Gun Control & RKBA
Related: About this forumQuestion for those who think 2A can be "reinterpreted" if you can come up with the right judges.
I assume you want it reinterpreted to mean I DO NOT have an individual right to own a gun.
My question for those people would be: How does the legal concept of stare decisis figure into your wishes/plans?
If memory serves me correctly, the subject of stare decisis always comes up in Supreme Court confirmation hearings, normally in the context of whether or not the nominated judge thinks Roe v. Wade is settled law and the nominee always responds in the affirmative when asked if they believe it is.
I ask because District of Columbia v. Heller was the first Supreme Court case in United States history to decide whether the Second Amendment protects an individual right to keep and bear arms for self-defense. McDonald v. Chicago simply served to clear up the uncertainty left in the wake of District of Columbia v. Heller as to the scope of gun rights in regard to the states. In McDonald v. Chicago, the Court held that the right of an individual to "keep and bear arms" protected by the Second Amendment is incorporated by the Due Process Clause of the Fourteenth Amendment and applies to the states.
"Stare decisis is a legal principle by which judges are obliged to respect the precedent established by prior decisions. The words originate from the phrasing of the principle in the Latin maxim Stare decisis et non quieta movere: "to stand by decisions and not disturb the undisturbed." In a legal context, this is understood to mean that courts should generally abide by precedent and not disturb settled matters."
http://en.wikipedia.org/wiki/Stare_decisis
Is stare decisis a legal concept you would throw out in order to achieve your goals in regards to gun control, even if it meant future courts could drag Roe v. Wade back in front of the Bench?
Personally, I'd hope not.
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elleng
(130,974 posts)'Times change, and so does the Supreme Court—sometimes quite rapidly. In 1952, during Senator Joseph McCarthy's heyday, the court confirmed the validity of New York State's Feinberg Law, barring subversives from the public-school system. The matter seemed settled then and there. Last week the court ruled again on the Feinberg Law. This time it reversed itself, ruling by a vote of 5 to 4 that the law is now unconstitutional. Such short-term reversal is not unprecedented, but it does require agile rethinking on the court's part.'
Read more: http://www.time.com/time/magazine/article/0,9171,901991,00.html#ixzz2Jzx0yFLB
http://en.wikipedia.org/wiki/Precedent
thucythucy
(8,069 posts)deal with Stare decisis in relation to Plessy v. Fergusson?
And in a more arcane but also signficant set of rulings, how did the USSC ruling affirming lower court rulings in Halderman v. Pennhurst, deal with Stare in regards to Buck v. Bell?
In both those instances the Court would seem to have reversed former Court rulings, without throwing every single other past decision into jeopardy. Indeed, in Halderman (and prior to that in O'Connor v. Donaldson, PARC v. Pennsylvania, and Mills v. Board) the federal courts not only reversed, but would seem to have entirely repudiated prior USSC rulings dealing with the rights of people with disabilities, a repudiation subsequently affirmed and then reaffirmed in various rulings, right up to the Olmstead decision in the 1990s.
So it would seem that, while Stare decisis is truly a significant bulwark, it is by no means absolute nor unbreachable. Nor does it necessarily spill over into other court rulings, particularly if those rulings relate to different portions of the Constitution. Second Amendment rulings relate to the Second Amendment, but Roe v. Wade, as I recall (and I could very well be wrong on this) dealt more with an inherent right to privacy as implied in other portions of the Bill of Rights. (All of the other cases I'm citing were pretty much 14th amendment equal protection/due process rulings, except for Olmstead which was based strictly on the ADA).
In any event, if President Obama gets to appoint one or two justices to replace two of the more conservative justices (and one can only hope) I tend to doubt that either of these justices would vote to overturn Roe, regardless of their decision overturning Heller.
So I'm not so much answering your question, as saying this might not be the crucial contradiction you seem to think it is.
Just my humble opinion, for what it's worth.
gejohnston
(17,502 posts)but it is easier to overturn a decision that restricts individual liberty than one that guarantees it. I actually don't picture anyone trying to overturn Heller, the most likely target would be McDonald, which is more of a 14A case that put the proverbial last nail in one of the worst decisions, on the level of Scott and Plessey awful. That negative consequence I see, beyond guns, is then the right can use it as an opening to attack incorporation as a whole.
That said, there is a progressive radio host named Norman Goldman who often says "judges are just politicians in robes."
JDPriestly
(57,936 posts)Lots of decisions have been overturned in spite of the doctrine of stare decisis. Stare decisis makes it less likely that precedent will be overturned, but it does not make it impossible.
