Nordyke v. King oral argument
Nordyke v. King, presenting the 14th Amendment incorporation issue, is set for argument Jan. 15 at 1 PM. Here's its Wiki page, with links to the briefs. (An appeal has its own Wiki page? I feel so 20th Century at times like this).
The case had already been briefed, with the incorporation issue raised below but not briefed, when DC v. Heller came down. The panel on its own motion directed briefing of that issue. I can see three possible outcomes.
1) 2A is incorporated and binds the States: the regulation at issue is unreasonable and struck down. VERY cert-worthy, and a good shot at the Supreme Court (unless the county decides not to petition).
2) 2A is not incorporated. Cert-worthy, and a petition will be filed.
3) 2A is incorporated, but the regulation upheld as reasonable. The county can't go to the Supreme Court, because they won, even if they don't like how the court reasoned. Plaintiffs can go to the Supreme Court, but odds of getting review are much lower than 1 and 2.
We've been the tip of the spear at Calguns.net, and many of the Bay Area members are going to be at the oral arguments in the gallery watching everything unfold. Details are here. Be there are show your support for incorporation!
Posted by: Smokey Behr at December 27, 2008 02:54 PM
Curious what the precedential value would be for number 3. Probably not high. I can see other courts dismissing incorporation as dicta.
Posted by: Affe at December 27, 2008 06:01 PM
We have the Article V Convention method to amending the Constitution if it were not for Congress ignoring calls for Article V Conventions for amendments for the past 200 years.
How easily we can be decieved when a conservative website like WorldNetDaily.com takes a position against our Ninth Amendment rights and our Tenth Amendment power delegated to the States and power reserved to the People over the Article V Convention to amend the Constitution as the People and the States call for it instead of the U.S. Congress dictating to us what amendments we are to have as if we don't know what is best for ourselves, like incorporating the Second Amendment through the Fourteenth Amendment as an Article V Convention amendment.
I am now of the opinion that we need Article V Conventions on a regular basis.
FOR ADVOCACY INFORMATION SEE:
Fear & hysteria over Article V Convention fanned by WorldNetDaily.com:
Article V Convention would be a good thing:
Posted by: Don Hamrick at December 27, 2008 06:03 PM
Look - This is ticky tack but after all it's the 21st century already
Posted by: George at December 27, 2008 08:43 PM
Not to get too far ahead of the curve, but is there any loopy "theory" that Hamrick doesn't believe in?
How about the ratification of the income tax amendment? How about 9/11 as an inside job? The bilderburgers?
Posted by: Andy Freeman at December 27, 2008 11:54 PM
LOOPY U.S. CNSTITUTION:
"The Congress, whenever two thirds of both Houses shall deem it necessary, shall propose Amendments to this Constitution, or, ON THE APPLICATION OF THE LEGISLATURES OF TWO THIRDS OF THE SEVERAL STATES, SHALL CALL A CONVENTION FOR PROPOSING AMENDMENTS, WHICH, IN EITHER CASE, Amendments, SHALL BE VALID TO ALL INTENTS AND PURPOSES, AS PART OF THIS CONSTITUTION, WHEN RATIFIED BY THE LEGISLATURES OF THREE FOURTHS OF THE SEVERAL STATEWS, OR BY CONVENTIONS IN THREE FOURTHS THEREOF, AS THE ONE OR THE OTHER MODE OF RATIFICATION MAY BE PROPOSED BY THE CONGRESS; Provided that no Amendment which may be made prior to the Year One thousand eight hundred and eight shall in any Manner affect the first and fourth Clauses in the Ninth Section of the first Article;and that no State, without its Consent, shall be deprived of its equal Suffrage in the Senate."
MY REBUTTAL: You jackasses need to do something about your ignorant, obssesdive compulsive disorder (OCD), knee-jerk reactive need to insult me at the sight of my name as though you a Pavlov's dog in an experiment.
Comparing the U.S. Government as it really is (corrupt and vindictive) with what it could be is all I am doing. Isn't that what we are supposed to do?
Give me a break! Stop insulting me!
When you insult me as a layman studying the Constitution you insult every law professor and constitutional expert I study under like the following two authors:
Randy E. Barnett, "Restoring the Lost Constitution: The Presumption of
Liberty," February 2004, ISBN: 0-691-11585-0 (A libertarian,
natural-rights defense of the U.S. Constitution).
