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Looking at this ruling and the one a few days ago on arms - could someone explain to me why they're wrong legally? FYI I'm not American and personally am in fav

Looking at this ruling and the one a few days ago on arms - could someone explain to me why they're wrong legally? FYI I'm not American and personally am in favour of legalised abortion + severe gun restrictions. My understanding is these rulings are both based on the constitution. The one on guns seems really straightforward: "A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed." I know this can be interpreted differently but to me it reads that nobody should be restricted from arming themselves. Regarding abortion, what aspect of the constitution would cover it? I'm asking in good faith here btw. Edit: separately, it is insane to me that these big decisions can be completely split along political lines. A 'supreme court' should be apolitical. There are so many issues with the way the US Supreme Court works. It needs total reform. You should be able to trust a court to make a decision based on the law, not their personal preferences.

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indymike 4y ago
> Regarding abortion, what aspect of the constitution would cover it? The US Constitution does not contain the word abortion, and so decisions by the Court on abortion either way are only indirectly guided by applying other parts of the Constitution.
- InTheArena 4y ago
  Except this is not the way the consitution is actually written: "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." To the people == legislative branch. to the states means the states legislative branch.
  - mywittyname 4y ago
    The Constitution also says, > [The Congress shall have Power] To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes; Which is the go-to argument for federal control over things. If you pay for it, and buy it from another state, then the feds can regulate it. It seems perfectly legal to make a federal law that states don't have the power to block access to medications produced in elsewhere. Nor do they have the power to prosecute people for buying such medications, regardless of the effects, from businesses which have locations in multiple states.
    - InTheArena 4y ago
      I think you would have better luck arguing the equal protection clause. The commerce clause can be used to strike down a state trying to prevent it's citizens getting abortions in other states, but cannot be used to restrict the laws of a single state.
      - MisterBastahrd 4y ago
        Which is meaningless now that the USSC has determined that it's fine if people sue over abortions they suspect may have happened.
      - mywittyname 4y ago
        In an ideal world, SCOTUS would point to the Ninth Amendment, say, "this seems like an un-enumerated constitutional right" and allow it. But since we don't yet live in that world, we need every argument we can find, no matter how flimsy or contrived. Because, despite having a solid foundation sitting right there, we are forced to build on top of a patchwork of whatever else we see laying around.
        InTheArena 4y ago
        Or we can just pass a law, instead of allowing judges to do so. Remember that the supreme court has a somewhat checkered history. IT is the least of the democratic branches, but has unarguably limitless rights. What is the supreme court decided that I had a in-numerated constitutional right to have slaves? Or a un-enumerated right to not have Japanese or Chinese in my state. These are not hypothetical.
  - cryptonector 4y ago
    > To the people == legislative branch. This is the first time I've seen that assertion.
- helloooooooo 4y ago
  The Constitution also doesn’t say I am allowed to bear an Ak47, but apparently it’s a constitutionally protected right. You have a right to bear arms, but if you are going by the strictest interpretation, those arms should be a firearm built using 1776 technology. Fuck originality interpretation. We all know exactly what SCOTUS is going to overturn next and it is going to backslide America into a further shithole
  - Empact 4y ago
    Actually, it does: "arms" is a general term that describes weapons including the Ak47. The problem with saying technological change invalidates the 2nd amendment, is that you have to also explain or accept that the 1st amendment only applies to letters written with a feather and a pool of ink.
    - mywittyname 4y ago
      "Arms" includes nuclear weapons too, strictly speaking. After-all, the term for the period in which the USA was building ever more powerful nuclear weapons was called the "nuclear arms race."
      - notch656a 4y ago
        Ah the classic nukes "gotcha." If you want to argue nukes ought to be included as bearable arms, I'm all for that too. The federal government has shown itself very willing to infringe on the right to bear arms. A constitutional amendment could easily ban nukes. It's not like there isn't a process to get them out of private hands the legitimate way. It probably wouldn't even be difficult amendment to pass. Similarly an amendment should be required if you want to exclude certain technology from the 1st amendment.
tomschlick 4y ago
> Regarding abortion, what aspect of the constitution would cover it? The Roe case hinged on abortion being a right under privacy right. It was a very weak argument and even Ruth Bader Ginsberg (a very left leaning justice who died recently) didnt like that reasoning and thought it was weak: https://www.washingtonpost.com/history/2022/05/06/ruth-bader-ginsburg-roe-wade/ https://www.washingtonpost.com/history/2022/05/06/ruth-bader...
- notch656a 4y ago
  They decided abortion was a right and worked backward until they found a round hole in which to fit the square peg. Frankly I think it fits much better into the 13th amendment, but then that would also lead to the uncomfortable conclusion that parents may be compelled to involuntarily serve both unborn and born offspring, and I'm guessing they didn't like the implications that would have on child neglect laws.
vbtemp 4y ago
> ""A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed." I think was this was meant to mean was: Any citizen has the right to join their local/state militia, and keep their service rifle and uniform with them at home.
- troon-lover 4y ago
- _dain_ 4y ago
  That isn't what was found by DC v Heller.
  - koheripbal 4y ago
    The Constitution is a little ambiguous as to whether or not a citizen must join a militia in order to keep a gun at home. ...however in the absence of militias in the US today, it makes sense that even if that requirement was initially envisioned (which is very debatable), it's no longer reasonable. It's historically interesting to note that different versions of the amendment were ratified, both including and not including that last comma.
  - cweagans 4y ago
    DC v. Heller was wrong. Go read the context around all of the places where a militia is mentioned in the constitution. It’s a pretty clear difference from the world that DC v. Heller created.
    - curiousllama 4y ago
      Yea, there's a lot of history around types of militias, too (especially formal v. informal militias). The historical arguments were what got me on this: the 'prefatory' clause is pretty clearly there to point out that formal militias are allowed, and make no mention of informal militias.
