Four Supreme Court Decisions: Abortion, Guns, Affirmative Action, Corruption…And Ethics. Part 3: Whole Woman’s Health v. Hellerstedt

shrinking-number-of-abortion-clinics-in-texas

[The Supreme Court came down with four controversial and ideologically contentious decisions in June, and I apologize for taking almost a month to cover them all. One of the reasons Ethics Alarms occasionally launches a series like this one is to ensure that developing ethics stories of importance do not push important issues to the sidelines. The fact that this four part series had only finished parts 1 and 2 was an irritant to me, as well as some readers.]

In Whole Woman’s Health v. Hellerstedt, decided on June 27, the Supreme Court held in a 5-3 majority that two provisions of a Texas law, one requiring physicians who perform abortions to have admitting privileges at a nearby hospital and another requiring abortion clinics in the state to have facilities comparable to an ambulatory surgical center,  places a substantial and unconstitutional obstacle in the path of women seeking an abortion, because they constituted an undue burden on abortion access.

Life would be so much simpler if our elected officials and activists employed an adaptation of the Golden Rule, and looked objectively at issues from the other side’s point of view. This is especially true in the realm of rights.  Second Amendment absolutists insist that virtually any laws regulating who can purchase guns, when and where they can purchase them, and how and how quickly they can be purchased are efforts to whittle away the right to bear arms. They also argue that such regulations have the ultimate goal of  eliminating that right entirely, which, in many instances is the case, especially if you listen carefully to the rhetoric of the legislators proposing such measures. There is little difference from this and what anti-abortion advocates are attempting to do with laws like House Bill 2 (H. B. 2).

The bill ostensibly is designed to make abortions safer, thus protecting women’s health, just as many gun laws are promoted as safety measures. Oddly, virtually all of the supporters of the Texas bill would make abortion illegal if they could. I’m sure it’s just a coincidence, just as it’s a coincidence that the authors of bills requiring potential gun owners to jump through increasingly burdensome hoops and deal with mandatory trigger locks and “safe gun” technology would gladly repeal the Second Amendment if they could. The ethical principle is the same in both matters: a right isn’t a right if legal obstacles make it difficult to exercise that right.

The question is, what’s a reasonable obstacle? Any regulation imposed on a constitutional right must not create “a substantial obstacle” and must be reasonably related to “a legitimate state interest.” The Supreme Court uses the language and logic of case precedents, which are its previous examinations of these issues and the balancing they require. One such case, though I did not find it mentioned in the majority opinion or dissents in Hellerstedt, would be the voter ID decision of many years ago, in which a strong majority ruled that the state interest in preventing fraudulent voters and maintaining the integrity of the election process justified inconveniencing those who were subjected to the extra burden of obtaining appropriate identification. In recent years, this decision has been questioned because many believe the motive behind voter ID laws is not really to protect the franchise, but to keep likely Democratic voting blocs from the polls.

Is there a difference legally between a bill that is authored with the intent to restrict the right to vote of older, poorer, and darker citizens while claiming that its sole purpose is to make sure non-citizens don’t affect the results of elections, and an identical  bill that is genuinely intended to safeguard the voting rolls, without any political motive at all? No, or at least there shouldn’t be. The Court’s job is to evaluate what the law does, not try to read the minds and hearts of those who wrote it. Justices only should try to do the latter when there is a debate over what the law says.

Ethically, however, there is a significant difference between a law using a public purpose as a sham to accomplish unethical ends, and a law with a legitimate purpose that has some negative side effects. Trying to restrict a citizen’s rights because one doesn’t respect those rights (or perhaps the citizen) is unethical.

The SCOTUS majority, in its typical examination of a balancing case like this, looked at whether there was a sufficient public safety benefit to a law that had resulted in a precipitous reduction in abortion services:

…[A]s the admitting-privileges requirement began to be enforced, the number of facilities providing abortions dropped in half, from about 40 to about 20; this decrease in geographical distribution means that the number of women of reproductive age living more than 50 miles from a clinic has doubled, the number living more than 100 miles away has increased by 150%, the number living more than 150 miles away by more than 350%, and the number living more than 200 miles away by about 2,800%; the number of facilities would drop to seven or eight if the surgical-center provision took effect, and those remaining facilities would see a significant increase in patient traffic; facilities would remain only in five metropolitan areas;  and the cost of compliance with the surgical-center requirement would most likely exceed $1.5 million to $3 million per clinic….

