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Title: SCOTUS Refuses to Hear Major Gun Rights Case, Clarence Thomas Files Sharp Dissent
Source:
Reason magazine
URL Source: [None]
Published: Jun 22, 2015
Author: Damon Root
Post Date: 2015-06-22 22:24:13 by tpaine
Keywords: None
Views: 12439
Comments: 60
SCOTUS Refuses to Hear Major Gun Rights Case, Clarence Thomas Files Sharp Dissent Petition denied in Jackson v. San Francisco. The U.S. Supreme Court dealt Second Amendment supporters a major defeat today by refusing to hear an appeal filed by San Francisco gun owners seeking to overturn that city's requirement that all handguns kept at home and not carried on the owner’s person be "stored in a locked container or disabled with a trigger lock." Today’s action by the Court leaves that gun control ordinance on the books. If the facts of the San Francisco case sound familiar it is because they correspond so closely to the facts at issue in the Supreme Court's 2008 ruling in District of Columbia v. Heller. In that decision, the Court voided not only D.C.'s ban on handguns, it also voided D.C.'s requirement that all firearms kept at home be "unloaded and dissembled or bound by a trigger lock or similar device." According to Heller, the Second Amendment protects the right of the people to keep a "lawful firearm in the home operable for the purpose of immediate self-defense." In other words, the San Francisco gun control law would appear to be plainly unconstitutional under Heller. Yet the Court still refused to hear the case. As is customary, the justices gave no explanation for their denial of the appeal. Two justices, however, did speak out in opposition to the Court's refusal to get involved. Writing in dissent, Justice Clarence Thomas, joined by Justice Antonin Scalia, accused his colleagues of undermining Heller and failing to give the Second Amendment its constitutional due. Here's a portion of Thomas' dissent: Less than a decade ago, we explained that an ordinance requiring firearms in the home to be kept inoperable, without an exception for self-defense, conflicted with the Second Amendment because it “ma[de] it impossible for citizens to use [their firearms] for the core lawful purpose of self- defense.” District of Columbia v. Heller, 554 U. S. 570, 630 (2008). Despite the clarity with which we described the Second Amendment’s core protection for the right of self-defense, lower courts, including the ones here, have failed to protect it. Because Second Amendment rights are no less protected by our Constitution than other rights enumerated in that document, I would have granted this petition. The case is Jackson v. San Francisco. Justice Thomas' dissent from denial of certiorari is available here. Damon Root is a senior editor of Reason magazine
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#20. To: TooConservative (#15)
It should be a delightful urban runabout, especially in sunny places like CA One of the fastest cars I've ever owned, and definitely the best cornering. Reminds me a lot of a '54 MGTF I owned in the late 50's. Getting real tired of the batman and robin nit wit comments though. "Where's Robin?" is the most common.
Oh, it says nothing. The California state constitution does not protect this right. If the Cali constitution says nothing on gun rights, it means the people have not delegated to the Cali government any of their authority to mess with their gun rights.
It might be (more or less) so considered since Marbury v. Madison in 1803 (technically five has been a majority since 1837 when the court expanded to nine justices, excepting the years 1863-1865 when it had ten justices and would have required six to make a majority).
I'd set it up and get snared in the software issues, which I don't understand. And then would end up liable because somebody posted something I didn't approve of or know about.
No. Since the Cali constitution says nothing on gun rights, it means the people have not protected themselves from the Cali government authority to mess with their gun rights.
Since the Cali constitution says nothing on gun rights, it means the people have not protected themselves from the Cali government authority to mess with their gun rights. No. Such interpretation is directly contrary to the Cali constitution since 1849. http://www.leginfo.ca.gov/.const/.article_1 CALIFORNIA CONSTITUTION In criminal cases the rights of a defendant to equal protection of the laws, to due process of law, to the assistance of counsel, to be personally present with counsel, to a speedy and public trial, to compel the attendance of witnesses, to confront the witnesses against him or her, to be free from unreasonable searches and seizures, to privacy, to not be compelled to be a witness against himself or herself, to not be placed twice in jeopardy for the same offense, and to not suffer the imposition of cruel or unusual punishment, shall be construed by the courts of this State in a manner consistent with the Constitution of the United States. This Constitution shall not be construed by the courts to afford greater rights to criminal defendants than those afforded by the Constitution of the United States, nor shall it be construed to afford greater rights to minors in juvenile proceedings on criminal causes than those afforded by the Constitution of the United States. This declaration of rights may not be construed to impair or deny others retained by the people. In Cali's constitution of 1849, Article 1, Section 21 provided:
Watch one of the newer Batman movies. You'll see why people razz you with that. It looks like a mini-Batbike.
I agree. But where does it say the people have the right to use a gun to accomplish that? Or did you simply read that into it? In the penumbra of an emanation. What about the right to own property? If I can't afford property, can I read into it that the state has to give me some? After all, I do have the right to own it.
Amusingly enough, both of you assume that the people of California can delegate away their inalienable rights. "Inalienable" means these rights CANNOT be infringed.. Just as the Fed and State constitutions say: --- CALIFORNIA CONSTITUTION ARTICLE 1 DECLARATION OF RIGHTS SECTION 1. All people are by nature free and independent and have inalienable rights. Among these are enjoying and defending life and liberty, acquiring, possessing, and protecting property, and pursuing and obtaining safety, happiness, and privacy.
