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Antonin Scalia vs. John Paul Stevens
http://reason.com/blog/2010/01/21/antonin-scalia-vs-john-paul-st ^ | January 21, 2010 | Damon W. Root

Posted on 01/23/2010 3:00:57 AM PST by free1977free

Counting the majority opinion and the various partial concurrences and dissents, today’s landmark First Amendment decision in Citizens United v. Federal Election Commission clocks in a hefty 183-pages. But one thing that jumped right out while reading the dissent (it’s also a concurrence, in parts) written by Justice John Paul Stevens and joined by Justices Ruth Bader Ginsburg, Stephen Breyer, and Sonia Sotomayor, is Stevens' angry tone. He calls the idea that the First Amendment forbids distinctions between individuals and individuals organized as a corporation “a glittering generality” with no foundation in the law, and later declares, “Under the majority's view, I suppose it may be a First Amendment problem that corporations are not permitted to vote, given that voting is, among other things, a form of speech.” Well!

But most significantly, Stevens accuses the majority of making “only a perfunctory attempt to ground its analysis in the principles or understandings of those who drafted and ratified the Amendment.” Stevens even cites the influential legal conservative Judge Robert Bork to impugn the majority’s originalist credentials. That's not something you see everyday.

Justice Antonin Scalia, however, isn’t having it:

I write separately to address JUSTICE STEVENS’ discussion of “Original Understandings”... This section of [Stevens'] dissent purports to show that today’s decision is not supported by the original understanding of the First Amendment. The dissent attempts this demonstration, however, in splendid isolation from the text of the First Amendment. It never shows why “the freedom of speech” that was the right of Englishmen did not include the freedom to speak in association with other individuals, including association in the corporate form. To be sure, in 1791 (as now) corporations could pursue only the objectives set forth in their charters; but the dissent provides no evidence that their speech in the pursuit of those objectives could be censored....

The [First] Amendment is written in terms of "speech," not speakers. Its text offers no foothold for excluding any category of speaker, from single individuals to partnerships of individuals, to unincorporated associations of individuals, to incorporated associations of individuals--and the dissent offers no evidence about the original meaning of the text to support any such exclusion. We are therefore simply left with the question whether the speech at issue in this case is "speech" covered by the First Amendment. No one says otherwise.


TOPICS: Business/Economy; Government; Politics; Society
KEYWORDS: antoninscalia; bork; conservatives; constitution; decision; feingold; firstamendment; freespeech; justices; mccain; obama; originalism; scalia; scotus; senate; stevens; supremecourt; wiselatina
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I invite you all to read the pdf file of the SC decision. I also wish to point out another passage Scalia addresses, I mean the foolishness about “corporations aren’t people” doesn’t pass muster. Scalia addresses this in the opinion:

The dissent says that “ ‘speech’ ” refers to oral communications of human beings, and since corporations are not human beings they cannot speak. Post, at 37, n. 55. This is sophistry. The authorized spokesman of a corporation is a human being, who speaks on behalf of the human beings who have formed that association—just as the spokesman of an unincorporated association speaks on behalf of its members.

1 posted on 01/23/2010 3:00:59 AM PST by free1977free
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To: free1977free
Justice John Paul Stevens...Ruth Bader Ginsburg, Stephen Breyer, and Sonia Sotomayor

Like they used to say in Mad Magazine...Yecccch!

2 posted on 01/23/2010 3:03:32 AM PST by Darkwolf377 (Bostonian conservative, atheist prolifer)
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To: free1977free

If the combat between Scalia and Stevens is judged by intellect, logic, clarity (and truth), Scalia is the tiger and Stevens is the meal. It is such a joy to read Scalia’s opinions.


3 posted on 01/23/2010 3:04:15 AM PST by Woebama (Never, never, never quit)
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To: free1977free
Thansk for the post.

Didn't Reagan nominate Scalia and Thomas? Since the ObamaMarxists, with Bush's help, have all but obliterated 20 years of Reagan's REAL economic recovery, at least Reagan lives on through the grace of having theses justices as the vanguard of upholding the Constitution against the traitors and tyrants in our midst.

4 posted on 01/23/2010 3:18:59 AM PST by Jim 0216
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To: Darkwolf377

John Paul Stevens....... another nightmare of an appointment from a Republican ....... considering the number of appointments that R. presidents made in the recent decades, too much of the output of the SCOTUS is an utter disgrace (until today!)