Usually the Court doesn't admit that it is overturning past decisions, gives a nod to stare decisis and then finds some reason to effectively overturn the past decisions.
lastlib
(23,248 posts)and legally nullified by the Thirteenth Amendment, so it has no legal precedent value.
JDPriestly
(57,936 posts)What about decisions regarding homosexuality? And the Commerce Clause? Generally they just distinguish the new facts, don't they?
lastlib
(23,248 posts)as my Con Law prof liked to say. ie, make so many distinctions between an original decision and subsequent cases that the original decision simply becomes irrelevant. I think Heller would have to be overruled outright, or the SC would have to make so many exceptions to the rights that case upheld that it would finally just die of the weight of exceptions. That would likely take decades, and dozens of cases at the Supreme Court level. Overruling a decision is nearly as hard, because the Brethren don't easily admit to making bad decisions. But yes, overruling precedents does happen.
jimmy the one
(2,708 posts)cherokee: Question for those who think 2A can be "reinterpreted" if you can come up with the right judges.
I assume you want it reinterpreted to mean I DO NOT have an individual right to own a gun.
My question for those people would be: How does the legal concept of stare decisis figure into your wishes/plans
Dunno really what you ask; Stare decisis in heller was tossed in the trash can by scalia, thomas, alito, roberts & kennedy, are you condemning them or praising them?
Certainly those black robes are tinted with red or blue these days, & atty gura rolled the dice on kennedy & won heller (the nra btw, did not want the 2ndA to be argued in supreme court due uncertainty of kennedy & fear they would lose forever to the militia interp).
How does roe v wade figure in? abortion was/is moreso a christian religious taboo, thus you can surmise 'separation of church & state' credo which would come into play in a supreme court decisison. Point being stare decisis precedent (if that's what you intended) would be negated by SCS.
The 2ndA was not seriously or knowledgeably interpreted as a strict individual right to bear arms prior to heller 2008, stare decisis was appealed to scalia per the latin 'stand by decisions & not disturb the undisturbed'. But scalia disregarded stare decisis & revised history & subverted the bill of rights 2ndA, at the expense of his phony baloney originalism.
There are actually 3 interps, only one of them individual rkba; the 2nd is pure militia, the 'middling' third is mainly militia with a limited individual rkba for use at home & hunting, where the founding fathers tactily would not have objected to the limited right to own one or use it to hunt, this is what I support.
but the constitutional 2ndA pertained to militia.
PS The romans would've pronounced it STAH ray deh KEE siss
gejohnston
(17,502 posts)
DanTex
(20,709 posts)All we need is to get another progressive justice and get back to the pre-Heller interpretation.
gejohnston
(17,502 posts)including Stevens. What was the original interpretation and when did the SCOTUS come to that conclusion? Who is going to push it through the courts to get it to the SCOTUS again?
http://www.nytimes.com/2007/05/06/us/06firearms.html?pagewanted=all&_r=0
jimmy the one
(2,708 posts)johnston: the dissent was also right of center including Stevens.
Ok I'll bite, you stumped me (but you also give yourself lotsa leeway).
wiki: In a dissenting opinion {heller}, Justice John Paul Stevens stated that the court's judgment was "a strained and unpersuasive reading" which overturned longstanding precedent, and that the court had "bestowed a dramatic upheaval in the law". Stevens also stated that the amendment was notable for the "omission of any statement of purpose related to the right to use firearms for hunting or personal self-defense" which was present in the Declarations of Rights of Pennsylvania and Vermont.
.. The Stevens dissent seems to rest on four main points of disagreement:
1} that the Founders would have made the individual right aspect of the Second Amendment express if that was what was intended;
2} that the "militia" preamble and exact phrase "to keep and bear arms" demands the conclusion that the Second Amendment touches on state militia service only;
3} that many lower courts' later "collective-right" reading of the Miller decision constitutes stare decisis, which may only be overturned at great peril;
4} and that the Court has not considered gun-control laws (e.g., the National Firearms Act) unconstitutional.
Justice Stevens' dissent was joined by Justices David Souter, Ruth Bader Ginsburg, and Stephen Breyer.
Ha, I'm still stumped by what you say johnston, pls elaborate.
gejohnston
(17,502 posts)jimmy the one
(2,708 posts)johnston: look at his {stevens} record in total
http://en.wikipedia.org/wiki/United_States_v._Miller
Actually Miller didn't
Huh? what game you playing now, bait & switch? riddle me this? wild goose chase?
.. you say 'look at stevens record in total' & post a wikilink to the miller case which I don't see mentioning justice stevens.
