Constitution doesn't apply to States, according to Sotomayor

[MaggieMae]

Boy our dear President sure knows how to pick 'em, guess he couldn't find another tax cheat to appoint and had to go to the crackpot barrel for this one.

But on the other hand she has such a WONDERFUL personal story....

Not real helpful in answering the question....

You mean it's <gasp> "irrelevant trivia"?????

 

[DamnYankee]

Have been slow to voice an opinion re. Sotomayor selection/appointment, and that hasn't changed quite yet. Still weighing the pros and cons. So, when I came upon this piece from her resume, I decided that I need some input. It would be greatly appreciated.

Sotomayor has decided that the Bill of Rights does not apply to the states
by Vincent Gioia

If you thought the Bill of Rights gives you constitutional protection for freedom of speech, of religion and a free press; you are wrong according to Obama Supreme Court nominee Judge Sonia Sotomayor. The likely newest member of the high Court decided that all these rights guaranteed by the first Ten Amendments which make up the Bill of Rights can now all be taken away from us at the whim of our state legislatures - who would have imagined.

(snipped)

Sotomayor was on a panel of the Court of Appeals for the 2nd Circuit which issued an unsigned opinion dismissing a challenge to a New York law that banned a martial arts weapon despite the earlier Supreme Court ruling in Heller v District of Columbia which struck down a ban on handguns and said individuals have the right to keep arms at home for self defense.

But the panel on which Sotomayor served said in the case of Maloney v. Cuomo that it was clear from the Supreme Court precedent that the Second Amendment could be applied only to the federal government, or in a federal enclave such as Washington. It said the Supreme Court has "the prerogative of overruling its own decisions."

The issue raises the question of whether the Bill of Rights applies to state and local governments. Lawyers challenging gun restrictions and legal scholars contend that they do, through the due-process clause of the 14th Amendment. And that was the finding of the U.S. Court of Appeals for the 9th Circuit earlier this year. The Supreme Court's 5 to 4 decision last year in the Heller case decided for the first time that the Second Amendment provided an individual right to bear arms.

If the 2nd can be said to not apply to the states and local governments, then why should the other rights spelled out in the Bill of Rights apply?
Great American Journal: Sotomayor has decided that the Bill of Rights does not apply to the states


Damned good question. Anyone have as good an answer?

A couple of questions first, before figuring out how to answer your question...

How can each state, constitutionally limit the types of guns their citizens can own without infringing on the 2nd amendment?

As Example, you can not own a bunch of missals or nukes or automatic machine guns etc?

So, is the 2nd amendment being "bent" already by limiting different types of arms?

Is being required to be registered, if you own a gun, also a 2nd amendment infringement?

Care

be back later to read answer...heading outside now!

How can each state, constitutionally limit the types of speech their citizens can own without infringing on the 1st amendment?

"There is no absolute right to freedom of speech," said Dr. Paul Fabrizio, a political science professor at McMurry University. "You do not have it. The framers of the Constitution never intended it that way."

No freedom is absolute, Fabrizio said, and there are limits "on all of our freedoms under the Constitution," he said.

The question is, as always, where those limits lie.

It would be wrong -- illegal even -- for someone to stand in a public forum and call for a presidential assassination, Fabrizio said.

One of the tests the Supreme Court uses in such incidents is that of "clear and present danger."

"Is there, from someone's speech, a clear and present danger that there could be violence or tragedy?" Fabrizio asked. "If there is, then that can be restricted."

The old "don't yell fire in a crowded theater" dictum applies in such a case, he said.

America has a constitutional tradition that government cannot be trusted to decide what can and can't be said -- on the theory that government officials are likely to censor speech that embarrasses them, hurts them or costs them votes, Goldberger said.

"The very core of the First Amendment is that government can't be trusted with those decisions," he said. "It's up to each of us."

"Free speech is always about controversy," he said. "It's always going to take an institution like a court or non-majoritarian institution to protect it."

Goldberger said a classic definition of speech that can and should be limited is libel, which has no value -- or absolutely trivial value -- as part of public discourse.

"A true libel, a false statement about a person ... defames that person, has no value and hurts the person," he said. "At least in theory, that which is false, genuinely false, doesn't lead to better, informed participation in the political process."

An example would be cases involving fighting words -- words in a face-to-face confrontation that would lead the listener to reflexively strike back, he said.

