NRA is calling ATF to review the bump stock!!

[Ghost1958]

Being your opinion doesn't make it true or accurate. What you believe and what is true in real life in the real world aren't necessarily the same thing. And what you believe doesn't change what is true in real life in the real world.It appears that your opinion is based on at best a superficial view of things.

As such it's not worth much, and I don't plan to take it seriously.

I declined comment because I'm not going to do the research necessary to comment. And I'm certainly not going to accept your characterization of the events. You haven't shown yourself in the past to be a particularly insightful or reliable commentator on legal or political matters.

What our Constitution states and how it applies has been a matter for dispute almost as soon as the ink was dry. Hylton v. United States in 1796 appears to be the first major litigation involving a question of the interpretation and application of the Constitution. Then came Marbury v. Madison decided in 1803; and McCulloch v. Maryland was decided 10 years later, in 1813.

In the real world the Founding Fathers assigned the role of deciding what the Constitution means and how it applies to the federal courts (Article III, Sections 1 and 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. Many of the Founding Fathers were lawyers and well understood what the exercise of judicial power meant and entailed.

Thus if there is disagreement about whether a statute enacted by Congress applies to decide a controversy or the application of the statute is barred by the Constitution, the matter is one within the province of the federal courts to decide. As the Supreme Court ruled back in 1803 (Marbury v. Madison, 5 U.S. 137, 2 L. Ed. 60, 1 Cranch 137 (1803), 1 Cranch at 177 -- 178):

​

It's well settled law that under certain circumstance and to some extent a constitutionally protected right may be regulated. What those circumstance might be and the nature and extent of permissible regulation will be worked out by the courts. To do so, a court will consider, among other things, the nature of the right, the nature of the regulation, and the governmental purpose intended to be served.

For the purposes of illustration, let's consider the regulation of rights protected by the First Amendment. While the First Amendment protects freedom of speech, assembly and religion against laws that abridge those rights 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 regularly 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. See, for example:
  
  
  • Hill v Colorado, 530 U.S. 703, 120 S.Ct. 2480, 147 L.Ed.2d 597 (2000), in which the Court, in upholding a Colorado law restricting protesting, educational or counseling activities within 100 feet of the entrance to a health facility, noted:
    ​
    
    
  • Santa Monica Food Not Bombs v. Santa Monica, 450 F.3d 1022 (9th Cir., 2006) in which the court upheld a Santa Monica ordinance requiring a permit for public assemblies. In fact in Santa Monica Food Not Bombs the court specifically acknowledges that the ordinance may burden the protected right, noting, at pg 1038:
    ​
  
  
• In the leading case on prior restraint (Near v. State of Minnesota Olson, 283 U.S. 697, 51 S.Ct. 625, 75 L.Ed. 1357 (1931)) the Court in striking down a Minnesota statute allowing for the abatement, as a public nuisance, of malicious, scandalous and defamatory news analyzed in considerable detail and depth the scope and extent of the infringement of the freedom of press, the interests served and the availability of other and narrower remedies. And the Court then reached the conclusion that the statute went too far to be a permissible regulation.
  
  But nonetheless the Court also noted that certain interests, under certain circumstances would justify even prior restraint (Near, 283 U. S. 657, at 715 - 716):
  ​
  
  
• In the past, laws prohibiting polygamy have been upheld against challenges that they violate the right to free exercise of religion (Davis v. Beason, 133 U.S. 333, 10 S.Ct. 299, 33 L.Ed. 637 (1890)).

So in fact the reality is that rights protected by the Constitution may nonetheless be subject to some limited regulation. The foregoing discussion of First Amendment jurisprudence serves the limited purpose of demonstrating that the courts do permit limited regulation of a constitutionally protected right. There are numerous examples of laws sustained by the courts which abridge freedom of speech, freedom of assembly, freedom of association, and freedom of religion. And First Amendment jurisprudence also offers some clues as to how such regulations will be evaluated by the courts.

