Conservative Cir. Judges Against RTKBA

[legaleagle_45]

Don't feed this troll.

Dang... but I have been absent from this board for some time and I can rip this troll to shreds...

If you need to see how much fun it will get you in, you can have a peek on the same topic on another board.

Naw... I barely have time for this board, let alone some other board.

 

[Byron Quick]

Jefferson and Adams also ended up good friends, though their political relationship had been adversarial to the extreme.

Not so. They were friends long before the tension brought about by their campaign for the presidency. The extremely negative campaigns each conducted estranged the two men for years. But each was always punctiliously civil and courteous to the other personally. When they finally reconciled, their friendship once again flowered as if the bitter denunciations had never happened.

It seems there is a clique of conservatives who are so opposed to what they view as 'judicial activism' that they oppose a judge upholding the constitution. Crazy conservatives...who'da thunk it? So opposed to judicial activism that they support the idea that legislatures should have the power to abrogate individual rights!

In the name of 'upholding local values.' Tell you what, if it's a choice between my rights being ignored and local values then local values can go to hell.

I don't agree with Roe v. Wade by any means. But this judge's view of Heller and the fact that he asserts that view is shared by some other conservatives(that I assume, given his position and status, are also powerful government figures) is one of the most dangerous threats to our liberties that I have knowledge of.

These other conservatives-if they exist-need to be identified, watched like a hawk, and opposed. More than simply opposed. If elected, they need to be defeated and, if possible, disgraced to the point that they have no influence with people who remain in government. These people are dangerous.

 

[KyJim]

MJagger may be a troll but I at least have to point out that he has completely quoted St. George Tucker, Blackstone's Commentaries 1:App. 272--75 out of context. The Appendix here specifically discussed powers of Congress and not individual rights guaranteed by the Constitution. The very first quoted portion states, "The objects of this clause of the constitution . . ." itself points out that it was dealing with only one clause of the Second Amendment and not the entire amendment. Therefore, his entire discussion on this point is built on an irrelevancy.

Justice Scalia noted more than once that Tucker's Blackstone Commentaries recognized the right of individual self-defense and the corollary right of use of firearms in that defense. Heller, slip op. at 21, 33.

Can anyone seriously disagree that one has the right to defend one's self and, if necessary, to use deadly force in that defense? This is not a right that the federal government has condescended to grant us. It is part of the inalienable right to live and is the most basic human right we hold. Moreover, the right to defend one's self necessarily implies the right to have the reasonable means to do so. Otherwise, granting the right to defend one's self without the right to hold the means to do so would make the right of self-defense meaningless. Thus, the use of firearms is necessarily implied as part of one's right to live and one's right to defend himself. As such, it is not a right the federal government bestowed upon the People nor one the federal government can take away. This right is not conditioned upon the Second Amendment. Rather, the Second Amendment assumes this right already existed and discusses it in context with the militia. The Tenth Amendment protects this right -- the right to live is a fundamental right retained by the people and cannot be taken away.

It is for this reason that a strictly conservative judicial interpretation results in the same conclusion that Heller does, albeit for slightly different reasons.

 

[legaleagle_45]

I don't agree with Roe v. Wade by any means. But this judge's view of Heller and the fact that he asserts that view is shared by some other conservatives(that I assume, given his position and status, are also powerful government figures) is one of the most dangerous threats to our liberties that I have knowledge of.

Agreed, Bryon. The courts can not defer to the "wisdom" of or legislatures regarding all subjects and all matters, otherwise our freedoms rely upon the whim of our congress critters...

