Monday, June 28, 2010

The Consitutional canary lives ...

Really though, all of the Bill of Rights and each Amendment to the Constitution are canaries in the freedom coal mine .... and some of them - such as the 10th - are already on the bottom of the cage twitching; but there are two Amendments that the enemies of individual liberty are always trying to kill, the 1st and the 2nd.

Well - this has been a very strong year for the 2nd. From The Examiner.
In the landmark case of McDonald v. Chicago, 08-1521, the Supreme Court has ruled that the 2nd Amendment right to keep and bear arms applies against state and local governments. This lawsuit was brought by Otis McDonald, a Chicago resident who had suffered multiple burglaries and wished to have a handgun for self defense against criminals.

In a 5-4 decision, the Supreme Court today held that an individual right to keep and bear arms was among the fundamental guarantees protected against state and local infringement. This is an expansion of the right to keep and bear arms that the Court recognized as applying against only the Federal Government in the D.C. v. Heller case, in which the Washington, D.C. handgun ban was struck down.

Writing for the Court, Justice Alito stated that “A provision in the Bill of Rights that protects a right that is fundamental from an American perspective applies equally to the federal government and the states," Although the 5 justices in the majority differ as to whether it is the Due Process clause or the Privileges or Immunities Clause which causes the 2nd Amendment right to keep and bear arms to apply against state and local governments, they are in agreement that it does in fact apply.
Good links, gulp, at the NYT, and pathetic spin at SeeBS.

I highly encourage you to read Justice Thomas's concurring opinion here, but let's go to the actual opinion written by Justice Alito. This is just a taste at the goodie that is there.

Congress, however, ultimately deemed these legislative remedies insufficient. Southern resistance, Presidential vetoes, and this Court's pre-Civil-War precedent persuaded Congress that a constitutional amendment was necessary to provide full protection for the rights of blacks.[ 24 ] Today, it is generally accepted that the Fourteenth Amendment was understood to provide a constitutional basis for protecting the rights set out in the Civil Rights Act of 1866. See General Building Contractors Assn., Inc. v. Pennsylvania, 458 U. S. 375, 389 (1982); see also Amar, Bill of Rights 187; Calabresi, Two Cheers for Professor Balkin's Originalism, 103 Nw. U. L. Rev. 663, 669-670 (2009).

In debating the Fourteenth Amendment, the 39th Congress referred to the right to keep and bear arms as a fundamental right deserving of protection. Senator Samuel Pomeroy described three "indispensable" "safeguards of liberty under our form of Government." 39th Cong. Globe 1182. One of these, he said, was the right to keep and bear arms:

"Every man . . . should have the right to bear arms for the defense of himself and family and his homestead. And if the cabin door of the freedman is broken open and the intruder enters for purposes as vile as were known to slavery, then should a well-loaded musket be in the hand of the occupant to send the polluted wretch to another world, where his wretchedness will forever remain complete." Ibid.
Even those who thought the Fourteenth Amendment unnecessary believed that blacks, as citizens, "have equal right to protection, and to keep and bear arms for selfdefense." Id., at 1073 (Sen. James Nye); see also Foner 258-259.f
That, my friends, is from the top rope.

One note of caution here though - be happy but also understand that this was 5-4. 4 Justices do not see the Constitution as what it is - a protector of individual liberty.

Know their minds to bolster yours; read the dissenting opinions by Stevens here and the other three; Breyer, Ginsburg, and Sotomajor here.

Rejoice - but keep your powder dry. The Statist does not sleep; neither should you.

47 comments:

DG said...

"<span>if the cabin door of the freedman is broken open and the intruder enters for purposes as vile as were known to slavery, then should a well-loaded musket be in the hand of the occupant to send the polluted wretch to another world"</span>

Ok, that just rocks.

Tregonsee said...

35 years ago, by a 7-2 majority, the SCOTUS found the right to privacy and as a consequence unlimited abortion in the Constitution.  By contrast, by a 5-4 vote is has in the last two years managed to find a right which has been "hiding" in plain sight for 200+ years.  This does not bode well for the future defense of liberties unless there are sufficient changes in the political climate to push the balance firmly into the traditional camp.

AW1 Tim said...

 There was a time in this nation where the written word was thought to be as beautiful a form as that created by the artist or sculptor. Where many today see such earlier forms of expression as verbose or tiresome, I find them to be a pleasing companion to these old eyes.

