Ah my bad, I didnt realize you were on the supreme court.
Did you know the assault weapons ban in 94 has never been challenged? I guess when things are unconstitutional people like to wait 10+ years before bringing something to the supreme court. It's funny though because obamacare was challenged within a year.
So what part of her bill is unconstitutional and why? I'm curious to hear the legal argument against it.
Just because it hasn't been challenged does not mean its Constitutional. It just proves people are ignorant of the law or have a lack of interest.
What part of "infringed" do you not understand?
Infringed - 1. ( tr ) to violate or break (a law, an agreement, etc)
2. ( intr; foll by on or upon ) to encroach or trespass
The Contract is the Constitution and by infringing on the second amendment you have broken that agreement. It's not rocket science. It was written for everyone to know and understand. The restriction is on government, not the people.
U.S. Supreme Court
Byars v. United States, 273 U.S. 28 (1927)
This was a case in regards to illegally obtained search warrant due to the statement of "reasonable belief" that there was something nefarious going on. But theres quite an interesting statement that emboldens the right of the people.
3. Constitutional provisions for the security of person and property are to be liberally construed, and "it is the duty of courts to be watchful for the constitutional rights of the citizen, and against any stealthy encroachments thereon." P. 273 U. S. 32.
This whole statement is dripping with liberty protections for the people and it should be liberally construed in
our favor!
But lets not stop there as there is more. Have you ever looked into American Jurisprudence? Heh, lets get down to brass tax budro.
Unconstitutional Official Acts
16 Am Jur 2d, Sec 177 late 2d, Sec 256
The general misconception is that any statute passed by legislators bearing the appearance of law constitutes the law of the land. The U.S. Constitution is the supreme law of the land, and any statute, to be valid, must be In agreement. It is impossible for both the Constitution and a law violating it to be valid; one must prevail. This is succinctly stated as follows:
The General rule is that an unconstitutional statute, though having the form and name of law is in reality no law, but is wholly void, and ineffective for any purpose; since unconstitutionality dates from the time of it's enactment and not merely from the date of the decision so branding it. An unconstitutional law, in legal contemplation, is as inoperative as if it had never been passed. Such a statute leaves the question that it purports to settle just as it would be had the statute not been enacted.
Since an unconstitutional law is void, the general principles follow that it imposes no duties, confers no rights, creates no office, bestows no power or authority on anyone, affords no protection, and justifies no acts performed under it.....
A void act cannot be legally consistent with a valid one. An unconstitutional law cannot operate to supersede any existing valid law. Indeed, insofar as a statute runs counter to the fundamental law of the lend, it is superseded thereby.
No one Is bound to obey an unconstitutional law and no courts are bound to enforce it.
Jesus, I should have bolded the entire thing! No law or statute in conflict with the Constitution is valid! No one is bound to obey it and no court is bound to uphold it.
Jon Roland:
Strictly speaking, an unconstitutional statute is not a "law", and should not be called a "law", even if it is sustained by a court, for a finding that a statute or other official act is constitutional does not make it so, or confer any authority to anyone to enforce it.
All citizens and legal residents of the United States, by their presence on the territory of the United States, are subject to the militia duty, the duty of the social compact that creates the society, which requires that each, alone and in concert with others, not only obey the Constitution and constitutional official acts, but help enforce them, if necessary, at the risk of one's life.
Any unconstitutional act of an official will at least be a violation of the oath of that official to execute the duties of his office, and therefore grounds for his removal from office. No official immunity or privileges of rank or position survive the commission of unlawful acts. If it violates the rights of individuals, it is also likely to be a crime, and the militia duty obligates anyone aware of such a violation to investigate it, gather evidence for a prosecution, make an arrest, and if necessary, seek an indictment from a grand jury, and if one is obtained, prosecute the offender in a court of law.
You see this? We have a duty to prosecute those who
infringe (theres that nasty word again) on the second amendment. No court legally bound by the Constitution can of good conscience rule against your rights as they are all sworn to uphold them and to rule against those rights invalidates their jurisdiction and the court becomes likened to foreign invading force with no lawful power.
More:
16 American Jurisprudence 2d Sec. 97
"Then a constitution should receive a literal interpretation in favor of the citizen, is especially true, with respect to those provisions which were designed to safeguard the liberty and security of the Citizen in regard to person and property"
"Any constitutional provision intended to confer a benefit should be liberally construed in favor in the clearly intended and expressly designated beneficiary"
Literal interpretation in favor of the citizen...ZING!
Who is the beneficiary? The government? Hardly! The
people are the ones who are to benefit. To argue this point any other way would be ludacris.
16 American Jurisprudence 2d Sec. 98
"While an emergency can not create power and no emergency justifies the violation of any of the provisions of the United States Constitution or States Constitutions. Public emergency such as economic depression for especially liberal construction of constitutional powers and it has been declared that because of national emergency, it is the policy of the courts of times of national peril, so liberally to construed the special powers vested in the chief executive as to sustain an effectuate the purpose thereof, and to that end also more liberally to construed the constituted division and classification of the powers of the coordinate branches of the government and in so far as may not be clearly inconsistent with the constitution."
Again, if it is in conflict it must be disregarded. Patriot Act anyone? How about warrantless wiretapping? NDAA?
ALL UNCONSTITUTIONAL!
If thats not enough how about another Supreme Court case?
