Patterico's Pontifications

2/16/2014

Ninth Circuit Gun Decision

Filed under: General — Patterico @ 3:01 pm

I have been asked for commentary on the recent Ninth Circuit decision holding that Californians need not demonstrate a specific threat to their safety before receiving a permit to carry a firearm in public.

I have not had a chance to read the decision, so I can’t issue a final verdict on it, but it sounds right (accepting, as everyone in the legal world does, the dubious Incorporation Doctrine). What is there to say, other than that it is surprising to see a court make the right decision for once?

As with Heller, this was a case decided by one vote. And this can be reversed, either by the full en banc court or by the Supremes.

The courts are there to protect your rights . . . except when they aren’t, which is most of the time.

153 Responses to “Ninth Circuit Gun Decision”

  1. As a history geek, I find nothing even slightly dubious about the incorporation doctrine.

    The congressional record is as clear as day. They assumed the Bill of Rights applied to the states. They discovered it wasn’t true. They then said that the 14th A was meant to fix that.

    The only thing dubious was using the due process clause. I am more inclined to think the privileges and immunities clause does the work. And thus I think the selective incorporation doctrine is wrong. The whole thing is incorporated, at least as the Bill of rights was understood in 1868.

    Aaron "Worthing" Walker (23789b)

  2. Yoda first ding!!!!!

    Yoda (557254)

  3. sorry, i think technically i get the “ding.”

    Aaron "Worthing" Walker (23789b)

  4. fail, Yoda did. egg on face he has…

    8-)

    redc1c4 (abd49e)

  5. Bantha poodoo, Aaron’s comment there wasn’t when Yoda tried to be first dingbat!

    Yoda (557254)

  6. i am always amused at the fascists who tell me, with a straight face, that “the people” in the 2ndA doesn’t mean the same thing as “the people” means in the other parts of the Constitution…

    funny how that w*rks, no?

    redc1c4 (abd49e)

  7. Not all amendments are created equal. Or whatever.

    Elephant Stone (6a6f37)

  8. and they get really cranky when you point out that, since the 2nd only applies to weapons from that time frame (their argument) then the 1st Amendment only applies to unamplified speech, hand written documents and single sheet, hand operated printing presses and that Congress can regulate, limit or prohibit everything else.

    the usual reply is “that’s different”, but there never seems to be a coherent argument as to why.

    redc1c4 (abd49e)

  9. Yes, hearing that ruling from the 9th circuit leaves one waiting for the punch line, or the catch in the fine print.
    Of course, I guess it is possible that one or more judeges repented of their foolish ways and started making sense. That would be a reason to give thanks.

    MD in Philly (f9371b)

  10. A commenter said that once every ten years the pols in a certain state (whose name I will not utter) will send a colleague to prison as a way to continue to fool the electorate into thinking things are on the up-and-up. Perhaps the Ninth circuit is employing the same tactic?

    felipe (6100bc)

  11. Well, I do think there is some reason for confusion about 2nd amendment rights, because at the time the average citizen did have access to the same weapons that a potentially tyrannical government had. That is not really the case anymore.
    But I don’t really think the issue is a citizenry that can match the government weapon for weapon; I think the issue is the police/military under a tyranny would be forced to actually get into a fight with the people, and face the question as to whether or not they are really justified to do that, as opposed to telling unarmed people to get in line and get into the truck, which would be easier to do and easier on one’s conscience.

    MD in Philly (f9371b)

  12. here’s my pet theory: its reverse psychology. They figure the SC is so used to reversing them, they will do it by accident out of habit.

    Aaron "Worthing" Walker (23789b)

  13. MD at 11. At the time of the founding, there was the private ownership of cannons and the private ownership of ships equipped with the same. Not sure what precisely private citizens didn’t have…

    Aaron "Worthing" Walker (23789b)

  14. guns are wonderful I really like them but I don’t trust the pervert Roberts court to stand up for people’s rights

    cause of how they’re all a bunch of fascist whores

    what I do count on is the refreshing taste of blenheim diet ginger ale

    but it’s not as spicy as the other kinds – so here’s what you do

    get one of those big red wine glasses you hardly ever use cause they too damn big

    put two shots de stoli japaleno

    one shot of any pineapple vodka

    then cover with ice and refreshing blenheim diet ginger ale

    if you don’t have any blenheim i recommend Canada Dry TEN

    happyfeet (8ce051)

  15. Well, OK, so a couple of 9th Circuiteers say Californians can carry, isn’t that special?

    ropelight (941367)

  16. i am always amused at the fascists who tell me, with a straight face, that “the people” in the 2ndA doesn’t mean the same thing as “the people” means in the other parts of the Constitution…

    I know what you mean, red. It amazes me that otherwise intelligent people think that the Framers wrote the First, Third, Fourth, Fifth, Sixth, Seventh, Eighth, and Ninth Amendments to specifically deal with the rights reserved by a citizen, but somehow the same Framers intended the Second Amendment to apply only to a group of people, i.e., a militia. I am aware of no modern research suggesting that the members of the Constitutional Convention suffered from ADHD or any of the current trendy maladies that cause us to lose focus in the middle of important tasks.

    JVW (709bc7)

  17. Well, I do think there is some reason for confusion about 2nd amendment rights, because at the time the average citizen did have access to the same weapons that a potentially tyrannical government had.

    Side note: MD, I was having a conversation with a friend from Sierra Leone re Colonialism and the impact on his country. He is a firm believer that it was directly because of Colonialism that his country had periods of success, thriving infrastructure, and trade. Post-colonialism and post-civil war has resulted in a country determined by simply, those who have the most guns win power. Thus, it is ruled by the corrupt and the well-armed. One coup after another, and still it never changes: those with the most guns, win. He mocks those here who don’t understand or have not personally witnessed the direct impact on a citizenry without access to guns to defend and those with guns to control.

    Dana (9a8f57)

  18. i’m going to find my LAPD CCW application and fill it out, listing Heller, Chicago and this case as my justification, just to see what they do with it.

    who knows, they might just give up & give me one to keep from potentially facing another law suit…

    (yeah, like that’ll happen %-)

    redc1c4 (abd49e)

  19. it’s more better to fly under the radar than to fill out applications

    this is one of the key learnings one must master if one intends to prosper under a neo-fascist regime like we have in america

    happyfeet (8ce051)

  20. Amusingly, California’s dysfunctional state legislature fell into the trap of getting all wee-wee’d up about open carry – entirely banning it.

    Thus leading the Ninth Circuit to conclude that the state of California had by banning all lawful forms of self defense outside the home, gone too far.

    SPQR (768505)

  21. 19. Certainly seems that way.

    gary gulrud (e2cef3)

  22. @6– The 4th A says, in pertinent part, “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated,…” but the courts have no problem including more modern stuff like magnetic media, cell phones, computer drives, etc to be part of “papers” where the grabbers want to limit the 2d A to muskets and such, banning modern versions of those muskets.

    Also, the wording (in the 2A) is that the *right* shall not be infringed, clearly acknowledging that the right exists, not that the amendment is granting that right.

    gramps, the original (b18bfc)

  23. “The People” means the same thing as it means in the Preamble, and in the 10th amendment. And in the First amendment, it clearly refers to a collective right.

    Sammy Finkelman (8eda0c)

  24. Comment by Dana (9a8f57) — 2/16/2014 @ 4:29 pm

    He mocks those here who don’t understand or have not personally witnessed the direct impact on a citizenry without access to guns to defend and those with guns to control.

    In Sierre Leone, and other places in Africa, there was nobody around with really modern weapons. Guns did not help the Kurds against Saddam Hussein – they needed the U.S. Air Forcer, and the same thing in Bosnia.

    Guns are not helping the people in the suburbs of Damascus very much. The government has artillery, barrel bombs and worse. They even used chemical weapons for a while.

