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Or, framed slightly differently, SCOTUS interprets the second amendment as permitting states to broadly regulate citizen ownership and use of firearms as they see fit, much like they now do with, say, abortion. The intention was always that Texas and Idaho might have vastly more permissive firearms legislation than California and New Jersey.
SCOTUS recognizes that the equilibrium where the public and elected representatives and elected governments in many of the richest and most populous (blue) states are prevented from legislating their own domestic in-state firearms policy (which does not relate to core federal government spheres like defense, border control, foreign policy, interstate commerce or central banking) against their will is unstable and will, at some point, result in the court being packed and the US’ brief experiment in comparatively greater freedoms reverting to the current European/Canadian/Australian model, not just when it comes to gun ownership but in every other case too.
The same motivation to accommodate local political sentiment, for example, is what struck down mandatory gerrymandering of black-majority districts in some southern states that was forced upon them, and what struck down Roe.
When you boil it down, the question is over where the power is kept and how one accesses it.
Your claim is that Blue States can't be bound by the Constitution if they disagree with those restrictions, because otherwise they'll overthrow the system. If this is an accurate description, then to the extent that Reds wish to have their own access to power, the key to accessing it is to present a similar threat of disastrous consequences unless their preferred carve-outs are granted.
One notes that establishing sufficient threats probably results in less stability for the system overall, not more, but human collectives have never been all that good at math.
As has been pointed out many times before, Black-Majority districts and overturning Roe are examples of ending blue impositions on red areas. We still have never had Red constitutional impositions on Blue areas, while we've had the reverse for many decades running, and still have many active. "We'll consider gradually ramp down our abuses of your autonomy, on the understanding that you will never, ever get to abuse our autonomy in any way" is not an attractive pitch for the side that has been relentlessly abused for many decades.
Kind of off topic but in regards to Louisiana v. Callais and the redistricting wars; Is it just me or did the media drop the subjects once it started to look like Tennessee might actually gain a black congressmember as a result of thier redraw?
It was all over my feed for a week, Tennessee published their revised map, and then crickets.
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While I broadly am inclined to agree with the overall thrust of your argument, this is not true. If you want to split hairs on "constitutional" then we'd have to agree on a definition of that to create a boundary of what counts. But off the top of my head of Court Cases, and Federal laws that Reds have imposed on Blues, there are many:
The Red tribe is not some innocent victim in this arena, the give as good as they get.
This is kinda a weird grab-bag. I don't think your point is wrong, per say, but the examples don't really fit at first glance.
I'm in a hurry so can't check precise details, but Janus is a union case and most unions are creations of federal law under the NLRA: Complaining about federal regulation allowing free speech or free association is kinda a 'get your government out of my medicaid' model.Nope, strike that; public sector side of AFSCME. I guess that does fit on the edges, although the financing and funding model is still a little fuzzy.Same for DADT, except even more, since the military isn't very Blue Tribe and it only applied there (and with some limited exceptions). DOMA only applied at the federal government level, and specifically didn't stop states from recognizing gay marriages locally.
Masterpiece Cake Shop just (infamously) held that a civil rights law's administrative bureau couldn't be openly hostile to the religious nature of its defendants.
Maybe 303 Creative/Espinoza/Carson/SFFA? But those are all antidiscrimination laws that progressives claim to champion; the main thread in each case was the neutral application of a longstanding rule that had been used for Blue Tribe ends at length. Even accepting the framework as 'laws that Reds have imposed on Blues', rather than 'laws that Reds have made sure didn't apply solely against Reds', they definitely can't be give as good as they got, given the wide scope these antidiscrimination laws have in Blue-friendly contexts.
I am just a legal layman, so I defer to you on some of the more technical minutiae. Many of these might be weaker because I personally agree with the red side of them. Trying to be fair forces me to argue for positions that I don't really agree with. But I do believe that this one-sided victimizing of Red-tribe belief is missing the forest for the trees.
But it refused to recognize state marriages as marriages, creating a double tier scheme where you were married in NY but not federally. I think explicitly refusing to recognize an official state sanctioned marriage and conferring those benefits would be an imposition. I think my scaffolding around this is that if Texas doesn't want to recognize a NY gay marriage, that's fine, its their prerogative. But if the federal government want to say the NY marriage is invalid federally they are denying the state's ability to officiate legal marriages according to the state's-populations desire. That's a legal imposition of values from 1 tribe to another.
I think Masterpiece is a weak example.
303 Creative still functions as a federal constitutional carveout from Colorado’s LGBTQ anti-discrimination law. Even if it applies a formally neutral First Amendment rule. Colorado is requiring a business that sells wedding websites to sell the same product to same-sex couples that it sells to opposite-sex couples.
