I don’t know what you two are gettin’ at. To me, the Lautenberg Amendment does have a definite effect on “the right of the people to keep and bear arms, shall not be infringed” It illustrates the fact that those, whose goal it is to further restrict private citizens from owning firearms, will go to any lengths to circumvent the Constitution.
I’m not even going to waste my time just to rub your nose in the stench of that twisted insanity.
Hold on, Oliver, you’re dodgin’ this one.
Now, given that critera, name just one inalienable right.
Come on, Kelly, aren’t you making a stretch here? All I have done is to point out that we all possess the inalienable right to make our own choices. That being said, there may be consequences to the choices that one makes. That, by no means, is giving **“everyone the inalienable right to do anything whatsoever, including interfere with other people in their exercise of their inalienable rights.” ** At least you could be fair with your rebuttals.
Well, sort of, but in the context of the 2nd Amendment, the right has already been acknowledged.
The purpose of the Amendment is to place a stricture against the government from infringing upon that right.
Hey, I am not the one who claims that the death penalty is reconcilable with the declaration of independence. Given that, I do not consider life an alienable right.
See, the fact that nitwits think they know what it means doesn’t mean it is straightforward, and claiming that the court should not interpret the constitution is declaring the United States a dictatorship under your own opinion. The only one twisting and perverting the constitution here is your drivel. It is not the task of the court to do as you want it to do. It is the very role of any court to interpret the meaning of the text of the law, and it is the very role of a Supreme Court to interpret the highest law of the land, the constitution.
Out of demands like yours, tyrannies are born, not thwarted.
Razorsharp, you do not have a right to do a thing if you can be justly punished for having done it. You seem to believe otherwise.
In your view of “rights”, do I have the inalienable right to take my neighbor’s cow? Does it matter if I took his cow because I was hungry? What about if I took his cow because it looks nicer than mine? Or if because I don’t think he deserves to have a cow? Do I have the inalienable right to kill him? Does it matter if I killed him because I wanted his cow and he wouldn’t let me take it? Or because he made threatening gestures at me? Or because he tried to take his cow back? Or take my cow?
If you say I have the inalienable right to take his cow under any circumstance, you deny the existence of property rights. If you say I have the inalienable right to kill him under any circumstance, you deny the existence of the right to life.
Then you do agree that, by your criteria, the right to bear arms is no more ‘inalienable’ than the right to drive on the highway? Or are you saying that a right is only inalienable if it’s in the Constitution.
You make an completely and utterly inaccurate legal assertion that, to my knowledge, has NEVER been accepted by any appellate court in the entire country (an appellate court with plenty of conservatives and liberals by the way) and, when I properly correct you, you get pissy? I have lost the tiniest bit of respect I may have at one time considered maybe having for you. It boils down to the entire federal bench being wrong, and you being right. It becomes clearly obvious to me that there is no way to ever debate with you, and it is impossible for you to admit your own misstatements. If you continue to spew forth incorrect legal assertions, I’ll attempt to undue the ignorance you are spreading, but you hyperinflated ego makes anything else impossible.
Oliver H that passage by Madison is great in helping us to understand the states can arm its citizens or permit them to be armed for the purposes of serving in a militia but it really does not aid Razorsharp’s argument that each individual has a right to bear arms regardless of whether or not they serve in the militia.
As you concede yourself Madison focused on the “well regulated militia” part but did not state specifically every individual or citizen of the United States had a right, unrelated to serving in the militia, to possess a gun.
Really? What if it doesn’t exist? What if none of the Framer’s spoke to the issue of whether or not citizens or individuals had a right to possess guns unrelated to serving in the militia? If this is true, then no consensus exists on this particular and narrowly defined issue. This was the point I made that you failed to grasp. You assume the Framers spoke on the issue of whether or not individuals have a right to possess guns unrelated to serving in the militia and from the research I have done they said very little if anything on this point.
