The Vitality Of Our Constitution

The Supreme Court released its final decisions this morning. Among the most anticipated was McDonald v. Chicago (PDF), where the question presented was whether the Second Amendment applies to the States, via the incorporation doctrine. Justice Stevens' dissent includes a passage on the Constitution and the role of the Supreme Court that I believe will be remembered:

[T]he liberty safeguarded by the Fourteenth Amendment is not merely preservative in nature but rather is a“dynamic concept.” Stevens, The Bill of Rights: A Centuryof Progress, 59 U. Chi. L. Rev. 13, 38 (1972). Its dynamism provides a central means through which the Framers enabled the Constitution to “endure for ages to come,” McCulloch v. Maryland, 4 Wheat. 316, 415 (1819), a central example of how they “wisely spoke in general language and left to succeeding generations the task of applying that language to the unceasingly changing environment in which they would live,” Rehnquist, The Notion of a Living Constitution, 54 Tex. L. Rev. 693, 694(1976). “The task of giving concrete meaning to the term‘liberty,’” I have elsewhere explained at some length, “was a part of the work assigned to future generations.” Stevens, The Third Branch of Liberty, 41 U. Miami L. Rev.277, 291 (1986).21 The judge who would outsource the interpretation of “liberty” to historical sentiment has turned his back on a task the Constitution assigned to him and drained the document of its intended vitality.

(Emphasis supplied.) Speaking for me only.

< Monday Morning Open Thread | McDonald v. Chicago: The Second Amendment Applies to the States >
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    As the Court moves (5.00 / 1) (#1)
    by jbindc on Mon Jun 28, 2010 at 10:46:08 AM EST
    closer to the right in the next term, this is another piece of evidence that we will miss Justice Stevens.

    Wow (1.00 / 3) (#10)
    by squeaky on Mon Jun 28, 2010 at 11:47:29 AM EST
    A psychic in our midsts. Amazing.

    BS squeaky (5.00 / 2) (#12)
    by Big Tent Democrat on Mon Jun 28, 2010 at 11:51:26 AM EST
    What in Gawd's name did you find in that comment that made you feel the urge to pick a fight?

    Stop the BS.


    That Kagan (5.00 / 1) (#20)
    by squeaky on Mon Jun 28, 2010 at 12:10:09 PM EST
    Is a move to the Right and that Stevens is more liberal than Kagan.

    Assuming Kagan is approved, I do not see any evidence pointing out how she is going to move the court to the right.


    I can't imagine (5.00 / 2) (#22)
    by Big Tent Democrat on Mon Jun 28, 2010 at 12:24:37 PM EST
    that you will have anyone who agrees with you on this point.

    And it certainly is pretty ridiculous to pick a fight with someone because they expressed the consensus opinion on the Left.

    Indeed, Stevens himself said that every Justice,including himself, appointed since he was appointed was more conservative than the person they replaced.

    Sotomayor MAY be considered a bit more liberal than Souter. but it seems unlikely that Kagan will be more liberal than Stevens.

    In any event, it certainly is not n outrageous "right wing talking point" so stow the outrage.


    OK (5.00 / 1) (#25)
    by squeaky on Mon Jun 28, 2010 at 12:40:20 PM EST
    I did not get the memo.  I have not read an opinion from you or jeralyn that Kagan is going to move the court to the right. And most of the argument has been that we do not know where she stands. In fact almost all of your writing about Kagan, is that it is important that advise and consent should be full and thorough, so that we can know where she stands. Considering that everyone already knows where she stands, it seems like a formality.

    Good to know that you know where she stands. Maybe I should read dkos from time to time so that I get the memos before I make the mistake to say that I do not know that Kagan is going to be to the right of Stevens.

    I never thought Stevens was a staunch liberal, but then again I am not a constitutional scholar.  

    And I do not get your point about a "right wing talking point", but I am sure that it is also obvious consensus opinion on the left.


