McDonald & Main Stream Legal Thought

[Bullseye 2620]

That's a pretty big assumption.

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

Not an assumption at all. Here's some statistics from "Who Owns Guns?" (American Economic Review, vol. 88, no. 2, May 1998). While 40% of people who graduated from high school live in a household with a gun, only 35% of those with a college degree, and 32% of those with more than a college degree, do so. Conservatives are most likely (40%) to report living in a household with at least one gun, but 26% of liberals do also. As I said, there are too many liberal gun owners to deliberately alienate them. Liberal gun-owning households probably account for 8-10% of the total population, and vote, on average. That's the margin of victory in any election and these people are potentially much more accessible to us than liberals and moderates who live in households with no guns present.

Yes, done for now in this thread.

 

[Bullseye 2620]

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.

Don't go, brother. You are needed here.


Bullseye

 

[bk43]

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?

Okay, okay, calm down. I didn't call anybody anything. And I didn't say anything here or elsewhere about employer-paid insurance. You are welcome to post any examples if you feel otherwise. If you don't want, or aren't able, to address my posts that's fine but don't quote me and then veer off into the weeds about nothing that makes any sense.

Bye.

Bob

 

[Maromero]

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.

What is the mainstream legal thought on the 2nd Amendment? 5-4 is your short answer. It is in a state of flux and for the better in a much positive light.

As for not being in the same page with the "left wing elitist" you are absolutely right. The answer lies in the concept of tolerance and mutual respect. Human beings have been trying to figure out how to get along for the last 10,000 years experimenting with different forms of government. I believe the U. S. has done a good job at it don't you?

In non legal terms, the last couple of rulings from the Supreme Crt. Has eliminated both extremes from the gun equation.

 

[oldRoger]

My apologies if my poor wording is at fault. When I use a term like lib/prog, it is out of laziness, typing Liberal or Progressive is wearing plus I am a poor typist.
Further I usually use liberal elitist as a short hand for those among us who feel that a few self-selected, highly intelligent and properly schooled individuals are better able to govern us than the current messy system.

We certainly should join together when we are in agreement about the substance of the argument. We do need a broad consensus if we are to implement Heller-McDonald on a rational basis.
One of the problems of course is that (reported) gun ownership is not evenly distributed across the country. Evidently most large urban areas have a lower reported rate of ownership. We could conjecture that people might own but not report in a survey because it was illegal, but that would be conjecture. Somehow we need to convince those urbanites that gun owners do not represent a problem.
I would hope we can continue to discuss at least this matter as rational people with problems to solve.

As I pointed out the SCOTUS decisions were not even 7-3, I had hoped that the justices could find more common ground on this matter since so much spade work had been done and for so long.Motives are difficult things to discern, would a justice who thought the second should be incorporated not do so because of the problems he or she might anticipate? Evidently no one agreed with Thomas about "privileges and immunities", was this because of the "heavy lifting"? A well worded 8-2 decision would have caused some who hope for another day to give up and work on implementation.

 

[JWiley]

A Word of Thanks to Four Black Men and A Gun Pileus

 

[oldRoger]

Great note from Marcus Cole, thanks John
The Bill of Rights was not considered necessary by many when passed because they could not imagine the Federal Government involving it self in such matters clearly outside the original scope of the Constitution. The legislatures of the several states were felt to be the guardians of rights such as those of self-defense.
The 14th was passed so that these "privileges or immunities" could not be denied by the states, so the opposite of original intent.

I suppose if Madison had been asked about states denying freedom of speech or right to keep arms for self-defense he would have suggested that the citizens would not tolerate it and if they did he would suggest moving.

I think Justice Thomas did a great job of covering the history of this in his McDonald Decision.

 

[Lew Archer]

Roger,

I think that the majority of law professors, particularly con law professors, would most likely perceive the Heller and McDonald decisions as partisan...and will therefore conclude that the political perspective of the majority of justices, rather than constitutional scholarly analysis, drove the outcome in both cases. They will bemoan that they did not have the votes to reach the "correct" decision. Naturally, they will assume that the dissenting viewpoints were principled, not partisan.

The "collective" interpretation was deeply imbedded in the conventional wisdom of the legal academicians. Levinson, and more recently, Volokh, have certainly challenged that collective wisdom, and perhaps its a growing trend. For now, though, a "collective rights" view of the 2nd Amendment---driven, deep down, by a stark terror of the consequences of treating the 2nd like the 1st, 4th, 5th, etc., will persist for some time.

So, my guess is that the concept of the 2nd Amendment as a guarantee of an individual right remains the minority view among the con law professor set. Just look at the dissent in McDonald, which was merely a veiled argument that Heller was wrongly decided.

Hopefully, widespread acceptance in legal academic circles of the 2nd Amendment as a guarantee of an individual right will develop over time...conventional wisdom is subject to change.

In some respects, when the sky does not fall--when anarchy, exploding murder rates and other horrors don't follow the Court's recognition of gun rights as civil rights--more and more folks, including those in legal circles, will become more comfortable with the 2nd Amendment and its implications.

Finally, I concur with those who recommend reaching across the political spectrum to find fellow gun rights supporters. As a conservative Republican, I am only too happy to find a Liberal Democrat who is open to the notion of gun rights, let alone supportive or vested in the subject.

Until recently, Democrats relied on gun control as an answer to crime control. After all, for the most part, their constituents were comfortable with that approach.

But, if more and more Democrats become vested in the notion of gun rights as civil rights worthy of protection, and if more and more Democrats value gun ownership, then Democratic politicians will shun gun control as political suicide.