We can not expect, nor will we see, perfect correspondence between the regulation of rights protected by the First Amendment and the regulation of rights protected by the Second Amendment. First Amendment jurisprudence is quite mature at this point, but Second Amendment jurisprudence, in the wake of Heller, is in its infancy. However, we can expect some regulation of Second Amendment rights to be upheld by the courts.

With regard to any existing or possible future governmental actions which might be applied to limit, restrict or prohibit activities associated with the keeping and/or bearing of arms, here's essentially how things work:

1. Any governmental action limiting, restricting or prohibiting activities associated with the keeping and/or bearing of arms is subject to judicial challenge.
   
   
2. In the course of deciding Heller (District of Columbia v. Heller, 554 U. S. 570 (United States Supreme Court, 2008)) and McDonald (McDonald v. City of Chicago (Supreme Court, 2010, No. 08-1521)), the rulings made by the United States Supreme Court on matters of Constitutional Law, as necessary in making its decisions in those cases, are now binding precedent on all other courts. Now the Supreme Court has finally confirmed that (1) the Second Amendment describes an individual, and not a collective, right; and (2) that right is fundamental and applies against the States. This now lays the foundation for litigation to challenge other restrictions on the RKBA, and the rulings on matters of law necessarily made by the Supreme Court in Heller and McDonald will need to be followed by other courts in those cases.
   
   
3. There is judicial authority going back well before Heller and McDonald for the proposition that constitutionally protected rights are subject to limited regulation by government. Any such regulation must pass some level of scrutiny. The lowest level of scrutiny sometimes applied to such regulation, "rational basis", appears to now have been taken off the table, based on some language in McDonald. And since the Court in McDonald has explicitly characterized the right described by the Second Amendment as fundamental, there is some possibility that highest level of scrutiny, "strict scrutiny" will apply, at least to some issues.
   
   
4. The level of scrutiny between "rational basis" and "strict scrutiny" is "intermediate scrutiny." To satisfy the intermediate scrutiny test, it must be shown that the law or policy being challenged furthers an important government interest in a way substantially related to that interest.
   
   
5. Whichever level of scrutiny may apply, the government, state or federal, seeking to have the regulation sustained will have the burden of convincing a court (and in some cases, ultimately the Supreme Court) that the regulation is acceptable under the applicable level of scrutiny.
   
   
6. Second Amendment jurisprudence is still in its infancy. Until Heller just five years ago, it was still in doubt whether the Second Amendment would be found to describe an individual or collective right. Until McDonald just three years ago, the law was that the Second Amendment did not apply to the States (United States v. Cruikshank, 92 U.S. 542 (1876)). So the scope and extent of permissible regulation of rights described by the Second Amendment is still unclear.
   
   
7. The bottom line is that Second Amendment jurisprudence will need to mature over time as these sorts of issues get litigated.

There's our difference.
You because you were in it for 30 yrs believe that it's impossible for SCOTUS to violate the 2ndA.

They ruled themselves the power of judicial review long ago. A power not granted them by the cotus.

Thankfully a YUGE to borrow a phrase from the POTUS , lol, don't see it like lawyers and politicians do.
I know that scotus and gov has been violating the law of the land, the BOR, for 200 yrs.
Many others do also regardless if legaleeze mumbo jumbo attempts to muddy the water.

As to my being stupid to the what constitution says, or how things work, I'm not. I was heavily involved in getting the NRAs bill killed here last year.
Simply because SCOTUS says a violation of the bor, isn't a violation simply in truth and reality do not make it so.

King George I'd imagine was of the opinion that because he said so that's the way it would always be.
Didn't work out so well.

I really would appreciate it if when we have a discussion you would refrain from in so many words saying I'm to stupid to take seriously simply because you can here.
I've done no such to you.

 

[Ghost1958]

You'd think so, but life isn't that simple. Extension of that particular logic says that if there is infringement, then the whole point is moot.

I don't think that's the way to look at it.

Blaming the NRA for the 1934 NFA is particularly unfair, and inaccurate. As mentioned, at the time, the NRA was still only doing its original mission, to promote marksmanship and safety. NOBODY was paying attention to what was essentially the first national gun control law, which is why they got away with it.

