Supreme Court to rule on whether the 14th amendment incorporates the 2nd

[jimmy olsen]

I hope they rule yes.

http://online.wsj.com/article/SB10001424052748704269004575073771717464954.html?mod=rss_Today%27s_Most_Popular

Handgun Case Creates Odd Alliances

Conservative and Liberal Groups Join in Urging the Supreme Court to Strike Down Two Illinois Gun Bans Next Month

By JESS BRAVIN

A Supreme Court argument on gun rights slated for next month is creating strange bedfellows between conservatives and liberals and pitting gun-rights groups against each other.

The court will consider March 2 whether the Constitution blocks states from restricting handguns. The case could further rework arms regulations in the aftermath of the court's 2008 decision to strike down a law for violating the Second Amendment for the first time.

That decision invalidated the District of Columbia's handgun ban for infringing what the court called an "inherent right to self-defense." The capital's peculiar status as a federal enclave, however, left unclear the implications for state law.

The Supreme Court will hear arguments over that question in challenges to handgun bans in Chicago and Oak Park, Ill., weighing whether the principle it set for Washington, D.C. also applies to states and local communities. The issue has scrambled traditional alliances, as gun-rights groups battle each other over how to argue the case, and some left- and right-leaning legal theorists unite over how to interpret the Constitution.

The court's four conservatives made up the 5-4 majority in the 2008 ruling.

Yet the Constitutional Accountability Center, a liberal advocacy group with ties to members of the Obama administration, is also urging the justices to strike down the Illinois gun bans. The center says the case allows the court to correct a poor constitutional interpretation from the late 19th century and that establishing a federal right to self-defense could open the door to progressive readings of individual rights in future cases.

Alan Gura, the conservative attorney who will present the lead arguments at the Supreme Court against the Illinois laws, embraces that theory as well, but with a different aim. He maintains that a victory in the gun cases could pave the way for future rulings bolstering property rights and libertarian views that limit government power.

The National Rifle Association, which also challenged the Illinois gun laws, shares Mr. Gura's ultimate goal, but Mr. Gura's legal arguments puts them at odds. The NRA is primarily interested in expanding gun rights rather than broader constitutional doctrines.

Justice Scalia wrote the majority opinion that invalidated Washington D.C.'s handgun ban, but in a 1997 book he wrote that the Second Amendment "properly understood, it is no limitation upon arms control by the states." Above, Scalia speaks at Ohio State University in Columbus, Ohio, in November.

In judging the justice's stances, most enigmatic may be that of Antonin Scalia, who wrote the majority opinion in the District of Columbia case.

In a 1997 book, "A Matter of Interpretation," Justice Scalia wrote that he viewed "the Second Amendment as a guarantee that the federal government would not interfere with the right of the people to keep and bear arms."

Yet, this next passage gives court watchers some pause. "Of course," Justice Scalia continued, "properly understood, it is no limitation upon arms control by the states."

Now a claim to the contrary—that the Second Amendment does limit arms control by the states—is pending. Justice Scalia declined to comment through a court spokeswoman.

Constitutional-law scholar Christopher Eisgruber, the provost of Princeton University, said that if Justice Scalia still believes what he wrote, he will let the local gun-control laws in Illinois stand. Mr. Eisgruber notes that conservatives have generally been skeptical of the reasoning liberal justices have employed to expand the sweep of individual rights under the Constitution.

Others, such as Harvard law professor Laurence Tribe, say that modern methods of constitutional interpretation would allow Justice Scalia to apply the Second Amendment to strike down state gun controls, regardless of its original meaning in 1791.

Before the Civil War, courts held that the Bill of Rights limited only federal powers, permitting states to impose greater restrictions on their residents. The 14th Amendment, ratified in 1868, gave Congress power to ensure states did not "abridge the privileges or immunities of citizens" or "deprive any person of life, liberty, or property, without due process of law."

During the backlash to Reconstruction, the Supreme Court took a narrow view of the 14th Amendment and in 1873 effectively mooted the "privileges or immunities'' clause. In 1886, the justices held that the Second Amendment did not limit state powers.

In the 20th century, the court came to view some rights as "fundamental" liberties protected from state infringement by the 14th Amendment's Due Process Clause.

Many constitutional lawyers believe that the court erred in 1873. Mr. Gura hopes that the justices will find that armed self-defense is a "privilege or immunity" of citizenship, resurrecting the clause from the constitutional graveyard.

