2nd Amendment Question


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Cyborg
December 7, 2008, 09:19 PM
I am asking this in all honesty and not trying to start a fight.

Context: Texas legislators to consider Open Carry in the upcoming legislative session.

Question: Would requiring a minimal amount of education - equivalent to the current CHL course - and demonstration of at least minimal proficiency with the weapon - also as is required now for a CHL in Texas - necessarily represent an "infringement" of the right of the people to keep and bear Arms"

I do not believe it would.

We cannot yell "fire" in a theater but isn't that an infringement of the right to free speech?

We cannot have a large gathering without getting a permit from the city. Is that not an abridgement of "the right of the people peaceably to assemble"?

Isn't the "res gestae" exception to the hearsay rule a de facto abridgement of the protection against self-incrimination? (For those of you who are unfamiliar with legal terms, res gestae refers to spontaneous statements made by a suspect - before or after he has been given his Miranda briefing)

There are other examples with which I could probably come up but these should suffice. If the left has to be sensible in its interpretation of the 2nd Amendment, doesn't the right? Would regulation of all carrying not be at least as much a public safety issue as, say, not allowing someone to hollar "FIRE!" in a crowded theater?

Cyborg

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Frog48
December 7, 2008, 09:27 PM
We cannot yell "fire" in a theater but isn't that an infringement of the right to free speech?


Thats not quite the same. Think of it this way...

Yelling "fire" will result in a reactionary punishment as a result of abuse of the 1st Amendment. It does not preemptively limit our use of free speech. I have no problem with this.

Shooting someone unlawfully and being prosecuted would be a reactionary punishment to the abuse of the 2nd Amendment. It does not preemptively limit any rights. I have no problem with this

However, requiring education/licensing/etc would be a preemptive limitations upon the right to keep and bear arms.

In my opinion, limitations upon rights should be a reaction after a real, actual occurrence of wrongdoing. Limitations should not be put in place "just in case" of some hypothetical, future action.

Frank Ettin
December 7, 2008, 09:44 PM
the simple reality is that it is a well settled principle of Constitutional law, as reflected in decisions of federal courts, including the Supreme Court, that government may regulate Constitutionally protected rights, subject to certain constraints.

Thus government may regulate a Constitutionally protected right as necessary to further a compelling state interest as long as such regulation is as narrow it may possibly be and still serve that interest. Any such regulation must not totally obviate the Constitutional right. Furthermore, any such regulation must be evenly applied and not subject to the discretion of governmental authority.

For example, while the First Amendment protects freedom of speech and, we know there has been a history of certain regulation of speech and assembly. A few examples are:

[1] Laws prohibiting such things as false advertising, fraud or misrepresentation, as well as laws requiring certain disclosures in connection with various transactions, would absolutely survive a challenge to their validity on Constitutional grounds even though such laws do impinge on the freedom of speech. Such laws may also require prior approval by certain regulatory agencies of certain advertising or solicitation material, especially material advertising prescription drugs or solicitations in connection with the sale od stocks or securities. Among other things, such laws serve compelling state interests related to promoting honest business and helping to preserve the integrity of commercial transactions. They tend to be only as broad as necessary to serve that function.

[2] Laws respecting the time, place and manner of speech or assembly have also survived Constitutional challenges. Thus a municipality may require that organizers obtain a permit in order to hold an assembly or a parade and may prohibit such activities during, for example, the very early morning hours. Such regulations would be permitted only to the extent necessary to serve the compelling state interest of protecting public health and safety. Any such regulations, to be Constitutionally permissible, could not consider the content of the speech or assembly; and they would need to be applied in an even handed manner based on set guidelines and not subject to the discretion of a public official.

So Constitutionally protected rights can in fact be regulated. While many people point to the "shall not be infringed" language of the Second Amendment, the fact of legal life is that some infringement will nonetheless be condoned by the courts. That's just real life in the real world.

sailortoo
December 7, 2008, 09:49 PM
Grant48 - +1
And just how much training is "appropriate"; how much education? You see the barn door is wide open? The word "infringe" is specific, not general - even though it is routinely and expressly abused. The reason (as I read it) for the training and education involved with CCW "permitting", is just that, you must have a permit, as the old time attitude was that a concealed weapon was used for "nefarious" reasons, looked down upon by the general population, and many state constitutions specifically prohibit concealed carry. The permit process is to overcome the state constitutional prohibition, in some, but not all states. The freedom "to Keep and Bear Arms" was probably originally looked on by most citizens as obviously in the open. Just my 2 cents.
sailortoo

cbrgator
December 7, 2008, 11:02 PM
I think "shall not be infringed" has been violated many times over before the education requirement for a ccw. It is clear that these rights are not regarded as absolute by the government.

BullpupBen
December 7, 2008, 11:21 PM
The 2nd amendment is about annihilating a government and making a new one in its place during that most extreme of cases where the government is beyond corrupt beyond the point that it can be repaired through normal legislative action.

It really doesn't have anything to do with everyday carry of any kind so I think such a course would be fair.

However, if the question is whether or not the 2nd amendment allows for a national registry of those who wish to open carry, then its a whole different story.

gc70
December 7, 2008, 11:23 PM
Question: Would requiring a minimal amount of education - equivalent to the current CHL course - and demonstration of at least minimal proficiency with the weapon - also as is required now for a CHL in Texas - necessarily represent an "infringement" of the "right of the people to keep and bear Arms."

No. The Second Amendment has not (yet) been incorporated against the states. Until it is incorporated, it means essentially nothing with respect to state laws.

Cyborg
December 7, 2008, 11:46 PM
sailortoo askedAnd just how much training is "appropriate"; how much education?And so the answer is to say "None"?? We could argue the level of training/education needed indefinately. Probably no one would argue that the (usually minimal) levels mandated for a CHL are really sufficient. But can we not at least agree that those levels are a starting point? However minimal those requirements are, can we not agree that they are better than nothing?

I am not an advocate for government control of our lives. I'm not sure who actually said it but I have heard that one of the Founding Fathers said something to the effect of "That government governs best governs least.". I subscribe to that principle wholeheartedly. But to live in groups we must of necessity be willing to forgo exercise of our rights to some extent or another.

I was taught that my right to swing my arms ends at your nose. "WHAT!? I want to swing my arms entirely as I will." Fine, go off somewhere by yourself and swing to your heart's content. If you want to live with other people you have to agree to not exercise all your rights all the time. I might want to yell at those idiots on the City Council but if I do so during a meeting I could be charged with "DISRUPTING MEETING OR PROCESSION" (TPC 42.05) and spend half a year in county lockup, or a $500 fine or both. So I sit quietly through the meeting (or watch it on the public access channel of cable so I can holler all I want) to keep from being a disturbance.

One other point. Despite TPC Sec. 8.03. MISTAKE OF LAW. It is no defense to prosecution that the actor was ignorant of the provisions of any law after the law has taken effect. Sure as the sun is going to come up tomorrow morning the first time some ignoramus wanders into one of the places where weapons are regulated (like a bank or even a liquor store) and gets busted for it; his lawyer is gonna holler that the dufus didn't know he wasn't supposed to be packing in a bank and if it was so important why didn't the state require him to be educated in where he could carry. I guarantee it. And depending on the jury that defense could fly.

Or we could agree to being certain that everybody we see carrying is either a felon or someone who has been exposed to the law and demonstrated minimum proficiency with a handgun. I would probably wear my certification on my belt alongside my holster. Anybody that wasn't willing to show their certification would prima facie be a badguy. Off duty cops in plain clothes wear their badges displayed. What's wrong with that?

Frank Ettin
December 7, 2008, 11:50 PM
...No,this just won't fly against "shall not be infringed",IMO.
Nonetheless, the courts and settled principles of Constitutional law are against you.

Frank Ettin
December 8, 2008, 12:16 AM
You have a great week too, Johnny Dollar.

Audrey
December 8, 2008, 12:26 AM
ANYTHING that prevents me from owning and using EVERYTHING available to the standing army is an infringement.

But then I'm not a member of the NRA.

sailortoo
December 8, 2008, 12:33 AM
Cyborg - The point of ANY government requirement to exercise a god given right, which the Second Amendment guarantees, becomes an infringement. If you open the door a tiny crack, then the door is open. The state of our Second Amendment rights, with something over 20,000 infringements, and growing, "is what it is", but asking for more "regulation" is not desirable. Who is to decide what you need, to be an "adequate" gun owner? An exceptional gun owner? Not capable of owning a gun (besides being a felon or insane)? My point is the creeping governmental control, that seems OK today, but tomorrow is burdensome. I remember carrying openly, outside of town, in California with no problem or questions - but that was back in the 1950's. Consider where California is today on "the Right to Keep and Bear Arms". None of the Amendments is "bulletproof", pardon the pun, but to willingly give the government more and more control over a Right, not a privilege, is to eventually lose that Right. I realize that I am being idealistic, but damned if I'll help the government take away a basic Right. :cuss:
sailortoo

sailortoo
December 8, 2008, 12:41 AM
Cyborg - wearing a "certification" (the old CCW badge ?) on my belt will get me arrested in New Mexico - state statute forbids any form of badge or symbal indicating a CCW permit. No, just leave the government regs out of our Rights, as long as no one else is harmed. We are a nation of laws, and you just try to find a lawyer that knows even a significant portion of them. We surely don't need more of them.
sailortoo

Frank Ettin
December 8, 2008, 12:43 AM
ANYTHING that prevents me from owning and using EVERYTHING available to the standing army is an infringement....
So what? It's not going to change.

...The point of ANY government requirement to exercise a god given right, which the Second Amendment guarantees, becomes an infringement. If you open the door a tiny crack, then the door is open....
The door's been open for a couple of hundred years, and it's not going to close. To fight effectively, we must understand the way things are and how they work.

Audrey
December 8, 2008, 01:34 AM
And we do that by accepting that we can't change it?

Frank Ettin
December 8, 2008, 01:43 AM
And we do that by accepting that we can't change it?
If you think that you can change it and be able to legally acquire anything the standing army can, have at it. I don't think you can. Are you going to try to prove me wrong?

Audrey
December 8, 2008, 03:30 AM
You've got such a winning personality I've decided to include you. And if you think the standing army is "legal" you will enjoy the ride.

Ed N.
December 8, 2008, 08:46 AM
Regarding the OP's comment about yelling "fire" in a theatre:

Your analogy isn't a good parallel. Look at it this way.

Suppose the law required that you attend a training class regarding laws regulating speech, covering topics such as fraud, slander, libel, inciting to riot, etc. You would have to pass a test and be certified in free speech before you could legally enter a theatre, all because you might yell "fire."

Would that be an infringement on your rights?

You see, the 2A addresses the right to "keep and bear." It does not address using arms (actually firing a shot [like actually yelling "fire"]). When it's legal to shoot is a matter addressed by a completely different set of laws. You're suggesting a form of prior restraint on a right, justified by the notion that someone's use of the firearm might be illegal.

Keep in mind, too, that it's also a matter of circumstance. There's nothing wrong about yelling "fire" in a crowded theatre if there is, in fact, a fire! Similarly, a gun may be used legally for self-defense. Restricting the right would prevent legal use in addition to illegal use.

Training is a good idea, certainly. Requiring it as a condition to exercise a right is a very very bad idea, as bad for the RTKBA as any other right. It allows the gov't to deny the right based on an aritrary, gov't established basis.

Should we require gov't training for the press? For anyone who wants to practice a religion?

Ed

Bubba613
December 8, 2008, 09:18 AM
Training is a good idea, certainly. Requiring it as a condition to exercise a right is a very very bad idea, as bad for the RTKBA as any other right. It allows the gov't to deny the right based on an aritrary, gov't established basis.

And yet. I don't know how many states require some kind of course for a permit (mine does). And those states are among the most liberal and gun friendly.
I honestly don't see the downside of this. Yes, people ought to become informed about laws in their states. But it is amazing how many just won't do it. Even those who have been through courses are still misinformed (either they didnt get it or the instruction was sub par).
In the end, I would want a succesful program that showed clearly that law abiding permit holders act within the law 99% of the time. Classes on it further that interest.
As for infringing, everything Fiddletown writes is correct imo.

subknave
December 8, 2008, 11:27 AM
The problem with requiring a permit is it makes it a privilege not a right. Now if you can carry openly just not concealed then it gets into how restrictive is it and what is the cost both financially and in terms of government interference. Lets say you can carry openly anywhere except into government buildings or schools but you can carry concealed anywhere. Then you would get the permit to lessen the restrictions on your right.

A analogy would be if you can stand on a street corner and expound your political views but needed to show you had an understanding of libel and other laws to start a newspaper. In effect is it a check to make sure you understand what you are doing or a means of preventing a class or group of people from exercising their rights.

A must issue state would not be an infringement but a state where issue was at the sole discretion of a police chief or judge could be if exercised arbitrarily or denial was not based on logical reasons.

Bubba613
December 8, 2008, 11:56 AM
I see the rights issue and in principle I agree.
But maybe it is more akin to requiring someone to pass a civics test before being able to vote. I realize that was declared illegal, largely because it's purpose was to discriminate. But outside of the discrimination issue, it was not per se illegal.

Cyborg
December 8, 2008, 02:07 PM
Thanks, Bubba.

sailortoo, either you failed to read what I wrote about wearing certification or you are being deliberately obtuse. I did not say anything about CCW. What I wrote was in the context of open carry. And I have been to visit my son in T or C many times and do not recall ever seeing anyone openly carrying. I was talking about open carry in TEXAS. I do not care what they do in what my son calls the "Land of Entrapment - set your clocks back 100 years". And before you ask, he lives there because my Daughter-in-law wants to live close to her folks and because my oldest grandson has allergies.

My observation was based on the real life situation of having a significant percentage of people walking around openly packing heat. Off-duty cops wear their badges. It makes sense that people who have gone to the time, trouble and expense to take a basic carrying course would want to wear some symbol of that on their person - EVEN IF IT WASN'T MANDATORY TO TAKE THE CLASS! At least the cops (and everyone else) would have a quick indication of who was acting responsibly and who was not. And here is where sailortoo and god knows how many others will jump all over the "acting responsibly" bit.

One final observation: Knee-jerk reactions to 2A issues are not limited to the left. For every leftist who sees the 2A as a very limited, corporate right, I suspect that there is at least one on the right who would agree with Audrey who put it so succinctly: ANYTHING that prevents me from owning and using EVERYTHING available to the standing army is an infringement.

No offense intended, Audrey.
---------------------------------------------------------------------------
Cyborg
Burying your head in the sand only makes your a** a better target.

ConstitutionCowboy
December 8, 2008, 02:24 PM
Shooting someone unlawfully and being prosecuted would be a reactionary punishment to the abuse of the 2nd Amendment. It does not preemptively limit any rights.

Shooting someone is not an abuse of the Second Amendment. Keeping and bearing have nothing to do with shooting.

Woody

sailortoo
December 8, 2008, 05:27 PM
Cyborg - sorry if I mis-read your open carry post, but I have re read it a couple of times, and still get no relevance to the topic. I just wrote that badge and symbol of CCW is often discussed here, is prohibitied in "The Land of Enchantment" (The High Road way to say it), and the "badge or certificate" of being a non-law enforcer OC is the weapon itself - it is legal without any need to take any course of instruction, and has been a normal procedure since forever in "The Land of Enchantment", as in many western states. As some other posters on this thread have pointed out in numerous ways, the Second Amendment does not require training for the individual "Right to Keep and Bear Arms", only for the regulation of a militia. I just do not want another layer of government regulation piled on top of regulation. Obviously, we seem to disagree - so be it.
sailortoo

Sinixstar
December 8, 2008, 05:43 PM
Isn't the "res gestae" exception to the hearsay rule a de facto abridgement of the protection against self-incrimination? (For those of you who are unfamiliar with legal terms, res gestae refers to spontaneous statements made by a suspect - before or after he has been given his Miranda briefing)


My understanding on that is - the law protects you from being forced to incriminate yourself. Whether or not you choose to exercise that right or not, is your choice.
Just like the 2nd does not mean you MUST be armed, only that if you choose to do so, you're protected. If you choose not to take advantage of that right, that's your problem.

CoRoMo
December 8, 2008, 05:49 PM
I realize that this is only my opinion. Please do the same.

The 2nd Amendment = the right to own (keep) and to carry (bear) [see my signature]. I don't find an astric anywhere linking up with subtext about required education or any accomplishment achieved in order to be granted that right.

Audrey
December 8, 2008, 09:19 PM
We the People are not granted the RKBA by the Government. The Bill of Rights is to prevent the Government from infringing on our Inalienable right to RKBA.

Cyborg
December 8, 2008, 11:48 PM
OK how about this? Instead of REQUIRING training to openly carry in Texas, how about if the state makes it an option to VOLUNTARILY take a course of training and for a registration fee - voluntarily paid and in no way mandatory - you get a certificate from the Texas Department of Public Safety that says in effect that you are an at least nominally responsible gun owner? No legal onus to NOT taking the course but everyone who DID take it would have identification to that effect. Your voluntary participating in such training would also put you into the same database that CHL holders and Commissioned Security Guards are in that makes you elgible to serve your fellow citizens as armed backup to the police in time of emergency.

So, to recap. A purely voluntary course of training and voluntary addition to a roster of folks willing to serve as armed backup to the police. In return for taking/passing the course and paying an administrative fee you would have a state issued ID indicating you are a certified responsible carrier of a sidearm. Since that ID would be tied to your TLD# it wold be easy to trace in a pinch and would also constitute forgery if you acquired a bogus certificate.

OK, all you "agin-ers". What is wrong with THAT? Nobody has to jump through any hoops to openly carry. If someone DID take the course and voluntarily register the fact, they would be issued an official document stating that they had done so that could be - again VOLUNTARILY - worn to demonstrate to all and sundry that you have gone the extra mile to demonstrate your good faith and volunteer to serve the community in time of emergency.

What's wrong with that?

Cyborg
December 8, 2008, 11:54 PM
The Second Amendment of our Bill of Rights is my concealed weapons permit, period!
Ted Nugent
Ted Nugent is a good buy but sometimes he is a total idiot. One man's opinion and you know what opinions are like.

Frank Ettin
December 9, 2008, 12:10 AM
...The Bill of Rights is to prevent the Government from infringing on our Inalienable right to RKBA.
And it does, except of course to the extent that the courts will sustain restrictions on the keeping an bearing of arms consistent with settled principles of Constitutional law recognizing permissible grounds to regulate Constitutionally protected rights.

The Second Amendment of our Bill of Rights is my concealed weapons permit, period!
Ted Nugent
Not unless the judge agrees, which he most likely won't.

Audrey
December 9, 2008, 12:56 AM
And it does, except of course to the extent that the courts will sustain restrictions on the keeping an bearing of arms consistent with settled principles of Constitutional law recognizing permissible grounds to regulate Constitutionally protected rights

You sound like you work for the NRA.

