McDonald & Main Stream Legal Thought

[oldRoger]

We have been discussing Heller-McDonald and to a degree Skoien and the impact these opinions may have on support for our 2nd amendment rights. In regard to the Kagen confirmation hearings, the Dems contend that she is in the mainstream of legal thought.
What is the Mainstream of Legal Thought (MSLT), where does it flow, is it really in the middle or left or right?

I would like you to do a little thought experiment. What do you think would be the result of a poll of the faculties of the 10 leading Law Schools about the SCOTUS Heller & McDonald opinions? Would the Professors support the majority opinions?
How about a poll of the profs regarding limitations on Congress’s ability to regulate our lives through the Commerce Clause?

I am sure that the faculties would overwhelmingly oppose the Heller and McDonald decisions and find little limitation on the power of Congress. To quote Nancy Polisi when asked if congress had the power to force people to buy insurance: “What do you mean! What DO you mean!”
The MSLT like the MSM and Main stream social thought flows far to the left. These are people who think the New York Times Editorial Page is middle of the road.
A good article about this can be found by searching for Tony Blankley+stay out of the mainstream.

Who cares?.......We all should care since most judges, business leaders, educators, and many politicians, went to the same schools and were taught by these same professors to think the same way. They believe the progressive experiment is a success and only needs to be implemented more firmly.

Let me give you a small example: A 6 year old girl in Rye, NY (Westchester County) a hub of the elite lib/prog. establishment, was attacked by a Coyote right there in leafy suburbia! She survived with injuries. The outcry was as follows “Why do the Coyotes hate us”? “Have we encroached upon their habitat?”, “They were here first.” etc., etc. ad nauseam. This is typical Elite Main Stream thinking/feeling.

How does this forum think? Look at the Alligator, Snake, Bear, and Coyote threads in the lounge where the discussion is about the most efficacious method of eliminating the threat. We are not even close to being on the same page.

To the lib/prog. the armed citizen is an additional threat they do not want to face. It’s not about (more) guns getting into the hands of criminals. It’s about Otis McDonald being allowed to defend himself in his home which could mean more violence. Don’t we have enough violence? The government will take care of Mr. McDonald’s defense, thank you very much! Self-defense is so, so yesterday, so wild west.

The elites are going to fight our right to keep and bear arms in every way they can. They are organized and very influential.

 

[JWiley]

In resopnse to the question in your first paragraph, I collected these quotes back in the mid to late 1990's:

Both Alan M. Dershowitz and Laurence H. Tribe disagree with your analysis that the Second Amendment is a ‘collective’ right.

(Dershowitz and Tribe are Full Professors at Harvard Law School and, arguably, the finest Constitutional scholars of this century. Tribe's ‘American Constitutional Law’ is THE text on Constitutional law. Both are very liberal, hate guns, and in the case of Dershowitz would like to repeal the Second Amendment. Tribe is an attorney for the Democratic National Committee.)

“...Tribe thinks the Second Amendment assures that "the federal government may not disarm individual citizens without some unusually strong justification." Tribe posits that it includes an individual right, "admittedly of uncertain scope," to "possess and use firearms in the defense of themselves and their homes."...”
(‘Scholar's shift in thinking angers liberals’ by Tony Mauro, USA TODAY on 08/27/99)

Alan Dershowitz says: “[Those] who are trying to read the Second Amendment out of the Constitution by claiming it's not an individual right [are] courting disaster by encouraging others to use the same means to eliminate portions of the Constitution they don't like.”

With respect to Dershowitz‘s statement: (1.) Five of the first ten Amendments use the phrase ‘the people’ . You would have us believe that four are individual rights and one is a ‘collective’ right with NO differentiating clause. (2.) The Constitution was designed to limit the powers of the Federal government with respect to the several States and, more importantly, the individual citizen (‘the people’).

Carefull reading will show that the top legal scholars/voices of fifteen to twenty years ago had similar analysies as many of the various courts of today. And I would hope influenced the Heller decision written by Scalia (bad as it was) and the McDonald decision writen by Alito (even worse).

My major concern going forward is not the court system but the social 'science' academics such as Arthur Kellermann and Michael A. Bellesiles and Saul Cornell who purport to use history and statistics to advance their policical adgendas and careers.

