s and 60s…..

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  16. @JohnMcClane:

    Aye Chihuahua and Hard Right, by their line of argument, would seem to think Brown Vs. Topeka BOE and Loving vs VA are examples of JUDICIAL ACTIVISM.
    Had their views been on the Supreme COurt in the 1950s and 60s…..

    You’re basing that presumptuous assumption on what exactly?

    What views have I expressed here which would lead you to a conclusion about what my opinion may or may not be?

    You seem to be willing to reach your arm deep into the hornet’s nest prior to finding out if it is occupied.

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  17. Hard Right says: 17

    Hey John, she’s a member of La Raza. You know, that racialist hispanic group? Care to claim she isn’t racist now?

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  18. trizzlor says: 18

    It’s strange that Republicans who claim that they should be allowed to be proud of their heritage without being considered racist are now focusing so much vitriol on this statement. Let’s try it another way: a judge is discussing religious freedom in a boys school, he says “I would hope that a wise Catholic man with the richness of his experiences would more often than not reach a better conclusion than a woman who hasn’t lived that life.” and then goes on to point out women who have made sound decisions in these types of cases. Would this statement cause an outburst in the anti-religious extremes of the left? Probably. But would it actually be wrong given the context? Absolutely not.

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  19. But would it actually be wrong given the context? Absolutely not.

    Actually, yes, it would be wrong in that setting as well.

    Racism, sexism, and bigotry are always wrong and unacceptable, especially from someone who wants to occupy a seat on the highest court of the land.

    What if your same hypothetical judge (a white guy who was being considered for a Supreme Court appointment) had said: “I would hope that a wise white man with the richness of his experiences would more often than not reach a better conclusion than a black woman who hasn’t lived that life” then he never would have made it through the vetting process to have even been nominated in the first place.

    What concerns me as much as Ms. Sotomayor’s demonstrable record of racism is her view that gun ownership is not a constitutional right.

    What concerns me is that Ms. Sotomayor has a terrible track record of reversals on appeal.

    What concerns me also about Ms. Sotomayor is her view that extortion is OK and private property rights don’t matter as demonstrated in the Didden v. Village of Port Chester case.

    What also concerns me about Ms. Sotomayor is her position in the Ricci v. DeStefano case which was clearly decided not on the law, but on feelings or life experience.

    What concerns me about Ms. Sotomayor is the fact that she has a plethora of provable troublesome issues and was apparently put forward based on gender and race rather than ability and “content of character.”

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  20. trizzlor says: 20

    @Aye Chihuahua

    What concerns me as much as Ms. Sotomayor’s demonstrable record of racism is her view that gun ownership is not a constitutional right.

    You mean the case over a man’s right to bear a nunchuk? This is an obvious lie as Sotomayor’s view was that gun ownership is a constitutional right that cannot be curtailed only by the federal government. SCOTUSblog lists a number of cases moving through the courts to decide explicitly if gun ownership is a “fundamental” right; Sotomayor’s decision was based on a lack of precedent to the contrary and a perfect example of not legislating from the bench.

    What concerns me is that Ms. Sotomayor has a terrible track record of reversals on appeal.

    Even the Democrats didn’t try to paint Justice Alito as having 100% reversals (which he did at the time) because this measurement is just plain ridiculous. Her “track record” over a measly 5 cases is below the national average, and anyone with an iota of legal experience has dismissed this line of attack as the worst example of cherry picking; you might as well start looking at how many of her cases were reversed on a Wednesday to get even better odds.

    What concerns me also about Ms. Sotomayor is her view that extortion is OK and private property rights don’t matter as demonstrated in the Didden v. Village of Port Chester case.

    The case looks extremely mundane, and here‘s some analysis from Forbes indicating that it’s a fairly straightforward “he-said-she-said” debate where the plaintiff couldn’t prove extortion; another example of judging based on the facts at hand rather than on conjecture.

    What also concerns me about Ms. Sotomayor is her position in the Ricci v. DeStefano case which was clearly decided not on the law, but on feelings or life experience.

