What the hell?
I’ve said this many times. I no longer practice law, but I am a lawyer. When I practiced, I was a criminal defense attorney, specifically a public defender.
With respect to the thread title, I concede that I am not a law professor.
That’s correct. So “The second amendment doesn’t confer an individual right to bear arms,” would be a poor choice for a debate, inasmuch as the question is settled contrary to the proposition. If the proponent of that claim isn’t able to clearly articulate that he is actually claiming “The second amendment shouldn’t confer an individual right to bear arms,” then he will surely be moved to expand upon his imprecisely-delivered claim.
“No further questions” says Perry Mason, as the bailiff moves to take the blubbering Bricker into custody…
But as I think I mentioned somewhere in this thread… I would be an awesome law professor.
So you see? I should be a law professor. I guess that’s just the same as saying I am one.
Right, CandidGamera?
That last bit of snark is beneath your dignity. If I’m wrong about that, I amend that it *should *be beneath your dignity.
Yeah, it was snarky.
But is this not the Pit? Can’t this be a home for undignified, unjustified snark? Won’t you please think of the snark?
Do I agree with your particular interpretation? No. But I would say “If Bricker’s interpretation of the meaning of the Due Process Clause of the Fourteenth Amendment with respect to abortion, then, absent an amendment touching and concerning that provision, it remains the correct interpretation intertemporally.”
If one wanted, you could maybe make some jurisprudential hay out of Frege’s division of meaning into sense and reference. A statement like “Use this money to buy the safest model of car on the market” changes in meaning–that is, it commands the purchase of different kinds of car–depending on when you consider it. The safest car model on the market now is different from ten years ago, and will again be different ten years hence. It refers to a different model of car depending on the time. The sense of the statement seems to remain constant however.
Perhaps one could also say the the liberty interests that we think the Due Process Clause protects changes over time. That is we think it refers to different sets of rights (human or civil) and liberties. However, it changes because we refine our understanding (and more thoroughly embrace our duty to implement that understanding) of what the sense of liberty or equal protection is.
Maybe you think this is all smoke and mirrors, but I think it might be a worthwhile point of view to explore.
I most respectfully disagree. I see your point, I think, but I believe the on-line medium already suffers from too much imprecision of meaning. We are social animals, communicating through tone, gesture, and posture as well as choice of words. On a message board, we are robbed of the former tools and left only with the black letter of language.
I think we’d be better served by clarifying, to the extent reasonably possible, what we mean. Even if multiple phrases could reasonably suggest a single meaning, I believe we do well to take the extra step to cement our meaning, to make clear the point we are advancing and defending. This is all the more true in GD, which has a culture of mildly contentious give and take on the truth or falsity of facts asserted in support of an argument, and the strength of the inferences to be drawn from those facts.
But what do I know? I am, after all, the most overrated attorney on the boards.
Hugs! At once! Code Blue, get the hug cart here, stat!
Hath not a lawyer eyes? Hath not a lawyer hands, organs, dimensions, senses, affections, passions; fed with the same food, hurt with the same weapons, subject to the same diseases, heal’d by the same means, warm’d and cool’d by the same winter and summer?
Didn’t that guy have something else to say about lawyers?
Lawyer season!
Ha! Look at the first response in this thread to see what I mean.
Now, in fairness, it’s true: we can’t blame Guinastasia on you. But still, you’ve definitely occasionally allowed your SDMB celebrity status to bamboozle the cheap seats.
You gotta be fucking kidding me.
Well, no.
But I admire the cogency of your argument.
The question is settled in law, but not in enduring fact. So when someone advances that as a debate topic, one may reasonably assume that they disagree with (or at the very least, wish to conduct an analysis independent of) the Supreme Court’s decision. To assume otherwise suggests you enjoy being a pedantic ass.
Is Segregation unconstitutional? Has it always been? Bricker, if your view on the interpretation here was the correct one, why did the Supreme Court even agree to hear Brown v. Board of Education? If the real world conforms to your view, why would any Supreme Court decision Ever be overturned, absent new law? Stare decisis is a guideline and not a rule precisely because judges render opinion, not fact.
Which brings us all the way back to the horrible insulting observation I hurled to start this hugfest: you are not a Supreme Court justice. You’re not on the federal bench. Judges are indeed empowered to create binding precedent, and overturn earlier precedent. Even then, the lawyers that ask them to do this don’t march into court and say, “Overturn this prior decision because the Constitution doesn’t really mean that.”
So to put it real simply: I don’t agree that a reasonable assumption is that someone who states, definitively, that the constitution means something it doesn’t is speaking of disagreement with current caselaw. I think it’s more likely they don’t know current caselaw, or they are seeking an argumentative advantage by claiming as fact that which is not fact.
And my intention is to continue to either correct them or rob them of that argumentative advantage by pointing out the current case law. I understand that you don’t agree, and I understand that by doing this, I will be acting like a pedantic asshole in your view.
And you know what? I can live with that.
Its not the pedantry. Its the effort to move every argument to your own area of expertise and insist that it is the only relevent approach. Its insisting on playing Republican poker, where I get five cards, you get seven, all mine are face up and you get to draw twice.
The Supreme Court gets to decide what interpretation of the Constitution holds sway over the lower courts.
They don’t get to decide what the interpretation of the Constitution ought to be. “Ought to” questions are inherently subjective.
Sometimes when someone says “Law X violates the First Amendment” all they really mean is “I think the First Amendment ought to be interpreted in such a way as to make Law X unconstitutional.” And they might be right about what the law ought to be, even if the Supreme Court differs on what the law is.
Of course, one could argue that the Supreme Court Justices are better qualified to make that call than some anonymous message board poster . . . but sometimes even an opinion that goes against the majority of the court still has four Justices on its side.
Then it’s easily defeated, isn’t it, by pointing out that you meant “Law X SHOULD BE unconstitutional.” Right?