Feinstein, Gorsuch and Heller

I know most on this site may see the appointment of Gorsuch as a good thing, but is changing the rules possibly a bad thing long term.
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I assume that you are implying that a future Democrat majority Senate will be able to vote in whoever they want, but they already do. Republicans in the past generally haven't had the backbone to block Democrat SCOTUS picks.
 
I don't see a downside to removing the 60-vote rule. That said, I really wish they would just eliminate the filibuster. I know McCain thinks that should be untouchable and sacrosanct, but the fact he likes it only tells me it serves no useful purpose.
 
The Senate voted 55-45 to block the nomination of judge Gorsuch.
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Uh, not exactly. The Senate voted 55-45 to confirm Gorsuch. Unfortunately, 60 votes were required at the time.

Now that the rules have been changed to allow confirmation with a simple majority, one would assume he'll be confirmed tomorrow.

Stay tuned.
 
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I don't see a downside to removing the 60-vote rule.
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Especially as the Dems had already demonstrated they would be happy to remove it anytime it suited them.
I really wish they would just eliminate the filibuster
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As soon as they remove the 60-vote rule for passing legislation, the filibuster's gone: no more 60-vote cloture = no more filibuster.
 
LoosedHorse hit the bullseye. A rule that can be swept away by simple majority vote is no real rule at all, and we can't force people to value useful traditions.

BarryLee said:
I know most on this site may see the appointment of Gorsuch as a good thing, but is changing the rules possibly a bad thing long term.
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In itself, I agree.

The function of the Senate is to be a check whatever fad is absorbing the attention of the House. Although a representative body, that representation is attenuated by not having Senators directly elected by the population of the states they represent. Rules that enhance that attenuation, like supermajority requirements and filibuster rules, also enhance the strength of the check.

Unfortunately, the US hasn't had a Senate as I have described it for about a century. With the 17th Am., the Senate looks more like the House, and there isn't any reason it wouldn't start to function that way.

I believe that most senators are not happy about the filibuster being reduced in scope because the reduction in that scope reduces their individual power. However, Lindsay Graham, a fellow of generally gentle temperment, accurately summarized the substance of the event. The Senate majority aren't going to have a system in which one party gets their nominees confirmed and the other doesn't.

Ultimately, reducing the ability of the check that was the Senate may make our form of government worse, but that reduction has been a process that started well before yesterday or just a few months ago.
 
A humble suggestion is that if both parties stop running on undoing the well known decisions on social issues and move on, we would be better off.

Run your own sex lives without the government. Own firearms without unreasonable restrictions. Stop trying to undo those decisions.

This is not a call here to re-evaulate the decisions but a call for both parties, to accept that there are different views of expanding personal liberties and the decisions expand or protect those from different viewpoints. If you don't want those expansions or protections - don't use them. However, then shut up and let those that do - do so.

That would remove a tremendous amount of animus about the court. Both sides want the court to do away with some personal behaviors that are not the business of the state in the manner each party wants to control them.
 
A humble suggestion is that if both parties stop running on undoing the well known decisions on social issues and move on, we would be better off.
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I disagree, but not for an explicitly political reason.

Social issue stability is not a standard for constitutionality. Unless a body of jurisprudence is coherent, people who think about it will either a) look for ways to make it cohere, b) exploit the incoherence in order to usurp the judiciary ideologically for their own political ends, or c) both.

Run your own sex lives without the government. Own firearms without unreasonable restrictions. Stop trying to undo those decisions.
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While issue stability may be an attractive goal in concept, the putative shape of that stability shows the problem. Your formulation illustrates that.

No one is calling for a judiciary that would empower the government to run anyone's non-commercial "sex life" once he becomes an adult. Does anyone think that in order to restrict a constitutional right, the restriction should be merely reasonable? Quite a few people do, and when we find those decisions, they are hostile to the constitutional right. Do you think seeking a judiciary who would enforce the right shouldn't be a goal?

This is not a call here to re-evaulate the decisions but a call for both parties, to accept that there are different views of expanding personal liberties and the decisions expand or protect those from different viewpoints. If you don't want those expansions or protections - don't use them. However, then shut up and let those that do - do so.
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I think that was the position of the confederacy.

That would remove a tremendous amount of animus about the court. Both sides want the court to do away with some personal behaviors that are not the business of the state in the manner each party wants to control them.
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I share the libertarianism that I perceive to animate that statement, and I agree that a federal government that is limited so that it is prohibited from weighing in on "social issues"...and commercial issues, and insurance issues, and wealth distribution issues and environmental issues would remove a lot of venom from the courts specifically and our politics more generally.

