Enumerated Rights vs. Pernumbral Rights

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Jeerleader
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Enumerated Rights vs. Pernumbral Rights

Postby Jeerleader » Sat Apr 19, 2014 8:49 am

This is a spin-off from the Stevens thread but goes to challenge the supporting doctrine for how rights are secured

So, just to argue from a different angle, an angle that goes straight to rights cherished by the left, I would enjoy an anti-gunner's explanation of how Stevens' opinion of the 2nd Amendment (or the general anti-2nd agenda) meshes with the foundation for penumbral rights, where generalized "privacy' rights exist and how abortion, reproductive and sexual orientation rights are secured.

For those that do not know, the "origin" of those rights has been found in the "emanations" and "penumbras" of the rights expressly enumerated in the Bill of Rights, it also relies on the principle embodied in the 9th Amendment:



    "[The] specific guarantees in the Bill of Rights have penumbras, formed by emanations from those guarantees that help give them life and substance. See Poe v. Ullman, 367 U.S. 497, 516-522 (dissenting opinion).

    Griswold v. Connecticut, 381 U.S. 479 (1965)



Stevens has signed onto opinions that have cited and quoted and even quoted himself in opinions he has written, Harlan's famous dissent in Poe v Ullman. Justice O'Connor, quoted below, expressly elevated Harlan's dissent to the opinion of the Court (with which Stevens concurred):



    "Neither the Bill of Rights nor the specific practices of States at the time of the adoption of the Fourteenth Amendment marks the outer limits of the substantive sphere of liberty which the Fourteenth Amendment protects. See U. S. Const., Amend. 9. As the second Justice Harlan recognized:

      "[T]he full scope of the liberty guaranteed by the Due Process Clause cannot be found in or limited by the precise terms of the specific guarantees elsewhere provided in the Constitution. This `liberty' is not a series of isolated points pricked out in terms of the taking of property; the freedom of speech, press, and religion; the right to keep and bear arms; the freedom from unreasonable searches and seizures; and so on. It is a rational continuum which, broadly speaking, includes a freedom from all substantial arbitrary impositions and purposeless restraints, . . . and which also recognizes, what a reasonable and sensitive judgment must, that certain interests require particularly careful scrutiny of the state needs asserted to justify their abridgment."

    Planned Parenthood of Southeastern Pa. v. Casey, 505 U.S. 833 (1992)

Some questions for discussion:

How does Stevens' interpretation of the 2nd Amendment fit into the right to keep and bear arms being a link in the "rational continuum" of individual liberty protected from federal (and state) injury?

Can a right that is found to exist in the "emanations" and "penumbras" of the rights enumerated in the Bill of Rights be more respected, more vital and more secure than a right that is actually enumerated in the Bill of Rights?

Can an anti-gunner's hostility for the the 2nd Amendment and gun rights in general, actually call into question the legitimacy of securing the rights to abortion and other reproductive choices or even the gains made in LGBT rights?

.

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Re: Enumerated Rights vs. Pernumbral Rights

Postby Igor » Sat Apr 19, 2014 9:06 am

That is interesting analysis, but the reality is that most people or groups take an ala carte approach to individual rights, and don't necessarily apply any all-encompassing logic. By the time a person is mature enough to undertake constitutional analysis, they generally have a number of biases whicn have to be accounted for when formulating their theory.

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Re: Enumerated Rights vs. Pernumbral Rights

Postby rabble » Sat Apr 19, 2014 11:19 am

What do you call an anti-gunner who owns a gun?

An anti-gunner warmenist tree hugger abortionist feminazi!

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Re: Enumerated Rights vs. Pernumbral Rights

Postby snoqueen » Sat Apr 19, 2014 8:13 pm

Also, libtard. Just because I like saying it. Sounds like something expensive on the menu at a pretentious restaurant. I will be having the libtard of duck en brochette....

(In addition it is an anagram of drablit, which might or might not be a small arctic tern.)

And was he trying to spell penumbral in the subject line of this topic? Like the penumbra of a solar eclipse? Or maybe pernumbral has something to do with numbering per... well, per something. Per lorem ipsum dolor, for instance.

We will have to wait until he comes back Monday to ask him.

