Correct. It is law, but not statutory law.
No, it is not. It is the Constitution.
Latest Assault rifle ban proposal 11/10/17, another argument to try
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AlexanderA
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No, I'm one of those gun owners who has a lot to lose if I run afoul of the gun laws as currently administered. I'm a realist. In other words, I'm not willing to make myself a test case for the sake of some higher principle. I'm certainly willing to work for pro-gun change within the bounds of the system, and according to what is politically possible. Repealing all gun laws is not politically possible, and never will be.
Sistema1927
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This one began poorly, and hasn't gotten any better.
grampajack
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How? It's law, and it's not case or regulatory law. It's written and it was passed by a legislature, so it's not popular law. What am I missing?
No one is advocating doing anything that's going to put you prison.
weeniewawa
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you can't say that as you do not know what anyones needs are, just like when they say nobody needs a standard capacity magazine for home defense when no one knows how many attackers you will need to defend yourself from
It is constitutional law. Law can be: constitutional law (the text), statutory, case law, or regulatory law. (I don't think I missed any, but I may have.) Case law may also be classified as constitutional, contracts, torts, criminal law, etc.
CapnMac
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No, it is not.
The National Guard is a unit of the United States Army, distributed among the States, and under the token command of the Governors thereof. All members of the NG wear a US Army identification lable on their uniforms. They have Geneva Convention ID cards issued to them as well. The Sates pay the personnel, but are reimbursed by DeptArmy for that expenditure.
The Present National Guard might be a Militia, as defined in Article 1 Section 8; but is it most certainly the "organized militia" per the1903 Militia Act.(ref 10 USC 311) which repealed the Militia Acts of 1792. The National Defence Acto of 1916 merely cemented procedures, ensuring uniform pay, service periods, and the like for each of the States.
Note, the several State are allowed, if they care to, to raise State Guards and Militia. Those personnel only answer to the Governonr in that State, and are paid for exclusively through State funds. (Which might also be only a stipend or per diem wage.)
Madison told us long ago that the militia was every free man. As did Tench Coxe, who insisted that said militia be equipped with every dread implement of the soldier.
The National Guard has nothing to do with a well-regulated militia. They are a unit of the Army, who operated at the direction of their Governor, by leave of the Chief of Staff of the Army. They are not every common man, but a select, uniformed, standing military unit.
entropy
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Where is that facepalm emoji? The standard definition of militia at the time it was written was every able bodied free male between the ages of 18 and 60. They were to supply a longarm and powder and shot for 60 shots.
Look, you're a gunsmith. Spats McGee is a lawyer. The guy had to study the Bill of Right in his Introductory Law classes, and in classes devoted specifically to the Bill of Rights and the rest of the Amendments.
I'm a gunsmith, who served as a paralegal for a short while. I think I'll believe his legal definitions over yours, just as I'd believe your AR build advice over his.
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grampajack
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Okay, then it's super statutory law. My point is that it's literal, binding legislation, not a set of guiding principles or some such nonsense. You can't "interpret" it anymore than you can interpret the tax code (boy, wouldn't that be nice).
Like everything else, the National Guard has been taken to unconstitutional places, but it's by far the closest thing to the militia described in Article 1 that exists, and its heritage is the state militia.
Article 1 says the militia is to be trained according to federal doctrine, equipped by the federal government, and the federal government can call it up to enforce laws, put down insurrection, and repel invasion.
This isn't really a matter for debate. It's right there in black and white. The people is not synonymous with the militia, as it's defined by the Constitution. If it is, then Uncle Sam owes me an M4 with a side of M203 and an NVG to go.
See, you've disproved your own theory right there, as the militia as its defined in Article 1 doesn't supply its own arms, but has them supplied by the federal government.
At every level, the Constitution speaks of an organized militia. Article 1 says "To provide for organizing...the militia." And of course even the 2nd Amendment clearly states "well regulated militia," making it obvious that it's talking about the militia of Article 1, not some mystery militia.