    Sammy Finkelman (8eda0c)

  25. 11. Comment by MD in Philly (f9371b) — 2/16/2014 @ 3:55 pm

    Well, I do think there is some reason for confusion about 2nd amendment rights, because at the time the average citizen did have access to the same weapons that a potentially tyrannical government had. That is not really the case anymore.

    That’s exactly the case at the time of the adoption of the 2nd amendment – they were equal, and to this was added opposition to (although not a prohibition of) the existence of a standing army.

    One provision in the constitution is that noo appropriation for the military can be for a period of more than two years.

    But I don’t really think the issue is a citizenry that can match the government weapon for weapon; I think the issue is the police/military under a tyranny would be forced to actually get into a fight with the people, and face the question as to whether or not they are really justified to do that, as opposed to telling unarmed people to get in line and get into the truck, which would be easier to do and easier on one’s conscience.

    The biggest protection is not having all weapons under the same command.

    In Ukraine, what the (unarmed) people have done is surround the barracks of soldiers with barricades. The soldiers could crash through it, but it would force them to make a decision.

    Sammy Finkelman (8eda0c)

  26. Comment by Aaron “Worthing” Walker (23789b) — 2/16/2014 @ 3:39 pm

    The only thing dubious was using the due process clause. I am more inclined to think the privileges and immunities clause does the work. And thus I think the selective incorporation doctrine is wrong. The whole thing is incorporated, at least as the Bill of rights was understood in 1868.

    That’s what Justice Hugo Black wrote in 1948.

    Sammy Finkelman (8eda0c)

  27. Sammy, I wonder what the odds are that Aaron has read Black’s opinion?

    SPQR (768505)

  28. 27. Comment by SPQR (768505) — 2/16/2014 @ 5:56 pm

    Sammy, I wonder what the odds are that Aaron has read Black’s opinion?

    Since he calls himself a history geek, I’d say about 95%. If you do any research at all on the Supreme Court and the Bill of Rights, you’ll run across it.

    The only question would be, did he have enough time or an occasion to do the research, and did he have access to the opinion, or did he rely on what some book said.

    Sammy Finkelman (8eda0c)

  29. It was actually in 1947, Adamson v. California, 332 U.S. 46, at 90ff

    http://law2.umkc.edu/faculty/projects/ftrials/conlaw/adamson.html

    Black’s opinion has a lengthy appendix.

    Sammy Finkelman (8eda0c)

  30. the 14th amendment privileges and immunities clause was broken by the SC in the 1870′s in string of horrid decisions (Slaughterhouse, Cruikshank, etc) and so they needed to recreate it without overturning the firmament. So they ginned up some sophistry and called it substantive due process.

    Justice Thomas is slowly chipping away at that.

    Kevin M (dbcba4)

  31. The core of the decision seems to be this (page 53):

    Clearly, the California scheme does not prevent every person from bearing arms outside the home in every circumstance. But the fact that a small group of people have the ability to exercise their right to bear arms does not end our inquiry. Because the Second Amendment “confer[s] an individual right to keep and bear arms,” we must assess whether the California scheme deprives any individual of his constitutional rights. Heller, 554 U.S. at 595. Thus, the question is not whether the California scheme (in light of San Diego County’s policy) allows some people to bear arms outside the home in some places at some times; instead, the question is whether it allows the typical responsible, law-abiding citizen to bear arms in public for the lawful purpose of self-defense. The answer to the latter question is a resounding “no.”

    Now, what this all means is another thing. I expect our legislature and Attoney General to slow walk this as much as possible. The only thing I am sure of is that this is not one of those state laws Kamala Harris will fail to defend.

    Kevin M (dbcba4)

  32. Here is Venezuala: (unofficial Cuban government trained thugs sometimes using motorcycles sporadically murder demonstrators.)

    http://legalinsurrection.com/2014/02/media-largely-ignores-violent-venezuela-crackdown-on-opposition/#more-78969

    Sammy Finkelman (8eda0c)

  33. Sammy, the Hugo Black opinion is commonly part of a law school con law curriculum.

    SPQR (768505)

  34. As a history geek, I find nothing even slightly dubious about the incorporation doctrine.

    The congressional record is as clear as day. They assumed the Bill of Rights applied to the states. They discovered it wasn’t true. They then said that the 14th A was meant to fix that.

    Not sure I agree.

    Patterico (1810a1)

  35. For example, if everyone thought the Bill of Rights applied to the states, why did states have established religions?

    Patterico (61a8ce)

  36. Amusingly, California’s dysfunctional state legislature fell into the trap of getting all wee-wee’d up about open carry – entirely banning it.

    It is important to note that the Circuit did not strike down the law on its face, only as applied under present-day circumstances.

    This is similar to the earlier Supreme Court ruling striking down the Voting Rights Act as-applied, not on its face.

    Michael Ejercito (906585)

  37. You are right that no one thought the Bill of Rights applied to the states prior to the 14th amendment, Patterico. Records of floor debate of the Fourteenth Amendment show that – contrary to the Slaughterhouse cases, the proponents of the Fourteenth thought it would prevent states from denying equal protection of freedmen, including the right to arms. Van Alstyne of Duke Law showed this as I recall.

    SPQR (768505)

  38. You don’t need guns.
    All you need is love.
    Nothing is stronger than love.
    Except Apache helicopters.
    Apache helicopters have machine guns AND missiles.

    The Seventh Circuit acted much more dramatically last year, when it told the State of Illinois it had 180 days to come up with a carry scheme. The statute is “shall issue”. The resistance in Cook County takes the form of looking for reasons to deny, such as mental illness and addiction, which are not clearly on the record like felony convictions. We’ll see.

    Sammy, you don’t know what “collective right” means. Look it up. To say First Amendment rights are collective rights is to say water is dry.

    In the Second Amendment sense, the American people have both a collective right and an individual right to keep and bear arms. We exercise the collective right with our armed forces under the command of our duly constituted government. We exercise the individual right with the private ownership and use of weapons outside the command of the government.

    nk (dbc370)

  39. constitution lol

    you americans are so cute

    happyfeet (8ce051)

  40. I think that, in the post-Reconstruction era, when the feds were backing away from the idea of enforcing freedmen’s rights, we got these decsions, one after another, that cast doubt on the effects of the 14thA and reverted most questions to the state constitutions.

    This was largely political — the Southern Democrats and their armed agents (the KKK) had made the continuation of the Radical Republican agenda impossible without military subjugation of the South. So, it was decided to give up. And that meant that the 14th Amendment, especially the P&I clause had to be made to go away. This was a bipartisan decision and ran through such decisions as Cruikshank (worse than Dred Scott) on its way to Plessy.

    It is this regime that suggests the 14th Amendment did not incorporate the bill of rights against the states, when the plain reading of it suggests it does.

