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March 20, 2008

Mom! He's At It Again!

Ed (the big brute!!!) is Whelen on Dahlia Lithwick again:

Slate’s Dahlia Lithwick somehow finds in the oral argument yesterday in the Second Amendment case “the abandonment of every principle of strict construction, federalism, and judicial modesty in which the Roberts Court ever purported to believe.” Further, she maintains that counsel for the gun owners implicitly invoked “the spirit of Roe v. Wade” in arguing for judicial review “when a fundamental right is at stake.”

Let's face it: when have we seen, in modern times, a juicy piece of constitutional jurisprudence that did *not* implicitly invoke the spirit of Roe v. Wade?

The judge's logic is both simple and compelling. I commend to you his entire dissent - it is a powerful statement of originalist reasoning. Justice Black points out that though the Founders could hardly have foreseen electronic communications, they were quite familiar with both eavesdropping and the admission of hearsay evidence. Had they felt these fell under the rubric of search and seizure, they would have said so, explicitly. Forgive me for quoting one more passage which I think particularly apt:

With this decision the Court has completed, I hope, its rewriting of the Fourth Amendment, which started only recently when the Court began referring incessantly to the Fourth Amendment not so much as a law against unreasonable searches and seizures as one to protect an individual's privacy. By clever word juggling the Court finds it plausible to argue that language aimed specifically at searches and seizures of things that can be searched and seized may, to protect privacy, be applied to eavesdropped evidence of conversations that can neither be searched nor seized. Few things happen to an individual that do not affect his privacy in one way or another. Thus, by arbitrarily substituting the Court's language, designed to protect privacy, for the Constitution's language, designed to protect against unreasonable searches and seizures, the Court has made the Fourth Amendment its vehicle for holding all laws violative of the Constitution which offend the Court's broadest concept of privacy. As I said in Griswold v. Connecticut, "The Court talks about a constitutional `right of privacy' as though there is some constitutional provision or provisions forbidding any law ever to be passed which might abridge the `privacy' of individuals. But there is not." I made clear in that dissent my fear of the dangers involved when this Court uses the "broad, abstract and ambiguous concept" of "privacy" as a "comprehensive substitute for the Fourth Amendment's guarantee against `unreasonable searches and seizures.'"

The Fourth Amendment protects privacy only to the extent that it prohibits unreasonable searches and seizures of "persons, houses, papers, and effects." No general right is created by the Amendment so as to give this Court the unlimited power to hold unconstitutional everything which affects privacy. Certainly the Framers, well acquainted as they were with the excesses of governmental power, did not intend to grant this Court such omnipotent lawmaking authority as that. The history of governments proves that it is dangerous to freedom to repose such powers in courts.

Obviously Justice Black had not met Dahlia Lithwick. On the otter heiny, we may have to start a new category just for occasions like this.

Posted by Cassandra at March 20, 2008 08:51 AM

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Methinks Ms. Lithwick doesn't quite understand that the Second Amendment was written into the Bill of Rights ~225 years ago. Would someone please tell me why out of 10 Amendments limiting the power of the Federal Government, they'd make the second one say "oh yeah, and we can arm a militia if we want". Especially when the Constitution itself provides for an ARMY. Probably because they don't understand that the militia was 'armed' from the private stock of the citizens themselves, and NOT from a federal or state armory.

"But the Founders never could have foreseen assault rifles!" Perhaps, but they knew about cannons, rockets and mortars. And they considered it ok for private citizens to have those. Sigh. I guess freedom's only good if Ms. Lithwick approves.

Posted by: MikeD at March 20, 2008 10:53 AM

I guess this is how Constitutions fall. From the inside out, rather than from foreign invasion. Or rather, not simply because of foreign ideas or armies.

Posted by: Ymarsakar at March 20, 2008 11:30 AM

I guess freedom's only good if Ms. Lithwick approves.

Freedomy is only good if it is available to Lithwick to enslave whoever their side deems inferior.

Posted by: Ymarsakar at March 20, 2008 11:31 AM

MikeD, the founders didn't forsee the internet either.

And to expand upon your point about the BoR. The Anti-Federalists insisted upon it's inclusion because they feared that the gov't would expand beyond only what the Constition allowed it to do. The Federalists didn't see the point as the gov't couldn't possibly pass a law against free speech, or establishing a religion, or banning weapons, or quartering soldiers in peoples home, or seizing property without due process, or... (you get the idea) because the constitution never gave the gov't the power to do those things to start with. They believed that the gov't could *only* do those things the Constitution explicitly said it could do.

The Anti-Federalists, however, didn't hold such a rosey view of gov't. They wanted to include, at least, a partial list (See the 9A) of things the gov't absolutely could not do, EVER. To say that the other 9 amendments say "This, the gov't may not do to it's citizens" but that the 2A says "This, the citizens may not do to the gov't" is absurd, both facially and historically.

But something that went unaddressed was that the ruling has nothing to do with federalism one way or the other and hence can not "abandon it".

First, D.C. is a federal entity and governed by the federal gov't. This is exactly who the Constitution directly acts upon. There is no "State" gov't with which to defer.