U.S. Constitution limits states' rights and powers www.dec http://aturdaily.com/deca...pinion/other/050410.shtml ^ | 7/10/06 | W.S. Dixon Posted on 7/11/2006, 4:03:24 PM by tpaine U.S. Constitution limits states' rights and powers Following is the fifth in a series of columns by members of the Alabama Citizens for Constitutional Reform. By W.S. Dixon Several articles in the Constitution of the United States (especially Article IV) as well as several of the amendments to the Constitution (especially the 14th Amendment) apply to the state governments. In fact the following provision of the 14th Amendment reaches back and makes the 1st Amendment apply to the states: "No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction of the equal protection of the laws." This then makes the five freedoms guaranteed in the 1st Amendment --- religion, speech, press, assembly, and petition --- apply in the states. If the Supreme Court of the United States had not made this interpretation of the above clauses in the 14th Amendment, the states would have been free to restrict religious freedom and even establish a particular religion as the official state religion, to prohibit any desired variety of speech, to limit or prohibit the printing or disseminating of any information the state decided was not allowed, to prohibit or restrict meetings of any kind as the legislature desired, and to prohibit or restrict access to state public officials. Other restrictions on the states are specifically stated in the U.S. Constitution in Article I Section 10. In addition, because of the powers assigned to the Congress, the states cannot regulate commerce with foreign countries nor with other states, nor can they naturalize citizens, fix standards of weights and measures, declare war, nor raise or support an army or navy. Although we refer to the states within the United States by that designation, they do not meet the criterion of sovereign states because they do not have the power to provide protection from outside interference as indicated by the restrictions listed above. State constitutions are limited, in part as a result of these restrictions. States do, however, have the ability to regulate all other levels of government situated within their territory
In Amendment 2 of the U.S. Constitution, the people identified their pre-existing right to keep and bear arms, and explicitly withheld any grant of power to the Federal government to infringe upon that right. The right to keep and bear arms was brought with them into the Union established by the U.S. Constitution. The government of California has only such powers as the people of California have delegated to it. Unless you can come up with some delegation of power to the state government, it does not have it. It is a government of delegated powers, not almighty government powers. All power belongs to the people in their sovereign capacity (as distinct from the capacity as citizens of the state or country). What the people do not delegate to the Federal or State government are the Amendment 10 powers reserved to the people. Of course you can read into the state constitution that the state has to give you some property. You can read it to say that you have the right to own such property that you cannot afford to pay for. You may smoke medicinal pot and imagine other pleasant things as well. You can even go to court and argue you had a vision. The court will give you its opinion whether your vision has legal merit.
[...] Several articles in the Constitution of the United States (especially Article IV) as well as several of the amendments to the Constitution (especially the 14th Amendment) apply to the state governments. In fact the following provision of the 14th Amendment reaches back and makes the 1st Amendment apply to the states: I believe Dixon misses his target. The BoR placed limits on the powers Federal government. Incorporating elements of the BoR to the States only places those limits on State government. That did not affect State sovereignty. It did affect the powers of sovereignty which States agree not to exercise while members of the constitutional union. In the Panama Canal Zone treaty, sovereign Panama delegated to the United States all its sovereign powers of jurisdiction. Powers were delegated, not sovereignty. The treaty stated that the United States could exercise jurisdiction as if it were the sovereign. This effected no change in the sovereignty of Panama over the Canal Zone. Panama agreed not to exercise certain sovereign powers, but the sovereignty never left Panama. While I agree with the conclusion that states can no longer claim to meet the definition of sovereign states, I reach that conclusion on a basis not cited. One of the elements of sovereignty is the self-determination of the citizenry. The 14th provides that all persons born in the United States and subject to the jurisdiction thereof are citizens of the United States and the State wherein they reside. That dictates to the States who is a citizen of the State. Previously, the path to U.S. citizenship was through citizenship of a State.
Then why even mention the California constitution if the people of California look to the second amendment for their protection? "The government of California has only such powers as the people of California have delegated to it. Unless you can come up with some delegation of power to the state government, it does not have it." The government of California, by definition, has police powers -- "the capacity of the states to regulate behavior and enforce order within their territory for the betterment of the health, safety, morals, and general welfare of their inhabitants." So, if California decides to ban handguns for the safety of their citizens, they are allowed. Unless the state constitution protects the right to keep and bear handguns. Which it does not. "The court will give you its opinion whether your vision has legal merit." Yes they will. And we have to honor their interpretation, right?
Pffft! The free speech clause didn't apply to the states until 1925 following Gitlow v. New York. Freedom of religion (the Establishment Clause) didn't apply to the states until 1947 following Everson v. Board of Education. Freedom of the press applied to the states in 1931 following the decision in Near v. Minnesota, and freedom of assembly applied to the states in 1937 following DeJonge v. Oregon. As a reminder, the 14th amendment was ratified in 1868.
Dixon says: --- You are ignoring the specific limits placed on States and their constitutions by the Supremacy Clause of Article VI. -- Misterwhite even scoffs at them. Taken overall, our Constitution clearly protects the people's inalienable rights (to arms, among others) from infringements by ANY level of our governments. Why this is disputed by some americans is beyond understanding, imho. Do you have an answer? - Anyone?
Because of its explicit provision indicating your attempted strained interpretation of Cali law is impossible.
The BoR, where incorporated, protects from certain infringements pursuant to the 14th Amdt. Prior, it had no applicability to the states. Where the Federal government was not delegated some jurisdiction and power, the States could be delegated such power by their citizens. So, for example, Amendment 5 provides, "No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger...." States routine prosecute capital offenses and other crimes by way of an information. The grand jury requirement only applies to Federal jurisdiction. Inalienable rights are cited in a political document, the Declaration of Independence, which has no force at law. Anything in the Constitution is very alienable by an amendment.
