July 14, 2009

Re: A Question that Senator Whitehouse Might Ask of Judge Sotomayor

Carroll Andrew Morse

I think a Rhode Island Tea Party member needs to drop a copy of the United States Constitution off at the office of Senator Sheldon Whitehouse, because the Senator seems stunningly unfamiliar with its content. This is part of what Senator Whitehouse had to say during his opening remarks at Judge Sonia Sotomayor's Supreme Court confirmation hearing...

For all the talk of modesty and restraint, the right-wing justices of the Court has a striking record of ignoring precedent, overturning congressional statutes…for instance; the Louisville and Seattle integration cases, the first limitation on Roe versus Wade that outright disregards the woman's health and safety; the D.C.-Heller decision discovering a constitutional right to own guns that the Court had not previously noticed in 220 years...
In describing the District of Columbia v. Heller decision as the “discovery” of a right, the Senator appears unaware that a right to keep and bear arms was written into the Constitution in 1791, in the form of the Second Amendment…
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.
As the Court laid out in Heller, the reference to a right of the people clearly describes an individual right, and no Supreme Court majority has ever attempted to contract the meaning of the Constitution to suggest that rights of the people sometimes imply rights that can only be exercised through government-authorized collectives…
The first salient feature of the operative clause is that it codifies a “right of the people.” The unamended Constitution and the Bill of Rights use the phrase “right of the people” two other times, in the First Amendment ’s Assembly-and-Petition Clause and in the Fourth Amendment ’s Search-and-Seizure Clause. The Ninth Amendment uses very similar terminology (“The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people”). All three of these instances unambiguously refer to individual rights, not “collective” rights, or rights that may be exercised only through participation in some corporate body.
... so whatever it is that Senator Whitehouse meant by the right of an individual to own a gun having been "discovered" is unclear.

Furthermore, given that Senator Whitehouse makes a point of defending a Constitutionally guaranteed right to abortion -- which by his own "reasoning" went unnoticed for at least 180 years or so -- he manages to be both logically inconsistent (some rights obviously exist, even when they are not mentioned by the Courts for 100+ years, but not others) and wrong on the facts (on the meaning of the Court’s Second Amendment rulings) at the same time.

As noted here yesterday, Second Amendment jurisprudence is of direct relevance to the Sotomayor nomination. Earlier this year, Judge Sotomayor joined a Second Circuit opinion supporting the right of state governments to ignore Second Amendment limitations on their actions, despite the fact that the Courts have ruled that most limits on government power contained in the Bill of Rights, through the Fourteenth Amendment, constrain state governments as well as the Federal government. However, the Second Circuit’s opinion also suggested that, in light of the Heller decision, the Supreme Court could readily change the controlling precedent on this matter. As it is a Supreme Court seat that Judge Sotomayor has been nominated for, she owes the public a clear and direct explanation of whether she believes the Second Amendment is incorporated by the Fourteenth Amendment, or if she believes that judges can selectively ignore rights of the people guaranteed expressly in the Constitution.

The idea that the Second Amendment is incorporated into the Fourteenth Amendment and therefore constrains the states is, by the way, supported by the Attorney Generals of 33 states, who haved filed an amicus brief with the Supreme Court in the cases of NRA v. Chicago and McDonald v. Chicago, arguing that…

Over the last century, the Court has held that “virtually all” of the individual rights found in the Bill of Rights apply to the States through the Due Process Clause of the Fourteenth Amendment....

As history has proven, the right to bear arms provides the foundational bulwark against the deprivation of all our other rights and privileges as Americans—including rights that have already been incorporated against the States by this Court. Accordingly, the Court should grant the petitions and hold that the Second Amendment also secures a “fundamental” right that can no more be abrogated by local government than by the federal government.

Rhode Island Attorney General Patrick Lynch chose not to join this brief. I put the question of whether the Fourteenth Amendment incorporates the Second Amendment to Attorney General Lynch's Office, and received this reply from his official spokesman...
First, this case posed the question of whether or not a state or local government could enact a law prohibiting possession of weapons in the home. As you may know, Rhode Island law already allows possession of weapons in the home; the permit process, in which the Attorney General is extensively involved, applies only to carrying a concealed weapon outside of the home or a business. Thus, the issue that is before the court is not applicable to Rhode Island. We recognize that some have sought to broaden the question to be more of a referendum on the Second Amendment and what it means, but the issue is actually more narrow than that.

Second, this office generally does not participate at the cert stage, although we have participated in a number of briefs once the court accepts a case for review (i.e., the "merits" stage). In the event this case is accepted for review, we will certainly review any proposed amicus briefs being considered by attorneys general.

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Sheldon likes skeet shooting.I guess that's a proper form of recreation for the landed gentry,but us hoi-polloi must resort to sticks and rocks to defend our mud huts.
Sheldon is the biggest arrogant phony in the state and the RIF crew acts like his crap doesn't stink because he deigns to attend a spaghetti dinner or two with the commoners(as long as they know their place dontch'a know)-I can't believe we had a choice of two effete fools for Senator.The Senate is becoming more of a bedpan by the day.

Posted by: joe bernstein at July 14, 2009 5:12 PM

The right to bear arms, in my opinion is definitely an individual right. Not because of the republican view of hunting, or rural survival...but more than that it helps empower the citizenry. The founding fathers also empowered the people by stating that if the government becomes a tyranny, than we as citizens have the right to replace or alter it. I believe any infringement of any of the rights we were given is a way to weaken the social system even further. The less power a citizen has to check the power of central government, the more corrupt that government will become...the same is true the other way around, there was once, and there needs to be again a better balance of power of citizen and power of government...the partisan system in ways restricts the power check citizens once had...

