I don't think so.

Your facts are wrong on medical marijuana. Maybe you need to read Raich again. The majority in that case was Kennedy, Ginsburg, Souter, Stevens and Breyer with Scalia in concurrence and Rehnquist, O'Connor, and Thomas in dissent. As for gay marriage, I'm not understanding your point. Conservatives do want the state to regulate gay marriage, that was why many people were upset about the California S.C. overturning the existing marriage laws there.

Conservatives favor a FEDERAL Constitutional amendment that limits the definition of marriage to a man and a woman and FORBIDS states from recognizing gay marriages or civil unions. That would be the exact opposite of allowing the states to determine their own laws regarding gay marriage.

As Groucho says, they are for states rights unless the state wants to do something they're against. Which isn't really being for states rights.

And the reason why conservatives were upset over the California decision is because they HATE GAY MARRIAGE, not because the courts intervened. They were practically orgasming on themselves when the courts overturned existing gun laws in DC.

I was referring to conservatives in general, not just on the court. If you read the reaction to the medical marijuana decision, the people who complained about it weren't the liberals.

The California Supreme Court is a part of California, isn't it? When a state Supreme Court decides something, that IS a state decision. Conservatives have now once again introduced another US Constitutional amendment to ban gay marriage -- that's their reaction to a state doing something on its own.

I thought republicans were for putting in an amendment or bill that made it so that a state that did not recognize gay marriage was not obligated to recognize the gay married couple's status from say CA or MA.

As for states and gun laws, I think limiting it was one thing, but banning it and/or making restrictions so difficult for regular citizens who aren't law enforcement or former military to be able to get a license goes right against the 2nd amendment imo.

Nope. Here's the text of the current version of the FMA:

Marriage in the United States shall consist only of the union of a man and a woman. Neither this Constitution, nor the constitution of any State, shall be construed to require that marriage or the legal incidents thereof be conferred upon any union other than the union of a man and a woman.

This takes the definition of marriage completely out of the hands of the states.

Could you go over how an amendment is made? I think the states are involved in that process....

Because the states would be part of that process, they would be determining whether or not to allow gay marriage in their respective (3/4) of the states conventions or legislatures.

As to the actual amendment, I think there is little chance of it ever passing, but it will be dusted off again come November....

Oh my God, can you twist a fact to fit your argument!

The amendment takes away the rights of individual states to make these decisions on their own, but it's OK because 3/4ths of the other states agreed to it.

Oh yeah, that really helps keep states individual, atonomous, and really promotes state's rights.

I think I am hardly twisting it. The amendment process is very difficult; that's why we have only have 27 of them.

I find it humorous that you defend a bunch of judges telling a state what to do, but claim I am twisting facts when I point out the pivotal role the states play in the amendment process.

Besides, states rights died with the 17th Amendment.

An Amendment can only be repealed by another amendment whereas a ruling can be bypassed with a new law that addresses the concerns of the courts.

Finally this ruling was a case that overturned a law yet you aren't hollering about it even though it falls in the same category as the CA supreme court ruling with gay marriage and overturning a law.

Yes, we are all aware of how an Amendment gets ratified.

I think what he means is that there is no way that conservatives advocating federalism on an issue are talking about a federal amendment to the Constitution forever inscribing law at the national level. So you're really reaching into the apologist depths of your ass to pull out this justification for the conservative hypocrisy on states rights, particularly when there are numerous other examples.

Would you defend, for example, a constitutional amendment repealing the 2nd Amendment as a federalist position since the states would be involved in its ratification?

Yeah, it's not like the state elected those judges or anything.

Oh, wait a minute -- THEY DID. The people of the state chose those judges. It's democracy in action, it's states doing what states do.

You're acting like these judges are not a part of the state. That's the ridiculous part of your argument. Federal judges didn't make this decision. State judges did.

Additionally, the judgment he has the MOST problem with is that one in which democratically elected judges overturned an anti-Constitutional law, all within the state government. He was much less bothered with, and even defended, the NON-elected SCOTUS judges dictating the law in DC.

Groucho and Beeble - I think you're arguing with strawmen conservatives that are not present here.

In any case, I don't think there's anything hypocritical in calling for states' rights while at the same time applauding some SCOTUS decisions.

For instance, it should be up to the states to regulate marijuana (as a libertarian, I wish all the states would see the light finally, but that's a subject for a different discussion) - the Federal government has no business there. However, it should not be up to the states to regulate what constitute free speech or who can vote - those are issues that are subject of the U.S. Constitution and apply equally to all the states.

Speaking of straw men, I don't think I or Groucho made any such argument. I think we'd both be happy if it were the case that conservatives actually did applaud cases that upheld the Constitution, like the re-instating of habeas corpus rights or the gay marriage ban in California. But guess what court decisions conservatives almost universally slammed?

The hypocrisy we're talking about would be using federalism to justify a stance on some issues but arguing for national regulation on others based, not on the Constitution, but on how the states themselves rule on issues conservatives agree or disagree with.

For example, arguing that states should be allowed to decide on their own to ban gay marriage, until states start allowing it, and then calling for a federal ban. Isn't that hypocritical at the very least? Ditto marijuana laws.



For instance? Using yourself as an outlier example of federalist conservatism does not a straw man make - particularly when you describe yourself as a libertarian.

Isn't it safe to say that most prominent conservatives favor federal marijuana laws? Or can you explain the conservative objection to the California Supreme Court decision in the gay marriage case as judicial activism, while embracing the SCOTUS decision to overturn the DC gun ban, which cited hunting and self-defense?



As a libertarian who supports the Constitution, you still have not adequately explained your objection to private citizens owning nuclear weapons or artillery. The best you've done is provide the exact same arguments made by liberal gun control advocates; arguments that you, as a libertarian who supports the Constitution, should reject and probably have.

Groucho: "We are in favor of state's rights! The federal government should not be telling the states how to make their own decisions!

Well, unless the states want to limit the right to own guns. Or regulate gay marriage. Or allow medical marijuana. Or regulate automobile emissions. Or do anything else we don't agree with."

Beeblebrox: Of course, I'm waiting for the outrage, yes outrage, from the anti-"judicial activism" crowd. Wasn't this just another case of the courts overstepping their bounds and dictating public policy over the executive and legislative branches like they did in the California gay marriage case? Yep. Any minute now. The outrage.


How about William Buckley (now deceased), the founder of National Review: http://www.nationalreview.com/12feb96/drug.html


No frigging clue. I guess I don't talk enough to conservatives who object "the California Supreme Court decision in the gay marriage case as judicial activism, while embracing the SCOTUS decision to overturn the DC gun ban, citing hunting and self-defense?" Do you? Who are these people?


You're making a few assumptions that are not true here (as usual):
1. I don't hold the U.S. Constitution as the be all end all source of truth. It's probably the best of its kind, but that doesn't mean that I necessarily support it. There many things I disagree with in it. That should not (and does not) prevent me from having an opinion on what's constitutional and what isn't.

2. I don't hold any particular objections towards private parties possessing nuclear weapons - no more than I object to China, Iran or Israel having them. Like I said before, if a private party has the means and the will to own a nuke, violating a government ban is the least of their concerns.

3. As far as I know, nobody is seriously challenging the ban to own nuclear weapons (which apparently exists!). Even if they did, the challenge would be pretty easy to dismiss by the high court on national security grounds - the Second Amendment wouldn't be included in the scope of discussion.

The argument you claim we made is not there. I'm speaking of the conservative hypocrisy over judicial activism, and Groucho is talking about the conservative hypocrisy on federalism.

You're jamming our arguments together and claiming straw man. Because, of course, there are no conservative hypocrites at all.



Are you serious? Ever heard of John McCain? No of course not. And he stands atop a mountain of conservatives who have expressed just such contradictory opinions regarding the two decisions. But again, the notion of conservative hypocrisy simply doesn't exist in your world so anyone who would express such a view must not exist.



That is a tepid and pathetic response considering you called the SCOTUS decision the best to come out of the courts in awhile. Why? It certainly doesn't seem to be because they upheld the 2nd Amendment, your support of which seems lukewarm.



