Stephen Breyer: Your Constitutional Rights vary with geography

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Stephen Breyer: Your Constitutional Rights vary with geography

Written By : Chris Wysocki

U.S. Supreme Court Justice Stephen Breyer appeared on Fox News Sunday this morning. He spoke to his interpretation of the Founding Fathers’ intent with regard to gun control. Hint — as an ultra-liberal Mr. Justice Breyer is totally in favor of as much gun control regulation as possible. After all, he authored the dissenting opinion in D.C. v. Heller in which the majority affirmed the right to keep and bear arms clearly articulated in the Second Amendment.

What struck me most about Breyer’s reasoning though was this bon mot:

“We’re acting as judges. If we’re going to decide everything on the basis of history — by the way, what is the scope of the right to keep and bear arms? Machine guns? Torpedoes? Handguns?” he asked. “Are you a sportsman? Do you like to shoot pistols at targets? Well, get on the subway and go to Maryland. There is no problem, I don’t think, for anyone who really wants to have a gun.”

“Get on the subway and go to Maryland.”

Mind-boggling really, isn’t it? Gee little black girl, do you want to go to the same school as white girls? Well, get on the subway and go to Maryland!

So mister, what if you are in a wheelchair? This doctor’s office has stairs. If you want to see an accessible doctor, get on the subway and go to Maryland!

I wasn’t aware that our Constitutional Rights were geographically dependent. That is what Stephen Breyer is saying here. The right to keep and bear arms only exists in specific, discrete locations within the United States. And more disturbingly, there are places where our rights most certainly are not applicable.

Like airports. I just know that somebody is gonna bring up airports. But guess what? The regulations for transporting firearms through an airport are actually quite reasonable. Not so for the D.C. gun ban of which Mr. Justice Breyer is so enamored.

I’m no Constitutional scholar. I don’t even play one on TV. But I’m starting to think that Stephen Breyer isn’t much of one either. Exactly which of our rights does he deem to be fungible, their applicability established not by law but by arbitrary lines on a map? And do they sell that map in the SCOTUS gift shop? Because I’m pretty sure I’m going to want a copy.

—-

Cross-posted from WyBlog.us. Follow me on Twitter @WyBlog.

Gayunemployedmexican

Obviously your constitutional rights are geographically dependent, not a single judge would deny that.

It begins with the premise that all rights are subject to limitations. You have the right to freedom of speech, but you can’t show “BOMB” on an airplane.

Once you have accepted the premise that rights are subject to limitations you then realize you have to figure out how to put sensible limitations on rights, but not infringe upon them. I beleive a fair test is the current standard used by the court: you cannot infringe upon a fundamental right unless there is a compelling reason for doing so. In addition, you must also narrowly tailor your restriction on the right, your restriction can’t be overly broad.

So if you want to limit free speech you have to have a good reason (E.G. public safety) and your means of providing public safety by limiting free speech have to be narrowly tailored.

Now, the question is, can geography effect whether or not an interest becomes compelling and can geography effect the tailoring of a law. I think the answer is yes.

In some rural area in upstate NY, I see no reason for not allowing people to carry their guns unconcealed in certain public areas. If they were going to check their mailbox I don’t think they should have to put away their gun.

However, allowing unconcealed weapons to show in the middle of a shopping mall in New york City would create a very different reaction and certainly cause mass discomfort.

That’s my 2 cents at least.

Gayunemployedmexican

shout bomb not show bomb
Don_cos

Obviously your constitutional rights are geographically dependent, not a single judge would deny that.

Of course they are, that’s why those fly over people should just shut up and do as they are told!

but you can’t show “BOMB” on an airplane.

Have you aver been on a twelve hour flight? They show lots of bombs. Not a single good movie on any of the flights I’ve been on.
http://wyblog.us/blog Chris Wysocki

So which other rights are geographically dependent? Is there a “compelling interest” for a South Central LA shopping mall to ban Mexicans because they’ve been held up like 1900 times and every time it was a Mexican kid who did it? I’m guessing “no”.

