Posted on 05/02/2003 10:50:39 PM PDT by Steve Van Doorn
Thank you everyone. I feel I am talking to a wall with these people.
But anyway, the key argument against the "living document" nonsense is that the Constitution specifically states the *only* way it is to be modified (if need be) due to changing times, situations, or public fancy -- by the amendment process laid out in Article V.
The entire reason for the amendment process is so that no whim of those in power (either the president, or the congress, or *especially* judges) could alter the Constitution without the *explicit* approval of the proposed change (*in writing*) of "we the people" (either via a new Constitutional convention, or via our state representatives in our state legislatures).
*This* is the only way to "grow" the Constitution to adapt to changing times, if need be. No whim of "judicial reinterpretation" under the "living document" twaddle can in any way said to be done with the specific consent of "we the people" -- it would only be a personal fiat of that judge or court, and that way lies the complete undermining of the very sort of Supreme Rule of Law that the Constitution was meant to embody.
The protections of the Constitution mean nothing if they can be wished away by any judge.
It seems that the only people who maintain that the Constitution is a living document are the people who don’t like it as it is written.
They’re like little children who don’t like the rules, and whine when they are told “no.”
Here is an example:
"There was little question at the time whether individuals should be allowed to own firearms… The question is …. how that law has been interpreted since“
These people are just nuts.
The Constitution can be altered, that's not a problem. But you have to Amend it to make the alteration.
Otherwise, what's written is the law of our land.
simple as that.
And then watch just how fast a strict interpretation becomes important again.
change=not guaranteed
not guarantedd= no solid ground
no solid ground = no foundation
no foundation = no right to anything
no right to anything = no property
no property = no freedom
no freedom = slavery
living constitution = socialism
In my experience, facing off against opponents in a debate of ideas is an incredible learning experience. If you are anything like me, the competitive juices get flowing. This is a wonderful driving force that should hopefully inspire you to look things up, find facts and documents and expert writings to support your arguments. You may dive into historical face offs between branches of government, famous court cases, etc. All in the pursuit of victory in a tiny little forum in a far off corner of the Internet.
And in the process, you, Steve, will become more aware, more knowledgable, and a better advocate of those ideas you cherish. So, by all means, go back in there, roll up your sleeves, and debate with all you've got. Don't cry for help. Do the lifting yourself.
Yes.
A slightly different approach...Ask them to describe what the Constitution would have to be if the Founders had wished it NOT to be a "living" document but rather intended that it be literally interpreted.
Several things come to mind...
It would separate the purpose of the Constitution ("promote the general welfare" in the Preamble) from the powers granted to the government.
It would bind the officers of the government to take an oath of office to preserve, protect, and defend the Consitution.
It would include a Bill of Rights to explicitly constrain the government.
The Bill of Rights would be worded in such a way that it prohibits infringement of rights but makes clear that the rights preceded the Constitution and exist independently of it.
It would explicitly warn that any enumeration of rights does not suggest that there are no others.
It would explicitly state that powers not granted to the government do not belong to it.
It would include "checks and balances" and the requirements for super-majorities to perform some functions which otherwise jeopardize true representation, e.g. the super-majority required to remove a President from office.
As others have stated, it would contain a detailed mechanism for amending the Constitution.
Recent scholarship addressing the Second Amendment establishes pretty clearly that individuals have a right to keep and bear arms and that such arms include those possessed by the government. There is a pressing need for an amendment prohibiting the possession of nuclear arms. The usefulness of such was clearly establish in August of 1945.
Similar scholarship regarding "strict construction" would probably establish that the Constitution is not a "living" document, but is a rather detailed, explicit enumeration of government powers.
There are so many problems with his post that it's hard to know where to begin. The first is that sentence itself -- as you note, it very certainly is *not* the "only standing ruling" which so finds.
