And that is a fundamentally stupid question. It assumes that the Court is ignoring the Constitution. You assume that it it because you disagree with the way reality works. But your opinion does not count in the real world.ConstitutionCowboy said:
Do we have a Constitutional Right to not have Universal Background Checks?
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ConstitutionCowboy
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Frank said:
It says they can't in the Constitution. (Honorable men would abide that.)
Fixed it for you.
Woody
ConstitutionCowboy
member
Whatever.ConstitutionCowboy said:
This is simply a continuation of your usual foolishness. There is no reason to take you seriously.
AKElroy
Member
I am quite interested in this debate. It seams to me the two sides (Woody and Frank) are really a contrast between idealism and current reality. Frank, I appreciate your legal mind and the work you do in the courts for the RKBA. I do have a question that goes to the heart of Woody's point as I understand it.
What is the remedy if the Supreme Court were to have decided in Heller that there is no individual RKBA? Would you remain consistent and argue that such a ruling would be constitutional? Please do not answer with "but that's not what happend". I am aware of that. One vote is all that stood in the way of that reality. Future cases could still have that as a de facto result, so I am anxious to hear what our remedy would be according to your legal opinion.
Let's first be clear. It's fatuous to talk about a ruling of the Supreme Court on a constitutional question as being unconstitutional. As I've explained multiple times, with regard to any disagreement on what the Constitution means or how it applies, the Constitution itself refers that matter to the Supreme Court. The question is within the scope of the Supreme Court's exercise the judicial power of the United States to decide.AKElroy said:
That is a reason why the NRA at one point in the natural history of Heller was very reluctant to see the case proceed. The composition of the Court at that point was more likely to be more hostile to the "individual right" argument. When there was a shift, the NRA withdrew its opposition. But Heller was a particularly scary case. It really was "for all the marbles."
Once a pivotal constitutional case has been decided by the Court, those antagonistic to the result will continue to press their case, both in the political arena and in further litigation. That was certainly the case following the decisions of the Court in Brown v. Board of Education and Roe v. Wade. Legislation and litigation in areas related to those subject matters continues to this day. Gun control advocates have been doing so post Heller. And if Heller had gone the other way, we'd have to try the same sorts of things. But we'd be at a great disadvantage.
So if Heller had found that the Second Amendment describes only a collective right, we'd have to argue for broader legislative recognition of the RKBA as good public policy. Legislatures can certainly recognize boarder rights than constitutionally required. And the Constitution can be amended to obviate decisions of the Supreme Court widely enough considered to be unsatisfactory.
But sadly absent an "individual right" Supreme Court reading of the Second Amendment, the political climate in much of the country is such that we'd likely to be witnesses today the rapid and dramatic contraction of the RKBA. Something to be considered by those who would urge a Supreme Court chosen by popular vote.
And a word on idealism. Ideals are important, and I'm not suggesting that we give up seeking what we think is right. But we're not going to get anywhere with that quest if we don't have a solid grounding in how things work in the real world. Our lawyers got a favorable result in Heller by understanding reality. Things would not have worked out so well if they had tried to do so by chasing unicorns.
AKElroy
Member
So, like the fall out from Dred Scott, you have faith that corrective action would still be available, just as the 13,14,15th amendments were post that decision. Of course, we also had a civil war--- would be nice if we could skip that part.
At multiple times in our history there have been Supreme Court decisions which were crushing blows to one group or another.AKElroy said:
No one ever promised us a result. At best we can expect a chance.
The original question was whether background checks were a violation of our constitutional right to keep and bear arms; I believe they are. The fact that a government has asserted authority it was never granted, and was in fact expressly forbidden from, doesn't make something constitutional.
TimSr
Member
Any layman can clearly understand the intent of the Constiutional authors, if they choose to. There are two different arguments going on. What the courts and the government has twisted the Constitution into meaning over the years, and what it actually says.
Imagine having to undergo a background check to make a speech write a blog, or go to church. If these rights are God given and inalienable, then the only background check to be done is with God, and I am presumed innocent. If I have done something criminal for which man can restrict these rights, then the burden is upon the state to prove that, and not upon me to prove that I am worthy.
That may not be how the goverment and the high courts have twisted and perverted the Constitution, but it is what it says to me when I read it.
Sam1911
Moderator Emeritus
In a way, that's true. There are two factors to consider. One is the layman's reading of legal text, like the Constitution. This is not too far different from a devotee reading the Bible, the Koran, or any other religious text. Inspiring, guiding, sometimes mysterious and subject to each person's experiences, understandings, level of historical and lexical education, biases, and interpretations. Such a reading can be useful in that it informs how you feel about and relate to life and the natural, supernatural, or in this case political, world around you.
