What does the Second Amendment mean in 2022?
https://www.vox.com/2022/6/5/23150816/second-amendment-meaning-2022-popular-constitutionalism-guns-ar15
Tag: Constitution
Alito’s Leaked Abortion Opinion Misunderstands Unenumerated Rights
“Noting that “the Constitution makes no reference to abortion,” Alito argues that “no such right is implicitly protected by any constitutional provision, including the one on which the defenders of Roe and Casey now chiefly rely—the Due Process Clause of the Fourteenth Amendment.” Although “that provision has been held to guarantee some rights that are not mentioned in the Constitution,” he says, “any such right must be ‘deeply rooted in this Nation’s history and tradition’ and ‘implicit in the concept of ordered liberty.'” Alito concludes that “the right to an abortion does not fall within this category.”
That analysis falls short in at least two crucial ways.
First, Alito fails to grapple with the argument that the right to terminate a pregnancy can be understood as a subset of the right to bodily integrity. As the legal scholar Sheldon Gelman detailed in a 1994 Minnesota Law Review article, the right to bodily integrity can be traced back to the Magna Carta. That makes it one of the many rights “retained by the people” (in the words of the Ninth Amendment) that were imported into the Constitution from English law. That right, in other words, is “deeply rooted” in American history and tradition.
Second, Alito’s draft opinion distorts the relevant legal history and thus misstates the historical pedigree of abortion rights. “When the United States was founded and for many subsequent decades, Americans relied on the English common law,” explains an amicus brief that the American Historical Association and the Organization of American Historians filed in Dobbs. “The common law did not regulate abortion in early pregnancy. Indeed, the common law did not even recognize abortion as occurring at that stage. That is because the common law did not legally acknowledge a fetus as existing separately from a pregnant woman until the woman felt fetal movement, called ‘quickening,’ which could occur as late as the 25th week of pregnancy.”
A survey of founding-era legal authorities confirms this view. William Blackstone’s widely read Commentaries on the Laws of England, first published in 1765, noted that life “begins in contemplation of law as soon as an infant is able to stir in the mother’s womb.” Under the common law, Blackstone explained, legal penalties for abortion applied only “if a woman is quick with child, and by a potion, or otherwise, killeth it in her womb.” That means abortion was legal in the early stages of pregnancy under the common law.
Blackstone’s writings had an important influence on America’s founding generation. In his 1790 Of the Natural Rights of Individuals, for example, James Wilson, a driving force at the Constitutional Convention in Philadelphia and a leading voice for ratification at Pennsylvania’s convention, repeated Blackstone’s gloss. “In the contemplation of law,” Wilson wrote, “life begins when the infant is first able to stir in the womb.”
At the time of the founding, no American state had the lawful power to prohibit abortion before quickening because the states adhered to the common law as described by Blackstone and Wilson. We might call this the original understanding of the states’ regulatory powers. That original understanding contradicts Alito’s assertion that abortion rights—at least during the early stages of pregnancy—lack deep roots in American history.”
There Is a Reason Why Roe v. Wade’s Defenders Focus on Its Results Rather Than Its Logic
What Happens if States Ban Out-of-State Travel for Abortion?
“If the U.S. Supreme Court reverses Roe v. Wade (1973) and Planned Parenthood v. Casey (1992), a number of American states will immediately criminalize abortion. Some of those states may also attempt to ban women from traveling out of state for the purpose of obtaining a lawful abortion elsewhere. But any such anti-abortion interstate travel ban would be constitutionally defective for multiple reasons.
First, the Constitution protects the right to travel, which necessarily includes the right to interstate travel. This is a fundamental constitutional right that has been repeatedly recognized by the courts. During the debates over the ratification of the 14th Amendment, the right to travel was invoked as one of the privileges or immunities of citizenship that the amendment was designed to protect from state infringement. For a state to prohibit (or even penalize) the act of leaving that state and doing something perfectly lawful in another state would violate this constitutional safeguard.
Second, an anti-abortion interstate travel ban would run afoul of the Dormant Commerce Clause, a legal doctrine which holds that the Commerce Clause, in addition to authorizing congressional regulation of economic activity that occurs between the states, also forbids the states from enacting their own interstate economic barriers.”
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“Finally, there is relevant case law which cuts against the lawfulness of any anti-abortion interstate travel ban. In Planned Parenthood of Kansas v. Nixon (2007), the Missouri Supreme Court reviewed a state law which created a civil cause of action against any person who helped a minor obtain an abortion without parental consent either inside the state or in another state. “Of course, it is beyond Missouri’s authority to regulate conduct that occurs wholly outside of Missouri,” the Missouri Supreme Court observed, and the law at issue “cannot constitutionally be read to apply to such wholly out-of-state conduct. Missouri simply does not have the authority to make lawful out-of-state conduct actionable here, for its laws do not have extraterritorial effect.””
