Thoughts on the 2nd Amendment (long-ish)

[Sam1911]

Marshall isn't exactly a personal hero of mine, but I'll admit that I have to agree with Frank's comment here:

It is quite simply impossible to decide a "case arising under this Constitution" without interpreting what the Constitution means in the context of the matter before the court.

OK, so a judge says, in effect, "Judges have the power to interpret law," and we roll over and take it as fact.

"We" rolled over and took it as fact in 1803, and it has been taken as fact ever since. None of us here are in a position to un-make this reality.

How about if as an English teacher I declare that English teachers have the power to decide what words mean? Does that mean that they do?

Well, that's a really significant side-discussion, but usage of language does change radically based on society's needs, whims, and practical agreements. Similarly, as cases arise which hinge on a point of the overarching law that governs the collected States, those appointed to apply that law have to figure out what it means in the new context before them. If the questions brought before the Court were answered directly by the black letters on the paper, there would be no need for the Court.

Or if a LEO declares that LEOs have the power to shoot suspected BGs on sight, do they then have that power?

You're muddying the argument by reaching to absurdities. There is no possible justification for such a claim of authority. Obviously the justification for interpretation was (at least arguably) present for Marshall to call on.

Of if a President declares that the President has the power to suspend habeas corpus, does he then have it?

So far, it seems so. Ask Mr. Lincoln.

Self-proclaimed power over others sounds pretty scary to me.

When you're appointed to the highest court in the land, your decisions have power over others. That's simply the way it is. Had the other branches of government been able to reach consensus that Marshall's decisions were improper, they could have acted as the check and balance against the Court. This is not one man deciding to crown himself king, but an (apparently) legitimate function of our system of government.

Does a judge have some magical insight to know what a legislature meant when it passed a law?

Nothing "magical" about it, but a Supreme Court Justice has a LOT of training and experience with the law and studying the Constitution. S/he must. Not that they will always decide what you or I think is right, or what you or I think we would decide if we were in their position and had obtained the same level of understanding. But if a law comes before the Court, the fact is that there is something about it that is not clear and correct under the Constitution. The Court is appointed to figure such things out.

If the meaning of a law has to be sorted out by a court, and whatever that court says it means is what it means, then what power does a legislature really have?

The power vested in the tripartite system of government -- "checks and balances."

 

[beatledog7]

It is quite simply impossible to decide a "case arising under this Constitution" without interpreting what the Constitution means in the context of the matter before the court.

I would argue it's the other way around. Matters before the court have to be viewed in the context of the Constitution, which is the supreme of the land and as such is THE context for every other law. Changing conditions in society do not have power over law, and to say that they do is tantamount to saying we are a nation of social preferences and not of laws.

Re: habeas corpus, Lincoln was out of line, FDR was out of line, and on the list goes. Congress was too spineless to challenge in each case.

...what power does a legislature really have? The power vested in the tripartite system of government -- "checks and balances."

The balance is skewed when one branch can negate the other, but the negated has no power to respond. What we see operating is not balance--it's dominance.

"We" rolled over and took it as fact in 1803, and it has been taken as fact ever since. None of us here are in a position to un-make this reality.

Sam, what you seem to be saying--and accepting as ok--is that the courts have been making law via interpretation for centuries. Does 200+ years of courts being out of control mean we have to let it continue? You say we have no power to change it, and as long as we believe that, you're right. But if the vast majority of the citizens of the US were to decide that we've had enough of this, and we want it changed, we could change it.

I'm still waiting for the other answer: why continually quote case law while ignoring the Constitution itself in supporting your argument regarding the Constitution?

 

[Sam1911]

I would argue it's the other way around. Matters before the court have to be viewed in the context of the Constitution, which is the supreme of the land and as such is THE context for every other law.

Of course, and that is the basic premise on which judicial review functions. But the Constitution is interpreted to cover new issues and dillemas which arise, that are not specifically spelled out in the black letter text. How can we best fit the text that rules what we may (not) do to the question at hand?

