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Messages - greenplaid

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51

Stevens does have a good point - no fundamental right in the Constitution is absolute.  The government can always regulate our fundamental rights for the safety of the public, as it should. 
Quote

13th. Amendment   Right to Freedom  ???
to the U.S. Constitution

Section 1. Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction.
Section 2. Congress shall have power to enforce this article by appropriate legislation.



???

Why are you citing the 13th Amendment on Slavery?


Quote from: Burning Sands, Esq. on June 27, 2008, 12:04:11 PM
"Stevens does have a good point - no fundamental right in the Constitution is absolute.  The government can always regulate our fundamental rights for the safety of the public, as it should."

If the Court accepts that "no fundamental right in the constitution is absolute", the fundamental constitutional right to freedom (13th Amendment) would not be exempt from 'regulation' "for the safety of the public."
Some would suggest that such regulation  may be the next wave in protecting the public from violent criminals who in the District of Columbia, for example, are primarily people of color.

See post above:
Lanier plans to seal off rough ’hoods in latest effort to stop wave of violence
Michael Neibauer and Bill Myers, The Examiner2008-06-04 07:00:00.0

"D.C. police will seal off entire neighborhoods, set up checkpoints and kick out strangers under a new program that D.C. officials hope will help them rescue the city from its out-of-control violence.
Under an executive order expected to be announced today, police Chief Cathy L. Lanier will have the authority to designate “Neighborhood Safety Zones.” At least six officers will man cordons around those zones and demand identification from people coming in and out of them. Anyone who doesn’t live there, work there or have “legitimate reason” to be there will be sent away or face arrest...."

Is this constitutional because it's temporary? (as of now) If no fundamental constitutional right is absolute, it could be determined by the Court to be 'constitutional' even if made permanent in a more virulent form, " for the safety of the public" at large, as protection from those initially absolutely free men who have demonstrated an inability to adjust to the public order requirements of the social contract.

52
Constitution Is Big Winner in D.C. Gun Case

"...In response to Justice Stevens’ complaint that “hundreds of judges” have relied on the anti-individual rights interpretation of Miller, Scalia shot back: “their erroneous reliance upon an uncontested and virtually unreasoned case cannot nullify the reliance of millions of Americans (as our historical analysis has shown) upon the true meaning of the right to keep and bear arms.”

Then, adopting the interpretation urged by lead counsel Alan Gura is his brilliant brief for Heller, the majority opinion states: “We therefore read Miller to say only that the Second Amendment does not protect those weapons not typically possessed by law-abiding citizens for lawful purposes, such as short-barreled shotguns.” This language — along with language a few pages later implying that an automatic M-16 rifle can be banned — indicates that the federal ban on civilian possession of machine guns manufactured after 1986 is still constitutional; but a renewal of the expired federal ban on so-called “assault weapons,” which outlawed about 200 cosmetically incorrect sport-utility guns either by name or by generic description, might be unconstitutional.

As for the constitutionality of other gun controls: “nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms.” The word “commercial” in the last sentence could suggest that there might be constitutional problems on some laws which applied to non-commercial arms transfers. (However, there are few federal laws on non-commercial transfers, other than criminal penalties for transferring guns to prohibited persons.)

The majority opinion also affirmed the validity of bans on gun carrying in “sensitive” locations such as schools and government buildings. The language may imply that a total ban on gun carrying in ordinary public places is unconstitutional. But Heller does not attempt to answer the question of whether the Fourteenth Amendment makes the Second Amendment enforceable against state and local governments, and most carrying restrictions in public places are created by state and local governments. For now, Heller limits only the federal government — and entities such as the D.C. City Council, whose powers are granted by the federal government.

D.C. and its amici had argued that a handgun ban was alright because people could still have long guns for self-defense in the home. But the majority observed: “There are many reasons that a citizen may prefer a handgun for home defense: It is easier to store in a location that is readily accessible in an emergency; it cannot easily be redirected or wrestled away by an attacker; it is easier to use for those without the upper body strength to lift and aim a long gun; it can be pointed at a burglar with one hand while the other hand dials the police. Whatever the reason, handguns are the most popular weapon chosen by Americans for self-defense in the home, and a complete prohibition of their use is invalid.”

