The Second Amendment

[AdamSmith]

Whichever side of the Supreme Court's just-rendered Second Amendment ruling you come down on, this is an interesting commentary by lit-crit Stan Fish:

http://fish.blogs.nytimes.com/2008/07/06/w...mind/index.html

[Guest Conway]

I think that, in the long run, Heller, while initially popular with conservatives on its face value, will not appeal to those who believe that a state (or in this case a federal district) has a right to make its own laws largely free of federal intervention.

Given the fact that Heller essentially overturns local law, doe this also mean that the court has the right to overturn other local laws. Conservatives have long held that a state's right to self determination are superior to those of the federal government. Heller, has essentially established precedent, for a more a more powerful federal government from a legislative and judicial perspective.

Let's say Maryland passed a law banning abortion. Could a future court, of a different political makeup, overturn the state's right to (supposedly) legislate the wishes of its citizens?

Are laws that would overturn certain states' position on the death penalty now in jeopardy if a court so chooses to hear a death penalty case in the future.

How about gay marriage? Can the federal court overturn California law and/or force gay marriage, say, on Mississippi if it so chooses.

In my mind, Heller opens a Pandora's box that extends well beyond its original intent.

[lookin]

Given the fact that Heller essentially overturns local law, doe this also mean that the court has the right to overturn other local laws.

I think that's exactly what it means, as long as the Court finds those local laws unconstitutional. Laws mandating racially segregated schools were vigorously defended by several states, until the Supreme Court determined there was a constitutional issue involved and overturned them. Whether or not they'll ever get around to gay marriage is anybody's guess, although I wouldn't mind presenting them with a pair of briefs.

[AdamSmith]

I think that's exactly what it means, as long as the Court finds those local laws unconstitutional. Laws mandating racially segregated schools were vigorously defended by several states, until the Supreme Court determined there was a constitutional issue involved and overturned them.

There it is, no? Article Six of the Constitution seems unambiguous:

...This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding...

Whether or not they'll ever get around to gay marriage is anybody's guess, although I wouldn't mind presenting them with a pair of briefs.

Let me highjack my own thread to say the question is specifically whether or not they'll ever get around to enforcing the Constitution's full-faith-and-credit clause, which also seems unambiguous:

Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State. And the Congress may by general Laws prescribe the Manner in which such Acts, Records and Proceedings shall be proved, and the Effect thereof.

I have yet to comprehend how the second sentence could be construed so broadly as to allow DOMA, which blatantly defies the first sentence.

[lookin]

I have yet to comprehend how the second sentence could be construed so broadly as to allow DOMA, which blatantly defies the first sentence.

What amazes me, and is shown so clearly in the link you posted, is the incredible effort involved in applying a centuries-old document to situations that were difficult or impossible to foresee. Of the three branches of federal government, I've always liked the Judicial branch best. They're the ones most directly involved in ensuring that we ordinary citizens continue to enjoy the freedoms and liberties promised by the Founders. If they fail, we fail.

But how can they possibly keep up with all the new situations that arise, and the thousands of new laws that get on the books every year?

The "Patriot Act" alone would seem a full-time job.

[Guest epigonos]

The key to understanding the power of the United States Supreme Court is to have a good grasp of a crucial early decision: Marbury v. Madison, Supreme Court of the United States, 1803. The newly appointed Chief Justice John Marshal wrote the majority opinion which in a nut shell stated that the United States Constitution means what five or more of the nine Supreme Court Justices say it does - period. That decision is still the basis of the concept of Judicial Review.

A good example of the concept of Judicial Review is Roe v Wade, Supreme Court of the United States, 1973. Nowhere in the U.S. Constitution is the right of a woman to have an abortion discussed or even mentioned. Based on that omission and the Tenth Amendment which states, "The powers not delegated to the United States by the Constitution nor prohibited by it to the States, are reserved to the States respectively, or to the people" many believe that Roe v Wade is terrible constitutional law. They sincerely believe that the entire matter should have been left to the individual states to decide as their legislatures saw fit. However, in 1973 a majority of the Supreme Court decided that the right of a woman to have an abortion was protected under what the court considers the implied right of a citizen to privacy. Constitutionally and historically it is a major reach BUT that is irrelevant. The law of the land is what the Supreme Court says it is - end of discussion.