Meanwhile, based on the lower court’s findings and stipulations,

” [B]efore H. B. 2’s passage, abortion was an extremely safe procedure with very low rates of complications and virtually no deaths; it was also safer than many more common procedures not subject to the same level of regulation…”

Supreme Court decisions are fascinating reading, and often not so technical that a layman with reasonable intelligence can’t understand them. They seldom analyze cases based on right and wrong, however, because that can be attacked as subjective. This majority opinion mostly dwells on the question of  whether res judicata, which means that the issue has already been adjudicated decisively in the same matter, applies. The same plaintiffs in this case had challenged the law initially and lost. That was before the full results of the law were known, however, and on that basis, the majority agreed that this was in essence a new case because of new developments. The substantive conclusion of the majority, however, is here:

The record contains adequate legal and factual support for the District Court’s conclusion that the admitting-privileges requirement imposes an “undue burden” on a woman’s right to choose. The requirement’s purpose is to help ensure that women have easy access to a hospital should complications arise during an abortion procedure, but the District Court, relying on evidence showing extremely low rates of serious complications before H. B. 2’s passage, found no significant health-related problem for the new law to cure. The State’s record evidence, in contrast, does not show how the new law advanced the State’s legitimate interest in protecting women’s health when compared to the prior law, which required providers to have a “working arrangement” with doctors who had admitting privileges. At the same time, the record evidence indicates that the requirement places a “substantial obstacle” in a woman’s path to abortion. The dramatic drop in the number of clinics means fewer doctors, longer waiting times, and increased crowding. It also means a significant increase in the distance women of reproductive age live from an abortion clinic. Increased driving distances do not always constitute an“undue burden,” but they are an additional burden, which, when taken together with others caused by the closings, and when viewed in light of the virtual absence of any health benefit, help support the District Court’s “undue burden” conclusion.

The surgical-center requirement also provides few, if any, health benefits for women, poses a substantial obstacle to women seeking abortions, and constitutes an “undue burden” on their constitutional right to do so. Before this requirement was enacted, Texas law required abortion facilities to meet a host of health and safety requirements that were policed by inspections and enforced through administrative, civil, and criminal penalties. Record evidence shows that the new provision imposes a number of additional requirements that are generally unnecessary in the abortion clinic context; that it provides no benefit when complications arise in the context of a medical abortion, which would generally occur after a patient has left the facility; that abortions taking place in abortion facilities are safer than common procedures that occur in outside clinics not subject to Texas’ surgical-center requirements; and that Texas has waived no part of the requirement for any abortion clinics as it has done for nearly two-thirds of other covered facilities….

Then there was this damning statement:

“We add that, when directly asked at oral argument whether Texas knew of a single instance in which the new requirement would have helped even one woman obtain better treatment, Texas admitted that there was no evidence in the record of such a case.”

The long and technical dissents by Justice Alito and Justice Thomas involve complex analysis of res judicata and challenges to the majority’s legal reasoning. Thomas, however, makes another argument that goes to the intense ideological hypocrisy that I began with in this post. He writes…

The Court has simultaneously transformed judicially created rights like the right to abortion into preferred constitutional rights, while disfavoring many of the rights actually enumerated in the Constitution. But our Constitution renounces the notion that some constitutional rights are more equal than others. A plaintiff either possesses the constitutional right he is asserting, or not—and if not, the judiciary has no business creating ad hoc exceptions so that others can assert rights that seem especially important to vindicate. A law either infringes a constitutional right, or not; there is no room for the judiciary to invent tolerable degrees of encroachment. Unless the Court abides by one set of rules to adjudicate constitutional rights, it will continue reducing constitutional law to policy-driven value judgments until the last shreds of its legitimacy disappear.

