Clarence Thomas and the 2nd Amendment

[Bartholomew Roberts]

And for the record, even before Citizens United, corporations could do all kinds of political favors - the New York Times being a prime example of a corporation who wields its power for political influence free of any campaign finance rule. Reason did an excellent article about why Citizens United isn't a disaster

 

[Brian Pfleuger]

"Citizens United" made it legal for corporations to make unlimited anonymous contributions to political campaigns. Find an originalist argument for that.

Tell me where it's prohibited?!

That's the catch, and the single biggest error of interpretation today. The COTUS is not intended (primarily, substantially) to limit people or companies. It is intended to limit government interference with people and companies.

So many people see it backwards. How can I use this to influence, add power, usurp authority, enforce my will?

No. Wrong. The COTUS was intended to PREVENT undue government influence. LIMIT government power. MAINTAIN the authority of the people. ENSURE the will of THE PEOPLE.

Fact is, the National government should have very little influence on the day to day lives of people and companies. It's primary interactions should be with the states themselves and foreign powers.

The states should have more, but still limited, influence and power over people within their borders. The local governments should have yet more, but even still limited, influence over the people directly.

The people were to control the government. Not what we have today. THAT is the originalist argument.

 

[maestro pistolero]

Money is only part of the picture where influence is concerned. When the mainstream media (read: groups of individuals) supports a candidate or a piece of legislation, they are, in effect, throwing the entire weight of their assets behind that cause. And they have a right to do it under the first amendment.

So, now, do individuals or groups of individuals NOT in the media business.

 

[raisitup]

I don't trust any of those Supreme Court judges.... they've spent their whole lives paid by government.... how in the world can they more often than not divide 5 to 4.... most of these decisions are decided as a group in the back.... if it was really serious there is not way they would constantly have that 5-4.

I just visited Washington, D.C. and took the "tour" of the Supreme Court (where you sit in the courtroom and the tour guide speaks). If I remember correctly one of the facts mentioned was that over some time period that I can't recall a near majority of decisions handed down (i.e. nearly 50%) were 9-0 or 8-0. I guess you'll have to place your distrust solely on the fact that they're, um, government workers.

Ryan

 

[Webleymkv]

So many decisions are 5-4 rather than 7-2 or 8-1 because too many of the sitting justices were nominated as much for their political leanings as for their legal acumen. ALL cases before the SCOTUS are supposed to be decided on the basis of what the Constitution says is and is not allowed for government to do. If ALL cases were, in fact, decided on this basis, a lot more cases would be unanimous or nearly unanimous. The fact that so many are cliff-hangers and that one moderate justice is so often the "swing vote" is proof positive that many of the justices are NOT reading what the Constitution says, they are reading what they want it to say or what they wish it says.

That is simply human nature my friend and something that the founder obviously understood. If a SCOTUS justice could always be trusted to impartially interpret the constitution, we would need only one rather than nine. Consider also that the number of justices and lifetime appointments are in place to prevent a single administration from being able to "load the bench" completely with justices of one ideology. Through the current system, SCOTUS needs not be overly concerned with which way the political wind happens to be blowing at the moment nor can they be easily bullied by the administration or congress.

As far as 2A is concerned, I think we've got a pretty good bunch with the five-justice majority of both Heller and McDonald. The originalists like Thomas and to a slightly lesser degree Scalia are persuasive enough to ensure that 2A cases go our way, but the more moderate justices, Roberts and Kennedy in particular, temper them so that they don't "legislate from the bench" with unforeseen consequences.

 

[Tom Servo]

Reason did an excellent article about why Citizens United isn't a disaster

Slight riposte: it's not the Court's job to determine whether repealing something would entail "disaster." It's their job to determine the constitutionality of the law in question--no matter what Breyer seems to think...

Consider also that the number of justices and lifetime appointments are in place to prevent a single administration from being able to "load the bench" completely with justices of one ideology.

Actually, that almost did happen once. The President wanted to increase the number of Justices so as to appoint a few who wouldn't find his sweeping social programs and runaway spending unconstitutional.