Espinoza was about the state is trying to keep public money from flowing to religious institutions, consistent with its own church-state separation rule. That is a neutral rule being violated by another neural rule: the Free Exercise Clause. But the outcome was that the Red-tribe favored rule over-rode the Blue-tribe favored rule.
Carson is essentially similar in that Maine wanted to provide the rough equivalent of a secular public education for students who lack a local public school via a tuition reimbursement. And the court ruled that that was discriminatory towards religious students and institutions. This essentially hits the feeling of "We are being forced to subsidize something we morally oppose." This is probably pretty neutral if there are equivalent examples of conservative states being forced to subsidize things they reject. But off the top of my head, no conservative state has been forced to fund Planned Parenthood with its own money. (Medicaid does not count as it is a joint federal-state program) I think this one is a pretty strong example.
I think SFFA gets more into the weeds on what constitutes "Blue Tribe", as its a liberal vs progressive ideological fault line. It's not as clean but progressives are not really the anti-discrimination party, they are a racial/minority-spoils party. So idk if you can argue that they champion the anti-discrimination laws unless you autistically adhere to the definitions. SFFA is more like “a conservative/colorblind theory" of equality imposed over a "progressive/anti-subordination" theory of equality. It's a good comparison to the Voting Rights Act imposition.
This... gets messy, then. The underlying motivation for DOMA was Baehr v. Mike, the perception that the Full Faith and Credit Clause would require every state to instantly recognize the potential one-state gay marriages, and was signed into law by Bill Clinton with large bipartisan support. That makes it a very awkward fit into "Red Tribe vs Blue Tribe". Even assuming that frame, the federal benefits of marriage are limited and primarily focused to domains (tax deducations, military benefits) that don't match the normal personal/government-provided divide. State-married people under DOMA would still get state-specific benefits. It's not clear that there was any other equilibrium short of a) some consistent agreement that no one attempt those cases, cfe Windsor, or b) Red Tribe getting squished by
Blue TribeThree Gay Couples From Hawaii Specifically.If you put it like that, it sounds like SCOTUS stopped a Blue Tribe state squishing a Red Tribe person. I get what you're trying to motion toward, but there's not really a level of specificity where this was some new first step -- either there's a long series of First Amendment association cases that overturned Red Tribe laws predating this matter by decades and using this exact avenue, or there's a lot of anti-discrimination laws that required exactly this sort of active behavior targeting Red Tribers.
You're not going to find lawsuits, but the ACA required all states accepting funds to support gender therapy and any state accepting medicaid expansion plans to cover preventive contraceptive services. There was actually a big mess just last year about trying to throw (some) Planned Parenthood programs out. And before that there was the thing with the nuns? The biggest case was Pennsylvania, so purple state, but there were a bunch of follow-ons in deep red states. I'd normally put that in the marginal 'well, it is federal funding' bin, but there's a bunch of complex rules with matching state funds and punitive efforts for those states that didn't join, so it's still a pretty good if imperfect match.
But more generally yes, there were and are quite a lot of things like that.
But the rule in SFFA -- don't discriminate in education by race -- was used and is used very aggressively against Red Tribers first. It's famous for it! A President literally sent the national guard in over it. Even if you want to salami-slice the liberals, the progressives still use the very precise rule here to do everything from review college admissions programs to demand that Red Tribe elementary schools spend enormous amounts of money on ESL training. There was over fifty years of this before SFFA. There's a fair argument that it's not popular among the Blue Tribe normies (there was famously a California constitutional amendment prohibiting it... which immediately was ignored), but it's still a Blue Tribe rule that was used to smash Red Tribers long before the Red Tribe picked it up.
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By this reasoning any Red-friendly ruling is an "imposition".
Only so much as the original argument makes any Blue-Friendly ruling applied in a Federalist manner an “imposition” on the Red-Tribe.
Your "impositions" don't mandate that states do something. They mandate that states cannot do something that restricts other people. Counting that as an imposition strips the idea of meaning because that means that everything the Federal government does is an imposition. The original argument is not along those lines because it also involves telling the states to refrain from doing something to other people (Democrat-friendly gerrymandering).
Your own argument is nonsensical
and
Are the same thing...
Both are telling the states not to do something. Both are by definition, an imposition: the action or process of imposing something or of being imposed. The Federal government is imposing laws that affect the states to deny them ability to govern how their populous wants to. It is one Tribe, "imposing" on the other.
Yes, they are the same thing (with respect to reds acting against blue states). So neither of them are impositions of reds on blues.
What FCFromSSC said was that gerrymandering by Democrats (Black-Majority districts) was an imposition of blues on reds--the other way around--and that the reds have stopped that from happening. It is not in turn an imposition for the reds to stop an imposition, or the concept would be meaningless.