AW1 Tim said...

 The question now becomes what sort of restrictions states and municipalities can encumber the citizen with without violating the court's decision.

 It's worth noting that the cities and areas with the largest number of firearms-related crimes are those which have been ruled by Democrats for long periods of time, during which their draconian and big-government ideals have degraded the rights of the citizen to those of a serf, or an adolescent.

KP93 said...

<span>The Liberal and the Air Force both in their own right anathema to the well established tenants of successful Naval Leadership; namely execution at the lowest level informed by experience and anchored in integrity and accountability.</span>

Byron said...

You know, I've been putting it off for a long time; Now it's time to get a weapon. 5-4 and we got Kagan sitting in the bullpen? Gonna have to see about that .45 (if'n it don't kill 'em, it'll scare 'em half to death)

ewok40k said...

I used to be convinced that US has problems with guns, but considering Swiss have pretty much none, with every citizen having assault rifle at home as part of militia system, and Scandinavians are pretty much the same withlarrge gun ownership percentage, I am sad to conclude US have problems with its citizens. Please no offence to be taken :)

WTH said...

Molon Labe!

Spade said...

What you really need to read is Justice Scalia's opinion. He basically says, "I agree with the majority but I feel like taking Justice Stevens out behind the wood shed and beating the crap out of him on his last day."

MR T's Haircut said...

Byron,

I started reloading.. my first die and load kit is .45 

Great gun.   Easy to operate.

I recommend a 1911 Springfield USGI good weapon for the price.  Next get a CCW.  it is signed by Charles Bronson!

MR T's Haircut said...

exactly,,, Assklown Daly is already starting the spin machine.. Bloomberg blooming idiot is next.

We are assailed daily by the idiots.  We have to be vigilant. 

 When the 2nd Amend goes... I go.

MR T's Haircut said...

the Confirmation kubuki theater shows how entrenched the Socialists are.... 5-4 for every decision... scary... but then again we have checks and balances... the fear is when all three branches screw us equally.

UltimaRatioRegis said...

"<span>I am sad to conclude US have problems with its citizens."</span>

Or twelve million illegal aliens whose crime rate is seven times that of US citizens, and whose drug gangs have made many inner cities (among them Chicago and DC, two cities with handgun BANS) killing grounds.

And let us not forget the words of Jefferson that the right to keep and bear arms is the last redress against tyranny.

xformed said...

Don't dispair!  The MA SJC ruled the 2nd doesn't apply to their state,in March.  I guess that means the 1st, 4th and 5th are next to go out the window, when judges decided they can do what ever they can...The Constituion be damned!

http://www.southcoasttoday.com/apps/pbcs.dll/article?AID=/20100311/NEWS/3110340

xformed said...

as we tetter on the brink of "conversion" to the a system I like to think of as the greatest practical joke played on mankind by a retired industrial baron.

UltimaRatioRegis said...

MA SJC can say what it wants, but Heller and the Chicago ruling does apply.  And SCOTUS will be teeing that one up soon if this guy's lawyer is worth a damn.

UltimaRatioRegis said...

Boston Maggie will be having a Second Amendment day up in Vermont tomorrow.  She will be properly imbued with the aura of recoil, gun oil, and expended brass. 

cdrsalamander said...

The problem is not guns ... as you comments about the Swiss and Scandinavians are solid.  The statistics are a bit more interesting when you take into consideration different socio-economic groups into consideration.

Just as an example - in Vermont anyone can carry a concealed weapon if they are not a felon.  No permit required as there is in mine (yes I have one).  Very little crime.

Go to Detroit or Chicago where you have UK like gun laws.  Different story.  Our big problem; criminal drug gains and a gangster sub-culture in some areas of our society.

Like John Lott says; "More Guns; Less Crime" - at least in the USA.

UltimaRatioRegis said...

Interesting comparison between firearm murders in Vermont and DC for the last thirty years.

Vermont allows concealed carry without a permit.  DC forbade handguns of any type. 

Very similar in size of population.

DC had many years with more than 300 firearm murders.  Vermont's "high" was eleven.  And VT had several years with 1 or zero.

Huh.  Wasn't it H G Wells who told us that an armed society is a polite society?

UltimaRatioRegis said...

