Chicago Gun Case Incorporation Lawsuit

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Antipitas said:
So citizenship was an evolving standard. That evolution was based upon amendments to the Constitution, as it should be.
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So your argument is that the 19th Amendment conferred more than the right to vote? The 19th Amendment (and subsequent amendments) conferred all the rights of citizenship, including those understood in Corfield?

If that is the case, then it seems to me the problem is:

1. Why didn't they say that in the amendment instead of only listing the right to vote?

2. Why did restrictions on professional pursuits and real property ownership for women remain valid for many years afterwards?

That it took the Courts and legislatures of the States time to play catch up, does not negate the facts of the evolution.
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My guess is that you are going to find very little originalist interpretation in the evolution that gave women citizens the same rights as men. Since it seems that everyone agrees that the Pandora's Box problem can only be solved by an originalist interpretation of the 14th Amendment, it seems to create a bit of a dilemma.

Don't get me wrong, I am not arguing that women have lesser citizenship rights than men. I am just arguing that I do not see an originalist argument of the 14th Amendment that applies the privileges and immunities clause to women. Considering that Senator Howard outright denied any intent to do that during the debates on the 14th Amendment, I think that is going to be difficult to do in a coherent way that doesn't open the door to right to welfare.
 
Bartholomew Roberts said:
Don't get me wrong, I am not arguing that women have lesser citizenship rights than men. I am just arguing that I do not see an originalist argument of the 14th Amendment that applies the privileges and immunities clause to women.
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Actually, I'd argue that any time you look back more than 100 years the "lens of time" distorts perceptions. Senator Howard may have declined to apply citizenship standards to women, not out of animus, but pragmatically. Men in the legislatures of that era would not have supported such a move.

Gather up 200 citizens and show them that in 1910 a young boy of 10 or 12 could buy a Winchester repeating rifle at the hardware store... if he had the cash. And take it home with him. No laws against it. No registration needed. No parental note required. How many of that 200 would say "that's dangerous!" or "that's wrong!" Likewise the concept that girls should be married by 20 and tending babies we consider "antiquated" or "outdated". But these were perfectly normal attitudes -- then.

And while you can say that women were not specifically included in the 14th Amendment, I think it's disingenuine to say that the intent was to forever deny women their rights.
 
And while you can say that women were not specifically included in the 14th Amendment, I think it's disingenuine to say that the intent was to forever deny women their rights.
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The trick is "What theory of constitutional interpretation explains that without creating any new rights that were not understood as rights under natural law?"

I agree with your point; but the "lens of time" argument would be picture-perfect for finding a right to welfare in the P&I clause since it basically boils down to "that was how they did things then; but now we do them differently."
 
Bartholomew Roberts said:
I think that until you can develop an objective test that tells whether a right is a part of the privileges and immunities, the Justices will resist giving P&I its intended meaning simply out of caution - and if the test is basically identical to the one already used for substantive due process, then why open the P&I door when you can get where you are going without doing that?
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That seemed to be what the Justices said to Gura. They're not going to clear a parallel but unknown path to a known destination.
 
Bart, my argument assumes that the franchise was an integral facet of citizenship.

The franchise was and is inextricably linked to citizenship. That can be demonstrated in Western Thought and Philosophy. A casual look at Scottish, English and French enlightenment periods will show this.

From the 1828 Websters, we find:
Citizen n.
5. In the United States, a person, native or naturalized, who has the privilege of exercising the elective franchise, or the qualifications which enable him to vote for rulers, and to purchase and hold real estate.​

As early as 1790, there was a movement to place women as equal to men. This adjustment to social attitudes was given voice by the Marquise de Condorcet, in his short essay, On the Admission of Women to the Rights of Citizenship.

From England, we have John Stuart Mill, who wrote of this topic from the early to mid 19th century.

In 1776, New Jersey was the first State to enfranchise women, even though it was short lived (Constitutional change in 1809, disenfranchised women and allowed only white male landowners the vote). In 1848, New York passed legislation to allow independent economy of married women. In 1854, Massachusetts followed and added legal majority.

Other territories/States to enfranchise (women) include Wyoming (1869), Utah (1870), Idaho (1890), and Colorado (1893).

Although an originalist look at the 14th amendment will indeed show that women were not included, the subsequent amendments (and the ongoing change in culture) show an expanding citizenship right, through the franchise. Such amendments do in fact modify that original meaning. That's really all that's required.

Justice Ginsberg knows this well. I therefore suggest that her remarks were rhetorical in nature and used to prompt the appropriate answer from Gura.
 
Seriously Al, I have doubts that Justice Ginsberg knows these facts.

I'd bet all she really knows is the womens' suffrage movement began around 1850.

Justice Ginsberg has never struck me as being all that intelligent but maybe I'm letting my emotions get the better of me? :)
 
No, you're not. I happen to share that view as well. I can't think of any memorable opinion she has ever written. For that matter, can anyone think of any instance in which she wrote the majority opinion of an important, closely-divided case? (5-4) I can't, either. When a case is both important and closely divided, the majority author must expend extra efforts in holding onto his majority. That requires both intelligence in substance and cleverness in strategy. Ginsburg (and, for that matter, Souter) never demonstrated any. It's not just that they're ideologues (as one might charge Justice Scalia the same) but that they're boring ideologues, which makes them all the more insufferable. I have numerous disagreements with the jurisprudence of Justices Stevens and Breyer, but there can be no question that they're good strategists.

