Decius wrote:
The only justice who got this right was Thomas.

You're the second one who's suggested that today, Rush Limbaugh being the first. ;) Well, he didn't suggest that Thomas was the only one, but he certainly quoted Thomas the most. It'll be interesting to hear how the various commentators on the left and right interpret the four dissenting votes, although I expect the responses will be similar to those regarding District of Columbia v. Heller (2008).

Anyway, I haven't yet had a chance to read all 214 pages of McDonald v. Chicago, so I can't offer much in the way of commentary on the opinion, but 5-4 is better than 4-5. So far, it's been a good year for weapons-related rights, but it's a shame that free speech isn't being protected with the same enthusiasm (Holder v. Humanitarian Law Project).

Stefanie wrote:
You're the second one who's suggested that today, Rush Limbaugh being the first. ;)

Well, a stuck clock is right twice a day.

The humanitarian law project case is intellectually challenging. I haven't found a clear conviction on the matter easy to grasp on to. I'd have to do way more thinking and reading than I have time for.

Thomas is right because the P&I clause of the 14th was supposed to incorporate rights, and not the substantive due process clause that we've been relying on for decades.

For the record - I think Breyer might have a point that the founders did not intend for a fundamental, individual right to own firearms. The language and statement of intent in the amendment only makes sense when read in the context of unincorporated rights that could be upended by state laws. So how could that individual right be considered a "privilege" of citizenship incorporated by the 14th? Well, I think that the people living in the 1860's thought that the 14th amendment would incorporate the right to bear arms, as Thomas makes clear in his historical accounts. Maybe they were "wrong" about the technical impact of what they were doing, but I think that was their intent. I'm inclined to think that their intent should be upheld, but I still think I could be persuaded to change my view of this issue.

I also think that if we get to the other side of this we'll end up amending the constitution. I think you can convince 75% of the people in the country to support some tweaks to the language once the legal system stops muddying the issue and upholding unconstitutional regulations.

Decius wrote:
The humanitarian law project case is intellectually challenging. I haven't found a clear conviction on the matter easy to grasp on to. I'd have to do way more thinking and reading than I have time for.

True, it's not as cut-and-dried as some issues, and it's interesting whenever the John Birch Society (The New American, linked above) and the New York Times both cry foul over the same decision. Still, as much as I despise terrorism and the support of same, I have to side with the minority opinion on this one. In any gray area, I'll always err on the side of freedom.

Decius wrote:
For the record - I think Breyer might have a point that the founders did not intend for a fundamental, individual right to own firearms.

Really? That's a difficult case to make.

Decius wrote:
I also think that if we get to the other side of this we'll end up amending the constitution. I think you can convince 75% of the people in the country to support some tweaks to the language once the legal system stops muddying the issue and upholding unconstitutional regulations.

Are you talking about the Second Amendment, the Fourteenth Amendment, or the entire Constitution? While it's possible (though unlikely) that the issue of individuals' rights to possess weapons might come down to a Constitutional amendment, I don't think that any language can be made plain enough to be interpretation-proof.

As far as I'm concerned, the members of the Supreme Court already have their minds made up on politically-charged cases (abortion, weapons, eminent domain, etc.), and they write (spin) their legal opinions in order to make their political views fit the Constitution. In major, controversial cases, the same justices predictably line up on the same sides, based on their respective ideologies. For the most part, our justices are reflections (perhaps "extensions" is a better word) of the very partisan politicians who appoint them, and judicial activism will always be a factor in that political environment.

Any changes we make to the Constitution will be ignored and/or intentionally misinterpreted, as is the current language. I think we need better people, not a better Constitution. More often than not, we don't hold our elected officials (or ourselves) to high enough standards.

Stefanie wrote:
Really? That's a difficult case to make.

The original bill of rights did not bind the states, so originally states were clear to regulate arms. The amendment prohibited only the federal government from regulating arms. Knowing this, the qualification about militias makes more sense. Read as "because the states need to be able to do whatever they want in this regard, the federal government is prohibited from meddling in it." One must ask whether the state constitutions originally protected an individual right. Some did, some didn't.

Contrast the language in Pennsylvania, which clearly protects an individual right:

The right of the citizens to bear arms in defence of themselves and the State shall not be questioned.

with the language in Virginia, which clearly didn't:

That a well regulated militia, composed of the body of the people, trained to arms, is the proper, natural, and safe defense of a free state; that standing armies, in time of peace, should be avoided as dangerous to liberty; and that in all cases the military should be under strict subordination to, and governed by, the civil power.

The text "the right to keep and bear arms shall not be infringed" was added to the Virginia constitution in 1971.

Now, its worth noting that the state constitutions also differed on other things, like the right to freedom of religion. This is why I think its the 14th amendment that really created concretely defined individual rights.

Are you talking about the Second Amendment, the Fourteenth Amendment, or the entire Constitution?

2nd. As you can see in the above link, nearly all the state constitutions have been amended over time - in some cases to make them more free and in other cases to make them more constrained. Once the focus becomes the federal amendment, I think it will be subject to tweaking. People will speak of a "constitutional floor."

(You can also clearly see why the right to bear arms would have been at issue in the passage of the 14th, as numerous state constitutions only protected the right of white people to bear arms.)

As far as I'm concerned, the members of the Supreme Court already have their minds made up on politically-charged cases (abortion, weapons, eminent domain, etc.), and they write (spin) their legal opinions in order to make their political views fit the Constitution.

I tend to agree with you there, but I'm not convinced that it doesn't matter what these things say. They consist of principles established and their very establishment tends to ward off direct attacks that might otherwise tempt their opponents. You can come at this with a bunch of bullshit, but you can't ignore it.