Your quote is of tpaine at #29, not me.
I once had the idea to do something like that, but lost it.
You are ignoring the specific limits placed on States and their constitutions by the Supremacy Clause of Article VI. -- Taken overall, our Constitution clearly protects the people's inalienable rights (to arms, among others) from infringements by ANY level of our governments. Again, you ignore Article VI, wherein the supremacy clause applies the entire US constitution and the BOR's to the States, and to their constitutions. Amendments or 'laws' that alienate away our basic human rights would be null and void from enactment. Marbury v Madison made that point very clear. Why do you WANT to give a majority the ability to 'alienate by amendment'?
I know. But I don't post to that dickwad.
The one about "defending life and liberty"? You call that an explicit provision? You think that provision means any person in California has the explicit right to use any weapon they want to defend their life and liberty? You sure do read a lot into 4 words. Sorry. That phrase says nothing of the sort. You have the God-given right to self-defense. That doesn't mean you have the right to use a gun to do so.
"Your quote is of tpaine at #29, not me." I know. But I don't post to that dickwad. --- misterwhite Poor little paulsen/whitey, he can't debate the issues with me, so he's reduced to being a dickwad whiner.
Why do you WANT to give a majority the ability to 'alienate by amendment'? Nonsense. A constitutional amendment in conflict with Marbury would strike down Marbury or any other holding of the SCOTUS. Marbury says nothing like what you said, anyway.
Amendments or 'laws' that alienate away our basic human rights would be null and void from enactment. Marbury v Madison made that point very clear. Why do you WANT to give a majority the ability to 'alienate by amendment'? Funny, seeing you were arguing, just the other day, that opinions by the SCOTUS virtually 'must be obeyed'.. Leaving the question above unanswered.-- Why do you want to give a majority that much power? Here are the concluding words of Marbury, written by John Marshall, which support my view, not yours.. " --- The judicial power of the United States is extended to all cases arising under the constitution. [5 U.S. 137, 179] Could it be the intention of those who gave this power, to say that, in using it, the constitution should not be looked into? That a case arising under the constitution should be decided without examining the instrument under which it arises? This is too extravagant to be maintained. In some cases then, the constitution must be looked into by the judges. And if they can open it at all, what part of it are they forbidden to read, or to obey? There are many other parts of the constitution which serve to illustrate this subject. It is declared that 'no tax or duty shall be laid on articles exported from any state.' Suppose a duty on the export of cotton, of tobacco, or of flour; and a suit instituted to recover it. Ought judgment to be rendered in such a case? ought the judges to close their eyes on the constitution, and only see the law. The constitution declares that 'no bill of attainder or ex post facto law shall be passed.' If, however, such a bill should be passed and a person should be prosecuted under it, must the court condemn to death those victims whom the constitution endeavours to preserve? 'No person,' says the constitution, 'shall be convicted of treason unless on the testimony of two witnesses to the same overt act, or on confession in open court.' Here the language of the constitution is addressed especially to the courts. It prescribes, directly for them, a rule of evidence not to be departed from. If the legislature should change that rule, and declare one witness, or a confession out of court, sufficient for conviction, must the constitutional principle yield to the legislative act? From these and many other selections which might be made, it is apparent, that the framers of the consti- [5 U.S. 137, 180] tution contemplated that instrument as a rule for the government of courts, as well as of the legislature. Why otherwise does it direct the judges to take an oath to support it? This oath certainly applies, in an especial manner, to their conduct in their official character. How immoral to impose it on them, if they were to be used as the instruments, and the knowing instruments, for violating what they swear to support! The oath of office, too, imposed by the legislature, is completely demonstrative of the legislative opinion on this subject. It is in these words: 'I do solemnly swear that I will administer justice without respect to persons, and do equal right to the poor and to the rich; and that I will faithfully and impartially discharge all the duties incumbent on me as according to the best of my abilities and understanding, agreeably to the constitution and laws of the United States.' Why does a judge swear to discharge his duties agreeably to the constitution of the United States, if that constitution forms no rule for his government? if it is closed upon him and cannot be inspected by him. If such be the real state of things, this is worse than solemn mockery. To prescribe, or to take this oath, becomes equally a crime. It is also not entirely unworthy of observation, that in declaring what shall be the supreme law of the land, the constitution itself is first mentioned; and not the laws of the United States generally, but those only which shall be made in pursuance of the constitution, have that rank. Thus, the particular phraseology of the constitution of the United States confirms and strengthens the principle, supposed to be essential to all written constitutions, that a law repugnant to the constitution is void, and that courts, as well as other departments, are bound by that instrument. The rule must be discharged. ----- " - See more at: caselaw.findlaw.com/us-supreme- court/5/137.html#sthash.KnsETCrA.dpuf
Both Wordpress and Blogspot offer very easy to use setups. They also offer popular and capable browser extensions for Firefox and Chrome that help you compose and blog and tweet very easily. You can compose in a text editor or in MS Word or just RTF (rich text format) or even using a PDF. So you can compose using your favorite current tools and make a quick blog post of it. You have good content. You should retain control of it and archive your own copies. Another very very easy online content system is Tumblr. And there is always the (evil) Facebook but I dislike it personally. These others I mentioned are all better alternatives for almost any writer/blogger. You might consider doing a blog site and eventually use a body of work to kickstart a self-published ebook title or two. A lot of people are doing that, even making a bit of money from their hobby interests. Probably more satisfying and potentially lucrative than posting your original assembly of research and content on an obscure site like LF. Blogging elsewhere with Wordpress/Blogspot/Tumblr doesn't affect at all your ability to post the same material on LF and other aggregator sites. For posts like yours and some of Vic's, it is worthwhile to have a wider audience. You can also generally control comments posted on your own blog site so people who are pests or just trash everything you write don't get to trash you so readily. And you might attract readers and respondents that you would never get for the same material here at LF. Seriously, the learning curve is very easy with these newer blogging sites. You can even get a .org or .com domain name and point it to your free blog site easily.
