In my earlier postings about the Second Amendment, a commenter named “Mark” rather snidely put down my status as a “lay person” on matters Constitutional. He condescendingly suggested I read some Court rulings on the matter. “Mark” was taken to task by “Ed,” and they got into a bit of a dispute. I’m not going to defend Ed or argue his points for him, but instead I’m going to discuss Mark’s first comment directly.
It’s painful to watch a lay person take a public stab at constitutional construction, even if I agree with the bottom line. Might I suggest reading several of the many appellate and Supreme Court decisions that parse the language of the Second Amendment and recount the intent of the framers?
Mark, here’s a little tip for you: as I understand it, the Constitution was written (to steal a phrase from Abraham Lincoln) by the people for the people. It is the highest law in the land. It outlines the powers, obligations, and limitations of the government and the people. As such, it should be crystal-clear to any average citizen — and, for the most part, it is. The Second Amendment is one example where I think they let their rigorous standards for clarity and precision slip — and the fact that so many people are still arguing about it today is pretty solid evidence that I’m right.
But the days of such simplicity are gone. With lawyers now largely dominating the business of making laws, they’ve forced the laws to get more and more convoluted and obfuscated to the point where the average citizen hasn’t a prayer of understanding most matters. In fact, they’ve gotten the tax laws so screwed up that if you ask the IRS what exactly they mean, you have a better-than-even chance of getting a wrong answer from the tax experts themselves — and you’re STILL on the hook if you follow their incorrect advice.
I say to hell with that. By forcing such perverse convolutions on our laws, the legal profession has essentially engineered itself a full-employment situation — and at the public’s expense. As a member of that public, I deeply resent that.
The United States Constitution is my birthright, along with the birthright of every American (and the non-birth right of every naturalized citizen). It is MINE, and I neither want nor need anyone to stand between me and it and tell me exactly what it means and doesn’t mean. And if that person happens to be an overeducated, self-important, arrogant, condescending prat with a briefcase and a fancy piece of paper with “J.D.” after his name, he can take his jurisprudence and shove them down his briefs.
Mark, I don’t know if that description fits you (I’m presuming about the “J.D.,” but it’s a comfortable assumption), but if it does, all the better.
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Hey! Turns out there more than two types of posters on this thread who fancy themselves as defenders of the populace against them hi-minded lawyers. In addition to the disingenuous hypocrits and the complete idiots, we have a third: Idiotic disingenuous hypocrits, in other words, Sue.
I’m happy to stoop to her level of name calling instead of arguing the topic of this thread.
So, um, bite me, you uneducated twit!
Damn, I momentarily stooped to Sue’s level.
Sue, if you had actually read and even superficially comprehended anything I’ve said in this thread, or Jay Tea’s Part II thread concerning the Second Amendment, you would see that your last post is nothing but a hateful series of non-sequiturs. I have not said a damn thing that would lead any reasonable person to conclude that I subscribe to the philosphies of Derrida, Gramsci, or Marx. The truth is far from it. In fact, I explicitely told you I am nearly the opposite of a socialist.
However, I DO subscribe to the tenets of constitutional interpretation that were used by our very first Supreme Court, and all succeeding courts. Variations of these tenets were in place in the colonial courts, the courts of England, and examples before those. There have been a few misuses over the years, but by and large, the tenets are sound even if the results sometimes are not, in my opinion.
So, I suggest you try to follow along, and comment only in areas where you have relevant knowledge. I do not profess to know everything, and I am open to guidance and correction. But if you intend to act like an ignorant bitch, then shut the fuck up.
I’d like to take a mild exception to Ed’s posting at July 19, 2005 09:09 PM in which he says:
The Second Amendment:
“A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.”
Try to keep up folks.
The entire source for government regulation of firearms ownership is based entirely on the first part of the Second Amendment i.e. “well regulated”. This confers onto the government the power to regulate firearms ownership, sales and purchases. This is the only part of the Constitution, other than the clauses involving inter-state commerce, that allows the government to govern firearms ownership.
The regulation of the militia is given explicitly in the body of the Constitution in Article I, Section 8, Clause 16 where we see [The Congress shall have Power] “To provide for organizing, arming, and disciplining, the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress;”
The key point is that the Second Amendment conveys no authority on government, but is a further elaboration of rights enjoyed by the people.
