Tag Archives: supreme

Supreme Court Declares That the Second Amendment … – NRA-ILA

Posted: July 18, 2016 at 3:30 pm

Supreme Court Declares That the Second AmendmentGuarantees an Individual Right to Keep and Bear Arms — June 26, 2008

Fairfax, VA Leaders of the National Rifle Association (NRA) praised the Supreme Courts historic ruling overturning Washington, D.C.s ban on handguns and on self-defense in the home, in the case of District of Columbia v. Heller.

This is a great moment in American history. It vindicates individual Americans all over this country who have always known that this is their freedom worth protecting, declared NRA Executive Vice President Wayne LaPierre. Our founding fathers wrote and intended the Second Amendment to be an individual right. The Supreme Court has now acknowledged it. The Second Amendment as an individual right now becomes a real permanent part of American Constitutional law.

Last year, the District of Columbia appealed a Court of Appeals ruling affirming that the Second Amendment to the Constitution guarantees an individual right to keep and bear arms, and that the Districts bans on handguns, carrying firearms within the home and possession of functional firearms for self-defense violate that fundamental right.

Anti-gun politicians can no longer deny that the Second Amendment guarantees a fundamental right, said NRA chief lobbyist Chris W. Cox. All law-abiding Americans have a fundamental, God-given right to defend themselves in their homes. Washington, D.C. must now respect that right.

Read the opinion (1 MB)

Highlights From The Heller Decision

On March 18, 2008, the U.S. Supreme Court heard oral arguments in District of Columbia v. Heller.

Listen to the audio recording of the oral arguments (RealPlayer required)

View the transcript

The Court announced its decision to take the case in which plaintiffs challenge the constitutionality of the District’sgun ban last Fall. The District of Columbia appealed a lower courts ruling last year affirming that the Second Amendment of the Constitution protects an individual right to keep and bear arms, and that the Districts bans on handguns, carrying firearms within the home, and possession of loaded or operable firearms for self-defense violate that right.

In March, the U.S. Court of Appeals for the D.C. Circuit held that [T]he phrase the right of the people, when read intratextually and in light of Supreme Court precedent, leads us to conclude that the right in question is individual. The D.C. Circuit also rejected the claim that the Second Amendment does not apply to the District of Columbia because D.C. is not a state.

The case marks the first time a Second Amendment challenge to a firearm law has reached the Supreme Court since 1939.

Briefs filed on behalf of Heller and Washington D.C.

Amicus brief filed by the United States

Amicus briefs filed in support of Heller

Click the links below to read recently filed amicus briefs in support of Dick Anthony Heller in the upcoming case District of Columbia v. Heller.

Click the links below to read recently filed amicus briefs in support of Washington D.C.

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The Right to Bear Arms

Posted: July 12, 2016 at 6:19 am

Miller was subject to two possible interpretations. One, that the Second Amendment is an individual right, but that the right only extends to weapons commonly used in militias (the defendants in Miller were transporting sawed-off shotguns). The second–broader–view of Miller is that the Amendment guarantees no rights to individuals at all, and the defendants lost the case as soon as it was obvious that they were not members of a state militia.

In 2008, the U. S. Supreme Court, in District of Columbia vs. Heller, struck down a Washington, D.C. ban on individuals having handguns in their homes. Writing for a 5 to 4 majority, Justice Scalia found the right to bear arms to be an individual right consistent with the overriding purpose of the 2nd Amendment, to maintain strong state militias. Scalia wrote that it was essential that the operative clause be consistent with the prefatory clause, but that the prefatory clause did not limit the operative clause. The Court easily found the D. C. law to violate the 2nd Amendment’s command, but refused to announce a standard of review to apply in future challenges to gun regulations. The Court did say that its decision should not “cast doubt” on laws restricting gun ownership of felons or the mentally ill, and that bands on especially dangerous or unusual weapons would most likely also be upheld. In the 2008 presidential campaign, both major candidates said that they approved of the Court’s decision.

Heller left open the question of whether the right to bear arms was enforceable against state regulation as well as against federal regulation? In 1876, the Supreme Court said the right–if it existed–was enforceable only against the federal government, but there was a wholesale incorporation of Bill of Rights provisions into the 14th Amendment since then. In 2010, in the case of McDonald v Chicago, the U. S. Supreme Court held (5 to 4) that the 2nd Amendment right has been incorporated through the 14th Amendment’s Due Process Clause and is fully enforceable against the states. The Court, in an opinion written by Justice Alito, proceeded to strike down Chicago’s gun regulation insofar as it prohibited the private possession in the home of handguns for self-defense. Justice Thomas, concurring, would have held the right to bear arms to be a right protected by the Privileges and Immunities Clause of the 14th Amendment, an approach to applying Bill of Rights protections against the states first rejected in the 19th-century Slaughter-House Cases and never used since.

