Dem Senators to Supreme Court: Rule our way on 2nd Amendment case, or face possible restructuring
Sheldon Whitehouse: “The Supreme Court is not well. And the people know it. Perhaps the Court can heal itself before the public demands it be “restructured in order to reduce the influence of politics.”
It had been almost a decade since the U.S. Supreme Court took a major 2nd Amendment case, something Justice Clarence Thomas lamented in a dissent from the Court’s refusal to hear an appeal from a 9th Circuit decision upholding California’s 10-day waiting period even for those who already owned guns legally and had gone through the permitting and background check.
Thomas wrote:
Our continued refusal to hear Second Amendment cases only enables this kind of defiance. We have not heard argument in a Second Amendment case for nearly eight years. Peruta v. California, 582 U. S. ___, ___ (2017) (THOMAS, J., dissenting from denial of certiorari) (slip op., at 7). And we have not clarified the standard for assessing Second Amendment claims for almost 10. Meanwhile, in this Term alone, we have granted review in at least five cases involving the First Amendment and four cases involving the Fourth Amendment—even though our jurisprudence is much more developed for those rights.
If this case involved one of the Court’s more favored rights, I sincerely doubt we would have denied certiorari….
The Court would take these cases because abortion, speech, and the Fourth Amendment are three of its favored rights. The right to keep and bear arms is apparently this Court’s constitutional orphan. And the lower courts seem to have gotten the message.
So when the Court, in January 2019, agreed to take a major 2nd Amendment case, it was a big deal, We wrote, Supreme Court agrees to hear 2d Amendment case involving NYC firearm transport restrictions:
The Supreme Court finally has agreed to hear a 2d Amendment case, the first time since the Heller v D.C. (2008) and McDonald v. Chicago (2010) decisions….
The Supreme Court just agreed to hear a challenge to a New York City law barring transport of lawfully owned firearms except to one of six licensed firing ranges. The case is New York State Rifle & Pistol Association Inc. v. City of New York.
The Petition for Certiorari described the Question Presented:
QUESTION PRESENTED
New York City prohibits its residents from possessing a handgun without a license, and the only license the City makes available to most residents allows its holder to possess her handgun only in her home or en route to one of seven shooting ranges within the city. The City thus bans its residents from transporting a handgun to any place outside city limits—even if the handgun is unloaded and locked in a container separate from its ammunition, and even if the owner seeks to transport it only to a second home for the core constitutionally protected purpose of self-defense, or to a more convenient out-of-city shooting range to hone its safe and effective use.
The City asserts that its transport ban promotes public safety by limiting the presence of handguns on city streets. But the City put forth no empirical evidence that transporting an unloaded handgun, locked in a container separate from its ammunition, poses a meaningful risk to public safety. Moreover, even if there were such a risk, the City’s restriction poses greater safety risks by encouraging residents who are leaving town to leave their handguns behind in vacant homes, and it serves only to increase the frequency of handgun transport within city limits by forcing many residents to use an in-city range rather than more convenient ranges elsewhere.
The question presented is:
Whether the City’s ban on transporting a licensed, locked, and unloaded handgun to a home or shooting range outside city limits is consistent with the Second Amendment, the Commerce Clause, and the constitutional right to travel.
After the case was accepted and extensively briefed by the parties and dozens of groups filing Amicus (friend of the court) briefs, N.Y. City tried to avoid a decision on the merits by changing the law, which it claimed in a July 22, 2019 Suggestion of Mootness, required that the Court dismiss the case:
The Court granted certiorari in this case to decide whether a New York City regulation violated the Second Amendment or another constitutional guarantee insofar as it banned the “transport[ of] a licensed, locked, and unloaded handgun to a home or shooting range outside city limits.” Pet. for Cert. i. Two subsequent changes in law render that question—and this litigation—moot. First, the City has amended the challenged regulation to enable holders of premises licenses to transport their handguns to additional locations, including second homes or shooting ranges outside of city limits. Second, the State of New York has amended its handgun licensing statute to require localities to allow holders of premises licenses to engage in such transport. Independently and together, the new statute and regulation give petitioners everything they have sought in this lawsuit. The Court should accordingly vacate the decision below and remand with instructions to dismiss—or at least to consider in the first instance whether any Article III case or controversy still exists.
The New York State Rifle & Pistol Association argued that under long-standing principles, a party cannot moot a case and thereby manipulate the judicial system:
For five years, the City actively and successfully defended its regime, ultimately procuring a Second Circuit decision that eliminated meaningful protection for Second Amendment rights. Then this Court granted certiorari, and the City abruptly shifted gears, undertaking a series of extraordinary maneuvers designed to frustrate this Court’s review and obviate the City’s need even to explain itself in a merits brief. The City’s efforts culminated in a revised regulation designed to loosen the City’s restrictions to the minimum degree necessary to render this litigation moot and a City-procured state law that actually grants the City unique authority to prevent nonresidents from transporting licensed handguns through the city. Neither of those changes renders this controversy moot, and each vindicates this Court’s well-grounded skepticism of voluntary cessation of unlawful conduct generally and of “postcertiorari maneuvers designed to insulate a decision from review by this Court” in particular. Knox v. Serv. Emps. Int’l Union, Local 1000, 567 U.S. 298, 307 (2012).