    Sure you did (none / 0) (#27)
    by jbindc on Mon Jun 28, 2010 at 12:49:54 PM EST
    But you might want to read more than this blog to get perspectives on crime, the courts, etc.  Reading only one or two sources that always agree with your world view, narrows that world view and makes one hostile to differing viewpoints.

    Not a very liberal way of analyzing issues.


    Sorry I Did Not (5.00 / 1) (#33)
    by squeaky on Mon Jun 28, 2010 at 01:03:52 PM EST
    I certainly would not put my foot in my keyboard (mouth) had I known that there is consensus on the left that Kagan will move the court to the right. I have read a lot about Kagan, and do not concur with the consensus. Does that mean that there is no real consensus, because I do consider myself solidly on the left? Or am I deluded, and I am not on the left at all, but actually to the right.... lol

    And I read quite a lot outside of this blog. Much of my reading takes me to left wing blogs, news sources and reference sources. But it is true, I do not read dkos, and other left wing blogs with regularity.


    Come on (none / 0) (#36)
    by Big Tent Democrat on Mon Jun 28, 2010 at 01:17:23 PM EST
    Your disagreeing was not the issue. YOUR TONE was.

    Putting it in context, as I have read you, you have strong disdain for right wing talking points. Me too.

    Kagan as less liberal than Stevens is a Dem talking point now, not a RW one.

    Disagree with the assessment. But try and reserve the edge in the comments for when it seem more appropriate.

    I try not to get in the way of your spats. Sometimes I even agree with you - though it is not my place to condone nastiness.

    But this one seemed out of the blue to me.


    OK (none / 0) (#38)
    by squeaky on Mon Jun 28, 2010 at 01:25:33 PM EST
    Thanks for the explanation. Sorry to sound nasty. And, I really did not know that the current Dem talking point was that Kagan was to the right of Stevens.

    Reading Clinton, and others saying that Kagan is no liberal, seemed more about gamesmanship to appease the right, than a fact.

    And, because I did not know that this was consensus, I was really taken aback by the certainty of jbindc's statement.

    And, I do not agree. But as we know, there is no telling how someone will tilt once they get the job. That is except for, Roberts, Thomas, Alito, Scalia, Bork... not sure how that apparent contradiction works but it does seem true.


    Then you really haven't (none / 0) (#39)
    by jbindc on Mon Jun 28, 2010 at 01:36:52 PM EST
    been paying attention.  Since her name has been introduced as a possible candidate - even before Stevens retired, it was speculated that she would be more conservative than who she replaced.  It's not just about her - we are not going to get any on-the-face very left person on the Court - not any time soon.

    A very left person would never make it through a confirmation hearing, because, as much you may not like it, most people in this country are in the middle on most issues and do not like the extremes. The right wing extreme is a small minority, but they are well organized and have found a voice.  The extreme left wing is also a small minority, but are not nearly as organized, and therefore, their message has not been as well received by those people in the middle.


    Sotomayor Made It Through (5.00 / 1) (#40)
    by squeaky on Mon Jun 28, 2010 at 01:44:35 PM EST
    And speculation, is the correct word to use. Certainty seems a mistake, iow how many of those speculators would be placing bets?

    And I know that it is a huge contradiction, but imo, there is no certainty with Kagan, unlike the certainty that the appointments of Scalia, Alito, Thomas and Roberts would yield right wing activists.

    Sorry I do not have the time (or inclination) to figure out, and defend why I can be uncertain about Kagan but could have been certain about Roberts et al. .


    Sotomayor (none / 0) (#42)
    by jbindc on Mon Jun 28, 2010 at 01:52:07 PM EST
    may or may not be more liberal than Stevens either.  You say you have knowledge - but we don't really know that.

    I think you can't be certain about Kagan but be certain about Roberts because it's what you want to believe.  You may be right, but then again, your prejudices may be blinding you to what is real and what is your desire.


    No (5.00 / 1) (#46)
    by squeaky on Mon Jun 28, 2010 at 02:25:51 PM EST
    Not prejudices. I had personal information about Sotomayor and felt pretty certain that she would be liberal, although not certain.