Law-abiding gun owners do not cause crime. In fact geographic locations where people are legally permitted to carry guns always have lower crime rates. Maybe the solution to DC’s crime problem is to issue more gun permits!
http://www.wordaroundthenet.com Christopher Taylor

There’s a big difference between saying your constitutionally protected rights vary from state to state and that you have some limitations on your rights. I would think you’d understand that but apparently the concept eludes you.

Gayunemployedmexican

It varies based on if there is a compelling interest. Whether or not there is a compelling interest can easily change with geography. I would be fine with allowing in some towns the unfettered right to shoot guns in your backyard. In D.C. obviously you can’t do that if for no other reason than the noise would be a public nuisance.
Gayunemployedmexican

It varies based on if there is a compelling interest. Whether or not there is a compelling interest can easily change with geography. I would be fine with allowing in some towns the unfettered right to shoot guns in your backyard. In D.C. obviously you can’t do that if for no other reason than the noise would be a public nuisance.
Gayunemployedmexican

It’s Breyer’s entire point.

Option 1
Judges make policy judgments. Breyer thinks this is a bad idea. He thinks the court has no business telling states what they can and can’t do with guns.

Option 2
You accept judges will have to make policy judgments. His is that guns cause far far more harm than good in D.C.

You can use other means of self defense and if you use guns for fun you can take a short train ride, that’s not an undue burden.

If you disagree with his policy judgment that’s fine. However, he was the one who thinks judges shouldn’t be making policy in the first place. He thinks states and localities better understand their own needs.

http://www.wordaroundthenet.com Christopher Taylor

Both you and Breyer are hilariously and blatantly wrong. This isn’t exactly difficult to comprehend; states cannot simply ignore parts of the constitution they prefer to.
Gayunemployedmexican

States can ignore the parts of the constitution that don’t apply to them. for 230+ years the 2nd Amendment didnt apply to states.
Gayunemployedmexican

States can ignore the parts of the constitution that don’t apply to them. for 230+ years the 2nd Amendment didnt apply to states.

Gayunemployedmexican

It’s Breyer’s entire point.

Option 1
Judges make policy judgments. Breyer thinks this is a bad idea. He thinks the court has no business telling states what they can and can’t do with guns.

Option 2
You accept judges will have to make policy judgments. His is that guns cause far far more harm than good in D.C.

You can use other means of self defense and if you use guns for fun you can take a short train ride, that’s not an undue burden.

If you disagree with his policy judgment that’s fine. However, he was the one who thinks judges shouldn’t be making policy in the first place. He thinks states and localities better understand their own needs.

Gayunemployedmexican

Also, the conservatives on the court allowed the new D.C. handgun ban. They struck down the old ban in U.S. v Lopez but then Congress modified the law and said we enact the same law but the gun has to pass through interstate commerce and then it can be banned.

So apparently it’s not just Breyer, you should have a word with Kennedy and Roberts while your at it.
Gayunemployedmexican

I take back the obviously and no judge would disagree part. That was a little arrogant and hostile. I’m too used to arguing with Stan.

Don_cos

That was a little arrogant and hostile.

Actually that was a little mild for you.
StanW

You are rarely hostile, GUM. You are ALWAYS arrogant and pompous.And you are most often wrong in what you claim to know, as you are in this case as well.

Gayunemployedmexican

Yea, just like I was wrong when I said the bill of rights only applied against the states historically. Oh no wait, that was you guys who were wrong.
Gayunemployedmexican

Yea, just like I was wrong when I said the bill of rights only applied against the states historically. Oh no wait, that was you guys who were wrong.

StanW

I would go over all the ways you have been wrong, GUM, but there is a bandwidth issue.

Would you support Breyer’s statements if he were talking about the 1st Amendment instead of the 2nd?

