Buddha, you’ll note that they are admissible unless they are shown to be untrustworthy. This is because the Federal Rules of Evidence presume that people won’t falsify records during the ordinary course of work in hopes of altering some future litigation.
Well, I don’t disagree, but I think it would be as accurate to say that Stevens would preserve social rights at the expense of property ones. Again, it goes back to a conservative versus a liberal philosophy, which I think is unsurprisingly found in their respective decisions.
BUDDHA, as SUA said, if you want to start a different topic, you really should start a different thread.
SQWEELS, what do you mean by “property seizure”? Do you mean seizure like of evidence in the context of a criminal case, or do you mean forfeiture of property as a civil penalty? If you meant the latter, you may be surprised to hear that IIRC the justices are mostly in agreement that forfeitures as a civil penalty in drug cases are okay. (Though I think the case holding that is some years old now, and I can’t recall its name.)
I agree, but one can look at this another way. Under Sua’s hypothetical, prior to the Rehnquist Court, we honest citizens had lost the right to properly convict guilty people who had confessed. After the (hypothetical) Rehnquist decision, we got that right back.
Yes, I’m talking about property forfeiture, and no I’m suprised, but I am outraged. I’ve heard of people losing their homes because they had a couple of pot plants growing in the back yard. But my point is, what’s all this about Scalia favoring property rights?
Could you expand “the extremely restrictive bounds” just a little, please.
A particular “bug” of mine in almost all discussion about the Second Ammendment is how everyone seems to utterly ignore the “defining” first clause, and only talks about “the right of…”. Why is this?
(I’ve notice nearly the same odd approach to the copyright/patents section, which starts “To promote progress in Science and the useful arts…”. [I translate “useful arts” into 20/21st Century English as: Engineering and Technology.] Why is the “defining clause” of the Second Ammendment so seldom mentioned [–I’ve never heard it mentioned in 2d Amend. debates!]?)
I’m no big fan of the Second Amendment, but when you get right down to it, the “defining” first clause, like the beginning clause in copyright, is legally without much meaning. Just break it down.
Amendment II - “A well regulated militia, being necessary to the security of a free state, the right of the people to keep and bear arms, shall not be infringed.”
First off, the first clause is adjectivial - it sets forth no mandate and commands or prohibits no actions. The second clause, OTOH, actually does something.
Second, the second clause is not a necessary precondition for the first clause. The founding fathers could as easily have written, “A well regulated militia, being necessary to the security of a free state, the right of each State to independently determine whether its citizens may keep and bear arms, shall not be infringed.” Or “the right of each State to store arms, to be provided to members of its militia in times of need, shall not be infringed.” etc., etc. There are lots of ways that the Founders could have met the goal of supporting well regulated militias without guaranteeing the citizens to keep and bear arms. The Founders (who, IMO, were smart guys) chose to guarantee the right to bear arms. Obviously, the founding fathers intended people to have the right to bear arms.
Finally, if there is ever a question as to how the Founders intended a section of the Constitution to be interpreted, one can look to the practices of Founders at the time they were alive and running the show. Were laws enacted in the 1790s limiting the right to bear arms only to militia members? I honestly don’t know, but I don’t think so.
Sua
P.S. this doesn’t mean that I don’t think this should be changed. It simply means that if change is to occur, we will need an Amendment overturning the Second Amendment.
I am limiting this response extremely; we do not need to turn this thread into yet another gun control debate.
Lower courts, state and federal, have treated the 2nd amendment as applying only to the federal government. The states have been given carte blanche to impose any restrictions on keeping or bearing arms that they wish. This diverges somewhat from the traditional view that the 14th amendment applies the restrictions of the Bill of Rights to the state governments. The Supreme Court has mostly kept mum on the issue, and while Rehnquist has written dicta raising the possibility that the 2nd amendment may apply to the states, there have been no significant 2nd Amendment cases decided by his court.
I mentioned that just as another example of how the standard view of the Bill of Rights has not been changed very much under the Rehnquist court.
I’m not touching that one with a ten-foot pole. I don’t want to hijack Polycarp’s thread.
Now here’s an interesting debate. Some of the characterizations are dead wrong:
Scalia’s never seen a Constitutional right (except takings) he didn’t try to limit. Way off base. One could argue that in a way he’s a civil libertarian, based on the flag-burning cases (which Congress is still trying to get rid of, including proposing a new Constitutional amendment), and the heat-sensor search case. One could also argue that his fairly strong revulsion for affirmative action of any kind is upholding the letter (if perhaps not the spirit) of the Reconstruction-era amendments.
Supreme Court hasn’t done anything to expand the narrowed 2nd Amendment. There hasn’t been a significant 2nd Amendment case in approximately 50 years. Mainly because the NRA is smart enough to know that they don’t want S. Ct. further interpreting it – they’d rather fight their fights in Congress and state/local legislatures, where money and a motivated voting bloc can make a huge difference. Remember, last time S. Ct. really looked at the 2nd Amendment, they cryptically may have established that the preamble had some impact on the rights granted.
It sounds like most of you are lawyers. Unlike most people, I like lawyers. Some because they keep certain concepts in the mainstream, others because I love debating them.
Doesn’t matter if they are right, or I am right, I just like the way most of them think. Logical
On SuaSponte’s 2nd amendment post, it is my considered opinion that eroding the 2nd amendment would not be a good idea. Changing it would be even worse. It was placed into the constitution for one reason, and one reason only. It is the peoples guarantee that their right to revolution will not be taken from them. We are a nation, born of revolution, based on the Lockian principle that it is the right of the people to abolish government through force if necessary, when the government does not support Natural Law.