Full disclosure, I'm not a gunsmith, as I'm not a machinist. I have my toys, but I'm not the guy to build your custom bolt gun. There are things I'm willing to do with my own guns that I wouldn't feel comfortable doing to someone else's. It's like I'm pretty good at building websites, but I'm not a web developer, if that makes any sense, even though some people calling themselves such are on my level. I know enough Linux to poke around my own lamp stack, but you couldn't pay me enough to so much as run updates on someone else's.
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You do understand that our courts have been interpreting law since Marbury v. Madison, right? And that courts naturally must interpret laws?
No, it's not that, either. It's constitutional law. It's a separate beast unto itself.
grampajack
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Okay, but the Constitution is no more flexible than any statute. It's meant to be interpreted literally. Take counterfeiting, for example. The courts will never rule that it's okay to counterfeit an occasional single here an there. If you print one single dollar bill and the secret service finds out about it then they're going to take you to the mat and the courts will always rule that counterfeiting a single bill on your home printer is still counterfeiting, just as surely as if you'd printed an entire warehouse of twenties using stolen plates.
Nobody ever claims that ordinary statutes are "living documents" or "guiding principles," and it doesn't mean a blasted thing if they're two hundred years old. Until legally repealed or replaced, they stand, and if you run afoul of one you're going to jail. They will even get you on a technicality for which the law was never intended, such as the Air Force veteran who was convicted of transferring a machinegun when his AR fired a few bursts due to a worn out trigger, something I daresay has happened to all of us here on at least one occasion. None of the judges who presided over his case came to his defense by arguing that the case violated the "guiding principle" of the law he was being charged under.
Yet we have judges every day in this country blatantly justifying unconstitutional rulings by arguing that the Constitution is a living document, that it's outdated, that this word doesn't really mean what you think it means, etc. We even have two types of justices in our vernacular now, Originalists and non. Can you imagine if that same logic were to be applied to normal statutes? No one would stand for it.
Jeez, man, I was being sarcastic.
danez71
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Maybe the Constitution should of said that Grampajack would resolve such issues instead of the Supreme Court....?
grampajack
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You're totally right. We shouldn't ever question authority, even when that authority is clearly off the reservation. That's not what this country is about.
danez71
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Your reply clearly shows you interpreted my question incorrectly; I didn't say anything about not questioning authority.
grampajack
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Then I don't know what your point is. Your whole line of argument thus far has been that the supreme court rulings are gospel and should just be accepted.
...........................
So just for $%$#$ and grins, I looked up the definition of constitutional law.
Merriam Webster Law Dictionary defines it as "a body of statutory and case law that is based on, concerns, or interprets a constitution."
Random House defines it as "the body of law that evolves from a constitution, setting out the fundamental principles according to which a state is governed and defining the relationship between the various branches of government within the state."
So the Constitution itself is apparently not constitutional law, but rather constitutional law is something that is derived from the constitution.
And of course statutory law is anything that is enacted on paper by a legislature. So strictly speaking, I don't see why the Constitution can't be defined as a set of statutes.
There are countries where the constitution is more of a suggestion than actual law. In England, apparently, much of their constitutional law is derived from unwritten traditions, so maybe it's accurate to say that their constitution is not statutory. In regards to the US Constitution, however, I don't see how it doesn't meet the literal definition of statutory law.
But, THE MOST IMPORTANT THING...
...is that I can't find any reason whatsoever to suggest that the US Constitution doesn't carry the full weight and authority of statutory law. Instead of going around in circles with semantics, can't we just agree that the Constitution is as binding and inflexible as any other law on the books?
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AlexanderA
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The tax code is interpreted all the time, through IRS regulations, rulings, and court cases.
We have a legal structure in this country, with the Constitution at the top of the pyramid, supported in turn by statutes, administrative interpretations, and case law. Each of these levels has its own degree of "granularity." What I mean by that is that the Constitution, by necessity, speaks in rather general terms, that is, it's not very "granular." The supporting statutes can be more particular, and more "granular." Finally, court cases and administrative determinations are very "granular" in that they usually apply to particular sets of circumstances. That's why ATF rules, for example, can coexist with the 2nd Amendment. The degree of permissible coexistence is determined by the courts.
