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Justice Thomas Breaks Silence: Tough Questions About Gun Rights

sudden valley gunner

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It was the courts that historically denied rights to groups of minorities who behind the curve then "grant" them.

This does not count as the courts being historically protective of rights.

Citizen is absolutely correct, the courts have historically eroded rights.

Even when they claim to rule for rights, instead of making it equal under law they enforce a form of inequality by forcing people to surrender person property rights so that others may have some........its like raping for chastity....doesn't work that way homebre.
 

utbagpiper

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It was the courts that historically denied rights to groups of minorities who behind the curve then "grant" them.
Examples where the courts have "historically denied rights to groups of minorities" in clear contradiction of the constitution?

Within our constitutional republic, the courts should not declare, invent, or discover new rights previously unrecognized. They should apply the constitution as written, as the words ere understood at the time they were written.

That said, one has to take a rather naïve and rose colored view of history to assert that we (minorities or majorities) are much worse off today than we were 200 years ago. Consider on the rights not enjoyed by blacks (slaves or freed), American Indians, Asians, or women in this nation. Remember that children were not much better than chattel to be worked, exploited, or abused as (the rare, bad) parent chose. Remember that while no religious test can exist for federal office, States remained free to not only require specific religious affiliation and activity, but also to levy general taxes to support a state religion. Some choose to do so.

As just a singular example: "Until 1835 the NC Constitution allowed only Protestants to hold public office. From 1835–1876 it allowed only Christians." And until the 1961 Torcaso v. Watkins SCOTUS case, it ban atheists from public office. (from footnote 5 at wiki article)

Miranda was not a pleasant person even before the arrest in his most famous case. I don't think there was ever any real doubt about his guilt, and his conduct following release from jail after his second trial and conviction (sans confession) for the rape and kidnapping is additional evidence to me of his guilt.

He also happened to be Hispanic and lower income. Yet the court used his case to greatly expand the (extra-constitutional) rights of criminal suspects

As an aside:
Interestingly, the dissenting justices had some strong words in the Miranda decision. You complain of the loss of property rights if a merchant is not allowed to deny services on the basis of race, religion, or other protected category. That loss of rights seems small in comparison to what Justice Byron White pointed out was a likely effect of Miranda:


In some unknown number of cases, the Court's rule will return a killer, a rapist or other criminal to the streets and to the environment which produced him, to repeat his crime whenever it pleases him. As a consequence, there will not be a gain, but a loss, in human dignity.

I'd put it this way: Our constitutional protections are intended to safeguard the rights of the wrongly accused, not to make it easier to commit crimes and escape punishment. When we exceed proper constitutional protections out of an unhealthy distrust of government such that it is too difficult to get convictions, we endanger the rights of every decent member of society.

(end aside)

It is not the courts, but the legislatures that have infringed our RKBA. In some early cases, the courts protected RKBA against obviously unconstitutional infringements. Admittedly, in too many other cases the courts have upheld bad laws attacking our RKBA. But I don't recall the courts attacking our RKBA. I recommend Clayton Cramer's short essay, "The Racist Roots of Gun Control" for a fine read. Freely available and easily found online.

On the flip side, we do have a few cases of the courts grossly infringing on one person's rights in the name of protecting invented rights of another person. I think Roe v Wade is the obvious example as the unborn's very humanity is ignored in favor of some federal right to an elective abortion found in the penumbra of the right to privacy that is established in the written rights to be secure in our persons, papers, and effects against unreasonable search and seizure.

Interestingly, I suspect that you would disagree with me about Roe being a case limiting rights, and would instead view it as a protection of a woman's right.

Bottom line, anti-government emphatic assertion isn't really very compelling.

I think solid examples do a much better job of making the case.

Charles
 
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Citizen

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Examples where the courts have "historically denied rights to groups of minorities" in clear contradiction of the constitution?
<chuckle>

Oh, you must mean besides Plessy vs Ferguson.

And, not shooting down the fugitive slave laws.

And, state courts not shooting down manumission.

And, state courts not shooting down laws denying arms to even freedmen.

And, the right* of women to vote which didn't occur until 1920.

And, bank depositors who were not share-holders to be restored to their deposits even if it meant the bank going out of business.

And, even the marginal producers being afforded the right to earn a living, instead of being the first level of victims of government machinations in the economy.

And...

Etc., etc., etc.

You must mean besides that long list. That very long list of people sold out by the courts in support of a government who was passing laws at the expense of one group (always in the minority) in order to pander to another.


