heller question

[cbrgator]

ConstitutionCowboy,
Are you a lawyer? Well, better question, have you ever been to law school? I would think based on your response the answer is no. Yes, the definitions both cruel and unusual are clear, but how that applies to punishments is not so clear. Is the execution of a prisoner cruel? Are some methods cruel and others not? And the word unusual implies a subjective standard of what is common at that time period which means the practices that amendment protects change over time. Also, FYI.... the 4A amendment is one of the most vague clauses in all of constitutional law (this not simply my opinion but widely recognized). The Due Process clause is probably the only clause more vague than the 4A.

 

[ConstitutionCowboy]

Is the execution of a prisoner cruel?

That only depends upon how you execute said prisoner.

Are some methods cruel and others not?

Most certainly. Weigh each method you choose to the definitions attendant to cruel.

And the word unusual implies a subjective standard of what is common at that time period which means the practices that amendment protects change over time.

So? What does that matter? A punishment needs to be both cruel and unusual to be unconstitutional. A new very merciful method of execution may be invented some day and it would be "unusual" when first employed, but not cruel, and therefore, constitutional.

Also, FYI.... the 4A amendment is one of the most vague clauses in all of constitutional law (this not simply my opinion but widely recognized). The Due Process clause is probably the only clause more vague than the 4A.

You make these claims, but offer no explanation as to why you believe these two clauses are vague. Please elaborate.

Woody

 

[RobertCohn]

I thought the Heller case came about after an appeals court refused to remand a lower court's previous ruling that DC had no right to restrict individual, private ownership and possession of firearms in DC?

The entry of the Supreme Court ruling came when an appeals court (with judges elected by Bush) refused the remand the decision (on appeal from Levy et. al.) back to a DC court. Fortunately for all of us here, the appeal was not remanded and the Supreme Court then agreed to hear the case.

The question was whether individuals in DC have the right of possession and ownership for private use. I see nowhere that all justices agreed to the 2nd amendment is an individual right. In fact, the dissenters argued the meaning of collective vs. individual as the basis of their dissent and their dissent seemed to hinge on the difference in meaning of those words.

It's funny and hypocritical that one of Steven's dissents implied that if the framers intended the reading to mean individual private use then they would have gone out of their way to expressly spell that out. How hypocritical...the framers never "expressly" spelled out the abolition of slavery; yet an amendment was written 100 years later to address it. There are many things they didn't expressly spell out -- some intentionally, some non-intentional. Since the framers didn't expressly outline the abolition of slavery, I guess that means the U.S. should have continued the practice. These liberal judges like all radical left arguments only use irrational arguments when it serves their purpose, ignoring all facts and history. The Constitution is a flexible document...which is good and bad. Although obviously we had to correct systemic and moral mistakes (13 & 19th amendments) that were left out then corrected in due time, the modern liberal seams of opportunity come when they continue to identify "things that were left out" or things that aren't expressly spelled out.

Personally I think the meaning of a firearm in the 18th century was a natural extension of the individual in nature at that time, and that's exactly the way they meant it -- as an individual's right. They meant it as a philosophical transcendant right of all people, which is the meaning and tone of the entire document. That one word -- "militia" -- gives the dissenters the door they need to attack the meaning of history, philosophy, and original common sense intent.

 

[gc70]

If your punishment is cruel and unusual, it's unconstitutional. Notice that it must be both cruel and unusual.

Lopping off ears was a common and accepted punishment when the Constitution was written. Is lopping off ears a cruel and unusual punishment today?

 

[ConstitutionCowboy]

Lopping off ears was a common and accepted punishment when the Constitution was written. Is lopping off ears a cruel and unusual punishment today?

First, you'll have to show me where, when, and how common lopping off ears was when the Constitution was written. In other words, back up your claim. Regardless, I'd say it would be unconstitutional today.

Woody

 

[gc70]

First, you'll have to show me where, when, and how common lopping off ears was when the Constitution was written. In other words, back up your claim.

You might have read post #20 more fully before disagreeing with it.

Colonial Crimes and Punishments

On April 23, 1771, the Essex Gazette of Newport, Rhode Island, reported that "William Carlisle was convicted of passing Counterfeit Dollars, and sentenced to stand One Hour in the Pillory on Little-Rest Hill . . . to have both ears cropped, to be branded on both cheeks with the Letter R (for Rogue), and to pay a fine of One Hundred Dollars and Cost of Prosecution."