This quote seems appropriate:

What is a Constitution? It is the form of government, delineated by the mighty hand of the people, in which certain first principles of fundamental laws are established. The Constitution is certain and fixed; it contains the permanent will of the people, and is the supreme law of the land; it is paramount to the power of the Legislature, and can be revoked or altered only by the authority that made it. The life-giving principle and the death-doing stroke must proceed from the same hand. What are Legislatures? Creatures of the Constitution; they owe their existence to the Constitution: they derive their powers from the Constitution: It is their commission; and, therefore, all their acts must be conformable to it, or else they will be void. The Constitution is the work or will of the People themselves, in their original, sovereign, and unlimited capacity. Law is the work or will of the Legislature in their derivative and subordinate capacity. The one is the work of the Creator, and the other of the Creature. The Constitution fixes limits to the exercise of legislative authority, and prescribes the orbit within which it must move. In short, gentlemen, the Constitution is the sun of the political system, around which all Legislative, Executive and Judicial bodies must revolve. Whatever may be the case in other countries, yet in this there can be no doubt, that every act of the Legislature, repugnant to the Constitution, as absolutely void.

Vanhorne’s Lessee v. Dorrance, 2 U.S. (2 Dall.) 304, 308 (1795).

 

[legaleagle_45]

MJagger may be a troll but I at least have to point out that he has completely quoted St. George Tucker, Blackstone's Commentaries 1:App. 272--75 out of context.

KyJim, you are 100% correct. The quotes employed by Jagger were in reference to other portions of the Constitution and Tucker was merely referring to the 2nd as having some limitation or impact upon those sections. What Jagger leaves out is Tucker's direct discussion on the 2nd itself... and although I stated it previously, it bears repeating.

The right of the people to keep and bear arms shall not be infringed – this may be considered as the palladium of liberty. The right of self defense is the first law of nature. In most governments it has been the study of rulers to abridge this right with the narrowest limits. Where ever standing armies are kept up & the right of the people to bear arms is by any means or under any colour whatsoever prohibited, liberty, if not already annihilated is in danger of being so. – In England the people have been disarmed under the speciouspretext of preserving the game. By the alluring idea, the landed aristocracy have been brought to side with the Court in a measure evidently calculated to check the effect of any ferment which the measures of government may produce in the minds of the people. -- The Game laws are a consolation for the government, a rattle for the gentry, and a rack for the nation.

Clearly and unmistakenly, Tucker viewed the 2nd as involving the individual right of self defense...

 

[everallm]

LegalEagle_45,

I've seen you in action on this before so have no concern....

My comments were for others who may rise to the bait (and I just like the graphic).....

Mr Jagger has a distinct bee in his bonnet on this issue and doesn't half beat it to death, reminds me of a Jesuit I knew who enjoyed delivering "robust" logic chopping exercises....

 

[RP88]

Who cares. There is no right and wrong in the justice system anymore; there is only what's right and left. If there was any real justice, then I'd have a full-auto AK in the mail on monday

 

[M_Jagger]

Seriously, "the people" refers to an individual right, unless the rights to freedom of religion, and free speech, and to not be unreasonably searched and not have troops in our house are "collective".

A word in one context can mean one thing. However the same word in another context can have a different meaning, especially when the word is used in a legal expression whose parts don't coincide, and the rule of construction in such cases is that the means should be sacrificed to the end.

What if the Amendment said, "A well regulated Militia, being necessary to the security of a free State, the right of the men who defeated the British at Yorktown to keep and bear Arms, shall not be infringed?" Would you sacrifice the necessity for a well regulated militia to secure a free state, to a means that was insufficient (after all the men who fought at Yorktown passed away) to accomplish the end?

What if the Amendment said, "A well regulated Militia, being necessary to the security of a free State, the right of any person subject to the authority of the United States - regardless of time, situation or circumstances - to keep and bear Arms, shall not be infringed?" Would you sacrifice the means (which allows insane people, people serving time in prison, people who have been convicted of felonies, people designated enemy combatants, people with dirty bombs and people with containers of powered anthrax) to the end of "a well regulated militia", when such an end can be achieved by a lesser means, and it would be silly to extend the right to keep and bear arms to "any person subject to the authority of the United States - regardless of time, situation or circumstances?"