Changing conditions in society do not have power over law, and to say that they do is tantamount to saying we are a nation of social preferences and not of laws.

Well, the clearest refutation of that point is the word "Amendments." Sure changing conditons and societal preferences do have the express power to change the most fundamental law of the land, (and thank goodness!). I'm a Constitutional fundamentalist at heart, but the very first thing that happened to the Constitution was that it was altered! And it has been altered numerous times throughtout the ensuing years, often for the betterment of our nation.

Re: habeas corpus, Lincoln was out of line, FDR was out of line, and on the list goes. Congress was too spineless to challenge in each case.

I can't disagree with you there. But the history stands and we can't change what was done. And we can't change the fact that the bodies elected and appointed to monitor and protect the Constitution have never felt that it was unduly bruised enough by those actions to step in and make ammends. WE do not have any authority to declare such "UnConstitutional." Those acts are Constitutional until they are judged not to be so by the bodies enabled to make that call.

If you want to make that determination, you have the right as every other citizen does, to work to become one of those who can make that call -- or to do whatever is in you power to influence those who are empowered to do so.

The balance is skewed when one branch can negate the other, but the negated has no power to respond. What we see operating is not balance--it's dominance.

The negated (who? Congress?) has the power to respond. They, collectively, choose not to. That means something.

Sam, what you seem to be saying--and accepting as ok--is that the courts have been making law via interpretation for centuries.

It began long before my birth, and exists as precident to this day, and will tomorrow as well. It could be changed if society feels it should be.

Does 200+ years of courts being out of control mean we have to let it continue? You say we have no power to change it, and as long as we believe that, you're right. But if the vast majority of the citizens of the US were to decide that we've had enough of this, and we want it changed, we could change it.

You are absolutely right! No one of us may, but all of us could, given time and determination, if enough of us agreed. Maybe that will happen in my lifetime.

I'm still waiting for the other answer: why continually quote case law while ignoring the Constitution itself in supporting your argument regarding the Constitution?

I think Frank already pointed out that Article III, Sec.2 is the basis for this whole interpretation question. How can you apply a law that you're not able to decipher, analyse, consider the broad meanings of, and ... well ... "interpret?"

 

[gunnutery]

Get our story straight? What does that mean? You get your own story straight. The court has ruled in the heller case that the 2nd amendment protects the individual fundamental right to keep and bear arms, and the reason for the holding is explained in that decision. Your attempt to "re-interpret" the right to somehow define it in "modern times " was rejected by the court, too.

Sorry I agree with B!ngo in that argument. If all gun owners (50% or more of the US population) rallied under one "story" (interpretation), it would be FAR better than having 5 out of 9 people interpret it for us. I am happy that we won a Supreme Court battle (not the whole war), however it was a very narrow win and what happens if we get more anti's on the Court than pro's? Are we just supposed to roll over then since we relied so heavily on the previous favorable ruling?

 

[beatledog7]

Article III, Sec.2 states that "judicial power shall extend to all cases [emphasis added]..." In cases wherein an injured party asks the court for a ruling on how the Constitution applies to the matter, the court has the power to test the law in question against relevant Constitutional wording. It is the law in question that is being measured, not the Constitution.

Sure changing conditons and societal preferences do have the express power to change the most fundamental law of the land, (and thank goodness!). I'm a Constitutional fundamentalist at heart, but the very first thing that happened to the Constitution was that it was altered! And it has been altered numerous times throughtout the ensuing years, often for the betterment of our nation.

Your statement contradicts itself. While changes in society can lead Congress to launch the Amendment process, that process is Constitutional and when completed leaves the Constitution modified. But it is still the Constitution and therefore still the law. Societal preference doesn't make the law change--the designated process makes the law change. The founders granted the Courts no power or vote in the Amendment process to ensure that the Courts would have no power to change the document by which they have to judge all other law.

But the Constitution is interpreted to cover new issues and dillemas which arise, that are not specifically spelled out in the black letter text.