  - 4y ago
908B64B197 4y ago
> "A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed." > I know this can be interpreted differently but to me it reads that nobody should be restricted from arming themselves. Sure was interpreted differently when black people started carrying in public! [0]. [0] https://en.wikipedia.org/wiki/Mulford_Act https://en.wikipedia.org/wiki/Mulford_Act
- laverya 4y ago
  Which was wrong, and will ideally be overturned. "Racists supported gun control in the past, therefore we should keep gun control now" is perhaps not the strongest argument one can make.
_dain_ 4y ago
>Regarding abortion, what aspect of the constitution would cover it? None. Roe was based on pure vapor, constitutionally speaking. >You should be able to trust a court to make a decision based on the law, not their personal preferences. That is in fact what the Supreme Court has just done, by overturning Roe.
motive 4y ago
Regarding guns, the dissent argues that “well-regulated” and “militia” are key components of the text. The applicants for concealed carry were not part of a militia, and the current court doesn’t seem to acknowledge the “well-regulated” piece exists at all. With regard to abortion, the constitution guarantees us a right to privacy, which is closely linked to bodily autonomy. The argument being that there is constitutionally no legal way for the government to involve itself in your personal health decisions. There is an interesting ideological reversal here with regard to the recent vaccine debate with liberals arguing the government should be able to compel vaccination, and the conservatives against.
- InTheArena 4y ago
  Except there isn't a explicit right to privacy either in the constitution or the bill of rights. Which is why RBG always argued that Roe v. Wade was poorly decided.
  - motive 4y ago
    Should there be? I think this is an evolving question that would settle a number of ambiguities in the law. If one were to die tomorrow without being an organ donor, the state still cannot compel one to give up their organs, even if it would save lives. Why should a woman’s body have less autonomy than a corpse? On the other hand, I don’t think many people would support 39-week abortions either, absent some explicit medical necessity. At some point, which is inherently a gradient, our legal system has to afford protection to what is a viable person. Americans have a tendency to go for the most extreme positions on everything and I think the court reversing Roe is an incredibly shortsighted decision that will cost it decades of legitimacy. The institution is more damaged now than possibly ever. Even the Chief Justice had wanted to uphold Mississippi’s law but preserve Roe, which would’ve been a much better solution than where we are today. Extremism is a cancer destroying this country.
    - InTheArena 4y ago
      I agree that extremism is a cancer. I just view Roe v. Wade as the genesis of much of that cancer. We have a system that allows for changing laws - it's called a republic. We have a system that even allows for changing the constitution. Upholding Mississippi's law but preserving Roe is intrinsically a political decision. Politics belong with legislatures, not judges.
InTheArena 4y ago
This is exactly the point for me. Roe V Wade embraced a court that decided that judges could/should legislate (that is, make new laws) rather then enforce the text of existing laws. This is not new from the court - separate but equal, Bush v. Gore, Citizens United, Dredd Scott - all basically where examples of the court taking matters into their own hands. This simply says "Abortion is a legislative matter - the constitution does not say that abortion must be legal until the moment of delivery".
- kennywinker 4y ago
  Weird because the courts striking down laws as unconstitutional is literally their job description. Equal protection under the law would be my first pick for constitutional protection of abortion. There are very few life threatening things that the law compels men to do. Yet the law can compel a women to carry a fetus to term against her will?
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  - lesstyzing 4y ago
    >> Equal protection under the law would be my first pick for constitutional protection of abortion[..] Yet the law can compel a women to carry a fetus to term against her will? But wouldn't that introduce the issue of whether or not the foetus should be entitled to equal protection (which most anti-abortion voters would suggest is a child and should be protected/have rights)? Seems odd to make it a man/woman equality issue.
    - charwalker 4y ago
      So an unborn not yet human will have more rights than an 'illegal alien'?
    - kennywinker 4y ago
      When two people’s right conflict, who wins? For example, i have two lungs. You are in a car accident and both your lungs have failed. I could donate a lung and save your life. Your right to live comes up against my right to control my own body. My right overrules your right. Even if I was the one who caused the accident that damaged your lungs. I can be found to have broken laws causing the accident, but I can’t be forced to donate an organ.
jimbob45 4y ago
I heavily recommend that you read the gun ruling for yourself. It's a very fun run through history. How often do you get to read about the 1328 Statute of Northampton, launcegays, and the Black Death in modern legal analysis? https://www.supremecourt.gov/opinions/21pdf/20-843_7j80.pdf https://www.supremecourt.gov/opinions/21pdf/20-843_7j80.pdf
ceilingcorner 4y ago
It isn’t wrong legally and if anything, had the constitution been followed correctly, this decision is how it should have played out in the first place. It is only controversial because some people think their personal opinions on controversial issues should override democratic mechanisms.
colinmhayes 4y ago
The US has a common law system, which means supreme court precedent is binding. Once a case is decided courts aren't supposed to decide the same case in the other direction. The supreme court has decided many cases showing that Americans have the right to abortion until viability. Undoing that precedent is a largely unprecedented move. The New York carry case seems like it was probably decided correctly, what's interesting to me is that the courts gun law doctrine relies on deciding whether the law is "consistent with the nations historical tradition of firearm control." The court decided this law was not, even though it is over a century old and 7 states have had similar laws for decades. At what point does it become part of our historical tradition?
- cryptonector 4y ago
  Brown vs. Board of Education undid a ~60 year precedent. This case undoes a 50 year precedent. The court has to be allowed to undo precedents once in a while. Otherwise we'd have to fight a civil war over every Dred Scott case. I'm NOT saying this case, or yesterday's, was rightly decided. I'm only pointing out that the court has changed its mind a number of times in the past, and will again in the future.
mdavis6890 4y ago