Thomas is on record, and repeats this in his dissent, of believing that there is no right to abortion under the Constitution. That position established, he seems to be aiming this part of his dissent in the Texas abortion case at the disconnect between the majority’s “undue burden” analysis in Hellerstedt and its willingness to accept legislative burdens imposed on Second Amendment rights. Shortly after this decision was announced, in Voisine v. Unites States, by a 6-2 vote, the Court gave a thumbs up to a federal law prohibiting gun possession by persons convicted of a “misdemeanor crime of domestic violence.”  The paragraph in the Hellerstedt dissent was written by Thomas knowing that Voisine was coming. In that dissent, he argued that the Court was applying  a double standard: “undue burdens” on gun ownership were still reasonable and constitutional, but burdens on abortion must fall.

I see the legal point, and I agree that it is important to establish consistent standards for what protections are due constitutional rights. Thomas’s concerns are legitimate, and important to consider.

Ethically, however, Hellerstedt  is an easy call. The Texas law used imaginary safety concerns to eliminate the right to abortion as much as possible. That was the real objective, and it was an unethical one.

The decision was an ethical one.

_____________________________

Pointer: Neil Dorr, who reminded me that it was high time I finished this series. One more installment coming!

54 Comments

Filed under Government & Politics, Law & Law Enforcement, Rights

54 responses to “Four Supreme Court Decisions: Abortion, Guns, Affirmative Action, Corruption…And Ethics. Part 3: Whole Woman’s Health v. Hellerstedt

  1. The paragraph in the Hellerstedt dissent was written by Thomas knowing that Voisine was coming. In that dissent, he argued that the Court was applying a double standard: “undue burdens” on gun ownership were still reasonable and constitutional, but burdens on abortion must fall.

    Why could not persons convicted of domestic violence be prohibited from performing abortions?

  2. charlesgreen

    That’s s great piece of analysis–very informative and educational. Thank you!

  3. “Thomas is on record, and repeats this in his dissent, of believing that there is no right to abortion under the Constitution.”

    I ask every time someone says that abortion is a constitutionally protected right: “what part of the constitution grants that right?”, and they invariably don’t know. Some of the smarter ones will quote the decision and bow to the sage knowledge of the court, which is probably the most legitimate appeal to authority you can have, all the while remaining ignorant. The thing is, I’m not even sure that the justices knew, despite handing down that ruling, Justice Thomas certainly seems to agree with me.

    • charlesgreen

      I think the right to abortion is contained right there in the second amendment, with clarity and lack of ambiguity equal to that of the part that says the right to bear personal arms has absolutely nothing to do with 18th century militias

      • In most if not all States, The militia is every able bodied male of the correct age (which varies by State law). The National Guard is not the Militia.

        • In most if not all States, the Militia consists of all able-bodied males of the correct age (which varies by State law). The National Guard is not the Militia.

          The Second Amendment was included in the Bill of Rights to protect the right of the People through their Militias to protect themselves from the federal government. For this reason, the Second Amendment is as essential as it was the day it was written.

        • charlesgreen

          I think you missed my snarky point. For 80% of the life of the country, the militia clause was interpreted as NOT guaranteeing a personal rught to arms. The clause is notoriously ambiguous, one of the most in the whole constitutional area.

          • The Second Amendment isn’t ambiguous at all. The “ambiguity” has been introduced by those who wish to deny what it guarantees. It does not, per se, guarantee an individual right; however, since, in most States, every able-bodied male is a part of the militia, every able-bodied male is guaranteed that right. If there is ambiguity, it is in whether the right has been extended to include females. In my opinion it should be, but I do not know how many States have made that change in their State Constitutions or whether one can make that argument legally through the Fourteenth Amendment.

            • I want to rephrase part of the previous statement. The Second Amendment can be read by some not to guarantee an individual right to keep and bear Arms. I believe it was intended to guarantee an individual right.

              • charlesgreen

                ” The Second Amendment can be read by some not to guarantee an individual right to keep and bear Arms. I believe it was intended to guarantee an individual right.”

                You are of course entitled to your belief.

                But as a matter of law, it wasn’t until the 21st century that your belief came to have the power of law, as explicitly stated by the Supreme Court. For the previous two centuries, your belief was not the commonly held belief. Until then, the prevailing viewpoint was that expressed by Nixon appointee Chief Justice Warren Burger, who said:

                “The second amendment doesn’t guarantee the right to have firearms at all….[the Second amendment] has been the subject of one of the greatest pieces of fraud – I repeat the word ‘fraud’ – on the American public by special interests groups that I have ever seen in my lifetime.”

