Clarence Thomas and the 2nd Amendment

[Tom Servo]

Reason did an excellent article about why Citizens United isn't a disaster

Slight riposte: it's not the Court's job to determine whether repealing something would entail "disaster." It's their job to determine the constitutionality of the law in question--no matter what Breyer seems to think...

Consider also that the number of justices and lifetime appointments are in place to prevent a single administration from being able to "load the bench" completely with justices of one ideology.

Actually, that almost did happen once. The President wanted to increase the number of Justices so as to appoint a few who wouldn't find his sweeping social programs and runaway spending unconstitutional.

[Webleymkv]

Quote:
Consider also that the number of justices and lifetime appointments are in place to prevent a single administration from being able to "load the bench" completely with justices of one ideology.
Actually, that almost did happen once. The President wanted to increase the number of Justices so as to appoint a few who wouldn't find his sweeping social programs and runaway spending unconstitutional.

True, but FDR at the height of the great depression was probably about the only president in history who was both popular enough and had enough of a majority in both the House and Senate to do such a thing. Even so, I wonder if he could have actually pulled it off or whether it was just enough of a threat to get SCOTUS to quick bucking him and the New Deal.

I have long thought that FDR's threat of constitutional amendment played a large part in the NFA being allowed to stand in Miller.

[JustThisGuy]

Just a note please that it was my intent to publicly thank Justice Thomas for his support for the Second Amendment.

While it is certainly appropriate to criticize decisions, attacks on the character of a U.S. Supreme Court Justice, regardless of his/her positions and political affiliations are in my mine inappropriate to this thread and to this forum.

I hope that this thread will not devolve into political partisanship, as that will get it closed. If it is anyone's intent to get the thread closed due to political partisanship, I hope that the Moderators will see through that and delete offending posts.

To the extent that we can keep this thread focused on the Court's rulings and views on the 2nd Amendment, it should stay open and we can all benefit by the discussion of those issues.

Thanks to everyone for their time to comment (OP).

[publius42]

"Citizens United" made it legal for corporations to make unlimited anonymous contributions to political campaigns. Find an originalist argument for that.

The majority cited, among others, NAACP v Button, a 1963 case in which the Supreme Court said:

Held: The activities of petitioner, its affiliates and legal staff shown on this record are modes of expression and association protected by the First and Fourteenth Amendments which Virginia may not prohibit, under its power to regulate the legal profession, as improper solicitation of legal business violative of Chapter 33 and the Canons of Professional Ethics. Pp. 417-445.

(a) Although petitioner is a corporation, it may assert its right and that of its members and lawyers to associate for the purpose of assisting persons who seek legal redress for infringement of their constitutionally guaranteed rights. P. 428.

(b) Abstract discussion is not the only species of communication which the Constitution protects; the First Amendment also protects vigorous advocacy, certainly of lawful ends, against governmental intrusion. P. 429.

(c) In the context of petitioner's objectives, litigation is not a means of resolving private differences; it is a form of political expression, and a means for achieving the lawful objectives of equality of treatment by all governments, federal, state and local, for the members of the Negro community. Pp. 429-430.

(d) In order to find constitutional protection for the kind of cooperative, organizational activity disclosed by this record, it is not necessary to subsume such activity under a narrow, literal conception of freedom of speech, petition or assembly, for there is no longer any doubt that the First and Fourteenth Amendments protect certain forms of orderly group activity. Pp. 430-431.

...

So corporations have had first amendment rights for a long time, and the Supreme Court has said specifically that solicitation of legal business by a corporation is a form of political expression.

In Citizens United, the corporation made a political film.

Which is more clearly political expression: making a political film or soliciting legal business?

I can agree with the court that both are.

I'm sure the minority has an answer to that majority citation, but I can't seem to find it anywhere. Hmmm.... Answering relevant precedent citations is kind of a Supreme Court tradition. Odd...

[zukiphile]

Originally Posted by buzzcook

"Alabama v. Garrett" Thomas sides with the decision that makes it illegal to sue your state in federal court.

10th Amendment.

Originally Posted by buzzcook

"Ledbetter v. Goodyear" Thomas sided with the majority decision that Ledbetter could not sue for the wages she had been cheated out of, because she wasn't aware she was being cheated by Goodyear from time Goodyear started cheating.

Emphasis added. The underlined part is inaccurate.