    Again, just the opposite – Sotomayor decided based on a strong precedent in support of the Title VII 4/5ths rule (rates of passing must be within 80% for all racial groups); in particular, Bushey v New York State where the courts decided in favor of a public employer taking “neutral but racially-conscious” actions (they were curving exam scores for different races differently). You may not agree with that decision (frankly, I’m not too comfortable with it) but the precedent was clearly there.

    Looks like one thing that doesn’t concern you is actually understanding the facts of these arguments. Through all your talk about “judicial activism”, you bring up three cases where you would prefer Sotomayor to either reverse precedent or invent it.

    I find it funny that you guys are so up in arms over such a non-controversial and fairly constructionist pick. I know you like to paint Obama is a crypto-Marxist, but this is just another one of his middle of the road ho-hum decisions made from left of center but essentially keeping the status quo.

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  21. MataHarley says: 21

    triz, INRE the 100% reversal record on Alito you again quoted here, read my comment again on the other thread.

    Aside from Beard v Banks, only one of the two you are referring to were reversed, and Planned Parenthood of PA v Casey was a “sorta”. It was a case of dissent on portions of the law ruled on, not all.

    But then, Alito’s two cases up before the SCOTUS in 16 years vs Sotomayor’s 5 cases done and 2 pending (totalling 7) in her 10.5 years would take us back to the original argument you wanted to make of the amount that comes before the High Court over time… doesn’t it? What was that “more experience in 100 years” DNC talking point again?

    INRE Sotomayor and the RKBA, you said:

    You mean the case over a man’s right to bear a nunchuk? This is an obvious lie as Sotomayor’s view was that gun ownership is a constitutional right that cannot be curtailed only by the federal government.

    I’m not sure if you just had typos there, but that’s not Sotomayor’s view at all. She was, in a fashion, asserting the state’s right to apply additional restrictions to arms. Or, as SCOTUSblog puts it:

    The Maloney decision (Second Circuit docket 07-581) involves the next major issue on the Constitution’s Second Amendment, which guarantees a “right to keep and bear arms.” The issue is whether that Amendment applies to state and local government, thus restricting their power to control individuals’ private possession of pistols and other guns. The Supreme Court ruled last year, in District of Columbia v. Heller, that the Amendment protects an individual right to have a gun, for self-defense, in the home.

    The Court, however, did not settle whether the Amendment operates against any level of government other than the federal government and a federal entity, the District of Columbia. The Second Circuit, in the Maloney case, ruled that prior Supreme Court precedent saying that the Amendment only applied at the federal level is still binding law. Sotomayor was a member of a three-judge panel that issued the unsigned ruling.

    She is, in essence, saying all fine and good with the 2nd Amendment, but that’s got nothing to do with us at the state level.

    And I guess it’s now official that she has two pending cases in the SCOTUS… Ricci (pending opinion) and Maloney (scheduled for June 26th). That’s now seven official decisions, and at least one more possible…

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  22. trizzlor says: 22

    @MataHarley: Yes, this whole thing is a bit circular. Strictly speaking, Alito was reversed twice; you’re right that in spirit the second was a strange mix – I think I need a few more drinks before I can start debating weather his “normalized” reversal rate should be 50% or 75% :) The point is that simply looking at percentage of cases reversed is a non-serious argument (but it’s one that’s easy to grasp, so I assume it won’t die easily).

    As for Maloney, I see how my sentence isn’t clear. I was trying to say that she certainly recognized a right to bear arms, but only mandated at the federal level (i.e. not a Fundamental right in the legal sense of the term). From the number of cases going to the Supreme Court that deal with this issue directly, I think it’s fair to say that she would have had to make precedent to rule in favor of Maloney and she chose, instead, to follow the precedent that was allegedly set by Heller. Again, I have a feeling that confusion about the legal and colloquial definition of “fundamental right” is going to make this decision much more controversial than it is.

