Justice Kennedy to retire, Trump can solidify court's conservative majority

[Elkins45]

That’s the kind of thinking that will cost our guns. Committee chairs are determined by the party in power. The committee chair determines what bills get voted on

You seem to be confusing the Supreme Court with Congress. This discussion is about the Supreme Court.

 

[RPZ]

Chuck Schumer stated today that peoples' rights are at risk because of the retirement of Chief Justice Kennedy. Apparently he believes that people have "the right" to deny others their Constitutional rights , the Right To Bear Arms being a real good place to start.

As stated , elections have consequences. In this case , we get to keep the Constitution- AND our firearms!

Peoples' rights are at risk because of people like Chuck Schumer.

 

[rpenmanparker]

RKBA got lucky with Gorsuch. Roberts is still very much an unknown quantity in many cases. For that matter, so is Kagan, voting a few times with the conservatives.

Let’s hope we get lucky again with Kennedy’s replacement and also get a replacement for Ginsburg before 2020.

I hope we get a pro-2A justice, but more importantly I hope we get another originalist.

I don't understand your comment. An originalist view of the 2nd amendment would require militia service in order to own a gun or at least militia service because you owned a gun. If the court hadn't conveniently forgotten about that little detail, gun ownership in the USA wouldn't look anything like it does. Originalism is little more than reading the exact words that were written and understanding them as plain English. The militia thing is very hard to escape for a conscientious originalist. What does that say about our supposedly originalist court members?

 

[AlexanderA]

I thought that was settled in McDonald vs Chicago

You missed my point. Yes, the 2nd Amendment was "incorporated" against the states in the McDonald case, but the Court used the wrong rationale ("substantive due process" instead of "privileges and immunities"). Only Justice Thomas (in his concurring opinion) would have based the decision on the Privileges and Immunities Clause. This little detail makes a huge difference going forward. (This has to do with finally overruling the Slaughterhouse Cases, which the McDonald court was not willing to do.)

 

[Wisco]

I don't understand your comment. An originalist view of the 2nd amendment would require militia service in order to own a gun or at least militia service because you owned a gun. If the court hadn't conveniently forgotten about that little detail, gun ownership in the USA wouldn't look anything like it does. Originalism is little more than reading the exact words that were written and understanding them as plain English. The militia thing is very hard to escape for a conscientious originalist. What does that say about our supposedly originalist court members?

I don’t understand your comment either, so it seems we are both at a loss in understanding each other.

 

[AlexanderA]

I don't understand your comment. An originalist view of the 2nd amendment would require militia service in order to own a gun or at least militia service because you owned a gun. If the court hadn't conveniently forgotten about that little detail, gun ownership in the USA wouldn't look anything like it does. Originalism is little more than reading the exact words that were written and understanding them as plain English. The militia thing is very hard to escape for a conscientious originalist. What does that say about our supposedly originalist court members?

An originalist reads the exact words in their original context. You have to look at the militia system as it existed in 1791. The country's defense was entrusted to a universal militia, which included practically everybody who could bear a musket (obviously, at the time, this meant white, free, male adults). But in other words, the "militia" was synonymous with the "people." That original militia system had fallen into disuse by the time of the War of 1812, so today it's a theoretical construct. Nevertheless an originalist judge would interpret the 2nd Amendment in that light. Bottom line: to an originalist, the general public should be as well armed as the standing army. Certainly Scalia was not an originalist when he was writing in the Heller case.

 

[Carl N. Brown]

In pre- and post-Revolutionary East Tennessee, militia service was not a prerequisite to owning arms (guns, swords, tomahawks, knives, etc.)

A lot of folks who showed up for militia muster not only owned arms acceptable for military service, but also owned purely hunting arms, including fowling pieces (shotguns) and skinning knives, not particularly suited for military purposes. People not eligible for militia service also owned arms but there was no effort disarm them.
The right of the people to keep and bear arms provided a pool of citizens familiar with arms to make calling up a militia in time of need easier and quicker than spending a lot of time on basic marksmanship practice. Militia muster was mostly inspection of arms, drilling, and tactics. Squirrel and deer hunters need little target practice.

 

[WestKentucky]

I randomly looked up the tenure of the justices today, and was surprised at the tenure of some current and past judges. 30 years plus in many cases, which means a relatively young judge was apponted and they had a long life free of major health concerns that would cause retirement.

