Kennedy: The Individual Right?

I’m grabbing a sandwich and a mug of soup between meetings, and am just starting to look at some of the commentary on the Heller arguments.

And cross your fingers, but this could be good news:

In an argument that ran 23 minutes beyond the allotted time, Justice Anthony M. Kennedy emerged as a fervent defender of the right of domestic self-defense. At one key point, he suggested that the one Supreme Court precedent that at least hints that gun rights are tied to military not private needs — the 1939 decision in U.S. v. Miller — “may be deficient” in that respect. “Why does any of that have any real relevance to the situation that faces the homeowner today?” Kennedy asked rhetorically.

Anything that pounds a stake through the heart of Miller – one of the most deeply-flawed constitutional “precedents” of the past 100 years – so that I never have to listen to another spinny-eyed Clarence-Darrow-wannabee laboriously cite it as “the law of the land” will be a very good thing.

With Chief Justice John G. Roberts, Jr., and Justices Samuel A. Alito, Jr., and Antonin Scalia leaving little doubt that they favor an individual rights interpretation of the Amendment (and with Justice Clarence Thomas, though silent on Tuesday, having intimated earlier that he may well be sympathetic to that view), Kennedy’s inclinations might make him — once more — the holder of the deciding vote.

That’s the good part.

There’s also this bit:

There also remained a chance, it appeared, that Justice Stephen G. Breyer, one of the Court’s moderates, would be willing to support an individual right to have a gun — provided that a ruling left considerable room for government regulation of weapons, particularly in urban areas with high crime rates.

Which, of course, has worked so well.

This is, of course, the big reason conservatives need to turn out this fall.

If the Court were ultimately to rule that the Second Amendment’s promise of a “right to keep and bear arms” embraces a personal, individual right of self-defense at least in one’s home, it might also have to address what, if any, limits government might put on that right, and what constitutional standard to use in judging whether a particular law’s limitations would be valid. Thus, it was no surprise that many of the exchanges on Tuesday dwelled on both of those issues, with no sign of anything close to a consensus on the answers.

Stay tuned.

15 thoughts on “Kennedy: The Individual Right?

  1. Left out of your entire post, and the stories in the press (of which you most decidedly AREN’T) is this.

    Does the 2nd amendment apply to state regulation?

    The Supreme Court has rather narrowly focused it’s questions, which it seems you may have missed. It has not discussed ANYTHING beyond Miller 1894 and Kruikshanks at this point, meaning, the premise there was that the states cannot completely prohibit the ownership of arms, because it would obviate the ability to form a reserve army. While I agree that a key question (of 2) is whether individual=the people – and I agree that it DOES precisely mean that – as they seem to have been honing in on – but it doesn’t at all address whether states could pass their own laws. Nothing in their line of question would prevent it – as long as the states don’t completely prohibit the right to own firearms, and candidly, the line of questioning seems to indicate they fully understand that AND intend to allow reasonable limitations, a complete refutation of the “Any law is unconstitutional” argument – fyi.

  2. Left out of your entire post, and the stories in the press (of which you most decidedly AREN’T)

    Now, isn’t that a bit of a strawman? I’m pretty up front about not being “the press” – although, unlike you, I’ve worked in the press.

    Does the 2nd amendment apply to state regulation?

    In most states, indirectly, yes. Many/most state constitutions either refer to it or have something similar, as I recall.

    But ask yourself this, Peev – if, indeed, you ever ask yourself anything; does the First Amendment apply to state regulation? I mean absent the notion of incorporation, which is a legal construct that really evades the real question, “is a right of the people a right OF THE PEOPLE?”00.

    The Supreme Court has rather narrowly focused it’s questions, which it seems you may have missed. It has not discussed ANYTHING beyond Miller 1894

    Miller, as everyone and their dog knows, was 1939.

    a complete refutation of the “Any law is unconstitutional” argument – fyi.

    FYI, in turn, that’s a bit of a strawman. This case turns on the “individual right” question. Nattering about state’s rights and “reasonable regulation” can only be meaningful with that decided.

  3. You left out the Equal Protection clause, which could obviate any state law if SCOTUS serious about things. Why should Minnesota have Shall Issue but D.C. not?