    I had no information about Roberts et al., but knew that he was a right wing activist with zero chance of moving left.  

    Kagan, I would not bet on as to whether she moves the court right left or has no effect.  I  would not make the statement that she will move the court to the right (or left), unless I was saying that as a political maneuver to mollify GOP concerns.  


    Correction (none / 0) (#47)
    by squeaky on Mon Jun 28, 2010 at 02:27:54 PM EST
    I had personal information about Sotomayor and felt pretty certain that she would be liberal, although not certain how she would turn out as a SC member. IOW whether she would become more conservative or more liberal than she already is, which is liberal.

    Everyone has prejudices (none / 0) (#48)
    by jbindc on Mon Jun 28, 2010 at 02:41:44 PM EST
    You, like every other person on the planet, are inclined to believe the good things about a person you support (or at least temper the bad with a "wait and see" attitude), and will jump on any little thing and believe only bad things about a person you do not care for.  Most times that's not rational as no one is always right or good, nor are they always wrong or bad.

    You want to believe Kagan is a true liberal because you like her and you like Obama, who nominated her.  You wanted to believe that Roberts was bad because Bush nominated him, so he must be an evil conservative.  The trick is to turn the table - be very critical of those you support and actually LISTEN to those with whom you disagree.


    YOu Miss My Point (5.00 / 1) (#49)
    by squeaky on Mon Jun 28, 2010 at 02:44:53 PM EST
    I do not know enough about Kagan to say whether or not she will move the court to the right of left. And, knowing that Stevens moved to the left, as others did Blackmun for example, I would never say with certainty that Kagan would move the court to the right.

    As far as the nomination goes, I think she is fine, and certainly will do no harm.


    So (none / 0) (#50)
    by jbindc on Mon Jun 28, 2010 at 02:55:09 PM EST
    I doubt you really knew enough about Roberts or Altio either to say definitively how they would rule or move the court.

    The whole point is right in your statement "I don't know enough to make a judgment."  But I would put money on the fact that if it was President McCain's Supreme Court nominee, you'd certainly have a definite opinion about that person.


    Actually (5.00 / 1) (#53)
    by squeaky on Mon Jun 28, 2010 at 03:12:17 PM EST
    That is not correct. And I am not sure why. It appears that in the  democrats now and before appoint people who can shift to the right or left. It appears that BushCO only would appoint right wing extremists.

    He doesn't need a reason (none / 0) (#14)
    by jbindc on Mon Jun 28, 2010 at 11:54:07 AM EST
    It's Pavlovian.

    No (none / 0) (#13)
    by jbindc on Mon Jun 28, 2010 at 11:53:28 AM EST
    Just taking the word of people who actually know this stuff, instead of making snarky and silly comments.

    For example

    Of course, the fact that Republicans (outside of Sessions) really have no problem with her and don't see as a contentious figure, might also have something to do with it.


    Irony (none / 0) (#31)
    by squeaky on Mon Jun 28, 2010 at 12:58:00 PM EST
    Guess that because she is not a minority and that November elections are close, she will get less GOP support than Sotomayer who is considered to the left of Kagan.

    Who knew, but if Scotus blog says it and now BTD says is, Kagan is more liberal than Stevens.

    Funny because Stevens did not start out as being particularly liberal.

    Asked in an interview in September 2007 if he [Stevens] still considers himself a Republican, Stevens declined to comment.

    Appointed by Nixon and Ford...

    On the Seventh Circuit Court of Appeals, John Paul Stevens had a moderately conservative record. Early in his tenure on the Supreme Court, Stevens had a relatively moderate voting record. He voted to reinstate capital punishment in the United States and opposed race-based admissions programs such as the program at issue in Regents of the University of California v. Bakke, 438 U.S. 265 (1978). But on the more conservative Rehnquist Court, Stevens joined the more liberal Justices on issues such as abortion rights, gay rights and federalism. His Segal-Cover score, a measure of the perceived liberalism/conservatism of Court members when they joined the Court, places him squarely in the ideological center of the Court. However, a 2003 statistical analysis of Supreme Court voting patterns found Stevens the most liberal member of the Court.