Frankly, we are already seeing this. Despite numerous mass casualty active shooter incidents, which have been highly publicized, Democrats (at least at the national level) have avoided gun control. Al Gore, had he won his home state, would have defeated George Bush. His gun control views largely alienated his home state. That lesson has not been lost on the Democratic party, at the national level.

As long as gun control is a political loser, our gun rights will have the best protection possible. If a right-restricting law isn't passed in the first place, you don't have to challenge it in the courts.

 

[Raspy]

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

Thank you for this common sense statement!

I, as a gun owner and freedom lover, get so tired of the "liberal" label that gets thrown around by many on the right as some kind of put down. I keep reminding our friends on the right that they need all the help they can get on the gun rights issue.

It's high time the pro gun folks on the right sided with the pro gun folks on the left to become a stronger force in this struggle. Throwing the "liberal" label around, as an insult, will not help with this.

In other words, stay on message. The message is gun rights. It's not about coming up with cute labels to denigrate those with common goals.

 

[oldRoger]

I certainly agree that when we are together on message we are indeed stronger than when not.

It is plainly nonsense to say that there is no difference in opinion between the Conservative and Liberal/Progressive viewpoint as to permissible and desirable levels of gun control. Look at the votes in both Heller and McDonald, and then read the decisions.
Excerpt;
"Neither the text of the Amendment nor the arguments advanced by its proponents evidenced the slightest interest in limiting any legislature's authority to regulate private civilian uses of firearms. Specifically there is no indication that the Framers of the Amendment intended to enshrine the common-law right of self-defense in the constitution."
Justice Stevens
The Liberal/Progressive members agreed including the newest; Sotomayor. Note that he says "any" meaning sure Chicago can ban self-defense.

Let us agree when we do, when we do not let us admit it.

 

[cp1969]

Anybody who believes in gun control should be shot.
-anon.

Very accurately sums up my position but it also illustrates the problem faced by the anti-gun crowd: How are the without-arms 'forces' going to disarm those who are armed? Don't say the army--unless the law prohibiting using the armed forces against US civilians is repealed. If and when that happens, the ball game is over. You're talking complete insurrection and those with guns are going to have a huge advantage over those who don't.

It would appear that the anti-gun crowd is in a position not that much different than the one-legged man who went to a butt-kicking party--not able to do a whole lot of kicking but able to get kicked a lot, and hard.

 

[oldRoger]

Cp1969 I disagree, it seems to me that the "Police Power of the State" has been employed very effectively to disarm the people in places like DC, Chicago, and NYC.
That is what the SCOTUS cases were all about. Despite the rulings in those cases most of the people are still effectively disarmed there.

 

[Lew Archer]

I certainly agree that when we are together on message we are indeed stronger than when not.

It is plainly nonsense to say that there is no difference in opinion between the Conservative and Liberal/Progressive viewpoint as to permissible and desirable levels of gun control. Look at the votes in both Heller and McDonald, and then read the decisions.
Excerpt;
"Neither the text of the Amendment nor the arguments advanced by its proponents evidenced the slightest interest in limiting any legislature's authority to regulate private civilian uses of firearms. Specifically there is no indication that the Framers of the Amendment intended to enshrine the common-law right of self-defense in the constitution."
Justice Stevens
The Liberal/Progressive members agreed including the newest; Sotomayor. Note that he says "any" meaning sure Chicago can ban self-defense.

Let us agree when we do, when we do not let us admit it.

That's quite an interesting...and disturbing...excerpt.

Forget guns...Justice Stevens doesn't even believe the common law right of self defense was enshrined in the Constitution.

Odd, considering that privacy in decisions related to self determination was the Constitutionally protected right articulated by the Supreme Court in its decision in Roe v. Wade.

Self defense is the ultimate self determination, yet the Liberal wing of the Supreme Court doesn't see it as Constitutionally protected.

I am waiting for gun rights advocates to rely on the 14th Amendment as well as the 2nd Amendment in future gun control related cases...the arguments that abortion is a Constitutionally protected right are applicable in self defense/gun rights related cases.

Those arguments, so dear to the Liberal wing of the Court in reproductive rights cases, will be hard for them to shoot down, so to speak, in gun cases.

 

[oldRoger]

Lew;
"Odd, considering that privacy in decisions related to self determination was the Constitutionally protected right articulated by the Supreme Court in its decision in Roe v. Wade." "Those arguments, so dear to the Liberal wing of the Court in reproductive rights cases, will be hard for them to shoot down, so to speak, in gun cases."
I would like to think so and certainly if there is any inner intellectual honesty in that wing of the court we could expect to see evidence of it.
The Roe vs. Wade decision and subsequent ones on the same subject do not give me any comfort. Here we have penumbras and emanations from the 4th; expanded into a right to medical privacy which IMO is a stretch from common-law rights concerning search and seizure. This stretch was certainly a political mistake and I thought a wonderfully creative reading of the constitution. Take Steven's (above) first sentence and substitute abortion or privacy for private civilian use of..... and you will get my meaning.

When I look at similar 1st amendment findings I see what I view as similar slants both in the Establishment and Speech clauses. We stretch those to mean porn is OK but the Ten Commandments are not.

Our minds work in wonderful ways, things I see as very clear as in "congress shall make no law......" some find to include the word "except".

Here we are in Skoien and White, with a law which is supposedly designed to prevent domestic violence used to prevent "keeping" of a firearm. It is understood that this law (Lautenberg) is used in many cases where the "violence" consists of harsh words or a slammed door. Yet we are told this meets the due process requirements for limiting 2nd Amendment rights. Evidently the greater good (possible prevention of potential domestic violence) trumps self-defense.
Someone said in Alice in Wonderland: "Words mean what I choose them to mean, no more no less".