Can Supreme Court Justices truly rise above their personal ideology?

[Moonbeam]

"The Constitution preserves the advantage of being armed which Americans possess over the people of almost every other nation. . . (where) the governments are afraid to trust the people with arms."

M: We live in a military industrial complex with the largest military in the world. We have nuclear weapons, poison gas, weaponized anthrax, sonic and laser weapons, aircraft carriers submarines and fleets of stealth bombers. Your hand gun doesn't mean shit.

"No free man shall ever be debarred the use of arms."

M: Join a well regulated militia, the army navy marines or air force.

"When the resolution of enslaving America was formed in Great Britain, the British Parliament was advised by an artful man, who was governor of Pennsylvania, to disarm the people; that it was the best and most effectual way to enslave them; but that they should not do it openly, but weaken them, and let them sink gradually...I ask, who are the militia? They consist of now of the whole people, except a few public officers."

M: Militia mob rabble because the well regulated part is out. Who are the well regulated militia should be the question.

"That the People have a right to keep and bear Arms; that a well regulated Militia, composed of the Body of the People, trained to arms, is the proper, natural, and safe Defense of a free state."

M: "Was" proper to the defense of the state, times change, and it was still referred to as trained in arms as a body that was regulated, not a bunch of gun religion nuts in their homes.

"If circumstances should at any time oblige the government to form an army of any magnitude, that army can never be formidable to the liberties of the people while there is a large body of citizens, little if at all inferior to them in discipline and the use of arms, who stand ready to defend their rights and those of their fellow citizens."

M: Such an if will now never arise unless we are allowed to carry nukes, poison gas, sonic weapons, lasers etc. or hire an army from China.

"The said Constitution [shall] be never construed to authorize Congress to infringe the just liberty of the press, or the rights of conscience; or to prevent the people of the United States, who are peaceable citizens, from keeping their own arms."

M: Gun regulation is attempted where the people aren't peaceful but are killing those who are and are prevented from doing so by the tyranny of a religious majority who worship a past that no longer applies.

"[A]rms discourage and keep the invader and plunderer in awe, and preserve order in the world as well as property. . . Horrid mischief would ensue were the law-abiding deprived of the use of them."

They used to and now the horrible mischief results from those who have the guns.

"Laws that forbid the carrying of arms... disarm only those who are neither inclined nor determined to commit crimes... Such laws make things worse for the assaulted and better for the assailants; they serve rather to encourage than to prevent homicides, for an unarmed man may be attacked with greater confidence than an armed man."

M: Crimes are created by law. Forbid law and there will be no crimes. Rural America has given way to large cities where the police perform this function. Times change.

"A militia when properly formed are in fact the people themselves . . . and include all men capable of bearing arms. . . To preserve liberty it is essential that the whole body of people always possess arms... The mind that aims at a select militia, must be influenced by a truly anti-republican principle."

M: Clearly the words of somebody who knew that a properly formed militia isn't in fact the people and wanted to pretend that is what was meant and another fool who wasn't being shot at by his own people.


The militia, who are in fact the effective part of the people at large, will render many troops quite unnecessary. They will form a powerful check upon the regular troops, and will generally be sufficient to over-awe them."

M: Right, the army is terrified of hand guns because, some how, they can survive a nuke.

"Who are the militia? Are they not ourselves? Congress have no power to disarm the militia. Their swords and every other terrible implement of the soldier, are the birthright of an American . . . . The unlimited power of the sword is not in the hands of either the federal or state governments, but, where I trust in God it will ever remain, in the hands of the people."

M: We see again the obvious implication that the militia is not the people and the attempt to blur that fact.



"As the military forces which must occasionally be raised to defend our country, might pervert their power to the injury of their fellow citizens, the people are confirmed by the next article (of amendment) in their right to keep and bear their private arms."

M: Occasionally arise? What a joke. We have a permanent military stationed here and all over the world, 24 7 for decades.

"Before a standing army can rule, the people must be disarmed; as they are in almost every kingdom in Europe. The supreme power in America cannot enforce unjust laws by the sword; because the whole body of the people are armed, and constitute a force superior to any band of regular troops that can be, on any pretense, raised in the United States. A military force, at the command of Congress, can execute no laws, but such as the people perceive to be just and constitutional; for they will possess the power."

M: Right, except day by day we have become more a fascist state in spite of ourselves. This is a religious belief that has no bearing in reality at all. The people are asleep and there will be no revolution. Guns serve now to kill each other in the streets randomly.