Article the twelfth (AKA the 10th amendment) of the Bill of Rights from the US Constitution: "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.” So the current argument might be that since the constitution does not give the federal government the power to regular abortions (or to prevent states from regulating them), then that power to regulate them or not is reserved for the states to do as they please. The prior argument (from Roe vs Wade) is that the US Constitution provides a right to privacy and that prohibiting or otherwise restricting abortions violates that right to privacy. While there's no explicit right to privacy in the constitution, it could be implied by the 14th amendment: "... nor shall any State deprive any person of life, liberty, or property, without due process of law ..." From the original Roe vs Wade opinion: "A person may choose to have an abortion until a fetus becomes viable, based on the right to privacy contained in the Due Process Clause of the Fourteenth Amendment. Viability means the ability to live outside the womb, which usually happens between 24 and 28 weeks after conception." https://supreme.justia.com/cases/federal/us/410/113/ https://supreme.justia.com/cases/federal/us/410/113/
- helloooooooo 4y ago
  And these justifications from previous decisions (Obergefell, Loving etc… ) can be overturned with the current SCOTUS’s interpretation. In-fact, in the leaked draft, these were also on the docket to be targeted by the court. In todays assent, only Obergefell is being targeted. I wonder why that is? (Cough, Clarence Thomas)
  - Empact 4y ago
    Aren't Obergfell and Loving based on equal protection, rather than privacy? That seems a more valid basis, to this Roe-skeptic.
- belorn 4y ago
  The current record of a baby surviving is around 20-21 weeks. The viability condition is one of the legal arguments people tend to attack. Justice Blackmun even wrote in a memo when drafting the verdict for Roe vs Wade: "You will observe that I have concluded that the end of the first trimester is critical. This is arbitrary, but perhaps any other selected point, such as quickening or viability, is equally arbitrary." They did end upon a viability criteria. The exact week has also changed since medical science has advanced in the last 50 years.
nabla9 4y ago
There is a legal principle that once the court bedsides something and it becomes established law, you don't overturn the previous decision lightly. Roe & Wade is based on the Due Process Clause of the 14th Amendment to the United States Constitution. Roe vs Wade did not happen in vacuum, it's part of a larger understanding of the Constitution that recognizes a right to privacy and recognizes that there are unwritten rights. This decision overturns this whole 50-year old framework. Decisions based on 14th Amendment’s Due Process clause are now open for banning contraception, banning interracial relationships, family relationships, right to intimacy (sodomy laws), the right to personal control of medical treatment. It will even have data collection limit consequences. How Dismantling Roe Puts Interracial Marriage at Risk https://www.aclu.org/podcast/how-dismantling-roe-puts-interracial-marriage-at-risk https://www.aclu.org/podcast/how-dismantling-roe-puts-interr...
- xdennis 4y ago
  This is just scaremongering for funding. Nobody is trying to ban interracial marriage. Roe v Wade was controversial since it was decided. It was never settled precedent. People have tried to overturn it from the start.
mc32 4y ago
It should be up to the Congress (or state legislatures) to make abortion legal and write the laws that protect the right such as they did for example in France. The Constitution is or was a band-aid and it's reached its EOL. The Congress has abrogated their duty here and we're seeing the consequence of this.
LatteLazy 4y ago
People hate to admit it but the court is just another political entity and always has been. The basis for Roe was weak (bodily autonomy, privacy). So is the basis for literally all gun control: >> "A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed." So anyone, including children, the insane, felons etc has a right to bear "arms". And there is no clear limit to say that a gun is "arms" but a kilo of C4 or a ground-air missile launcher or a fully armed attack helicopter is not. In fact, in 2022 any militia that could be even slightly useful will need at least some air support. Yet SCOTUS has routinely banned these items from personal procession. I say this not because I am some crazy gun nut or I think that those an actual right to bear arms would be a good idea. I say it to point out that the courts job was always to rule what people wanted and what was practical was also legal. Just like a politicians job is. Actually arguing actual constitutionality is a red herring. A lawyer's job is to find a loophole and all judges start as lawyers...
- jandrewrogers 4y ago
  As a point of fact, Americans can legally buy a "fully armed attack helicopter". They typically don't as a matter of practicality and cost, not theoretical ability. The paperwork is pretty nominal. Most Americans don't realize that, at least until recently, you could buy a kilo of C4 with cash, no questions asked. It is outside the experience of most Americans to buy high explosives retail, but that's actually a thing depending on where you live.
- cryptonector 4y ago
  Ah, an excellent comment. Yes, the courts generally lag public opinion, but eventually side with it. Whether regarding interracial marriage, birth control, gun control, and many other things. If anything, Roe was an outlier because in 1972 the public was probably mostly unconcerned about abortion and, if pressed, probably not broadly for it to be legal. If, indeed, more than half the States were to legalize civilian possession of heavy weapons, then the courts might rule that to be covered by the second amendment. And since none do, the court will feel safe ending the second amendment's shade at small-caliber firearms. One might wish for the courts to act very differently than this, but then we'd probably see large majorities in favor of reforming them to be as they are. It's a problem, though, that we have such disparities in public opinion between various States. By the way, this decision may well cause the end of Republican rule in many Republican States if their legislatures get too excited about banning more abortion options than the people of those States want them to. It might well usher a multi-decadal Democrat majority in the State legislatures and in the Federal government. It could very well be a Pyrrhic victory for pro-life activists.
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madeofpalk 4y ago
> You should be able to trust a court to make a decision based on the law, not their personal preferences. The role of a court is to interpret law. While not preference, but "opinion" is entirely the point of a court.
mirceal 4y ago
> I know this can be interpreted differently You answered your own question. It's the interpretation that matters. The Supreme Court is a joke. Political debates have not been done in good faith in the US for decades. It's no longer about the people - it's about fooling the people into getting amped up about things and voting one way or the other. It's like a wrestling match. Does it really matter who wins if it's all fake? Actually I take this back: being a wrestler actually needs some sort of prep and physical conditioning. Wrestling is better than politics.
curiousllama 4y ago