    Not sure why one would assume that the court is moving to the right, as Stevens move to the left was due to being in a right wing Rehnquist court.  We have a right wing court now, so why wouldn't one assume that Kagan would act as Stevens did.

    Sorry to be so uninformed about this, but I would not bet money that Kagan is going to move the court to the right.


    Here's one explanation (none / 0) (#34)
    by jbindc on Mon Jun 28, 2010 at 01:04:30 PM EST
    . Yet, ironically, given Kagan's moderation compared to the more liberal politics of the retiring justice she is replacing, John Paul Stevens, Goldstein said the ultimate effect would be to tilt the court rightward. Stevens was also a well-known authority figure on the court.

    "It's like losing a committee chair, or something like that. You step back in that way," Goldstein said. "So just by way of who's leaving rather than who's coming in, the court gets a little bit more conservative."

    Explanation? (5.00 / 1) (#37)
    by squeaky on Mon Jun 28, 2010 at 01:18:20 PM EST
    Yes I read your link and responded. Not sure why you are repeating it.

    Stevens was considered center if not somewhat conservative when he joined the court. He shifted to the left. Why would one assume that Kagan will move the court to the right.

    Sorry I just do not get it. But, then again I can understand why people are saying that they are certain about Kagan, as I was certain that Roberts, who we supposedly knew nothing about, was a right wing activist.

    I just do not see the certainty about Kagan, and hope the entire left is wrong about her.


    Even from iPhone reading (5.00 / 1) (#8)
    by andgarden on Mon Jun 28, 2010 at 11:34:57 AM EST
    I can see that the Stevens dissent is excellent.

    May not be popular... (none / 0) (#2)
    by Romberry on Mon Jun 28, 2010 at 10:53:36 AM EST
    ...but I am a staunch pro-2A liberal and regard the right to keep and bear arms to be as fundamental as any other.

    I haven't read the decision yet, but regardless of how they got there, I think the court came down on the right side of this issue.

    In truth though (none / 0) (#3)
    by Militarytracy on Mon Jun 28, 2010 at 11:07:53 AM EST
    Don't the laws currently support the ownership of enough weapons to protect ourselves?  And I'm not for guns being illegal for civilians.  I've seen what the military has and I don't even know what sort of evil we would breed having a military with this kind of firepower and warrior creed and a civilian population with nothing :)  That is truly an imbalance I never want to face.  And this household still doesn't own a privately owned firearm.  It is too funny.  And Josh and my husband DVR that new show TOP SHOT too and they watched two episodes last night they missed while they were at the surgery.  I find myself watching it too with them, but we still don't own a gun to date :)  We could though if we wanted to or felt that we needed to and that means a lot to me.  The laws are so lax and loose though now I personally don't need them any looser.

    In answer to your question (none / 0) (#5)
    by Romberry on Mon Jun 28, 2010 at 11:25:25 AM EST
    Don't the laws currently support the ownership of enough weapons to protect ourselves?

    That kind of depends on where you live. If you live in Vermont, New Hampshire, Alabama, Florida, then yes. But if you live in Chicago, NYC and any number of other places, no.

    I understand that there are times when a basic right ought to and must be limited. The whole "you can't shout fire in a crowded theatre" limit to speech comes to mind (though it's a rather cliche example.)

    I don't expect that laws against the discharge of firearms within a residential area should be any different than the laws on speech with the fire in a theatre example. In each case, it's reasonable to limit your rights absent an actual emergency (like the theatre is really on fire, or someone is breaking into your home to do you harm.)

    There's some other issues that I have a problem with. For example, under current federal law, your basic right to keep and bear arms can be taken away forever as a result of a misdemeanor conviction in the right (or maybe wrong) category. I don't believe anyone's basic rights should be forever abridged because of a misdemeanor conviction. I hope that at some point these decisions on the 2-A add up to enough to get that issue addressed with a more reasonable, time-limited (think "cooling off period") temporary limitation.