The GCA 68 was a different matter, SOMETHING was going to pass, and the GCA had widespread support, mostly because the proponents of the bill were crafty and selective about what was in it. US gunmakers supported the bill, because, at the time, it was sold to them as a trade protection measure.

FAILURE of the NRA to stop ALL gun control measures does NOT equal endorsement or support.



Well, of course the NRA has always served the NRA, that's what they are there to do. Remember the NRA is NOT a public service organization, it's a private membership organization. Membership is open to all who pay dues. But they don't work for the public at large, or the public good, they work for the membership, and the good of the membership.

Are you a member??

and the idea that they could care less about gun rights is just laughable.

It actually is that simple. The entire COTUS is about limiting gov power. And protecting the individuals rights as stated in the BOR.
Those rights are expressly off limits to be interfered with. Precisely to prevent politics and voting majorities from violating them.

No I'm not a member of the nra for a long time now. The majority of gun owners aren't even if you accept the gov has any idea how many gun owners there are. Their guess is hilariously low.

But. The NRA is by any estimate very small compared to the number of gun owners.

With their history and right up including today their history of give a little get nothing it should not surprise they are small and now rapidly getting smaller.
To the NICS argument. A five day waiting period would have not affected most folks anyway because of private sales and would not have created a federal defecto gun registry.

If you think those records get destroyed as the law states think again.

 

[JohnKSa]

They ruled themselves the power of judicial review long ago. A power not granted them by the cotus.

When you make statements like this it makes it impossible to take anything else you say about the Supreme Court or the Constitution seriously.

If you're getting that out of the Constitution, then your interpretation of it is "remarkably unconventional". In the same way that a person would comment that interpreting darkness as being the same thing as light is a remarkably unconventional interpretation.

Strong opinions are not the same thing as fact and saying a thing does not make it true. A person can call darkness light, but when it comes time to read, they're still going to have to turn on the light like the rest of us.

You can claim that the Constitution doesn't grant the Supreme Court the power to decide cases having to do with the Constitution when it says: "The judicial Power of the United States, shall be vested in one supreme Court..." and "The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority;—to all Cases affecting Ambassadors, other public Ministers and Consuls;—to all Cases of admiralty and maritime Jurisdiction;—to Controversies to which the United States shall be a Party;—to Controversies between two or more States;—between a State and Citizens of another State;10 —between Citizens of different States, —between Citizens of the same State claiming Lands under Grants of different States, and between a State, or the Citizens thereof, and foreign States, Citizens or Subjects." but it's not a claim you're going to be able to support. It just isn't--the language is far too clear.

 

[Frank Ettin]

...They ruled themselves the power of judicial review long ago. A power not granted them by the cotus....

No. Judicial review is necessarily a consequence of the mandate under Article III, Section 2 of the Constitution that the federal court exercise the judicial power of the United States to decide cases arising under the Constitution. It's impossible to decide such cases without judicial review, and judicial review is necessarily a component of judicial power. Chief Justice Marshall explains in the snippet I quoted from Marbury.

In any case, and notwithstanding your opinions, I've outlined how things are in the real world in real life. We have over 200 years of precedent supporting judicial review. The opinions of the courts on matters of law affect things in the real world. Yours do not.

And the world will continue to go on about its business without regard to the way you think should be.

Those of us interested in furthering the RKBA need to have a solid grounding in reality. We must be able to deal with the real world on its terms. If we confuse what is with how we'd like things to be, we will get nowhere.

 

[armoredman]

May I also point out that the NRA ILA wasn't conceived until 1978, IIRC, which was when the NRA became far more active in legislative actions. I am a Life Member, as is my wife. I also support Gun Owners of America and Arizona Citizens Defense League.

 

[44 AMP]

To the NICS argument. A five day waiting period would have not affected most folks anyway because of private sales and would not have created a federal defecto gun registry.

