Category Archive '14th Amendment'

28 Jun 2010

Supreme Court Incorporates Second Amendment Rights

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The Court’s decision in McDonald v. City of Chicago was handed down this morning.

Erin Miller, at SCOTUSblog, live blogged the announcement:

Erin:
Alito announces McDonald v. Chicago: reversed and remanded
Monday June 28, 2010 10:04 Erin
10:04

Tom:
Gun rights prevail
Monday June 28, 2010 10:04 Tom
10:05

Erin:

The opinion concludes that the 14th Amendment does incorporate the Second Amendment right recognized in Heller to keep and bear arms in self defense
Monday June 28, 2010 10:05 Erin
10:05

Tom:
5-4
Monday June 28, 2010 10:05 Tom
10:05

Erin:
Stevens dissents for himself. Breyer dissents, joined by Ginsburg and Sotomayor.
Monday June 28, 2010 10:05 Erin
10:05

Tom:
The majority seems divided, presumably on the precise standard
Monday June 28, 2010 10:05 Tom
10:06

Erin:
The majority Justices do not support all parts of the Alito opinion, but all five agree that the 2d Amendment applies to state and local government.
Monday June 28, 2010 10:06 Erin
10:06

Erin:
Alito, in the part of the opinion joined by three Justices, concludes that the 2d Amendment is incorporated through the Due Process Clause.
Monday June 28, 2010 10:06 Erin
10:07

Erin:
Thomas thinks the Amendment is incorporated, but not under Due Process. He appears to base incorporation on Privileges or Immunities.

Evidently, the Court actually did rule that the 14th Amendment’s Incorporation of the Bill of Rights makes applicable the Second Amendment to the states, limiting the right of states and municipalities to restrict the right of Americans to keep and bear arms.

15 Mar 2009

Liberals Considering Original Intent

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Over the last few decades, the powerful impact of Conservatism on jurisprudential reasoning, both in law school publications and in judicial opinions, has caused progressives reluctantly to deal with original intent in Constitutional Law.

Jess Bravin
, in the Wall Street Journal, reports on a fascinating new development, in which some liberals are considering a positive embrace of Constitutional Originalism philosophically.

A progressive originalism would reject the ruling of the Slaughter-Houses Cases of 1873 which limited the impact of the 14th Amendment’s guarantee of the “privileges or immunities” of individual citizens against the states.

The libertarian potential of such a move could be tremendous, and the conflict within the legal community on the left between an inclination to suppress States’ Rights while enhancing individual rights claims on the basis of the post-Civil War Amendments versus their love of regulation and generally enthusiastic embrace of the cult of Statism will be absolutely fascinating to watch unfold.

A must read.


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