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Can Supreme Court Justices truly rise above their personal ideology?

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Hayabusa Rider

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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.
I have no argument with what you say, but I bring up my examples of things which others have spoken against on Constitutional grounds however they then disregard the more substantial historical references regarding the Second as being vague and inconclusive. Obviously personal perspective influences things, however no one seems to be able to present a decent rebuttal.

Just to make clear, I do not endorse religious interference in government nor would I support Creationism being taught as being correct or co-equal in any way to evolution in schools. Those are more serious things than Christmas lights but I'm not sure I want to go into this more deeply when it's likely to be derailed.
 

Fern

Elite Member
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Sep 30, 2003
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I got to this and realized the author can't rise above his OWN ideology.

To call the differences in the Second Amendment debate "a dead heat" is just about as biased as one can be.
-snip-
Agreed.

Fern
 

daishi5

Golden Member
Feb 17, 2005
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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.
No, but I do hear them objecting to the extension of the 2nd amendment to cover all of "the people." Which is why I think they pick and choose when they believe protections should be "extended" outside of what is strictly written, and when it should be limited by what is not mentioned.

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
From the SC opinions I have read, it is precedent to interperet the amendments as they would have been understood by the general public at the time they were written because they were written for the common man. If we can demonstrate that the writers of an amendment told the people that the amendment would do X, then according to the principle of interpreting amendments as they would have been interpreted by the common man of the time seems to imply they do X. It makes it hard for me to understand how the SC can ignore the quotes of the Federalist papers that were written to support the passing of the constitution.

I see the militia clause differently. I view it as expanding the rights in the phrase "keep and bear arms," while at the same time explaining why it is expanded, and how far it is expanded. At that time, englishmen had a right to bear arms in their own defense, and the right of self preservation was considered a natural right of being an englishmen. The right to "keep and bear arms" would protect any weapons a man might use to defend himself, which would often be pistols due to their easy of carry and small size compared to the kentucky long rifle. I cannot find any evidence that the common laws of Britain protected access to military weapons. (Unless I am wrong, and the British common law did protect an englishman's right to a military grade weapon) The militia clause makes it clear that the right extends to common weapons of the militia as well as the natural rights and englishman already had to self defense. That extent also allows the government to deny weapons that have no militia or personal defense use.


I have read mostly about the 2nd and the 14th amendments, but I want to focus on the 14th for a bit.
Howard introduced the proposed amendment in the Senate on behalf of the Joint Committee, explaining "the views and motives which influenced that Committee."[114] After acknowledging the important role of the testimony before the Joint Committee, Howard referred to "the personal rights guaranteed and secured by the first eight amendments of the Constitution; such as freedom of speech and of the press;. .. the right to keep and bear arms"[115] (emphasis added). Howard averred: "The great object of the first section of this amendment is, therefore, to restrain the power of the States and compel them at all times to respect these great fundamental guarantees"[116] (emphasis added).
Yet 4 Justices seem to believe that when the 14th amendment was drafted, it was not meant to protect the right of citizens to keep and bear arms for their own defense. Even though one of the biggest issues of that time period was the use of state laws to deprive black citizens of firearms they were using to protect themselves from white mobs, and we have several examples of speeches explicitly stating that the amendment would protect the rights of freemen to keep and bear arms.
 

Fern

Elite Member
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Sep 30, 2003
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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.
You know, we have a way to deal with these issues.

The Constitution lays out 2 methods for amending it.

IMO, the SCOTUS is one of the worst violators of the Constitution. Far too many decisions have effectively usurped the power (and responsibility) of the people to make amendments. Instead, the SCOTUS pulls crap out of their @sses and claims to 'find it' ("penumbra doctrine" created by them) in the Constitution. When it's not there, the states should handle as they see fit until we can gain sufficient agreement to get an amendment.

The whole "amendment' part of the Constitution is effectively dead, and the SCOTUS killed it (and stole power and authority from us in doing so).

Fern
 

Hayabusa Rider

Admin Emeritus & Elite Member
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No, but I do hear them objecting to the extension of the 2nd amendment to cover all of "the people."
Would you point to an example where the founders wrote that they believed that the government should be run by religion or that the government should establish a state church? I really can't find references to that, however I do find them supporting the right of individual gun ownership. If there is ambiguity within a document then it has been a time tested procedure to look at other documents which relate to it. I don't mean one document against fifty, but a consensus of attitude of those who wrote them.

I'm interested to see what you have.
 

daishi5

Golden Member
Feb 17, 2005
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Would you point to an example where the founders wrote that they believed that the government should be run by religion or that the government should establish a state church? I really can't find references to that, however I do find them supporting the right of individual gun ownership. If there is ambiguity within a document then it has been a time tested procedure to look at other documents which relate to it. I don't mean one document against fifty, but a consensus of attitude of those who wrote them.

I'm interested to see what you have.

I am confused, where did you come to believe that I don't support the individual right of gun ownership? Did I misinterpert what Shira meant?
 

daishi5

Golden Member
Feb 17, 2005
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It's possible I'm misinterpreting you :D
What I meant is that people don't complain about extending the protections of the 1st amendment to rights that are not explicitly spelled out in the 1st, which is what I think Shira meant, that people don't complain about those extensions. But, people do complain about extending the second amendment right to "the people." It seems extremely hypocritical to claim that rights are protected in the 1st, 4th, 5th, and 14th that are not even written there in any form at all, yet to interpret the 2nd based upon the most limiting word, and to assume that if something was not spelled out completely, the right is not protected by the 2nd. (And even then, they just wish away the words "the right of the people" when they claim that the 2nd does not protect a right of citizens.)

In fact, a large portion of their argument against the 2nd being a personal incorporated right is that they claim the government needs to be able to implement laws for the general welfare. But, none of them would claim that we can try a person twice, violate their right to a jury trial, or force a person to incriminate themselves in order to protect the general welfare. Somehow the rights protected by the 2nd are free to be experiminted away in some grand federalist attempt to find the best society, because banning guns might lower crime. But the rights in the other amendments are sacred and untouchable no matter what benefit they might bring to society as a whole.
 

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