How Could a SCOTUS Justice Vote "No"?

R

RDak

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Just curious about how any SCOTUS Justice could now vote "no" on incorporation with Heller on the books?

I'm somewhat at a loss as to how a Justice could wiggle their way out of Heller to say the States can still prohibit private firearms ownership.

Especially when any liberal Justice would be all for incorporation of free speech, right to kill unborn babies, etc.

Would just like to hear your opinions
 
There are no guarantees when it comes to the SCOTUS. First, incorporation as a concept is not easily swallowed by strict constructionists. There's no doubt about the fact that at the time the Bill of Rights was written, it was intended for application against the federal government and the federal government only. Application of these amendments to the states did not occur until after some dubious amendment writing and SCOTUS decisions in the Reconstruction and later periods.

That said, it's dishonest and shameful for any jurist to conclude that there is even a sliver of rationality that justifies incorporating the other personal rights guaranteed by the Bill of Rights and not the RKBA as enumerated in the 2nd Amendment. Selective incorporation has been an anti-constitutional juridical dodge that will hopefully be put to bed with a decision to incorporate Heller to the states.
 
Well, I'm not advocating what I'm about to describe, and being a denizen of the People's Republic of Massachusetts, I'm certainly hoping for an affirmative "incorporation" adjudication when that issue is finally resolved, but:

The argument for not "incorporating" and for a different treatment of Second Amendment than, say, Fourth Amendment is pretty simple.

Amendments such as the First, Fourth and Fifth deal with the relationship between an individual and the government, rather generally. Particularly from the perspective of the person being subjected to it, torture to extract a confession is the same whether the torturer is statie or a fed.

The Second Amendment, on the other hand, was a true States vs. Fed proposition. At issue was the concern that states would be adversely affected (most likely with respect to economic issues) by decisions made over which the State had no control -- much like, as British colonies, the states had been adversely economically affected by royal fiats and Acts of Parliament concerning which they had no vote and over which they had no control.

It should be remembered that the United States Constitution was our second attempt at a national government. The first one failed because the national government was too weak; the solution -- a stronger federal government that included such things as the Supremacy Clause -- was nonetheless potentially troubling.

For instance, just to take an example out of the air, colonists in Virginia were not troubled that the Virginia legislature might someday outlaw slavery, but they were very concerned that a bunch of northern states might someday get together and ban slavery at the national level. The Second Amendment was intended to allay this fear by stimulating the notion that, in such event, the states might resort to revolution, rebellion and sucession -- just as they had versus George Rex.

Well, we had our Civil War. The "remedy" of rebellion proved to be a chimera, and after the smoke had settled, we adopted the Fourteenth Amendment, which provides, in hopelessly vague terms: "No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws." Of necessity, this required someone to figure out what constituted "the privileges or immunitites of citizens of the United States," and out of this necessity was born the "incorporation" doctrine.

There are a number of sound reasons why the Second Amendment should be incorporated, starting with the simple (but potentially persuasive) notion that affording different treatment to different articles of the Bill of Rights smacks of a legislative, rather than a judicial, assessment. Nonetheless, it is equally true that the Second Amendment implicates federalism issues that the First, Fourth and Fifth do not.

It is popular at the moment for gun owners to fear what the vote of a Sotomayor might be should the Second Amendment "incorporation" issue reach the Supreme Court. I happen to be more concerned about what the vote of Mr. Justice Scalia might be.
 
That the rights acknowledged in the BoR are inalienable rights, the thought that you could have a state join the union founded on the Constitution and BoR and then ignore them has me scratching my head.

It would almost make as much sense if the Jewish League let the Hitler Youth join as members.

In both cases you'd have the membership trying to undermined the parent organization from the beginning.

In no way shape or form were the states not to be held to the same BoR as the Federal government. INAL YMMV
 
Let's be real here - the SCOTUS, POTUS and a hippopotamus are all creatures of their environment.

The gun world might see it as blindingly obvious that the 2nd should be blah, blah.

However, one could easily ask how the SC upheld Japanese detention or segregation.

What is an obvious right to you, is not an obvious right to someone else. The SCOTUS reflects that.

If the current environment is that gun rights are inherent (not always thought be so - hence Heller) - then perhaps that will carry enough weight for incorporation. However, in the background, the antigun folks will have to see if opposing gun rights is detrimental to other political agendas to oppose it. Such factors do influence the SC.
 