.. then you say 'actually miller didn't', well MILLER DIDN'T WHAT?
Why don't you try posting something substantive to back up your contention that stevens' heller decision was 'right of center' as you previously wrote & to which I rebutted with stevens quite liberal dissent.
what you wrote: the {heller} dissent was also right of center including Stevens. What was the original interpretation and when did the SCOTUS come to that conclusion? Who is going to push it through the courts to get it to the SCOTUS again?
.. there was no dissent in miller, it was unanimous;
.. oh maybe you're playing knock knock joke, OK, who's there?
gejohnston
(17,502 posts)Miller was a one sided argument, meaning Miller was not represented nor was a brief filed. Stevens is basically a conservative and describes himself as such, which has nothing to do with how he voted in Heller. Many of his decisions during his career could be described as right of center.
I would say that your retort lacked substance, but it did have some but was not relevant to the issue.
jimmy the one
(2,708 posts)johnston: there was no dissent in Miller because
Nah nah nah, you were talking about heller bud, & now you're tapdancing trying to shift focus onto miller, red herring.
This is what I replied to in your message #10 above, where you were addressing the heller case (note justice stevens was not on the 1939 miller court, so it had to be heller):
johnston: the dissent was also right of center including Stevens.
See where you said that? >> 'INCLUDING STEVENS', as in the heller dissent, & you labelling his dissent 'right of center'?
THAT is what I'm countering, not your miller red herring.
Explain how stevens was right of center in his heller dissent.
johnston: Stevens is basically a conservative and describes himself as such, which has nothing to do with how he voted in Heller. Many of his decisions during his career could be described as right of center.
Huh? so now stevens' conservatism had 'nothing to do with how he voted in heller', well now you've got to explain your contradictory remarks, was he or wasnt he???? right of center on heller?
We're not talking about all the other cases stevens heard during his career, JUST HELLER.
johnston: I would say that your retort lacked substance, but it did have some but was not relevant to the issue.
I couldn't care a whit what you think, your opinions are deemed prejudiced.
Blowing smoke on this one, too.
gejohnston
(17,502 posts)you just have to read what I said and say something relevant.
jimmy the one
(2,708 posts)johnston: tap dancing nothing
you just have to read what I said and say something relevant.
That's it? that's your reply? that's your defense of what you said?
I'm supposed to read your mind now as to what you intended? rather than std operating procedure where you explain yourself?
Pffft, seen better counters from a 4 yr old, it's apparent you're hoisted on your own petard, boooom.
.. you lose, goodbye.
gejohnston
(17,502 posts)no, just read what I wrote.
jmg257
(11,996 posts)Or are you saying Stevens himself is right of center??
gejohnston
(17,502 posts)and certainly was when Ford nominated him. Which is why I said "over his career".
jimmy the one
(2,708 posts)gejohnston 20. don't forget to take your ball with you ... no, just read what I wrote
I've read each of your replies several times, you're blowing smoke.
OK readers, help me out here, can ANYONE tell me what johnston is driving at? he says I should 'read what' he wrote, OK, here's what he wrote, all 5 messages, can ANYONE tell me how johnston defends his remark in #10 that justice stevens, in heller, was 'right of center'?
It's plain as day that johnston is tapdancing the night away with irrelevant & immaterial gibberish, since he's hoisted on his own petard.
johnston: 10. the dissent was also right of center including Stevens. What was the original interpretation and when did the SCOTUS come to that conclusion? Who is going to push it through the courts to get it to the SCOTUS again?
http://www.nytimes.com/2007/05/06/us/06firearms.html?pagewanted=all&_r=0"
gejohnston (11,253 posts) 12. look at his record in total
http://en.wikipedia.org/wiki/United_States_v._Miller
Actually Miller didn't."
gejohnston 16. there was no dissent in Miller because Miller was a one sided argument, meaning Miller was not represented nor was a brief filed.
Stevens is basically a conservative and describes himself as such, which has nothing to do with how he voted in Heller. Many of his decisions during his career could be described as right of center.
I would say that your retort lacked substance, but it did have some but was not relevant to the issue."
gejohnston 18. tap dancing nothing you just have to read what I said and say something relevant.
gejohnston 20. don't forget to take your ball with you ... no, just read what I wrote
OK, johnston, we've read what you wrote & see that it's nothing but irrelevancy & gibberish, probably to save face.
What should we do now?
jmg257
(11,996 posts)A municipality going to court to enact a gun control law?
A person going to court to overturn a restriction but having the law upheld?
???