A five day waiting period would have not affected most folks anyway....
A ban on bump-fire stocks would not affect most folks anyway....

There's a bit of similarity between those two lines, and a lot of difference.

That 5 day wait would have affected everyone desiring to purchase a new handgun, or any handgun from an FFL dealer. AND it would have overridden state laws where less than a 5 day wait was allowed.

At the time the law was proposed, my state already had a 3 day waiting period for handguns, which was waived if you had a concealed pistol permit.
The Brady waiting period would have overridden this, and removed the waiver.

When issues before Congress reach a certain point, Congress will pass something. It is inevitable. What gets passed is usually under the name of the issue as it was first brought up. But, under that name what the bill actually is and does can change hugely between what is initially proposed and what is finally passed.

because there absolutely was going to be some kind of "background check law" passed. You can't stop a flood, but you might be able to channel the flow and minimize the damage. Instead of a five day national wait, we got NO federal waiting period, and the "instant" check, done over the phone by the FFL. Because the NRA was willing to support that compromise, many still wail about how the NRA didn't defend the 2nd amendment, and betrayed us all.

Had the NRA not done so, I believe we would today have a national 5 day waiting period, and we would still have people wailing about how the NRA didn't defend the 2nd amendment, and betrayed us all.

I ask you, which of those situations is worse??

and, I just gotta ask...is " a federal defecto gun registry" a typo, or a pun???

 

[jrinne0430]

As for the NRA's actions, they certainly exposed the chasm among us and reinforced many people's skepticism of their existence. Those who did not trust the NRA now have more reason not to, some who were members have left, and others who where on the fence may tilt away (see comments on this site and others). I am a life member but no matter how I look at this, I cannot see the positive side of the NRA's actions. If anything, their comments encouraged more congressional members to sign on with ban movement.

 

[Bartholomew Roberts]

Well, kudos to Frank and 44AMP for saddling up your horse and tilting at the windmills. That poster was so riddled with inaccuracy and fake news that I couldn't muster the energy to even start addressing it...

In related news it seems Marion Hammer has sent a letter to board directors arguing that bump stocks should never have existed anyway and NRA must support bans on any type of accelerated rate of fire out of respect for the spirit of the 1986 ban. Also, there are "Trojan Horse members who are deliberately misinterpreting what NRA has said."

http://www.thetruthaboutguns.com/20...r-wanted-legal-machine-guns-bump-fire-stocks/

 

[Glenn E. Meyer]

As a side issue, Open Carry was not seen universally as a great idea in TX by many in the pro-gun community. Practically, all it accomplished was a wave of OC ban signs AND an increase in signs banning concealed carry (a net negative). It is rarely done anyway.

Don't want to divert from the main issue but that's how it happened and the consequences.

 

[Ghost1958]

A five day waiting period would have not affected most folks anyway....
A ban on bump-fire stocks would not affect most folks anyway....

There's a bit of similarity between those two lines, and a lot of difference.

That 5 day wait would have affected everyone desiring to purchase a new handgun, or any handgun from an FFL dealer. AND it would have overridden state laws where less than a 5 day wait was allowed.

At the time the law was proposed, my state already had a 3 day waiting period for handguns, which was waived if you had a concealed pistol permit.
The Brady waiting period would have overridden this, and removed the waiver.

When issues before Congress reach a certain point, Congress will pass something. It is inevitable. What gets passed is usually under the name of the issue as it was first brought up. But, under that name what the bill actually is and does can change hugely between what is initially proposed and what is finally passed.

because there absolutely was going to be some kind of "background check law" passed. You can't stop a flood, but you might be able to channel the flow and minimize the damage. Instead of a five day national wait, we got NO federal waiting period, and the "instant" check, done over the phone by the FFL. Because the NRA was willing to support that compromise, many still wail about how the NRA didn't defend the 2nd amendment, and betrayed us all.

Had the NRA not done so, I believe we would today have a national 5 day waiting period, and we would still have people wailing about how the NRA didn't defend the 2nd amendment, and betrayed us all.