    On the other hand (5.00 / 1) (#9)
    by jbindc on Mon Jun 28, 2010 at 11:41:52 AM EST
    Many gun rights' owners don't believe they should have to register their guns, or that a waiting period and background check is necessary.  Personally, I think if you need to purchase a gun right now, it might be a pretty good indication that you shouldn't have one.

    Heh! (none / 0) (#19)
    by Militarytracy on Mon Jun 28, 2010 at 11:59:03 AM EST
    Somebody stalking you, (none / 0) (#51)
    by kdog on Mon Jun 28, 2010 at 02:55:52 PM EST
    somebody threatening your life come to mind for needing a gun "right now".

    And in places like NYC, that means a black market gun is your one option.


    Get a taser (none / 0) (#52)
    by jbindc on Mon Jun 28, 2010 at 03:01:54 PM EST
    Study after study (except Locke's) show that a gun in your home is much more likely to be used against you or a family member than used to defend you against a stranger.

    I want a taser.  Found out they are legal here in VA.  They even sell them in pink.


    You bring up some very important (none / 0) (#6)
    by Militarytracy on Mon Jun 28, 2010 at 11:31:46 AM EST
    issues that I never keep track of.  I have never lived in the big city though.  It does get frightening when murder rates go through the roof for some major population centers.  I don't know if laxer laws would help, but don't people have the right to defend themselves if attacked?  All issues I'm just not on a first name basis with.

    You say (none / 0) (#26)
    by BobTinKY on Mon Jun 28, 2010 at 12:41:42 PM EST
    "If you live in Vermont, New Hampshire, Alabama, Florida, then yes. But if you live in Chicago, NYC and any number of other places, no."

    And don;t you the see the rhyme and reason to that?  How are NYC and Chicago different from Vt, NH and Alabama?  

    That's the best argument why gun control is best left to states and localities.  The majority's warped understanding of "history" provides a flimsy basis to substitue what they want the 2nd Amendment to mean for local elected officials' determinations of what works best to insure public safety in their states/cities.


    I see. (none / 0) (#28)
    by Romberry on Mon Jun 28, 2010 at 12:54:14 PM EST
    You want basic rights to depend on where you are.

    I don't mean to be snarky, but that's the essence of what you just said.

    Localities and states can enact ordinances and laws restricting firearm discharge, permissible methods of public carry (or even strict limits on public carry.) But they can't take away your fundamental right to keep and bear arms. The right to self defense is as fundamental as it gets.

    Bottom line is that we aren't gonna agree on this. I believe strongly in the individual right that is protected (not granted) by the 2A. I believe that the court made a correct decision in this case.


    Question (5.00 / 0) (#29)
    by jbindc on Mon Jun 28, 2010 at 12:56:22 PM EST
    Where does it say "the right to self-defense"?  And can't you defend yourself without a gun?

    I reject your premise and the reasoning (5.00 / 2) (#41)
    by BobTinKY on Mon Jun 28, 2010 at 01:52:03 PM EST
    of the majority.  And yes, rights often depend on where you live.  I live in KY, fireworks are legal.  I grew up in RI, fireworks were illegal.  There is, for now, a fundamental right to privacy yet the laws regarding abortion differ from state to state.

    I think it if history shows anything clearly it is that the 2nd Amendment was enacted to reassure states, who had been loosely tied together under the Articles of Confederation, that they could take up arms if the new strong federal government provided for in the Constitution became too overbearing.  The amendment provided that the federal government could not infringe an individual's right to bear arms so that free states could maintain a "well regulated" militia.  Well regulated by whom?  The individual free states.

