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Wyoming takes stand against Federal Gov't

Discussion in 'Legal' started by Trent, Jan 10, 2013.

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  1. billinms

    billinms Member

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    " Concerning Article 5 of our Constitution"


    Thanks, Frank. I was too lazy to get up at this late hour and

    check for myself.:)
     
  2. Frank Ettin

    Frank Ettin Moderator

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    Welcome to The High Road.

    Please do understand that as --
    it is not acceptable here to condone, encourage, or advocate illegal actions or the use of violence for social or political change. I hope you understand that we are serious about that.

    And that still begs the question of who decides that.

    The bottom line is that in our legal system questions of constitutionality as a matter of law are the province of the federal courts, and ultimately the Supreme Court.

    Your views might motivate your political activities. But your views do not affect the ruling of the courts.
     
  3. Evergreen

    Evergreen Member

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    Sorry, I've lost track of the debate a little and need to reexamine the posts on the thread. I appreciate the information you are contributing Frank as it is helping educate me a lot about the government. I never knew how being a supporter of the RKBA would force me to learn so much about how our government works. I remember studying about some of this

    Anyway, a disturbing article about a Supreme Court Justice who decided she was above the very law she judges:
    http://www.detroitnews.com/article/...bank-fraud?odyssey=tab|topnews|text|FRONTPAGE

    Looks like the Democrat Justice (soon to be ex-Justice) Diane Hathaway decided to get involved in real-estate fraud and mondey laundering or something of the sorts. Most likely she will be serving some time in prison for these actions. Obviously, she won't be serving as much time as other people would, considering her position in the government.

    This goes back to my original question. What if rogue Supreme Court justices like her, make a decision that goes against our Constitution. Obviously, this lady committed illegal acts of bank fraud that are illegal and most likely unconstitutional in one way or another. Well, it would be very hard to justify or defend the act of "theft" from a constitutional standpoint.

    Considering this infallible criminal could have been one of those to judge the rights of the American people of being constitutional or not, I have my share of reservations and fears.

    I just wanted to bring this point up. I know I need to scan through your other posts in the thread, as you provided a wealth of information on the subject. I'd be interested to hear your take though on people like Supreme Justice Hathaway and your feelings of a person like her judging our 2A rights.
     
  4. thatwatkinsboy

    thatwatkinsboy Member

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    My point is not to condone violence, nor was that the aparent point of the original comment which brought about the "might makes right" reply. The point is that in this websites own rules, the statement is made; "... as are all other Amendments that the Second Amendment defends". How, do you presume, the Second Amendment acts to defend those rights?
    As for my views factoring into supreme court decisions, of course they don't. That is the point. No ones personal beliefs or view should effect said rulings. They should be determined as to how they align with the limits as laid out in the Constitution.
     
    Last edited: Jan 20, 2013
  5. Art Eatman

    Art Eatman Administrator Staff Member

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    The Second Amendment just sits there. People who believe that it does mean RKBA by individuals defend it against a collectivist interpretation.

    However, a beginning in understanding the BOR is provided by a reading of the Preamble.
     
  6. Frank Ettin

    Frank Ettin Moderator

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    For clarification, she is not a justice of the United States Supreme Court. She is a justice of the Supreme Court of Michigan.

    But dishonest people crop up in every profession.

    First, no one said that a judge is infallible. Judges are human like the rest of us. The legal system has a variety of protections, as do many other professions and callings.

    Becoming a judge or justice is a long and fairly arduous process in which one is continually under the scrutiny of peers, subordinates and superiors. To be a judge, he must convince enough other people along the way that he is suitable. One must be successful and well thought of by those with whom he comes into professional contact over a long period of time. At any level of a state or the federal judiciary a judge or justice is under the eyes of others.

    Also, any significant decision of a court of appeal must be made by a number of justices. It takes four Justices of the U. S. Supreme Court to decide to hear a case, and five concurring in a result.

    Things get decided in court through an elaborate process in which multiple professionally qualified people participate, including legal counsel of the parties to the matter.

    All of this is another system of checks and balances. Of course no system designed by humans is immune from error, but a system with multiple feedback/governing processes can go a long way to minimize the error. And bad apples tend to ultimately be found out.