That's aspect one, and we should not denigrate or ridicule that. In the case of religious readings those meditative readings inspire each devotee to live a certain kind of life, for good or ill. In the case of each citizen's meditative readings of the Constitution, it likewise inspires the devotee to add his/her voice and efforts to shaping our government to be what we think it should be, and if we are conservative orthodox, to what we believe our founders wanted it to be.
...
Aspect two, however, is practical government and law. This is where the rubber really meets the road. As much as our more spiritual and idealistic views drive us to seek to guide government and law (as a member of "We, the People") we are daily bound by the reality of how government and law IS. How it IS practiced, how it IS interpreted, how it IS enforced, and how it DOES affect our lives.
It is tempting to stand up on a tree stump and speak about "The Constitution says plainly for all to read that ...," or "The federal government CAN'T write a law that ...," as though our reading and our layman's plain-text understanding were somehow controlling factors. But it can be quite disingenuous to speak so to those listening, because that plain-text understanding really quite often misrepresents reality, and creates a vast divide between what we claim to be true and how we actually experience our government to work.
And, perhaps forgive some shortness of temper from those who live and breathe government and law, but it gets tiresome to repeatedly have to shepherd along these discussions as they stray from pragmatic questions into dogmatic theoretical hopes and wishes. Every one of us wishes the 2nd Amendment was taken at bald face value as each and every one of us personally reads it. (Which would be highly conflicting as few of us completely agree what that means ... shucks.) But we also know the short and meager worth of those hopes and wishes, and see no benefit to entertaining them here as somehow compelling factors in real-world questions of Constitutional application.
That's aspect one, and we should not denigrate or ridicule that. In the case of religious readings those meditative readings inspire each devotee to live a certain kind of life, for good or ill. In the case of each citizen's meditative readings of the Constitution, it likewise inspires the devotee to add his/her voice and efforts to shaping our government to be what we think it should be, and if we are conservative orthodox, to what we believe our founders wanted it to be.
...
Aspect two, however, is practical government and law. This is where the rubber really meets the road. As much as our more spiritual and idealistic views drive us to seek to guide government and law (as a member of "We, the People") we are daily bound by the reality of how government and law IS. How it IS practiced, how it IS interpreted, how it IS enforced, and how it DOES affect our lives.
It is tempting to stand up on a tree stump and speak about "The Constitution says plainly for all to read that ...," or "The federal government CAN'T write a law that ...," as though our reading and our layman's plain-text understanding were somehow controlling factors. But it can be quite disingenuous to speak so to those listening, because that plain-text understanding really quite often misrepresents reality, and creates a vast divide between what we claim to be true and how we actually experience our government to work.
And, perhaps forgive some shortness of temper from those who live and breathe government and law, but it gets tiresome to repeatedly have to shepherd along these discussions as they stray from pragmatic questions into dogmatic theoretical hopes and wishes. Every one of us wishes the 2nd Amendment was taken at bald face value as each and every one of us personally reads it. (Which would be highly conflicting as few of us completely agree what that means ... shucks.) But we also know the short and meager worth of those hopes and wishes, and see no benefit to entertaining them here as somehow compelling factors in real-world questions of Constitutional application.
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TimSr
Member
There is a huge difference between the US Constitution and the Bible or Koran.
We know the authors of the US Constitution. They made their beliefs and intents very clear in numerous writings aside from the Constitution, before and after. We know the historical context of their fears. The US Constitution was originally written in American English. There isn't much to speculate on.
Imagine asking the Constitutional founders any of the "big" Constitutional questions of the day. "Mr. Monroe, Mr. Jefferson, Do you have any problem with requiring citizens to prove to the government they are NOT criminals in before they can purchase a flintlock?" Be prepared to duck!
We know the authors of the US Constitution. They made their beliefs and intents very clear in numerous writings aside from the Constitution, before and after. We know the historical context of their fears. The US Constitution was originally written in American English. There isn't much to speculate on.
Imagine asking the Constitutional founders any of the "big" Constitutional questions of the day. "Mr. Monroe, Mr. Jefferson, Do you have any problem with requiring citizens to prove to the government they are NOT criminals in before they can purchase a flintlock?" Be prepared to duck!
Sam1911
Moderator Emeritus
Wonderful! And such juicy and delicious irony delivered in that short sentence!
At that I guess we'll just have to agree to wander separate paths toward answering Constitutional questions.
While you are free to believe that, your belief has no effect on real life in the real world. In order to affect real life in the real world, the Supreme Court needs to arrive at that conclusion.freyasman said:
While you might believe they are unconstitutional, others do not. And so the Founding Fathers provided in the Constitution that the federal courts will decide the question.