Coming later than the Constitution, conflicts between this amendment and the body of the Constitution must adhere to the Second Amendment. As such, the Congress has the powers to regulate interstate commerce, but not so as to infringe the right of the people to keep and bear arms. Congress may provide for organizaing, arming and disciplining the Militia, etc., but not in a way to infringe the rights of the people to keep and bear arms.
So, a provision requiring the people to own a rifle suitable for militia use should be legal, but saying that the people may not own such a rifle would be an infringement. A provision requiring each militia person to have 50 rounds of ammo suitable for militia purposes locked safely away in the home would be legal, but to pass a law that a person could not have another 50 rounds with some loaded in his firearm, if safety would so require in the judgment of the militia person, would be an infringement. A provision requiring the militia person to assemble on Saturday morning with his militia rifle on the village green would be legal, but a law saying the person could not carry his militia weapon (or other firearm) for reasons of perceived danger would be an infringement.
Moreover, the militia has a duty to the general government which the states cannot interfere with by the Constitution. Since the support of the militia, in the eyes of the Constitution, requires the right to keep and bear arms with out infringement and since state regulation infringes almost every aspect of firearm ownership and carrying, it is clear that almost every aspect of those regulations are usurpations.
Does that mean we can ignore those regulations — not hardly. There are plenty of lawyers and judges to put us in jail. But, we know what is right.
It takes a VERY educated person to twist the meaning of a VERY simple sentence into something so far away from it’s obvious intent. A bit of research will show that those who wrote the Constitution meant that the Second Amendment IS, in fact, an individual right. I’m tired of politicians and lawyers debating what the meaning of ‘is’ is. Like the song says, ‘Ol Billy was right.’
What all here seem to miss is (1) The Constitution clearly has language providing for the keeping and bearing of arms as an individual right.
(2) The legislative houses of the various colonies made it perfectly clear they wanted further, concrete, guarantities of state and individual soverignity before they would ratify the Constitution.
(3) thus the Bill of Rights is not, in any way, shape or form an enumeration of rights ceded by federal authority. They are statements of prohibitions and limitations that all governmental authority may not transgress except under the most rigorous control and egregious circumstances. >JH
Doug, I don’t agree with your first sentence. Just look at the discrepancies between every single gun-wielding person here who tried to explain that “very simple sentence.” As Jay Tea suggested, the Second Amendment is pretty awkward. Whether you are for or against gun control, that has to be acknowleged and dealt with honestly.
NOW, BEFORE YOU FLAME ME, read this: Fortunately, your second sentence is right on. If one looks beyond the language of the amendment and does the proper research (yes Sue, the Federalist Papers are indispensible here, even if they are not the entire story), most, if not all, rational thinking people will reach the same result. I also agree with your third sentence, with the caveat that you need to acknowledge the necessity of those who try to keep the assholes honest.
J. Hoser, I’m not sure I understood a single word you tried to spell, er, uh, say. I’m sure you meant well. Pass the bong.
Uh…I don’t know if you all know this, but the Federalist Papers were all published before the Bill of Rights had been drafted. They also argued against the appending of a Bill of Rights for two reasons: 1) superflous (a government of limited powers wouldn’t deign to govern in areas beyond those powers, and 2) confusing (i.e., gives the impression that the People have limited rights).
Ergo, you’ve all just been FLAMED!!!
I kid, I kid. Federalist No. 46 is the one you want for unmitigated praise of a fully armed populace (if you read US v. Emerson…).
Mark:
Good one, Mike B. No lawyers were around when the Constitution was drafted? That’s rich.
I stated no such thing. My point was simply that the target audience for the work (the Constitution and the Federalist Papers) was not a bunch of self-righteous lawyers so that unwashed masses could turn to them for interpretation, but rather the unwashed masses themselves.
So Mike B., why not crawl back under your rock and steep in your own ignorance.
Wow.. Color me convinced! What a fine illustration of the low standards of the ABA when someone who calls himself a lawyer can’t do better than resorting to such a juvenille attack. A pity really.