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  23. MataHarley says: 23

    triz on Ricci: Again, just the opposite – Sotomayor decided based on a strong precedent in support of the Title VII 4/5ths rule (rates of passing must be within 80% for all racial groups); in particular, Bushey v New York State where the courts decided in favor of a public employer taking “neutral but racially-conscious” actions (they were curving exam scores for different races differently). You may not agree with that decision (frankly, I’m not too comfortable with it) but the precedent was clearly there.

    Dang glad to hear you aren’t comfortable with it. But let’s parse the arguments here… the defense and your echo.

    This is about the city claiming they threw out the test results because they didn’t want to risk a disparate impact lawsuit by not having a minority qualify. Basically, they were doing litigation damage control. But there is ample evidence to the contrary that there is more that meets the eye here. I will say I’ve read some legal blogs saying she presents cogent arguments. But then, the base argument is… should a government entity be allowed to trample rights in favor of affirmative action merely to avoid litigation potential costs?

    Whether or not this oral defense argument holds up before the Supremes will be one to be seen. But triz… you are not anywhere in the clear on your opinion on this. It is not cut and dried, and your arguments pale before reality.

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  24. MataHarley says: 24

    More clarification on my above comment SCOTUSblog INRE Ricci:

    However, the Court may provide a basis for a more accessible criticism – that the panel ignored evidence in the record that showed that New Haven’s conduct was illegal under anyone’s view of the law.

    That is, in the Supreme Court briefing, all the parties agreed that if New Haven declined to implement the results of its promotion test because it did not want to promote the best performers because they were white or Hispanic, then that was clearly illegal. New Haven says that this isn’t what happened, that it was simply trying to avoid a violation of Title VII’s disparate impact provision. And much of the debate in the Supreme Court is whether New Haven’s conduct was legal assuming that motivation.

    But at the same time, the plaintiffs in Ricci have argued that there was substantial evidence in the record that avoiding disparate impact was not New Haven’s actual motivation. Instead, they insist that New Haven was acting out of “racial politics” and good old-fashioned intentional racial discrimination.

    And oh yes… you’re doing well on civil debate, triz. Don’t muck it up with Wiki interpretations. I highly doubt there’s legal types playing the Wiki contribution game. Do stick to some more credible sources, please.

    And another oh yes… there is no sense to a “fundamental right” or a “mandate” to bear arms “at the federal level”, as you said, for an inherent right (not mandated) that shall not be infringed… by federal or state law.

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  25. trizzlor says: 25

    @MataHarley: Agreed, if New Haven was actually acting out of “racial politics” then this is illegal. Assuming this was not the case, Bushey is strong precedent to judge in favor of New Haven. I admit I haven’t read the actual oral arguments, but neither have I seen any compelling evidence to suggest that New Haven was motivated by something other than Title VII.

    Personally, I think the New Haven decision to throw out the test completely based on the assumption that it is racially preferential is much better than outright curving each racial group. I don’t think it’s a stretch that certain tests can be racially biased (my mom was an immigrant and a brilliant mathematician; the one problem she got wrong on her math GRE was about baseball, which she had never bothered to learn the rules of and so couldn’t decipher the question :) ); but adjusting for the myriad of socio-economic covariates in such a crude way as in Bushey is wrong and likely promotes people inappropriately. Back to the point, I do think that the “racial politics” angle will be difficult to prove because New Haven was, in fact, at great risk of violating Title VII by keeping the test.

    The scary bit is that we may never find out:

    The criticism would be blunted, of course, if the liberals on the Court (including Justice Souter, whom she would replace) disagree with the majority’s assessment of the panel’s performance. Moreover, how much purchase such a criticism would find may well depend on how the Court writes its opinion. And now that it knows that its opinion will have an affect on the confirmation proceedings, the Court may well write its opinion differently, out of deference to what in all likely will be a future colleague or out of a desire to avoid seeming political entanglements.

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  26. MataHarley says: 26

    Scary sheeeeet indeed, triz. Interesting contribution on the political termperment of the court. Killer blog, SCOTUSblog is. Many viewpoints, and all get the brain cells in action.

