Gun silencer court case involving Second Amendment ignites Kansas Capitol protest

[Frank Ettin]

i understand what you are saying but shouldn't we operate word for word what the constitution says!! our forefathers worded it perfectly! it seems like everyone wants to twist and misshape everything to their way of doing things when it should be as written!!

Really now? It's fatuous to believe that the Founding Fathers all agreed on exactly what they meant and how the Constitution would apply.

The reality was that although fifty-five delegates attended the Constitutional Convention in 1786-87, only thirty-nine signed the proposed Constitution. Thirteen left early 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.

The Founding Fathers well understood how people do disagree and how politics works. They were active, mostly successfully, in the commercial and political world of the time. Many were lawyers. A few were judges. Almost all were very well educated. They were generally politically savvy. Many were members at various times of their home colonial assemblies or were otherwise active in local government or administration. They were solidly grounded in the real world and knew how to make things work in the real world. That is why they were able to bring our nation into being.

And since they had their share of disagreements among themselves, in the Constitution they assigned the judicial power of the United States to the federal courts -- which included, as specifically stated in the Constitution, deciding cases arising under the Constitution. And so the Founding Fathers gave us the federal courts to decide disagreements about what the Constitution means and how it applies in connection with matters in dispute. That is what courts do, and have done since long before the founding of our Republic.

So while you might think you know what the Constitution means and how it applies, others have disagreed, and will continue to disagree. As I noted above, in post 41, Hylton v. United States, in 1796 when the ink was barely dry on the shiny, new Constitution, appears to be the first major litigation involving a question of the interpretation and application of the Constitution.

 

[midland man]

well guns should be a god given right and a way to protect against harm and destruction, and no one should ever take our god given rights away!! plus the 2nd amendment was also designed to make sure the government dosent go tyrannical and the way things have been going it becoming more oppressive everyday!! just look at some of the laws our representatives have been making and see whats really happening to the people! like I said the people need to run the government instead the government running the people!!

 

[Frank Ettin]

well guns should ...

There you go with your "shoulds." First, the world is not the way you think it should be. Second, the world is not obliged to be the way you think it should be. Third, everyone else has his own list of "shoulds" and has as much right to his "shoulds" as you do to yours.

One of the strengths of our way of doing things is that folks have opportunities to participate in our political processes and to try to influence how things are. You can try to get others to buy into your "shoulds" and to help elect representatives who will further your interests. Of course others have similar opportunities.

The bottom line is, however, that it's not good enough to say, "it should be like this." One needs to understand how things work and be able to effectively promote his vision, while others are promoting theirs.

 

[Sam1911]

Midland man, it probably seems to you that Frank is being obtuse or contrary, because while everything he's saying is undoubtedly true as to how the courts work, you're saying something different: you're talking about the underlying, fundamental truth of how things are supposed to be. Just read the Constitution, right?

But the thing is, there really is no underlying, fundamental "should." It is a hard concept to grasp but an important one. There is no absolute truth in any reading of the Constitution. No way of reading it that is handed down from on high by a diety and which "liberals" or socialists or statists or whomever are deliberately ignoring.

Your opinion on what the words mean and how they should be applied is worth exactly as much as a die hard anti gumner's opinion. Your wishes and wants about what kinds of guns you should be able to own and where you can carry them are just as valid, under the Constitution, as an anti gumner's desire to have that same weapon made illegal and for you to be requred to leave them home. And they have just as much right to get laws passed and make cases before the Court to have those laws upheld as not infringing on the Constitution.

The fact that probably every one of us here agrees with you that the country would be better if the 2nd Amendment was read as though the arms and terrible implements of the soldier should be the right and legacy of all free Americans doesn't make that opinion TRUE one step beyond our ability to get laws passed, and to win court cases which uphold that view and make that the law of the land.

The Court decides whether a law defies the Constitution or it does not. And their decision makes that a fact. Not our approval or disapproval of that judgment.

Further, and equally important to understand, the decision of the Court that something is or is there unconstitutional is not the end and last word of debate and legislation about a topic. And that's a good thing. For more than a hundred years various states have prohibited the bearing of weapons in public by their citizens. The Court has never once decided that bans on concealed carry of firearms violate the 2nd Amendment. They ARE constitutional, because the Court has allowed them. However, we've still faught them hard -- and WON -- in almost every state.

So instead of shouting at the sky and saying over and over "thats unconstitutional!!!" understand the fight we're actually in, what methods are effective, and how to win.

 

[midland man]

Midland man, it probably seems to you that Frank is being obtuse or contrary, because while everything he's saying is undoubtedly true as to how the courts work, you're saying something different: you're talking about the underlying, fundamental truth of how things are supposed to be. Just read the Constitution, right?

But the thing is, there really is no underlying, fundamental "should." It is a hard concept to grasp but an important one. There is no absolute truth in any reading of the Constitution. No way of reading it that is handed down from on high by a diety and which "liberals" or socialists or statists or whomever are deliberately ignoring.