Cases United States vs. Miller (U.S. 1939) District of Columbia vs Heller (U.S. 2008) McDonald v Chicago (U.S. 2010)

Justice Antonin Scalia, for the majority in District of Columbia v Heller (U. S. Supreme Court 2008)

The Supreme Court votes 5 to 4 to strike down a Washington, D. C. ban on the private possession of handguns. Justice Scalia authors majority opinion.

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The Right to Bear Arms

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Eugenics in Virginia: Buck v. Bell and Forced Sterilization …

Posted: June 27, 2016 at 6:27 am

Photograph of Supreme Court Justice Oliver Wendell Holmes. Courtesy of the Library of Congress. [1.1] Supreme Court Justice Oliver Wendell Holmes, Jr. in Buck v. Bell

It is better for all the world, if instead of waiting to execute degenerate offspring for crime or to let them starve for their imbecility, society can prevent those who are manifestly unfit from continuing their kind Three generations of imbeciles are enough. ~Oliver Wendell Holmes

Writing for the majority in the Supreme Courts affirmative decision of the Buck v. Bell landmark case, Oliver Wendell Holmes Jr. described Charlottesville native Carrie Buck as the probable potential parent of socially inadequate offspring, likewise afflicted stating that her welfare and that of society will be promoted by her sterilization.

Current scholarship shows that Carrie Bucks sterilization relied on a false diagnosis premised on the now discredited science of eugenics. It is likely that Carries mother, Emma Buck, was committed to a state institution because she was considered sexually promiscuous, that the same diagnosis was made about Carrie when she became an unwed mother at the age of 17 due to being raped, and that her daughter Vivian was diagnosed as not quite normal at the age of six months largely in support of the legal effort to sterilize Carrie.

2004 Claude Moore Health Sciences Library

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War-On-Drugs.net

Posted: June 21, 2016 at 11:19 pm

US Admits Failings As Afghan Poppy Output Doubles (And A Staggering 36 Times More Than The Taliban)

by Arianna Huffington, April 2, 2002

In an infuriating blow to reason, logic, fairness, compassion and equal justice, the Supreme Court ruled last week that people living in public housing can be evicted for any drug activity by any household member or guest — even if the drug use happened blocks away from the housing project and even if the tenant had no inkling that anything illegal was taking place.

Chew on that for a second. The highest judicial body in the land has said –unanimously — that it’s OK to toss people who the court acknowledges are innocent out of their houses for crimes they didn’t commit and didn’t even know about. The generals in the drug war are getting mighty desperate –and silly.

The justices did not just uphold the constitutionality of the “One Strike and You’re Out” eviction policy, first implemented by the Clinton administration in 1996; they also rushed to its defense, calling it “reasonable,” “unambiguous” and “not absurd.”

But try to tell Pearlie Rucker that the law’s not absurd. She was the named defendant in the case the court ruled on, a 63-year-old great-grandmother who found herself and everyone living with her facing eviction when her mentally disabled daughter was caught possessing cocaine — three blocks away from Rucker’s apartment. Or to co-defendant Herman Walker, a disabled 79-year old man, who now stands to lose his home because his full-time health care worker was found with drug paraphernalia in the apartment. You’d think that if the Supremes didn’t understand the hardship of poverty, they’d at least understand the hardships of old age.

When the Ninth Circuit Court of Appeals had struck down this draconian policy, it ruled that it perverted the intent of the law, which was meant to improve the lives of public housing residents — not destroy them.

The high court’s opinion, written by Chief Justice William Rehnquist no less, tried to buttress its cold-hearted argument by claiming that so-called “no fault” evictions are justified because drug use leads to “murders, muggings, and other forms of violence.” But he failed to point out how locking up innocent people solves that. Or what social ills will be avoided by Pearlie and Herman being cast out on their innocent rear ends. Surely even the most brutal and utilitarian calculus would at least balance the cost of punishing so many blameless victims against whatever perceived good is achieved.

But, no, the justices couldn’t be bothered. In adopting such one-sided reasoning and hyperbolic “Reefer Madness” rhetoric the Supreme Court is following in the fear-mongering footsteps of the administration, whose latest whacko anti-drug ad campaign tried to draw a link between teenage drug use and violent acts of terrorism.

In reality, two of the four plaintiffs in the case before the court were elderly women whose grandchildren were caught smoking pot in a housing project parking lot. I have a feeling the grandkids were far more interested in the munchies than in murder and mayhem.

