Posted on 05/24/2008 1:06:12 AM PDT by JohnHuang2
In a recent speech to the National Rifle Association, Sen. John McCain presented himself as an advocate of judicial restraint. The presumptive Republican presidential nominee decried "activist judges" who override the will of the people as expressed by their legislative representatives, in the process "shrugging off generations of legal wisdom and precedent."
Yet that is exactly what the U.S. Supreme Court will be doing if, as the Arizona senator urges, it overturns the District of Columbia's gun ban. Evidently some kinds of judicial activism are better than others. Perhaps activism vs. restraint is not the best measure of what makes a good judge.
The most recent Supreme Court decision addressing the Second Amendment is ambiguous but has often been read as endorsing the view that "the right to keep and bear arms" pertains only to state militia service. That is the position taken by most federal appeals courts, and until relatively recently it was the conventional wisdom among legal scholars.
Mr. McCain nevertheless is right that the Supreme Court should reject that view — not because doing so epitomizes judicial restraint but because a thorough examination of the Constitution and its historical context shows that view is wrong. It is wrong no matter how many legislators, academics and judges have endorsed it, no matter how long it was widely accepted.
What about the California Supreme Court's conclusion, announced the day before Mr. McCain's speech, that the state constitution requires official recognition of same-sex marriages? Mr. McCain criticized the ruling for overriding the people's will, reflected in a 2000 ballot initiative that reaffirmed the traditional definition of marriage as a union between one man and one woman. Although the four judges in the majority acknowledged their decision was inconsistent with the way marriage had always been understood
(Excerpt) Read more at washingtontimes.com ...
Does this scholar really not see a distinction between overturning a law that directly contradicts the words of the Bill of Rights and creating a new law based on a perceived penumbra in the tone of assorted writings? I'd suggest a career in the food service industry, using simple phrases like, "do you want fries with that", if he can't tell the difference.
The most recent Supreme Court decision addressing the Second Amendment is ambiguous but has often been read as endorsing the view that "the right to keep and bear arms" pertains only to state militia service. That is the position taken by most federal appeals courts, and until relatively recently it was the conventional wisdom among legal scholars.
Okay, that clarifies his position. The actual wording is "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." He left out three little words describing whose rights are protected in the right to keep and bear arms: "of the people". Somehow, in the minds of liberals, those words no longer matter.
If the Supreme Court notices that critical phrase when forming their ruling on the right of the people to keep and bear arms, I'll consider the Bush presidency a success.
Your comment is dead on.
Just the opposite. I believe previous court rulings were based precisely on those words (coupled with the militia preamble).
You'll note the Founders didn't refer to "individuals" or "persons" or even "citizens" in the second amendment but to "the people". Perhaps you think "the people" means "all persons"? Does it?
I would have thought that "of the people" would have the same meaning in the 2nd Amendment as in the 1st: the right of the people peaceably to assemble, and in the 4th: the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures. Are the 1st and 4th Amendments collective rights too?
In other words, yes. It is, as someone oberved long ago, a self-evident truth that all men are created equal, and that we are endowed by our creator with certain unalienable rights. The right to self-defense is the most basic natural right given to each individual by God, and even a liberal athiest should recognize the right to self-defense under any variant of evolution as the foundation of existence.
Excuse me for butting in but you're begging for long day 'newbie'. FReepers know more about the U.S. Constitution, Bill of Rights, every Amendment passed, etc, than all the 'experts' in D.C. -- in short, you're wrong, re : 'the people'.
Expect about .. oh .. a few hundred responses pointing out the error in your ways.
Have a nice day. (keep them typing fingers limber)
ps: read the Federalist Papers in your spare time
It does. And the same meaning as in Article I, Section 2 of the U.S. Constitution (ie., the protection of the right is limited to the enfranchised body politic).
"Are the 1st and 4th Amendments collective rights too?"
Must they be? The protection of the right in the 1st (to assemble) and 4th is limited to "the people" (unlike, for example, the 5th, where the right is protected for all persons).
