Quote:
Originally Posted by Sea Dangles
That is the problem with this thread,very predictable reactions based on nothing except the party line. Simple minds that are working hard I guess.����#^&♂️
Posted from my iPhone/Mobile device
|
And yours is a very predictable comment from someone who hasn't said anything of value in this thread.
Here, you want outside the established boundaries discussion?
I would enjoy a discussion of how the general anti-RKBA / 2nd Amendment agenda meshes with the foundational theory for penumbral rights.
The "penumbral rights theory" is how generalized "privacy' rights were recognized and how abortion, reproductive / contraceptive and sexual orientation rights are secured.
For those that do not know, the origin of those rights has been found in the "emanations" and "penumbras" of the rights expressly enumerated in the Bill of Rights.
The theory was outlined (without being named) in a dissent written by Justice Harlan in
Poe v Ullman. These unenumerated rights also rely on the principle embodied in the 9th Amendment. The case where penumbral rights became evident was
Griswold v Connecticut:
"[The] specific guarantees in the Bill of Rights have penumbras, formed by emanations from those guarantees that help give them life and substance. See Poe v. Ullman, 367 U.S. 497, 516-522 (dissenting opinion).
Griswold v. Connecticut, 381 U.S. 479 (1965)
Justice O'Connor, quoted below, expressly elevated Harlan's dissent to the opinion of the Court:
"Neither the Bill of Rights nor the specific practices of States at the time of the adoption of the Fourteenth Amendment marks the outer limits of the substantive sphere of liberty which the Fourteenth Amendment protects. See U. S. Const., Amend. 9. As the second Justice Harlan recognized:"[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."
Planned Parenthood of Southeastern Pa. v. Casey, 505 U.S. 833 (1992) (ellipsis in original)
Some questions for discussion:
How does anti-gunner's interpretation of the 2nd Amendment fit into the right to keep and bear arms being a link in the "rational continuum" of individual liberty protected from federal (and state) injury by the Bill of Rights?
Can a right that is found to exist in the "emanations" and "penumbras" of the rights enumerated in the Bill of Rights be more respected, more vital and more secure than a right that is actually enumerated in the Bill of Rights?
Can anti-gunner's hostility for the RKBA and their interpretation of the 2nd Amendment actually call into question the legitimacy of the penumbral rights theory, securing the rights to abortion and other reproductive choices or even the gains made in LGBT rights?
IOW, if the "rational continuum" does not exist -- since there is a "right" that doesn't belong to individuals in the series, how can the penumbral rights theory be valid?
.
Point of information, I support the penumbral rights theory. I believe it to be a usable work-around to
Slaughterhouse, which gutted the privileges or immunities clause of the 14th Amendment. I would prefer
Slaughterhouse to be revisited by SCOTUS and overturned, it is universally considered a wrongly decided case.