    Still, perfection will be achieved only in heaven.

    We're getting very off topic. So from here forward let's try to stay focused.
     
  7. Duckdog

    Duckdog Member

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    I think it's clear that the states that are passing these laws against the federal laws, or proposed laws, are drawing a line in the sand. This has become more than one rogue state straying from the path of the federal government. There are now more states and counties jumping on that ship.

    I think that the next few months will be very interesting and will end up defining certain rolls in the government.
     
  8. aeriedad

    aeriedad Member

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    So what is the likely result, in the real world? The linked article in the OP tells us that at least one WY State Senator believes the Tenth and Second Amendments support the Constitutionality of the proposed bill.

    The problem with that is that the constant expansion of federal power has rendered the Tenth Amendment almost meaningless. All members of the Executive, Legislative and Judicial branches enter office by an oath to uphold the Constitution, yet all three branches routinely violate the plain meaning of the Tenth Amendment. The Supreme Court easily justifies such violations by Common Law or by deferring to the Judicial or Executive's Constitutional powers. The Tenth Amendment is barely a speed bump once the federal government fancies any new limit to our liberty.

    So, again, what is the likely result should the proposed WY bill pass? Does a state have the power to arrest and charge federal agents for attempting to enforce federal laws that conflict with state laws? Will it really come to that, or is this purely symbolic?
     
  9. Sambo82

    Sambo82 Member

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    Frank, once again you are citing Supreme Court decisions to argue that the Supreme Court is the sole arbiter of what is Constitutional. I hope that you understand the circular nature of this argument.

    Also, you have made the argument that based off of the judical powers proscribed in Article III of the Constitution, and based off of the history of Common Law, it is reasonable to, as the Supreme Court has done, assume that they possess the sole power of judical review. Even if that is the case, what if this reasonable assumption leads to unreasonable applications of the Constitution?

    Let me give you a completely plausable example. Let's say that the Democrats sweep the Congressional elections in 2014, and shortly thereafter another shooting happens. This leads to a UK style de facto gun ban. What should we do? Should we turn in our firearms and hope that the Supreme Court rules in our favor? What if due to Scalia and Kennedy retiring or passing away, the Supreme Court upholds the ban? Sure it would be unreasonable according to the precepts of stare decisis and the actual wording of the Second Amendment, but the Supreme Court ruling contrary to precident is in itself not without precident.

    So honestly, tell me what we do then. Would we sit back, accept the ruling and say "gee, we've been interpreting the Constitution wrong for 220+ years"? You've brought up the point that we can elect new national legislators, but if that truly is our only recourse, if we are in effect a national democracy and the Federal Government and the Federal Government alone dictates what power the Federal Government has, why even bother with the Constitution? It is especially curious why we would have State Constitutions or legislators. You have also brought up the fact that the States can ammend the Constitution, but what value would that be if the Supreme Court can then tell the States what their Amendment really meant?

    Frank, where does that leave us? Are we to ignore our Natural Rights simply because, as you put it; "Our legal system is as it is. It represents at this point several hundred years of evolution"? As I have said before, the UK had at the time of the American Revolution a legal system much older and more "evolved" than our own, and yet our Founders cast it off in favor of their Natural Rights. Our legal code in itself was built upon rebellion, so one can argue that that precident has been set.

    So to summarize; is it still reasonable to assume that the Supreme Court weilds absolute power of judical review (despite said power not being mentioned specifically in the Constitution), IF said power produces unreasonable results? Is it really reasonable if it produces an unreasonable application of the Constitution? And if we still assume that it is reasonable in this context i.e. that oppressive laws are Constitutional, does that mean that we should tolerate these laws in spite of Natural Law?

    I would argue no to all these cases. And apparently according to these movements, a large portion of the People would agree with me.
     
  10. aeriedad

    aeriedad Member

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    ^^^ While I agree with you here, Sambo, the thread will be locked if we don't stay on the OP's topic. I'm hoping to continue the discussion and see what answers THR members may have for my questions.
     
  11. Evergreen

    Evergreen Member

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    Or, considering the importance of the discussion the posts can be moved into a separate thread? Although, I have to say, the discussion isn't entirely off-topic, although it has more to do with general State vs Federal or People vs Federal rather than the state of Wyoming vs Federal.
     