I ask you, which of those situations is worse??

and, I just gotta ask...is " a federal defecto gun registry" a typo, or a pun???

Should have been defacto.

It was my phone substituting it's own version of what I want to type because it'd "smart".

Changes the meaning sometimes of what I wrote.

Kinda like has been done with the BOR.
Deleted prose - GM
Where in the 2A does it in any way even hint the gov or a court has authority to regulate guns.
It doesn't even grant the right as the RTKABA preexisted this nation. By the beloved SCOTUS own words.
So how is it in anyway moral or legal for the gov to infringe on pee existing human rights that existed before the nation or it's gov or courts existed.

 

[Glenn E. Meyer]

I've deleted a gratuitous comment about folks with disabilities. I caution against going that route.

Also, we have discussed and scholars have also discussed, that the rights in the BOR are not unlimited. It might be a good idea to search on such issues before blanket statements.

 

[zukiphile]

Where in the 2A does it in any way even hint the gov or a court has authority to regulate guns.

The text of the amendment doesn't permit any infringement (interestingly, it isn't stated as a mere prohibition on Congress).

I am sympathetic to a broad application of the language, but that doesn't end the inquiry.

The 1st Am. contains the language that "Congress shall make no laws..." pertaining to the subject of that amendment, yet Congress makes laws restricting campaign speech; some survive challenge while some don't. The commerce clause restricts the matters Congress can regulate very plainly...interstate commerce, but Congress regulates matters of intrastate commerce.

One aspect of our modified common law system is that judicial resolutions serve as precedent for subsequent controversies. I don't agree with a number of those precedents because they are poorly reasoned and the reasoning may have been concocted primarily to buttress a result people preferred for extra-constitutional reasons, but they are still precedents.

To know the range of your likely successful options, you want to know not just what the COTUS language indicates, but also what the precedent on the point indicates. That doesn't even mean that the precedent is necessarily binding, but it is very likely to restrict the direction of future changes.

Sometimes you will read people arguing that "the right isn't unlimited" as an implicit assertion that the amendment doesn't prohibit any limits. That's an over-reach that merits correction.

Arguing that the NFA violates the 2d Am. has lots of intellectual merit from several different directions. That argument also faces two currently insurmountable obstacles:

1. It has survived constitutional challenge. Yes, we all know the oddities of Miller.

2. For reasons that are not fully rational, many people want fully automatic firearms tightly regulated. That's a political obstacle you would need before making any Sup Ct reversal effective. If you didn't first overcome the political obstacle, the Sup Ct could strike the entire NFA, and you'd very soon see a wave of democrat and some republican aspirant trying to enhance their political fortunes by being seen as leaders to amend the COTUS on that and other points.

So how is it in anyway moral or legal for the gov to infringe on pee existing human rights that existed before the nation or it's gov or courts existed.

I think I answered the legal question. The moral question is more difficult.

A key part of the problem is that our government is to some degree representative. Republican and federal structure can slow public passions, the senate can cool them, a president can veto them if he has the votes, and the Sup Ct can strike a law that survives all that. However, even the Sup Ct ultimately succumbs to popular notions and is indirectly representative of the population.

That constitutional obstacle course isn't a guaranty that your neighbors won't be unwise. It just slows them down.

 

[SonOfScubaDiver]

Ghost, I think what is being argued here, that I don't think you are quite grasping, is that the 2A doesn't exist in some kind of legal vacuum on its own. It exists as part of a much larger document that grants SCOTUS the final say in all issues pertaining to any parts of the document. Well, at least that's how I'm understanding the points being made.

 

[Ghost1958]

I get it. Some believe that because SCOTUS unconstitutionally began ruling unconstitutional regulations as constitutional.
And the longer they have done so without being stopped, somehow makes it OK to keep doing it.

It doesn't.
Just because I slap a person in the face repeatedly and get by with it doesn't make it right or mean that person will always take it.

There is no ruling SCOTUS has made on the 2A where they pointed to any part of constitution that gave them the authority to uphold the things they have that infringe on 2A.

