Calguns.net  

Home My iTrader Join the NRA Donate to CGSSA Sponsors CGN Google Search
CA Semiauto Ban(AW)ID Flowchart CA Handgun Ban ID Flowchart CA Shotgun Ban ID Flowchart
Go Back   Calguns.net > POLITICS, LITIGATION AND ACTIVISM > California 2nd Amend. Political Discussion & Activism
Register FAQ Members List Calendar Mark Forums Read

California 2nd Amend. Political Discussion & Activism Discuss gun rights activism and 2A related political topics here. All advice given is NOT legal counsel.

Reply
 
Thread Tools Display Modes
  #1  
Old 03-23-2013, 4:58 PM
Not a Cook Not a Cook is offline
Senior Member
 
Join Date: Mar 2013
Posts: 1,540
iTrader: 3 / 100%
Default Shall Not Be INFRINGED - What Did/Does "Infringe" Mean?

On another site I recently read a post where someone very incorrectly argued that the 2nd Amendment doesn't mean what it seems to say because the word "infringed" didn't mean the same thing when it was written that it does today. They claimed infringed had some oddball meaning that just made me scratch my head. Now... I am a BIG proponent of picking up the Noah Webster's 1828 "AMERICAN DICTIONARY OF THE ENGLISH LANGUAGE" whenever someone is interested in what the words of the Constitution actually mean. The 1828 dictionary is a relatively contemperanous writing with the Constitution (it took quite a number of years for Webster to complete it), and Webster actually lived through (and gave some voice to) the Revolution and is regarded as one our "Founding Fathers". Therefore I figure it's a safe place to look to find out what any of the words in the Constitution actually mean. So here is what Webster's 1828 lists:

"INFRINGED, pp. Broken ; violated ; transgressed." (NOTE: only one definition was given for infrigned)

Just wanted to pass this along to any of you who may similarly run into discussions that claim "infringed" means something other than what it actually means, and figured not everyone has a copy of the 1828 dictionary laying around for reference.
Reply With Quote
  #2  
Old 03-23-2013, 5:07 PM
speedrrracer speedrrracer is offline
Veteran Member
 
Join Date: Dec 2011
Posts: 2,736
iTrader: 1 / 100%
Default

That may have been what it meant in 1828, but nowadays it seems to mean nothing at all.
__________________
Reply With Quote
  #3  
Old 03-23-2013, 7:01 PM
Carnivore's Avatar
Carnivore Carnivore is offline
Senior Member
 
Join Date: Aug 2009
Location: Ventura County, Ca
Posts: 1,809
iTrader: 5 / 100%
Default

I would say to him/her/it to read the Heller decision and STFU. Clearly they are an anti and will lie to make anything go their way. Remember Piers and his musket and 2a relation. Stupid people say stupid things, doesn't make it true.
__________________
Quote:
Tom’s right, and the right of any other citizen, to arm himself should not be subject to approval by a civil servant who will not be present to protect them.
Reply With Quote
  #4  
Old 03-23-2013, 8:27 PM
David L Smith's Avatar
David L Smith David L Smith is offline
Junior Member
 
Join Date: Feb 2013
Location: Kern County
Posts: 31
iTrader: 0 / 0%
Default

Quote:
Originally Posted by Not a Cook View Post
On another site I recently read a post where someone very incorrectly argued that the 2nd Amendment doesn't mean what it seems to say because the word "infringed" didn't mean the same thing when it was written that it does today. They claimed infringed had some oddball meaning that just made me scratch my head. Now... I am a BIG proponent of picking up the Noah Webster's 1828 "AMERICAN DICTIONARY OF THE ENGLISH LANGUAGE" whenever someone is interested in what the words of the Constitution actually mean. The 1828 dictionary is a relatively contemperanous writing with the Constitution (it took quite a number of years for Webster to complete it), and Webster actually lived through (and gave some voice to) the Revolution and is regarded as one our "Founding Fathers". Therefore I figure it's a safe place to look to find out what any of the words in the Constitution actually mean. So here is what Webster's 1828 lists:

"INFRINGED, pp. Broken ; violated ; transgressed." (NOTE: only one definition was given for infrigned)

Just wanted to pass this along to any of you who may similarly run into discussions that claim "infringed" means something other than what it actually means, and figured not everyone has a copy of the 1828 dictionary laying around for reference.

In 1780, the use of the word "infringe" as a verb, means:

To INFRINGE ... v.a. To violate, to break laws or contracts; to destroy, to hinder.


Assuming some ambiguity in "hinder", we look that up to find:

To HINDER ... v.a. To obstruct, to stop, to impede.


Assuming some ambiguity in "obstruct", we look that up to find:

To OBSTRUCT ... v.a. To hinder, to be in the way of, to block up, to bar; to oppose, to retard.


Assuming some ambiguity in "impede", we look that up to find:

To IMPEDE ... v.a. To hinder, to let, to obstruct.
__________________
"The best we can hope for concerning the people at large is that they be properly armed."
-- Alexander Hamilton, The Federalist Papers at 184-188

"I ask, sir, what is the militia? It is the whole people, except for a few public officials."
— George Mason, in Debates in Virginia Convention on Ratification of the Constitution, Elliot, Vol. 3, June 16, 1788

You CANNOT change the Constitution with a law!
Reply With Quote
  #5  
Old 03-23-2013, 10:01 PM
Sputnik's Avatar
Sputnik Sputnik is offline
Shiny
CGN Contributor
 
Join Date: May 2011
Location: East Bay
Posts: 1,003
iTrader: 2 / 100%
Default

in·fringe
/inˈfrinj/
Verb
Actively break the terms of (a law, agreement, etc.): "infringe a copyright".
Act so as to limit or undermine (something); encroach on: "infringe on his privacy".
Synonyms
violate - transgress - break - contravene - trespass


don't do that stuff ^^^^
__________________
Quote:
Originally Posted by dfletcher View Post
Make your choice, take a chance - don't b*tch if something bad happens.
Reply With Quote
  #6  
Old 03-23-2013, 11:47 PM
a-mp123 a-mp123 is offline
Member
 
Join Date: Jan 2013
Posts: 110
iTrader: 4 / 100%
Default

They're focusing on the most intransigent word in the whole amendment. The most malleable is "regulated", which is open to a very different modern interpretation than originally intended.
Reply With Quote
  #7  
Old 03-24-2013, 6:55 AM
CDFingers CDFingers is offline
Banned
 
Join Date: Mar 2008
Location: Chico, CA
Posts: 1,853
iTrader: 4 / 100%
Blog Entries: 1
Default

I think folks should not be angry. This is an excellent question, the meaning of "to infringe."

http://www.etymonline.com/index.php?...earchmode=none

This shows the meaning 500 years ago.

I think laws violate the meaning of "to infringe" as used 500 years ago.

Now I think it means, by common usage, "to nibble around the edges of an idea".

The law still violates it.

I need a case to go to the SCOTUS that defines States Rights vis a vis the Second Amendment. Since laws on speech are pretty consistent across America, I claim that gun laws should be similarly treated.

CDFingers
Reply With Quote
  #8  
Old 03-24-2013, 7:22 AM
Just Dave's Avatar
Just Dave Just Dave is online now
CGN/CGSSA Contributor
CGN Contributor
 
Join Date: Jul 2011
Location: Hiding behind Camp Pendleton
Posts: 9,513
iTrader: 0 / 0%
Default

Websters 1913 dictionary- to hinder.
__________________


Quote:
Originally Posted by Kestryll View Post
This is a discussion forum, that's what happens on a discussion forum.
People talk, discuss, speculate and share information.
Reply With Quote
  #9  
Old 03-24-2013, 7:45 AM
AK all day's Avatar
AK all day AK all day is offline
Veteran Member
 
Join Date: Mar 2012
Location: Highland CA
Posts: 2,800
iTrader: 22 / 100%
Default

It simply means to limit or undermine. Both already happening.
Reply With Quote
  #10  
Old 03-24-2013, 11:03 AM
colossians323's Avatar
colossians323 colossians323 is offline
I need a LIFE!!
 