The D.C. law also required that rifles and shotguns as well as grandfathered pre-1976 handguns be locked or disassembled at all times in the home. D.C. and its amici conceded that a ban on using guns for self-defense in the home would be unconstitutional, but argued that the locking law contained an implicit exception for self-defense. Justice Scalia pointed out that when the D.C. law had been challenged in an earlier case (McIntosh v. Washington, 1978), the D.C. Court of Appeals (D.C.’s equivalent to a state supreme court) had pointed to the requirement that all guns in the home be inoperable as one of the features of the law.

While the majority opinion argued at length with Justice Stevens’ dissent on the text and history of the Second Amendment, the engagement with the Breyer dissent was shorter. Breyer wanted courts to perform an ad hoc balancing test on the merits of gun bans or gun controls, and he thought that there was enough social science in support of the handgun ban — although he conceded that there was a good deal of social science on other side, too — that the handgun ban should be upheld.

Justice Scalia accurately noted that the Breyer approach would negate the very decision to enact the Second Amendment: “We know of no other enumerated constitutional right whose core protection has been subjected to a freestanding ‘interest-balancing’ approach. The very enumeration of the right takes out of the hands of government — even the Third Branch of Government — the power to decide on a case-by-case basis whether the right is really worth insisting upon. A constitutional guarantee subject to future judges’ assessments of its usefulness is no constitutional guarantee at all. Constitutional rights are enshrined with the scope they were understood to have when the people adopted them, whether or not future legislatures or (yes) even future judges think that scope too broad.”

Today the law-abiding citizens of D.C. regained their right to defend themselves in their home, and to use the most suitable defensive arm for that purpose. But the bigger winner today was the Constitution itself, vindicated by a majority decision which was faithful to the Constitution’s text, and to the spirit of liberty which animated the American people who drafted and ratified the Second Amendment."
http://pajamasmedia.com/blog/constitution-is-big-winner-in-dc-gun-case/2/

53
OK, I just finished reading the opinions.  While I think Scalia has the better textual argument over Stevens, he pulled that blanket allowance of handguns out of his ass.  Breyer definitely has the better argument there, and he took Scalia to task on it:
Pajamas Media;
Constitution Is Big Winner in D.C. Gun Case
June 26, 2008 - by Dave Kopel

Dave Kopel is research director at the Independence Institute, in Golden, Colorado. He was one of three lawyers at the counsel table who assisted Alan Gura at the oral argument on March 18. His brief for the International Law Enforcement Trainers and Educators Association was cited four times in Thursday's opinions

The Supreme Court’s decision upholding the Second Amendment, and striking down the District of Columbia’s handgun ban and the ban on the use of any firearm for self-defense in the home, is solidly reasoned. Although the case leaves ample room for moderate gun control laws, the case casts doubt on the continuing validity of a variety of other gun prohibitions.

Justice Scalia, who has long shown an interest in firearms law and policy, wrote the majority opinion, joined by Chief Justice Roberts and Justices Thomas, Kennedy, and Alito. A dissent written by Justice Stevens, and joined by Justices Souter, Ginsburg, and Breyer argued that the Second Amendment protects only an individual right of vanishingly small proportions — the right of a militiaman not to be disarmed by the federal government when he is on active militia duty. Justice Breyer wrote a separate dissent, joined by the other three dissenters, arguing that even if the Second Amendment protects all law-abiding citizens, the handgun ban should be upheld because it is reasonable.

Justice Scalia’s majority opinion was impressively well-informed by the scholarly debate over the Second Amendment that has been going for the past several decades. The textual analysis is meticulous, supplemented by careful attention to the many early American and English sources which elucidate the meaning of the various words.

Justice Stevens’ effort to read the Second Amendment as militia-only requires too many implausible inferences. For example, it is true that the phrases “keep arms” and “bear arms” were often used to refer to arms possession and use in military bodies such as the militia. But as Justice Scalia points out, there are also many examples of both phrases being used to refer to owning and carrying guns for other purposes, such as self-defense and hunting.

After analyzing the text of the Second Amendment, the majority opinion then detailed the interpretation of the Second Amendment in the first half of the 19th century, showing that every legal scholar (except for one minor exception), along with state and federal courts, recognized the Second Amendment as an individual right to have guns for various purposes, including self-defense.

As Scalia explained, after the Civil War, Congress passed the Freedmen’s Bureau Act of 1866, the Civil Rights Act of 1871, and then the Fourteenth Amendment — all with the explicit purpose of stopping southern governments from interfering with the Second Amendment rights of former slaves to own firearms to protect their homes and families. All the scholarly commentators of the late 19th century — including the legal giants Thomas Cooley and Oliver Wendell Holmes, Jr. — recognized the Second Amendment as an individual right.

