Is this lady right or wrong?

[NelsErik]

I wouldn't normally post stuff that I found on a blog, but this lady seems to have some pretty well thought out arguments regarding the 2nd Amendment and the Constitution. She goes by the name Publius Huldah and spoke during the committee meeting of SB 250, The 2nd Amendment Preservation Act of the State of Tennessee. I am starting to see a lot of her articles floating around. She has several videos and articles about the 2nd Amendment and the Supreme Court.

Comments to the Tennessee Attorney General

If you do a search for her name on youtube you get numerous videos.

In this video she explains why Federal Gun Control is unlawful.

Anyhow, I just thought I would share what this lady has to say. I thought it was pretty well thought out and found in interesting that she is an attorney and bases her arguments on the Federalist Papers.

 

[xfyrfiter]

We need this lady to run for president.

 

[El Mariachi]

Is she like Colion cool?....

 

[Sam1911]

Is there a transcript or explanation of her position? The supremacy clause has been getting a lot of attention recently, but a lot of it has been rather backward. I'd like to read what she's saying, but can't watch the vids at the moment.

 

[NelsErik]

She has a bunch of articles posted on her website of her position, but I don't think she has the transcript of that speech on there.

 

[Liberty1776]

pardon my language, but right or wrong there isn't any unAmerican piece o'crap serving in Congress or the Senate or anywhere in the administration that could sensibly and in a scholarly manner refute her...

 

[hso]

Interesting.

Whether she's right or not, it isn't useful as useful as it would have been 9 months ago.

 

[Bubba613]

Anyone who says she ignores the opinions of the Supreme Court is an obvious whack job to me. The Court determines what is constitutional. Not some broad waving 200 year old pamphlets.

 

[ATBackPackin]

Anyone who says she ignores the opinions of the Supreme Court is an obvious whack job to me. The Court determines what is constitutional. Not some broad waving 200 year old pamphlets.

Then what exactly is the point in having a Constitution?

 

[toiville2feathers]

I'm a little skeptical as to her opinion on the power of the supreme court. They are an arm 0f our government that serves as a check of the legislative and executive branch. All three branches are also subject to the oversight of each other. Now as she explains it and I believe there is some valid arguements to what she said, I now have this question.
What effect would this have on the DC vs Heller and McDonald vs Chicago? Based on her points both these decisions could be reversed with not to much trouble. As far as trouble and impeachment goes we have tried to impeach several presidents and vice presidents and also some Senators and Representatives but they have trouble disciplining there own.
There has been Supreme Court rulings over turned in the past, even amendments (case in point, prohibition).
So i believe we need to be very careful of what we embrace and how. We need to be very careful what we wish for also. It necessary to keeep cool heads in order to prevail.

 

[doc2rn]

The cliff notes of her speech are posted under the video on the bottom link (she is an attorney).

 

[fanchisimo]

I too have felt that the Supreme Court having the final say on constitutionality can be dangerous. They seem to reluctant to change their minds or review a past Supreme Court ruling. Not saying they don't, just seem reluctant... really reluctant. I like how she says that the states are responsible for keeping the entire government in check. Unfortunately, I think they've been lazy and have let the federal grow too strong.

 

[beatledog7]

Anyone who says she ignores the opinions of the Supreme Court is an obvious whack job to me. The Court determines what is constitutional. Not some broad waving 200 year old pamphlets.

Bubba613, you could not in a million years be more skewed in your reasoning about anything. That 200-yr-old pamphlet is the overriding and core law of the land. It's sad but revealing that you describe it as you do.

The key to why you're getting it wrong is that the Supreme Court no longer simply applies Constitutional wording to laws made by Congress and the States. If it kept to that--deciding what laws are in keeping with what the document says, they'd be within their authority. But as the lady points out, SCOTUS overreached that barrier long ago. Now they believe, and have convinced you and millions of others, that they have the power to claim ownership of what the Constitution means, regardless of what it says.