Join Date: Oct 2005
Posts: 18,034
iTrader: 41 / 100%
Default

Quote:
Originally Posted by speedrrracer View Post
That may have been what it meant in 1828, but nowadays it seems to mean nothing at all.
True, but the law is supposed to be interpreted by using what the concept and meaning of the words at that time meant, and this is why laws are getting so twisted by our gub ment. There is a reason the gub ment owns public education.
__________________
LIVE FREE OR DIE!

M. Sage's I have a dream speech;

Quote:
Originally Posted by M. Sage View Post
I dream about the day that the average would-be rapist is afraid to approach a woman who's walking alone at night. I dream of the day when two punks talk each other out of sticking up a liquor store because it's too damn risky.
Reply With Quote
  #11  
Old 03-24-2013, 11:34 AM
nastyhabts26 nastyhabts26 is offline
Senior Member
 
Join Date: Sep 2011
Posts: 2,115
iTrader: 5 / 100%
Default

I suppose the antis could argue that the ammendments to the constitution were put in place to have a method of changing the constitution as a need arises.
I think that that means there could be changes made to the constitution to keep up with the times we are living in.
What scares me is who is responsible for adding ammendments to the constitution and what is the procedure to do it.
We all know Politicians do not work for us.
They are not held to support what their constituants believe in.
Politicians are free to do what their own morals allow them to do regardless of what the people want, it is just icing onthe cake for them if it happens that their decisions mirror the desires of their constituants.
It is in their best interest to gain their constituants approval so that they will be able to retain their position as election time comes around.
It is in our best interest to work hard to turn the people who are undecided to our point of view, but if this is not done in a rational way those people will see us as extremists that are to be avoided and that our opinions have no merit.
Reply With Quote
  #12  
Old 03-24-2013, 12:13 PM
Southwest Chuck Southwest Chuck is offline
Senior Member
 
Join Date: Jul 2009
Location: San Bernardino County
Posts: 1,874
iTrader: 1 / 100%
Default

Ran across this today and deals directly with this issue. I don't know anything about the author, but it was an interesting (short) read on the subject, so I thought I'd share it.
The Definition of the Word “Infringed” In The Context of The Second Amendment
__________________
Quote:
Originally Posted by Southwest Chuck View Post
I am humbled at the efforts of so many Patriots on this and other forums, CGN, CGF, SAF, NRA, CRPF, MDS etc. etc. I am lucky to be living in an era of a new awakening of the American Spirit; One that embraces it's Constitutional History, and it's Founding Fathers vision, especially in an age of such uncertainty that we are now in.
Quote:
Originally Posted by toby View Post
Go cheap you will always have cheap and if you sell, it will sell for even cheaper. Buy the best you can every time.
^^^ Wise Man. Take his advice
Reply With Quote
  #13  
Old 03-24-2013, 1:00 PM
QWi QWi is offline
Junior Member
 
Join Date: Sep 2012
Posts: 19
iTrader: 0 / 0%
Default

"Act so as to limit or undermine" according to a dictionary. Thus, our second amendment right is being infringed. End of story; no ifs, ands, or buts. High cap mag ban is infringing 2A, "assault weapons" ban infringes 2A, shotgun ban infringes 2A. Even CCWs and permits for firearms infringes upon 2A. In NYC, you can't own a firearm in your own home without a permit. That DEFINITELY infringes 2A.

There's such thing as letter of the law v. spirit of the law, on the other hand. I feel as if the Antis are using the "Spirit" part to their advantage.

Last edited by QWi; 03-24-2013 at 1:03 PM..
Reply With Quote
  #14  
Old 03-24-2013, 1:32 PM
IVC's Avatar
IVC IVC is offline
I need a LIFE!!
 
Join Date: Jul 2010
Location: Temecula
Posts: 10,515
iTrader: 3 / 100%
Default

While an interesting academic topic, it's highly unlikely that the word games with "infringe" will have any effect in interpretation of the 2A.

The two main obstacles we've had with respect to wording were the interpretation of the preamble and the interpretation of "keep and bear" as a single phrase (from where we got the famous Scalia quote: It would be rather like saying "He filled and kicked the bucket" to mean "He filled the bucket and died." Grotesque.).
__________________
NRA Benefactor Member
Reply With Quote
  #15  
Old 03-24-2013, 1:37 PM
Tincon's Avatar
Tincon Tincon is offline
Mortuus Ergo Invictus
CGN Contributor - Lifetime
 
Join Date: Nov 2012
Posts: 5,067
iTrader: 2 / 100%
Default

It means to encroach upon.

Quote:
infringe (v.)
"to violate," from Latin infringere "to damage, break off, break, bruise," from in- "in" (see in- (2)) + frangere "to break" (see fraction). Meaning of "encroach" first recorded c.1760. Related: Infringed; infringing.
At this point however the question is which level of scrutiny courts should apply to potential violations.
__________________
My posts may contain general information related to the law, however, THEY ARE NOT LEGAL ADVICE AND I AM NOT A LAWYER. I recommend you consult a lawyer if you want legal advice. No attorney-client or confidential relationship exists or will be formed between myself and any other person on the basis of these posts. Pronouns I may use (such as "you" and "your") do NOT refer to any particular person under any circumstance.
Reply With Quote
  #16  
Old 03-24-2013, 1:52 PM
Red Right Hand's Avatar
Red Right Hand Red Right Hand is offline
Junior Member
 
Join Date: Mar 2013
Posts: 73
iTrader: 0 / 0%
Default

I think something must be wrong with my dictionary...

infringe |inˈfrinj|
verb [ trans. ]
• To take common sense measures in order to curb gun violence : his legal rights were being infringed to protect the children
DERIVATIVES
infringement noun
infringer noun
Reply With Quote
  #17  
Old 03-24-2013, 11:08 PM
spgripside's Avatar
spgripside spgripside is offline
Shall Not Be Infringed!
CGN Contributor - Lifetime
 
Join Date: Jan 2009
Posts: 267
iTrader: 1 / 100%
Default

Unfortunately, the right to keep and bear arms is not the only right being infringed by our current government.
__________________
Sean
Reply With Quote
  #18  
Old 03-24-2013, 11:27 PM
rgraham rgraham is offline
Member
 
Join Date: Dec 2012
Posts: 434
iTrader: 0 / 0%
Default

To me, it means that it shall not be encroached upon even to the slightest degree. It must be a pretty important word with a lot of meaning. I do not believe there is any other amendment with that word added to imply the extra emphasis.
Reply With Quote
  #19  
Old 03-25-2013, 12:12 AM
rm1911's Avatar
rm1911 rm1911 is offline
Veteran Member
 
Join Date: Jan 2013
Location: Soviet Socialist Republic of Kalifornia
Posts: 2,678
iTrader: 18 / 100%
Default

Quote:
Originally Posted by a-mp123 View Post
They're focusing on the most intransigent word in the whole amendment. The most malleable is "regulated", which is open to a very different modern interpretation than originally intended.
That is a troublesome word EXCEPT for the meaning. Well regulated as in regular. As opposed to irregular, uncertain, unusual. In other words it was expected you'd show up with the type and caliber in common use. Something that was regularly used. Duh!!

When they mean to have power to control they used the phrase "make laws". There was a clear difference and it would have been obvious to the authors.

That the words have different meanings today is irrelevant. Just as the fact the militia is not technically all able bodies males doesn't mean that there's no longer a 2A because it applies to militia duties.


