Oath of U.S. public office
- Thread starter Bucksnort1
- Start date
Bucksnort1
New member
Aguila Blanca,
I love learning new things. Thank you for informing me that the "infringement" statement does not appear in any of the other amendments.
CUANDO OMNI FLUNKUS MORITATI
I love learning new things. Thank you for informing me that the "infringement" statement does not appear in any of the other amendments.
CUANDO OMNI FLUNKUS MORITATI
johnwilliamson062
Moderator
I doubt many of them give the words more thought when reciting than your average kindergartner reciting the pledge of allegiance.
turkeestalker
New member
I am an electrician by trade and have been for more than 30 years. We are governed by the NFPA via the National Electrical Code. In my 30 years in the trade I have taken several Code classes, and in each, one of the first things mentioned is language used in the Code. Shall indicates an absolute, as does Shall Not as well. When a topic is open to interpretation by the authority having jurisdiction, local inspectors for example, the word Will is used. When there is no subjection to interpretation, and the code is to be enforced absolutely as written, the word Shall or Shall Not are used.
Agreed Pogybait, I likewise never realized that the 2nd Amendment was the only amendment containing such language, and yes thank you Aguila Blanca.
Agreed Pogybait, I likewise never realized that the 2nd Amendment was the only amendment containing such language, and yes thank you Aguila Blanca.
kilimanjaro
New member
Also one of the first things I learned about writing contract specifications, procedures manuals, safety requirements, and conveyance deed clauses. Any word but 'shall' is going to cause you grief down the road when enforcement or breach become necessary.
We accept the infringements we now labor under, in the interest of American polity, our desire to live peaceably with our fellows, but that acceptance is working towards a tipping point, a burden that is unreasonable.
We accept the infringements we now labor under, in the interest of American polity, our desire to live peaceably with our fellows, but that acceptance is working towards a tipping point, a burden that is unreasonable.
Aguila Blanca
Staff
Strictly speaking, neither. What I disagree with is extrapolating from the First Amendment, for which the jurisprudence is pretty extensive and settled, to the Second Amendment, for which the jurisprudence is still evolving.zukiphile said:
In a broader sense, to the extent that Second Amendment jurisprudence follows the "all rights are subject to reasonable regulation" line I disagree with the jurisprudence. IMHO you can't honestly say that the Second Amendment is subject to reasonable regulation when it says right in it that it is NOT subject to regulation ("infringement").
I believe your second underlined text above is more accurate.
There isn't anything wrong with holding that the courts have something wrong. I would say that Commerce Clause jurisprudence is problematic as well for very similar reasons.
Sometimes people mistake an explanation of the state of the law as an assertion that this is how the law should be, even where they may be two very different things.
Frank Ettin
Administrator
Okay. And of course the difficulty is that while the federal courts have their reasons, understanding the path by which we reached the current state of the law isn't easy. The process for those who haven't undertaken to study it (and sometimes even for those who have) is difficult to access and follow. There are the cases themselves (the best sources) and no doubt numerous law review and journal articles looking at the evolution of constitutional jurisprudence doctrine; but finding them requires some effort, and they aren't easy reading.zukiphile said:
The principles used to resolve cases today will be derived from what has gone before. To understand those principles one must understand what has gone before.
But the First Amendment does say, "...no law abridging...". That strikes me as pretty equivalent to "shall not be infringed...".Aguila Blanca said:
Aguila Blanca
Staff
Good point.Frank Ettin said:
aquila blanca said:
The 1st Am language is
It is explicitly a limit on federal legislative power. Long before the idea of incorporation, state governments did have state established/endorsed churches.
On the other hand, the 2d Am. language is
That is no mere limit on federal legislation.
Frank Ettin said:
I agree that it isn't easy. It also holds great utility for a critic to know exactly how we got where we are on an issue. However, that level of study isn't necessary to fairly read some constitutional text.