Marbury v. Madison, 5 US 137 - Supreme Court 1803
Marshall argued that the "distinction between a government with limited and unlimited powers is abolished if those limits do not confine the persons on whom they are imposed, and if acts prohibited and acts allowed are of equal obligation." Marshall continued:
It is a proposition too plain to be contested, that the constitution controls any legislative act repugnant to it; or, that the legislature may alter the constitution by an ordinary act
. Between these alternatives there is no middle ground. The constitution is either a superior, paramount law, unchangeable by ordinary means, or it is on a level with ordinary legislative acts, and like other acts, is alterable when the legislature shall please to alter it
. If the former part of the alternative be true, then a legislative act contrary to the constitution is not law: if the latter part be true, then written constitutions are absurd attempts, on the part of the people, to limit a power in its own nature illimitable.
For Marshall, the idea that an unconstitutional act of legislature could "bind the courts and oblige them to give it effect" was "an absurdity too gross to be insisted on." Thus, Marshall concluded that congressional legislation contrary to the federal Constitution is null and void and cannot be enforced by a court of law.
16 American Jurisprudence 2d Sec. 155
"Since the Constitution is intendant for the observance of the judiciary as well as other departments of government and the judges are sworn to support its provisions, the courts are not at liberty to overlook or disregard its commands or counteract evasions thereof, it is their duty in authorized proceedings to give full effect to the existing constitution and to obey all constitutional provisions irrespective of their opinion as to the wisdom or the desirability of such provisions and irrespective of consequences, thus it is said that the courts should be in our alert to enforce the provisions of the United States Constitution and guard against their infringement (again!) by legislative fiat or otherwise in accordance with these basic principles, the rule is fixed that the duty in the proper case to declare a law unconstitutional cannot be declined and must be performed in accordance with the delivered judgement of the tribunal before which the validity of the enactment it is directly drawn into question. If the Constitution prescribes one rule and the statute another in a different rule, it is the duty of the courts to declare that the Constitution and not the statute governs in cases before them for judgment."
9th Amendment
The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.
What does that mean?
Rights Retained by the People
Aside from contending that a bill of rights was unnecessary, the Federalists responded to those opposing ratification of the Constitution because of the lack of a declaration of fundamental rights by arguing that inasmuch as it would be impossible to list all rights it would be dangerous to list some because there would be those who would seize on the absence of the omitted rights to assert that government was unrestrained as to those. 1 Madison adverted to this argument in presenting his proposed amendments to the House of Representatives. ''It has been objected also against a bill of rights, that, by enumerating particular exceptions to the grant of power, it would disparage those rights which were not placed in that enumeration; and it might follow by implication, that those rights which were not singled out, were intended to be assigned into the hands of the General Government, and were consequently insecure. This is one of the most plausible arguments I have ever heard against the admission of a bill of rights into this system; but, I conceive, that it may be guarded against. I have attempted it, as gentlemen may see by turning to the last clause of the fourth resolution.'' 2 It is clear from its text and from Madison's statement that the Amendment states but a rule of construction, making clear that a Bill of Rights might not by implication be taken to increase the powers of the national government in areas not enumerated, and that it does not contain within itself any guarantee of a right or a proscription of an infringement. 3 Recently, however, the Amendment has been construed to be positive affirmation of the existence of rights which are not enumerated but which are nonetheless protected by other provisions.
Oh so brilliant were their minds! So attuned to the abuses of government! Madison recognized it and included the 9th Amendment to preclude government from overreach.
10th amendment
The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.
Thats the last seal. Not only is it clear that the founders did not want government making up its powers as they had done so many times in the past but they took another step and made it reserved to the states or the people. This is in direct contrast to executive orders now used in what seemingly is a daily occurrence.
What shall we do? Are we defenseless against these abuses? No!
1st Amendment
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.
Immediately without having put much thought you see that free speech "zones" are unconstitutional. Yet what we need to see here is we have the right to redress of grievances.
We have established that the US Constitution is the supreme law of the land.
We have established that the courts are bound to it.
We have established it should be literally interpreted
We have established that it is to be liberally construed in the favor of the beneficiary, the people.
We have established that government cannot restrict rights by the 9th Amendment.
We have established that government only has the power given to it by the 10th Amendment.
We have established that government cannot use emergency powers to enact laws in conflict with the Constitution.
We have established we have the right to petition the court for unjust laws/statutes
Now I hope you've learned something here today. I certainly have.
Off topic but I have to ask. How is it that you are on the supreme court and yet you have do much time to post on anandtech? I figured with Obama and the dems taking away all these freedoms and rights that you guys would be bus striking down all the things they have tried to pass.
People don't know their rights, and because of that they are trampled on at will. Like anything law related you have to assert those rights up front or lose them.
Anyway, thanks for another great response! It was really insightfu and opened my eyes. The information you provided in your rebuttle was almost overwhelming, there was a lot to go through but it was clear that after I read it, you must be right! I mean most people who post shit can't back up their claims and usually deflect but not you! You took the challenge by the horns though and came back with an encyclopedia full of facts that no one could possibly refute your claims.
My hats off to you sir! There is no equal on AT to you and your wealth of knowledge, well maybe incorruptible but that guy is in a whole other level! I'm sure you aspire to be like him but I have no doubt you will reach his level of intelligence, as for me, I don't have what it takes to reach either of your levels of intelligence.
Sophitia how did I do?
Not very well. Your sarcasm doesn't display intelligence, in fact, it shows you are devoid of the intellect required to hold a rationalized discussion. But that hasn't stopped you before, so why should it now?
Regardless. This information I have obtained from one man.
Carl Miller. A true patriot. I suggest you take the time to listen and learn. I did and I'm forever grateful for his contributions.
Get over yourself feinstein. Your experiences or anyone elses for that matter are not more important than the right to defend oneself by whatever means necessary.
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