fiddletown said:
Me said:
Show me where that power is granted to the Court in the Constitution.
Article III, 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...."
Article III, Section 2 --
"The judicial power shall extend to all cases, in law and equity,
arising under this Constitution, the laws of the United States, and treaties made, or which shall be made, under their authority;--to all cases affecting ambassadors, other public ministers and consuls;--to all cases of admiralty and maritime jurisdiction;--to controversies to which the United States shall be a party;--to controversies between two or more states;--between a state and citizens of another state;--between citizens of different states;--between citizens of the same state claiming lands under grants of different states, and between a state, or the citizens thereof, and foreign states, citizens or subjects."(empahsis added)
As to the Constitution being "law", note that Article IV provides, in pertinent part that,
"This Constitution, and the laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land;..."
Thus the Framers understood the Constitution to be part of the law, and as such would be applied, as is law in general, by courts in the resolution of cases and controversies.
Getting down to the meat of this, you've presented the part of the Constitution that creates the judiciary and enumerates it's range of power. And, ironically(or by projection), you've emphasized the very part of that Article and Section that says the Court's power lies entirely
UNDER the Constitution and used it to say the Court has power to construe the Constitution as the Court sees fit as if the Court was given power to lord
OVER the Constitution. The Court has been given no such power and neither has any other branch of the Union. All this power you seem to be happy with the Court using is usurpation.
fiddletown said:
Me in response to impeaching errant Justices said:
By voting for people who will accomplish that into positions that have the relevant power in government....
First, let's remind everyone what we're talking about. From your post #41, above, you are proposing to replace, "...errant Justices with honorable Justices who will abide the Constitution and rule according to the Constitution,..."
Since under Article III, Section 1, federal judges, "... shall hold their offices during good behaviour,...", the only way to remove and thus replace them is, "... impeachment for, and conviction of, treason, bribery, or other high crimes and misdemeanors......" (Article II, Section 4) Impeachment requires a simple majority vote of the House of Representatives. Conviction requires a two-thirds majority vote of the Senate following a trial in the Senate.
So in order to carry out your plan, we all would need to elect at least 50% of the members of the House and 67% of the members of the Senate who would be disposed to agree that a federal judge's failure to interpret the Constitution your way constitutes an impeachable "high crime or misdemeanor." Doing so would be a pretty neat trick, aside from the fact that it is debatable whether impeaching judges because you disagree with their application of the law is sound public policy.
No one said it would be easy, but it is the proper procedure as laid out in the Constitution. The avenue exists and thus we must conclude the Founding Fathers meant for us to be able to expel errant justices or any other errant office holder in the Union. Justices may be impeached when ever they are no longer in good behavior. The list of crimes
requiring impeachment in Article II, Section 4, is not a limitation of impeachable crimes or misbehavior. Lack of good behavior from a Justice is reason enough to impeach said justice. Article III, Section 1, makes it requisite that Justices may hold office only during good behavior. Congress may make that call. It's their duty. It's part of the balance of power - checks and balances as it were - that Congress has over the Judiciary and Executive.
Whether it's sound public policy or not doesn't matter. It'll depend upon who and how many believe it's sound public policy. It's undeniable that the Founding Fathers thought such action might need to take place. They put the tools in the Constitution to make it an option.
fiddletown said:
As to the Protection of Lawful Commerce in Arms Act, Congress tends to put all sorts of things into a law's "purpose" clause. But if the constitutionality of that law is challenged, specifically Congress' power to enact it, I believe that it is most likely that a court would find that Congress indeed had the power to enact it under the Commerce Clause -- thus upholding the constitutionality of the Act. Note paragraph (4) of the "purpose" clause invoking the Commerce Clause.
Congress didn't invoke any power it has under the Commerce Clause in paragraph (b)(4) of the
Protection of Lawful Commerce in Arms Act. It mentioned commerce, but didn't draw upon any power it has under that clause. It exercised it's power in the Fourteenth Amendment, Section 5, and in Article IV, Section 1(the Full Faith and Credit Clause).
fiddletown said:
The problem is that the courts would not agree with you. In 1833, in the case of Barron v. Baltimore, the Supreme Court ruled that the Bill of Rights applied only to the federal government and not to any state. That decision has not been overruled and remains the law.
However, beginning in the 1890s the Supreme Court began interpreting the 14th Amendment to incorporate portions of the Bill of Rights, thus making those portions applicable to the states. This has all been done on a piecemeal basis.
So right now, a state would have a good argument that, based on Barron, the Second Amendment (and therefore the ruling in Heller) doesn't apply to the state or its regulation of guns. In order to overcome that argument, the court will have to rule that the Second Amendment is also incorporated in the 14th Amendment and thus applicable to the states through the 14th Amendment.