Branding and maiming may shock us, but, Friedman says, for our colonist ancestors, "the sight of a man lopped of his ears, or slit of his nostrils, or with a seared brand or great gash in his forehead or cheek could not affect the stout stomachs that cheerfully and eagerly gathered around the bloody whipping-post and the gallows."

 

[LaBulldog]

Mickey Edwards, Republican from Oklahoma and one the founders of the Heritage Foundation, talked about the Bill of Rights and Robert Bork. Robert Bork was nominated to the United States Supreme Court in 1987 by President Ronald Reagan.

According to Mickey Edwards, Bork believed that people possessed only those rights specifically expressed in the Constitution. Edwards stated that rights were God given and that the Bill of Rights was made part of the Constitution to protect a few of the important ones.

Edwards points out that we are born with out rights. Patrick Henry opposed the Bill of Rights because he believed that at some point in time some "idiot" would come along and say that the only rights the American people have are those spelled out in the Constitution. Edwards said that Bork was that "idiot."

 

[gretske]

I see nowhere that all justices agreed to the 2nd amendment is an individual right.

Of course "all" the justices did not agree that the 2nd amendment is an individual right. ALL the justices rarely agree on anything. What matters is that the MAJORITY opinion was that the RKBA is a individual right. Read the opinion, it is very clear.

Also, you are right that this decision only applies to DC, but that is the way SCOTUS decisions usually work. Next, it has to be incorporated, under the 14th amendment, to apply to all US citizens.

 

[gbw]

I thought the Heller case came about after an appeals court refused to remand a lower court's previous ruling that DC had no right to restrict individual, private ownership and possession of firearms in DC?

No. The original trial court agreed with DC, as was expected. The DC Fed. Circuit Court of Appeals was next, and actually found for the invididual right in a very strong opinion. Very unusual. Beautifully written. After a good bit of hesitation DC appealed it to the SC. The Heller lawyers then cross appealed because they disagreed with the way DC framed the 'question at issue'. Actually the Court finally ended up ruling on their own version of the 'question'. Other Heller appellants also appealed separately because of the finding of the appeals court that they lacked standing due to lack of Article 3 injury.

The entry of the Supreme Court ruling came when an appeals court (with judges elected by Bush) refused the remand the decision (on appeal from Levy et. al.) back to a DC court. Fortunately for all of us here, the appeal was not remanded and the Supreme Court then agreed to hear the case.

Not quite. Levy is a rich former hedge fund manager who does law as a hobby. He funded the case and his name may have appeared as a backup lawyer, I can't recall. But not much else. I read he does not own guns nor care to. Anyway, after the fed. appeals court decision against them, DC asked for a re-hearing before the full federal appeals court. Originally the Fed. appeal by Heller et al. was heard and decided by a 3-judge panel which is normal. If you don't like the result you can ask for 'en banc' ("full court") re-hearing, I think it's called, but that's kind of a long shot. It was denied in this case. Then DC thought it over and appealed to the SC.

The question was whether individuals in DC have the right of possession and ownership for private use. I see nowhere that all justices agreed to the 2nd amendment is an individual right. In fact, the dissenters argued the meaning of collective vs. individual as the basis of their dissent and their dissent seemed to hinge on the difference in meaning of those words.

Pretty close. One sort of said that well yes, it's an individual right, however you cannot exercise it individually, if you can follow such goofy logic. Only 2 Bush SC appointees (Roberts and Alito) were involved, I think. Scalia, Thomas, and Kennedy pre-dated Bush.

It's funny and hypocritical that one of Steven's dissents implied that if the framers intended the reading to mean individual private use then they would have gone out of their way to expressly spell that out. How hypocritical...the framers never "expressly" spelled out the abolition of slavery; yet an amendment was written 100 years later to address it. There are many things they didn't expressly spell out -- some intentionally, some non-intentional. Since the framers didn't expressly outline the abolition of slavery, I guess that means the U.S. should have continued the practice. These liberal judges like all radical left arguments only use irrational arguments when it serves their purpose, ignoring all facts and history. The Constitution is a flexible document...which is good and bad. Although obviously we had to correct systemic and moral mistakes (13 & 19th amendments) that were left out then corrected in due time, the modern liberal seams of opportunity come when they continue to identify "things that were left out" or things that aren't expressly spelled out.