Governors call out the Guard, not "all males capable of bearing arms". That change no more abrogates the 2A any more than does cell phone transmissions going over "public" airspace give the government right to eavesdrop. Privacy still holds and courts have held this. You privacy extends outside the home as well as in. So tell the lefties that you know maybe their precious privacy rights are open to a "modern" interpretation. Or maybe torture, you know, the whole water boarding thing!! Watch them squirm.
__________________
NRA Life Member since 1990

They're not liberals, they're leftists. Please don't use the former for the latter. Liberals are Locke, Jefferson, Burke, Hayek. Leftists are progressives, Prussian state-socialists, fascists. Liberals stand against the state and unequivocally support liberty. Leftists support state tyranny.

Reply With Quote
  #20  
Old 04-28-2013, 7:15 PM
knucklehead0202 knucklehead0202 is offline
Veteran Member
 
Join Date: Aug 2008
Location: Whittier, East LA/North OC county
Posts: 3,871
iTrader: 19 / 100%
Default

abe lincoln killed more americans than any other president. still think he's great? there's a different way to interpret just about anything. especially given the gift of BS(gab) and being able to vote yourself pay raises, etc. many historians have spoken of the finite life of democracy and so far they've all been pretty spot-on. our country is in the dying phase of it and has elected the perfect person to lead us to our ultimate demise....R.I.P. U.S.A. occasionally the constitution gets a shout-out but for the most part seems to be "undermined" "ignored" "infringed" or downright crapped on. what can we do about it? well, not much as it turns out, but our founding fathers sure did. they haven't made men like that in recent history, mostly a bunch of pushovers.
Reply With Quote
  #21  
Old 04-28-2013, 7:33 PM
OIFVet03's Avatar
OIFVet03 OIFVet03 is offline
Member
 
Join Date: Dec 2012
Location: Bay Area
Posts: 368
iTrader: 0 / 0%
Default

That's exactly what it means. Saying it doesn't mean that anymore is just something stupid liberals say.
__________________
Reply With Quote
  #22  
Old 04-28-2013, 8:09 PM
teetsjones's Avatar
teetsjones teetsjones is offline
CGN/CGSSA Contributor
CGN Contributor
 
Join Date: Apr 2013
Location: Shillbyville
Posts: 1,256
iTrader: 1 / 100%
Default

As I see it, The founding Fathers found it so important they made it the Second Amendment. With the Freedom to speak out against one's government the First. The Second sure as hell backs up the first and that's what has them so worried and enacting gun control.
Reply With Quote
  #23  
Old 04-28-2013, 8:09 PM
monk's Avatar
monk monk is offline
Veteran Member
 
Join Date: Jul 2011
Posts: 4,430
iTrader: 10 / 100%
Default

I'd figure this argument would be dead by now. SCOTUS has already said a right isn't unlimited. At least the 1st and the 2nd aren't. Which has terrifying implications for the rest of the amendments.
__________________


NRA Member
SAF Member


Quote:
A tyrant will always find a pretext for his tyranny.

Last edited by monk; 04-28-2013 at 11:16 PM..
Reply With Quote
  #24  
Old 04-28-2013, 10:15 PM
fiddletown's Avatar
fiddletown fiddletown is offline
Veteran Member
 
Join Date: Jun 2007
Location: San Francisco Bay Area
Posts: 3,829
iTrader: 1 / 100%
Default

Focusing on the definition of "infringed" is pretty much a pointless exercise. Here's roughly how things work:
  1. The Founding Fathers provided in the Constitution (Article III, Sections 1 and 2):
    Quote:
    Section 1. The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish....

    Section 2. The Judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution,...
  2. And thus disagreements concerning the application of the the Constitution to the resolution of particular disputes is the province of the federal courts. The exercise of judicial power and the deciding of cases arising under the Constitution necessarily involves interpreting and applying the Constitution to the circumstances of the matter in controversy in order to decide the dispute.

  3. And that is no doubt what the Founding Fathers would have expected. Many were lawyers. They were familiar with English Common Law (the basis of our legal system) and that for a long time it had been customary for the courts, under the Common Law and understood the exercise of judicial power in such terms.

  4. Any gun control or gun ban law enacted by Congress or by any State is subject to judicial challenge on constitutional grounds. That thus becomes "a case arising under [the] Constitution" and thus as the Founding Fathers provided a proper subject for the exercise of the judicial powers of the federal courts.

  5. 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.

  6. 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.

  7. There are three prongs to the strict scrutiny test, as follows:

    1. The regulation must be justified by a compelling governmental interest; and

    2. The law or policy must be narrowly tailored to achieve that goal or interest; and

    3. The law or policy must be the least restrictive means for achieving that interest (i. e., there cannot be a less restrictive way to effectively achieve the compelling government interest, but the test will not fail just because there is another method that is equally the least restrictive).

  8. 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.

  9. 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.

  10. For example, 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 compelling 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. And if someone’s religion required the practice of human sacrifice, he can not expect to successfully hide behind the First Amendment if prosecuted for murder (or assisting a suicide if the victim were willing).
__________________
"It is long been a principle of ours that one is no more armed because he has possession of a firearm than he is a musician because he owns a piano. There is no point in having a gun if you are not capable of using it skillfully." -- Jeff Cooper
Reply With Quote
  #25  
Old 04-28-2013, 10:25 PM
kaligaran's Avatar
kaligaran kaligaran is offline
CGN/CGSSA Contributor
CGN Contributor
 
Join Date: Dec 2011
Location: Bay Area
Posts: 4,808
iTrader: 6 / 100%
Default

Quote:
Originally Posted by a-mp123 View Post
They're focusing on the most intransigent word in the whole amendment. The most malleable is "regulated", which is open to a very different modern interpretation than originally intended.
The following are taken from the Oxford English Dictionary, and bracket in time the writing of the 2nd amendment:

1709: "If a liberal Education has formed in us well-regulated Appetites and worthy Inclinations."

1714: "The practice of all well-regulated courts of justice in the world."

1812: "The equation of time ... is the adjustment of the difference of time as shown by a well-regulated clock and a true sun dial."

1848: "A remissness for which I am sure every well-regulated person will blame the Mayor."

1862: "It appeared to her well-regulated mind, like a clandestine proceeding."

1894: "The newspaper, a never wanting adjunct to every well-regulated American embryo city."


Copy/pasted from http://www.constitution.org/cons/wellregu.htm
__________________
WTB: multiautomatic ghost gun with a .30-caliber clip to disperse with 30 bullets within half a second. Must include shoulder thing that goes up. Memberships/Affiliations: CERT, ARRL ARES, NRA Patron Member, HRC, CGN/CGSSA, Cal-FFL
Reply With Quote
  #26  
Old 04-28-2013, 11:42 PM
sholling's Avatar
sholling sholling is offline
CGN/CGSSA Contributor
CGN Contributor
 
Join Date: Sep 2007
Posts: 10,144
iTrader: 2 / 100%
Default

Quote:
Originally Posted by fiddletown View Post
And thus disagreements concerning the application of the the Constitution to the resolution of particular disputes is the province of the federal courts. The exercise of judicial power and the deciding of cases arising under the Constitution necessarily involves interpreting and applying the Constitution to the circumstances of the matter in controversy in order to decide the dispute.
Sadly this is a common misconception held by most products of the public schools and law schools . NOWHERE in the US Constitution do the founders grant the courts the position of supreme arbiter of what the constitution means, the power to reinterpret the meaning of the Constitution beyond what the words meant at the time of ratification, or the authority to grant the federal government a pass to violate the natural and constitutional rights of US citizens in furtherance of a perceived government interest, nor does it grant the court permission to put its past rulings on an authoritative pedestal above the written words of the supreme law of the land itself. Those are simply powers and conceits that the Supreme Court invented for itself early on and who's only sniff at legitimacy lay in court custom and the convenient escape that it allows for government to exceed or ignore the bounds of the US constitution. Sadly 300,000,000 Americans have been brainwashed to believe the legal fiction that whatever the Supreme Court says the constitution says is reality. I assure that even if the Supreme Court were to rule that the moon is made of green cheese - the moon would remain rocks and dirt because the green cheese ruling flies in the face of physical reality - just as the Slaughter House ruling voiding POI remains an unconstitutional ruling, as does Wickard - because they fly directly in the face of the written words of the US Constitution. Nowhere does the US Constitution say that Supreme Court precedent is the supreme law of the land, it says that the US Constitution is the supreme law of the land. Of course government has armies of police, and armies of soldiers that will enforce that fiction at gunpoint as long as the court goes along with blessing off one unconstitutional move after another that limits our rights.

