Nullification of gun laws

[Spats McGee]

What we would do if there were such a SCOTUS and if such-and-such laws were later passed gets further into conjecture than we really need to go. That will be for each of us to decide if and when such time comes.

 

[Come and take it.]

Thanks for your time and responses.

 

[TimSr]

The last I checked, we don't live in a Democracy, we live in a Constitutional Republic.
How can the emotions of many be deemed valid enough to pass legislation?

I believe it was Dianne Feinstein who said "The Constitution has no relevance to what we do in the senate. It is up to the courts to decide if what we pass is constitutional." I believe she was responding to Ted Cruz's questions concerning the constitutionality of her proposed gun ban bill.

 

[Boomer58cal]

When it comes to the second amendment all gun laws that limit access to weapons of any kind(not just guns. Arms) is unconstitutional. The founders chose the word infringed for a reason. The government may not touch out right to have the means to protect ourselves, our families and our country in anyway what so ever. This includes back ground checks, restricting felons( because if the did their time they paid their debt), age restrictions, and when and where we bare them. Our rights are not granted to us by the government( though they'd like to think so) or the bill of rights. The bill of right is simply the recognition of our rights and the promise not to interfere with those rights. Our rights come from whatever god you believe in and the founders said so. Guns are in fact the teeth of our rights. There are two reasons for the second amendment. The first is to protect ourselves against a corrupt government. The second is to protect ourselves and our country against foreign invaders. Hunting would have been there also but they thought feeding your family was obvious. I guess not. Feeding your family is not poaching in my opinion. I'll stop now. Thanks for letting me get that out.

Boomer

 

[Frank Ettin]

When it comes to the second amendment all gun laws that limit access to weapons of any kind(not just guns. Arms) is unconstitutional. The founders chose the word infringed for a reason....

You are free to have that personal opinion and it may influence your political activities. But in the real world such matters are subject to dispute and will ultimately be decided by the federal courts.

That is also consistent with the expectations of the Founding Fathers. See the Constitution of the United States, Article III, Sections 1 and 2:

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,...

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.

 

[fragtagninja]

The questions you are asking Come and Take it get into some extremely sticky legal terms. By the Constitution all state laws are subject to federal law. Thus when a state law is in conflict with a federal law the fed over rules the state. However the Constitution is supposed to be the supreme federal law of this country. Therefore a law that is passed by a state that is in agreement with the Constitution should be the winner if a federal law that is not in agreement with our founding document comes into dispute with that state regulation.

The problem here is that not everyone agrees about what is in conflict with the constitution and we have no road map as to how to interpret this document. It is in the hands of the Supreme Court to do so and there is nothing binding them to reading it a certain way or even basing their rulings on the document. What they say it means is what it means legally. Regardless of what a passage of any part of the Constitution obviously says it is still subject to the Courts rulings on the matter.



And of course when you are talking about legal matters there is never such a thing as cut and dried. It is always a murky swamp with loopholes to exploit.

If you really want a best answer to these questions a lawyer who specializes in such matters would be the best resource as no one else is truly able to speak on such matters with any authority due to the fact that we cannot truly understand the ins and outs of it all. Great questions by the way.

 

[Boomer58cal]

That is not my opinion. It is theirs. Read their writings. The founders wrote about their beliefs at great length and in great detail. You should also look up the word "Infringed". There's not much to debate. The government cannot restrict our right to keep and bear arms in any way. As a matter of fact the founders thought everyone able to carry a firearm should do so at all times. That's the militia part. Read the federalist papers.

Thanks to them we also get to have an opinion. Yours is always welcome.Boomer

 

[Frank Ettin]

That is not my opinion. It is theirs. Read their writings. The founders wrote about their beliefs at great length and in great detail. ....

Sorry, but that's not how things are in the real world. If you want to begin to understand how the law and the Constitution work in the real world, I suggest that you can start with Spats McGee’s Federal Constitutional Primer. You might also want to spend some time looking over Al Norris' thread keeping track of current RKBA litigation.

 

[Boomer58cal]

"On every question of the constitution let us carry ourselves back to the time when the constitution was adopted, recollect the spirit manifested in the debates, and instead of trying what meaning can be squeezed out of the text, or invented against it, conform to the probable one which was passed." Thomas Jefferson

"The language of the constitution cannot be interpreted safety except by reference to the common law and to the British institutions as they were when the instrument was framed and adopted." Chief Justice Taft.

Today despite this clear evidence, gun control proponents attempt to "squeeze" the text of the second amendment. The second amendment is not negotiable.

Boomer

 

[fragtagninja]

If I might interject Mr Ettin and Mr Boomer. You are both right. Boomer the founding fathers were very clear about their intentions with the bill of rights, and such. However Frank Ettin you are correct the courts have the right to make rulings on what those documents mean.

Therefore you are both right.

 

[Boomer58cal]

It is the people's job to judge whether the courts are ruling justly. That's the reason for the second amendment. To protect ourselves from a corrupt government. The second amendment is the teeth of our right. The second amendment is absolute. That is it's point. "Infringed." It's not just our right but our duty to protest unjust rulings.

Boomer

 

[zukiphile]

It is the people's job to judge whether the courts are ruling justly. That's the reason for the second amendment. To protect ourselves from a corrupt government. The second amendment is the teeth of our right. The second amendment is absolute. That is it's point. "Infringed." It's not just our right but our duty to protest unjust rulings.