    Kevin M (dbcba4)

  41. Here you go, Kevin:

    GURA: Scalia! An argument for incorporating under privileges and immunities, YOU CAN HAS!
    SCALIA: WTF are you talking about? We can incorporate it under due process. I hate due process and I even think that.
    GURA: Uhhh
    SCALIA: Are you trying to get a job at a law school?
    GURA: Oh ****
    SCALIA: SERIOUSLY STFU IF WE USE PRIVILEGES AND IMMUNITIES THESE ****OS WILL LEGITIMIZE EVERYTHING STFU STFU STFU
    GURA: But you hate due process
    SCALIA: I LIKE IT NOW
    GURA: Uhhh
    GINSBURG: I’m a *****!
    SCALIA: LULZ
    STEVENS: I’m a *****!
    CLEMENT: This should obviously be incorporated under due process.
    ALITO: Werd
    BREYER: *motorboats Sotomayor*
    FELDMAN: Here’s my first argument.
    SCALIA: That argument sucks.
    FELDMAN: Ordered liberty?
    SCALIA: We haven’t used that since 1937.
    FELDMAN: Have too.
    SCALIA: When?
    FELDMAN: Uh, here’s my second argument.
    SCALIA: You just argued against your first argument.
    FELDMAN: Did not.
    SCALIA: Did so.
    FELDMAN: DID NOT!
    SCALIA: …
    FELDMAN: *cries*
    SCALIA: …
    ROBERTS: You just argued the losing Heller argument.
    FELDMAN: *pees pants*
    BREYER: Let’s make a chart.
    ROBERTS: Madison made a chart!
    BREYER: STFU
    THOMAS: *reads the Bible*
    SCALIA: The 2A puts the fun in fundamental.
    FELDMAN: Let me tell you what Heller says.
    SCALIA: I wrote Heller, ****nuts.
    KENNEDY: So if we’re going to just incorporate the militia purpose of Heller, what case do we use for precedent?
    FELDMAN: No ****ing idea.
    SCALIA: Why are you talking about the right to self-defense? That’s not in the Constitution.
    FELDMAN: See above. Besides, nobody would really restrict the right to keep and bear arms so that it affected self-defense.
    SCALIA: Have you even read Heller?
    FELDMAN: I don’t think so.
    KENNEDY: Gura, let’s use your last three minutes to talk about everything but the 2A.
    ROBERTS: I’m going to give you the chance to take back that privileges and immunities thing.
    GURA: No, we think it’s a good idea!
    ROBERTS: *sigh*

    nk (dbc370)

  42. The test would be if every Sheriff in CA on Monday saw several thousand CCW applications hit his/her desk using “self defense” as “good cause”, with footnotes to Heller, McDonald, and Peruta for support.
    I would not be surprised to actually see such a thing orchestrated by CalGuns/CRPA/GOA ensuring that every applicant was “solid gold”.

    askeptic (2bb434)

  43. Tam commenting at SayUncle’s said that this is an urban thing. That the hinterlands (her word) of California don’t have this problem.

    And I don’t know about the SD County Sheriff, but Baca, on many occasions, has been caught finding good cause to issue gun permits to his friends but not to ordinary citizens. It’s also interesting that the permits are local, good only in the county or municipality of issuance. You Californians have some interesting home rule.

    nk (dbc370)

  44. It is true that this is an “urban problem”.
    In the more rural counties, they have pretty much moved to a “shall issue” regime.
    The LAT, in one of their frequent diatribes about CCW’s, focused on Modoc County, in the far north-eastern corner of the state, because it had one of the highest numbers of CCW’s of any county, and topped the per-capita list by a mile. When they asked the issuing officer at Sheriff HQ about this, he responded that their policy was to issue to any responsible citizen or land-owner in the county upon request. Asked what the usual justification for the request was, he replied that many people said they thought they needed to protect themselves on a trip to the Big City (Sacramento/San Francisco/Los Angeles).
    The PTB at the LAT were not pleased, and I’m sure they will be even further disappointed when this decision by the 9th is affirmed.

    askeptic (2bb434)

  45. BTW, Lee Baca retired on 31 Jan 14.
    LACo has a new Sheriff, probably not much different than the old Sheriff: John Scott.

    askeptic (2bb434)

  46. 44. Tam commenting at SayUncle’s said that this is an urban thing. That the hinterlands (her word) of California don’t have this problem.

    Comment by nk (dbc370) — 2/16/2014 @ 9:32 pm

    That’s true. You could also say it’s mostly a coastal vs. inland thing, too. But then the major urban areas are on the coast. If memory serves the legislature once addressed the fact that people could go to any sheriff or police chief and get a permit that was valid state wide. Because once upon a time there was no residency requirement. Because the urban areas hadn’t gone full metal jacket stupid yet. But once they did, and people did a little research, when they wanted a concealed carry permit they’d head out into the countryside and get one. Naturally, urban liberals perceived this as a problem.

    Once upon a time it was also legal to carry openly in kali. As in fully loaded, not empty, as long as you were in a county with a population below a certain level. Again urban/coastal vs. rural/inland.

    I’m sure they’ve put a stop to that by now.

    It’s hard to keep up with the blizzard of gun laws coming out of places like kali. Since I don’t live there, I don’t.

    Steve57 (71fc09)

  47. There’s no open carry in the present statute, at issue this case. The Court discussed that at length and found no problem with the legislature determining that concealed carry is the way to go.

    nk (dbc370)

  48. Patterico: Regarding incorporation of the Second Amendment, Prof. Nicholas Johnson has some interesting quotes:

    The Loyal Georgian reprinted the order of Freedman’s Bureau commissioner, General Sickles, affirming Negroes’ right to arms along with this commentary: “Have colored citizens a right to own and carry firearms: Almost every day we are asked questions similar to the above. We answer certainly you have the same right to own and carry arms that other citizens have.” A publication of the African Methodist Episcopal Church, added detail, explaining to the literate class who would spread the news, “We have several times alluded to the fact that the Constitution of the United States guarantees to every citizen the right to keep and bear arms. Gen. Tilson, assistant Commissioner, for Georgia, has issued a circular in which he clearly defines the right. The Constitution of the United States is the law of the land, and we will be governed by that at present.”

    That link is one of his posts guest blogging at the Volokh Conspiracy about his new book, Negroes and the Gun.

    Something I ran across earlier is a list of 2A cases by Eugene Volokh.

    Ibidem (5de107)

  49. @44, 46, 47:
    Here in Northern California, “good cause” is generally pretty broadly interpreted.
    The issue is that “good cause” narrowly interpreted, combined with the existing laws, means that a law-abiding citizen who has a general desire to carry for self-defence will not be allowed to exercise their rights. Of course, the difference in interpretation makes the case largely irrelevant around here.

    Ibidem (5de107)

  50. nk @47, I didn’t mean to imply that it was. I was just pointing out how the state of the law once was to point out the difference between coastal/urban vs. inland/rural in kali.

    Wikipedia is a great source of misinformation. Still, this largely conforms to my memory about gun laws in Kali:

    http://en.wikipedia.org/wiki/Open_carry_in_the_United_States

    Open carry legal in rural counties with local ordinances allowing open carry. Some of these counties issue a permit for open carry.

    More to the point, it used to be that people in the megalopolis of L.A. or in S.F. didn’t much care what the rubes in the parts of kali they didn’t have an interest in visiting were doing with their lives. Which was fine with the rubes.

    I think somewhere in the blizzard of gun laws coming out of kali the sophisticated urbanites put a stop to the barbaric practice of the rustics carrying guns openly while not shooting each other.

    Steve57 (71fc09)

  51. The first amendment prevents Congress from making any law regarding the establishment of a religion.

    This specifically bars them from preventing a state from having or establishing a religion.

    Have Blue (e97630)

  52. The esteemed Mr Finkelman wrote:

    “The People” means the same thing as it means in the Preamble, and in the 10th amendment. And in the First amendment, it clearly refers to a collective right.

    It does? As though the freedom of speech is valid only to a collective of people, rather than an individual?

    Of course, the First Amendment isn’t written that way:

    Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

    What the First Amendment actually does is to state that Congress simply has no authority at all to legislate in those areas, and “people” simply refers to one of the areas in which Congress may not legislate, rather than to recognize a right held by the collective “people.”

    This is where the left who argue against Citizens United err, in claiming that corporations should not be legal persons. Even if corporations were not legal persons, the restrictions of the First Amendment would not allow Congress to legislate in areas which would abridge the freedom of speech, regardless of who was speaking.

    The Dana who isn't an attorney (3e4784)

  53. Mr Finkelman wrote:

    The only thing dubious was using the due process clause. I am more inclined to think the privileges and immunities clause does the work. And thus I think the selective incorporation doctrine is wrong. The whole thing is incorporated, at least as the Bill of rights was understood in 1868. (Aaron Worthing)

    That’s what Justice Hugo Black wrote in 1948.