*Since women comprise half--roughly--of the population, they are arguably not a minority. But, c'mon. If the courts didn't stand up and shoot down disenfranchisement of half the population, it doesn't take much thought to guess that there are tons and tons and tons of other less-than-majority groups the courts sided against.

Disclaimer: this is definitely not to say that I hold a right for anyone to vote. I am merely using the arguments of the pro-government crowd within their own context. I hold that a so-called "right" to vote is not a right but a power. And, nobody but nobody has the power to vote to inflict government on another peaceful equal who did not give his express individual consent to be governed by another.
 
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Citizen

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SNIP Within our constitutional republic, the courts should not declare, invent, or discover new rights previously unrecognized.
And, with that he dispenses with the 9th Amendment. Gone. Deleted.

"The enumeration in the constitution, of certain rights, shall not be construed to deny or disparage others retained by the people." Only "recognized" rights count in Utbagpiper's view.

https://www.law.cornell.edu/constitution/ninth_amendment

Only previously "recognized" rights count. Recognized, as in, recognized by government--the very people rights are intended to restrain. Yeah, suuuuuuure.

One does wonder how, just for one example, in a system made very complex by the machinations of rights-deniers, he would ever overturn a wrong decision. Lets say Plessy v Ferguson. SCOTUS decidedly refused to recognize the rights of blacks. Officially, their rights were not only not recognized, but expressly un-recognized (denied). Now, this is just one example. But, the principle holds: their rights were not recognized. So, he would have us believe that their rights should have never, ever been recognized because, quite simply, after express un-recognition, their rights would have to be "discovered" (his word). According to him, any court should have denied Rosa Park's right to sit down on that bus.

But, his view is even worse. One of the concepts of law is something called equity. One of the meanings of equity includes the general concept that the law cannot envision every circumstance. It cannot take into account every situation. So, judges are empowered (in a broad, general sense) to rectify inequities brought about the failure of the law to anticipate all circumstances. That's just a fancy, long-winded way of saying judges are allowed to make just decisions where applying the law as written would result in an injustice. That's why their called judges, dang it.

But, Utbagpiper just shot down, destroyed, nullified, and erased the power of judges to rectify the inability of the law to anticipate every set of circumstances. which is just another way of saying the rights of the individual are senior to the law. No. Only "recognized" rights count in Utbagpiper's view.

Moreover, Utbagpiper's view would force every decent judge to rule against his conscience--his view of equity. Utbagpiper's view turns judges into slaves of the law, rather than allowing them to be judges of how best to apply or not apply the law to the individual brought before him to face the awesome power of the state based on the law and their "recognized" rights.

Please do understand that Utbagpiper's view means that no judge anywhere can decide a case even on human decency--on all those rights we instinctively know we should grant another, but never ended up being written down in the law.
 
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utbagpiper

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<chuckle>

Oh, you must mean besides Plessy vs Ferguson.


And, not shooting down the fugitive slave laws.

And, state courts not shooting down manumission.

And, state courts not shooting down laws denying arms to even freedmen.

And, the right* of women to vote which didn't occur until 1920.

And, bank depositors who were not share-holders to be restored to their deposits even if it meant the bank going out of business.

And, even the marginal producers being afforded the right to earn a living, instead of being the first level of victims of government machinations in the economy.

With the exception of not overturning infringments on RKBA, it appears you want activist courts who invent rights not yet recognized by society, or to even act contrary to the constitution (which, sadly, explicitly permitted and protected slavery for the first ~70 years of our nation's history).

I fully conceded in my post that the courts have not actively advanced minority (or even majority) rights in many cases where maybe they could have. That is quite different than the courts being a "net loss over time" from "Far more small and large decisions that confirmed some expansion of government, or passed up an opportunity to hold the line." Indeed, your list nary addresses any expansion of government, but instead complains about courts not taking an activist role to advance (what you, and in some cases even I, see as) rights beyond where the people via their legislative and executive officials have confirmed.

But in asking for an activist court, you ask for what you don't really want. One can only imagine your response if the courts were to declare a federal constitutional right-to-life for the unborn that undid Roe. Neither of us want 5 lawyers to decide which desires are rights vs which are not. That is a job for the body politic as a whole via constitutional amendments at either the federal or State levels.