 

[legaleagle_45]

A word in one context can mean one thing, however the same word in another context can have a different meaning,

Correct, but the same word used in the same legal document is presumed to mean the same thing... standard rules of legal construction.

especially when the word is used in a legal expression whose parts don't coincide, and the rule of construction in such cases is that the means should be sacrificed to the end.

Only in one circumstance and one circumstance only, and that is when if in doing so you reach a contradictory result. Standard rules of legal construction.

Would you sacrifice the necessity for a well regulated militia to secure a free state, to a means that was insufficient (after all the men who fought at Yorktown passed away) to accomplish the end?

In such a circumstance you would have a contradictory result., so your example is not relevant.

Would you sacrifice the means - which would allow insane people, people serving time in prison and the accused terrorists in Guantanamo to keep and bear arms - to the end of "a well regulated militia", when such an end can be achieved by a lesser means?

See above...

Wanna try again?

 

[M_Jagger]

Jagger
A word in one context can mean one thing, however the same word in another context can have a different meaning,

Respondant
Correct, but the same word used in the same legal document is presumed to mean the same thing... standard rules of legal construction.

That was not a rule of construction in 1789 when the Second Amendment was made. In 1789 the rule of legal interpretation regarding words was that,

Words are generally to be understood in their usual and most known signification; not so much regarding the propriety of grammar, as their general and popular use....terms of art, or technical terms, must be taken according to the acceptation of the learned in each art, trade, and science...where words are clearly repugnant in two laws, the later law takes place of the elder.​

It has never been a general rule of legal construction that the same word used in the same legal document always means the same thing.

 

[legaleagle_45]

That was not a rule of construction in 1789 when the Second Amendment was made

Yes it was.

In 1789 the rule of legal interpretation regarding words was that,

You think that there was only one rule regarding the legal interpretation of legal documents in 1789????

Try again sport.

Words are generally to be understood in their usual and most known signification; not so much regarding the propriety of grammar, as their general and popular use....terms of art, or technical terms, must be taken according to the acceptation of the learned in each art, trade, and science...where words are clearly repugnant in two laws, the later law takes place of the elder.

True, but totally irrelevant to any point you are presumably making. An example of the application of the last portion of the above is what is known as the "last in time, first in right" rule, wherein you have 2 contradictory laws. One laws requires one thing and the other law requires something totally opposite. In such a case, the law which is the "newest" has precedence over the law which is "older".

Wanna try again?

 

[legaleagle_45]

It has never been a general rule of legal construction that the same word used in the same legal document always means the same thing.

And I never said that they do. It is very dangerous to use absolutes in the law. What I did say was this: the same word used in the same legal document is presumed to mean the same thing. This is not an absolute presumption and can be rebutted, but only if , for example, the interpretation governed by the application of the presumption is contraindicated by an absurd result which would otherwise occur in the application of such rule. You have provided no proof that such an absurd result would occur, thus your objection is not well taken.

Wanna try again?

 

[M_Jagger]

What I did say was this: the same word used in the same legal document is presumed to mean the same thing.

That wasn't a rule of legal interpretation in 1789. However, if it had been, it would have been a silly rule, because if we take a word used in one part of the Constitution to mean one thing, and use the same word in a different part of the same document, it can have a different meaning.

An example of this is found in the use of the word "establish," which is found in various places in the Constitution. In the preamble, one object of the Constitution is avowed to be "to establish justice," which seems there to mean to settle firmly, to fix unalterably. In another part, the Constitution declares, that Congress shall have power "to establish an uniform rule of naturalization, and uniform laws on the subject of bankruptcies," where the word is used to mean to make, or form, and not to fix or settle unalterably and forever.

 

[legaleagle_45]

That wasn't a rule of legal interpretation in 1789.

