1) I can tell you read it on email instead of online, because I fixed that about ten minutes after posting it,
2) I considered leaving it up and simply saying "I'm not a biologist," but that seemed to much like culture war bait,
3) I honestly mapped Breyer over to a woman reading the dissent because the first six pages were basically a copy/paste from innumerable Vox articles, Everytown articles, and such, which are all spaces so incredibly female dominated that they all bleed together in my head. The thing may have in fact been ghost written by a woman.
It's really a pretty simple matter. The Second Amendment states, in part: "the right of the people to keep and bear Arms, shall not be infringed."
If the "right of the people" is infringed by a plain reading of the statute in question, there's nothing more to discuss. There's no need to develop an evidentiary record, as Breyer and two other dissenters advocate. It's simply not how statutory construction works.
Let's say the evidentiary record demonstrated all that Breyer claims. It doesn't matter. The rules of statutory construction are still the same. If the statute in question infringes the "right of the people to keep and bear arms," the statute is unconstitutional. Period.
Breyer is not stupid. This is plain propaganda. But, depending on who has the votes, propaganda can be the law of the land, which is unfortunate but a fact of life. Fortunately, not so here.
Oh, and real zinger that Alito *should* have gone for is "maybe if New York had been a shall-issue state before now, some of those folks massacred in Buffalo might have had with them, at the time it was necessary, the means to fight back." Although, on second thought, I'm not sure I want the official record of the Supreme Court to devolve to the level of a YouTube comments thread.
Hey, I want to point out that the VCDL calls it a lobby day, because they were lobbying not protesting (though yes, I expect most there did not directly talk to a government official), and that it took place in 2020.
So we affirm via the dissent what we already know: ideology eliminates honesty. For all these many years the public has suffered from court decisions that have used ideology to reduce liberty. A very fortunate set of circumstances has reduced the ability of our highest court to impose that ideology.
We can hope that after the anger subsides over this and the Roe decision, we will settle down and accept the decisions. Probably not, the left ideologues really do hate to accept rule by [unfair] law.
It hadn't occurred to me to read the dissent, but I'm glad you did: who knew that Supreme Court justices are just as likely to use statistics for self-serving lies as journalists. Then again, Breyer's 83; did he even write this? Maybe he's a justice like Biden is President, and it was actually written by clerks.
This particular 1-2 combo this week is the best demonstration of everyone's utter disregard for the concept of "State's Rights" I've seen in a while. Possibly the best ever.
"States should absolutely have the right to regulate guns/abortions but they should absolutely not have the right to regulate abortions/guns."
Isn’t this because one of these is a constitutional right and one isn’t? If the abortion conversation goes in the direction of constitutional amendment then they would be on even footing - otherwise this is a false dichotomy.
There's actually a case that early term abortion might be constitutionally protected with an originalism argument as an unenumerated right under the 9th amendment. Reason had a good article about that a couple days ago.
If the court had *actually* stuck to the question in Dobbs -- which Roberts called them out on in his concurrence -- I'd have way less issue with it.
But the question in Dobbs was more like --
Mississippi: "Can we ban abortions after six weeks of gestation, or is that unconstitutional?"
Supreme court: *grants cert*
Mississippi: "Okay, since we're here, let's talk about overturning Roe v Wade entirely, and oh by the way we already have a bunch of amicus briefs."
---
And I say this thinking that A.) Abortion should be legal, to some extent (like most Americans) and B.) Roe v Wade was, in fact, terrible jurisprudence.
It's really the "going all the way" part that's got me saying this. In my opinion, Roe was overturned for some legitimate legal reasoning reasons, in a manner that the conservative half of the court wanted to pretend was apolitical but was a land grab, which Roberts called them on, and which the liberal side of the court wanted to pretend would have been apolitical to leave exactly the way it stood as-is forever.
I'm not even necessarily put out about RvW falling. But I think basically everyone is being an utterly disingenuous prick about claiming impartiality. Any claim to neutrality from any of the justices is a pure fig leaf.
"There's so much controversy, and everything this court has done in the past has not solved that controversy, so clearly the only remaining option for us to do in light of all this controversy is [my pet thing]."
*sigh*
I dunno. I just get frustrated. I'd just like **one** Nazgul who wasn't "conservative", who wasn't "liberal", who didn't have pet causes or use bullshit reasoning to justify why something isn't *really* unconstitutional, but who just followed the fucking constitution.
Yes, I'm probably praying for either a robot or an angel, I know, but the frustration still exists. *shrug* What can you do?
There was no "bait and switch." Unless Roe was overturned, a law banning abortions after six weeks would have been unconstitutional. It's just two ways of phrasing the same issue.
"Hey, Clarence! Hold my beer for a minute, I'm gonna need both hands to explain to Steve-o how fucking retarded he is. And don't hand it to Brett, I want it back later. This is gonna be thirsty work."
To everyone complaining about the pronoun thing:
1) I can tell you read it on email instead of online, because I fixed that about ten minutes after posting it,
2) I considered leaving it up and simply saying "I'm not a biologist," but that seemed to much like culture war bait,
3) I honestly mapped Breyer over to a woman reading the dissent because the first six pages were basically a copy/paste from innumerable Vox articles, Everytown articles, and such, which are all spaces so incredibly female dominated that they all bleed together in my head. The thing may have in fact been ghost written by a woman.
Obviously you’re not a golfer.
It was almost certainly written by one or more of his three female clerks.
I mean, it's possible. I'm led to believe it was largely plagiarized off of the Heller dissent.