So it's bad law for 3 reasons: (1) Stare Decisis and Reliance: two legal standards that had restrained even right-wing courts for years. It's legal, but "bad", for the Court to overturn a long-standing law that people organize their lives around (as they did post sexual-revolution). So the standard isn't "is it wrong," it's "is it egregiously wrong." And the court has found multiple times that Roe is fine. (2) The decision doesn't take aim at _just_ abortion. It takes aim at the right to privacy. This right is pretty strong, overall: the 9th Amendment says "just bc a right is not explicit, that doesn't mean it isn't real"; the 3rd, 4th and others say "the gov't can't just meddle in your affairs without real justification;" the 14th says "this right is universal." Implying this right is weak is iffy at best, and DEFINITELY doesn't meet the "egregiously wrong" standard. (3) The new tests are, uh, speculative. (3a)They rely on historical analysis that is contextually-driven at best. Are we talking abortion, reproductive healthcare, or women's rights? That's a matter of framing, not law, and will lead to dif conclusions, which makes it a bad test. [Note: more on this when Obergefell is inevitably challenged...] (3b) The tests lead to dif conclusions than Alito reached. Abortion has been legal in the US for longer than it's been illegal; it wasn't banned nationwide until the 20th century, because it was explicitly legal under british common law. Even 19th century regulations were effectively just regulations of methods (poison control), not abortion itself. I'd argue "a cultural practice referenced in Shakespeare, explicitly addressed in 400 years of british common law, and that we kept for 100+ years in the US, including when the Constitution was written" is pretty deep. Besides, it's applied differently in different cases (how far back is "deeply rooted," anyway?). TLDR: arbitrary = bad test. All this to say: I'm pissed bc it's bad policy, but I'm ALSO annoyed at the bad legal analysis. Like - there are better arguments! It feels like an F U.
- Dracophoenix 4y ago
  (1) Stare decisis should not be followed blindly. "Wrong" and "egregiously wrong" are subjective gradations. Recall that Dred Scott or Plessy weren't considered wrong or even "egregiously" wrong for decades after their decision until they were. Also, Casey vs Planned Parenthood did partially overturn Roe vs Wade. So to say that courts found Roe "fine" is misleading. (2) Roe vs Wade is not premised on the 9th amendment (as much as I would have liked that) or cases involving substantive due process (Lochner vs New York), but on Griswold vs Connecticut, which relied an unsubstantiated argument of "penumbras" and "emanations", as though rights can be "found" in the same way that one summons Captain Planet. Roe vs Wade does not make a protestation to the defense of bodily autonomy as a fundamental right. In fact, Roe explicitly rejects such arguments.
JumpCrisscross 4y ago
Nothing in this opinion bars the Congress from crafting a compromise. One might hope it prompts just such deliberation, though within the confines of present politics I find that unlikely.
ghostoftiber 4y ago
> I know this can be interpreted differently but to me it reads that nobody should be restricted from arming themselves. If you followed the absolute letter of the law in the current US legal code, females should be disqualified from owning guns: https://uscode.house.gov/view.xhtml?path=/prelim@title10/subtitleA/part1/chapter12&edition=prelim https://uscode.house.gov/view.xhtml?path=/prelim@title10/sub... George Mason, coauthor of the second amendment, was asked "Who is the militia?" He's been asked this several times and at one point said it was everyone except our politicians. He typically responds: "I ask, sir, what is the militia? It is the whole people, except for few public officials." (George Mason, 3 Elliot, Debates at 425-426) - https://www.madisonbrigade.com/g_mason.htm https://www.madisonbrigade.com/g_mason.htm The scope of the second amendment is the same scope as all other amendments which is to say it's an unlimited, and natural right. Anything else is just playing stupid games with lawyers.
synergy20 4y ago
Yes I agree the legal system should be apolitical, they should be elected instead of appointed, and there should be an age limit, plus it's just odd those judges never retires, congress is 4-years, senate is 6, what about a 8-year-term for supreme court just like everybody else(longer term for 'stability', life long term is ridiculous to me).
- goosedragons 4y ago
  Them being elected would only guarantee they are political. If judge appointment was not decided by politicians and instead an independent body there would be a better chance of them actually being apolitical.
  - Ekaros 4y ago
    From outside perspective so many parts of judicial system being elected individuals seem sort of part of the problem. Them being elected means that there is very perverse incentive to work with. Ofc, there need to be way to recall those misusing the power or not following the laws. But maybe campaigning isn't the best way to do.
jcranberry 4y ago
That line is simply fallacious in the modern context. A well regulated militia is "not necessary to the security of a free state".
ncallaway 4y ago
> Regarding abortion, what aspect of the constitution would cover it? The 9th amendment of the United States reads: > The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people. This was added as an Amendment, because many founders were deeply concerned that the introduction of a bill of rights would create the impression that if they enumerated some rights, people would consider that list to be complete. That is, they recognized that there were many rights not explicitly enumerated by the constitution that were still important rights. Nearly everyone agreed that the enumeration of rights was not intended to capture every right. So, relying on "what rights are explicitly mentioned in the constitution" is antithetical to the entire concept of the bill of rights. It's an incorrect place to start reading the constitution.
- cryptonector 4y ago
  It would be nice if 9th and 10th Amendment jurisprudence were stronger.
seanicus 4y ago
Re: guns, if the militia is well regulated then the militia needs to explain guns getting into the hands of people that kill kids as well as insanely high per capita murder rates (primarily in red states, it should be mentioned). Maybe time to disband a militia that can't regulate itself? This is aside from the founders not being presented with a firearm that can put 6" holes into a kindergartner's body at the rate of 45 rounds per minute. We're never going to fix the gun issue in this country but the reading of 2a has always been absolutely absurd. RE: SCOTUS the powerful will always protect the powerful. Sotomayor just went on the record the other day to call Clarence Thomas 'a man who cares deeply about the court as an institution.' Clarence Thomas, whose wife was supporting and funding the January 6th insurrection and effort to overturn a legal election. Every now and then I ctrl-f the constitution to find the words "supreme court" and somehow come up blank every time.
- AustinDev 4y ago
  >This is aside from the founders not being presented with a firearm that can put 6" holes into a kindergartner's body at the rate of 45 rounds per minute. Citation required... the only way you're going to get a 6" hole in a human body is with something like a .50 BMG (which is an anti-material rifle) or maybe a .45-70.