In the last Supreme Court decision regarding the Second Amendment, UNITED STATES v. MILLER, 307 U.S. 174 (1939), the court stated this in their decision:

"The signification attributed to the term Militia appears from the debates in the Convention, the history and legislation of Colonies and States, and the writings of approved commentators. These show plainly enough that the Militia comprised all males physically capable of acting in concert for the common defense."

M: Good, that tells us that the individual gun owner in the personal use of his gun is not acting in concert with anybody for any defense of the nation and has no right to the use of a gun. You fail at reading comprehension.

A: As for your argument over the mention of a militia in the amendment:

First: The militia referred to in the Bill of Rights is every able bodied man able to take up arms. .

M: You mean, take up arms in concert with others in the common defense as in a mobilization of a citizen army. You fail at reading comprehension


A: What if this were an amendment?

"A well-educated electorate being necessary to the preservation of a free society, the right of the people to read and compose books shall not be infringed."

Would that mean only the well educated had the right to read and compose books???

Of course not. The right to read books applies to all so a well educated society could exist and preserve a free society (something that's failed you, obviously).

"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."

M: What you fail to grasp is that to be well educated an individual effort must be made. To be well educated you have to educate yourself. But to be well regulated you have to be regulated by an external force. You need to be under command. Gun owners are under no body that regulates them or even unites them in some common defense. The time when that might have happened is gone. The only folk regulated now are the police and military. They can carry guns.

A: The Second Amendment CLEARLY applies to THE PEOPLE. Not a militia. It exists so a militia may be formed from amongst THE PEOPLE. And in EVERY other Amendment, "THE PEOPLE" are individual citizens. A militia is a collective. The PEOPLE are individuals.

M: Rubbish. The militia today doesn't use the guns it brings from home. The government buys they by the billions and equips them and does the training and regulating. The notion of gun ownership for common defense today is a total joke.

A: There is NO SUCH THING as a "collective right" nor is there ANY part of the Bill of Rights that grants rights to the government. No, the Bill of Rights exists to preserve INDIVIDUAL rights.

M: Have you been able to buy a nuke? If you can't own a nuke you have no right of self defense because only a nuke provide the MAD defense.

A: I want you to post ONE quote from a single founding father that shows otherwise. Just one.

Oh wait, you can't...

In short, you fail. Miserably. And so does the Author of the article you posted. "Dead heat" my ass.

M: I want you to show me one single quote from the founding fathers that supports the law where blacks are 2/3 rds of a person, or whatever it was.

You can take your quotes and shove them up your ass. I am not a religious person and do not worship the founding fathers. Times change and they would be sick if they could see how many folk in the ghettos die because of the stupid worship of a past that no longer has any reality. We are a military industrial state and you are nothing but a slave. You don't have life liberty and the pursuit of happiness because you don't even have the guarantee of a job and there's no free land to homestead. Money is now God and selling guns is all about money.

 

[MJinZ]

What you think is clear, serious Constitutional scholars across many years dispute.



You've provided quotations, but many of them are themselves subject to interpretation. Further, you haven't provided a random set of quotations, only a set the you believe supports what you WANT the 2nd Amendment to mean.

You are like ideologues of all stripes: You insist that what YOU believe is "truth," and that what anyone else believes is true must be a product of their intellectual dishonesty. Kind of like religious fanatics insist that their set of beliefs is "the one, true faith."

But seriously, who really gives a shit about the original intent of the constitution?

Hey, originally, it was intended that Blacks would walk around as Slaves and rub feet.

Progress must be made and issues that were never even dreamt of by the people who drafted such an antiquated document are going to be an inevitability.

What's next, the rights of human clones? Harvesting organs?

What does the the Constitution have to say about that? Probably little to nothing, considering those old fuckers rolling over in their grave become less relevant as progress is made.

 

[shira]

But seriously, who really gives a shit about the original intent of the constitution?

Hey, originally, it was intended that Blacks would walk around as Slaves and rub feet.

As a practical matter, you're absolutely correct. If a computer program could be devised that everyone agreed was 100% objective, and it determined that (for example) women have a Constitutionally protected absolute right to 1st-trimester abortions, that wouldn't remotely settle the matter.

 

[PokerGuy]

You've provided quotations, but many of them are themselves subject to interpretation. Further, you haven't provided a random set of quotations, only a set the you believe supports what you WANT the 2nd Amendment to mean.

Amused provided a bunch of quotes from those involved in creating the constitution and the bill of rights showing their intent. Go ahead and provide us with a similar set of quotes from those involved that show how they never intended it to be an individual right. I'll be anxiously waiting.