Any attempt to "regulate Constitutionally" my "protected right" is an obfuscation and limitation of said UNALIENABLE right.

Once again, the Bill of Rights (the first ten Amendments to the Constitution) is to protect ME from the GOVERNMENT.

The Government exists to SECURE my rights, not regulate, limit or diminish them in any way.

"We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness. — That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed"

Jefferson et al. were students of history, and understood tyranny, despotism, and the ways in which the ruling class worked their magick. The RKBA is specifically mentioned by them for a reason.

"The price of apathy towards public affairs is to be ruled by evil men." --Plato

"Republics decline into democracies. Democracies degenrate into despotisms." --Aristotle

"It also gives us a very special, secret pleasure to see how unaware the people around us are of what is really happening to them" --Adolf Hitler

"That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness. Prudence, indeed, will dictate that Governments long established should not be changed for light and transient causes; and accordingly all experience hath shown that mankind are more disposed to suffer, while evils are sufferable than to right themselves by abolishing the forms to which they are accustomed. But when a long train of abuses and usurpations, pursuing invariably the same Object evinces a design to reduce them under absolute Despotism, it is their right, it is their duty, to throw off such Government, and to provide new Guards for their future security. — Such has been the patient sufferance of these [United States]; and such is now the necessity which constrains them to alter their former Systems of Government. The history of the present [Federal Government] is a history of repeated injuries and usurpations, all having in direct object the establishment of an absolute Tyranny over these [United] States. To prove this, let Facts be submitted to a candid world.” --Thomas Jefferson

“Before all else, be armed.” --Niccolo Machiavelli

Frank Ettin
December 9, 2008, 01:12 AM
You sound like you work for the NRA....
Actually, I live in the real world and understand how things work in the real world. You're welcome to live in your alternate universe.

..Any attempt to "regulate Constitutionally" my "protected right" is an obfuscation and limitation of said UNALIENABLE right....
Yes, that certainly seems to be your opinion. But the courts have some different opinions and don't share yours. And the opinions of the courts trump yours. The opinions of the courts affect the lives and property of real people in the real world. On the other hand, your opinion and $2.00 will get you a cup of coffee at Starbucks.

sailortoo
December 9, 2008, 01:28 AM
Cyborg - your last post is redundant, as the opportunity to get limited state sanctioned training, and private training in all phases of gun/self defense is currently available. I have taken extra (not state required) courses, as I know many of the posters here have - because I want to be the best that I can be, not because of a government requirement. We are talking here about a potential life threatening situation, where a lethal weapon may be used. Some may well not care at all, beyond a limited familiarization with a particular weapon, but being a private citizen and not military or LEO, that is their 2A right (OC, where allowed, not CCW, where most, but not all states require a permit). As to a "certificate", yes, I do have certificates of successfully completing such courses, but that has nothing to do with law enforcement, or any need for law enforcement to know about. I am not in any way connected to law enforcement, and as far as I know, they aren't interested in me (as long as I cause no trouble!). Just get the law in Texas changed to legal open carry, and let it go at that. In NM OC is not particularly common, although there are some locals that do, but I read of rather common OC by Arizona posters. None make any comments about the need for government training requirements. I see it as a non-problem.
sailortoo

Audrey
December 9, 2008, 10:26 AM
Actually, I live in the real world and understand how things work in the real world. You're welcome to live in your alternate universe.

The same sentiments were expressed by the Brownshirts in the 1930s and then later by the government in Vichy.

If you are not part of the solution you are part of the problem.

Accepting what is unlawful as "realistic" is the ultimate "go along to get along" copout.

Thankfully, the founding fathers of this once-great nation felt much, much differently than you do about what is realistic and what is RIGHT.

Frank Ettin
December 9, 2008, 10:47 AM
...If you are not part of the solution you are part of the problem....
How useful -- a cliche from the Hippie days.

...Accepting what is unlawful as "realistic" is the ultimate "go along to get along" copout....
You miss the point entirely. No one said that we have to accept current or any new restrictions on our rights or that we shouldn't try to change current injustices or fight efforts to impose new ones. But you can't do that effectively unless you understand how things actually are and work in the real world. You can't fix a carburetor unless you understand how it functions.

Twenty years ago, one could not carry a concealed gun in most states. Now one can in most states (at least with a permit that is relatively easy to obtain). This right was won by people who understood and could effective use the political process.

Dick Heller and his lawyers won a Supreme Court decision for the first time directly holding that the Second Amendment is an individual right and rejecting the "collective right" view that had become popular and had been driving anti-gun legislation and court decisions. This can become a powerful tool in our efforts to preserve the RKBA against a generally increasingly antagonistic society. Heller and his lawyers accomplished this by understanding the law and how it works and making appropriate use of it.

If we are to win (as I hope we do and think we should) in the courts, it will be because we have the help of wise and skillful lawyers who understand the law and legal processes. If we are to win in the political arena, it will be because we have the help of people who understand the world of politics and operate effectively in that world. But if we deny the reality of the courts and politics, we will not be effective and will be buried by those interests who can more adroitly "work the system."

At the end of the day, the RKBA will be protected by those who understand and can manage and affect reality, and not by a lot of "dorm room bull session" rhetoric that those who make things actually happen in the real world ignore.

Cyborg
December 9, 2008, 12:06 PM
sailortoo, I am writing 1) in the context of open carry in Texas and 2) to look at ways to get the bill passed. I am going to suggest to my State Rep and Senator that when the Police Organizations and the Anti-Gun people hollar about open carry, the mechanism I outlined be offered as a compromise to mitigate safety concerns.

NM has open carry now. Good for you. NM also considers publicly insulting someone to be an assault 30-3-1. Assault.
Assault consists of <snippage>
C. the use of insulting language toward another impugning his honor, delicacy or reputation. whereas in Texas Sec. 9.31.(b) The use of force against another is not justified:
(1) in response to verbal provocation alone;
Sec. 22.01. ASSAULT. (a) A person commits an offense if the person:
(3) intentionally or knowingly causes physical contact with another when the person knows or should reasonably believe that the other will regard the contact as offensive or provocative. In practical use, as we were instructed when I sat on a jury hearing an assault cast in 07, an assault requires both unwanted touch and pain. The law here reflects a "Sticks and stones" mentality. In NM if I make disparaging public statements about your parentage or intellect or moral character I have committed an assault. In Texas the worst I can get for talking trash in public is Disorderly Conduct. And no matter what I say nobody has the right to use force on me as a result. Which is the more mature, rational society?

sailortoo
December 9, 2008, 04:52 PM
This is getting both tiresome, and further off topic (assault in NM is worse than in Tx? Wow!). So you don't like NM - not the topic. You seem to want more government control in Texas of an Unalienable Right - I don't. End of story. I just wish for Texas to return that same Unalienable Right to it's citizens, as we in NM, and many other states, have, without any further government requirements or regulations (just like it says in the U.S. Constitution).
sailortoo

expvideo
December 9, 2008, 04:57 PM
I think the better solution is to require a basic gun safety class in high school. Mandating anything regarding a right is not ok. Like it was said earlier, not being able to yell fire in a movie theater is not a restriction of the 1st amendment. Yelling fire is a crime commited with speech, like shooting someone is a crime commited with "arms". Requiring a class to carry a gun is like requiring a class to get a license to speak. That is the correct comparison. Now that does sound like an infringement, huh?

Ohio Gun Guy
December 9, 2008, 04:57 PM
........However, you do not have to pass a test to be allowed free speach. I think the real compairison is that for a guarenteed constitutional right, there can be no pre-enforcement. Otherwise they would duct tape your mouth shut uppon entering the theater. But we dont do that. :D

Frank Ettin
December 9, 2008, 07:18 PM
...you do not have to pass a test to be allowed free speach...
Actually, sometimes you do. For example, if you are offering securities or certain other types of investments to the public, your written solicitation materials will have to first be approved prior to use by one or more regulatory agencies. If you are selling medicines in interstate commerce, your labeling will have to be approved in advance by the FDA, and you will have to have demonstrated, through hard, scientific data, that any claims or representations made are true.

Audrey
December 9, 2008, 08:15 PM
I rest my case against the Brownshirt fiddlesticks. Vichy would be proud comrade!

ConstitutionCowboy
December 9, 2008, 08:44 PM
... And it does, except of course to the extent that the courts will sustain restrictions on the keeping an bearing of arms consistent with settled principles of Constitutional law recognizing permissible grounds to regulate Constitutionally protected rights.

Just what are those permissible grounds, and where do you find them in the Constitution, my friend?

Woody

Frank Ettin
December 9, 2008, 09:10 PM
Audrey,

The examples I have given are in fact current law. But be that as it may, it really doesn't have much to do with the original topic of this thread, and it might not be a bad idea to go back to the issue.

The question is basically what can be done to better encourage the Legislature of the Texas to adopt legislation permitting the open carry of firearms. it seems to me that there are several ways of looking at this.

[1] You can take the position that the Second Amendment guarantees you the right to carry your gun openly, if you wish, and that the State has no power to interfere with your doing so. However, in this universe, in Texas, carrying your gun openly will get you arrested. And unless you can sell your Constitutional argument to the judge, it will get you convicted, with all the unpleasant baggage that no doubt goes with such a conviction.

[2] You could hold your ground with the Legislature and insist that they adopt unrestricted Legislation, in whatever form may be appropriate given the organization of the Texas statutes. I don't know whether that's politically feasible. If it is, that would be great and a clear win. If it's not, well then our side loses.

[3] You could try to find a way to overcome whatever reluctance there may be to permitting open carry and propose accommodations to answer whatever concerns have generated that reluctance, as long as you could live with those accommodations. That just might get you lawful open carry.

Just what are those permissible grounds, and where do you find them in the Constitution...
Woody, we've been through this before. The courts have done this. They do it now. They will continue to do it and affect the lives and property of real people in the real world. They will do so without regard to your opinions.

Cyborg
December 9, 2008, 09:46 PM
sailortoo, I am not advocating any sort of mandatory training. What I am advocating is a way for cops to be able - on sight - to distinguish at least nominally responsible gunowners from those who just want to carry. You take extra training? Good for you. My comment was about the oddities of your state's laws. I do not want any more government control. I believe I have stated that more than once. But you seem unable to pull your head out of your own millieu (or elsewhere for that matter - BTW, I know a Dr. who performs chrystallectomies cheap) to look at things from a larger perspective. Instead of decrying any requirement, why not advocate the state REWARD people for doing the responsible thing? So long as neither the training, the registration of having taken the training nor wearing the certificate is mandatory, how could that be an infringement?

I am saying REWARD people for their willingness to increase public safety. Offer a carrot instead of only a stick. I know a website that sells "ID" cards that say something to the effect of "Card Carrying Good-Guy". Wearing the voluntarilyobtained - I say again VOLUNTARILY OBTAINED - certification on your belt along with your sidearm would in effect be proclaiming that you are, indeed, a "Card Carrying Good-Guy". And you would have an official state issued document attesting to that. You don't want to advertise the fact that you have taken extra training? Fine and dandy! Is it OK if I wish to do so? Or must I conform to your version of the way things ought to be? Because if you want me to conform to your ideas of how things ought to be then you are NO BETTER THAN THE LIBS!!!

I never said you have to do things my way. But if you are not ready to offer me the same respect then we have a problem. We are free to disagree about how we go about availing ourselves of the RKBA. In the words of fiddletown I am just suggesting accommodations to answer whatever concerns have generated that reluctance, [since I can] live with those accommodations Politics is the art of the possible.
Otto Von Bismarck, remark, Aug. 11, 1867

I know there is going to be some strong opposition to the open carry bill. It is in no wise certain that we actually will get open carry in Texas. But the first two options fiddletown described are virtually certain NOT to get us legal open carry. I am offering a suggestion for a possible "accomodation". Let's see, sit on your high horse or stand your ground and get nothing, or offer an accomodation that puts sidearms openly on the hip of any Texan who wants to carry. Two approaches that virtually guarantee defeat or one strategy that at least has a chance. Sounds like a no-brainer to me. I think I know which one the Iron Duke would counsel me to support.

---------------------------------------------------------------------------
Burying your head in the sand only makes your a** a better target. - B Mullins

shotgunjoel
December 9, 2008, 09:50 PM
I see good reasons for having some of the education as listed, but it could/would quickly be expanded and modified to essentially outlaw open carry. So I guess what I'm saying is that it would be very bad in the long-run.

ConstitutionCowboy
December 9, 2008, 10:00 PM
Woody, we've been through this before. The courts have done this. They do it now. They will continue to do it and affect the lives and property of real people in the real world. They will do so without regard to your opinions.

I'm not looking for any concurrence with my opinions, I'm looking for the authorization in the Constitution for the Court to wield this power. And, I don't care what your opinion is regarding this supposed power right now. I want to know where it is spelled out in the Constitution.

You and I both see the Court exercising this power, but I can't find it in the Constitution, and you seem to think what the Court does in these cases is constitutional, therefore, you must know where it is in the Constitution. Show me.

There can be no cure until you isolate the cause.

Woody

cliffy
December 9, 2008, 10:08 PM
One can interpret even the BIBLE into ANYTHING one wishes to suit ones' specific point-of-view. Beyond merely scary, anything can be twisted and convoluted to "mean" whatever one desires. The Second Amendment of our precious Constitution was never meant for subjigation to cunning "interpretation." Give Americans a break and allow our God-Given FREEDOMs. Entrapping AMERICA into slavery through our own liberal ideology seems MOST unfair. Some Americans WILL understandably resent this new, if ideologolic concept of ROBOTIC superiority. I fear humans are an antiquated concept for the future. Nothing ever changes for the betterment of humankind. We are merely disposable flesh in a world advancing far too fast for our own good and well-being, where humans are destined for extinction and replacement. cliffy

legaleagle_45
December 9, 2008, 10:26 PM
The right to own a gun is not a "God Given Right" or a "natural right" since guns were not made by God and do not exist in the natural state. It is a derivative right (Blackstone used the terminology "auxillary right") to the "God Given" or natural right of self defense.

There, I said it. LOL

ConstitutionCowboy
December 9, 2008, 10:59 PM
The right to own a gun is not a "God Given Right" or a "natural right" since guns were not made by God and do not exist in the natural state. It is a derivative right (Blackstone used the terminology "auxillary right") to the "God Given" or natural right of self defense.

There, I said it. LOL

Doesn't matter. What matters is that our right to keep and bear arms - which includes guns - is protected by the Second Amendment from infringement by government.

Woody

legaleagle_45
December 9, 2008, 11:05 PM
Doesn't matter.

Hi woody. It does indeed matter.. If the right is not "God Given" and/or a "natural right" then by consequence, it must be created by man. Now obviously, if something is made by man, the question then arises, when was it made and how was it made? It is only when you can answer those question can you begin to discover what exactly the right to keep and bear arms is.

Cyborg
December 10, 2008, 12:17 AM
Beautiful words but they are no more real than "sea level". There is no "right" that anyone has that cannot be taken away by someone else with the ability, the means and the will to utilize superior force.

Life? A large caliber hollow point in the upper left chest will put paid to that.

Liberty? A gun to the head and a set of manacles will take care of that. Or do you suppose that the black Africans who were forcibly immigrated to the Americas volunteered to travel under the deplorable conditions and then be treated as sub-human property?

Persuit of happiness? Define it and I suspect I'll come up with a way to keep you from it.

People, the constitution means exactly what the Supreme Court Of the United States SAYS it means! If SCOTUS decides that there is a "Right to privacy" in the constitution then there is - until a later court says there isn't. If SCOTUS says the 2A is a corporate right then it is. It matters not what you or I or anyone else believes, SCOTUS, as final arbiter of all constitutional issues, is the de facto the supreme law of the land. The only alternative is a revolution. And boys and girls, you're gonna have to figure out another way to fight besides open field battles (ain't no way a militia can defeat a well trained/equipped standing army at that - look at our own revolution) or urban warfare. In the latter case our troops are probably the best trained, best equipped, most experienced and proficient urban warfare troops in the world. Even if we had access to the full range of military weaponry winning such a revolution would be doubtful at best.

Or we can find a way to get most all of what we want not and work to make things better later on. Half rations are better than starvation. Not a lot, I grant you, but they can keep you alive till you can secure full rations once more. It rankles me to say it but better a live jackal than a dead lion. Alive I can protect my family to at least some extent. Dead I cannot protect them at all. Even if I had to jump through hoops, if I got to carry openly it would be better than what we have today.

If the incoming administration via legislation passed by congress and approved by SCOTUS decides to take up all guns in the country they bloody well will do it - AND IT WILL BE LEGAL. Hopefully they will not have the political will to do that. So they pass a new "permanent" AWB. Guess what, amigos? Ain't nothing in Washington DC permanent! Pendulums swing both ways. Anything done by the new administration can be undone by subsequent administrations.

Frank Ettin
December 10, 2008, 12:51 AM
I'm looking for the authorization in the Constitution for the Court to wield this power. ..I want to know where it is spelled out in the Constitution....
Be my guest. There's a vast literature of Constitutional law, including over 200 years of judicial decisions and untold commentaries, law review articles, scholarly treatises -- tens of thousands, if not hundreds of thousands, of pages. You might enjoy the research, and perhaps even learn something.

You and I both see the Court exercising this power, but I can't find it in the Constitution,...
And you seem to think that it's unconstitutional and illegal. But there first seems to be some disagreement on that point, since the courts are exercising the power and affecting the real world. That is reality. You may just someday find that it's to your benefit to understand what is actually going on and how. That sort of knowledge might help you deal with things and further then RKBA in more constructive ways than beating your breast and proclaiming that the courts are acting unconstitutionally.

...Show me....
I have no intention of trying to distill 35 years of studying the law into a post here.

...There can be no cure until you isolate the cause....
Good hunting.

legaleagle_45
December 10, 2008, 01:01 AM
Beautiful words but they are no more real than "sea level". There is no "right" that anyone has that cannot be taken away by someone else with the ability, the means and the will to utilize superior force.

The fact that a right can be violated does not mean that it is not a right. You seem to have some disagreement with natural right theory... that there are no absolutes, no right or wrong. Everything is judged by the shifting sands of societal sanction.

In fact, natural law theory is ultimately based upon what we are down to our very DNA. Self defense is a natural right because we will exercise that "right" regardles of whether it is with societies blessing or not. Try an experiment. Have someone throw water in your face and do not blink your eyes. You can not... it is an instinctual self defense reaction. This trancends society and is the first law of nature. The lion will hunt the deer to survive, but the deer is under no obligation to provide a meal to the lion. The lion will hunt by nature, the deer will try to avoid being eaten by it nature. Passing a law to prevent a deer from running away from the lion will be to no avail, the deer will run regardless of any law. Passing a law which prohibits a person from defending his own life when threatened by force will be of no avail, because a person by nature will defend his life. It is instinctual.