    But with the “confirmation” pressure on their opinion language comes my comment that if SCOTUS reverses Ricci, there is ample reason to kick Sotomayor to the curb.

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  27. trizzlor says: 27

    I was referring to Wikipedia for the definition of Fundamental right; for that their definition seems sound – Fundamental rights are those that have been incorporated into the 14th Ammendment and therefore cannot be infringed upon at the federal and state level. From what I can tell, the 2nd Amendment has not been deemed Fundamental by the Supreme Court and thus there was no precedent to treat it as such. A recent decision by the 9th Circuit is attempting to change this and I think it’s the right way to go.

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  28. trizzlor says: 28

    @MataHarley: Indeed, this whole thread has been a real education. It’s 2AM here and I’m genuinely excited thinking about how these rulings will get interpreted in the coming weeks. Cheers!

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  29. ditto says: 29

    @ trizzlor

    The Constitution does not mention the words “Fundamental” anywhere, much less use it as a description for the rights (immunities) that the Constitution RECOGNIZES. (Which is can never be construed to mean “grants”). The Fourteenth Amendment, Section 1, declares that “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.”

    The 14th is a further protection of the privileges and rights of the Citizens from the States. It is not as you read it a blanket statement allowing all rights, privileges or immunities to be taken away by the States so long as the condition of due proccess of the law is followed. Following are the words of John Bingham of Ohio who drafted the 14th amendment that was passed by both houses of Congress, (and further Ratified on June 13, 1866:

    “Many instances of State injustice and oppression have already occurred in the State legislation of this Union, of flagrant violations of the guarantied privileges of citizens of the United States, for which the national Government furnished and could furnish by law no remedy whatever. Contrary to the express letter of your Constitution, “cruel and unusual punishments” have been inflicted under State laws within this Union upon citizens, not only for crimes committed, but for sacred duty done, for which and against which the Government of the United States had provided no remedy and could provide none

    The Bill of Rights is the first 10 amendments to the Constitution, which spell out the immunities of the citizens: http://www.archives.gov/exhibits/charters/bill_of_rights.html

    “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”

    The Bill of Rights are Immunities reserved of the people (Which means they belong to the people, NOT the States or Federal government). Just as the 17th is reserved to each State.

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  30. trizzlor says: 30

    @ditto: I don’t think I fully understand your post, so I hope we’re not talking past each other. First, I’m glad you pointed out the distinction between “recognizes” and “grants”, I think a lot of the confusion surrounding the 14th amendment stems from this. However, while I agree with you that “The 14th is a further protection of the privileges and rights of the Citizens from the States” and never argued otherwise, it is not clear (nor do you make it clear) what rights specifically the 14th Amendment recognizes. In particular, the 14th Amendment states:

    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.

    But does not make explicit how much of the Bill of Rights is incorporated under “life, liberty, or property”; the question then becomes which of the rights are incorporated and the explicit term “Fundamental” comes from the first decision in which the court ruled on this issue:

    the Supreme Court ruled for the first time that the First Amendment freedoms of speech and press “are among the fundamental personal rights and liberties protected by the due process clause of the Fourteenth Amendment from impairment by the States.” [Gitlow v. New York, 268 U.S. 652 (1925)]

    The Supreme Court did not say in the Gitlow decision that all the protections of the Bill of Rights applied to the states. But the majority of justices did agree that at least some of these rights limited the powers of state and local governments.

    [source: Constitutional Rights Foundation]

    The same link at the CRF goes on to detail the rights that have been incorporated (which they cleverly coin the “2nd Bill of Rights”) and the 2nd Amendment is notably absent, which is why 9th Circuit decision (search for “fundamental”) I discussed earlier is an important first step.