The U.S. Constitution found in school textbooks and under glass in Washington is not the one enforced today by the Supreme Court. In "Restoring the Lost Constitution: The Presumption of Liberty," Randy Barnett argues that since the nation's founding, but especially since the 1930s, the courts have been cutting holes in the original Constitution and its amendments to eliminate the parts that protect liberty from the power of government. From the Commerce Clause, to the Necessary and Proper Clause, to the Ninth and Tenth Amendments, to the Privilege or Immunities Clause of the Fourteenth Amendment, the Supreme Court has rendered each of these provisions toothless. In the process, the written Constitution has been lost.
Barnett establishes the original meaning of these lost clauses and offers a practical way to restore them to their central role in constraining government: adopting a "presumption of liberty" to give the benefit of the doubt to citizens when laws restrict their rightful exercises of liberty. He also provides a new, realistic and philosophically rigorous theory of constitutional legitimacy that justifies both interpreting the Constitution according to its original meaning and, where that meaning is vague or open-ended, construing it so as to better protect the rights retained by the people.
As clearly argued as it is insightful and provocative, Restoring the Lost Constitution forcefully disputes the conventional wisdom, posing a powerful challenge to which others must now respond.
Larry D. Kramer, "The People Themselves: Popular Constitutionalism and Judicial Review."
Editorial Review at Amazon.com:
"...masterful opening chapters...deserves great praise for his detailed historical research, which recaptures the flavor of early constitutionalism and its deep connection with an active and spirited American people. He also deserves great praise for untangling the different conceptions of "constitution" floating around and rendering that understanding easily accessible to a modern audience...a provocative and original analysis of American constitutionalism that will command a wide audience."--Perspectives on Politics
"Offers a fresh way of viewing the origins and limits of judicial review. The People Themselves challenges conventional constitutional jurisprudence and conventional constitutional history with a deeply researched historical pedigree for popular refusal to accept the Supreme Court's usurping title to the people's document."--The New York Review of Books
"Mr. Kramer is to be applauded for reminding us that courts do not enjoy a monopoly on the Constitution's true meaning and that senators and presidents alike should take the Constitution seriously in the confirmation process and at other times as well."--The Wall Street Journal
"An instructive tour through the early history of American constitutionalism."--National Review
"Larry Kramer explains one of the great mysteries of modern America--why for 40 years, have the freest people in the world been powerless to stop courts of appointed lawyers from eroding their freedoms?.... A manual on how the American people can legitimately exercise their historic right to create what he calls popular constitutionalism."--Newt Gingrich, The New York Post
"Rarely since Edmund Burke's 'Speech on Conciliation with America' in 1774 has the legal dimension of the American Revolution been understood with such precision and presented with such conviction."--First Things
"This book is perhaps the most important work of constitutional theory and history in a generation."--Mark Tushnet, author of Taking the Constitution Away from the Courts
"Larry Kramer's important project offers a refeshing challenge to the hackneyed story that places John Marshall and Marbury v. Madison at the center of the history of constitutional interpretation. Kramer restores to our historical understanding a lost world of popular constitutionalism, where the resolution of fundamental issues was regarded not as the private property of courts and judges but of the people themselves. And I cannot think of a better moment for such a challenge, because we live in an era when doubtful claims for the ultimate authority of the Supreme Court on all matters constitutional are again being heard in the land."--Jack Rakove, author of Original Meanings
"An intelligent and stimulating book. Unlike many law professors writing history, Kramer is very sensitive to context and differing historical circumstances. He offers an impressive and powerful argument for the origins of judicial review."--Gordon Wood, author of The Radicalism of the American Revolution
"This is the best account to date of the development of the power of judicial review in an age of revolutionary politics, and this history challenges us to ask what it really means to live in a democracy today. A fascinating work that deserves a wide audience."--Keith Whittington, author of Constitutional Construction
"Kramer's history is absorbing, his political theory subtle. He puts flesh on the bones of debates over judicial review and popular constitutionalism. With a sure and rare conceptual touch, he traces, and correlates to other political events, modulations over time in the American idea of the Constitution as law. As he does so, he rings the changes on this idea's perceived implications regarding the justifications, self-understandings, and modes of conduct of judicial review."--Frank Michelman, Harvard Law School
John Wolfgram's "Report Card" on my study of the Constitution:
I don't know Don. Keep this up and you might find yourself condemned to the life of a philosopher of law. Better for you, perhaps, that you just pretend not to see some of the constitutionally significant things that you obviously see.
ROFLMAO! Tell me about! Comparing the U.S. Government as it really is (corrupt and vindictive) with what it could be may very well push me into becoming a philosopher of law (whatever that job description is).