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Re: Enumerated Rights vs. Pernumbral Rights

Postby Huckleby » Sat Apr 19, 2014 10:20 pm

I would argue that the right to bear arms for personal defense exists in the penumbra. The wording of the second amendment is troubling to critical thinkers without a dog in the fight. What weapons does the 2nd guarantee an individual to possess? How on earth does the militia clause affect the type and purpose of those weapons?

The fallacy of the gun absolutists can be seen with this experiment: remove the militia clause from the 2nd amendment. How does that new wording change their interpretation of the amendment from a practical standpoint? The answer: not a bit. Their position already completely disregards the militia clause. This evidently is the one clause in the entire document that was put in extraneously.

The loony alarm also sounds when you hear a gun absolutist categorically dismiss Justice Stevens' dissent in the 2008 Supreme Court case that opened the door to NRA America. I am not qualified to analyse the minority opinion, but it was signed by 4 justices. That was a 5-4 decision. The gun nuts allow zero credibility to the analysis of 4 Supreme Court justices.

Many, not all, right wingers think their interpretation of the constitution is the correct, sanctified last word. Their view is the constitution, they own it; if the Supreme Court disagrees, why they erred. These are not serious people.

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Re: Enumerated Rights vs. Pernumbral Rights

Postby Jeerleader » Sun Apr 20, 2014 6:15 am

Igor wrote:That is interesting analysis, but the reality is that most people or groups take an ala carte approach to individual rights, and don't necessarily apply any all-encompassing logic. By the time a person is mature enough to undertake constitutional analysis, they generally have a number of biases whicn have to be accounted for when formulating their theory.


But that partitioning has no place in the actual enforcement of the Constitution, constraining government to the inherent limits of the compact.


    "As no constitutional guarantee enjoys preference, so none should suffer subordination or deletion. . . . To view a particular provision of the Bill of Rights with disfavor inevitably results in a constricted application of it. This is to disrespect the Constitution."

    Ullmann v. United States, 350 U.S. 422, (1956)


For the most part, people's consideration of the government powers vs citizen's rights dynamic is backwards. The question is not 'do I have the right'; the question is, 'does government have the power'?

We the People do not possess the right to arms because the 2nd Amendment exists; we possess the right to arms because We the People never surrendered any aspect of the right to government.

Put another way, we don't have the right to arms because of what the 2nd Amendment says; we have the right because of what the body of the Constitution doesn't say.

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Re: Enumerated Rights vs. Pernumbral Rights

Postby Jeerleader » Sun Apr 20, 2014 7:43 am

Huckleby wrote:I would argue that the right to bear arms for personal defense exists in the penumbra.


Then you are arguing against the foundational principles of the Constitution and the Supreme Court, applying the text and enforcing those principles.

You are arguing in direct opposition to the clear and unambiguous statement of the Court (quoted in the OP) that one of the "specific guarantees" of individual rights in the Bill of Rights is the "the right to keep and bear arms" and that since the right to arms is one of the "series of isolated points" called out as repelling government power, it is a starting point, comprising with the others the bare minimum of what defines "Liberty" and as such, is a inseparable component of the the "rational continuum" of Liberty that the Bill of Rights and the 14th Amendment protects.

Huckleby wrote:The wording of the second amendment is troubling to critical thinkers without a dog in the fight.


No it isn't, not when one understands and accepts the principle that the right to arms is a pre-existing right with no aspect of the right ever being placed into the hands of government.

Your definition of "critical thinking" demands we dismiss the entire philosophical foundation of the legitimacy of government powers, that all power emanates from the people and everything not conferred by the people is retained by them.

Your "critical thinking" demands we consider the 2nd Amendment as an allowance that 'gives back' to the people a limited, constrained, conditioned and qualified 'right' that the people never parted with.

Your thinking on the 2nd is anything but "critical", it is a tortured application of concepts completely foreign to the Constitution. . .

Huckleby wrote:What weapons does the 2nd guarantee an individual to possess? How on earth does the militia clause affect the type and purpose of those weapons?


That question has been long established by the Supreme Court. The criteria established by the Court tell us that to be protected by the 2nd Amendment the arm must be:


    A type of arm in common use by the citizens at the time of the Court's inspection.

    Of a type usually employed in civilized warfare / that constitutes the ordinary military equipment.

    Of a type that can be employed advantageously in the common defense of the citizens.


