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March 05, 2010

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Comments

john

Thanks for the article.
Why is the case so often presented as a dilemna only for the conservative justices? To avoid striking down Chicago's gun ban, won't the liberals have to argue against applying their beloved "substantive due process" here? Why should they be allowed to practice "judicial restraint" on the enumerated right in the second amendment when they are so quick to defend unenumerated "rights" like abortion.
...........
johnrock

mls

Harold F.

Is the court about to establish a fundamental right to bear arms? Or is the court about to declare that the right to self defense is a protected liberty interest? They are interconnected but not exactly the same thing. Self defense
could incorporate reputation, while the right to bear arms, if applied like the right to free speech, is more of a western movie myth than an established custom of our society.

Ed Kerley

The right of the People......
be it the freedom of speech, the right of association, the right to keep arms and the right to bear arms.

What is so hard to understand?

Liberals want to take these rights away.
Why?

A free people ought not only to be armed and disciplined, but they should have sufficient arms and ammunition to maintain a status of independence from any who might attempt to abuse them, which would include their own government. ~~ George Washington

eric

Scalia is so conservative he wants to conserve the lousy precedent of Slaughterhouse. This is unsurprising, since Scalia has proven himself no genuine lover of textualism in other cases, like Raich.

Phil - I think you're overlooking the fact that the liberals on the bench aren't bothered by inconsistent application of substantive due process. If they were, Lochner would still be good law.

Jeff - I think your celebration is a bit shortsighted. Yes, SCOTUS likely will apply Heller to the states under a substantive due process theory, but what due process giveth, due process can taketh away. Reviving the Privileges or Immunities Clause is the sole means by which to enforce the text of the Bill of Rights, rather than enforcing the whims of five Justices on any given day.

phil

If the court struck down the D.C. law in Heller, are the liberal judges really going to argue that Chicago's similar law can somehow be saved if they agree to only weakly incorporate the second amendment? Also, Justice Breyer seemed to worry about human lifes that could be lost if the gun ban is struck down. It would be nice if he showed that same concern for the human lives definitely lost in abortion. Frankly, I don't really care about the outcome of this case. Maybe the conservatives are being hypocritical if they use substantive due process here. Maybe states and cities should be free to deal with gun violence as they see fit. It would be nice though if the Court would give states that same freedom with regard to abortion though.

phil

Why is the case so often presented as a dilemna only for the conservative justices? To avoid striking down Chicago's gun ban, won't the liberals have to argue against applying their beloved "substantive due process" here? Why should they be allowed to practice "judicial restraint" on the enumerated right in the second amendment when they are so quick to defend unenumerated "rights" like abortion? I don't mean to suggest that there aren't unenumerated rights, but I find it dubious to assert that abortion is one of them.

jeff bleil

From my reading of the transcript, all parties, including plaintiff, counter, and SCOTUS, agree that the second amendment, to keep and bear arms, is a fundamental right. Let your pedants argue "privileges or immunities" vs "due process". Both apply, none detract. Check mate!

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