What constitutionally significant things do you think I am not seeing? All I see is a dead Constitution. Obama sliding into the presidency without having to prove his eligibility puts the final nail in the coffin for the dead Constitution. Funeral services will be held on January 20, 2009. It will be interesting to see how many American flags fly at half-mast or upside down on Jan. 20th.
I don't think that I said that you were missing Constitutionally significant things. On the contrary, you are batting pretty good. You suffer from the same thing that we all suffer from...bias in your point of view. So, for example, you started with a strong constitutional bias in favor of the KBA right ... but that is what got you into the constitutional subjects, more generally. Don't get me wrong about the KBA right; it's important and needs defending; but the Constitution is under attack from all quarters; and more and more you see that. The "bias" issue is I think, what gets people involved ... their own interests, so to speak. Some generalize but mos just give up. You have generalized into seeing more and more Constitutional Problems and looking for their root causes.
It's almost funny how the search becomes so personalized. It's like everyong in the patriot movement has their own thing based on their own bias ... a lot like "conservative vs liberal". In fact, I think that you have a heavy bias there ... like the jump from Obama is not exposing his origninal birth certificate so therefore he must be foreign born ... to if foreign born he is not qualified to be president to he is violating the Constitution to the Constitution is now meaningless. I, on the other hand, take that part of the Obama thing as Constitutionally insignificant and politically lightweight because the evidence aganist his citizenship is so flimsey. Conservatives think of my position that it is biased because Obama is a liberial and I have a liberal pursuasion ... which, in a sense, I do ... as a "liberal libertarian... which many think is a contradiction in terms.
Well, you also have a bias which you are also evaluating. During the course of your evaluations you are coming to see and grapple with "Constitutionalism" in light of politics and particularly the difficulties involved in the judicial political games where politics lives no less than in the political branches, exept it is disguised as "constitutional interpretationalism" with the force on non political law.
How do you grapple with that? That, in my opinion, is where the frountlines of legal philosophy lies; trying to intellectually resolve the lines, the distinctions between constitutional politics and constitutional law and developing reliable means of distinguishing between the two.
We all miss things in this process and are often wrong. Your e-mails about the possibilities of an Article V convention is a good case in point. Initially, you were alarmed about how close we were to such a convention and what it could do. Then another view, maybe a convention is a good and necessary thing ... and in your own sway on the issue you convinced me that there is a real problem there and that perhaps, we in the patriot movement ought to be making the case for such a convention and staking our own ground as to what such a convention ought to consider ... like say, alternatives to judicial supremacy and striking a balance between government's interpretation of law and the people's interpretation... subjecting both interpretations to argument in each case and the rule of jury reason.
My email to John Wolfgram, David Hardy, and others:
With my new discovery about the controversy over the Article V
Convention method to amending the Constitution of the United States I
will re-examine the Ninth Amendment, the Tenth Amendment, the Eleventh Amendment, Chisholm v. Georgia, 2 U.S. 419 (1793), with Ron Branson's "Judicial Accountability Initiative Law," (J.A.I.L.) for State judges
. . . and Ron Branson's "Federal Judicial Accountability & Integrity Legislation (J.A.I.L.) for federal judges
. . . to arrive at the present day hypocracy of "Fiat Justitia, Ruat
Coelum," (Let justice be done though the heavens fall).
The more research I done the more I believe we have not a living Constitution but a dead Constitution.
LAW REVIEW ARTICLES TO REREAD:
Randy E. Barnett, "The People or the State?: Chisholm V. Georgia and Popular Sovereignty," Georgetown Public Law Research Paper No. 969557, Virginia Law Review, Vol. 93, Georgetown University Law Center
Kurt T. Lash, "Leaving the Chisholm Trail: The Eleventh Amendment and the Background Principle of Strict Construction," Loyola Law School Los Angeles, June 2008 (Loyola-LA Legal Studies Paper No. 2008-18)
Most scholars and courts assume that the Eleventh Amendment emerged from a sudden 'shocked' public reaction to the Supreme Court's decision in Chisholm v. Georgia. The Supreme Court's decision in Hans v. Louisiana has been subject to particular criticism for extending the doctrine of sovereign immunity beyond the text of the amendment and the particular subject matter before the Court in Chisholm. This article contends that the modern emphasis on Chisholm v. Georgia as
the generative source of the Eleventh Amendment is historically incorrect. Public debate regarding the key issues behind the Eleventh Amendment had been underway long before the Court handed down its decision in Chisholm and the actual opinions had little impact on public discussion due to their being generally unavailable until months after the decision was handed down. The critical issue involved the concept of compelling a state to defend itself in federal court at the behest of an individual. That debate preceded Chisholm and would not reach critical mass until the state of Massachusetts responded to its own suit in Vassal.