Yes it was. In fact, a corollary to that rule is (and was): when a law uses two different terms in the same act, it is presumed to mean two different things. See generally, Lindley Murray, English Grammar, Adapted to the Different Classes of Learners (1795). Thus, employing this rule would result in a nonequivalency to the two seperate terms "people" and "militia".

it would have been a silly rule, because if we take a word used in one part of the Constitution to mean one thing, and use the same word in a different part of the same document, it can have a different meaning.

Au contraire, it would be silly to assume that the same word used in the same document has two completely different meanings.

In the preamble, one object of the Constitution is avowed to be "to establish justice," which seems there to mean to settle firmly, to fix unalterably. In another part, the Constitution declares, that Congress shall have power "to establish an uniform rule of naturalization, and uniform laws on the subject of bankruptcies," where the word is used to mean to make, or form, and not to fix or settle unalterably and forever.

You aren't really being serious, are you?

Wanna try again?

 

[Dr. Tad Hussein Winslow]

This Judge Wilkinson is an umitigated moron:

a number of common flaws, including “a failure to respect legislative judgments,” “a rejection of the principles of federalism” and “a willingness to embark on a complex endeavor that will require fine-tuning over many years of litigation.”[/QUOTE]

You mean, like we have done with the 1st, 4th, 5th, 6th amendments containing other fundamental rights? Oh the horror!

And, if it wasn't for the high court abdicating its responsibility to "fine-tune" the 2nd amendment since the Miller case lo these many years, by refusing to grant cert, then the heavy lifting would already have been done, and much of the fine-tuning would be finished.

 

[Poor East Texan]

All I really know is Obama wants yours/mine/our GUNS and that is PLENTY of reason to vote against him.

Not to mention what he might do to the court....

 

[mbt2001]

Not to start up a tender box, but wasn't "the issue of states rights" settled in the Civil War?

Not well fleshed out but food for thought.

Anyway, I think Jagger is reading too much in what he wants to read into the amendment. We have a long standing tradition of citizens owning military hardware. Are you telling me that tradition is meaningless? Or somehow built on a lie? Even if it is, isn't it irrelavent now to say that "we got it wrong?"

I also find it odd, that the very people that believe that the constitution is "living" and "evolves" cling to their misunderstood text in defense of gun control, forgeting that even SUPPOSING they are right, we have moved past that and things have changed. If we are indeed to study the amendment and origins, we have to take into account that the founding fathers privately owned guns and cannons and didn't produce one regulation in their day saying that people shouldn't be able to own guns and cannons...

Either way, we win. Sorry. Move to England, they love gun bans there. I don't have anywhere to move if we lose the debate here. Whereas you do.

 

[M_Jagger]

mbt2001
Jagger is reading too much in what he wants to read into the amendment.

I'm just applying the rules of legal interpretation that the lawmakers wanted applied to the Second Amendment. My personal view is that the Second Amendment should have been what was proposed in The Address and Reasons of Dissent of the Minority of the Convention of Pennsylvania to their Constituents (December 12, 1787).

We have a long standing tradition of citizens owning military hardware. Are you telling me that tradition is meaningless? Or somehow built on a lie? Even if it is, isn't it irrelavent now to say that "we got it wrong?"

If the supreme law of law was going to be determined by tradition, there would be no point in having a written constitution.

 

[USAFNoDAk]

In talking about Ruth Bader Ginsburg a previous poster noted:

though she fudged by saying that a handgun ban didn't obliterate that right completely.

So it's OK to "infringe" upon a right which the constitution specifically says the government shall not "infringe" as long as you don't obliterate it completely? Shes dog doo if she really believes that. So, by that logic, we can have the government completely regulate what is and is not acceptable for the internet in our homes because in doing so, they would not be obliterating the 1st amendment completely. Sheesh. Where did we find that nut job. She must have been a product of the ACLU. Wink, wink, nod, nod.

 

[M_Jagger]

It is myth that the militia was expected to provide its own arms.