Second, Federalism (especially after the 14th amendment) is a principal by which States can make their own policy decisions, not their own protection of Rights decisions. Whether murder carries a 5-year or a 15-year or a 50-year sentence isn't a question of Rights, it's a question of policy and should be left up to the states. Whether someone can say "The Governor should be voted out of office" is a question of Rights and not of policy and should not be left up to the States.

Federalism does not mean any location can do whatever the helk it wants and that's OK.

Posted by: Yu-Ain Gonnano at March 20, 2008 11:44 AM

No! Stop quoting dried up legal principles you big bully! I want to talk about my feeeeeeeeelings about federalism and the law.

Posted by: Killing me softly w/a rolled up Constitution at March 20, 2008 11:52 AM

It could be worse. I could be quoting dried up legal opinions on the dormant commerce clause.

It's a good thing ya'll aint at Gitmo. Maverick would probably consider it torture.

Posted by: Yu-Ain Gonnano at March 20, 2008 12:04 PM

It's a good thing ya'll aint at Gitmo. Maverick would probably consider it torture.

Only if you insist on bringing the Pike balancing test into it. Some things are just inhumane...

Posted by: Killing me softly w/a rolled up Constitution at March 20, 2008 12:13 PM

Yikes. The Dormant Commerce Clause?

You people are animals.

Posted by: Barney the White House Terrier at March 20, 2008 12:15 PM

I'm only gonna say this once...

If you people persist in violation of the Commerce Clause, U.S. v. Lopez (1995) be damned, by your unlawful interstate conversations regarding the failings of we Bureaucrats WRT the Constitution and BoR, I'm gonna throw all of ya in the pokie after I have BATF's finest burst through your firewalls and toss your hard drives!

Stick that into your ugly, black assault rifles and smoke it.

Posted by: J. Edgar Hubris at March 20, 2008 12:28 PM

Oh baby... use me! Use me like the 14th amendment.

You know, I get positively tingly when I see a man take command like that.

Posted by: The Dormant Commerce Clause at March 20, 2008 12:46 PM

Men can't take charge, it's Unconstitutional!!!

Posted by: Dahlia at March 20, 2008 12:48 PM

Look. Don't make me unleash my mighty penumbra on y'all.

Posted by: Spirit of Roe v. Wade at March 20, 2008 01:46 PM

I see your penumbra is as big as mine!

Posted by: Lord Helmet at March 20, 2008 02:16 PM

All right, you sock puppets cool your jets. This is actually one of the most humorous threads I have ever read.

Posted by: Mark at March 20, 2008 06:52 PM

Easy partner... My sock puppet is a sensitive love-child which only proves that the rumors about me are untrue.

Posted by: J. Edgar Hubris at March 20, 2008 06:55 PM

Dear Lord, Mark.

I wish Scott hadn't deleted all his old comments over at ScrappleFace. Damn, we used to have fun over there. Somewhere on one of my machines I think I saved the whole "drinking glass" comment thread, just b/c there was so much funny stuff in it - poetry, all kinds of nonsense.

That was hysterical. I need to find more time to be silly - work has been kicking my a** lately.

Posted by: Cass at March 20, 2008 07:06 PM

And all kidding aside (well, maybe not all) the "Emanations of Penumbras" is a really crappy why of referencing what ought to have been a 9A appeal.

I.e. The People have rights beyond those which are listed in the constitution. And that is where I think privacy comes in.

The reason that soldiers can't be quartered in homes wasn't becuase of an objection to ad hoc military logistics. It was because putting gov't agents into the home of citizens is a form of intimidation (through deprivation of privacy)**. Thus I believe there is adequate evidence that there is a right to a certain level of privacy that is unenumerated and would be protected by the 9A.

**This is the case whether or not the gov't would use such information to prosecute and/or deprive the resident of liberty/property or just so that they can gain valuable intel on military targets.

One could make the case that an electronic "soldier" listening to phone calls is in effect "quartered in your home".

On the otter heiney, one can also make the case that the electronic "soldier" is not in your home, but in the Foreign National Terrorist's home (hereafter refered to as F'n Terrorist). And when you start yelling through the F'n Terrorist's door, they can't help but hear you. Thus so long as they don't act against you on that info, no harm, no foul.

It all depends on where the "soldier" is "quartered". Does "he" listen to all your phone calls and hope you talk to an F'n Terrorist, or does he listen to all the F'n Terrorist's phone calls and just happens to hear you.

Personally, I believe it's the second. But it would make an interesting 3A case.

Posted by: Yu-Ain Gonnano at March 20, 2008 07:18 PM

I'm not a sock puppet, I'm just the guy's father's brother's wife's, cousin's college room-mate.

Posted by: Lord Helmet at March 20, 2008 07:34 PM

They believed that the gov't could *only* do those things the Constitution explicitly said it could do.

And it would have done exactly that had the triumvirate balance of powers stayed balanced. But it didn't, now did it, so all their calculations became moot.

Posted by: Ymarsakar at March 20, 2008 11:05 PM

"had the triumvirate balance of powers stayed balanced"
It might have remained in balance if the essential component, we the people from which the power of the government of the republic is derived, the fulcrum on which that balance is poised, remained attentive to the power that was and is surrendered to the factious government branches... pant, pant, pant, wheeze, wheeze.

Posted by: Archbishop Desmond's tutu at March 23, 2008 06:11 PM