You are like ideologues of all stripes: You insist that what YOU believe is "truth,"

You mistake fact for ideology.

There are definitely grounds for disagreement or coming to different conclusions about the same basic facts, but when you read the opinions of the justices in the heller case and others, you quickly see that the 4 dissenting ones have no basis in the law, they simply want to change the laws to suit their ideology. Like Amused pointed out, not one of them cited laws, actual writing or segments of the constitution as the basis for their reasoning, they just threw out left wing drivel.

 

[CanOWorms]

Amused provided a bunch of quotes from those involved in creating the constitution and the bill of rights showing their intent. Go ahead and provide us with a similar set of quotes from those involved that show how they never intended it to be an individual right. I'll be anxiously waiting.

Should their intent matter? The classic argument from the conservative justices, especially Scalia, is that basically only the text matters. He gets into a fit when people talk about intent.

 

[PokerGuy]

Should their intent matter? The classic argument from the conservative justices, especially Scalia, is that basically only the text matters. He gets into a fit when people talk about intent.

Intent matters only if the actual text is not 100% clear. With such a broad document there are bound to be things that are not specifically spelled out and clear. That's where you use intent. Otherwise Scalia is right, intent does not matter, the law does. Intent is used to fill in the grey areas where the law is not clear.

 

[CanOWorms]

Intent matters only if the actual text is not 100% clear. With such a broad document there are bound to be things that are not specifically spelled out and clear. That's where you use intent. Otherwise Scalia is right, intent does not matter, the law does. Intent is used to fill in the grey areas where the law is not clear.

Scalia tends to not go that far. He will only look beyond the text if it is something like a scrivener's error or a literal reading would be unconstitutional. It doesn't seem that those situations would be applicable to the Constitution.

According to his textualist philosophy, intent should be avoided. Looking into intent has generally been what those here call liberal judges do (like Stevens).

 

[shira]

Amused provided a bunch of quotes from those involved in creating the constitution and the bill of rights showing their intent. Go ahead and provide us with a similar set of quotes from those involved that show how they never intended it to be an individual right. I'll be anxiously waiting.

You mistake fact for ideology.

There are definitely grounds for disagreement or coming to different conclusions about the same basic facts, but when you read the opinions of the justices in the heller case and others, you quickly see that the 4 dissenting ones have no basis in the law, they simply want to change the laws to suit their ideology. Like Amused pointed out, not one of them cited laws, actual writing or segments of the constitution as the basis for their reasoning, they just threw out left wing drivel.

Not one of them cited laws??? Clearly, you're lying when you say you've read Heller. Let me provide a few excerpts of Stevens' dissent in Heller:

http://www.scotusblog.com/wp-content/uploads/2008/06/07-290.pdf

In 1934, Congress enacted the National Firearms Act,
the first major federal firearms law.1 Upholding a conviction
under that Act, this Court held that, “n the absence
of any evidence tending to show that possession or use of a
‘shotgun having a barrel of less than eighteen inches in
length’ at this time has some reasonable relationship to
the preservation or efficiency of a well regulated militia,
we cannot say that the Second Amendment guarantees the
right to keep and bear such an instrument.”

So, this isn't citing laws?

The text of the Second Amendment is brief. It provides:
“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.”
Three portions of that text merit special focus: the introductory
language defining the Amendment’s purpose,
the class of persons encompassed within its reach, and the
unitary nature of the right that it protects.
“A well regulated Militia, being necessary to the security of
a free State”

The preamble to the Second Amendment makes three
important points. It identifies the preservation of the
militia as the Amendment’s purpose; it explains that the
militia is necessary to the security of a free State; and it
recognizes that the militia must be “well regulated.” In all
three respects it is comparable to provisions in several
State Declarations of Rights that were adopted roughly
contemporaneously with the Declaration of Independence.