It's partly because of the go along to get along nature of the court and the fiction that it is the only branch of government who's job is to enforce the US Constitution that we have congresses that rather than judge the constitutionality of proposals, instead take the spaghetti cook approach and throw every possible whacky idea into law and see what the court allows to stick. It's the job of all three braches of government to enforce the constitution. The job of the President to refuse to enforce laws that infringe on our rights, the job of congress to refuse to fund executive branch abuses of our rights, and the job of the courts to keep both in check by using its credibility with the people. That system is gone forever. The founders meant for a well armed citizenry to be the final check on all three. Not to rise up and be a mob over every little thing, but to be there for the day that congresses passes a law canceling future elections, and the president signs that bill into law, and the Supreme Court blesses it off as constitutional. Our political masters are doing their best to remove that last check on their power.

What will determine the future of our rights aren't well written briefs and beautiful arguments by lawyers, it will be the individual politics of the 9 justices and the concern of 1 or 2 of them about what the political class in Washington DC and the media will think of their decision. Unfortunately, they are unlikely to take note that a ruling against us will seriously damage what little is left of their credibility with the nearly half of the country that own arms and live in red states, or take note that the Heller decision brought huge bump in their public esteem.
__________________
"Government is the great fiction, through which everybody endeavors to live at the expense of everybody else." --FREDERIC BASTIAT--

Proud Life Member: National Rifle Association and the Second Amendment Foundation.

Disappointed Life Member: California Rifle & Pistol Association

Last edited by sholling; 04-29-2013 at 1:51 AM..
Reply With Quote
  #27  
Old 04-29-2013, 3:45 AM
fiddletown's Avatar
fiddletown fiddletown is offline
Veteran Member
 
Join Date: Jun 2007
Location: San Francisco Bay Area
Posts: 3,829
iTrader: 1 / 100%
Default

Quote:
Originally Posted by sholling View Post
Sadly this is a common misconception held by most products of the public schools and law schools . NOWHERE in the US Constitution do the founders grant the courts the position of supreme arbiter of what the constitution means, the power to reinterpret the meaning of the Constitution...
Enjoy your stay on Fantasy Island, but that is not the way things are in the real world.

Quote:
Originally Posted by sholling View Post
...Those are simply powers and conceits that the Supreme Court invented for itself early on...
And your implied belief that you know the true application of the Constitution is a power and conceit invented by you for yourself.
  1. As noted above, the Founding Fathers in the Constitution expressly delegated the judicial power of the United States to the federal courts and expressly authorized the federal courts to exercise that judicial power in, among other things, deciding cases arising under the Constitution. Many of the Founding Fathers were lawyers and understood what the exercise of judicial power meant.

  2. The exercise of judicial power and the deciding of cases arising under the Constitution necessarily involves interpreting and applying the Constitution to the circumstances of the matter in controversy in order to decide the dispute.

  3. And, as Chief Justice John Marshall wrote in the decision in Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803), emphasis added:
    Quote:
    ....It is emphatically the province and duty of the Judicial Department [the judicial branch] to say what the law is. Those who apply the rule to particular cases must, of necessity, expound and interpret that rule. If two laws conflict with each other, the Courts must decide on the operation of each.

    So, if a law [e.g., a statute or treaty] be in opposition to the Constitution, if both the law and the Constitution apply to a particular case, so that the Court must either decide that case conformably to the law, disregarding the Constitution, or conformably to the Constitution, disregarding the law, the Court must determine which of these conflicting rules governs the case. This is of the very essence of judicial duty. If, then, the Courts are to regard the Constitution, and the Constitution is superior to any ordinary act of the Legislature, the Constitution, and not such ordinary act, must govern the case to which they both apply.....
  4. Note also that many of the Founding Fathers (the delegates to the Constitutional Convention who signed the Constitution) were lawyers. They were familiar with English Common Law (the basis of out legal system) and that for a long time it had been customary for the courts, under the Common Law, to consider the validity of such matters as the Acts of Parliament and the actions of the Crown under the rather amorphous collection of statutes, court judgments, treaties, etc., that became understood in the Common Law to be the English Constitution. And thus they also understood the workings of the Common Law process, what the exercise of judicial power meant and entailed and how the doctrine of state decisis applies in a Common Law legal system. (And English cases continued to be cited by courts of the United States for many years after Independence.)

    1. In its ruling in Marbury the Supreme Court was merely exercising its explicit authority given it in the Constitution to exercise judicial power to decide cases arising under the Constitution. In doing so and reaching its decision in Marbury it was applying established Common Law principles -- just as courts were, and are, expected to do.

    2. And as Marshall pointed out, to decide the matter in Marbury the Court had to either sustain an act of Congress or conclude that the act of Congress was contrary to the Constitution, and thus sustain the Constitution. Either the act of Congress was valid, yielding one result, or it was invalid as conflicting with the Constitution, yielding a different result.

    3. In other words, the Court could not, in Marbury, decide the case without choosing either a law enacted by Congress or the Constitution.

    4. And without judicial review under the Constitution of acts of Congress or other actions of public officials, what would be the remedy for such a law or action that one believed was repugnant under the Constitution? Do we have a civil war over every disagreement about the constitutionality of a law? Does each person get to decide for himself whether a law is constitutional and therefore whether to abide by it?

  5. And while John Marshall may not have been a Founding Father, he wasn't at the Constitutional Convention, he should at least be entitled to be considered a founding uncle. He was a delegate to the Virginia Convention that would ratify or reject the Constitution and, together with James Madison and Edmund Randolf, led the fight for ratification.


Quote:
Originally Posted by sholling View Post
...Sadly 300,000,000 Americans have been brainwashed to believe the legal fiction that whatever the Supreme Court says the constitution says is reality...
On the other hand the opinions of courts on matters of law affect the lives and property of real people in the real world. Your opinion on such things and $2.00 will get you a cup of coffee at Starbucks.


Quote:
Originally Posted by sholling View Post
...I assure that even if the Supreme Court were to rule that the moon is made of green cheese - the moon would remain rocks and dirt ....
When the Supreme Court so rules we can discuss it. Until then it's just your usual straw man argument.


Quote:
Originally Posted by sholling View Post
...It's partly because of the go along to get along nature of the court and the fiction that it is the only branch of government who's job is to enforce the US Constitution that we have congresses that rather than judge the constitutionality of proposals,...
And now you denigrate the legacy of the Founding Fathers -- 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.

Quote:
Originally Posted by sholling View Post
...The founders meant for a well armed citizenry to be the final check on all three...
And that is your solution? History bears out is that revolution as a mechanism for promoting freedom has a really lousy track record.

To illustrate that we of course have the French Revolution. We also have the Paris Commune of 1870. How about the Russian Revolution? The Chinese Revolution that gave us Mao, perhaps? How about the ouster of Basitsa in Cuba? Pol Pot in Cambodia? Anyone know what's happening in what used to be Burma? And let's not forget Iran. Then there have been the various revolutions, often protracted, taking place with dismaying regularity in one third world country or another. The vast majority of revolutions wind up simply replacing one despot with another.

