Balkinization  

Thursday, April 18, 2013

Process is Substance

Gerard N. Magliocca

The title of this post is something that civil procedure professors tell their students on or about Day 1 of law school, and yesterday's vote on gun control legislation illustrates the point well.  The unwillingness of Majority Leader Reid (or his party caucus) to push for real changes to the Senate's cloture rules at the beginning of the year is now coming home to roost.  Expanded background checks for gun purchases got more than 50 votes, but not 60 votes.  The NRA and other like-minded groups are playing by the current filibuster rules and practices.  It's not their fault that these rules and practices are unsound.      

Comments:

The party caucus is to blame, not one person, including not forcing the issue since a majority of the caucus was willing to reform it.

This doesn't mean that taking advantage of it is not the "fault" of someone else. If I leave a loaded gun in the house and my unhinged guest used it, the guest is at fault too. They don't get off the hook because I helped him/her.

The filibuster is workable if the body as a whole uses it soundly. Some will say it was used as intended here. Any rule will require some good judgment. No rule will not have possible bad applications. It has to be applied with good faith and wisely.
 

The Democrats are not giving up the filibuster for a reason.

The GOP background check and concealed carry bills received as many or more votes than the Manchin and Feinstein bills.

Then there is the prospect of Senate control in 2015...
 

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Would have come to roost in a bigger way, if Reid had rammed through with grossly inadequate debate a contraversial bill that could barely get a majority. This was the sort of bill that only had a chance of passing if the general public were kept ignorant of it's details, and haven't we all had a belly full of those by now?

Time for a waiting period on legislation: No vote until the full text has been publicly available for a couple of weeks.
 

The only thing worse than majority rule is minority rule...
 

Bart: The GOP concealed carry amendment is presumably the Cornyn one, which would have led to a major weakening of gun regulation. As a response to Newtown, breathtaking.

But what was the GOP background check amendment? It's hard to think of anything weaker than Manchin-Toomey, so was this also an attempt to emasculate the already feeble current law?
 

"so was this also an attempt to emasculate the already feeble current law?"

No, I think it was an attempt to pander, but to pander cheaply. The problem for those two is that there isn't really any "sweet spot" where you're being harsh enough to buy the approval of gun controllers, and yet mild enough to not piss off gun owners.

A major 'weakening' of gun regulation would be nice, given that much of that is just codified infringements of the 2nd amendment, enacted during that decades long period when the Court was refusing to hear 2nd amendment cases. Like a major 'weakening' of censorship, it would have been a victory for civil liberties.
 

It's not clear to me what lessons we can draw when the voting level is set at 60. That changes the incentives for marginal voters on both sides. For example, a red state Democratic Senator might have voted for background checks knowing it wouldn't pass, to please the party leaders. S/he might then have voted to weaken safety laws also knowing that wouldn't pass, but that the vote would give him/her a campaign talking point.

I'm not even sure we can assume that the background check bill would have received 50 votes if that had been the margin of victory. Any Senator concerned about the politics of the vote has very different incentives if his/her vote is perceived as the casting vote.
 

Mark is exactly right. In addition, if it took 50 votes to pass, pro- gun control Democrats might have declined to support Manchin-Toomey, instead insisting on a more aggressive measure that would have gained less support from blue state Republicans and red state Democrats.

Bottom line : there is no way of knowing whether senators are voting for or against a measure because they want to advance that outcome or because of how they want to position themselves in light of an outcome that is already known. But in this case, there is good reason to suspect that both sides are playing their respective bases for fools.

 

"At least in the case of Manchin and Toomey, we needn't suspect, we know with absolute certainty that they played their base for fools. They got elected in no small part on the basis of being opposed to gun control, and then turned around and betrayed everyone who voted for them on that basis.


 

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"At least in the case of Manchin and Toomey, we needn't suspect, we know with absolute certainty that they played their base for fools. They got elected in no small part on the basis of being opposed to gun control, and then turned around and betrayed everyone who voted for them on that basis."

What gun "control" did they propose? Do you currently feel that your RKBA has been infringed or "controlled" because you are asked to undergo a background check prior to purchasing one from a dealer?
 

Why, yes, I do feel that a right is violated when you must seek the government's permission to exercise it. Further, I still recall the way the Clinton administration used to shut down the system during the big gun shows, so that nobody could buy guns during them. And how they violated the law, collecting data the law explicitly prohibited, in an effort to create just the sort of gun registration system the law prohibited.

I oppose any move which would result in data concerning gun purchases passing through the hands of a government which might compile it for later infringing use. I'm not going to pretend that a presumption of good faith is appropriate here.
 

Brett curiously doesn't think voting rights (sic) are violated when you have to get a background check.

The comment is misleading anyhow. If you actually had to ask "permission," it would be a problem. But, the issue here is that there are certain people that do not have the "right" to buy a gun.

Can we focus on this? Let's say if a person is underage or is on furlough from a mental institution with schizophrenia or is serving sentence of a felony or perhaps is not a citizen. Such people under Heller and McDonald do not necessary have a constitutional right to have a gun.

So, like Brett's support of voting background checks, it is proper and constitutional to ensure that the person buying the gun does not fit these categories, especially if the check is done quickly.

The two people also were elected for various reasons. Unsure how "betrayed" they were, especially since the bill didn't pass and very well might -- given the times -- been a means to protect such voters from more strict limitations.

Voters should realize their representatives are not potted plants and also act with respect to ongoing events. Any "no new taxes" type pledge also should be taken with a grain of salt, since in politics there rarely are or should be absolutes.
 