Disclaimer: this is definitely not to say that I hold a right for anyone to vote. I am merely using the arguments of the pro-government crowd within their own context. I hold that a so-called "right" to vote is not a right but a power. And, nobody but nobody has the power to vote to inflict government on another peaceful equal who did not give his express individual consent to be governed by another.
Sorry, but your disclaimer is bunk. If you have to reach to examples to support your position, which undermine another of your positions, then own your inconsistencies.

You chose to lash out against the courts with your usual anti-government screed. I gently called you on it. And your response doesn't even materially address your original claims. Moving of goal posts here, Citizen.

Remember, your claim was that the courts had been a "net loss over time" for minority rights.

You've utterly failed to address how much better off blacks, AmerIndians, Asians, women, and children are today, than they were 200 years ago relative to judicial (and general social) respect for their rights. Even if I conceded every case in your list above, that still isn't a "net loss over time" as corrections were made with subsequent decisions, legislation, and/or constitutional amendments.

If you're going to make blanket assertions like "net loss over time" either be prepared to defend those assertions civilly (the <chuckle>s and other expressions of utter disdain for any who don't fully agree with you contribute nothing positive), or to admit that you can't. Stop moving the goal posts.

"net loss over time".

Examples please.

Charles
 

utbagpiper

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I see you are again engaging in your adolescent and puerile machinations of attempting to deny me humanity by not addressing me directly.

Your tag line claims you hold me as an equal. Yet you cannot bring yourself to even address me; instead referring to me only in the third person. You cannot even be true to your own claims. You do not hold me as an equal.

Oh well. I guess self-consistency is not required.

And, with that he dispenses with the 9th Amendment. Gone. Deleted.
Nope. And I really wish you'd be civil enough not to put words in my mouth (or keyboard as the case may be). Certainly your position is strong enough to stand without creating strawmen to gallantly knock over.

The challenge with the 9th amendment is it leaves entirely open to debate what is or isn't a right.

Do the unborn have a 9th amendment right to be born? How do we determine this objectively, Citizen? One simple case. Address it if you can, and we can move on to 1,000 other claimed rights, including the "right to healthcare".

You and I will agree in many cases, disagree in a few. But how do courts reach objective conclusions without simply imposing the will of a few judges on all of society?

The 9th amendment doesn't disparage or preclude other rights, but neither does it spell them out as having been agreed on.

Do you really want the courts (or any branch of government) to be the arbiter of what is or isn't a right?


Only previously "recognized" rights count. Recognized, as in, recognized by government--the very people rights are intended to restrain. Yeah, suuuuuuure.
Again, your use of sarcasm is adding nothing civil or productive to the conversation.

You evidence a fundamental misunderstanding of the constitution. It is not the government that controls that document, but the people. The government didn't recognize our RKBA, freedom of religion, freedom of the press, the right to be secure in our person and papers, or the right to access counsel and compel witnesses to our defense. These are not gifts from government.

Those words exist in the Constitution because the people put them there. We can add additional rights via either the congressional method or the direct convention method. In either case, a super majority of States--either via popular ballot, or via legislators elected by the people--must approve the change.

The Bill of Rights (and some subsequent amendments) is what We the People have explicitly recognized as rights. Notably, most of those rights are protections of the accused against the power of government to fine, imprison, or otherwise punish. But in total, it is the short list of those rights that we agree are actually rights, nationwide.

One does wonder how, in a system made very complex by the machinations of rights-deniers, he would overturn a wrong decision. Lets say, Plessy v Ferguson. SCOTUS decidedly refused to recognize the rights of blacks. Officially, their rights were not only not recognized, but expressly un-recognized (denied). Now, this is just one example. But, the principle holds: their rights were not recognized. So, he would have us believe that their rights should have never, ever been recognized because, quite simply, after express un-recognition, their rights would have to be "discovered" (his word).
Again, you are uncivil and insulting by putting words in my mouth that have never been there. Also with accusations of "rights-deniers." Surely you can make your point civilly, without personal insults.

I fear you have mischaracterized Plessy. Where did it un-recognize rights? Yes, the ruling is offensive and wrong. But it was based on equality being possible with separation. Do we not continue this today with gender-segregated restrooms, dressing rooms, and single-sex dormitories available at colleges?

It was a wrong decision because it failed to protect true 14th amendment equality as intended for blacks by accepting the false myth that racially separate could be equal. Indeed, Plessy is not an example in support of your cause, but an example against it. Judges allowed their personal views about social mixing of the races, miscegenation, over-power their clear 14th amendment duty. The constitution was subordinated to their conscience.

