Heller: "written in that sitting"?

[tube_ee]

From The Constitution of the United States

Article I, Section 9, Paragraph 2:

The privilege of the writ of habeas corpus shall not be suspended, unless when in cases of rebellion or invasion the public safety may require it.

So, habeas corpus is a privilege, not a right, and since its only mention is in Article I, the power to suspend it, only under the two conditions mentioned in the text, is exclusively the power of the Legislature. The Executive cannot so order under any circumstances, and the Legislature my only do so under very limited circumstances, which do not apply here.

At least, that's how I read it.

--Shannon

 

[legaleagle_45]

So, habeas corpus is a privilege,

Careful Shannon, often times in legalese the term "privelege" is used to denote that affirmative action is required in order to assert same. For instance, self-defense at common law was an affirmative defense to a criminal homicide and you will see it termed as "the privelege of self defense" in that context because it is incumbant upon the defendant to raise the issue and prove the elements thereof. However, it is clear that the common law regarded self defense as a true right rather than a privlege.

Habeas corpus is known as the "Great Writ" because it is the primary procedural mechanism employed to protect the inalienable rights from infringment.

 

[Phil Lee]

Joe Cool asks:

I understand what you are saying here Phil, but answer this: How many people on September 12th, 2001 honestly believed that there would not be more attacks on the American people? The current administration's Job #1 was to keep us safe and so far in 7 years the terrorists have attacked Spain, the UK, etc, but not one more attack on US soil.

Remember, Bush the First was basking in the glow of a great (and practically costless) victory in the Persian Gulf to free Kuwait when he was handed his walking papers in 1992. And, at that time, the Republicans were claiming that the recession blamed on him was shallow and the economy was recovering.

The whole notion of "keeping us safe" as an election issue strikes me as unsound. With no barbarians at the gate, it is hard to convince people to give up their bread and circuses (especially the bread) for military adventures.

The Republicans will likely lose in a landslide if our enemies don't do us some favors and if the Republicans don't overcome their current stupidity. There are some issues they could hammer the Democrats over and force the Democrats into unpopular votes in Congress, but times a wasting and safety isn't going to do it.

 

[H088]

Habeas Corpus is extremely important, just as the 2nd amendment is. The goverment under no circumstances should be able to detain you without charges or without trial.

 

[tube_ee]

I was taking the use

of "privilege" as opposed to "right" in the sense that a privilege is something that the government may take away by statute, under certain circumstances, while a right may not be taken away by law. I was unaware of the distinctions you describe.

So the distinction is actually this?

(a) Right - Something that applies whether you assert it or not

(b) Privilege - Something that you get only if you ask for it

So, by this construction, self defense is legally a privilege, because even if you take a life in self-defense, and your actions are 100% in compliance with the definitions in the jurisdiction where the event takes place, if you do not submit a claim of self-defense, you will be legitimately convicted of homicide, and you will not be able to appeal that conviction, because you didn't claim self-defense at trial.

Whereas, if you are arrested, tried, and convicted of a crime based on evidence obtained by search without a warrant, you could appeal your conviction on 4th Amendment grounds, even if this was not part of your defense at trial.

Do I have that right?

And which sense of this distinction is at play in the case of suspension of habeas corpus?

--Shannon

 

[legaleagle_45]

(a) Right - Something that applies whether you assert it or not

(b) Privilege - Something that you get only if you ask for it

In some settings, and in some contexts, yes. But in other settings and in other contexts, no. A word may mean different things depending upon context. Clearly the previous sentence is using the word "mean" to pertain to a definition, rather than to be cruel or heartless. The same distinction applies here... different meanings of the same word depending upon context.

"Privlege" may pertain to permission which may be withdrawn or it may refer to the procedural method by which it is employed.

So, by this construction, self defense is legally a privilege

Substantively it is a right, procedurally it is a privilege. The right to a trial by jury is both a substantive right and a procedural right because a criminal defendant need do nothing affirmatively to ensure that he is tried by a jury.

In the case of habeas corpus, I view it as a substantive right which must be affirmatively asserted, thus the useage of the term "privelege" of habeas corpus in the Constitution, which may not be suspended except under certain specified conditions. The fact that there are certain specified exceptions to the right, does not diminish the nature of the substantive right, just as the 3rd Amend is a substantive right which has similar exceptions built into it.

