MacDonald v Chicago - Open Thread

[Mr. White]

I didn't see it linked anywhere else, so I thought I should post here: http://www.supremecourt.gov/opinions/09pdf/08-1521.pdf

I recommend that you at least read through the majority opinion, it's important stuff.

[bstrawse]

The NY Times editorial board has a few thoughts:

http://www.nytimes.com/2010/06/29/opini ... e1.html?hp

[mrokern]

The NY Times editorial board has a few thoughts:

http://www.nytimes.com/2010/06/29/opini ... e1.html?hp

And I submit why I will never live in NYC, either. Think of the money those morons must save by doing their own colonoscopies...

Chicago, NYC, anywhere in California...you couldn't pay me enough to move to any of them. I'd join my father-in-law on the farm first. Some days that doesn't sound like a half-bad idea.

-Mark

[bstrawse]

Having lived almost seven years in Massachusetts, two in Maryland, and a short stint in NJ, I am quite sure I'm not going anywhere like that ever again...

b

[Mr. White]

This is an interesting role-reversal for conservatives and liberals... lefties clamoring for states' rights and righties begging for an expanded federal reach. This is certainly the right result, it is just amazing what can happen when you add guns to the equation.

[mrokern]

This is an interesting role-reversal for conservatives and liberals... lefties clamoring for states' rights and righties begging for an expanded federal reach. This is certainly the right result, it is just amazing what can happen when you add guns to the equation.

Not so much (well, yeah, on the lefty part).

This isn't conservatives looking to extend the federal power...it's conservatives asking that the Constitution be applied to the states. Big difference between the Constitution and federal code.

While as a 2A person I wish they had done this under the P or I clause, I understand the slippery slope that could be created by overturning the slaughter-house cases.

-Mark

[Mr. White]

This isn't conservatives looking to extend the federal power...it's conservatives asking that the Constitution be applied to the states. Big difference between the Constitution and federal code.

Just because there isn't a statute doesn't mean that there isn't an expanded federal reach. Righties (and I) wanted the U.S. Constitution to apply to an area that it previously hadn't (viz. state gun laws). That, by any measure, is an expansion. If you look at this as a zero-sum game, federal authority got bigger and state autonomy got smaller. This is a great result, let's just be honest about what the consequences are.

[mrokern]

This isn't conservatives looking to extend the federal power...it's conservatives asking that the Constitution be applied to the states. Big difference between the Constitution and federal code.

Just because there isn't a statute doesn't mean that there isn't an expanded federal reach. Righties (and I) wanted the U.S. Constitution to apply to an area that it previously hadn't (viz. state gun laws). That, by any measure, is an expansion. If you look at this as a zero-sum game, federal authority got bigger and state autonomy got smaller. This is a great result, let's just be honest about what the consequences are.

In this case, not worried about it. Constitutional rights take precedence over state laws. The Bill of Rights was one of the longest contested parts of that, and that was in large part courtesy of racism. I don't think this put anything in place that wasn't supposed to be there in the first place.

-Mark

[Mr. White]

I don't think this put anything in place that wasn't supposed to be there in the first place.

If you mean that the 2nd Amendment was meant to be applied to the states in the first place, then not even Alito would agree with you; see page 5 of the opinion where he writes: " The Bill of Rights, including the Second Amendment, originally applied only to the Federal Government." He has a good recitation of the history of incorporation in the opinion that I linked above... it is worth checking out.

I think that incorporation is important, it means that local cops can't search our cars for no reason, and the state can't take our property without paying us and can only do so for a legitimate purpose (unless you live in New London, CT). But it wasn't this way at first; it took the 14th Amendment and some curtailing of "states' rights" to get us here. My point here is that most conservatives consistently extoll the virtues of states' rights and condemn any encroachment upon them; yet they view this opinion as a resounding victory... all I was doing was pointing out that inconsistency.

And if you don't think that this is an encroachment upon state autonomy, don't take my word from it... look at the majority opinion (p. 44):

incorporation of the Second Amendment right will to some extent limit the legislative freedom of the States, but this is always true when a Bill of Rights provision is incorporated. Incorporation always restricts experimentation and local variations, but that has not stopped the Court from incorporating virtually every other provision of the Bill of Rights. “[T]he enshrinement of constitutional rights necessarily takes certain policy choices off the table.” Heller, 554 U. S., at __ (slip op., at 64). This conclusion is no more remarkable with respect to the Second Amendment than it is with respect to all the other limitations on state power found in the Constitution.

Respectfully,
TW

[DeanC]

My point here is that most conservatives consistently extoll the virtues of states' rights and condemn any encroachment upon them; yet they view this opinion as a resounding victory... all I was doing was pointing out that inconsistency.

+1

See the link John S. posted in this thread.

[mrokern]

Ok, I'm going to go into cranky mode, and this isn't directed at any one person, and I mean that.

Either come up with a solution, or this is a pointless debate.