 

[redlevel]

Let me give you a small example: A 6 year old girl in Rye, NY (Westchester County) a hub of the elite lib/prog. establishment, was attacked by a Coyote right there in leafy suburbia! She survived with injuries. The outcry was as follows “Why do the Coyotes hate us”? “Have we encroached upon their habitat?”, “They were here first.” etc., etc. ad nauseam. This is typical Elite Main Stream thinking/feeling.

How does this forum think? Look at the Alligator, Snake, Bear, and Coyote threads in the lounge where the discussion is about the most efficacious method of eliminating the threat. We are not even close to being on the same page.

You are correct for the most part. There are exceptions, however. I post regularly on the Georgia Outdoor News forums. I own some property, and I have had some pretty significant damage from feral hogs and deer. Just about everyone recognizes feral hogs as exotic non-native invasive species, capable of doing catastrophic damage. However, the rankest, stankin'est hog hunter will give me the "the hogs were here first" and "they are God's creatures and have just as much right to live as we do" argument. Deer hunters are just as bad. They love the "deer were here first" argument, and they think farmers should just absorb the damages that deer do. Many times, the arguments used by these folks could have come straight from PETA.

The recent Mike Vick situation also illustrated some inconsistencies within the sporting/shooting communities. I bet sportsmen with hunting licenses and shooters themselves contributed millions of dollars nationwide to the HSUS, one of the most anti hunting and anti gun organizations in the US. I read threads on GON where hunters were praising Wayne Pacelle (president and CEO of HSUS, and an avowed anti-hunter.), and opining that Pacelle had spent his life helping animals.

I have seen statements on this and other forums such as "I love my dogs as much as I love my children," or, "my dogs are literally part of the family." In many instances, such statements are hyperbole, but often, I am afraid, people do indeed elevate animals to the same level as humans.

My point is that although we think there is a great gulf separating "main-stream elite" thinking and that of our gun-toting, deer-shooting compadres, it ain't necessarily always so.

 

[oldRoger]

I wonder though even with their relatively enlightened state of viewing the 2nd Amendment as an individual right would the profs (and Kagen) support the dissent? Sotomayor certainly did.
While I think you could get an argument about “finest Constitutional scholars” the T & D are or were very influential. Tribe has constant plagiarism problems and has been accused of using his students work for his own so I am not quit certain of his standing today. At one time I would have thought Tribe a first pick for SCOTUS.
There is no doubt that many of the Profs had come around to the individual rather than collective right thinking some time ago.
Most either agreed with Dershowitz and favored repeal, or like Tribe and company thought that public safety warranted severe restrictions. Thus we had such notably Constitutional Scholars as the Clintons and BHO saying sure we had a right to keep a firearm for hunting under proper conditions even though hunting had no appeal to the enlightened but public safety comes first.
Probably the DC & Chicago Regulations would have to go under this thinking, but the Sullivan Act and 6 month wait before you could touch a gun in NY were reasonable.
Incorporating as a fundamental right to have arms for self defense surely isn’t what they had in mind.

When it comes to justifying restrictions based upon public safety I agree we have much to fear from MS social thought/feelings. The courts have shown a remarkable lack of skepticism when the social scientists hold forth with little but an appeal to authority. As T. Sowell said, most of their theories have no support except from each other.

Red Level:
Perhaps you are right; I have seen little evidence of it. Certainly we are all human and share some common feelings.
I think wild animals (two or four legged) are wild animals. The Coyote or Alligator attacking your child or pet is a hungry predator not anyone’s pet. As far as the feral pigs in GA &FL they certainly were not here first and in Westchester, I suspect the Coyote is a relatively recent undocumented immigrant as he is here.

Many of the liberal/progressive tribe around here use the same tone when referring to two legged predators. When killed during a hold up attempt or home invasion the cry is “we must eliminate the root cause of violence”, “why was the poor man shot X times, surely excessive violence”, you can fill in your favorite.

 

[sgt.207]

I went to law school not too far from where the coyotes allegedly attacked the children in Rye. First, why were these young children out without parental supervision in the first place. Anyway, the professors from my law school would most likely spew forth their liberal views just like they did during my law school days.....that being said, i am glad the SCOTUS ruled the way they did, not because i'm a die hard gun owner, but because they were legally correct in their holding!!!