So it is with other natural rights... I indicated that the right to arms is derivative of the natural right of self defense. So too is freedom of speech, religion, press, petition and assembly a derivative right. It's source is the natural right of freedom of conscience. People are thinking animals. They will believe what they believe. No law can force them to believe that the sky is green if they believe that the sky is blue. Yes, society can violate that right and punish you for believing the sky is blue, they can pass a law and punish you for defending yourself from attack, they might as well pass a law which prohibits you from breathing... but you will violate that law because you have no choice... So is society wrong in passing a law which prohibits you from breathing, or are you wrong in violating that law?

Natural right theory states that society can not and must not pass such a law.. to do so is a criminal act. Law can only be valid if one is capable of conforming themselves to the requirements of the law. If they can not, then the law is criminal and not the person who is in violation of that law.

Thus, we have the example of the Nazi regime. Their "law" made it unlawful for one to be jewish or of jewish ancestory. Well, it is real difficult for one to retroactively amend their ancestory.. it was impossible to comply with the demands of the law... so they died. Do we condemn them for violating the "law" or do we condemn the "law"... The answer is clear, at least in my mind. How about yours?

Frank Ettin
December 10, 2008, 01:24 AM
...So it is with other natural rights... I indicated that the right to arms is derivative of the natural right of self defense. So too is freedom of speech, religion, press, petition and assembly a derivative right. It's source is the natural right of freedom of conscience. People are thinking animals. They will believe what they believe. No law can force them to believe that the sky is green if they believe that the sky is blue. Yes, society can violate that right and punish you for believing the sky is blue, they can pass a law and punish you for defending yourself from attack, they might as well pass a law which prohibits you from breathing... but you will violate that law because you have no choice... So is society wrong in passing a law which prohibits you from breathing, or are you wrong in violating that law?...
There is also a significant difference between a law that purports to prohibit you from breathing and a law that recognizes your rights of free speech and assembly but requires, for public assemblies of a certain projected size in certain place, but without regard to the content, that you must first get a permit. One key factor is that the law indeed recognizes a way for one to exercise the right, even if it may not permit all possible ways for one to exercise that right.

And then again, we now have laws in many places that might recognize your natural right to exhale, unless, in certain places, the breath you are exhaling contains tobacco smoke.

Audrey
December 10, 2008, 01:30 AM
Until and unless EACH AND EVERY ONE OF US is willing to ASSERT our UNALIENABLE RIGHT to RKBA we will have a society that fiddlesticks advocates.

Is that how YOU want to live?

I do not, have not and will not.

Frank Ettin
December 10, 2008, 02:05 AM
But Audrey, you are living in that society. That is how things are here and now. You are living among folks who object to your owning guns, and they wield political power. You are also living among folks who indeed take the RKBA very seriously but who are willing to put up with some minor inconveniences because the bottom line is that they are still able to have their guns and are in a position to defend themselves, their families and their homes. And in our socio-economically interrelated and interdependent world, these people are providing you with the goods and services that support your life, as you are for them.

And perhaps some of us with whom you disagree, and who you may even have insulted, actually spend their time and money promoting the RKBA.

For years I've helped coach a youth trapshooting team and thus introduced young people to guns and shooting. Many of these kids would not otherwise have had the opportunity to become involved with guns, because their parents were not. And as a result of our efforts some of these parents have become shooters themselves. I've also spent my time and money to become certified as an instructor in a number of shooting disciplines. I've participated in teaching shotgun and wingshooting to many beginners. I also teach, with a group of other instructor, handgun and personal protection classes, again introducing to shooting many people who have never so much have held a gun before.

I've done all this for free -- I've never accepted a penny in compensation of any of this. Neither do the other instructors I work with. And this is a direct, on the ground and tangible contribution to the RKBA.

But if you don't want to live among us, that's fine with me. Go off and be a hermit and live all by yourself. But as long as you're here, whether or not you are willing to acknowledge it, you are living in, and deriving benefit from, a society made up of people with all manner of views on the RKBA, including those who will flatly and unequivocally deny it.

Audrey
December 10, 2008, 02:15 AM
Is the RKBA an unalienable right?

There is only one answer: yes or no.

Frank Ettin
December 10, 2008, 02:23 AM
Is the RKBA an unalienable right?

There is only one answer: yes or no.
If I say "no" do you promise to go off all by yourself and live like a hermit?

I'm not going to play your game. Maybe others will. That's up to them. But I'm not going to play your game because I will not be led around by the nose by you or anyone else.

Bubba613
December 10, 2008, 07:55 AM
Is the RKBA an unalienable right?

There is only one answer: yes or no

Of course it isn't. People in WI for example have no right to bear arms. Therefore the right was alienable.
I think they ought to. I think it's terrible they dont.
But that doesn't change the fact.
People seem to think rights are given by the tooth fairy or something. They aren't. They are brought into law one way or another and reflect societal values. There is no right to privacy in the Constitution. But there is one in American law thanks to Griswold. It was a societal change that occasioned that.

legaleagle_45
December 10, 2008, 10:52 AM
Is the RKBA an unalienable right?

There is only one answer: yes or no.

Looks like I have to play both ends of the spectrum on this one...

No Audrey, the rkba is not an unalienable right. The right to self defense is an unalienable right and the rkba is created by man to enhance and provide for a more effective means of exercising that unalienable right. However, what man creates, man can destroy.

Most of the rights protected in the Bill of Rights are of that type... they are derivative of and relate to underlying natural rights, which are indeed "unalienable", but the derivative rights themselves are not "unalienable".

A more apt question would be is the rkba" a "fundamental" right? Of course, the first issue in that analysis is "fundamental to what?" Let me postulate the first criteria that a fundamental right is one that is essential to a free society.... In which case I would contend that some form of rkba is indeed "fundamental".

Frank Ettin
December 10, 2008, 11:28 AM
...the rkba is not an unalienable right. The right to self defense is an unalienable right and the rkba is created by man to enhance and provide for a more effective means of exercising that unalienable right. However, what man creates, man can destroy.

Most of the rights protected in the Bill of Rights are of that type... they are derivative of and relate to underlying natural rights, which are indeed "unalienable", but the derivative rights themselves are not "unalienable".

A more apt question would be is the rkba" a "fundamental" right? Of course, the first issue in that analysis is "fundamental to what?" Let me postulate the first criteria that a fundamental right is one that is essential to a free society.... In which case I would contend that some form of rkba is indeed "fundamental".
Very well put.

Sam Adams
December 10, 2008, 01:14 PM
We cannot yell "fire" in a theater but isn't that an infringement of the right to free speech?

Your analogy isn't a good parallel. Look at it this way.

Suppose the law required that you attend a training class regarding laws regulating speech, covering topics such as fraud, slander, libel, inciting to riot, etc. You would have to pass a test and be certified in free speech before you could legally enter a theatre, all because you might yell "fire."

Would that be an infringement on your rights?

You see, the 2A addresses the right to "keep and bear." It does not address using arms (actually firing a shot [like actually yelling "fire"]). When it's legal to shoot is a matter addressed by a completely different set of laws. You're suggesting a form of prior restraint on a right, justified by the notion that someone's use of the firearm might be illegal.

I agree with Ed N. The infringement of the 2nd by the feds and the states is in the nature of prior restraint. If the 1st operated like the 2nd, in order to get a permit to enter a theater you'd either have to have you're mouth sewn shut or your tongue removed.

Oh, BTW, you CAN yell "FIRE!" in a crowded theater - though if you'd like to avoid civil suits and a criminal prosecution, there had damned well better be a fire. The reasoning is that such an utterance is highly likely to injure people, so that if people are injured you are responsible (unless you made a true statement). But, no, they don't take your tongue out before the usher takes your ticket.

Cyborg
December 10, 2008, 01:24 PM
fiddletown and legaleagle_45, we do not disagree. The difference is that you are interested in the theory while I concentrate on the practicality. It's like the difference between a scientist and an engineer. There is an old story to compare the two the bottom line of which is that the engineer knows he will eventually get "close enough". Me, I am more of a technician. I tend to blow off the formalisms in the quest to make things work.

For me there is no difference between a right that is violated and one that is taken away. In both cases I lose the ability to exercise that right. I believe in the principle that "a difference that makes no difference IS no difference". While the man from whom JFK cribbed the "Some men see things as they are" quote was a visionary, I am a poor man and if I am going to get by in the world I have to concentrate on how things are so that I can make the best of conditions as they exist. I am free to work towards better conditions, but I first and foremost have to understand the way things are if I am going to get by in this world as it is. I am very much one of those folks fiddletown described as folks who indeed take the RKBA very seriously but who are willing to put up with some [to me, C] minor inconveniences because the bottom line is that they are still able to have their guns and are in a position to defend themselves, their families and their homes.BTW, I consider that protecting/defending hearth and home is a DUTY given to me by Creator God who made me a man, a husband and father and a firstborn son. I believe that my duty was imposed upon me when I was born. I don't like it but I cannot change it without being derelict of said duty.

I believe that being able to carry openly in Texas will allow me to better protect hearth and home.

Of me leagleagle-45 wrote: You seem to have some disagreement with natural right theory... that there are no absolutes, no right or wrong. Everything is judged by the shifting sands of societal sanction.
and he is correct - at least in part. The difference is that I believe that the rightness/wrongness of an action are dependent not on "societal sanction", but on what allows a society to function. People who live entirely to themselves have no need for standards of conduct. It is only when we choose to live in groups that the need arises for stardards of conduct. I believe that laws are just society's way to codify acceptable and prohibited conduct.

If you want to hear/read the story about the scientist, the engineer and the technician, send me a private message. I believe it is VERY illustrative. Also, nothing I wrote here about those interested in things theoretical was intended to be in any way derogatory or perjorative. I respect people who ponder and study theory. I have neither the time, inclination nor spare intellectual horsepower to do so.

Respectfully and sicerely,
Cyborg

legaleagle_45
December 10, 2008, 01:25 PM
I agree with Ed N. The infringement of the 2nd by the feds and the states is in the nature of prior restraint. If the 1st operated like the 2nd, in order to get a permit to enter a theater you'd either have to have you're mouth sewn shut or your tongue removed.

In some instances, the 1st does operate in a manner which can properly be called "prior restraint". The right of the people to peaceably assemble is a 1st Amend right. However, content neutral restrictions on time place and manner are consistantly upheld by the courts. Thus, the need to apply for a parade permit and the like.

Frank Ettin
December 10, 2008, 01:28 PM
Sam Adams,

You apparently have missed some things. There are plenty of examples of the prior restraint of the freedoms of speech and assembly. There are laws requiring the prior regulatory review and approval of certain types of advertising (e. g., solicitations of offers to buy certain types of investments). There are laws requiring obtaining a permit before holding a public assembly.

See posts #3 and #42.

Frank Ettin
December 10, 2008, 01:39 PM
...I concentrate on the practicality....
It's very important to remember the practical side of things. I always ask what the goal is. Here, is the goal ideological purity or to find a way that will permit honest folks in Texas to lawfully carry their guns openly?

legaleagle_45
December 10, 2008, 02:19 PM
It's very important to remember the practical side of things. I always ask what the goal is.

Lawyer joke de jure...

The city council for a small but growing town decided that it was time to hire a city attorney on a full time basis, as it was no longer cost effective to parcel out the legal work the town needed to have done to private law firms. One of the council members opined that the search for a city attorney should be relatively simple, there being no real distinction between attorneys. The Mayor disagreed and to prove his point, arranged to have the council sit in on interviews of 3 different lawyers.

The first lawyer interviewed was a recent graduate of a local law school. The mayor asked only one question "What is 2+2?" To which the young lawyer responded "The answer is 4". The Mayor thanked him for his time and excused him while calling in the 2nd candidate.

The 2nd lawyer was a recent honors graduate from Harvard Law, who had decided to eskew the big city offers he had recieved in order to return to his home town. Again, the Mayor asked only one question "What is 2+2?" To which the Harvard grad responded "The answer is 4 if you are using base 10, 10 if you are using Base 4, 11 if you are using Base 3 and 100 if you are using Base 2". The Mayor thanked him for his time and excused him, while the other members of the city council sat in amazement. "You are right, there is a big difference between lawyers, we should hire the Harvard guy!!!" The mayor merely smiled and called in the 3rd candidate.

An old country lawyer appeared... white hair, pot bellied and wearing suspenders. Again, the Mayor asked only one question "What is 2+2?" The old country lawyer stood up, peered over his glasses while holding onto his suspenders with both hands and replied "What would you like it to be?"

The city council unanimously agreed to hire the old country lawyer...

Cyborg
December 10, 2008, 03:46 PM
leagaleagle, that story scares the crud outta me. :eek: :what: Not that I think it is wrong, just that it illustrates so very well what total whores lawyers can be. Irrespective of the wording of the statute, lawyers can always twist things to suit their needs. And that is frightening for a layman such as myself. When I was a the BLE course in 06 I spent a lot of time in the Texas Penal Code. There are lots of amendments in the code that obviously were added because some defense attorney got creative. The one that comes to mind is in the statute covering online solicitation of a minor for sexual purposes. The statute defines a minor as: Sec. 33.021. ONLINE SOLICITATION OF A MINOR. (a) In this section:
(1) "Minor" means:
(A) an individual who represents himself or herself to be younger than 17 years of age; or
(B) an individual whom the actor believes to be younger than 17 years of age.
so the true age of the person the perp solicited is irrelevant (I can see the fine hand of a defense attorney in that, can't you?). Plus, it specifically excludes a defense based on the the person doing the soliciting allegedly indulging in a fantasy Sec. 33.021.d) It is not a defense to prosecution under Subsection (c) that:
(1) the meeting did not occur;
(2) the actor did not intend for the meeting to occur; or
(3) the actor was engaged in a fantasy at the time of commission of the offense. I hope I am not the only one who sees the legislators closing loopholes "found" (created??) by defense attorneys.

What legaleagle's story illustrates is that the law is what lawyers SAY it is. Irrespective of anyone's fantasies, in practical terms nothing is illegal unless you are caught and prosecuted for it. If the DPS troopers are not writing citations for speeding until the speeder is going >10mph over the posted limit on I10, then going 5 miles over the posted limit is not illegal. Getting back to the topic at hand, nothing is an infringement of the RKBA until and unless the SCOTUS says it is. Legaleagle-45 is right. I do not believe there ARE any absolutes - only conduct for which I am prosecuted. The best illustration of this principle is where the legislature clarified the law that allows one to have a gun in their vehicle when travelling. The legislature expressly said travelling meant going from anythwere to anywhere in a vehicle. Prosecutors in Houston and other places ignored that and continued to operate under the old interpretation of the law. Irrespective of the legislature's express intent, the law was what prosecutors were willing to go after people for. In San Antonio, under the current DA, aggravated assault of a peace officer only occurs if the cop is hurt badly enough to spend at least 3 days in hospital. I guarantee, there is nothing in TPC's definition of "serious bodily injury" (what makes an assault aggravated) that mentions hospital time.

legaleagle_45
December 10, 2008, 05:44 PM
leagaleagle, that story scares the crud outta me. :evil:

Not that I think it is wrong, just that it illustrates so very well what total whores lawyers can be.

Yeah, but we are high priced whores...:neener:

I realize that the terminology "lawyers ethics" is oft times described as an oxymoron similar to "military intelligence", however, lawyers (for the most part anyway) do have ethics, it is merely skewed from the norm. We live within an adversarial system of justice. A lawyer is ethically bound to advocate his client's position "zealously" within the bounds of the law (e.g. no bribing of judges allowed) even if the lawyer finds the position asserted to be personally repugnant. To fail to do so is not merely a disservice to your client, but a disservice to society. It is not the job of a lawyer to declare what the law is. It is their job to advocate what the law should be. It is the job of the judge to determine what the law is. Through the process of the adversarial system a judge is provided with both sides of the story and can more adequately and intelligently do his job, which is to determine what the law is. If an attorney fails in his quest to zealously advocate his client's case, then the judge is not adequately prepared to declare what the law is because he has not heard all of the appropriate argument from both sides.... thus a disservice to society.

Now, to weave this thought back into the subject of this thread, in order for an attorney to adequately advocate what the law should be, it is essential to know the "why" of the law... the philosophical underpinnings of same. In my job, it does in fact make a difference in my capacty and ability to advocate... and it is not merely "a difference that makes no difference." However, I realize that for most individuals not in the legal profession, it is indeed a distinction without a difference.

ConstitutionCowboy
December 10, 2008, 09:29 PM
"Inalienable Rights"

Beautiful words but they are no more real than "sea level". There is no "right" that anyone has that cannot be taken away by someone else with the ability, the means and the will to utilize superior force.

Life? A large caliber hollow point in the upper left chest will put paid to that.

Liberty? A gun to the head and a set of manacles will take care of that. Or do you suppose that the black Africans who were forcibly immigrated to the Americas volunteered to travel under the deplorable conditions and then be treated as sub-human property?

Persuit of happiness? Define it and I suspect I'll come up with a way to keep you from it.

In all these cases, all you've done is infringe the rights. The rights still exist. We keep and bear arms so that no one shall infringe those rights without due process or negative consequences. To take away my life, liberty, and pursuit of happiness without due process, you'll indeed need to kill me - or face death yourself in your quest.

People, the constitution means exactly what the Supreme Court Of the United States SAYS it means! If SCOTUS decides that there is a "Right to privacy" in the constitution then there is - until a later court says there isn't. If SCOTUS says the 2A is a corporate right then it is. It matters not what you or I or anyone else believes, SCOTUS, as final arbiter of all constitutional issues, is the de facto the supreme law of the land.

Um - where did you learn to read? The Constitution is the Supreme Law of the Land, and the Court only gets to say what it says as long as we the people allow the Court to say what it says.

If the incoming administration via legislation passed by congress and approved by SCOTUS decides to take up all guns in the country they bloody well will do it - AND IT WILL BE LEGAL. Hopefully they will not have the political will to do that. So they pass a new "permanent" AWB. Guess what, amigos? Ain't nothing in Washington DC permanent! Pendulums swing both ways. Anything done by the new administration can be undone by subsequent administrations.

If those in Congress, the Administration, and on the Court do not have the political will to make the keeping and bearing of arms illegal, it's because, as daft as they are, they realize it will be a bloodbath. Many of us out here might die, but so will all the infringers. Then, we'll be left with a society populated by people who believe in human rights and the sanctity thereof. That's the kind of world I want for my kids. If you settle for being a live jackal, that's all your kids will ever be as well.

fiddletown,

You won't answer me because there is no such power granted to the Court. It's all usurpation. It won't require you to distill your 35 years of studying the law, but it might take what I hope was at least one semester of constitutional study during your college years. That power that is affecting the real world is illegitimate where it concerns those afore mentioned "permissible grounds". Is it so difficult for you to admit that these "permissible grounds" don't exist in the Constitution, and the Court hasn't been granted the power to make them up?

Hi woody. It does indeed matter.. If the right is not "God Given" and/or a "natural right" then by consequence, it must be created by man. Now obviously, if something is made by man, the question then arises, when was it made and how was it made? It is only when you can answer those question can you begin to discover what exactly the right to keep and bear arms is.