I'm not clear on what your argument or point is or if you are just being nitpicky.
FCFromSSC's argument was explicitly that Blues impose on Reds: gerrymandering and Roe vs Wade. This imposition is Blue-tribe forcing Red-tribe to not outlaw abortion, and forcing them to create districts for Black-Majorities
My corollary is that Red-tribe also imposes on Blue-tribe. I gave examples of Red-tribe forcing Blue-tribe to not recognize homosexual marriage, forcing them to allow denial of service based on speech grounds, forcing them to fund religious schools, forcing them to outlaw mandatory union participation, and forcing them to "outlaw" racial spoils based admissions
Both sides are preventing each other from disallowing actions via laws and affirmatively forcing the other to take actions that they don't agree with. This is the same thing as the original argument. Your argument appeared to be that one is not the same as the other. But your justification was to ignore half of the examples of Blue-tribe imposing on Red-tribe to make some weird argument that imposing by forcing a positive action is not the same as forcing a negative action (prevention of laws from disallowing). Not only is that cherry picking and nitpicky but its also incorrect.
If you argument is that Red-tribe ended Blue-tribes impositions, well, Stonewall was clearly ending Red-tribes impositions as well. Both sides end each others' impositions and both sides impose. Like I said, really not understanding your argument, I'm trying to be charitable here.
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That's a plausible story, albeit one that's a fulfillment of FCFromSSC's "The Constitution is dead", though it still runs into some issues as a model:
More immediately, it also doesn't explain the pattern here. If there's nine votes to deny the Duncan cluster because they have very strong view of federalism, it doesn't get a relist. If eight, or seven, or six votes to deny the Duncan cluster exist, a handful of relists happen while Justice Thomas writes a barn-burner dissent, but if he's writing too slow, they can call his bluff at any time and force the vote. What are they gonna do, piss him off more than Roberts pissing on Bruen?
That's the weird, and noteworthy, and inexplicable part. Any model that predicts a denial of certiorari needs to explain why that didn't happen three months ago. The court could have punted all these cases, gunnies would complain a little, and that would just be another step in a pattern that's been around for decades. Instead, they've spent six months contemplating a set of cases that have been on their radar for over a year. Indeed, the standard argument from court listeners is that Kavanaugh is the marginal vote, and he's the one that's going to be the most badly humiliated by those whole process given Snope, and it's only going to be more humiliating the longer the relist cycle goes.
Similarly, any model that predicts a grant needs to explain why that didn't happen in early April. If a grant happens in the 13+ cases, it's a arguably a record; if it happens in two weeks, it's unarguably so. If a grant happens in multiple 13+ cases, it's even more extraordinary. And those are the cases with the best vehicles! And a denial for Duncan while granting cert in Lamont is even weirder, since there's no plausible story where Lamont's lower case is bad law but Duncan is a-okay, and denying in Duncan cements its law and demands hundreds of thousands of people give up property they lawfully purchased under a legitimate court order. Even if the court needed the later cases and is struggling over vehicle questions, 8+ relists is still a massive outlier, and it's all the greater an outlier for having considered these cases a year before they came to the court.
Why? is a serious question, here.
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A Texas resident can go to New Jersey and lawfully purchase an abortion. A New Jersey resident cannot go to Texas and lawfully purchase a gun. Not even if they don't take it back to New Jersey.
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But that's not really framed differently, especially in context of, I dunno, 1A. That's been held to protect citizens of [every] state from State government overreach, which is why it's a problem that 2A isn't treated the same way.
Not that 1A doesn't get threatened in things like the DefDist case, which is Blue states trying to make law for the rest of the nation; I see no reason that an election or an appointment shouldn't have consequences when Blue states lose them and "but muh court packing" is special pleading.
The First Amendment as it is today is a product of the mid-late 20th century and, ironically given its current ideological stance, the ACLU. For the vast majority of American history it was never interpreted as preventing individual states from banning various kinds of speech, including under very broad definitions of obscenity. The current interpretation arguably only exists because of liberalism. A muscular court would roll it back and return most speech legislation to the states, but it is what it is for now.
If we are doing constitutional history (as the originalist movement says we should be) this is the key point. The people who wrote the Constitution in 1789 didn't think it needed a Bill of Rights at all because the Constitution didn't grant the federal government the kinds of power that a Bill of Rights was needed to restrict, and the people who ratified the Constitution and Bill of Rights (which they added because they quite properly didn't trust the feds on that point) definitely didn't want the Bill of Rights to be enforceable against the States.