Jefferson, Hamilton and other founding fathers were not "big fans of some of the by-products of free speech," Pybus said, but recognized that it is "inalienable and necessary to good government.

Fabrizio said that threats to free speech remain.

"People are uncomfortable with freedom of speech, (including) people saying things they disagree with," he said. "People are uncomfortable with nastiness or ugliness. So there is always a danger."

"Political correctness" can in some circumstances be a restriction on speech, and "our current government is clearly uncomfortable with some of the discussion about the war in Iraq, the war on terror," he said.

"People are uncomfortable about language," he said. "There are certain words you can't use on television or won't read in a newspaper. What we're saying is those words have power, and some want to restrict them."

Thorny questions, such as lying or defamation, are basic questions the Supreme Court has struggled with time and time again, most of the time settling on the side of potential victims, he said.

First Amendment has limits, local experts agree : Local News : Abilene Reporter-News


I believe the same principle applies.

 

[DamnYankee]

* Patrick Henry: "The great objective is that every man be armed. . . . Everyone who is able may have a gun."

* Samuel Adams: "The Constitution shall never be construed . . . to prevent the people of the United States who are peaceable citizens from keeping their own arms."

* Alexander Hamilton: "The best we can hope for concerning the people at large is that they be properly armed."

Chief Justice William Rehnquist, writing for the majority in U.S. v. Verdugo-Urquidez (1990), stated that the term "the people" has the same meaning in the First, Second, Fourth, Ninth and Tenth Amendments. All those five amendments in the Bill of Rights use the term "the people" to guarantee a right for individual citizens, not just some collective right of the state as a whole. There is no reason to believe that the Second Amendment uses the term "the people" differently from the other four amendments. source- findlaw.com

As I said, it's clear what the Constitution say's regardless of how progressive judges wish to re-engineer it.

John Adams, lead defense attorney for the British soldiers on trial for the Boston Massacre, stated at the trial: "Here every private person is authorized to arm himself, and on the strength of this authority, I do not deny the inhabitants had a right to arm themselves at that time, for their defense, not for offence…"

Thomas B. McAffee and Michael J. Quinlan stated "… Madison did not invent the right to keep and bear arms when he drafted the Second Amendment—the right was pre-existing at both common law and in the early state constitutions."

Second Amendment to the United States Constitution - Wikipedia, the free encyclopedia

I'm as interested in the preservation of the 2nd Amendment as any of the others, but that is not my focus at the moment. How is it that one is ruled invalid FOR STATES? What are the implications for THE OTHERS?

 

[DamnYankee]

Boy our dear President sure knows how to pick 'em, guess he couldn't find another tax cheat to appoint and had to go to the crackpot barrel for this one.

But on the other hand she has such a WONDERFUL personal story....

actually, she has over 300 published decisions, three of which were reversed by the supreme court. she was number 2 in her class at princeton and valdictorian of her high school class.

i think maybe you're the crackpot... in fact i know you are... like everyone else on this board who's ever used the word "liberty" or "patriot" in their nic

Personally, I believe that the most important aspect in chosing a Supreme Court Justice would be one with an understand of the Constitution and its original meaning, not what someone wants it to mean today.

"On every question of construction (of The Constitution), let us carry ourselves back to the time when The Constitution was adopted, recollect the spirit manifested in the debates, and instead of trying what meaning may be squeezed out of the text, or invented against it, conform to the probable one in which it was passed." - Thomas Jefferson

As a lawyer, I would expect that you fully understand that the 14th amendment guarantees that all the rights and privileges of the citizens under the US Constituion apply to everyone, and no state shall make any law to the contrary.

As an attorney, I would expect the same from Sotomayer.

 

[DamnYankee]

Boy our dear President sure knows how to pick 'em, guess he couldn't find another tax cheat to appoint and had to go to the crackpot barrel for this one.

But on the other hand she has such a WONDERFUL personal story....

Not real helpful in answering the question....

You mean it's <gasp> "irrelevant trivia"?????

Don't you mean <gasp> "ALLBiz noticed...."

 

[Missourian]

I'm as interested in the preservation of the 2nd Amendment as any of the others, but that is not my focus at the moment. How is it that one is ruled invalid FOR STATES? What are the implications for THE OTHERS?

It has not been ruled invalid for the states...it just hasn't reached the Supreme Court yet.