                Burger’s view, which was the majority view for most of the existence of the United States, was that the Second Amendment was meant to forbid the national government from abolishing state militias.

                In 1939, the Supreme Court rejected a challenge to the National Firearms Act of 1934 which banned sawed-off shotguns. In that ruling, the court said the amendment’s “obvious purpose” was “to assure the continuation and render possible the effectiveness of” the militia, and its “declaration and guarantee…must be interpreted and applied with that end in view.” Result: the legal banning of sawed off shotguns.

                The Supreme Court in 1939 did not share your belief about the intent of the Founders, despite being 80 years closer to those Founders than you and I are today.

                The original text is simply one of the most grammatically ambiguous passages in the Constitution. “A well regulated militia, being necessary to the security of a Free State, the right of the people to keep and bear arms shall not be infringed.”
                –If they wanted to say everyone can own guns, then why insert the two comma-separated opening clauses at all? Wouldn’t they be irrelevant?
                –And if they wanted to specifically delimit the use of guns for militia purposes only, why didn’t they add a clarifying “therefore”?

                My understanding is that it was literally the result of an inability to come to a final agreement about the federal funding of state militias – they ran out of time and fudged the language hoping it wouldn’t become an issue. Which it didn’t – until the last 30 years and the NRA.

                Jack has convinced me in these pages that the law is the law, and for legal purposes it doesn’t matter how recent the ruling is. Fair enough: but that doesn’t mean we should try to rewrite history.

                In particular, there is an unseemly contradiction between those who want to argue original intent, and who then dismiss two centuries of historical interpretation to insist that today, in 2016, we somehow understand the original intent better than all those who came before us.

                The amendment as written is simply unclear. And the existing law IS now more as you would wish to believe it than as I might.

                • A couple of supplementary observations:

                  1. As an authority to appeal to, Burger is more deficient than most. He was widely regraded as a medicore legal mind and jurist when Nixon appointed him (along with Blackmun), and nothing he did as Chief Justice eased that harsh conclusion.

                  2. I have come to believe that the Second Amendment has become more significant as a guarantee of gun rights as the culture began questioning whether gun rights should be eliminated by the state. When the Second Amendment was written, the American public electing representatives who would take away citizens’ right to own guns was unthinkable. To have a militia, men had to be allowed to have guns: the guarantee of the first requires a right to own guns, but it is disingenuous to say that now that militias don’t exist, it would follow that the Founders would consent to have guns banned.

                  3. I don’t think the amendment is unclear at all. I think people who oppose gun rights want it to be unclear.

                  • charlesgreen

                    I follow your logic in point 2, and find it very reasonable.

                    But note – that logic is inferential. You suggest that, if militia were to be kept up, then by implication you can infer that people should be able to own weapons.

                    I get that – but it’s not the same thing as the claim that the Second Amendment unambiguously guarantees the right of individuals to own weapons. You have to make two inferences to get there: one is that individual weapons (e.g. hunting rifles) means the same things as “bearing arms” (i.e. using guns for common defense), and secondly that militia must rely solely on individuals’ resources, i.e. individual ownership of guns.

                    I buy the logic, but don’t tell me it’s “clear.” It doesn’t seem all that different from other inferences the courts have drawn over the years about other rights – deductive, inferential, and situational.

                    • It would be inferential if the founders hadn’t explicitly included the words ‘the right to bears arms shall not be infringed.’

                      ‘You have to make two inferences to get there: one is that individual weapons (e.g. hunting rifles) means the same things as “bearing arms” (i.e. using guns for common defense), and secondly that militia must rely solely on individuals’ resources, i.e. individual ownership of guns.’

                      So just… let me get this straight….. You think that in order to safeguard freedom against a tyrannical government, communities should have…. communal armouries? No one owns the guns, but everyone owns the guns, and they’re all safely locked up by… whom?

                      How do you come up with this shit? I mean really… ‘bearing arms’ doesn’t mean owning them, we just get to play with them? ‘Bearing arms’ only means ‘using guns for common defense’? You’re arguing historical accuracy… Has that ever been the case, ever?