Whatever the Constitution doesn't cover is specifically left to the States or the people (see Amendment X). That was intentional, as the document was designed to limit the power of the Federal government to the specific things listed as Federal powers and to stop it from meddling in anything else. The founders left an out though--the Amendment process, as I noted above, in which the Courts have no voice at all.

Finally, when was the last time a legislature successfully challenged a SCOTUS ruling? If they actually have that power, wouldn't it have happened by now, at some time or other.

 

[GambJoe]

Why do we have it in the first place?

Question was during revolutionary times was to have a standing army or a militia. Much of the debate was based our experiences with British governance during the French and Indian War and King Phillips War and the politics therin. What would be more effective; economicly, militarily and politically? They compromised and gave us both.

In article One section 8:

To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions:

To provide for organizing, arming, and disciplining, the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress;

In regards to Milita it says nothing of overthrowing the government but says "suppress insurrections". So I stongly disagree the original post, 2A was not written to drive out an unpopular government. We were given the vote for that.

Although I'm a fan of both Jefferson and Franklin much of their wilder rhetoric was written trying to get money, troops and naval support from the French. They were being diplomatic, at least in Franklins case. For more good reading pick up on what Adams, Madison and Hamilton had to say.

 

[Frank Ettin]

OK, so a judge says, in effect, "Judges have the power to interpret law," and we roll over and take it as fact....

But it is reality, and it long predates our Constitution.

For as long as judges and courts have existed, and certainly back to the origins of the Common Law of England (the foundation of our legal system), judges have been interpreting and applying the law to exercise their judicial function in the deciding of cases and controversies in their courts. This is an essential part of the exercise of judicial power (as referred to in the Constitution).

It has been an essential part of the exercise of judicial power for hundreds of years before the founding of our Republic. And it must have been thus understood by the Founders, many of whom were lawyers who therefore were familiar with the nature of the judicial function and the exercise of judicial power.

Of course judges do all this in accordance with established and accepted rules and precedent. A judge's interpretation and application of law in a particular case is also subject to review by other judges.

...How about if as an English teacher I declare that English teachers have the power to decide what words mean? Does that mean that they do? Or if a LEO declares that LEOs have the power to shoot suspected BGs on sight, do they then have that power?...

Doing so is not part of the performance of the essential functions of an English teacher or an LEO.

...Again, Frank, you quote case law to support your views on the Constitution. Why don't you quote the Constitution to support your views on the Constitution?...

I did.

It is quite simply impossible to decide a "case arising under this Constitution" without interpreting what the Constitution means in the context of the matter before the court.

I would argue it's the other way around....

But it's not a matter of argument. It's a matter of observable reality. It's the way the law, the courts and judges have actually functioned for hundreds of years -- back even before the founding of our Republic. See above.

...Matters before the court have to be viewed in the context of the Constitution, which is the supreme of the land and as such is THE context for every other law...

And that is simply not true. First what the Constitution actually provides is (Article VI, Clause 2):

Clause 2. This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby; any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.

But that of course applies only insofar as the Constitution is applicable to the matter at hand. The Constitution certainly is not the "context for every other law."

Or do you contend the the Constitution is somehow the context for strict liability in tort? (But see Rylands v Fletcher (1868) LR 3 HL 330, decided by the English House of Lords and the foundation of that concept, and which has been adopted by the courts in the United States.)

Or do you contend that the Constitution is somehow the context for the law of marital property known as Community Property? (That is the body of marital property law found in States which were in territories formerly under the hegemony of the French or Spanish, and derives from Roman Law.)

There are vast bodies of the law which really raise no issues under the Constitution. Indeed the Constitution regulates only the conduct of government. The conduct of private parties is not subject to the Constitution. See Edmonson v. Leesville Concrete Company, Inc, 500 U.S. 614, 1 (U. S. Supreme Court, 1991), emphasis added:

"....The Constitution structures the National Government, confines its actions, and, in regard to certain individual liberties and other specified matters, confines the actions of the States. With a few exceptions, such as the provisions of the Thirteenth Amendment, constitutional guarantees of individual liberty and equal protection do not apply to the actions of private entities. Tarkanian, supra, 488 U.S., at 191, 109 S.Ct., at 461; Flagg Bros, Inc. v. Brooks, 436 U.S. 149, 156, 98 S.Ct. 1729, 1733, 56 L.Ed.2d 185 (1978). ...