Gayunemployedmexican

Yes. His premise is sound. If you could demonstrate that there is a compelling interest in limiting the first amendment in a narrowly tailored way within particular locality then that would be fine.

Obviously you disagree with his judgment about whether or not limiting guns for safety actually makes sense. You disagree with his policy judgment.

However, that proves his point completely. The courts shouldn’t be making policy judgments about gun laws. People in each community know what gun restrictions or lack thereof work best for then.
StanW

So you would be fine if a community or state banned Islam, or political speech by Registered Democrats? Hey, if they want those things, then they should go where they are allowed. I’m sure the right to Free Speech will do just fine without registered Democrats being allowed to talk.
Gayunemployedmexican

So your saying I can shout bomb on a plane and fire in a movie theater and tell the terrorists Obama’s travel plan?

Stop with the ridiculous questions and putting words in my mouth.

Unless you are prepared to answer yes to the questions above you agree the right to free speech is limited. No you can’t ban the speech of democrats or muslims. That wouldn’t be narrowly tailored to achieve a compelling interest.

It’s like you don’t even listen.

StanW

You are rarely hostile, GUM. You are ALWAYS arrogant and pompous.And you are most often wrong in what you claim to know, as you are in this case as well.

Gayunemployedmexican

I take back the obviously and no judge would disagree part. That was a little arrogant and hostile. I’m too used to arguing with Stan.
Anonymous

But your statement and Breyer’s statement presumes there is a valid and compelling reason for banning handguns within certain areas, concealed or unconcealed. Banning all handguns is in no way “narrowly tailored” to meet a compelling state interest.

Gayunemployedmexican

There is certainly a compelling public interest in human life, so the question is if banning handguns is narrowly tailored.

I would probably agree with you that it is not. I think there are probably more sensible less intrusive ways to go about providing for public safety from handgun violence. However, I don’t think it’s absurd to beleive that banning handguns was necessary measure given the situation D.C. faced.

Anonymous

But given its violent statistics, and the fact that only law-abiding citizens will follow laws, the city would hamstring these very citizens under the guise of public health. While public health is a compelling state interest in of itself, that’s still not narrowly tailoring it.
Anonymous

But given its violent statistics, and the fact that only law-abiding citizens will follow laws, the city would hamstring these very citizens under the guise of public health. While public health is a compelling state interest in of itself, that’s still not narrowly tailoring it.
http://www.patriotpost.com bthewolf

There is no compelling state interest in denying the individual right of self protection against crime and state tyranny.

Banning handguns from law abiding citizens won’t stop the criminals, dipshit.

Gayunemployedmexican

That’s your opinion. Chicago and its people thought differently. If you want to impose your views on them that is your choice. Breyer thought this was the sort of thing best decided at the local level since each locality best knows its own needs.

Guns are not necessary for self protection and they certainly have nothing to do with state tyranny. Unless your planning on shooting some IRS agents I don’t think your guns are going to be much use. Guns are just as much of an enemy to liberty as they are a friend. Plenty of democratic governments have been overthrown by guns.

Gayunemployedmexican

I also definitely don’t think its absurd to have tougher regulations on handguns in D.C. than in Kansas. Some restrictions such as a waiting period of background checks may be warranted in D.C. but not in a hunting town with no gun crime.

http://www.wordaroundthenet.com Christopher Taylor

I’ve been waiting for some clueless leftist to shout how this is just an example of federalism and conservatives are all a bunch of hypocrites for not agreeing with Justice Breyer.

For those of you who aren’t clear: federalism never says you can ignore the constitution when you wish, only that states are given the power to make every single other ruling. As the 10th amendment plainly declares, states have the power to do many things the federal government does not.