From Findlaw:

"Whatever the [Second] Amendment may mean, it is a bar only to federal action, not extending to state2 or private3 restraints."

FindLaw: U.S. Constitution: Second Amendment
​

 

[DamnYankee]

I'm as interested in the preservation of the 2nd Amendment as any of the others, but that is not my focus at the moment. How is it that one is ruled invalid FOR STATES? What are the implications for THE OTHERS?

It has not been ruled invalid for the states...it just hasn't reached the Supreme Court yet.

From Findlaw:

"Whatever the [Second] Amendment may mean, it is a bar only to federal action, not extending to state2 or private3 restraints."

FindLaw: U.S. Constitution: Second Amendment
​

Forgive me for inappropriate wording in my haste.

But the panel on which Sotomayor served said in the case of Maloney v. Cuomo that it was clear from the Supreme Court precedent that the Second Amendment could be applied only to the federal government, or in a federal enclave such as Washington. It said the Supreme Court has "the prerogative of overruling its own decisions."

 

[Missourian]

Forgive me for inappropriate wording in my haste.

But the panel on which Sotomayor served said in the case of Maloney v. Cuomo that it was clear from the Supreme Court precedent that the Second Amendment could be applied only to the federal government, or in a federal enclave such as Washington. It said the Supreme Court has "the prerogative of overruling its own decisions."

A primer on the Supreme Court cases on which the precedent cited above is based: Miller v Texas.

Miller v Texas is over 100 years old, and Presser v Illinios and United States v. Cruikshank, are older still...all predating the Supreme Court's modern incorporation criteria.


The drawback of Heller is Washington D.C. is not a state and therefore has no bearing on incorporation against the states of the Second Amendment. (Look here for more info on incorporation of amendments against the states: Of Arms and the Law: Thoughts on the 14th Amendment cases)


Watch for NRA v. Chicago (formerly McDonald v. Chicago) NRA v. Chicago - Wikipedia, the free encyclopedia to rectify this shortcoming, with or without Sotomayor.

 

[jillian]

Personally, I believe that the most important aspect in chosing a Supreme Court Justice would be one with an understand of the Constitution and its original meaning, not what someone wants it to mean today.

I understand you believe that. And I appreciate your saying it in polite fashion... seriously. But I can tell you that there is no school of constitutional construction called "originalism" prior to recent history. The initial analysis of constitutional construction and the basis for that construction is marbury v. madison, which you might find enlightening.

"On every question of construction (of The Constitution), let us carry ourselves back to the time when The Constitution was adopted, recollect the spirit manifested in the debates, and instead of trying what meaning may be squeezed out of the text, or invented against it, conform to the probable one in which it was passed." - Thomas Jefferson

Great man, Thomas Jefferson, but to be fair, he was a politician of his day and his words really have no precendential value in terms of the constitution as it's construed. For that, you would have to look at caselaw since we're a common law system and everything is based on stare decisis.

As a lawyer, I would expect that you fully understand that the 14th amendment guarantees that all the rights and privileges of the citizens under the US Constituion apply to everyone, and no state shall make any law to the contrary.

I didn't offer an opinion on the 14th amendment. I believe the right of privacy as settled by the court applies to all citizens as well. I also think as far as Heller is concerned, it went further than the case before it sought, which makes most of it dicta (non binding and indicative of the court's thinking only). Scalia's decision was really beneath the usual quality of his work as he didn't even bother drawing logical conclusions. Breyer's dissent was actually much more on the money in pointing out the analysis that wasn't made by Scalia.

That said, the issue of application to the states wasn't before the Heller court, so until it is, there isn't any precedent requiring that it be applied in that fashion. And, frankly, given that the court is only one justice away from deciding that it is or it isn't... why wouldn't Sotomayor rule as she did.. especially if she wants the court to test the issue or thinks the configuration of the court will change.

 

[Citizen]

actually, she has over 300 published decisions, three of which were reversed by the supreme court. she was number 2 in her class at princeton and valdictorian of her high school class.

i think maybe you're the crackpot... in fact i know you are... like everyone else on this board who's ever used the word "liberty" or "patriot" in their nic

Personally, I believe that the most important aspect in chosing a Supreme Court Justice would be one with an understand of the Constitution and its original meaning, not what someone wants it to mean today.