  4. Actually Mitch, again you’ve made an assumption… and as a purveyor of strawmen, you are unequalled… so I’m not sure what your complaint is.

    Actually Mitch, I’ve worked in the press.. both as a volunteer, and paid. So Neener, big fella, next assumption?

    In most states, indirectly, yes. Many/most state constitutions either refer to it or have something similar, as I recall.

    On what legal foundation do you believe the 2nd amendment has been incorporated? Whether one state may or may not have it as a reference does not mean it is therefore inferred upon all states. Further, those states are clearly free to amend their constitutions, and the SCOTUS is not, in any conceivable way, authorized to speak to such inclusion in those constitutions, except when and where it might intrude upon the right of the Federal Government, which inclusion of the 2nd does not so intrude. Talk about strawmen.. jeezus. Your comment is entirely outside of and irrelevant to the discussion of the US Constitution being applied to states and the question before SCOTUS. Even if SCOTUS rules regarding DC, it is NOT implied upon the states unless the states SO DECIDE.

    “Miller, as everyone and their dog knows, was 1939.”

    No Mitch, everyone knows that there were decisions in the 1800’s such as Miller v Texas 1894, you might want to look it up, rather than pretend to be informed and look foolish.. start here.Miller v. Texas (1894),

    And as for natttering and strawmen – Mitch, the fundamental argument you right-wingers have constantly made has been that ANY legislation is unconstitutional. Clearly SCOTUS isn’t about to say that, even about DC – they are attempting, as ALL GOOD THOUGHT SHOULD to find a good middle ground – rather than leap to extremes, which you so wontonly do. Further, charactarizing the whole inclusion debate as nattering seems to me to simply be your reaction to being exposed as not exactly the expert you shrilly and insultingly claimed to be a few months back, when I said very clearly there were two key questions, the first about individual rights, the second, about application to states. The point about individual rights is nearly obviated by the second, but you appear to think the first is somehow more important than the second when determining whether STATE SHALL ISSUE laws (for example) are constitutional. If states can, within reason, do pretty much what they want, then whether ‘the people’ means ‘individual’ is rather irrelevant, not a second-fiddle. But again, I think you know that, and are just looking for more cover.

  5. I think it went really, really well, and I’m hoping for 5-4, rather than 6-3. (I think it’ll have to be written narrower than Heather Martens’ mind to get Souter, but it sure looks like Kennedy is on the right side.)

  6. Kermit, Equal Protection doesn’t for a moment impart the 2nd amendment upon the states. Equal Protection as I understand it, allows for equal representation in law. Unless you wanted to assert that because DC citizens carry certain rights by virtue of not being within a state, therefore such protections should be imparted to all US citizens, and thus obviate ALL state laws which are not repeated under the DC ordinances – thereby obviating virtually all state powers… there just is NO such logic imparted. The bottom line, is that you righties have, for decades, failed to account for a simple fact that YOU nearly virtually always embrace, states rights do exist – the only constitutional amendments imparted on the states to date have been the 5th (through the 6th), the 6th, and the 14th. The first two grew out of the 14th. Other amendments may have been taken up by SOME states – such as women’s suffrage – but only those three, as far as I know, have been incorporated. Funny irony, that you would be hung by your own petard on this… even though frankly I think it’s ludicrous to think the 2nd amendment DOESN’T impart an implicit right to ownership, but neither do I think that any and all law (at the state level) is prohibited, as you on the right have argued for decades… nattering away about slippery slopes.. talk about your hypocrisy.. I favor a broad review and clarification because it’s legally right and constitutionally responsible to resolve this, and imho the only real logical outcome is a broad rebuke of all-out bans – in short agreeing with you, but for ethical reasons, not, as has so often been true with you righties, for ethics of convenience – and in your case, with a shallow (at best) understanding of the principles behind it.

    If you don’t like the slams, lets not start using things like nattering,mmkay? Because frankly, the 2nd part of this question was ALWAYS the more relevant.