If Roe v. Wade falls, are LGBTQ rights next?
“Justice Samuel Alito’s draft opinion overruling Roe v. Wade, which was leaked to Politico and revealed to the public Monday night, is more than just an attack on abortion. It is a manifesto laying out a comprehensive theory of which rights are protected by the Constitution and which rights should not be enforced by the courts.
And Alito’s opinion is also a warning that, after Roe falls, the Court’s Republican majority may come for landmark LGBTQ rights decisions next, such as the marriage equality decision in Obergefell v. Hodges (2015) or the sexual autonomy decision in Lawrence v. Texas (2003).
To be clear, the leaked opinion is a draft. While Politico reports that five justices initially voted to overrule Roe, no justice’s vote is final until the Court officially hands down its decision. And even if Alito holds onto the five votes he needs to overrule Roe, one or more of his colleagues in the majority could insist that he make changes to the opinion.
Alito’s first draft, however, suggests that the archconservative justice feels emboldened. Not only does he take a maximalist approach to tearing down Roe, but much of Alito’s reasoning in the draft opinion tracks arguments he’s made in the past in dissenting opinions disparaging LGBTQ rights.
The Constitution is a frustrating document. Among other things, it contains multiple provisions stating that Americans enjoy certain civil rights that are not mentioned anywhere in the document itself. The Ninth Amendment, for example, provides that “the enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.”
Over time, the Supreme Court has devised multiple different standards to determine which of those unenumerated rights are nonetheless protected by our founding document. Some of these standards are very much at odds with each other.
The central thrust of Alito’s draft opinion in Dobbs v. Jackson Women’s Health Organization, the case seeking to overrule Roe, is that only rights that are “deeply rooted in this Nation’s history and tradition” and “implicit in the concept of ordered liberty,” are protected. This method of weighing unenumerated rights is often referred to as the “Glucksberg” test, after the Court’s decision in Washington v. Glucksberg (1997).
Though Alito’s Dobbs opinion largely focuses on why he believes that the right to abortion fails the Glucksberg test, there is no doubt that he also believes that other important rights, such as same-sex couples’ right to marry, also fail Glucksberg and are thus unprotected by the Constitution. Alito said as much in his Obergefell dissent, which said that “it is beyond dispute that the right to same-sex marriage is not among those rights” that are sufficiently rooted in American history and tradition.”
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“For many years, Justice Anthony Kennedy was the pivotal figure in the legal struggle for gay equality. Obergefell and United States v. Windsor (2013), which held that the federal government must recognize same-sex marriages, were both 5-4 decisions authored by Kennedy. Kennedy also penned the Lawrence opinion and the Court’s decision in Romer v. Evans (1996), the first Supreme Court decision establishing that the Constitution places limits on the government’s ability to target gay or bisexual individuals.
Given his longtime role as the Court’s voice on gay rights, it’s tempting to think of Kennedy as a staunch supporter of these rights (I use the word “gay” and not “LGBTQ” because Kennedy’s four opinions concerned discrimination on the basis of sexual orientation and not gender identity). But the reality is almost certainly more nuanced. Decisions like Obergefell and Windsor were the products of an uneasy alliance between the conservative Kennedy and his four liberal colleagues. And, in closely divided cases, majority opinions are often assigned to the justice who is most on the fence — on the theory that this justice is unlikely to flip their vote if they can tailor the majority opinion to their own idiosyncratic views.
The result is that Kennedy’s great gay rights decisions were poorly argued. They ignore longstanding doctrines that could have provided a firm foundation for a rule barring discrimination on the basis of sexual orientation. Instead, they often substitute needlessly purple prose for the meat-and-potatoes work of legal argumentation.”
AOC Defends Due Process as Colleagues Greenlight Asset Seizure Bill
“The bill does not suggest that those whose assets are seized must be linked to—let alone convicted of—any crime. Rather, it states that the Biden administration shall “determine the constitutional mechanisms through which the President can take steps to seize and confiscate assets under the jurisdiction of the United States” of any foreign person on whom the president has imposed sanctions due to their links to Putin’s regime.
Nor does it require that sanctions and asset seizure be linked to corruption; political “support for” the Putin administration is enough.
Of course, in a country like Russia, where dissidence can be punished gravely, support may be a matter of (economic and sometimes literal) survival. Is it really fair for the U.S. to punish people for this?
Alas, a lot of legislators think so. The Asset Seizure for Ukraine Reconstruction Act passed the House by a vote of 417–8 on Thursday.
Rep. Alexandria Ocasio-Cortez (D–N.Y.) was one of just eight “no” votes on the measure.