All the discussions of how the language of the Second Amendment should be interpreted to make it applicable to the states without incorporation, all the arguments that the Second Amendment should logically apply to the states in any event and all the protests that incorporation isn't (or shouldn't) be necessary are really beside the point. Courts will follow precedent. The precedent here, Barron, is that the Seocnd Amendment would not apply. That precedent may be overruled only by the Supreme Court. So the only way a court could invalidate a state gun law based on the Second Amendment would be by finding the Second Amendment incorporated in the 14th Amendment and thus applicable to the states.
The good news is that there are hints in the Court's opinion in Heller that the Second Amendment should be found to be incorporated. The further good news is that a lower court could indeed rule that the Second Amendment is incorporated in the 14th Amendment; and we could thus get a favorable ruling, to start, without going all the way up to the Supreme Court. (Remember that Barron is a Supreme Court decision, so only the Supreme Court would have the authority to overrule it and apply the Second Amendment to the states without incorporation.)
While the operation of the law(your history dissertation) appears to be how it has been,
Barron was torpedoed by the Fourteenth Amendment and had the Court and it's inferior tribunals adjudicated by the Fourteenth, and Congress exercised it's power in Section 5 of the amendment a bit more often, this "incorporation" balderdash would never have taken place. The Court incorporated its own agenda instead.
The Court following its own "precedent" is the Court making up its own law and following it in stead of what the Constitution might actually allow or dictate. I'll grant that some "precedent" might follow the Constitution, and when it does, is it right for the Court to claim it as its own? Ergo, it can't be anything other than agenda, misconstrual, or usurpation when "precedent" doesn't follow the Constitution or constitutional law. As a result, we've got competing legislative branches, neither one caring much about our rights or the limited powers they continually exceed. Only when they cross swords do we see any kind of actual adherence to something in the Constitution if one side or the other believes it'll help their cause. Mostly, We the people lose something when they agree and as often when they are at odds.
fiddletown said:
Analyzing the Constitution in a vacuum is a generally fruitless way to try to understand how the Constitution may be applied to real life matters that affect us. To understand the real world application on the Constitution, one must become familiar with the past ruling of the courts and the rich literature of judicial decisions.
Absolutely. Especially if you wish to continue to allow your rights to be eroded into oblivion and live under the oligarchy the Court is doing its best to become - well, in all fairness, that some on the Court are trying to make it into. In my opinion, following the Constitution as it is written is far better than what has been done to what it truly says - how it has been twisted, ignored, and interpolated.
To all who read this, don't fall for the "real world" citations and the inferred futility of learning what the Constitution truly says. The status quo will be the downfall of this Union, our freedoms, rights, and any hope of passing on a viable life of freedom to our progeny. Learn for your self what the Constituting is. Learn for yourself what has become of the government and what it has cost us in freedom, security, personal sovereignty and money(none of this crap is free).
Those wishing to discourage you are no different than those who have taken this country down to the levels it has sunk to. When enough of us have educated ourselves to the truth of how it is supposed to be, it won't be long before the truth of how it is now will be tossed.
Sam Adams said:
With all due respect, ridiculous or not, we're stuck with the law as it IS, not as we think it is before we open our eyes in the morning.
I happen to agree with you that the 2nd binds by the feds and the states, not just the feds. But that belief, combined with yours and about $3.50 will get one cup of burned coffee at Starbucks.
Pitifully apathetic.
fiddletown said:
Trying to change things isn't a bad idea. We should all be trying to get more gun owners engaged in the fight, even if only by joining the NRA, and other RKBA organization, so that we can demonstrate that we represent a formidable political and economic force.
But in the meantime, we need to do the best we can with what we've got.
A ray of hope, fiddletown. But then this:
fiddletown said:
Clean97GTI said:
...I think incorporation is ridiculous concept that doesn't pass a single logical test when applied to the second amendment.
You're certainly welcome to think that, and as a theoretical proposition, it's has merit. The thing is, nothing is going to get done on the basis of that line of thinking. ...
I'd have to say the prospects of that line of thinking are good. In
DC v. Heller ,at 34, Justice Scalia quoted William Rawle's analysis of the Second Amendment:
“The first [principle] is a declaration that a well
regulated militia is necessary to the security of a free
state; a proposition from which few will dissent. . . .
“The corollary, from the first position is, that the
right of the people to keep and bear arms shall not be
infringed.
“The prohibition is general. No clause in the constitution
could by any rule of construction be conceived
to give to congress a power to disarm the people. Such
a flagitious attempt could only be made under some
general pretence by a state legislature. But if in any
blind pursuit of inordinate power, either should attempt
it, this amendment may be appealed to as a restraint
on both.” Rawle 121–122.20
20 Rawle, writing before our decision in Barron ex rel. Tiernan v.
Mayor of Baltimore, 7 Pet. 243 (1833), believed that the Second
Amendment could be applied against the States. Such a belief would of
course be nonsensical on petitioners’ view that it protected only a right
to possess and carry arms when conscripted by the State itself into
militia service.
Clearly, it's on the mind of the five concurring Justices.
Woody
I see it clearly as fact. Words mean things. Just as numbers have value, you can add, subtract, multiply and divide them. I just do the math. B.E. Wood