That the right is not unlimited is no where in the COTUS. It was simply pulled out of thin air.

Precedence is not law. It's simply a tradition used so gov and courts can gradually do what all gov and all courts try to do. Eventually gain all power to themselves.


The Supreme Court is a huge part of why the nation is divided, already declared political revolt in the last election, and gets closer to an outright revolt with every gov over reach. And every time scotus legislates from the bench or over steps it's constitutional bounds.

I'm going to back out of this now.

 

[JohnKSa]

Some believe that because SCOTUS unconstitutionally began ruling unconstitutional regulations as constitutional.

Reality is that the SCOTUS is the sole official authority on constitutionality. And whether or not we agree with their rulings, the Constitution explicitly gives them the authority to do what they do.

Just because I slap a person in the face repeatedly and get by with it doesn't make it right or mean that person will always take it.

There is no ruling SCOTUS has made on the 2A where they pointed to any part of constitution that gave them the authority to uphold the things they have that infringe on 2A.

That the right is not unlimited is no where in the COTUS. It was simply pulled out of thin air.

Precedence is not law. It's simply a tradition used so gov and courts can gradually do what all gov and all courts try to do. Eventually gain all power to themselves.


The Supreme Court is a huge part of why the nation is divided, already declared political revolt in the last election, and gets closer to an outright revolt with every gov over reach. And every time scotus legislates from the bench or over steps it's constitutional bounds.

Some of this makes sense at some level, but the real problem is that it is based on a flawed understanding of the authority granted to SCOTUS by the Constitution.

Agree or disagree, when SCOTUS rules, it determines constitutionality. Not because they always get it right. Not because I think it's true. Not because you think it's true. Because that's how it is--because the Constitution gives the SCOTUS that power.

 

[Frank Ettin]

...So how is it in anyway moral or legal for the gov to infringe on pee existing human rights that existed before the nation or it's gov or courts existed.

That's another, and a philosophical, discussion. But as long as we're discussing the law or politics, things are as they are.

While our system offers opportunities and ways to change the law, what the rules are, and how things are done, until such things actually get changed in the real world we must learn to deal with what we have.

...Precedence is not law....

First, the word is "precedent." The plural is "precedents."

Second, in a way it is the law. Law, i. e., statutes enacted by legislative bodies, constitutions and charters adopted by political entities to govern the operations of those entities, and past judicial opinions, is essentially a tool used by courts to decide the outcome of a dispute or disagreement. So when a court writes an opinion deciding a matter in contention, it is explaining how it applied the law to the facts and circumstances in order to decide the outcome.

Precedent has been fundamental to our legal system and for some 500 years to the Common Law of England, on which our system is based. The doctrine of stare decisis (to stand by the thing decided), or precedent, means that legal principles and interpretations used by a court to decide a matter will be used by other courts within the same system to decide similar matter.

It is founded on the notion that similar matters should be decided in consistent ways. Do you really think it would be satisfactory for any issue decided one way at one time to be decided in a completely different way another time? Because we have the doctrine of stare decisis how courts have decided past cases will give us clues as to how courts are likely to decide future, similar cases.

Of course sometimes when precedent and the law as applied by a court don't achieve a satisfactory result, a legislature can change the law -- checks and balances at work. Recently there was the case of Kelo v. City of New London, 545 U.S. 469 (2005). It was a ruling on a technical point of eminent domain law (specifically involving the "takings" clause of the Fifth Amendment applied to the States through the 14th Amendment and the meaning of "public use"). The result was found to be unsatisfactory by many. As a consequence, the legislatures of 42 States revised those States' eminent domain laws to avoid a Kelo result.

 

[Ghost1958]

Reality is that the SCOTUS is the sole official authority on constitutionality. And whether or not we agree with their rulings, the Constitution explicitly gives them the authority to do what they do.Some of this makes sense at some level, but the real problem is that it is based on a flawed understanding of the authority granted to SCOTUS by the Constitution.