The Quartermaster-General shall, upon due requisition therefor, approved by the Adjutant-General, furnish the active militia, at the expense of the State, with suitable arms, uniforms, armories, ammunition, equipments, colors, camp equipage, and transportation from its armory to the place of parade or encampment, and a regimental headquarter room for each regiment, for the safe keeping of the colors and other State property in charge of the regimental commanders.
​

The Connecticut Militia Law​

 

[legaleagle_45]

It is myth that the militia was expected to provide its own arms.

Incorrect. The Militia Act of 1792:

That every citizen, so enrolled and notified, shall, within six months thereafter, provide himself with a good musket or firelock, a sufficient bayonet and belt, two spare flints, and a knapsack, a pouch, with a box therein, to contain not less than twenty four cartridges, suited to the bore of his musket or firelock, each cartridge to contain a proper quantity of power and ball; or with a good rifle, knapsack, shot-pouch, and power-horn, twenty balls suited to the bore of his rifle, and a quarter of a power of power; and shall appear so armed, accoutred and provided, when called out to exercise or into service

The initial framework for the historical duty to arms, at least in the English Common law tradition, is traced to King Alfred the Great in response to Viking raids. This later devolved into the Assize at Arms of 1181, which delineated the specific degree of armament required by each class of freemen, with the higher rank requiring a greater level of individual armament. This tradition carried forth with some infrequent interruptions associated with the republican period and the events leading up the Glorious Revolution and found their new home in the new world.

Of course not all persons subject to militia service could afford arms or otherwise did not have arms. In Virginia, for example, it is estimated that only 55% of the miltia men brought their individual weapons to the militia. The shortfall was made up in various ways, with a large proportion borrwing arms from relatives or friends. Additionally, calls to the community at large for donations of arms were made and bounties provided for new recruits with ample armament. Finally, direct colonial purchases of arms to fill in the gaps left were initiated.

 

[M_Jagger]

mtb2001:
I also find it odd, that the very people that believe that the constitution is "living" and "evolves" cling to their misunderstood text in defense of gun control, forgeting that even SUPPOSING they are right, we have moved past that and things have changed.

Huh?

If we are indeed to study the amendment and origins, we have to take into account that the founding fathers privately owned guns and cannons and didn't produce one regulation in their day saying that people shouldn't be able to own guns and cannons...

We don't have to study the Second Amendment and it origins in order to ascertain its meaning. All we have to do is apply the rules of legal interpretation they wrote about in the Federalist Papers. The Second Amendment parts don't coincide. In 1789, there was a rule that applied in such cases. You just set aside your personal biases, apply the rule, accept the results then go play Honky Tonk Women on your Fender Telecaster.

 

[M_Jagger]

The Militia Act of 1792 was ignored by the States.

 

[legaleagle_45]

All we have to do is apply the rules of legal interpretation they wrote about in the Federalist Papers. The Second Amendment parts don't coincide. In 1789, there was a rule that applied in such cases.

I assume you are referring to Madison's Federalist # 40, wherein he explains the reasons for promulgating a new constitution rather than merely amending the Articles of Confederation? If so, you are misapplying those rules of construction to the 2nd amendment, since, and as Madison explains, that rule is invoked only if the purpose is absolutely frustrated by the means provided. You have not demonstrated, nor can you, that protecting an individual right to keep and bear arms is in actual conflict with the expressed purpose of preserving a well regulated militia. Thus Madison wrote:

There are two rules of construction, dictated by plain reason, as well as founded on legal axioms. The one is, that every part of the expression ought, if possible, to be allowed some meaning, and be made to conspire to some common end. The other is, that where the several parts cannot be made to coincide, the less important should give way to the more important part; the means should be sacrificed to the end, rather than the end to the means.

Now, You may apply that rule of construction only by explaining why the right to keep and bear arms by the people defeats the desired goal of preserving a well regulated militia... Have at it.

 

[legaleagle_45]

The Militia Act of 1792 was ignored by the States.

Irrelevant, even if true. I also note that you left out the portions of the Connecticut Militia Law which required individual militia members to supply their own arms... why is that?