The ruling is not only a galling example of drug war lunacy, but also a gut-wrenching reminder of just how differently America treats its rich and its poor. The multi-million dollar homes of Beverly Hills or the Upper East Side of Manhattan have more than their share of kids struggling with drug problems. But as concerned as these kids’ parents are, you can bet that their problems are not compounded by the additional worry that the entire family will be tossed out onto the street because their kid is seen smoking a joint three blocks away. Why should we hold poor people to a standard of accountability most of us could never meet?

“A tenant who cannot control drug crime,” wrote Justice Rehnquist in the majority opinion, “is a threat to other residents and the project.” I wonder if the Chief Justice would apply the same condemnatory logic to Gov. Jeb Bush, who also lives in public housing and was also unable to control his troubled daughter.

Indeed, our political establishment, whether ensconced in plush public housing or not, is filled with people unable to “control drug crime” by a household member. But none of them — including Sens. Ted Kennedy, Richard Lugar, and Richard Shelby, and Reps. Dan Burton, Spencer Bachus, John Murtha, Duke Cunningham and Maurice Hinchey — were punished for the sins of their kids. What’s more, unlike the thousands of poor and minority drug offenders who have had the book thrown at them, these lawmakers’ lawbreaking offspring were frequently granted special treatment.

Take the amazing case of Rep. Burton’s son, Dan II, who, in 1994, was arrested for transporting seven pounds of marijuana across state lines with the intent to distribute. He pleaded guilty and received probation, community service and house arrest. Soon after, he was discovered growing 30 pot plants in his apartment but skated on the charges once again — a federal felony carrying a mandatory-minimum sentence of five years in jail having been miraculously transformed into a state level misdemeanor.

It’s not surprising that poor kids are routinely sent to jail while rich kids are given a slap on the wrist and a ticket to rehab, or that poor parents are thrown out of their houses for not knowing what their kids are doing while powerful parents are given our sympathy and understanding. But it is unjust. And isn’t that ultimately what the Supreme Court is supposed to be about: dispensing justice?

Since Rehnquist and company were too busy taking hits from their double-standard bong, it’s now up to Congress to undo this discriminatory policy. Here’s a thought: Why don’t Ted Kennedy and Dan Burton call a joint Senate-House hearing on “One Strike and You’re Out” no-fault evictions. They can call Jeb Bush, Pearlie Rucker and their respective daughters (one taken to rehab, one taken to jail) as the first witnesses.

Source: http://www.alternet.org/story.html?StoryID=12747

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Don't Bank On The Supreme Court To Clarify The Second …

Posted: June 17, 2016 at 4:48 am

If you think the Supreme Court is poised to expand or restrict gun rights sometime soon, don’t hold your breath.

As handwringing continues over what might have prevented the Orlando massacre– an old-time filibuster sparked by it even broke outin the Senate on Wednesday — the justices are about to consider a state gun control law enacted in the aftermath of the Sandy Hook school massacre in Newtown, Connecticut.

According to its docket, the court on Thursday will weigh whether to take up Shew v. Malloy, a case with all the elements that could make it emblematic for the battle over the Second Amendment’s meaning.

It’s a dispute between a host of gun rights groups, businesses and individual gun owners against Connecticut over the constitutionality of a sweeping regulatory regime that bans so-called “assault weapons” — semiautomatic firearms and large-capacity magazines of the very sort used in Newtown and Orlando.

Back in October, an appeals court in Manhattan said the Connecticut law and a similarly restrictive law in New Yorkwere constitutional –and the plaintiffs vowed to take the battle to the Supreme Court.

Tom King, the head of New York’s biggest gun rights group, even said he was “happy” to have lost the case because that meant his organization could now ask the highest court of the land to decide the issue once and for all.

Brendan McDermid / Reuters

But then Justice Antonin Scalia died. And suddenly,the gun lobby’s calculations changed — including King’s, who told the New York Daily News weeks after Scalia’s death that it was “just the wrong time” to continue the fight in the absence of a reliable conservative vote at the Supreme Court.

That might explain why Senate Majority Leader Mitch McConnell (R-Ky.) glowingly pointed to the National Rifle Association’s opposition to Merrick Garland, the president’s high court nominee, to rationalize his own refusal to hold a vote and a hearing for Garland.

None of this matters, and yet it matters a great deal.

Because despite the pleas from gun rights advocates who still want the Supreme Court to take up the challenge to the weapons ban, the justices could wield all kinds of reasons not to touch the case with a 10-foot pole.

It’s not that they aren’t interested in clarifying the scope of the Second Amendment in the wake of Scalia’s magnum opus in District of Columbia v. Heller, which for the first time recognized a fundamental right to gun ownership in the home. But to echo King, it’s just not the right time — not with a short-staffed Supreme Court, a volatile political environment, and a nomination fight that may very well continue after President Barack Obama’s successor takes office.