Byron,

Concur with MTH about the 1911.  Best handgun ever made.  I have several, they are superb home defense weapons.

LT B said...

That is the BEST thing about my FL CCW!  How cool is it that Charles Bronson signs it?!

MR T's Haircut said...

Hey Progressives... The Constitution... READ IT..  

Lobotomized said...

It was Heinlein not Wells.  

萱祥 said...

河水永遠是相同的,可是每一剎那又都是新的。......................................................................

Jeff Gauch said...

The "good" news is that Kagan, if she's confirmed, will replace Ginsburg thus maintaining the balance.  The Supreme Court has achieved a kind of dynamic stability where elder justices choose to retire during the administrations of ideological compatriots.

If a conservative justice dies or is forced to retire in the next two years things could get...interesting.

ewok40k said...

Well, on the other end of the scale: Japan - top of gun control and politeness scale. I am  more and more convinced that criminal-problem scociety without guns is as dangerous as with guns (think machetes/gaspipes/whatever), while high law-abiding standard society even with guns remains safe.
Been doing local research for here in Poland. 40 millions people.
Law guns are here pretty strict, not much reduced from the communist times.
About 700 homicides yearly, of which about 400 are commited in domestic, usually alcohol-driven incidents, most often with kitchen knives or other "dangerous tool". Less than 40 gun use case. I have seriously more probability of being killed by atmospheric discharge  (aka thunderbolt) than getting shot. And even more probability of being ran over by car than getting murdered, but I guess in the US the case is the same.
Can anyone provide me with statistics for some comparable size  state in the US?
Anyway one big problem I see is that when in XVIIIth century Constitution was amended for the 2nd time, armed to the teeth homicidal maniac walking into crowded area could kill 2 persons with handgun in each hand, then be restrained by citizens on scene (and quite possibly executed on the spot, but thats another matter). By the advent of six-shooters, problem got worse, but still was manageable. Widespread use of automatic weapons was what makes problem grave. Even police with standard handgun plus shotgun in the patrol car loadout finds itself increasingly outgunned. Think Beverly Hills Cop (the first) finale, or the infamous case of "Terminator robbers"
http://en.wikipedia.org/wiki/North_Hollywood_shootout
.  That in turn has led to ever greater spread of SWAT units and military-grade weapons in police work.

Anonymous said...

Jeff: Kagan will be replacing Stevens, who although appointed by a Republican has a judicial philosophy that can be summarized as 'If I like it it's constitutional, if I don't it isn't." Kagan may turn out to be a better judge. 

SCOTTtheBADGER said...

I have a HK USP45F on my duty belt, and a Colt AR-15 and a Winchester 1300 in the squad.  I am comfortable with what I have. 

MR T's Haircut said...

lol Ewok,

you should come to America and live for a month.  

MR T's Haircut said...

Kagan is an activist who is no friend of the Constitution

J.J. said...

I'm not sure the Constitution per se is a protector of individual liberty. As originally written it was almost certainly not-- it was a "Constitution" namely the constituting of the institutions of government-- the legislative, executive and judicial etc.  The first ten amendments which seem to protect individual liberties were eventually interpreted by the Court to be only limitations on the power of the Federal Goverment, so the individual was left to the devices of the states, which makes sense given that the Constitution did protect the instiutition of slave holding. So after a devastating civil war, i.e. after the Constitution proved a failure as written, it gets amended in such a vague way that in order to protect individuals from State governments, the Courts come up with incorporation through the 14th Amendment.  It is not the Constitution by itself but the Constitution has it happens to have been interpreted by certain jurists that has become the protector of individual liberty. Sometimes I think it is the tradition of wrongly believing the Constitution was about protecting individual liberty that has protected our individual liberties.

CDR Salamander said...

You need to step back from nuance and start from "Go."  Back to primary sources.

Read Locke.  Then the Declaration of Ind.  Then the Constitution.  Then the Federalist and Anti-Federalist papers.

Your opion may change.

UltimaRatioRegis said...

Wow.  So much to disagree with.  Yes, the Constitution was defining our system of Government.  And the Bill of Rights limited the power of the Federal government.  But all was done against the background of individual liberties.  All of it. 

"or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances."

"the right of the people to keep and bear Arms, shall not be infringed"

"The right of the people to be secure in their persons, houses, papers, and effects"

"No person shall be held to answer for any capital, or otherwise infamous crime"

"In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State"

"The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people."

