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Old May 14, 2019, 11:21 AM   #26
zukiphile
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Quote:
Originally Posted by Tom Servo
I still remember John Sununu recommending David Souter as a "slam dunk for conservatism" back in the day. Souter would go on oppose us in Heller and McDonald.
Souter affirmatively misrepresented himself to personnel involved in the nomination process.

Complaining that a conservative nominee several decades ago didn't embrace the Heller court's affirmation of the right as an individual right doesn't give a lot of insight into the current field of views on the issue. What should be an overriding concern to people who want to see the words of the COTUS given greater heft is the movement to detach constitutional jurisprudence from the original public meaning of constitutional text. That impulse is present conspicuously in Wickard and a number of subsequent cases in which specific ideological goals were achieved judicially. That advocates of that movement thought it was threatened by Bork (whose 2d Am. view was heterodox), Scalia, Thomas, Roberts, Alito, Gorsuch and Kavanaugh should tell one something about that movement and where judicial support for the right can arise. These men surely have differences of view and temperament amongst them, but the ordinary idea that constitutional text may be an impediment to ideological public policy is only a threat to a plan to implement that ideological public policy.

As to Kavanaugh, his rebuff to Sen. Feinstein in hearing about ARs being in common use wasn't ambiguous. I can understand not seeing the current exec as reliable on any specific issue, but both his nominees to date have been judges whose fidelity to constitutional text gave considerable heartburn to the Senate minority. In the context of current constitutional jurisprudence there is greater clarity and alignment than Pre-Heller quotes would indicate.
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Old May 14, 2019, 12:17 PM   #27
Aguila Blanca
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Quote:
Originally Posted by zukiphile
As to Kavanaugh, his rebuff to Sen. Feinstein in hearing about ARs being in common use wasn't ambiguous. I can understand not seeing the current exec as reliable on any specific issue, but both his nominees to date have been judges whose fidelity to constitutional text gave considerable heartburn to the Senate minority. In the context of current constitutional jurisprudence there is greater clarity and alignment than Pre-Heller quotes would indicate.
I hope you're right and that I'm wrong, but I just don't yet see a convincingly reliable pro-Constitution block. Roberts is far too political to be counted on. Alito, as I commented previously, as been a disappointment to me following his excellent decision in McDonald. And, despite Kavanaugh's exchange with Senator Feinstein, I still regard him as untested.

In my view, we need at least one more.
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Old May 14, 2019, 12:35 PM   #28
zukiphile
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Quote:
Originally Posted by AB
I hope you're right and that I'm wrong, but I just don't yet see a convincingly reliable pro-Constitution block. Roberts is far too political to be counted on. Alito, as I commented previously, as been a disappointment to me following his excellent decision in McDonald. And, despite Kavanaugh's exchange with Senator Feinstein, I still regard him as untested.

In my view, we need at least one more.
I'm not sure that you're wrong. I note that the subject of Kavanaugh's exchange with Sen. Feinstein was his dissenting opinion on the DC circuit. However, Roberts is problematic (I'd call him calculating rather than squishy, but neither is a compliment).

On the issue of Roberts' calculation, several noted that his justification of the constitutionality of the ACA as a tax set up the current challenge. That's a mostly technical victory at this point, but it does illustrate how some of the outrage at the time may not have been driven by foresight.

I'd like to see two more total, which probably puts us at three more nominations away from the potential of a solid position. 5-4 splits give every member of the majority a veto; I don't see that as making a strong opinion more likely.

Last edited by zukiphile; May 14, 2019 at 02:34 PM.
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Old May 14, 2019, 01:44 PM   #29
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I find it disheartening that the SCOTUS is filled with judges with such obvious political agendas.
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Old May 15, 2019, 08:09 PM   #30
publius42
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Quote:
Originally Posted by Aguila Blanca View Post
I hope you're right and that I'm wrong, but I just don't yet see a convincingly reliable pro-Constitution block. Roberts is far too political to be counted on. Alito, as I commented previously, as been a disappointment to me following his excellent decision in McDonald. And, despite Kavanaugh's exchange with Senator Feinstein, I still regard him as untested.

In my view, we need at least one more.
I thought Alito was pretty good in his Caetano opinion, which was joined by Thomas.