Previous Supreme Court precedents have not — contrary to the vehement insistence of gun prohibition advocates — adopted a contrary interpretation, the majority said. United States v. Cruikshank (1876) described the right to arms as a preexisting natural right which was protected — but not created — by the Second Amendment.

The 1939 case of United States v. Miller, which held that a tax and registration requirement for sawed-off shotguns was not facially unconstitutional, is heavily relied on by the dissent. But the majority points out that Miller’s analysis of the history of the Second Amendment was cursory; Miller did not even submit a brief, and, as explicated in a law review article cited by Scalia, the Miller case appears to have been a collusive case involving a corrupted defense attorney doing the bidding of the prosecutor. Most importantly, the Miler opinion turned on whether the particular type of gun was protected by the Second Amendment, and did not declare that only militiamen had a right to arms.
http://pajamasmedia.com/blog/constitution-is-big-winner-in-dc-gun-case/
[ARTICLE CONTINUED IN POST BELOW]





54
Lanier plans to seal off rough ’hoods in latest effort to stop wave of violence
Michael Neibauer and Bill Myers, The Examiner
2008-06-04 07:00:00.0

WASHINGTON -
D.C. police will seal off entire neighborhoods, set up checkpoints and kick out strangers under a new program that D.C. officials hope will help them rescue the city from its out-of-control violence.
Under an executive order expected to be announced today, police Chief Cathy L. Lanier will have the authority to designate “Neighborhood Safety Zones.” At least six officers will man cordons around those zones and demand identification from people coming in and out of them. Anyone who doesn’t live there, work there or have “legitimate reason” to be there will be sent away or face arrest, documents obtained by The Examiner show.

Lanier has been struggling to reverse D.C.’s spiraling crime rate but has been forced by public outcry to scale back several initiatives including her “All Hands on Deck” weekends and plans for warrantless, door-to-door searches for drugs and guns.

Under today’s proposal, the no-go zones will last up to 10 days, according to internal police documents. Front-line officers are already being signed up for training on running the blue curtains.

Peter Nickles, the city’s interim attorney general, said the quarantine would have “a narrow focus.”

“This is a very targeted program that has been used in other cities,” Nickles told The Examiner. “I’m not worried about the constitutionality of it.”

Others are. Kristopher Baumann, chairman of the D.C. police union and a former lawyer, called the checkpoint proposal “breathtaking.”

Shelley Broderick, president of the D.C.-area American Civil Liberties Union and the dean of the University of the District of Columbia’s law school, said the plan was “cockamamie.”

“I think they tried this in Russia and it failed,” she said. “It’s just our experience in this city that we always end up targeting poor people and people of color, and we treat the kids coming home from choir practice the same as we treat those kids who are selling drugs.”

The proposal has the provisional support of D.C. Councilman Harry “Tommy” Thomas, D-Ward 5, whose ward has become a war zone.

“They’re really going to crack down on what we believe to be a systemic problem with open-air drug markets,” Thomas told The Examiner.

Thomas said, though, that he worried about D.C. “moving towards a police state.”

Staff Writer Scott McCabe contributed to this report.
http://www.examiner.com/a-1423820~Lanier_plans_to_seal_off_rough__hoods_in_latest_effort_to_stop_wave_of_violence.html
 

55

Stevens does have a good point - no fundamental right in the Constitution is absolute.  The government can always regulate our fundamental rights for the safety of the public, as it should. 
Quote

13th. Amendment   Right to Freedom  ???
to the U.S. Constitution

Section 1. Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction.
Section 2. Congress shall have power to enforce this article by appropriate legislation.


56
Battle of the editorials:


It's no surprise which one I agree with.


Some might say "Long Live The First Amendment!"

57
I really couldn't care less what the msm have to say.  Get me Larry Tribe's opinion.

Even though you and the WSJ Board do not agree on the "interest-balancing test" approach as applied by Justice Breyer, your immediate identification and commentary on the approach were seen as a sign of high analytical ability. OUCH!

58

I also like Bryer's interests-balancing approach...Scalia gave no guidance as to how to decide future cases.
THE WALL STREET JOURNAL
Silver Bullet
  June 27, 2008; Page A12
The 2008 Supreme Court term ended with a bang yesterday as the Justices issued their most important ruling ever in upholding an individual right to bear arms. The dismaying surprise is that the Second Amendment came within a single vote of becoming a dead Constitutional letter.