Those state provisions highlight the importance members
of the founding generation attached to the maintenance of
state militias; they also underscore the profound fear
shared by many in that era of the dangers posed by standing
armies. While the need for state militias has not been a matter of significant public interest for almost two centuries,
that fact should not obscure the contemporary
concerns that animated the Framers.
The parallels between the Second Amendment and
these state declarations, and the Second Amendment’s
omission of any statement of purpose related to the right
to use firearms for hunting or personal self-defense, is
especially striking in light of the fact that the Declarations
of Rights of Pennsylvania and Vermont did expressly
protect such civilian uses at the time. Article XIII of
Pennsylvania’s 1776 Declaration of Rights announced that
“the people have a right to bear arms for the defence of
themselves and the state,” 1 Schwartz 266 (emphasis
added); §43 of the Declaration assured that “the inhabitants
of this state shall have the liberty to fowl and hunt
in seasonable times on the lands they hold, and on all
other lands therein not inclosed,” id., at 274. And Article
XV of the 1777 Vermont Declaration of Rights guaranteed
“[t]hat the people have a right to bear arms for the defence
of themselves and the State.” Id., at 324 (emphasis added).
The contrast between those two declarations and the
Second Amendment reinforces the clear statement of
purpose announced in the Amendment’s preamble. It confirms that the Framers’ single-minded focus in crafting
the constitutional guarantee “to keep and bear arms” was
on military uses of firearms, which they viewed in the
context of service in state militias.
The preamble thus both sets forth the object of the
Amendment and informs the meaning of the remainder of
its text. Such text should not be treated as mere surplusage,
for “t cannot be presumed that any clause in the
constitution is intended to be without effect.” Marbury v.
Madison, 1 Cranch 137, 174 (1803).

So, Stevens doesn't cite segments of the Constitution? He doesn't discuss their meaning and provide a historical analysis? Again, you were clearly lying.

The above quotations are only a small sample of Stevens' dissent - he goes on and on citing words from the Constitution and addressing the majority's points one by one. The fact that you and other on this board make characterizations about the dissent which are clearly contrary to demonstrable fact proves that you haven't bothered to actually read the decisions and are blathering out of pure ignorance.

What it comes down to is this: You insist the 2nd Amendment means what you want it to mean. And just as a demagogue stirs up jingoistic emotions in a time of war by de-humanizing the enemy, in an attempt to dismiss opposing views out of hand you "de-intellectualize" serious thinkers by claiming that they're not really playing by accepted intellectual rules.

Frankly you're methods are pretty transparent and awfully pathetic.

 

[PokerGuy]

Frankly you're methods are pretty transparent and awfully pathetic.

Basically, they provide convoluted logic to arrive at their pre-determined point of view. There is no actual basis in law. Your quotes from Stevens' are a perfect example of such drivel. Scary to think that our rights are in the hands of people so willing to come up with their own constitution whenever they feel like it.

 

[shira]

Basically, they provide convoluted logic to arrive at their pre-determined point of view. There is no actual basis in law. Your quotes from Stevens' are a perfect example of such drivel. Scary to think that our rights are in the hands of people so willing to come up with their own constitution whenever they feel like it.

I see. When a conservative justice quotes sections from the Constitution and discusses the historical meanings of words and phrases, it's disciplined "originalism." But when a liberal justice does exactly the same thing, it's drivel.

Clearly, you are a clear thinker. Clearly, your case is slam dunk.

But I'm confused: Since it's also a slam dunk that you lied when you wrote that you'd read Heller, how could you possibly know that what Scalia wrote is wonderful while what Stevens wrote was drivel? Are you clairvoyant?

 

[daishi5]

I see. When a conservative justice quotes sections from the Constitution and discusses the historical meanings of words and phrases, it's disciplined "originalism." But when a liberal justice does exactly the same thing, it's drivel.

Clearly, you are a clear thinker. Clearly, your case is slam dunk.

But I'm confused: Since it's also a slam dunk that you lied when you wrote that you'd read Heller, how could you possibly know that what Scalia wrote is wonderful while what Stevens wrote was drivel? Are you clairvoyant?

I find the methods to be amusing. When we look at separation of church and state, we use the seperate writings of Franklin to determine that the intent was not only to prevent the state from setting up a religion, but also to prevent religion from controlling the state. Stevens would never argue that because the constitution does not say that religion cannot influence the government, that churches are free to campaign for control of the government. However, when we go down just one amendment, suddenly the statements made by the founders regarding the right to protect oneself provide no guidance, and the mere lack of a statement is construed as proof that it was intentionally not protected. Do you see the difference in how they do this?

 

[PokerGuy]

But I'm confused

Correct so far.

 

[Carmen813]

No. You will always be impacted by your personal beliefs in some way, Supreme Court Justice or Supreme Court Janitor.

 

[shira]

I find the methods to be amusing. When we look at separation of church and state, we use the seperate writings of Franklin to determine that the intent was not only to prevent the state from setting up a religion, but also to prevent religion from controlling the state. Stevens would never argue that because the constitution does not say that religion cannot influence the government, that churches are free to campaign for control of the government. However, when we go down just one amendment, suddenly the statements made by the founders regarding the right to protect oneself provide no guidance, and the mere lack of a statement is construed as proof that it was intentionally not protected. Do you see the difference in how they do this?