All one needs to know is what the contextual word "arms" means. The Second Amendment takes over from there. It doesn't matter from whence the right comes. The Second Amendment prohibits government to infringe upon it. Attempting to confuse or obfuscate origins is simply a game; an attempt to distract from the real issue.

There is also a significant difference between a law that purports to prohibit you from breathing and a law that recognizes your rights of free speech and assembly but requires, for public assemblies of a certain projected size in certain place, but without regard to the content, that you must first get a permit. One key factor is that the law indeed recognizes a way for one to exercise the right, even if it may not permit all possible ways for one to exercise that right.

That is a fallacious example. No on has a right to free speech. Our speech is protected from abridgment by the government. Period. The protection of our right to assemble is limited to assembling peaceably. Being forced to acquire a permit does not violate that right so long as the purpose of the permit only and specifically assures it will be a peaceable assembly.

No Audrey, the rkba is not an unalienable right. The right to self defense is an unalienable right and the rkba is created by man to enhance and provide for a more effective means of exercising that unalienable right. However, what man creates, man can destroy.

This is an interesting spin on the Right to Keep and Bear Arms, legaleagle. Any arms created by man are a direct consequence and a prerequisite of man's inalienable right to self defense. We didn't create the right. Whether I block your punch with my forearm, or meet your flying fist with a rock in mine, I've defended myself from your punch. I used the rock as a consequence of having to defend myself while absorbing the least physical harm to myself. It's no different than using a firearm to halt your aggression. My right to defend myself from a charging grizzly is proof enough that man relies upon his inalienable creativity to defend himself. A forearm, or even a rock is hardly sufficient in the case of the grizzly.

I have the right to defend myself by what ever means necessary, and you have no right to prohibit me from defending myself, nor have those of us in government been granted power - or have power simply because they comprise government - to prohibit me defending myself. Government at certain levels may limit my use of arms in defending myself in certain cases so long as it doesn't render my self defense ineffective or dubious, but may not limit my keeping and bearing of whatever arms I so choose.

Have you ever seen a law that prohibited aggression that was so effective that even grizzlies abided it? How about the Adolph Hitlers of the world...?

Woody

Our government was designed by our Founding Fathers to fit within the framework of our rights and not vise versa. Any other "interpretation" of the Constitution is either through ignorance or is deliberately subversive. B.E. Wood

punkndisorderly
December 10, 2008, 10:07 PM
If you can't pass either the written or the live fire portions of the Texas carry test, it's in society's best interest that you NOT be armed. Seriously, it's not something that takes much skill or intelligence.

If you can't hit a man sized target at 3 and 7 meters consistantly under optimal circumstances, you shouldn't be carrying.

If you're not able to know or at least use common sense to figure out even the basics of gun safety, state laws, and such to pass a written test, you probably shouldn't be carrying.

My wife came within 2 points of passing her first time shooting a glock pistol with perhaps 20 rounds of centerfire before that.

That said, can someone explain WHY they would want to open carry other than farmers, ranchers, and hunters out in the country when carrying concealed is already allowed. Most of the people I've talked to that wanted open carry struck me as falling into two camps: the "because the second amendment says I can" camp and the "so I can look cool at the mall" camp.

legaleagle_45
December 10, 2008, 10:50 PM
Originally Posted by ConstitutionCowboy
All one needs to know is what the contextual word "arms" means. The Second Amendment takes over from there. It doesn't matter from whence the right comes.

Only if you believe the rkba originated with the 2nd Amend. If it did, then all one need do is look at the 2nd., try to figure out the definitions of the words and phrases and then you are done. However, I do not believe you think that the rkba originated with the 2nd.

Originally Posted by ConstitutionCowboy
Attempting to confuse or obfuscate origins is simply a game; an attempt to distract from the real issue.

Incorrect. You have claimed on numerous occasions that the rkba arose before the 2nd and that the 2nd merely prohibits the infringement thereof.. It does NOT create the rkba. Well, I think it is rather important to know just exactly what we are not supposed to be infringing upon, don't you? What exactly is the nature of the preexisting right which the 2nd protects from infringement? To suggest that I am is attempting to confuse or obfuscate, is, in fact an attempt by you to confuse or obfuscate. Other preexisting rights which are protected by the BoR's have their scope and nature explained and delineated by their historical preexisting precedents. The 4th amend historical exceptions for warrantless arrests when a crime is committed in ones presence is an example, as is 1st Amend non application to libel and slander. Those preexisting rights all had preexisting precedents which we employ even today to explain the breadth and scope of the right as well as the limitations thereto. The 2nd is no exception to this method, Woody. In fact, I am rather amazed that you do not want to discuss what this preexisting right was.


Originally Posted by ConstitutionCowboy
This is an interesting spin on the Right to Keep and Bear Arms, legaleagle.

I am glad you find it interesting, but I confess it is not original or unique. It is similarly described as such by Blackstone in his Commentaries, also by St George Tucker and by Story.

Originally Posted by ConstitutionCowboy
It's no different than using a firearm to halt your aggression.

It is different for the simple reason that a firearm is the creation of man, it is not a creation of either God or nature. Sorry Woody, I will stick by Blackstone, Tucker and Story and refuse to allocate the rkba to the category "inalienable rights" and leave it within the category of "fundamental rights" where it properly belongs... Yeah, I know it is a demotion of sorts, but to do otherwise kinda messes up the whole fabric and logic of the natural law philosophy, and I do not want to do that. Sorta like a true baseball fan and afficionado being forced to endure the abomination known as the "designated hitter rule".

Audrey
December 10, 2008, 11:11 PM
Wow.

Sounds like an NRA meeting in here.

"How can we all agree how to limit the RKBA?"

Good thing a few of the founding fathers had a few "theories" they wouldn't compromise and were willing to die for. I for one am thankful. We need to spawn a few more of them, and sooner rather than later it appears.

I joined THR thinking I might find some likeminded "theorists;" perhaps they're off being hermits ...

legaleagle_45
December 10, 2008, 11:36 PM
Originally Posted by Audrey
I joined THR thinking I might find some likeminded "theorists;" perhaps they're off being hermits ...

Audrey, meet ConstitutionCowboy; ConstitutionCowboy, meet Audrey. Your comments reminds me of a joke, to wit:

I was walking across a bridge one day, and I saw a man standing on the edge, about to jump off. I immediately ran over and said "Stop! Don't do it!"

"Why shouldn't I?" he said.

I said, "Well, there's so much to live for!"

"Like what?"

"Well ... are you religious or atheist?"

"Religious."

"Me too! Are you Christian or Jewish?"

"Christian."

"Me too! Are you Catholic or Protestant?"

"Protestant."

"Me too! Are you Episcopalian or Baptist?"

"Baptist."

"Wow! Me too! Are you Baptist Church of God or Baptist Church of the Lord?"

"Baptist Church of God."

"Me too! Are you Original Baptist Church of God, or are you Reformed Baptist Church of God?"

"Reformed Baptist Church of God."

"Me too! Are you Reformed Baptist Church of God, reformation of 1879, or Reformed Baptist Church of God, reformation of 1915?"

"Reformed Baptist Church of God, reformation of 1915!"

To which I said, "Then die, heretic scum!" and pushed him off.

Frank Ettin
December 11, 2008, 12:01 AM
...leagaleagle, that story scares the crud outta me... Not that I think it is wrong, just that it illustrates so very well what total whores lawyers can be....
But the reality is that we are obligated to (1) zealously represent the interests of our client, within the bounds of the law; (2) tell our client's story to the best advantage of our client, within the bounds of the law; and (3) to the extent possible within the bounds of the law achieve the goals of our client. legaleagle stated it very well.

...We live within an adversarial system of justice. A lawyer is ethically bound to advocate his client's position "zealously" within the bounds of the law (e.g. no bribing of judges allowed) even if the lawyer finds the position asserted to be personally repugnant. To fail to do so is not merely a disservice to your client, but a disservice to society. It is not the job of a lawyer to declare what the law is. It is their job to advocate what the law should be. It is the job of the judge to determine what the law is....
I would propose an amendment. It is the lawyer's job as advocate to advocate what the law should be. It is the lawyer's job as counselor to advise the client what a judge would be most likely to rule that the law is under various circumstances so that the client can order his conduct in such a way as to best realize his goals.

fiddletown,

You won't answer me because there is no such power granted to the Court. It's all usurpation. It won't require you to distill your 35 years of studying the law, but it might take what I hope was at least one semester of constitutional study during your college years.
[1] Actually, the court decisions relating to the permissible regulation of Constitutionally protected rights were fully covered in my Constitutional Law class in law school. There may have even been a bar exam question on it, but I can't remember at this point.

[2] And it doesn't matter whether you understand or accept it, because courts will continue to rule this way whether or not you do. It is reality. Just as gravity is reality. Whether or not you accept or understand gravity, if you jump from a tall bridge, you will fall and hurt yourself.

[3] If you really want to understand the law, the libraries are there for you. But I'm not going to take the trouble because I really don't care whether or not you understand things, since whether or not you understand doesn't matter in the real world anyway. And I also don't think that you're really interested in understanding the law. You are inexorably tied to certain preconceived notions that stand in your way of understanding the law.

...The Constitution is the Supreme Law of the Land, and the Court only gets to say what it says as long as we the people allow the Court to say what it says....
Go ahead and stop them from doing so.

That is a fallacious example. No on has a right to free speech. Our speech is protected from abridgment by the government....
Nonsense. A law requiring a permit for an assembly is government abridging your free speech. It prevents you from addressing your throng without jumping through some hoops. It is, however, an abridgment that courts have allowed insofar as it serves the compelling state interest in protecting public health and safety, by, among other things requiring you to show adequate provision for traffic control and sanitation. Laws requiring the prior regulatory review and approval of certain types of advertising (e. g., solicitations of offers to buy certain types of investments) are also governmental abridgments of free speech that courts have permitted.

Good thing a few of the founding fathers had a few "theories" they wouldn't compromise...
You're a little weak on your American history. The Founding Fathers didn't all agree with each other. From the drafting of the Declaration of Independence to the adoption of the Articles of Confederation (which failed) to the drafting of the Constitution, to the drafting of the Bill of Rights and its incorporation into the Constitution to the ratification of the Constitution, the birth of this nation was an extended exercise in political process, including compromise, harmonizing divergent views and accommodating disparate interests.

Audrey
December 11, 2008, 10:47 AM
You are a little weak in reading comprehension.

"A FEW" of the founding fathers were unwilling to compromise their principles. Many others, like you, were looking to do the "reasonable" thing as well as the "parasitic" thing. Fortunately, there were A FEW who stood for RIGHT.

And the Articles of Confederation were in place when the first Constitutional Convention was called in 1787. The result of the Convention was the Constitution.

Are you aware that 32 states have already called for another Constitutional Convention? 34 are needed to convene. Ohio introduced the measure on 3 December 2008, and were set to have a Judiciary Committee vote yesterday, 10 December, but postponed it when a few citizens showed up voicing their concerns.

Although the Convention is being called under Article V for a balanced budget Amendment, the Convention will not be limited to discussing and/or abolishing any Amendment they see fit, including the 2nd.

The delegates to the Convention are chosen by Congress and do not need to be elected representatives.

I urge everyone reading this to contact your state representives and let them know you prefer our current Constitution. Do you really want this lame duck Congress to appoint the representatives that can write a new Constitution?

Frank Ettin
December 11, 2008, 11:37 AM
...the Articles of Confederation were in place when the first Constitutional Convention was called...
Yes it was. But the first Constitutional Convention was called because things weren't working out well under the Articles.

A FEW" of the founding fathers were unwilling to compromise their principles....
Fortunately, at least one was willing to compromise. James Madison originally opposed adding a Bill of Rights. In part because of the urging of Thomas Jefferson, he then prepared the first draft of a Bill of Rights, hoping to help reconcile the Federalists and Anti-Federalists and head off a second Constitutional Convention. In effect, the Bill of Rights came into being only because of a willingness to compromise.

Then again, the Constitution would not even have been ratified if Samuel Adams and John Hancock hadn't been able to work out the Massachusetts Compromise that allowed Massachusetts to ratify the Constitution.

legaleagle_45
December 11, 2008, 03:19 PM
Originally Posted by fiddletown
Fortunately, at least one was willing to compromise. James Madison originally opposed adding a Bill of Rights. In part because of the urging of Thomas Jefferson, he then prepared the first draft of a Bill of Rights, hoping to help reconcile the Federalists and Anti-Federalists and head off a second Constitutional Convention. In effect, the Bill of Rights came into being only because of a willingness to compromise.

Actually it was a bit more complex than that. Indeed, there were 2 primary groups, the Federalists, who supported ratification of the Constitution, and the Anti-Federalists, who opposed ratification. Within each group there was a conflict of opposing ideaology. Many of the Anti-Federalist were opposed to any form of a strong federal government. Among this group, I would include Patrick Henry. In the Virginia ratifying convention, Pat, being a silver tounged devil, eloquently opposed almost every clause of the proposed Constitution (the ratifying convention took each clause in order and debated the merits of same before going on to the next clause). He even opposed the wording of the Preamble, asserting that it should read "We the States..." instead of we the people. For this group, the absence of a Bill of Rights, was primarily seen as the method to defeat ratification. Of all the arguments dreamt up by the Anti-Federalists, this issue gained the most traction with the people, and thus was the foremost argument used to defeat the Constitution... for them it was merely a means to an end.

Perhaps that needs some additional explanation. Ratification, in order to be effective, could not vary the text of the proposed constitution. They could not say "we ratify the constitution, but only if these amendments are included". It was an all or nothing proposal. It was hoped that a demand for a Bill of Rights (and other proposed amendments) would necessarily lead to another Constitutional Convention which would include the amendments sought. From a pragmatic standpoint, this would never occur for a variety of reasons which both the Anti-Fedralists and the Federalists well knew.

The Federalists, on the other hand, were in a quandry. They were not idealogically opposed to the concept of individual rights, yet they wanted the Constitution ratified, which necessarily meant they had to oppose the inclusion of a Bill of Rights.... so they dreamed up reasons why the Bill of Rights was not only unnecessary but downright dangerous (they were REALLY good, LOL). Perhaps the best expression of this argument was made by Alexander Hamilton in the Federalist Papers #84:

http://avalon.law.yale.edu/18th_century/fed84.asp

These arguments were to no avail, as the question of the Bill of Rights had great popular support, and the fate of our Constitution was in peril... dark days indeed.

What rescued the Constitution was a compromise, which had more support from the Federalists than the Anti-Federalists. Actually, there were 2 proposals. The first was suggested by letter from Jefferson who was in Paris. What he proposed was that 9, and only 9, states ratify the constitution (that being the minimum # of states necessary to breath life into the constitution). The remaining 4 states would specifically with hold approval until a Bill of Rights was adopted by the first Congress. This proposal was not adopted. The 2nd proposal, and the one that was adopted, was that the states would ratify the Constitution, as is, but with the explicit direction to the senators and representatives which would be elected to Congress from their states, to propose and seek a Bill of Rights in the 1st Congress. With this compromise, the Constitution was ratified, but just barely.

What is interesting is that in the 1st Congress, the primary proponents of a Bill of Rights were federalists, who felt duty bound to seek same by virtue of their pledge to seek same. Many Anti-Federalists grumbeled that such an exercise was a "waste of their time". So I guess it would not be unfair to say that the reason we have a Bill of Rights is not because the Founders were so deeply concerned about securing our individual liberties in the Bill of Rights, but were more concerned with either defeating or saving the governmental system outlined in the Constitution itself, sans any amendments. Politics as usual.

Phil Lee
December 11, 2008, 04:10 PM
I see several of you using the old analog argument connected with the first amendment not protecting the right to yell fire in a theater.

Too many alter the original quote from Oliver Wendell Holmes from his opinion in SCHENCK v. U.S., 249 U.S. 47 (1919) (http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=US&vol=249&invol=47). It would be useful to read what he has said:
The most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre and causing a panic. It does not even protect a man from an injunction against uttering words that may have all the effect of force. Gompers v. Buck's Stove & Range Co., 221 U.S. 418, 439 , 31 S. Sup. Ct. 492, 55 L. ed. 797, 34 L. R. A. (N. S.) 874. The question in every case is whether the words used are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent. It is a question of proximity and degree.

Two things to observe. Speech which creates a clear and present danger such as falsely shouting fire in a theater isn't protected by the First Amendment. Neither would be bearing arms with the intent to rob a bank be protected by the Second Amendment.

The issues are of prior restraint which is applied in the case of bear arms and not in the case of shouting fire. Laws may be passed regulating speech (e.g., requiring it to be true insofar as may be reasonably known if it creates a danger, otherwise unlawful). Laws may be passed regulating the use of arms (e.g., regulating the reason for firing a firearm in town or at another individual).

What legaleagle45 said earlier about the responsibility for lawyers to be advocates for what the law should be is equally true for RKBA activists. I see many reasons to be skeptically with prior restraints on the right to keep and bear arms, but the use of arms should be rationally regulated; so, a law punishing use of a firearm in a criminal act is reasonable restraint; a law punishing the keeping and bearing of a firearm in a non-threatening manner doesn't appear to me to be a reasonable one -- being prior restraint only for the convenience of the state at the expense of law-abiding people. I think it is a mistake for RKBA activists to worry too much about where the bounds should be.

It is the grabbers who feel we have too much freedom at present.

I would wait until we have so much freedom to keep and carry arms that most people would agree we have created a problem. When that happens, we can worry about too much freedom become licentious.

ConstitutionCowboy
December 11, 2008, 11:41 PM
Incorrect. You have claimed on numerous occasions that the rkba arose before the 2nd and that the 2nd merely prohibits the infringement thereof.. It does NOT create the rkba. Well, I think it is rather important to know just exactly what we are not supposed to be infringing upon, don't you? What exactly is the nature of the preexisting right which the 2nd protects from infringement? To suggest that I am is attempting to confuse or obfuscate, is, in fact an attempt by you to confuse or obfuscate. Other preexisting rights which are protected by the BoR's have their scope and nature explained and delineated by their historical preexisting precedents. The 4th amend historical exceptions for warrantless arrests when a crime is committed in ones presence is an example, as is 1st Amend non application to libel and slander. Those preexisting rights all had preexisting precedents which we employ even today to explain the breadth and scope of the right as well as the limitations thereto. The 2nd is no exception to this method, Woody. In fact, I am rather amazed that you do not want to discuss what this preexisting right was.

Yes, I claim that the RKBA preexists the Constitution and the Second Amendment. I always have. The nature of what government is not supposed to infringe is our right to keep and bear weapons of offense and armour of defense. All you are doing is trying to find grounds to limit what the right encompasses; to put limits on our keeping and bearing of arms and claim the right to keep and bear arms does not extend beyond those limits you wish to be set. What you are saying is that same old mantra that the right shouldn't include weapons of mass destruction or some such upper limit.