It is what activist anti-RKBA judges do when they ignore the black letter of the 2nd amendment and instead prattle on about public safety as they invent excuses to permit infringements of our enumerated rights. These same liberal liars never seem to worry about public safety when an OJ walks free over a "technicality." You know what a "technicality" is? It is a constitution protection that might shock a few consciences, but must be respected to defend all of our rights.

Talk about a man receiving a grossly unjust sentence for a minor offense and I'll support a judge using his conscience. Even better, I'll suggest that sentencing should be much more in the hands of a jury whose job it is to act as the collective conscience of the community.

But speak of major social policy changes, matters of public policy, and whether to overturn or sustain a law, and I want judges bound down strictly by the constitution.

Moreover, Utbagpiper's view would force every decent judge to rule against his conscience--his view of equity. Utbagpiper's view turns judges into slaves of the law, rather than allowing them to be judges of how best to apply or not apply the law to the individual brought before him to face the awesome power of the state based on the law and their "recognized" rights.

Please do understand that Utbagpiper's view means that no judge anywhere can decide a case even on human decency--on all those rights we instinctively know we should grant another, but never ended up being written down in the law.
And so when 5 SCOTUS justices decide that their conscience demands equity for the unborn, you will herald that decision as an appropriate exercise of judicial power at the federal level? After all, the 9th amendment protects the unenumerated rights of the unborn to be born rather than be terminated for reasons of mere convenience. To rule any other way would shock the conscience of many in our society.

What Citizen proposes here, in his desire to attack me, is that judges be unrestrained from the law and constitution. I prefer that judges, like legislators and executives, be bound down by the chains of the Constitution.

If we all instinctively agree that certain rights are due one another, then we are not likely to pass legislation that violates such rights. We would certainly commit such rights to writing, giving them the full force of constitutional protections at either State or federal levels. If we fail to do that, should a judge or 5 save us from our complete failings, as perhaps some want them to save us from bad electoral decisions?

Your problem here, Citizen, is that you are attempting to argue that a system you hold in utter contempt should function in a certain way, which even if it did, you'd still hold it in utter contempt. It leads to all kinds of contradictions, misinterpretations, and inconsistencies. You'd do better, I think, to tell us what alternate system would work better, and provide examples of it working better than what we have today.

Charles
 
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OC for ME

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In criminal law, the state often takes very damaging actions against people pending trial, with only limited procedural safeguards. Arrest and search require, at most, that police satisfy a judicial officer, a magistrate, that they have reasonable grounds to act; the person they are going to act against has no right to be present at the time. Detention pending trial requires no more than a showing of “probable cause,” and the person who is going to be detained has no right to present witnesses or ask questions of the persons who present evidence for the state. The result may be time in jail, disrupted families, terrible damage to reputation, the loss of a job.

https://www.law.cornell.edu/wex/due_process
The courts have eroded our enumerated rights to the point that their infringement by the state is seen as reasonable by default unless we can prove that state action against us was unreasonable. Terry v. Ohio is proof of this.

The case that seems to have prompted Justice Thomas.
Ten years later, my reaction is the same as it was at the time: truly horrible. Justice Stevens and the Supreme Court were tone-deaf as to what moves people in dealing with property. Of all the cases decided since the year 2000, Kelo may not be the most important; ironically, it certainly was not the most controversial. But hands down, it was the decision that got more people indignant than any other.

http://www.nationalreview.com/article/420144/kelo-eminent-domain-richard-epstein
The Kelo court redefined (further entrenched) the takings clause from public use to public benefit.
 

Dave Workman

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Thomas has always been a strong 2A supporter as it was written. He has expressed these sentiments before.

NRA and other so called 2A dropped the ball many times while Scalia was still with us. If a clear right to carry without permission had been established it would have been hard to overturn. These groups squandered the court for their own selfish purposes.
You seem to believe — now correct me if I'm wrong — that the NRA tells the high court which cases to review.
SAF tried to get review for at least three RTC cases that I know of (New York, New Jersey and Maryland), and the court declined all three. They were all very good cases, too.
Chief Justice Roberts is a guy who seems to like taking "baby steps" with court rulings. You're talking about a giant leap for mankind. I'd like to see such a case myself. It would mean I could relax and maybe go catch a trout or take a nap under a tree someplace. Ain't gonna happen, alas.

But that's not the NRA's fault, nor SAF's fault, nor anybody's fault.

http://www.examiner.com/article/jus...ce-and-what-he-said-has-powerful-implications
 
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