I'm not sure why you're making the bolded argument. Stevens contrasts the wording of the 2nd Amendment with the wording of contemporaneous states' declaration of rights to point out that the distinction between private-purpose and public-purpose use of firearms was well understood and that those concerned with private-use rights had drafted rights documents that specifically reserved such private rights; the fact the the 2nd Amendment omits such wording is therefore compelling. But that's merely where Stevens begins. He goes on for another 40 pages addressing - point by point - the majority argument. To characterize his dissent as simply making the "omission" argument you point out is a gross over-simplification.

And, lest we forget, Breyer not only joins Stevens in his dissent, but he adds his own 44 pages to argue another point:

The second independent reason is that the protection
the Amendment provides is not absolute. The Amendment
permits government to regulate the interests that it
serves. Thus, irrespective of what those interests are—
whether they do or do not include an independent interest
in self-defense—the majority’s view cannot be correct
unless it can show that the District’s regulation is unreasonable
or inappropriate in Second Amendment terms.
This the majority cannot do.

These dissenters are serious minds making serious arguments. To dismiss their arguments as "liberal talking points" demonstrates only how shallow the minds of some of the ATPN right-wing posters are.

 

[PokerGuy]

And, lest we forget, Breyer not only joins Stevens in his dissent, but he adds his own 44 pages to argue another point:

Yes, another prime example of liberal stupidity:

the right of the people to keep and bear Arms, shall not be infringed.

Somehow, using Breyer's tortured logic, it becomes:

the protection the Amendment provides is not absolute. The Amendment permits government to regulate the interests that it serves.

By his logic, cities/states/fed can put whatever restrictions they want on freedom of speech, since the right is not absolute. Clearly, he doesn't understand that "not absolute" means there's an extremely high burden to justify why the rights have to be taken away, not just any place can willy nilly do it.


That's how you end up with idiotic rulings and people keep their constitutional rights by the slimmest 5-4 margins.

 

[woolfe9999]

I find the methods to be amusing. When we look at separation of church and state, we use the seperate writings of Franklin to determine that the intent was not only to prevent the state from setting up a religion, but also to prevent religion from controlling the state. Stevens would never argue that because the constitution does not say that religion cannot influence the government, that churches are free to campaign for control of the government. However, when we go down just one amendment, suddenly the statements made by the founders regarding the right to protect oneself provide no guidance, and the mere lack of a statement is construed as proof that it was intentionally not protected. Do you see the difference in how they do this?

Statements of intent outside of a document only matter when a text requires clarification as to meaning. This is true in interpretation of laws as well as interpretation of contracts. In the case of the Second Amendment, the purpose of conferring the right to bear arms is stated clearly in the Amendment - its purpose is to maintain state militias. If there were no statement of purpose, then statements of intent outside the document would help our interpretation, but that is not the case here. I agree with the liberals up this point - that the purpose of the SA is to maintain state militias and that statements of intent outside the document are irrelevant.

That, however, does not resolve the question of whether the Second Amendment only protects the right to bear arms of people who are in militias, or if it protects it for everyone. I don't agree with Stevens on the end conclusion because the SA does frame the actual protection in the broadest terms ("the people."). I think the framers wanted to maintain state militias, and because militias in those days employed people who used their own, privately owned firearms, the framers felt it necessary to not allow the government to take away people's guns, because that then would make it impossible to form militias. Of course, the original purpose of the Second Amendment is essentially moot. However, mootness of a law's original purpose does not moot the effect of a law itself. When the original purpose it mooted, a law can be changed through a democratic process, and if it isn't, then it continues to be in effect, the mootness of its original purpose notwithstanding. That is the present state of affairs with the SA so far as I'm concerned.

- wolf

 

[Hayabusa Rider]

This is baloney. Every person believes in the idealogy of the party it believes in. You are no different................

I don't believe in parties. That's my party.

Anyway,
Woolfe, I agree that the Constitution is not a well defined document and therefore open to interpretation. That can of course be good or bad depending on the circumstance. The problem is that the principles embodied in it aren't so ambiguous. The intent of the founders has been written and indeed used in the past to justify certain doctrines which aren't part of the Constitution itself.