– MikeB
Mark, MikeB, Jim and others:
An individual right to keep and bear arms can be derived from the Constitution and current court rulings apart from the second amendment.
At least that’s my ignorant opinion. I posted this yesterday, but it got lost in the flames. I’m hoping some more knowledgeable folks can take a look at my logic below and see if it holds water. If not, no lose. If it does, this could be an important legal argument.
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Some years ago I heard there was a ruling by the Supreme Court to the effect that a Constitutional right also guarantees the means to exercise that right. The purpose of the ruling was to protect abortion clinics. The logic was that the Constitution gave women the right to abortion and that that individual right protected the means (abortion clinics) of exercising that right.
It seems the Constitution guarantees the right to life, although it doesn’t specifically state it. What it says is that’s it’s vary purpose is to “…promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity…” Welfare was defined at the time as “health, happiness, or prosperity” and it’s not posible to be healthy or partake of the blessings of liberty if you are dead.
If a person has a Constitutional right to their life, then it follows that they have a Constitutional right to self-defense, which from the abortion clinic ruling suggests the means of self-defense are also Constitutionally protected. Recent court rulings that police are not required to defend a specific individual requires that the means of self-defense must be able to be held privately. From the above logic I get to the individual right to keep and bear arms for the purpose of self-defense, all apart from the second ammendment.
-Mac Lorry
Well, MikeB, your post sounded like a petty attack on me and my logic, and you do suggest there were no “self righteous” lawyers around at the time. If I smelled venom where non existed and reacted inappropriately, I apologize.
But to all those who love to think the Consitition was written for lay people, you’re right in a sense. In fact, all laws are written “by the people” and “for the people.” The Constitution was written by “the people,” most of whom were lawyers. It was written “for the people” as a tool to be used by people trained in such matters, such as courts and lawyers.
In the late 1770’s, it was Thomas Jefferson, a lawyer, who approached the college of William and Mary and requested them to start an academic law school so we could ween our reliance upon British-trained lawyers, or those trained on-the-job in the colonies. This was nearly ten years before the Consitution was drafted. Some of the first alumni actually had a hand in drafting it. Were these lawyers self-righteous? If you read some of their work, some might think so.
The (mostly) lawyers who drafted the Constitution created a thing called the Judiciary, with the Supreme Court at its pinnacle. One of the primary jobs of the judiciary is to interpret laws. In the states, this has always been an adversarial process where lawyers for each side present their research and arguments, while the court renders some opinion. From its inception, the process contemplated, and was designed around, the use of lawyers.
The Constitution was written in plain English to assist people in understanding it. In fact, most laws written since then are also in plain English. But it was always contemplated that lawyers would be necessary to sift through the huge body of conflicting laws to figure out which take precedence, and which apply to a particular set of facts. It was never contemplated that the Constitution, or law in general, would be a do-it-yourself endeavor for people who are untrained.
Again, I urge anyone who disagrees to simply read the posts above. We had one person claim that “well regulated militia” meant gun barrels need to be trued. One suggested “well regulated” empowered the state to regulate gun ownership. Jay Tea thinks the phrase is “oddball” and has no legal import.
If you would like to see more examples, just run down to your local traffic court. Traffic laws are as simple as they come, i.e., “thou shalt not run a red light.” Go listen to the arguments of lay people and see how many absurd interpretations you hear. I had to do this recently to fight a bogus ticket, and I was apalled by the inability of people to (1) read, (2) comprehend, and (3) follow a simple linear thought in presenting their case. If the “unwashed masses” as YOU put it cannot interpret a red light provision of the vehicle code, then how can we expect them to handle something as complex as the Constitution?
John wrote:
I’m happy to stoop to her level of name calling instead of arguing the topic of this thread.
So, um, bite me, you uneducated twit!
You can’t stoop when you’re already a hunchback. You started the ad hominem with your very first post, drive-by dumbass. And I quote:
To all the posters on this 2nd amendment thread (including Jay Tea) who disagree with Mark the lawyer: You are either being disingenuous and hypocritical, or you are complete idiots.
And I can’t bite what you don’t have, Dickless McHalfwit.