It'll be interesting to read Eugene Volokh's take on it.
I did read it in email and was going just let you know about it to correct. 3, very likely written by their clerk, maybe?
You keep using "she" when referencing Justice Breyer. Has he had a transition that I'm not aware of?
I think it's just a reference to Breyer being bitchy
Aren’t Stephen Breyer’s pronouns he/him?
It's really a pretty simple matter. The Second Amendment states, in part: "the right of the people to keep and bear Arms, shall not be infringed."
If the "right of the people" is infringed by a plain reading of the statute in question, there's nothing more to discuss. There's no need to develop an evidentiary record, as Breyer and two other dissenters advocate. It's simply not how statutory construction works.
Let's say the evidentiary record demonstrated all that Breyer claims. It doesn't matter. The rules of statutory construction are still the same. If the statute in question infringes the "right of the people to keep and bear arms," the statute is unconstitutional. Period.
Breyer is not stupid. This is plain propaganda. But, depending on who has the votes, propaganda can be the law of the land, which is unfortunate but a fact of life. Fortunately, not so here.
I think that Justice Alito might be a HWFO reader: https://www.cnn.com/2022/06/23/politics/samuel-alito-stephen-breyer-guns/index.html
Oh, and real zinger that Alito *should* have gone for is "maybe if New York had been a shall-issue state before now, some of those folks massacred in Buffalo might have had with them, at the time it was necessary, the means to fight back." Although, on second thought, I'm not sure I want the official record of the Supreme Court to devolve to the level of a YouTube comments thread.
Hey, I want to point out that the VCDL calls it a lobby day, because they were lobbying not protesting (though yes, I expect most there did not directly talk to a government official), and that it took place in 2020.
So we affirm via the dissent what we already know: ideology eliminates honesty. For all these many years the public has suffered from court decisions that have used ideology to reduce liberty. A very fortunate set of circumstances has reduced the ability of our highest court to impose that ideology.
Breyer's dissent shows how shallow the reasoning was. Alito affirms your analysis: https://www.washingtonexaminer.com/policy/courts/scotus-gun-ruling-depicts-spat-between-retiring-breyer-alito. And apparently Breyer has used a similar approach to the 1st Amendment: https://reason.com/volokh/2022/05/02/justice-alito-identifies-the-problems-with-justice-breyers-factorized-jurisprudence.
We can hope that after the anger subsides over this and the Roe decision, we will settle down and accept the decisions. Probably not, the left ideologues really do hate to accept rule by [unfair] law.
Let us not forget Breyer's role in Kelo, either.
Interesting post,
It hadn't occurred to me to read the dissent, but I'm glad you did: who knew that Supreme Court justices are just as likely to use statistics for self-serving lies as journalists. Then again, Breyer's 83; did he even write this? Maybe he's a justice like Biden is President, and it was actually written by clerks.
This particular 1-2 combo this week is the best demonstration of everyone's utter disregard for the concept of "State's Rights" I've seen in a while. Possibly the best ever.
"States should absolutely have the right to regulate guns/abortions but they should absolutely not have the right to regulate abortions/guns."
Isn’t this because one of these is a constitutional right and one isn’t? If the abortion conversation goes in the direction of constitutional amendment then they would be on even footing - otherwise this is a false dichotomy.
There's actually a case that early term abortion might be constitutionally protected with an originalism argument as an unenumerated right under the 9th amendment. Reason had a good article about that a couple days ago.
If the court had *actually* stuck to the question in Dobbs -- which Roberts called them out on in his concurrence -- I'd have way less issue with it.
But the question in Dobbs was more like --
Mississippi: "Can we ban abortions after six weeks of gestation, or is that unconstitutional?"
Supreme court: *grants cert*
Mississippi: "Okay, since we're here, let's talk about overturning Roe v Wade entirely, and oh by the way we already have a bunch of amicus briefs."
---
And I say this thinking that A.) Abortion should be legal, to some extent (like most Americans) and B.) Roe v Wade was, in fact, terrible jurisprudence.
It's really the "going all the way" part that's got me saying this. In my opinion, Roe was overturned for some legitimate legal reasoning reasons, in a manner that the conservative half of the court wanted to pretend was apolitical but was a land grab, which Roberts called them on, and which the liberal side of the court wanted to pretend would have been apolitical to leave exactly the way it stood as-is forever.
I'm not even necessarily put out about RvW falling. But I think basically everyone is being an utterly disingenuous prick about claiming impartiality. Any claim to neutrality from any of the justices is a pure fig leaf.
"There's so much controversy, and everything this court has done in the past has not solved that controversy, so clearly the only remaining option for us to do in light of all this controversy is [my pet thing]."
*sigh*
I dunno. I just get frustrated. I'd just like **one** Nazgul who wasn't "conservative", who wasn't "liberal", who didn't have pet causes or use bullshit reasoning to justify why something isn't *really* unconstitutional, but who just followed the fucking constitution.
Yes, I'm probably praying for either a robot or an angel, I know, but the frustration still exists. *shrug* What can you do?
There was no "bait and switch." Unless Roe was overturned, a law banning abortions after six weeks would have been unconstitutional. It's just two ways of phrasing the same issue.
All I have to add at this point is that while Thomas' opinion is very well done, Alito's concurrence is the real gem here.
I mean... I've never had a SCOTUS ruling actually make me *cheer* before. ;)
"Hey, Clarence! Hold my beer for a minute, I'm gonna need both hands to explain to Steve-o how fucking retarded he is. And don't hand it to Brett, I want it back later. This is gonna be thirsty work."