Crib Notes

3 07 2010

When I bought books in advance of courses in college, I picked used books that seemed to have the most intelligent and insightful margin notes written by a previous owner.  That not only saved me some money, but it saved me the trouble throughout the semester of having to ferret out the salient points.

At first, I wanted to write something really long and scholarly about my take on the McDonald ruling, as I read all the Justices’ opinions today (finally).  But then I read the notepad file full of random thoughts that I would have written in the margins if I were reading this on dead trees and ink.   After reading that, I’ll just let you read that, instead of something which would take me several hours of this very decent day to compose.

I must preface this by saying that I’m not a lawyer, nor do I play one on TV.  I have enough interest in the legal arena, thanks to my political activism and interest in process of public policy formulation, plus enough credit-hours in classes like business law, so that I can fairly adequately find my way around a 200-page Supreme Court decision.

My crib notes start below the asterisks.  I’ll let you figure out the abbreviations for yourself.  I mix in editorializing with my interpretations of the Justices’ writings here and there, so that’s left for you to figure out where one begins and the other ends.  Remember, this is just my plain raw stream of consciousness.

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Alito (plurality winning side):

*  Chicago tried to use “international law” — WTF who cares what the gun law is in Finland and Luxembourg?  This is America.

*  Not incorporating 2 into 14, for that matter, not incorporating all the BoR into 14, violates the spirit of 14, by not treating all the BoR equally, and by creating the potential for severe state-federal differences.  Substantive Due Process Clause mated with Equal Protection, rather than privileges and immunities clause.

*  Chicago whines about lawsuit costs — Why I wanted to see a consent decree as part of McDonald, to hand-cuff Chicago to keep them from dicking around and other bullshit like they’re about to do.  That way, no more lawsuits that Chi has to defend against.  Ez as that.

*  Reasonable restrictions for outside the home — What’s “reasonable?”  Another reason I wanted a consent decree.  See above.  I might have the wrong term for it, term I’m looking for means constant state of Federal court supervision over the activity of a locality or state.  Like with the deseg shit, many cities had to pre-clear changes on schools etc with a Federal judge — STL had whole parts of metro area under supervision of a cousin/uncle (?) of Rush Limbaugh.  Whatever that’s called, they need to do it to CHI — and not some liberal Clinton/Carter/Obama hack, have Clarence Thomas do it, or someone on the winning side of this argument.

*  Rehashed history of feds vs antifeds on need for BoR.  IMHO, history has proven antifeds right.  And IMHO, this whole McDonald case is yet another demo why antifeds were right, if you read carefully.  W/O 2nd, ergo W/O antifed-demanded BoR, Otis McDonald would be SOL here.

Scalia:

* Pwn3s Stevens.  Essentially calls him a scatter-brained hypocritical old fuddy duddy.  (Anton, Wait until Kagan gets in.)  Going away present LOL,  Happy retirement JP :)

Thomas (concurring but strongly dissents from plurality winning side):

*  Most profound of all the opinions, creates the most future precedent.  Ironically, I have the least problem with what the black guy married to a white woman says here LOL

* Goes for privilieges and immunities incorporating 2 into 14.  Says it’s square with the OI of the 14th.

* Disagrees with Alito over the use of SDP/EP to inc. 2 into 14, stating that it’s rife for future court abuse and not square with OI of the 14th

* Demonstrates that phrase “Privileges and Immunities” in the 14th, going back to early British colonization of North America, extending to post-WBTS times, in context of time place manner, means civil liberties.

* “PandI” clause found in Art 4 Sec 2, so it predates 14th amendment, and would exist and be enforceable even w/o 14th, and means that any BoR civil liberty can be incorporated over the states.

*  4/2 meant that citizenship is dual between Fed and state, and that one state’s citizen was a de jure citizen of any state in the union s/he travels to while in that state, when it comes to civil liberties, but not other state-granted privileges to the state’s citizens/residents, like welfare benefits.

*  Though 4/2 = 14/1, thereby making the 14th superfluous insofar as the McDonald case at hand, Thomas proves that incorporating 1 through 8, including 2, upon states, was an express and open desire of the construction of the 14th.

*  CRA 1866, passed by almost all the same Congressmen and Senators who approved the language for the 14th Amendment, explicitly called for incorporating 1-8, and including the spirit of 2 by name, onto the states.  (Please apply that logic to deseg — same Congress segregated DC public schools, so deseg was never part of the 14th’s OI.  While we’re at it, realize that Union guns forced some southern state legis. to ratify 14th, basic tenet of contract law is that no duress should be present.)