Finally lets assume there was a consensus. Lets assume 51% of the Framers actually had spoken on the issue of whether or not individuals could possess guns unrelated to serving in the militia. Why should the majority point of view prevail? A majority of the Framers believed in a separation between church and state and felt, in particular Madison, the opening of Congress with a prayer by the Chaplains violated the Establishment clause. Should this practice be abolished because a majority of the Framers believed in a much more strict separation of church and state than some if not most Americans do today? Or can the position of a minority of Framers be adopted in regards to the Establishment clause that results in a less stringent separation between church and state?
The majority of the Framers believed in public hangings, public floggings, and public executions by shooting and I suppose, according your reasoning, the U.S. should immediately return to these practices because most Framers condoned this activity? Most Framers also believed slavery to be protected by the Constitution and I suppose America should immediately return to slavery to comply with the Framer’s consensus?
Most of the Framers believed women should not vote, nor any male who does not own property and is not a member of the caucasion race and so I suppose all people who are not white or do not own property should be denied sufferage tomorrow to comply with the view of the majority of the Framers.
Can’t the majority be wrong? Hasn’t the majority been wrong before? I have provided some examples where the consensus among the Framers is considered to be terribly false, immoral in some instances, and wrong today.
Aren’t interpretations of the Constitution in part defined by the times in which it is interpreted? Wasn’t it the Framers intent not to bind future generations with their interpretations but allow future Americans to interpret the Constitution. Yes it was and this is why the James Madison wrote the Constitution in very general and broad terms to permit future generations to interpret the Constitution in such a way as to accommodate the times.
Thomas Jefferson commented he believed a Constitutional Convention should be convened every 20 years to determine what interpretations they want to take in regards to the Constitution because nobody should be bound by the interpretations of the Constitution made by people dead and gone .
The Framers intended for this Constitution to perpetually exist. To do so they understood different interpretations would be necessary as the times changed and they wrote the Constitution in such a way as to adapt to the times. So it is quite clear the Framers did not want their interpretations to exist perpetually or bind the people of the future but understood in order for their newly formed government and Constitution to exist it would require the document be written in broad and general terms lending itself to a myriad of interpretations permitting the Constitution to stand the test of time. So just because you have a “consensus” means very little. You are ignoring the Framers intent that the Constitution be reinterpreted and their interpretations repudiated.
Really? I will admit it is straightforward in some areas but in others it is not. What does “due process” mean Razorsharp? It appears twice in the amendments. The amendments do not define what “due process” means and consequently the Court and inferior courts must rely on some history in understanding what it means but do not bind themselves necessarily to this history. The genius of the U.S. Supreme Court is they comprehend the Framers intent not to be bound necessarily by the interpretations of men who died nearly 200 years ago.
What does “commerce” mean? What does “to regulate interstate commerce” mean? What does “the Executive power” mean? What does it mean for the President to be “Commander in Chief”?
Really it is this easy? Well lets suppose a state legislature passes a law prohibiting the advocation of the use of force or violence to effect political or social change and also makes it illegal to advocate the use of force or violence to be used against a particular racial, political, or religious group. The purpose of this law is to keep people from becoming insensed with the speech and the speaker and actually acting upon such advocation.
Now lets supposed a KKK member makes a speech at a Klan rally in the middle of town discussing the propriety of using violence to effect political change. Specifically the Klan member says it may be necessary to take some vengence out on members of Congress, members of the Court, and the President if they do not stop immediately their support of the African American race. Additionally the Klan members discusses how a race war is necessary to cleanse America of racial impurities, specifically all African Americans must go, Hispanics, Mexicans, Italians, and many others.
Now before the Court or any court can determine if this legislation is unconstitutional they must first construe and understand what exactly the First Amendment requires. Does the First Amendment prohibit this message or protect it? Does the First Amendment protect death threats? Does the First Amendment protect slander? Does the First Amendment protect libel? Does the First Amendment protect speech that solicits the death of a particular individual? Before the Court or any court can decide whether or not legislation passed by the legislature that deals with each of these subjects is Constitutional requires them to interpret and construe what exactly the First Amendment says.