It's as if there is something inherent in the nature of a revolution that seems to most often yield a bad result. The American Revolution was unique.

Quote:
Originally Posted by sholling View Post
...Unfortunately, they are unlikely to take note that a ruling against us will seriously damage what little is left of their credibility with the nearly half of the country that own arms and live in red states, or take note that the Heller decision brought huge bump in their public esteem.
Phooey!

Whenever a court makes a major decision that one disagrees with, the judicial system is broken and the judges corrupt. Whenever a court makes a major decision that one agrees with, the judges are great scholars (except any dissenters, who are corrupt), and our courts are the last bulwark against the machination of the political toadies bought and paid for by special interests.

There has been, and probably always will be, a huge negative reaction by a large number of people to every important to the pubic Supreme Court decision. There are plenty of folks who loved Roe v. Wade and hated Heller, and perhaps as many who hated Roe v. Wade and loved Heller.

Most of the time when folks call a decision of a court a bad decision, it isn't really because it didn't comport with the law and precedent. Most people tend to think a court decision is a bad decision because it did not achieve the result they wanted.
__________________
"It is long been a principle of ours that one is no more armed because he has possession of a firearm than he is a musician because he owns a piano. There is no point in having a gun if you are not capable of using it skillfully." -- Jeff Cooper
Reply With Quote
  #28  
Old 04-29-2013, 6:40 AM
adrenaline's Avatar
adrenaline adrenaline is offline
CGN/CGSSA Contributor
CGN Contributor
 
Join Date: Jun 2010
Location: Sacramento
Posts: 1,422
iTrader: 3 / 100%
Default

Quote:
Originally Posted by monk View Post
I'd figure this argument would be dead by now. SCOTUS has already said a right isn't unlimited. At least the 1st and the 2nd aren't. Which has terrifying implications for the rest of the amendments.
I agree. You see the Heller decision shouldn't have been interpreted that way in my humble opinion. The 2nd Amendment doesn't guarantee and individual's right....the 9th Amendment would cover that.

The true intent of the 2nd Amendment was to ensure that we would have a militia (of and by the people - citizenry....not just the military) and that there would be no restrictions on the right to arms (any kind). How silly would it be to tell a fighting force that there are limitations to the arms they can bear.

Instead they say the concept of a citizen militia isn't valid today and that the 2nd Amendment really pertains to the individual. However, an individual would not NEED access to military grade weaponry....there are limitations to an individual's right. Most people would agree to that (when focusing on an individual's right). I wouldn't....and most of you gunners wouldn't....but almost all anti-gun and even some pro-gun individuals would agree that an individual would need restrictions.
__________________


"I know not what course others may take; but as for me, give me liberty or give me death!"- Patrick Henry.

Our Founders Views Regarding the 2nd Amendment - Right to Keep and Bear Arms
Reply With Quote
  #29  
Old 04-29-2013, 7:19 AM
LuvLRBs LuvLRBs is offline
Senior Member
 
Join Date: Nov 2012
Location: San Diego
Posts: 565
iTrader: 9 / 100%
Default

I hear the term "public safety necessity" a lot in conjunction with the "shall not infringe". The former seems to negate the latter, or at least as far as gun control. So I guess my constitutional question is where in the constitution is the public safety reference and how is it used?
Reply With Quote
  #30  
Old 04-29-2013, 8:35 AM
Tyrone's Avatar
Tyrone Tyrone is offline
Member
CGN Contributor - Lifetime
 
Join Date: Dec 2008
Location: East Bay, SF Bay Area
Posts: 266
iTrader: 6 / 100%
Default

Quote:
Focusing on the definition of "infringed" is pretty much a pointless exercise.
I disagree. The first aspect of the rulings in Heller and McDonald was to respectively focus on what the RTKBA means and whether such meaning is applicable to the states. One must first understand the meaning and scope of the right before determining whether such right is being infringed. In this regard, after defining what the right means, both Heller & McDonald were easy decisions because the right was outright denied. Under almost any definition denial of a right equates with infringement of that right. What has yet to be tested is the breadth or lack thereof of what it means to infringe upon a right. Does only mean outright denial or does it include frustration of that right similar to the "chilling effect" found unconstitutional in 1st Amdt jurisprudence. To illustrate, does limiting the amount of rounds a magazine can legally hold "infringe" on the 2nd Amdt RTKBA? Arguably such restriction does not outright deny use of an AR-15 so the antis would say no infringement. If infringement is broader than outright denial, which I believe it is by any straight-faced interpretation, limiting the amount of rounds in a magazine does arguably frustrate and limit the purpose of self-defense. By extension, with the broader definition, if a standard 30 round AR-15 magazine is seen as a key component to that firearm and a reason why citizens would purchase such firearm, restricting the magazine would arguable constitute restriction of the actual firearm. (An AR-15 with a 10 round magazine is not really an AR-15 type argument). The chilling effect comparison IMHO is huge given the onslaught of legislation, particularly in CA, whereby the real intent of the law is to dissuade, ostracize, and make as difficult as possible the exercise of 2nd Amdt rights. This has everything to do with the question of what "infringed" means in the context of the 2nd Amdt.

Quote:
NOWHERE in the US Constitution do the founders grant the courts the position of supreme arbiter of what the constitution means, the power to reinterpret the meaning of the Constitution beyond what the words meant at the time of ratification, or the authority to grant the federal government a pass to violate the natural and constitutional rights of US citizens in furtherance of a perceived government interest, nor does it grant the court permission to put its past rulings on an authoritative pedestal above the written words of the supreme law of the land itself.
I do not speak for Sholling, but not only is he technically correct in terms of what is actually written in the Constitution, but he also is correct in intent and spirit as the import of the quote (at least to me) is that the Supreme Court doesn't have the right to rewrite or interpret of original meaning out of the Constitution. On the first point, the power of judicial review, is NOT found directly in the Constitution. That it is not here, however, does not mean that I do not agree with the decision of John Marshall in Marbury. Both the Federalist papers and common understanding of judicial role at the time provided for the power of judicial review. With this said, the import that I took from the quote and is actively discussed today in terms of a Living Constitution versus Original Intent, is whether the Court has power to change meanings/concepts or interpret or apply a law in such a way that it does not comport with the Constitution approve of actions as Constitutional that are beyond the reach of federal or state power. In this regard, Sholling is absolutely correct and is not "living in fantasy land."

The idea of a Living Constitution has been bastardized. It used to mean, and I agreed with the idea, that the Constitution could be amended to change with the times if necessary. In this sense it could endure forever. However, because it is intentionally by design difficult to amend, those who wish to use the govt as tool for social change were frustrated by restrictions so imposed. Thus, the term Living Constitution has now come to mean that the definitions and interpretations of the document should change as times and societies change. This is horrific and if implemented would truly mean that the Constitution has no meaning except what any particular body says at any particular time. This not only undermines the Constitution but undermines the premise of and rule of law. That we have judges that state we should be looking to other country's constitutions and interpretations (with the exception of English common and statutory law for historical context) is outrageous. Is it a reality that we have to deal with, yes. But, it is a direct affront to our liberty and system of government.

Quote:
Whenever a court makes a major decision that one disagrees with, the judicial system is broken and the judges corrupt. Whenever a court makes a major decision that one agrees with, the judges are great scholars (except any dissenters, who are corrupt), and our courts are the last bulwark against the machination of the political toadies bought and paid for by special interests.

There has been, and probably always will be, a huge negative reaction by a large number of people to every important to the pubic Supreme Court decision. There are plenty of folks who loved Roe v. Wade and hated Heller, and perhaps as many who hated Roe v. Wade and loved Heller.