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indymike 4y ago

> Regarding abortion, what aspect of the constitution would cover it? The US Constitution does not contain the word abortion, and so decisions by the Court on abortion either way are only indirectly guided by applying other parts of the Constitution.

InTheArena 4y ago
Except this is not the way the consitution is actually written: "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." To the people == legislative branch. to the states means the states legislative branch.
- mywittyname 4y ago
  The Constitution also says, > [The Congress shall have Power] To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes; Which is the go-to argument for federal control over things. If you pay for it, and buy it from another state, then the feds can regulate it. It seems perfectly legal to make a federal law that states don't have the power to block access to medications produced in elsewhere. Nor do they have the power to prosecute people for buying such medications, regardless of the effects, from businesses which have locations in multiple states.
  - InTheArena 4y ago
    I think you would have better luck arguing the equal protection clause. The commerce clause can be used to strike down a state trying to prevent it's citizens getting abortions in other states, but cannot be used to restrict the laws of a single state.
    - MisterBastahrd 4y ago
      Which is meaningless now that the USSC has determined that it's fine if people sue over abortions they suspect may have happened.
    - mywittyname 4y ago
      In an ideal world, SCOTUS would point to the Ninth Amendment, say, "this seems like an un-enumerated constitutional right" and allow it. But since we don't yet live in that world, we need every argument we can find, no matter how flimsy or contrived. Because, despite having a solid foundation sitting right there, we are forced to build on top of a patchwork of whatever else we see laying around.
      - InTheArena 4y ago
        Or we can just pass a law, instead of allowing judges to do so. Remember that the supreme court has a somewhat checkered history. IT is the least of the democratic branches, but has unarguably limitless rights. What is the supreme court decided that I had a in-numerated constitutional right to have slaves? Or a un-enumerated right to not have Japanese or Chinese in my state. These are not hypothetical.
- cryptonector 4y ago
  > To the people == legislative branch. This is the first time I've seen that assertion.
helloooooooo 4y ago
The Constitution also doesn’t say I am allowed to bear an Ak47, but apparently it’s a constitutionally protected right. You have a right to bear arms, but if you are going by the strictest interpretation, those arms should be a firearm built using 1776 technology. Fuck originality interpretation. We all know exactly what SCOTUS is going to overturn next and it is going to backslide America into a further shithole
- Empact 4y ago
  Actually, it does: "arms" is a general term that describes weapons including the Ak47. The problem with saying technological change invalidates the 2nd amendment, is that you have to also explain or accept that the 1st amendment only applies to letters written with a feather and a pool of ink.
  - mywittyname 4y ago
    "Arms" includes nuclear weapons too, strictly speaking. After-all, the term for the period in which the USA was building ever more powerful nuclear weapons was called the "nuclear arms race."
    - notch656a 4y ago
      Ah the classic nukes "gotcha." If you want to argue nukes ought to be included as bearable arms, I'm all for that too. The federal government has shown itself very willing to infringe on the right to bear arms. A constitutional amendment could easily ban nukes. It's not like there isn't a process to get them out of private hands the legitimate way. It probably wouldn't even be difficult amendment to pass. Similarly an amendment should be required if you want to exclude certain technology from the 1st amendment.

tomschlick 4y ago

> Regarding abortion, what aspect of the constitution would cover it? The Roe case hinged on abortion being a right under privacy right. It was a very weak argument and even Ruth Bader Ginsberg (a very left leaning justice who died recently) didnt like that reasoning and thought it was weak: https://www.washingtonpost.com/history/2022/05/06/ruth-bader-ginsburg-roe-wade/ https://www.washingtonpost.com/history/2022/05/06/ruth-bader...

notch656a 4y ago
They decided abortion was a right and worked backward until they found a round hole in which to fit the square peg. Frankly I think it fits much better into the 13th amendment, but then that would also lead to the uncomfortable conclusion that parents may be compelled to involuntarily serve both unborn and born offspring, and I'm guessing they didn't like the implications that would have on child neglect laws.

vbtemp 4y ago

> ""A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed." I think was this was meant to mean was: Any citizen has the right to join their local/state militia, and keep their service rifle and uniform with them at home.

troon-lover 4y ago
_dain_ 4y ago
That isn't what was found by DC v Heller.
- koheripbal 4y ago
  The Constitution is a little ambiguous as to whether or not a citizen must join a militia in order to keep a gun at home. ...however in the absence of militias in the US today, it makes sense that even if that requirement was initially envisioned (which is very debatable), it's no longer reasonable. It's historically interesting to note that different versions of the amendment were ratified, both including and not including that last comma.
- cweagans 4y ago
  DC v. Heller was wrong. Go read the context around all of the places where a militia is mentioned in the constitution. It’s a pretty clear difference from the world that DC v. Heller created.
  - curiousllama 4y ago
    Yea, there's a lot of history around types of militias, too (especially formal v. informal militias). The historical arguments were what got me on this: the 'prefatory' clause is pretty clearly there to point out that formal militias are allowed, and make no mention of informal militias.
- 4y ago

908B64B197 4y ago

> "A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed." > I know this can be interpreted differently but to me it reads that nobody should be restricted from arming themselves. Sure was interpreted differently when black people started carrying in public! [0]. [0] https://en.wikipedia.org/wiki/Mulford_Act https://en.wikipedia.org/wiki/Mulford_Act

laverya 4y ago
Which was wrong, and will ideally be overturned. "Racists supported gun control in the past, therefore we should keep gun control now" is perhaps not the strongest argument one can make.