                    • I like that argument. “The flourishing of well-regulated civic discourse being essential to a functioning democracy, the right to freedom of speech shall not be infringed.” OK, well-regulated civic discourse is deader than local militias. Would that language mean that the Founders didn’t want us to have free speech today?

                    • Don’t give them ideas.

                  • “…but it is disingenuous to say that now that militias don’t exist…”

                    It would be disingenuous to even say that the militia doesn’t exist now…

                • ‘Burger’s view, which was the majority view for most of the existence of the United States, was that the Second Amendment was meant to forbid the national government from abolishing state militias.’

                  I wonder why you think these things are mutually exclusive, as opposed to inexorably entwined: Who is in a militia? Citizens? What would they require in order to form a militia? Firearms? Well then. Are we done here?

            • charlesgreen

              “The Second Amendment isn’t ambiguous at all.”

              Au contraire. The following comes from Nelson Lund, of the Antonin Scalia Law School at George Mason. He agrees with your conclusion about the Second Amendment, by the way, but is quite critical of the reasoning which the court used in Heller to get there. Ambiguous? You bet it is. Read…

              —————

              In Heller, the lawyers who initiated the litigation won their
              test case. Justice Scalia and his colleagues, however, flunked their
              test. This was a near perfect opportunity for the Court to demonstrate
              that original meaning jurisprudence is not just “living
              constitutionalism for conservatives,” and it would been perfectly
              feasible to provide that demonstration. Instead, Justice Scalia’s
              majority opinion makes a great show of being committed to the
              Constitution’s original meaning, but fails to carry through on that
              commitment.

              In a narrow sense, the Constitution was vindicated in Heller
              because the Court reached an easily defensible originalist result. But
              the Court’s reasoning is at critical points so defective—and so
              transparently defective in some respects—that Heller should be seen
              as an embarrassment for those who joined the majority opinion. I fear
              that it may also be widely (though unfairly) seen as an
              embarrassment for the interpretive approach that the Court purported
              to employ. Originalism deserved better from its judicial defenders.

              With respect to the other two challenges for originalism,
              Heller was a good test because the Second Amendment poses some
              genuine puzzles. The text, for example, is a unique constitutional
              provision that combines a preface and a command. “A well regulated
              Militia, being necessary to the security of a free State, the right of the
              people to keep and bear Arms, shall not be infringed.” What does the
              preambular reference to the importance of a “well regulated Militia”
              have to do with the “right of the people” to keep and bear arms? One
              usually thinks of constitutional rights as obstacles, not spurs, to
              regulation, and it is not immediately evident (at least to typical
              twentieth-first century readers) why or how this right to arms would
              contribute to a well regulated militia.

              The great threshold question when interpreting the Second
              Amendment concerns the relationship between the prefatory phrase
              and the operative clause. Different interpretations of this relationship
              have generated two opposing conclusions about the meaning of the
              text.
              Those who focus on the operative clause argue that the protected
              right is that of individual citizens to keep and bear their privately
              owned weapons. Those who focus on the Amendment’s preamble
              argue that the protected right is the right of state governments to
              maintain military organizations, or at most a right of individuals to
              keep and bear arms while serving in such organizations. In Heller,
              Justice Scalia’s majority opinion adopts the individual- or privateright
              interpretation, while Justice Stevens’ opinion for the four
              dissenters adopts the collective-right or military-service
              interpretation.

              Reduced to the simplest possible summary, Justice Scalia’s
              argument is as follows. The term “the right of the people” in the
              operative clause presumptively implies an individual and private
              right, just as it does in the First and Fourth Amendments.

              Stripped to similarly concise essentials, Justice Stevens’s
              argument is that the Second Amendment’s operative clause strongly
              suggests a military purpose, especially through its use of the term “bear arms,” and certainly does not unequivocally identify a right of
              individuals to have and use weapons for private purposes such as self
              defense.