Comparing recent Supreme Court nominees is a study in liberal decline. The latest example is Justice Sotomayor. We heard a great deal about her being the first Hispanic justice and nothing about any breakthrough in legal theory or even a particularly clever opinion that she penned. Contrast this record of mediocrity with Chief Justice Roberts. In the area of campaign finance alone, Prof. Rick Hasen (supporter of regulations) admitted that Roberts frequently came up with radical ideas that threaten to fundamentally change how we think about the field. Not only is Roberts an innovative thinker, he is also a master strategist. (see Baze v. Rees)

Now I heard talk about Solicitor General Elena Kagan replacing Stevens. But it seems to me that Kagan is the kind of mediocrity that Souter, Ginsburg, and probably Sotomayor are. I also have never heard anything particularly innovative that came from her pen. I would say that this intellectual decline portends the eventual death of modern liberalism.
 
RDak said:
I'd bet all she really knows is the womens' suffrage movement began around 1850.
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In 1970, while a professor of law at Rutgers, Ginsburg co-founded the Women's Rights Law Reporter to focus exclusively on women's rights. She was the ACLU's chief litigator for their women's rights project. She argued several cases before the Supreme Court and became known as a very skilled oral advocate. Her last case as a private attorney was Duren v. Missouri, where she argued against Missouri's laws that made jury duty for a women, voluntary. At the end of Ginsburg's oral presentation then-Associate Justice William Rehnquist asked Ginsburg "You won't settle for putting Susan B. Anthony on the new dollar, then?" Ginsburg, being cautious, did not respond to his question.

The above was loosely taken from the wiki article on her.

Regardless of what you may think of her, her writing or her ideology, I daresay that she knows more of the history of Women's Right than just about all of us. Do not underestimate her.
 
I know that she gained her "fame" by arguing for women's rights before the SCOTUS, etc.

Maybe she does know of the history of enfranchisement of women's rights?

I, like htjyang, have not noticed any memorable opinions she has ever written. Her oral questioning has never impressed me either. However, that could be because I'm usually on the opposite side of her opinions. She seems slow of thought and not as sharp as people opine IMHO. But that could merely be her demeanor. I think not but I could be wrong.

That said, I'll acknowledge that maybe she knows more about women's rights than I give her credit for.

If you feel that she does, then I'll go along with what you say on this.

ETA: Now, to change the subject, how do you guys think Sotomayor will vote?

I'm not sure on that one.
 
ETA: Now, to change the subject, how do you guys think Sotomayor will vote?
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I read some of her previous opinions when she was undergoing confirmation. In cases involving economic policy, she's tended to side with the government, but in cases involving civil liberties, she seems to come down in favor of the individual. United States v. Julio Gori (2nd Circuit, 2000) is a good example.

So, in that respect, she's something of a moving target. During confirmation hearings, she seemed inclined to rule in favor of stare decisis, but she was speaking as a Circuit judge at the time. Regarding the Maloney case, she said,

All precedents of the Supreme Court I consider settled law, subject to the deference to doctrine of stare decisis would counsel (…) if that precedent got the Supreme Court’s teachings wrong, it still would bind my court.
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That's not out of line, really. It doesn't show the courage we got from the 9th Circuit in Nordyke, but was her decision really all that different than Easterbrook's decision in McDonald/NRA?

She's impossible to second-guess at this point, but I wouldn't be surprised to see her side with DP incorporation.
 
ETA: Now, to change the subject, how do you guys think Sotomayor will vote?
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I actually think she will vote to incorporate. As a new member of the court, she may want to show that she isn't the blinded ideologue that some accused her of being in the confirmation hearings. This case gives her plenty to hang her hat on (with every nearly other enumerated right having been incorporated already). 2A is shaping up to be classified as a fundamental right (let's hope!), so the scrutiny issue even looks promising.

On the other hand, Scalia actually scares me a little. At times, it seems his views can be, to say the least, incongruent.
 
Anybody hear anything from articles or opinions on what might happen?

I'm starting to get excited and it's still three months to go for pete's sake. :o
 
Nope. The Court doesn't usually give much in the way of breadcrumbs. We can read whatever we like into the oral arguments, but it's just speculation.

The scuttlebutt appears to be that we'll see a fairly narrow ruling along Due Process lines. Given everything going on in the Circuit courts, they may leave some wiggle room open for differing local standards.

If they don't rule on a level of scrutiny, we'll have a Circuit split, and possibly another case next term.
 
Folks, the last post to this thread (which you cannot see, as it is deleted), was an all capitals rant on the word "infringed."

I'm not even going to entertain such things for the next 2 months, while we wait for the decision. Therefore, this thread has been closed and unstuck.

When the decision has been published, we can start a new thread to discuss what the Supreme Court will have written.
 
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