In Heller, SCOTUS only needed to use "in common use" to invalidate the DC handgun ban. When an law is challenged that bans "assault weapons", the other criteria will come into play and that law will certainly be invalidated by SCOTUS, using all of the criteria.

Huckleby wrote:The fallacy of the gun absolutists can be seen with this experiment: remove the militia clause from the 2nd amendment. How does that new wording change their interpretation of the amendment from a practical standpoint? The answer: not a bit.


I made three changes to your statement and it makes my point.

    The fallacy of the gun abolitionists can be seen with this experiment: remove the restrictive clause from the 2nd amendment. How does that new wording change the Supreme Court's interpretation of the amendment from a practical standpoint? The answer: not a bit.

The Court has been boringly consistent for going on 140 years that the right to arms is in no manner dependent upon what the 2nd Amendment says, for its existence.

Why you feel justified imparting conditioning and qualifiers on the right, by "interpreting" words --UPON WHICH THE RIGHT DOES NOT IN ANY MANNER DEPEND-- is, I'm sure, a question you will continue to ignore addressing.

Huckleby wrote:Their position already completely disregards the militia clause. This evidently is the one clause in the entire document that was put in extraneously.


The declaratory clause, if you desperately need it to mean something besides simply being a declaration of principle, (stating a maxim of the republic), just tells us why the 2nd Amendment exists, why it was demanded that the federal government promise to never touch the citizen's pre-existing right to arms.
Last edited by Jeerleader on Sun Apr 20, 2014 9:08 am, edited 3 times in total.

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Re: Enumerated Rights vs. Pernumbral Rights

Postby Jeerleader » Sun Apr 20, 2014 9:02 am

Huckleby wrote:The loony alarm also sounds when you hear a gun absolutist categorically dismiss Justice Stevens' dissent in the 2008 Supreme Court case that opened the door to NRA America.


Have you ever read Stevens' dissent?

Did you know that Stevens opens his opinion with the statement that:



    "The question presented by this case is not whether the Second Amendment protects a “collective right” or an “individual right.” Surely it protects a right that can be enforced by individuals. But a conclusion that the Second Amendment protects an individual right does not tell us anything about the scope of that right."​



The equivocation in Stevens statement is despicable and unworthy of a Supreme Court Justice.

He stipulates that the right protected by the 2nd Amendment is an "individual right" but then he immediately dismisses the fundamental concept of limited powers that makes a "right" a "right" (exception of powers never granted).

He begins his analysis, not to tells us what the right is, he begins to examine "[t]he text of the Amendment" to discover the "scope" of the right - in other words, he moves immediately to find limits on the right supposedly created by the text of the 2nd Amendment, in direct opposition to the Court's longstanding statement that:

    "the right of the people to keep and bear arms is not a right granted by the constitution. Neither is it in any manner dependent upon that instrument for its existence."

So, by the 2nd paragraph we can just dismiss Justice Stevens' dissent as a pathetic misconstruction, at odds with the fundamental principles of this nation and Supreme Court precedent.

Huckleby wrote:I am not qualified to analyse the minority opinion, but it was signed by 4 justices.


Well, actually there were two dissenting opinions each joined by the other three minority Justices. The other dissent was written by Justice Breyer. LINK

Huckleby wrote:That was a 5-4 decision.


Well, using your style of critical thinking doesn't two dissents with four Justices each, make Heller a 5-8 decision? :crazy:

Huckleby wrote:The gun nuts allow zero credibility to the analysis of 4 Supreme Court justices.


Analysis? Correct, I apply zero credibility to the analysis of the dissents. . .

Breyer, early in his dissent states:

    "In interpreting and applying this Amendment, I take as a starting point the following four propositions, based on our precedent and today’s opinions, to which I believe the entire Court subscribes:

      (1) The Amendment protects an “individual” right—i.e., one that is separately possessed, and may be separately enforced, by each person on whom it is conferred. See, e.g., ante, at 22 (opinion of the Court); ante, at 1 (Stevens, J., dissenting).
    "

So Breyer (with Ginsberg, Souter and Stevens signing on) says that the "individual right" interpretation is in alignment with all three Heller opinions and the precedent of the Court.

I agree totally with that basic statement of fact and I have been arguing that with consistency.

What I disagree with are the analysis the dissents undertake after admitting that undeniable truth.

For Stevens it is inventing and applying conditioning on the right by interpreting words that the right does not depend upon.