The latest Supreme Court pronouncement on guns, the Heller case, leaves a very wide latitude for regulations that are consistent with the 2nd Amendment. The Court has said, therefore, that such regulations are not "infringement." For a private citizen to come along and say that all gun regulations are "infringements" of 2nd Amendment rights just isn't supportable under the current jurisprudence. At least such a proposition shouldn't be stated as a fact.
danez71
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My apologies. I missed the sarcasm.
That's not possible. It is not possible to determine whether a particular statute is an "infringement" unless and until someone (SCOTUS, for example) determines what "an infringement" is.
Actually, yes, they do. To put it in 2A terms, take a look at the Abramski case:
SCOTUS said:
I believe it was a SCOTUS Justice who once said something to the effect of, "We're not final because we're infallible. We're infallible because we're final."
The Constitution is the primary source of constitutional law. Those provisions are then given more specific meaning through the enactment of statutes, which are then interpreted by the courts.
grampajack
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Which is a serious problem for anyone who speaks English. The literal definition of infringe means to limit or encroach on something. You could render the 2nd Amendment as "...the right of the people to keep and bear arms shall not be limited."
So when I say that the 2nd Amendment does grant the people the unlimited right to keep and bear arms I can indeed say that as a fact, because that's literally what the law says in plain English.
If it simply said "The people have the right to keep and bear arms," then the supreme court would be perfectly sound in its rulings. Or if it said, "...the right of the people to keep and bear arms shall not be unduly limited," then there would be no argument over the current rulings, at least in terms of whether they were constitutional or not. But our founders, in this instance, chose to use the strongest language possible, and that presents a serious problem for anyone who claims to be an originalist and at the same time thinks the SCOTUS rulings are in any way Constitutional.
While I was being somewhat flippant, you have to see my point. Even if the Constitution is technically not a statute, I don't see how that has any bearing on the discussion, as it carries the full weight of a statute under US law. This semantic debate has served only to muddy the waters and deflect the conversation away from the fact that the Constitution is meant to be interpreted literally.
Going back to the guy who was convicted of transferring a machinegun, that's a prime example of how laws are supposed to be interpreted literally, as opposed to how we think they should be interpreted or what we think, or even know, the intent of the authors was. While his AR was not a machinegun by any stretch of the imagination, it did fire more than one round per pull of the trigger, and therefore was a machinegun under the law as it is written.
I realize that all laws are interpreted everyday, which is why I wrote "interpreted" in regards to how the Constitution is treated these days. There are reasonable and unreasonable interpretations, and anyone who has any command of the English language can see how truly unreasonable the supreme court has been in its interpretations of the 2nd Amendment.
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I do hope you're not saying that I don't speak English. I've been engaged in litigation for about 15 years and about 10 of those years were as a constitutional litigator. I'm pretty well versed in both the English language & constitutional issues.
You do realize that you're interpreting the constitution, right?
Again, you are interpreting the constitution, all while you argue that it's not subject to interpretation.
grampajack
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Maybe that's your problem...
Well, by your standards, four is an interpretation of two plus two, but us average folk call it a fact.
It's subject to interpretation, not "interpretation."
Not a problem for me. For you, maybe. You clearly have an opinion on these matters, but not all opinions are equal. I don't ask my plumber to review my motions for summary judgment, and he doesn't ask me how to fix my sink. . . .
Reductio ad Absurdum. Most "average folk" can tell the difference between the English language and math.
You'll believe what you want, but I'll stick with reading SCOTUS rulings and interpreting them.
Sam1911
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Oh good grief. Once again we run smack into a stone wall when the folks who know how our Constitution, courts, and laws work run up against the folks who feel that how they THINK it should work makes some kind of difference.
That gets tiresome. Let's be done.
That gets tiresome. Let's be done.
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