'You are not to reference the Constitution ... '

[Quartus]

Courts have no powers not granted to them in the Constitution of the United States or the several states (for state courts).


Show me anywhere that any of those documents grants the power of interpretation to any court.


This business of courts INTERPRETING laws is something the FF wrote about, and FEARED.


If it isn't a granted power, it's illegal, no matter how universal the practice may be.

 

[Ladybug]

quartus,
you're obviously in over your head - go back to civics class before you get too bent out of shape.

 

[cuchulainn]

no, but it limits what lower courts (like this one) can decide

But not what they can hear. The fact that the court refused to even hear the argument (it rather should have written in its opinion that the issue was "settled" and beyond its ruling), makes it harder for that issue to be taken to the higher, more-appropriate venue.

The fact is that plenty of judges hear second amendment arguments and then turn around and write "Hey, it's out of my hands."

In this case, IMHO, that's a good thing given that I cringe at having Rick Stanley as an RKBA defendant.

the court has rejected efforts to incorporate the second amendment. i will find cases later (lunch break almost up!) and post them.

Actually, U.S v Cruickshank in 1876 did rule against incorporating the 2nd. But Cruickshank also ruled against incorporating the Assembly Clause of the 1st (which since has been incorporated), so it's not a very good precedent for saying that the 2nd is beyond incorporation.

Presser v. Illinois (1886) relied on Cruickshank in saying that the 2nd doesn't apply to the states, so it is similarly open to attack.

Miller v. Texas 1894 had the issue before it but refused to decide it on procedural grounds that the issue was not raised at the trial court (which harkens back to the judge's refusal to allow Stanley to raise an issue at the trial court)

 

[Quartus]

Ladybug, you obviously have bought bought - hook line and sinker - the revisionist view of law that prevails today.


Which means you don't know much. I notice you didn't answer my question.

 

[MrAcheson]

I have to agree with Ladybug here. If we had a legal system closer to the french napoleonic model (its not a precidence based system to my understanding) then Quartus would have a leg to stand on. Unfortunately we don't.

We have a system based both on law and judicial precident which we inherited from the british. Current decisions must be consistent with previous ones or the previous ones must be overturned by a court of equal authority. To really understand the law in this country, unfortunately you have to be a lawyer.

We had a legal system in this country long before the US constitution. The Constitution was written to constrain the powers of the new stronger federal government. The 14th amendment transferred many (but thanks to current judicial precident) not all of those requirements to the states. Some may have trickled down to the municipal level (like miranda rights and search/seizure) and some states may directly apply them to their municipalities via legislation, but its not guaranteed.

Quartus, please stop railing about how the government works when it most certainly does not work that way. Maybe it should, but it doesn't. Sorry.

 

[cuchulainn]

Show me anywhere that any of those documents grants the power of interpretation to any court.

How, then, could a court uphold the individual right under the 2nd. if not by interpreting "people" to mean "individuals"?

"People" could mean "individuals, but it also could be a collective noun -- I assume that all of us here agree with the "individual" interpretation, but that's nonetheless an interpreation of a word.

 

[org]

Ladybug, I'd hesitate to use civics class to justify anything. Try going back to the constitution...all the other things you cite come later. The courts have overstepped their constitutional bounds consistently, and will continue to do so until they are populated with judges that don't feel the need to socially engineer.

Rick Stanley, IMHO, does more damage to our cause than good. That doesn't excuse judicial abuse of his original case.

 

[Quartus]

MrAcheson, you must have missed my earlier post. I made it quite clear that I am aware of how it currently works. I am talking about what is LEGAL, NOT about what is DONE. There is simply no authority for the current practices. The courts do not even EXIST without authoritiy from their respective Constitutions, and do not have any authority not granted by those Constitutions. (State and Federal, respectively.) I am not aware of any of those documents which grant the courts authority to interpret those documents. The Federal Constitution certainly does not.

As it stands now, the courts are creating their own power, and making law, which is not legal. It stands, to be sure - they get away with it, to be sure, but it is not legal.


And it stands because we allow it to.

 

[cuchulainn]

Quartus, so you believe it would be illegal for the court to interpret "people" in the 2nd Amt to mean "individuals."

 

[Quartus]

cuchulainn, there is a difference between understanding the meaning of words (your example) and interpreting law, as is currently done by the courts.

In your example, the document interprets that word by its own context. Unless we impose later ideas on it (which is what many people do today) the Constitution explains itself. In the event the original intent is not completely clear, it can readily be discerned by referring to the writings of the Founders who approved that document. In all cases, we find that they used plain language, and the "confusion" that needs to be "interpreted" is simply a result of not taking the plain sense of the words. (Assuming one is conversant with the English language of the day, which is not always the case.)

 

[Quartus]

We're cross posting here, cuchulainn, but I think I answered your second question.