Personally I think the meaning of a firearm in the 18th century was a natural extension of the individual in nature at that time, and that's exactly the way they meant it -- as an individual's right. They meant it as a philosophical transcendant right of all people, which is the meaning and tone of the entire document. That one word -- "militia" -- gives the dissenters the door they need to attack the meaning of history, philosophy, and original common sense intent.

I think they DID go out of their way to frame it expressly. To me it means the individuals are the final 'regulators' of the militia', if necessary, or they can alternatively form a militia if they choose. Either way, they have an individual, protected right.

Be careful. The amendments are often added and meant to modify the original text and meaning. The framers did not consider slavery, for example, to be unconstitutional. BTW, I'm a little surprised the antis haven't tried to find a way to use the the 'inalienable right to life...' argument in the preamble, which might be found to trump an amendment, especially given the rash of slaughters under way now.

 

[ConstitutionCowboy]

gc70

That article deals with colonial times. We're discussing goings-on in constitutional times.

Woody

 

[cbrgator]

gbw, good writeup, very clear. One thing though...

I'm a little surprised the antis haven't tried to find a way to use the the 'inalienable right to life...' argument in the preamble, which might be found to trump an amendment

Where does the constitution say we have an inalienable right to life? That comes from the Declaration of Independence, not a legal document. That's probably why nobody has made that argument.

I'm not intending to be rude or anything, just pointing out an inaccuracy.

 

[gbw]

Not rude at all, and you're absolutely correct. For some reason I was thinking it was in the preamble. That's what happens when I rely on memory anymore instead of checking. I really don't know if the DOI is considered a legal document or not - I'd say yes, since it actually 'founds' the nation, but I'm no constitutional (or any other kind) lawyer or expert. Anyhow, you may have found one good reason that the argument hasn't been used, and prehaps there are others. On the other hand, from my reading the other side could not care less for accuracy or original intent or freedom - only in winning their argument.

 

[cbrgator]

On the other hand, from my reading the other side could not care less for accuracy or original intent or freedom - only in winning their argument.

Amen.

The DOI is not a legal document. It can be referred to for intent of the framers or other persuasive arguments, but is not binding. It merely purports our ideals, it doesn't legislate them.

 

[ConstitutionCowboy]

The DOI is not a legal document. It can be referred to for intent of the framers or other persuasive arguments, but is not binding. It is merely purports our ideals, it doesn't legislate them.

Not many people realize this.

Woody

 

[Phatty]

After a good bit of hesitation DC appealed it to the SC.

The anti-gun lobby vigorously urged DC not to appeal the decision. Most of the anti-gun crowd recognized that the factual scenario (total ban on firearm ownership within a person's home) was the worst possible case to put in front of the Supreme Court to define the scope of the 2nd Amendment. Also, the anti-gun crowd recognized that the composition of the Supreme Court was not favorable to their cause, and most were willing to maintain the status quo and patiently await a more favorable court before pressing the issue.

Well, as we all know, DC foolishly (for them) decided to appeal and the rest is history.

 

[gc70]

That article deals with colonial times. We're discussing goings-on in constitutional times.

Woody

1776 - 1771 = 5 years

Do you have information about a radical change in criminal punishments during that 5-year period? Or would you rather avoid the question of the ambiguous (or at least conditional) language of the 8th Amendment?

 

[ConstitutionCowboy]

Do you have information about a radical change in criminal punishments during that 5-year period?

Umm... No. But it is you who should come up with it since you seem to find some relevance to those pre-constitutional times. Other than lacking data for that 5 year period or the next 15 years up to the ratification of the Eigth Amendment, what could be said other than the Eight Amendment put a stop to that crap. There is your "radical change". But then again, this really has nothing to do with the "ambiguous" or "conditional" language you see in the Eigth Amendment.

Woody

 

[gc70]

Here you go, Woody. Flogging (whipping at the post) was a popular colonial punishment that persisted all the way to 1952 (dispensing with quibbling about colonial/Constitutional timing).

Was flogging cruel? Since it was bloody and caused pain, it fits the 1791 definition of cruel.

Was flogging unusual? In 1791, it was common, but in 2009, it is beyond rare - it is nonexistant.

And there is your quandry - flogging was not cruel and unusual in 1791, but is in 2009. That change is the result of applying the words of the 8th Amendment (even using 1791 definitions) within the context of existing (and changing) social standards. Even worse from your perspective, it means that the Constitution is not immutable and must be interpreted to understand its meaning.