Most of the time when folks call a decision of a court a bad decision, it isn't really because it didn't comport with the law and precedent. Most people tend to think a court decision is a bad decision because it did not achieve the result they wanted.
This is a cynical oversimplification of the problem. Everything is not grey and there are rulings that are correct/incorrect regardless of whether one sides so wants a different conclusion. The examples of Wickard v. Filburn and the Slaughterhouse Cases are directly on point. The expansive definition of the commerce clause under Wickard is prime example of judicial activism and probably political cowering during the new deal. Similarly, the Slaughterhouse cases had the effective result of reading the Privileges and Immunities clause out of the Constitution. This simply is wrong. In this regard, Federalists that argued against including a list of rights were correct that others would try to read that list as inclusive and that everything else was up for grabs in terms of govt regulation despite the protections of the 9th and 10th Amdts.
__________________
Malo periculosam, libertatem quam quietam servitutem.

Last edited by Tyrone; 04-29-2013 at 8:37 AM..
Reply With Quote
  #31  
Old 04-29-2013, 9:35 AM
fiddletown's Avatar
fiddletown fiddletown is offline
Veteran Member
 
Join Date: Jun 2007
Location: San Francisco Bay Area
Posts: 3,829
iTrader: 1 / 100%
Default

Quote:
Originally Posted by Tyrone View Post
Quote:
Focusing on the definition of "infringed" is pretty much a pointless exercise.
I disagree. The first aspect of the rulings in Heller and McDonald was to respectively focus on what the RTKBA means and whether such meaning is applicable to the states. One must first understand the meaning and scope of the right before determining whether such right is being infringed...
You can certainly disagree, but Heller clearly acknowledged that some regulation of the RKBA would be sustained -- both by pointing our historical examples of limitations found acceptable by courts and noting that the decision should not be read as casting doubt on certain current regulation.

As existing regulations continues to be litigated, I strongly suspect that they will be tested using thus far accepted doctrine applicable to the examination of regulation of constitutionally protected rights rather than any fine parsing of "shall not be infringed." We'll see.


Quote:
Originally Posted by Tyrone View Post
....Does only mean outright denial or does it include frustration of that right similar to the "chilling effect" found unconstitutional in 1st Amdt jurisprudence. To illustrate, does limiting the amount of rounds a magazine can legally hold "infringe" on the 2nd Amdt RTKBA?....
You might believe that, but on what basis? Has any court thus far looked at any question of that sort in such terms. For example, in what might be something of a tour de force, the Seventh Circuit struck down Illinois' draconian limitations on carrying a gun outside the home without mentioning the words "infringe" or "infringed", except in actually quoting the Second Amendment (Moore v Madigan, Nos. 12-1269, 12-1788, Seventh Circuit, 2012).

Quote:
Originally Posted by Tyrone View Post
...I do not speak for Sholling, but not only is he technically correct in terms of what is actually written in the Constitution, but he also is correct in intent and spirit as the import of the quote (at least to me) is that the Supreme Court doesn't have the right to rewrite or interpret of original meaning out of the Constitution....
That's very nice, but neither you nor he has the exclusive knowledge of what that is. There have been, are, and will continue to be disagreements about what the Constitution means and how it applies in particular application to particular situations. And those disagreements are the province of of the federal courts to resolve through the exercise of judicial power as assigned to them by the Founding Fathers in the Constitution.

You might disagree with how, in a particular case, a court has done so. But once it has, things in the real world have been affected.

Quote:
Originally Posted by Tyrone View Post
...On the first point, the power of judicial review, is NOT found directly in the Constitution....
True enough. But as I've described it follows naturally and inexorably from the the Founding Fathers conferring on the federal courts the authority to exercise judicial power to decide cases arising under the Constitution.

Quote:
Originally Posted by Tyrone View Post
...whether the Court has power to change meanings/concepts or interpret or apply a law in such a way that it does not comport with the Constitution approve of actions as Constitutional that are beyond the reach of federal or state power. In this regard, Sholling is absolutely correct and is not "living in fantasy land."...
But again there has been, are and will be disagreement about whether or not in a particular case the courts have thus strayed. And in that connection, neither your view, nor his, will really have any impact in the real world.

Quote:
Originally Posted by Tyrone View Post
...Everything is not grey and there are rulings that are correct/incorrect regardless of whether one sides so wants a different conclusion. The examples of Wickard v. Filburn and the Slaughterhouse Cases are directly on point. The expansive definition of the commerce clause under Wickard is prime example of judicial activism and probably political cowering during the new deal. Similarly, the Slaughterhouse cases had the effective result of reading the Privileges and Immunities clause out of the Constitution. This simply is wrong....
Whether or not you think those ruling are correct is irrelevant. They are still the law. No doubt others who didn't like Roe have bases upon which to challenge the correctness of that ruling, just as those who object to Heller find reason to call that decision incorrect. But all those decisions remain the law until reversed or unless in future cases arguments supporting distinguishing, narrowing or clarifying those cases are sustained.

We took a shot at the Slaughterhouse cases in McDonald but didn't get anywhere (except with Justice Thomas), so it's well that we were able to also argue Due Process in parallel. But maybe someday.

And maybe someday we'll see some narrowing of Wickline. But until such things come to pass, we'll have to live with, and work with, what we have.
__________________
"It is long been a principle of ours that one is no more armed because he has possession of a firearm than he is a musician because he owns a piano. There is no point in having a gun if you are not capable of using it skillfully." -- Jeff Cooper
Reply With Quote
  #32  
Old 04-29-2013, 9:38 AM
supersonic's Avatar
supersonic supersonic is offline
Calguns Addict
 
Join Date: May 2007
Location: Sactown, Sacramento, Sac, Etc....
Posts: 5,612
iTrader: 160 / 100%
Default


in·fringe
[in-frinj] Show IPA verb, in·fringed, in·fring·ing.
verb (used with object)
1.
to commit a breach or infraction of; violate or transgress: to infringe a copyright; to infringe a rule.
verb (used without object)
2.
to encroach or trespass (usually followed by on or upon ): Don't infringe on his privacy.


(From dictionary.com) http://dictionary.reference.com/browse/infringe?s=t
__________________
"HAMMER OF JUSTICE CRUSHES YEE!"



*FACTORY-CERTIFIED ARMORER IN SACRAMENTO*http://www.calguns.net/calgunforum/s...d.php?t=393331 GUNS 4 SALE: http://www.calguns.net/calgunforum/s...d.php?t=923745 WILSON COMBAT MAGS------ http://www.calguns.net/calgunforum/s...d.php?t=928518
Reply With Quote
  #33  
Old 04-29-2013, 10:03 AM
ap3572001 ap3572001 is offline
Calguns Addict
 
Join Date: Jun 2007
Location: San Francisco/East Bay
Posts: 5,143
iTrader: 46 / 96%
Default

infringe is good one....

I can't speak for everyone here, but on one hand just because I can't have a a true M4 or a silenced MP5, I can feel that my 2A rights are infringed.

On another hand a person likes to carry a five shot revolver (with CCW) and has a shotgun and a hunting rifle in the house, may feel just fine about their 2A rights, EVEN IF THAT WAS ALL THAT THEY COULD OWN.

Am I right ? Or is He right?

Would it be better if we had all the semi-automatic rifles and std magazines available here in Ca but DID NOT have a provision for a CCW in most of the state? Or we had a state SHALL ISSUE CCW with no restrictions and NO semi-automatic rifles and std magazines?

There are places in the world where a person (if they really want to ) can get a licence to carry a compact handgun but military style rifles are not allowed.

There are also places where You can have a collection of exotic weapoons but CAN NOT leaglly carry any firearms.

WHo do You think has it better?

