New Executive Actions?

[AKElroy]

When things don't go the way some folks want, their first response tends to be that the system is broken. But the system doesn't guarantee any particular results.

I had a post deleted, and I agree it was off topic. I will try to keep this one on track. The system DOES guarantee a particular result. I am guaranteed a right to keep and bear arms, and yet there are many locations where that guarantee has failed, including the one in which you reside. It is certainly the case that a plurality in your neck of the woods supports these restrictions, but they are nonetheless evidence of a flawed system. There is fine line between believing in a pluralistic society eventually finding the right path, vs. allowing our God given rights to be put to an open vote.

Some things are not up to the majority. Thank God.

 

[Frank Ettin]

...The system DOES guarantee a particular result. I am guaranteed a right to keep and bear arms,...There is fine fine line between believing in a pluralistic society eventually finding the right path, vs. allowing our God given rights to be put to an open vote...

The Founding Fathers set up our system --

1. The Constitution of the United States of America. And from the Constitution, we can infer that they intended us to have, among other things:
   
   
   • A system of checks and balances achieved through a separation of powers among the Congress (legislative), the President (executive) and the Courts (judicial);
     
     
   • Of these three branches of government, the legislative was most directly subject to the influence of the body politic, and the judicial was the least subject to the direct influence of the body politic;
     
     
   • Judicial power vested in a Supreme Court and such inferior courts as Congress might establish, and this judicial power would extend to all cases arising under, among other things, the Constitution and the laws of the United States;
     
     
   • A Constitution that could be changed, albeit with difficulty.

The system does allow for change, so you are free to try to generate sufficient support to put into place an alternate system which might suit you better.

Throughout our history there have been people who have complained that the actions of the federal government were inimical to the founding principles of our Nation and inconsistent with the proper scope of government. Throughout our history there have been people who have complained that the actions of state governments were inimical to the founding principles of our Nation and inconsistent with the proper scope of government. That sort of friction will be common to any organized society. Our Founders left us with a particular framework and process (a federal system, checks and balances and separation of powers) for managing that friction.

Often those who tend to be the most dissatisfied with the way the process is working are forgetting their own role in the process. We select the government. How effective are you at influencing your neighbors, the people in your community, your co-workers, etc., to join you in selecting representatives who will further the goals and values important to you?

And if one thinks government has exceeded its powers, the courts are open for business. With regard to any existing or possible future governmental actions which might be applied to limit, restrict or prohibit activities associated with the keeping and/or bearing of arms, here's essentially how things work:

1. Any governmental action limiting, restricting or prohibiting activities associated with the keeping and/or bearing of arms is subject to judicial challenge.
   
   
2. In the course of deciding Heller (District of Columbia v. Heller, 554 U. S. 570 (United States Supreme Court, 2008)) and McDonald (McDonald v. City of Chicago (Supreme Court, 2010, No. 08-1521)), the rulings made by the United States Supreme Court on matters of Constitutional Law, as necessary in making its decisions in those cases, are now binding precedent on all other courts. Now the Supreme Court has finally confirmed that (1) the Second Amendment describes an individual, and not a collective, right; and (2) that right is fundamental and applies against the States. This now lays the foundation for litigation to challenge other restrictions on the RKBA, and the rulings on matters of law necessarily made by the Supreme Court in Heller and McDonald will need to be followed by other courts in those cases.
   
   
3. There is judicial authority going back well before Heller and McDonald for the proposition that constitutionally protected rights are subject to limited regulation by government. Any such regulation must pass some level of scrutiny. The lowest level of scrutiny sometimes applied to such regulation, "rational basis", appears to now have been taken off the table, based on some language in McDonald. And since the Court in McDonald has explicitly characterized the right described by the Second Amendment as fundamental, there is some possibility that highest level of scrutiny, "strict scrutiny" will apply, at least to some issues.
   
   
4. The level of scrutiny between "rational basis" and "strict scrutiny" is "intermediate scrutiny." To satisfy the intermediate scrutiny test, it must be shown that the law or policy being challenged furthers an important government interest in a way substantially related to that interest.
   