Article III, Sec.2 states that "judicial power shall extend to all cases [emphasis added]..." In cases wherein an injured party asks the court for a ruling on how the Constitution applies to the matter, the court has the power to test the law in question against relevant Constitutional wording. It is the law in question that is being measured, not the Constitution...

Even if we were to accept your characterization as valid, how do you imagine a court could "test the law in question against relevant Constitutional wording" without interpreting what that wording of the Constitution means as applied to the law? In fact, your characterization of the process is meaningless.

Consider the Fourth Amendment:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated;...

A court asked to determine if a particular search or seizure violated the constitutionally described right must decide whether or not that search or seizure was "unreasonable." And it can not do that without considering what "unreasonable" means as applied to the circumstances of the search or seizure before it.

...Finally, when was the last time a legislature successfully challenged a SCOTUS ruling? If they actually have that power, wouldn't it have happened by now, at some time or other...

One fairly recent example that comes immediately to mind involves 18 USC 922(q), the federal Gun Free School Zone Act. The U. S. Supreme Court ruled that the law as originally enacted was unconstitutional (United States v. Alfonso Lopez, Jr., 514 U.S. 549 (1995)). Thereafter, Congress reenacted the law revised in a manner intended to overcome the objections of the Supreme Court.

More recently there was the case of Kelo v. City of New London, 545 U.S. 469 (2005). It was a ruling on a matter of eminent domain law (specifically involving the "takings" clause of the Fifth Amendment applied to the States through the 14th Amendment). The result was found to be unsatisfactory by many. As a consequence, the legislatures of 42 States revised those State's eminent domain laws to avoid a Kelo result.

 

[Sam1911]

Article III, Sec.2 states that "judicial power shall extend to all cases [emphasis added]..." In cases wherein an injured party asks the court for a ruling on how the Constitution applies to the matter, the court has the power to test the law in question against relevant Constitutional wording. It is the law in question that is being measured, not the Constitution.

Agreed! But in measuring the law in question, the Justices are interpreting the Constitution! IF the Constitution was written to spell out every possible permutation there would need be no cases brought before the Court. We could just read what the Founders wrote and do that thing. But in deciding matters of law that are not spelled out in black and white, the Justices must apply what they think is the principle most consistent with their belief of the spirit of the Constitution. (At best. Or what they think is the most appropriate to inform the society they wish to live in, at worst. And that's probably what rankles you most.)

Your statement contradicts itself. While changes in society can lead Congress to launch the Amendment process, that process is Constitutional and when completed leaves the Constitution modified. But it is still the Constitution and therefore still the law. Societal preference doesn't make the law change--the designated process makes the law change.

Errrrr...but what then drives the designated process? Social pressure on the elected representatives. (Now anyway. Originally both elected and appointed Congressfolk. Thank you 17th Amendment! )

The founders granted the Courts no power or vote in the Amendment process to ensure that the Courts would have no power to change the document by which they have to judge all other law.

Accepted as true. However that doesn't change the fact that if you set up a series of legal statements and appoint people to apply them to all cases arising under them, their judgments are going to be based on how they read/understand/'interpret' what you wrote! And we know two people can read the same statement and believe it means slightly -- or very -- different things. When a Justice reads it and applies it, how s/he applies it becomes part of the law of the land. The next Justice that applies it may disagree or may be swayed by that reading of the law. Most of the time, the way one Justice reads a law influences strongly how the next does (Stare decisis). And so the Constitution is interpreted.

IF YOU were sitting on the bench, YOU would be interpreting the Constitution. You might hew to the very most fundamentalist view, trying your hardest to apply the black letter of the document to each case, but it would still be YOUR interpretation. Not exactly what Madison, Hamilton, Morris, et. al, believed, or would decide were they standing in your shoes.

