Interpreting the 2nd Amendment: Literalism and Intent in Gun Laws

[Al68]

What they did not know was that a sawed off shotgun was, in fact, used as a military weapon on both sides of the Civil War. The evidence of such was not argued because neither Miller or his legal counsel appeared at the SCOTUS. If they had appeared, that decision may have been different on this fact alone. Just a lil historical tidbit.

Yeah, that's because Miller was deceased by the time SCOTUS heard the case. And yes, the result probably would have been different otherwise.

 

[Al68]

...the proper course is legislation to amend, and then orderly ratification, state-by-state.

Said like a true strict constructionist.

Seriously, too many people reject this notion of properly amending the constitution as needed in favor of just pretending that it says something different than before, because the latter is far more expedient. After all "judicial activism" is far easier than amending the constitution legitimately. Amending it legitimately is basically impossible without the explicit consent of a majority of the people, after ample opportunity to inform themselves about the issue.

 

[Al68]

I believe the same argument applies with the 2nd, that is to say that, if the prefatory clause were invalid, the amendment loses its reason for being, as written up by the framers.

Note: I do not insist that the prefatory clause is invalid, nor that there may not be other very good reasons besides the one provided by the framers. My objection is merely to arguments heard last year (such as the one by Heller) that the invalidity of the prefatory clause has no effect on the amendment.

The prefatory clause states a purpose, not an applicability condition, for the operative clause.

There's a big difference.

 

[TheStatutoryApe]

As I said, the issues immediately before us were, for the most part, settled 150+ years ago. For me to suggest (for example) that educated men in the late 1700s or even in the mid-1800s were nevertheless racist and wrong is not in the least bit arrogant.

I used to argue in here that a USSC decision on something is sacrosanct because they are the body charged with making such decisions (the law is what they say it is). In the past few months/years, I've changed that opinion because I've seen too many cases where our supposedly apolitical judges are, in reality, making decisions that are highly politicized.

The comment I was responding to primarily involved the supremacy clause and the 2nd amendment along with your assertion that the answer to these constitutional issues seems straight forward. How racism comes into that I am unsure, perhaps you are conflating the disagreement here with the one in the other thread.

My point is that these issues (federal vs state supremacy, ect) having been addressed and debated over the last two centuries and have never seen a simple and straightforward decision. Your assertion, in the face of this, seems laughable. The fact that the first congress saw fit, even after the constitution was 'settled', to immediately go about amending it to assuage the anxieties of antifederalists shows rather clearly that these issues were not so clear cut and 'settled' as one might think.

*edit: note that this is one of the primary deficiencies of orginalism, that the creation of the constitution was a rather contentious affair and deciding what those who framed and ratified the constitution intended can often lead to conflicts in historical reports and what exactly is considered to have been 'settled'.

It's in the court ruling.

I know. I need to make some time for reading it.

 

[TheStatutoryApe]

I've read through about half of the majority and skimmed the rest. In Scalia's concurrence he pretty much simply says that he agrees with the majority though has reservations about the incorporation process in general and then he continues on to argue points of Steven's dissent and I did not really feel like reading that.

Basically the position of the majority is that it is a matter of self defense. I could figure that much out without having ever read the thing. It does seem fairly self evident that self defense is intertwined with due process. I have only been attempting to figure out how one would define its relationship to due process. On this count the majority opinion is lacking. Alito seems to take several pages as a continuation of his argument in Heller justifying the use of arms for self defense and its role in the history in the US but never seems to get to the point of explaining the relationship of self defense to due process. I found that disappointing.

 

[turbo]

Said like a true strict constructionist.

Seriously, too many people reject this notion of properly amending the constitution as needed in favor of just pretending that it says something different than before, because the latter is far more expedient. After all "judicial activism" is far easier than amending the constitution legitimately. Amending it legitimately is basically impossible without the explicit consent of a majority of the people, after ample opportunity to inform themselves about the issue.

Yes, and this is the basic process that gives rise to the notion of the constitution as a "living document" that can evolve with time. Still, the process is the correct one, based on the balance of powers. Ruling from the bench (court), legislation to amend (Congress), and ratification (state's rights through legislatures or special conventions) then application of the law (administration). It is a slow, tedious process, but it is the correct one. If we abandon the correct path in favor of speed and expediency, the integrity of our constitution and our laws suffer. Those who pretend that the constitution is infallible and inviolate need to step back and consider why the founding fathers saw the need to provide a process for amendments.