*  Admits that Haiti + Nat Turner fueled southern slaveowner fear, and laws prohibiting literacy education of blacks (“A little learning can be a dangerous thing” — Alex. Pope), gun ownership by slaves or freed blacks, and repression of first amendment rights to speak out against slavery, were done because slaveowners & the politicians they feted wanted to preserve increasingly expensive slaves (importation was banned after 1808, tighter supply plus increased demand from lucrative world cotton market made black slaves increasingly more expensive in the South from 1808 to the WBTS.)  Thought slavery was bad because of the moral contradictions of liberty, and that it would inexorably lead to the rights of free whites and blacks being repressed, and to capricious Federal laws like the Fugitive Slave Act, passed b/c the slave owning class was able to predominate the American national body politic circa 20 yrs before WBTS till Lincoln.  (Thomas is right, but lets apply this logic to 2day — income tax also begs the same kind of arbitrary and capricious enforcement, it like slavery is a tar baby.)

*  Proto-Klan style outfits disarmed freed blacks in the South after the WBTS, and this is part of what CRA 1866 and the 14th’s “PandI clause” was meant to address.  (EDITORIAL:  Blacks weren’t totally innocent players through all this.  I reject Thomas’s et al. assumption that blacks were on angels side and whites on devils side, in the post-war imbrogliana South.)

*  Slaughter-House isn’t inconsistent with McDonald if you use the PandI clause.

*  The PandI clause, mated with the 9th amendment, and various and deliberatey vague clauses in other amendments, means that it’s not just listed civil liberties that are part of “privileges and immunities.”

*  Cruickshank case is bad precedent b/c it itself overturned precedent and spat in OI of 14/1 and 4/2, so it itself can be overturned.

Stevens:

*  Hate to say it, but Scalia was right, even if cruel.

Breyer (main dissenter):

*  Only thing I’ll say about this is that Sotomayor countenances this dissent, and this dissent denies Heller like Peter denied Christ.  Sotomayor said in confirm hearings last year that Heller was settled law and she wouldn’t interfere w/it.  Two-faced Sonie the phony.

General Notes:

*  Though Chicago is a city, cities+counties are creations of state they’re in, so a city or county action is implicitly a state action.  So incorporating 2 into 14 upon the STATES is still relevant here.

*  Why can’t Otis McD use a shotgun, which are still and always were OK in Chi, libkooks asking?  (This whole debate is about concealable firearms, barrel length < 20in, ie “handguns.”  FGS, he’s an old man, it might be easier for him to use a revolver or even a sawed off shotgun than a pure shotgun.  Pistols are hard to use if you’re old and have feeble hands.  But saw off a shotgun too much and it becomes a “handgun” legally — Randy Weaver found that out hard way.)

*  Overall, I’m of the opinion that a short Constitution is a mistake.  Ppl like to bitch about long wordy lawys and the army of lawyers it takes to write/maintain/interpret them.  But you need wordy laws to keep gov’ts from dicking around w/you and fucking around w/you.  Short laws/statues are rife for abuse and capricious application.  Same for constitutions:  IMHO, BoR needs to be way longer, and to apply to all 3 branches o/govt.  I’d take the “militia” part out of 2nd, just to keep from confusing ppl.  (Scalia said in Heller that it was perfatory neway).  I’d also add golf to the list of powers denied to a President.  (Tuff luck, Obama LOL – Get your black ass down to the Gulf and do your damned job.  And fuck that Hungarian blue blood who’s pulling all your strings.)  Napoleonic Civil Law is very wordy/verbose, so it cuts down on possibility for abuse.  Guilty until proven innocent in criminal side of Napol. Law seems cruel, but trade off is that police can’t touch u until you’re damn near convicted beyond reasonable doubt — fairier for less wealthy criminal suspects.  Under our laws, you can arrest/indict ne1 for nething practically, put his mug all over the interwebs and slander him for life if he truly didn’t do it — Thankfully, getting it wrong doesn’t happen that often.

I said on Monday when McD ruling came down that it was still a bad idea to lean on all the race history shit, b/c it would piss off whites and turn them anti-2nd.  I still think that, but thankfully, most ppl, white or otherwise, don’t read SCOTUS rulings.  I have no problem with running Otis McDonald up the flagpole, he’s old, and probably never hurt a fly in his life, even if black.  (Otis McD wasnt only plaintiff, there were at least 3 other, but NRA put old black guy out there for PR reason)  Ideally, if 2nd and race start conflicting, amend CRA 1965 to force courts to see race with intermediate scrutiny, the same standard for gender.

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