As things stand now, all signs point to an extremely quiet and uncontroversial Supreme Court term beginning next October — a dry season that will stand in stark contrast to the current term’s constitutional blockbusters on affirmative action, abortion and immigration, to name only a few.The court just isn’t taking many new cases.

This paucity of potential big decisions aside, the courthassent some signals that the Second Amendment is safe, even as it has rejected dozens of cases challenging gun control measures across the country, leaving lower courts as the final decision-makers.

Over the protest of Scalia and Justice Clarence Thomas, the Supreme Court refused in December to review an appeals court decision that effectively upheld an assault weapons ban in a small Illinois town. Thomas said that decision treated the Second Amendment as a second-class right.

But in March, a month after Scalia’s death, the justices tipped their hand the other way, ruling that a Massachusetts ban on stun guns may violate the right to bear arms, quietly but forcefully endorsing the late justice’s Heller decision.

The Second Amendment extends … to all instruments that constitute bearable arms, even those that were not in existence at the time of the founding,” the court said in a very brief rulingthat no justice signed his or her name to.

But writing separately, Thomas and Justice Samuel Alito said they would have gone further, asserting that indeed, gun ownership for self-defense is a “fundamental right” while making clear that Americans’ safety shouldn’t be “left to the mercy of state authorities who may be more concerned about disarming the people than about keeping them safe.”

Fighting words, as well as fodder for debate about where the court may go next on guns.

It is precisely this seeming tension within the Supreme Court — plus the political fallout from Scalia’s vacancy and all the work that other courts are doing to make some sense of the Second Amendment — that indicates why the justices probably won’t pull the trigger on the next big gun rights case soon.

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Psychedelics: LSD, Mushrooms, Salvia | Facts | Drug Policy …

Posted: June 16, 2016 at 5:49 pm

Psychedelic drugs include LSD (acid), psilocybin mushrooms, mescaline (found in peyote), ibogaine, salvia, and DMT (found in ayahuasca). Psychedelic substances have been used for thousands of years for religious and therapeutic purposes.

In the 1950s and early 1960s, psychedelic drugs such as LSD were considered promising treatments for a broad range of psychological and psychiatric conditions. Tens of thousands of people were introduced to them in clinical studies, as an adjunct to psychotherapy, or as part of a religious or spiritual practice.

By the late 1960s, however, as millions of people experimented with them, psychedelics became symbols of youthful rebellion, social upheaval, and political dissent. By the early 1970s, the government had halted scientific research to evaluate their medical safety and efficacy. The ban persisted for decades, but has gradually been lifted over the past decade.

Today, there are dozens of studies taking place to evaluate the medical safety and efficacy of psychedelics, and the Supreme Court has ruled that psychedelics can be used as part of the practices of certain organized religions.

Facts

Sources:

Grinspoon, Lester and James B. Bakalar. 1997. Psychedelic Drugs Reconsidered. New York: The Lindesmith Center.

Grob, Charles and Roger Walsh, ed. Higher Wisdom: Eminent Elders Expore the Continuing Impact of Psychedelics. SUNY University of New York Press, 2005.

Stamets, Paul, Psilocybin Mushrooms of the World, Berkeley, CA: Ten Speed Press, 1996.

Stolaroff, Myron. The Secret Chief. Sarasota, FL: MAPS, 2006.

Strassman, R. J. 1984. Adverse Reactions to Psychedelic Drugs: A Review of the Literature. The Journal of Nervous and Mental Disease 172: 577-95.

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Psychedelics: LSD, Mushrooms, Salvia | Facts | Drug Policy …

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Don’t Bank On The Supreme Court To Clarify The Second …

Posted: at 5:41 pm

If you think the Supreme Court is poised to expand or restrict gun rights sometime soon, don’t hold your breath.

As handwringing continues over what might have prevented the Orlando massacre– an old-time filibuster sparked by it even broke outin the Senate on Wednesday — the justices are about to consider a state gun control law enacted in the aftermath of the Sandy Hook school massacre in Newtown, Connecticut.

According to its docket, the court on Thursday will weigh whether to take up Shew v. Malloy, a case with all the elements that could make it emblematic for the battle over the Second Amendment’s meaning.

It’s a dispute between a host of gun rights groups, businesses and individual gun owners against Connecticut over the constitutionality of a sweeping regulatory regime that bans so-called “assault weapons” — semiautomatic firearms and large-capacity magazines of the very sort used in Newtown and Orlando.

Back in October, an appeals court in Manhattan said the Connecticut law and a similarly restrictive law in New Yorkwere constitutional –and the plaintiffs vowed to take the battle to the Supreme Court.