To some, ANY control of the firearms by the government can mean an infringement.

There also could be an argument about WHAT will do You more good, a legally carried Clock 26 (via shall issue ccw) or an AK with a 30rd magazine in the safe at home.....

If there were no infringement at all, You could have both.

Last edited by ap3572001; 04-29-2013 at 10:18 AM..
Reply With Quote
  #34  
Old 04-29-2013, 10:42 AM
sholling's Avatar
sholling sholling is offline
CGN/CGSSA Contributor
CGN Contributor
 
Join Date: Sep 2007
Posts: 10,144
iTrader: 2 / 100%
Default

Quote:
Originally Posted by fiddletown View Post
Enjoy your stay on Fantasy Island, but that is not the way things are in the real world.[

And your implied belief that you know the true application of the Constitution is a power and conceit invented by you for yourself.
It would appear that you've fallen for the status quo hook line and sinker even while more of our freedom slips through our fingers year in and year out.

Quote:
What would be the remedy for such a law or action that one believed was repugnant under the Constitution? Do we have a civil war over every disagreement about the constitutionality of a law?
I hope that another civil war will never be necessary, but I suspect that it will eventually come to that if DC and the court do not come to their senses and roll back the reach of the federal government, and the fault for that situation is the gutting of the 10th Amendment by the court during the New Deal. Thankfully we're not at that point yet, but the 2nd Amendment was meant as the final check on the power of governments. You may not like that concept and may prefer to think it was meant for target shooting and bird hunting but that's not what the founders had in mind other than as a side benefit.

Quote:
On the other hand the opinions of courts on matters of law affect the lives and property of real people in the real world. Your opinion on such things and $2.00 will get you a cup of coffee at Starbucks.
The opinions of an armed robbery victim rarely effect the actions of armed robbers either. The fact remains that the Supreme Court has aided and abetted the theft of our individual rights and property rights for a century beginning (at least) with the Slaughter House vandalism of the 14th Amendment POI clause. That sir was a green cheese ruling. You can try to dress it up as anything you like, but that was the US Supreme court ripping up a section of the constitution that was politically and socially unpalatable to them. Gura gave the modern court the chance to correct that travesty and recover credibility but as displayed during oral arguments the judicial conceit that court precedent so trumps the written word of the US Constitution that they wouldn't even consider addressing the concept. The number of cases where SCOTUS has blown off individual and property rights and allowed unconstitutional expansion of the reach of the federal government are legion. The only legitimate mechanism for reducing individual freedoms or expanding the power of the government is the amendment process, and a court decision that flies in the face of the general public meaning (at ratification) of the written word of the US Constitution is on it's face illegitimate.

Quote:
And that is your solution? History bears out is that revolution as a mechanism for promoting freedom has a really lousy track record.
Not my solution, that's the founding fathers' solution. I would hope that it never becomes necessary but as anybody with their eyes open can see it is getting closer every year and when and if it happens it will be led by state governments rallying their citizens and not by individuals shouting "Wolverines" from mountain tops. I sincerely hope that it never comes to that but I have no faith that congress will cease and desist its ongoing and endless power grab, and very little faith that the Supreme Court will do its job and reinvigorate the nearly dead 10th Amendment.

Quote:
Whenever a court makes a major decision that one disagrees with, the judicial system is broken and the judges corrupt. Whenever a court makes a major decision that one agrees with, the judges are great scholars (except any dissenters, who are corrupt), and our courts are the last bulwark against the machination of the political toadies bought and paid for by special interests.
The fact remains that the court has crapped on the US Constitution in many cases including the Slaughter House Cases, Wickard, and many others. One can either take (assume) the position and opine "I may not like it but but the court has spoken", or we as citizens can stand up on our hind legs and rub their noses in the fact that we know that they are violating our rights and don't like it one bit. The fact that they get away with aiding and abetting the theft of our rights does not make the actions of a court any less wrong that than the actions of a bank robber or child molester that is never caught and forced to end their wicked ways.

Quote:
Most of the time when folks call a decision of a court a bad decision, it isn't really because it didn't comport with the law and precedent. Most people tend to think a court decision is a bad decision because it did not achieve the result they wanted.
Again the judicial conceit of precedent trumping the constitution. The Constitution did not grant the Court the right to carve out exceptions to the limits on government power, or to pencil out sections of the Constitution that they find politically or socially unpalatable, or to decide to balance the value of enumerated rights of citizens against the whims and utopian dreams of legislatures.

Unfortunately 2nd Amendment case law will not be decided by the constitutional instruction "shall not be infringed", but by a court determination of how much may government infringe upon our rights. I suspect that the decision will be just short of complete infringement. A decision based not on the written words of the constitution but on the personal politics, prejudices, and conceits of the justices.
__________________
"Government is the great fiction, through which everybody endeavors to live at the expense of everybody else." --FREDERIC BASTIAT--

Proud Life Member: National Rifle Association and the Second Amendment Foundation.

Disappointed Life Member: California Rifle & Pistol Association

Last edited by sholling; 04-29-2013 at 11:06 AM..
Reply With Quote
  #35  
Old 04-29-2013, 10:57 AM
curtisfong's Avatar
curtisfong curtisfong is offline
Veteran Member
 
Join Date: Jan 2009
Posts: 4,875
iTrader: 9 / 100%
Default

Quote:
Originally Posted by sholling View Post
The fact remains that the court has crapped on the US Constitution in many cases including the Slaughter House Cases, Wickard, and many others. One can either take (assume) the position and opine "I may not like it but but the court has spoken", or we as citizens can stand up on our hind legs and rub their noses in the fact that we know that they are violating our rights and don't like it one bit.
You have zero alternative. The constitution seeks to limit the damage that the legislative branch can do to our inalienable rights, but the *only* legal remedy (and implementation of that limitation) exists in the courts. Period.

There is always violent revolution, of course.

Quote:
.. the actions of a bank robber or child molester that is never caught and forced to end their wicked ways.
And this attitude is what leads directly to a larger, more invasive, more intrusive government.

Our freedoms always come at the cost of criminals occasionally going unpunished. A citizen that demands all criminals be punished is a citizen who demands a tyrannical government....
__________________
The Rifle on the Wall

"“[S]cientific proof” of both gun-rights and gun-control theories “is very hard to get”; therefore, requiring “some substantial scientific proof to show that a [firearm] law will indeed substantially reduce crime and injury” is tantamount to applying strict scrutiny to, and almost certainly will lead to invalidation of, the law." - Kamela Harris

Lawyers and their Stockholm Syndrome
Reply With Quote
  #36  
Old 04-29-2013, 11:10 AM
fiddletown's Avatar
fiddletown fiddletown is offline
Veteran Member
 
Join Date: Jun 2007
Location: San Francisco Bay Area
Posts: 3,829
iTrader: 1 / 100%
Default

Quote:
Originally Posted by sholling View Post
Quote:
Enjoy your stay on Fantasy Island, but that is not the way things are in the real world.

And your implied belief that you know the true application of the Constitution is a power and conceit invented by you for yourself.
It would appear that you've fallen for the status quo hook line and sinker even while more of our freedom slips through our fingers year in and year out....
Nope, I live in the real world and understand how things must be done in the real world. I've made a career of achieving desired results in the legal system for real clients in the real world, and I did not do so by fantasizing about how the legal system ought to work.

As for freedom slipping away, you will not hold on to it by your fantasizing about how the legal and political systems ought to work. The legal teams that gave us Heller and McDonald achieved their results by understanding how things actually are, rather than how you might wish they were.

