Liberals For Gun Rights?
The Supreme Court is set to consider another gun-rights case, McDonald v. Chicago, argued by Alan Gura, who won the historic Heller case that outlawed D.C.'s gun ban. Gura is arguing that Second Amendment rights should be "incorporated," meaning it should be viewed as a "fundamental right" like freedom of speech or religion -- a right that can't be regulated by the states.
Here's the interesting part: Some liberal legal types are supporting Gura's case. Why? Because they believe that a ruling in favor of gun-rights advocates could provide a way of bolstering other rights enumerated in the Bill of Rights, not just the right to bear arms. From a Legal Times piece written last February:
Use of the due process clause has led to "the constitutional equivalent of a food fight" with conservative justices increasingly wary of expanding or creating new rights because of the clause's process-oriented scope, says Douglas Kendall, founder of the D.C.-based Constitutional Accountability Center. Kendall says invoking "privileges or immunities" would have a "lift-all-boats" effect, strengthening free speech, and possibly even abortion and gay rights, at the same time that it bolsters the right to bear arms.
Kendall had few qualms about joining McDonald on the side of gun-rights advocates. "The conversation on this clause has begun, and there are very important progressive values at stake in the outcome," Kendall says. "We need to be in that conversation."
While handgun bans will likely be outlawed, even Antonin Scalia has written that the Second Amendment doesn't mean people have a right to carry around loaded firearms in schools or courthouses. So not all commonsense gun restrictions will be made unconstitutional, but other fundamental rights may be strengthened if the Court accepts this latest legal argument of gun-rights advocates.
I also want to point out that this is a rather lovely example of conservatives looking for judicial activism. Second Amendment rights have never been read this way before -- so this time, it would be conservatives reading "new rights" into the Constitution. It's just that this time they're in favor of doing so, so it's cool.
-- A. Serwer
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COMMENTS (15)
The 2nd amendment already talks about a "well regulated".
Sounds to me that this is subject to regulation.
Posted by: Aaron | September 30, 2009 3:54 PM
A. Serwer-
I recommend you read up on your Constitutional Amendments. While I'm quite sure there is something in there about the right to keep and bear arms, I don't recall the right to abortion. I do recall a right guaranteeing you the right. I do recall an acknowledgment of equality, and am heavily in favor of individual rights.
I just can't quite understand how it would be CONSERVATIVE judicial activism to include the second amendment in the list of other amendments already impacting state law.
It seems liberals always use a Constitution of convenience on these types of things..."I want my right to speak out against my government but i don't want you to be able to keep/bear arms."...."And not only do i not recognize your second amendment, in its place, i want to allow a provision for murder....we'll call it abortion."
I have no problem with murder when it is necessary for the protection of one's rights/self defense(including rape), but murder out of convenience is not a RIGHT!
I don't go around pissing people off and then get surprised when one of them beats the sh*t out of me.
I don't expect to get away with shooting them in 'self defense' either.
I don't understand how the same deplorable level of constraint on the part of a woman to go around f*cking without protection would make it any more legal to kill the outcome of that situation.
Much less to have a NATIONAL group advocating for my RIGHT to murder someone i started a fight with...
Ridiculous...
Forward me your copy of the Constitution...my cereal box didn't have one so i'm having to use the old one.
Posted by: karlthomas | September 30, 2009 4:51 PM
ANY regulation that you could consider 'commonsense', no matter how innocuous, can and will be called an outrageous infringement of rights by someone else.
Whether it is or not only depends on who has the votes.
Posted by: catclub | September 30, 2009 4:58 PM
...but other fundamental rights may be strengthened if the Court accepts this latest legal argument of gun-rights advocates.
this seems naive to me; the Roberts court will find a way to differentiate; it's a pro gun con an nothing more
Posted by: Anonymous | September 30, 2009 5:53 PM
Wonderful, like we need more hand-guns in the City of Chicago.
Posted by: leo | September 30, 2009 9:39 PM
"Second Amendment rights have never been read this way before -- so this time, it would be conservatives reading "new rights" into the Constitution."