A group of Democratic Senators (Whitehouse, Gillibrand, Hirono, Blumenthal, Durbin) just filed an extraordinarily vitriolic Amicus Brief in support of the Respondent, N.Y. City. The Brief was signed by Sheldon Whitehouse (D-RI) for the group, listing himself as Counsel of Record.
I would not be surprised if Whitehouse substantially drafted the Brief himself. As we have documented here for a decade, Whitehouse is extremely pejorative towards his political opponents, who invariably are portrayed as bad people with bad motives.
During the debate over Obamacare in December 2009, Whitehouse compared opponents of Obamacare to Nazis during Kristallnacht and people who lynched blacks. Dana Milbank at WaPo noted at the time:
… Sen. Sheldon Whitehouse (R.I.) had just delivered an overwrought jeremiad comparing the Republicans to Nazis on Kristallnacht, lynch mobs of the South, and bloodthirsty crowds of the French Revolution.
“Too many colleagues are embarked on a desperate, no-holds-barred mission of propaganda, obstruction and fear,” he said. “History cautions us of the excesses to which these malignant, vindictive passions can ultimately lead. Tumbrils have rolled through taunting crowds. Broken glass has sparkled in darkened streets. Strange fruit has hung from southern trees.” Assuming the role of Old Testament prophet, Whitehouse promised a “day of judgment” and a “day of reckoning” for Republicans.
Whitehouse’s attacks on Brett Kavanaugh during the confirmation hearings were demeaning and absurd, Senator Sheldon Whitehouse grilled Brett Kavanaugh about a high school yearbook fart joke. Seriously.
So it’s no surprise that the Brief signed by Whitehouse attacked Kavanaugh, the conservatives on the Court, and the very existence of the Court itself by suggesting the Court would be restructured if it ruled the wrong way.
It was a double-barrel attack — impugning the motives of those holding different views of the 2nd Amendment and threatening to damage the Court’s legitimacy:
Yet this is precisely—and explicitly—what petitioners ask the Court to do in this case, in the wake of a multimillion-dollar advertising campaign to shape this Court’s composition, no less, and an industrial-strength influence campaign aimed at this Court. Indeed, petitioners and their allies have made perfectly clear that they seek a partner in a “project” to expand the Second Amendment and thwart gunsafety regulations. Particularly in an environment where a growing majority of Americans believes this Court is “motivated mainly by politics,” rather than by adherence to the law,2 the Court should resist petitioners’ invitation….
To stem the growing public belief that its decisions are “motivated mainly by politics,” the Court should decline invitations like this to engage in “projects.” See Quinnipiac Poll, supra note 2 (showing fifty-five percent of Americans believe the Court is “motivated mainly by politics”)….
The influence effort directed at this Court has been industrialized. In this particular “project” to rewrite and expand the Second Amendment, petitioners are flanked by an army of nearly sixty amici. As usual, the true identities and funding sources of most of these amici are impossible to ascertain. Amicus groups claim status as “socialwelfare” organizations to keep their donor lists private,7 and this Court’s Rule 37.6 is ineffective at adding any meaningful transparency.8 Were there such transparency, this amicus army would likely be revealed as more akin to marionettes controlled by a puppetmaster than to a groundswell of support
rallying to a cause.
The closing paragraph was at best a thinly-veiled threat (emphasis added):
The Supreme Court is not well. And the people know it. Perhaps the Court can heal itself before the public demands it be “restructured in order to reduce the influence of politics.” Particularly on the urgent issue of gun control, a nation desperately needs it to heal.
This was not so much a legal argument, but a shot across the bow of the Court and Chief Justice Roberts in particular.
Nice Court you have there, Chief, shame if something happened to it.
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Comments
So much for separation of powers. All the senator needs to do is fashion an new amendment to the Constitution, have it pass the Senate and State and bingo… he has it.
Welcome to the Living Constitution, malleable to the current needs of the Party. Stack the Court or Pelican Brief it senator?
You make it sound like that’s so easy to do. Like it or not, this is the agreed upon way to make changes to our constitution. I doubt any amendment abolishing the separation of powers would ever be enacted.
Amendments to the constitution are not what people are talking about when they mention the ‘living constitution’. They mean the precise opposite, changes to the constition that are not codified in any amendments.
I was discussing amendment to do away with 2A. As for separation of powers ….a senator telling SCOTUS what to do is stepping beyond the senator’s perrogative and authority….but what is new? The judiciary has stepped beyond its limits to rule on everything they don’t like of Trump….now that is political!
Time to impeach Sheldon Whitehouse.
Still, “A proposed amendment becomes part of the Constitution as soon as it is ratified by three-fourths of the States (38 of 50 States).”
So, if a proposed amendment that basically eviscerated the 1st amendment passed with a two-thirds majority vote in both the House of Representatives and the Senate and was ratified by three-fourths of the States (38 of 50 States)… it would be valid?
So in effect, the consensus of the mob can rescind any ‘right’? In which case, we have no “inalienable” rights but only privileges granted and rescinded at the whim of the mob.
So much for “self-evident truths” like, “life, liberty and the pursuit of happiness”.
Repealing an amendment in the Bill of Rights would have exactly zero legal effect. The preamble to the BOR plainly states that it (the BOR) is a guarantee that the organic Constitution grants Congress no authority to breach the rights listed therein (along with others not listed, per the Ninth Amendment). This comports entirely with the reason the BOR exists – there was a demand for the guarantee that the Constitution didn’t authorize government to infringe upon citizens’ rights without due process (defined by SCOTUS as judicial process, i.e. not legislative process, neither does the amendment process qualify). Take the BOR away entirely and the federal government (at least) would still not have the authority to intrude upon our rights. And amendments that would enable such intrusions would (or at least should) fail to withstand scrutiny for lack of due process (a right we would still retain even with the repeal of the BOR).