 

[Cyrus]

Yes, and this is the basic process that gives rise to the notion of the constitution as a "living document" that can evolve with time. Still, the process is the correct one, based on the balance of powers. Ruling from the bench (court), legislation to amend (Congress), and ratification (state's rights through legislatures or special conventions) then application of the law (administration). It is a slow, tedious process, but it is the correct one. If we abandon the correct path in favor of speed and expediency, the integrity of our constitution and our laws suffer. Those who pretend that the constitution is infallible and inviolate need to step back and consider why the founding fathers saw the need to provide a process for amendments.

I think I see the problem here, and it is a definitional one. You seem to think what you just described is an argument for a 'living document', when in fact you just argued a 'dead' constitution. A "living document" means that judges make activist decisions that effectively bypass the amendment process.

 

[turbo]

I think I see the problem here, and it is a definitional one. You seem to think what you just described is an argument for a 'living document', when in fact you just argued a 'dead' constitution. A "living document" means that judges make activist decisions that effectively bypass the amendment process.

Wrong. The constitution cannot be changed willy-nilly or with undue haste. It is a living document, in that it can evolve to match our times BUT there is a correct way for the process to proceed, which is what I outlined above. It is a slow process, but it is the correct process. Judicial activists make presumptive interpretations that supersede the correct process, and prevent the constitution from evolving properly. That method presumes that the constitution is dead.

In the Citizens United vs FEC decision, activists on the court have done just that - deciding that corporations can exercise the same rights as individuals, including the right to spend freely to influence our elections - because political spending is "free speech". Corporations already have unprecedented access to our elected representatives - after all, I can hardly afford to spend $20K for an "honorarium" to bribe one of my senators to speak to me and my wife at breakfast so we could make our case for her support of a cause we believe in. Corporations have that type of access already. The notion that they deserve the right to buy US elections is perverse, and is unsupported by any reading of the constitution. Contrast that with the recent decision on gun rights, and you'll see the difference between judicial activism and judicial restraint.

With the evolution of firearms and the proliferation of fully-automatic weapons (especially Thompsons during prohibition) Congress saw fit to establish more stringent regulations and controls on fully-automatic weapons. The law has held. Had it been challenged and overturned, it might have been necessary to make an additional amendment to re-define the citizens' right to bear arms, so that Class III weapons were excluded. As it stands, you can own Class III weapons, subject to more stringent requirements than conventional weapons. Background check, waiting period, and a steep per-gun licensing fee have not be found by the court to be unreasonable barriers to such ownership, so the law stands.

 

[Gokul43201]

The prefatory clause states a purpose, not an applicability condition, for the operative clause.

Exactly. My argument is limited to pointing out that without the prefatory clause, the amendment lacks a purpose (or as I may have said it, a reason for being).

 

[Cyrus]

Wrong. The constitution cannot be changed willy-nilly or with undue haste. It is a living document, in that it can evolve to match our times BUT there is a correct way for the process to proceed, which is what I outlined above. It is a slow process, but it is the correct process. Judicial activists make presumptive interpretations that supersede the correct process, and prevent the constitution from evolving properly. That method presumes that the constitution is dead.

Go do me a favor, reread what I wrote.

In the Citizens United vs FEC decision, activists on the court have done just that - deciding that corporations can exercise the same rights as individuals, including the right to spend freely to influence our elections - because political spending is "free speech". Corporations already have unprecedented access to our elected representatives - after all, I can hardly afford to spend $20K for an "honorarium" to bribe one of my senators to speak to me and my wife at breakfast so we could make our case for her support of a cause we believe in. Corporations have that type of access already. The notion that they deserve the right to buy US elections is perverse, and is unsupported by any reading of the constitution. Contrast that with the recent decision on gun rights, and you'll see the difference between judicial activism and judicial restraint.

Don't argue straw men. Wrong thread for this subject.