Some of the rights in the Bill of Rights are rights the framers considered fundamental, so as well as putting them in the BoR they also wrote them into their state constitutions. Free speech and criminal juries are the classic examples*. But some of the BoR is about federalism, not fundamental rights. In particular, the Establishment clause was pure federalism (most states had state-level established religions in 1789, although not for long afterwards) and the 2nd amendment was mostly federalism (most states had some kind of RKBA in their state constitutions, but nothing as broad as the right protected against the feds by the 2nd amendment - the framers wanted the states to have the right to regulate their own militias).
The fundamental rights protected by the Bill of Rights should have become enforceable against the States under the Privileges and Immunities clause of the 14th amendment (turned into an inkblot by the Gilded Age SCOTUS in the Slaughterhouse cases) and actually did under civil rights era substantive due process doctrine.
That would be dubiously faithful to the Constitutional text given that the 14th amendment exists in a way it didn't at the founding. It would also be lousy policy given the availability of forum-shopped strategic lawsuits against online speech. But the weak version of this claim is correct - a serious originalist Court would need to think about how to mesh the founding-era understanding of the Bill or Rights as a backstop to federalism as much as to fundamental rights with the 14th amendment requirement to protect citizens' rights against overweening state government, and the only justice who has even tried to do that is Thomas in his Establishment clause dissents. The fact that the substantive due process approach to incorporation that the Court had to adopt in order to avoid publicly calling out Slaughterhouse as a Dredd Scott tier mistake is intellectually incoherent doesn't help.
* SCOTUS has never enforced the 7th amendment requirement for civil juries against the states - I'm not sure how this relates to founding-era practice.
Nothing in the 2nd Amendment implies it's only a limitation on the Federal government. It's frankly bizarre to flip the readings of the 1st and the 2nd in this manner; the 1st specifically is written to prohibit Congress from taking an action, whereas the 2nd specifically says the rights of the people to keep and bear arms shall not be abridged period, with no mention of who specifically is prohibited from abridging their rights.
The original intention of the whole Bill of Rights was that it was a limitation on the Federal government only. For SCOTUS to interfere in the internal affairs of a state in the name of enforcing the federal Bill of Rights would have been an unacceptable abridgement of state sovereignty according to both the Federalists and the Anti-Federalists.
I think the preambulatory clause of the 2nd amendment has something to do with the intended meaning - it would be odd if it was a pure rhetorical flourish on the part of the 1st Congress. The obvious interpretation of "A well-regulated militia being necessary to the security of a free State" is that the drafters of the 2nd amendment expected someone to be regulating the militia, and given the structure of the original constitution, the power to regulate the militia is shared between Congress and the states, and founding-era practice was that the power retained by the states included powers that the modern 2nd amendment movement would prefer the states not to have.
Part of the problem here is that there isn't a standard originalist theory of how the Bill of Rights became incorporated against the States. The relevant original intent is the original intent of the framers and ratifiers of the 14th amendment, and this is hard to work out because the Jim Crow-era SCOTUS rendered the Privileges and Immunities clause nugatory in a way which was almost certainly not compatible with the intent of the Reconstruction Congress. In practice originalist thought cashes out as "the 1860s Congress intended to reach back in time and impose a 1790s understanding of the Bill of Rights on the States" which usually leads to coherent law even if it doesn't make sense as political history. But it doesn't give a clear answer in cases where the 1790's understanding of the Bill of Rights doesn't make sense without federalism, like the Establishment clause, or the carefully negotiated compromise about who controlled the militia. Local byelaws against going armed in urban areas were a lot rarer in 1790s America than in the UK (where they were ubiquitous) but nobody at the time thought they were constitutionally problematic (except in Vermont, which had a much broader RKBA clause in its early state constitution than the other states), ditto state-level bans on gun ownership by free blacks if you want a less happy precedent.
The other problem is that handguns that actually worked were not available at the time of the founding, so applying the 1790's understanding of the RKBA to the most important questions in modern gun policy (which are largely about routine concealed carry of handguns) involves somewhat strained hypotheticals.
There are some law review articles arguing why Slaughterhouse was correctly decided, which even if not persuasive, marshal some interesting evidence against the now-common position that Slaughterhouse was beyond wrong.
Rehabilitating the Slaughterhouse Cases by Maltz
Privileges or Immunities by Hamburger
The Fourteenth Amendment and the Privileges and Immunities of American Citizenship by Lash (book, not article)
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True; hate speech as broad exception has been the Dem [read: conservative] cause/excuse for doing so for as long as I can remember, and a good chunk of 1A cases have already gone down that way.
However, the court isn't muscularly liberal on 2A as Red was hoping (for the same kind of advancement and cultural shift that it would force on Blue states as the incorporation on 1A was for Red states back then- turns out a sizeable minority in Blue states actually want guns, perhaps to protect themselves against the obvious consequences of Blue policies?), and that's still the central issue here.
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