Mr. Sewer:
Before coming forth with personal and pre-conceived notions, I urge you look into the founding-era and reconstruction-era history of the second amendment. Also, look at historical sources regarding public opinion on the right to arms. There is nothing new about reading an individual right as protected by the second amendment. For the most part, Americans have always known they had an individual right to arms.
Today is no different.
Posted by: Carl from Chicago | September 30, 2009 10:09 PM
Everyone is nuts about the gun issue. Is it really that hard to understand that NYC needs a different set of gun regulations than a small county in upstate NY?
Gun control should be a local issue, it shouldn't even be a state issue. This whole issues wreaks of Urban/Rural hostility and all the classism and racism that comes with it.
Posted by: soullite | September 30, 2009 11:07 PM
Hey KarlThomas-
Misogynist much ? I already knew the poster of your message was male while I read it; when I saw your name that cinched it. I love when a MAN ( who will never know the powerful, life-altering impact pregnancy has on a woman's life) decides to tell me what I may or may not do with my body. And before you get wound up, I am the mother of six children, grandmother of seven. I've never had an abortion and never will, but I will fight fiercely for the right of every woman to make that highly personal,excruciatingly painful & difficult choice for herself. And also for the record let me say I don't get the deplorable level of constraint of any MAN who goes around f***ing without protection and then disappears, LEAVES the mother and child to fend for themselves, abandoning his parental responsibilities, causing a lifetime hardship for the fatherless child and a huge financial burden for the single Mother, many of whom are forced to turn to the State for help, affecting the local & national economy. If you want to question that, go sit in ANY Family Court, any city, any state before you come back with what you think is a witty whiplash answer that puts me in my place. When men decide, finally, as a group to become responsible, accountable parents, the rate of abortions will drop. Until that happens, deal with it. As a single Mom who raised six children alone with no child support, I certainly have. I have 2 ex-husbands who owe me over $150,000 in child support. I'll never see a penny of that, and my children have suffered from not having a father present in their lives. My story is HARDLY an exception.
If you're so anti-abortion, why don't you start an organization that teaches men to be nurturing, fully present and responsible fathers? Put your money where your mouth is and make a difference instead of a lot of inflammatory foaming-at-the-mouth.
By the way, get a couple books on Constitutional Law, please? You are ranting like a madman; you say you are "heavily in favor of individual rights" but it seems in your lexicon, those rights are reserved for men only.Take a look at the calendar, pal; it's 2009. Men don't get to tell women what they may do any longer. We can vote now, and we DO.
You come across like a bully. Nobody likes bullies, Karl.Nobody.
PS---so that no one here gets their feathers ruffled, I'm not saying ALL men are loser deadbeat Dads, but the statistics are pretty scary. Please inform yourself of them before you decide to jump down my throat.
Posted by: Susi Franco | October 1, 2009 10:10 AM
PS----KarlThomas-have you ever considered that overturning Rowe vs. Wade would undoubtedly open the door to the government telling ALL of us what we may/may not do with our own bodies ? Like say, stem cell research and disease process applications thereof ? Or maybe, who can have a liver transplant and who can't ?? ...Decisions that should be solely the individual's and their Dr would be made by the government and some nebulous collective consensus ?? Think about it. As a retired RN, the equation in it's entirety is crystal clear for me. Bigger picture, Karl.
Posted by: SusiFranco | October 1, 2009 10:30 AM
Regardless of Sonia Sotomayor's ignorant comment, there is no Constitutional distinction between "fundamental" rights and any other Constitutionally protected rights.
Actually, if such a distinction is to be made, the protection of the right to bear arms is stronger than that to free speech. Read the First and Second amendments. The First says merely that "Congress shall make no law..." whereas the Second says "the right of the people to keep and bear arms, shall not be infringed. This leaves open, in theory, that legislative bodies other than Congress may make laws respecting free speech, but the Second is categorical: No one can make laws that infringe on the right to keep and bear arms.
Ad rem, with respect to McDonald v. Chicago, if the Supreme Court actually reads the Second amendment, and actually interprets it as its authors meant it to be interpreted, it will create no new rights at all. It will simply assert that Chicago, New York, and many other places, have been violating those existing rights for decades. For the Liberals, this certainly doesn't offer an opportunity to invent any new rights.