The way I understand it legally the Second and Seventh Circuits held to legal precedent (even though over 100 years old, United States v. Cruikshank, 92 U.S. 542 (1875) that the 2A had not been incorporated into the States via the 14th so only the Supreme Court could do such. Since the Supreme Court has previously said to the lower courts; "Rule against our precedent at your peril" I suspect both the 7th and 2nd Circuits took the safe route and said "kick it upstairs". The 9th (most overrturned court I believe among the Appeals Courts) went out front and ruled contrary to precedent, and might be overturned based on what the SCOTUS does. So, after listening to an earlier thread of the 7th Circuit 2A case where the justice laughingly told Messers Halbrooke and Gura to appeal them and that they would have a good case but they weren't getting the ruling that day from them, I think this will have to be decided by the SCOTUS.

Now the question becomes whether the 2A is a fundamental right that states must apply scrict scrutiny to laws that regulate it OR it is not a fundamental right and the states may apply the rational basis test to regulate such. BTW my brief reading is that not all of the BOR has been incorporated (beyond the 2A) and so just saying it is in the BOR does not make it fundamental and subject to the states as the law is written. Keep in mind that the BOR was written to restrict the Federal government not ALL government.

Prepare yourselves to hear the anti-gunners claim:eek: STATES RIGHTS! on this deal as it works to their advantage.
 
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i(...) the Supreme Court has previously said to the lower courts; "Rule against our precedent at your peril" I suspect both the 7th and 2nd Circuits took the safe route and said "kick it upstairs".
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Easterbrook's decision seemed to imply that he thought it had to go to SCOTUS, given the current conflict within the Circuit Courts.

The way the McDonald case is argued, it demands a rereading and evaluation of the Slaughterhouse cases, which most of the modern legal community agrees to be bad law. Any Justice wanting to defend its validity would have an uphill battle doing so.

As far as Cruikshank, we're talking about discrimination, lynchings and a 70-year setback for civil rights in the South. Again, good luck to any Justice that wants to stand behind a decision that (in effect) excused the Colfax massacre.
 
From the disappointingly vague and insubstantial rhetoric occurring in the Sotomayor confirmation hearings, it is impossible to predict with accuracy Sotomayor's philosophy or reading of previous decisions regarding SA and gun rights.

It has already been pointed out that the Justice she is replacing failed to vote as 'expected', rather consistently.

The BoR may indeed have been initially intended to protect the rights of citizens against an intrusive and overbearing federal government.

It makes no sense, however, to conclude that - while citizens rights have thus been adequately protected against federalist tyranny - State governments are therefore free to levy all manner of onerous violations of citizens rights set forth in the BoR, simply because they are State governments and not the federal government.

It would be illogical to proclaim that a "Free Press" exists at the federal level, but then accept the fact that State governments are free to limit and/or direct Press activity at the State level.

It would be equally illogical to conclude that, of the Rights outlined in the BoR, all of them except the Second equally bind the federal and state governments; while the Second, alone, only binds the Federal government - with State governments left to interpret the SA at their individual whims.

That would be an 'ad-hocracy'.....
 
Much if not most of the work done by the SCOTUS is actually done by the law clerks who are are drawn disproportionately from the liberal law schools.
Most of the "scholarly" and "legal" writing is done to rationalize decisions arrived at by gut feelings and maybe a good snort of whiskey or a joint. Then there was Thurgood Marshall's statement "If I die prop me up and keep me voting." He of course was a prime example of someone appointed for his identity.
Precedent means nothing-cf Bowers vs. Hardwick (1986) overruled by Larence vs. texas (2003) . Sotomayor let the car out of the bag when she said that appellate courts actually set policy and legislators love to hide behind judges robes. The basic liberal view is that the Constitution is a blank slate on which they will write as they please.
What we need is a fundamental change in how Supreme Court Justices and Federal judges are appointed and confirmed. A columnist in the Newark Star Ledger recently refered to what he called New Jersey's "Lemon Law" for judges. In this state judges and State Supreme Court justices are appointed for an initial term of 7 years and have to undergo a reconfrimation hearing to recieve tenure, and retirement at age 70 is mandatory. Then Governor kean denied renomination to a Superior Court judge He said was too lenient on criminals, and there was a Supreme Court Justive-Peter Verniero-who decided
not to seek renomination-he was under attack for controversial decisions he made as State AG, he felt a brusing and unsuccesful renomination process would hurt his employment chances.
 
If people have rights and those rights are enumerated in the federal constitution it doesn't make sense to me that a state would be allowed to violate those rights.
 
Wouldn't it be hilarious if Sotomayor turned out to be the democrat version of David Souter?! She managed to spend 4 days without answering a single question.
 
vranasaurus said:
If people have rights and those rights are enumerated in the federal constitution it doesn't make sense to me that a state would be allowed to violate those rights.
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And yet prior to the 14th Amendment many states legally did just that. People forget that our rights did not spring fully developed out of the Constitutional Convention. It took years of legislative change, civil war and law to get where we are today with our freedoms. The same will apply to the 2A but I feel good about incorporation now that Heller is done. That was the key that I hope will break the dike.
 
