Countering the Heller dissent

[Surf Fishing Guru]

14. For Stevens in particular . . .

For Stevens in particular I have an extra degree of contempt.

It has to do with his unwavering endorsement of penumbral rights, where generalized "privacy" rights have been recognized to exist and how abortion, reproductive and sexual orientation rights are secured . . . but his refusal to recognize that his opinion of the 2nd Amendment clashes with the foundation for penumbral rights.

For those that do not know, privacy rights were recognized to exist in the "emanations" and "penumbras" of the rights expressly enumerated in the Bill of Rights and it also relies on the principle embodied in the 9th Amendment:

&quot The) specific guarantees in the Bill of Rights have penumbras, formed by emanations from those guarantees that help give them life and substance. See Poe v. Ullman, 367 U.S. 497, 516-522 (dissenting opinion).

Griswold v. Connecticut, 381 U.S. 479 (1965)

Stevens has signed onto opinions that have cited and quoted and even quoted himself in opinions he has written, Harlan's famous dissent in Poe v Ullman.

Justice O'Connor, quoted below, expressly elevated Harlan's dissent to the opinion of the Court in a case which Stevens concurred (emphasis added):

"Neither the Bill of Rights nor the specific practices of States at the time of the adoption of the Fourteenth Amendment marks the outer limits of the substantive sphere of liberty which the Fourteenth Amendment protects. See U. S. Const., Amend. 9. As the second Justice Harlan recognized:

&quot T)he full scope of the liberty guaranteed by the Due Process Clause cannot be found in or limited by the precise terms of the specific guarantees elsewhere provided in the Constitution. This `liberty' is not a series of isolated points pricked out in terms of the taking of property; the freedom of speech, press, and religion; the right to keep and bear arms; the freedom from unreasonable searches and seizures; and so on. It is a rational continuum which, broadly speaking, includes a freedom from all substantial arbitrary impositions and purposeless restraints, . . . and which also recognizes, what a reasonable and sensitive judgment must, that certain interests require particularly careful scrutiny of the state needs asserted to justify their abridgment."

Planned Parenthood of Southeastern Pa. v. Casey, 505 U.S. 833 (1992)

Some questions for discussion:

How does Stevens' interpretation of the 2nd Amendment in Heller mesh with the foundational reasoning of penumbral rights, that the nature of the rights enumerated in the BoR demonstrates a "rational continuum" of individual liberty to be protected from federal (and state) injury?

Can a right that is found to exist in the "emanations" and "penumbras" of the rights enumerated in the Bill of Rights be more respected, more vital and more secure than a right that is actually enumerated in the Bill of Rights?

Can an anti-gunner's hostility for gun rights and dismissal of the Heller Court's interpretation of the 2nd Amendment actually be turned around on Progressives and be used to call into question the legitimacy of securing the rights to abortion and other reproductive choices or even the gains made in LGBT rights?

.