If you don't see deciding what the Constitution means as being far different from deciding whether a given law falls within the limits of what the Constitution says, then please go reread the thing and try to find that power in any federal official's hands. You won't find it, because the Constitution would have been unnecessary if the power to determine its meaning was meant to be placed in the hands of future judges.

The Constitution, only upon ratification by the States, created the entire federal government, including the Supreme Court. It gave that federal government very limited powers, as the lady said. That was on purpose. It was done to make sure the people and the States could throttle any and all attempts of any branch of the federal government to step outside its Constitutional boundaries. The Justices are key members of one of those branches; therefore, they are subject to the power of the entities that created their offices. That's WE THE PEOPLE.

How can a group of nine black-robed attorneys be masters of the document that created their positions and which they swear an oath to uphold? The notion of SCOTUS having such power is absurd on its face.

 

[Bubba613]

Beatledog, I am sorry for the confusion. She is referring to the Federalist Papers as her guiding principles, not SUpreme Court decisions. But the Federalist papers are not the law of the land, any more than the correspondence of Jacob Broom is. The U.S. Constitution, as interpreted by the Supreme Court is the supreme law of the land. The term "pamphlet" in my post referred to the Papers, not the Constitution, which in no way could be construed to be a pamphlet.

 

[beatledog7]

My bad then, but she does wave the Constitution around, and it is the size of a pamphlet. I'm still right though that SCOTUS has no interpretive authority over it.

The Federalist papers are not law, it is true, but they are among the best sources we have for confirming what the words in the Constitution were meant to do and why things are either in there or not in there. SCOTUS decisions are not even close to that.

 

[Sam1911]

Unfortunately this debate was lost in 1803.

It would be quite an exciting ... and disruptive, and unsettled, and scary, and cool, and troubling, and exhilarating ... thing for 210 years of precedent to be overturned and to watch the construct that is the current US federal government do a quick impersonation of the Tacoma Narrows Bridge.

But guys ... that's just not happening.

 

[Bubba613]

I'm still right though that SCOTUS has no interpretive authority over it.

As a matter of fact that is not correct. They have that authority ever since Marbury v Madison.

 

[beatledog7]

But that's a case they decided; they can't give themselves authority! Where is it in the Constitution?

 

[beatledog7]

Sam,

Once upon a time, slavery was legal and abortion was not--those debates were settled. We had prohibition for a while, and now we don't. So what is settled about anything?

 

[Sam1911]

Yup. That's for true. My hat's off to all who will try.

 

[Frank Ettin]

...How can a group of nine black-robed attorneys be masters of the document that created their positions and which they swear an oath to uphold? The notion of SCOTUS having such power is absurd on its face.

Except that's what the Founding Fathers provided in the Constitution (Article III, Sections 1 and 2):

Section 1. The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish....

Section 2. The Judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution,...

And thus disagreements concerning the application of the the Constitution to the resolution of particular disputes is the province of the federal courts. The exercise of judicial power and the deciding of cases arising under the Constitution necessarily involves interpreting and applying the Constitution to the circumstances of the matter in controversy in order to decide the dispute.

And that is no doubt what the Founding Fathers would have expected. Many were lawyers. They were familiar with English Common Law (the basis of out legal system) and that for a long time it had been customary for the courts, under the Common Law and understood the exercise of judicial power in such terms.

...The Federalist papers are not law, it is true, but they are among the best sources we have for confirming what the words in the Constitution were meant to do and why things are either in there or not in there...

Perhaps to a point. But they were also essays written for the purpose of advocating for the ratification of the Constitution and need to be understood as such.

But that's a case [Marbury v. Madison] they decided; they can't give themselves authority! Where is it in the Constitution?

Except:

• In its ruling in Marbury the Supreme Court was merely exercising its explicit authority given it in the Constitution to exercise judicial power to decide cases arising under the Constitution. In doing so and reaching its decision in Marbury it was applying established Common Law principles -- just as courts were, and are, expected to do.
  