"On every question of construction (of The Constitution), let us carry ourselves back to the time when The Constitution was adopted, recollect the spirit manifested in the debates, and instead of trying what meaning may be squeezed out of the text, or invented against it, conform to the probable one in which it was passed." - Thomas Jefferson

As a lawyer, I would expect that you fully understand that the 14th amendment guarantees that all the rights and privileges of the citizens under the US Constituion apply to everyone, and no state shall make any law to the contrary.

Nope, the REASON we even have a USSC is to interpret the INTENT of the original Constitution, which was written almost intentionally in ambiguous terms in order to remain a LIVING DOCTRINE. The framers weren't stupid enough to believe the way they lived would be the same 200+ years later.

I beg to differ, because the Constitution was written to be understod by the average citizen, and is much easier to read than 99% of the legal doccuments written today.

Just in case you missed it, the constitution includes the very mechanism for chamge, and it is not through interpertation, but through the Amendment process, which is clearly spelled out in Article 5, so anytime it needs to be changed, it can be amendmended, as it has 27 times.

By the way, the Constitution is a written legal doccument, so what it ment when written, it means now, just as any other legal doccument can not change without be amendmend.

 

[jillian]

Not for nothin', Jillian, but I've had many an attorney leave my office in frustration. It seems that unless they stick to their areas of expertise, they're pretty much useless.

assuming one is specialized, i'd say the same thing would apply to doctors outside of their area of expertise. so as i said, i wouldn't presume to tell a brain surgeon how to do his job and certainly wouldn't pretend that i know his job better than he does.

just how it is. and, frankly, i find it fairly irksome to watch people who know nothing about constitutional construction try to pervert hundreds of years of caselaw for their own personal political agenda.

 

[caterpillar]

Why did Michael Richards, simply a Hollywood actor, get hounded for his racist comments, but this lady gets a pass for hers (Wise Latinas smarter than dumb white men) ???

 

[Alpha1]

Great man, Thomas Jefferson, but to be fair, he was a politician of his day and his words really have no precendential value in terms of the constitution as it's construed. For that, you would have to look at caselaw since we're a common law system and everything is based on stare decisis.

For well over 200 years, the meaning of the 2nd Amendment was not in question....

Since the very beginning of the Country, citizens of the US have owned firearms for their personal use......its never been questioned that we did not have the right...
that is, until the libs came along to re-write/re-interpreted what was not questioned in earlier times....finding rights that didn't exist and abolishing rights that did.....

 

[Missourian]

For that, you would have to look at caselaw since we're a common law system and everything is based on stare decisis.

Caselaw in this instance equals bad law.

The USSC decision in Miller v Texas stated

"The Miller Court then addressed the question of whether the Second or Fourth Amendments were even applicable to Texas law: "[A]nd even if he were [denied the benefit of the Second and Fourth Amendments], it is well settled that the restrictions of these amendments operate only upon the Federal power, and have no reference whatever to proceedings in state courts." [FN154]

(For those unfamiliar with the U.S. Bill of Rights, the Fourth Amendment protects the people against unreasonable searches and seizures.)

Quote from here: Miller v Texas.
​

But later in Wolf v Colorado (1949)and finally Mapp v Ohio (1961), the Court overturned that "well settled" decision incorporating the Fourth Amendment against the states.

Where the Fourth Amendment leads the Second will soon follow.

 

[MaggieMae]

Not real helpful in answering the question....

You mean it's <gasp> "irrelevant trivia"?????

Don't you mean <gasp> "ALLBiz noticed...."

I was referring to the exchange with libertyguy (#40).

 

[Citizen]

Great man, Thomas Jefferson, but to be fair, he was a politician of his day and his words really have no precendential value in terms of the constitution as it's construed. For that, you would have to look at caselaw since we're a common law system and everything is based on stare decisis.

For well over 200 years, the meaning of the 2nd Amendment was not in question....

Since the very beginning of the Country, citizens of the US have owned firearms for their personal use......its never been questioned that we did not have the right...
that is, until the libs came along to re-write/re-interpreted what was not questioned in earlier times....finding rights that didn't exist and abolishing rights that did.....

The Democrat party was not always opposed to the individual ownership of firearms, as shown by the following quote.

"Certainly one of the chief guarantees if freedom under any government, no matter how popular and respected, is the right of citizens to keep and bear arms. The right of citizens to bear arms is just one guarantee against arbitary government, one more safeguard against tyranny." Hubert Humphrey, former US Senator, and Demcorat candidate for the office of President.