I'll poke at a few people with this one. The Second Amendment has been cited as having a strict lack of explicit approval for personal gun ownership, however in another thread it was pointed out from historical quotes that the founders felt that the people have the right to be armed. That's fairly clear. So something which is written is clarified in context, yet that does not count. Ok, well how about Separation of Church and State? It doesn't exist. As you know it's a courts interpretation based on writings of Jefferson and a few others, but not mentioned in the Constitution (Having Christmas displays does NOT establish a state religion) yet it exists as a legal principle enforceable today. The Constitution explicitly states freedom OF religion, not freedom from it. Constitutionally, public schools could teach Creationism as long as it doesn't offer it up as THE correct answer.

Would I like to see religion play a larger part in government? No, not at all. I'm content with the state of things and I believe religion is a personal matter best dealt with outside government institutions.

So in that regard I too am sometimes more "liberal" in my reading of the intent of Constitution in the context of the founders. What I dislike is that "that old document is worthless" That document kept the government at least minimally accountable. Mao and Stalin's policies aren't comparable with it. I would rather change a law than to creatively interpret black as white because white is black if all the lights are out. When one gets too far afield from original intent then the Constitution is a flying buttress or Frisbee or anything else that the Judge calls it. All judge needs to say:

War is Peace
Freedom is Slavery
Ignorance is Strength

The Constitution says so.

A Living document? Perhaps, but that carries the implicit possibility of a nasty mutation.

 

[daishi5]

I'm not sure why you're making the bolded argument. Stevens contrasts the wording of the 2nd Amendment with the wording of contemporaneous states' declaration of rights to point out that the distinction between private-purpose and public-purpose use of firearms was well understood and that those concerned with private-use rights had drafted rights documents that specifically reserved such private rights; the fact the the 2nd Amendment omits such wording is therefore compelling. But that's merely where Stevens begins. He goes on for another 40 pages addressing - point by point - the majority argument. To characterize his dissent as simply making the "omission" argument you point out is a gross over-simplification.

And, lest we forget, Breyer not only joins Stevens in his dissent, but he adds his own 44 pages to argue another point:



These dissenters are serious minds making serious arguments. To dismiss their arguments as "liberal talking points" demonstrates only how shallow the minds of some of the ATPN right-wing posters are.

I am pointing out that different methods are used to determine an amendments reach based upon the Justice's belief. In the first, they use the founders statements to determine an intent that is beyond what is stated in the amendment. In the second, they ignore the founders statements, and rely on the lack of words limit it to only what is said.

You are aware that the 1st amendment does not actually say anything about churches staying out of politics right?

 

[shira]

I am pointing out that different methods are used to determine an amendments reach based upon the Justice's belief. In the first, they use the founders statements to determine an intent that is beyond what is stated in the amendment. In the second, they ignore the founders statements, and rely on the lack of words limit it to only what is said.

You are aware that the 1st amendment does not actually say anything about churches staying out of politics right?

Yes. And as the article's author points out, nothing in the Constitution proscribes the FEDERAL government from denying equal protection of its laws.

Yet somehow, you don't hear many people objecting to these "extensions" of the Constitution.

 

[shira]

Yes, another prime example of liberal stupidity:
Somehow, using Breyer's tortured logic, it becomes:


By his logic, cities/states/fed can put whatever restrictions they want on freedom of speech, since the right is not absolute. Clearly, he doesn't understand that "not absolute" means there's an extremely high burden to justify why the rights have to be taken away, not just any place can willy nilly do it.


That's how you end up with idiotic rulings and people keep their constitutional rights by the slimmest 5-4 margins.

How can you possibly claim that Breyer's logic is "tortured" when you haven't read his dissent?

You're what we intellectuals refer to as an ignorant fvck who revels in his ignorant fvck-edness.

 

[woolfe9999]

I don't believe in parties. That's my party.

Anyway,
Woolfe, I agree that the Constitution is not a well defined document and therefore open to interpretation. That can of course be good or bad depending on the circumstance. The problem is that the principles embodied in it aren't so ambiguous. The intent of the founders has been written and indeed used in the past to justify certain doctrines which aren't part of the Constitution itself.

I'll poke at a few people with this one. The Second Amendment has been cited as having a strict lack of explicit approval for personal gun ownership, however in another thread it was pointed out from historical quotes that the founders felt that the people have the right to be armed. That's fairly clear. So something which is written is clarified in context, yet that does not count. Ok, well how about Separation of Church and State? It doesn't exist. As you know it's a courts interpretation based on writings of Jefferson and a few others, but not mentioned in the Constitution (Having Christmas displays does NOT establish a state religion) yet it exists as a legal principle enforceable today. The Constitution explicitly states freedom OF religion, not freedom from it. Constitutionally, public schools could teach Creationism as long as it doesn't offer it up as THE correct answer.