  
• And as Marshall pointed out, to decide the matter in Marbury the Court had to either sustain an act of Congress or conclude that the act of Congress was contrary to the Constitution, and thus sustain the Constitution. Either the act of Congress was valid, yielding one result, or it was invalid as conflicting with the Constitution, yielding a different result.
  
  
• In other words, the Court could not, in Marbury, decide the case without choosing either a law enacted by Congress or the Constitution.
  
  
• And without judicial review under the Constitution of acts of Congress or other actions of public officials, what would be the remedy for such a law or action that one believed was repugnant under the Constitution? Do we have a civil war over every disagreement about the constitutionality of a law? Does each person get to decide for himself whether a law is constitutional and therefore whether to abide by it?

 

[beatledog7]

Frank, I respect your law training, but it makes you see very simple things in ways that are overly complex. Have you forgotten one of the main reasons we have a Constitution of the United States was that the founders saw what English courts could do to people without a codified system; i.e., under Common Law. Where in the Constitution does it discuss courts' responsibility to establish common law? Nowhere; it's absent.

...in Marbury the Court had to either sustain an act of Congress or conclude that the act of Congress was contrary to the Constitution, and thus sustain the Constitution. Either the act of Congress was valid, yielding one result, or it was invalid as conflicting with the Constitution, yielding a different result.

In other words, the Court could not, in Marbury, decide the case without choosing either a law enacted by Congress or the Constitution.

So, the Court decided it couldn't determine a law passed by Congress was in violation of its limited power, but it could decide that the Constitution's words were simply wrong. In doing that, the Court proclaimed itself in possession of powers it was never granted by the Constitution, powers it needed before it could make that determination. Therein lies the root of federal overreach.

The Constitution is far simpler than the practice of law tries to make it. You believe this self-granted power of SCOTUS is valid because otherwise...

...what would be the remedy for such a law or action that one believed was repugnant under the Constitution

If by this you mean, what do we do if Congress or a State passes a law that is specifically not authorized under the Constitution, the answer is simple. SCOTUS dutifully strikes it down based on it not being in keeping with what the Constitution says.

If by this you mean, what do we do if Congress or a State passes a law that is specifically authorized under the Constitution but which we see as repugnant and wish to have struck down. To see this power in SCOTUS is incorrect. The mechanism for such has always been in the document itself, and it's still there.

Article V

The Congress, whenever two thirds of both houses shall deem it necessary, shall propose amendments to this Constitution, or, on the application of the legislatures of two thirds of the several states, shall call a convention for proposing amendments, which, in either case, shall be valid to all intents and purposes, as part of this Constitution, when ratified by the legislatures of three fourths of the several states, or by conventions in three fourths thereof, as the one or the other mode of ratification may be proposed by the Congress;

Just as you don't find "interpretive" power for SCOTUS in the Constitution, you don't find a role for it in the Amendment process. If the nine members of SCOTUS are meant to have such far-reaching power over the Constitution as you suggest, why don't they have a role in amending it?

The lady is right.

 

[Bubba613]

Frank, I respect your law training, but it makes you see very simple things in ways that are overly complex. Have you forgotten one of the main reasons we have a Constitution of the United States was that the founders saw what English courts could do to people without a codified system; i.e., under Common Law. Where in the Constitution does it discuss courts' responsibility to establish common law? Nowhere; it's absent.

You're going to lose this argument. We rely on common law all the time. Why is it you can use deadly force only to neutralize an immediate threat of death or severe bodily harm? Who decided that was the standard? Is it in the Constitution somewhere?
No, it is a common law rule. Just one example of where English common law informs virtually the entire American jurisprudence system.

 

[beatledog7]

Bubba,

Your point about self defense proves my point. There's nothing in the common law applied to SD that violates anything in the Constitution. Whatever the document doesn't specifically address is left to the States and the people. In such cases, common law has its place. When Federal courts, especially SCOTUS, use supposed "common law" to cross constitutional boundaries, as Frank insists we must, that's where overreach originates.

 

[Bubba613]

I give up.
Yeah you're right. We dont need no stinkin Supreme Court. Let's just read the Federalist Papers and make our decisions that way.:banghead: