LotsRegret
7d ago
If you want to argue that the 14th does not grant children of migrants citizenship then you would have to argue that what the authors meant by jurisdiction is in fact the duty to pay capital income tax in the US, and that the former slaves had this duty but foreign residents do not, or find some other bizarre interpretation of jurisdiction.
What say you to a legal argument I believe carries at least some consideration in that Wong Kim Ark was correctly decided for children of what could be analogized to green card holders (and permanent residents) from back then, but that does not grant citizenship for the children of people here temporarily (vacationing, limited visas, etc) or illegal immigrants. The legal backing would be that Native Americans born on US soil were not granted citizenship in the 14th as it required the passage of a later bill to make that happen - so clearly at the time the 14th was ratified not just anyone who gave birth to a child on US soil was given citizenship.
LotsRegret
10d ago
Well, if it helps, I am not on of those who believe in the right to own McNukes. I believe a reasonable argument could be made that at our founding we the people were generally expected to own and operate man portable rifles and pistols generally. Yes, I know warships were privately owned in the distant past, so one could make that argument and I don't have a truly principled reason to restrict them but I accept they are and don't advocate to own one.
How I believe the 2A should be looked at is what constitutes an "arm" in regards to the 2nd Amendment. Even before the US was a country, repeating rifles did exist even if in a rudimentary form so I would argue AR-15s style performance could be reasonably foreseen by our founders. Now I'd argue automatic weapons should be allowed, but I know that just isn't feasible, so you work with the world you have now - and people being allowed to own sporting rifles and pistols should be pretty uncontroversial for being covered under the 2A. The problem is many federal judges and state governments would immediately strip people of being able to own any arm if they had the chance - and we're fighting for even the basics of keeping the 2A available in many states.
When we look at other amendments for new tech, we look for analogs: the internet is just the printing press, but way better. AR-15s are just better repeating rifles. Drones are allowed to be owned, so are some explosives - so I will not be surprised if we see drone based terror attacks in the US very soon - and I'm not sure what can be done to stop it. The technology exists, isn't difficult to make, can't be easily restricted (compared to controlling Uranium and its enrichment), etc. it is only a matter of time. Some people already tried for the UFC event during flag day but got caught before they were able to do it.
The exceptions for the 1A, especially in regards to political and religious speech are darn near unlimited - and I can cause much more damage to many more people by advocating terrible forms of government (fascism, socialism) than I could as one man with a machine gun; but attenuated causes are harder for us humans to truly take the full weight of.
LotsRegret
11d ago
That is fair, "time, place, manner" is more interest balancing that I wasn't thinking about - but the scales are much more defined on the first than the second.
You've got three levels with the first amendment: strict scrutiny, intermediate scrutiny, and rational basis. The problem was a lot of courts were treating the 2A with "rational basis" level analysis far too often when they should be treating most with strict scrutiny most commonly which is what I think SCOTUS is slowly building towards if they keep taking on a couple 2A cases per session.
LotsRegret
11d ago
Unfortunately that is primarily because the 2A has been a red headed stepchild in SCOTUS forever - with SCOTUS not taking almost any 2A cases - so they haven't built up much precedent. Going back in history to see what laws were around is how SCOTUS does all the constitutional interpretation, but because they have a ton of built up caselaw they point to those cases (which should eventually point back to founding era stuff) it just seems less like that is what its doing on its face. If SCOTUS were to take up a couple 2A cases each term, like they do for the 1A, we'd have a similarly built up rulings to make things seem more obvious based on previous rulings.
Before Bruen, the 2A was primarily considered using "interest balancing" unlike every other constitutional amendment. Can you imagine the courts doing "interest balancing" on whether the government can restrict your speech?
As far as laws being racist or not, once a law has been ruled unconstitutional it is considered as though it was always unconstitutional - so citing an unconstitutional law for evidence is a really bad argument. Hence why using the Black Codes for evidence was a nonstarter.
LotsRegret
26d ago
“Of all tyrannies, a tyranny sincerely exercised for the good of its victims may be the most oppressive. It would be better to live under robber barons than under omnipotent moral busybodies. The robber baron's cruelty may sometimes sleep, his cupidity may at some point be satiated; but those who torment us for our own good will torment us without end for they do so with the approval of their own conscience.” -- CS Lewis
“If you’re going to be a good and faithful judge, you have to resign yourself to the fact that you’re not always going to like the conclusions you reach. If you like them all the time, you’re probably doing something wrong.”
--Justice Antonin Scalia
Now admittedly the right wing has a better judicial philosophy (originalism/textualism) to vote in non partisan ways on the Supreme Court when compared to the left wing (living constitutionalism). Judges should interpret the laws as it read by the common person at the time - not how they feel should be the best outcome for their political side.
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