Agree or disagree, when SCOTUS rules, it determines constitutionality. Not because they always get it right. Not because I think it's true. Not because you think it's true. Because that's how it is--because the Constitution gives the SCOTUS that power.

in all sincerity a guestion.

What is being proposed here by a couple of highly educated folks is that we fought a revolution for nothing?

That in the end, we are not really a representative republic but instead a nation under rule of a monarchy of 9 lawyers in black robes sitting on the SCOTUS.?

 

[44 AMP]

...So how is it in anyway moral or legal for the gov to infringe on pre existing human rights that existed before the nation or it's gov or courts existed.

There are simple answers to this, and then there is the added complications of the real world, beyond pure political idealism.

The legal one is easiest. Governments can legally do anything they say is legal. Pay attention to this point. It's rather important.

In the US, we have, through the court system, the ability to challenge the presumption of any government action's legality. There is a system, which ultimately ends with a ruling by the Supreme Court. And, whatever that ruling is, is the LAW, until/unless a future court reverses the decision.

And that HAS happened. Precedents can, and have been overturned. It's rare, but it has happened.

As to "moral" that is much more complex, and involves value judgments not necessarily specifically covered in law. BOTH side of every issue consider their point of view moral and "right". Our system uses the courts as the arena to decide which side is correct, within the framework of existing law.

This is another key point, "within the framework of existing law".

Intent, and ethics (morality, if you wish) don't matter to the law. ALL that matters is whether or not an action (or object) violates existing law.

This is a key point in the bump-fire controversy. Despite people looking at them today, and saying that they are a clear and obvious attempt to evade the law on machine guns, the ATF (under Obama) made the correct decision about them. They do not violate existing law, and were not, therefore a regulated item under the NFA 34.

The fact is that existing law defines machinegun in a certain way, and does NOT reference how fast one can fire the weapon, which is at odds with what the ban the bumpstock people want. What they want, does not change existing law. They need to change the law, in order to get what they want.

And, they are trying. And trying greedily. They aren't introducing bills to just ban/regulate bump-fire stocks, their bills include their entire wish list of gun control restrictions, including the bump-fire. I believe that will be their downfall.

Kelo v. City of New London, 545 U.S. 469 (2005).

This case provides an excellent example of how our system works, and where it fails. Frank did his usual excellent job of showing the essential points of law, but a more background is needed to understand the how, and why of what happened.
In simplest terms the govt used the argument of eminent domain to seize private property.

It is a long established principle, and allows the govt to take private property for the greater public good. Traditionally this meant important, necessary things like building a dam, a needed military installation, or running the freeway over your house....(and, you ARE compensated for that, though the fairness of the compensation is often disputable...)

What happened in Kelo was that the "greater public good" claimed as justification for the seizure was TAX REVENUE!

The govt took property so they could allow a commercial development to be built there (something the owner prohibited), and that commercial development (I think it was to be a mini mall, but that's not important) would generate more tax revenue to the govt., than the land was doing under its owner, so they felt they were justified taking it, for the "greater public good".

It was unethical (immoral, if you prefer), but it was LEGAL within existing law, and so the court ruled. Such is our system. The response was for many states (42 is a pretty clear majority) to craft NEW laws, with language specifically addressing what happened to Kelo, to prevent it from happening again. And these new laws are now the existing law, and since they are existing law, any repetition of the matter would be easily ruled not just morally reprehensible, but legally wrong (illegal).

This is also our system, our way to fix flaws, when we find them.

What is being proposed here by a couple of highly educated folks is that we fought a revolution for nothing?

That in the end, we are not really a representative republic but instead a nation under rule of a monarchy of 9 lawyers in black robes sitting on the SCOTUS.?

I don't see it that way, at all.

We fought a revolution to free ourselves from British rule. We won.

We have been arguing about what is the best way to rule ourselves, ever since.

We adopted a system (our Constitution) early on, and while not perfect, has worked pretty well for a long time now.

IF we are "a nation under the rule of 9 lawyers in black robes", then it is because we, the people have failed in our duty to ourselves.