There are many differences, but there is one which concerns us here: In the Constitution itself the Founding Fathers have told us who will decide disagreements about what the Constitution means and how it applies, viz., the federal courts.TimSr said:
Sam1911
Moderator Emeritus
I also will point out that in this very sentence you've neatly given us an exemplar of the sorts of bias that puts a man's views of the Constitution out of phase with Constitutional law as it exists.
The fact that you would imagine asking that question of the Founders, and that you would obviously consider their imagined reaction to it instructive, pegs you as a strict constructionist. (Or more correctly, "textualist" or "originalist.") It is worth noting that struct constructionalism is not only NOT the dominant view among Justices, it is an extreme minority view.
In fact, the one current Justice (Antonin Scalia) most often considered to be closest to a strict constructionist or textualist viewpoint has sharply rejected those ideas.
So, again, it is useful to identify and correctly represent the difference between our orthodoxy and desires, and the practical way our government and Constitution work in this real world.
When your philosophical reading of the Constitution is not adhered to by even the 1/9th of the SCOTUS who is closest to you in political philosophy ... that's worth paying attention to.
CoalTrain49
Member
That speaks to the entire system of all state and federal regulation, not just UBC's. If we follow this line of thinking there would be no state or federal regulations on firearms or anyone who carried a firearm. Actually, that situation did exist in this country for awhile, probably up to the civil war. That was about 150 years ago so a few things have changed. In a perfect world your god given 2A rights would do away with all firearms regulation. Does anyone actually believe that is going to happen? I certainly don't. That's about as likely to happen as your god given 4A rights being restored. We can only hope.
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Tommygunn
Member
Far be it for me to claim you're wrong .... in point of fact I think you're right.
But it IS a sad state of affairs.
"I believe there are more instances of the abridgement of the freedoms of the people by gradual and silent encroachments of those in power than by violent and sudden usurpations." ~~ James Madison.
--And that is how it's done ....how we lose our rights when those at top insist that the founders did not really mean what they wrote when they wrote what they meant, over two hundred years ago.
Wasn't Madison one of those "dead white men" who did a few things to help found this nation? Ouch ... the irony.
Well here's more prescient prose from a dead white guy:
"I predict future happiness for Americans if they can prevent the government from wasting the labors of the people under the pretense of taking care of them." ~~ Thomas Jefferson.
How's THAT worked out for us, eh?
OTOH, I wonder if that last one is legit ..... this IS the internetz, after all.....
And you might well get different answers.TimSr said:
Fifty-five delegates attended the Constitutional Convention in 1786-87. Thirty-nine signed the proposed Constitution. Thirteen left without signing, and three refused to sign. There was then a bitter fight over ratification by the States. And it indeed looked like the Constitution would fail ratification until the Massachusetts Compromise was hashed out -- giving us the Bill of Rights after the Constitution was ratified without the Bill of Rights.
And with regard to James Madison's view of the Supreme Court's authority to decide those constitutional questions see Bush v. Orleans Parish School Board, 188 F. Supp. 916, at 924:
Posted by TimSr:
Contracts, for example, are written as clearly as possible. But all Government contracts consign a disputes clause, which provides for ways to resolve disagreements among the parties about the meaning of the contract per se. And there are established legal principles that pertain to how to handle misunderstandings among the parties to commercial contracts. Such misunderstadings often end up in court.
Laws enacted by state and the Federal governments are also "written in American English". But the judicial systems of the respective jurisdictional governments have their hands full resolving misunderstandings and disputes.
We know their names, their titles, and their biographies.
Nothing written can ever be considered sufficiently clear to guarantee that there will never be disputes or differences in understanding among different readers.
Contracts, for example, are written as clearly as possible. But all Government contracts consign a disputes clause, which provides for ways to resolve disagreements among the parties about the meaning of the contract per se. And there are established legal principles that pertain to how to handle misunderstandings among the parties to commercial contracts. Such misunderstadings often end up in court.
Laws enacted by state and the Federal governments are also "written in American English". But the judicial systems of the respective jurisdictional governments have their hands full resolving misunderstandings and disputes.
Frank beat me to the answer on that one, saying just about what I would have said (full disclosure: I have heard him say it before) but with more eloquence.
ConstitutionCowboy
member
Frank, why would you attempt to apply to this discussion a principle of government referred to by Madison in Federalist 39 relating to which level of government should resolve a dispute between the powers of the several states and those of the general government?