Would I like to see religion play a larger part in government? No, not at all. I'm content with the state of things and I believe religion is a personal matter best dealt with outside government institutions.

So in that regard I too am sometimes more "liberal" in my reading of the intent of Constitution in the context of the founders. What I dislike is that "that old document is worthless" That document kept the government at least minimally accountable. Mao and Stalin's policies aren't comparable with it. I would rather change a law than to creatively interpret black as white because white is black if all the lights are out. When one gets too far afield from original intent then the Constitution is a flying buttress or Frisbee or anything else that the Judge calls it. All judge needs to say:

War is Peace
Freedom is Slavery
Ignorance is Strength

The Constitution says so.

A Living document? Perhaps, but that carries the implicit possibility of a nasty mutation.

I disagree with your assessment of the relationship between church/state separation and the Constitution. The First Amendment contains not one, but two, distinct and separate principles regarding the state's relationship to religion:

"Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof;"

The two are known as the "establishment clause" and the "free exercise clause." The free exercise clause means the state can't abridge people's practice of religion. The establishment clause says the state can't establish a religion, meaning no state religion. I think what you are doing is ignoring the establishment clause, or lumping it in with the free exercise clause.

Where you are partially correct is that the writings of founding fathers on church/state separation have sometimes been used to clarify the breadth and scope of the establishment clause. However, it's most basic meaning - no state religion - is abundantly clear.

- wolf

 

[Hayabusa Rider]

Yes. And as the article's author points out-

A curious thing. The author says that there is no clear historical record of what was meant, however I can produce quite a list of Founders who argue for private citizens to have the right to bear arms and many of those refer to the right of self defense which is not a militia function.

Can you cite many who argued otherwise?

I cannot find many references where Jefferson was contradicted and that the founders wanted meddling of religious institutions in the mechanism of government. Can you?

What you have produced is an individual who is incapable of looking at context and assumes that everyone else is likewise.

That's because if he did then the Chicago gun law would be obviously against the Constitution ( again find comparable numbers of people who wrote it what say citizens do not have the right)

He therefore has to deny the historical record and say it doesn't apply. Since he denied it that means that the judges who understood shouldn't have done so.

I suggest that it's entirely Constitutional to throw all who do not belong to one party in jail. After all the Constitution is flexible and there's no historical record to argue against that contention. I define reality and therefore it is.

Nice, eh?

 

[Hayabusa Rider]

The establishment clause says the state can't establish a religion, meaning no state religion. I think what you are doing is ignoring the establishment clause, or lumping it in with the free exercise clause.

IMO you are not reading the language here. The establishment clause prohibits the establishment of a state religion. What would that be? Christmas displays? Perhaps other references to Hanukkah? That would be a hard sell considering they approved of and participated in religious ceremonies in government such as how the Oath of Office is worded, using a Bible or other religious text, saying a prayer before Congress begins it's daily work.

What the founders did not want was an Anglican Church and all that went with it. To that end the government could not create one. I'm sure you are familiar with how the Catholic, Anglican and other religious institutions came to affect government. I submit they would be more concerned about Islamic governments than a Nativity scene.

The Establishment Clause has come to mean many things, but it does not say that there is to be absolutely no religious references, which some embrace.

Where you are partially correct is that the writings of founding fathers on church/state separation have sometimes been used to clarify the breadth and scope of the establishment clause. However, it's most basic meaning - no state religion - is abundantly clear.

Again establishing a state religion would be creating a state religion. It could be reasonably taken as excluding other religions except one.

If I were a Founder could you reasonably explain to me how "establishing a state religion" is tantamount to allowing a silent time of prayer in a public school which could be opted out of? Which religion does that force one to participate in when one can refuse to join in?

Things have come to mean what they do, but that does not mean that they are what was intended.


Therein lies the difficulty for some. Rather than change the law they would rather disregard it. If I were to say that the overruling document is completely malleable to suit the times (not a claim you made), then why should laws written by Congress or any other body hold sway over my actions? What moral right does someone sitting behind a bench have to tell me how to live? That the social consensus wills it? The ultimate Tyranny of the Majority.

I declare that it has none and therefore no law applies to me. The government has no right, merely a bludgeon.

