Conservative Cir. Judges Against RTKBA

[M_Jagger]

Let a regular army, fully equal to the resources of the country, be formed; and let it be entirely at the devotion of the federal government.

--James Madison
​

 

[Phil Lee]

M_Jagger quotes selectively from the Federalist #46 by James Madison (which he doesn't reference -- perhaps to make check his source more difficult). Typical of his approach, the selective quote is intended to mislead about Madison's point. A more complete quote from that document gives the proper view:

Let a regular army, fully equal to the
resources of the country, be formed ; and let it be entirely at the
devotion of the federal government; still it would not be going
too far to say, that the state governments with the people on their
side, would be able to repel the danger. The highest number
to which, according to the best computation, a standing army
can be carried in any country, does not exceed one hundredth
part of the whole number of souls; or one twenty-fifth part of
the number able to bear arms. This proportion would not yield,
in the United States, an army of more than twenty-five or thirty
thousand men. To these would be opposed a militia amounting
to near half a million of citizens with arms in their hands, officered
by men chosen from among themselves, fighting for their
common liberties, and united and conducted by governments
possessing their affections and confidence. It may well be doubted
whether a militia thus circumstanced, could ever be conquered
by such a proportion of regular troops. Those who are best
acquainted with the late successful resistance of this country
against the British arms, will be most inclined to deny the possibility
of it. Besides the advantage of being armed, which the
Americans possess over the people of almost every other nation,
the existence of subordinate governments, to which the people
are attached, and by which the militia officers are appointed,
forms a barrier against the enterprises of ambition, more insurmountable
than any which a simple government of any form can
admit of. Notwithstanding the military establishments in the
several kingdoms of Europe, which are carried as far as the
public resources will bear, the governments are afraid to trust
the people with arms. And it is not certain, that with this aid
alone, they would not be able to shake off their yokes. But were
the people to possess the additional advantages of local governments
chosen by themselves, who could collect the national
will, and direct the national force, and of officers appointed out
of the militia, by these governments, and attached both to them
and to the militia, it may be affirmed with the greatest assurance,
that the throne of every tyranny in Europe would be speedily
overturned in spite of the legions which surround it. Let us not
insult the free and gallant citizens of America with the suspicion,
that they would be less able to defend the rights of which they
would be in actual possession, than the debased subjects of arbitrary
power would be, to rescue theirs from the hands of their
oppressors. Let us rather no longer insult them with the supposition,
that they can ever reduce themselves to the necessity of
making the experiment, by a blind and tame submission to the
long train of insidious measures, -which must precede and produce it.

 

[legaleagle_45]

M_Jagger:

Let a regular army, fully equal to the resources of the country, be formed; and let it be entirely at the devotion of the federal government.

--James Madison

The benefit of the doubt that I previously provided you has vanished. The above quote you have provided is taken completely out of context. Madison was not advocating such... quite the opposite. He was speculating on a worst case scenario and describing how an armed populace would be able to counter that threat. Here is the full paragraph followed by a link to Federalist #46 from which the language is obtained:

Extravagant as the supposition is, let it however be made. Let a regular army, fully equal to the resources of the country, be formed; and let it be entirely at the devotion of the federal government; still it would not be going too far to say, that the State governments, with the people on their side, would be able to repel the danger. The highest number to which, according to the best computation, a standing army can be carried in any country, does not exceed one hundredth part of the whole number of souls; or one twenty-fifth part of the number able to bear arms. This proportion would not yield, in the United States, an army of more than twenty-five or thirty thousand men. To these would be opposed a militia amounting to near half a million of citizens with arms in their hands, officered by men chosen from among themselves, fighting for their common liberties, and united and conducted by governments possessing their affections and confidence. It may well be doubted, whether a militia thus circumstanced could ever be conquered by such a proportion of regular troops. Those who are best acquainted with the last successful resistance of this country against the British arms, will be most inclined to deny the possibility of it. Besides the advantage of being armed, which the Americans possess over the people of almost every other nation, the existence of subordinate governments, to which the people are attached, and by which the militia officers are appointed, forms a barrier against the enterprises of ambition, more insurmountable than any which a simple government of any form can admit of. Notwithstanding the military establishments in the several kingdoms of Europe, which are carried as far as the public resources will bear, the governments are afraid to trust the people with arms. And it is not certain, that with this aid alone they would not be able to shake off their yokes. But were the people to possess the additional advantages of local governments chosen by themselves, who could collect the national will and direct the national force, and of officers appointed out of the militia, by these governments, and attached both to them and to the militia, it may be affirmed with the greatest assurance, that the throne of every tyranny in Europe would be speedily overturned in spite of the legions which surround it.

http://avalon.law.yale.edu/18th_century/fed46.asp

Jagger, please be advised that you are not dealing with persons who are unfamiliar with the history of the era. You can not, nor will I allow you to misrepresent that history to forward your agenda.