              Justice Scalia’s effort to reconcile the two different statements
              in the text of the Second Amendment begins with his assertion that
              the language of the operative clause implies that it protects a preexisting
              right.12 As a matter of linguistic analysis, this is fallacious.
              One could write a constitutional amendment, for example, that said:
              “The right to travel to Cuba shall not be infringed” or “The right to
              free medical care at government expense shall not be infringed.”
              Such language does not imply the pre-existence of a right to travel to
              Cuba or a right to free medical care. Of course, there certainly was a
              pre-existing right to keep and bear arms in 1791, and the Second
              Amendment can be read as referring to that right. But need it be so
              read?
              Not if you interpret the Second Amendment’s prefatory phrase as defining the purpose or scope of the right. In that case, you
              might conclude that the right to arms is protected only to the extent
              that it contributes to a well regulated militia. In order to invalidate the
              D.C. gun regulations, you would then have to show that they are
              inconsistent with having a well regulated militia. Justice Scalia tries
              to avoid this challenge by asserting that the Second Amendment’s
              preface tells us nothing about the scope or purpose of the right to
              arms, but merely explains why the right was codified in the
              Constitution.13 This may be the best reading of the text, but Justice
              Scalia merely asserts his conclusion.
              His explanation of the purpose of the codification, moreover,
              makes no sense. Justice Scalia asserts that “the Second Amendment’s
              prefatory clause announces the purpose for which the right was
              codified: to prevent elimination of the militia.”14 This is false. The
              text of Second Amendment refers to “a well regulated militia,” not to
              “the militia.” It is self evident that these are not synonymous terms,
              and Justice Scalia himself acknowledges as much when he
              distinguishes between an organized and an unorganized militia.15
              Building on his fallacious premise, Justice Scalia claims that Article
              I and the Second Amendment both assume that “the militia” is
              already in existence, and that it means “all able-bodied men.” This is not exactly wrong, but it makes nonsense of Justice Scalia’s claim that the purpose of codifying the right to arms was to prevent the
              elimination of “the militia.” The nation’s able-bodied men would not
              be eliminated if they or anyone else were to be disarmed.

              ——–
              And so on. Lund makes it clear that he thinks ultimately Scalia was correct in his originalist analysis. But as he rigorously points out, it’s far from a no-brainer.

              To claim that “shall not be infringed” is the be-all and end-all of the second amendment is just sloppy thinking. The status of the guaranteed personal right to own guns, as I said at the outset, was never understood to be the original intent of the second amendment until the 21st Century. That doesn’t mean it isn’t law now; it doesn’t mean it isn’t the correct interpretation, or even that it was all along.

              But it MOST DEFINITELY means it is far from the clearest passage in the constitution – which is all I was claiming.

              • But aren’t you bothered when someone tries something like this, Charles?:

                “One usually thinks of constitutional rights as obstacles, not spurs, to
                regulation, and it is not immediately evident (at least to typical
                twentieth-first century readers) why or how this right to arms would
                contribute to a well regulated militia.”

                I am. In fact, I can’t trust someone who tries a word game like that in support of any proposition. The Amendment’s use of “well-regulated” wasn’t, as he despicably and dishonestly suggests, akin to the modern use of regulation. The phrase “well-regulated” was in common use long before 1789, and it referred to the property of something being in proper working order. Something that was well-regulated was functioning as it was supposed to. Either Lund doesn’t know that, and he’s not a good enough scholar to pay attention to, or, as I expect, he does, and is pulling a fast one. I really hate that. I suspect you do too.

                • I agree that the Amendment is, if not ambiguous, written in such a way that it obstructs sufficient clarity.

                • Addendum:

                  The following are taken from the Oxford English Dictionary:

                  1709: “If a liberal Education has formed in us well-regulated Appetites and worthy Inclinations.”

                  1714: “The practice of all well-regulated courts of justice in the world.”

                  1812: “The equation of time … is the adjustment of the difference of time as shown by a well-regulated clock and a true sun dial.”

                  1848: “A remissness for which I am sure every well-regulated person will blame the Mayor.”

                  1862: “It appeared to her well-regulated mind, like a clandestine proceeding.”

                  1894: “The newspaper, a never wanting adjunct to every well-regulated American embryo city.”

                • charlesgreen

                  Truth be told, both you and he operate well above my pay grade in this area.

                  I only quoted selectively from his link the law review article. If you were to read it in its entirety (and I do recognize you have a real day job), I would be quite willing to accept your verdict, one way or the other.

          • That reads… revisionist to me. It didn’t guarantee a right to bear arms? Then what did it do? Guarantee free abortions?

            “A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.”