If I meant that last bit wouldn't that would be a bit scary? Yes, that's taken to the extreme however in spirit that's effectively how many believe. It's perfectly acceptable to freely interpret the Constitution in any way, just so long as it agrees with what they want.

Flexibility yes, meaninglessness no.

 

[woolfe9999]

IMO you are not reading the language here. The establishment clause prohibits the establishment of a state religion. What would that be? Christmas displays? Perhaps other references to Hanukkah? That would be a hard sell considering they approved of and participated in religious ceremonies in government such as how the Oath of Office is worded, using a Bible or other religious text, saying a prayer before Congress begins it's daily work.

What the founders did not want was an Anglican Church and all that went with it. To that end the government could not create one. I'm sure you are familiar with how the Catholic, Anglican and other religious institutions came to affect government. I submit they would be more concerned about Islamic governments than a Nativity scene.

The Establishment Clause has come to mean many things, but it does not say that there is to be absolutely no religious references, which some embrace.



Again establishing a state religion would be creating a state religion. It could be reasonably taken as excluding other religions except one.

If I were a Founder could you reasonably explain to me how "establishing a state religion" is tantamount to allowing a silent time of prayer in a public school which could be opted out of? Which religion does that force one to participate in when one can refuse to join in?

Things have come to mean what they do, but that does not mean that they are what was intended.


Therein lies the difficulty for some. Rather than change the law they would rather disregard it. If I were to say that the overruling document is completely malleable to suit the times (not a claim you made), then why should laws written by Congress or any other body hold sway over my actions? What moral right does someone sitting behind a bench have to tell me how to live? That the social consensus wills it? The ultimate Tyranny of the Majority.

I declare that it has none and therefore no law applies to me. The government has no right, merely a bludgeon.

If I meant that last bit wouldn't that would be a bit scary? Yes, that's taken to the extreme however in spirit that's effectively how many believe. It's perfectly acceptable to freely interpret the Constitution in any way, just so long as it agrees with what they want.

Flexibility yes, meaninglessness no.

I just want to be clear about where we might agree or disagree. You originally said that church/state separation is not grounded in any language in the Constitution. That is where I disagree. The Establishment Clause was, as you correctly state, a reflection of hostility toward anything like the Anglican Church. Opposition to the practices of the Anglican Church as a state religion was, in turn, instrumental to early proponents of church/state separation, i.e. it was the inspiration for the doctrine of church/state separation. In that historical context, opposition to the Anglican church and church/state separation were not cleanly separate issues.

Where I agree, but what put it somewhat different than you, is that establishment clause has been interpreted more broadly than the language and original intent suggests, and that this has, in part, been based on various writings outside the Constitution. The establishment clause was meant to separate church and state, but only at the most basic level - it precludes the single largest affront to church/state separation: an official state religion. Taking it further than that was a matter of going beyond the text. Nonetheless, the text itself is an effort to promote church/state separation at the most basic level. Given that the Constitution expressly forbids a state religion, it is erroneous to say that church/state separation was entirely left out of the Constitution.

You seem to be equating church/state separation only with things like Christmas lights and nativity scenes, which is a really upside down way of looking at it. If you want to promote church/state separation, your very first principle is to ban the establishment of a state religion. Then and only then will you look at ways in which the state might indirectly endorse religion and try to ban those. So the Con accomplishes the first and most basic step right there in its text.

- wolf

 

[bfdd]

Are you really incapable of understanding that highly disciplined minds can read the 2nd Amendment and come to vastly different understandings as to its meaning? Did you even bother to read the article author's evaluation of District of Columbia v. Heller?

To me, the 2nd Amendment's qualifying phrase about "a well regulated militia" greatly constrains the right to bear arms. Otherwise, why would the framer's have bothered to include that phrase? Yet you - apparently - think ignoring the impact of "a well regulated militia" on the 2nd Amendment's meaning is "obvious."

It must be great to live in a world without nuance.

"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."

Let me break it down for you. The first part "A well regulated Militia" is talking about an organized army. The second part "being necessary to the security of a free State" is talking about how a military force is necessary for our government to function and keep us safe. The third part "the right of the people to keep and bear Arms" this is talking about the peoples, you and me, have a natural born right to keep and bear "arms" which is a term used for weapon(specifically a fire arm). The fourth part "shall not be infringed" is stating the 3rd part, the part that brings up our natural born right of being armed, shall not be infringed.

The 2nd amendment is incredibly easy to understand. Your bias is what blinds you from it's true meaning. If you or any others have a hard time figuring that out then may I suggest heading back to elementary school and brush up on your basic fundamentals of our language.