  12. joeschmoe

    joeschmoe Member

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    That and $2 will buy you a cup of coffee. Symbolic, but not worth the paper it's printed on.
     
  13. goon

    goon Member

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    Joeschmoe - I disagree. In terms of a protest, this is worth at least as much as the dollar or so it costs me to send a letter to my representative.
     
  14. joeschmoe

    joeschmoe Member

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    Stamp is only 45 cents.

    Extra shot of esspresso is usually 50 cents.
     
  15. zxcvbob

    zxcvbob Member

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    I don't know that they actually real letters (the excuse is "anthrax") Do you think a postcard might be better? And it saves you a few cents postage
     
  16. Frank Ettin

    Frank Ettin Moderator

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    So a politician thinks a bill he supports is constitutional. Is that a surprise? What does it really mean? No doubt Feinstein believes the bill she has been talking about introducing is constitutional (with which you no doubt disagree). And no doubt Obama thinks the elements of his gun control agenda are constitutional as well. And I'm sure that District of Columbia officials believed that their gun control law would survive Mr. Heller's constitutional challenge.

    All sorts of beliefs and disagreements about the constitutionality of this law or that law. How to resolve them? Where will they end up? The answer of course is in court where such things are finally decided.

    And let's not kid ourselves that every politician introducing legislation or supporting legislation necessarily expects that legislation to be enacted or even to pass muster in a court challenge. A lot of that sort of thing is performance art for their constituencies or part of a larger, political strategy. Politics, often called the art of the possible, can be a chess game; and any particular move may not be what it seems.

    Let's assume for the sake of argument that your assessment is correct. How would you propose to "fix" it. A frontal assault through a direct court challenge? A constitutional convention to clarify the Constitution (and which would effectively put everything on the table and open everything in the Constitution to change)?

    And how sure are you about your assessment? How have you validated it or tested it?

    If it were to come to a state LEO arresting a federal agent for attempting to enforce federal law, my professional opinion is that the question will be answered against the State by a federal court. Do you really think that the State would at that point use force to defy the order of the federal court?

    On the other hand, the Wyoming law and similar laws already enacted or being consider by other States do convey a political message. Remember, we're playing chess and every move isn't always what it seems.

    And you continue to weave elaborate, gossamer tapestries of empty rhetoric that have nothing to do with the way things actually happen in real life.

    I make that argument because that view is supported by over 200 years of law built upon that foundation. We are in fact there, and my analysis describes in part how and why we are there.

    As to "unreasonable applications of the Constitution", that is your opinion. Other people no doubt disagree with you. And to be specific, I reject your opinions.

    Arguments based on hypothetical are specious. You can construct a hypothetical any way you want to support your conclusions. I don't play that game.

    You tell me. You apparently have your own solution. What is it?

    Unreasonable to whom? To you? What if it's unreasonable to you but reasonable to someone else? Your "unreasonable" might well be someone's "reasonable."

    As I noted in post 66:
     
  17. Lost Sheep

    Lost Sheep Member

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    I like it.

    Lost Sheep
     
  18. aeriedad

    aeriedad Member

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    Of course the courts decide these things. But there is such a thing as objective truth, and courts are not immune to political considerations or public opinion. Thus, "court truth" (aka, Common Law) and objective truth (aka, Natural Law) are very often two things. In Orwell's 1984, Obrien did finally convince Winston that 2 and 2 are 5, but he didn't convince me.

    Exactly. That's why I ask, "What happens next?" It seems that WY is really just trying to send the message that the federal gov't should be careful not to overstep. But I'm not sure that's the case; they may be seriously challenging federal authority. In the world of objective truth, Natural Law and the Tenth Amendment, I think they have a strong case, but in the world of Common Law they'll probably lose. In either case, the feds do have to consider their next steps carefully (in my opinion).

    While I hope it never comes to that, I fear that we are on the road to serfdom (yes, Frieidrich Hayek's book) and the only plausible escape is a constitutional convention. If it comes to that, the union may be lost, but freedom for many could be restored. Or, as you note, we could lose a great many of our freedoms to an even more powerful government. But if we do, it would be because today's so-called leaders do not have the same commitment to Natural Law as that of our Founders in the eighteenth century. I agree that is not a risk worth taking at this point, though I fear it may one day come to that. Even scarier is the unstoppable expansion of government power and the slow, silent, inevitable death of liberty without even the prospect of survival that a constitutional convention could deliver.