    And here is an (admittedly long) passage from the Heller decision that Sotomayor relied on which puts everything in context:

    “It should be unsurprising that such a significant matter has been for so long judicially unresolved. For most of our history, the Bill of Rights was not thought applicable to the States, and the Federal Government did not significantly regulate the possession of firearms by law-abiding citizens. Other provisions of the Bill of Rights have similarly remained unilluminated for lengthy periods.This Court first held a law to violate the First Amendment’s guarantee of freedom of speech in 1931, almost 150 years after the Amendment was ratified, see Near v. Minnesota ex rel. Olson, 283 U. S. 697 (1931), and it was not until after World War II that we held a law invalid under the Establishment Clause, see Illinois ex rel. McCollum v. Board of Ed. of School Dist. No. 71, ChampaignCty., 333 U. S. 203 (1948).” (53-54)

    Although we do not undertake an exhaustive historical analysis today of the full scope of the Second Amendment, nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms.” (54)

    “We also recognize another important limitation on the right to keep and carry arms. Miller said, as we have explained, that the sorts of weapons protected were those ‘in common use at the time.’ 307 U. S., at 179. We think that limitation is fairly supported by the historical tradition of prohibiting the carrying of “dangerous and unusual weapons.” (55)

    [ source: SCOTUSblog ]

    and again from SCOTUSblog to re-iterate:

    But, only about a year after the Supreme Court’s landmark ruling on gun rights in District of Columbia v. Heller, the Justices could soon be faced with one of the most significant issues left undecided by Heller. That is whether the Second Amendment’s guarantee (as interpreted in Heller) of a personal right to have a gun restricts the power of state and local governments to regulate personal weapons (as it already does for the federal government).

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  31. MataHarley says: 31

    triz, without all the gobbly gook legalese, one can safely say that Sotomayor was arguing that the feds assumed power to regulate RKBA did not prohibit the state from having their own regulations.

    And obviously, in that lies the danger that the government gets to “choose” what weapons are “dangerous and unusual” weapon (as was lifted from Heller…).

    First to the types of weaponry “fitting” that description. I believe the key in that lies in the statement “common at the time”. Many construe this to mean we should only have single fire, black powder muskets and bayonets.

    To countermand that thought, the intent of the Framers INRE the RKBA had to do with allowing a citizenry to be armed with common weapons of the era. Today, the range of common weapons is vastly different. What may seem “dangerous” to a judge on a bench is an old friend in the hands of a veteran. What the bench considers an “assault weapon” is a piece of equipment in pistol competition world (i.e. Action Pistol and the Olympic shooters). But the Framers’ notion of a citizen militia was one that could protect itself against a corrupt government, and thus requires citizens the access to common weaponry, as soldiers may carry, as personal arms.

    INRE your comment:

    However, while I agree with you that “The 14th is a further protection of the privileges and rights of the Citizens from the States” and never argued otherwise, it is not clear (nor do you make it clear) what rights specifically the 14th Amendment recognizes.

    The individual States *must* recognize, at minimum, the federal Bill of Rights. They cannot make a law in direct contradiction to federal laws. And in fact, each state has their own bill or declaration of rights. Many of which echo much of the federal.

    But the “it is not clear what rights specifically the 14th Amendment recognizes” makes if wonder if you prefer a laundry list of “rights” they will recognize. And this is something that cannot, and never should, be done. To itemize rights is to insinuate that what isn’t on the laundry list is no longer a right, and restricts the category.

    Frankly, I think both the Bill of Rights, and Section 1 of the 14th Amendment are abundantly clear.

    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.

    “Privileges and immunities” is a very specific statement, and found under Article VI of the Constitution in Section 2.

    The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States.

    At least twice… Article IV and the 14th Amendment… these are rights not to be infringed, and are in force equally across all states. From legal-dictionary’s brief summary on Article IV’s use of Privileges and Immunities linked above:

    The purpose of the clause was to facilitate the unification of the independent states into one nation so that citizens traveling throughout the country would receive the same treatment as the citizens of the states through which they passed.

    The privileges and immunities that are protected under Article IV include the right to receive protection from state government; the right to acquire and possess all kinds of property; the right to travel through or reside in any state for purposes of trade, agriculture, or professional endeavors; the right to claim the benefit of the writ of Habeas Corpus; the right to sue and defend actions in court; and the right to receive the same tax treatment as that of the citizens of the taxing state.