The Bill of Rights does not “guarantee” our rights. It’s a guarantee that government has no authority to intrude upon them! The difference is subtle, but critical.
It’s not a brief, it’s a polemic “Nice court you have there, be a pity if something happens to it.” The Court should strike he brief without a right to refile an amended brief, and impose sanctions.
Absolutely – I’t a clear threat to the Court – extortion. And should merit censure at the least. Expulsion maybe.
“You’re not well. Right??”
He sounds like a gangster. As part of the swamp/left/islamic axis, he sure is.
Our own government is our enemy.
Whitehouse sounds like he needs to be red flagged. Also, has he EVER practiced law? It is my understanding he is a trust fund kid who has never had a real job.
He was the AG in RI before he bought his way into Congress. He sucked at AG also. Just ask the family of Jennifer Rivera, a VERY brave 15 year old trying her best to make a difference in her community and, let down by Shithouses incompetence.
https://www.cbsnews.com/news/murder-witness-slain-on-eve-of-trial/
Like Bernie?
Just as the founders warned,how was it Mr. Franklin put it,oh yes.
The great American patriot Benjamin Franklin was asked, upon his emergence from the Constitutional Convention in Philadelphia in 1787, what form of government the United States was going to have. Franklin answered succinctly, “A Republic, if you can keep it.”
It would appear as we have done a rather poor job of keeping it.
I’ve watched Sheldon Whitehouse in other committee hearings. He’s not quite as unimpressive as Kamala Harris, but he’s close.
Misspelled heel.
The court must heel to its master.
Used to live in RI (have since escaped to a free state), and am familiar with Whitehouse.
He’s a budding Fascist; one that would come into full-bloom if he had access to sufficient opportunity (i.e., power).
In other words, he’s a full-blown Progressive.
It’s a really heavy lift to enact a law, especially with the Senate’s cloture (filibuster) rule. A GOP presidential veto, even with a Democrat House & Senate, means a 2/3 vote to overcome the veto.
And even if the numbers of USSC seats were increased by law, what one Congress can do, another Congress can undo.
This brief seems extraordinarily counterproductive to the Senator’s stated purpose. In my limited experience no Judge is going to appreciate this approach, quite the opposite in fact. Is there an angle that I don’t see here?
TDS
The angle is that it is aimed at ONE person – Roberts.
Who has folded like a cheap suit and licked their boots like a good little dog at all previous suggestions that he’s being partisan by voting with the conservatives.
What a shock that they feel comfortable blatantly trying to intimidate him.
Roberts is a coward and they’re trying to intimidate him. That’s the angle.
All these folks claiming Roberts has folded like a cheap suit!! perhaps you were unaware that before he was on the court, he was doing pro bono work for homosexuals!!
“Indeed, petitioners and their allies have made perfectly clear that they seek a partner in a “project” to expand the Second Amendment and thwart gunsafety regulations.”
The hypocrisy of the left is quite breath-taking. This “project” approach is has been SOP for the left for decades. An ugly example of this is the abortion holocaust saddled to this country through the project of finding “just the right plaintiff.”
Exactly. Who knew such tactics were illegitimate and unamerican? Perhaps Whitehouse should have informed us a few decades ago and we could have saved ourselves a lot of damage.
Wow. What is this guy smoking? Not even Ginsburg is going to be impressed by anything as blatantly stupid as this.
So . . . if he’s not really talking to the Court, who is Whitehouse trying to impress with his totalitarian New World Order bona fides?
The compromised Chief Justice.
I doubt this would ever happen , but Ruth should send a letter to Sheldon, speaking for the court and basically tell him grow up.
He embarrasses circus clowns.
Whitehouse is a genuine moron. Really, he’s dumb as a brick. Moreover, he talks funny.
Prediction: this will work on Justice Roberts. He folds at the slightest sign of mean words from the left.
“what one Congress can do, another Congress can undo.” – well, maybe. That’s not working too well for Trump, when he tries to rescind Obama’s Executive orders. They tell him that although it’s perfectly legal, he wants to do it for the wrong reasons, so no he can’t do it.
You put it in a nutshell. Thks.
Well, actually, I’m unsure a federal judge’s position can be eliminated during his lifetime. His salary can’t be reduced…. firing…. I supposed yes to eliminating district and appellate federal courts. SCOTUS? I’m uneducated on that one.
There must be some kind of precedent for this thing? I could use some historical context.
Any thoughts?
1937 – Justice Roberts (1875-1955) earns the distinguished Profile in Putty Award,
https://en.wikipedia.org/wiki/The_switch_in_time_that_saved_nine
If we lack the strength of character to defend our republic against individuals like Mr. Whitehouse, then we will deserve what we get. It remains to be seen whether or not we do.
If the Bill of Rights is “restructured”, it might not be the only thing restructured. Only one side is going to like the result.
Subotai Bahadur
Wikipedia could become the standard for establishing our history.
There is some Navajo saying that speaks to the superiority of the oral tradition over the “written word”. I wish I could find it again but it goes something like
“the written word can always be rewritten but words from generation to generation by the spoken word through rituals don’t change. Words only die when people forget.”