    At the risk of taking us WAY off-topic, consider the Patient Protection and Affordable Care Act of 2010 (aka, Obamacare). The Supremes said it was a tax, and the power to tax belongs to Congress, and the Solicitor General argued before the Court both that it was and was not a tax, and during the run up to the bill's passage the president insisted that it was not a tax. Expansion of federal power, whether by Legislative, Executive or Judicial overreach, is as natural a force as gravity. The Court's decision on the two dozen-plus state challenges to the PPACA last June reflected a scary propensity toward expanding federal power. The quaint eighteenth century reservation of people's and state's rights expressed in the Tenth Amendment seemed not to matter at all. Yes, it is the Supreme Court's proper role to determine issues of Constitutionality, but its over-reliance on Common Law and deference to the Legislative and Executive branches gives it plenty of latitude to ignore objective truth and the plain meaning of a legal document like the Bill of Rights. As important a tradition as Common Law is to law and order, there would have been no Constitution or Bill of Rights without the Founders' understanding of Natural Rights as expressed by John Locke.

    (I could spend the time on research to find other examples, but I think the PPACA is recent enough to need no background explanations, even if it is a bit off-topic. I went there only because you asked me to support my assessment that even the courts are often willing to expand federal power, no matter what the plain language of Tenth Amendment seems to mean to most Americans.)

    Maybe. Maybe not today, but it could come to that. Maybe in my lifetime (I'm 43), or maybe in that of my children or grandchildren. But the natural ebb and flow of liberty is undeniable, even if less predictable than the tides. I can tell you that I hope we never get to that point. War is hell, and I want better for my family and for my country. Still, the tides look scary, and they bear watching.

    Yep. So, in your professional opinion, is WY's chess move here (should the bill pass) reasonable, or completely unjustified? What is the federal gov't's likely response?
     
  19. Sambo82

    Sambo82 Member

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    This nullification movement is real life, Frank. And it's happening nation wide.

    I'm willing to bet that if I asked the question; "Should the Federal Government, under their Enumerated Power to regulate interstate commerce, be able to regulate the food you grow on your own property for your own consumption" that 90+% of people would answer "no". Legal abstractions notwithstanding, that power is indeed unreasonable under any candid reading of the Constitution.

    And are Supreme Court decisions reasonable when they contradict earlier decisions? If stare decisis is to be the holy grail of why the Supreme Court is allowed the power to be the sole arbiter of the Constitution, what about when they don't follow that precept, as they sometimes fail to do?

    Fair enough. Let me simply ask plainly then; is there any action that the Federal Government could take against your liberties or civil rights that would make you advocate taking action outside of this system that you advocate? Can I assume from your arguments that there is no injustice or nefarious action that the government could perpetrate against you that would cause you to seek recourse outside of these established legal channels?

    Also, since you reject my hypothetical scenerio let me ask you about a historical one; Do you believe that the American Revolution was carried out unjustly? I'm not bringing up a strawman or red herring, but asking a serious question. As the UK at the time of the Revolution possessed a justice system much older and established than ours, which was also based upon stare decisis and common law, and also possessed its own national and local legislatures, was the Founders correct in staging their Revolution? If they were so justified, why are they justified under their system, and we are not so under ours?

    Well, for the record I'm not advocating violence or revolution, just wanted to clear that up. I view this entire argument as a modern extrapolation of the nullification question which, as you may recall, has had its legal and Constitutional arguments on both sides since at least the 1830's, and regrettably each resolution came down to a show of force. It's my sincere hope that as this question is being brought up again, our society is able to resolve it without calling in the troops. I don't think Americans in the 21st Century are quite as militaristic and as rash as we were in the 19th, so that gives me reason to hope.
     
  20. Frank Ettin

    Frank Ettin Moderator

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    Yes, there is such a thing as objective truth -- about some things, when proven with sufficient rigor and tested by, among other things, it's ability to predict other things. Objective truth is based on data and observations, which lead to hypotheses, which are then further tested. That is the scientific method.