Nothing in the Constitution can be struck down by any means other than another Amendment. A court cannot touch it. It is never null and void ab initio. No power exists to declare it so.
SCOTUS does not draw its powers from nolu chan.
Amendments or 'laws' that alienate away our basic human rights would be null and void from enactment. Marbury v Madison made that point very clear. Why do you WANT to give a majority the ability to 'alienate by amendment'? At #44 I posted the concluding words of Marbury, written by John Marshall, which support my view, not yours.. Marshall gave his opinion on how unconstitutional laws (or amendments) would-be viewed by the SCOTUS. -- Naturally, the SCOTUS has no power to enforce such an opinion. Only the people have such powers But even a super majority of the people do not have the power to enact and enforce infringing amendments that take away our inalienable rights. --- Why you can't admit that fact is now the issue. -- Does nolu chan have any more cute comments?
[...] Marshall gave his opinion on how unconstitutional laws (or amendments) would-be viewed by the SCOTUS. Absolute bullshit. Marbury correctly concluded "a law repugnant to the constitution is void." The Constitution is never repugnant to the Constitution. You do not know what you are talking and miscontrue Marbury absurdly. SCOTUS can strike down what the legislature has enacted. SCOTUS cannot strike down what the people have enacted in acting in their sovereign capacity.
Amendments or 'laws' that alienate away our basic human rights would be null and void from enactment. Marbury v Madison made that point very clear. Why do you WANT to give a majority the ability to 'alienate by amendment'? At #44 I posted the concluding words of Marbury, written by John Marshall, which support my view, not yours.. Marshall gave his opinion on how unconstitutional laws (or amendments) would-be viewed by the SCOTUS. -- Naturally, the SCOTUS has no power to enforce such an opinion. Only the people have such powers But even a super majority of the people do not have the power to enact and enforce infringing amendments that take away our inalienable rights. --- Why you can't admit that fact is now the issue. -- Does nolu chan have any more cute personal comments? Yep, a law (or an amendment) repugnant to the constitution is void. Your calling Marshall's opinion BULLSHIT is amusingly unprofessional. -- Are you a member of a Bar? Your unprofessional opinion is noted. Not true. The SCOTUS can only issue an opinion that what the legislature has enacted is unconstitutional. -- The executive branch can enforce that opinion, ~~ or maybe not. True enough. -- But if in their opinion, what the people have enacted is unconstitutional, the executive and legislature are free to ignore an unconstitutional amendment, and work for its repeal. You must have studied constitutional law at some point, so why are you being so obtuse about this issue?
At #44 I posted the concluding words of Marbury, written by John Marshall, which support my view, not yours.. Your views are a ridiculous legal absurdity. SCOTUS cannot strike down the constitution or any part thereof. Once the Executive declares an amendment to be properly ratified, SCOTUS cannot even review whether it was properly ratified. It is beyond their jurisdiction. Read a real lawbook on constitutional law.
Not true. The SCOTUS can only issue an opinion that what the legislature has enacted is unconstitutional. -- The executive branch can enforce that opinion, ~~ or maybe not. True enough. -- But if in their opinion, what the people have enacted is unconstitutional, the executive and legislature are free to ignore an unconstitutional amendment, and work for its repeal. You must have studied constitutional law at some point, so why are you being so obtuse about this issue? You keep repeating your 'ridiculous' personal opinions, without answering the questions at issue. - I'm starting to pity you. Read much? Just above I agreed with you on that specific issue. Where did you come up with that odd opinion? --- Can you prove it? I've read a lot. -- Have you? Are you a lawyer? A member of a Bar?
Marbury v Madison, 5 US 137 (1803) At 5 U.S. 176 The people established for the government, by the Constitution and the authority of the people is supreme. Continuing at 5 U.S. 176 By the Constitution, the people used their supreme power to assign delegated powers to the Legislative, Executive, and Judicial branches. Continuing at 5 U.S. 176-177 The powers are defined and limited. If those limits do not confine the persons on whom they are imposed, the distinction between a government of limited and unlimited powers is abolished. This clearly speaks to the spurious nonsense espoused at tpaineworld. Continuing at 5 U.S. 177 There is no middle ground. Either the Constitution is the paramount law, unchangeable by ordinary means, or it is no more authoritative that a law passed by Congress. Only in tpaineworld may the government strike down the paramount law of the Constitution. Continuing at 5 U.S. 177 The tpaineworld assertion that the Constitution may be struck down by the government leads ineluctably to the conclusion that Constitutions are absurd attempts on the part of the people to limit the illimatable power of the government. Continuing at 5 U.S. 177 While the Framers wrote the Constitution as the fundamental and paramount law of the nation, in tpaineworld the Constitution may be struck down or ignored by the government it created, or by the government officials to which it applies. Continuing at 5 U.S. 177 The Constitution is to be considered by the U.S. Supreme Court as one of the fundamental principles of our society. It is the paramount law. Except in tpaineworld where the Court may strike it down, and the government and its officials may ignore it. Skipping to 5 U.S. 179-80: In the Framers' world, the Constitution rules the courts and the legislature. In tpaineworld the courts can strike down the Constitution and the entire government and its officials have the power to ignore the Constitution. Continuing at 5 U.S. 180: In tpaineworld, an immoral duty is imposed to violate what they swear to support. Continuing at 5 U.S. 180: Why does a judge swear to discharge his duties agreeably to the Constitution of the United States if that Constitution forms no rule for his government? The judge does not, except in tpaineworld. And, at 5 U.S. 180: Thus, the particular phraseology of the Constitution of the United States confirms and strengthens the principle, supposed to be essential to all written Constitutions, that a law repugnant to the Constitution is void, and that courts, as well as other departments, are bound by that instrument. The Constitution is the fundamental, paramount law of the nation, and the courts, as well as all other government departments, are bound by the Constitution. Except in tpaineworld where courts strike down the Constitution and the government departments are empowered to ignore the Constitution at their discretion.