As Justice Marshall noted in Marbury v. Madison, before the Court can determine if legislation is in violation of or compatible with the U.S. Constitution and its provisions, the Court must first ascertain what the Constitution and the relevant provisions say. It would be impossible for the Court to determine a question of constitutionality regarding legislation without first understanding and knowing what the Constitution says.
This was made evident in Gibbons vs. Ogden where there was a conflict in shipping licenses between the state of New York and the Congress. Congress asserted it had the authority and the state of New York must cede to them since their law is the Supreme Law of the Land. Congress asserted they had the power do do what they did because they had the power to “regulate interstate commerce”. However, this assertion was not sufficient and the Court had to first construe what is meant by the phrase, “to regulate interstate commerce” before it could decide if the legislation passed by Congress was constitutional.
I can think of a host of other factual examples where the U.S. Constitution does not specifically speak on the issue but requires an interpretation of the U.S. Constitution first before it can be applied to the factual setting to ascertain the constitutionality of the situation. One must first know what the Constitution says before they can apply it to legislation.
So I would say interpreting the Constitution is most certainly a proper role for the Court and courts to engage in if one is going to ask them to pass judgment upon the constitutionality of the legislation. An interpretation of the Constitution is a necessary step or condition to deciding if legislation comports with the Constitution.
A law is passed that a domestic violence conviction results in a removal of the right to bear arms. This penalty is applied to a guy who was convicted of domestic violence before the law was passed.
Nevermind the appellate court. How is this not ex post facto?
Look, you started the “pissyness” with me. Problem is, as you have learned, you have stepped in way over your head.
As far as “correcting” me, ha, what a joke. You’re deluding yourself. But, hey, you don’t have to deal with me if you wish not to, but at least you could address zwalld’s contention with your assertion.
Come on, I’m anxious to read it.
Arguing that the ex post facto clause of the Constitution automatically invalidates any legislation that touches on precedent facts is wrong, and flies in the face of hundreds of cases interpreting the Clause. Before I get to far in, I’ll quote Justice Stevens in Landgraf v. USI Film Products, 511 U.S. 244, 269, when he said:
Interesting enough, Landgraf involved an attack on Title VII of the Civil Rights Act, where the company argued that conduct prior to the enactment of the law could not be used against it. The Supreme Court, however, pointed out that
An inquiry into whether or not a statute violates the Ex Post Facto Clause of the Constitution is not a simple “if it contains reference to a prior act, it must be unconstitutional”.I’ve tried to point out what I think is the fairly obvious answer to your concern, that contrary to Razorsharp’s and your assertion, the statute created a new crime, and did not inflict additional punishment on a domestic violence conviction. Any punishment under the statute is for the crime of possession of the firearm, not for the domestic violence conviction; the crime is not being committed until after the legislation was enacted.
I’ll try to give a few analogies. The same argument was made in U.S. v. Brady and other cases, when it was made illegal for felons to possess firearms. As the Court said in Brady
In rejecting defendant’s challenge, the court held: Regardless of the date of [defendant’s] prior conviction, the crime of being a felon in possession of a firearm was not committed until after the effective date of the statute … by [the date of defendant’s conviction under 922(g)(1), defendant] had more than adequate notice that it was illegal for him to possess a firearm because of his status as a convicted felon, and he could have conformed his conduct to the requirements of the law. Therefore, the Ex Post Facto clause was not violated by the use of a 1951 felony conviction as a predicate for a violation of 922(g)
An Ex Post Facto claim was also rejected in regards to the “Three Strikes” legislation. They argued that by relying on convictions that occurred before the law was enacted, they were increasing the penalty of those prior convictions. I’m guessing razor won’t even bother with this stuff, but I’ll continue. Once again, the Courts held that the Ex Post Facto clause was not implicated. As the Court in U.S. v. Farmer said: “so long as the actual crime the defendant is being sentenced occurred after the effective date of the new statute, there is no ex post facto violation.”