Gayunemployedmexican

While D.C. is a different story, it is important to remember when talking about Chicago and New York that the 2nd Amendment was not intended by the founders to limit actions by the states. The Amendment did not limit the states for the first 230+ years of our nation’s existence.

http://www.wordaroundthenet.com Christopher Taylor

You’re missing about the first 150 years, when the states absolutely believed every man had the right to keep and bear arms, but hey go with that theory. All of the constitution applies to all of the states unless specifically about the federal government, period. Iowa can’t keep slaves and Texas can’t ban the vote to women.

Gayunemployedmexican

All the constitution does not apply to all the states. That’s flat out wrong. This is why we need intellectuals because otherwise morons like you go spouting off a bunch of nonsense.

Madison knew the bill of rights didn’t apply to the states. He wanted it to. He submitted his own version which would apply to the states. It was rejected by Congress.

No one, no founder, no judge, no constitutional scholar thought the bill of rights applied against the states. See:Barron v Baltimore, McDonald v Chicago

Or read the debates around the bill of rights.

You have literally no one on your side.

Madison, the entire first Congress, John Marshall, Scalia, Thomas, White, Black, Frankfuter, Berger, Guinsberg, Breyer, Roberts, Alito, Rehnquist, Harlan (both of them), Brandies, and Brennan all disagree with you

Gayunemployedmexican

Prior to the 14th Amendment, the Bill of Rights applied exclusively against the states, that is well settled fact. If you are too lazy to read barron v baltimore, mcdondald v chicago, or anything written on the subject by madison just read this:

http://en.wikipedia.org/wiki/Incorporation_of_the_Bill_of_Rights

Your arrogance in your ignorance is astounding CT
http://www.wordaroundthenet.com Christopher Taylor

Prior to the 14th Amendment, the Bill of Rights applied exclusively against the states, that is well settled fact.

Exclusively? No it applied to the states and the federal government, both. I’m amazed someone who claims to have the education you do is so stunningly ignorant of US history and jurisprudence.
Gayunemployedmexican

IT DID NOT APPLY TO THE STATES.

Show me one single decision ever written that says that the bill of rights applies to the states.

I’ve show you direct quotes saying precisely that it does not apply against the states. Pick up any constitutional law book and just read it. No one thinks ur right. Not a single person. You do not have a shred of evidence on your side.

From constitutional law scholar Ahkil Amar:

“In the 1833 decision in Barron v Baltimore, Chief Justice Marshall held for a unanimous Court, that the Bill of Rights applied only to the national government.”
Gayunemployedmexican

Prior to the 14th Amendment, the Bill of Rights applied exclusively against the states, that is well settled fact. If you are too lazy to read barron v baltimore, mcdondald v chicago, or anything written on the subject by madison just read this:

http://en.wikipedia.org/wiki/Incorporation_of_the_Bill_of_Rights

Your arrogance in your ignorance is astounding CT
http://www.wordaroundthenet.com Christopher Taylor

All the constitution does not apply to all the states. That’s flat out wrong.

Good thing I didn’t say that. For someone who is so consistently insulting and demeaning to people about how they need to read you certainly fail yourself an awful lot.
Gayunemployedmexican

http://www.oyez.org/cases/1792-1850/1833/1833_0/

the Fifth Amendment were specifically intended to limit the powers of the national government.

Citing the intent of the framers and the development of the Bill of Rights as an exclusive check on the government in Washington D.C.,
Gayunemployedmexican

“The Second Amendments means no more than that it shall not be infringed by Congress, and has no other effect than to restrict the powers of the National Government.”
-U.S. v Cruishank

Gayunemployedmexican

It’s amazing how wrong you are. Here is the direct quote from Alito from McDonald v Chicago:
“The Bill of Rights, including the Second Amendment, originally applied only to the Federal Government, not to the States”

http://www.wordaroundthenet.com Christopher Taylor

At no point did the US Constitution not apply to the states, not ever. What he was arguing is that the original use of it was to limit the government, not that the states never had to protect freedom of speech or assembly or any other freedom. Next time, read the actual case rather than some dude’s quotes trying to argue your side.