Love it when Scalia slices and dices liberal idiocies


5 posted on 01/23/2010 3:20:30 AM PST by Enchante (Mr. Brown Goes to Washington...... kick a@@, take names, and scorch all the bastards, please!)
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To: free1977free

Scalia is, as always, dead on.
The First Amendment says “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.”

It does not grant a right to free speech to individual persons, as the left has argued. It restricts congress from making any law prohibiting or abridging the freedom of speech. Period. The First Amendment is not about what people may or may not do. It is about what congress may or may not do.


6 posted on 01/23/2010 3:21:45 AM PST by counterpunch (In this present crisis, government is not the solution to our problem. Government is the problem.)
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To: Jim 0216

Bush 41 nominated Thomas.


7 posted on 01/23/2010 3:21:53 AM PST by scooby321
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To: Jim 0216

Reagan nominated O’Connor, Scalia, Bork, and Kennedy.
Bush Sr. nominated Thomas and Souter.


8 posted on 01/23/2010 3:23:50 AM PST by counterpunch (In this present crisis, government is not the solution to our problem. Government is the problem.)
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To: counterpunch

Professor Bork’s nomination, as you know, was not approved by the Senate.


9 posted on 01/23/2010 3:28:37 AM PST by free1977free
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To: free1977free

“No law means no law.” - Hugo Black

Seems pretty simple if they could all just get their fingers off.
And the FCC should be confined to purely technical issues where signals cross state lines.


10 posted on 01/23/2010 3:33:26 AM PST by UnbelievingScumOnTheOtherSide (IN A SMALL TENT WE JUST STAND CLOSER! * IT'S ISLAM, STUPID! - Islam Delenda Est! - Rumble thee forth)
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To: free1977free; counterpunch

After Ted Kennedy “borked” Bork, potentially the one of the best SCOTUS Justices ever, wasn’t Justice Kennedy nominated in his place? If that’s true, it’s a substantial certainty that Roe v. Wade would have been overturned in the early 90’s, and millions of unborn saved from the on-going infanticide horror. Blood on the hands of Kennedy and his ilk, is how I see it.


11 posted on 01/23/2010 3:37:35 AM PST by Jim 0216
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To: scooby321

I wish we had 9 Thomases. But I would settle for five Thomases with four Scalias on his left.


12 posted on 01/23/2010 3:37:36 AM PST by UnbelievingScumOnTheOtherSide (IN A SMALL TENT WE JUST STAND CLOSER! * IT'S ISLAM, STUPID! - Islam Delenda Est! - Rumble thee forth)
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To: Enchante
Love it when Scalia slices and dices liberal idiocies

It's fun to read the opinions of those who have a grasp of the principles AND the law, and know how to express their position well.

13 posted on 01/23/2010 3:38:16 AM PST by Darkwolf377 (Bostonian conservative, atheist prolifer)
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To: Jim 0216
Since the ObamaMarxists, with Bush's help, have all but obliterated 20 years of Reagan's REAL economic recovery

We wouldn't be having this discussion without two of Bush's picks, and we can't give Reagan credit or blame for the economy until Bush showed up.

14 posted on 01/23/2010 3:39:54 AM PST by Darkwolf377 (Bostonian conservative, atheist prolifer)
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To: Jim 0216

Yes. Yes. And yes.


15 posted on 01/23/2010 3:41:25 AM PST by counterpunch (In this present crisis, government is not the solution to our problem. Government is the problem.)
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To: Jim 0216

I met Blackmun, the American Eichmann, once.
Unfortunately it was before I was fully politically engaged.


16 posted on 01/23/2010 3:42:08 AM PST by UnbelievingScumOnTheOtherSide (IN A SMALL TENT WE JUST STAND CLOSER! * IT'S ISLAM, STUPID! - Islam Delenda Est! - Rumble thee forth)
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To: counterpunch
The First Amendment is not about what people may or may not do. It is about what congress may or may not do.

This is clearer thinking than four of our SCOTUS justices. I haven't yet read the majority opinion yet, but can't image it being put more succinctly than you have here.

17 posted on 01/23/2010 3:42:50 AM PST by Jim 0216
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To: counterpunch

wish that O’Connor, Kennedy, and Souter had never gotten on the court.....

not to mention Stevens and Blackmun earlier......

it was wonderful of GW to give us Roberts and Alito......