Soon after words are committed to writing, they are forgotten and must be looked up. Or forgotten forever. Words entrusted to the oral tradition are committed to memory which is refreshed every day through ritual.
Most of our most important writings are descended from the oral tradition. How many thousands of years did it survive before being committed to writing? This is how “knowledge” is separated from culture. Take away the rituals, take away the knowledge and wisdom. We need to believe again.
Correction: “The TRUTH only dies when people forget.”
The right to keep and bear Arms… legs, head, shall not be infringed. Democrats are remarkably Pro-Choice.
This isn’t just Whithouse.
The brief had the names: Sens. Sheldon Whitehouse, D-R.I., Richard Blumenthal, D-Conn., Mazie Hirono, D-Hawaii, Richard Durbin, D-Ill., and Kirsten Gillibrand, D-N.Y.
Crazy as shithouse rats, all of them, nibbling on corn.
A vividly painted picture indeed.
I seem to recall that Blumenthal has some issues with his military service claims. Even Snopes agrees that he misrepresented his service when he first ran for Congress. But then CT would elect the proverbial ham sandwich as long as it had (D) after its name on the ballot.
The court cannot expand upon an absolute right to keep and bear arms, it just needs to uphold their oath to defend and protect the constitution. No state or city can dictate how or where a citizen can transport their arms except for very narrow circumstances like airports or public offices. The rights of lawful citizens are vastly superior to the moronic rantings of grandstanding politicians.
ABORTION: Settled law.
GAY RIGHTS: Settled law.
GUN RIGHTS: Not settled law.
Oh, I get it. Way to start CWII … I’m not kidding.
Yet, the latter is the only right mentioned in the Constitution!
This brief is not amicus curiae, it’s hostis curiae
A John Roberts appears as a guest in Epstein’s Lolita Express logbook. Is Roberts compromised?
John Roberts is not an uncommon name. But corruption and perversion are both bipartisan and normal in our government. Absent proof otherwise, assume it is him.
Subotai Bahadur
Chief Justice Roberts (to steal a joke from Seinfeld) folds faster than Superman on laundry day.
I note that much of our current jurisprudence is based on decisions in the late 1930s after FDR threatened a similar restructuring and so after a retirement and political appointment, the main tenets of our constitutional system were quickly overthrown and remain so. Think commerce clause and all the other hazards FDR cast our way. see CATO’s Epstein book.
‘The People’s Pottage’, Garet Garrett
https://mises.org/library/peoples-pottage
Maybe Whitehouse needs to restructured.
He sounds like a demented mother with Munchausen by Proxy, who likes to get attention by making and keeping his child sick.
Sen. Shitehouse
The Dems must hold him dear, because it’s the only Whitehouse they’ll get for the next five years (at least).
Why is the 2nd Amendment the first one they want/need to revoke? Because once American citizens are disarmed, the government can take away the 1st Amendment. Then the 4th, 5th and 14th Amendments. The entire Bill of Rights will be abolished. The democrats will dance in the firelight as they burn our Constitution. They want to eliminate our co-equal branches of government and the checks and balances they provide. democrats pose the biggest threat to freedom, liberty, reason, logic and prosperity to the United States.
What do you mean “once American citizens are disarmed”? They are already after many of our other rights. For instance, Maxine Waters, among others, has advocated the policing and restricting of political speech online. Civil forfeiture threatens private property without (common law) due process (civil forfeiture is an admiralty process). I’m sure you can think of others. They’re trying to take our guns from us not before they do other things to us, but before we realize what’s already been done!
Hey Sheldon, little tip about threats: don’t make them unless you are actually able to pull them off! You Dems right now can’t pull off such a restructuring and the way 2020 is shaping up it looks like to me that you won’t be able to pull it off for quite some time either.
Translation: the court is no longer reliably politically liberal, issuing left-wing decrees that we could never pass with majority votes in Congress, too much respect for the Constitution nowadays, totally unacceptable.
So Sheldon et. al. is basically telling SCOTUS to rule on a gun law (or refuse to take the case) in accordance with which the Democratic party demands or we will pack the court under the excuse that SCOTUS has become too political. The hypocrisy and projecting is overwhelming. Any normal person would be too embarrassed and shamed to make such a demand, but it would appear that these Democrats left that morality years ago.
A serious question for you lawyers here. How is it that a state or municipality can in effect amend a Federal constitutional right? The way I see it the Bill of Rights grants the people of the entire country the same rights which cannot be infringed upon by anyone. Are we to have different versions of freedom of speech in every state? Could a city or county require a background check before one purchases a Bible or Koran to make sure that the owner is not a dangerous religious fanatic? This whole thing of having different rights in different political jurisdictions seems, unconstitutional to say the least!
They can’t. But background checks don’t infringe the RKBA, because everyone agrees that there are people who don’t have the RKBA, so it’s reasonable for the government to ensure that people who don’t have it can’t buy weapons. If there were people without the freedom of speech and the press then it would be equally reasonable to have checks on exercises of that right; but there are no such people, so it isn’t.
Nobody claims that the 1st or the 2nd amendment preclude reasonable regulation. Speech can be and is regulated for time, place, and manner, but not for content. The 2A also allows reasonable regulation. The big question is what is reasonable. In both cases regulations must not be so onerous as to impose an undue burden on ordinary people exercising their rights. Many current regulations do just that, and so should be struck down. But that doesn’t mean there should be no regulations at all.