The Supreme Court has repeatedly held that the inquiry into a potential violation of the Ex Post Facto Clause goes beyond the simple inquiry of whether it may have a retroactive effect, but the Courts must also consider the non-punitive goals of the legislation. For example, in cases involving Megan’s Law (requiring sex offenders to register), Courts considered the main goal of the legislation, the protection of the public. Likewise, the Lautenberg Amendment, by forcing misdemeanants to forfeit their firearms, does not increase the criminal penalty for the misdemeanant crime. It merely draws upon that crime as an element to further nonpunitive legislative goals - the protection of women from domestic abusers. Here, the statute is not to provide another penalty for the domestic violence conviction, but to regulate the people who may possess a firearm. As such, it serves a proper remedial function of limiting access to firearms to those who have a history of domestic violence.
It may help to look at it like this: the day before the Lautenberg Amendment was effective, it was legal for a person with a prior domestic violence conviction to possess a firearm. The next day it wasn’t. It is the date the Lautenberg Amendment took effect that is the date in issue for an ex post facto inquiry. Had the Amendment made it illegal to possess a firearm, before it’s effective date that would have been a violation of the ex post facto clause. But it didn’t. And it’s not.
I hope this helped. ‘Cause if I didn’t, I’m all out of ideas.
Because the offense which caused him to lose possession of the gun was the offense of “possessing a firearm after having previously been convicted of a felony or a domestic violence offense”. The offense for which the gun was confiscated occured at some time after such possession became unlawful, so there is no ex post facto violation.
zwalld, the rationale goes like this: the law makes it a crime for certain people to possess a firearm. It doesn’t impose a penalty, it makes a wholly new conduct a continuing crime for a certain class of people. You’re not in trouble, you’re just in a class of people who can’t legally possess firearms, just as if they passed a law saying that children under 15 can’t own a firearm. The children under 15 aren’t being penalized for anything, and neither are the mental patients, wife beaters, and felons prevented from owning a firearm.
Since possession is a continuing crime, someone with one of the prior arrests isn’t being penalized for conduct that was once legal and is now illegal. They’re being penalized for breaking the law against possession of a firearm that occurs after the passage of that law. In that case, they are able to conform their conduct to the law, and choose not to.
Originally posted by Jimmy1
Oh, I see you are of the Al Gore mindset. The Constitution is a “living document”. Well, that’s a whole lot of crap. As Walter Williams would ask, "Would you set down and play poker with someone under “living rules”?
Sure, there is some interpretation required, but sometimes interpretation is used as an excuse for facilitation.
Even your example of “interstate commerce” has been abused to the degree that private individuals have been prevented from growing crops on thier own property, for their own personal use, under the guise that ,because that they will not be buying those crops on the market, they are affecting “interstate commerce”.
As for misrepresenting and misinterpretating the Constitution to facilitate an agenda, we need look no further than the Supreme Court’s ruling in Roe v Wade.
Now certainly, “privacy” is a penumbral Constitutional right of the individual, but that was not really being addressed in Roe, it was more or less an excuse put forth by plaintiff’s counsil to get the Court to hear the case. The Court, sympathetic to the cause of feminism, accepted the premise for the sole purpose of satisfying the politics of feminism.
The real issue was that the State of Texas had a law that forbade a particular medical proceedure. This law was, in no way, a violation of anyone’s “right to privacy” anymore than a state’s law against gambling is not an infringement of one’s right to privately spend their own money as they see fit.
The First Amendment doesn’t permit anything. What the Amendment does is prohibit congress from passing any law that restricts freedom of speech.
Agreed, but the fact remains that the courts sometimes “interpret” the Constitution to facilitate agendas, right?
This thread is a lost cause. I’m outta here.
That’s only if it applied to everyone. For example, if hunting was made illegal today and anyone who hunted yesterday was arrested. However, since Lautenberg only applies to domestic violence convicts, the removal of gun rights is an additional penalty on their prior conviction.