For Breyer, it is advancing a standard of scrutiny that has never been applied to an enumerated right and if applied, would irreparably harm the entire concept of rights protection the Court has embraced for over 200 years.

In the final "analysis", what you need to accept is that the theory that, "the 2nd is just a right for the militia" is dead.

What "your side" has been reduced to arguing is what's commonly called the "militia conditioned individual right". That theory amounts to just the last shreds of flesh that remain on the skeleton of the 'militia right" and "state's right" interpretations that were invented in the federal courts in 1942.

As Stevens says, the question of, "whether the Second Amendment protects a 'collective right' or an 'individual right'" is dead and buried.

As for you not being qualified to analyze the Supreme Court's determinations, either you catch up quick or people like you should keep your ignorance to yourself and stop misrepresenting what the Constitution says and what the case law is, just to blindly support an anti-Constitution gun control agenda demanded by your political allegiances.

Constitutional discussions should not be reduced to being political disagreements. Your positions are either in alignment with the Constitution or they are not.

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Re: Enumerated Rights vs. Pernumbral Rights

Postby peripat » Sun Apr 20, 2014 9:16 am

Fortunately for all of us, words, concepts, expectations- as well as the available goods and services- all change over time and we are not stuck in a bubble of 1790 or 1856 or 1959.

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Re: Enumerated Rights vs. Pernumbral Rights

Postby Huckleby » Sun Apr 20, 2014 10:14 am

peripat wrote:Fortunately for all of us, words, concepts, expectations- as well as the available goods and services- all change over time and we are not stuck in a bubble of 1790 or 1856 or 1959.


That's a double edged sword. The activist Roberts court has concocted new interpretations that are impractical for the 21st century. Campaign spending without limit or transparency, a gun in every pocket.

Actually, I don't think any societal harm has been done by the 2008 SC decision on guns. It doesn't bother me that people have a constitutional right to keep guns for personal protection. I'm more concerned about the political momentum that the decision gives to the hardliners. It's the quack notion that people need arms powerful enough to counter the U.S. Army that muzzles reasonable regulation.

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Re: Enumerated Rights vs. Pernumbral Rights

Postby Jeerleader » Sun Apr 20, 2014 8:44 pm

Huckleby wrote:
That's a double edged sword. The activist Roberts court has concocted new interpretations that are impractical for the 21st century. Campaign spending without limit or transparency, a gun in every pocket.

Actually, I don't think any societal harm has been done by the 2008 SC decision on guns. It doesn't bother me that people have a constitutional right to keep guns for personal protection. I'm more concerned about the political momentum that the decision gives to the hardliners. It's the quack notion that people need arms powerful enough to counter the U.S. Army that muzzles reasonable regulation.


Heller did not upset, alter, disturb or overturn any SCOTUS precedent.

SCOTUS has never entertained, embraced or endorsed any aspect of any collective right interpretation.

If you want to blame a Supreme Court decision for holding that "distinctly military arms, such as machine guns, trench mortars, anti-tank or anti-aircraft guns" are protected arms for the citizenry to possess and use, try US v Miller.

A lower federal court gave us a hyperbolic but -on-the-law- correct analysis of US v Miller but only to justify ignoring and dismissing SCOTUS, to avoid the obvious ruling in the case before them and thus essentially calling into question nearly all federal gun control at the time.

The 1st Circuit said just 3-1/2 years after US v Miller:

    "if the rule of the Miller case is general and complete, the result would follow that, under present day conditions, the federal government would be empowered only to regulate the possession or use of weapons such as a flintlock musket or a matchlock harquebus. But to hold that the Second Amendment limits the federal government to regulations concerning only weapons which can be classed as antiques or curiosities,-- almost any other might bear some reasonable relationship to the preservation or efficiency of a well regulated militia unit of the present day,-- is in effect to hold that the limitation of the Second Amendment is absolute.

    Another objection to the rule of the Miller case as a full and general statement is that according to it Congress would be prevented by the Second Amendment from regulating the possession or use by private persons not present or prospective members of any military unit, of distinctly military arms, such as machine guns, trench mortars, anti-tank or anti-aircraft guns, . . ."