One example of many is what Joe Bernstein brought up about having to choose between John Leftwing, and John Moore Leftwing...there are rarely "perfect" choices, and this is true because the Republican party, for example, will not back a real Right Wing conservative in certain areas because they don't believe that he or she will win support in very Democrat infested districts...this is a direct way that citizens freedom of voting choice is infringed upon, and hurts the power check of the citizens...the citizens of course still have the right to check the power, because they do not "have" to vote for one or the other...but it makes it much harder for a common citizen to put in enough time to "find" the right candidate, because it is not set there in front of him or her...

The government has to begin to respect the power check of the citizens, or the citizens need to really get involved more passionately or the government will continue to grow out of control, and eventually they will become corrupt enough to infringe more rights that solidify central government power over soveriegn citizens' rights...those types of governments ALWAYS fail...America needs to Wake Up, wake up America...

Posted by: ProvidencePlato at July 14, 2009 7:22 PM

ProvidencePlato expresses a good argument for a multi-party democracy and coalition government as opposed to our current winner take all two party system. I think that he is blinded to a multi-party democracy because he thinks only in terms of two parties.

The problem is that neither of the two parties really cares to deal with alternative views, and by ignoring them they keep power to themselves.

Posted by: OldTimeLefty at July 14, 2009 8:02 PM

"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."

When I studied history, the point was made that a "well regulated militia" was a defense against Federal incursions. While not prevelant in the Northeast, the "militia" (by various names) was referred to as the "Governor's army".

Just an historical note, not a suggestion for action.

Posted by: Warrington Faust at July 14, 2009 11:00 PM

OTL-I'm not exactly in disagreement with you on the idea that the current two party system is like a hamster wheel with no innovative direction to go in.
Are you suggesting a parliamentary system?They seem to get more bogged down than we do.
If you study 19th century history,it will be noted that a number of third and even fourth parties of substantial influence existed at various times.
Plato-it wasn't even a question of left wing vs.left wing-it was a contest between two degenerated patricians.
Obama is getting weirder every day.he passed a remark about too much "chatter" in the Senate.Scary.While the Senate listens to Sotomayor try to play word games,he's appointing people with REAL power and no confirmation process to vet them.They are called "czars"-more like the Persian satraps of old if you ask me.Each the potentate of their own bailiwick.
We'll wake up one day and find that there is only one real branch of government left.
An armed populace is the only thing that keeps the government honest.
Do the math-80,000,000 gun owners.
Scumer/Obama,etc move for a ban.
5% resist.4,000,000 Ruby Ridges-how will the latte and Volvo crowd handle that one?
I will always love this country,but I don't have to like or trust the government.It would be better if I could without reservation,but it doesn't seem likely.
BTW OTL-I HAVE voted third party.Like it mattered,but what the hell.

Posted by: joe bernstein at July 14, 2009 11:55 PM

OMG I find myself in agreement with OTL once again. Though I think having a multi party democracy is good, I wouldn't go as far as the Italian model that has, I think, at last count eighteen parties.

Posted by: bobc at July 15, 2009 5:41 PM

Again, a total mischaracterization from AR. Prior to Heller, the US Supreme Court has never once held that the right to bear arms was a personal right. The Heller decision broke new ground. What Heller did not decide is whether the right can be asserted against state governments as opposed to the federal government (as in DC). Why do you find it so difficult to separate your advocacy from the objective realities? Heller defined 2nd amendment rights for the first time. There is no serious dispute about that. The two sides argued about what the amendment meant for many years, but the Court had never definatively weighed in prior to Heller.

If your only argument is to cite back to the text of 2nd amendment and to deny that there is a great deal of ambiguity in what that text means, then you're just not being intellectually honest.

Posted by: Pragmatist at July 17, 2009 9:32 AM

Can you show me the decision where the Court considered that the First Amendment might only protect a "collective" versus and "individual" right? If not -- applying the standard you want to apply to the Second Amendment -- how can we possibly say that the Constitution says that the people have the right of free speech means that they have an "individual" right to free speech?

And thanks for re-stating the premise of my question, when you say…

What Heller did not decide is whether the right can be asserted against state governments as opposed to the federal government (as in DC)
but honestly, I did a better a job in the original post. If judges don't believe that the 2nd amendment incorporated into the 14th Amendment, I'd like to know on what basis they believe it is clear that Amendments 1 and 3-8 are incorporated, while Amendment 2 is not.

Posted by: Andrew at July 17, 2009 10:11 AM

Andrew-they just don't like guns and people who own them-there really isn't a simpler way to put it.
That bag of pus,Chris Matthews was railing against gun ownership on his show the other day.These gun haters never quit-if they are ever able to push this issue to a national confrontation it will be one of those really horrific cases of "don't wish,for something,because you might get it".
Sheldon was lisping about how the individual right to bear arms was just discovered after 220 years.The man sounds like a congenital idiot.Maybe he ought to take up something simpler,like protecting 15 year old girls who have more courage in their pinky than he has in his whole body.Oh,sorry-he tried that once and it didn't work out so well.
While Sheldon was busy pulling people's gun permits,a murderous lowlife was able to carry one to kill that child.
My dentist,a retired military officer,had his permit cancelled.Was he gonna rob a 7-11?
Jeff Pine had a reasonable gun permit policy.Jeff Pine was a good AG.I think politics sickened him.
Some years ago,it turned out Karina Wood,the head of the Million Mom March in RI,was not a US citizen.She stated on radio she was a resident alien from the UK.Reed and Kennedy appeared with her at anti-gun rallies.WTF is a non-citizen doing trying to change US laws?And being abetted by legislators?
Bizarro world.

Posted by: joe bernstein at July 18, 2009 9:09 AM
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