(I have never owned a gun)
I have noticed one thing about lawyers that does make me mad. It is when they look at me, and tell me “its the law.” The only way something can be a law, is when the people have consented to it. This is where the Constitutional freedoms are being eroded.
The framers only made one real mistake in the scripting of the Constitution. I hope I can convince any lawyer reading this of what is really happening. The founders never envisioned that one day the three branches of government who conspire together to circumvent the Constitution. This is the plight of today.
As the propaganda and rhetoric continues to be heaped on the unsuspecting, scared, and uneducated populous, few are aware of the agenda being conceived.
I just wish more people would simply read the Declaration of Independence, at least once a month, because we are the tyrant from which we separated. Many of the causes listed are here, and getting worse.
One more thing, I get arguments about this all the time. In reality, the Declaration is the Constitution. Care to argue this?
At the risk of a slight hijack, I recall reading something recently criticizing what it characterized as an increasing trend towards more complicated decisions, resulting in less clear guidance to lower courts and affected parties. It provided one example in which there was no clear majority decision but, instead, an apparent plurality with various individual justices joining in part and dissenting in other parts of each others’ opinions. Suggested it was difficult to determine exactly what the holding of the court was. I believe it also suggested that the Supremes were not doing their job in issuing such unclear decisions.
I’ll try to dig up a cite. No idea as to the source. I used to be far more interested in and informed about such issues that I am now.
The ruling requiring a warrant for thermal imaging came as an unexpected, yet pleasant, shock to me.
Well, as Polycarp asked for input from attorneys, that’s a good guess.
In actuality, under a common law system a good deal of the law in made outside the democratic process.
What’s wrong with an attorney telling you “it’s the law”? That sentence makes no claims as to how X became the law.
Examples?
Certainly. My argument is: that is a ridiculous statement. First of all, the Constitution is the basic law establishing our system of government. In contrast, the Declaration is a statement that declared independence from Great Britain. It made no attempt to spell out a system of government, and indeed the American government in place between the Declaration and the Constitution was radically different, both in philosophy and in practicalities, than the post-Constitutional government.
Second, the Declaration is a radical document. The Constitution, in contrast, is a relatively conservative document.
I find this statement totally puzzling. You say he always tries to limit Constitutional rights, but then you cite the flag-burning case, where he upheld the individual’s First Amendment right to burn a flag as a form of protected speech (contrary to the popular conservative position), and the thermal imaging case, where he not only upheld the individual’s Fourth Amendment right to be free from unreasonable seaches and seizures but arguably expanded that right to include freedom from warrantless thermal-imagining – an opinion he authored, IIRC. It seems to me you have cited the two recent cases most likely to undermine your own argument.
Y’all are on notice (if you care) that I am NOT discussing the Second Amendment. Been there, done that, had to wade out of the resulting quagmire.
USURPER –
Actually, that’s not correct insofar as Constitutional interpretation is concerned. The Constitution protects all of us, and none of us have to “consent” to that. The specific parameters of its protection are subject to judicial interpretation – not popular vote – and we don’t get to consent to that, either. For example, it seems clear that the majority of people in the country would “consent” to having flag-burning be considered illegal, despite the current judicially-decided rule that it is a form of protected speech. Even in the context of legislated laws (which the Constitution is not), only those who agree with the law have “consented” to it, but everyone is bound by it once is is duly passed.
Ah, yes, the Great Conspiracy to Torpedo the Constitution. I wonder if you could explain in a little more detail what you mean?
DINSDALE –
If you mean the Declaration of Independence, I would say “no.” the D of I was the document by which the colonies justified their rebellion from England. It was not, so far as I know, intended to be a practical framework for government. It said, in effect, “We’re starting our own Club!” while the Constitution said “Okay, here’s the rules for the new Club.” Obviously you can’t have the latter without first having the former, but I don’t think one rests on the other, except in the broadest philosophical sense.
Um, in other words, what SUA said.
ld also argue that his fairly strong revulsion for affirmative action of any kind is upholding the letter (if perhaps not the spirit) of the Reconstruction-era amendments.
I think schplebordnik meant that first sentence, “Scalia’s never seen a Constitutional right (except takings) he didn’t try to limit” was “way off base” and was one of the “dead wrong” characterizations he was addressing.
IN WITNESS WHEREOF, the undersigned, acting freely in her sole discretion, does hereby certify, represent and warrant, effective as of this 30th day of August, 2001, that the following statement is true and correct in all material respects: Sua, Jodi, Elvis, Dinsdale and december have got it right and have got my admiration too.
I have nothing to add on the issue of whether rights are being eroded or not, but I must say that Scalia has a very individual voice and can write a very funny opinion (no comment on the substance of his opinions is intended by this observation). Check out his dissent in the disabled golfer v. the PGA case. He sounds the same in lots of his opinions too (doesn’t seem like the clerks are writing most of them), and I think he will have a legacy because of his style, if for no other reason.
DANIMAL – Ah. I get it. Boy that last post of mine was sure a keeper, huh? :rolleyes:
HUMBLE SERVANT – Thanks! With respect to the second paragraph of your post, I would only add that Scalia can be very harsh in his criticisms and dissents when he thinks the majority is wrong – to the point that some people think his is uncollegial if not downright unprofessional. It is one of the criticisms most often leveled at him, or at least so I’ve heard.