I know the Incorporation history, my college education is in Constitutional Law. I've got a better grasp of the case law and intent surrounding this than most. Doesn't make my opinions any more right, but believe me, I've done my research many times over.

The damn shame of it is that we are a government of men. The Bill of Rights should not have to exist, but it does. Why? Because common sense is an endangered trait, and has been for a very long time now.

The states fought against the Bill of Rights largely because of racism. Sorry, but it really was about keeping those scary black men in chains. They didn't want black men running free, they didn't want abolitionist literature printed or distributed...etc, etc.

Sometimes you have to force people to recognize basic rights. Stupid and more than a little ironic, isn't it? But it's a sad fact.

So to those saying that this decision is hypocrisy in action...WHAT DO YOU SUGGEST?

-Mark

[Mr. White]

3 quick things:

1)

I know the Incorporation history, my college education is in Constitutional Law. I've got a better grasp of the case law and intent surrounding this than most. Doesn't make my opinions any more right, but believe me, I've done my research many times over

I'm not questioning your knowledge on the subject, I was simultaneously pointing out the value of Alito's opinion to everyone else. I think that his history lesson on incorporation is a clear and concise read. I am an attorney, and I need a refresher on the subject sometimes as well. It's complicated stuff.

2)

Either come up with a solution, or this is a pointless debate.

I disagree, there is value in reconsidering what we think and why...

3)

So to those saying that this decision is hypocrisy in action...WHAT DO YOU SUGGEST?

I suggest recognizing the occasional value in the fed telling states what it cannot do... whether it be the Civil Rights Act, sodomy laws or "gun control." Take your pick. I also applaud the "can't beat 'em, join 'em" approach. Incorporation is not going away. There is a lot of stare decisis behind the concept, you might as well federalize your values while you have the chance

But seriously, I should get back to work...

[mrokern]

I suggest recognizing the occasional value in the fed telling states what it cannot do... whether it be the Civil Rights Act, sodomy laws or "gun control." Take your pick. I also applaud the "can't beat 'em, join 'em" approach. Incorporation is not going away. There is a lot of stare decisis behind the concept, you might as well federalize your values while you have the chance

But seriously, I should get back to work...

I actually agree with you on a lot of counts. It's NOT right that in order to guarantee liberties, we have to federalize power.

But it's what we have, unless we can elect a government that has common sense.

Yeah, that's a funny thought to me too. Kind of sad, isn't it?

[jgalt]

So to those saying that this decision is hypocrisy in action...WHAT DO YOU SUGGEST?

To state that a given action is hypocritical to, or inconsistent with, the actor's stated principles & beliefs does not mean that said actor had any other choice given their situation. That is clearly the case here.

I haven't seen it written anywhere, but based on their stated principles, I suspect that could Scalia or Thomas (and possible Roberts & Alito) go back to 1787-91, they would have argued strenuously against the adoption of the Bill of Rights. Recognizing & accepting the changes that have occurred over the past 219 years makes their votes pragmatic, and the only real option they had left to them, but that doesn't change the fact that the vote was inconsistent with what they actually believe.

To be more clear, I am beginning to feel that the existence of the Bill of Rights may in fact be the "fatal flaw" in the Constitutional process, and I most certainly would have done everything I could to prevent its adoption. But had I been on the Supreme Court this past session, I would have voted with the majority. This might make me a hypocrite, and it certainly is inconsistent with my principles, but what it really points out is that the Constitution is now a dead letter. The rule of law is gone, and all that is left is the rule of man. Thank goodness there are still a few principled people on the SCOTUS - God save us when we lose that majority...

[mrokern]

So to those saying that this decision is hypocrisy in action...WHAT DO YOU SUGGEST?

To state that a given action is hypocritical to, or inconsistent with, the actor's stated principles & beliefs does not mean that said actor had any other choice given their situation. That is clearly the case here.

I haven't seen it written anywhere, but based on their stated principles, I suspect that could Scalia or Thomas (and possible Roberts & Alito) go back to 1787-91, they would have argued strenuously against the adoption of the Bill of Rights. Recognizing & accepting the changes that have occurred over the past 219 years makes their votes pragmatic, and the only real option they had left to them, but that doesn't change the fact that the vote was inconsistent with what they actually believe.

To be more clear, I am beginning to feel that the existence of the Bill of Rights may in fact be the "fatal flaw" in the Constitutional process, and I most certainly would have done everything I could to prevent its adoption. But had I been on the Supreme Court this past session, I would have voted with the majority. This might make me a hypocrite, and it certainly is inconsistent with my principles, but what it really points out is that the Constitution is now a dead letter. The rule of law is gone, and all that is left is the rule of man. Thank goodness there are still a few principled people on the SCOTUS - God save us when we lose that majority...

I'll agree with this. The very foundation of the BoR was built on frustration and more than a hint of desperation.

My point was simply that's it's an unfortunate reality that we needed to do this, and there wasn't another option.

As a side note, I think the circumstances that have led us to this point as a nation will eventually be our undoing, but that's another topic...

-Mark