Your opinion on what the words mean and how they should be applied is worth exactly as much as a die hard anti gumner's opinion. Your wishes and wants about what kinds of guns you should be able to own and where you can carry them are just as valid, under the Constitution, as an anti gumner's desire to have that same weapon made illegal and for you to be requred to leave them home. And they have just as much right to get laws passed and make cases before the Court to have those laws upheld as not infringing on the Constitution.

The fact that probably every one of us here agrees with you that the country would be better if the 2nd Amendment was read as though the arms and terrible implements of the soldier should be the right and legacy of all free Americans doesn't make that opinion TRUE one step beyond our ability to get laws passed, and to win court cases which uphold that view and make that the law of the land.

The Court decides whether a law defies the Constitution or it does not. And their decision makes that a fact. Not our approval or disapproval of that judgment.

Further, and equally important to understand, the decision of the Court that something is or is there unconstitutional is not the end and last word of debate and legislation about a topic. And that's a good thing. For more than a hundred years various states have prohibited the bearing of weapons in public by their citizens. The Court has never once decided that bans on concealed carry of firearms violate the 2nd Amendment. They ARE constitutional, because the Court has allowed them. However, we've still faught them hard -- and WON -- in almost every state.

So instead of shouting at the sky and saying over and over "thats unconstitutional!!!" understand the fight we're actually in, what methods are effective, and how to win.

but also the courts shouldn't be making laws and bending around what the constituition says as you have to remember we have antigunners setting on the bench plus progun as well setting on the bench good vs evil who being antigun swear to up hold the constitution but in like ya'll said in their views they want to bend rules and regs, to their benefit they whey they think and do this for years! so all in the while people who are afforded rights are discriminated against in that antigunner/judges view and still rule against them as in their mind they hate guns! but for some reason they are a judge setting in the bench doing a service for the people in which they are biased against anyone who is progun! so what do we do about the liberal views that work in the supreme court? as its not helping others who for some reason or another should be treated fairly but are not! its seems like we have allowed the government too much power so we could sit infront of our TV's eat our potato chips and do nothing while we could come together as either a nation or at lest gun loving americans and fight for what is right so as long as we sit on our hands we allow the stupidity and liberalism to continue if we wait to long our guns one day will be gone!!

 

[Frank Ettin]

but also the courts shouldn't be making laws and bending around what the constituition says .....

More of your "shoulds."

So let's try this. It doesn't matter how you think things should be. The world is going to be going on about it's business notwithstanding your opinions. Things are not the way you think they should be, and they are never going to be the way you think they should be.

 

[midland man]

More of your "shoulds."

So let's try this. It doesn't matter how you think things should be. The world is going to be going on about it's business notwithstanding your opinions. Things are not the way you think they should be, and they are never going to be the way you think they should be.

so you don't think the supreme courts are making laws or bending or skirting around laws? do you think they are 100% honest??

 

[Frank Ettin]

so you don't think the supreme courts are making laws or bending or skirting around laws? do you think they are 100% honest??

Judges, like like people generally, are human with their shares of human frailties. They aren't perfect, but neither is anyone else. But they are also well educated and have had to run a professional gauntlet to rise in their professions.

It's a great myth that the judiciary acts with no constraint.

First, of course, what courts do is in the public eye, and judges function in a fishbowl. They must justify their decisions, and those justifications are subject to public scrutiny and criticism. The decisions of trial court judges are subject to review on appeal. The decisions of appellate courts are made by a majority of a multi-judge panel.

Every judicial organization has a supervisor committee of judges, usually called a "judicial council" which has a wide range of responsibilities associated with the conduct of business by the courts, including monitoring of the conduct and behaviors of judges. Such judicial councils can, and have, intervened in cases of severely aberrant behavior or egregious misconduct by a judge.

And then there is a fundamental human reality: people, other than sociopaths and psychopaths, are concerned about their reputations, especially among their peers. Professionals like doctors, lawyers, judges, etc., who have studied and worked hard and long to achieve some level of success and prominence in their professions tend to care both about being professionally respected by their peers, and the usages and traditions of their professions. There is such a thing as [professional] conscience, and in the real world that is a constraint.

In every profession there are bad apples. That is the way of humanity. But in real life the vast majority of doctors try very hard to be honest and diligent in their professional lives and to properly and competently practice their profession. The same can be said of lawyers and judges.

It's true that bad things can happen to lousy doctors, lawyer or judges. They can be stymied in reaching their professional and economic goals. They can lose their licenses or positions. In extreme cases they can go to jail. Some have suffered all those bad outcomes.

Sometimes patients die (as people, especially sick people, will do). Sometimes lawyers lose (and often because their clients were in the wrong). Sometimes we might not like the result of a judge's decision (but maybe what we really need to think about is changing the law). Nonetheless, the vast majority of the time doctors, lawyers and judges are trying hard to do things properly and well.