(Maybe I shouldn't say that. I'll gladly accept the support of Liberals in protecting the Second amendment, even if their reasons for doing so are flawed--I shouldn't be pointing out, publicly, the flaws in their reasoning.)
Posted by: Henry Miller | October 1, 2009 12:13 PM
Regarding the "well regulated" comment by Aaron, above, yours is a common misconception. In the eighteenth century the word "regulated," as pertains to soldiers, meant "Properly disciplined." It's usage in the Second amendment is as an adjective to "militia," not to permissibility of weapons.
(From the Oxford English Dictionary:
Of troops: Properly disciplined. "We hear likewise that the French are in great Allarm in Dauphine and Bresse, not having at present 1500 Men of regulated Troops on that side.")
Posted by: Henry Miller | October 1, 2009 12:33 PM
SusiFranco...
Have you considered that POOR decision making is a PERSONAL responsibility? EVERY woman knows the natural INTENDED outcome of sex is to make a child! Hell, we have invented countless methods in the attempt to keep it from happening! So to assume that you and all other women engaging in consensual sex know full and well the resultant outcome could be a child would lead me to believe you have made your decision to MAKE a child and you have no RIGHT to a convenient murder....whether you believe you are entitled to protect your body or not! You make the decision to engage in baby making, you don't get the easy-out of getting rid of the problem....you don't like that guys can(and do all to frequently) leave women with children taking no responsibility themselves, work to change THAT! Stop making POOR choices!
Like i said before, I don't go out doing things i KNOW will result in something i don't want....And if i did, i don't have any expectation that i can simply get rid of the resulting problem, like it never existed...
As a mother of six and now grandmother of seven, i expect you are advocating for your grand children to take responsibility for their actions and not just shove them under the carpet.
No man can walk away from a child and mother if that child is wanted by both parents...perhaps before you and your own go out engaging in the act of making a child, you will first consider if you both actually want a child... In the end, you should be surprised when sex doesn't result in a child...not the other way around...
I don't see how not killing children is a men's power over women issue....how does me forcing you to not kill your child give me any power over you?? Seems like another cop out on responsibility to me....
"blame it on the next guy cause i don't want to deal with it."
Posted by: karlthomas | October 1, 2009 12:49 PM
SusiFranco-
"overturning Rowe vs. Wade would undoubtedly open the door to the government telling ALL of us what we may/may not do with our own bodies ? Like say, stem cell research and disease process applications thereof ? Or maybe, who can have a liver transplant and who can't ??"
None of the afore-mentioned scenarios involve any rights... You have the right to engage in these things, but you don't have the right TO these things... More importantly, NONE of the privleges you mention above have ANY potential of infringing on another human being's rights...they are all individual endeavours because they only impact the individual. Abortion impacts not only the mother but also the child. I think the message you are missing here would be the right of an unborn child! As an RN, woman, and democrat, I would have imagined you would understand these concepts...that they'd be 'crystal clear' to you....figured democrats would champion the rights of those who can't fight for their own rights...
guess we only fight for those who can vote...
Posted by: karlthomas | October 1, 2009 12:57 PM
Far more heat than light in the responses to the post by Adam Serwer. Only one, by "Annonymous" on 9/30 dealt with the issue raised: Is it a good/bad idea for liberals to back the NRA on this case? The issue of whether the Second Amendment is an individual right has already been settled. The McDonald case has no chance of a different outcome on that question. And, obviously, the case will not directly impact any other "rights" issues, including the right of privacy that underlies Roe v. Wade.
Annonymous says that the Roberts Court will find a way to apply the Second Amendment to the States without strengthening the rights-application process. Maybe, but is this just cynicism talking? Doug Kendall has good reason to hope there is no such easy escape hatch. This is because the right to bear arms has precious little to do with due process or equal protection, which have been the keys to prior "incorporation" decisions. Kendall will be urging the Court that the proper way to validate application of the Second Amendment to the States is to reverse a 135-year old precedent gutting a key provision of the 14th Amendment on individual rights. It's the best outcome liberals could possibly hope for, a result that could be as important for individual rights as Brown v. Board of Education was for equality.
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