_dain_ 4y ago

>Regarding abortion, what aspect of the constitution would cover it? None. Roe was based on pure vapor, constitutionally speaking. >You should be able to trust a court to make a decision based on the law, not their personal preferences. That is in fact what the Supreme Court has just done, by overturning Roe.

motive 4y ago

Regarding guns, the dissent argues that “well-regulated” and “militia” are key components of the text. The applicants for concealed carry were not part of a militia, and the current court doesn’t seem to acknowledge the “well-regulated” piece exists at all. With regard to abortion, the constitution guarantees us a right to privacy, which is closely linked to bodily autonomy. The argument being that there is constitutionally no legal way for the government to involve itself in your personal health decisions. There is an interesting ideological reversal here with regard to the recent vaccine debate with liberals arguing the government should be able to compel vaccination, and the conservatives against.

InTheArena 4y ago
Except there isn't a explicit right to privacy either in the constitution or the bill of rights. Which is why RBG always argued that Roe v. Wade was poorly decided.
- motive 4y ago
  Should there be? I think this is an evolving question that would settle a number of ambiguities in the law. If one were to die tomorrow without being an organ donor, the state still cannot compel one to give up their organs, even if it would save lives. Why should a woman’s body have less autonomy than a corpse? On the other hand, I don’t think many people would support 39-week abortions either, absent some explicit medical necessity. At some point, which is inherently a gradient, our legal system has to afford protection to what is a viable person. Americans have a tendency to go for the most extreme positions on everything and I think the court reversing Roe is an incredibly shortsighted decision that will cost it decades of legitimacy. The institution is more damaged now than possibly ever. Even the Chief Justice had wanted to uphold Mississippi’s law but preserve Roe, which would’ve been a much better solution than where we are today. Extremism is a cancer destroying this country.
  - InTheArena 4y ago
    I agree that extremism is a cancer. I just view Roe v. Wade as the genesis of much of that cancer. We have a system that allows for changing laws - it's called a republic. We have a system that even allows for changing the constitution. Upholding Mississippi's law but preserving Roe is intrinsically a political decision. Politics belong with legislatures, not judges.

InTheArena 4y ago

This is exactly the point for me. Roe V Wade embraced a court that decided that judges could/should legislate (that is, make new laws) rather then enforce the text of existing laws. This is not new from the court - separate but equal, Bush v. Gore, Citizens United, Dredd Scott - all basically where examples of the court taking matters into their own hands. This simply says "Abortion is a legislative matter - the constitution does not say that abortion must be legal until the moment of delivery".

kennywinker 4y ago
Weird because the courts striking down laws as unconstitutional is literally their job description. Equal protection under the law would be my first pick for constitutional protection of abortion. There are very few life threatening things that the law compels men to do. Yet the law can compel a women to carry a fetus to term against her will?
- deleted 4y ago
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- lesstyzing 4y ago
  >> Equal protection under the law would be my first pick for constitutional protection of abortion[..] Yet the law can compel a women to carry a fetus to term against her will? But wouldn't that introduce the issue of whether or not the foetus should be entitled to equal protection (which most anti-abortion voters would suggest is a child and should be protected/have rights)? Seems odd to make it a man/woman equality issue.
  - charwalker 4y ago
    So an unborn not yet human will have more rights than an 'illegal alien'?
  - kennywinker 4y ago
    When two people’s right conflict, who wins? For example, i have two lungs. You are in a car accident and both your lungs have failed. I could donate a lung and save your life. Your right to live comes up against my right to control my own body. My right overrules your right. Even if I was the one who caused the accident that damaged your lungs. I can be found to have broken laws causing the accident, but I can’t be forced to donate an organ.

jimbob45 4y ago

I heavily recommend that you read the gun ruling for yourself. It's a very fun run through history. How often do you get to read about the 1328 Statute of Northampton, launcegays, and the Black Death in modern legal analysis? https://www.supremecourt.gov/opinions/21pdf/20-843_7j80.pdf https://www.supremecourt.gov/opinions/21pdf/20-843_7j80.pdf

ceilingcorner 4y ago

It isn’t wrong legally and if anything, had the constitution been followed correctly, this decision is how it should have played out in the first place. It is only controversial because some people think their personal opinions on controversial issues should override democratic mechanisms.

colinmhayes 4y ago

The US has a common law system, which means supreme court precedent is binding. Once a case is decided courts aren't supposed to decide the same case in the other direction. The supreme court has decided many cases showing that Americans have the right to abortion until viability. Undoing that precedent is a largely unprecedented move. The New York carry case seems like it was probably decided correctly, what's interesting to me is that the courts gun law doctrine relies on deciding whether the law is "consistent with the nations historical tradition of firearm control." The court decided this law was not, even though it is over a century old and 7 states have had similar laws for decades. At what point does it become part of our historical tradition?

cryptonector 4y ago
Brown vs. Board of Education undid a ~60 year precedent. This case undoes a 50 year precedent. The court has to be allowed to undo precedents once in a while. Otherwise we'd have to fight a civil war over every Dred Scott case. I'm NOT saying this case, or yesterday's, was rightly decided. I'm only pointing out that the court has changed its mind a number of times in the past, and will again in the future.