 

[ladder13]

+1 on Redlevel's comments

 

[Bullseye 2620]

Actually, it was the liberal law professor Sanford Levinson (University of Texas, Austin) who in 1989 wrote a prescient article in the Yale Law Journal that became the basis for the Heller and McDonald decisions.

You can, and ought to, read it here: The Embarrassing Second Amendment

I would suggest that a little more scholarship and a little less rhetoric ("libtards," etc.) might produce a little more understanding of what it really means to be a liberal, and the difference between those of us who are willing to accept that label and the antics of the latte-sipping, Gucci-wearing, urban "sophisticates" whose anti-gun sentiments are just that, sentiments.

We should be reaching out and building alliances across the political spectrum. There are a lot of gun owners and shooters who would describe themselves as liberals, and who vote Democratic. The cause needs those folks too.


Bullseye

 

[bk43]

I would suggest that a little more scholarship and a little less rhetoric ("libtards," etc.) might produce a little more understanding of what it really means to be a liberal, and the difference between those of us who are willing to accept that label and the antics of the latte-sipping, Gucci-wearing, urban "sophisticates" whose anti-gun sentiments are just that, sentiments.

Actually, libtard is an extremely accurate label. Most people begin life as liberal and progress toward more conservative views as they mature. Quite a natural progression as a person's philosophy becomes seasoned by reality. A libtard's maturing is retarded or behind what a reasonable person would expect given a certain chronological age.

On topic, the reason you see so many libtards, or liberals if you prefer, in academia is the professors are insulated from the world's realities by their cloister-like environment. If you live in an artificial world, and do not experience the realities of life, you can't expect to see any great level of philosophical maturity can you?

Bob

 

[Maromero]

+1 to what Bullseye said.

bk43: I believe the important thing bullseye said was "We should be reaching out and building alliances across the political spectrum. There are a lot of gun owners and shooters who would describe themselves as liberals, and who vote Democratic. The cause needs those folks too." The tag, wether, liberal, libertarian, left, right or whatever are irrelevant. In order for gunrights to become mainstream the movement has to encompass society as a whole. That can only be done with patience, understanding and comunication.

 

[Bullseye 2620]

Actually, libtard is an extremely accurate label. Most people begin life as liberal and progress toward more conservative views as they mature. Quite a natural progression as a person's philosophy becomes seasoned by reality. A libtard's maturing is retarded or behind what a reasonable person would expect given a certain chronological age.

On topic, the reason you see so many libtards, or liberals if you prefer, in academia is the professors are insulated from the world's realities by their cloister-like environment. If you live in an artificial world, and do not experience the realities of life, you can't expect to see any great level of philosophical maturity can you?

Bob

Name-calling and making unsupported generalizations in a dashed-off post are so much easier than reading and thinking about some complex issue for a couple of hours. The fact that you have an opinion doesn't persuade me. The well thought-out and articulately expressed reasons that you hold that opinion just might.

The reason that many liberals strongly support the Second Amendment is, in summary, that we view the entire first 10 as indivisible -- they form a whole cloth. They are the embodiment of the American idea of limited government. Any legal rationale that you come up with to limit the liberty recognized (not granted) by the Second, can be used to eviscerate the liberties recognized and protected (not granted) by First, Third, Fourth, Fifth, Sixth, Seventh, Eighth, Ninth, and Tenth as well.

Actually, to tell you the truth, Levinson's article contains more dynamite than simply the legal basis for both the McDonald and Heller decisions:

Returning, though, to the question of Congress' power to regulate the keeping and bearing of arms, one notes that there is, basically, only one modern case that discusses the issue, United States v. Miller, [82] decided in 1939. Jack Miller was charged with moving a sawed-off shotgun in interstate commerce in violation of the National Firearms Act of 1934. Among other things, Miller and a compatriot had not registered the firearm, as required by the Act. The court below had dismissed the charge, accepting Miller's argument that the Act violated the Second Amendment.