With the evolution of firearms and the proliferation of fully-automatic weapons (especially Thompsons during prohibition) Congress saw fit to establish more stringent regulations and controls on fully-automatic weapons. The law has held. Had it been challenged and overturned, it might have been necessary to make an additional amendment to re-define the citizens' right to bear arms, so that Class III weapons were excluded. As it stands, you can own Class III weapons, subject to more stringent requirements than conventional weapons. Background check, waiting period, and a steep per-gun licensing fee have not be found by the court to be unreasonable barriers to such ownership, so the law stands.

Here you have the right to bear arms, subject to federal regulation. But you are not denied that right.

 

[turbo]

Go do me a favor, reread what I wrote.

Do me a favor, and read what Al68 and I have been batting back and forth and try to understand it. There is a process for modifying our constitution that does not involve judicial activism, legislating from the bench, or fiat. It is a well-defined process designed to keep our constitution and our laws relevant in changing times.

 

[Cyrus]

Do me a favor, and read what Al68 and I have been batting back and forth and try to understand it. There is a process for modifying our constitution that does not involve judicial activism, legislating from the bench, or fiat. It is a well-defined process designed to keep our constitution and our laws relevant in changing times.

My god, you're dense man. I'm the person that brought up the process of Amendment in the first place. Was that beyond you when I posted it?

I'll answer my own question: It is apparently clear to me that it was beyond you.

Jeeeeeeeeeeeeezuuuuuuuus. I'm not talking in Chinese here...

 

[Cyrus]

Third, the experience of other advanced democracies, including those that share our British heritage, undercutsthe notion that an expansive right to keep and bear armsis intrinsic to ordered liberty. Many of these countriesplace restrictions on the possession, use, and carriage of firearms far more onerous than the restrictions found in this Nation. See Municipal Respondents’ Brief 21–23(discussing laws of England, Canada, Australia, Japan,Denmark, Finland, Luxembourg, and New Zealand). That the United States is an international outlier in the permissiveness of its approach to guns does not suggest thatour laws are bad laws. It does suggest that this Court may not need to assume responsibility for making our laws still more permissive.

What a load of nonsense from Justice Stevens! What irony in this statement about Britain!

 

[mheslep]

What a load of nonsense from Justice Stevens! What irony in this statement about Britain!

I wouldn't say that quote Justice Steven's descent in McDonald is so much nonsense as it is outrageous arrogance. Who the hell does he think he is? If he deeply feels the need to use phrases like 'international outlier' he was always free to retire from the bench and run for office, or go work for the UN. He sounds more like a nanny than a judge.

 

[Al68]

I think I see the problem here, and it is a definitional one. You seem to think what you just described is an argument for a 'living document', when in fact you just argued a 'dead' constitution. A "living document" means that judges make activist decisions that effectively bypass the amendment process.

I think I see the real problem here. Your definition of "living document" is the one used by some to refer to or justify bypassing the constitutional amendment process. But "living document" actually just means a document that can be amended.

The U.S. Constitution is clearly a "living document" since it contains an amendment process.

 

[drankin]

I think I see the real problem here. Your definition of "living document" is the one used by some to refer to or justify bypassing the constitutional amendment process. But "living document" actually just means a document that can be amended.

The U.S. Constitution is clearly a "living document" since it contains an amendment process.

This is how I've always taken it. I didn't realize there was another way to think of it, that is, "living" in the sense that it can interpreted by the whims of the times.

 

[Office_Shredder]

A living document tends to refer to a document that can be continually updated over time. A document that has been updated a score or so times over two centuries maybe technically qualifies as living, but not really.

With regards to the constitution, it is called a living document to refer to the ability of judges to re-interpret the meaning of the text, which is equivalent to modifying the document

 

[Cyrus]

I think I see the real problem here. Your definition of "living document" is the one used by some to refer to or justify bypassing the constitutional amendment process. But "living document" actually just means a document that can be amended.

The U.S. Constitution is clearly a "living document" since it contains an amendment process.

Yes, I am going by what Justice Scalia calls a 'living document', as I defer to him as the best person to define such a term. By his own account, Scalia calls the constitution 'dead.' I.e, the rules are clearly laid out. You want to change it? - Use an amendment.