Your problem is, however, the right to keep and bear arms as protected by the Second Amendment has no limit. You seek to limit the right without constitutional authority. You are attempting to "define" the right, using the same tactic the Court has used in the past, such as when the Court added "limit" and "prohibit" to the definition of "regulate" in the commerce clause. (Now that Scalia, Roberts, Kennedy, Thomas and Alito have introduced period dictionaries into the Court's bag of tricks to clarify the meanings of words as used in the Constitution to flush out original intent, that may soon be corrected.)

Your claim that the Second Amendment must be the origination point of the Right to Keep and Bear Arms for it to protect the Right to Keep and Bear Arms is absurd. I believe Gork the caveman with his club that he kept and bore to protect and feed himself and his beautiful wife Krog and their kids would disagree with you.

Your attempt to equate the Second Amendment with the First and Fourth is also an absurdity.

The First Amendment deals with the use of speech, practicing faith, and the right to assemble peaceably and to petition the government. These are all actions, or uses. These are physical things that can affect others if not conducted in the framework or the scope of the enumerated limits upon the government to exercise its powers over these individual rights and freedoms.

The Fourth Amendment, like the First, limits the power of government to exercise those powers over individual rights such that those individual rights may not be hid behind to mask illegal activity or avoid prosecution for same.

Keeping and Bearing Arms is benign and innocuous. No arm in my collection or that I bear with me does anyone any harm. We're not talking any manner of use that could cause anyone any harm, just the keeping and/or bearing of arms. No matter what arms or how many arms I keep and bear will limit or infringe upon anyone else's right to keep and bear what ever arms they so choose, nor will it infringe upon or abridge anyone's other rights or freedoms. Exercising the right can't. What is being kept and borne is an inanimate object.

As for Blackstone, Tucker, and Story; did they write the Second Amendment? Did they invent the Right to Keep and Bear Arms? Did they admonish Gork for carrying his club - the state of the art of weapons of his time - about the cave complex? What ever logic and opinion bantered about by these fine gentlemen is irrelevant. What matters is what the Founding Fathers penned and the several states ratified.

[1] Actually, the court decisions relating to the permissible regulation of Constitutionally protected rights were fully covered in my Constitutional Law class in law school. There may have even been a bar exam question on it, but I can't remember at this point.

[2] And it doesn't matter whether you understand or accept it, because courts will continue to rule this way whether or not you do. It is reality. Just as gravity is reality. Whether or not you accept or understand gravity, if you jump from a tall bridge, you will fall and hurt yourself.

[3] If you really want to understand the law, the libraries are there for you. But I'm not going to take the trouble because I really don't care whether or not you understand things, since whether or not you understand doesn't matter in the real world anyway. And I also don't think that you're really interested in understanding the law. You are inexorably tied to certain preconceived notions that stand in your way of understanding the law.

Still, you dodge the question. I fully understand how the courts rule, how it is the "norm", and I understand the law. How else do you suppose I could understand what is constitutional and what is not!

Like anyone else, I'm obliged to follow the law and to live with what ever the courts tend to puke. I am, however, not obliged to swallow the unconstitutional drivel. Too much of what comes out of the Court is politically biased and agenda driven. It's so blatant that it's embarrassing! Even worse, it is insulting to know that some of these clowns on the Court believe their drivel will be swallowed - hook, line, and sinker.

The outcome of ninety-nine percent of all cases dealing with constitutionality brought before the Court should be as predictable as that example you posited on the effect of gravity on a person jumping off a bridge.

Nonsense. A law requiring a permit for an assembly is government abridging your free speech.

You've got your wires crossed. A law requiring a permit for an assembly is government assuring that your assembly will be peaceable.

And, none of this has to do with speech:

It prevents you from addressing your throng without jumping through some hoops. It is, however, an abridgment that courts have allowed insofar as it serves the compelling state interest in protecting public health and safety, by, among other things requiring you to show adequate provision for traffic control and sanitation.
Laws requiring the prior regulatory review and approval of certain types of advertising (e. g., solicitations of offers to buy certain types of investments) are also governmental abridgments of free speech that courts have permitted.

These things are simply prior restraint of fraud(or, at least attempts to that end...). Following the "regulations" on advertising are not an abridgment of the freedom of speech. You may say whatever you want so long as it doesn't cross the line. It's really no different than the case of slander and libel. These regulations do not actually prevent you from crossing the line, however. I think the Enron debacle is evidence of that. If Ken Lay and company had to pass everything they told their clients through the SEC's sphincter first, I don't think anyone would have lost as much as they did, and Enron would have had to come clean from the git-go - well, as clean as you can be after passing through a governmental agency's sphincter.

I would wait until we have so much freedom to keep and carry arms that most people would agree we have created a problem. When that happens, we can worry about too much freedom become licentious.

That hasn't ever occurred nor could it. It's like saying we have too much freedom to wear clothes and too much freedom to store them in a closet when we aren't wearing them.

Woody

This crap will continue until the Court stops allowing itself to be misused as a legislative branch of government, or as an alternative to amending the Constitution. B.E. Wood

Frank Ettin
December 12, 2008, 12:36 AM
..I am, however, not obliged to swallow the unconstitutional drivel....
And exactly where in the Constitution are you appointed arbiter of what is and is not Constitutional?

...A law requiring a permit for an assembly is government assuring that your assembly will be peaceable.

And, none of this has to do with speech:...
Of course it has to do with both speech and assembly because the permit requirement is a hurdle to be gotten over before you can speak or assemble. And the permit has nothing to do with being peaceable. The reference to "peaceably to assemble" in the First Amendment simply, on its face, means that riots aren't protected. There are other laws that prohibit rioting. A permit can't prevent a riot. The permit process is about assuring that someone is directing traffic and that there will be ways for participant to answer a call of nature without risk to the public health.

...Following the "regulations" on advertising are not an abridgment of the freedom of speech....
Of course it is. You are not free to say what you want, even if truthful, if it doesn't satisfy the regulations and regulators. Some of these regulations are very specific about what can and can not be said about certain matters. Some of these regulations require that certain text be in certain places in the document or be printed in certain size type. And many of these regulations require prior review and approval by the regulators, which approval may often not be forthcoming unless changes are made to satisfy regulatory objections.

And of course all this abridges freedom of speech, because you are not free to say things, even truthful, exactly the way you want to. And many of these requirements constitute prior restraint. And of course this is all for the purpose of assuring full disclosure. But, as the Enron situation has demonstrated, these regulations don't necessarily prevent fraud when someone chooses to "cook the books."

Remember the First Amendment says, "Congress shall make no law ...abridging the freedom of speech...." It doesn't say, "Congress shall make no law ...abridging the freedom of truthful, non-defamatory, non-misleading speech that satisfies regulatory standards...."

Doesn't it make you wonder what part of "no law abridging" government doesn't understand?

legaleagle_45
December 12, 2008, 01:09 AM
Originally Posted by ConstitutionCowboy
Yes, I claim that the RKBA preexists the Constitution and the Second Amendment. I always have. The nature of what government is not supposed to infringe is our right to keep and bear weapons of offense and armour of defense.

Then does it not make sense to try to discern what exactly that preexisting right was? If you do not know what it was, how can you possibly know what it is?

Originally Posted by ConstitutionCowboy
All you are doing is trying to find grounds to limit what the right encompasses;

Nope. What I am trying to do is discover what the right encompasses. In order to do that we must examine its source. Are you afraid to discuss what the right was?

Originally Posted by ConstitutionCowboy
Your problem is, however, the right to keep and bear arms as protected by the Second Amendment has no limit.

I suggest that you have no idea whether it is limited or wheter it is limitless because you refuse to examine what it was.

Originally Posted by ConstitutionCowboy
Your claim that the Second Amendment must be the origination point of the Right to Keep and Bear Arms for it to protect the Right to Keep and Bear Arms is absurd.

I never claimed that. I claim that the right is derived from an ancient and honored right of englishmen that developed over a rather lengthy period of time. It did not come into existence over night... it evolved from the age of the vikings, through the Norman Conquest, was given substance by some ancient statutes in the 12th Century grew in strenth in the era of Cromwell, was abused during the restoration which resulted in its first written expression during the Glorious Revolution and that the contours of that right were described and interpreted by the courts in the period immediatly following same leading right up to its expression in the 2nd Amend. That is where you must look to understand what the right is.

Originally Posted by ConstitutionCowboy
I believe Gork the caveman with his club that he kept and bore to protect and feed himself and his beautiful wife Krog and their kids would disagree with you.

I believe you are being silly.

Originally Posted by ConstitutionCowboy
Your attempt to equate the Second Amendment with the First and Fourth is also an absurdity.


Obviously you did not understand what I said. Or perhaps you merely do not wish to understand. What I said was that ALL of these rights have an historical pedigree, the nature and scope of those rights can only be understood if you examine what that right was, how it was understood, what were the exceptions, what were the limitations. Each of those rights has its own history and each must me exmanied seperately to understand its scope. In other words, the methodolgy employed to examine the historical roots of each of those rights is similar, even though the actual history of the evolution of same differs as does the very nature of the right which it protects. I can not believe that you failed so completely to understand what I was saying unless you are purposely evading what I actually said.

Originally Posted by ConstitutionCowboy
As for Blackstone, Tucker, and Story; did they write the Second Amendment?

Story, no. Blackstone and Tucker were quite influential in writing the 2nd Amend. Tucker directly and Blackstone indirectly. Tucker was the Dean of the most influential Colonial Law School of the age, William and Mary, his input was sought and given regarding the many portions of the Constitution, including the 2nd Amend. Blackstone was the leading authority of the age. During the Virginia Ratifying Convention, Madison stated during the debates that "each man here has a copy of Blackstone's commentaries." I assure you his influence was far greater than your most reliable authority yet cited, that being the revered legal commentator, Gork the caveman and his equally intelligent and beautiful wife Krog. Story comes only after the 2nd was written, but within the same same generation. His commentaries on the Constitution are considered quite authoritative, what being an esteemed justice of the US Supreme Court... I realize that does not quite match Gorks qualifications, but whose does?

Originally Posted by ConstitutionCowboy
What ever logic and opinion bantered about by these fine gentlemen is irrelevant. What matters is what the Founding Fathers penned and the several states ratified.

ONLY if you believe that the framers invented the rkba, if they did not, than you are merely burying your head in the sand. If you refuse to look at what the preexisting right ACTUALLY was, then you have absolutely no right to say what the 2nd protects... because you refuse to look at what that right was... Kinda silly of you, don't ya think?

Phil Lee
December 12, 2008, 09:07 AM
fiddletown claims: You are not free to say what you want, even if truthful, if it doesn't satisfy the regulations and regulators.

Actually, I believe that I am free to say what I want if it is truthful except for cases wherein I violate contracts that I've agreed to voluntarily. For example, I may not speak truthfully to violate a trade secret that I've learned while employed by a company.

Also, the first Amendment protects persons, not entities. Companies may have been given some first Amendment like protections by Courts, but commercial speech isn't the object of the first Amendment.

Nor, I realize, may I speak state secrets that I may have learned and claim protection of the Constitution's First Amendment.

But, to place commercial speech or other protected information into the context of a first Amendment right is silly.

I doubt that I would ever be successfully prosecuted and sent to prison in this day and time if I were to say something truthful about a politician running for office or report truthfully about a politician's act of corruption, or to print a picture of some actual (truthful) occurrence.

But, I live to learn -- perhaps you might show an example of where I'm wrong. Please, examples of violation of free speech, not violation of a reporter's right to protect the identity of sources.

Frank Ettin
December 12, 2008, 11:48 AM
...I believe that I am free to say what I want if it is truthful except for cases wherein I violate contracts...
No, this is not true if, for example, you are offering to the public shares of stock in your business. And in that case, your offering documents, among other things, will first have to be approved by one or more regulatory agencies. Nor is is it true if you are an insurance company, in which case your policy forms and/or advertising may require review and approval of a regulatory agency prior to use. Nor is it true if you are a manufacturer of drugs or medicines selling prescription drugs in interstate commerce, in which case your labeling and the text of certain required packaging material will require the prior review and approval of the FDA.

...the first Amendment protects persons, not entities....
This is not entirely true either. Corporations are, in general, considered "artificial persons" and generally have the same rights as individuals. For example, a newspaper, which is a corporation, has been held to have a First Amendment right to publish untruths, as long as it did not do so in reckless disregard of the truth or falsity of the matter published (New York Times v. Sullivan). Business operating as proprietorships or partnerships are simply the person of the owner or partners. Some years ago it was expressly illegal for certain types of business, i. e., doctors and lawyers, to advertise; and the First Amendment was used to strike down those prohibitions.

...to place commercial speech or other protected information into the context of a first Amendment right is silly...
Courts have indeed drawn a distinction between commercial speech and other forms of speech. But the First Amendment itself makes no such distinction. It says, "Congress shall make no law ...abridging the freedom of speech...." It doesn't say, "Congress shall make no law ...abridging the freedom of non-commercial speech ...."

What part of "no law abridging" don't they understand?

Phil Lee
December 12, 2008, 03:28 PM
fiddletown says:"It doesn't say, "Congress shall make no law ...abridging the freedom of non-commercial speech ...."

It doesn't say it because freedom of speech is for persons, and freedom of the press is to permit the wide distribution of speech by persons. A person has rights, a commercial entity isn't a person. It may be useful to provide legal protections for a commercial entity, not rights however, but still protections. These protections just are not a part of the bill of rights.

To say that commercial regulations, applying to offerings or contracts or many other commercial issues, are infringing freedom of speech is nonsense. Actually, there is no freedom to speak lies and the law won't protect lies that cause harm -- so we have lawsuits for libel or slander, we have prosecutions for lying under oath, we can prosecute people who lie about the safety of machinery (or products) that cause deaths, and people who lie in contracts can be prosecuted for fraud.

To say that any of these amount to an alteration of the bill of rights is wrong.

I repeat. I (me, my person) can say any truthful thing unrelated to commercial activities at any time, subject only to limits on some confidences that I had agreed to keep. Now, give me an example where that isn't true and tell me what penalty might be imposed and by what agency of government.

And, in the case of the political arena (public speech), I don't even have to speak the truth in all cases. I can lie to say I believe the earth is the center of the universe or that guns are evil or that they are good and there is no legal recourse against me from federal or state governments. I can even claim proofs exist for my statements in government reports and contradict the plain language of the report without fear of government action.

And, if what I've just written isn't true, please give me an example.

Frank Ettin
December 12, 2008, 04:05 PM
It doesn't say it because freedom of speech is for persons, and freedom of the press is to permit the wide distribution of speech by persons. A person has rights, a commercial entity isn't a person....
First, where does it say that freedom of speech is only for persons, and not commercial entities? Where do you find that distinction in the law? In fact, there is no such distinction, in general, in the law.

For one example, if I operate my business as a sole proprietorship, I am the business. There is no commercial entity. I may do business under a fictitious name, but I am the business. If I operate my business as a partnership, I together with my partners are the business.

A corporation is treated as a person under the law. It does business in its name, like a person. It may sue and be sued in its name, like a person. It enters into contracts in its name, like a person. It may be guilty of a crime, like a person (although it can go to jail).

And as noted in my prior post, the First Amendment was successfully used to overturn laws prohibiting doctors and lawyers from advertising. Note that doctors or lawyers may do business as sole proprietorships, partnerships or corporations.

To say that commercial regulations, applying to offerings or contracts or many other commercial issues, are infringing freedom of speech is nonsense....
Why? Just because you say so? On the surface, anything that requires you to jump through hoops, obtain the approval of others or measure your words, even when truthful, by the requirements of others infringes (encroaches upon) upon or abridges (reduces in scope) your freedom of speech.

...Actually, there is no freedom to speak lies and the law won't protect lies that cause harm...
Yes, that is indeed true. And the laws prohibiting such conduct, as well as other laws, are all well and firmly established, notwithstanding the otherwise broad, unequivocal and unqualified language of the First Amendment.

...if what I've just written isn't true, please give me an example....
I've explained it, but you don't seem to be interested.

Phil Lee
December 12, 2008, 04:42 PM
fiddletown asks "First, where does it say that freedom of speech is only for persons, and not commercial entities?"

Commercial entities are property. Property belongs to people. Property doesn't have rights (that is partly why slaves didn't have rights in the Constitution at least according to the US Supreme Court).

People have rights.

So fundamental to the understanding of rights in the Constitution are these basic points that I've got to wonder what you are thinking to claim otherwise.

And, when claiming "I've explained it, but you don't seem to be interested" when I called for an example, it seems you've come up short. I don't want an explanation, I want an example showing that your explanation is correct. I want you to give me one example (in the past century) of a person (human being) who spoke truth in a political context or other non-commercial speech and was successfully prosecuted for it by federal or state governments.

mordechaianiliewicz
December 12, 2008, 06:38 PM
According to the Texas Constitution, open carry should be (or atleast has no reason not to be) legal right now.

Frank Ettin
December 12, 2008, 07:21 PM
...Commercial entities are property. Property belongs to people....
Unfortunately, however, you are ignorant of the law. The law indeed recognizes corporations as having rights. Business conducted in other forms, sole proprietorships and partnerships are in fact and in law the natural persons who own and operate them, and those natural persons have rights.

"The defining feature of a corporation is its legal independence from the people who create it. ....

"Despite not being natural persons, corporations are recognized by the law to have rights and responsibilities like actual people. Corporations can exercise human rights against real individuals and the state,[1] and they may be responsible for human rights violations.[2] Just as they are "born" into existence through its members obtaining a certificate of incorporation, they can "die" when they lose money into insolvency. Corporations can even be convicted of criminal offences, such as fraud and manslaughter.[3] Five common characteristics of the modern corporation, according to Harvard University Professors Hansmann and Kraakman are...

* delegated management, in other words, control of the company placed in the hands of a board of directors
* limited liability of the shareholders ...
* investor ownership, ...[4]
* separate legal personality of the corporation ...
* transferrable shares ...." (http://en.wikipedia.org/wiki/Corporation, emphasis added)

...So fundamental to the understanding of rights in the Constitution are these basic points that I've got to wonder what you are thinking to claim otherwise...
Actually, this is not how the law sees it. I am an attorney, licensed to practice law. I have practiced law for over 30 years and have particular expertise in business and corporate law.

...I want you to give me one example (in the past century) of a person (human being) who spoke truth in a political context or other non-commercial speech and was successfully prosecuted for it by federal or state governments....
That is not what we're talking about and has nothing whatsoever to do with the subject.

mattwp
December 12, 2008, 07:30 PM
I agree I think that having a ccw licence is violation of the second amendment, A gun is a tool like anyother you don't have to have a license to carry a screw driver or even a knife, and if anybody was free to carry what they wanted and how they wanted to carry it there would be alot less crime crimanals would be scard of getting shot by the little old lady walking down the street when they try to rob her

subknave
December 12, 2008, 08:14 PM
if anybody was free to carry what they wanted and how they wanted to carry it there would be alot less crime crimanals would be scard of getting shot by the little old lady walking down the street when they try to rob her

Strangely enough this was the situation in the victorian era and it seems crime was much less then but of course then a jail was a dark hole where you could starve or freeze to death and not the more or less comfortable places we house people in now. The world is quite a different place now. Would the removal of all prohibitions on firearms except say the NICS check when buying from a dealer and having anyone be able to carry a concealed weapon and not get arrested for it make the world safer?