This is just willfully ignorant. I wouldn't want anyone to get the wrong idea that I take such absurd argument seriously. It is sort of like fighting with a punch me doll. Neither the Executive nor Legislature is free to ignore the Constitution or any part thereof, and neither they nor the judiciary can declare an amendment to be unconstitutional. I am discussing actual law, not your fantasy version. Citing Coleman v Miller, 307 U.S. 433 (1939), Laurence H. Tribe wrote in American Constitutional Law, Third Edition, Volume 1, at 105, that "Coleman can be regarded today as imposing an absolute bar on judicial review of the amendment process. The Court's instinct that most questions regarding the amendment process should be nonjusticiable is on target: constitutional amendment is a political, not legal, process, and judicial supervision of that process threatens to undermine the independence of Article V from normal legal processes—and poses particular problems when the amendment at issue is one proposed in response to judicial decisions." Coleman at 440. Once the Secretary of State declares that the Amendment has been ratified and become part of the Constitution, his declaration is conclusive upon the courts. The President swears to protect and defend the Constitution, not ignore it at his discretion. The Constitution is explicitly binding all three branches. Article 2: Article 6: The Senators and Representatives before mentioned, and the members of the several state legislatures, and all executive and judicial officers, both of the United States and of the several states, shall be bound by oath or affirmation, to support this Constitution....
Amendments or 'laws' that alienate away our basic human rights would be null and void from enactment. Marbury v Madison made that point very clear Marbury v Madison, 5 US 137 (1803) ---- "Thus, the particular phraseology of the Constitution of the United States confirms and strengthens the principle, supposed to be essential to all written Constitutions, that a law repugnant to the Constitution is void, and that courts, as well as other departments, are bound by that instrument." No, I wrote that the SCOTUS can issue an opinion that a law or amendment is unconstitutional, --- and that then, the other branches are empowered to ignore the unconstitutional acts. ---- Here: --- But if in their opinion, what the people have enacted is unconstitutional, the executive and legislature are free to ignore an unconstitutional amendment, and work for its repeal. Your increasingly unprofessional opinions are noted, and rejected. I asked you earlier to prove your contention. Is this it? So? -- That's an opinion by Tribe and the Coleman court. -- It does NOT prove your case. Yep, but he has the power to ignore it at his discretion (checks and balances, remember?) ---- and the big operative phrase is, -- "IN PURSUANCE THEREOF", -- also emphasized by Marshall in Marbury, as you well know, but refuse to admit.. Article 2: ----- "Before he enter on the execution of his office, he shall take the following oath or affirmation:--"I do solemnly swear (or affirm) that I will faithfully execute the office of President of the United States, and will to the best of my ability, preserve, protect and defend the Constitution of the United States." Article 6: ----- " This Constitution, and the laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every state shall be bound thereby, anything in the Constitution or laws of any State to the contrary notwithstanding. The Senators and Representatives before mentioned, and the members of the several state legislatures, and all executive and judicial officers, both of the United States and of the several states, shall be bound by oath or affirmation, to support this Constitution.... Thanks for posting the above bit about the oaths. --- They make my point, not yours...