"The right to self-defense is the most basic natural right given to each individual by God"
I agree. Even an illegal alien, or a prisoner, or the mentally ill have the God-given inalienable right to self defense. Do they not?
Well, I'm here to learn.
I only brought it up because it seemed to me that when the Founders were referring to everyone they wrote "persons". And when they meant citizens they wrote "citizens". Yet in the second amendment (and elsewhere in the U.S. Constitution) they wrote "the people".
Perhaps you can tell me to whom they were referring?
"ps: read the Federalist Papers in your spare time"
I have, and that's where I'm a little confused. In Federalist 29, Alexander Hamilton says that the project of disciplining (ie., training) all the militia of the United States "is as futile as it would be injurious" and that "little more can reasonably be aimed at" than to have the people properly armed and equipped and assembled once or twice in the course of a year.
He certainly didn't mean assembling every person (or even every citizen) every six months, did he?
In other amendments the bill of rights refers to the "people" and this has been upheld as the intent of the founders to mean individuals , the only amendment a specific ruling hasn't been given for on the meaning of "the People" is the 2nd. It is kind of hard to believe that the founders meant individuals in the other amendments and decided to use the same wording in the 2nd to mean a "group"(read mililtary) right as some liberals have claimed.
The second amendment means just what it says. The people(idividuals) have the right to keep and bear arms without interference(infringement, look it up)from the government.
Article I, Section 2 of the U.S. Constitution says House members are elected by "the people". Are these the same ones protected by the second amendment?
re. your #7
There’s Hillary Clinton’s “no human being is illegal” schtick.
Enjoy your stay here. Oh, and get some flame-retardant pants. You’ll be needing them soon.
robertpaulsen, is that you????? LOL
I had the same question.
LOL
Can you find any evidence that the Founding Fathers meant anything less than "all free persons"? Privately-held slaves were not free, nor were convicted criminals (until such time as all parole obligations had been met). Minors were not free (they were subject to the will of their parents), nor were inmates in a lunatic asylum (subject to the will of their caregivers). Fugitives were not free (since they would be subject to the will of the state once captive); illegal aliens would presumably be regarded as fugitives. Legal non-resident aliens, who could be expelled at any time, would probably also (for that reason) not be considered free.
So are there any free persons whom the Founding Fathers would have excluded from the RKBA?
Perhaps someone who claims that's what Miller meant could answer me these questions:
Now to the point of this exercise. Why did the Founders limit the protection of the second amendment right to those who remained -- essentially adult, white, male citizens? The protection of other rights (religion, speech, due process, double jeopardy, excessive bail, etc.) was extended to every person -- even non-citizens.
I don't mean to come across as combative -- I'm simply curious why the second amendment didn't say "all persons" or "all citizens".
They did. Frank Layton was re-indicted after the U.S. Supreme Court ruling and ended up pleading guilty.
"Had the case proceeded to trial court, should a jury have been allowed to determine whether Miller's shotgun was a militarily-suitable instrument?"
The defendant was screwed either way. If the weapon was not suitable for a militia then it could be taxed and they had no tax stamp. If the weapon was suitable for a militia, then what are ordinary civilians doing with such weapons?
At least, that was the question brought up in a similar case a few years later [Cases v. U.S., 131 F.2d 916 (1st Cir. 1942)].
On September 22, 1938, the Fort Smith, Arkansas, Southwest American reported that "Jack Miller and Frank Layton of Claremore were re-indicted on a charge of transporting a sawed-off shotgun from Claremore to Siloam Springs last April 18."http://www.gunlawnews.org/Miller.html
Printed for the use of the Committee on the Judiciary
Click here to read the report BY THE SENATE that finds an INDIVIDUAL RIGHT to keep and bear arms
"The conclusion is thus inescapable that the history, concept, and wording of the second amendment to the Constitution of the United States, as well as its interpretation by every major commentator and court in the first half century after its ratification, indicates that what is protected is an individual right of a private citizen to own and carry firearms in a peaceful manner."
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