“This vote asked President Biden to violate the 4th Amendment, seize private property, and determine where it would go – all without due process,” AOC said in a statement. “This sets a risky new precedent in the event of future Presidents who may seek to abuse that expansion of power, especially with so many of our communities already fighting civil asset forfeiture.”
It’s a very valid concern—and the kind all too rare among lawmakers and among political partisans more broadly.”
Republicans Defend Texas Social Media Law—and Compelled Speech
“A blatantly unconstitutional Texas social media law can start being enforced unless the Supreme Court steps in. The law was blocked by a U.S. district court last year after internet advocacy and trade groups challenged it. But a new order from the U.S. Court of Appeals for the 5th Circuit means Texas can begin enforcement of its social media law—and wreak havoc on the internet as we know it in the process.
NetChoice and the Computer and Communications Industry Association (CCIA)—the groups that filed the lawsuit against the Texas social media law—have now submitted an emergency petition to the Supreme Court asking it to intervene. Meanwhile, Texas and a slew of other states with Republican leaders are advocating for the law, which would treat large social media platforms like common carriers (such as railroads and telephone companies) that have a legal obligation to serve everyone.
How we got here: The Texas social media law (H.B. 20) bans large platforms from engaging in many forms of content moderation—including rejecting unwanted content outright, limiting its reach, or attaching disclaimers to it—based on the viewpoint said content conveys. It’s similar to legislation passed (and blocked, for now) in Florida.
Borrowing a page from George Orwell, supporters like Texas Gov. Greg Abbott say the law is designed to protect free speech. But in addition to protecting people and private entities from censorship, the First Amendment also protects against them being compelled by the government to speak or host certain messages—which is exactly what H.B. 20 does.
Accordingly, Judge Robert Pitman of the U.S. District Court for the Western District of Texas held last December that H.B. 20 violated the First Amendment and issued a preliminary injunction against enforcing it.
But Texas appealed, and last week the U.S. Court of Appeals for the 5th Circuit issued a stay on the lower court’s decision—meaning Texas can start immediately enforcing the social media law.
The 5th Circuit did not offer an opinion explaining its reasoning, so it’s hard to say what’s going on there. In any event, NetChoice and the CCIA are now asking the U.S. Supreme Court to step in.”
Conservatives Say They Care About the Constitution. Until They Talk About Criminal Justice.
“GOP senators who are attacking President Joe Biden’s Supreme Court pick seem weirdly unaware of how our justice system works. By focusing in part on Ketanji Brown Jackson’s former role as a criminal defense attorney, they act as if it’s wrong to provide a defense to people accused of a crime—and that if the government levels a charge, it must be right.
Hey, if you haven’t done anything wrong, you have nothing to fear—or something like that. “Like any attorney who has been in any kind of practice, they are going to have to answer for the clients they represented and the arguments they made,” Sen. Josh Hawley (R–Mo.) said in reference to Jackson and other Biden nominees. Apparently, defense attorneys should only defend choirboys.
Yet I guarantee if Hawley—known for his fist pump in support of Jan. 6 protestors at the U.S. Capitol—became the target of an overzealous prosecutor who accused him of inciting an insurrection, he’d be happy to have a competent defense attorney to advocate on his behalf. That attorney shouldn’t be forever stained for defending someone as loathsome as Hawley.”
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“Jackson will be the nation’s first Supreme Court justice to have served as a public defender, with Thurgood Marshall being the last justice to have criminal defense experience.”
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“A study last year by the libertarian Cato Institute found the Trump administration’s judicial appointments tilted in favor of prosecutors over those who represented individuals by a 10-to-one margin. Only 14 percent of the liberal Obama administration’s appointees defended individuals. Most judges strive to be fair, but their backgrounds color their worldview.”
Joe Biden’s Secret Constitutional Weapon
“Constitutional scholars generally agree that the Ninth Amendment originated in a dispute between the two rival political factions that dominated the early republic: the federalists and the anti-federalists. The anti-federalists, anxious to limit the power of the new federal government, demanded a list of explicitly enumerated rights that the government would be constitutionally obligated to respect, but some framers worried that such a list could be construed to mean that citizens surrendered the rights that were not enumerated. The amendment was engineered by James Madison, whom many consider the father of the Constitution, as a means of appeasing both factions.
Although legal scholars generally agree on the amendment’s origins, they agree much less on its meaning and legal function. What, for instance, are the “other rights” that the people supposedly retained? Are they the collective rights of the people, as recognized by the English common law tradition, or are they the inviolable natural rights to life, liberty and happiness laid out in the Declaration of Independence — or something else entirely?
For much of the country’s history, these questions remained unanswered — or, more accurately, they remained unasked. Before 1965, the Supreme Court discussed the Ninth Amendment in fewer than ten cases, during which time the amendment “hid like a neglected child among its more popular sibling amendments in the Bill of Rights,” as the legal scholar Chase J. Sanders has described it.