All sides in this debate accepted the idea that the national government could invoke sovereign immunity against similar suits. Denying states the same immunity called into question whether they remained sovereign entities and retained the non-delegated sovereign rights and powers that Federalists had promised in the state ratifying conventions. More was at stake than mere betrayal, or even fiscal liability. Whether the states remained sovereign entities under the Constitution affected the basic rules of constitutional construction for, according to the Law of Nations, delegations of power from a sovereign are to be strictly construed. Allowing suits against states thus implicated the principle of limited federal power across all areas of delegated authority. The key to understanding the Eleventh Amendment is the text's focus on the proper judicial construction of delegated power in Article III - a demand that federal courts respect the retained rights of the people in the states and apply the background rule of strict construction.
Kurt T. Lash's article above, being the most recent that I have found at SSRN.COM, directly counters Randy Barnett's article, "The People or the State? Chisholm v. Georgia and Popular Sovereignty," 93 Va. L. Rev. 1729, 1733 (2007) and others:
In Kurt T. Lash's Footnote 10: ". . . Since Hans v. Louisiana, on the other hand, the Supreme Court has emphasized the dissenting opinion of Justice Iredell. See Hans v. Louisiana, 134 U.S. 1, 12 (1890); Alden v. Maine, 527 U.S. 706, 727 (1999) (noting the Supreme Court's traditional agreement with Justice Iredell's dissent in Chisholm)."
John Manning, "The Eleventh Amendment and the Reading of Precise Constitutional Texts," 113 Yale L. J. 1663, 1680 (2004)
John J. Gibbons, "The Eleventh Amendment and State Sovereign Immunity: A Reinterpretation," 83 Colum. L. Rev. 1889 (1983)
William A. Fletcher, "A Historical Interpretation of the Eleventh Amendment: A Narrow Construction of an Affirmative Grant of Jurisdiction Rather Than a Prohibition Against Jurisdiction," 35 Stan. L. Rev. 1033 (1983).
QUESTION: Does the Eleventh Amendment violate Article XVII of the American Declaration on the Rights and Duties of Man?
What of "the road not taken" with the majority in Chisholm v. Georgia? Wasn't the judicial Power extending to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority "between a State and Citizens of another State" in Article III, Section 2 of the Constitution part of the checks and balance system as implied by the Ninth and Tenth Amendments? Isn't the Eleventh Amendment a treason against the People's reserved powers of the Tenth Amendment? And doesn't the Fourteenth Amendment nullify the Eleventh Amendment?
The Slaughterhouse Cases killed the privileges and immunites clause of the Fourteenth Amendment.
Saenz v. Roe, 526 US 489 (1999) resurrected the clause for the right to travel interstate which leads to my Second Amendment case for the right to "openly" keep and bear arms in intrastate, interstate, and maritime travel from a merchant seaman's point of view.
Akhil Reed Amar, The Court Rediscovers Part of the Fourteenth Amendment. The New Republic, Inc., June 14, 1999
Amar writes, "In those cases where the rest of the Constitution is silent about an arguable right, courts should allow Congress to help define the fundamental privileges and immunities of American citizenship. This is precisely why the Reconstruction Congress drafted such broad language about privileges in the first place, and went on, in Section 5 of the Fourteenth Amendment, to give Congress sweeping power to "enforce" these privileges."
By resurrecting the privileges and immunities Congress can infore the Second Amendment right to openly keep and bear arms in intrastate, interstate, and maritime travel in light of Heller. Congress can even initiate Article 5 Amendment to repeal the Eleventh Amendment as violating the "privileges and immunities" of citizens in one state to sue another or any number of other states thus restoring the checks and balance system, especially those who act as private attorney generals enforcing laws the U.S. Department of Justice cannot or will not enforce.
Signed: Don Hamrick
Posted by: Don Hamrick at December 28, 2008 10:33 AM
CONFIRMING A DEAD CONSTITUTION
Brazen Barry: Has our Mightiest Governing Document Been Rendered Worthless?
By Jerry McConnell
Sunday, December 28, 2008
It looks like the mighty and powerful United States of America is going to be stymied by a slick-talking smoothie again. No, it’s not Jimmy Carter or Bubba Clinton but it is another one who can rattle off a cunning phrase about as well as anyone I’ve ever heard. And if Clinton was known as “Slick Willie” this new fellow will have to be known as “Brazen Barry”. The rest of his name is Hussein Obama.