            If you want me to believe that in some kind of context, “the right of the people to keep and bear arms” did not mean the right to own those arms personally, you’ll have to explain it to me.

            • Would you agree with the following statement?

              Since the Second amendment guarantees an individual right, without the possibility of infringement, to keep and bear arms, and since the Second Amendments makes no limitations on the type of Arms that are to be borne, and since no amendment to the constitution has been passed specifying a limit on those arms, all gun control and, in fact, arms control, laws are unconstitutional.

              • I…. don’t know. There’s a certain amount of pleasant simplicity in agreeing to that: “What part of SHALL NOT BE INFRINGED confuses you?!”

                But this seems a more… nuanced issue than that. What is an “arm”? Are we talking about anything up to “Mutual self destruction”? Does “people” include foreigners? Do people surrender certain rights upon the commitment of a crime? Better minds than mine have asked these questions.

                I think that the second amendment is a… defensive measure. Which might seem mind boggling to a shill like Charles, the idea was to defend against tyranny, and so the population should be able to use whatever would be necessary to defend against a threat to the population in general… If this scares the police, perhaps it should. I have very little doubt that the founders envisioned some kind of enforced technological buffer zoen between government arms and rivate ones. On the same note, I think it might be the case that the reason they used “Arms” instead of firearms, or some other more specific label was because they envisioned the amendment in the face of technological change, and wanted the right to expand along with the times, although THAT could be revisionist.

                The militarisation of the police by this logic should actually be used as a segue to looser control…. But only to the extent of a defensive measure. The defence against nuclear weapons isn’t nuclear weapons, that’s just salted earth.

                • But through M.A.D., nukes were defensive weapons. While M.A.D. seems mad, we never reached that final point of madness. It is a tougher fish to fry, however, to design a way in which such weapons would theoretically be useful on the small scale as an [i]internal[/i] defensive weapon.

                  Agreeing with the statement in my previous post doesn’t lock you into agreeing that individuals should have such weapons. You can always state that you agree with the statement and think the Constitution should be amended to deny such weapons to individuals.

                • valkygrrl

                  I like to remind people that George Washington wore a sword but in being more than four inches long I’d get in trouble if I did the same (I wouldn’t do the same, wearing a sword is a huge PITA when you have to sit down.) Throwing stars are illegal in my state, switchblades as well and I don’t see the 2’nd amendment enthusiasts making a stink.

                  • I think that is where a tactical error was made. In not fighting against the outlawing of some Arms (because most felt that these were not reasonable for a civilian to bear), the concept that an Arms control law without a Constitutional amendment was legitimized in the minds of most.

                  • Wait—you’re only four inches long????

                    • valkygrrl

                      More than four inches long. 😛

                      Wait, what are we talking about? My sword is a 37 inch rapier but I only wear it to renaissance fairs as in most other places swords are impractical fashion accessories.

                      If you mean anything else, I lack the equipment for a measuring contest so you win or whatever.

                    • I was talking about your dubious antecedent: “but in being more than four inches long, I’d get in trouble if I did the same.”

                      But you’re right…you did say you were MORE than four inches long. Which I always assumed.

                    • The one in my avatar is a 3/4 replica William Wallace sword… 44.5 inches. I was never able to find a full-size one. (“Some men are longer than others.”)

            • charlesgreen

              “If you want me to believe that in some kind of context, “the right of the people to keep and bear arms” did not mean the right to own those arms personally, you’ll have to explain it to me.”

              See my comment to ThomMcDaniel above.

      • So what you’re saying is that you don’t know either.

    • In Roe v. Wade, the Court established the right to privacy protected by the Due Process Clause of the 14th Amendment to the Constitution. I believe the Court also established that the word “person” as used in the Due Process Clause and other provisions of the Constitution did not include the unborn, and therefore the unborn lacked constitutional protection. The Court stated that the right to privacy included a woman’s decision whether or not to have an abortion.

      • janpchapman

        This was supposed to answer Humble’s question about which part of the Constitution gave a woman the right to have an abortion. Somehow it landed here.

      • Right, that was the decision, but doesn’t that strike you as a torturously twisted reasoning? The same people that are arguing that the second amendment is somehow ambiguous want to argue that the 14th amendment clearly guarantees a right to abortions. And then they’re shocked (Shocked! I tell you!) when I suggest they have a legitimacy issue.