Whatever the Constitution doesn't cover is specifically left to the States or the people (see Amendment X).

Right, but that's not the question at hand, or at least I don't think it is. (Though I am quite firmly inclined to agree that it SHOULD be one of the most pressing questions of American history.) There are many rights that are (or SHOULD be) left to the States, or to the people, but there are also issues that arise which must be decided based on the Constitution but which the founders did not foresee. Generally these involve deciding how the interests of the individual interact with those claimed by a State, or between the States. But these decisions are all interpretation. I don't see how they could be anything else.

Finally, when was the last time a legislature successfully challenged a SCOTUS ruling? If they actually have that power, wouldn't it have happened by now, at some time or other.

Well, fairly frequently it seems the Congress receives a ruling it doesn't like, does a little legislative hocus-pocus and passes a new version of the same law that finds a way around the Court's ruling. (GFSZA comes to mind.) Their other power, impeachment, has been used pretty rarely (against the SCOTUS only in 1804, and unsuccessfully) but that still lends more credence to my point that society and it's representatives have not felt that the opinions of the Court were unConstitutional -- not felt so firmly enough to do anything about it. If the Legislative branch chooses not to act against the Judiciary, then that can't really be said to prove that it does not have the power to do so. Only that they haven't agreed with YOU. (And, probably, me either.)

 

[jrdolall]

There is one line in the Constitution that has caused more problems with how things are done in this country than any other. Three words, "Necessary and Proper" opened up the can of worms that continues to this day. The definition of N&P is so vague as to be non-existent. Each legislature takes steps that the majority of those in said legislature deem to be N&P.

It is necessary for the courts to rule on the constitutionality of laws passed by Congress. That is one of the checks and balances. The sad fact is that politics rule the court system more than ever and the presiding Party appoints many judges. Fortunately we the people are able to "overthrow" a government every few years and elect people to replace those we do not like.It is probably one of the saddest parts of the Constitution that it did not place a term limit on Congress. Nor originally on the Presidency.

I believe that societal changes are occurring so rapidly that our court system cannot possibly keep up. Fifty years ago it would have been impossible to foresee what has happened in the past 10 years. Digital cameras, smart phones, laptops and others from a technological stand. Gays in the military, uncontrolled illegal immigration, same sex marriages, animal rights from social perspective. How could the Founders have considered any of these as possibilities. Seat belt laws? Texting while driving? Assault rifles? Brown v BOE of Topeka?

The Constitution is a living document and must be ever changing. The courts do NOT have the authority to altere the document, only Congress can do that, but they do have the responsibility to evaluate what Congress and the President do and either uphold or deny. The process is now in our face everyday so we see in moments what the SCOTUS does. Making Justices political appointees basically insured that we would have a divided court. What % of decisions are settled fully on Partisan lines? God help us if it ever tilts too far Left or Right.

 

[Sam1911]

The sad fact is that politics rule the court system more than ever and the presiding Party appoints many judges.

Well, for heaven's sake there's nothing AT ALL new about that! And I'd say "more than ever" is QUITE a stretch.

 

[beatledog7]

When a legislature drafts and passes a new version of a law that has been struck down, a version that will pass Court muster, it is acting in a way dictated by that court. Otherwise, it would not be drafting the new version. The Court is not counterbalanced by this action--it is still dominating.

SCOTUS could get around the "need" to interpret or interpolate the Constitution on matters that it does not specifically address by simply declining to hear cases over which it should have no jurisdiction in the first place since they are not Federal matters (because of the relationship between the enumerated powers and Amendment X).

But that would mean declining to take on more power, which few politicians will ever do. And yes, those nine black-robed rulers of the country are politicians--don't ever doubt it.

 

[Frank Ettin]

When a legislature drafts and passes a new version of a law that has been struck down, a version that will pass Court muster, it is acting in a way dictated by that court. Otherwise, it would not be drafting the new version. The Court is not counterbalanced by this action--it is still dominating....