Mark wrote:
I have not said a damn thing that would lead any reasonable person to conclude that I subscribe to the philosphies of Derrida, Gramsci, or Marx. The truth is far from it. In fact, I explicitely told you I am nearly the opposite of a socialist.
I don’t care what you “explicitely” told me. You can claim to be anything you want; it doesn’t make it so.
As for what philosophy you subscribe to, your error has been pointed out to you many times on this thread alone.
You believe that only a highly trained, indoctrinated elite (of which you claim to be a member) can understand the Second Amendment, thus by extension the Bill of Rights and the U.S. Constitution as a whole.
This is not the philosophy of someone “bordering on libertarian,” as you put it. This is the philosophy of someone quite comfortable with Derrida’s ideas of “deconstruction,” Gramsci’s “long march,” and all they seek to accomplish.
Or possibly you’re simply a product of that “long march.” Comparing your lofty claims to your below-average prose leads me to the latter conclusion. Your inability to produce the Federalist Paper references I requested reinforces my conclusion to the point of certainty.
Stick to suing Apu for slip-and-fall, lightweight.
Sue:
“Highly trained indoctrinated elite?” Is that what lawyers are? Cool! I thought we were just ordinary people trained to work in a specialized field, called “law.” Just as auto mechanics are trained to work in their specialized field. Just as CPA’s are trained to handle their specialties. And seamstresses. And marketers. And musicians. And….
If what you say is true, then the framers, all judges (past the present), the legislature, and the legal profession as a whole is a slimey pile of socialists, and always has been. Congratulations, you simplistic twit.
Oh, and I decline to do your legal research for you. The law is rife with examples, but I am not inclined to waste my time for your benefit. I suspect you would benefit much more from the exercise than I would, so have at it. After all, isn’t it your position that law should be left to everyone?
I suggest you return to hoarding canned goods in your fallout shelter, hand-load yourself a good stock of ammunition, and keep worshiping that poster of Timothy McViegh on your wall. You might as well fly that confederate flag while you’re at it. You sound like a vigilante redneck who enjoys pulling trains for the local militia.
Damn, the stream-of-consciousness I spew into this little blue box as fast as I can type–you know, the stuff I pass off as “below average prose”–could definitely benefit from proof reading and spell checking.
Above, I meant “past AND present” instead of “past THE present.”
Mark the lawyer said:
Please, tell me which branch of the government routinely stikes down acts of the legislature for being unconstitutional. Which branch is ultimately charged with holding executive actions to constitutional scrutiny? Get it?
Regarding your first question, the Supreme Court can do so (strike down acts), and I never claimed it couldn’t. But the Legislature is not limited to only enacting Laws (which are subject to judicial review). The legislature, with the States, can amend the Constitution without the Supreme Court’s involvement. This is explicit in Article V.
In addition, the Court is not the ONLY branch which can judge Acts as being unconstitutional. The Executive branch can do so in certain cases as well, the most obvious being that the President is free to veto a Bill on the grounds that it is unconstitutional. Yes, this veto can often be overridden, but the power of the Executive to judge the Constitutionality of an Act of Congress is nonetheless quite real. There are even quite valid Constitutional theories which posit that the Executive branch can legitimately refuse to enforce a law which has been fully enacted. See for example, Johnsen, 63 Law & Contemp. Probs. 7 (Winter/Spring 2000)
Regarding your second question (Which branch is ultimately charged with holding executive actions to constitutional scrutiny? ), well, again, that depends. The Court has that power in some cases. However, if the Executive action in question was a high crime or misdeanor, then the Supreme Court has no jurisdiction to judge that action. Article I Section 3 grants that power solely to the Legislature, in particular the Senate.
Finally, consider the the President takes a Constitutionally mandated oath to “preserve, protect and defend the Constitution”. Obviously he cannot do so if he is unable to make any judgment as to what the Constitution says.
Modern custom and precedent do indeed make the Supreme Court the judge of most matters Constitutional. But it is not the sole judge, and its say is not always final. These circumstances are laid out in the Constitution itself.
For a lawyer, you’d think you would be aware of this.
Oh, and regarding your third question (Get it?) … Yes, I do. The first three words of the Constitution are “We the people”. You may not like that, but there it is.