The Logic of Constitutional Republican Government Marbury v. Madison, 5 U.S. 137 (1803) Address:www.constitution.org/ussc/005-137jr.htm ^ | 11/6/03 | Jon Roland Posted on 11/6/2003, 3:01:38 PM by tpaine The Logic of Constitutional Republican Government The logic of constitutional republican government is that everyone, not just the courts, and not just public officials, has the duty to enforce the law, and, where conflicts in the law arise, resolve those conflicts and apply the correct law. When one of the laws in conflict is the constitution, then the duty is of constitutional review, which is only judicial review when it is judges that happen to do it. It is not an exclusive power of the courts. It is a duty of everyone subject to the Constitution. So what happens if the Supreme Court rules in a case that a statute is unconstitutional, but the Congress or the President disagrees with them? They are bound to respect the decision in that case, unless they have strong enough conviction of the wrongness of the decision to refuse to abide by it, but the ruling does not remove the statute from the books. It could still be enforced by the Executive in other cases. But the Court is indicating by its decision that it will not enforce the statute in other cases, and that any attempt to do so by the other branches will not be productive. Confronted with that refusal by the Judiciary to enforce, it is to be expected that the Executive will stop trying to enforce it, and the Congress will stop trying to fund it. It takes all three branches to cooperate in establishing and enforcing a law, and the refusal of any one of them defeats the effort. The same principle extends to civilians. If jurors refuse to convict under a criminal statute that at least one of them considers to be unconstitutional, then the enforcement of the act fails, and it becomes a dead letter. If the required majority of the jury in a civil case fail to support the plaintiff in an action authorized by law, then that law becomes moot. This also points to the conclusion that under a constitutional requirement for unanimous verdicts of twelve jurors in criminal trials, if the objective is to have a 50 percent chance of a prosecution succeeding in obtaining a guilty verdict, and the jury is selected at random from the population, then there needs to be at least 94 percent support for the criminal statute in the community. If there is not, then mathematically there is a better than 50 percent chance that in a random jury of twelve at least one of them will disagree with the law enough to refuse to convict someone of violating it. The choice of a jury size of twelve is not an accident of history. As it happens, human societies have historically had an average of about six percent of their populations who were disposed to delinquency if not disciplined by the other 94 percent, who tend by nature to not engage in delinquent behavior even without the sanction of law. However, whenever a majority of less than 94 percent has attempted to impose its morality on the remainder by criminal laws, the result has, in general, been counterproductive and even destructive of social cohesion and respect for law and lawmaking. This indicates that a constitution should require that any criminal laws be passed by a legislative majority of at least 94 percent. Excerpted from Jon Rolands comments on Marbury v. Madison, 5 U.S. 137 (1803)
Except in tpaineworld where courts strike down the Constitution and the government departments are empowered to ignore the Constitution at their discretion. No, I wrote that the SCOTUS can issue an opinion that a law or amendment is unconstitutional, --- and that then, the other branches are empowered to ignore the unconstitutional acts. ---- Here: -- An Amendment is part of the Constitution, equal to all other parts from the time it is declared ratified. Your nonsense about statutes does not apply to the Constitution. No Court can hold the Constitution, or any part thereof, to be unconstitutional. Of course, you know that. You are just trying to be a pain in the ass. I am just letting you develop a lengthy thread to stand as a monument demonstrating that.
No, I wrote that the SCOTUS can issue an opinion that a law or amendment is unconstitutional, --- and that then, the other branches are empowered to ignore the unconstitutional acts. ---- Here: -- And if it's constitutionality is questioned after ratification, the SCOTUS could hear the case and issue an opinion. Not true. You're attempting to make an argument from authority, without citing your authority. The earlier cite from Tribe was just another opinion, as you know. Calling me an ass just displays, once again, your own unprofessionalism.
An Amendment is part of the Constitution, equal to all other parts from the time it is declared ratified. Your nonsense about statutes does not apply to the Constitution. No Court can hold the Constitution, or any part thereof, to be unconstitutional. Calling your assinine nonsense to be your attempt to be a pain in the ass is just a statement of fact. I merely call attention to the fact that you cannot be taken seriously. I could call your assinine, or assi-ten posts stupid, but I do not believe you are stupid. Rather, you are an intelligent pain in the ass.
You're attempting to make an argument from authority, without citing your authority. Calling me an ass just displays, once again, your own unprofessionalism. How clever. Your play on words is impressive. Your constitutional opinions are not. --- Thanks for making that evident.
#21. To: misterwhite (#17)
So what does the California state constitution say about their citizens' right to keep and bear arms?
#22. To: misterwhite, GrandIsland (#18)
As I have been warning ever since Heller -- the second amendment is now whatever 5 justices on the U.S. Supreme Court says it is, and their interpretation applies to all 50 states.
#23. To: TooConservative (#16)
I urged Vicomte to do the same for years but never could get him interested.
#24. To: nolu chan (#21)
"If the Cali constitution says nothing on gun rights, it means the people have not delegated to the Cali government any of their authority to mess with their gun rights."
#25. To: misterwhite (#24)
No.
ARTICLE 1 DECLARATION OF RIGHTS SECTION 1. All people are by nature free and independent and have inalienable rights. Among these are enjoying and defending life and liberty, acquiring, possessing, and protecting property, and pursuing and obtaining safety, happiness, and privacy.
SEC. 24. Rights guaranteed by this Constitution are not dependent on those guaranteed by the United States Constitution.
SEC. 21. This enumeration of rights shall not be construed to impair or deny others retained by the people.
#26. To: tpaine (#20)
Getting real tired of the batman and robin nit wit comments though. "Where's Robin?" is the most common.
#27. To: nolu chan (#25)
"inalienable rights. Among these are enjoying and defending life and liberty"
#28. To: nolu chan, misterwhite, both wrong, as usual. (#25)
nolu chan (#21) ---- "If the Cali constitution says nothing on gun rights, it means the people have not delegated to the Cali government any of their authority to mess with their gun rights."
Since the Cali constitution says nothing on gun rights, it means the people have not protected themselves from the Cali government authority to mess with their gun rights. ---- misterwhite
#29. To: All, nolu chan, misterwhite, Y'ALL (#28)
#30. To: misterwhite (#27)
[California Constitution] SECTION 1. All people are by nature free and independent and have inalienable rights. Among these are enjoying and defending life and liberty, acquiring, possessing, and protecting property, and pursuing and obtaining safety, happiness, and privacy.
I agree. But where does it say the people have the right to use a gun to accomplish that? Or did you simply read that into it? In the penumbra of an emanation.
What about the right to own property? If I can't afford property, can I read into it that the state has to give me some? After all, I do have the right to own it.
#31. To: tpaine, misterwhite (#29)
U.S. Constitution limits states' rights and powers
Although we refer to the states within the United States by that designation, they do not meet the criterion of sovereign states because they do not have the power to provide protection from outside interference as indicated by the restrictions listed above.