Tom King, the head of New York’s biggest gun rights group, even said he was “happy” to have lost the case because that meant his organization could now ask the highest court of the land to decide the issue once and for all.

Brendan McDermid / Reuters

But then Justice Antonin Scalia died. And suddenly,the gun lobby’s calculations changed — including King’s, who told the New York Daily News weeks after Scalia’s death that it was “just the wrong time” to continue the fight in the absence of a reliable conservative vote at the Supreme Court.

That might explain why Senate Majority Leader Mitch McConnell (R-Ky.) glowingly pointed to the National Rifle Association’s opposition to Merrick Garland, the president’s high court nominee, to rationalize his own refusal to hold a vote and a hearing for Garland.

None of this matters, and yet it matters a great deal.

Because despite the pleas from gun rights advocates who still want the Supreme Court to take up the challenge to the weapons ban, the justices could wield all kinds of reasons not to touch the case with a 10-foot pole.

It’s not that they aren’t interested in clarifying the scope of the Second Amendment in the wake of Scalia’s magnum opus in District of Columbia v. Heller, which for the first time recognized a fundamental right to gun ownership in the home. But to echo King, it’s just not the right time — not with a short-staffed Supreme Court, a volatile political environment, and a nomination fight that may very well continue after President Barack Obama’s successor takes office.

As things stand now, all signs point to an extremely quiet and uncontroversial Supreme Court term beginning next October — a dry season that will stand in stark contrast to the current term’s constitutional blockbusters on affirmative action, abortion and immigration, to name only a few.The court just isn’t taking many new cases.

This paucity of potential big decisions aside, the courthassent some signals that the Second Amendment is safe, even as it has rejected dozens of cases challenging gun control measures across the country, leaving lower courts as the final decision-makers.

Over the protest of Scalia and Justice Clarence Thomas, the Supreme Court refused in December to review an appeals court decision that effectively upheld an assault weapons ban in a small Illinois town. Thomas said that decision treated the Second Amendment as a second-class right.

But in March, a month after Scalia’s death, the justices tipped their hand the other way, ruling that a Massachusetts ban on stun guns may violate the right to bear arms, quietly but forcefully endorsing the late justice’s Heller decision.

The Second Amendment extends … to all instruments that constitute bearable arms, even those that were not in existence at the time of the founding,” the court said in a very brief rulingthat no justice signed his or her name to.

But writing separately, Thomas and Justice Samuel Alito said they would have gone further, asserting that indeed, gun ownership for self-defense is a “fundamental right” while making clear that Americans’ safety shouldn’t be “left to the mercy of state authorities who may be more concerned about disarming the people than about keeping them safe.”

Fighting words, as well as fodder for debate about where the court may go next on guns.

It is precisely this seeming tension within the Supreme Court — plus the political fallout from Scalia’s vacancy and all the work that other courts are doing to make some sense of the Second Amendment — that indicates why the justices probably won’t pull the trigger on the next big gun rights case soon.

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there is no Second Amendment protection for … – cnn.com

Posted: June 10, 2016 at 12:41 pm

The en banc opinion by the 9th U.S. Circuit Court of Appeals could set up a new showdown on gun rights at the Supreme Court.

At issue was California’s law on concealed weapons, which requires citizens to prove they have “good cause” to carry concealed firearms to get a license. Plaintiffs challenged guidelines in San Diego and Yolo counties that did not consider general self-defense to be enough to obtain a license.

“The historical materials bearing on the adoption of the Second and Fourteenth Amendments are remarkably consistent,” wrote Judge William Fletcher, going back to 16th century English law to find instances of restrictions on concealed weapons. “We therefore conclude that the Second Amendment right to keep and bear arms does not include, in any degree, the right of a member of the general public to carry concealed firearms in public.”

Fletcher also cited the most recent Supreme Court cases on gun rights, District of Columbia v. Heller and McDonald v. City of Chicago, which were major victories for gun rights activists, in making his case.

The Heller decision, authored by Justice Antonin Scalia, solidified a Second Amendment right of the public to keep guns, but it specifically noted the right was not absolute, and Fletcher pointed out that Scalia cited restrictions on concealed weapons as a historical example.

The court was careful to make the ruling narrow. The opinion does not say concealed weapons are unconstitutional, nor does it make any decisions about openly carrying weapons in public.

The case was a blow for gun rights advocates, and sets up the fight on gun rights for the Supreme Court to consider, says UCLA law professor and gun law expert Adam Winkler.

“This case raises the next great question for the Supreme Court: Does the Second Amendment guarantee a right to carry guns in public? And if so, what kind of licensing can states use to permit people to carry concealed weapons?” Winkler said.

The Supreme Court would not necessarily have to take up the case. The ruling does not create a substantive divide among different circuit courts in the U.S., one of the major factors the court considers in weighing which cases to take.