Toward what end? I do not ask that flippantly, but wonder what advance you see being made (other than being put on some kind of watch list) by "protesting" the NFA for instance?

Stepping away from utility and examining the theory of government, if "the people" are at liberty to "overrule" a court, is there any real judicial authority?

If "the people" are free to overrule judicial authority, is Congress free to overrule the decision in Heller?

The Supreme Court lies about what the constitution says. Look at the commerce clause, take out interstate, and the supreme court would read it the exact same way.

I dislike use of the word "lie". It suggests a motive and a malevolence that are relatively uncommon, and puts an end to any sort of civil and constructive interaction.

A great way to undermine a viable analysis is to overstate it. Your statements above overreaches in two specific ways. First, you use the word "lie"to describe an activity that is other than a clear deception involving a simple misstatement. Commerce clause jurisprudence is not the same as "You look great. Have you been working out?" Or "I did not have sexual relations with that woman, Ms. Lewinsky". Second, while it is likely that you and I do not concur with the current state of commerce clause jurisprudence, in fact, the Supreme Court does not get there by ignoring the interstate component.

The problem with the current state of commerce clause jurisprudence came with the decision in Wickard, and the development of a doctrine by which the Supreme Court would refuse to strike laws that did not regulate interstate commerce only, but extended to matters that could arguably influence interstate commerce remotely. That kind of interpretation is that it has the effect (as opposed to the rationale) of changing the meaning of the words "interstate commerce" to "interstate commerce and not interstate commerce".

That is not a lie in any simple sense, but it does change the effective meaning of the words in the Constitution. The problem there is that once one usurps the authority to change the meaning of the words used in laws, he destroys their character as laws..

Arguably that kind of reinterpretation is more damaging than a single, simple and discreet "lie".

 

[Frank Ettin]

It is the people's job to judge whether the courts are ruling justly. That's the reason for the second amendment. To protect ourselves from a corrupt government. The second amendment is the teeth of our right. The second amendment is absolute. That is it's point. "Infringed." It's not just our right but our duty to protest unjust rulings....

So you apparently believe that the courts are ruling unjustly (and perhaps with the Founding Fathers for assigning to the federal courts the job of exercising the judicial power of the United States to decide cases arising under the Constitution).

So what's your plan for fixing that?

 

[Boomer58cal]

Any ruling that infringes our rights to keep and bare arms is unjustified. If the courts, congress, or the president do not heed our peaceful protests we are duty bound to protest with force. The founders said so enthusiastically and unanimously.

 

[zukiphile]

Any ruling that infringes our rights to keep and bare arms is unjustified. If the courts, congress, or the president do not heed our peaceful protests we are duty bound to protest with force. The founders said so enthusiastically and unanimously.

We do not ordinarily consider people bound to a duty to engage in a futile act. If you would like to provide times and places you will be acting with force, that may contribute to a general sense of entertainment.

At the risk of repeating myself, what purpose will be served by these acts of force in which you are duty bound to engage?

 

[Frank Ettin]

Any ruling that infringes our rights to keep and bare arms is unjustified. If the courts, congress, or the president do not heed our peaceful protests we are duty bound to protest with force....

So you are proposing that if things don't go the way you think they should we should have a civil war?

 

[Boomer58cal]

My only plans are peaceful but if the people of our great nation stand together they constitute the single largest armed force in the history of mankind. Greater in number than all the armies of all the nation's on earth. In my opinion you futile is going the wrong way. That was in fact the spirit of the second amendment.

 

[dajowi]

American law operates under the doctrine of stare decisis, which means that prior decisions should be maintained -- even if the current court would otherwise rule differently. This however is not sacrosanct. The U.S. Supreme Court has overruled prior Supreme Court rulings many times:

Chisholm v. Georgia
Adler v. Board of Education
Pace v. Alabama
Wolf v. Colorado
Dred Scott v. Sandford

And on, and on.

Don't believe for an instant that the courts decision in District of Columbia v. Heller can't or won't be overruled by a future supreme court seeded with Obama appointees.

 

[Frank Ettin]

My only plans are peaceful...

Then I might suggest that you will want to work a bit harder to understand how the legal and political system actually work. I understand your opinions, and no doubt those opinions guide you in your political activities. But --

1. The meaning an application of the Constitution are still matters for the federal courts.
   
   
2. Most of the time people object to the way the system is working it seems to be primarily because they aren't getting what they want. But we live in a pluralistic Republic, and not everyone agrees that things ought to be the way you want them to be.
   
   
   • 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.
   
   
3. And sometimes when the law as applied by a court doesn'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.
   
   
4. The Founding Fathers left us an amazing legacy -- 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.
   
   
5. Do I think that Congress has always enacted wise laws, and that decisions of the courts have always been wise and just, and that our public policy is always wise? Of course I don't. I personally favor more freedom and less government (both federal and state) intrusion. But does everyone who has a voice in how things work and who gets elected to office agree with me? Of course not? Our Founders also left us a system that allows us to try to hash out those differences.
   
   
6. But the reality is that nobody is going to be completely happy all the time about the way things are.

 

[Come and take it.]

This is the issue. If a case came up claiming that the supreme court may be able to override all other rulings we would read the constitution.

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,...

So if the people means individual than Shall must be defined just like it is in the quoted text. Or else the judicial power of the Supreme court can be limited in its power over lower courts.

If and individual has the right to own a gun than the right cannot be infringed or else every other mention using the word shall must be brought into question.