Quote:
Originally Posted by sholling View Post
...The fact remains that the Supreme Court has aided and abetted the theft of our individual rights and property rights for a century beginning (at least) with the Slaughter House vandalism of the 14th Amendment POI clause. That sir was a green cheese ruling. You can try to dress it up as anything you like, but that was the US Supreme court ripping up a section of the constitution that was politically and socially unpalatable to them. ....
Whatever. You're welcome to try to fix things. Let us know how that works out.


Quote:
Originally Posted by sholling View Post
...A court decision that flies in the face of the general public meaning (at ratification) of the written word of the US Constitution is on it's face illegitimate....
In your view. So you would have us submit to a tyranny of "the sholling."

Quote:
Originally Posted by sholling View Post
...Again the judicial conceit of precedent trumping the constitution. The Constitution did not grant the Court the right to carve out exceptions to the limits on government power,...
More of your own conceit.

Quote:
Originally Posted by sholling View Post
...2nd Amendment case law will not be decided by the constitutional instruction "shall not be infringed", ...
That is correct. You don't like it, but that doesn't change anything.

You're unhappy that reality isn't as you would wish it to be.
__________________
"It is long been a principle of ours that one is no more armed because he has possession of a firearm than he is a musician because he owns a piano. There is no point in having a gun if you are not capable of using it skillfully." -- Jeff Cooper
Reply With Quote
  #37  
Old 04-29-2013, 11:45 AM
sholling's Avatar
sholling sholling is offline
CGN/CGSSA Contributor
CGN Contributor
 
Join Date: Sep 2007
Posts: 10,144
iTrader: 2 / 100%
Default

Quote:
Originally Posted by curtisfong View Post
You have zero alternative. The constitution seeks to limit the damage that the legislative branch can do to our inalienable rights, but the *only* legal remedy (and implementation of that limitation) exists in the courts. Period.

There is always violent revolution, of course.
It need never get to that. Just as Obama and the media shamed Roberts into tying logic into knots to find a way to declare Obamacare constitutional, the public can let the court know that it considers bogus rulings little more than shameless hot air enforced at gunpoint. The Roberts court was well aware that the public has little respect for the court and folded inorder to protect the court from a public beating by the media. We need to be just as willing to shame the court loudly and continuously should they rule against our constitutional rights. The court's entire moral authority flows from the trust that the American people place in the court to faithfully protect their constitutional rights. A trust that is eroding after the Obamacare decision.

http://www.brookings.edu/research/op...ernance-wittes

Quote:
And this attitude is what leads directly to a larger, more invasive, more intrusive government.

Our freedoms always come at the cost of criminals occasionally going unpunished. A citizen that demands all criminals be punished is a citizen who demands a tyrannical government....
You completely missed my point. Go back and reread what I wrote. My point was that a branch of government believes that it may continue to act in violation of the law (the US constitution is the supreme law) because they've been able to get away with it, has no more moral authority to their "but nobody stopped me" argument than a priest or a coach that's molested kids for 30 years and then thinks it's ok because nobody stopped them.
__________________
"Government is the great fiction, through which everybody endeavors to live at the expense of everybody else." --FREDERIC BASTIAT--

Proud Life Member: National Rifle Association and the Second Amendment Foundation.

Disappointed Life Member: California Rifle & Pistol Association
Reply With Quote
  #38  
Old 04-29-2013, 11:53 AM
curtisfong's Avatar
curtisfong curtisfong is offline
Veteran Member
 
Join Date: Jan 2009
Posts: 4,875
iTrader: 9 / 100%
Default

Quote:
Originally Posted by sholling View Post
We need to be just as willing to shame the court loudly and continuously should they rule against our constitutional rights. The court's entire moral authority flows from the trust that the American people place in the court to faithfully protect their constitutional rights.
Insulating the courts from public opinion is not an accident. Our founding fathers did not trust public opinion (either the vocal minority, or the tyranny of the majority), because it is public opinion alone (corruption notwithstanding) which motivates a legislature to pass laws that violate inalienable rights. Halbrook et al know this. To that end, they marketed their idea of what the 2A should be directly to the legal community, whose opinion the courts DO care about.

Quote:
You completely missed my point.
I did not. I just chose to address a side effect of your stated opinion, and not the primary thrust of your comparison.

Quote:
.. a branch of government believes that it may continue to act in violation of the law (the US constitution is the supreme law) because they've been able to get away with it, has no more moral authority to their "but nobody stopped me" argument than a priest or a coach that's molested kids for 30 years and then thinks it's ok because nobody stopped them.
The difference is that there is legal way to punish a child molester. There is no legal recourse to punish a court that publishes a finding that the public (or anyone else) disagrees with.

Going down the "moral authority" path presents an ought/is problem that cannot be solved within the current structure of the Constitution.
__________________
The Rifle on the Wall

"“[S]cientific proof” of both gun-rights and gun-control theories “is very hard to get”; therefore, requiring “some substantial scientific proof to show that a [firearm] law will indeed substantially reduce crime and injury” is tantamount to applying strict scrutiny to, and almost certainly will lead to invalidation of, the law." - Kamela Harris

Lawyers and their Stockholm Syndrome

Last edited by curtisfong; 04-29-2013 at 12:00 PM..
Reply With Quote
  #39  
Old 04-29-2013, 11:55 AM
fiddletown's Avatar
fiddletown fiddletown is offline
Veteran Member
 
Join Date: Jun 2007
Location: San Francisco Bay Area
Posts: 3,829
iTrader: 1 / 100%
Default

Quote:
Originally Posted by sholling View Post
...Just as Obama and the media shamed Roberts into tying logic into knots to find a way to declare Obamacare constitutional, the public can let the court know that it considers bogus rulings little more than shameless hot air enforced at gunpoint. The Roberts court was well aware that the public has little respect for the court and folded inorder to protect the court from a public beating by the media....
Do you have any actually evidence to support that claim, and I hardly think that a six year old OpEd piece constitutes evidence. As Carl Sagan said, "Extraordinary claims require extraordinary evidence."
__________________
"It is long been a principle of ours that one is no more armed because he has possession of a firearm than he is a musician because he owns a piano. There is no point in having a gun if you are not capable of using it skillfully." -- Jeff Cooper
Reply With Quote
  #40  
Old 04-29-2013, 11:57 AM
sholling's Avatar
sholling sholling is offline
CGN/CGSSA Contributor
CGN Contributor
 
Join Date: Sep 2007
Posts: 10,144
iTrader: 2 / 100%
Default

Quote:
Originally Posted by fiddletown View Post
Quote:
Originally Posted by sholling
...2nd Amendment case law will not be decided by the constitutional instruction "shall not be infringed", ...
That is correct. You don't like it, but that doesn't change anything.

You're unhappy that reality isn't as you would wish it to be.
And your advice is to bend over and accept a good screwing with a smile and a thank you for your rapist because that's just how it is. I may not be able to prevent the rape of my rights but I refuse to quietly accept it or call it anything but what it is. I'll pass on your advice thank you, and scream loud and clear if and when the court blesses off an infringement of my rights.
__________________
"Government is the great fiction, through which everybody endeavors to live at the expense of everybody else." --FREDERIC BASTIAT--

Proud Life Member: National Rifle Association and the Second Amendment Foundation.

Disappointed Life Member: California Rifle & Pistol Association
Reply With Quote
Reply

Thread Tools
Display Modes

Posting Rules
You may not post new threads
You may not post replies
You may not post attachments
You may not edit your posts

BB code is On
Smilies are On
[IMG] code is On
HTML code is Off

Forum Jump



All times are GMT -8. The time now is 6:50 PM.




Powered by vBulletin® Version 3.8.9
Copyright ©2000 - 2016, vBulletin Solutions, Inc.
Proudly hosted by GeoVario the Premier 2A host.
Calguns.net, the 'Calguns' name and all associated variants and logos are ® Trademark and © Copyright 2002-2016, Calguns.net an Incorporated Company All Rights Reserved.