How else can you describe someone who can stand up to the entire citizenry of this great country of three hundred million residents and when asked to do something, simply say that he won’t do it? And even more brazenly, go completely against a U.S. Constitutional directive while even our omnipotent Supreme Court hasn’t got the power or directives to order compliance. The only man in the history of our country that is mightier than the highest court in our land; simply by refusing to comply.
Our Constitution has been weakened probably for the first time ever in its glorious 221 years of existence. I say weakened because when one person can just refuse to provide proof that he or she is qualified to meet a requirement of that august document and flat out get away with it, not only the moral fibers but the heart and soul of its contents are damaged and weakened. How now can anyone ever be sure that any other part of our lifeblood of administrative embodiment can not be also so denigrated and ignored?
Court challenges to Mr. Obama’s decision not to provide his original birth certificate as proof the Constitutional requirement for a candidate for the Office of the Presidency of the United States to be a natural born citizen have failed, with no further explanation or any recommended course of action. In other words, there is no way to enforce the requirements of the Constitution. God help this country when its strongest governing document is rendered helpless. What other mischief might another clever legal deviant thrust on our people now that the precedent for refusal to divulge has been established and accepted by our highest court?
This is a very secretive person that a majority of our country’s citizens have elected to the highest office in the land. We know very little about the man and, it would seem, only what he wants us to know. There is no question that he is of Islamic heritage and training, as both his father and step-father were Muslims, his mother was an atheist. During the presidential primary in 2008 Obama claimed to have been converted to Christianity “20 years ago.” He has never stated what faith he “converted” from, but it is known that he did attend an Islamic school for at least two years while living in Indonesia.
Little is known about how he obtained the necessary finances to attend two of the most expensive and prestigious universities in America, Columbia and Harvard. He has consistently refused to make any of his collegiate documents a matter of public record as he has similarly done concerning his official birth record.
What is this man afraid of by having his records sealed off to the public? Is there incriminating information in these records? Is there verifying information that he is not a natural born citizen of the United States? Is there verifying information that he is a full-fledged Islamic Muslim and his “conversion” to Christianity was a possible cover for other devious ventures such as winning our presidency?
What other documents will he forbid being seen once he becomes President? Will he negotiate secret plans with our enemies that will harm the sovereignty of our nation? Will he secretly dismantle our strong defenses against attack that have protected us since the infamous “9/11” incident?
Isn’t there anyone with the strength, intelligence, and ability to get the information we should have about this man who will sit in our highest office?
Is there another Ronald Reagan or Teddy Roosevelt out there? If so, please step forward and soon.
Jerry McConnell is a longtime resident of planet earth with one half century on the seacoast of NH. He is a community activist but promises not to run for President and he feeds ACORN’s to the squirrels. He can be emailed at firstname.lastname@example.org with complaints or the editor at email@example.com with favorables.
Posted by: Don Hamrick at December 28, 2008 11:00 AM
I used to go the DH route in high school 20 years back, posting long items on a bulletin board with all the important stuff... oh, who am I kidding, pretty much everything, highlighted. No one ever read it either.
Posted by: affe at December 28, 2008 11:04 AM
The world according to "affe": Ignorance and stupidity prevails over knowledge and wisdom, the product of the public education system. It is a sad commentary on civil debate when insult is used against logical information.
Posted by: Don Hamrick at December 28, 2008 06:54 PM
CORRECTED FOR GRAMMATICAL STRUCTURE:
The world according to "affe": Ignorance and stupidity, the product of the public education system, prevails over knowledge and wisdom. It is a sad commentary on civil debate when insult is used against logical information.
Posted by: Don Hamrick at December 28, 2008 07:35 PM
LOL. Cute. Never went near the PS system. Seems the only thing it taught you was poor grammar and the ability to cut and paste. Good job.
Posted by: affe at December 28, 2008 08:35 PM
You belittle my own opinion. You belittle the news and Op-Ed of others. And you infer that you went to a private school. Do I infer you to to be an elite condescending snob? Why do you attck me personally? Is it because you cannot present an opposing argument to what I presented? Or do you enjoy the life of a troll?
Posted by: Don Hamrick at December 29, 2008 12:31 PM
What does all the Article V stuff have to do with the topic of this blog post?
Posted by: Smokey Behr at December 30, 2008 03:05 PM
A state can call for an Article V Convention to incorporate the Second Amendment through the Fourteenth Amendment, among other things.
Posted by: Don Hamrick at December 31, 2008 09:45 PM
Don, those huge posts of yours would get you banned some places. Just saying.
Posted by: Nortius Maximus at January 2, 2009 11:41 PM
So you prefer a dumded-down public?
Posted by: Don Hamrick at January 3, 2009 07:38 AM