We all agree that the COTUS grants congress the power to regulate interstate (i.e. amongst the states commerce). One can explain to people how doctrine developed that gave a judicial stamp of approval on congressional regulation of commerce or even non-commerce within a state. One can relate the rationale of those cases.
None of that means that the men who expanded that power beyond COTUS terms did so with due fidelity to constitutional text. So, when someone objects that "shall not infringe" can't be squared with "infringe if you like", or "commerce amongst the various states" doesn't include non-commerce within a state, they make a point that can't be reasonably denied.
Frank Ettin said:
Sometimes. Other times, the court resolves matters with little fidelity to its own precedent, or states a rationale so transparently shoddy that suspicion of a political motive is reasonable.
Aguila Blanca
Staff
Frank, you're a lawyer so you naturally accept and think in terms of "that's the way it works."Frank Ettin said:
Those of us who are not lawyers can think in terms of the way it should work, if the judges and justices were intellectually honest, and not politically motivated.
As we (here) all know, the Second Amendment language is clear and unambiguous: "... the right to keep and bear arms shall not be infringed." Since regulation equals infringement, it's difficult to arrive at any decision justifying or allowing "reasonable" regulation of the RKBA if one is intellectually honest. This means that, in an ideal world, no court should be blessing any RKBA regulatory scheme, at any level. The only valid exception would be criminals, and that's justified by their general surrender of civil rights.
Shift gears to the Fourth Amendment, and the language is clear but not unambiguous. The People are to be safe from "unreasonable" searches and seizures. That's clear enough, except that we don't know where the line is drawn between a reasonable search and/or seizure and an unreasonable one. And that's where the courts have a legitimate role in fleshing out the limits of the constitutional protection, because from the language of the Amendment itself we don't know.
IMHO, then, even when the courts (including the SCOTUS) say the Second Amendment is subject to reasonable regulation "because all civil rights are subject to reasonable regulation," I recognize that the SCOTUS has the right to say this but I also reserve the right to believe that they are flat out wrong in saying so.
I know that doesn't get me anything, but it makes me feel better to know it in my heart. And I believe that pro-2A activists need to keep this in mind and keep proclaiming this publicly, because otherwise the lie that the 2A is subject to reasonable regulation becomes the de facto truth.
Oaths aren't meant for the oath-takers, they are a publicly declared promise to those observing; originally so they could testify should that oath ever be broken (nowadays, it's just a formal hold-over from a forgotten era of honorable men and rigid social mores)
"Those of us who are not lawyers can think in terms of the way it should work, if the judges and justices were intellectually honest, and not politically motivated."
Not even; just the way it "used to work" before decades/centuries of questionable precedent muddied the waters, always in the same direction. Our nation's founders knew this, and many therefore argued in favor of periodic "revolution" (not violent overthrow, so much as the frequent dismantling of political cancers and dynasties, to stave off corruption & ossification). The theme of 'renewal based around staid principles' was so recurrent among various Framers/Founders of the time, that I somewhat question the long-held assumption of constitutional scholars/lawyers that 'English Common Law' and all its principles --like binding precedent-- necessarily apply to constitutional interpretation. But I'm not one, so of course my opinion doesn't matter (unlike trained lawyers who also aren't arguing constitutional cases to federal judges
)
TCB
"Those of us who are not lawyers can think in terms of the way it should work, if the judges and justices were intellectually honest, and not politically motivated."