    Unfortunately for 19th Century afficionados of the 2nd Amendment, Lincoln had other ideas and used federal forces to crush the rebellion of certain state militias.  Since then, because the 2nd Amendment has not been repealed in law, people have struggled to give meaning to an amendment that the Civil War had effectively transformed into desuetude.  Hence, we're told it's for hunters, or to insure people can defend their life & property.  Unlike the 18th Amendment, voting age and presidential succession, the Consitution was never amended to change the fact since established that states cannot raise militias to rebel again Uncle Sam, notwithstanding the 2nd Amendment, 10th Amendment or anything else in the Constitution that could have been and were used to justify the Confederacy.  

    I don't believe the Constitution provides, or was ever intended to provide, a right to bear arms so fundamental that it overrides the police powers of your state or locality.  I base that opinion, as the majority does theirs, on a reading of history, a reading that I would argue is far more in line with the facts.  The point was self defense of the states against the federal government, not personal self defense against other individuals.

    And if the right to "bear" arms can be restricted as you say it can, states can strictly limit public carrying of arms, then it sems to me this whole notion of a fundamental right is questionable; to "bear" means "to carry."

    I don't believe the court is ever correct or incorrect, it is either well reasoned and/or wise or not.  A majority of justices decides what the law  states and that is that until the issue is revisted, or the statute or Constitutional provision is modified.  It used to be a well established principle of the Supreme Court not to address Constitutional issues when, as here, it can be avoided.  This Court reached for Heller and McDonald in order to proclaim a new interpretation of the Second Amendment based on a flimsy presentation of history.

    Fools rush in where angels fear to tread.  Hunters in the rural areas of Vt, NH, Alabama and Colorado were in no way threatened by the laws enacted by the City of Chicago.  The residents of Chicago and other densely populated cities and towns are threatened by this Supreme Court decision.



    How the Court gets there is as important, (none / 0) (#45)
    by BobTinKY on Mon Jun 28, 2010 at 01:59:53 PM EST
    perhaps even more so, than where they go.

    Speech (none / 0) (#4)
    by jarober on Mon Jun 28, 2010 at 11:24:25 AM EST
    So... how about we apply that doctrine to the 1st amendment?  Or, how about we take the tack that the decimation of the 4th amendment (due to the idiotic war on drugs) is simply a "dynamic" bit of the Constitution?

    The problem with his thinking on this is simple: it leads away from law and over to rule by the current government's decision as to how many rights we need.  Just as the left chastised conservatives for being copacetic with various encroachments from Bush, the left needs to wake up to what Obama is doing, and what people like Stevens would be happy to allow him to do.

    These discussions do just blow my mind :) (none / 0) (#7)
    by Militarytracy on Mon Jun 28, 2010 at 11:32:56 AM EST
    Contradictory (none / 0) (#11)
    by Big Tent Democrat on Mon Jun 28, 2010 at 11:50:03 AM EST
    The "current government" makes laws.

    Today, part of the "current government," the Supreme Court made a constitutional law that did not exist before today - it said that the 2nd Amendment applied to the states.

    I disagreed with that decision (as I did with Heller). But it is absolutely clear that the Constitution envisioned the Supreme Court doing what it did today.


    Well Then... (none / 0) (#15)
    by jarober on Mon Jun 28, 2010 at 11:54:58 AM EST
    If the second should not - in your view - apply to the states, then why should the 1st?  Or the 4th?

    What exactly was the purpose of the 14th amendment, in your view?  Is it limited in scope such that it only ensures that the 13th applies to the states?


    For the reasons (none / 0) (#16)
    by Big Tent Democrat on Mon Jun 28, 2010 at 11:57:07 AM EST
    Justice Stevens describes in his dissent.

    Have you read it?


    Yes (none / 0) (#24)
    by jarober on Mon Jun 28, 2010 at 12:39:12 PM EST
    I've now read Stevens dissent, and to say that I'm unimpressed would be to understate things a lot.  He doesn't like guns, so he runs rings around himself trying to find a way to say that applying rights he likes (privacy, speech) to the states is good, but applying it for a right he dislikes (guns) is bad.  Scalia does a fine job of dismembering this nonsense; you should read his take on Stevens' dissent.  It's good stuff, and far better than anything I'm going to write here.