 

[drankin]

Yes, I am going by what Justice Scalia calls a 'living document', as I defer to him as the best person to define such a term. By his own account, Scalia calls the constitution 'dead.' I.e, the rules are clearly laid out. You want to change it? - Use an amendment.

To call it "living" in Scalia's terms would totally offset the checks and balances, IMO. Having the belief that it is dead and in stone puts the responsibility upon Congress to change the law, in other words, do their damn job. It is what it is until it is amended. Not what some activist judges decide based on how they view other governments of the times.

 

[Cyrus]

To call it "living" in Scalia's terms would totally offset the checks and balances, IMO. Having the belief that it is dead and in stone puts the responsibility upon Congress to change the law, in other words, do their damn job. It is what it is until it is amended. Not what some activist judges decide based on how they view other governments of the times.

Yep.

 

[Al68]

With regards to the constitution, it is called a living document to refer to the ability of judges to re-interpret the meaning of the text, which is equivalent to modifying the document

I wouldn't call that "equivalent" at all. An amendment actually changes the constitution while a "re-interpretation" only changes what someone thinks it means. The idea that "what it means" can be changed without "what it says" being changed (by amending it) is just corrupt.

 

[DnD Addict]

Not sure if it should mean anything when talking about USA gun control policy; Mexico is having a tough time right now, in part, because of how easy it is to get deadly weapons from the USA. The Gulf cartel in particular is infamous for arming itself with deadly weapons (I'm not talking about handguns here...) purchased in the USA.

The claim this issue has nothing to do with people outside the USA is blatently false.

 

[Al68]

Basically the position of the majority is that it is a matter of self defense. I could figure that much out without having ever read the thing. It does seem fairly self evident that self defense is intertwined with due process. I have only been attempting to figure out how one would define its relationship to due process. On this count the majority opinion is lacking. Alito seems to take several pages as a continuation of his argument in Heller justifying the use of arms for self defense and its role in the history in the US but never seems to get to the point of explaining the relationship of self defense to due process. I found that disappointing.

I finally read the entire majority opinion. I don't see anything resembling "self defense intertwined with due process" anywhere in it.

The majority opinion is that the right to bear arms (for self defense) is covered by the "due process clause" because it is a protected liberty. No person shall be deprived of liberty without due process (fair trial and conviction for a crime).

Due process is only related because it provides an exception to what is prohibited by the clause: A person may be deprived of liberty with due process (fair trial and conviction for a crime).

 

[drankin]

Not sure if it should mean anything when talking about USA gun control policy; Mexico is having a tough time right now, in part, because of how easy it is to get deadly weapons from the USA. The Gulf cartel in particular is infamous for arming itself with deadly weapons (I'm not talking about handguns here...) purchased in the USA.

The claim this issue has nothing to do with people outside the USA is blatently false.

But, what's that got to do with the US? We formed our own government and our own laws of the land. Our responsibility is for our own citizens. Mexico needs to control it own borders, just as we REALLY need to control ours. Anyone can walk into Mexico with nothing more than a friendly wave. That's their problem. If they want to prevent guns coming from the US then maybe they should mind the borders a bit better don't you think. That is THEIR responsibility.

We're not the ones with daily drug trafficing shootouts with the cops. Just yesterday 21 ppl killed between rival drug/human trafficing gangs along the Mexican border. It's not about gun ownership of law abiding citizens of the US.

Whether our laws affect those outside of our borders is what Cyrus would proclaim "irrelevant".

 

[Cyrus]

Not sure if it should mean anything when talking about USA gun control policy; Mexico is having a tough time right now, in part, because of how easy it is to get deadly weapons from the USA. The Gulf cartel in particular is infamous for arming itself with deadly weapons (I'm not talking about handguns here...) purchased in the USA.

The claim this issue has nothing to do with people outside the USA is blatently false.

What a load of nonsense. Even if what you stated were true, <shrug> what do I care? Enforce better boarder control policy. That's Mexico's problem, not mine. It has no bearing on my constitutional rights, and by all mean's if Mexico wants to complain they should stop sending over Illegals into my country. I find Mexico's stance hypocritical, to say the least.

 

[Cyrus]

This is a great video, the first half is against the Heller decision, and the second (better) half is for it.