 

[Quartus]

I'd hesitate to use civics class to justify anything

Especially if you had a civics teacher like mine - she made Barbara Boxer look like a moderate!


And if all you learned is what you learned in school, you ain't very well edumacated. And that's true of most subjects.

 

[cuchulainn]

In your example, the document interprets that word by its own context. Unless we impose later ideas on it (which is what many people do today) the Constitution explains itself.

But you said interpreting was extraconstitutional. It's not.

Your problem is with the type of interpretation -- simple/plain language versus creative/progressive.

Most people here probably would agree with you that the tendency to creative/progressive interpretation -- as if the Constitution were a cypher that needed decoding -- often has gone too far.

But with all due respect -- and I think Ladybug was reacting to this too -- you came across as insisting that any interpretation was wrong.

 

[Ladybug]

Ladybug, I'd hesitate to use civics class to justify anything

How bout law school?
I just thought Quantus could benefit from some basic civics - his teacher was OBVIOUSLY bad because he has no idea how our government works. Of course, as long as he sits in his house, clutching his copy of the Constition and never ventures into the real world, it doesn't matter what he believes.

cuchulainn,
I agree with everything you're saying... the cases you cited are the ones I was thinking of. After those, there has never been a case where incorporation was successfully used, nor any court that stated in dicta that it could be. Which, of course, does not mean that it CAN'T be - it just means as things stand right now, it doesn't. It's HIGH TIME for some fresh caselaw on the issue!!

As for what the judge allowed or didn't allow - I'm not going to assume the moron that wrote that article gave us the whole story. I have a feeling that this comment about the Constitution was taken out of context. Show me a more reliable source about what really happened!

 

[buzz_knox]

How bout law school? I just thought Quantus could benefit from some basic civics - his teacher was OBVIOUSLY bad because he has no idea how our government works. Of course, as long as he sits in his house, clutching his copy of the Constition and never ventures into the real world, it doesn't matter what he believes.

Guess you haven't learned tact yet in school, nor learned anything about arguing your case. Assuming an air of arrogance because you are in law school doesn't assist your case. Let me guess, you're a first year, right?

There are those of us who have actually graduated from law school and have practiced for some years who disagree with you. For example, you seem to place as much emphasis on the Constitution (not Constition as you spelled it) as the common law. Apparently, the law school you attend has failed to instruct you in the proper balance between the two, to wit, there is no balance. The Constitution is the principle foundation of our system of government, and where the Constitution speaks, the common law ceases to have primacy. Common law only operates in the absence of statutes, and where statutes exist, common law, at best, serves as a guide for understanding those statutes.

By the way, Quartus' (not Quantus) idea of how it's supposed to be is correct, not yours. While the Supreme Court's decision that it was the interpreter of the law was understandable and even laudable given the checks and balances systems developed by the founders, it was not intended as an authorization for courts to legislate from the bench. If a court found that a law was unconstitutional, the law was to be voided. It was not to be modified, molded, or shaped to fit the court's interpretation.

As for the incorporation of the 2nd amendment, that's actually a debatable point. Various Supreme Court decisions have narrowly defeated the full incorporation doctrine (usually for less than laudable reasons) and there is sufficient doubt in the logic of those rationales that a lower court could find that they are distinguishable in the right case, and determine that the 2nd A should be (if in fact it has not already been) incorporated.

 

[buzz_knox]

Unless we impose later ideas on it (which is what many people do today) the Constitution explains itself.

Not always. The necessary and proper clause allows Congress to pass those laws "necessary and proper" to carry out its assigned responsibilites. Well, what does that mean? Is a draft "necessary and proper" to raising an army? Is owning property for naval bases "necessary and proper?" The Executive Branch is charged with enforcing these laws, not interpreting them. That leaves the courts as the logical arbiter of the law.

 

[Ladybug]

And YOU get an A++ for tact, Mr. buzz_knox

My "arrogance" is actually just irritation that some people believe that interpretation of laws by the courts is "illegal." Quantus was just ranting, and wrong.

I don't give a crap how educated anyone is, and I do NOT consider myself more (or even equally) competent to discuss these issues than many people on this board. I was reacting to the snide comment about "civics class." What's your excuse?

Nowhere have I said anything about the Constitution being less important than anything else... all I said is that (sometimes unfortunately) we cannot read documents like the Constitution and assume they mean what we want them to mean, or even what they logically SEEM to mean. Reading the Second Amendment, I would logically conclude that I have a right to carry a gun. However, if I were to venture out into the world - and into a kindergarten classroom - with my concealed tommy gun uhoh: ), I would be jailed, DESPITE what the Constitution says. I wonder why that is....

Do I think the courts go too far in interpreting laws? Sometimes, yes.
Do I think RKBA precedents suck and it's time for some new ones? YES!!!
Do I think in the meantime we're stuck with all the crappy interpretations we've been given? Yup.
Do I think some idiot in a Denver courtroom - clutching his Constitution and threatening to arrest a judge - is going to be the harbinger of change? Probably not.