Sorry, but just because “everybody agrees” on something does not negate the wording of the 2nd Amendment. The amendment clearly and unequivocally states that the government shall not infringe upon the right to keep and bear arms. The only constitutional excuse for denying any person that right, is if the person is in a custodial situation such as incarceration in prison or commitment for a mental disorder or due to not yet having reached the age of majority. Every person who is allowed to walk freely in society has the Right to keep and bear arms and that right may not be infringed. The 2nd Amendment says so. This idea that courts are free to rewrite the language of the Constitution and its legally ratified amendments, simply because the court feels like it or “everyone agrees” it should be rewritten is totally bogus. If people choose to rewrite the Constitution, that is what the amendment process is for.
Indeed it does. That doesn’t tell us what that right is.
Says who? What makes those exceptions more obvious than the ones we have?
No, it doesn’t. I’m sorry if you would like it to, but it doesn’t. It says the right may not be infringed but it doesn’t say what the right consists of or who has it, other than “the people” generally. That doesn’t mean there are no exceptions, and indeed you yourself have listed some exceptions that seem clear to you; others are entitled to think there are more exceptions.
Of course it is, and that is not what the court claims to be doing (though unfortunately sometimes it lies).
Yeah, but my point isn’t that there can be no limits, the question is who can impose those limits. Is it possible to have 50, or even thousands of restrictions placed on constitutional rights by every political jurisdiction in the country?
”
The amendment clearly and unequivocally states that the government shall not infringe upon the right to keep and bear arms.
Indeed it does. That doesn’t tell us what that right is.”
Really? What is equivocal about “shall not infringe upon the right to keep and bear arms”? Are you channeling WJ Clinton and asking what the meaning of “is” is? This passage states that every person can keep and bear arms. There is no qualifier of “except in the following circumstances”.
” The only constitutional excuse for denying any person that right, is if the person is in a custodial situation such as incarceration in prison or commitment for a mental disorder or due to not yet having reached the age of majority.
Says who? What makes those exceptions more obvious than the ones we have?”
They are more obvious because they have been tenets of English Common Law for centuries. All of these are custodial situations where another person has legal authority over the person in the custodial situation. Prisoners are essentially wards of the state, until their release. Institutionalized mental patients are essentially the wards of whatever entity the state has granted control of them to. And, of course, minors are in the custody of their parents or guardians. The exercise of their rights can be limited by those who have custody of them.
“‘ Every person who is allowed to walk freely in society has the Right to keep and bear arms and that right may not be infringed. The 2nd Amendment says so.’
No, it doesn’t. I’m sorry if you would like it to, but it doesn’t. It says the right may not be infringed but it doesn’t say what the right consists of or who has it, other than “the people” generally. That doesn’t mean there are no exceptions, and indeed you yourself have listed some exceptions that seem clear to you; others are entitled to think there are more exceptions.”
Actually, that is exactly what the 2nd Amendment says. A right to keep and bear arms is just that, an authorization to own and possess arms. And, the language of the 2nd Amendment CLEARLY states that the government can NOT infringe [limit] the authority to own and possess arms. People can “see” any exceptions that they like. Now, I never said that the custodial exceptions, which I cited were valid. I said that they might be constitutionally acceptable. However, you would have to clear the hurdle presented by the fact that the wording of the Amendment is pretty much absolute. Also, once you begin stripping rights away from people, you better have a very, very solid foundation for doing so. In the case of 2nd Amendment rights, you might be able to justify that on the basis of custodial status. But, it becomes extremely difficult to do so based upon past behavior, when the person has paid for such behavior through incarceration or has been deemed no longer a threat to society following commitment for mental health issues. Releasing such people into society is done so under the assumption that they are no longer any threat to that society.
”This idea that courts are free to rewrite the language of the Constitution and its legally ratified amendments, simply because the court feels like it or “everyone agrees” it should be rewritten is totally bogus.”
Of course it is, and that is not what the court claims to be doing (though unfortunately sometimes it lies).”
YOU made that claim. YOU said the “everyone agrees”. Unfortunately, not everyone DOES agree on that. What has happened is that some people have decided that they can amend the language of the 2nd Amendment as they desire, based upon their own world view, without following the rules concerning such amendment. The Constitution is a written contract and, as such, the language of the contract is binding, unless amended by the principles involved. So, until the 2nd Amendment is legally and constitutionally amended we have to abide by its specific language.
It tells us nothing at all about what that right is.
No, it does not.
First of all, by this standard, the government could not restrict minors’ RKBA; only their parents could. And yet you explicitly said the opposite. So you are creating exceptions to your invented “everyone” (which is not in the amendment); how do you know there are not others.
Second, prisoners and other wards of the state do not lose their first amendment rights, and the government cannot restrict their exercise of them. So what makes you so comfortable saying that their second amendment rights (assuming they had any) can be restricted, but that others’ cannot?
No, you’re making this up post facto. The plain fact is that the 2A does not specify what the RKBA consists of and exactly who has it, beyond the generic “the people”.
No, I did not. You did.
Yes, everyone does agree that there are people who don’t have the RKBA. Even you agree, though you claim not to.
I love discussing things with attorneys.
Actually, the RIGHT, in question, is the RIGHT to own and possess arms, including firearms. The Amendment explains that very clearly. It does not say that the the government “shall not infringe upon the right of the people to keep and bear arms, except under the following circumstances…”. This makes it clear that any infringement upon a person;s ability to own or possess arms is not allowed.