Not even; just the way it "used to work" before decades/centuries of questionable precedent muddied the waters, always in the same direction. Our nation's founders knew this, and many therefore argued in favor of periodic "revolution" (not violent overthrow, so much as the frequent dismantling of political cancers and dynasties, to stave off corruption & ossification). The theme of 'renewal based around staid principles' was so recurrent among various Framers/Founders of the time, that I somewhat question the long-held assumption of constitutional scholars/lawyers that 'English Common Law' and all its principles --like binding precedent-- necessarily apply to constitutional interpretation. But I'm not one, so of course my opinion doesn't matter (unlike trained lawyers who also aren't arguing constitutional cases to federal judges
)TCB
Last edited:
Frank Ettin
Administrator
Except at the time the general view, as reflected in the 1833 Supreme Court decision in Barron v. Baltimore was that the Bill of Rights applied only to the federal government. So you seem to be making a distinction without a difference.zukiphile said:
Of course there can be disagreement on such points. If there weren't disagreement, the question need not have wound up in court.zukiphile said:
True.zukiphile said:
There's the old saw that "Hard cases make bad law." Sometimes a case is so compelling that it demands a particular result, but the law has to be stretched too far to produce that result. And there are also lazy judges, or sloppy judges, or judges of less than sterling character, and they make bad law as well. Sometimes even properly applying the law to a particular case produces an unsatisfactory result.
That's why we have three co-equal branches of government, each with it's own scope of responsibility and each a check and balance on the other two.
It's the job of a court to apply the the law and applicable precedent to decide the case. The result of applying the law and precedent can in fact be unsatisfactory to some (whether because it's a hard case, a lazy judge, or a poor law -- and which it is can often be in the eye of the beholder). And when that happens, it might well be within the power of the legislative branch to ameliorate the result of a court's decision.
I often cite the case of Kelo v. City of New London, 545 U.S. 469 (2005) as an example of this phenomenon. 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. "Checks and balances" at work.
The Founding Fathers gave us a system. But no system whatever it is will automatically produce results that are perfectly satisfactory to you, I, anyone else, or any group. The results will depend on how the system is being operated, and in that regard:
We are "the system." If we don't like the results we're not using the system effectively in our interests. We elect our representatives. We have the final say at the ballot box. If some of us aren't happy with how things are working it means we're failing to get enough people to go along with our values and beliefs. We're failing to inspire.
The Constitution does not bestow wisdom. It's up to the body politic to be wise and to use the processes provided for in the Constitution to make wise decision and promote wise policies. A "system" can't be wise. A "system" is just a mechanism. It is up to those using the mechanism to use it wisely.
If our side apparently lacks the savvy to operate within the existing legal and political process to better further our interests and values, what makes us think that we will be able to successfully do so in any other legal and political process.
True. Understanding how things work is how I, zukiphile, Spats McGee, and others protect our clients' interests, try to keep our clients out of trouble, and succeed when possible at getting our clients what they want.Aguila Blanca said:
Okay, it's good to feel good. But still, actually effecting any meaningful changing requires understanding how things work (and what results are reasonably possible).
Last edited:
"We are "the system." If we don't like the results we're not using the system effectively in our interests. We elect our representatives. We have the final say at the ballot box. If some of us aren't happy with how things are working it means we're failing to get enough people to go along with our values and beliefs. We're failing to inspire."
Exactly. Even in the state our system is in, we are still fully empowered to work within it to strive for what we believe is best governance. Very brilliant how our system's designers came up with something that was both very resilient towards becoming totalitarian, and very tolerant of citizens' desire for exactly that, such that even with incomprehensible federal growth, a civil war subjugating half the landmass for a century, and expansion into areas of society never thought possible, we still ultimately have final say in who and what makes the government. The door is still, somehow, not yet shut on us.
Now, an uncontestable secret list that strips you of core human rights at an officer's whim? That's one hell of a slammed door.
TCB
Exactly. Even in the state our system is in, we are still fully empowered to work within it to strive for what we believe is best governance. Very brilliant how our system's designers came up with something that was both very resilient towards becoming totalitarian, and very tolerant of citizens' desire for exactly that, such that even with incomprehensible federal growth, a civil war subjugating half the landmass for a century, and expansion into areas of society never thought possible, we still ultimately have final say in who and what makes the government. The door is still, somehow, not yet shut on us.
Now, an uncontestable secret list that strips you of core human rights at an officer's whim? That's one hell of a slammed door.