And the judiciary, as other branches of government, is still subject to checks and balances. So if a judge's decision is unsatisfactory, the ball might well be in the court of the legislature.

Often folks who really don't understand things will resort to some type of "magical thinking" to explain what to them is unexplainable. So folks who don't understand how the solar system works attribute a solar eclipse to a dragon swallowing the sun, or some such thing. Similarly to some folks court decisions they don't like, or election results they don't like, or legislative actions they don't like must be because things are corrupt, or things are rigged, people are dishonest, or there's some mysterious conspiracy behind it all.

But there can be genuine professional disagreement about things. The fact that I might, professionally, conclude that a particular decision of a court was wildly off base doesn't translate to a conclusion that it was the product of evil intent, dishonesty or chicanery.

 

[RPRNY]

so you don't think the supreme courts are making laws or bending or skirting around laws? do you think they are 100% honest??

I cannot go as far as Frank in offering the courts today the benefit of the doubt. While human frailty and simple differences of opinion do exist, there is unquestionably a school of judicial activism that believes it is the responsibility of the judiciary to legislate from the bench. Plaintiffs will, to the best of their abilities, shop jurisdictions in recognition of this fact.

It was clearly not the intent of the Founders and is clearly forbidden by the first sentence of Article I of the Constitution for the judiciary to de jure legislate from the bench. But as Frank keeps trying to communicate, in reality they sometimes do. Not always with ill intent and often in misguided good intent, but it happens. However, the judiciary is constrained in many ways and, in this day and age, remains much less openly and willfully engaged in the worst political/ideological hackery than the other two branches of government. For now...

Just my opinion, of course.

 

[midland man]

Judges, like like people generally, are human with their shares of human frailties. They aren't perfect, but neither is anyone else. But they are also well educated and have had to run a professional gauntlet to rise in their professions.

It's a great myth that the judiciary acts with no constraint.

First, of course, what courts do is in the public eye, and judges function in a fishbowl. They must justify their decisions, and those justifications are subject to public scrutiny and criticism. The decisions of trial court judges are subject to review on appeal. The decisions of appellate courts are made by a majority of a multi-judge panel.

Every judicial organization has a supervisor committee of judges, usually called a "judicial council" which has a wide range of responsibilities associated with the conduct of business by the courts, including monitoring of the conduct and behaviors of judges. Such judicial councils can, and have, intervened in cases of severely aberrant behavior or egregious misconduct by a judge.

And then there is a fundamental human reality: people, other than sociopaths and psychopaths, are concerned about their reputations, especially among their peers. Professionals like doctors, lawyers, judges, etc., who have studied and worked hard and long to achieve some level of success and prominence in their professions tend to care both about being professionally respected by their peers, and the usages and traditions of their professions. There is such a thing as [professional] conscience, and in the real world that is a constraint.

In every profession there are bad apples. That is the way of humanity. But in real life the vast majority of doctors try very hard to be honest and diligent in their professional lives and to properly and competently practice their profession. The same can be said of lawyers and judges.

It's true that bad things can happen to lousy doctors, lawyer or judges. They can be stymied in reaching their professional and economic goals. They can lose their licenses or positions. In extreme cases they can go to jail. Some have suffered all those bad outcomes.

Sometimes patients die (as people, especially sick people, will do). Sometimes lawyers lose (and often because their clients were in the wrong). Sometimes we might not like the result of a judge's decision (but maybe what we really need to think about is changing the law). Nonetheless, the vast majority of the time doctors, lawyers and judges are trying hard to do things properly and well.

And the judiciary, as other branches of government, is still subject to checks and balances. So if a judge's decision is unsatisfactory, the ball might well be in the court of the legislature.

Often folks who really don't understand things will resort to some type of "magical thinking" to explain what to them is unexplainable. So folks who don't understand how the solar system works attribute a solar eclipse to a dragon swallowing the sun, or some such thing. Similarly to some folks court decisions they don't like, or election results they don't like, or legislative actions they don't like must be because things are corrupt, or things are rigged, people are dishonest, or there's some mysterious conspiracy behind it all.

But there can be genuine professional disagreement about things. The fact that I might, professionally, conclude that a particular decision of a court was wildly off base doesn't translate to a conclusion that it was the product of evil intent, dishonesty or chicanery.

okay but I am sure if you would be honest here that you feel our guns and gun rights are under attack and will be as long as we have antigunners in the world or at lest our country! so as gun owners wouldn't you agree we should stand united and pull together and fight for our rights plus join some organization that will stand in the gap for us? like myself I am becoming a life member of the NRA as we speak!

 

[Frank Ettin]

...I am sure if you would be honest here that you feel our guns and gun rights are under attack....

Yes they are, in many ways. But to deal with that effectively one must first understand how things work in real life in the real world.

 

[unclenunzie]

What a great thread. Thank you all for your contributions.