As to the examples of restrictions which MAY be constitutionally acceptable, they are more acceptable because the person in custodial custody does not have the freedom to make decisions for himself and the will of others can be imposed upon him.
As to the argument that the government could not restrict the right of minor children to possess firearms, this could be implied if the language of the 2nd Amendment was absolute. But, the minor’s parents, or guardian, could be held responsible for the possession of a firearm by a minor child. The law could be aimed at the parent, rather than the child. There are a lot of laws which restrict the actions of minors, without the direct suoervision of and adult parent of guardian.
And, prisoners DO, in fact, lose 1st Amendment rights. they also lose 4th and 5th Amendment rights as well. As do this committed for psychiatric incarceration. Language violations are met with disciplinary action, in both cases.
Well, the generic “the people” seems to be pretty all-inclusive to me. The beneficiaries of the RKBA are “the people”. Not “some people” or “certain people”, but the people, in general. See, this is what attorneys, including judges, who wish to find reasons to restrict the protections of the 2nd Amendment, fall back upon; rewriting the language of the Amendment to include things which do not appear there.
Ah, now we are getting somewhere. You will notice that I only argued the a person can be denied the right to own or possess arms if they are in a situation where they have been placed in a situation where another entity has legal custody of them AND the authority to control the behavior of that person. I limited the suspension of 2nd Amendment rights to incarcerate criminals, incarcerated persons committed for psychiatric problems and minor children whose parents have custodial authority over them. What you are arguing is that people, who are not in those custodial circumstances, can be arbitrarily stripped of the RKBA, which is guaranteed to “the people” by the 2nd Amendment, because of past behavior or circumstances. The problem with that is who gets to define what constitutes “reasonable restrictions”? The government? The gun control lobbies? Women in Distress? If a person has a conviction for DUI, is that grounds for suspending his RKBA for life? See the problem?
Things like Red Flag laws are a joke and a danger to the person who is the subject of their implementation. Right now judges hand out domestic violence restraining orders [aka “protective orders”] to any woman who walks in and fills out the proper paperwork. Suddenly, the male comes home and finds that he has been thrown out of his residence without any opportunity to argue against the actions, prior to it being implemented. And, if the person who is restrained is left at large, 30% of these orders are violated and 21% are violated violently. Then, the most startling statistic is the low number of temporary restraining orders which become permanent. The same would probably be true of Red Flag orders. If a person is so dangerous that it is justified to remove his property, why isn’t the person dangerous enough to be detained or committed? Convicted felons obtain firearms illegally all the time, including fully automatic weapons. None of these laws work. They are all feel-good measures which do nothing but infringe upon the right of law abiding citizens to own and possess arms, including firearms.
You have it backwards. If the constitution allows limits, then each state, city, and village can have different ones. If the constitution doesn’t allow limits then none of them can have any. Take the freedom of speech; the courts say that the constitution allows restrictions on time, place, and manner, but not on content. Each hamlet in the country can have its own set of time, place, and manner restrictions, but no jurisdiction anywhere can restrict content.
Who decides what kind of restrictions the constitution allows? The same people who decide what any law means: the courts.
I’m not going to bother with another point-by-point reply. I’ll suffice with pointing out one blatant untruth in your comment, which is typical of the rest:
No, they don’t. The courts have been very clear on this.
And here I thought the purpose of the bill of rights was to take power from the “everyone agrees” mob and preserve it in the hands of the individual.
The Bill of Rights can only mean what everyone agrees it means. If everyone agrees that something means A, then that’s what it means. In this case, everyone agrees that not everyone has a RKBA; therefore the right that the 2A protects does not include those people. Similarly everyone agrees that the freedom of speech doesn’t include the right to yell through a bullhorn on a residential street at 3 in the morning, so laws congress makes banning such speech don’t infringe that freedom.
Oh, good grief. It means what it says in plain English. If someone is too dense or too stubborn to accept that, they need to seek psychiatric care.
It does not say, in plain English or any other language, what the RKBA consists of, or who has it.
Milhouse,
If they intended the right to be unlimited, they would not have defined it, and ‘shall not be infringed’ would fit in perfectly. OTOH, limits on the right are infringements and it would have been more logical for them to define what is allowable.
Until the 1930s civilians were freely allowed to buy military style weapons (Tommy Guns and machine guns, even cannons), and many businesses and individuals took advantage of this freedom. [Fun fact: in the 1860’s NY draft riots, the NYT defended itself with several Gatling guns it owned.] This makes a good case for the founders intending an unlimited right.
To answer your question, we have to look at the history of the Constitution. When the Bill of Rights was ratified, the only Amendment which applied to the states, was the 10th. And, that dealt with the fact that powers, which were not authorized to the Federal government, were reserved to the States. So, initially, the power to regulate the ownership and carry of firearms, denied to the Federal government under the 2nd Amendment, was free to be exercised by the states, subject to their own constitutions and laws. This changed with the ratification of the 14th Amendments, to the US Constitution, in 1868. The 14th essentially applied all of the amendments to the US Constitution to the governments of the various states and their political subdivisions. This included the 2nd Amendment, which is not specifically restricted to the federal government, by its language. However, this was a wholly unintended consequence. Virtually no one even saw this. So, the states, and their political subdivision kept right on making laws which infringed upon the right of the individual to keep and bear arms. Until Heller and McDonald came along in the 21st century.