   
5. Whichever level of scrutiny may apply, the government, state or federal, seeking to have the regulation sustained will have the burden of convincing a court (and in some cases, ultimately the Supreme Court) that the regulation is acceptable under the applicable level of scrutiny.
   
   
6. Second Amendment jurisprudence is still in its infancy. Until Heller just five years ago, it was still in doubt whether the Second Amendment would be found to describe an individual or collective right. Until McDonald just three years ago, the law was that the Second Amendment did not apply to the States (United States v. Cruikshank, 92 U.S. 542 (1876)). So the scope and extent of permissible regulation of rights described by the Second Amendment is still unclear.
   
   
   • However, First Amendment jurisprudence is by now quite mature. So the sorts of regulation of rights described by the First Amendment might be interesting.
     
     
   • While the First Amendment protects freedom of speech, assembly and religion and in effect states that such right shall not be abridged, we know there has been a history of certain regulation of speech, assembly and religion. A few examples are:
     
     
     • Laws prohibiting such things as false advertising, fraud or misrepresentation, as well as laws requiring certain disclosures in connection with various transactions, would absolutely survive a challenge to their validity on Constitutional grounds even though such laws do impinge on the freedom of speech. Among other things, such laws serve an important state interests related to promoting honest business and helping to preserve the integrity of commercial transactions. They tend to be only as broad as necessary to serve that function.
       
       
     • If you are offering securities or certain other types of investments to the public, your written solicitation materials will have to first be approved prior to use by one or more regulatory agencies. If you are selling medicines in interstate commerce, your labeling will have to be approved in advance by the FDA, and you will have to have demonstrated, through hard, scientific data, that any claims or representations made are true. These are also laws that abridge freedom of speech, and yet they are regular enforced.
       
       
     • Laws respecting the time, place and manner of speech or assembly have also survived Constitutional challenges. Thus a municipality may require that organizers obtain a permit in order to hold an assembly or a parade and may prohibit such activities during, for example, the very early morning hours. Such regulations would be permitted only to the extent necessary to serve the compelling state interest of protecting public health and safety. Any such regulations, to be constitutionally permissible, could not consider the content of the speech or assembly; and they would need to be applied in an even handed manner based on set guidelines and not subject to the discretion of a public official.
       
       
     • In the past, laws prohibiting polygamy have been upheld against challenges that they violate the right to free exercise of religion.
   
   
7. The bottom line is that Second Amendment jurisprudence will need to mature over time as these sorts of issues get litigated.

 

[YZ]

The president does it because he can. The word "unconstitutional" is so hackneyed by now, nobody jumps to attention hearing it, because it has become synonymous with "I don't like it". Well I don't like it. Those who voted for him probably do. Wanna change it, go vote next time and bring every cousin and his honey along with you. If we fail, it is on us. Take this as grown ups and plan to do better the next election.

 

[AKElroy]

Frank, I admire the stance you are able to take, and your faith that our system as designed can and is functioning as the founders intended. I no longer share your faith in the system. This is my last post in this thread, but I want to make one last attempt to explain why.

Our founders envisioned a volunteer political class, with servant hearts, and short terms. The notion that we would have less than 10% turnover in the house, and even less in the senate, was unfathomable. The system is being maniputaletd to create a ruling class that no longer has the same ties to the people that it once did.

Were I to design a system from scratch, and here is where you and I agree, it would look nearly identical to the one we have. The only adaptations I might consider would be the complete replacement of every single participant in the current government, right down to the dismantling of the ridiculously overpowered and unaccountable beaurocracies with which we are literally being enslaved. It is idealistic in the extreme to say that we have a remedy for these administrative excesses, but in practice please name a single department ever abolished. In fact, name one that has decreased in size or scope. Any. Ever.

It does not happen, because our rulers have discovered the fountain of perpetual power; the ability to secure their positions and influence with our money.

I believe in the same ideals as you, my friend. I no longer believe they will save us from a ruling class now firmly ensconced within the system they have gamed.