The Supreme Court reversed unanimously, with the arch- conservative Justice McReynolds writing the opinion. [83] Interestingly enough, he emphasized that there was no evidence showing that a sawed-off shotgun "at this time has some reasonable relationship to the preservation or efficiency of a well regulated militia." [84] And "[c]ertainly it is not within judicial notice that this weapon is any part of the ordinary military equipment or that its use could contribute to the common defense." [85] Miller might have had a tenable argument had he been able to show that he was keeping or bearing a weapon that clearly had a potential military use. [86]

Justice McReynolds went on to describe the purpose of the Second Amendment as "assur[ing] the constitution and render[ing] possible the effectiveness of [the militia]. [87] He contrasted the Militia with troops of a standing army, which the Constitution indeed forbade the states to keep without the explicit consent of Congress. The sentiment of the time strongly disfavored standing armies; the common view was that adequate defense of country and laws could be secured through the Militia -- civilians primarily, soldiers on occasion." [88] McReynolds noted further that "the debates in the Convention, the history and legislation of Colonies and States, and the writings of approved commentators [all] how plainly enough that the Militia comprised all males physically capable of acting in concert for the common defense." [89]

It is difficult to read Miller as rendering the Second Amendment meaningless as a control on Congress. Ironically, MIller can be read to support some of the most extreme anti-gun control arguments, e.g., that the individual citizen has a right to keep and bear bazookas, rocket launchers, and other armaments that are clearly relevant to modern warfare, including, of course, assault weapons. Arguments about the constitutional legitimacy of a prohibition by Congress of private ownership of handguns or, what is much more likely, assault rifles, might turn on the usefulness of such guns in military settings.

I realize that I am not in the mainstream. But the way I and a lot of other liberals see it, if any weapon is protected by the Second Amendment, it is my Colt 6920, and not my 32-inch barrel trap gun.

I think, after the Heller and McDonald victories, that we're going to see a "settling out" period of a few years as localities adjust their strategies to comply with these decisions. But, when the fight resumes in earnest, if I were directing the legal strategy, I would set-up a challenge specifically on the question of the military usefulness of a particular weapon, such as the AR-15 (and thirty round magazines) and get enshrined into the case law a concrete expression of the idea that the Second Amendment is about a "well-regulated" (meaning well-armed and well-trained) citizen fighting force that stands as a bulwark against government tyranny and which favors a citizen army over the standing armies that make tyranny possible.

That's the conclusion I come to as a liberal.


Bullseye

 

[MTKTM]

While this might not be precisely on-point regarding judges, I am noticing that at least some liberals are gradually coming around to rethinking their position on 2A. Check out a recent article in the Daily Kos:

Daily Kos: State of the Nation

 

[Bullseye 2620]

While this might not be precisely on-point regarding judges, I am noticing that at least some liberals are gradually coming around to rethinking their position on 2A. Check out a recent article in the Daily Kos:

Daily Kos: State of the Nation

MTKTM -- This is a really well done popularization of the arguments Levinson makes in his law review article. It is much more readable. Thanks for posting this. The writers hit it on the head: rather than engaging in culture wars with liberals focusing on conservative disagreements with them, focus on areas of agreement such as protecting all civil liberties against government intrusion.


Bullseye

 

[oldRoger]

Certainly some of the liberal/progressive leaning crowd have for a long time agreed that The 2nd amendment was an individual right. It would be total intellectually dishonesty to reason otherwise.
Where the difference between their views and mine diverge is in the permissible degree of regulation of this right. Many saw no problem with the DC/Chicago bans justified on the grounds of public safety.
Volokh has described a logical approach to the discussion of the application of Heller-McDonald, but Chicago is certainly an example of the more probable route.

Meantime consider a couple of random points made in the article.

We would not condone a state-regulated news organization. We certainly would not condone state regulation of religion.
I am by no means convinced of what “they” would condone. It depends upon who is doing what to whom.

For the first point, the Lib/Prog crowd is doing exactly that; floating plans for Federal Support of Journalism. For the second; the Lib/Prog crowd is quite happy in removing copies of the ten commandments from courthouses, etc. In my words regulating against religion not for it.
I agree that we should fight no unnecessary cultural battles. However, the decisions were 5-4 and the dissents were not a matter of degree. I would be amazed if Kagan would not vote the same way.

So while we may not want a cultural battle I think one is being thrust upon us. Probably been going on for nearly 100 years.

 

[DonD]

Yes, MTKTM, thanks. I started to read the link and was about ready to bail out when it picked up speed. Very well done and certainly highlighted the irrational arguments of the liberal anti gun contingent.