Cyborg
December 12, 2008, 08:55 PM
Maybe I'm just dense but it seems to me that even if you DO have certain rights in a theoretical sense, then in the real, practical world you only have whatever rights the government under which you agree to live allows you to exercise. There is no practical difference between not having a right and not being able to exercise that right. Government makes laws to allow us to exercise our rights. I have heard freedom defined as what I can do without having to get permission. In Texas I am not free to openly carry because I risk going to jail if I do so outside some pretty tightly defined constraints. I personally get to carry openly and publicly because I have obtained a license (an official permission slip) to do so persuant to my profession. If I fail to fulfill the requirements to retain that license I will lose it - temporarily or permanently - and thus will no longer be free to openly carry even under the restrictions.

My name is on the title deed to my house and the property upon which it sits but I had to get permission from the city to build a fence. Had to get one to put up a garden shed. Will need one to put in a patio next spring and to change the siding on my house. My property but I am not free to build on it. I have to get a permit (you know, written permission) to upgrade my own home.

Getting back to you only effectively having the rights your government gives you, if these rights are intrinsic to being human, then why do the folks in Europe, Canada, Oz and elsewhere not have them. Oh, that's right they DO have them - they just are not allowed to exercise them. In practice how does a right denied differ from a right that does not actually exist? The result is the same. I have heard that property rights are the most fundamental rights of all. Isn't that correct, counselors? But I cannot do anything to my property with getting permission. Where is the right? Plus if I do not make my annual lease payment - excuse me, property tax payment - a guy with a gun and a writ will take that property AWAY from me - even if I own it outright!

Back to the constitution. The founding fathers wrote the thing to control the central government. The constitution was SUPPOSED to define the boundaries for the limits of federal power. Like the "wall of separation" Jefferson wrote to that Baptist Association. The wall was supposed to keep government out of religeon - not the other way around. You look at the barbed wire on top of a fence and you can tell what it's purpose is. The barbed wire atop the fences of a prison point inward. The purpose is to keep convicts within the boundaries of the prison. I once attended an Air Force School that had 7 concentric 10foot high chain link fences around it - complete with 7 gates. The four outmost fences had barbed wire slanting outward - it was to keep people out of what had formerly been a Defense Nuclear Agency facility. The inner 3 fences pointed IN!. What does that tell you? The barbed wire at the top of Jefferson's "wall" (the constitution) points INward. It is supposed to control government - not the people.

Frank Ettin
December 12, 2008, 08:59 PM
Commercial entities are property. ... Property doesn't have rights...
For a little discussion of the application of the First Amendment to commercial speech, see the syllabus of the decision of the U. S. Supreme Court in Central Hudson Gas & Electric Corp. v. Public Service Commission of New York (http://supct.law.cornell.edu/supct/html/historics/USSC_CR_0447_0557_ZS.html ).

Note that, "...the First Amendment protects commercial speech from unwarranted governmental regulation..."

Note also that:

"...it must be determined whether the asserted governmental interest to be served by the restriction on commercial speech is substantial. ... it must then be decided whether the regulation directly advances the governmental interest asserted, and whether it is not more extensive than is necessary to serve that interest."

Note that the first statement makes it clear that commercial speech is entitled to protection under the First Amendment. The second statement sets out the general standard applicable to governmental regulation of a Constitutionally protected right.

ConstitutionCowboy
December 12, 2008, 09:06 PM
Yes, I claim that the RKBA preexists the Constitution and the Second Amendment. I always have. The nature of what government is not supposed to infringe is our right to keep and bear weapons of offense and armour of defense. Then does it not make sense to try to discern what exactly that preexisting right was? If you do not know what it was, how can you possibly know what it is? The preexisting right is the same now as it has always been. I'll write it really slow for you: Man has no built-in arms and must rely on his ingenuity to come up with his means of defense and offense.

Nope. What I am trying to do is discover what the right encompasses. In order to do that we must examine its source. Are you afraid to discuss what the right was?

I've already discussed what the right "was". I'll refer you back to Gork.

I suggest that you have no idea whether it is limited or wheter it is limitless because you refuse to examine what it was. As stated, the right is the same now as it has always been from man's beginning.

I never claimed that. I claim that the right is derived from an ancient and honored right of englishmen that developed over a rather lengthy period of time. It did not come into existence over night... it evolved from the age of the vikings, through the Norman Conquest, was given substance by some ancient statutes in the 12th Century grew in strenth in the era of Cromwell, was abused during the restoration which resulted in its first written expression during the Glorious Revolution and that the contours of that right were described and interpreted by the courts in the period immediatly following same leading right up to its expression in the 2nd Amend. That is where you must look to understand what the right is.

Here is where you are going wrong. The right has never been "developed". It's like the discovery of electricity. It has always been there, we simply didn't recognize it. What "developed" was the RECOGNITION of the right. Now we have PROTECTION of the right with the Second Amendment to go along with its recognition.

Obviously you did not understand what I said. Or perhaps you merely do not wish to understand. What I said was that ALL of these rights have an historical pedigree, the nature and scope of those rights can only be understood if you examine what that right was, how it was understood, what were the exceptions, what were the limitations. Each of those rights has its own history and each must me exmanied seperately to understand its scope. In other words, the methodolgy employed to examine the historical roots of each of those rights is similar, even though the actual history of the evolution of same differs as does the very nature of the right which it protects. I can not believe that you failed so completely to understand what I was saying unless you are purposely evading what I actually said.

I'll refer back to the recognition of these rights existence and the protections of these rights that has developed. You make it sound like man invented these rights.

Story, no. Blackstone and Tucker were quite influential in writing the 2nd Amend. Tucker directly and Blackstone indirectly. Tucker was the Dean of the most influential Colonial Law School of the age, William and Mary, his input was sought and given regarding the many portions of the Constitution, including the 2nd Amend. Blackstone was the leading authority of the age. During the Virginia Ratifying Convention, Madison stated during the debates that "each man here has a copy of Blackstone's commentaries." I assure you his influence was far greater than your most reliable authority yet cited, that being the revered legal commentator, Gork the caveman and his equally intelligent and beautiful wife Krog. Story comes only after the 2nd was written, but within the same same generation. His commentaries on the Constitution are considered quite authoritative, what being an esteemed justice of the US Supreme Court... I realize that does not quite match Gorks qualifications, but whose does?

And again, I'll go back to the recognition of the existence of the right and how the protection of the right developed into the Second Amendment. I would have to say that the Founding Fathers put the finishing touches on the protection of the right, protecting it as the inalienable and absolute right that it is. (Fortunately for Gork, there were no leftist trying to disarm him.)

What ever logic and opinion bantered about by these fine gentlemen is irrelevant. What matters is what the Founding Fathers penned and the several states ratified. ONLY if you believe that the framers invented the rkba, if they did not, than you are merely burying your head in the sand. If you refuse to look at what the preexisting right ACTUALLY was, then you have absolutely no right to say what the 2nd protects... because you refuse to look at what that right was... Kinda silly of you, don't ya think

As you can clearly see, I do not believe the authors of the Second Amendment invented the Right to Keep and Bear Arms. The way they protected it shows exactly what it is: It's unlimited and inalienable. We the People could not have granted power to the Union to posses the unlimited weapons it has without first having the right to those arms ourselves. We cannot grant to government that which we do not rightly possess ourselves. God, or nature if you so believe, created man and made man dependent upon his intellect to defend and feed himself. We were not created with fangs, claws, powerfully offensive odors, or the "force" to defend and feed ourselves. Without the tools we create, we'd have never survived to become what we are today if at all. Our arms are merely an extension of our inalienable intellect.

As for the open carry issue, all that needs and should be done is to remove the laws limiting or prohibiting open or concealed carry. As we can see, our Right to Keep and Bear Arms is both inalienable and absolute and cannot be rightly infringed. It's our fangs, claws, and reason why we needn't smell bad to protect ourselves.

Woody

"Charge the Court, Congress, and the several state legislatures with what to do with all the violent criminals who cannot be trusted with arms. We law abiding citizens shouldn't be burdened with having to prove we are not one of the untrustworthy just because those in government don't want to stop crime by keeping violent criminals locked up." B.E. Wood

legaleagle_45
December 12, 2008, 10:01 PM
Originally Posted by ConstitutionCowboy:
The preexisting right is the same now as it has always been. I'll write it really slow for you: Man has no built-in arms and must rely on his ingenuity to come up with his means of defense and offense.

Then, of course, we do not need to even look at any definitions from contemporary sources as to what the words arms, bear and keep mean. So why do you do it?

Originally Posted by ConstitutionCowboy:
I've already discussed what the right "was". I'll refer you back to Gork.

Please provide a link to the scholarly works of Gork... and if you can manage it, perhaps a pic of his beautiful wife Krog in a bikini?

Originally Posted by ConstitutionCowboy:
The right has never been "developed".

Sure it was, due to the fact that guns do not exist in nature. Seriously, Woody do you think it totally irrelevant what the framers thought the right was? What they thought the right was protecting? If not we stop here. Under those circumstances you can justly rely on Gork. You believe that it is an unalienable right and that right encompasses anything and everything, that anyone can exercise the right to keep same and that anyone can exercise the right to bear same.... but your conclusion is not backed up by our previous discussions. Let me explain...

I have asserted that the right to arms is auxillary right to an underlying natural, or God given right, to self defense. Even a prisoner in a correctional institution is entitled to exercise the right to self defense. Do you think a prisoner in a correctional institution is entitled to exercise his right to arms? Notice the distinction, Woody. The right to self defense remains, but the auxillary right to arms is not allowed while incarcerated. That would not be the case if your postulate was correct...

But again, it is fruitless to continue if you insist upon such absurdities as relying upon the esteemed Gork as your legal expert. What it really comes down to is that you believe what you want it to be and you are unwilling to entertain any possible alternatives. You have concluded that is a unlimited right which needs no historical justification... What you are really saying, of course, is that the 2nd Amend is irrelevant. It is not important what the framers thought, it is unimportant what the framers believed, what is important is what Woody believes, and nobody else counts... except perhaps Gork...

Originally Posted by ConstitutionCowboy:
We cannot grant to government that which we do not rightly possess

So, of course, you do not believe in the death penalty... or you do not believe the right to life is an "unalienable right" ... Which is it?

A quandry of sorts which might be resolved if you were familiar with the works of Hobbes, Locke and Rousseau, but perhaps Gork had already beaten them to it?

As an aside, are you not even curious as to the history? We need not shatter your faith in the all mighty Gork. It is just that I am a history nerd of sorts, and that stuff has always fascinated me... to each his own, I guess.

Frank Ettin
December 12, 2008, 10:35 PM
...there is no such power granted to the Court. It's all usurpation...
Woody, actually the Constitution does say (in Article III), "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 ... establish...." And, "...judicial power shall extend to all cases, in law and equity, arising under this Constitution...."

At the same time, I didn't see anything in the Constitution about Woody having authority to decide the extent of the judicial power of the federal courts. So it does seem that the courts have a better claim than you do.

legaleagle_45
December 12, 2008, 10:51 PM
Originally Posted by fiddletown
At the same time, I didn't see anything in the Constitution about Woody having authority to decide the extent of the judicial power of the federal courts.

It is in the Penumbras and Emanations Clause...:cool:

Phil Lee
December 12, 2008, 10:55 PM
fiddletown says "The law indeed recognizes corporations as having rights." And the law does, it just isn't the part of the law that is the Constitution. In fact, fiddletown has pointed out that corporations and other commercial entities may be restrained in their speech contrary to the First Amendment. It is a pity that he didn't give more of the quote from Central Hudson Gas & Electric Corp. v. Public Service Commission of New York: "Although the Constitution accords a lesser protection to commercial speech than to other constitutionally guaranteed expression, nevertheless the First Amendment protects commercial speech from unwarranted governmental regulation."

That more complete quote makes clear that a natural person has rights that a commercial entity doesn't. While the Supreme Court holds that a commercial entity has some First Amendment speech rights, I can't find this lessor protection in the Bill of Rights. I'm reminded of the story said to be told by Lincoln which says, in part, if "we call the tail of a dog a leg, how many legs does the dog have?"

It is clear from fiddletown's statement "That is not what we're talking about and has nothing whatsoever to do with the subject" that he has missed the point that some of us are talking about the rights of human beings as protected by the Constitution.

I, a human being, claim that any truthful statement I make is protected speech. I have asked several times for fiddletown to show an example of where that isn't true. Now, I know a 200 year old case (or so) which could be cited, but that case clearly violated the Constitution as many of the then living founders pointed out.

A law might be passed by the legislature to allow the creation of commercial entities or a law might be passed by the US Supreme Court (uh, an interpretation rendered) which provides these entities with "rights" (or more properly legal protections for actions), so what? A corporation can't say, as fiddletown has put it, truth in its own way. It has no freedom of speech, per se, like a natural person.

I, on the other hand, a natural person, not the property of any other, may say what is true and may say it exactly the way I want to. There are no a priori limits on my speech. I don't need a permit or license to say what I wish, I don't need to follow a form produced by any federal agency or seek their blessing in any way.

A similar very limited a priori restraints on the keeping and carrying arms (for law-abiding people) would a pretty good model for laws regulating the right to keep and bear arms.

About 150 years ago, the US Supreme Court said a Black man wasn't a person, but was property, and had no rights. There is a mentality that the law is what the Supreme Court says it is. Lawyers are constrained by their practice to follow this "guidance" from the Courts even if the Court gives a decision that is objectionable. Activists are quite free to understand the intent of the Constitution and the founders and to agitate for a better understanding.

So, if practicing law for 30 years causes fiddletown to say here is how the Courts will interpret a case, that is fine. But, the Constitution is about the rights of natural persons and about the powers granted to government by natural persons and 30 years of practice in the law hasn't yet given fiddletown that understanding.

Frank Ettin
December 12, 2008, 11:00 PM
It is in the Penumbras and Emanations Clause..
That only applies during months without an "r" in them which fall during Winter in the Northern Hemisphere.

legaleagle_45
December 12, 2008, 11:14 PM
Originally Posted by Phil Lee
That full quote makes clear that a natural person has rights that a commercial entity doesn't.

Naw, it only deals with the content of the speech, and is not directed at the identity of the speaker. An individual--- a natural person--- can engage in "commercial" speech ... happens all the time. Conversely, an artificial person, such as a Corporation, can engage in expression which is not deemed "commercial" speech. Other artificial persons of note would be the US government, which can sue and be sued, other governmental entities such as states and municipal organizations... and of course the NRA is a corporation which engages in non commercial speech all the time.

For the most part, corporations do have rights which are identical to those of individuals... but of course there are exceptions. A better argument could have been made prior to the passage of the 14th amend. However, it is real clear that the framers of the 14th intended to include artificial entities in their protections, so that argument is moot.

Frank Ettin
December 12, 2008, 11:24 PM
Phil, you're way off base.

First you say that corporations have no rights, and that is demonstrably false.

...A corporation ... has no freedom of speech, per se like a natural person....
And that's nonsense. First, a corporation has the rights of a natural person, and that goes back to long before the formation of the United States.

Second, a corporation has a right of free speech under the First Amendment, as demonstrated by the case I cited. In that case the Supreme overturned a State ban on advertising by the plaintiff utility.

Third, the distinction is between commercial and non-commercial speech. Corporations engage in non-commercial speech. Individuals can engage in commercial speech.

...the Constitution is about the rights of natural persons and about the powers granted to government by natural persons...
No, sorry, but that doesn't wash at all. Corporations existed before the formation of the United States and were understood to both have an independent legal existence and to essentially enjoy the rights of a natural person. The Founding Fathers, as educated men of the day, would have understood this. And yet they made no effort to draw any distinction with regards to the rights protected by the Constitution.

Frank Ettin
December 13, 2008, 12:13 AM
...I want you to give me one example (in the past century) of a person (human being) who spoke truth in a political context or other non-commercial speech and was successfully...
I just stumbled upon this. You may be interested. A lobbyist's conviction for failure to register and for failure to report expenditures as required upheld against a First Amendment and Fifth Amendment challenge. He was engaged in political speech, and there is no suggestion that he was in any way untruthful in his speech.

See http://www.jstor.org/pss/1285261.

Phil Lee
December 13, 2008, 01:16 AM
fiddletown points to the example of "A lobbyist's conviction for failure to register and for failure to report expenditures as required" as proof that a natural person can be prosecuted for speech.

Really, fiddletown has a stretch here and seem not to have read his own text (see my quote of it). A federal law requires a person to register as lobbyist and report expenditures in order to do lobbying. While lobbying may involve speech, so does printing and distributing a newspaper, yet no one suggest it would be illegal to require a newspaper to have a business license ("register" with the authorities to do newspapering) in order to be in that business. It is the failure to perform the requirements to be in the business that is the violation, not the speech.

By contrast, I have gone to Congress to speak to Congressmen about my issue and have not registered as a lobbyist and I have reported no expenditures for that purpose. I spent my own money and was paid by no one. I'd like to see them bring a case against me for that activity.

Once again, a person, not engage in commercial activity may speak the truth and not violate any Constitutional law.

If, as fiddletown says "a corporation has the rights of a natural person", then restrictions could be made on a natural person's speech in the same way as made on an artificial commercial entity. That is false -- at least so far as the Supreme Court example fiddletown cites. Even more importantly, a corporation obviously lacks rights of a natural person, for example, a corporation cannot legally vote in federal elections. And, so far as I know, there have been no corporations placed in federal prisons for illegal actions by the corporation.

If I had independently paid to make the same Central Hudson Gas & Electric Corp. advertisement, having no financial interest in company can fiddletown assert the government would have brought a case against me -- a natural person? If so, I'd like to see an example of a similar case being brought.

I agree with legaleagle45 that "An individual--- a natural person--- can engage in "commercial" speech ... happens all the time." If you read back, you see both fiddletown and I have gone through this point -- it is commercial speech that may be regulated to the point that merely being true isn't enough to protect it even for natural persons.

However, the First Amendment was written to protect speech by persons (natural persons) in the political arena including news reporting -- the protecting was from government. So, now the government, in its capacity to regulate commerce, may require more than the truth -- it may require it in a particular form, it may require more than what a commercial entity would like to say, . . . .

All of this commercial regulation doesn't impinge on the right of people, with no commercial interest, speaking the truth and the Courts have been consistent (and correct in this instance) in resisting prior restraints on non-commercial speech by individual natural persons.