    Why, then, didn’t they say, explicitly, that the provisions of the Bill of Rights apply to state action as well?

    You know, for a group of men who were supposedly highly educated and obviously brilliant, the original Framers as well as the Congress which wrote the 14th Amendment were remarkably lax with their language. The Second Amendment’s militia clause is an example of horrible writing; it’s just useless padding.

    At least as far as the original Framers were concerned, it seems as though they never anticipated Marbury v Madison.

    The Dana who never went to law school (3e4784)

  54. 23. “The People” means the same thing as it means in the Preamble, and in the 10th amendment. And in the First amendment, it clearly refers to a collective right.

    Comment by Sammy Finkelman (8eda0c) — 2/16/2014 @ 5:43 pm

    Who’d a thunk it?

    IV The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized

    The government can’t violate any individual’s rights under the fourth amendment. It’s a collective right.

    You’re a hoot, Sammy.

    Steve57 (da4753)

  55. Sammy, what percentage of the collective’s homes must be raided without a warrant and unreasonably searched, property siezed, before the “right of the people” has been violated?

    Steve57 (da4753)

  56. A collective right is one exercised by a free state vis a vis a foreign power. It does not mean individual rights, within a society, which in practice only affect a certain class of people. The 19th Amendment is not a collective right, it is an individual right held by a whole lot of individuals (which a whole lot of other individuals find nice to hold).

    Here’s an example. The Treaty of Versailles infringed on Germany’s collective right to build and maintain military forces, but left the civilian ownership of pistols, rifles and fancy daggers in Germany alone.

    nk (dbc370)

  57. 35. Comment by Patterico (61a8ce) — 2/16/2014 @ 7:08 pm

    For example, if everyone thought the Bill of Rights applied to the states, why did states have established religions?

    First, it may be that later on, in the 1800s, past 1825, that some people came to think the BIll of Rights applied to the states, although a court had ruled that Article 4, section 1, Clause 2 didn’t mean that. But that at the time of the adoption of the constitution nobody thought so. But that may be wrong. Secondly, establishing a religion doesn’t violate any right.

    Not having an established religion is not a personal “privilege or immunity,” although the establishment clause has been used for more than just preventing taxation and support (being made to appear to support or endorse something or participate.) In 1791, nobody was ever being subjected to compulsory or semi-compulsory prayer, written by the government, except maybe members of a legislature and not even them really.

    Sammy Finkelman (8eda0c)

  58. Really, Sammy?

    Congregationalists and Anglicans who, before 1776, had received public financial support, called their state benefactors “nursing fathers” (Isaiah 49:23). After independence they urged the state governments, as “nursing fathers,” to continue succoring them. Knowing that in the egalitarian, post-independence era, the public would no longer permit single denominations to monopolize state support, legislators devised “general assessment schemes.” Religious taxes were laid on all citizens, each of whom was given the option of designating his share to the church of his choice. Such laws took effect in Massachusetts, Connecticut, and New Hampshire and were passed but not implemented in Maryland and Georgia.

    You know, lifetimes have been devoted, and thousands of trees have been killed for the paper, in the discussion of the Constitutional Debates. You do know that, right? It’s way past intuitive guesses from vaguely-known history.

    nk (dbc370)

  59. “[I]ntuitive guesses from vaguely-known history” is what Sammy does.

    Steve57 (da4753)

  60. The only thing dubious was using the due process clause. I am more inclined to think the privileges and immunities clause does the work. And thus I think the selective incorporation doctrine is wrong. The whole thing is incorporated, at least as the Bill of rights was understood in 1868. (Aaron Worthing)

    “That’s what Justice Hugo Black wrote in 1948.”

    Comment by The Dana who never went to law school (3e4784) — 2/17/2014 @ 5:42 am

    Why, then, didn’t they say, explicitly, that the provisions of the Bill of Rights apply to state action as well?

    Two reasons maybe.

    1) They were copying earlier language but just modifying it a little bit.

    2) They were trying to sneak something by the state legislatures. Or Congressman Bingham was.

    The older language, Article IV, Section 2, Clause I says:

    1: The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States.

    That’s pretty unclear. It’s been interpreted to mean that each state must treat the citizens of any other state the same way it treats its own citizens. I think. Not denying them a right to own land, for instance, or to sign certain kinds of contracts maybe, or trial by jury.

    The 14th Amendment says, in part:

    Article XIV

    1: …No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States…

    Now what are these privileges and immunities? Bingham argued they included what was in the Bill of Rights. Any privilege and immunity aganst the federal government shold also apply to the states.

    The word “abridge” seems to point to that, since that’s in the First Amendment, and if that clause meant merely say, something like the state can’t take away a military pension, what is the word “abridge” or the concept of “abridging” doing there?

    You know, for a group of men who were supposedly highly educated and obviously brilliant, the original Framers as well as the Congress which wrote the 14th Amendment were remarkably lax with their language.

    Well, especially in the original consitution, the
    “Privileges and Immunities of Citizens in the several States” must have meant something clear.

    The term “several states” is used in the original constitution like this:

    Artivler I, Section 2 Clause 1.

    1: The House of Representatives shall be composed of Members chosen every second Year by the People of the several States , and the Electors in each State shall have the Qualifications requisite for Electors of the most numerous Branch of the State Legislature

    So “each” does not mean the same thing as “several” “Several” might mean something close to “every” or “each separate” or “all (the) various”

    I don’t know.

    Representatives and direct Taxes shall be apportioned among the several States …

    The Congress shall have Power… To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes;

    The President shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States;

    And then there’s the clause in question. Also

    the Legislatures of…the several States,

    Sammy Finkelman (8eda0c)

  61. I don’t know.

    Most sensible thing you’ve said on the subject.

    nk (dbc370)

  62. 60. I do that too when that’s the best we gots.

    Otherwise I listen.

    gary gulrud (e2cef3)

  63. I think it’s more appropriate to say I’ve read, gary. Which I’ve done, thank you. Probably more than most.

    Steve57 (da4753)

  64. I do actually read what Sammy writes. If I respond to it.

    Steve57 (da4753)

  65. 64. My comment was directed at Samuel.

    gary gulrud (e2cef3)

  66. 63. 60. I do that too when that’s the best we gots.

    Otherwise I listen.

    Comment by gary gulrud (e2cef3) — 2/17/2014 @ 8:38 am

    I wrote comment #60.Sammy wrote #61.

    Steve57 (da4753)

  67. I understood gary to expand on what you said about Sammy, Steve. Not to say what I think you think he said about what you said. ;) We’re all friends, here.

    nk (dbc370)

  68. Of course we’re all friends here. I like Sammy that’s why I engage him. I guess I just didn’t get what gary was driving at the first time around.

    I think I do now after re-reading the comment.

    Steve57 (da4753)

  69. 68. I understood gary to expand on what you said about Sammy, Steve. Not to say what I think you think he said about what you said. ;) We’re all friends, here.

    Comment by nk (dbc370) — 2/17/2014 @ 9:11 am

    I think sometimes we take ourselves too seriously.

    We need an ABBA break.

    http://www.youtube.com/watch?v=xFrGuyw1V8s

    Dancing Queen

    Steve57 (da4753)

  70. I think sometimes we take ourselves too seriously.

    I concur. It’s rather bad form to publicly examine individual commenters who comment in good faith just because they may be a bit different, or less succinct or cohesive in their thoughts. Who is anyone to dissect them as if they weren’t in the room? It smells of superiority complexes run amok. If you don’t appreciate a commenter, skip them. No reason whatsoever to treat them like a carnival sideshow and/or point it out. Even the most articulate and informed here reveal their own weaknesses in their comments, but there is no need to point that out. Trolls excluded, of course.