So, not only can’t any government, in this country, enact any law or regulation which infringes upon a person’s right to own or possess arms, including firearms, all existing laws, which do that are unconstitutional and null and void.
But, for some reason, a lot of people simply ignore the US Constitution for their own reasons.
To restate a point… the banners wish to make the 2A an communal right of a state to protect itself (state’s rights) from imposition by a federal government. OK… but who and what protects the individuals in the state from the wrongful imposition by the state (think post Civil War South and freed slaves)? As you point out, the first 9 amendments are individual rights. There was parity in force of arms at the creation of the Bill of Rights, yet now the power of governments to suppress a population would absolutely have our firebrand Founders thoroughly cleaning their M-4s and SAWs these days. The Bill of Rights predates the Reign of Terror by France by about two years and shows in small part why a completely armed populace is needed… to deal with tyranny from any side. That the Left feels comfortable to push this means they feel they have won enough political battles to assure their success (hasta la victoria, siempre!)
Dear Mark:
Originally, the bill of rights only applied against the federal government. Over the years, SCOTUS has applied various of the amendments to actions of STATES through the doctrine of “incorporation” through, as I recall, the 5th o 14th amendment. I don’t remember which.
Whether the 2nd amendment has been so incorporated to apply to the states, I don’t remember.
McDonald V City of Chicago.
Thank you for answering the question that I asked!
Dear brain dead liberal the Senate is a co-equal BRANCH OF GOVERENTMT. You do not HAVE A HIGHER AUTHORITY. Time you power abusers were removed from office.
How this nation survives voters that elect the likes of Ted Baxter is a mystery I’ll never understand.
Clearly this gang of legislators know Roberts well. It’ll work. He’s Mr. Optics.
One would hope that the left wing justices, especially Kagan who can be very incisive, would be offended by what these senators write and push back in a meaningful way to spite their efforts.
She is often principled, and she’s very bright. She’s fully responsible for what she does. What will she do here?
If the left wing goes along with these senators, it can only be for political reasons, and so the right should take the gloves off too.
I think you are maligning Mr. Baxter by comparing him to the evil moron from RI.
That was supposed to be in response to stablesort.
The scariest thing to me is the utter stupidity of these idiots. I do believe these five senators are the dumbest members of the Senate.
Such a farcical arguement. Threatening restructuring of the Supreme Court to make it less partisan. Our founders addressed that argument when the made appointments to the court a lifetime tenure.
An honest statement from Whitehouse would have been “Rule in our favor or we’ll burn the Constitution.”
I know hyperbolic but such are the times.
The Dem Party has gone full gangsta. They’re now openly threatening Supreme Court judges.
The Democrat way: If we can’t get what we want we’ll rig it so we do.
We should learn from them. You can’t fight a sword with a toothpick. Constantly trying to restore political fairness is the job of a chump. Push back harder than we were pushed!
He means reduce the influence of the Constitution and rule as the Dems demand.
So, who’s shredding that document again? Every D candidate is advocating for grossly unconstitutional programs or for altering it dramatically.
But since they’re talking change, let’s repeal the 17th and the 16th. Both were terrible mistakes perpetrated by Progressives to subvert the government.
The SCOTUS has ALWAYS been political. It shouldn’t be. It should make rulings based solely upon the least involved interpretation of the language of a document. But, courts are made up of lawyers. And lawyers are trained to look for loop holes in order to advance their position. That is what the law has become. When no such loophole exists, in the language of a statute or amendment, then the courts look to “legislative intent”. In other words, rather than rule in accordance with the text of a law the court puts on turbans and divines an “intent” of the legislators which is, usually, at odds with the language of the law. If that does not work, then the jurist simply makes s**t up to justify a decision which is at odds with the language of the statute. And, the urist is largely immune to any ramification for these actions. A jurist can be reversed y a higher court 100% of the time and still maintain his seat on the bench. In the rest of our society, any person who was wrong far less than 100% of the time would be removed for gross incompetence. But, not in the judiciary.
Whitehouse, of course, is the Senator that was the designated High school Yearbook Code Talker for the Democrats during the Kavanaugh hearings. His proven ability to mesmerize the public with his blatant stupidity was most impressive.
I propose restructuring the Senate – get rid of all crazy Democrats.
I’d like to know just who conjured up Sheldon White house. This guys is a perfect amalgamation of political caricatures played by Phil Hartman and Will Ferrell on SNL.
Justice Roberts asked for this when he decided in the Obamacare case that his job was to protect the Court, not the Constitution. This stupid and cowardly weak sister (Freda!) pre-emptively paid the Danegeld before any Dane even demanded it.
Of course the Danes would observe that eagerness to fold and so here comes the clown Sheldon Whitehouse shaking a broadax over his head: chop the 2nd Amendment or else! Next it will be “Spartacus” Booker demanding that the Court impose a vegan response to climate change.
Democrats want to take all our guns.
Then they will take all our money.
Good question for a man-on-the-street type interview … ask people “If the Supreme court rules against the Democrat’s gun control measure, should the ruling be appealed?”
Note to you Blue States, it starts here and before you know it your legislators come after something more they don’t want you to have beyond your 2nd amendment rights!
Meanwhile, back to the good Senators’ briefing.
No source is cited for the poll results. A bit of searching yields a Quinnipiac University Poll.
N=1,078 registered voters nationwide
See https://www.pollingreport.com/court.htm
“In general, do you think that the Supreme Court is mainly motivated by politics or mainly motivated by the law?”