Yet, in our current circumstance that would take a court that is quite a bit more bold, and perhaps less humble. It would need to not allow itself to fear calling a penalty anything but a penalty. It could not read " ...exchanges established by the States..." to mean "...exchanges NOT established by the States..." It would need to discard a lot of constitutional case law to get to a federal government of more libertarian proportions.

That is no modest task.
 
Own firearms without unreasonable restrictions.
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The Supreme Court in Heller specifically rejected a rational basis test for the 2nd Amendment right. Therefore, no, we do not and should not accept restrictions just because they seem "reasonable"--especially all the new proposed restrictions that anti-gunners would love to add on, calling them all "reasonable restrictions."

Which of the two remaining tests will eventually be used is still up in the air; I would not be surprised if intermediate scrutiny were applied to laws pertaining to the carry of arms in public, and strict scrutiny to laws pertaining to ownership; those laws go to how you are allowed to exercise your rights in your own home. I would hope for strict scrutiny for both.
 
For the other rights we are free to exercise, the reasonable restriction is if an action interferes with the rights of others or endangers others.
ie: You can't yell "FIRE" in a darkened movie theater because it places others in danger. You can't give a speech that incites a riot because it endangers others. You can't swing your gun around because it endangers others.
If someone doesn't want you to carry a gun because it makes them uncomfortable or scares them - tough!
 
I'll just mention once again that none of the other rights enumerated in the Bill or Rights say right in the text that they are not subject to regulation. Only the Second Amendment says this. What is a regulation if not an infringement?
 
Yeah -- I'm a legend in my own mind. :)

The problem is that I can say "Regulation is infringement" 'til the cows come home but, until we see a majority of the SCOTUS put that in writing, I'm just whistling in the dark, hoping to scare away goblins. It seems crystal clear to me, and one might hope that a true "originalist" / "strict constructionist" justice would have no choice other than to agree. But ... we live in a complicated world, and sometimes purity is sacrificed to pragmatism.

For example (IMO), Justice Scalia's reprehensible "existing presumptively lawful regulations" phrase. I don't think he would have said that if he hadn't needed to keep Kennedy in line, but just look at all the harm that seemingly innocuous phrase has caused and is causing.
 
I'll just mention once again that none of the other rights enumerated in the Bill or Rights say right in the text that they are not subject to regulation. Only the Second Amendment says this. What is a regulation if not an infringement?
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I'd be happy to explain

At the time of the writing, "well regulated" referred to being properly supplied, clean and in usable condition. It did not mean a third party come into your home and tell you what you can and cant do

"Militia" was every able bodied "man" big enough to carry and properly use a firearm in order to defend the Country from all enemies both foreign and domestic.

So when it was written it meant that every ably bodied person was free to own, carry and use any weapon to protect themselves and the Country.

Over the years the meaning of the two words has changed and therefor the perception has changed as to what was meant when writing the 2A. And it does not mean a formal militia group being regulated by the govt.
 
^^^ You just reiterated my point, which is that all the so-called "common sense" regulations the anti-gun lobby wants ARE infringements, and as such are supposed to be barred by the Second Amendment.
 
AB said:
The problem is that I can say "Regulation is infringement" 'til the cows come home but, until we see a majority of the SCOTUS put that in writing, I'm just whistling in the dark, hoping to scare away goblins. It seems crystal clear to me, and one might hope that a true "originalist" / "strict constructionist" justice would have no choice other than to agree. But ... we live in a complicated world, and sometimes purity is sacrificed to pragmatism.
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I have great sympathy for a pure position that the most sound constitutional decision will start with language of the COTUS rather than caselaw, so "shall not be infringed" shouldn't mean "infringe away if you meet a test we like".

That isn't the water in which lawyers swim on these issues. However, it shouldn't be necessary to radically rebuild constitutional jurisprudence to achieve everything you could get done politically. If strict scrutiny were applied to laws that may infringe the right, those laws would need to serve a compelling governmental interest and use narrowly tailored law to achieve that interest.

That allows deprivation of the right those who are adjudicated incompetent (having a hearing on the matter is about as narrowly tailored as it gets) and felons. I understand that some people think the right should be restored following a prison sentence, but such a reading would likely see a constitutional amendment that would keep John Allen Muhammad from having his rights restored.

Heller was a big step, but a 5-4 precedent isn't much of one. Getting more justices who would vote for language recognizing the right as fundamental is the necessary foundation.
 
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