The people made the constitution and property didn't. The bill of rights nowhere mentions rights of commercial entities but does mention rights of people, although owners, being people, do have rights protected by the bill of rights. For my education, I would welcome any discussion by the founders specifically discussing protection of the bill of rights for artificial entities. Please, give me some discussion by a founder of a topic other than protection for the property rights of people which is different.

Frank Ettin
December 13, 2008, 02:58 AM
[1] The laws relating to the registration of lobbyists have been challenged on First Amendment grounds. Indeed, in the case cited, the lower court overturned the conviction. The Supreme Court upheld the conviction.

[2] The First Amendment says, among other thing, that "Congress shall make no law ...abridging the freedom of speech...." According to the Oxford English Dictionary, in the late 18th century the word "abridge" meant, among other things, "To curtail, lessen or diminish (rights, privileges, advantages or authority)." It is a flat, unequivocal and unqualified prohibition directed against Congress. It makes no distinction regarding the content or type of speech. It makes no distinction as to who or what the "speaker" is.

[3] The First Amendment, on its face makes no distinction among commercial speech, political speech, artistic speech or any other kind of speech. It is entirely content neutral.

[4] Nonetheless, legislative bodies have enacted laws, and administrative bodies have adopted rules, that abridge free speech on the basis of content (for example by distinguishing between commercial and non-commercial speech) or in content neutral ways (such as laws regulating the time, place and manner of speech or assembly -- such as requiring that a permit be obtained before holding a public assembly or limiting places at which activities protected by the First Amendment may be conducted).

[5] Some of these abridgments have been sustained by courts as being within the scope of permissible regulation of a Constitutional right. Some have not, and have been overturned as exceeding the scope of permissible regulation of a Constitutionally protected right. An example of a regulation that was overturned as exceeding the permissible scope of a Constitutionally protected right was the advertising prohibition at issue in Central Hudson Gas & Electric Corp. And in that case, the Court found the the First Amendment rights of the corporation were violated.

[6] With regard to regulation of time, place and manner of First Amendment protected activities, see Heffron v. International Society for Krishna Consciousness, 452 U.S. 640 (1981). In that case, the Supreme Court upheld the authority of the Minnesota State Fair to restrict the fairground distribution activities of the Krishna religious sect to certain specified locations on the grounds. Also, the in the case of Madsen v. Women's Health Center, 512 U.S. 753, the Court upheld against a First Amendment challenge an injunction requiring that demonstrators at an abortion clinic be no closer than 36 yards (but overturned other portions of the injunction).

[7] The overarching principle is that Constitutionally protected rights may be regulated. The regulation of Constitutionally protected rights will be subject to strict scrutiny by courts. Any such regulation must serve a compelling or substantial governmental purpose, must reasonably serve that purpose and must be no broader nor invasive than necessary to serve that purpose. It is neither easy nor necessarily common to regulate Constitutionally protected rights, but it can be, and is from time to time successfully done.

ConstitutionCowboy
December 13, 2008, 10:51 AM
Remember this, folks. A corporation may only do those things for which the power to do has been specifically granted by law. Corporations are a construct that are allowed to be created by law and have no inherent rights - or powers for that matter; corporations only have those powers granted by the law allowing for the creation of those corporations.

For all intents and purposes, all people are equal under the law and all have the same inalienable rights and powers. There are many different forms of corporations, and certain corporations have powers other corporations might not in the law.

There can be no inherent rights in a corporation, only those powers granted by the law.

Whether it's a lawyer, a layman, a corporate president, or a panel of justices; whomever says a corporation has rights is misspeaking.

Woody

Frank Ettin
December 13, 2008, 11:20 AM
...Whether it's a lawyer, a layman, a corporate president, or a panel of justices; whomever says a corporation has rights is misspeaking...
I see you're starting Saturday morning in Fantasyland again. But no matter. This, in the final analysis has nothing to do with the overarching principle that Constitutionally protected rights can be subject to some regulation on certain terms and under certain conditions (see post 106).

The question is finally irrelevant because the regulation under the First Amendment makes no distinction with regard to the speaker, be it a natural person or corporation. Such regulation may make a distinction based on the type of speech (commercial or non-commercial). But such distinction itself is, on its face, not permitted under the First Amendment. What part of "no law abridging" don't you understand?

7.62X25mm
December 13, 2008, 11:28 AM
The rationale behind the Second Amendment is to provide the People with the means to defend themselves against a tyrannical government.

You don't allow the government to regulate that means.

legaleagle_45
December 13, 2008, 11:34 AM
Originally Posted by ConstitutionCowboy
Corporations are a construct that are allowed to be created by law and have no inherent rights - or powers for that matter; corporations only have those powers granted by the law allowing for the creation of those corporations.

Very close Woody... at least that was the concept under common law. I assume that in your statement, the powers include not only those of the general law allowing for the creation of artificial entities, but also those specifically provided for in the corporate charter granted to the artificial entity providing for its existence... as the powers and priviledges were primarily related to the terms of that charter, contractual in nature and binding the government to the incorporators, their successors and assigns.

That was, or used to be the primary view, however it is clear that the framers of the 14th intended to include artificial entities within the scope of the protections provided for in the 14th. As such, the courts have consistantly held that corporations, by virtue of the 14th have some "rights" identical to natural persons, including freedom of speech. Some rights that they do not have include the right to vote and the right to sit on a jury... but perhaps more essential, and getting back to "inalienable rights", corporations do not have key protections of the "right to liberty", which can be loosely defined as freedom of movement... the ability to go from one geographical location to another. Corporations only have legal existence in the jurisdiction wherein they are granted a license. A foreign corporation may not maintain a presence in a jurisdiction without obtaining the permission of the jurisdiction. Not so with a natural person... I can move to any state without obtaining the permission of that state, because that is my natural right as an individual and that right is protected by the Constitution.

Finally, I agree with your assertion that corporations do not have "inherent rights". Corporations were not created by God and were not present in nature. Their "rights" are a construct of man... of course man has the ability to provide these artificial constructs with "rights" that are identical to some of the rights contained in the BoR's... and that is the case with freedom of speech.

Wow Woody, we are not too far apart, if at all, on this issue...:D

legaleagle_45
December 13, 2008, 12:06 PM
The rationale behind the Second Amendment is to provide the People with the means to defend themselves against a tyrannical government.

That is only part of it. Blackstone asserted that the right to arms connsisted of two components:

1.) The right of resistance;
2.) The right of self preservation.

The first component falls within your description, but the second component is a pure self defense right and is not dependant upon the existance or non existance of a tyranical government.

This "expansion" is crucial if we wish to prevail in the courts regarding the individual right nature of the 2nd... however, and for a variety of reasons, that is beyond the scope of this board and is more adequately addressed in law review articles and briefs to the courts.

Phil Lee
December 13, 2008, 03:44 PM
It is pretty obvious that fiddletown and I (and maybe fiddletown and woody) are speaking past each other. Maybe this will provide fiddletown with some necessary insights.

First, the use of rights in the Constitution and the use of rights in law are distinct on many grounds. The bill of rights addressed rights held by the people when the Constitution was drafted and supposedly well understood at that time. The Constitution prohibits in various ways government from infringing on these rights. In order to legally do away with any of these rights, at minimum, the Constitution should be amended.

There is some question whether even an amendment would suffice since the some of these rights are "inalienable". Amending such a right out of the Constitution would only permit the right to be infringed, not eliminated. I suspect that fiddletown regards this last statement is distinction without a difference, but woody and I wouldn't.

Rights defined in law are different. They may be altered by an act of the legislature or a decision by the Courts. Your right to be given a Miranda warning (http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=US&vol=384&invol=436) when arrested isn't in the Constitution and isn't protected by that document. This legal right can be extinguished by another case decided by the Supreme Court.

But saying an artificial person, a corporation, has a first Amendment right to speech must be wrong. I'm willing to be convinced to the contrary if anyone can show me a single instance of any founder writing of an intent to extend bill of rights protection to artificial entities. fiddletown points to the lack of limits on speech to deduce that it applies to any entity capable of speech (anyone for protecting the right of speech by parrots?). I think this fails unless fiddletown can present a common understanding written by the founders that the rights presented in the bill of rights applied also to non-natural persons (e.g., parrots, corporations, . . . ). Show me a single example of a founder writing that speech would be protected even for natural persons who were slaves or any other entity considered in the Constitution as property.

Now, one difference between fiddletown and I (and, I guess, fiddletown and woody) seems to be along the lines of a theory of an extensible Constitution. If, it seems that a right was left out of the Constitution, fiddletown seems to believe it can be added by act of the legislature or by a Court decision. So, the US Supreme Court says corporations have a first amendment right to speech means that it is a right protected by the Constitution. Really, such a right from an extension of the Constitution is a right protected only by legal inertia.

I believe it to be sloppy thinking (lacking precision) to assert that rights obtain by the extensible Constitution are Constitutional rights. BTW, that isn't to say that we don't have other rights to be discovered under the Ninth Amendment. But, if a Court wishes to assert under the Ninth Amendment that artificial entities have some of the rights of natural persons, they should invoke the Ninth Amendment in their conclusion and explain better than they have in the cases cited by fiddletown.

Again, I await a real education pointing to any writing by a founder saying corporations have protected rights in the Constitution.

We know that the US Supreme Court makes mistakes and misstates cases -- otherwise how do you justify Brown v Board and the selective overturning by the Court of its prior holdings in U. S. v. Cruikshank, 92 U.S. 542 , 553.

Amar, in a recent paper (http://www.harvardlawreview.org/issues/122/nov08/amar.pdf), makes a point in his discussion of the obligation of the Supreme Court to "follow the Constitution, not . . . [a prior] case" if the Court thinks the prior case was decided from less understanding of the Constitution than available today. Put it simply, the Constitution is the core law and precedent Court cases (or legislative acts) can be overturned.

So, what fiddletown describes as "rights", for the most part, are rights protected by legal inertia in the extensible Constitution that he cites. Yet, he immediately cites cases where courts are infringing or regulating these rights as justification that the rights of a natural person may similarly be infringed. That is wrong.

And, he talks about these extensible-Constitutional rights in way that confuses himself on the issues. For example, "The laws relating to the registration of lobbyists have been challenged on First Amendment grounds" is his example trying to argue that lobbyists have had their right to speech infringed. fiddletown would recognize at once the absurdity of an appeal by a person that some act of murder was protected by first Amendment grounds. It isn't a right to speech that would be protected no matter what the appeal said. Likewise, prosecuting for the crime of lobbying without registering or filing required reports isn't infringing the criminal's first Amendment rights either.

Most of the many other points made by fiddletown seem similarly unrelated to the real Constitutional issue of government prosecution of people for the content of their speech.

But, I'm still waiting for instruction with an example writing by a founder who has said that the First Amendment speech protection applies to artificial entities and not just natural persons.

Legaleagle45, on the other hand, cites the change in the Constitution presented by the 14th Amendment. I think this is wrong too since that Amendment begins All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

Again, I await instruction, but it seems to me that artificial entities are not protected in this Amendment since they aren't born or naturalized, so can't be citizens, and aren't persons protected by this Amendment.

That is not to say that the Courts didn't extended the Constitution once again for the 14th Amendment to artificial entities and then infringed the extension in some way as applied to artificial entities.

As I recall, there is a pretty good discussion in Congress of the legislative intent behind the 14th Amendment (most of which was ignored by the Court in Cruikshank). If these congressmen intended the 14th to apply to artificial entities, I would love to be instructed by their writings.

Cyborg
December 13, 2008, 05:03 PM
There is a mentality that the law is what the Supreme Court says it is. No there is a realization that, theories aside, in practical terms the law IS EXACTLY what the SCOTUS says it is. You and I can believe what we wish but that does not change the way things ARE!

Reminds me of the story about the little boy whose parents were Christian Scientists - the folks who do not accept the objective reality of evil. Little boy is sitting in class and the teacher notices how sad he looks. When she asks the little boy what's wrong he replies that his father thinks he is sick. The next day the boy looks even sadder and when the teacher asks about his dad, the boy replies that his dad thinks he's getting worse. A couple of days go by and each day the boy tells the teacher that his dad thinks he is getting sicker and sicker. Finally the little boy comes to school with puffy eyes and a runny nose and when the teacher asks about his dad the boy replies, "Teacher! He thinks he's dead! And if he doesn't change his mind real quick they're gonna BURY him!"

Believe what you want about different theories of the law. In practical terms the law - especially the constitution - is exactly what SCOTUS says it is. But then I believe that nothing is illegal unless someone is prosecuted for it and a jury finds him guilty. It's like that great line in the miniseries "Shogun" where Anjin is describing the political situation in Europe to soon to be Shogun Toronaga. Toronaga asks if, given the current state in Europe, what the English and other Protestant countries were doing wasn't treason. Anjin replies, "Only if THEY win."

Now, one difference between fiddletown and I (and, I guess, fiddletown and woody) seems to be along the lines of a theory of an extensible Constitution. If, it seems that a right was left out of the Constitution, fiddletown seems to believe it can be added by act of the legislature or by a Court decision.
Ah, Mr. Lee, can you spell "right to privacy"? I can't find it anywhere in any copy of the constitution I can get my hands or browser on but IMS SCOTUS has made rulings based on that "right". Would that not be an example of a right being "added by <snippage> a Court decision"???:rolleyes: Looks like it to me. ;)

akodo
December 13, 2008, 05:11 PM
We cannot yell "fire" in a theater but isn't that an infringement of the right to free speech?

no, that is criminlizing an action.

The equivalent would be 'no target shooting on a public street'

here's how to make the 'free speech fire/theater' equal the demand for training before getting a CCW

Because yelling fire in a theater would cause crowd to panic, and people would get trampled, before you can buy movie tickets you must take a course on 'logicstics of crowd movement' and 'human psychology 101' and 'fire spread rates in typical urban buildings'

Only with this knowledge will you know how to properly judge if the size and location of a fire justifies calling out and causing a panic.

legaleagle_45
December 13, 2008, 05:28 PM
Originally Posted by Phil Lee
Again, I await instruction, but it seems to me that artificial entities are not protected in this Amendment since they aren't born or naturalized, so can't be citizens, and aren't persons protected by this Amendment.

That section deals with "citizens"... a corporation is not a "citizen". That particular section of the 14th was designed and intended to over rule by constitutional amendment the decision by SCOTUS in its infamous Dred Scott decision, which held that blacks could never be citizens of the United States...

The operative section in which SCOTUS applies the Bill of Rights to the states is the Due Process clause. Take a look at this carefully:

No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

Do you see where privileges and immunities portion protects citizens, yet the due process and equal protection clauses protect persons? The legislative history shows that the original form had citizen throughout this amendment, but in deliberate attempt to expand the protections offered thereby, the word "citizen" was changed to the more general term "person" for purposes of the Due Process and Equal Protection clauses. See Graham, The "Conspiracy Theory'' of the Fourteenth Amendment, 47 Yale L. J. 371 (1938).

SCOTUS concurs with this interpretation. Munn v. Illinois, 94 U.S. 113 (1877). In an interesting case arising under the Fifth Amendment, decided almost at the same time as Munn, the Court explicitly declared the United States "equally with the States . . . are prohibited from depriving persons or corporations of property without due process of law.'' Sinking Fund Cases, 99 U.S. 700 (1879). I say interesting, because it is a quasi reverse incorporation case, wherein the prohibitions of the 14th were reflected backwards to impose identical restrictions upon the feds with respect to corporations.... but perhaps that is only interesting to those who are familiar with incorporation theory...

Phil Lee
December 13, 2008, 07:22 PM
Aha! Cyborg claims No there is a realization that, theories aside, in practical terms the law IS EXACTLY what the SCOTUS says it is. You and I can believe what we wish but that does not change the way things ARE!

So, those persons appealing in Brown v. Board were engaged in a futility since it had all been settled by Plessey v. Ferguson (1896). And, the Heller effort was previously settled in Miller. And that is just the cases that produced changes via Court actions. I suppose I shouldn't mention cases where Presidential threats or actions produced a legal result contrary to decisions by the US Supreme Court -- nah, forget Roosevelt's threat to pack the Court and its backtracking or Jackson's declaration when told of decision by the US Supreme Court "now let them enforce it"! Of course, ignore abolitionists that opposed the well settled Constitutional principle of slavery.

I know it is unpopular with the lawyer class and those willing to rent their thinking out to courts, but history shows that "well settled principles of law" are respected when not opposed by a determined people (blacks, gays, maybe even gun owners) with power. Such power may be worked to reverse decisions of the Supreme Court even if it is exercised by a minority of the people provided they have enough determination.

To legaleagle45: A person isn't a corporation but a natural human being who might not be a US citizen. Now, please tell me that you have researched the legislative history of this amendment to find that congress intended to include corporations as persons.

You haven't yet given me any convincing evidence the framers of the 14th amendment intend that purpose. If the US Supreme Court holds without some documentation of framing intent for an equivalence of persons with corporations for a taking of property, then I'd suggest this is just one more example of the extension of the Constitution. I really don't object to extending the Constitution in some cases, but I really do object to pretending, with next to no analysis, that the extension has a rational emanation from the Constitution.

BTW, pray how can you deprive a corporation of property without depriving natural persons of property? The Court might have over reached to declare the principle that an artificial entity such as a corporation is entitle to due process protection for property, when depriving a corporation of due process deprives the stockholders of the same due process.

In any case, the Supreme Court may declare Lincoln's dog to have 5 legs, but the dog still has four legs.

Frank Ettin
December 13, 2008, 07:29 PM
Phil, the real problem is that you are stuck in your alternate reality. You are looking at the Constitution, and the law in general, in a vacuum. Your analysis is completely divorced from the history of the application of the law in real life.

The law does not exist in a vacuum. It exists in this, the real world, where it is used as a tool by which courts decide the outcome of disputes. Just as a musical score is just marks on paper until it is realized by the playing of it, the law derives its meaning from its application by the courts to real life matters.

And at the end of the day, the opinions of the courts as to what the law is will trump yours. Because the opinions of the courts affect the lives and property of real persons (including corporations) in the real world. Your opinions, on the other hand, do not.

Enjoy your alternate reality and please give Schrodinger's cat a scratch behind the ear for me.

Frank Ettin
December 13, 2008, 07:40 PM
...pray how can you deprive a corporation of property without depriving natural persons of property? The Court might have over reached to declare the principle that an artificial entity such as a corporation is entitle to due process protection for property, when depriving a corporation of due process deprives the stockholders of the same due process...
There are corporation that are not owned by anyone. With a charitable corporation, for example, such as may be organized as a California non-profit, public benefit corporation, there are no shareholders, and no one has a claim on its assets.

legaleagle_45
December 13, 2008, 08:09 PM
Now, please tell me that you have researched the legislative history of this amendment to find that congress intended to include corporations as persons.