 

[TheStatutoryApe]

I finally read the entire majority opinion. I don't see anything resembling "self defense intertwined with due process" anywhere in it.

The plaintiffs argue that they have been deprived of their right to bear arms for the purpose of self defense, relying on Heller, by the City of Chicago. Their secondary argument seeks to establish the obligation of the state, and lower jurisdictions, to not infringe this right through the "due process" clause via the doctrine of Incorporation.
The court finds that their right to bear arms for the purpose of self defense may not be infringed by the state based on the "due process" clause, setting aside the primary argument based on the "privileges or immunities" clause.
So according to the court the right to bear arms for self defense is a part of due process. See my response to the rest of your post for the rest of the rationale.

The majority opinion is that the right to bear arms (for self defense) is covered by the "due process clause" because it is a protected liberty. No person shall be deprived of liberty without due process (fair trial and conviction for a crime).

Due process is only related because it provides an exception to what is prohibited by the clause: A person may be deprived of liberty with due process (fair trial and conviction for a crime).

I have attempted to correct this misunderstanding already, let me try again.
The aim of the plaintiffs is to establish a constitutional obligation on the part of the state, and lower jurisdictions, to respect the right of its citizens to bear arms for the purpose of self defense. Your rationale here does not establish that obligation but, rather, presupposes it.
The doctrine of Incorporation through the "due process" clause is based on the idea that those rights incorporated are essential to due process itself and so the obligation upon the states to respect due process includes and obligation to respect these rights.

http://en.wikipedia.org/wiki/Incorporation_of_the_Bill_of_Rights

Justice Felix Frankfurter, however, felt that the incorporation process ought to be incremental, and that the federal courts should only apply those sections of the Bill of Rights whose abridgment would "shock the conscience," as he put it in Rochin v. California (1952). Such a selective incorporation approach followed that of Justice Moody, who wrote in Twining v. New Jersey (1908) that "It is possible that some of the personal rights safeguarded by the first eight Amendments against National action may also be safeguarded against state action, because a denial of them would be a denial of due process of law. If this is so, it is not because those rights are enumerated in the first eight Amendments, but because they are of such a nature that they are included in the conception of due process of law." The due process approach thus considers a right to be incorporated not because it was listed in the Bill of Rights, but only because it is required by the definition of due process, which may change over time.

My emphasis added.

 

[Al68]

The plaintiffs argue that they have been deprived of their right to bear arms for the purpose of self defense, relying on Heller, by the City of Chicago. Their secondary argument seeks to establish the obligation of the state, and lower jurisdictions, to not infringe this right through the "due process" clause via the doctrine of Incorporation.
The court finds that their right to bear arms for the purpose of self defense may not be infringed by the state based on the "due process" clause, setting aside the primary argument based on the "privileges or immunities" clause.
So according to the court the right to bear arms for self defense is a part of due process.

The court didn't say anything resembling "the right to bear arms for self defense is a part of due process". They said that states couldn't deprive a person of their right to bear arms without due process. How on Earth could the right to bear arms be a part of due process itself?

The aim of the plaintiffs is to establish a constitutional obligation on the part of the state, and lower jurisdictions, to respect the right of its citizens to bear arms for the purpose of self defense. Your rationale here does not establish that obligation but, rather, presupposes it.

No, the plaintiffs argued (secondarily) that states are prohibited from depriving citizens of their liberty without due process, because that's exactly what the "due process" clause says. And their liberty includes the right to bear arms. Heller confirmed that recently. Using simple logic to combine Heller with the due process clause results in: "No state shall deprive any person of their right to bear arms without due process".

The doctrine of Incorporation through the "due process" clause is based on the idea that those rights incorporated are essential to due process itself and so the obligation upon the states to respect due process includes and obligation to respect these rights.

SCOTUS obviously didn't use that narrow interpretation of the Incorporation Doctrine in this case. This majority opinion doesn't make the (dubious) claim that the right to bear arms is "essential to due process itself". And nothing in the "due process" clause itself suggests that the word "liberty" means only those liberties which are "essential to due process itself".

The doctrine used in this case is that the right to bear arms is incorporated into the "due process" clause because it is a protected liberty, not because it's essential to due process itself".

