Al68 said:
The court didn't say anything resembling "the right to bear arms for self defense is a part of due process". They said that states couldn't deprive a person of their right to bear arms without due process. How on Earth could the right to bear arms be a part of due process itself?No, the plaintiffs argued (secondarily) that states are prohibited from depriving citizens of their liberty without due process, because that's exactly what the "due process" clause says. And their liberty includes the right to bear arms. Heller confirmed that recently. Using simple logic to combine Heller with the due process clause results in: "No state shall deprive any person of their right to bear arms without due process".SCOTUS obviously didn't use that narrow interpretation of the Incorporation Doctrine in this case. This majority opinion doesn't make the (dubious) claim that the right to bear arms is "essential to due process itself". And nothing in the "due process" clause itself suggests that the word "liberty" means only those liberties which are "essential to due process itself".
The doctrine used in this case is that the right to bear arms is incorporated into the "due process" clause because it is a protected liberty, not because it's essential to due process itself".
You obviously do not understand what the Incorporation Doctrine is. As I already stated your argument presupposes that the state is obliged to respect the 2nd amendment right and that the argument here is that these persons were deprived of their right ("liberty") without due process. How is the state obligated to give due process before taking a right which they are not even required to respect?
You say that the court is defining "liberty"? That is not reasonable. The court can not define "liberty". It is not a legal term and has no precise meaning. To attempt to define "liberty" would be to make a decision on philosophy as opposed to law. In Scalia's concurring opinion he even chides Steven's for referring to the "liberty clause" in his dissent. Besides, even if one were to try to define it, the word "liberty" occurs so frequently, and in so many differing contexts, through out Supreme Court decisions that it would be nearly impossible to define in any practical and legal sense. "Due process" is a specific and definable legal term. Any source you find will tell you that the "Incorporation Doctrine" is the process of defining
"due process" to include the rights enumerated in the first eight amendments.
But let's take a look at Alito's Majority Opinion...
Second, the Court explained that the only rights pro-tected against state infringement by the Due Process Clause were those rights “of such a nature that they are included in the conception of due process of law.” Ibid. See also, e.g., Adamson v. California, 332 U. S. 46 (1947); Betts v. Brady, 316 U. S. 455 (1942); Palko v. Connecticut, 302 U. S. 319 (1937); Grosjean v. American Press Co., 297 U. S. 233 (1936); Powell v. Alabama, 287 U. S. 45 (1932).While it was “possible that some of the personal rights safeguarded by the first eight Amendments against Na-tional action [might] also be safeguarded against state action,” the Court stated, this was “not because those rights are enumerated in the first eight Amendments.” Twining, supra, at 99.
paragraph at the end of page 17 and continued on page 18
With this framework in mind, we now turn directly to the question whether the Second Amendment right to keep and bear arms is incorporated in the concept of due process. In answering that question, as just explained, we must decide whether the right to keep and bear arms is fundamental to our scheme of ordered liberty, Duncan, 391 U. S., at 149, or as we have said in a related context, whether this right is “deeply rooted in this Nation’s his-tory and tradition,” Washington v. Glucksberg, 521 U. S. 702, 721 (1997) (internal quotation marks omitted).
page 25 beginning of section III
Our decision in Heller points unmistakably to the an-swer. Self-defense is a basic right, recognized by many legal systems[/size] from ancient times to the present day,15 and in Heller, we held that individual self-defense is “the central component” of the Second Amendment right.
page 25 beginning of section III, A
In sum, it is clear that the Framers and ratifiers of the Fourteenth Amendment counted the right to keep and bear arms among those fundamental rights necessary to our system of ordered liberty.
first paragraph page 37
and a quick look at the concurrence of Justice Thomas
I agree with that description of the right. But I cannot agree that it is enforceable against the States through a clause that speaks only to “process.”
Concurring opinion page one.
I believe that you will find Thomas' opinion, not the majority opinion, is more in line with your reasoning.
You'll note that I underlined the phrase "scheme of ordered liberty" in one of the quotes above (all emphasis in above quotes, of course, is mine) and bolded Alito's reworded reference in summation. I think that this may be part of where you derived your opinion and I would suggest that it is merely a different wording for the same thing; 'legal system', 'system of justice', 'due process'. It seems only to slightly widen the mark from strict procedural due process and infer that some rights not directly, but peripherally, implicated in our system of justice are, never the less, essential to its proper function.
Here is a quote with more context...
The line of division may seem to be wavering and broken if there is a hasty catalogue of the cases on the one side and the other. Reflection and analysis will induce a different view. There emerges the perception of a rationalizing principle which gives to discrete instances a proper order and coherence. The right to trial by jury and the immunity from prosecution except as the result of an indictment may have value and importance. Even so, they are not of the very essence of a scheme of ordered liberty. To abolish them is not to violate a 'principle of justice so rooted in the traditions and conscience of our people as to be ranked as fundamental.' Snyder v. Massachusetts, supra, 291 U.S. 97, at page 105, 54 S.Ct. 330, 332, 90 A.L.R. 575; Brown v. Mississippi, supra, 297 U.S. 278, at page 285, 56 S.Ct. 461, 464; Hebert v. Louisiana, 272 U.S. 312, 316, 47 S.Ct. 103, 104, 48 A.L.R. 1102. Few would be so narrow or provincial as to maintain that a fair and enlightened system of justice would be impossible without them.
Palko v. Connecticut
You'll note that the case actually involves "double jeopardy" which is, in fact, a direct component of due process (
Benton v. Maryland overturned
Palko).
Now if you can find me any quote any where in an authoritative text which states the incorporation doctrine regards depriving persons of their 'liberty' "
without due process", please ante up.