Supreme Court has voted to overturn abortion rights, draft opinion shows

[Admiral Yi]

Absolutely.  But these balancing tests cut both ways don't they?  One group of justices can find an exception to the absoluteness of a given right, and another group can find the opposite.

Balancing tests require an act of judgment to do the balance, so yes they can lead to different conclusions.  But there is a long history of such tests and what constitutes compelling state interests so it is not purely a discretionary effort.

Had the Court applied a balancing test in the NY Gun case, it could not have reached the result - striking the entire law down on its face.  The NY law provided that a conceal carry handgun license would be issued for proper cause shown.  On its face that is a reasonable regulation - the question would be how the cause requirement was applied in individual cases. That would mean the gun club plaintiffs could have brought an "as applied" challenge - i.e. not challenging the law generally but rather the reasonability of its application to their individual cases.  On a balancing test, they might have won that case but the law would still remain intact for other reasonable applications.

The Court, however, had an agenda, which was not to decide the merits of the case of these particular individuals, but to overturn the New York legislature judgment and require them to apply a shall issue carry license across the board. The only way the majority felt they could do that is by dispensing with the balancing test and making the right absolute.

Balancing test apparently has a very specific meaning which I am unfamiliar with.

What I meant was just the general notion of adjudicating the tension between the absolute rights of the constitution and state interests.

[The Minsky Moment]

What I meant was just the general notion of adjudicating the tension between the absolute rights of the constitution and state interests.

That's what a balancing test is about.  Over time the court has developed particular ways of describing and applying such a test.

[The Brain]

This outsider finds it a bit noteworthy that the US discusses points of law all the time, but the actual legal situation and history of, for example, the 2nd amendment appears to be an inconsistent mess. I understand that the US likes its tradition of the Constitution etc, but from a functioning state perspective it would make sense to start over and make a system more like those of some other countries.

Law is politics, and pretending that it's not just leads to politics with extra steps.

[The Minsky Moment]

The common thread between the gun case, the EPA case, the school prayer case, and the particular way the abortion case is decided is that we are witnessing the full emergence highly activist, non-deferential court fully ready and willing to make new law and new conceptions of law where it sees fit.  The hallmarks and rhetoric of conservative jurisprudence from the 60s through the 90s - judicial restraint, judicial deference, due respect to other branches and sovereigns, "umpiring" - have been cast aside except when ther ritual invocation is helpful to achieving an outcome.  And at the same time that rhetoric is increasingly being adopted and used by the left-leaning minority on the Court.

[Admiral Yi]

That's what a balancing test is about.  Over time the court has developed particular ways of describing and applying such a test.

Asoka.  I had gotten the impression "balancing test" referred only to cases where the court said the law was at heart OK but had to be modified.

[alfred russel]

Given that to do so you had to invent a scenario where people are magically given illegally procured guns, I think you proved exactly the opposite.

There is no "textualist" approach that can get to the strike down conclusion - it requires adding in a bunch more assumptions.

"the right of the people to keep and bear Arms, shall not be infringed"....I really don't think I invented a scenario where people were magically given illegally procured guns...at least I didn't intend to. But the text of the amendment is quoted in this post. If you only want to rely on a textualist approach, it isn't hard to see how that can get you to a strike down conclusion.

"A well-regulated militia being essential to the security of a free State..."  I really don't think that your scenario creates a well-regulated militia, and so the Second Amendment would not apply.

It isn't clear, looking just at the text, that the rights to keep and bear arms that should not be infringed are only relevant in the event a well regulated militia is being created.

[grumbler]

It isn't clear, looking just at the text, that the rights to keep and bear arms that should not be infringed are only relevant in the event a well regulated militia is being created.

It isn't clear, looking just at the text, how anyone with a shred of intellectual integrity and ability could conclude that an amendment whose first three words are "a well--regulated militia" does not have anything to do with a well-regulated militia.

And the well-regulated militia wasn't "being formed" when the Second Amendment was being written; it had already been written into the constitution.  The Second Amendment followed the objections of the Anti-Federalists (see, e.g Antifederalist 29) who feared that the power of Congress to "provide for organizing, arming, and disciplining, the Militia" inherently implied the power of Congress to "organize" the militia at zero strength, thus undermining a check on the power of the Federal government to be despotic.  The Second Amendment prohibits this.

People make the argument that "if that is what they meant, they should have said so explicitly," and that is irrefutable.  But that argument is equally valid against the individual rights claim.

What we have is what we have.  But we have the whole thing.  Only dishonest scumbags like Antonin Scalia hold that the part of the amendment that contradicts his preselected outcome simply do not exist.  That Anthony Kennedy signed off on that Big Lie is forever a blot on his escutcheon.

[Jacob]

So apparently the Supreme Court is going to hear Moore vs Harper and some folks seem pretty alarmed.

How worried should we be?

[The Minsky Moment]

So apparently the Supreme Court is going to hear Moore vs Harper and some folks seem pretty alarmed.

How worried should we be?

7.5/10

I'd be surprised if the petitioners failed.

Gorsuch, Alito and Thomas already declared their support for the "independent state legislature" doctrine, citing the *concurring* opinion in Bush v. Gore of all things, when they dissented from the denial of the stay.  Kavanaugh's opinion, while agreeing with the denial of the stay, signaled that he believed the case should be reviewed on the merits.  He is at least a 50-50 vote but realistically it is more than that as he is likely doing his fake Hamlet routine.  That leaves Barrett as the swing, which means bad news.

[bogh]

So how bad is this? Given the age of the recently appointed, the US will be saddled with this for a very long time - and even then there's no guarantee of more sensible replacements.

Meanwhile the court is basically breaking up the Union by demolition of meaningful federal power, suppression of the majority and subversion of democracy.

Expanding the court seems like the only way to go if it can be attained?

[Syt]

Meanwhile the court is basically breaking up the Union by demolition of meaningful federal power

I'm sure that will be quite selective. They'll likely find ways to back federal power when Republicans are holding all reins of power again (2024, by the looks of it), and enshrining coercive central authority where it serves to make sure "lib" states don't step out of line or enact laws they disagree with.

[bogh]

Yeah, true.

[Admiral Yi]

Meanwhile the court is basically breaking up the Union by demolition of meaningful federal power, suppression of the majority and subversion of democracy.

They haven't yet ruled against one man one vote.

Something not mentioned which I heard on NPR about guns: the new test they have adopted is whether a gun control law is "consistent with American tradition and history."  As a nerd I kind of like that.

[garbon]

Meanwhile the court is basically breaking up the Union by demolition of meaningful federal power, suppression of the majority and subversion of democracy.

They haven't yet ruled against one man one vote.

Something not mentioned which I heard on NPR about guns: the new test they have adopted is whether a gun control law is "consistent with American tradition and history."  As a nerd I kind of like that.

Why?

[Admiral Yi]

Why?

Because i'll have a relatively well informed basis on which to judge their rulings.