    Dana (9a8f57)

  71. I will of course give way to Dana on this point.

    And I digress. If you’re thinking you’re having a hard day…

    http://sikhgurusandgurdwaras.info/wordpress/?p=1884

    …A full-scale war began with tribal groups attacking British-Indian outposts all over the NWF Province. Samana Ridge, Kohat and the Khurram Valley. These places were defended by the 36th Sikhs. The 36th Sikh Battalion was raised at Jalandhar in April 1887 under the command of Colonel Cook. On the morning of September 12, 1897 at about 9.00 AM, about 10,000 Afghans surrounded Saragarhi and took position within one thousand yards of the post and opened fire. Saragarhi was only a piquet with a signal tower which maintained the heliographic communication between the two forts. . All around the piquet was thorny scrub littered with large boulders, which provided cover to the tribesmen.

    The garrison in Saragarhi consisted of 21 men under the command of the Havaldar Ishar Singh.

    …The tower was manned by a solitary signaler Gurmukh Singh. Details of the Battle of Saraghari are considered fairly accurate, due to fact that Gurmukh Singh signaled all the events to Fort Lockhart as they occurred. Sardar Gurmukh Singh signaled to his Commanding Officer Colonel Haughton, located at Fort Lockhart, that they were under attack. Colonel Haughton stated that he was not in a position to send immediate help to Saragarhi. Later on, a few attempts were made to send a relief column from Fort Lockhart, but these attempts were foiled by the tribesmen.

    …Thus, these 21 Sikh soldiers were required to face the ferocious Afridi and Orakzai tribes of the Pashtun, numbering close to 10,000. The staggering ratio of 1: 416 stacked against the Sikhs was both unmatched and unprecedented, making their “last stand” at Saragarhi as the greatest odds faced by any troops in the history of warfare.

    If you think I’m making light of this, ask yourselves. Who of you knew of this?

    Steve57 (da4753)

  72. 70. Back in the day I thot ABBA a joke. Think it was the duds.

    I’ve decided to go with the Hi-Point 9mm and Hornady 135 gr. +P. I’m poor.

    gary gulrud (e2cef3)

  73. No shame in being poor, gary. Just keep your kitchen clean.

    Steve57 (da4753)

  74. on incorporation, i have read the debates. what they said–and we can only go by what they said–is that they were surprised to learn that the bill of rights didn’t apply to the states. maybe they meant “for the most part” because the first amendment pretty clearly doesn’t apply to the states, but that is what they said.

    But Bingham said (paraphrase) “no, Barron v. Baltimore says that the bill of rights doesn’t apply to the states.” Then he said clear as day that the current draft would but they never explained where.

    They weren’t sneaking anything, they were just being unclear. But Bingham made no bones about it: the 14th A incorporated the bill of rights. everyone was on notice and indeed many times the proposed amendment was attacked for this reason. This was not a surprise.

    But they never explained how it was doing so. which is where a person gets more reasonably hung up.

    i mean suppose i said, “this contract is to buy a car.” But the contract said, “Aaron shall buy one television set for $100.” well, obviously i can say whatever i want about the contract, but its a contract to buy a TV.

    But here we have a “contract” with some very vague terminology. And unlike contract law where vagueness can cause a clause to be inoperative, we don’t typically render constitutional amendments inoperative.

    To me the giveaway is that as interpreted now the privileges and immunities clause does so little that without the idea of incorporation it is a truly trifling thing.

    Then again, i thought barron v. baltimore was wrongly decided, so…

    Aaron "Worthing" Walker (23789b)

  75. If the BoR as written was meant to restrict actions of the States, there would have been no need for the 14th-A, as the restrictions placed upon Freedmen could have been dealt with under existing provisions.
    Since it seems the BoR did not apply (or was thought not to apply) it was deemed necessary to amend the Constitution to correct this matter.
    Then, as others have mentioned, SCOTUS further mucked things up with Cruikshank et al, forcing the Courts to fit everything into the Due Process & Equal Protection clauses.
    Slowly, as it was forced to do by events, SCOTUS incorporated the BoR against the Several States as required, turning a blind-eye on the utility of just declaring the process a slam-dunk, now it’s done, event.
    To paraphrase James Sasser:
    There’s just too much Stare Decisis goin’ on out there.

    askeptic (2bb434)

  76. Will anyone rid us of this silly twit?

    askeptic (2bb434)

  77. That “analysis” by the blog author is deficient even by government employee standards.

    Voting and not voting have consequences. The 2-1 panel split directly along party lines. The two judges who voted to strike down the “gun control” measures were nominated, respectively, by Reagan and W. Bush. The dissenting judge is a Clinton nominee. One layer of irony is that the W. Bush judge, Consuelo Callahan, who’s been a solid vote on what otherwise is the Ninth Circus, was the subject of shrill catcalls, jeers and spittle by the Savage/Levin/Malkin useful idiot brigades.

    If this case goes full en banc there’s little doubt the decision will be reversed. That in turn likely will send it up to the SCOTUS. Roberts went full retard on Obamacare, granted, but otherwise he hasn’t drifted all too much. It’s probable in this scenario that the SCOTUS will extend Heller and reinstate the panel decision as the law of the land. Hardest hit will be criminals and liberals.

    If Perot and his addled ilk hadn’t saddled the country with Clinton we’d be living today in a far different world. H.W Bush already had made his colossal mistake. There were no more bullets in that gun. The next SCOTUS nominee in a H.W. Bush 2nd term would have been Edith Jones. The female Scalia. The one after that would have been Raymond Randolph. Conservatives would have won 95% of all SCOTUS cases over the past two decades. Or more. Boggles the mind.

    Lawrence Westlake (4fc30a)

  78. R.I.P.
    Richard N. Cabela

    mg (31009b)

  79. askeptic…

    if the BOR applied to the states originally, we would have still needed a 14th A. just not as much as we did before.

    Aaron "Worthing" Walker (23789b)

  80. AW, I think that’s a position that can be defended.
    But, I believe that the over-arcing concern at the time of the writing of the Constitution was not the States’ power over individuals, but in ensuring that the new Federal Gov’t did not become over-powering.
    At the state level, one could always vote-with-your-feet; moving on to Canada or elsewhere was not an option for one who had fought for independence from The Crown. Therefore, I think that Mr. Madison et al were wishing to keep that genie in a bottle, so to speak, which is underlined by the statements of the States’ being individual laboratories of Democracy.

    askeptic (2bb434)

  81. That the First Amendment, at the very least, did not apply to the states is obvious from the language: it stated that Congress shall pass no laws on the prohibited subjects. That very specifically means federal legislation, not state.

    The Dana who sees the obvious (af9ec3)

  82. James Madison saw no need for a Bill of Rights at all, his position being that the Constitution did not give Congress the authority to legislate in those areas in the first place. He further objected, holding that if a Bill of Rights was necessary, than anything which should be a protected right which was somehow overlooked in adding a Bill of Rights would then become subject to federal authority.

    It was the arguments of the anti-federalists, Patrick Henry being the most famous of them, that a Bill of Rights was needed, which led to several states specifically asking for such amendments in their ratification documents, which pushed for the amendments in he first place.

    For Patrick Henry, his country was not the United States, but Virginia.

    The historian Dana (af9ec3)

  83. President I Can Do Whatever I Want gave yet another one of his global warming speeches in central California late last week, including advice on how folks should be careful about their water consumption.
    He then proceeded to fly down here to So Cal to spend the entire weekend playing golf in the desert.

    You know, to prove how concerned he is about the drought and responsible water consumption !

    Or whatever. Or something.

    Elephant Stone (6a6f37)

  84. if everyone thought the Bill of Rights applied to the states, why did states have established religions?