Although Jefferson was a politician, anyone can read the Federalist Papers to discover what the intent of our Constitution actually was at the time it was adopted.

Also, we have had the common law right to self defense long before our Constitution was written, and the Bill of Rights does not grant us rights, it just restates rights we already held. For your information a firearm is the best form of self defense.

 

[MaggieMae]

Personally, I believe that the most important aspect in chosing a Supreme Court Justice would be one with an understand of the Constitution and its original meaning, not what someone wants it to mean today.

"On every question of construction (of The Constitution), let us carry ourselves back to the time when The Constitution was adopted, recollect the spirit manifested in the debates, and instead of trying what meaning may be squeezed out of the text, or invented against it, conform to the probable one in which it was passed." - Thomas Jefferson

As a lawyer, I would expect that you fully understand that the 14th amendment guarantees that all the rights and privileges of the citizens under the US Constituion apply to everyone, and no state shall make any law to the contrary.

Nope, the REASON we even have a USSC is to interpret the INTENT of the original Constitution, which was written almost intentionally in ambiguous terms in order to remain a LIVING DOCTRINE. The framers weren't stupid enough to believe the way they lived would be the same 200+ years later.

I beg to differ, because the Constitution was written to be understod by the average citizen, and is much easier to read than 99% of the legal doccuments written today.

Just in case you missed it, the constitution includes the very mechanism for chamge, and it is not through interpertation, but through the Amendment process, which is clearly spelled out in Article 5, so anytime it needs to be changed, it can be amendmended, as it has 27 times.

By the way, the Constitution is a written legal doccument, so what it ment when written, it means now, just as any other legal doccument can not change without be amendmend.

But amendments to the Constitution are nothing more than interpretation of the original and reclarification thereof. Since the country has bypassed the amendment process for lo these many years in favor of making law which may, or may not, be Constitutionally challenged, maybe the ONE amendment that is absolutely necessary is the one making it more simple to amend the Constitution. Today, it can take an entire morning just to dedicate a new postage stamp. To amend the Constitution again would take years.

 

[MaggieMae]

Why did Michael Richards, simply a Hollywood actor, get hounded for his racist comments, but this lady gets a pass for hers (Wise Latinas smarter than dumb white men) ???

Groan...maybe it's because Sonya didn't stand up on a public stage, drunk, ranting, raving and screaming obscenities for a full half hour?

You were trying to be funny, I hope.

 

[Citizen]

Nope, the REASON we even have a USSC is to interpret the INTENT of the original Constitution, which was written almost intentionally in ambiguous terms in order to remain a LIVING DOCTRINE. The framers weren't stupid enough to believe the way they lived would be the same 200+ years later.

I beg to differ, because the Constitution was written to be understod by the average citizen, and is much easier to read than 99% of the legal doccuments written today.

Just in case you missed it, the constitution includes the very mechanism for chamge, and it is not through interpertation, but through the Amendment process, which is clearly spelled out in Article 5, so anytime it needs to be changed, it can be amendmended, as it has 27 times.

By the way, the Constitution is a written legal doccument, so what it ment when written, it means now, just as any other legal doccument can not change without be amendmend.

But amendments to the Constitution are nothing more than interpretation of the original and reclarification thereof. Since the country has bypassed the amendment process for lo these many years in favor of making law which may, or may not, be Constitutionally challenged, maybe the ONE amendment that is absolutely necessary is the one making it more simple to amend the Constitution. Today, it can take an entire morning just to dedicate a new postage stamp. To amend the Constitution again would take years.

The Amendment process was made difficult on purpose so that the Constitution would not be amendmented every time a new fad sprang up.

 

[hjmick]

actually, she has over 300 published decisions, three of which were reversed by the supreme court.

This would be very impressive if every single one of her 380 decisions were reviewed by SCOTUS. The truth is, however, that only five of her cases have been brought before SCOTUS and of those three were overturned. That's a 60% failure rate on cases before the Court.

Ricci v. DeStefano is the sixth Sotomayor case to go before SCOTUS and there is a good chance that one will be overturned as well. At least that's what the talking heads have been saying.

Now I would say that there are two schools of thought about this 60% failure rate:

1. This is just too few a number of cases to determine her competence as a judge...

or

2. With a 60% failure rate before the court, maybe she deserves more scrutiny rather than a rubber stamp approval.