#32. To: nolu chan (#30)
"In Amendment 2 of the U.S. Constitution, the people identified their pre-existing right to keep and bear arms"
#33. To: nolu chan (#31)
"In fact the following provision of the 14th Amendment reaches back and makes the 1st Amendment apply to the states:"
#34. To: nolu chan, misterwhite, too conservative, y'all (#31)
Several articles in the Constitution of the United States (especially Article IV) as well as several of the amendments to the Constitution (especially the 14th Amendment) apply to the state governments. In fact the following provision of the 14th Amendment reaches back and makes the 1st Amendment apply to the states:
Chan --- I believe Dixon misses his target. The BoR placed limits on the powers Federal government. Incorporating elements of the BoR to the States only places those limits on State government.
That did not affect State sovereignty. It did affect the powers of sovereignty which States agree not to exercise while members of the constitutional union. ---- ----- Although we refer to the states within the United States by that designation, they do not meet the criterion of sovereign states because they do not have the power to provide protection from outside interference as indicated by the restrictions listed above. ---- While I agree with the conclusion that states can no longer claim to meet the definition of sovereign states, I reach that conclusion on a basis not cited.
#35. To: misterwhite (#32)
Then why even mention the California constitution if the people of California look to the second amendment for their protection?
#36. To: tpaine (#34)
Taken overall, our Constitution clearly protects the people's inalienable rights (to arms, among others) from infringements by ANY level of our governments.
#37. To: misterwhite (#33)
"In fact the following provision of the 14th Amendment reaches back and makes the 1st Amendment apply to the states:"
#38. To: TooConservative (#16)
I would urge you to set up some blog site, like a free Wordpress site, just to archive your posts. It seems a shame they get posted here where they could be taken offline and disappear.
#39. To: nolu chan (#36)
Chan --- I believe Dixon misses his target. The BoR placed limits on the powers Federal government. Incorporating elements of the BoR to the States only places those limits on State government.
The BoR, where incorporated, protects from certain infringements pursuant to the 14th Amdt. Prior, it had no applicability to the states.
Where the Federal government was not delegated some jurisdiction and power, the States could be delegated such power by their citizens. ---- Inalienable rights are cited in a political document, the Declaration of Independence, which has no force at law. --- Anything in the Constitution is very alienable by an amendment.
#40. To: nolu chan (#37)
"Your quote is of tpaine at #29, not me."
#41. To: nolu chan (#35)
"Because of its explicit provision ..."
#42. To: misterwhite, nolu chan, Y'ALL (#40)
nolu chan (#37)
#43. To: tpaine (#39)
Amendments or 'laws' that alienate away our basic human rights would be null and void from enactment. Marbury v Madison made that point very clear.
#44. To: nolu chan (#43)
Nonsense. A constitutional amendment in conflict with Marbury would strike down Marbury or any other holding of the SCOTUS.
Marbury says nothing like what you said, anyway.
#45. To: nolu chan, Vicomte13 (#38)
I once had the idea to do something like that, but lost it.
#46. To: tpaine (#44)
Amendments or 'laws' that alienate away our basic human rights would be null and void from enactment.
#47. To: tpaine (#44)
Why do you want to give a majority that much power?
#48. To: nolu chan (#46)
(Edited)
Nothing in the Constitution can be struck down by any means other than another Amendment. A court cannot touch it. It is never null and void ab initio. No power exists to declare it so.
#49. To: tpaine (#48)
Amendments or 'laws' that alienate away our basic human rights would be null and void from enactment. Marbury v Madison made that point very clear.
#50. To: nolu chan (#49)
Absolute bullshit. --- Marbury correctly concluded "a law repugnant to the constitution is void. --
The Constitution is never repugnant to the Constitution. -- You do not know what you are talking and miscontrue Marbury absurdly.
SCOTUS can strike down what the legislature has enacted.
SCOTUS cannot strike down what the people have enacted in acting in their sovereign capacity.
#51. To: tpaine (#50)
Amendments or 'laws' that alienate away our basic human rights would be null and void from enactment. Marbury v Madison made that point very clear. Why do you WANT to give a majority the ability to 'alienate by amendment'?
#52. To: nolu chan (#51)
SCOTUS can strike down what the legislature has enacted.
SCOTUS cannot strike down what the people have enacted in acting in their sovereign capacity.
Your views are a ridiculous legal absurdity.
SCOTUS cannot strike down the constitution or any part thereof.
Once the Executive declares an amendment to be properly ratified, SCOTUS cannot even review whether it was properly ratified. It is beyond their jurisdiction.
Read a real lawbook on constitutional law.
#53. To: tpaine (#39)
[tpaine #39] Amendments or 'laws' that alienate away our basic human rights would be null and void from enactment. Marbury v Madison made that point very clear
That the people have an original right to establish for their future government such principles as, in their opinion, shall most conduce to their own happiness is the basis on which the whole American fabric has been erected. The exercise of this original right is a very great exertion; nor can it nor ought it to be frequently repeated. The principles, therefore, so established are deemed fundamental. And as the authority from which they proceed, is supreme, and can seldom act, they are designed to be permanent.
This original and supreme will organizes the government and assigns to different departments their respective powers. It may either stop here or establish certain limits not to be transcended by those departments.