    Comment by Patterico (61a8ce) — 2/16/2014 @ 7:08 pm

    Virginia had this: http://en.wikipedia.org/wiki/Virginia_Statute_for_Religious_Freedom

    SarahW (267b14)

  85. 85: I think this concern, “…anything which should be a protected right which was somehow overlooked in adding a Bill of Rights would then become subject to federal authority…”, was covered by the 9th & 10th Amendments.

    askeptic (2bb434)

  86. 87- Why?
    Because right across the Potomac River was Maryland, which had a State Religion of Roman Catholicism IIRC.
    If the BoR applied to the Several States, it would not have been ratified by those states that had “established” religions.

    askeptic (2bb434)

  87. …the entire weekend playing golf in the desert…”

    That desert that is irrigated every evening by water from the Colorado River.
    Is that the desert you’re talking about?

    askeptic (2bb434)

  88. I was under the impression that the “no establishment of religion” pertains to Congress‘ power over the states, rather than each state’s power over its own jurisdiction.
    That might explain why some colonies/states did voice an ‘official’ religious denomination preference.

    Of course, nowadays, it means that you can’t say a non-denominational prayer before a high school football game without people freaking out that they’re being forced (!!!) into a particular religion.

    Elephant Stone (6a6f37)

  89. akeptic,

    Someone must have neglected to inform President’ You Didn’t Build That Irrigate That that those green golf courses in the California desert have to be watered.
    Like, even, during a drought. During global warming. Or something.

    Because if he had been told, I’m certain he wouldn’t have played golf at those courses in the barren desert.
    You know. Because he’s like all principled, and believes in what’s good for the goose is good for the gander. Or whatever !

    Elephant Stone (6a6f37)

  90. anything which should be a protected right which was somehow overlooked in adding a Bill of Rights would then become subject to federal authority.
    But the 9th and 10th Amendments dealt with that, surely.

    Kevin M (dbcba4)

  91. Well, non-denominational prayers are the worst offenders to both disestablishment and freedom of religion because they are an attempt at government-endorsed religion. Possibly heretical or even blasphemous. Certainly not canon. They might appeal to deists. On the other hand, they give atheists the vapors … “Tis an ill wind that blows no minds good”.

    nk (dbc370)

  92. One might want to take a look at the election of 1876, which by some accounts nearly restarted the civil war.

    The 14th Amendment, Reconstruction and State’s Rights were all wound up here, and when the election was inconclusive and unsalvageable a deal was cut that ended Reconstruction and settled the election in favor of Hayes, who had lost the popular vote to Tilden. After this point, the southern states were allowed to do as they wished wrt freedmen’s rights. By and by they came to Jim Crow.

    Kevin M (dbcba4)

  93. yes, but the back story behind that, was the Klan’s intimidation campaign, exactly in those three states, which were in play, during the election,

    narciso (3fec35)

  94. 73. …I’ve decided to go with the Hi-Point 9mm and Hornady 135 gr. +P. I’m poor.

    Comment by gary gulrud (e2cef3) — 2/17/2014 @ 9:50 am

    Can you afford a wrist rocket?

    http://www.youtube.com/watch?v=-6LxKfpAPYA#t=35

    Steve57 (da4753)

  95. 96. Definitely part of kiddo’s off core education.

    gary gulrud (e2cef3)

  96. No need to try this hard to make Failfornians feel better.

    http://www.thegatewaypundit.com/2014/02/in-a-surprise-move-taliban-behead-23-pakistani-soldiers-end-peace-talks/

    10 or 20 year’s of drought should be enough to change Amerikkkan’s destination.

    gary gulrud (e2cef3)

  97. 93. Psalm 137:8&9

    8:O daughter of Babylon, you devastated one, how blessed will be the one who repays you with the recompense with which you have repaid us. 9:How blessed will be the one who seizes and dashes your little ones against the rock.

    O Lord, we are content to wait, knowing that you are quick to Avenge your Holy Name. Burn, we implore You, Babylon with fire and raze its Abomination to the ground.

    Selah.

    gary gulrud (e2cef3)

  98. The National Journal has a solution to all our problems.

    I really hope I have given my children the critical thinking skills to not embarrass themselves.

    Ag80 (eb6ffa)

  99. From Ag80;s link:

    “Assuming 5% compound interest”…

    Riiiiight, let the magical thinking continue!

    felipe (6100bc)

  100. 104. Second.

    The kid owes what, $60K? Why hold back, toss in a package of Skittles.

    gary gulrud (e2cef3)

  101. Poor Normie, his math was only off by a factor of 10.
    He needs to have another beer with Cliff.

    askeptic (2bb434)

  102. #35 Patterico: The reason states could have established religions is because, unlike the other amendments, the first amendment is qualified by the words “Congress shall make no law..” Allowing the states to make such a law is the reason for the wording. Related to that, I’ve always thought that the belief that the Bill of Rights did not apply to the states until “incorporation” was a blatant fraud. It seems clear to me that the 2nd through 8th amendments always applied to the states also.

    Ken in Camarillo (2c0dee)

  103. Some have questioned why we needed the 14th amendment if the Bill of Rights (except #1) applied against the states. Passing the 14th amendment was NOT an acknowledgement that the B of R did not apply against the states; it was a realization that it was necessary to correct the courts erroneous interpretations of the Constitution (and those who used false interpretations to continue denying rights to freed slaves.

    The B of R are given as absolutes (except #1), and the Constitution has a federal supremacy clause, so there is no way to exempt the states from them.

    Ken in Camarillo (2c0dee)

  104. Ken wrote:

    The B of R are given as absolutes (except #1), and the Constitution has a federal supremacy clause, so there is no way to exempt the states from them.

    Actually, many of them are not written as absolutes; the Fourth Amendment protects the people from unreasonable searches and seizures, and requires warrants to be issued only for probable cause. So, who defines ‘unreasonable’ and ‘probable’? The Eighth Amendment prohibits excessive bail, excessive fines and cruel or unusual punishments; how are those defined?

    The Seventh Amendment:

    In Suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise re-examined in any Court of the United States, than according to the rules of the common law.

    I can easily read that to state that only the federal courts are prohibited from re-examination of a fact determined by a jury.

    The Dana who disagrees (3e4784)

  105. The Third Amendment states:

    No Soldier shall, in time of peace be quartered in any house, without the consent of the Owner, nor in time of war, but in a manner to be prescribed by law.

    I’ve never heard of any incorporation of the Third Amendment — was there ever a case? — so, in theory, Governor Tom Corbett, the Commander-in-Chief of the Pennsylvania National Guard, could order me to house a National Guard soldier, right? :)

    And, for Ken, who thought that the Amendments were written as absolutes, the Third clearly contains a provision which allows forced quartering during wartime, as long as the Congress passes a law specifying how this is to be handled.

    The nitpicking Dana (3e4784)

  106. Ordinary people understand both “unreasonable” and “probable”. It is how they make moment to moment decisions in their everyday lives. It is the militarized police state, with its Nazi-helmeted jackbooted thugs, its black-robed fascist lackeys, and its capitalist-crony prison industry, which tries to subvert and pervert the ordinary meaning of those words.

    nk (dbc370)

  107. Nitpicking Dana, Section 23 of the Pennsylvania Constitution. http://sites.state.pa.us/PA_Constitution.html Also, check out Section 21.

    nk (dbc370)

  108. It’s pretty obvious that ordinary people do not understand both reasonable and probable the same way. There are plenty of people who disagree as to whether, for example, George Zimmerman had a reasonable fear for his life when Trayvon Martin assaulted him, just as there are people who disagree on whether it was reasonable for him to have followed Mr Martin in the first place. (I picked a contentious issue on this site as an example, but there are plenty more.)

    When it comes to the Eighth Amendment, it’s clear that our impressions of what constitutes cruel and unusual have changed; hanging was common and accepted in the past, but today, even amongst people who support capital punishment, many favor lethal injection, because they’d rather put malefactors to sleep like an unwanted kitten rather than employ a method of execution of which the Framers were clearly aware and did not eschew.