Brett's cite of history also is notable. Look to the future, young man, I believe someone once said.
 

"Why, yes, I do feel that a right is violated when you must seek the government's permission to exercise it."

The right is the right to keep and bear arms. How is that violated by a background check for purchase? Or do you think the government should not be able to prevent anyone from purchasing a firearm?

 

I don't think the government can prevent anyone from buying a firearm, short of imprisoning them. Preventing somebody from buying a firearm legally is scarcely the same thing.

Never quite understood the importance of making it as hard for a felon to buy a gun as to buy pot.
 

I think it makes it harder. Take pot since you give it as an example yourself, the fact that lots of people can still get pot doesn't mean laws against pot don't make it harder to get pot. It's always interesting to see libertarians argue on the one hand that the WOD is such a draconian set of heavy-handed burdens and on the other if it was lifted no effect on pot use would follow...

But that's really beside the point, which was that requiring a background check doesn't act as any infringement on those who would pass it.
 

Brett, as a Second Amendment absolutist, takes "pot" shots at pot. But in his view do we even need a Second Amendment or even a Constitution for that matter to exercise what he seems to consider natural rights? Is there a bit of the anarchist in Brett or is this merely his libertarian strut as surely even he cannot pull himself up with his own bootstraps? Query: if there are natural rights, are there natural responsibilities as well? What a maroon!
 

Shag:

"Query: if there are natural rights, are there natural responsibilities as well?"

Sure.

Care for your children and do not harm others.

That is about it.
 

Mr. W: "The right is the right to keep and bear arms. How is that violated by a background check for purchase?"

The right is the right to keep and bear arms is a fundamental right. Thus, any act of government which would prevent a person from exercising the right must be must be narrowly tailored to achieve a compelling governmental interest in the least restrictive manner.

An government financed instant check system would likely pass this test.

A system requiring the buyer to pay a fee to a limited number of government licensed to perform a check that may take days or even weeks arguably should not pass strict scrutiny.
 

Our yodeler's designation of a natural responsibility to " ... do not harm others" might clash from time to time with Brett's and presumably our yodeler's claimed natural right to arms. Of course, in self-defense with arms, often harm results to others who may be innocent. So how would our dyslexic duo explain such a clash between a natural right and a natural responsibility - a natural dilemma?
 

Shag:

The right to keep and bear arms does not extend to harming others with arms, nor does infringing on the right to keep and bear arms protect others.
 

"An government financed instant check system would likely pass this test.

A system requiring the buyer to pay a fee to a limited number of government licensed to perform a check that may take days or even weeks arguably should not pass strict scrutiny."

So your opposition is based in the fee, the wait and/or the routing through certain private entities (the first and last seem to be attempts at 'privatization' of this function which I'm a bit surprised you'd oppose)? Do you have the same opposition for all three equally?

I'm actually just curious.
 

Mr. W:

The point is that the government should not be imposing burdens on fundamental rights, not that I dislike one burden over another.

A fee to purchase a firearm is no different than a poll tax to vote.

Limiting background checks to licensed firearm dealers creates bottlenecks and delays.

Government failing to maintain or to provide adequate access to their computer databases creates delays.

We are not even discussing the fact that even the most efficient background check has proven to be utterly useless.
 

"A fee to purchase a firearm is no different than a poll tax to vote."

So do you oppose recent efforts by several GOP controlled states to require paperwork (which comes with fees) from those seeking to exercise their right to vote?
 

It's not clear that our yodeler believes that the "right to keep and bear arms" is a natural right or a positive right (per the Second Amendment), or perhaps both. This permits him to jump back and forth over the fence. I believe it is a positive right (subject to the introductory Militia clause), as the Second Amendment fails - as does the rest of the Constitution - to specifically focus on an individual's "self-defense." Now, "self-defense" may be a natural right that was recognized in the common law. But the common law was not incorporated into the Constitution, as least under originalist views. Yes, the states, many of them, specifically did so with their constitutions incorporating the common law as it had been developed in England and refined in the colonies, but each state did not have a uniform rule as to what constituted "self-defense" that would serve as a defense to assault and battery. Over time, some states varied their definitions of "self'-defense" by common law decisions or by statutory provisions. As I understand it, there is no federal common law. Thus, the Heller and McDonald decisions can result in a lack of uniformity in the meaning of "self-defense" built-into the Second Amendment as it changes in some states over time. This might suggest that a state as the tail can wag the federal dog on the application of Heller and McDonald per the Second Amendment.

Second Amendment absolutists Bert and Brat, our dyslexic shoot-first duo, see no problem with an individual having a veritable arsenal of weaponry as a basic right. But consider that the law of property developed over time the concept of nuisance relative to property rights. If our version of Frick and Frack had arsenals in their abodes and carried many weapons both openly and covertly, might they not be nuisances, potentially deadly nuisances? Might others feel harmed by such that maybe each of them might be subjected to "self-defense" efforts?
 

The pot reference is strange. I don't know what it means. Does he mean legally or realistically? Query if felons are able to get medicinal marijuana.

Mr. W. replies to the standard "it's a limited check, so what's the point" argument, which would block loads of laws. Also, Brett (my snark is noted, but it's because he simply is ignoring it) has a rank double standard here in respect to voting rights.

Unlike voting laws, there actually are lots of people who don't have the right to guns that obtain and use them & the results are more tragic. But, Brett is more concerned about gun rights.
 

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This was the sort of bill that only had a chance of passing if the general public were kept ignorant of it's details, and haven't we all had a belly full of those by now?
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