Wouldn't it be hilarious if Sotomayor turned out to be the democrat version of David Souter?! She managed to spend 4 days without answering a single question.
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Highly doubtful. Remember that Souter was truly a "stealth" nominee. He had basically had no paper record of any kind when nominated. John Sununu and Warren Rudman suggested him to Bush I, who really wasn't all that engaged in the process, and no one really did their homework prior to the nomination to learn his judicial philosophy.

Sotomayor, on the other hand, has made her true judicial philosophy more than obvious, both in her rulings/opinions and in her extra-judicial speeches and written documents. She's not very likely to do a 180 just because she made some self-serving and insincere statements to the Judiciary committee just to slide through the Senate approval process.
 
Incorporation

I know full well that the meaning of the US constitution and all its parts is whatever SCOTUS says it is.

None the less, in looking at the actual words of the 1st eight amendments:

1) only the first amendment prohibits the federal government (Congress), specifically, from passing laws "establishing", "prohibiting", and "abridging", certain rights. Clearly, to me, the first amendment requires incorporation/privileges and immunities to be applied to the states.

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

2) The second amendment does not specify that the "right of the people to keep and bear arms, shall not be infringed" only by Congress or the federal government. Clearly, imho, enumerating this right to "the people", i.e., citizens of the Unites States, universally, thus making it automatically a right protected from infringement regardless of state of residence.

A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.

3) The 3rd amendment also does not limit/prohibit only the federal government, but it does not specifically enumerate a "right" and does contains an out clause, "but in a manner to be prescribed by law". The out clause sort of takes away this as a universal "right" issue except in "time of peace".

No Soldier shall, in time of peace be quartered in any house, without the consent of the Owner, nor in time of war, but in a manner to be prescribed by law.

4) The fourth amendment also enumerates "the right of the people....shall not be violated" and has no language limiting this/these rights only from infringement by the federal government, again, not a states rights issue, so it should be considered automatically incorporated/P&A.

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

5) The fifth amendment also enumerates a right/rights of the people, although some are covered by the "due process of law" out. None the less, no wording to suggest any requirement to need the 14th amendment to qualify for automatic incorporation.

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

6) The sixth amendment, again does not limit the scope to the federal government , so automatic incorporation.

In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence.

7) Again, for the 7th amendment, automatic incorporation

In Suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise re-examined in any Court of the United States, than according to the rules of the common law.

8) And, ditto for number 8.

Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.

I have read a lot of the arguments of SCOTUS judges. Oliver Wendell Holmes made what seem to me
to be ridiculous claims against the bill of rights not applying to the "people" and thus not protecting the citizens for the states. It is easy from the things he wrote that he should not only be called the father of SCOTUS but also get a title of being A father of the Constitution, after the fact (which, as it turns out, applies to SCOTUS universally).

Much commentary also indicated that SCOTUS was loath to grant incorporation because of the fear that it would invalidate previous rulings, therefore creating possible reopening of many cases, even ones long past.

Justice Hugh Black often rendered minority opinions for automatic incorporation of amendments 1 - 8, using similar reasoning to my arguments. Thank goodness unsound judgment is not always lacking, even if overruled by judicial weakness.

So I recommend applying auto incorporation to amendment 2 - 8, rescinding incorporation of the 1st amendment, and amending the 1st amendment appropriately to remove the limitation to laws passed by congress.
 
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The BoR may indeed have been initially intended to protect the rights of citizens against an intrusive and overbearing federal government.
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Any single state government today is exponentially more powerful and potentially tyrannical than the entire federal government at the time of founding. For all their foresight and wisdom, could it be that the founders never anticipated the extent to which the people's own state governments could run amok?

Everything was so much smaller and local government so much more intimately connected to the people back then. A tyrannical state was as unimaginable as (perhaps literally) turning tyrannical on one's own family. Today, state governments warrant all of the same scrutiny suspicion, and limits on their powers that federal government earned at the time of our founding.
 
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One of the major battles during the adoption of the Constitution was the decision on whether to allow a standing army or rely on the militia. One of the concerns of relying on a militia was the exact thing someone pointed out of one state militia being used against another state and the example given was slavery. Could the very active and well equipted New York militia be used against the Virginia or Georgia militia to free the slaves.

Also the concern was that if an attack on South Carolina were to occur by the Spanish could the NY militia get there in time to help. This goes against the pro-2A thought but in my reading I get the feeling that many of the founders felt that a militia had done well in the previous war(s) and that the Nation could depend on a militia to be our defense. Therefore a militia was made up of private citizens and should be well equipted and hense the right to bear arms. Since most of the arms used and needed during the Revolutionary War including cannons and ships were privatly owned that 2A reflected the need for private citizens to be able to provide those for war and actually had nothing to do with the right of being able to walk around with a gun on our hip. In other words the first clause of 2A is very important.