Four judges dissented from the ruling, with the main dissent by Judge Consuelo Callahan arguing that California’s laws taken together amount to a substantial restriction on citizens’ right to bear arms for self defense, as protected by the Second Amendment.

Whether the court does or does not take the case, the early 2016 death of Scalia looms large over it. Scalia authored Heller, the most substantial gun ruling in modern history of the court. And Republicans in the Senate have refused to consider President Barack Obama’s nominee for replacing Scalia on the court, meaning the eight justice panel can split 4-4.

Without a ninth justice, Winkler said, it’s unlikely the court would take up the case, even with Scalia’s allies on the issue Justices Samuel Alito and Clarence Thomas still on the court.

Obama’s nominee to replace Scalia, Judge Merrick Garland, was chosen in large part for his moderate record. But one of the most substantial conservative arguments against Garland has been that his record on guns is too liberal, though his written record on the issue is limited.

A partner for the law firm that helped argue on behalf of Peruta said that the plaintiffs were “disappointed” with the ruling but not surprised. He also said appealing to the Supreme Court is not a guarantee yet.

“An appeal to the Supreme Court is possible,” said Chuck Michel, senior partner at Michel and Associates. “But significantly, the Peruta decision specifically avoided answering the critical legal question of whether, if concealed carry is prohibited, some form of open carry of firearms must be allowed. California law bans open carry, so the constitutionality of that ban will now have to be tested.”

The case was primarily argued by Paul Clement, a former solicitor general under the George W. Bush administration and one of the top litigators for conservative causes at the Supreme Court in recent years.

Ever since the Supreme Court decided the Heller decision and a follow up case two years later, the Supreme Court has declined to take another major second amendment case, a frustration Clement cited in a 2013 filing with the court.

In the years since Heller had been decided many expected a “major consideration” or extant firearms laws, Clement wrote. “Instead, jurisdictions have engaged in massive resistance to the clear import of those landmark decisions, and the lower federal courts, long out of the habit of taking the Second Amendment seriously, have largely facilitated that resistance.”

California state Attorney General Kamala Harris said the decision “is a victory for public safety and sensible gun safety laws. The ruling ensures that local law enforcement leaders have the tools they need to protect public safety by determining who can carry loaded, concealed weapons in our communities.”

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Fifth Amendment – U.S. Constitution & Bill of Rights

Posted: June 1, 2016 at 10:44 am

The Fifth Amendment, as with the rest of the Bill of Rights, is a superfluous restraint on federal power. It can be argued that the Fifth Amendment is not superfluous because it imposes certain specified limits and conditions on the federal governments use of legislative powers pursuant to its Enumerated Powers under Article I, Section 8. However, this distinction is of little significance.

The Fifth Amendment can be broken down as follows. In any federal matter, an individual:

– must be indicted by a grand jury to answer for a capital crime, unless certain conditions are present;

– may not face trial more than once for the same crime; may not be compelled to testify against oneself in a criminal case;

– may not be deprived of life, liberty or property without due process.

Lastly, the federal government may not take private property for public use (pursuant to its Enumerated Powers), without providing fair compensation to the property owner.

Fifth Amendment and Eminent Domain Abuse

There was an uproar throughout the United States in 2005 when the Supreme Court handed down its decision in Kelo v. City of New London.

The Supreme Courts decision, written by Justice John Paul Stevens, said private property seized by the city of New London, Connecticut was constitutional under the Fifth Amendment, even though the seized land was to be used for private development as part of a local economic redevelopment program. The Takings Clause of the Fifth Amendment says, nor shall private property be taken for public use, without just compensation.

The issue in Kelo centered on whether it was public use to give private property seized under Imminent Domain laws to a private developer. In other words, does permissible public use include private use. The city of New London argued this was public use because the economic redevelopment program would create jobs, revitalize an economically distressed part of the city, and would result in increased tax revenue for the city. The Supreme Court agreed with the city of New London.

Much of the country was in an uproar because this meant any government (state, local, or federal) with Eminent Domain power could seize private property and give that property to another private party if the stated use was for economic redevelopment and increased local tax revenues. This public uproar was understandable and justified, but the decision in Kelo resulted in a strange situation where the ultimate result of the case was correct, though the Supreme Court conjured up an absurd decision.

The Fifth Amendment, and the rest of the Bill of Rights, does not apply against state and local governments. The Fifth Amendment was erected as a superfluous restraint on federal power. To say the Fifth Amendment applies against state and local governments would mean the Fifth Amendment and the Bill of Rights actually granted power to the federal government and its courts. This would be ludicrous.