18 posted on 01/23/2010 3:45:00 AM PST by Enchante (Mr. Brown Goes to Washington...... kick a@@, take names, and scorch all the bastards, please!)
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To: Enchante

Don’t forget, though, GWB first tried to give us Harriet Miers.
We lead the fight against her here. And we won.


19 posted on 01/23/2010 3:46:26 AM PST by counterpunch (In this present crisis, government is not the solution to our problem. Government is the problem.)
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To: counterpunch

oh, yes, it was quite the near fiasco with Harriet Miers


20 posted on 01/23/2010 3:48:55 AM PST by Enchante (Mr. Brown Goes to Washington...... kick a@@, take names, and scorch all the bastards, please!)
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To: Darkwolf377
Bush Sr. gave us Thomas to his credit but also Souter, questionable at the time and a confirmed socialist liberal. As far as voting count goes, a net zero outcome.

Bush Jr. to his credit gave us Alito and Roberts but to our chagrin, gave us big government debt serving up a tax-increase excuse for the liberals.

Reagan gets credit for fighting through the liberals and his own party to give us a significant tax decrease - I think the greatest tax decrease in history. The road to economic health is always limited government and low taxes. Reagan did it and America experienced an unprecedented 20-year economic boon. Bush Sr, didn't get it and his "read my lips" proposed tax increase brought in Clinton who was smart enough to leave things basically alone (too busy with Lewinsky, I guess).

21 posted on 01/23/2010 4:03:47 AM PST by Jim 0216
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To: free1977free
He calls the idea that the First Amendment forbids distinctions between individuals and individuals organized as a corporation “a glittering generality” with no foundation in the law,

Geez. Nothing like having sitting Justices be painfully ignorant of basic legal concepts.

136. Persons-
This word is applied to men, women and children, who are called natural persons.
2.It is also used to denote a corporation which is an artificial person.

A Law Dictionary, Adapted to the Constitution and the Laws of the United States of America and of the Several States of the American Union, by John Bouvier. Revised Sixth Edition, 1856.

22 posted on 01/23/2010 4:25:25 AM PST by MamaTexan (I am not a administrative, corporate, collective, legal, political or public entity or ~person~)
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To: Jim 0216

Scalia was nominated by Reagan, but Thomas was nominated by GHWB.


23 posted on 01/23/2010 5:06:58 AM PST by HapaxLegamenon
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To: free1977free

Just wanted a post on this thread, since I think THIS SCOTUS ruling might be, in the end, even more important that the MA Results!


24 posted on 01/23/2010 5:08:22 AM PST by Kansas58
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To: counterpunch

Reagan also nominated Douglas Ginsburg, but the Democratic controlled Senate refused to confirm him because he had once smoked pot.


25 posted on 01/23/2010 5:09:14 AM PST by HapaxLegamenon
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To: UnbelievingScumOnTheOtherSide; scooby321; free1977free; WilliamofCarmichael; whatisthetruth; ...
Check out Thomas's partial dissent (link on original post, Thomas's comments at the bottom of the case) because the majority opinion didn't go far enough. He argues that the First Amendment protects unanimous speech and that forced disclosure is a form of abridging free speech. He gives the well-documented example of Prop 8 in California where forced disclosure has allowed the Gay Mafia to gather up supporter information and go on a basic terror campaign to intimidate conservative supporters.

Unfortunately, the majority opinion by the unreliable Kennedy, leaves partially intact, the forced disclosure of campaign contributions.

Two comments:
1 - God bless Thomas - his words are few but always on point.
2 - The admonition attributed to Jefferson : "The price of freedom is eternal vigilance." Obviously there's more to be done to overturn these hideous contribution regulations.

26 posted on 01/23/2010 5:10:27 AM PST by Jim 0216
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To: Kansas58

SCOTUS ruling good, but not good enough (see post 26).


27 posted on 01/23/2010 5:12:24 AM PST by Jim 0216
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To: free1977free

One is an M1A and one is a little gun with a cork and a string attaching the cork to the gun... so you don’t lose it.