That's the larger meaning of yesterday's landmark 5-4 ruling in D.C. v. Heller, the first gun control case to come before the Court in 70 years. Richard Heller brought his case after the Washington, D.C. government refused to grant him a permit to keep a handgun in his home. The District has some of the most restrictive handgun laws in the country – essentially a total ban. The D.C. Circuit Court of Appeals, in a 2-1 decision by Judge Laurence Silberman, overturned the ban in an opinion that set up yesterday's ruling by taking a panoramic view of gun rights and American legal history.

In writing for the majority, Justice Antonin Scalia follows the Silberman Constitutional roadmap in finding that the "right of the people to keep and bear arms" is an individual right. The alternative view – argued by the District of Columbia – is that the Second Amendment is merely a collective right for individuals who belong to a government militia.

Justice Scalia shreds the collective interpretation as a matter of both common law and Constitutional history. He writes that the Founders, as well as nearly all Constitutional scholars over the decades, believed in the individual right. Many Supreme Court opinions invoke the Founders, but this one is refreshing in its resort to first American principles and its affirmation of a basic liberty. It's not too much to say that Heller is every bit as important to the Second Amendment as Near v. Minnesota (prior restraint) or N.Y. Times v. Sullivan (libel) are to the First Amendment.

Which makes it all the more troubling that no less than four Justices were willing to explain this right away. These are the same four liberal Justices who routinely invoke the "right to privacy" – which is nowhere in the text of the Constitution – as a justification for asserting various social rights. Yet in his dissent, Justice John Paul Stevens argues that a right to bear arms that is plainly in the text adheres to an individual only if he is sanctioned by government.

Justice Breyer, who wrote a companion dissent, takes a more devious tack. He wants to establish an "interest-balancing test" to weigh the Constitutionality of particular restrictions on gun ownership. This balancing test is best understood as a roadmap for vitiating the practical effects of Heller going forward.

Using Justice Breyer's "test," judges could accept the existence of an individual right to bear arms in theory, while whittling it down to nothing by weighing that right against the interests of the government in preventing gun-related violence. Having set forth this supposedly neutral standard, Justice Breyer shows his policy hand by arguing that under this standard the interests of the District of Columbia would outweigh Mr. Heller's interest in defending himself, and the ban should thus be upheld.

But as Justice Scalia writes, no other Constitutional right is subjected to this sort of interest-balancing. "The very enumeration of the right takes [it] out of the hands of government" – even the hands of Olympian judges like Stephen Breyer. "Like the First, [the Second Amendment] is the very product of an interest-balancing by the people – which Justice Breyer would now conduct for them anew."
In that one sentence, Justice Scalia illuminates a main fault line on this current Supreme Court. The four liberals are far more willing to empower the government and judges to restrict individual liberty, save on matters of personal lifestyle (abortion, gay rights) or perhaps crime. The four conservatives are far more willing to defend individuals against government power – for example, in owning firearms, or private property (the 2005 Kelo case on eminent domain). Justice Anthony Kennedy swings both ways, and in Heller he sided with the people.

Heller leaves many questions unanswered. Contrary to the worries expressed by the Bush Administration in its embarrassing amicus brief, the ruling does not bar the government from regulating machine guns or other heavy weapons; or from limiting gun ownership by felons or the mentally ill. Any broad restriction on handguns or hunting rifles will be Constitutionally suspect, but legislatures will still have room to protect public safety.

Heller reveals the High Court at its best, upholding individual liberty as the Founders intended. Yet it is also precarious because the switch of a single Justice would have rendered the Second Amendment a nullity. With the next President likely to appoint as many as three Justices, the right to bear arms has been affirmed but still isn't safe.
http://online.wsj.com/article/SB121453315144709663.html?mod=djemEditorialPage

59

I don't presume to speak for most Black Americans and neither should they.

Most 'organizations' seem to suffer from that affliction. ;)



60
Project 21, a nonprofit and nonpartisan organization sponsored by the National Center for Public Policy Research, has been a leading voice of the African-American community since 1992. 


Really?   ???  Who knew?   :D
During the debate over the nomination of John Roberts to the U.S. Supreme Court, People for the American Way said: "Project 21, the NCPPR's effort to create a 'new leadership for Black America,' seems little more than African American spokespeople with extremist views that are at odds with what the majority of African Americans care about and believe."

Do you believe that the Heller Decision is out of step with the views of most black Americans?




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