Quote:
"The Commonwealth of Massachusetts was either unable or unwilling to do what was necessary to protect Jaime Caetano, so she was forced to protect herself," Alito wrote. "To make matters worse, the Commonwealth chose to deploy its prosecutorial resources to prosecute and convict her of a criminal offense for arming herself with a nonlethal weapon that may well have saved her life. The Supreme Judicial Court then affirmed her conviction on the flimsiest of grounds." According to Alito, "if the fundamental right of self-defense does not protect Caetano, then the safety of all Americans is left to the mercy of state authorities who may be more concerned about disarming people than about keeping them safe."
The rest is pretty good too, which might explain why Thomas joined him.

Alito isn't as good as Gorsuch or Sotomayor on the fourth amendment, but this isn't that kind of forum.
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Old May 15, 2019, 10:58 PM   #31
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Originally Posted by publius42
I thought Alito was pretty good in his Caetano opinion, which was joined by Thomas.
I missed that one. I'll have to read up on it.
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Old May 16, 2019, 02:15 PM   #32
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The problem with a pure self-defense jusification for the RKBA is that it can lead to accepting limits on the types of weapons. Creepy Uncle Joe Biden is ok with a double barrel shotgun as all that it necessary. One could see a right to own such and/or a SW Model 10 as sufficient and all the higher cap guns being unnecessary and open to bans.

Yes, folks use the higher cap guns but even on gun forums folks argue that 5 is enough or the modal 3,3,3 usage.

Don't want to be locked into that standard or see it enshrined as what the 2nd Amend. means.
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Old May 16, 2019, 06:15 PM   #33
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It shouldn't be an either/or- protect RKBA for ALL lawful purposes- resistance to tyranny, self-defense, sport, whatever.
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Old May 16, 2019, 06:38 PM   #34
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Some members here may remember that the Senate did a fairly exhaustive analysis of the Second Amendment all the way back in 1982. I have a formatted version of it squirreled away on my hard drive, but a complete (unformatted) version is still available on-line. For those who aren't familiar with it, it's worth a read.

https://guncite.com/journals/senrpt/senrpt.html

I'll also mention that, in the years since this was released, it has disappeared from the Internet and then popped up again at different URLs a couple or more times. I recommend that anyone who is serious about this issue not only read it, but also download it and save a copy because we never know when it may disappear again.

There was also a lengthy (107 pages worth) "memorandum" issued by the Attorney General's office in 2004. Again, the official version seems to have disappeared from the .gov web site, a copy has been preserved by the Constitution Society. This one, too, is well worth reading, aand IMHO we should all download it and save a copy so we'll always be able to find it for future reference.

http://www.constitution.org/uslaw/doj/doj_statement.htm

And then, of course, there are the historical references contained in the Heller decision. There is a LOT of historical support for "our side" if we go looking. We owe it to ourselves and to future generations to ensure that some of these documents aren't allowed to go walkabout.
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Old May 16, 2019, 06:56 PM   #35
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Here's a quote from the 1982 Senate report:

Quote:
We did not guess at the purpose of the British 1689 Declaration of Rights; we located the Journals of the House of Commons and private notes of the Declaration's sponsors, now dead for two centuries. We did not make suppositions as to colonial interpretations of that Declaration's right to keep arms; we examined colonial newspapers which discussed it. We did not speculate as to the intent of the framers of the second amendment; we examined James Madison's drafts for it, his handwritten outlines of speeches upon the Bill of Rights, and discussions of the second amendment by early scholars who were personal friends of Madison, Jefferson, and Washington and wrote while these still lived. What the Subcommittee on the Constitution uncovered was clear — and long-lost — proof that the second amendment to our Constitution was intended as an individual right of the American citizen to keep and carry arms in a peaceful manner, for protection of himself, his family, and his freedoms. The summary of our research and findings forms the first portion of this report.
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Old Yesterday, 04:30 PM   #36
TDL
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Quote:
I hope you're right and that I'm wrong, but I just don't yet see a convincingly reliable pro-Constitution block. Roberts is far too political to be counted on. Alito, as I commented previously, as been a disappointment to me following his excellent decision in McDonald. And, despite Kavanaugh's exchange with Senator Feinstein, I still regard him as untested.

In my view, we need at least one more.
All true. But I think it is useful to also consider what might, or will, happen if we have one less. The justices on the other side are in comparison uniform in comparison and it could all be downhill with a single change. Roberts, who is really the key in everything right now, would be irrelevant if there are five opposing us.

The actuary tables on Thomas from 1.5 to 5.5 are positive for a guy thomas' age with fair health and excellent heath care, but there is still a fairly high mortality or disabling illness rate.
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