If you need to lie and misrepresent what actually occured... if deceit is the tool of choice to advance your agenda, what does that tell you of your agenda? And, perhaps more importantly, what does that tell you of yourself?

 

[M_Jagger]

M_Jagger quotes selectively from the Federalist #46 by James Madison (which he doesn't reference -- perhaps to make check his source more difficult). Typical of his approach, the selective quote is intended to mislead about Madison's point. A more complete quote from that document gives the proper view:

All I did was post some words Madison said. I drew no conclusion from it. I was testing you.

You passed the test. Good job.....

 

[M_Jagger]

To these would be opposed a militia amounting to near half a million of citizens with arms in their hands, officered by men chosen from among themselves, fighting for their common liberties, and united and conducted by governments possessing their affections and confidence.

--James Madison

The Constitution took the power to organize, arm and discipline the militia away from the states and gave it to Congress. Under the proposed Constitution, Congress could establish a half million man militia or it could neglect to organize any militia at all.

The Constitution said nothing whatsoever about how many men were to be in the militia. That was left entirely up to Congress.

Some people feared that Congress would destroy the militia by neglecting it. Saint George Tucker said the Second Amendment removed that fear by making it clear "that each state respectively should have the power to provide for organizing, arming, and disciplining it's own militia, whenever congress should neglect to provide for the same."

 

[legaleagle_45]

All I did was post some words Madison said. I drew no conclusion from it. I was testing you.

You passed the test. Good job.....

Backtracking, I see.... but to no avail. Do you deny that you posted this as Steve Strong:

Madison was in favor of a standing army.


Let a regular army, fully equal to the resources of the country, be formed; and let it be entirely at the devotion of the federal government

--James Madison; Tuesday, January 29, 1788.

http://www.baltimoresun2.com/talk/showpost.php?p=3849789&postcount=113

Please do not compound your lies with further deception.

 

[M_Jagger]

Besides the advantage of being armed, which the Americans possess over the people of almost every other nation, the existence of subordinate governments, to which the people are attached, and by which the militia officers are appointed, forms a barrier against the enterprises of ambition, more insurmountable than any which a simple government of any form can admit of.​

--James Madison​

In 1788, Americans did indeed have the advantage of being armed. But it wasn't because of the Second Amendment, because the Amendment hadn't even be written at the time.

If you read Madison's words carefully, all he said was that subordinate [state] governments form a barrier against the enterprises of ambition [of the federal government.]

The state governments wouldn't have been much of a barrier if Congress could destroy the state militia by neglecting them. That's why the Second Amendment was adopted, so

"that each state respectively should have the power to provide for organizing, arming, and disciplining it's own militia, whenever congress should neglect to provide for the same."
​

 

[legaleagle_45]

The Constitution took the power to organize, arm and discipline the militia away from the states and gave it to Congress. Under the proposed Constitution, Congress could establish a half million man militia or it could neglect to organize any militia at all.

Madison did not believe that and niether did Tucker.... But perhaps the best response was given by John Marshall at the Virginia Ratyfying Convention. Marshall, as you probably know, was perhaps the most influential Chief Justice to ever serve on the United States Supreme Court, and here is what he had to say:

If Congress neglect our militia, we can arm them ourselves. Cannot she put them into the hands of her militia-men? He then concluded by observing, that the power of governing the militia was not vested in the states by implication, because, being possessed of it antecedent to the adoption of the government, and not being divested of it by any grant or restriction in the Constitution, they must necessarily be as fully possessed of it as ever they had been. And it could not be said that the states derived any powers from that system, but retained them, though not acknowledged in any part of it.

Elliot's Debates, Virginia Ratifying Convention, June 14, 1788.

What Marshall was speaking to was the concept of "concurrent powers".

Wanna try again?