 

[AlexanderA]

A lot of folks who showed up for militia muster not only owned arms acceptable for military service, but also owned purely hunting arms, including fowling pieces (shotguns) and skinning knives, not particularly suited for military purposes. People not eligible for militia service also owned arms but there was no effort disarm them.
The right of the people to keep and bear arms provided a pool of citizens familiar with arms to make calling up a militia in time of need easier and quicker than spending a lot of time on basic marksmanship practice. Militia muster was mostly inspection of arms, drilling, and tactics. Squirrel and deer hunters need little target practice.

The Founding Fathers were idealists and theoreticians. They envisaged a system like that of ancient republican Rome, where the citizen-soldiers would be armed and ready to defend the state at a moment's notice. The reality turned out to quite different -- the militia musters in early America were seen as excuses for drunken parties. The system just didn't work as planned by the Founders, and it was reformed rather quickly. (It shifted to select, volunteer -- not universal -- units.) But that original vision can still serve as the basis for a modern interpretation of the 2nd Amendment.

 

[natman]

Be careful how "originalist" a justice you ask for. You might get one that says the 2A only protects the rights of land-owning white males between the ages of 21 and 65 to own matchlock and flintlock black powder guns.

This was thoroughly and specifically covered in Heller:

"Some have made the argument, bordering on the frivolous, that only those arms in existence in the 18th century are protected by the Second Amendment. We do not interpret constitutional rights that way. Just as the First Amendment protects modern forms of communications, ...and the Fourth Amendment applies to modern forms of search, ... the Second Amendment extends, prima facie, to all instruments that constitute bearable arms, even those that were not in existence at the time of the founding."

DC v Heller, page 8

 

[Hoxviii]

Kennedy was a swing vote in name only, this isn't nearly as big a deal as if Ruth had kicked it.

The court makeup won't really change unless trump nominates and the Senate approves a candidate that believes precedent doesn't matter.

 

[WestKentucky]

Realistically, RBG should be out soon. She very well may hold on until the next presidential election in hopes of a new president and approving board who would appoint a justice more in line with her way of thinking. Interesting thought though if she were to pass away or have health concerns to force her retirement in the current administration. We could certainly stand to see a little bit of common sense used in rulings, and it would be nice to see a SC who was not afraid to take cases which might be bad for public opinion. On the other hand, if we were to get our way with even a few small rulings then the public opposition and outcry might push us into full on street battles. I'm not so sure that they would still think guns are so bad if they started buying them to use against gun owners...But then they themselves would be gun owners...

 

[AlexanderA]

The court makeup won't really change unless trump nominates and the Senate approves a candidate that believes precedent doesn't matter.

This is a very valid point that sometimes we tend to overlook. It's hard to predict how a given candidate will rule once he's seated as a justice. Remember that these are professional lawyers and judges, and they have a loyalty to precedent and profession that co-exists with any ideological bent that they may have. Also these are lifetime appointments, and once seated, they don't owe anything to anyone. We don't even really know how Gorsuch will rule in a 2nd Amendment case.

 

[JeeperCreeper]

Kennedy was a swing vote in name only, this isn't nearly as big a deal as if Ruth had kicked it.

The court makeup won't really change unless trump nominates and the Senate approves a candidate that believes precedent doesn't matter.

I agree with this.

I was under the assumption that Kennedy was mostly pro-2A. I'm glad we can get a younger justice in there, but I also don't think it will drastically change the court standings.

 

[Hoxviii]

Realistically, RBG should be out soon. She very well may hold on until the next presidential election in hopes of a new president and approving board who would appoint a justice more in line with her way of thinking. Interesting thought though if she were to pass away or have health concerns to force her retirement in the current administration. We could certainly stand to see a little bit of common sense used in rulings, and it would be nice to see a SC who was not afraid to take cases which might be bad for public opinion. On the other hand, if we were to get our way with even a few small rulings then the public opposition and outcry might push us into full on street battles. I'm not so sure that they would still think guns are so bad if they started buying them to use against gun owners...But then they themselves would be gun owners...

This has baffled me as well. Anti-trumpers are crying out about lack of respect for rule of law, and trump is actually wannabe dictator, all while supporting the parkland kids and screaming about how 2A is obsolete, while all of my "liberal" friends have asked me about gun ownership on the DL.

Because they don't want one, but what kinds of guns would I buiy if I was new to buying guns. Ya know. Just because. Oh, and where's the gun store?

 

[Hoxviii]

I agree with this.

I was under the assumption that Kennedy was mostly pro-2A. I'm glad we can get a younger justice in there, but I also don't think it will drastically change the court standings.

There's the thing, anyone trump nominates and the Senate approves will be as much 2A as Kennedy. The only thing Kennedy was fully "liberal" (I hate the words liberal and conservative, for how much they've been molested from their actual meanings) on was gay rights.