LLS


28 posted on 01/23/2010 5:12:56 AM PST by LibLieSlayer (hussama will never be my president... NEVER!)
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To: Woebama

Scalia alone destroys the combined Colossal Ignorance of the Leftist pack of Buffoons


29 posted on 01/23/2010 5:34:44 AM PST by ballplayer
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To: free1977free

Scalia to Stephens: “This is sophistry.”

OUCH! That will leave a mark!


30 posted on 01/23/2010 5:52:08 AM PST by Cletus.D.Yokel
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To: Jim 0216

Reagan nominated Scalia. Bush I nominated Thomas.


31 posted on 01/23/2010 5:52:45 AM PST by Woebama (Never, never, never quit)
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To: free1977free
Scalia to Stephens Stevens: "This is sophistry."

OUCH! That will leave a mark!

Sorry

32 posted on 01/23/2010 5:53:03 AM PST by Cletus.D.Yokel
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To: free1977free

But I bet that Stevens didn’t have a problem with the UNIONS skating. The Leftists are everything for me and nothing for thee. Sooooo transparent.


33 posted on 01/23/2010 5:53:49 AM PST by originalbuckeye
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To: originalbuckeye

Sure. If you read the decision, you can understand that the dissenting opinion by Stevens et al. is only about the role of corporation in our society.


34 posted on 01/23/2010 6:02:45 AM PST by free1977free
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To: free1977free

The idea that corporations have some degree of civil rights has some rather bizarre origins.

http://en.wikipedia.org/wiki/Santa_Clara_County_v._Southern_Pacific_Railroad

The US Supreme Court decision in Santa Clara County v. Southern Pacific Railroad Company (1886), was a minor case dealing with taxation of railroad properties.

As such, it was just another case out of the pile, until it was time for the Supreme Court court reporter to write up a summary that would be published throughout the US, to explain the decision.

He wrote, “The court does not wish to hear argument on the question whether the provision in the Fourteenth Amendment to the Constitution, which forbids a State to deny to any person within its jurisdiction the equal protection of the laws, applies to these corporations. We are all of the opinion that it does.”

But this statement, or anything like it, did not exist in the actual decision rendered by the court. In other words, as such, it was wholly the opinion of the court reporter, not the Supreme Court!

To his credit, the court reporter then sent a memo to the Chief Justice, asking if this was indeed the opinion of the court, to which he replied:

“I leave it with you to determine whether anything need be said about it in the report inasmuch as we avoided meeting the constitutional question in the decision.”

So even the Chief Justice blew off putting the idea in *his* own name, leaving the credit with the court reporter.

The case is most notable for the obiter dictum statement that corporations are entitled to protection under the Fourteenth Amendment.

http://en.wikipedia.org/wiki/14th_Amendment_to_the_US_Constitution

However, by 1949, Justice William O. Douglas wrote that, “the Santa Clara case becomes one of the most momentous of all our decisions... Corporations were now armed with constitutional prerogatives.”

This is now such a troubling situation, that there is some talk of a constitutional amendment to specifically *strip* corporations of any perceived civil rights, which would require a rewriting of the vast majority of the corporate law which exists in the US.

It is noteworthy that all that is currently required of a corporation to have the equivalent of US “citizenship”, is registration in any US State. This means that foreign corporations with no loyalty to the US, as well as racketeering shell corporations.


35 posted on 01/23/2010 6:04:34 AM PST by yefragetuwrabrumuy
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To: Woebama
Bush I nominated Thomas.

One of the few things he did right.

36 posted on 01/23/2010 6:43:06 AM PST by Jim 0216
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To: yefragetuwrabrumuy

So what? They can’t vote. Who cares if they are foreign corporations? Citizenship? LOL With millions of illegal aliens, who cares about a few corporations? I would rather have foreign corporations doing business here than millions of illegals sucking on the tit.


37 posted on 01/23/2010 10:06:36 AM PST by mojitojoe (“Medicine is the keystone of the arch of socialism.” - Vladimir Lenin)
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To: free1977free

Bottom line is this: Liberal heads are exploding because they won’t be able to game the system like they did to get Odumbass elected. They wanted an Oligarchy and this throws a monkey wrench into their takeover. Screw ‘em.


38 posted on 01/23/2010 10:09:11 AM PST by mojitojoe (“Medicine is the keystone of the arch of socialism.” - Vladimir Lenin)
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To: Jim 0216

Bush I nominated Thomas.
__________________________________
One of the few things he did right.
__________________________________

I was going to be snarky and say we got lucky that the best Republican judge in the country was a conservative since Bush was just looking for the minority check mark, but Bush I also appointed Thomas to the court of appeals. So he really did a lot for Thomas.