Ledbetter couldn't sue on one specific claim because she didn't file the claim within the statute of limitation. There is an exception to that statute where the claimant could not have known the basis for his claim, but Ledbetter's case didn't fall within that exception.

[publius42]

Basically Thomas has cheated on his taxes for 13 years and lied about it in official government forms.

No, basically, he and his wife paid their taxes, but in a clever effort to conceal the (extremely well publicized) fact that she works for conservatives, he did not put that on disclosure forms.

You do understand that a disclosure form and a tax return are different things, right?

[Tom Servo]

True, but FDR at the height of the great depression was probably about the only president in history who was both popular enough and had enough of a majority in both the House and Senate to do such a thing.

Actually, he lost a great many friends with that fiasco, including many centrist and conservative Democrats. The bill containing the reform language ended up being voted down 70-20 in the Senate.

The story that FDR's announcement somehow cowed Roberts is certainly convenient for his apologists, but it may not be true. There's very real question as to whether the Court "switched" at all. While the decision in Parrish was handed down after FDR announced the Judicial Reform Bill, Burt Solomon implied that Roberts' opinion had been drafted prior to the announcement.

It was really the subsequent retirement of Devanter and appointment of Black that seemed to change things. In any case, FDR's attempt backfired, and ever since then, most Chief Executives have known better than to mess with SCOTUS. Most.

I have long thought that FDR's threat of constitutional amendment played a large part in the NFA being allowed to stand in Miller.

That's an odd one. Ragon, the district judge who initially ruled the NFA unconstitutional, was appointed by FDR after having been very supportive of the New Deal. He endorsed FDR in 1932, and as a legislator, he'd pushed a number of New Deal programs through Ways and Means. He'd also been a supporter of gun control prior to his appointment.

I know of no historical source explaining Ragon's sudden change, but the timing of his decision in the Miller case (1938) suggests that he might have been one of many of FDR's friends who'd grown disenchanted with the man.

What happened to the case when it reached the Supreme Court is a whole other dreadful charade.

While it is certainly appropriate to criticize decisions, attacks on the character of a U.S. Supreme Court Justice, regardless of his/her positions and political affiliations are in my mine inappropriate to this thread and to this forum.

Even if history almost unanimously finds one to be a cantankerous, lazy, racist? Or is it still too soon to criticize McReynolds?

I kid. Seriously, it's a good thread JustThisGuy. I'm heartened by Justice Thomas' integrity, and it's nice to see him getting the recognition he deserves.

[Webleymkv]

What happened to the case when it reached the Supreme Court is a whole other dreadful charade.

That's true. Delivering the ruling when only one side was even able to give oral arguments (Miller himself was dead by the time the case got to SCOTUS) is, in my opinion, a black spot in the history of the court.

[Tom Servo]

Delivering the ruling when only one side was even able to give oral arguments (Miller himself was dead by the time the case got to SCOTUS) is, in my opinion, a black spot in the history of the court.

I'll have to dig up sources for reference (and it may belong in a separate thread), but McReynolds took only a few hours to research and write his opinion. The guy was known for having a dreadful work ethic, and his work on Miller was indicative of that sloppiness. There are several glaring errors in his opinion, not the least of which is misquoting Blackstone to justify his conclusion. Furthermore, McReynolds' directions to Gutensohn (Miller's counsel) gave him a timeframe in which it would have been physically impossible to draft his brief, get it printed, and make travel arrangements (much less the trip itself). In fact, Gutenshon did not receive a copy of the government's brief until after the case had been decided and announced in the press.

The whole lifecycle of the Miller case was a disaster, which only makes its ~60 years as standing precedent seem worse.

If Miller were to be brought today, it'd be very interesting to see the orals...

[Glenn E. Meyer]

This thread is close to a close. Anyone who personally attacks another member or introduces politics and explicitly know that such is forbidden is gone from TFL.

Be warned.

Also, if Thomas is crook or not - is not relevant to discussing his legal opinions and positions. Cease that - another warning. If such happens, report it.

GEM

[publius42]

Sorry, Glenn. I'll try to remember to hit "report" instead of "reply" next time.

[MLeake]

I apologized to Glenn yesterday via PM, but in hindsight should apologize to the members on the thread, too.

Sorry, I'll keep politics out of it.

[Glenn E. Meyer]

Thank you all. The TFL Nanny State Black Heliocopters are returning to our carrier (like the one Shield has that flies).

We appreciate it.

[JustThisGuy]

And now, back to our previously scheduled program...