Posted on 11/25/2008 11:33:34 AM PST by RKV
Well, the show sure ended with a bang. On the last day of the Term, the Court — for the first time ever, by a single vote, over vigorous dissents, and against the weight of circuit precedent — wielded the Second Amendment to strike down a federal gun control measure and to declare a robust individual right to use firearms for self-defense.
Experts began parsing District of Columbia v. Heller1 within hours of the Court’s pronouncement. Over the ensuing weeks, sophisticated commentary blossomed in a rich profusion of blogs, wikis, posts, threads, and chats. Now, nearly five months after the decision, does anything remain to be said? In the Internet Age, does anyone still read law reviews? They seem so twentieth-century.
Yet the Justices apparently still do look at law reviews. Almost half the cases decided with signed opinions last Term cited at least one law review article.2 In Heller itself, the various opinions invoked over a dozen articles, including a 1940 classic from the Harvard Law Review. 3 Indeed, last Term was a banner year not just for gun wielders like Dick Heller, but also for the editors of the Harvard Law Review. All told, the Justices cited fifteen different HLR articles — more than double the article count of any other legal periodical
(Excerpt) Read more at harvardlawreview.org ...
"The majority opinion in Roe v. Wade, for example, never even quoted the constitutional clause that the Court used to reach its sweeping result. In countless cases involving application of the Bill of Rights against the states, the operative Fourteenth Amendment text has received little or no mention."
Regarding Stevens dissent, Amar takes the former Harvard Law grad to the woodshed. "His was largely a precedent-based claim about the sheer number of lower court judges on his side, and as such his claim fell flat. ... the Heller Stevens wrapped himself in the robes of precedent and argued that even if precedent has strayed from the original meaning, precedent should be followed. ... In Justice Stevens’s opinion, then, we see a remarkable failure to offer a coherent analysis of one of the most obvious, important, and recurring questions of constitutional law: what to do when case law contradicts the Constitution.”
Amar further extends the debate on incorporation of the 2nd via the 14th Amendment, reminding readers of the relationship between the Freedmans Act’s specific protection of 2nd Amendment (and other) rights of the newly freed slaves as essential to understanding the 14th Amendment.
And here it is, laid out on a platter "After Heller, it is hard to conceive how Cruikshank can still stand" [nota bene: YEAH!]
Breyer's "deference to legislatures" gets pilloried, as Amar shows how Breyer's own partial birth abortion rulings don't follow this line.
Unfortunately he ends by sucking up to Obama calling him something demonstrably untrue - "a gifted constitutional lawyer"
FYI
It is already wrong - it was a District of Columbia law at issue, not federal law. The fact that it was a law indirectly authorized by Congress (because Congress granted DC the ability to govern itself) does not excuse the inaccuracy. Not a great start for the "esteemed" HLR.
My favorite part -—
“The majority opinion in Roe v. Wade for example, never even quoted the Constitutional clause that the Court used to reach it’s sweeping opinion”
I wonder why that is?
So we have a right that isn’t there, and it is not to be fiddled with at all, and a right that is there and it can be trampled at will. I wonder why that is?
Unfortunately he ends by sucking up to Obama calling him something demonstrably untrue - “a gifted constitutional lawyer”
Did he find briefs to qualify that remark?
Simple.
Leftist judges aren’t where they are in order to apply the law to the case.
They, and any leftist in journalism or academia (you name it), are there in order to mold society as they see fit.
Don’t expect any “consistency” of ruling from leftist judges, you’ll drive yourself nuts trying to force consistency on them. The only consistency you’ll get is the advancement of liberalism/collectivism/anti-individualism/anti-traditionalism.
They go into a case with a pre-determined social outcome in mind, and then spend all their time searching for justification of the ruling they must make in order to achieve that outcome.
Just because Obama doesn't have any record of having ever done anything of substance, at least not in the USA, you holding that against him? Jive talking, brought to a high art form.
Just like all the 0bama supporters that claim they voted for him because
he is the most qualified for the office,
no actual evidence of this qualification is ever given.
bookmark for later.
Right to Bear Arms
Section 21. The right of the citizens to bear arms in defense of themselves and the State shall not be questioned.
I could swear they asked me a boatload of questions when I went for my permit in Philly.
I'm still waiting for someone in government to acknowledge that this sentence exists:
"This Constitution, and the laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every state shall be bound thereby, anything in the Constitution or laws of any State to the contrary notwithstanding."
It's in Article VI, and it obviates the need for the 14th Amendment and incorporation
If anything, the folly of not protecting your rights with a series of SC decisions should become more focused in people's eyes ... Just because the Constitution says it is, doesn't necessarily make it so. In this one case, it may be that, that is true.
There is going to be an attack on the Second Amendment by the Obamunists, we need to read and understand how to best defend from a common man's language of doing things, in words the public may be able to grasp. Might be pushing the last point to far when it comes to Obama voters, but nevertheless, it will need pushing.
This is a very good article from HLR, can be used to get some markers ready.
Praise God that the Heller decision came down before the 0bamanation was elected.
Boy you got that right ...
I don’t disagree. The Supreme Court disagrees with us. Unfortunately.
He’s looking for a nomination to the Federal bench. We could do worse.
Seems like our corrupt politicians can't tell the difference.
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