[grumbler]

I don't see how the Supremes could come to the absurd conclusion that the Second Amendment is about self-defense, and then say that it does not apply to the states.  Scalia is a pretty bright guy, but even he cannot square the contradictions with all his previous opinions he created by deciding the Second Amendment the way he did.  Either the Second Amendment is about self-protection (and the USSC has so ruled), or Scalia was right before.  Both cannot be true, because one cannot have a federal right to protect oneself and not also have that right in every state.

If Scalia had been as smart as he thought he was, he would have guided the USSC to the correct interpretation in the DC case:  that people had an inherent right to self-protection that had nothing to do with the Second Amendment, which was simply the guarantee that the states could form well-regulated militias.  Then he wouldn't be caught in this trap of having to repudiate what he knows is correct:  that the Second Amendment, "properly understood... is no limitation upon arms control by the states."

But at least the gays cannot get married.

[Neil]

More and more ungovernable by the year.

[jimmy olsen]

More and more ungovernable by the year.

Care to elaborate?

[Faeelin]

If Scalia had been as smart as he thought he was, he would have guided the USSC to the correct interpretation in the DC case:  that people had an inherent right to self-protection that had nothing to do with the Second Amendment, which was simply the guarantee that the states could form well-regulated militias.  Then he wouldn't be caught in this trap of having to repudiate what he knows is correct:  that the Second Amendment, "properly understood... is no limitation upon arms control by the states."

Scalia's a smart guy, but he's absurdly political.

[grumbler]

Scalia's a smart guy, but he's absurdly political.

Exactly. If the Court had found that the people's right to self-defense came from an inherent right (which is a term they used and then kinda denied) to self-defense rather than from "the right of The People to Keep and Bear Arms" referenced in the Second Amendment, that would have strongly implied that the Roe v Wade finding of a "right to privacy" was also correct.  "Conservative intellectuals" like Scalia seem to have a hhard time swallowing that, for some reason.  I have never understood that, unless what they are objecting to is the outcome and so they feel have to attack the principles that lead inevitably to that outcome, whether their attacks are honest or not.

[Faeelin]

Exactly. If the Court had found that the people's right to self-defense came from an inherent right (which is a term they used and then kinda denied) to self-defense rather than from "the right of The People to Keep and Bear Arms" referenced in the Second Amendment, that would have strongly implied that the Roe v Wade finding of a "right to privacy" was also correct.  "Conservative intellectuals" like Scalia seem to have a hhard time swallowing that, for some reason.  I have never understood that, unless what they are objecting to is the outcome and so they feel have to attack the principles that lead inevitably to that outcome, whether their attacks are honest or not.

Incidentally, has Scalia ever said what the 9th amendment is about? I was reading a book ofh is about originalism and he's studiously silent about it.

[DontSayBanana]

Scalia's a smart guy, but he's absurdly political.

Exactly. If the Court had found that the people's right to self-defense came from an inherent right (which is a term they used and then kinda denied) to self-defense rather than from "the right of The People to Keep and Bear Arms" referenced in the Second Amendment, that would have strongly implied that the Roe v Wade finding of a "right to privacy" was also correct.  "Conservative intellectuals" like Scalia seem to have a hhard time swallowing that, for some reason.  I have never understood that, unless what they are objecting to is the outcome and so they feel have to attack the principles that lead inevitably to that outcome, whether their attacks are honest or not.

I think a problem with their position is that they feel so pressured to defend the constitution that they're more apt to dismiss legal sources that aren't codified, possibly because of the fear that "inherent" laws could actually countermand the constitution itself.

[Neil]

More and more ungovernable by the year.

Care to elaborate?

Attempting to avoid the restriction of weaponry?  Ungovernable.

Not to mention America's somewhat damaged attitudes with respect to health care and taxation.

[Ed Anger]

But at least the gays cannot get married.

Considering Martinius-ism, that is a good thing.

[Neil]

Considering Martinius-ism, that is a good thing.

True.  It must eat at him to know that gays are second-class-citizens at the centre of the world.

[garbon]

Considering Martinius-ism, that is a good thing.

[Ed Anger]

Considering Martinius-ism, that is a good thing.

I'll try to remember there are rational gays out there, while the Marti types , the Perez Hiltons and the Andrew Sullivans bray out there.

But it gets harder every time they bleat.

[garbon]

Like moderate muslims, we are completely forgotten.

[DGuller]

Like moderate muslims, we are completely forgotten.

But unlike them, gays are not a myth.