I researched it. Excerpts from my previous citation:

In an argument before the Supreme Court of the United States in 1882 Roscoe Conkling, a former member of the Joint Congressional Committee which in 1866 drafted the Fourteenth Amendment, produced for the first time the manuscript journal of the Committee, and by means of extensive quotations and pointed comment conveyed the impression that he and his colleagues in drafting the due process and equal protection clauses intentionally used the word “person” in order to include corporations “at the time the Fourteenth Amendment was ratified,” he declared, “individuals and joint stock companies were appealing for congressional and administrative protection against invidious and discriminating State and local taxes. One instance was that of an express company, whose stock was owned largely by citizens of the State of New York...” The unmistakable inference was that the Joint Committee had taken cognizance of these appeals and had drafted its text with particular regard for corporations.

Conkling’s argument has figured prominently in historical writing since 1914 when B.B. Kendrick unearthed and edited the manuscript copy of the Journal which Conkling used in court. Checking the record in the light of his major propositions, historians became convinced of the fundamental truth of Conkling’s story. Repeatedly, it appeared from the Journal, the Joint Committee had distinguished in its drafts in the use of the words “person” and “citizen.” Under no circumstances could the terms have been confused. Moreover, as the Committee had persistently used the term “person” in those clauses which applied to political rights, the force of this distinction seemed plain: corporations as artificial persons, had indeed been among the intended beneficiaries of the Fourteenth Amendment.

Phil Lee
December 13, 2008, 10:12 PM
Thanks legaleagle45 for the incentive to educate myself. In your research, you must have missed Ted Nace's book or you might not have quoted from Roscoe Conkling's who used a secret journal in an argument to deceive the Supreme Court.

The full reference to Nace is Gangs of America, The Rise of Corporate Power and the Disabling of Democracy, Ted Nace, Berrett-Koehler, 2003. On pp 113-115 you will find the selections of text (please excuse the typos from my retyping):
Corporate lawyers were indeed trying to make inroads into the Constitution. That had been going on even before the Civil War, as shown in cases stretching back to the 1819 Dartmouth decision and in various legislative maneuvers at both the state and federal levels. Many of these bids for power ended up in front of the Supreme Court. But the particular conspiracy that the Beards fingered -- the Committee on Reconstruction plotting to use the word persons in a particular way that would allow corporations to claim coverage under the Fourteenth Amendment -- actually appears to have been a fabrication. The evidence, as it turns out, says it didn't happen.

But what about the documentary evidence -- specifically, the journal quoted by Conkling? Misplaced for three decades afther Conkling appeared before the Court, the Journal of the Joint Committee of Fifteen on Reconstruction was finally located and published in 1914 by Princeton professor Benjamin Kendrick. No one actually sat down to compare the journal, word by word, with the quotations from it that Conkling had used in his arguments before the Court. It was generally assumed that the discovery of the journal confirmed what Conkling had said.

Finally, twenty years after the journal was made public, a Stanford University law librarian named Howard Graham took the time to study it closely. Graham did not initially set out to disprove the Conkling-Beard claim that Congress secretly intended the Fourteenth Amendment to include corporations. But as he began routinely checking the quotes cited by Conkling in his Supreme Court testimony against the journal uncovered by Professor Kendrick, Graham made an interesting discovery. Roscoe Conkling, it appeared, had deceived the Supreme Court, deliberately switching key words here and there to "prove" his point about the intent of the committee that drafted the Fourteenth Amendment.

Conkling's main fabrication was his claim that in drafting the Fourteenth Amendment, the Joint Committee on Reconstruction had gone back and forth between using the word person and using the word citizen, settling finally on the word person because the broader legal meaning of that word would include corporations.

. . .

As presented by Conkling, the story was plausible. But, in fact, as Graham discovered when he read Conkling's "secret journal," the switch from persons to citizens and back to persons had not actually occurred. All ddrafts of the amendment had used the word person consistently. In his argument to the Supreme Court, Conkling had made a great show of emphasizing the switch, first to citizen and then back to person. To Graham, the evidence was clear that Conkling's argument was not only wrong but was intended deliberately to deceive the Court.


It is wrong to argue a secret intent behind the use of "persons". No contact should be enforced if the terms used have a meaning understood by only on one side of the contract. If the terms of a contract are not applied as they are used in common practice, the term can't be enforced -- (e.g., But Judge, I know the contract called for 100,000 dollars for the work, but I meant 100,000 Australian dollars even though I didn't say so specifically. I had a secret meaning. Now I want my full payment in those more valuable dollars.) Hugo Black had a comment about secret meanings, but I'll leave that to you to find.

If Conkling and the drafting committee had a secret meaning not revealed to the ratifiers, the plain meaning is what was ratified. But, . . ., Conkling lied about the drafting committee's intention. There was no secret intent. Persons were not intended by the drafting committee in Congress to include corporations and the US Supreme Court decision making that holding was based on a lie.

Gosh, lying to a Court -- who would have suspected an upright former Senator and lawyer would lie to the Court to earn a $10,000 fee (comparable to roughly $500,000 today) from his corporate employer.

gc70
December 14, 2008, 12:20 AM
I know it is unpopular with the lawyer class and those willing to rent their thinking out to courts, but history shows that "well settled principles of law" are respected when not opposed by a determined people (blacks, gays, maybe even gun owners) with power. Such power may be worked to reverse decisions of the Supreme Court even if it is exercised by a minority of the people provided they have enough determination.

Behold, the malleable, extensible Constitution.

Ieyasu
December 14, 2008, 12:25 AM
That is fascinating (and amazing) Phil.

After reading your post and doing a little Googling I ran across this link which I also found interesting:
http://www.bloomingtonwilpf.org/localagenda/howardjaygraham.pdf

An excerpt:
It was not the decision [Santa Clara Co. v. Railroad Co], but the headnote to the decision, written later by Court Reporter Davis, that gave corporations the personhood protections they had sought in vain for so long.[emphasis mine]

Even though I have little knowledge of 14th-Amendment jurisprudence, what I have read rather disgusted me and this certainly adds to it.

Ieyasu
December 14, 2008, 12:57 AM
This appears to be a link to Graham's original article in 1938, although there are grammatical errors in the text (obviously either the original was poorly edited or this page poorly transcribed): http://section520.org/conspiracytheory.html

Phil Lee
December 14, 2008, 09:09 PM
Thank you Ieyasu and thanks for adding real content.

fiddletown says Phil, the real problem is that you are stuck in your alternate reality . . . .

I'm not sure why fiddletown posts and debates here. If he wants discussion of legal issues, I'm sure he can read case decisions where the people he respects give their opinions or he can submerge himself in law review articles.

But, I know why I'm here. Franklin said at the close of the Constitutional convention that we had a republic if we can keep it. I'm here to do my part in keeping the republic.

The republic won't be kept by the likes of Judge Reinhardt of the 9th Circuit who let an case opinion he drafted be influenced by the lies of Michael Bellesiles in Arming America. Nor will the republic be kept by Chief Justice Morrison Waite who let his opinion be influenced by Senator Conkling's lies.

I'm fully aware of the power of the state to apply force to maintain their concept of the law and my more limited influence. But liberty cannot be maintained if government is ignored by everyone and while I can do little, that little isn't nothing.

I participate here so that government will not be ignored by me. I count on enough people having similar attitude like me to bring pressure to correct wrong decisions -- at least in the cases concerning rkba.

The alternate reality I occupy, fiddletown, is one of learning and educating others in order to influence politics and I'm quite happy to occupy this alternative reality to create problems for lawyers and Judges who neglect their obligation to the Constitution -- as the Constitution is, rather than as corrupt or lazy judges claim it is.

ConstitutionCowboy
December 14, 2008, 09:56 PM
But, I know why I'm here. Franklin said at the close of the Constitutional convention that we had a republic if we can keep it. I'm here to do my part in keeping the republic.

The republic won't be kept by the likes of Judge Reinhardt of the 9th Circuit who let an case opinion he drafted be influenced by the lies of Michael Bellesiles in Arming America. Nor will the republic be kept by Chief Justice Morrison Waite who let his opinion be influenced by Senator Conkling's lies.

I'm fully aware of the power of the state to apply force to maintain their concept of the law and my more limited influence. But liberty cannot be maintained if government is ignored by everyone and while I can do little, that little isn't nothing.

I participate here so that government will not be ignored by me. I count on enough people having similar attitude like me to bring pressure to correct wrong decisions -- at least in the cases concerning rkba.

The alternate reality I occupy, fiddletown, is one of learning and educating others in order to influence politics and I'm quite happy to occupy this alternative reality to create problems for lawyers and Judges who neglect their obligation to the Constitution -- as the Constitution is, rather than as corrupt or lazy judges claim it is.

Amen, brother!

I have asserted that the right to arms is auxillary right to an underlying natural, or God given right, to self defense. Even a prisoner in a correctional institution is entitled to exercise the right to self defense. Do you think a prisoner in a correctional institution is entitled to exercise his right to arms? Notice the distinction, Woody. The right to self defense remains, but the auxillary right to arms is not allowed while incarcerated. That would not be the case if your postulate was correct...


You're right. A prisoner has the right to self defense. The state will provide that for him. The prisoner is a ward of the state. As for the prisoner's RKBA, he still has it. He is deprived his ability to exercise it while incarcerated(See the Fifth Amendment). When he gets out, his arms should be waiting for him to keep and bear. If he can't be trusted with them, he needs to be kept incarcerated until he can be trusted. Sucks to be him.

Woody, actually the Constitution does say (in Article III), "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 ... establish...." And, "...judicial power shall extend to all cases, in law and equity, arising under this Constitution...."

See that word "under"? It has meaning. Plug in that meaning and it all becomes clear that the Court has no power over the Constitution.

At the same time, I didn't see anything in the Constitution about Woody having authority to decide the extent of the judicial power of the federal courts.

Oh, but indeed there is! I am one of We the People and We the People outlined the power of the Court. It is the same as if I was there writing the Constitution along with the Founding Fathers. The same goes for you and every other citizen of this great Union.

So it does seem that the courts have a better claim than you do. As shown; sorry, no. They have no more power to say what the Constitution says than you or me beyond the scope that they are ones of We the People as well.

It is in the Penumbras and Emanations Clause...

I think you have the wrong spin on that. Those penumbras emanate from the Constitution's Sphincter Clause. :neener:

Some of these abridgments have been sustained by courts as being within the scope of permissible regulation of a Constitutional right.

In the case of the Second Amendment, any such "abridgment"(infringement) would be a usurpation.

... Any such regulation must serve a compelling or substantial governmental purpose, must reasonably serve that purpose and must be no broader nor invasive than necessary to serve that purpose. ...

In the case of the Second Amendment, the keeping and bearing of arms is benign and innocuous. Aside from the absolute prohibition upon government to infringe the right, there could be no compelling governmental purpose other than as a prerequisite to tyranny.

As for the "citizens" and "person(s)" dichotomy in the Fourteenth Amendment, their use is clear. "Citizens" refers only to citizens, and "person(s)" would apply to everyone who is here legally including citizens.

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

Frank Ettin
December 15, 2008, 12:09 AM
We shall see. And I suspect that we shall see some real progress in the courts for the RKBA with the foundation provided by Heller. But I also predict that we well see many existing, and new, limitations on the RKBA sustained by the courts. You, Phil, and you, Woody, and some others here, will object, and claim the courts' decisions to be Constitutional violations or usurpation of power they don't have. But those decisions will nonetheless operate to affect peoples' lives and change or order conduct in the real world. And we should hope that they will be skillful and knowledgeable lawyers who understand and can work the system to represent our side and gain us the most favorable decisions reasonably possible in real life.

...See that word "under"? It has meaning. Plug in that meaning and it all becomes clear that the Court has no power over the Constitution....
Actually Woody, the operative word is "arising."

gc70
December 15, 2008, 12:23 AM
Originally Posted by ConstitutionCowboy:
Oh, but indeed there is! I am one of We the People and We the People outlined the power of the Court. It is the same as if I was there writing the Constitution along with the Founding Fathers. The same goes for you and every other citizen of this great Union.

Amazingly, I am in total agreement with ConstituionCowboy.

We the People outlined the power of the Court.
We the People have endorsed the actions of the Court.
We the People have accepted the Court's interpretations.

Of course, "We" is plural and represents at least a majority of the People, although individual People may hold differing opinions. :D

ConstitutionCowboy
December 15, 2008, 10:45 AM
Actually Woody, the operative word is "arising."

Actually, "arising" means to come into being in this context. "Under" is still operative here, delineating a limit upon the power of the Court. The only thing that would rise above the Constitution's grant of power to the Court is the Constitution itself and the various protections it affords our rights.

Amazingly, I am in total agreement with ConstituionCowboy.

We the People outlined the power of the Court.
We the People have endorsed the actions of the Court.
We the People have accepted the Court's interpretations.

Of course, "We" is plural and represents at least a majority of the People, although individual People may hold differing opinions.

Well, one third maybe. Very few of us have endorsed the actions of the Court, and very few of us accept the Court's "interpretations". I'd hazard a guess that a vast majority of us are clueless in these regards.

Woody

ConstitutionCowboy
December 15, 2008, 11:34 AM
... And we should hope that they will be skillful and knowledgeable lawyers who understand and can work the system to represent our side and gain us the most favorable decisions reasonably possible in real life. ...

Do you honestly believe the Court awaits whatever the lawyers present in such cases to form their opinions? Read DC v. Heller. The Court states its position and where and how it concurs or disagrees with the various briefs. The "dissenting" Justices lost only because they are in a minority, and the concurring Justices won because they were in a majority. This was all decided based upon the opinions of the Justices.

Woody

Phil Lee
December 15, 2008, 12:40 PM
I hate it when people make claims like "You, Phil, and you, Woody, and some others here, will object, and claim the courts' decisions to be Constitutional violations or usurpation of power they don't have."

It is arrogant to presume to know what I'll do. But, I don't think fiddletown has made the claim because he is arrogant -- I think he wants to change the topic of discussion.

I'm not willing to leave the 14th Amendment, yet. The case pled by Senator Conkling and decided by Judge Waite is a prime example of judicial misconduct and wrong decision. Even if Judge Waite had accepted Conkling's claim for a hidden intent by the drafters of the amendment concerning the meaning of person, he should have rejected the claim on the basis that it intentionally deceived the parties ratifying the amendment.

The common use in legal context for PERSON was: 'This word is applied to men, women, and children. It is also used to denote a corporation, which is an artificial person. . . . But when the word "person" is spoken of in legislative acts, natural person will be intended, unless something appears in the context to show that it applies to artificial person.'
(ref: A Law Dictionary, John Bouvier, 2nd Edition, Vol. 1, 1856, p 318)

According to this common legal use, person, in the 14th Amendment would have been understood by ratifiers as natural persons. Corrupt people then lied to have the accepted meaning by ratifiers converted to a wider meaning to include corporations.

This story should be understood by all, because it has current implications. If your great-grandfather had stolen money, stuffed it into the walls of your family house, died soon after, and that money was discovered by you 100 years later, the money wouldn't be your money. It was stolen from people and belongs to those people or their heirs. We all understand that. But, if the law was stolen by a corrupt act, we are told by workers in the legal field to accept this theft. "Stare decisis" must be respected.

The 14th Amendment's meaning for "persons" was stolen years ago. That wasn't the most important theft, there were other thefts for this Amendment -- particularly concerning the application of the Bill of Rights to the States.

What the people have been facing to an increasing degree since Miller has been the attempt to steal the meaning of the 2nd Amendment of their Constitution. For the moment, perhaps, the people have held the line. But the plan to steal it by reasonable regulation is still being worked.

Some people have the misguided idea that the Constitution is there to protect them. To protect the people, the people must protect the Constitution. It can't be a shield for them, if it isn't a flag to rally them. The flag, in this instance, is the meaning of the Constitution. That is, the real meaning, not what some judge says is the meaning.

Frank Ettin
December 15, 2008, 08:14 PM
...Do you honestly believe the Court awaits whatever the lawyers present in such cases to form their opinions? Read DC v. Heller. The Court states its position and where and how it concurs or disagrees with the various briefs. The "dissenting" Justices lost only because they are in a minority, and the concurring Justices won because they were in a majority. This was all decided based upon the opinions of the Justices....
I know from experience that judges' views can be, and are, shaped by the way a case is presented by one side or the other, the arguments that are made and the facts of the case. Most judges really do try to decide cases based on the applicable law and on the particular facts of the case, and most judges conscientiously consider well made arguments by counsel for the parties.

I know that you have no experience of this and will never believe it. But it is true.

ConstitutionCowboy
December 15, 2008, 08:24 PM
I'm talking the Justices on the Supreme Court, not your run-of-the-mill judges.

I didn't read every brief presented in the DC v. Heller case, but I don't recall any of the ones I did read mentioning the use of Johnson's Dictionary; 1773(+/-).

Woody

Frank Ettin
December 15, 2008, 09:24 PM
They don't rely 100% on the briefs in writing their opinions. They also do their own research, and have clerks to do research. Often they will follow a line of argument suggested by a brief or argument.

gc70
December 15, 2008, 09:41 PM
I didn't read every brief presented in the DC v. Heller case, but I don't recall any of the ones I did read mentioning the use of Johnson's Dictionary; 1773(+/-).

The 1st edition (1755) was cited by the Professors of Linguistics (http://www.gurapossessky.com/news/parker/documents/07-290tsacProfessorsOfLinguistics.pdf).

The 4th edition (1773) was cited by Texas and 30 States (http://www.gurapossessky.com/news/parker/documents/07-290bsacTexas.pdf). The brief erroneously cited the publication date as 1770, although the actual date was 1773.

Scalia properly used the 1773 edition, as it was written closer, but still prior, to the formulation of the Second Amendment.

ConstitutionCowboy
December 15, 2008, 11:46 PM
Thanks, gc. I'll read them and compare what they wrote to what Scalia wrote.

Woody

gc70
December 16, 2008, 12:12 AM
Very few of us have endorsed the actions of the Court, and very few of us accept the Court's "interpretations". I'd hazard a guess that a vast majority of us are clueless in these regards.

Definitional differences aside, uninformed acquiesence has the same practical result as active agreement. The vast majority of the people validate the Court's actions by failing to act to invalidate its actions. As a practical matter, the Constitution does mean what the Court says it means.

ConstitutionCowboy
December 16, 2008, 11:56 AM
Definitional differences aside, uninformed acquiesence has the same practical result as active agreement. The vast majority of the people validate the Court's actions by failing to act to invalidate its actions. As a practical matter, the Constitution does mean what the Court says it means.

How sad, but true in practice. It tells me that the Court, meant to be the watchdog, cannot be trusted. It can't be trusted to operate when no one is looking, or when whomever is looking is clueless.

The definition of good character is doing what's right when no one is looking. What a sad commentary on some of those "revered" citizens of this union of ours, occupying that bench, who won't live up to that simple axiom.

Woody

"Impeachment is the Right of the People, vested in the powers granted to Congress, to preserve or restore Justice and preserve the Constitution of the United States. Those vested with power shall neither deprive the People the means, nor compel such recourse." B.E.Wood

There's been a whole lot of compelling going on in the last hundred years or so...

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