Looking at 2A from this viewpoint it makes it clear that it should apply to all states. Sometime during the past 200+ years (primarily the last 100) this idea has gotten completely off base. Probably due to the fact that we created standing armies and have forgotten the original need for a militia. In my opinion all of the arguments about 2A both pro and con have nothing to do with the original intent of the Founders and most of what is spouted is nothing more that BS quotes out of context trying to prove a point.

Comparing 1A to 2A for incorporation to the states is misleading especially in todays climate. I doubt that the Founders envisioned the telephone, radio, Interne, or satellites broadcasting information immediately around the world. How a group could peaceably assemble from a ll 50 states in a few hours. With these considerations 1A has to naturally be incorporated. Now with 2A the militias were to be under the control of the states and not the federal government so 2A was to be a state considertion.

/flame suit on/
 
ftd said:
I know full well that the meaning of the US constitution and all its parts is whatever SCOTUS says it is.
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You are right but I think you might want to consider the intent of the Founders. You see they were afraid of a strong central federal government. They did not really fear the states power and felt since the states were "closer" to the people they were as such more accountable. Just like they were as colonies before the Revolutinary War. Maybe somebody can educate me but I read in none of the constitutional debates concern over the states power over their citizens other than concerns about the Fed. Those issues came after the civil war and thus the 14th amendment. But the 14th had to be interpreted and so the BORs have over time been incorporated to the states. I think it would be a stretch to say to the court that the 14th automatically does this or that argument would have been made before. So, the court has tests upon which to do incorporation. IIRC there are still parts of the BOR other than the 2A that have not been incorporated today.
 
The quote below is quite distinct and unambiguous. There needs be no interpretation of what it means. Indeed, it is a straight forward declaration of status.*

"All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside."

This was a unique qualifier, as never before had U.S. citizenship been defined. Citizens of a State, yes. But before this, no national citizen-like status was implied.

Moreover, if a person is not a resident of a State, they are still citizens of the United States and all privileges and immunities of U.S. citizenship append.

The Slaughterhouse Court, through Justice Miller's opinion, equivocates this, and presupposes that the Congress could not have meant for U.S. Citizenship to take precedent over State Citizenship. Despite the very plain wording and construction of the amendment.

"No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States."

Above is the crux upon which the entire amendment turns. It is a direct command to the States, that no State shall in any manner disparage the rights of any U.S. Citizen, regardless of any status held within the State. It is a new power given to the Federal Government. The power to police the States as regards the privileges and immunities the States may deny to U.S. Citizens.

It was also a profound shift in what had come to be known as Federalism. It is exactly this change in the nature of the Federal Government, that the majority of the Court literally read out of the constitution, the well thought out meaning and declaration of the people of the United States. In other words, the Court ignored the plain meaning of the amendment, as it could not countenance such a shift in power. This was well and truly pointed out by the three dissents.

Stare decisis is not sacrosanct when it is built upon error. The Slaughterhouse majority was wrong then, and it is wrong now. The Court does not need to abandon its substantive due process cases, but it does need to acknowledge and correct the error of Slaughterhouse.

By such a correction, the Court will need to abandon its doctrine of selective incorporation, and simply transfer those rights it finds fundamental into the privileges and immunities clause of the 14th amendment.

The Court has already found that some of the rights within the BOR are not fundamental. Therefore, not all of the BOR needs to be incorporated.







* Note: I am intentionally using the very same language of the Slaughterhouse Court. Privileges and Immunities. Used by both the Majority and the dissents, regardless of the actual wording of the amendment. Quibbling over the word "or" notwithstanding.
 
The 9th (most overrturned court I believe among the Appeals Courts) went out front and ruled contrary to precedent, and might be overturned based on what the SCOTUS does. So, after listening to an earlier thread of the 7th Circuit 2A case where the justice laughingly told Messers Halbrooke and Gura to appeal them and that they would have a good case but they weren't getting the ruling that day from them, I think this will have to be decided by the SCOTUS.
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Actually the most overturned court is the 4th circuit--but it's a nearly meaningless distinction. Only a microscopic fraction, less than 1%, of any circuit court's rulings are ever going to be overturned by the Supremes.

PT111, another part of the equation one has to remember was that at the time the federal government couldn't really afford to sustain a standing army when it wasn't needed. We'd racked up a lot of debt during the Revolutionary War. By 1796, the size of the US Army was down to just 3,359 men. A volunteer militia was necessary to make up the defense in any situation where local defense or fast reactions were needed.
 
Don't forget, also, that the 9th Circuit may yet rehear Nordyke v. King en banc. If they do, it's up for grabs as to whether the full appellate circuit will reverse or preserve the decision of the three judge panel.
 
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