 

[.41Dave]

Giving habeas rights to foreign enemy combatants is still a mystery to me though...

Maybe because letting the executive lock people away indefinitely just on their say-so that the disappeared person is a bad guy is incompatible with Liberty and Freedom and Justice and all those other good things America is supposed to stand for. Do you really want to trust the FedGov with the power to disappear people without having to prove that they are in fact guilty of something? Remember what Benjamin Franklin said about people willing to give up essential liberty for temporary safety.

 

[wolf13]

I don't understand why people are so upset with the habeas case. Nobody, no matter what, should be detained without being charged with anything. Its just wrong on many levels, and what is to keep them from doing it with more people? What did these people do that are locked up? Innocent until proven guilty is something this country loves to talk about. Prove that they DID something illegal, and lock them up. But if you can't, they are free to go.

 

[publius]

2. The Brady Bunch refers to him as "Machine Gun Sammy" because of his 1996 appellate court decision that the federal ban on machine gun possession was unconstitutional.

That's not quite accurate. It was a commerce clause case, not a second amendment case.

US v Rybar

Alito, dissenting, wrote this:

In other words, the majority argues in effect
that the private, purely intrastate possession of machine guns
has a substantial effect on the interstate machine gun market.

This theory, if accepted, would go far toward converting
Congress's authority to regulate interstate commerce into "a
plenary police power."
...
Is possession of a machine gun inherently more "economic" or more "commercial" than possession of other firearms?

It was a good question back then, but has been decided now. (Link is to a pdf of the opinion in Stewart, revised in light of Raich.)

 

[divemedic]

privileges and immunities
n. the fundamental rights that people enjoy in free governments, protected by the U.S. Constitution in Article IV: "The citizens of each state shall be entitled to all privileges and immunities in the several States," and specifically to be protected against state action by the Constitution's 14th Amendment (1868): "No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States." The definition of "privileges and immunities" was first spelled out by Supreme Court Justice Bushrod Washington in 1823: "protection by the government, with the right to acquire and possess property of every kind, and to pursue and obtain happiness and safety, subject, nevertheless, to such restraints as the government may prescribe for the general good of the whole." However, the exact nature of privileges and immunities which the state governments could limit has long been in dispute, with the U.S. Supreme Court gradually tipping toward protecting the individual rights of citizens against state statutes that might impinge on constitutional rights.

 

[mblat]

LOL! There ain't no such thing as a ruling decisive enough to accomplish THAT, when he'll be nominating 'Justices' who simply don't care what the Constitution or precedent says. Obama gets 4 'Justices', with a Democratic Senate to confirm them, and it's game over as far as the Court is concerned.

That is not totally true. Point is that he will be replacing "liberal" judges mostly. The only "conservative" judge that approach "replacement" age is Scalia, and he didn't show any indication that he will be retiring soon.

So we CAN survive president Obama..... even if barely.

 

[Big45]

bump for heller thread, please merge

 

[awkx]

I think we're better off if it's a 5-4, or at most 6-3 decision. Only way they're going to reach 7-2 or better is to give up too much ground to the anti-gunners on the Court, make it a decision that rules out D.C.'s insanely harsh gun control, but allows anything short of it.

We don't want to buy those extra couple of votes at the price of a "rational basis" test anything short of a D.C. style complete ban would pass.

Have to disagree. We are not going to get everything we want from one decision anyway. ... The rest of the stuff can come later, but this individual interpretation needs to be cemented into America jurisprudence and American public mind.

I'll take narrow 7-2 over very broad 5-4.

We might actually be able to have our cake and eat it too. E.g., Justice Scalia writes the majority opinion, in which 4 other Justices join in whole, and in which 2 other Justices join only in part.

 

[ctdonath]

"Machine Gun Sammy"

Don't get too enthused. As I recall, his imputedly pro-MG comments were purely a matter of interstate commerce, amounting to "you can't use the 'commerce clause' to regulate X into oblivion when Y is practically indistinguishable and not so strictly regulated" and implied that he'd be OK with eliminating MGs thru other means. MGs were the subject of his comments by coincidence, not intent. As someone else noted, Raich pretty much evaporated his point.