    The blatantly obvious Dana (3e4784)

  109. They still understand the concepts (of “reasonable and “probable”), they simply reach a different judgment. Reasonable people can disagree.

    The Fourth Amendment does not protect the guilty, it protects the innocent. A search and seizure is unreasonable if the burden on the innocent population outweighs its legitimate governmental interest in bringing a criminal to justice. Apply that rule and you’ll be mostly more right than wrong. Unless you’re a blue-suited hot dog with a submachine gun just aching to kick a door down to capture a suspected drug dealer (who turns out to be a 93-year old woman peacefully dozing in front of her TV); or a warrant judge who owes his position to the fact he is a reliable rubber stamp for prosecution and the police; both counting on the reasonable presumption that most of that innocent general public that the Fourth Amendment is intended to protect will trade its freedom for a dish of potage “safe neighborhood.

    nk (dbc370)

  110. As far as the death penalty goes, forget it. Since Furman v. Georgia, it has gone so far outside ordinary jurisprudence that you could call it lawless. The way it is finally carried out is the least of its defects. Whether it is carried out at all has gotten to be so unpredictable, arbitrary and capricious that it shocks the conscience.

    But if you want to talk about lethal injection, look to see who is trying to deprive the states of the lethal drugs (Holder’s DEA for one hint) so the states will be forced to bring back the electric chair, the firing squad, the noose, or the gas chamber in order to make it more distasteful to the public.

    nk (dbc370)

  111. The Second Amendment’s militia clause is an example of horrible writing; it’s just useless padding.

    It’s not padding – it’s an explanatory clause, which for some reason they found necessary.

    But what that means though, is that the rest of the amendment, and the first clause, must be interpreted in such a way so that one “explains” the other.

    A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.

    Now the word “regulated” means trained, like a clock. Working together. Drilling. Acting in co-ordination.

    Militia is not like the way the National Guard Association persuaded Congress to define it in 1903, but it is aspeciic body – the same body of people now called the “National Guard.”

    It was protecting the right of “the people” to have an army. Both to store (keep) weapons and to train with them (bear) Nobody at the time would have thought about making illegal individual possession of weapons. And the point about the militia being “well-regulated” should make clear that the “keeping” and “bearing” are not acts of separate individuals.

    That is not to say that there might not be a righ to carry arms in self-defense, but that would one of the unenumerated rights alluded to in the Ninth amendment.

    Article [IX]

    The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

    Here people might mean people at large. The “people” have those rights, although they can give them away, but they in the meantime they retain them.

    Sammy Finkelman (8eda0c)

  112. Those boats have sailed, Sammy. The Second in Heller and McDonald, and the Ninth in Griswold and Roe v. Wade.

    nk (dbc370)

  113. Our knife-wielding Windy City barrister wrote:

    But if you want to talk about lethal injection, look to see who is trying to deprive the states of the lethal drugs (Holder’s DEA for one hint) so the states will be forced to bring back the electric chair, the firing squad, the noose, or the gas chamber in order to make it more distasteful to the public.

    That might not be a terribly wise tactic: I doubt that most people who support capital punishment would have much problem with hanging. Given that hanging was the typical form of execution when the Eighth Amendment was passed, the Framers clearly considered that to be neither cruel nor unusual.

    If the death penalty is going to have any deterrent effect at all — and I doubt that it does — then hanging should have more deterrent effect than putting a criminal to sleep like an unwanted puppy. And considering the crimes that “earn” felons the death penalty, hanging is almost always an easier way for the murderer to go than he gave his victims.

    The historian Dana (3e4784)

  114. Of course, the way we carry out capital punishment in this country is a sick joke. Other than a few places, a death sentence means that the murderer will die in prison of something other than execution. In Pennsylvania, where we have a huge death row population, only three men have actually been executed since the reinstatement of capital punishment, and all three effectively volunteered, by dropping their appeals.

    Every prosecutor in the Keystone State knows this, and they wind up pushing capital cases, not for any reasonable hope that the murderer will be executed, but simply to have his incarceration to be under the more restrictive controls of death row. This wastes untold millions of dollars.

    The Dana in Pennsylvania (3e4784)

  115. In Federalist number 80, published in the Saturday, June 21, 1788 Independent Journal,

    http://www.constitution.org/fed/federa80.htm

    Alexander Hamilton discusses, in passing, the privileges and immunities clause, where he describes it “that equality of priveleges and immmunities to which the citizens of the Union will be entitled,” saying because of that federal courts needed to hear cases between a state or its citizens and citizens of any other state.

    Sammy Finkelman (8eda0c)

  116. 53. Comment by The Dana who never went to law school

    At least as far as the original Framers were concerned, it seems as though they never anticipated Marbury v Madison.

    In Federalist number 78:

    http://www.constitution.org/fed/federa78.htm

    Alexander Hamilton writes:

    The complete independence of the courts of justice is peculiarly essential in a limited Constitution. By a limited Constitution, I understand one which contains certain specified exceptions to the legislative authority; such, for instance, as that it shall pass no bills of attainder, no ex post facto laws, and the like. Limitations of this kind can be preserved in practice no other way than through the medium of courts of justice, whose duty it must be to declare all acts contrary to the manifest tenor of the Constitution void.

    – Article in the Saturday, June 14, 1788 Independent Journal.

    Sammy Finkelman (8eda0c)

  117. Of course, the way we carry out capital punishment in this country is a sick joke. Other than a few places, a death sentence means that the murderer will die in prison of something other than execution. In Pennsylvania, where we have a huge death row population, only three men have actually been executed since the reinstatement of capital punishment, and all three effectively volunteered, by dropping their appeals.

    How does it compare to other countries, or even this country in the past?

    Michael Ejercito (906585)

  118. Also:

    In Federalist number 16,

    http://www.constitution.org/fed/federa16.htm

    Alexander Hamilton writes:

    If the judges were not embarked in a consp[iracy with the legislature, they would pronounce the resolutions of such a majority to be contrary to the supreme law of the land, unconstitutional, and void.

    - article in the Tuesday, December 4, 1787 New York Packet.

    But here he is talking about <i state judges declaring void state laws on the grounds they contradicted the federal constitution by (I think) nullifying some federal law.

    In Federalist number 34,

    http://www.constitution.org/fed/federa34.htm

    ….he gives an example of a possible unconstitutional federal law:

    Though a law, therefore, for laying a tax for the use of the United States would be supreme in its nature and could not legally be opposed or controlled, yet a law for abrogating or preventing the collection of a tax laid by authority of a State (unless upon imports and exports) would not be the supreme law of the land, but an usurpation of power not granted by the Constitution.

    - article by Publius in the Saturday, January 5, 1788 Independent Journal.

    The Federalist Papers mostly do not seem to have anticipated judicial overrulings, but something else, when and if congress attempted to exceed its alloted powers, like trying to nullify state laws, but in the end Hamilton seems to have come up with the idea.

    Sammy Finkelman (8eda0c)

  119. Comment by Sammy Finkelman (8eda0c) — 2/18/2014 @ 7:24 am

    Yup. Moreover, no power is vested in either the Congress or the Executive, in a Constitution of enumerated powers, to finally rule on the constitutionality of laws; and the Founders were well cognizant of the English common law system, which they expressly endorsed, in which judges not only interpret but make the law.

    nk (dbc370)

  120. How does it compare to other countries, or even this country in the past?

    Forgive me if I don’t give a hoot what other countries do. If I wanted a government like another country’s, I’d live in another country. (Message to Justices Kennedy and Ginsburg.)

    America, in the past, either executed someone quickly or told him it was not going to execute him quickly. I don’t have statistics at hand, but I’m confident it did not take seven years (the shortest) to thirty years.

    nk (dbc370)

  121. Odd, is it gun laws?

    http://www.zerohedge.com/news/2014-02-18/third-jpmorgan-banker-jumps-his-death-hong-kong-said-be-33-year-old-fx-trader

    This is the 6th financial splat this month, mostly jumpers. What’s wrong with a prescription OD?