 

[mheslep]

[...]
So many seem to be aware that the constitution was in fact changed to address these flaws; that the constitution doesn't have to be willy nilly interpreted beyond all recognition to suit some judge's crusade to change society. I collected all the above because Judge Ginsburg seems to be equally unaware of the the 13th-15th and 19th amendments when she made almost identically baffling statements in an interview where she responded to a question about Scalia's frequent denouncement of the 'living constitution' doctrine. (Looking for it ...) What the hell?

I'd be very interested in seeing that interview - and it is baffling to me as well.

The interview was in 2008 by CBS' 60 Minutes, actually on Scalia, with a brief cut in comment from Ginsburg (who is personally very friendly with Scalia).
Starts here about 6:40
http://www.cbsnews.com/video/watch/?id=4448191n

Transcript - CBS Leslie Stahl and Ginsburg:

[...]
Stahl:
To Ginsburg, the Constitution evolves and should reflect changes in society; that going back to what was meant originally when they wrote, for instance, "We the People," makes little sense.

Ginsburg:
"Who were 'We the People' in 1787? You [Leslie Stahl] would not be among 'We the People.' African Americans would not be among the people,"[...]

So Ginsburg qualified her statement to 1787, so of course she's technically right, but this is nonetheless a fatuous response to a question on the validity of original interpretation, given an amended constitution.

 

[TheStatutoryApe]

The court didn't say anything resembling "the right to bear arms for self defense is a part of due process". They said that states couldn't deprive a person of their right to bear arms without due process. How on Earth could the right to bear arms be a part of due process itself?No, the plaintiffs argued (secondarily) that states are prohibited from depriving citizens of their liberty without due process, because that's exactly what the "due process" clause says. And their liberty includes the right to bear arms. Heller confirmed that recently. Using simple logic to combine Heller with the due process clause results in: "No state shall deprive any person of their right to bear arms without due process".SCOTUS obviously didn't use that narrow interpretation of the Incorporation Doctrine in this case. This majority opinion doesn't make the (dubious) claim that the right to bear arms is "essential to due process itself". And nothing in the "due process" clause itself suggests that the word "liberty" means only those liberties which are "essential to due process itself".

The doctrine used in this case is that the right to bear arms is incorporated into the "due process" clause because it is a protected liberty, not because it's essential to due process itself".

You obviously do not understand what the Incorporation Doctrine is. As I already stated your argument presupposes that the state is obliged to respect the 2nd amendment right and that the argument here is that these persons were deprived of their right ("liberty") without due process. How is the state obligated to give due process before taking a right which they are not even required to respect?

You say that the court is defining "liberty"? That is not reasonable. The court can not define "liberty". It is not a legal term and has no precise meaning. To attempt to define "liberty" would be to make a decision on philosophy as opposed to law. In Scalia's concurring opinion he even chides Steven's for referring to the "liberty clause" in his dissent. Besides, even if one were to try to define it, the word "liberty" occurs so frequently, and in so many differing contexts, through out Supreme Court decisions that it would be nearly impossible to define in any practical and legal sense. "Due process" is a specific and definable legal term. Any source you find will tell you that the "Incorporation Doctrine" is the process of defining "due process" to include the rights enumerated in the first eight amendments.

But let's take a look at Alito's Majority Opinion...

Second, the Court explained that the only rights pro-tected against state infringement by the Due Process Clause were those rights “of such a nature that they are included in the conception of due process of law.” Ibid. See also, e.g., Adamson v. California, 332 U. S. 46 (1947); Betts v. Brady, 316 U. S. 455 (1942); Palko v. Connecticut, 302 U. S. 319 (1937); Grosjean v. American Press Co., 297 U. S. 233 (1936); Powell v. Alabama, 287 U. S. 45 (1932).While it was “possible that some of the personal rights safeguarded by the first eight Amendments against Na-tional action [might] also be safeguarded against state action,” the Court stated, this was “not because those rights are enumerated in the first eight Amendments.” Twining, supra, at 99.