mdavis6890 4y ago

Article the twelfth (AKA the 10th amendment) of the Bill of Rights from the US Constitution: "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.” So the current argument might be that since the constitution does not give the federal government the power to regular abortions (or to prevent states from regulating them), then that power to regulate them or not is reserved for the states to do as they please. The prior argument (from Roe vs Wade) is that the US Constitution provides a right to privacy and that prohibiting or otherwise restricting abortions violates that right to privacy. While there's no explicit right to privacy in the constitution, it could be implied by the 14th amendment: "... nor shall any State deprive any person of life, liberty, or property, without due process of law ..." From the original Roe vs Wade opinion: "A person may choose to have an abortion until a fetus becomes viable, based on the right to privacy contained in the Due Process Clause of the Fourteenth Amendment. Viability means the ability to live outside the womb, which usually happens between 24 and 28 weeks after conception." https://supreme.justia.com/cases/federal/us/410/113/ https://supreme.justia.com/cases/federal/us/410/113/

helloooooooo 4y ago
And these justifications from previous decisions (Obergefell, Loving etc… ) can be overturned with the current SCOTUS’s interpretation. In-fact, in the leaked draft, these were also on the docket to be targeted by the court. In todays assent, only Obergefell is being targeted. I wonder why that is? (Cough, Clarence Thomas)
- Empact 4y ago
  Aren't Obergfell and Loving based on equal protection, rather than privacy? That seems a more valid basis, to this Roe-skeptic.
belorn 4y ago
The current record of a baby surviving is around 20-21 weeks. The viability condition is one of the legal arguments people tend to attack. Justice Blackmun even wrote in a memo when drafting the verdict for Roe vs Wade: "You will observe that I have concluded that the end of the first trimester is critical. This is arbitrary, but perhaps any other selected point, such as quickening or viability, is equally arbitrary." They did end upon a viability criteria. The exact week has also changed since medical science has advanced in the last 50 years.

nabla9 4y ago

There is a legal principle that once the court bedsides something and it becomes established law, you don't overturn the previous decision lightly. Roe & Wade is based on the Due Process Clause of the 14th Amendment to the United States Constitution. Roe vs Wade did not happen in vacuum, it's part of a larger understanding of the Constitution that recognizes a right to privacy and recognizes that there are unwritten rights. This decision overturns this whole 50-year old framework. Decisions based on 14th Amendment’s Due Process clause are now open for banning contraception, banning interracial relationships, family relationships, right to intimacy (sodomy laws), the right to personal control of medical treatment. It will even have data collection limit consequences. How Dismantling Roe Puts Interracial Marriage at Risk https://www.aclu.org/podcast/how-dismantling-roe-puts-interracial-marriage-at-risk https://www.aclu.org/podcast/how-dismantling-roe-puts-interr...

xdennis 4y ago
This is just scaremongering for funding. Nobody is trying to ban interracial marriage. Roe v Wade was controversial since it was decided. It was never settled precedent. People have tried to overturn it from the start.

mc32 4y ago

It should be up to the Congress (or state legislatures) to make abortion legal and write the laws that protect the right such as they did for example in France. The Constitution is or was a band-aid and it's reached its EOL. The Congress has abrogated their duty here and we're seeing the consequence of this.

LatteLazy 4y ago

People hate to admit it but the court is just another political entity and always has been. The basis for Roe was weak (bodily autonomy, privacy). So is the basis for literally all gun control: >> "A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed." So anyone, including children, the insane, felons etc has a right to bear "arms". And there is no clear limit to say that a gun is "arms" but a kilo of C4 or a ground-air missile launcher or a fully armed attack helicopter is not. In fact, in 2022 any militia that could be even slightly useful will need at least some air support. Yet SCOTUS has routinely banned these items from personal procession. I say this not because I am some crazy gun nut or I think that those an actual right to bear arms would be a good idea. I say it to point out that the courts job was always to rule what people wanted and what was practical was also legal. Just like a politicians job is. Actually arguing actual constitutionality is a red herring. A lawyer's job is to find a loophole and all judges start as lawyers...

jandrewrogers 4y ago
As a point of fact, Americans can legally buy a "fully armed attack helicopter". They typically don't as a matter of practicality and cost, not theoretical ability. The paperwork is pretty nominal. Most Americans don't realize that, at least until recently, you could buy a kilo of C4 with cash, no questions asked. It is outside the experience of most Americans to buy high explosives retail, but that's actually a thing depending on where you live.
cryptonector 4y ago
Ah, an excellent comment. Yes, the courts generally lag public opinion, but eventually side with it. Whether regarding interracial marriage, birth control, gun control, and many other things. If anything, Roe was an outlier because in 1972 the public was probably mostly unconcerned about abortion and, if pressed, probably not broadly for it to be legal. If, indeed, more than half the States were to legalize civilian possession of heavy weapons, then the courts might rule that to be covered by the second amendment. And since none do, the court will feel safe ending the second amendment's shade at small-caliber firearms. One might wish for the courts to act very differently than this, but then we'd probably see large majorities in favor of reforming them to be as they are. It's a problem, though, that we have such disparities in public opinion between various States. By the way, this decision may well cause the end of Republican rule in many Republican States if their legislatures get too excited about banning more abortion options than the people of those States want them to. It might well usher a multi-decadal Democrat majority in the State legislatures and in the Federal government. It could very well be a Pyrrhic victory for pro-life activists.

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madeofpalk 4y ago

> You should be able to trust a court to make a decision based on the law, not their personal preferences. The role of a court is to interpret law. While not preference, but "opinion" is entirely the point of a court.

mirceal 4y ago

> I know this can be interpreted differently You answered your own question. It's the interpretation that matters. The Supreme Court is a joke. Political debates have not been done in good faith in the US for decades. It's no longer about the people - it's about fooling the people into getting amped up about things and voting one way or the other. It's like a wrestling match. Does it really matter who wins if it's all fake? Actually I take this back: being a wrestler actually needs some sort of prep and physical conditioning. Wrestling is better than politics.