    Cases v. U.S, 131 F.2d 916 (1st Cir. 1942)

In the opposite of what you believe, Scalia in Heller actually relieved Miller's machine gun / 2nd Amendment link by stressing Miller's "in common use" criteria:



    "We may as well consider at this point (for we will have to consider eventually) what types of weapons Miller permits. Read in isolation, Miller’s phrase “part of ordinary military equipment” could mean that only those weapons useful in warfare are protected. That would be a startling reading of the opinion, since it would mean that the National Firearms Act’s restrictions on machineguns (not challenged in Miller) might be unconstitutional, machineguns being useful in warfare in 1939.

    We think that Miller’s “ordinary military equipment” language must be read in tandem with what comes after: “[O]rdinarily when called for [militia] service [able-bodied] men were expected to appear bearing arms supplied by themselves and of the kind in common use at the time.” 307 U. S., at 179. The traditional militia was formed from a pool of men bringing arms “in common use at the time” for lawful purposes like self-defense. . . . Indeed, that is precisely the way in which the Second Amendment ’s operative clause furthers the purpose announced in its preface. We therefore read Miller to say only that the Second Amendment does not protect those weapons not typically possessed by law-abiding citizens for lawful purposes, such as short-barreled shotguns. That accords with the historical understanding of the scope of the right."

It's funny, you feel that Scalia broke the bindings on military gun ownership and now it's a free-for-all; I see him reining in the possibility of that right ever being upheld and affirming the NFA-34's regulations on full autos.

So,who's correct on the law?

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Re: Enumerated Rights vs. Pernumbral Rights

Postby johnfajardohenry » Mon Apr 21, 2014 9:37 am

Huckleby wrote:What weapons does the 2nd guarantee an individual to possess? How on earth does the militia clause affect the type and purpose of those weapons?


Up until relatively recently, it allowed an individual to possess pretty much any kind of weapon.

When I was in HS, in 1965-66 there was a big army surplus store over in Alexandria VA. They seemed to specialize in wholesale, the sort of place you might go to equip an insurgent army, but sold retail as well. They had a huge parking lot full of cannons (as well as Jeeps, trucks and the like) Anyone could buy one, no questions asked. A couple of my buddies and I once went and kicked the tires on a 37mm anti-tank cannon like this one.

Image

ISTR it was around $750 or so which was more than any of us could come up with. Our parents, at least mine, were not too thrilled with the idea either.

But, had we been able to come up with the money and a place to put it, we could have bought it. We could have bought shells for it too, though I have no idea what we would have done with them. (Yeah. That's just what we need. Some teenage boys, hopped up on Colt 45, with a 37mm cannon)

In upstate NY we had a neighbor who had a huge cannon in his front yard. Maybe a 75mm?

The first laws restricting personal ownership arms of any type were, I think, the laws on machine guns passed in the 1930's.

I think a case could be made that the 2nd Amendment permits any kind of arms for personal use.

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Re: Enumerated Rights vs. Pernumbral Rights

Postby johnfajardohenry » Mon Apr 21, 2014 9:52 am

Jeerleader wrote:It's funny, you feel that Scalia broke the bindings on military gun ownership and now it's a free-for-all


I am guessing that you really mean "scary looking" guns like the AR15 there.

In any event, more than twice as many people were murdered with fists, in 2012, than with all types of rifles.

About 5 times as many were murdered with "other weapons" in 2012

About 6 times as many were murdered with "knives or cutting instruments"

http://www.fbi.gov/about-us/cjis/ucr/cr ... /cius_home

Just to give you a bit of perspective.


John Henry

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Re: Enumerated Rights vs. Pernumbral Rights

Postby Huckleby » Mon Apr 21, 2014 2:56 pm

johnfajardohenry wrote:I think a case could be made that the 2nd Amendment permits any kind of arms for personal use.


Yes, and this attitude is exactly the problem with the gun extremists.

The career debaters disingenuously say that they support limits on weapon ownership in principle, while they oppose every modest attempt at regulation in practice. The old slippery slope argument.

Our country has been damaged by the gun rights people. They have everything their insane way, yet they continue with the paranoid victim hood. Getting rid of those high-capacity weapons is only a slice of the solution to gun problems, but it is one necessary step.

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Re: Enumerated Rights vs. Pernumbral Rights

Postby Henry Vilas » Mon Apr 21, 2014 3:16 pm

Those that oppose all gun regulations go by the motto of Live Free or Die. Unfortunately it is often the innocent that die. They are the collateral damage in the quest for FREEDOM.


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