 

[legaleagle_45]

In 1788, Americans did indeed have the advantage of being armed. But it wasn't because of the Second Amendment, because the Amendment hadn't even be written at the time.

Correct. The right has its roots in common law dating back to the reign of Alfred the Great. It was expressed in the English Bill of Rights and which was subsequently refined by case law and further expressed in the some of the constitutions of the colonies. The Bill of Rights did not create new rights, but protected preexisting ones.

Wanna try again?

 

[Birddog1911]

The troll is choking and grasping for air...tighten your grip!! Boy, this is entertaining. Legaleagle, if I ever need a 2A attorney, can I retain you??

 

[Phil Lee]

The many faces of M_Jagger

Just found a new one -- he's FredFlash who started the thread "Justice Scalia, the notorious right wing judicial activist..." and the thread "Interpreting Ambiguous Language in the Constitution" on a Police Forum -- they aren't having his nonsense either.

The first thread sells the idea that the Heller majority were 5 activist judges (especially Scalia) that were re-writing law to suit their personal inclinations. It is a classic technique for political (dishonest) debate to accuse your opponents of the very sins your side commits.

His many faces have been noticed on another forum. Norrin Radd has noticed a number of enstanciations for M_Jagger

Mick Jagger, also known as....

Jagger
M Jagger
Jagger with Swa
Jagger Rocks
Oh and I found a new name.....
"Flash for Cash"
lol
How many names does he have?
I wonder what Mick Jagger's agenda really is?
How many hours does he spend a week on this. I can find numerous posts, from numerous forums, just from the last 2 weeks.

Several of these names are different from the three I've identified in my prior postings.

On rules of statute interpretation:

The USSC Heller decision references Dwarris A General Treatise on Statutes (see my 8:02 am posting today) for rules of statute interpretation. Quoting from this standard for English law circa 1835, we see another source denigrating the significance of the preamble in statute interpretation. Specifically, quoting from p. 19

The preamble to a statute usually contains the motives and inducements to the making of it; but it also has been held to be no part of the statute. (k)

In doubtful cases, recourse may be had to the preamble, to discover the inducements the legislature had to the making of the statute; but where the terms of the enacting clause are clear and positive, the preamble cannot be resorted to. Lord Coke considered the rehearsal or preamble, a key to open the understanding of the statute, and it is properly considered(l) a good mean for collecting the intent and showing the mischiefs which the makers of the act intended to remedy. The civilians say, cessante legis proaemio, cessat et ipsa lex, but English lawyers are aware how seldom, at least in the older statutes, the key will unlock the casket; how rarely the preamble is found to state the real occasion of the law, and the full views of the proposer of it. "It is nothing unusual in acts of Parliament," says Lawrence, J., in the case of the King and Marks, "for the enacting part to go beyond the preamble; the remedy often extends beyond the particular act or mischief which first suggested the necessity of the law."

(k) 6 Mod. 62. Wills and Wilkins, 6 Mod. 144
(l) 4 Inst. 330

I suspect all this effort has the purpose of fishing for dupes to repeat his nonsense.

 

[Sebastian the Ibis]

All I did was post some words Madison said. I drew no conclusion from it. I was testing you.

You passed the test. Good job.....

What arrogance !!

Jagger just who exactly are you that makes you believe you can “test” people that obviously know much more about a subject than you?

If you are a law student, or god forbid a professor, trying to write a RTKBA paper based on what you can elicit out of Legal Eagle, Phil Lee and others – I advise you to properly credit them for their ideas if you publish anything.

 

[M_Jagger]

Phil Lee
The USSC Heller decision references Dwarris A General Treatise on Statutes (see my 8:02 am posting today) for rules of statute interpretation. Quoting from this standard for English law circa 1835, we see another source denigrating the significance of the preamble in statute interpretation.

The Heller Court used whatever rule of construction would produce the outcome it wanted.

 

[Phil Lee]

M_Jagger says:

The Heller Court used whatever rule of construction would produce the outcome it wanted.

The Heller Court quoted standard references for rules of interpretation. You lie to imply otherwise.

If you think otherwise, document for us a standard giving a contrary interpretation that is used in the literature and in Court cases and give some of the articles and the Court cases where that standard is cited.

Otherwise, stop wasting your time and the carbon needed to transmit your lies through electricity (or alternatively, go warm some public building with your hot air).

 

[M_Jagger]

...standard references for rules of interpretation.

Huh?

 

[legaleagle_45]

Huh?