Only one thing I would have added to the article which I would have thought would have penetrated the thick skulls of some on the Supreme Court who voted against Heller and McDonald.

There are many, many occasions where prominent framers of the Constitution were very explicit in their endorsement of individual rights to possess firearms, Jefferson being one. These men clearly intended for us to have such rights, yet the Justices who venerate such men as Jefferson on all other issues, want to ignore what he said and felt about guns. Don

 

[bk43]

The reason that many liberals strongly support the Second Amendment is, in summary, that we view the entire first 10 as indivisible -- they form a whole cloth.

Actually, reality is they're a bunch of crap. Mason proposed them and they were vehemently opposed by Madison and others. Mason thought "important" rights should be articulated while Madison et. al. thought the Constitution was very clear. It said here's what the federal government can do and the rest is left to the states. Madison feared a Bill of Rights would muddy the waters with inane debates about what's in them, what's higher priority, what does this or that mean. etc. ad nauseum. Guess what, Madison was right. Had Madison not compromised, which he regreted the rest of his life, this militia, self-defense BS would not be alive today. Sadly, the genie is out of the bottle.

Maromaro, I do not want to leave the impression I was assigning a "tag" to anyone as I was not. I was merely explaining why I feel libtard is valid term and can be applied appropriately to the topic of the thread.

Bob

 

[Bullseye 2620]

Actually, reality is they're a bunch of crap. Mason proposed them and they were vehemently opposed by Madison and others. Mason thought "important" rights should be articulated while Madison et. al. thought the Constitution was very clear. It said here's what the federal government can do and the rest is left to the states. Madison feared a Bill of Rights would muddy the waters with inane debates about what's in them, what's higher priority, what does this or that mean. etc. ad nauseum. Guess what, Madison was right. Had Madison not compromised, which he regreted the rest of his life, this militia, self-defense BS would not be alive today. Sadly, the genie is out of the bottle.

Maromaro, I do not want to leave the impression I was assigning a "tag" to anyone as I was not. I was merely explaining why I feel libtard is valid term and can be applied appropriately to the topic of the thread.

Bob

Bob,

Here's the problem with "libtard:" it makes a derogatory reference to people with retardation. Have you ever met such a person, or had any sort of relationship with him or her? I used to work with these folks at Johns Hopkins Hospital in Baltimore, and as one of my patients once said, "Retarded ain't stupid." Indeed.

The name-calling is counter-productive. After you've basically called me "retarded" because I think we ought to have employer-paid unemployment insurance (or whatever), what makes you think I will want to listen to anything further you have to say?

Here's the politics: about 40% of American households report owning one or more guns. That leaves 60% that don't. To get anywhere at the national level, you not only have to activate all of the gunowners (not easily done), you also have to get the support of at least a third, if not half, of the people who don't keep guns in the house (another 20-30% of the population). Those people are going to be older, more educated, and more likely to be moderates or liberals than the people who do live in homes with firearms.

It's easy to preach to the choir. It's more difficult to build a mainstream political movement. A good way to start though is by not whizzing on the other guy's shoes.



Bullseye

 

[ladder13]

you also have to get the support of at least a third, if not half, of the people who don't keep guns in the house (another 20-30% of the population). Those people are going to be older, more educated, and more likely to be moderates or liberals than the people who do live in homes with firearms.

"more educated" ....where have I heard that before? Oh yea, places like MSNBC, CNN, NY Times, Washington Post, etc.

 

[Bullseye 2620]

"more educated" ....where have I heard that before? Oh yea, places like MSNBC, CNN, NY Times, Washington Post, etc.

Mike,

When you hunt, do you study the habits and characteristics of your prey first? There's no value judgment involved here. More educated does not mean smarter or somehow more worthy. It is just one characteristic of the group we ought to be trying to reach. Or, do you prefer to only try to persuade people who already hold your point of view? Not much point in that as far as I can tell.


Bullseye

 

[ladder13]

Mike,

It is just one characteristic of the group we ought to be trying to reach.


Bullseye

That's a pretty big assumption.

But we digress from the OP, so I'm done for now.

 

[Maromero]

Libtard. I thought that was liberal misspelled. Language barrier. Guess I'm a spick then? And that would make you what? See the problems with using derogatory terms? Makes me rethink my membership to this forum.