All the people on Trump's long list from the Gorsuch nom will be full 2a, can't say they'll all be full bill of rights as we've seen in 4A erosions and deference to police powers

 

[Aim1]

This was thoroughly and specifically covered in Heller:

"Some have made the argument, bordering on the frivolous, that only those arms in existence in the 18th century are protected by the Second Amendment. We do not interpret constitutional rights that way. Just as the First Amendment protects modern forms of communications, ...and the Fourth Amendment applies to modern forms of search, ... the Second Amendment extends, prima facie, to all instruments that constitute bearable arms, even those that were not in existence at the time of the founding."

DC v Heller, page 8

Never saw that. Very good.

 

[Bogart999]

Be careful how "originalist" a justice you ask for. You might get one that says the 2A only protects the rights of land-owning white males between the ages of 21 and 65 to own matchlock and flintlock black powder guns.

?

 

[Hoxviii]

This was thoroughly and specifically covered in Heller:

"Some have made the argument, bordering on the frivolous, that only those arms in existence in the 18th century are protected by the Second Amendment. We do not interpret constitutional rights that way. Just as the First Amendment protects modern forms of communications, ...and the Fourth Amendment applies to modern forms of search, ... the Second Amendment extends, prima facie, to all instruments that constitute bearable arms, even those that were not in existence at the time of the founding."

DC v Heller, page 8

But at the same time, since I was a young renter I've said that you should have to have positive equity in your land/home to vote.

I understood that I had no clue compared to people that actually paid into the system when it comes to voting.

So should the BOR only apply to landowning males? No.

Should the right to vote only apply to owners with positive equity? Yeah, I can argue that.

 

[Wisco]

Be careful how "originalist" a justice you ask for. You might get one that says the 2A only protects the rights of land-owning white males between the ages of 21 and 65 to own matchlock and flintlock black powder guns.

That person would be an idiot and not any originalist I’ve read.

Totally ignoring “the right of the people” and developments in technology...

Even the most strict amongst originalists don’t deny the personhood of other races or genders.

 

[rpenmanparker]

An originalist reads the exact words in their original context. You have to look at the militia system as it existed in 1791. The country's defense was entrusted to a universal militia, which included practically everybody who could bear a musket (obviously, at the time, this meant white, free, male adults). But in other words, the "militia" was synonymous with the "people." That original militia system had fallen into disuse by the time of the War of 1812, so today it's a theoretical construct. Nevertheless an originalist judge would interpret the 2nd Amendment in that light. Bottom line: to an originalist, the general public should be as well armed as the standing army. Certainly Scalia was not an originalist when he was writing in the Heller case.

No, to the true originalist, the passing of the militia from the scene could just as easily result in the passing of private gun ownership from the scene. The reason stated in the Constitution for gun ownership no longer being valid, so too would that ownership no longer be necessary. My point is that this stuff works both ways.

 

[rpenmanparker]

That person would be an idiot and not any originalist I’ve read.

Totally ignoring “the right of the people” and developments in technology...

Even the most strict amongst originalists don’t deny the personhood of other races or genders.

You can't have it both ways. You either want originalism or you don't. Or maybe you can have it both ways with a liberal-minded justice who is beholden to the law and not conservative dogma.

 

[rpenmanparker]

The Founding Fathers were idealists and theoreticians. They envisaged a system like that of ancient republican Rome, where the citizen-soldiers would be armed and ready to defend the state at a moment's notice. The reality turned out to quite different -- the militia musters in early America were seen as excuses for drunken parties. The system just didn't work as planned by the Founders, and it was reformed rather quickly. (It shifted to select, volunteer -- not universal -- units.) But that original vision can still serve as the basis for a modern interpretation of the 2nd Amendment.

Yes it can, but only if the interpreter is not a true originalist.

 

[rpenmanparker]

By and large, originalism is just BS, an excuse to justify rulings which totally ignore modern societal reality...when convenient.

My question is this. I know guns are important to us, but should they be the only thing that is? Is no other issue that might come before the court important? What about social justice? The role of money in our elections? And so many more? Single issue advocates seldom do the country or themselves any good as current events clearly demonstrate.

 

[ATLDave]

rpen’, the 2nd amendment grants the right to the people, not the militia. Militia membership was never a prerequisite to being covered. Being part of the people was the prerequisite. We are all still part of the people, and thus covered by the right, regardless of militia status.

I’m for justices who will protect individual rights. This includes, but is not limited to, the rights afforded by the 2nd.