No, the legislature is rather achieving its goals, through the guidance of the courts, in an appropriate, constitutional manner.

...SCOTUS could get around the "need" to interpret or interpolate the Constitution on matters that it does not specifically address by simply declining to hear cases over which it should have no jurisdiction in the first place since they are not Federal matters (because of the relationship between the enumerated powers and Amendment X)....

In general SCOTUS decides what cases it will hear. It receives about 10,000 petitions for a writ of certiorari each year, and all are for matters within the jurisdiction of the federal courts (or there is a serious question to be decided of whether there is federal jurisdiction). Of those it grants ceriorari in and hears about 70 to 80 cases.

 

[JDBoardman]

It is my understanding that Congress can specifically state, in a piece of legislation, that it is NOT subject to review by the Supreme Court (vague memory from my 9th Grade Civics class), but that it has been invoked in extremely rare instances. In addition; the Senate also has the power to "Advise and Consent" to appointments to the Court (Robert Bork comes to mind...). In addition, since all expenditures and appropriations must originate in Congress, the House, for example, could (at least in theory) exercise "the power of the purse and refuse to fund SCOTUS if they got too far off the reservation.

We have also seen the DOJ refuse to enforce laws with which it disagrees, and to bend other laws so far out of the original intent that the author would not recognize them. So I would argue that the Congress, while not impotent, is certainly the lesser of the equals, and the true power of the Federal Government is actually vested in the unelected and unappointed bureaucracy.

 

[beatledog7]

I am not at attorney, and I can't go about quoting case after case to support my views. I decline to engage further in a circuitous debate in legalese, mostly because I don't speak it.

But I am a rational, thinking person, and I can see what's been happening to our nation. Three clauses in the Constitution--the general welfare, necessary and proper, and commerce clauses--are being used to expand the power of the Federal government way beyond where it was ever intended to go. Why did the founders specify federal powers at all if they meant for these clauses to be used to cover anything and everything?

The Constitution was written to ensure the opposite, to stifle Federal officials and prevent them from becoming too powerful. The founders included the amendment process to cover truly needed changes, but it was made difficult on purpose. To those who argue that society really sees the need for certain changes, I argue that if that is true, getting an amendment through the process should be a cakewalk, so have at it.

We have forgotten these basic concepts.

Too much power in the courts--especially SCOTUS--and too little ability or willingness to rein them in will be this nation's undoing. A court that can find the individual mandate to be constitutional and call it a tax can just as easily gut 2A, thus ensuring our demise as a free nation. Just one more "wise Latina" or person who wouldn't recommend the US Constitution as a model is all it will take to so narrowly define 2A that the vast majority of gun owners will suddenly find ourselves in violation of Federal law.

But it won't stop there. Power usurpers never decide on their own to cease and desist. Power has to be wrested from them.

The Constitution is effectively already dead. The amendment process will likely never be used again. Why go through the trouble to get 2/3 of Congress and 3/4 of the states to agree to a change when all we really have to is get SCOTUS to rule or not rule?

 

[Neverwinter]

The Constitution was written to ensure the opposite, to stifle Federal officials and prevent them from becoming too powerful. The founders included the amendment process to cover truly needed changes, but it was made difficult on purpose. To those who argue that society really sees the need for certain changes, I argue that if that is true, getting an amendment through the process should be a cakewalk, so have at it.

No, it was the Bill of Rights which was intended to perform that role. The 10th Amendment is in the Bill of Rights, not any of the Articles of the Constitution. The 1st Amendment specifically calls out Congress as respecting no establishment of religion. It was the Anti-Federalists who demanded the Bill of Rights.

Too much power in the courts--especially SCOTUS--and too little ability or willingness to rein them in will be this nation's undoing. A court that can find the individual mandate to be constitutional and call it a tax can just as easily gut 2A, thus ensuring our demise as a free nation. Just one more "wise Latina" or person who wouldn't recommend the US Constitution as a model is all it will take to so narrowly define 2A that the vast majority of gun owners will suddenly find ourselves in violation of Federal law.