 

[Webleymkv]

Quote:
Consider also that the number of justices and lifetime appointments are in place to prevent a single administration from being able to "load the bench" completely with justices of one ideology.
Actually, that almost did happen once. The President wanted to increase the number of Justices so as to appoint a few who wouldn't find his sweeping social programs and runaway spending unconstitutional.

True, but FDR at the height of the great depression was probably about the only president in history who was both popular enough and had enough of a majority in both the House and Senate to do such a thing. Even so, I wonder if he could have actually pulled it off or whether it was just enough of a threat to get SCOTUS to quick bucking him and the New Deal.

I have long thought that FDR's threat of constitutional amendment played a large part in the NFA being allowed to stand in Miller.

 

[JustThisGuy]

Just a note please that it was my intent to publicly thank Justice Thomas for his support for the Second Amendment.

While it is certainly appropriate to criticize decisions, attacks on the character of a U.S. Supreme Court Justice, regardless of his/her positions and political affiliations are in my mine inappropriate to this thread and to this forum.

I hope that this thread will not devolve into political partisanship, as that will get it closed. If it is anyone's intent to get the thread closed due to political partisanship, I hope that the Moderators will see through that and delete offending posts.

To the extent that we can keep this thread focused on the Court's rulings and views on the 2nd Amendment, it should stay open and we can all benefit by the discussion of those issues.

Thanks to everyone for their time to comment (OP).

 

[publius42]

"Citizens United" made it legal for corporations to make unlimited anonymous contributions to political campaigns. Find an originalist argument for that.

The majority cited, among others, NAACP v Button, a 1963 case in which the Supreme Court said:

Held: The activities of petitioner, its affiliates and legal staff shown on this record are modes of expression and association protected by the First and Fourteenth Amendments which Virginia may not prohibit, under its power to regulate the legal profession, as improper solicitation of legal business violative of Chapter 33 and the Canons of Professional Ethics. Pp. 417-445.

(a) Although petitioner is a corporation, it may assert its right and that of its members and lawyers to associate for the purpose of assisting persons who seek legal redress for infringement of their constitutionally guaranteed rights. P. 428.

(b) Abstract discussion is not the only species of communication which the Constitution protects; the First Amendment also protects vigorous advocacy, certainly of lawful ends, against governmental intrusion. P. 429.

(c) In the context of petitioner's objectives, litigation is not a means of resolving private differences; it is a form of political expression, and a means for achieving the lawful objectives of equality of treatment by all governments, federal, state and local, for the members of the Negro community. Pp. 429-430.

(d) In order to find constitutional protection for the kind of cooperative, organizational activity disclosed by this record, it is not necessary to subsume such activity under a narrow, literal conception of freedom of speech, petition or assembly, for there is no longer any doubt that the First and Fourteenth Amendments protect certain forms of orderly group activity. Pp. 430-431.

...

So corporations have had first amendment rights for a long time, and the Supreme Court has said specifically that solicitation of legal business by a corporation is a form of political expression.

In Citizens United, the corporation made a political film.

Which is more clearly political expression: making a political film or soliciting legal business?

I can agree with the court that both are.

I'm sure the minority has an answer to that majority citation, but I can't seem to find it anywhere. Hmmm.... Answering relevant precedent citations is kind of a Supreme Court tradition. Odd...

 

[zukiphile]

"Alabama v. Garrett" Thomas sides with the decision that makes it illegal to sue your state in federal court.

10th Amendment.

"Ledbetter v. Goodyear" Thomas sided with the majority decision that Ledbetter could not sue for the wages she had been cheated out of, because she wasn't aware she was being cheated by Goodyear from time Goodyear started cheating.

Emphasis added. The underlined part is inaccurate.

Ledbetter couldn't sue on one specific claim because she didn't file the claim within the statute of limitation. There is an exception to that statute where the claimant could not have known the basis for his claim, but Ledbetter's case didn't fall within that exception.

 

[publius42]

Basically Thomas has cheated on his taxes for 13 years and lied about it in official government forms.

No, basically, he and his wife paid their taxes, but in a clever effort to conceal the (extremely well publicized) fact that she works for conservatives, he did not put that on disclosure forms.