Back to the 2nd Amendment, the context within it is applied has changed since 1791 and Heller reflects that change.

 

[ConstitutionCowboy]

gc70

If anything, any "change" Heller reflects is a reversion back toward the original context and intent of the Second Amendment.

More tonight.

Woody

EDIT: Sorry, Company came over. It'll be tomorrow.

 

[ConstitutionCowboy]

And there is your quandry - flogging was not cruel and unusual in 1791, but is in 2009. That change is the result of applying the words of the 8th Amendment (even using 1791 definitions) within the context of existing (and changing) social standards. Even worse from your perspective, it means that the Constitution is not immutable and must be interpreted to understand its meaning.

There is nothing to indicate that the Eighth Amendment meant one thing in 1791 and something else nowadays. As mores, morals, and public sentiments change, it still doesn't alter the meaning and intent of the Amendment. Same as the Second Amendment. When a new firearm design comes along, it doesn't mean the Second Amendment means something else now. Same with the First Amendment. When radio, TV and the Internet came along, it didn't change the meaning and intent of that amendment either.

As for the Constitution not being immutable, it can only be changed through the amendment process in Article V, not by a "reinterpretation".

In all these cases, the Constitution isn't interpreted to see if it comports with some new law, method of punishment, firearm, means of mass communication, and the like. Those new things are tested to see if THEY fit within the framework of the Constitution. Is it a firearm? If yes, it's an arm, and therefore, our keeping and bearing of that firearm can not be infringed by government. Is it speech? If yes, government may not abridge it. Do you think every time someone makes a speech that the Constitution(the First Amendment) must be interpreted to see if the speech is protected, and then reinterpreted for the next speech to come along?

Back to the 2nd Amendment, the context within it is applied has changed since 1791 and Heller reflects that change.

I can't say any more about this statement of yours until you correct it grammatically.

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

 

[gc70]

There is nothing to indicate that the Eighth Amendment meant one thing in 1791 and something else nowadays.

I suppose you don't want to address the example of flogging - not cruel and unusual in 1791, but certainly so today - so you ignore it. Nevertheless, the verbiage in the Consititution is flexible enough in many areas to accommodate changes in meaning. The only way to deal with that flexibility is through interpretation (you get the idea when you say "Those new things are tested to see if THEY fit within the framework of the Constitution."), whether by judges, average citizens, or otherwise. BTW, Woody, your view of the Constitution is no more than an interpretation that other reasonable people might agree or disagree with.

Back to the 2nd Amendment, the context within which it is applied has changed since 1791 and Heller reflects that change.

I can't say any more about this statement of yours until you correct it grammatically.

Fixed it for you. (Hint: the change has to do with the militia clause.)

 

[cbrgator]

I stopped bothering after he insisted on how not vague the 4th amendment is. After a claim like that, it's just not worth it. I spent over half a semester of law school learning about the 4A and what a ****storm it is in Constitutional Criminal Procedure. I guess the American Bar Association must be missing something if they are requiring that in law school curriculum when it's so cut and dry.

Woody, you can't be a constitutional expert unless you know the interpretive case law surrounding the Constitution that has been decided by the SCOTUS. I don't mean that to be offensive, but really man, you have to broaden your reading beyond the four corners of the document to really understand it. You are blurring facts with opinion without even realizing it.

 

[legaleagle_45]

Regardless, I'd say it would be unconstitutional today.

Agreed. Although I am not a fan of the "living constitution" and do not believe international norms should normally be a factor in deciding constitutional issues. the prohibition on cruel and unusual punishments is an exception. The framers intended that the prohibition conform to changing contemporary values of society... it was not intended to be static. What was not considered "cruel and unusual" in 1789 could indeed be considered "cruel and unusual" in 2009.... and that was the stated intent of the framers when the adopted that prohibition.

 

[ConstitutionCowboy]

I suppose you don't want to address the example of flogging - not cruel and unusual in 1791, but certainly so today - so you ignore it.

I didn't ignore it. I stated it didn't change the meaning and intent of the Eighth Amendment. It can't. I also stated that as mores, morals and public sentiments change those things don't change the meaning and intent of the amendment. If something is considered cruel and unusual today that was not considered as such years ago doesn't mean the Constitution changed. People changed, mores, morals and public sentiment changed. If the amendment listed what was considered cruel and unusual, then you'd have a valid point.