    This clause forbids a state from unjustly depriving citizens from other states of any rights derived from state citizenship solely on the basis of nonresidence. Yet the Supreme Court has never interpreted it to preclude all deferential treatment of in-state citizens. As a result, the Privileges and Immunities Clause does not bar differential state standards governing the practice of certain professions. Out-of-state doctors, lawyers, and other professionals may be required to prove their competency based on standards that are higher than those applied to their in-state counterparts. Tuition rates at public Colleges and Universities are typically lower for in-state students. Out-of-state residents are charged more for hunting and fishing licenses than are in-state residents. Such discrepancies are generally accepted as justifiable because they advance legitimate state interests.

    The Supreme Court has struck down state laws that infringed rights guaranteed by the Privileges and Immunities Clause of Article IV. In Hicklin v. Orbeck, 437 U.S. 518, 98 S. Ct. 2482, 57 L. Ed. 2d 397 (1978), the Court ruled that the state of Alaska failed to show a reasonable purpose for a state law that required employers to give a hiring preference to in-state residents who applied to work on the construction of oil or gas pipelines.

    However, the Supreme Court has rarely used the Privileges and Immunities Clause of Article IV to invalidate discriminatory laws. The due process and Equal Protection Clauses of the Fourteenth Amendment are commonly applied to determine the validity of state laws that unjustly discriminate between residents and nonresidents of a state.

    Their take on references to the Privileges and Immunities clause in the 14th Amendment is this:

    This clause protects a person’s rights as a citizen of the United States from unreasonable State Action or interference.

    The privileges and immunities of U.S. citizenship that cannot be unreasonably abridged by state laws include the right to travel from state to state; the right to vote for federal officeholders; the right to enter public lands; the right to petition Congress to redress grievances; the right to inform the national government of a violation of its laws; the right to receive protection from violence when in federal custody; the right to have free access to U.S. seaports; the right to transact business with and engage in administering the functions of the U.S. government; the right to have access to federal courts; and the privilege of the writ of habeas corpus.

    US Constitutional rights apply equally thru all the individual states. Period. However the Supreme’s follow a narrow interpretation of the 14th Amendment’s P & I clause, and use the Equal Protection Clause when they question an individual state’s action as Constitutional.

    The Court upheld the Louisiana Monopoly law, ruling that the Privileges and Immunities Clause had limited effect because it reached only privileges and immunities guaranteed by U.S. citizenship, not state citizenship. Because the law in question dealt with states’ rights, the Fourteenth Amendment had no effect.

    It is for this reason the Ricci firefighters are using not only a Title VII violation of their rights, but also Equal Protection as an argument.

    But Maloney needs to be brought before the SCOTUS because the Circuit Courts… never 2nd Amendment friendly anyway… now try to restrict the RKBA, as held by Heller, under the guise of not applicable when you’re dealing with the state instead of the feds. This is just another way of trying to escape the straight forward language that if the federal government has guaranteed a right nationally, the state’s can’t ignore it in their own back yard.. saying “doesn’t apply to us”.

    And yet, Sotomayor says just that. Maloney should straighten out this baloney once and for all, giving the states and the Circuit Courts their much needed slap on the wrist.

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  32. trizzlor says: 32

    @MataHarley: I still don’t see anywhere in your statements how the 14th Amendment applies to the Bill of Rights explicitly or the 2nd Amendment specifically. As a matter of fact, if the Bill of Rights applied, why would the states need to have a mirror State Bill of Rights? Your definitions of “privileges and immunities” does not contain the RKBA, and the legal-dictionary interpretation makes it clear that this clause was meant to prevent states from infringing on the rights of non-state-citizens, not in propagating the bill of rights explicitly.

    I admit I’m picking this stuff up on the fly and there are too many court decisions to wrap my head around completely, but your main point that “US Constitutional rights apply equally thru all the individual states” is in direct contradiction with statements INRE Haller: For most of our history, the Bill of Rights was not thought applicable to the States and … whether the Second Amendment’s guarantee (as interpreted in Heller) of a personal right to have a gun restricts the power of state and local governments to regulate personal weapons (as it already does for the federal government).