curiousllama 4y ago

So it's bad law for 3 reasons: (1) Stare Decisis and Reliance: two legal standards that had restrained even right-wing courts for years. It's legal, but "bad", for the Court to overturn a long-standing law that people organize their lives around (as they did post sexual-revolution). So the standard isn't "is it wrong," it's "is it egregiously wrong." And the court has found multiple times that Roe is fine. (2) The decision doesn't take aim at _just_ abortion. It takes aim at the right to privacy. This right is pretty strong, overall: the 9th Amendment says "just bc a right is not explicit, that doesn't mean it isn't real"; the 3rd, 4th and others say "the gov't can't just meddle in your affairs without real justification;" the 14th says "this right is universal." Implying this right is weak is iffy at best, and DEFINITELY doesn't meet the "egregiously wrong" standard. (3) The new tests are, uh, speculative. (3a)They rely on historical analysis that is contextually-driven at best. Are we talking abortion, reproductive healthcare, or women's rights? That's a matter of framing, not law, and will lead to dif conclusions, which makes it a bad test. [Note: more on this when Obergefell is inevitably challenged...] (3b) The tests lead to dif conclusions than Alito reached. Abortion has been legal in the US for longer than it's been illegal; it wasn't banned nationwide until the 20th century, because it was explicitly legal under british common law. Even 19th century regulations were effectively just regulations of methods (poison control), not abortion itself. I'd argue "a cultural practice referenced in Shakespeare, explicitly addressed in 400 years of british common law, and that we kept for 100+ years in the US, including when the Constitution was written" is pretty deep. Besides, it's applied differently in different cases (how far back is "deeply rooted," anyway?). TLDR: arbitrary = bad test. All this to say: I'm pissed bc it's bad policy, but I'm ALSO annoyed at the bad legal analysis. Like - there are better arguments! It feels like an F U.

Dracophoenix 4y ago
(1) Stare decisis should not be followed blindly. "Wrong" and "egregiously wrong" are subjective gradations. Recall that Dred Scott or Plessy weren't considered wrong or even "egregiously" wrong for decades after their decision until they were. Also, Casey vs Planned Parenthood did partially overturn Roe vs Wade. So to say that courts found Roe "fine" is misleading. (2) Roe vs Wade is not premised on the 9th amendment (as much as I would have liked that) or cases involving substantive due process (Lochner vs New York), but on Griswold vs Connecticut, which relied an unsubstantiated argument of "penumbras" and "emanations", as though rights can be "found" in the same way that one summons Captain Planet. Roe vs Wade does not make a protestation to the defense of bodily autonomy as a fundamental right. In fact, Roe explicitly rejects such arguments.

JumpCrisscross 4y ago

Nothing in this opinion bars the Congress from crafting a compromise. One might hope it prompts just such deliberation, though within the confines of present politics I find that unlikely.

ghostoftiber 4y ago

> I know this can be interpreted differently but to me it reads that nobody should be restricted from arming themselves. If you followed the absolute letter of the law in the current US legal code, females should be disqualified from owning guns: https://uscode.house.gov/view.xhtml?path=/prelim@title10/subtitleA/part1/chapter12&edition=prelim https://uscode.house.gov/view.xhtml?path=/prelim@title10/sub... George Mason, coauthor of the second amendment, was asked "Who is the militia?" He's been asked this several times and at one point said it was everyone except our politicians. He typically responds: "I ask, sir, what is the militia? It is the whole people, except for few public officials." (George Mason, 3 Elliot, Debates at 425-426) - https://www.madisonbrigade.com/g_mason.htm https://www.madisonbrigade.com/g_mason.htm The scope of the second amendment is the same scope as all other amendments which is to say it's an unlimited, and natural right. Anything else is just playing stupid games with lawyers.

synergy20 4y ago

Yes I agree the legal system should be apolitical, they should be elected instead of appointed, and there should be an age limit, plus it's just odd those judges never retires, congress is 4-years, senate is 6, what about a 8-year-term for supreme court just like everybody else(longer term for 'stability', life long term is ridiculous to me).

goosedragons 4y ago
Them being elected would only guarantee they are political. If judge appointment was not decided by politicians and instead an independent body there would be a better chance of them actually being apolitical.
- Ekaros 4y ago
  From outside perspective so many parts of judicial system being elected individuals seem sort of part of the problem. Them being elected means that there is very perverse incentive to work with. Ofc, there need to be way to recall those misusing the power or not following the laws. But maybe campaigning isn't the best way to do.

jcranberry 4y ago

That line is simply fallacious in the modern context. A well regulated militia is "not necessary to the security of a free state".

ncallaway 4y ago

> Regarding abortion, what aspect of the constitution would cover it? The 9th amendment of the United States reads: > The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people. This was added as an Amendment, because many founders were deeply concerned that the introduction of a bill of rights would create the impression that if they enumerated some rights, people would consider that list to be complete. That is, they recognized that there were many rights not explicitly enumerated by the constitution that were still important rights. Nearly everyone agreed that the enumeration of rights was not intended to capture every right. So, relying on "what rights are explicitly mentioned in the constitution" is antithetical to the entire concept of the bill of rights. It's an incorrect place to start reading the constitution.

cryptonector 4y ago
It would be nice if 9th and 10th Amendment jurisprudence were stronger.

seanicus 4y ago

Re: guns, if the militia is well regulated then the militia needs to explain guns getting into the hands of people that kill kids as well as insanely high per capita murder rates (primarily in red states, it should be mentioned). Maybe time to disband a militia that can't regulate itself? This is aside from the founders not being presented with a firearm that can put 6" holes into a kindergartner's body at the rate of 45 rounds per minute. We're never going to fix the gun issue in this country but the reading of 2a has always been absolutely absurd. RE: SCOTUS the powerful will always protect the powerful. Sotomayor just went on the record the other day to call Clarence Thomas 'a man who cares deeply about the court as an institution.' Clarence Thomas, whose wife was supporting and funding the January 6th insurrection and effort to overturn a legal election. Every now and then I ctrl-f the constitution to find the words "supreme court" and somehow come up blank every time.

AustinDev 4y ago
>This is aside from the founders not being presented with a firearm that can put 6" holes into a kindergartner's body at the rate of 45 rounds per minute. Citation required... the only way you're going to get a 6" hole in a human body is with something like a .50 BMG (which is an anti-material rifle) or maybe a .45-70.