39 posted on 01/23/2010 10:35:52 AM PST by Woebama (Never, never, never quit)
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To: mojitojoe

The trouble is that when corporations are chartered by States, but then operate nationally or internationally, in past they have argued that State laws do not apply to them. So, for example, they cannot be zoned or regulated, may pollute at will, as long as it is within federal standards.

In effect, joining their corporate person-hood with the interstate commerce act, or even the prerogatives of foreign governments. And while they technically are like a person under the law, as proxy organizations, no one is easily held criminally responsible for criminal acts.

Having broad assets, if they are sued in court, they can delay the proceedings indefinitely, until their opponent dies or gives up. This costs the taxpayers endless millions of dollars.

Far more serious are when corporations buy elected officials, at all levels. During the Clinton years, an internal executive memo was leaked from Tyson Corporation, detailing a complete list of Arkansas State office holders, and the amounts of bribes to be given to each one.

In truth, corporate person-hood is potentially far worse than illegal aliens.


40 posted on 01/23/2010 11:07:58 AM PST by yefragetuwrabrumuy
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To: yefragetuwrabrumuy

Liberal heads are exploding. They think obongo can’t win unless this is reversed. That tells me all I need to know.


41 posted on 01/23/2010 1:45:56 PM PST by mojitojoe (“Medicine is the keystone of the arch of socialism.” - Vladimir Lenin)
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To: counterpunch
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

To carry Stevens' logic a bit further - if his interpretation is correct, we would have the right to practice religion individually, but not form a church.

42 posted on 01/25/2010 1:34:50 PM PST by CharacterCounts (November 4, 2008 - the day America drank the Kool-Aid)
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To: counterpunch
The First Amendment says “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.”

It does not grant a right to free speech to individual persons, as the left has argued. It restricts congress from making any law prohibiting or abridging the freedom of speech. Period. The First Amendment is not about what people may or may not do. It is about what congress may or may not do.

Do you mind if I quote you elsewhere, using only your screen name? (Or I can just say "unidentified forum poster" if you wish.) That is absolutely on the money. I might "bold" "period" and underline the last sentence...

:-)

43 posted on 01/25/2010 10:30:37 PM PST by Paul R. (We are in a break in an Ice Age. A brief break at that...)
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To: Paul R.

Go ahead. I post here to share my thoughts, not keep them to myself.


44 posted on 01/25/2010 10:40:37 PM PST by counterpunch (The Emperor has no Cloture)
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To: counterpunch

May I also add that the “Press” is an aggregate form of speech that has a monetary cost. Corporations are merely paying to report their opinion.


45 posted on 01/25/2010 11:15:53 PM PST by steelie (Still Right Thinking)
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To: Darkwolf377
"Justice John Paul Stevens...Ruth Bader Ginsburg, Stephen Breyer, and Sonia Sotomayor Like they used to say in Mad Magazine...Yecccch!"

And needing only the addition of Zippy the Pinhead to constitute a majority of the intellectually challenged and morally bankrupt.
46 posted on 01/25/2010 11:23:04 PM PST by shibumi (Health and well being for S. and L. - in Jesus name we pray!)
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To: Jim 0216
After Ted Kennedy “borked” Bork, potentially the one of the best SCOTUS Justices ever...

Except it turned out that Bork comes up lame on the Second Amendment. He has offered the bizarre opinion that the Second Amendment does NOT protect an individual's right to keep and bear arms.

47 posted on 01/25/2010 11:30:16 PM PST by Lancey Howard
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To: Lancey Howard

Sounds like Bork needs to read Federalist #29.


48 posted on 01/25/2010 11:42:15 PM PST by shibumi (Health and well being for S. and L. - in Jesus name we pray!)
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To: free1977free

I am thrilled!
I have been hoping someone would post the pdf file.
Thank you, free1977free!!!!


49 posted on 01/25/2010 11:46:24 PM PST by onyx
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To: Lancey Howard

That’s fairly bizarre alright - hard to imagine with his stellar record. Whaddyagot to back up that assertion?


50 posted on 01/26/2010 2:05:06 AM PST by Jim 0216
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