An early Supreme Court case involving the Takings Clause was Barron v. Baltimore, 1833. This was one of the few cases Chief Justice John Marshall got right. The decision held the Fifth Amendment does not apply to the state governments and any remedy for the plaintiff would need to be settled under Maryland law. In addition, Justice Marshall acknowledged the federal courts did not have jurisdiction in the case since the taking of property at issue was not a federal matter.

The plaintiff, John Barron, sued the city of Baltimore claiming the value of his wharf property had been so impaired by the citys development/improvement project that it constituted a taking of his property under the Fifth Amendments Takings Clause. John Marshalls decision said the issue presented in the case was, of great importance, but not of much difficulty. Marshalls decision explains the text of the Constitution, the purpose of the Bill of Rights, and the context in which the Constitution and Bill of Rights were ratified. The opinion concludes, [w]e are of opinion that the provision in the Fifth Amendment to the Constitution declaring that private property shall not be taken for public use without just compensation is intended solely as a limitation on the exercise of power by the Government of the United States, and is not applicable to the legislation of the States. As such, the court can take no jurisdiction of the cause.

The Kelo House, New London, Connecticut

The Supreme Court in Kelo v. City of New London should have reached the same conclusion as the court in Barron v. Baltimore, namely, that the Supreme Court did not have jurisdiction to hear the case because the Fifth Amendment and the Takings Clause do not apply against state and local legislation. The result of the Supreme Courts decision in Kelo was correct because it affirmed the decision of the Connecticut Supreme Court. The Connecticut Supreme Courts decision was dubious, but the Supreme Court does not have legitimate authority to overturn bad state supreme court decisions unless the Supreme Court has jurisdiction. State action under the Fifth Amendment does not fall within federal subject matter jurisdiction and does not involve a federal question.

Why did the Supreme Court assume jurisdiction in Kelo? Because, like other branches of the federal government, the Supreme Court loves power, and because of a judicial doctrine the Supreme Court created in the early twentieth century called the Incorporation Doctrine. For more on the Incorporation Doctrine, click here.

For more on Eminent Domain, generally, click here.

Another reason why the Fifth Amendment matters today would be so-called, Miranda rights.

Miranda rights were created out of thin air by the United States Supreme Court in 1966 with no basis whatsoever in the text, history, plain meaning, or logic of the Constitution.

Miranda rights create an obligation for police officers throughout the United States to warn criminal suspects being interrogated or in custody that they have certain rights prior to interrogation (e.g., right to remain silent, right to an attorney, etc). Generally, statements made to police without suspects first receiving Miranda warnings cannot be used against the suspect in court.

Ernesto Miranda convicted kidnapper, rapist and armed robber.

According to the Supreme Court, so-called Miranda Rights are based on the language from the Fifth Amendment, nor shall any person be compelled in any criminal case to be a witness against himself. The Fifth Amendment had been around for one-hundred and seventy-five years before the Supreme Court discovered these rights.

Whether requiring police officers to Mirandize criminal suspects is good policy or not is a separate matter. What matters is the Supreme Court took the Fifth Amendment a superfluous restraint on federal power, a shield erected by the states against the federal government and turned it into a weapon whereby federal judges could create laws out of thin air and impose their arbitrary personal opinions on all fifty states. Requiring police officers throughout the United States to follow rules made up out of thin air by federal judges is a radical, sweeping and dangerous power grab.

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury, except in cases arising in the land or naval forces, or in the militia, when in actual service in time of war or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

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Fifth Amendment – U.S. Constitution & Bill of Rights

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First Amendment (U.S. Constitution) – The New York Times

Posted: April 2, 2016 at 11:43 am

Latest Articles

Arguments in the jury trial start Monday in a case the celebrity wrestler says is about privacy, but the defendant, Gawker, argues is about the First Amendment.

By ERIK ECKHOLM

The state is one of eight that are considering blanket legal protection for discrimination on religious grounds. Its bill is one of the most alarming.

By THE EDITORIAL BOARD

The company, in its fight with the F.B.I., is defending its phones on grounds that its code represents free speech, and there is some precedent.

By STEVE LOHR

Crisis pregnancy centers in California are in a battle with the state over a new law requiring them to post a notice that free or low-cost abortion care is available.

By ERIK ECKHOLM

A judges order to release secret documents raises questions about how much involvement courts should have over settlements related to corporate wrongdoing.

By PETER J. HENNING

Mr. Kennedy defended John Gotti Sr., Huey P. Newton and Timothy Leary and won freedom for Jean S. Harris, who killed the Scarsdale Diet doctor.

By SAM ROBERTS

In recent years, the Supreme Court has waved the First Amendment banner ever higher to undermine long-accepted governmental regulatory authority.