    Ultimately, I think my initial take is correct though: Stevens wants the rule of men, not laws.  He makes the mistake of assuming that the men who make these laws will always be wise.  I'd advise him - and you - to study the end of the Roman Republic to see how well that theory has been applied before.


    If the decision had been in Stevens favor 5-4 (5.00 / 1) (#30)
    by BobTinKY on Mon Jun 28, 2010 at 12:56:39 PM EST
    then it would be Scalia arguing for the rule of men and not law.  The 14th Amendment would not have resulted in incorporation of the 2nd Amendment as a prohibition on state/local government gun control laws and that would be the law.  

    Five or more votes at SCOTUS is the law, nothing more, nothing less.  So we are, at the end of the day, left with the rule of men and, increasingly, women.

    How on Earth the certain proliferation of handguns in densely populated urban areas can be thought of as the product of "wise" men is beyond me.


    So... (none / 0) (#35)
    by jarober on Mon Jun 28, 2010 at 01:07:11 PM EST
    I assume that you would be fine with, say, your state banning speech on (insert disagreeable subject here).  

    If you don't like the 2nd amendment, that's fine - but do the right thing, and advocate for repeal.  Don't come up with silly reasons as to why the 1st amendment is holy, but the 2nd is crap.


    Can you expand on your 2nd statement? (none / 0) (#17)
    by BTAL on Mon Jun 28, 2010 at 11:57:38 AM EST
    the Supreme Court made a constitutional law that did not exist before today - it said that the 2nd Amendment applied to the states.



    That's what happened today (none / 0) (#18)
    by Big Tent Democrat on Mon Jun 28, 2010 at 11:58:25 AM EST
    What more do you want to hear about?

    I'm seeing it more along the lines as (none / 0) (#21)
    by BTAL on Mon Jun 28, 2010 at 12:14:17 PM EST
    described/questioned above by jarober.  How is the 2nd any different than any of the other original Bill of Rights subsequent to the 14th?  

    It's not, any more (none / 0) (#44)
    by BobTinKY on Mon Jun 28, 2010 at 01:57:58 PM EST
    but prior to today's decision the 2nd Amendment had not been seen as having been incorporated via the 14th.  Justice Black had argued in vain for what has been called full incorporation.  I am not sure we are there yet but certainly the Roberts Court has, for the first time, added the 2nd Amendment to the list.

    What is not incorporated? (none / 0) (#54)
    by MKS on Mon Jun 28, 2010 at 04:56:31 PM EST
    I think I used to know this but it seems the entire Bill of Rights is pretty much now incorporated.

    Your bolded section is spot on (none / 0) (#23)
    by Dadler on Mon Jun 28, 2010 at 12:29:44 PM EST
    A constitution is only as good as the people currently tending it, justices and citizens alike.

    The best part of the dissent... (none / 0) (#32)
    by lewke on Mon Jun 28, 2010 at 01:00:29 PM EST
    has to be Stevens quoting and citing himself.

    Scalia-esque (none / 0) (#43)
    by BobTinKY on Mon Jun 28, 2010 at 01:55:10 PM EST
    Nobody plants more seeds for their own future citation than does Scalia.

    Would it kill the SCOTUS... (none / 0) (#55)
    by mike in dc on Mon Jun 28, 2010 at 06:30:23 PM EST
    ...to actually clearly articulate a standard of review for firearms regulations?  Unless it just hasn't been mentioned in the summaries, this is the second gun case where they declined to establish whether rational basis, intermediate scrutiny or strict scrutiny applies in gun cases.

    Great, so now the dockets will get filled with challenges to virtually every gun law on the books, because these guys didn't want to tick off the guys they go hunting with.

    They absolutely haven't said (5.00 / 1) (#56)
    by andgarden on Mon Jun 28, 2010 at 07:37:23 PM EST
    I wrote 15 crappy pages on that a few months ago.