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Prof. Sanford Levinson on Heller: why use originalism?
Article here. As always, interesting and provocative.
He asks "why use originalism" in the sense that Parker/Heller can win on a broader view; that the right has evolved in Americans' minds to become ever more strongly individual, and that should be taken into account.
He does suggest the Solicitor General's position on standard of review should be accepted. (I suspect he's more optimistic than I about how lower courts would use it. I'd guess that if the Supremes hold for strict scrutiny, lower courts will in practice use about what we call the intermediate level, and if the Supremes hold for intermediate, lower court will in practice use rational basis -- any purpose for a law that can be speculated, and does not require psychotic thought patterns, is enough).
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With all due respect to the professor, he is way off base. I cannot believe that someone that teaches constitutional law is advocating that SCOTUS based their decision on what the majority of people have come to believe is right and not what the founders intended. Isn't that what the purpose of the BORs is...To protect the rights of people from the opinion of the majority? The professor, an expert in constituional law, is advocating a position that directly contradicts the original purpose of the BOR.
Call me biased but after reading some of the amicus briefs for both sides, I don't think the collective rights proponents have by a nose, the argument on their side as suggested by the professor. I believe they have been blown out of the water by Alan and team. Secondly the SG's position is not wise, its intellectually dishonest. It is advocating that SCOTUS punt the case back to the lower court in order to invent a new and lower standard for the review of a fundamental right. I'm disgusted and am going home.
I'm with the previous comments. I think that anything less than strict scrutiny of the individual right would be a disaster! This sounds to me more like another invention to allow skirting around the founders' intent (also known as rationalization).
Something happened when Sandy went back East to teach at NYU. He's been a disguised anti- ever since and his writings have grown more and more into that camp.
I for one come down on the side with Chuck who posted Feb 26th @ 3:58 in that a higher standard must be used. No deivieation, and even though being interesting and provocative, it must demonstrate that there are higher standards that do not stop at SCOTUS.
Because it is a covenent between the creator and the created, although just because they happen to wear the black robes, they like all-men have to answer to a higher authority as well.
We all put our pants on the sameway one leg at a time. So is the intent of the founders, ergo the checks and balances in our system without which this system would be plunged into chaos.
I beleve,as well, Sandy L. can be influnced by the compnay he keeps and it is reflected by the subtile change in writings and articles that shows group agreement,less individual standing,on a topic.
My brain actually hurts after putting it through the contortions required to try and accept, for just a moment, the various lies that Sandy L. makes in his article. Again, I don't know how anyone could put forward the notion that this guy somehow supports the true meaning of the Second Amendment, that we all have an individual right to keep and bear arms. I could go on, but for now I'll just have to lament that now there's one more university I can't trust with the task of properly educating my children. Emory U., Stanford U., Ohio St. U., now UT. What is a parent to do? Will there be any academic institutions in which we can trust in the not too distant future? Sigh....
“I lay no great stress on any other limitations of those monarchies; nor do I think any so essential to the liberties of the people, as that which placed the sword in the hands of the subject. And since in our time most princes of Europe are in possession of the sword, by standing mercenary forces kept up in time of peace, absolutely depending upon them, I say that all such governments are changed from monarchies to tyrannies. Nor can the power of granting or refusing money, though vested in the subject, be a sufficient security for liberty, where a standing mercenary army is kept up in time of peace: for he that is armed is always master of the purse of him that is unarmed. And not only that government is tyrannical, which is tyrannically exercised; but all governments are tyrannical, which have not in their constitution a sufficient security against the arbitrary power of the prince.”
Andrew Fletcher
A Discourse of Government With Relation to Militias
So if I read that right, Mr. Levinson is urging the highest court in the nation to rule based on the current popular whim of the majority in disregard of the actual founding tenets found in the constitution?
He may be a professor of consitutional law, but he is no constitutional scholar, nor do I see much chance of him aiding in the making of any of his students into constitutional scholars.
Please tell me, I have misjudged what he said.
"if the Supremes hold for strict scrutiny, lower courts will in practice use about what we call the intermediate level, and if the Supremes hold for intermediate, lower court will in practice use rational basis" Yep, David. That about sums it up. Don't expect Brown v. Board of Education. Even though that's what we deserve. AND we still have to get through incorporation if this win is going to mean anything. Let's face it, a Federal right to keep and bear arms that isn't enforceable against the states, is pretty well meaningless.