Its amazing you’d think that states can individually have slaves or deny women the right to vote, for example. What on earth planet do you live on?
Gayunemployedmexican

GIVE IT UP ARE YOU F ing KIDDING me.

United States v. Cruikshank

The Court found that the First Amendment right to assembly “was not intended to limit the powers of the State governments in respect to their own citizens”

and that the Second Amendment “has no other effect than to restrict the powers of the national government.”
Gayunemployedmexican

http://www.oyez.org/cases/1792-1850/1833/1833_0/

Question:

Does the Fifth Amendment deny the states as well as the national government the right to take private property for public use without justly compensating the property’s owner?
Conclusion:

No. The Court announced its decision in this case without even hearing the arguments of the City of Baltimore. Writing for the unanimous Court, Chief Justice Marshall found that the limitations on government articulated in the Fifth Amendment were specifically intended to limit the powers of the national government. Citing the intent of the framers and the development of the Bill of Rights as an exclusive check on the government in Washington D.C., Marshall argued that the Supreme Court had no jurisdiction in this case since the Fifth Amendment was not applicable to the states.
Gayunemployedmexican

YOu have no idea what he was arguing. If you want to quote him and prove it go ahead

Gayunemployedmexican

http://www.oyez.org/cases/1792-1850/1833/1833_0/
Question:

Does the Fifth Amendment deny the states as well as the national government the right to take private property for public use without justly compensating the property’s owner?
Conclusion:

No. The Court announced its decision in this case without even hearing the arguments of the City of Baltimore. Writing for the unanimous Court, Chief Justice Marshall found that the limitations on government articulated in the Fifth Amendment were specifically intended to limit the powers of the national government. Citing the intent of the framers and the development of the Bill of Rights as an exclusive check on the government in Washington D.C., Marshall argued that the Supreme Court had no jurisdiction in this case since the Fifth Amendment was not applicable to the states.

Gayunemployedmexican

Your lies end here. If you want to back up your assertions with actual proof then do so. If not just stop your bullshit and admit you were wrong.

McDonald v Chicago:
“The Bill of Rights, including the Second Amendment, originally applied only to the Federal Government, not to the States
-Alito

“The incorporation of the Bill of Rights (or incorporation for short) is the process by which American courts have applied portions of the U.S. Bill of Rights to the states. Prior to the 1890s, the Bill of Rights was held only to apply to the federal government.”
http://en.wikipedia.org/wiki/Incorporation_of_the_Bill_of_Rights

“The Second Amendments means no more than that it shall not be infringed by Congress, and has no other effect than to restrict the powers of the National Government.”
-U.S. v Cruishank

Barron v Baltimore
Question:

Does the Fifth Amendment deny the states as well as the national government the right to take private property for public use without justly compensating the property’s owner?
Conclusion:

No. The Court announced its decision in this case without even hearing the arguments of the City of Baltimore. Writing for the unanimous Court, Chief Justice Marshall found that the limitations on government articulated in the Fifth Amendment were specifically intended to limit the powers of the national government. Citing the intent of the framers and the development of the Bill of Rights as an exclusive check on the government in Washington D.C., Marshall argued that the Supreme Court had no jurisdiction in this case since the Fifth Amendment was not applicable to the states.
Gayunemployedmexican

Your lies end here. If you want to back up your assertions with actual proof then do so. If not just stop your bullshit and admit you were wrong.

