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

[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.