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Justice Kennedy on Heller and 14th Amendment
Here it is, in RealMedia video format. Justice Kennedy is speaking at the 9th Circuit Judicial Conference. He gets to Heller about 38 minutes in (and the rest of it is interesting, too. He has a great sense of humor.
My notes:
Audience member asks him what are the best teaching cases of his time on the Court. He names Heller, and continues:
I taught a 2A course for one year back in the 1970s, just because it was interesting. Back then, there was no there, there. Few cases and no "highly restrictive laws." Heller is a "great teaching case."
14th Amendment -- we'll have to revisit the entire incorporation doctrine (he sounds like he relishes the idea). And it's a very important case [he's referring to Heller, but I wonder if he means in follow up cases, or the 2A iin general] case for levels of scrutiny. Is the right to arms like the right to property, subject to many restrictions, or like the right to speech, subject to few?
The dissent said -- you're discovering this right after 200 years? What gives? That's not unusual. The first time we struck down a state law for violation of the establishment clause was in the 1940s, the first time we struck down a state law for violating freedom of speech was in the 1930s. Nothing wrong with that. The Constitution takes on new meaning over time. [This could be read as "living constitution," but I think he means that new meaning may be discovered by the Court]. I'm not in a class with the great Justices, Marshall, Holmes, but I do have the advantage of being able to view 200 years of history and know thereby what was folly and what was wisdom. If a right takes on new relevance, the Framers would have wanted us to recognize that.
Update: the link (rtsp://video1.c-span.org/60days/ac080908.rm) is a strange one, and I think it only works if you have RealPlayer installed).
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The Court cannot legitimately "discover" anything. Here's a lesson: Do you understand the relationship between Creator and created? Ok then. Who's your Daddy? We the People. What did we create? The Constitution. The People are superior to the Constitution and may alter or abolish the Constitution as the People see fit. [The amendment process is not a rule for the People. It is a rule for the government through which the government asks permission of the People for a change to or of the Constitution.] Next, the Constitution becomes the Creator when is creates the government. Thus the Constitution is superior to all of the government while remaining subordinate to the People. So all branches of the government are subordinate to the Constitution. As subordinates (the created), these branches hold no authority to determine, define, redefine, or alter the Constitution by way of any process. The government is not in charge; We the People are. Of course, this is how it is supposed to be, not how it currently is because our education system has failed to properly address the relationships of Creator/created and the created has gotten out of line. Why has the education system screwed things up? Take a look at who runs it. Can you say, "Agenda"?
Hamilton spoke of the Creator/created relationship in his writing on fundamental law theory which can be found in Carey, 1989: In Defense of the Constitution.
Dave
link is not working
DAVID M. MCCLEARY wrote:
Dave
link is not working
It works for me! You need RealPlayer to play it from the link. I looked around, but couldn't find the video on YouTube.
The "rtsp" means it uses the Real Time Streaming Protocol, meaning it is video file that is not downloaded, but is streamed.
There's a flash version from cspan here: http://www.c-spanarchives.org/library/index.php?main_page=product_video_info&cPath=18_19&products_id=280355-1&highlight=
There is a transcript in the comments at the Volokh Conspiracy - along with a quick link to the relevant section of the flash video.
Interesting, sounds like he is thinking some new level of scrutiny might be indicated. I guess it would be lower than "strict" since I can't imagine a standard of review that would be more stringent, other than perhaps no review at all.
Let's hope they don't set the level of review too low. Equating the 2A with property rights would be a horrible blow. Look at the Kelo decision...