  7. Would equal protection deal more with if Minnesota has a Conceal law but bans new residents from applying. Such as they tried with welfare benefits. A while back, the state said something to the affect that if you move here to get welfare, you will get the same level of freebies that you would have recieved in your home state (ahem, Illinois) for the first year. The court said we have to give the same higher amounts to all, no matter if they are lifelong residents or just moved here this week from someplace like Chicago.

  8. So peevish cannot cite cases specifically, or spell the names involved correctly, but I can trust his opinion on constitutional law?

    Ahh…that would be a No.

  9. Actually, Ahkil Reed Amar, prof of law at Yale, notes that the first article of the Bill of Rights to be incorporated against the states (specifically the ones subject to Reconstruction) under the 14th Amendment was the 2nd Amendment. So equal protection under the law certainly has a pedigree and adequate case law to enforce it with regards to the 2nd Amendment.

    (Amar’s got a great book out on this, where he admits that he’s not a gun guy, but he’s got to go where the case law leads, and that is where)

  10. BTW Mitch, that’s Peev about 400, you about 30 on the ole’ I’m right, you’re right scorecard.. and on your home court too man.. that’s gotta sting.

    1. There are only 3 relevant cases (as Mitch said) – bzzt.. no
    2. Miller refers to 1939.. bzzt.. no
    3. Inclusion (or as AC rightly pointed out) of the 2nd amendment is a critical factor.. yep .. and Mitch said at the time “I don’t know what you’re referring to”..
    4. Incorporation is a ‘nattering, secondary question’.. bzzt. no – or at least it sure seems like no, we’ll find out I suspect.
    5. The issue is moot because some states MIGHT have included a 2nd amendment-like reference.. bzzt, no.. IF they have such an amendment, then it supercedes this question, they first have the unqualified right to do so (which was the WHOLE point in the first place) so long as they don’t create … wait for it.. AN ALL OUT BAN.

    I, mistakenly referred to the case as Clark 1938 – but DID happen to have the underlying facts well in hand.. as did Mitch to his credit.

    So, on the 2nd amendment scorecard

    Peev 5, Mitch.. 1…

    Maybe you can remind us of FISA law next Mitch, and how a 72 hour grandfather allowance wouldn’t have allowed for retro-active application in an emergency and how failure to follow this standard didn’t represent a violation of law, or more importantly, of ethics.

  11. Sorry, for clarity on #2.. Miller refers ONLY to 1939… not only is that bzzt, no, I cited the year of the decision, and Mitch not knowing about that case doesn’t imply a misunderstanding on his part, it implies that he simply wasn’t aware of a very important case on the subject.

    And he, condescendingly chose to rebuke me.. that’s kinda funny, and I daresay, just a wee bit more factually challenged than a typo about NE vs. NW Chicago suburbs.. but hey.. no typos to be tolerated here to be sure… not by Mitch.. nosireeebob.

  12. peevish, you deserve to be rebuked.

    You want to argue with Mitch, and that’s all fine, but then you go off with the “you righties” and complaining about the assumptions of others, all while you blather on all over the page with your own assumptions.

    Not persuasive.

  13. Peev wrote: “Equal Protection as I understand it, allows for equal representation in law”

    Peev you are an incredible tool.

    The Equal Protection Clause of the 14th amendment of the U.S. Constitution prohibits states from denying any person within its jurisdiction the equal protection of the laws. See U.S. Const. amend. XIV (http://www.law.cornell.edu/constitution/constitution.amendmentxiv.html). In other words, the laws of a state must treat an individual in the same manner as others in similar conditions and circumstances. A violation would occur, for example, if a state prohibited an individual from entering into an employment contract because he or she was a member of a particular race. The equal protection clause is not intended to provide “equality” among individuals or classes but only “equal application” of the laws. The result, therefore, of a law is not relevant so long as there is no discrimination in its application. By denying states the ability to discriminate, the equal protection clause of the Constitution is crucial to the protection of civil rights. See Civil Rights.

    That passage is from the law school at Cornell. If you don’t understand the simplest definitions of terms you should keep your mouth shut.

  14. Terry:
    “…complaining about the assumptions of others, all while you blather on all over the page with your own assumptions.

    That’s all Peev DOES, but he does it, um, er… well. Unfortunately, that sounds like it is good, which it isn’t, but you get the point.

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