"are reserved to the States respectively, or to the people."

Sounds like a great deal of reference to individual liberties to me.  As "the people" is universally considered to be reference to the individual and not the collective.  Unless you're Chuck Schumer and want to repeal the 2nd Amendment.

J.J. said...

I'm thinking about it, except that I must disagree insofar as I can only find one instance in the Constitution where "people" is referring to the individual, it is almost always used as a collective.  Thus the 2d Amendment could bear the interpretation that the people as a collective through their local militias could not have the right to bear arms infringed upon.  Of course the parallel language "the right of the people to be secure in their persons..." seems to be very individually directed.

Byron said...

Don't forget the Magna Carta, either, bud. Add in a few history books so you can understand the context behind the Constitution (the ones that weren't revised to reflect revisionist views, either).

UltimaRatioRegis said...

JJ,

You missed the boat.  Go back and start again.  This time review the documents Phib points you to.  Your logic chain takes you to an argument that the Constitution protects collective rights.  So you would have to define that for us.

CDR Salamander said...

Oh, I am on travel today in my POV for about 6 hours.  Mr. Ruger's SP101 always gets the jump seat.  His LCP fits well as I move about outside the car as well.

MR T's Haircut said...

Huh?

Ever heard of the Bill of Rights?

Actually the Constitution was all about INDIVIDUAL rights.  It incorporated the various States viewpoints and it spelled out the LIMITED power of the Federal govt.  Somehow people try to casually dismiss it as living, or breathing or vague... GET WITH PROGRAM IDIOTS!  THE CONSTITUTION... IT IS THAT SIMPLE!!

LT B said...

I usually have one or the other of my Sigs.  The wife knows how to use both as well.  What sucks is I can not carry to work and back.  Stupid sissy military!

J.J. said...

No actually the collective "the people" is somewhat vague but certainly the Constitution does protect collective rights. You must not confuse the collective rights of the "people" with the State or Federal Governments which are referred to specifically in opposition to "the people". One can imagine that the notion of majority or representative rule is to protect "the people" from onerous government by royalty, or whoever had the engines of power. Democracy, representative democracy, indeed the ratification of the Constitution itself were collective acts provided for and protected by the constitution.

J.J. said...

Limiting the power of the Federal Government vis a vis the States is not about individual rights, it is about raising the power of another governmental form- the States over the individual. Anyone living in a local area like say NYC knows that local and State regulation and infringements on rights can be far more onerous than Federal infringement....

Byron said...

Gosh, didn't know Bill Clinton started a law school...Hey, J.J., the people have ALWAYS been individuals! If they wanted to be part of a "collective", they should have been born RUSSIAN.

Aubrey said...

Colorado has the same gig as Vermont - got to show evidence of completing a class, then as long as your record is clean you're getting the CCW. State court even over-ruled the college campuses here (and it doesn't get much more nutty liberal than CU Boulder) and said they can't ban weapons for CCW holders.

Oh, and for the record its a .40 S&W - fun gun, and reliable as all get out...backed up with the P90 at home :)

ewok40k said...

MTH, I'd love to... Guess what? the only Schengen zone country that doesnt get visa-free access to USA is Greece? no, Portugal? No! Poland? Yes!
I'd love to dive at Florida Keys, climb the Blue Ridge, look from the top of Empire Stat Bldng., watch the Grand Canyon, and of course shoot some good guns :P
Offtopic: Good news this day from AFG, Polish/ANA joint task force killed atleast 24 Talib fighters in a big skirmish. 

Aubrey said...

More than a little off-topic, but I've been to Poland 4 times in the last 7 years and I just found out about the visa thing 2 weeks ago.  That visa requirement is about the stupidest thing I have heard in a long time...

I may be heading back to the Gdansk area next summer (depends on other plans at this point)....Poland falls in the top three of countries I've visited (out of...err...26 if I count right).

Grumpy Old Ham said...

Oh, good grief.  I'll even get the exact quote for you.

"We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness. That to secure these rights, Governments are instituted among Men, deriving their just Powers from the Consent of the Governed...(emphasis mine).

http://www.democracyweb.org/consent/principles.php
http://www.ushistory.org/declaration/document/index.htm

MR T's Haircut said...

J.J.  I recommend you read who George Mason was... he is the REASON we have a Bill of Rights.