The Constitution is effectively already dead. The amendment process will likely never be used again. Why go through the trouble to get 2/3 of Congress and 3/4 of the states to agree to a change when all we really have to is get SCOTUS to rule or not rule?

This is effectively the judicial activism position rehashed. It claims that the SC is too powerful compared to the other branches, while at the same time ignoring the role that the other two play in the appointment of Justices. It uses a misunderstanding of unfavored law reaffirming existing Constitutional taxation powers as an example of how the court will not reaffirm the Constitutional RKBA. This isn't actually about the powers of the Supreme Court, it's about the powers of the Supreme Court to make Constitutional decisions that don't line up with individual preferences.

 

[Frank Ettin]

...Three clauses in the Constitution--the general welfare, necessary and proper, and commerce clauses--are being used to expand the power of the Federal government way beyond where it was ever intended to go...

And I'm certainly no fan of big central government. But let's remember that questionable public policy starts with Congress enacting the laws. Just because something might be constitutionally done, doesn't mean it should be done. And the legislators who are passing laws we might think are bad ideas are themselves being elected by people who think those legislators are doing just fine.

Then again, when we cheer SCOTUS tossing out a law we don't like, there are a bunch of other folks complaining that an our-of-control court has thwarted the legitimate public policy goals of its elected representatives.

And that sort of friction is pretty much built into the system the Founders left to us.

...A court that can find the individual mandate to be constitutional and call it a tax...

But it's useful for us to understand that it's really much more complicated than that.

As Al Norris noted in this post on TFL regarding the health care decision:

The decision itself is convoluted....

Let's look at what this decision did:

• The decision that the PPACA Mandate was unconstitutional as a function of the Commerce Clause: 5-4 (Roberts, Scalia, Alito, Kennedy and Thomas).
• The decision that the Necessary and Proper Clause as a vehicle to the PPACA was unconstitutional (it may have been necessary, but it was not proper): 5-4 (Roberts, Scalia, Alito, Kennedy and Thomas).
• The decision that the Medicaid provisions were an unconstitutional coercion by Congress against the sovereignty of the States (spending power): 7-2 (Roberts, Scalia, Alito, Kennedy, Thomas, Breyer and Souter).
• The decision that the PPACA survives as a constitutional power of the Congresses ability to Tax (General Welfare): 5-4 (Roberts, Souter, Kagan, Breyer and Ginsberg).

...​

So the Court in fact declined to expand on either the Necessary and Proper Clause or the Commerce Clause, and found that neither supported the individual mandate. The Court also supported state sovereignty by striking down the Medicaid provision.

...It claims that the SC is too powerful compared to the other branches, ...This isn't actually about the powers of the Supreme Court, it's about the powers of the Supreme Court to make Constitutional decisions that don't line up with individual preferences.

Very true.

For every controversial decision of the Supreme Court, those who don't like the result condemn the Court as too powerful; and those who like the result laud the Court as the last bulwark of liberty.

 

[beatledog7]

For every controversial decision of the Supreme Court, those who don't like the result condemn the Court as too powerful; and those who like the result laud the Court as the last bulwark of liberty.

I do not applaud any branch of government, especially Federal government and most especially SCOTUS, for overstepping its legitimate authority to do anything, even something I like.

You see, I'm smart enough to realize that an overreach to do something I like is bound to be followed by an overreach to do something I don't like. Overreach is overreach, regardless of what it accomplishes. It's always a bad deal because each time it happens it dulls our senses all the more and provides another instance of case law for attorneys and judges to quote.

I want government to govern within its designated bounds, period.

 

[Frank Ettin]

...I want government to govern within its designated bounds, period.

I think pretty much everyone does. People just disagree about what those bounds are.

 

[beatledog7]

People just disagree about what those bounds are.

That is a major part of the problem. But it's easily solved by reading the Constitution, wherein the bounds are clearly defined. That point, of course, takes the debate full circle.