Mainly Politics 55%
Mainly Law 38%
Unsure 8%
“Do you think that the Supreme Court should be restructured in order to reduce the influence of politics, or don’t you think so?”
Think it should be 51%
Don’t think so 39%
Unsure 11%
“Do you think the Supreme Court is too liberal, too conservative, or about right?”
Too Liberal 16%
Too Conservative 35%
About Right 39%
Unsure 11%
Approximately 1K voters. Out of how many millions?
Statistical sampling theory aside … let that soak in for a moment.
Approximately the same sampling theories predicted Hillary in a walk. Let that soak in.
Now comes members of the US Senate with a threat of political action – because 55% of 1K voters believe the Court is influenced by politics. Speculation: what do those voters know of the Constitution and law in general? Yeppir, the law can be an ass – but various Congresses wrote those laws.
As an aside: every case that comes to the bar involves someone saying ‘yes’ and someone else saying ‘no’. Whether that is guilty/not guilty in a criminal case, or interpreting rules/regulations/laws … ours is an adversarial system. If two learned lawyers disagree, then why are we surprised that the Court has split decisions? Perhaps if Congress wrote more clearly – or even wrote less – this might be diminished?
A threat of political action, based on a perceived Court sensitivity to political leanings, is not a hollow threat. It is stoopid, arrogant, and scary. Today, it just might be fulfilled. That has happened in the past (see https://constitutioncenter.org/blog/why-does-the-supreme-court-have-nine-justices)
The Court has rejected documents before – will this one be rejected? Or will the Court never comment on it?
Sheldon Whitehouse: “The Supreme Court is not well. And the people know it. Perhaps the Court can heal itself before the public demands it be “restructured in order to reduce the influence of politics.”
That statement is hilarious. What this Commie dirtbag is saying is that the Court is not allowing enough of the PROPER type of politics (hard Left) to influence their decisions.
Having grown up among the left, I can see one leftist shibboleth after another being trampled underfoot, and I can see how it doesn’t compute for them.
But that’s just because the Dems are mentally limited and don’t see that these shibboleths are nowhere in our designed system of government, and it’s entirely right for the political process to overturn them.
But I figured it out myself long ago, so I am enjoying this immensely.
The worst problem with this country faces is caused by moronic voters who continue to elect and re-elect the sick and perverted socialist Demoncrat and RINO ( a.k.a., zombie Demoncrat) politicians.
Since the Dems are putting “in play” the idea of stacking/restructuring SCOTUS (to their specifications), what’s to stop Trump from doing so now (to his specifications)?
Yes, when your desperate opponent makes mistakes like this, use those mistakes.
The Dems don’t need to be desperate. They lost an election, Trump’s 8 years are up in 2024, they should be good sports about it. That’s our system. But instead they do all this.
Punish them for it. There is no reason for good will at this point; the Dems have dirty, conniving, hostile, I’d even say treasonous.
Wow, sounds like extortion and obstruction of justice. The senators threats should be brought immediately before a grand jury.
if an average citizen wrote a letter like that to the Supreme Court, or to any local court, he would be taken into custody immediately.
For what? It seems like a straight-out exercise of the first amendment right to talk like a crazy person.
I wish the Court would grow a metaphorical pair and just rule that “shall not be infringed” means what it bloody well says and tell all the gun grabbers to pound sand.
I think this action by a group of US Senators is part of a theme from the Democrat Part, contempt for the rule of law. and fair play, in general.
Elizabeth Warren and Kamala Harris don’t care about “innocent until proven guilty,”
https://www.reddit.com/r/The_Donald/comments/cqlhkl/oreilly_heres_why_elizabeth_warren_and_kamala/
https://www.youtube.com/watch?v=oM-NC7UuNLo
Oberlin won’t recognize a jury verdict or a judge’s rulings,
Jerry Nadler won’t accept that he has no evidence of an impeachable offense,
CNN uses an insult freely (Fredo), but calls the same insult racist if others use it.
Democrats think they are privileged.
We senators, politicians that we are acting in our political roles, advise you to do what we say, because the public believes the Court is too political.
I ain’t buying TDS, that’s way too simplistic and ultimately doomed to fail. If SCOTUS does the correct thing, IMHO refusing to dismiss the case and ruling NY laws are a violation of constitutional rights then what? Next D President with a majority D Senate adds four new seats to SCOTUS filled with their ideological fellow travelers? Well then the next time political fortunes allow the R to do so they will simply add enough seats to counter act that. Tit for tat ad infinitum.
I am also not buying cowardice. While one can say the Chief Justice has ‘allowed himself to be convinced’, to put it charitably, on some important decisions, each of those decisions allowed for another bite at the apple if presented another way.
Finally it’s one thing to, behind the scenes without public knowledge, allow the bully to take your lunch money. An open and highly public challenge such as this brief is quite another thing entirely. Especially when paired with public comments from supposed responsible legislators about the mere possibility of court packing. If SCOTUS allows itself to be bullied in public I will be surprised. I might be wrong but I just don’t see that happening.
By “restructured in order to reduce the influence of politics.” he means “restructured in order to reduce the influence of people who believe in the Constitution as ratified.”
The term that should be used for these people is ‘Bulllies’, they think they know better and are willing to enforce their belief with punishing tactics. They never consider whether other opinions are valid, and will continue the behavior even after they have gotten their way, merely shifting to another point on their platform.
Most of all, they clothe themselves with virtue throughout.
Bullies!