    That sort of approach has only limited application to human society and institutions. Human society and institutions can be thought of as described by differential equations over multiple unknowns. Study some chaos theory and some complexity theory.

    My focus it how things happen in the real world.

    So how is your particular notion of objective truth, Natural Law and the Tenth Amendment relevant? Why should I, or anyone else, accept your notion of objective truth, Natural Law or the Tenth Amendment. The scientific test of your notion of objective truth, Natural Law and the Tenth Amendment is that it works. Show us how your notion of objective truth, Natural Law and the Tenth Amendment has worked.

    I advise you not to take that risk if you want this thread to stay open.
     
  21. Frank Ettin

    Frank Ettin Moderator

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    Your willingness to bet is not evidence. It's your contention and therefore your burden to prove it with evidence. As Carl Sagan said, "Extraordinary claims require extraordinary evidence."

    "Any candid reading" is simply another code for your opinion. Your entire argument relies absolutely on accepting your opinion of things. Others do not agree with your opinion.The courts certainly have not. And I see no reason to take your opinions seriously.
     
  22. michaelbsc

    michaelbsc Member

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    Here is an opinion from the Cato Institute, obviously not a court ruling per se, that elaborates on the growing willingness of states to challenge the federal government. The full link to the PDF is near the bottom of the page. No subscription is required to download it.

    http://www.cato.org/publications/po...ium=email&mc_cid=371487743b&mc_eid=b8816b9b58

    This specific discussion regards the recent moves by Washington state and Colorado to legalize marijuana, not any kind of gun challenge. But Mikos (the paper's author) does explicitly state that he believes the principle is applicable to other areas.

    Note that this was written well before the current melee of gun laws arose.

    Now, I'm not an attorney. And I didn't stay at a Holiday Inn last night. And since none of this has been adjudicated it's simply Mikos's opinion as well. It has no rule of law.

    Just food for thought.

    MB
     
  23. thatwatkinsboy

    thatwatkinsboy Member

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    Frank... Since it would appear that you think that the Federal Government has everything under control, and none of us can be right unless the Supreme Court says we are, it begs the question ; Why are you a member (much less a moderator) of this site? It seems everytime a valid point is made, or valid question posed, you refer them to "the system". If the system isn't broken, then it needs not to be fixed. So why are we all talking in circles about this state (one of many) at least TRYING to do something to curb the systems apetite as it seems to be slowly, but surely, devouring our rights? And why is this conversation taking place on a site dedicated to the preservation of the Second Amendment?
    As I understand at this point in this conversation this may be called "off topic", I assure you, it is not. All of these so called "off topic" comments are directly related to the reasoning used to determine the true answers to questions posed by this topic...
     
  24. joeschmoe

    joeschmoe Member

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    ... because this whole thread, and what Wyoming has done, is just pure speculation. No ones rights have been taken.
    Gun owners have actually made huge strides in the last 10 years. The Constitution and rule of law are not dead. Most of the people claiming the system is broken don't seem to know how it works in the first place.
     
  25. thatwatkinsboy

    thatwatkinsboy Member

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    To which "huge strides" would you be referring? As far as I can see, the only meaningful change that has occured in the past decade is the expiration ofa set of "laws" and restrictions that should never have been allowed to be put into action in the first place(ie. Brady Bill). Again, before it is pointed out, this is just my humble opinion... We all are entitled to those. In case you haven't been paying attention to current events, virtually the same set of restrictions are now being proposed to be put into place again. Some of which go further than the last set of "laws"... And I seriously doubt that this time it would be for a mere 10 years. It reminds me of the old adage "One step forward, two steps back." I firmly stand behind the Constitution, and the united STATES of america. Because of this, I believe it is time to tighten the reigns on the Federal Goverment and redistribute the power back to those whom were intended to have it in the first place (for further referance check the 10th Amendment). This thread is about a state proposing to do just that. And I support them in that endeavor. I am not calling for an uprising, nor do I want anarchy or to live in a lawless land. I would venture to say that most of us don't care for war and violence. All I am saying is that this state, and others like it, are seeking legal avenues and paths ensured to them through the Constitution instead of violence. I see no sensible reason not to support such a venture.
     
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