on the 14th

[acroyear]

Recent analysis of the Chicago bill has been creeping out that as a precedent decision, it is increasing the reach of the 14th Amendment over the states (well, actually reasserting it to levels it originally had in the wake of reconstruction).  Conservatives therefore have mixed feelings over it, because on one hand, it salvaged their 2nd rights, but on the other hand, it strengthens the federal government.  Liberals also have mixed feelings, because on the one hand, their attempts to legally reduce gun possession in urban areas where they are most used by criminals and gangs were again foiled, but on the other hand it does reinforce the idea that the current court is unlikely to rule against them in the inevitable lawsuits over the health bill (which, I'm sorry Conservatives, is easily covered under the wide-stance reading of the Commerce Clause that has been the norm for the last 30 years or so).

Libertarians are similarly split, with "states rights libertarians" (the Ron Paul sort - yes, he is one) being just like the Conservatives: welcoming the freedom of possession but bemoaning the use of the 14th against the states.  In this, they have at least been consistent.

And, as I agree with Ed Brayton and others, consistently wrong.

The 14th is a powerful weapon against the states, but that is because it is primarily a powerful weapon against tyranny of the state governments.  The point of the 14th is to assert to the states that they are not, merely by the existence of the 10th Amendment, able to decide that all our other rights can be taken away at a whim, including (and especially in my opinion) freedom from religious establishment.  It correctly reasserts the original founder's intent that the 10th should put the rights of the people ahead of the states.

By showing that the current Court will give deference to the 14th (some Courts in the past have not), it also set the stage for the inevitable trials on DOMA and the multitude of state-level anti-gay-marriage laws and amendments.

[Update] Of course, in order to get anywhere they'll still have to get past Scalia and Roberts's insanely limited idea of "standing".

Comments

[thelongshot.livejournal.com]

Considering that I personally don't think prohibitions do much good in the long run, I think the court did a good thing by striking it down. Guns, like a lot of things in our society, is a reality many have to deal with, and prohibition is something that ignores the reality that there is no such thing. Those who want something will find a way to get it.

[acroyear70.livejournal.com]

my point wasn't on the specific prohibition, but that there are larger legal issues at stake, larger individual freedoms. If the court is consistent in applying it to religious issues (always a tricky one, and Scalia in particular is infamous for throwing the 14th out in his dissents) then that opens the door for a number of currently proposed legal challenges to laws including "no alcohol sales on Sunday" as well as the obvious gay marriage cases winding their way through.

[katrinb.livejournal.com]

Yes, but that's easy to say from the peaceful suburbs. I grew up in one of the areas of Chicago for whom the gun bans exist, and I have to say, it's a lot harder to talk about "realities many have to deal with" when that reality involves children and teenagers not surviving to adulthood on a regular basis.

We need to find better solutions, yes, but also keep remembering that real people are dying and will continue to die until we do.

And Joe, what on Earth makes you think this Court will be consistent when it comes to protecting people's rights other than gun rights? Somehow, as you say, the 14th amendment seems to disappear on religious issues, particularly those involving sex.

[acroyear70.livejournal.com]

on religion, only up to a point - with only 1 (ok, 2 when Kagan gets in) member different, this is the same court that overturned Texas's sodomy laws. The point is that it gives the plaintiffs against stupid laws a new precedent to work with to at least get the district courts to start changing things before the inevitable SCOTUS appeal.

[thelongshot.livejournal.com]

You are right that I don't know those realities, but given your reaction to where you grew up, did the gun ban make you feel safe? Did people stop dying because of that ban? Evidence seems to prove otherwise.

To be honest, most of your argument is beside the point. The city of Chicago can still enact legislation to control guns. They just can't prohibit ownership of guns due to the 2nd Amendment and backed up by the 14th Amendment. Even Daily Kos agrees. If you want to defend our civil rights, you should defend ALL of them.

[voltbang.livejournal.com]

There's that old saw about how insanity is doing the same thing and expecting a different result. The gun ban very clearly didn't help. The only two cities in the US with total gun bans are two of the most violent, and they didn't get any better for having that ban.

[katrinb.livejournal.com]

I suspect the violence caused the gun ban, rather than otherwise.

But I'm not arguing for gun bans here per se. I'm just saying that living in that kind of environment, it's easy to get desperate and grab at any kind of solution. It's not a matter of, "hey, let's grab people's guns so we can oppress them!" It's a matter of, "My son is dead. How can I help other mothers protect their kids?" The solution may be wrong - but the motivation is understandable.

And we DO need to find some sort of solution, or at least keep trying to work towards a solution, to inner-city crime and devastation of communities. (Personally, I'm more likely to favor, among other things, a repeal of the prohibition of drugs, along with their regulation and the ready availability of drug treatment options - getting rid of that dangerous black market might help ease violence, just as getting rid of alcohol prohibition and the ensuing black market did.)

[voltbang.livejournal.com]

Oh, yeah, I can see that. You lose someone to violence, or whatever, and you feel like you gotta do something.

I would agree about legalizing drugs. And finding ways to push education and stuff, make it look like there's a future in work.

[kiltboy]

Since I can't remember off the top of my head what the 14th or 10th refer to, this is a reminder that I need to refresh myself on these things we call Amendments, and how they might be pertaining to me.

Since I haven't been tested on these things since 10th grade, I've allowed most of them to slip from my brain. I must remember not to let stuff like that happen too often. Time for a Social Studies refresher!

[acroyear70.livejournal.com]

10th: rights not proscribed within this document (the constitution and preceding 9 of the bill of rights) are reserved to the states or to the people.

14th: all sorts of things, lots of which were specific to the civil war, but the longer term items were mostly around this very idea: the states can not take away rights that the federal government can not. the bill of rights applies at all levels to all governments.

The 14th also included the clause that anybody born in the states (to anybody except a native american) was inherently an american citizen, regardless of the citizenry of the parents. needless to say, the xenophobes really hate that one right now.