Not only are you applying this principle out of context, you left off the most important references to the limits of the Court if this principle were to be relevant to our discussion, namely that the decision is to be impartially made according to the rules of the Constitution, and all the usual and most effectual precautions are to be taken to secure the impartiality. I will add that the pertinent rule of the Constitution in this case would be that the Right to Keep and Bear Arms shall not be infringed.
Your reference to your select excerpt from Federalist 39 is neither a blanket rule nor any grant of power encompassing any and all aspects of the judicial power of the Court.
We are back to square one. You haven't demonstrated where the Court can adjudicate beyond the bounds of the Constitution. Add to that that the Congress cannot legislate beyond the bounds of the Constitution, and that every case wherein the legislature has infringed upon the Right to Keep and Bear Arms and been so challenged, the Court has failed to dismiss those laws as being beyond the power of Congress to enact.
Do you continue to side with the Court with its errors in these matters or do you stand with the Constitution and the protection of the rights of the people?
Woody
Not only are you applying this principle out of context, you left off the most important references to the limits of the Court if this principle were to be relevant to our discussion, namely that the decision is to be impartially made according to the rules of the Constitution, and all the usual and most effectual precautions are to be taken to secure the impartiality. I will add that the pertinent rule of the Constitution in this case would be that the Right to Keep and Bear Arms shall not be infringed.
Your reference to your select excerpt from Federalist 39 is neither a blanket rule nor any grant of power encompassing any and all aspects of the judicial power of the Court.
We are back to square one. You haven't demonstrated where the Court can adjudicate beyond the bounds of the Constitution. Add to that that the Congress cannot legislate beyond the bounds of the Constitution, and that every case wherein the legislature has infringed upon the Right to Keep and Bear Arms and been so challenged, the Court has failed to dismiss those laws as being beyond the power of Congress to enact.
Do you continue to side with the Court with its errors in these matters or do you stand with the Constitution and the protection of the rights of the people?
Woody
"Where in the Constitution has the Court been granted permission to ignore the Constitution?"
So is the simple answer to the question that the constitution assigned the Supreme Court the responsibility to resolve question regarding the constitution and by that assignment whatever the Supreme Court decides is 'constitutional'.
I hate to be over simplistic but that is how I read some of the responses in this thread. Though not that simply put. I have a simple mind and sometimes I need answers to be very specific. Maybe I missed it in the four pages of posts.
(I mostly read threads like this and don't contribute to them due to lack of specific knowledge. But also so I don't steer a thread down the wrong road. Hope I don't/didn't here.)
So is the simple answer to the question that the constitution assigned the Supreme Court the responsibility to resolve question regarding the constitution and by that assignment whatever the Supreme Court decides is 'constitutional'.
I hate to be over simplistic but that is how I read some of the responses in this thread. Though not that simply put. I have a simple mind and sometimes I need answers to be very specific. Maybe I missed it in the four pages of posts.
(I mostly read threads like this and don't contribute to them due to lack of specific knowledge. But also so I don't steer a thread down the wrong road. Hope I don't/didn't here.)
Sam1911
Moderator Emeritus
Translation: "Will you keep telling me how things actually work and explaining why, or will you join me in believing whatever I already have decided is true because I say so?"
Sam1911
Moderator Emeritus
A very quick-and-dirty assessment, but the answer would be "pretty much, yes."
The corollary to that would be to say, "...and that's why we have a 3-part system of government so the people may pursue their ends by other means (through the legislature, primarily) if they don't like the results of the Constitution being applied by the Court."
As Frank pointed out many times, there are examples where this happened, precisely. The Court determined how the words of the Constitution were to be applied, the people weren't happy with what that meant for practical life, and so the people directed the Legislature to write new, better laws on that subject to change the situation.
The SCOTUS does indeed tell us how the Constitution is to be applied, and which interpretation "wins" when there is a conflict. But that is never the end of the story, and just because the Constitution doesn't support or reject a hoped-for condition doesn't mean that We the People cannot achieve that condition we want to see. Only that the Constitution itself doesn't require it to be so.
old lady new shooter
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Kleanbore wrote "Laws enacted by state and the Federal governments are also "written in American English". But the judicial systems of the respective jurisdictional governments have their hands full resolving misunderstandings and disputes."
About a million years ago when I was a tax accountant, I was once hired by another firm to research an issue one of their clients was being audited on. One case I read, which if memory serves me was a Supreme Court case, went on for three pages discussing when "or" in the controlling code section could mean "and".
About a million years ago when I was a tax accountant, I was once hired by another firm to research an issue one of their clients was being audited on. One case I read, which if memory serves me was a Supreme Court case, went on for three pages discussing when "or" in the controlling code section could mean "and".
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