The Government of the United States is of the latter description. The powers of the Legislature are defined and limited; and that those limits may not be mistaken or forgotten, the Constitution is written. To what purpose are powers limited, and to what purpose is that limitation committed to writing, if these limits may at any time be passed by those intended to be restrained? The distinction between a government with limited and unlimited powers is abolished if those limits do not confine the persons on whom they are imposed, and if acts prohibited and acts allowed are of equal obligation. It is a proposition too plain to be contested that the Constitution controls any legislative act repugnant to it, or that the Legislature may alter the Constitution by an ordinary act.
Between these alternatives there is no middle ground. The Constitution is either a superior, paramount law, unchangeable by ordinary means, or it is on a level with ordinary legislative acts, and, like other acts, is alterable when the legislature shall please to alter it.
If the former part of the alternative be true, then a legislative act contrary to the Constitution is not law; if the latter part be true, then written Constitutions are absurd attempts on the part of the people to limit a power in its own nature illimitable.
Certainly all those who have framed written Constitutions contemplate them as forming the fundamental and paramount law of the nation, and consequently the theory of every such government must be that an act of the Legislature repugnant to the Constitution is void.
This theory is essentially attached to a written Constitution, and is consequently to be considered by this Court as one of the fundamental principles of our society. It is not, therefore, to be lost sight of in the further consideration of this subject.
From these and many other selections which might be made, it is apparent that the framers of the Constitution contemplated that instrument as a rule for the government of courts, as well as of the Legislature.
Why otherwise does it direct the judges to take an oath to support it? This oath certainly applies in an especial manner to their conduct in their official character. How immoral to impose it on them if they were to be used as the instruments, and the knowing instruments, for violating what they swear to support!
The oath of office, too, imposed by the Legislature, is completely demonstrative of the legislative opinion on this subject. It is in these words:
"I do solemnly swear that I will administer justice without respect to persons, and do equal right to the poor and to the rich; and that I will faithfully and impartially discharge all the duties incumbent on me as according to the best of my abilities and understanding, agreeably to the Constitution and laws of the United States."
It is also not entirely unworthy of observation that, in declaring what shall be the supreme law of the land, the Constitution itself is first mentioned, and not the laws of the United States generally, but those only which shall be made in pursuance of the Constitution, have that rank.
#54. To: tpaine (#52)
But if in their opinion, what the people have enacted is unconstitutional, the executive and legislature are free to ignore an unconstitutional amendment, and work for its repeal.
holding that the official notice to the Secretary of State, duly authenticated, of the action of the legislatures of the States, whose alleged ratifications were assailed, was conclusive upon the Secretary of State, and that his proclamation accordingly of ratification was conclusive upon the courts, we affirmed the judgment of the state court.
Before he enter on the execution of his office, he shall take the following oath or affirmation:--"I do solemnly swear (or affirm) that I will faithfully execute the office of President of the United States, and will to the best of my ability, preserve, protect and defend the Constitution of the United States."
This Constitution, and the laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every state shall be bound thereby, anything in the Constitution or laws of any State to the contrary notwithstanding.
#55. To: nolu chan (#53)
(Edited)
Except in tpaineworld where courts strike down the Constitution and the government departments are empowered to ignore the Constitution at their discretion.
T his is just willfully ignorant. I wouldn't want anyone to get the wrong idea that I take such absurd argument seriously. It is sort of like fighting with a punch me doll.
Neither the Executive nor Legislature is free to ignore the Constitution or any part thereof, and neither they nor the judiciary can declare an amendment to be unconstitutional.
I am discussing actual law, not your fantasy version. ---- Citing Coleman v Miller, 307 U.S. 433 (1939), Laurence H. Tribe wrote in American Constitutional Law, Third Edition, Volume 1, at 105, that "Coleman can be regarded today as imposing an absolute bar on judicial review of the amendment process. The Court's instinct that most questions regarding the amendment process should be nonjusticiable is on target: constitutional amendment is a political, not legal, process, and judicial supervision of that process threatens to undermine the independence of Article V from normal legal processes—and poses particular problems when the amendment at issue is one proposed in response to judicial decisions." ---- holding that the official notice to the Secretary of State, duly authenticated, of the action of the legislatures of the States, whose alleged ratifications were assailed, was conclusive upon the Secretary of State, and that his proclamation accordingly of ratification was conclusive upon the courts, we affirmed the judgment of the state court. Coleman at 440. ----- Once the Secretary of State declares that the Amendment has been ratified and become part of the Constitution, his declaration is conclusive upon the courts.
The President swears to protect and defend the Constitution, not ignore it at his discretion. The Constitution is explicitly binding all three branches.
#56. To: All, nolu chan, Y'ALL (#55)
#57. To: tpaine (#55)
Marbury v Madison, 5 US 137 (1803) ---- "Thus, the particular phraseology of the Constitution of the United States confirms and strengthens the principle, supposed to be essential to all written Constitutions, that a law repugnant to the Constitution is void, and that courts, as well as other departments, are bound by that instrument."
#58. To: nolu chan (#57)
--- in tpaineworld where courts strike down the Constitution and the government departments are empowered to ignore the Constitution at their discretion.
An Amendment is part of the Constitution, equal to all other parts from the time it is declared ratified.
Your nonsense about statutes does not apply to the Constitution. No Court can hold the Constitution, or any part thereof, to be unconstitutional.
#59. To: tpaine (#58)
I wrote that the SCOTUS can issue an opinion that ... [an] amendment is unconstitutional
#60. To: nolu chan (#59)
I could call your assinine, or assi-ten posts stupid, but I do not believe you are stupid. Rather, you are an intelligent pain in the ass.
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