TCB
Frank Ettin said:
It;s true that the result is the same, but the scope of the prohibition stated is different.
Frank Ettin said:
Emphasis added. Anyone can take any position at any time, so there can always be disagreement. Not every disagreement is reasonable, and not every position is equally consistent with constitutional text.
A judiciary that could decide that interstate commerce includes intrastate non-commerce,or that "shall not" means "may be" accustoms itself to reasoning around limits rather than observing them. Delving into the case law is important and lets one understand how they did it, but isn't itself an excuse for having done it.
Bucksnort1
New member
The beauty of the Constitution is its simplicity, more or less, but it can become quite complicated as indicated by responses to this thread. One would think the 2nd amendment leaves nothing open to interpretation. If only the framers had omitted the, "free state" part. So, is a "free state" a state of mind or a free New Jersey or Texas or Louisiana or a country?
I love what Paul Harvey said, very often. "Self government doesn't work without self discipline."
I love what Paul Harvey said, very often. "Self government doesn't work without self discipline."
Last edited:
Aguila Blanca
Staff
Well said, Sir.zukiphile said:
That's pretty much my point. The rest of my point is that we shouldn't allow them to get away with it sans protest. No, not an armed revolt, but certainly not allowing ourselves or the populace to forget that such-and-such decision was completely and totally at odds with the language of the Constitution. Certainly, when lawyers are wearing their lawyer harts they have to work within the system, but that doesn't mean that outside of court they have to argue that the system is correct and infallible when it obviously isn't.
In a strictly procedural sense the Sup Ct is infallible because it is supreme, but that observation isn't very substantive.
I recall having some law students in my apartment long ago. One of them brought up the "living constitution" argument, which I oppose. However even if one believes that each generation comes to terms with the COTUS in its own way, there still must be some sort of good faith involved in that interpretation. I see little good faith in essentially disregarding the parts for which we haven't any enthusiasm. Without that good faith, arguments and ensuing changes look less like real law and more like dangerous exercises of raw political power - something the COTUS was designed to moderate.
Frank Ettin
Administrator
Correct? Well it is the system we have; it is functioning mechanically; and when a court rules it affects the lives and property of real people in the real world (and often adds one more brick to a foundation upon which future decisions will be built).Aguila Blanca said:
But infallible? Certainly not. Nothing devised and operated by humans is. Which is why we have multiple levels of government and multiple levels of appeal in the judicial world.
And when lawyers take off their lawyer hats they often involve themselves in scholarly pursuits -- including writing for judges and the legal community (and anyone else who cares to read them) articles critical of judicial opinions with which they find fault. Some of the scholarship laid the foundation upon which Heller was built, driving a stake through the heart of the collective right theory of the Second Amendment.
But also remember that while we may think the courts have taken the Commerce Clause too far, others think they've done just dandy. We do, after all, live in a pluralistic society.
People have varying beliefs, values, needs, wants and fears. People have differing views on the proper role government. So while we may be using the tools the Constitution, our laws and our system give you to promote our vision of how things should be, others may and will be using those same tools to promote their visions.
The Constitution, our laws, and our system give us resource and remedies. We can associate with others who think as we do and exercise what political power that association gives us to influence legislation. We have the opportunity to try to join with enough other people we can elect legislators and other public officials who we consider more attuned to our interests. And we can seek redress in court. And others who believe differently have the same opportunities.
There is a difference between political speech and following the laws of the land. As we've seen in the past few weeks politicians have proposed actions which would never pass constitutional tests.
They are free to do so because political speech is judged in the court of public opinion, not by courts of law.
To my knowledge there has yet to be an administration that didn't find some court interpretation of the constitution objectionable. AFAIK none of them have been silent about it.
They are free to do so because political speech is judged in the court of public opinion, not by courts of law.
To my knowledge there has yet to be an administration that didn't find some court interpretation of the constitution objectionable. AFAIK none of them have been silent about it.