paragraph at the end of page 17 and continued on page 18

With this framework in mind, we now turn directly to the question whether the Second Amendment right to keep and bear arms is incorporated in the concept of due process. In answering that question, as just explained, we must decide whether the right to keep and bear arms is fundamental to our scheme of ordered liberty, Duncan, 391 U. S., at 149, or as we have said in a related context, whether this right is “deeply rooted in this Nation’s his-tory and tradition,” Washington v. Glucksberg, 521 U. S. 702, 721 (1997) (internal quotation marks omitted).

page 25 beginning of section III

Our decision in Heller points unmistakably to the an-swer. Self-defense is a basic right, recognized by many legal systems from ancient times to the present day,15 and in Heller, we held that individual self-defense is “the central component” of the Second Amendment right.

page 25 beginning of section III, A

In sum, it is clear that the Framers and ratifiers of the Fourteenth Amendment counted the right to keep and bear arms among those fundamental rights necessary to our system of ordered liberty.

first paragraph page 37

and a quick look at the concurrence of Justice Thomas

I agree with that description of the right. But I cannot agree that it is enforceable against the States through a clause that speaks only to “process.”

Concurring opinion page one.

I believe that you will find Thomas' opinion, not the majority opinion, is more in line with your reasoning.

You'll note that I underlined the phrase "scheme of ordered liberty" in one of the quotes above (all emphasis in above quotes, of course, is mine) and bolded Alito's reworded reference in summation. I think that this may be part of where you derived your opinion and I would suggest that it is merely a different wording for the same thing; 'legal system', 'system of justice', 'due process'. It seems only to slightly widen the mark from strict procedural due process and infer that some rights not directly, but peripherally, implicated in our system of justice are, never the less, essential to its proper function.

Here is a quote with more context...

The line of division may seem to be wavering and broken if there is a hasty catalogue of the cases on the one side and the other. Reflection and analysis will induce a different view. There emerges the perception of a rationalizing principle which gives to discrete instances a proper order and coherence. The right to trial by jury and the immunity from prosecution except as the result of an indictment may have value and importance. Even so, they are not of the very essence of a scheme of ordered liberty. To abolish them is not to violate a 'principle of justice so rooted in the traditions and conscience of our people as to be ranked as fundamental.' Snyder v. Massachusetts, supra, 291 U.S. 97, at page 105, 54 S.Ct. 330, 332, 90 A.L.R. 575; Brown v. Mississippi, supra, 297 U.S. 278, at page 285, 56 S.Ct. 461, 464; Hebert v. Louisiana, 272 U.S. 312, 316, 47 S.Ct. 103, 104, 48 A.L.R. 1102. Few would be so narrow or provincial as to maintain that a fair and enlightened system of justice would be impossible without them.

Palko v. Connecticut

You'll note that the case actually involves "double jeopardy" which is, in fact, a direct component of due process (Benton v. Maryland overturned Palko).

Now if you can find me any quote any where in an authoritative text which states the incorporation doctrine regards depriving persons of their 'liberty' "without due process", please ante up.

 

[Al68]

Now if you can find me any quote any where in an authoritative text which states the incorporation doctrine regards depriving persons of their 'liberty' "without due process", please ante up.

How about the "due process" clause itself:

...nor shall any State deprive any person of life, liberty, or property, without due process of law.

There is simply no logical way to interpret that clause to mean that due process is even relevant unless someone is being deprived of their life, liberty, or property.

Which of the following statements sound like the effective result of this ruling:

A) No State shall deprive any person of life, liberty, or property, without [STRIKE]due process of law[/STRIKE] respecting their right to bear arms.
B) No State shall deprive any person of [STRIKE]life, liberty, or property,[/STRIKE] their right to bear arms without due process of law.

Is it not obvious that A) incorporates the right to bear arms into the definition of due process while B) incorporates it into the definition of liberty in the "due process" clause?As far as Thomas' opinion, it's what I pointed out earlier: his disagreement about the due process clause is based on the fact that he accepts the primary argument of the plaintiffs, so that the privileges or immunities clause and the due process clause together effectively read: "No State shall make or enforce any law which shall abridge the right to bear arms of citizens of the United States; nor shall any State deprive any person of their right to bear arms without due process of law".