My view of the Constitution is literal, same as it was when it was written. The Founding Fathers decided how it is to be and succinctly penned it. Only through interpolation, obfuscation, malapropism, or by giving one's own conception can there be a variant interpretation.

Fixed it for you.(Hint: the change has to do with the militia clause.)

I've read Heller from cover to cover. You'll have to point out this "change" you see, for I have seen no such change.

I stopped bothering after he insisted on how not vague the 4th amendment is. After a claim like that, it's just not worth it. I spent over half a semester of law school learning about the 4A and what a ****storm it is in Constitutional Criminal Procedure. I guess the American Bar Association must be missing something if they are requiring that in law school curriculum when it's so cut and dry.

Put your half a semester where your mouth is and give an example where you consider the Fourth Amendment to be so vague. You make the claim, you can back it up, can't you?

Woody, you can't be a constitutional expert unless you know the interpretive case law surrounding the Constitution that has been decided by the SCOTUS. I don't mean that to be offensive, but really man, you have to broaden your reading beyond the four corners of the document to really understand it. You are blurring facts with opinion without even realizing it.

No offense taken.

First, one must be willing to accept that whatever the Court has come up with - "...interpretive case law surrounding the Constitution..." - is unbiased, non-political, and strictly within those four corners of that document. Something held as precedent by stare decisis can change. The Constitution is not supposed to change other than by the amendment process in Article V. Therefore, all that case law is essentially worthless and in far too many cases IS unconstitutional. To lean on precedent by stare decisis is to deny the next person in line a full and complete hearing. No two cases are ever identical. I find relying on precedent to be blatant invidiousness.

Stare decisis is not required by the Constitution, either.

Mechanically following these teachings you have been subjected to can be your(and our) downfall. Examine all you have been "taught", question everything, weigh it all, and make up your own mind upon these things. It is my belief that much of what ails our society is perpetuated and preserved by the unquestioned deviations from the Constitution, common sense, good will, and classical and scientific education.

... Nevertheless, the verbiage in the Constitution is flexible enough in many areas to accommodate changes in meaning. ...

This is nothing but laziness - the unwillingness to amend the Constitution to read as you wish it to read - or fear - the fear that your attempts to amend the Constitution might fail, therefore, you buy into and espouse the concept of the living, fluid, ever-changing-with-the-times Constitution.

... Although I am not a fan of the "living constitution" and do not believe international norms should normally be a factor in deciding constitutional issues. the prohibition on cruel and unusual punishments is an exception. The framers intended that the prohibition conform to changing contemporary values of society... it was not intended to be static. What was not considered "cruel and unusual" in 1789 could indeed be considered "cruel and unusual" in 2009.... and that was the stated intent of the framers when the adopted that prohibition.

Whether the Founding Fathers considered possible changes in contemporary values or not is immaterial. The meaning of the Amendment is no more fluid nor any less static today than as it was back then. As I stated before, had there been forbidden punishments or proscribed punishments listed in the amendment, you might have a valid point if those forbidden punishments or proscribed prohibitions were somehow allowed to change by the amendment. 'Tis not the case.

Woody

"The basis of our political systems is the right of the people to make and to alter their constitutions of government. But the Constitution which at any time exists, 'till changed by an explicit and authentic act of the whole of the People, is sacredly obligatory upon all."

George Washington, Farewell Address, September 19, 1796.

 

[cbrgator]

No offense taken.

First, one must be willing to accept that whatever the Court has come up with - "...interpretive case law surrounding the Constitution..." - is unbiased, non-political, and strictly within those four corners of that document. Something held as precedent by stare decisis can change. The Constitution is not supposed to change other than by the amendment process in Article V. Therefore, all that case law is essentially worthless and in far too many cases IS unconstitutional. To lean on precedent by stare decisis is to deny the next person in line a full and complete hearing. No two cases are ever identical. I find relying on precedent to be blatant invidiousness.

Stare decisis is not required by the Constitution, either.

Mechanically following these teachings you have been subjected to can be your(and our) downfall. Examine all you have been "taught", question everything, weigh it all, and make up your own mind upon these things. It is my belief that much of what ails our society is perpetuated and preserved by the unquestioned deviations from the Constitution, common sense, good will, and classical and scientific education

Woody,
You are absolutely right and I will not disagree with you. BUT, in the mean time, SCOTUS decisions ARE binding and must be considered. Additionally, even if you find some decisions to be unconstitutional or biased, etc., the cases still provide a lot of indight into the meanings of the words and interesting ways to consider them.