In the Second Amendment Foundation's "BRIEF OF AMICUS CURIAE" in the Emerson case, they correctly state:
Of the 13 federal courts of appeals, 10 have spoken on the Second Amendment, four holding that the right guaranteed is not an individual right (the Third, Fourth, Seventh, and Ninth Circuits), three holding that it is an individual right (the First, Fifth, and Tenth Circuits), and three with cases going each way (the Sixth, Eighth, and Eleventh Circuits). The remaining three circuits (Second, District of Columbia, and Federal) have been silent. The majority of these cases, however, preceded the Supreme Court's decision inUnited States v. Verdugo Urquidez, 110 S.Ct. 3039 (1990), in which all nine members of the Court, in construing the term "the people" in the Fourth Amendment, were unanimous in agreeing that the term "the people" in the Second Amendment had the same meaning as in the Preamble to the Constitution and in the First, Fourth, and Ninth Amendments, i.e., that "the people" means at least all citizens and legal aliens while in the United States.Second, he states:
To put the situation in perspective, here's a list of cases regarding the Second Amendment.Yes, it's "a" list, but his dishonest implication is that it's a *comprehensive* list. It is not. In fact, all he has done is taken the *selective* list of "COURT DECISIONS SUPPORTING THE MILITIA INTERPRETATION OF THE SECOND AMENDMENT" from this web page (from the notoriously dishonest "Brady Center") and pasted it into his own post (without attribution -- perhaps he's dishonestly trying to give the impression that he has done his own research on those cases), and then stuck the Emerson case on the end of the "U.S. COURTS OF APPEALS" section in order to make it falsely appear a lone dissenting opinion lost in a sea of unanimous decisions. He also calls the Emerson case a "renegade" case, and so does the Brady Center write-up on it. He needs to learn to start thinking for himself instead of parroting a heavily partisan website.
Furthermore, the Brady Center list is flat wrong in declaring many of those cases to be "supporting the militia interpretation" of the Second Amendment, because I've personally read a great deal of those cases and some say quite the opposite, others are arguably so ambivalent that neither side can claim them for support, and still others only speak narrowly on such topics as whether *convicted felons* could claim a right to own firearms (when felons lose other clear individual rights as well, such as the right to vote) and do not touch upon any larger issues, as claimed by the compilers of the Brady Center list.
Finally, there are the cases which are simply parroted reiterations of prior cases, often by the same court. I once constructed a tree of Second Amendment court cases, indicating the sources each one used as support for its ruling. There's an old saying about "history does not repeat itself, historians repeat each other". Likewise, a vast number of those cases are just the same decision echoing through future rulings without any further analysis or thought by the subsequent justices. The ones that spring to mind at the moment in that regard are Stevens, Johnson, Warin, Hale, and Lewis, although I know there were more.
Tracing back their ancestry of supporting cites, what do we find? They all rest directly or (more often the case) indirectly on US v Miller. The problem, however, is that Miller says no such thing.
I know it's fashionable to declare that the Supreme Court decision of US v Miller ruled that the Second Amendment only protects active militia use of a firearm (or to hear some tell it, only if the owner is currently enrolled in a formal militia), but anyone who has carefully actually *read* Miller from start to finish (I have) and understands the legal issues at hand (again, I do), and who has traced back the documents which Miller cites and read them as well (I have), can come to only one conclusion which doesn't make logical hash of the decision -- in the Miller decision, the Supreme Court quite clearly (and correctly) ruled that the status of a firearm's owner (i.e., private citizen or active militia member) nor the use to which he intends to put his firearm ARE AT ALL RELEVANT to the issue of whether his ownership of said firearm is protected by the Second Amendment. And nowhere in Miller does it say that it is. The *only* criterion the Justices considered relevant was whether the *kind* of firearm would be suitable for militia use (and again, *not* whether it was *being* used in a militia or *by* a militia member). Period.
Another misconception about Miller is that it found that the sawed-off shotgun in question was *not* protected since it wasn't a militia-suitable firearm. Instead, in legal language that is ironclad if you know the terminology, they declared that they *couldn't* make a determination on that matter (since no evidence had been given on that topic), and thus they kicked the case back to the lower court for a re-examination of that matter. Which, incidentally, never took place, since one of the defendants was missing and the other was dead.
Anyone who cites US v Miller as support for the "collective right only" interpretation of the Second Amendment quite clearly hasn't actually read the case. Or at least they haven't understood it. And yes, I'm quite aware that several legal textbooks write it up that way. They are, in a word, wrong. I confidently state this as a result of my twenty years of research into the topic.
Next up is his amazingly clueless claim that the Supreme Court's decision not to hear the Emerson appeal supports his belief that "we can only conclude that the Supreme Court's interpretation of the Second Ammendment was in concurrence". He's clearly unaware of the Supreme Court's widely-known scolding of anyone who tries to read *any* conclusion into why the Court might decline to hear a case:
"Inasmuch, therefore, as all that a denial of a petition for a writ of certiorari means is that fewer than four members of the Court thought it should be granted, this Court has rigorously insisted that such a denial carries with it no implication whatever regarding the Court's views on the merits of a case which it has declined to review. The Court has said this again and again; again and again the admonition has to be repeated."Baker|NV" likes to give the impression that he's well-educated on these matters, but his bone-headed declaration above reveals him to be an uneducated poseur, who apparently relies too heavily on partisan websites and not enough on his own knowledge and research.The one thing that can be said with certainty about the Court's denial of Maryland's petition in this case is that it does not remotely imply approval or disapproval of what was said by the Court of Appeals of Maryland. [...]