By LINDA GREENHOUSE

In a California case, the justices are considering whether government workers who choose not to join a union may still be required to pay for collective bargaining.

By ADAM LIPTAK

A federal judge has warned that prosecutors may be going too far when they ask witnesses to keep quiet about receiving a subpoena.

By STEPHANIE CLIFFORD

Some legal scholars are asking whether it is time to reconsider the clear and present danger standard for curbing the freedom of speech.

By ERIK ECKHOLM

A federal appeals court, in a case involving an Asian-American dance-rock band, struck down part of a law that let the government reject trademarks it deemed offensive or disparaging to others.

By RICHARD SANDOMIR

An array of leading hip-hop artists, including T.I., Big Boi and Killer Mike, filed a Supreme Court brief in support of a high school student punished for posting a rap song that drew attention to complaints about sexual harassment.

The Alabama lawyer opposed The New York Times in a case that resulted in a Supreme Court decision establishing greater leeway for criticism of government officials and other public figures.

By BRUCE WEBER

On university campuses, First Amendment rights are colliding with inclusivity.

By NICHOLAS KRISTOF

Religious Arbitration Used for Secular Disputes | Soros Withdraws $490 Million From Janus Capital

A University of Michigan professor writes that many see this as yet another way the First Amendment is being hijacked.

A new class-action lawsuit says that New York City has a policy and a history of violating protesters constitutional rights.

Congressional Republicans are pushing a bill that would deliberately warp the bedrock principle of religious freedom under the Constitution.

By THE EDITORIAL BOARD

As a county clerk, Kim Davis is required to issue marriage licenses to anyone who may legally get married, which includes same-sex couples.

By JESSE WEGMAN

An appeals court upheld restrictions on protesters First Amendment rights to gather and wave signs on the plaza in front of the Supreme Court.

By JACKIE CALMES

Arguments in the jury trial start Monday in a case the celebrity wrestler says is about privacy, but the defendant, Gawker, argues is about the First Amendment.

By ERIK ECKHOLM

The state is one of eight that are considering blanket legal protection for discrimination on religious grounds. Its bill is one of the most alarming.

By THE EDITORIAL BOARD

The company, in its fight with the F.B.I., is defending its phones on grounds that its code represents free speech, and there is some precedent.

By STEVE LOHR

Crisis pregnancy centers in California are in a battle with the state over a new law requiring them to post a notice that free or low-cost abortion care is available.

By ERIK ECKHOLM

A judges order to release secret documents raises questions about how much involvement courts should have over settlements related to corporate wrongdoing.

By PETER J. HENNING

Mr. Kennedy defended John Gotti Sr., Huey P. Newton and Timothy Leary and won freedom for Jean S. Harris, who killed the Scarsdale Diet doctor.

By SAM ROBERTS

In recent years, the Supreme Court has waved the First Amendment banner ever higher to undermine long-accepted governmental regulatory authority.

By LINDA GREENHOUSE

In a California case, the justices are considering whether government workers who choose not to join a union may still be required to pay for collective bargaining.

By ADAM LIPTAK

A federal judge has warned that prosecutors may be going too far when they ask witnesses to keep quiet about receiving a subpoena.

By STEPHANIE CLIFFORD

Some legal scholars are asking whether it is time to reconsider the clear and present danger standard for curbing the freedom of speech.

By ERIK ECKHOLM

A federal appeals court, in a case involving an Asian-American dance-rock band, struck down part of a law that let the government reject trademarks it deemed offensive or disparaging to others.

By RICHARD SANDOMIR

An array of leading hip-hop artists, including T.I., Big Boi and Killer Mike, filed a Supreme Court brief in support of a high school student punished for posting a rap song that drew attention to complaints about sexual harassment.

The Alabama lawyer opposed The New York Times in a case that resulted in a Supreme Court decision establishing greater leeway for criticism of government officials and other public figures.

By BRUCE WEBER

On university campuses, First Amendment rights are colliding with inclusivity.

By NICHOLAS KRISTOF

Religious Arbitration Used for Secular Disputes | Soros Withdraws $490 Million From Janus Capital

A University of Michigan professor writes that many see this as yet another way the First Amendment is being hijacked.

A new class-action lawsuit says that New York City has a policy and a history of violating protesters constitutional rights.

Congressional Republicans are pushing a bill that would deliberately warp the bedrock principle of religious freedom under the Constitution.

By THE EDITORIAL BOARD

As a county clerk, Kim Davis is required to issue marriage licenses to anyone who may legally get married, which includes same-sex couples.

By JESSE WEGMAN

An appeals court upheld restrictions on protesters First Amendment rights to gather and wave signs on the plaza in front of the Supreme Court.

By JACKIE CALMES

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First Amendment (U.S. Constitution) – The New York Times

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