 

[jrdolall]

But it's easily solved by reading the Constitution, wherein the bounds are clearly defined.

"Clearly defined" is apparently open for interpretation and therefore not clearly defined.
Define "necessary and proper".
Define "common good".

You and I probably have a similar definition of those two phrases but there are a lot of people who have different ideas of those and other wording.

 

[Frank Ettin]

People just disagree about what those bounds are.

...But it's easily solved by reading the Constitution, wherein the bounds are clearly defined....

But off course it does not. Many people have read the Constitution many times, and there remains considerable disagreement.

 

[gym]

I don't claim to be as well versed in the Constitution as many here are. I do know that American soldiers, will probablly not fire on their friends and neighboors, I would think that half would just walk away and join thier familys.
Also if such a "civil war" did happen, other countries would step in on both sides, and some might try to take over the country, "like China,Russia, "no matter what they call themselves", and many other Latin American, and middle east countries". In the long run, it would end up a Global disaster. More than likelly Americanns would unite, take control of the Govt. and have to fight their way back "if they could" to a prior state.
The Iraquis and Iranians would like nothing better. It would benefit them to come in and back the "people" against the Govt, and wait until we all killed each other.
I recieve dozens of emails from political organizations who are all trying to get money based on the rumor that our President is going to at some time declare Marshall law, and go house to house to get our guns.That would be an gigantic effort because as we all know, there are not enough civil servants, to go and search every house in the country.
But even if they tried this, they would almost immediatlly set off a series of incidents that would end up in a civil war type of scenario. I don't know anyone who would be allowing starangers into their home to search it with no-knock warrents. It would surelly be the beginning of the end of the country as we know it.
So in this enviornment that we are in now, I can't see the government giving we the people too much more in the way of freedoms, "promised or not", only because of their tentative relationship with the public at large.
Many people have "had it" and won't be pushed much further", when you get to the point where you have little to lose, it dosen't matter as much as when everyone was making a good living and leading a happy 40 hour week with 2 or 3 vacations per year, and a home they could afford, a job that was for life, and kids who were college bound. We have fallen a long way in a short time.Most of this can be blamed on those who steer the ship.

 

[Frank Ettin]

Too much detour. Let's get back on topic.

 

[B!ngo]

Sorry I agree with B!ngo in that argument. If all gun owners (50% or more of the US population) rallied under one "story" (interpretation), it would be FAR better than having 5 out of 9 people interpret it for us. I am happy that we won a Supreme Court battle (not the whole war), however it was a very narrow win and what happens if we get more anti's on the Court than pro's? Are we just supposed to roll over then since we relied so heavily on the previous favorable ruling?

Yep, that was my point. Thanks.
Still don't know where the NRA funding thing came from. I was simply implying that, though members fund the NRA in part to lobby the three branches of the federal government as well as state and local governments, gun owners themselves have to be part of that same discussion and that clarity and coherence of such a position is of value.
B

 

[B!ngo]

Question was during revolutionary times was to have a standing army or a militia. Much of the debate was based our experiences with British governance during the French and Indian War and King Phillips War and the politics therin. What would be more effective; economicly, militarily and politically? They compromised and gave us both.

In article One section 8:

To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions:

To provide for organizing, arming, and disciplining, the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress;

In regards to Milita it says nothing of overthrowing the government but says "suppress insurrections". So I stongly disagree the original post, 2A was not written to drive out an unpopular government. We were given the vote for that.

Although I'm a fan of both Jefferson and Franklin much of their wilder rhetoric was written trying to get money, troops and naval support from the French. They were being diplomatic, at least in Franklins case. For more good reading pick up on what Adams, Madison and Hamilton had to say.

This is an interesting read and interpretation. I'm not a constitutional scholar which is part of the reason for the initial question. The other reason is that so many times, in the course of reading posting on this site (and others) people cite the 2A as a justification for guns to combat an ill-behaving government. A sort of fail-safe if other processes do not work.
I was simply asking, and it's quite clear by now that there are numerous interpretations, what others think of that.
B