It becomes necessary to say that denial of this petition carries no support whatever for concluding that either the majority or the dissent in the court below correctly interpreted the scope of our decisions[...] It does not carry any implication that either, or neither, opinion below correctly applied those decisions to the facts in the case at bar."
-- Justice Frankfurter, writing in STATE OF MD. v. BALTIMORE RADIO SHOW , 338 U.S. 912 (1950)
He's also obviously unaware of the many *clear* statements by the founding fathers which undeniably indicate that they meant the Second Amendment as an *individual* right. And in the past 200 years, no anti-gunner has yet to produce a single founding quote which clearly supports their beliefs on the matter -- the best they've ever managed only rise to the level of "could be argued either way".
"Baker|NV" seems unaware of:
"A Militia, when properly formed, are in fact the people themselves, and render regular troops in a great measure unnecessary."And:--U.S. Senator Richard Henry Lee (1732-1794) of Virginia, _A number of Additional Letters from the Federal Farmer to the Republican; leading to a fair examination of the System of Government proposed by the late Convention; to several essential and necessary alterations in it. and calculated to Illustrate and Support the Principles and Positions Laid down in the preceding Letters,_ (New York, January 25, 1788), p.169
"I ask, Who are the militia? They consist now of the whole people, except for a few public officers."And:--George Mason (1725-1792), in the Virginia Convention on the ratification of the Constitution, June 16, 1788, in_Debates in the Several State Conventions on the Adoption of the Federal Constitution,_ Jonathan Elliot, ed., v.3 p.425 (Philadelphia, 1836) [Elliot gives an incorrect date (June 14, 1788) for this quote, due to a typographical error.]
"As civil rulers, not having their duty to the people duly before them, may attempt to tyrannize, and as the military forces which must be occasionally raised to defend our country, might pervert their power to the injury of their fellow-citizens, the people are confirmed by the next article in their right to keep and bear their private arms."What part of "private arms" do people have trouble understanding?--Tench Coxe (1755-1824), writing as "A Pennsylvanian," in "Remarks On The First Part Of The Amendments To The Federal Constitution," in the _Philadelphia Federal Gazette,_ June 18, 1789, p.2 col.1 [Coxe is referring to the proposed amendment which became the Second Amendment.]
James Madison, who WROTE the Second Amendment, personally complimented Coxe (a constitutional delegate from Pennsylvania) on his summaries of the articles in the Bill of Rights.
Furthermore, Coxe's summary above was the most widely published summary of the Second Amendment in America during the ratification debates. When the states voted to ratify the Second Amendment, *that* is what they understood they were agreeing to.
"That the said Constitution shall never be construed to authorize Congress to infringe the just liberty of the press or the rights of conscience; or to prevent the people of the United states who are peaceable citizens from keeping their own arms..."Again, what part of "their own arms" is so hard to understand?--Samuel Adams (1722-1803), in Debates and Proceedings in the Convention of the Commonwealth of Massachusetts, pp.86-87, also in Philadelphia_Independent Gazetteer,_ August 20, 1789 (Pierce & Hale, eds., Boston, 1850)
And finally, how about a Supreme Court case:
"It is undoubtedly true that all citizens capable of bearing arms constitute the reserved military force or reserve militia of the United States as well as of the States, and, in view of this prerogative of the general government, as well as of its general powers, the States cannot, even laying the constitutional provision out of view, prohibit the people from keeping and bearing arms, so as to deprive the United States of their rightful resource for maintaining public security, and disable the people from performing their duty to general government."It doesn't get any clearer than that. And yet, you'll note that "Baker|NV" claims Presser as support for *his* position, through dishonest selective quoting.--U.S. Supreme Court Justice Woods, writing in _Presser v. Illinois,_ U.S. Reports v.116 p.252, Supreme Court Reports v.6 p.580, Lawyer's Edition v.29 p.615 (1886)
Feel free to paste this post into the UO discussion if you find it useful.
So true. Getting into an intense debate is a huge motivator for learning more and learning it fast. This is especially true of an on-line debate, which might unfold for a couple of days, so you have some time -- but not a lot of time -- to seek out supporting documents and such. It presents you with both the impetus and the opportunity to ramrod a bunch of new information into your brain. I learn more in the course of a three-day online debate than I do in months of casual reading and thinking about things.
And a great debating resource is FR's search engine. With articles plus FReeper insights right at your fingertips, it's almost like cheating.
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