You do understand that a disclosure form and a tax return are different things, right?

 

[Tom Servo]

True, but FDR at the height of the great depression was probably about the only president in history who was both popular enough and had enough of a majority in both the House and Senate to do such a thing.

Actually, he lost a great many friends with that fiasco, including many centrist and conservative Democrats. The bill containing the reform language ended up being voted down 70-20 in the Senate.

The story that FDR's announcement somehow cowed Roberts is certainly convenient for his apologists, but it may not be true. There's very real question as to whether the Court "switched" at all. While the decision in Parrish was handed down after FDR announced the Judicial Reform Bill, Burt Solomon implied that Roberts' opinion had been drafted prior to the announcement.

It was really the subsequent retirement of Devanter and appointment of Black that seemed to change things. In any case, FDR's attempt backfired, and ever since then, most Chief Executives have known better than to mess with SCOTUS. Most.

I have long thought that FDR's threat of constitutional amendment played a large part in the NFA being allowed to stand in Miller.

That's an odd one. Ragon, the district judge who initially ruled the NFA unconstitutional, was appointed by FDR after having been very supportive of the New Deal. He endorsed FDR in 1932, and as a legislator, he'd pushed a number of New Deal programs through Ways and Means. He'd also been a supporter of gun control prior to his appointment.

I know of no historical source explaining Ragon's sudden change, but the timing of his decision in the Miller case (1938) suggests that he might have been one of many of FDR's friends who'd grown disenchanted with the man.

What happened to the case when it reached the Supreme Court is a whole other dreadful charade.

While it is certainly appropriate to criticize decisions, attacks on the character of a U.S. Supreme Court Justice, regardless of his/her positions and political affiliations are in my mine inappropriate to this thread and to this forum.

Even if history almost unanimously finds one to be a cantankerous, lazy, racist? Or is it still too soon to criticize McReynolds?

I kid. Seriously, it's a good thread JustThisGuy. I'm heartened by Justice Thomas' integrity, and it's nice to see him getting the recognition he deserves.

 

[Webleymkv]

What happened to the case when it reached the Supreme Court is a whole other dreadful charade.

That's true. Delivering the ruling when only one side was even able to give oral arguments (Miller himself was dead by the time the case got to SCOTUS) is, in my opinion, a black spot in the history of the court.

 

[Tom Servo]

Delivering the ruling when only one side was even able to give oral arguments (Miller himself was dead by the time the case got to SCOTUS) is, in my opinion, a black spot in the history of the court.

I'll have to dig up sources for reference (and it may belong in a separate thread), but McReynolds took only a few hours to research and write his opinion. The guy was known for having a dreadful work ethic, and his work on Miller was indicative of that sloppiness. There are several glaring errors in his opinion, not the least of which is misquoting Blackstone to justify his conclusion. Furthermore, McReynolds' directions to Gutensohn (Miller's counsel) gave him a timeframe in which it would have been physically impossible to draft his brief, get it printed, and make travel arrangements (much less the trip itself). In fact, Gutenshon did not receive a copy of the government's brief until after the case had been decided and announced in the press.

The whole lifecycle of the Miller case was a disaster, which only makes its ~60 years as standing precedent seem worse.

If Miller were to be brought today, it'd be very interesting to see the orals...

 

[Glenn E. Meyer]

This thread is close to a close. Anyone who personally attacks another member or introduces politics and explicitly know that such is forbidden is gone from TFL.

Be warned.

Also, if Thomas is crook or not - is not relevant to discussing his legal opinions and positions. Cease that - another warning. If such happens, report it.

GEM

 

[publius42]

Sorry, Glenn. I'll try to remember to hit "report" instead of "reply" next time.

 

[MLeake]

I apologized to Glenn yesterday via PM, but in hindsight should apologize to the members on the thread, too.

Sorry, I'll keep politics out of it.

 

[Glenn E. Meyer]

Thank you all. The TFL Nanny State Black Heliocopters are returning to our carrier (like the one Shield has that flies).

We appreciate it.

 

[JustThisGuy]

And now, back to our previously scheduled program...