Then, in 1965, the Supreme Court cited it in the landmark case of Griswold v. Connecticut, in which the Court struck down a Connecticut law that banned the use of medical contraception. In the majority opinion, Associate Justice William O. Douglas cited the Ninth Amendment as one of the amendments that, together with the First, Fourth and Fifth Amendments, collectively implied a right to privacy that protected couples’ right to use contraception. The amendment received even more extensive treatment, though, in a concurring opinion authored by Associate Justice Arthur Goldberg and co-signed by Chief Justice Earl Warren and Associate Justice William J. Brennan. In the concurrence, Goldberg argued that the right to privacy was among the unenumerated rights referred to in the Ninth Amendment. “The fact that no particular provision of the Constitution explicitly forbids the State from disrupting the traditional relation of the family… surely does not show that the Government was meant to have the power to do so,” Goldberg wrote. “Rather, as the Ninth Amendment expressly recognizes, there are fundamental personal rights such as this one, which are protected from abridgment by the Government, though not specifically mentioned in the Constitution.””
Republicans Are Moving Rapidly to Cement Minority Rule. Blame the Constitution.
“Equal representation of the citizenry hasn’t become the enemy of the contemporary Republican Party. It has been the enemy for more than a half-century. Ronald Reagan opposed the 1965 Voting Rights Act from the beginning, explaining later that he believed it was “humiliating to the South.” When the act came up for its third renewal in 1982, Reagan’s lawyers in the Justice Department, led by a twenty-something John Roberts, mightily resisted it and much needed amendments to it. When it came up for renewal again, in 2006, the act nearly broke the House Republican caucus in two.
At the center of Republican opposition to the Voting Rights Act is Section 5, described by the historian J. Morgan Kousser as “one of the most innovative governmental mechanisms since the New Deal.” Section 5 stipulates that states, counties and localities with a history of discriminatory voting rules and practices must get permission or “pre-clearance” from the federal government to make any changes to an electoral “standard, practice, or procedure.” With the burden of proof falling on these jurisdictions, it is up to them to demonstrate that the intent or effect of their change is not racial discrimination.
Well-versed in the ingenuity and initiative of white supremacy, the authors of Section 5 understood that equal representation for all citizens required the nationalization of voting standards and preemptive action by the federal government to protect those standards. If local white officials were not stopped, in advance, from “stacking” or “cracking” the Black vote — concentrating Black voters in one district and reducing their power elsewhere or diluting their power by spreading their votes across districts — African Americans would not be guaranteed equal representation in the polity.”
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“In 2013, with Roberts now at the helm of the Supreme Court, the Republicans finally achieved their goal, effectively killing Section 5 in Shelby County v. Holder. Though the Cornell political scientist Suzanne Metler tells Edsall that the GOP is “a longstanding party that helped to protect democracy until recently,” the wave of Republican racial gerrymanders and voting rights restrictions that we are seeing today was set in motion by leading members of the party more than fifty years ago.”
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“Americans associate the Constitution with popular liberties such as due process and freedom of speech. They overlook its architecture of state power, which erects formidable barriers to equal representation and majority rule in all three branches of government. The Republicans are not struggling to overturn a long and storied history of democratic rules and norms. They’re walking through an open door.
The 20th century lulled many Americans into thinking that the Electoral College was a vestigial organ like the appendix. Citizens of the 21st century know better. Having witnessed two presidential elections in which the candidate with the most votes lost, they know that rule by the majority or plurality is not a necessary feature of the presidency. Nor is equal representation: In the Electoral College, the vote of a citizen in Wyoming is worth three to four times as much as that of a citizen in California.”
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“Though the Framers rejected the idea of a hereditary body like the House of Lords, they did accept a compromise in which the Senate would represent states rather than individuals. Contrary to popular lore, Madison thought the central concern of those states had less to do with the size of their populations than with the source of their labor, whether it was enslaved or free.”
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“While some longstanding, wealthy democracies do have upper chambers, the United States is one of the very few to grant its upper chamber equal power to its lower chamber. The extreme inequality of representation in the Senate, in which the vote of one citizen in Wyoming is equal to that of 67 citizens in California, is even more unique. The combined effect of these twin features of Congress, wrote the distinguished Yale political scientist Robert Dahl, is “to preserve and protect unequal representation” and “to construct a barrier to majority rule.””
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“American racial politics, past and present, demonstrates the power of this observation. Between 1800 and 1860, the will of the voting majority was repeatedly expressed in the House, which passed eight anti-slavery bills. The will of the slaveholding minority was repeatedly enacted in the Senate, which stopped those measures. In the first half of the 20th century, the majoritarian House passed multiple civil rights measures — from anti-lynching bills to abolition of the poll tax. Each time, those bills were killed in the Senate.”