LOL, such as Blackstone, Bacon, Vattel, Groitus, et al.

If you assert there was a universal standard governing rules of interpretations which was controlling during the period in which the 2nd Amend was formulated, you could at least mention the source upon which you are relying.

 

[M_Jagger]

In the following excerpt from Heller, Justice Scalia, a notorious right wing judicial activist, set up "United States v. Sprague" and "Gibbons v. Ogden" as the authorities on the rules of constitutional construction.

In interpreting this text, we are guided by the principle that “[t]he Constitution was written to be understood by the voters; its words and phrases were used in their normal and ordinary as distinguished from technical meaning.” United States v. Sprague, 282 U. S. 716, 731 (1931); see also Gibbons v. Ogden, 9 Wheat. 1, 188 (1824). Normal meaning may of course include an idiomatic meaning, but it excludes secret or technical meanings that would not have been known to ordinary citizens in the founding generation.​

Scalia doesn't explain why, of all the rules of construction ever applied by the U. S. Supreme Court to language in the Constitution, he selected, in the case of the Second Amendment, to follow one that says, "the Constitution was written to be understood by the voters; its words and phrases were used in their normal and ordinary as distinguished from technical meaning." In 2005, when Scalia interpreted the First Amendment in the case of McCreary County v. ACLU, he didn't apply the same rule. He didn't even use the same methodology.

Instead Scalia, true to the activist principle that the results desired dictate the methodology, completely ignored the words of the First Amendment as well as the rules of construction and deduced the meaning of the Amendment from certain "actions of our First President and Congress and the Marshall Court."

When Scalia interprets the Constitution, he uses whatever method of interpretation will produce the results he wants. In the case of the First Amendment he used certain "actions of our First President and Congress and the Marshall Court", which he cherry picked for no reason except that they squared with his personal view that government should have advisory authority over religion.

Three years later, when interpreting the Second Amendment he switches methodology and announces that he will ascertain the meaning of the words and phrases according to their normal and ordinary meaning.

Why didn't Scalia use the same method of interpretation in both cases, if he was being fair and objective? The answer is simple. Scalia is a judicial activist.

 

[Phil Lee]

M_Jagger comments

In 2005, when Scalia interpreted the First Amendment in the case of McCreary County v. ACLU, he didn't apply the same rule. He didn't even use the same methodology.

to support his claim that Justice Scalia is "a notorious right wing judicial activist."

The loaded words give away the propaganda nature of the assertion. Scalia was in the minority dissent on McCreary County v. ACLU. It would be nice to think that M_Jagger had even read Scalia's dissent in McCreary in which he argued posting the 10 Commandments on the wall of a school didn't violate the amendment against the establishment of religion.

In District of Columbia v. Heller an alternative novel meaning for the Second Amendment was offered by representatives of government defending against a private citizen's claim to a right in Heller. No prior case establishing precedent in this novel meaning had been previously decided. That led to the need to analyze the meaning of the statute -- the Second Amendment; and the need for use of rules of legal analysis.

M_Jagger tries to make a controversy over Scalia's failure to use the same rules for legal analysis in McCreary County as used in Heller. But M_Jagger failed to mention that the majority opinion didn't use tools of legal analysis either in McCreary County.

It is easy to understand why the majority didn't find it necessary to use rules of legal analysis since there had been many prior decisions in Federal Courts on the Establishment of Religion issue raised in McCreary County. The differences in approaches in the two cases are easy to understand and not at all controversial given the number of prior decisions. And Scalia did what the majority did in his opinion, he argued points of law and precedent.

By contrast, Stevens' dissent in Heller doesn't justify his contrary conclusion:

The Court today tries to denigrate the importance of
this clause of the Amendment by beginning its analysis
with the Amendment’s operative provision and returning
to the preamble merely "to ensure that our reading of the
operative clause is consistent with the announced purpose."
Ante, at 5. That is not how this Court ordinarily
reads such texts, and it is not how the preamble would
have been viewed at the time the Amendment was
adopted.

Stevens' statement (bolded) about the Court's ordinary way to read texts is given no support from rules of legal interpretation. If I thought M_Jagger was providing serious comment, I'd ask why he hasn't tackled Stevens' dissent over the failure.

By contrast, Scalia's interpretation is supported by legal rules given in standard references for English law in common use by lawyers before and after the U.S. Constitution was drafted and references were given by Scalia to references for interpretation used in American law in the 1830's showing a similar interpretations.