McDonald v Chicago:
“The Bill of Rights, including the Second Amendment, originally applied only to the Federal Government, not to the States
-Alito

“The incorporation of the Bill of Rights (or incorporation for short) is the process by which American courts have applied portions of the U.S. Bill of Rights to the states. Prior to the 1890s, the Bill of Rights was held only to apply to the federal government.”
http://en.wikipedia.org/wiki/Incorporation_of_the_Bill_of_Rights

“The Second Amendments means no more than that it shall not be infringed by Congress, and has no other effect than to restrict the powers of the National Government.”
-U.S. v Cruishank

Barron v Baltimore
Question:

Does the Fifth Amendment deny the states as well as the national government the right to take private property for public use without justly compensating the property’s owner?
Conclusion:

No. The Court announced its decision in this case without even hearing the arguments of the City of Baltimore. Writing for the unanimous Court, Chief Justice Marshall found that the limitations on government articulated in the Fifth Amendment were specifically intended to limit the powers of the national government. Citing the intent of the framers and the development of the Bill of Rights as an exclusive check on the government in Washington D.C., Marshall argued that the Supreme Court had no jurisdiction in this case since the Fifth Amendment was not applicable to the states.

Gayunemployedmexican

CT

You can stomp your feet and say your right like some whining bitchy liberal or you can grow a pair and admit you were wrong or actually defend your position with a single judge or scholar who agrees with you.

Gayunemployedmexican

CT I’ll let the Supreme Court explain this to you. The only way the bill of rights applies against the states if it is incorporated through the 14th amendment. Please read:

“many of the rights guaranteed by the first eight Amendments to the Constitution have been held to be protected against state action by the Due Process Clause of the Fourteenth Amendment.

The test for determining whether a right extended by the Fifth and Sixth Amendments with respect to FEDERAL criminal proceedings is also protected against STATE ACTION by the Fourteenth Amendment has been phrased in a variety of ways in the opinions of this Court. The question has been asked whether a right is among those “`fundamental principles of liberty and justice which lie at the base of all our civil and political institutions,’”

-Duncan v Louisiana
http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=us&vol=391&invol=145
Gayunemployedmexican

CT I’ll let the Supreme Court explain this to you. The only way the bill of rights applies against the states if it is incorporated through the 14th amendment. Please read:

“many of the rights guaranteed by the first eight Amendments to the Constitution have been held to be protected against state action by the Due Process Clause of the Fourteenth Amendment.

The test for determining whether a right extended by the Fifth and Sixth Amendments with respect to FEDERAL criminal proceedings is also protected against STATE ACTION by the Fourteenth Amendment has been phrased in a variety of ways in the opinions of this Court. The question has been asked whether a right is among those “`fundamental principles of liberty and justice which lie at the base of all our civil and political institutions,’”

-Duncan v Louisiana
http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=us&vol=391&invol=145
Gayunemployedmexican

CT I’ll let the Supreme Court explain this to you. The only way the bill of rights applies against the states if it is incorporated through the 14th amendment. Please read:

“many of the rights guaranteed by the first eight Amendments to the Constitution have been held to be protected against state action by the Due Process Clause of the Fourteenth Amendment.

The test for determining whether a right extended by the Fifth and Sixth Amendments with respect to FEDERAL criminal proceedings is also protected against STATE ACTION by the Fourteenth Amendment has been phrased in a variety of ways in the opinions of this Court. The question has been asked whether a right is among those “`fundamental principles of liberty and justice which lie at the base of all our civil and political institutions,’”

-Duncan v Louisiana
http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=us&vol=391&invol=145
Gayunemployedmexican

Given that you are challenging something that is completely undisputed in the legal world you now face a massive burden.

In all the time I have spent researching this I have not come across a single scholar or article or judge who has said otherwise. No one disagrees with them. This is settled fact. This isn’t something that ordinary human beings argue about.

Only you, only you have your head so far up your ass that you could argue about this.

Akhil Amar and Michael Dorf, two of the greatest constitutional law scholars of our generation both explicitly state that the bill of rights was only meant to apply to the states.

James Madison even submitted his own version of the Bill of Rights just to try to get it to apply to the states and it was voted down.
Gayunemployedmexican

“The Bill of Rights protected citizens only against violations by the federal government, not by the States or by private parties.”

-Cruishank v U.S.
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