    Is it the stigma?

    gary gulrud (e2cef3)

  122. “And in the First amendment, it clearly refers to a collective right.”

    52. Comment by The Dana who isn’t an attorney (3e4784) — 2/17/2014 @ 5:35 am

    It does? As though the freedom of speech is valid only to a collective of people, rather than an individual?

    Of course, the First Amendment isn’t written that way:

    Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

    Not freedom of speech. The right to assemble. Which, by its very nature, is collective. The word “people” only appears well down in the body of the amendment. I think there’s some pretending here that all petitions have the support of the people at large.

    Sammy Finkelman (3015b5)

  123. 127. Ignoring more stable advice, China executes almost anyone quickly. Ogabe’s chagrin to the contrary, he’s far safer here.

    gary gulrud (e2cef3)

  124. 117, 118. “The “people” have those rights, although they can give them away, but they in the meantime they retain them.”

    You keep using that word, ‘rights’. From whence do they evolve again?

    gary gulrud (e2cef3)

  125. 131. evolvedevolve, Doh.

    gary gulrud (e2cef3)

  126. This article could be better, but it’s still helpful, Sammy. http://en.wikipedia.org/wiki/Collective_rights

    Let’s make it simple. Whether you and I agree to get together for pizza and beer is an exercise by each of his individual right to assemble. When we do get together we are still each exercising our individual right to stay assembled and not leave. When we agree we’ll have a plain cheese and Bud, and then you place our order, as our designated spokesman, you are exercising our collective right to get what we want from the restaurant.

    nk (dbc370)

  127. This is the 6th financial splat this month, mostly jumpers.

    I’ve heard about upper-level employees of JP Morgan committing suicide in London, but this is the first one of them who’s based in Asia. There’s speculation — or idle chatter — that some of them may have been victims not of suicide but murder.

    This time in modern history is taking on an increasingly twisted, perverse, dark undertone, best exemplified by who we as a people and nation threw into the White House back in 2008.

    Mark (3739a8)

  128. “Assuming 5% compound interest”

    Comment by felipe (6100bc) — 2/17/2014 @ 9:31 pm

    Riiiiight, let the magical thinking continue!

    I’ve read somewhere that the stock market, over the long run (20 or 30 years) has an average return of 20% (if you do no churning)

    Here is Wikipedia saying something like that again: (except that the rate of return is put at 6.5% to 7% over inflation.)

    http://en.wikipedia.org/wiki/Stocks_for_the_Long_Run

    Stocks on the long term have returned 6.8% per year after inflation,

    It probably makes a great deal of difference when you start – and periods of permanent rises in stock prices don’t correspond too well to growth in the economy.

    Then there’s Warren Buffet.

    http://www.fool.com/investing/general/2013/05/02/25-surprising-facts-about-berkshire-hathaway.aspx

    2. If you had taken $10,000 back then [1964] and achieved the same rate of return as Berkshire’s growth in per share book value, at the end of 2012, you would have had $58,681,700.

    What does that work out to? We need the 48th root of 5.8681 – 1.00. I think that’s somewhere around 3% or 4% but Warren Buffet only really got going in the 1980s.

    Buffett realized he had committed too much of his money to a “terrible” textiles business, which he fought to save for 20 years before giving up. By Buffett’s estimation, that mistake cost him more $200 billion in compounded returns.

    What have we got here:

    http://www.rationalwalk.com/?p=12473

    Berkshire’s stock price has fluctuated significantly over the years, particularly since the financial crisis of 2008-2009. For the ten year period from December 31, 2001 to December 30, 2011, Berkshire appreciated from $75,600 to $114,755 for a total return of 51.8 percent, or 4.26 percent annualized. Over the same period, a popular exchange traded fund tracking the S&P 500 (SPY) rose from $114.30 to $125.50 while paying $21.88 in dividends representing a total return of 28.9 percent, or 2.57 percent annualized.

    One caveat here is that Warren Buffet is not going to stay in charge for that long in the future.

    Five percent is not unreasonable, if you do something like pick the 4 highest yielding dividend stocks (to guard against bad accounting, if for not other resson) in the Dow Jons Industrial Average and occasionally change stocks.

    Sammy Finkelman (3015b5)

  129. Some might say you are enforcing my individual right and yours to each eat and drink what each of us wants. Pa-tay-toe, pa-ta-toe.

    nk (dbc370)

  130. 135. Now let’s consider inflation since 1971 against a basket of foreign currencies.

    Without crony capitalism he’d probably have little to show for his tenacity.

    gary gulrud (e2cef3)

  131. 133, 136. I think we’ve located Hawking’s black hole.

    gary gulrud (e2cef3)

  132. 138. You know, the one where virtual realities, lost, apparently forever, to view can keep tunneling back out when you least expect them.

    gary gulrud (e2cef3)

  133. I have, on occasion, pined for the cure to our endangered liberties of a military coup usurping the antiChrist. Probably ill-considered.

    http://www.zerohedge.com/news/2014-02-18/ukraines-military-releases-armored-vehicles-and-fighter-jets

    Its on us, again.

    gary gulrud (e2cef3)

  134. Well, the Ukraine was never part of the Roman Empire, so the tribulation has to come from someone else.

    nk (dbc370)

  135. The bank run is on in Thailand.

    gary gulrud (e2cef3)

  136. #109 Dana: By absolute I wasn’t talking about the magnitude of a right; I was saying that whatever magnitude the right is, that right is absolute against any government agency, and in fact against any body. The 2nd through 8th amendments do not qualify the rights described as being effective only against actions by certain governments; they say you have that right. If you have a right recognized by the federal Constitution, then no government subject to the federal Constitution is allowed to violate it.

    What point is there for the Constitution to recognize your right to be free from unreasonable searches and seizures, if interpretation allows States to violate that right? Then it really isn’t a right, is it?

    Remember I’m not saying the right is unlimited. Any right is limited by the concept that you cannot exercise that right in such a way that you are depriving others of their rights.

    Ken in Camarillo (2c0dee)

  137. Ken in Camarillo,

    While your argument presumably reflects and supports your policy preferences, does it make sense that language from the Fifth Amendment would be repeated in the 14th (but now specifying that states were covered) if that language already covered states in the 5th?

    Patterico (9c670f)

  138. Patterico,

    Are you trying to imply that what the government says or does makes sense? By my reckoning and recent history, most laws, rules and regulations are poorly thought out, poorly written, inconsistent and seldom anticipate the many logical and obvious side affects that result. Can we really expect the original framers to have been so much better at this than every politician to follow has been?

    Easy Target (804124)

  139. The 14th amendment was not enacted to set slaves free, it was enacted to stop State governments from depriving ex slaves of their rights. Thus it made it more explicit that a State must honor the rights that a person has as a citizen of the federal government. My claim is: the Constitution did not need changing, and the 14th amendment should not have been necessary. However, intentionally incorrect interpretations of the Constitution (that rights recognized by the federal Constitution did not necessarily have to be recognized by the States) made the 14th amendment necessary. Sometimes it is easier to just do something that shouldn’t have to be done to correct a problem, when the source of the problem will not listen in good faith to reasoning.

    Ken in Camarillo (481b14)

  140. Aaron’s #1 says it very concisely: selective incorporation is wrong. B of R 2 through 8 applied to the States from day 1.

    Ken in Camarillo (481b14)

  141. 142. Comment by nk (dbc370) — 2/18/2014 @ 9:33 am

    Well, the Ukraine was never part of the Roman Empire, so the tribulation has to come from someone else.

    Don’t you know that Ukraine is Scythia, which is land of Magog to be ruled by a man named Gog..

    There is no Gog on the scene now.

    Sammy Finkelman (d22d64)


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