        • charlesgreen

          “The same people that are arguing that the second amendment is somehow ambiguous want to argue that the 14th amendment clearly guarantees a right to abortions.”

          Who are these “same people?” Can you cite one?

          For what it’s worth, they both strike me as less than “clear guarantees.”

          • Exactly. I wasn’t defending the clarity of the decision, but giving you the ruling of the Court. I think the last forty-some years of argument prove that the ruling is not settled for many people, including myself.

            • If you read my first post (Oh so far up there), you’ll find that quoting the decision is what I expected the smarter proponents to do (feel good: You were the first and only to go there, even after I pointed it out)). The problem is that that is still an ignorant position: You can quote the reasoning, but I don’t think you understand it. Proponents are generally happy enough that someone else has understood it and interpreted it in the way they want to, but the nuance is generally lost on them.

              And I think the reason no one has ever been able to explain to me the reasoning behind the decision is because the reasoning is so weak that it stymies even the most shameless of partisan hacks, who have to then default to an ‘I don’t know, but SCOTUS said so’ position.

              At the end of the day, that’s enough, I suppose, SCOTUS did say so. But like I said, no one gets to call the right to bear arms ‘vague’ while calling abortion a ‘constitutional right’, and despite your incredulity, those beliefs aren’t uncommon among a certain progressive bent.

              • In truth, you have no idea what my position is on the Second Amendment, as I have never posted it here (or anywhere else), reason being I don’t feel that I can articulate it clearly to those who are so much more knowledgeable than I. I can say that “incredulous” is not a word I would use, nor the word “vague.” I do often have to remind my liberal friends that the right to bear arms is guaranteed in the Constitution. My comment was specific to the right to an abortion.

                • Right, which is why I never once included you in the group of ‘people’ or ‘proponents’ I talked about in regards to the second amendment, that wasn’t about you, although Charles quick rise to the occasion was pertinent, because I was specifically thinking about him.

                  What was about you is an underlying ignorance and acceptance of convenient facts, you can quote the decision all you want, I still don’t think you understand it. I’m on the record saying I think abortion should be legal, even while condemning the women who do it as generally horrible people… But not everything we SHOULD be able to do is a constitutional right, and not everything that is a right is a constitutional right. I think that abortion was a square peg crammed into a round hole that was Roe v. Wade in a political manoeuvre to make pro-life legislation harder.

          • You, for one. You wrote not that long ago that you thought that the second amendment didn’t cover personal ownership, althought you were vague in what you thought the alternative was, and I’m sure you’ve called abortion a consitutional right before, although you seem to have backpedalled a little on that here.

            But even then, you seem to think that they’re on equal footing, the regressive in you just can’t bring itself to admit that a specifically enumerated right by definition has a more clear protection that something tenuously connected through the ephimery of ‘privacy’.

            This isn’t surprising, you are after all the person who answered the question ‘Have you ever come across a form of gun control you didn’t like?’ with a law that controlled against water pistols.

            I don’t see the clear connection there, but I don’t need to, SCOTUS ruled. but I think that anyone who thinks that adbortion is a constitutionally protected right should be estopped from ever complainign about the vaguarity of the second amendment.

  4. “Is there a difference legally between a bill that is authored with the intent to restrict the right to vote of older, poorer, and darker citizens while claiming that its sole purpose is to make sure non-citizens don’t affect the results of elections, and an identical bill that is genuinely intended to safeguard the voting rolls, without any political motive at all? No, or at least there shouldn’t be.”

    Is that the correct answer? The way the question is posed, the answer should be, “Yes, there is a legal difference and the law is unconstitutional”. It seems to me that, if there is an improper burden placed on a Constitutional right based on the discriminatory intent of the law, then the law should not withstand Constitutional scrutiny. If there is a burden on, say voting rights because of voter ID rules and regulations, then to withstand strict scrutiny analysis, then the law must be tailored to meet a compelling state interest with no other less restrictive alternatives available to the state to achieve that interest. If the state is imposing voting rules with the intent to disenfranchise minority voters, then that law if going to fail. However, a law intended to preserve the integrity of the electoral system which has an impact on certain groups, then the law may pass Constitutional muster.

    jvb

    jvb

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