If anyone's looking for legal arguments on either side of this, you'll find plenty in the amicus curiae briefs -- a couple of dozen of them -- filed with the Supreme Court this week.


Well, I was complaining about the Griswold/Roe line of cases, decided by the Supreme Court and not subject to further appeal. And I wouldn't support an amendment to overturn them. If anything, I'd support a "cleanup" amendment to put an actual, textual, right of privacy into the Constitution, rather than this penumbra of an emanation of a travesty of two mockeries of a sham. The Supreme Court lost a lot of its legitimacy when it went down that road. There's a difference between enforcing rights that are clearly written in the Constitution and the, er, creativity exercised in Roe.


Argumentum ad Santorum? Some slopes are slippery and some aren't. Back in the 80's, when a number of states were considering ERA-like amendments to forbid sex discrimination, there were conservatives who said it was a slippery slope to same-sex marriage. They were roundly mocked by editorialists, but they turned out to be right in Massachusetts. Of course, I don't think we're slipping and sliding towards incestuous marriage and inter-species marriage. But polygamous marriage? There's a constituency for that, you know...


If that's what you're saying, we're in violent agreement.

Only one side has actual true legal arguments; those filed for DC vacillate between the sociological to the emotional. Does a single one address the actual question the Court wants to hear evidence on?

I have read nearly every one but I find the briefs from 305 members of Congress & Senate (& the VP) (written by Halbrook) and the brief filed by 31 States in support of Heller compelling. Also the brief by Heartland Institute by Professor Volokh is the best at addressing the question presented and the issue of individual vs collective right in general.



As an original intent guy I like the Prenumbral theory because I do not consider the Bill of Rights to be the full and complete listing of the rights of the citizen. I think folks are treading on dangerous turf when statements like yours are made . . . That essentially the Court found rights where none existed before. I believe strongly that the citizens retained innumerable rights and powers not surrendered to the government via the Constitution. I endorse Justice Harlan in his oft cited exposition on the rights protected by the 14th Amendment:

"[T]he full scope of the liberty guaranteed by the Due Process Clause cannot be found in or limited by the precise terms of the specific guarantees elsewhere provided in the Constitution. This 'liberty´ is not a series of isolated points pricked out in terms of the taking of property; the freedom of speech, press, and religion; the right to keep and bear arms; the freedom from unreasonable searches and seizures; and so on. It is a rational continuum which, broadly speaking, includes a freedom from all substantial arbitrary impositions and purposeless restraints, . . . and which also recognizes, what a reasonable and sensitive judgment must, that certain interests require particularly careful scrutiny of the state needs asserted to justify their abridgment."

Poe v. Ullman, 367 U.S. 497, 543 (1961)

What possible argument could be made to rebut the above?

"What possible argument could be made to rebut the above?"

How about the argument that the penumbra collapses on itself? That's the flaw of Roe, since the more medical science makes it so that the unborn human can survive earlier, the less "right" one has to terminate the existence of the unborn human. And using your own argument here, the unborn human is either a person with a right to life, or not, and no shifting paradigm dependent on the state of medical science ought to change the answer.

Abortion was otherwise a crime at common law [see Blackstone] and the "quickening" was the pregnancy test of their day [i.e., one could only be sure that one was pregnant by feeling the child move inside the womb, as there was no pregancy test, home or otherwise, in those days]. In light of the history of the common law, the Supreme Court did indeed find a right where none had existed before. And from the AMA in 1859:

"the frightful extent of [abortion in the US] is found in the grave defects of our laws, both common and statute, as regards the independent and actual existence of the child before birth, as a living being. These errors, which are sufficient in most instances to prevent conviction, are based, and only based, upon mistaken and exploded medical dogmas."

Round about the same time that humans became aware of what we now call "conception," the great State of Maine made abortion a crime, "quickened or not".

Now, note the date. 1859. Ever read the 14th Amendment? When was it passed? Given that the majority of states followed Maine's lead and made all abortion a criminal offense, quickened or not, what does the word "person" in the 14th Amendment mean?

So it isn't dangerous at all, since there was never a right to take the life of an unborn human until some humans started to speak and write of the "penumbra". It would otherwise be nice if those deciding such matters, here one Justice Blackmun, would refrain from consciously falsifying our history. I don't otherwise normally condemn humans, at least in the eternal sense, as that isn't my job, but I will presume that there's a warm spot in a certain place in the hereafter for a certain US Supreme Court justice...but maybe his penumbra can keep him cool.

Mike, I agree with you on the 2nd Amendment, but this statement here, frankly, is quite puzzling. What rights, pray tell, did we surrender to the government? How can we surrender something that is inalienable

Incidentally, it may be some time before I can get back and address your response.

Oral arguments on DC. v. Heller will be happening this morning, and C-SPAN has arranged a same-day audio feed, to begin shortly after arguments are completed.

Listen here, around 11:30 EDT.