In that context, it's silly to argue that the second clause, rather than the first, was violated by the gun ban. The rest of the majority just didn't think it was "necessary" to accept the primary argument, and it's not strictly necessary for this particular case, but Thomas, being who he is, decided whether to accept the primary argument based on its merits rather than whether it was necessary to resolve this particular case.

 

[Gokul43201]

Interesting, Gokul. I think I disagree. I'll take

"As a free society depends on the ability of the people to criticize the government they construct, Congress shall make no law abridging the freedom of speech, or of the press."​

as my example.

Suppose it was demonstrated that a free society did not depend on the ability of people to criticize the government they construct. For example:

• The Machines from Asimov's "The Evitable Conflict" run the world, rather than human leaders.
• Two mutalistic societies form, each criticizing the government of the other but not their own.

etc. (One need not live in such a society -- it need only be possible.) If *any* such society is found to be possible, then under your interpretation the amendment would have no force. But I think this is counter to the intent.

Your thoughts?

I completely missed this post - I haven't been following the thread closely, and assumed that mheslep was the only participant engaging in the specific sub-thread that I was interested in. I likewise imagine that this response may well be missed by you, so I'll try to keep this somewhat brief.

Here's my opinion, and it's almost a tautology, but I must not be doing a good enough job of stating it clearly (and may do no better with this attempt): Were one or other of the forms of society described above (i.e., those that made the prefatory clause inapplicable) to replace the existing one, then the model amendment (quoted above) would no longer contain language that provided an applicable rationale for the protection of the right to free expression. This is not to say that there would not be other good reasons for safeguarding those particular freedoms, nor is it to say that the stated reason may not again become relevant over the course of future evolutions in society.

But given the entirety of intent as expressed solely through the language in the prefatory clause, and assuming the lack of relevance of said intent in the extant society, it follows trivially that the expressed intent is no longer relevant. One would have to divine intent beyond that stated in the prefatory clause to find justification for the protection of the specific freedoms. A secondary point in this regard would be that such divination would be beyond the duties of a strict literalist.

If none of that helped, perhaps I can do better with a question: Why do you believe "this" is counter to the intent?

 

[CRGreathouse]

I completely missed this post - I haven't been following the thread closely, and assumed that mheslep was the only participant engaging in the specific sub-thread that I was interested in. I likewise imagine that this response may well be missed by you, so I'll try to keep this somewhat brief.

Glad to see someone else interested.

Here's my opinion, and it's almost a tautology, but I must not be doing a good enough job of stating it clearly (and may do no better with this attempt): Were one or other of the forms of society described above (i.e., those that made the prefatory clause inapplicable) to replace the existing one, then the model amendment (quoted above) would no longer contain language that provided an applicable rationale for the protection of the right to free expression. This is not to say that there would not be other good reasons for safeguarding those particular freedoms, nor is it to say that the stated reason may not again become relevant over the course of future evolutions in society.

We're reading the preface differently. You're reading, "Since this society requires foo" and I'm reading "Since all societies require foo".

But I think that even in the case that it said "As long as this society depends on the ability of its people to criticize this government, ..." there are problems. In particular, who gets to decide whether this is true? Could a law be passed declaring that this society does not depend on that ability (thus nullifying without repealing the amendment)?

But given the entirety of intent as expressed solely through the language in the prefatory clause, and assuming the lack of relevance of said intent in the extant society, it follows trivially that the expressed intent is no longer relevant.

Hmm, that's my view as well, so it looks like we're not disagreeing after all.

 

[Al68]

But given the entirety of intent as expressed solely through the language in the prefatory clause, and assuming the lack of relevance of said intent in the extant society, it follows trivially that the expressed intent is no longer relevant. One would have to divine intent beyond that stated in the prefatory clause to find justification for the protection of the specific freedoms. A secondary point in this regard would be that such divination would be beyond the duties of a strict literalist.

Just to point out the obvious, a "strict literalist" would have no reason to divine anything, if the prefatory clause states only the purpose of the main clause, instead of determining what it means.

In the case of the U.S. Constitution, it's the federal government's charter. Every requirement is law regardless of whether it has a currently relevant purpose or not. The amendment process purposely requires the people to decide when it needs to be changed.

And, importantly, liberty needs no justification. Depriving people of it by force requires justification.