 

[org]

Ladybug, allow me to rephrase: I'd hate to use civics or law school to justify anything.

 

[buzz_knox]

I don't give a crap how educated anyone is, and I do NOT consider myself more (or even equally) competent to discuss these issues than many people on this board. I was reacting to the snide comment about "civics class." What's your excuse?

Hmm. That's strange. You reacted to a comment about "civics class" yet you were the one who told Quartus to "go back to civics class."

Specifically, you stated:

quartus, you're obviously in over your head - go back to civics class before you get too bent out of shape.

My excuse as you put it, was to point out that your assertion of superior knowledge based on your attending law school was inappropriate.

Reading the Second Amendment, I would logically conclude that I have a right to carry a gun. However, if I were to venture out into the world - and into a kindergarten classroom - with my concealed tommy gun ( ), I would be jailed, DESPITE what the Constitution says. I wonder why that is....

Your logical conclusion is the true and proper one. You would be arrested because the courts have, because of ideology and political climate, allowed the wholesale infringement of the right (without reason or thought) guaranteed under the Constitution, most state constitutions, and the common law, namely the right to self-defense. The fact that you accept that infringement as just the way the world works demonstrates both why it is that way and why it will continue. Accepting a wrong does not make it right; it just makes one an accomplice in the deprivation of the right.

 

[Ladybug]

I can appreciate that, org

What I am NOT justifying is an attitute of arrogance, or an idea that I am somehow more educated or worth listening to than other people - because I don't believe that, and I'm sorry if I came across that way. There's people on this board I respect infinately more than many lawyers, doctors, professors, and other highly educated people I know.

What I WAS justifying was my statements that Quantus was incorrect in his belief that courts do not have a right to interpret the Constitution.

 

[Intune]

I... hate... Quantas...

Famous koala bear line. Nobody here by that name or Quantus.

 

[Ladybug]

I'm not asserting any superiority whatsoever. I am just stating my belief that you and Quantus are wrong - the courts DO have a legal right to interpret the law.

"Putting me in my place" by pointing out that I'm acting inappropriately and by pointing out my typos is arrogance that I don't think is justified by a legal education either.

The fact that you accept that infringement as just the way the world works demonstrates both why it is that way and why it will continue. Accepting a wrong does not make it right; it just makes one an accomplice in the deprivation of the right.

No, I don't accept it as right. But I see it for what it is, and I know that in order for things to change, people have to understand how the system works. We have to change things within the system - unless someone here is proposing that we do away with common law altogether, or perhaps that we should install a dictator who can just "fix" it. I personally think our system is pretty great - I disagree with a lot of court opinions, and I agree with even more. Rather than declaring that the Supreme Court can no longer serve its interpretative role, I believe it's time for some new interpretation.

 

[cuchulainn]

buzz_knox, Ladybug and Quartus,

I think you all should come to an agreement on the definition of interpret. It seems to me that you all are closer in agreement than you think and are arguing past each other based on misunderstandings of what the others mean by interpret.

For Ladybug interpret seems to mean "decide what the words mean and the writers intended."

For Quartus' interpret seems to mean "figure out a way to make the words mean what we want them to mean so we can further our social agendas."

Thus you may not be disagreeing at all, but simply having a semantic misunderstanding

++++

Ladybug,

Despite some admittedly misleading writing on Quartus' part earlier, his problem with interpretation seems to be how much, not whether.

 

[org]

Ladybug, I do agree with you that the courts can and should interpret the laws of the land, and even the Constitution. HOWEVER....many of the "interpretations" have been so blatently driven by ideology as to be attempts to legislate from the bench. The Bill of Rights is written in pretty plain English, and if any questions remain after being read in basic English, the writings of the authors and signatories of the Constitution pretty well explain it's true meaning. Unfortunately, many jurists actually think the Constitution is a "living" document, subject to the whims of the moment. In short, interpret, don't rewrite.

IMHO, this is the reason the liberals are so terrified of having conservative justices. The courts are the only vehicle they have to push extremist policies now that the legislative branch is increasingly reluctant to do so.

Anyway, my remark about civics class wasn't meant to be snide...I really meant it, based on what passes for civics class in today's schools.

 

[Ladybug]

Thank you cuchulainn - your peacemaking skills are admirable (want a job in Iraq? ha ha).

You're right - that is how I would define interpret.

I would also add, lest we forget, that (as you actually pointed out earlier re interpretation of the word "people") the courts' interpretations sometimes work in our favor. I don't agree with the attitude that we should take away judicial powers because we disagree with opinions, or we should recall elected officials because we disagree with their policies, or we should attempt stunts like arresting judges who make comments we don't like, etc. The very checks and balances and institutions provided by the Constitution are the means to bringing about change, in my ever so humble opinion, which never comes off as humble