The Supreme Court exists as the check on the actions of both other branches of government. They ensure that the rest of the government does not exceed their Constitutional authority.

IF we, the people elected legislators who were more concerned with doing the best possible job for the people, all the people, and not concerned with doing the job that pleases enough people to get themselves re-elected, they wouldn't pass laws that go to far, and the Supreme Court would have little to do. Likewise, if "bad laws" weren't passed, the Executive wouldn't have them to justify unconstitutional actions.

Perhaps the Founder's erred believing the people would have the wisdom to elect responsible representatives. Certainly they felt leaving the decision in the hands of the people was the best course.

Washington set a standard that sadly few try to meet, today. He might have been able to become king. He almost certainly could have been "president for life", but he CHOSE to serve a couple terms, and then retired to private life.

This was something many people felt those who served in government should do. Do the best job they could, for a short time, and then go back to private life.

Today, because of the actions of the people we elected, we are where we are, and despite the fact that many of us don't like some (or any) of it, we are where we are because of ourselves, and representative democracy.

I think we are better off than the people living under some hereditary monarchies, theocracies, communism, socialism, or fascism.

Our system doesn't always work in our favor but we have a better chance of having that happen than people living under other systems, and because that still exists, we didn't have a revolution for "nothing".

 

[Glenn E. Meyer]

So how is it in anyway moral or legal for the gov to infringe on pre existing human rights that existed before the nation or it's gov or courts existed.

Can we stop being so naive? 'Legal' assume some governing body that will judge and decide on an issue. Where is the body that decides that? A society or culture or ruling class decides on what your rights are and the various mechanisms in such decide the instantiation of them.

For us, the SCOTUS takes the 'rights' of the Constitution and judges how they apply - influenced by the politics, social and philosophical state of the nation at that time.

Slavery was seen as moral and legal across the world and in our culture by many. Women not voting - similar.

No celestial beings removed folks some slavery in recent times, nor gave women the right to vote.

One might think the right to own fully automatic weapons is something that celestial beings decided was a basic right and the SCOTUS violates their divine laws. Good luck with that.

A modern and legitimate analysis of natural rights realizes that such are just expressions of society, culture and power at the time. Also, such predilections are filtered through evolutionary principles that shapes our basic behaviors.

God given rights - African-Americans (preaches pro slavery), Husbands raping wives (Quite OK with some preachers), Women voting (Horrors - no natural right for them).

Some cultures even don't think self-defense is a natural right. One viewpoint is that if you kill an attacker you remove the attacker's chance at redemption in this world. Thus, you should not kill the person.

There's a lot more thought into 'rights' than cliches about owning a bump stock.

 

[Ghost1958]

I'll leave this thread with the words of those much more educated on the power they intended for the SCOTUS to have.

And it was not that Supreme Court was to be the all powerful atrocity it is now.

The accumulation of all powers, legislative, executive, and judiciary, in the same hands, whether of one, a few, or many, and whether hereditary, self-appointed, or elective, may justly be pronounced the very definition of tyranny.” – James Madison

“[N]othing in the Constitution has given [the judiciary] a right to decide for the Executive, more than to the executive to decide for them. Both magistracies are equally independent in the sphere of action assigned to them… the opinion which gives to the judges the right to decide what laws are constitutional, and what are not, not only for themselves in their own sphere of action, but for the Legislature & Executive also, in their spheres, would make the judiciary a despotic branch.“- Thomas Jefferson

“[A] limited Constitution … can be preserved in practice no other way than through the medium of courts of justice, whose duty it must be to declare all acts contrary to the manifest tenor of the Constitution void. Without this, all the reservations of particular rights or privileges would amount to nothing … To deny this would be to affirm … that men acting by virtue of powers may do not only what their powers do not authorize, but what they forbid.” – Alexander Hamilton

If what is being said by 3 or 4 here is accepted as true then we are doomed to live from now on under a tyranny of a handful of lawyers on the SCOTUS and have lost our liberty long ago.

Thanks for the discussion truly.