    This is an interesting debate because I’m personally quite happy with gun rights; I agree with the 9th circuit decision that the RKBA falls under the 14th Amendment, and I think that deciding on what weapons were “used at the time” is the path to a relativist swamp. What I see in the Sotomayor decision, however, is the simple observation that deciding if the RKBA is fundamental falls outside the scope of the case and that current precedent does not prevent the states from infringing on that right. It’s not a surprise to me that the 9th Circuit was the one to make the bold move of incorporating it.

    As for the laundry list, I completely agree, which is why I think the Constitutional phrasing of “shall not infringe upon” rather than “shall grant” is so uniquely elegant.

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  33. MataHarley says: 33

    triz, the 14th Amendment applies because states cannot restrict any rights the Constitution has applied nationally. Sotomayor and the courts try to dodge that by saying the federal law simple doesn’t apply to the states, which is incorrect on it’s face. It does so by limiting their power to regulate what the federal Constitution deems is an inalienable right.

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  34. trizzlor says: 34

    @MataHarley:

    the 14th Amendment applies because states cannot restrict any rights the Constitution has applied nationally

    This is either not true or not in the passages you quoted: The 14th Amendment is clear that states cannot restrict a few specific rights (later deemed fundamental) which primarily deal with interstate travel and commerce and do not mention the RKBA at all. Otherwise, why would the SCOTUS in Heller say that the RKBA was not though applicable to the states, and that they would not reconsider this (keep in mind Heller was decided in DC and so applied only at the federal)? If Scalia’s words themselves are too vague, almost every interpretation of the case I have read concludes something like the following (this time from Reason):

    Most significantly, Scalia’s decision neglected to incorporate the individual right to gun ownership to the states through the Fourteenth Amendment. That means that for practical purposes, the only people directly affected by the ruling are the 600,000 residents of Washington, D.C., and the handful of others living in protectorates of the federal government.

    I really want to get to the bottom of this, but I’m starting to feel like I’m disabled or something for not getting your point. Let me know when this starts to go ad nauseum (if it hasn’t already) :)

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  35. MataHarley says: 35

    The states cannot restrict ANY Constitutional right, triz. They are not specifically related to interstate travel or anything as mentioned in the 14th Amendment. As I said, there is no laundry list of “rights” as that would mean anything *not* in the laundry list is no longer a “right. The state simply cannot usurp federal Constitutional rights under *any* circumstance. And now they are sly, trying to play the legalese word game… saying federal RKBA just doesn’t apply to them. But it does, in the extent they cannot infringe on a federal Constitution right.

    What is at issue in Maloney is whether the states, who consider their laws as separate to federal laws… as they should… are allowed to dilute a Constititional right that is applied equally throughout all states. NY’s law banning nunchucks makes it to the Supremes because they cannot dodge the obvious questionable divide. Consider this… NY resident can’t own nunchucks, but that law doesn’t apply to nunchuck owners of neighboring states who may slide thru on visits, competitions, exhibitions, etc. Precedents have knocked down tax breaks afforded only to non-state tax filers and not to in state residents with similar arguments… unConstitutional. The Supreme’s have avoided other Constitutional issues by refusing to hear on lower courts’ technicalities and rulings, i.e. Bushey, but they can’t dodge this one. And I’m sure they really wanted to…

    Wouldn’t burn your brain cells much on this right now. I believe this is on the court’s docket in late summer, early fall, if I’m not mistaken. So this will be an issue here on FA then, and in more depth. So pocket your thoughts until the SCOTUS orals start.

    An eight judge SCOTUS better be the only ones hearing this, since Obama and the Dems are trying to rush the Sotomayor appointment before the summer Congressional vacation hits. And she needs to recuse herself. And I wonder how they would figure out an 4-4 opinion without a recused Sotomayor.

    ReplyReply

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