That's right. The passionate 2nd Amendment defenders are nowhere to be found on an issue involving private ownership of arms. And you don't find that at all disengenous? And why, in a thread specifically about the 2nd Amendment, in which you applauded the court's ruling, wouldn't you be calling them out on it?

My complaint, as Beeblebrox said, is over hypocricy.

If you dislike a judicial decision, just say so. To couch your complaint in "state's rights" issues (or "judicial activism" issues) only works if you are consistent.

I am also pointing out hypocricy. Both the DC and CA rulings were based on the appropiate constitutions for each court. Both struck down limitations that were put in place by laws that these two courts found unconstitutional and yet apparantely one is judicial activism and the other is not.

The term judicial activism is nonsense anyways. The courts can't just say "hey this law is unconstitutional" by themselves and strike down laws at will. The laws have to be challenged by people and there are checks and balances in courts if one court rules somethign it can be appealed well at least up until the US Supreme Court. Of course appeals can be turned down and even in that case it is similiar to a summary judgement.

The Terry Schivo case is an example of converatives blurring the lines between personal, state and federal boundaries and even attacking what they would normally reserve as family values.

Now does every conservative see eye to eye on all issues...Of course not neither do liberals. Are their just as many hypocritical liberals I would think there would be but the vocal ajority at teh moment seems to be coming from the right at the moment.

I have pointed out that I do not believe that second amendment fully guarantees the right to own guns but I have also said that constitution does not prohibit the ownership of guns. I have zero problem with this ruling.

As for the question of being able to own or arm a nuclear device under the second amendment. Well it isnt practical, it is a hazard to public safety, it requires special knowledge to keep and maintain. It requires testing and when it goes bad it requires special disposal.

However I do believe that the amendment as interpretted by the courts could allow ownership of a device and even under the militia interpretation would allow such a device. The thing would be that no one woudl be able to arm since I do not believe any interpretation protects the right to own the right type of radioactive isotopes to make it functional.

As opposed to other types of weapons the materials used to make nuclear explosives are very deadly and far more reaching on their own and do not classify as weapon but more like a poisonious material which is not protected.

There are actually a couple of differences, but ones that only amplify conservative hypocrisy over "judicial activism." For one, judges in California are elected, not appointed as they are on the SCOTUS. Second, the California case was decided by the California SC regarding the state's own constitution, not by federal judges overturning a local/state law as the SCOTUS case was.

That said, in both cases the courts simply overturned a law deemed unconstitutional. Pretty cut-and-dry.

And yet, here was McCain's response to the California case: "I welcome the news that the people of California will have the opportunity to decide on the question of the definition of marriage, rather than having that decision made by judicial fiat as the California Supreme Court asserted in their recent ruling."

And here is McCain's response to the SCOTUS gun case: "Unlike the elitist view that believes Americans cling to guns Â… today's ruling recognizes that gun ownership is a fundamental right."

Nope, no inconsistency there. No siree.

I am well aware of the technical differences. I do after all spend 50% of my work in court(I am working on my 92nd trial as a technician). I also live in California(San Francisco to be exact). I have spent most of my last 5 years of work around lawyers from different firms including Latham Watkins, Quinn Emmanuel, Orrick, Pillsbury Winthrop, Bingham McCutchen(now just Bingham), Baker McKenzie, Ropes and Gray, Cooley Godward, Gibson Dunn and Crutcher, and so forth as a trial consultant. true most of the cases I work on are IP cases or Reinsurance cases but I do have a very good idea of what goes into law....Though of course Groucho would far exceed me since he is a lawyer. It is also why I said appropriate constitutions(state and federal). Also having been involved in so many trials I have a very real tendency to scoff at terms like judicial activism or patent trolls which are very common dismissals of valid court rulings. I do have to admit some judges are as loony as Daffy Duck.

Speaking of which Groucho I will be in the Philadelphia area for a trial coming up at the end of July.

We're definitely on the same page. I wasn't criticizing your point, I was adding that the court cases are basically the same generally (overturning a law based on constitutionality), but that the differences there make conservatives look MORE stupid.

I thought the whole point of a supreme court was to be a buffer against ideas that the majority support but are in fact wrong.

That is what the court has become in Canada.