Now, M_Jagger's seems to think that if he stirs a controversy, he can make a legal issue into a political issue. Perhaps, it can be done -- but I think he needs a forum of ignorant people that can't see through his deceptions.

M_Jagger is chronically mistaken and he belongs in company with others of a similar inclination.

 

[legaleagle_45]

I whole heartedly endorse what Phil had to say about our troll's analysis of Scalia... But perhaps I can add some coloration to the situation. In McCreary County v. ACLU the issue presenting the court was not the meaning of the phrase Congress shall make no law respecting an establishment of religion. No one was arguing, for example the word religion, actually means "national church" or that establishment really meant "to build or create" so that the phrase really means that Congress should not get involved in the archetectual planning for the proposed national church, because that should be done by the experts who know how to build churches.

Instead, the issue was the scope of the prohibition, not the meaning thereof, and Scalia aptly invoked evidence of how the scope of the rule was applied by the founding generation. I fully expect that Scalia will use a similar process when future cases reach the Supreme Court concerning the scope of individual right to keep and bear arms.

Where the true hypocrisy lies is with that notorious left wing judicial activist, Ruth Bader Ginsburg, who in Muscarello v. U.S. stated:

Surely a most familiar meaning is, as the Constitution's Second Amendment ("keep and bear Arms") and Black's Law Dictionary indicate, "wear, bear, or carry...upon the person or in the clothing or in a pocket, for the purpose...of being armed and ready for offensive or defense action in case of a conflict with another person."

Id., 524 U.S. 125, 150 (1998) (Ginsburg, J., dissenting).

Yet, in Heller, she decided just the opposite when she joined with the dissent in Heller.

It seems that the notorious left wing judicial activist, Ruth Bader Ginsburg can have the same exact word in, in the same exact sentence and in the same exact law mean 2 completely different things, depending upon the political dynamics of the case in front of her.

 

[M_Jagger]

Phil Lee
In District of Columbia v. Heller an alternative novel meaning for the Second Amendment was offered by representatives of government defending against a private citizen's claim to a right in Heller.

an alternative novel meaning?

 

[M_Jagger]

Phil Lee
No prior case establishing precedent in this novel meaning had been previously decided. That led to the need to analyze the meaning of the statute -- the Second Amendment; and the need for use of rules of legal analysis.

Rules of legal analysis? What are those?

 

[M_Jagger]

Phil Lee
there had been many prior decisions in Federal Courts on the Establishment of Religion issue raised in McCreary County.

In McCreary County Scalia didn't rely on prior decisions to ascertain that the First Amendment means the government can favor religion over non religion. He ascertained that meaning from what he refereed to as "the history and traditions that reflect our society's constant understanding of those words." He totally ignored the words of the Constitution, the rule of construction he cited three years later inHeller and the rules of legal interpretation the founding fathers subscribed to at the time the Second Amendment was made.

Scalia is an activist who uses whatever method of interpretation will produce the out come he wants.

 

[buzz_knox]

M_Jagger quotes selectively from the Federalist #46 by James Madison (which he doesn't reference -- perhaps to make check his source more difficult). Typical of his approach, the selective quote is intended to mislead about Madison's point. A more complete quote from that document gives the proper view:

Since Jagger is styling himself as lawyer, he needs to understand one simple thing: the selective quotation that Phil Lee ably pointed out would have killed his argument in front of a court. He took a quote so far out of context as to constitute an intentional misrepresentation. That would have eliminated his credibility and any good will. A court would have to have worked on its own to find any merit for his client's position, as it wouldn't trust a thing that came from him again.

I believe the board likely has a similar feeling at this time.

 

[legaleagle_45]

Since Jagger is styling himself as lawyer, he needs to understand one simple thing: the selective quotation that Phil Lee ably pointed out would have killed his argument in front of a court. He took a quote so far out of context as to constitute an intentional misrepresentation. That would have eliminated his credibility and any good will. A court would have to have worked on its own to find any merit for his client's position, as it wouldn't trust a thing that came from him again.

In Oregon, not only would he lose all credibility with the court, he would also be subject to losing his license to practice law.

 

[legaleagle_45]

an alternative novel meaning?

nov·el

NOUN: A fictional prose narrative

Example:

Michael Bellesiles, Arming America, 2000.