Thursday, August 18, 2011

No, Jim, you're wrong!

Heller is not the Supreme law of the land.

Article 6, Clause 2 of the US Constitution 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, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.

The Concept of Judicial review does not come from the Constitution, but originates from Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803). Marbury is a landmark case in United States law and in the history of law worldwide. It formed the basis for the exercise of judicial review in the United States under Article III of the Constitution. It was also the first time in Western history a court invalidated a law by declaring it "unconstitutional", a process called judicial review. The landmark decision helped define the "checks and balances" of the American form of government.

Since it defined judicial review, it also provided guidelines for that review--the most important of which is the one I keep mentioning--that "It cannot be presumed that any clause in the constitution is intended to be without effect".

According to Marbury, One cannot presume that any language in the Constitution is mere surplusage--is entirely without meaning.

Additionally Marbury states that:
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.
The question is how does one deal with a decision from a Judge which departs from the text of the constitution and precedent--as happened in the Heller-McDonald decisions?

Unfortunately, the Constitution is silent on this topic. Does one revert to prior settled law, which in this case is US v. Miller, 307 U. S. 174 (1939), which was a unanimous decision?

The problem is, Jim, that The Heller decision set some very bad precedents if you are truly aware of how the case progressed. It unsettled 70 years worth of law. Three years and more than 400 legal challenges later, courts — so far — have held that the Supreme Court’s ruling in Heller was narrow and limited, and that the Second Amendment does not interfere with the people’s right to enact legislation protecting families and communities from gun violence.

Will a court ultimately see that the Heller decision is incorrect and that Stevens's dissent is the proper interpretation? After all Silberman overruled settled law in Parker v. District of Columbia, 478 F.3d 370 (D.C. Cir. 2007), cert. denied, 128 S. Ct. 2994 (2008).

If anything, Marbury reinforces that the Rule of Law applied in the US:

"The Government of the United States has been emphatically termed a government of laws, and not of men. It will certainly cease to deserve this high appellation if the laws furnish no remedy for the violation of a vested legal right."

The essential characteristics of the rule of law are:

i. The supremacy of law, which means that all persons (individuals and government) are subject to law.
ii. A concept of justice which emphasises interpersonal adjudication, law based on standards and the importance of procedures.
iii. Restrictions on the exercise of discretionary power.
iv. The doctrine of judicial precedent.
v. The common law methodology.
vi. Legislation should be prospective and not retrospective.
vii. An independent judiciary.
viii. The exercise by Parliament of the legislative power and restrictions on exercise of legislative power by the executive.
ix. An underlying moral basis for all law.

Heller violated the rule of law and other principles given for Judicial Review in Marbury.

Heller in and of itself is an unconstitutional decision since it is judicial legislation.

I am not wasting my time, and the more people like you tell me that I am wrong, the more I become resolved in my quest to make the truth known.

As one of my professors in law school told me:

"go out and make some law."

17 comments:

  1. "Heller violated the rule of law and other principles given for Judicial Review in Marbury.

    Heller in and of itself is an unconstitutional decision since it is judicial legislation.

    I am not wasting my time, and the more people like you tell me that I am wrong, the more I become resolved in my quest to make the truth known."

    I am not telling you that you are wrong in any of this. I am saying that your opinion does not matter. Your opinion about all of this may be proven to be correct. However, as the US currently operates, the Supreme Court has ruled that the 2nd amendment gives an individual right to keep and bear arms. Until another ruling says otherwise, this is the law of the land. Surely you can agree to that right?

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  2. Jim, my comment to you is not very polite.

    I will say this, My opinion is better grounded and matters far more than yours.

    GOT THAT????

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  3. Let me put it this way, Jim, I was told by MikeB to tone it down.

    Otherwise, I would give you a piece of my mind that would properly put you in your place.

    Quite frankly, you have no basis for saying that my opinion does not matter.

    As I said, my opinion matters far more than your and it is heard in the correct places.

    Is that in polite enough terms for you to understand?

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  4. Jim, Heller determined there were very narrow 2nd Amendment rights, not broad ones as it is frequently misrepresented, and that those individual rights were subject to limitations and regulation.

    I understand Laci to be stating that there are flaws in the Heller decision. You appear to be stating that so long as Heller is the most current, it is in effect. Laci has not disputed that. Laci has pointed out that, given that overwhelmingly the body of legal precedent and prior SCOTUS decisions are consistent with the dissenting opinion, the majority over a longer span of time than the immediate moment is unlikely to prevail, regardless of the momentary erroroneous decision.

    Beyond that, it is my understanding that Laci sees greater restrictions/limitations in Heller than are clear to you - and his expertise is the greater, and demonstrates the better understanding.

    You two are writing at cross purposes.

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  5. Laci reminds me of one of those flat Earth people. Even after it was proven that the Earth was not flat, they persisted in clinging to their beliefs in spite of the rest of the world knowing the truth.

    I wonder if they broke down emotionally and called people names in defending their fragile, erroneous belief system?

    Oh well, they eventually died off along with their resistance to the prevailing truth.

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  6. FuzzyWuzzyMan wrote:
    "Laci reminds me of one of those flat Earth people. Even after it was proven that the Earth was not flat, they persisted in clinging to their beliefs in spite of the rest of the world knowing the truth."

    Actually Fuzzy Wuzzy, YOU remind me more of the flat earthers. Laci is more like Gallileo, understanding the counterintuitive and the complex, with a better education, and a factual foundation.

    You appear to be the one who is anti-science, anti-proof; or am I misremembering you as a climate change / global warming denier? That is the worst case of cherrypicking from complex evidence to distort the demonstrable conclusion I have ever encountered.

    By the way, so far, I don't see you, Jim, or anyone else here substantially refuting my statements about why the unborn, at least to the 25-28 week stage, do NOT merit equal rights as people. I don't believe you HAVE such an argument other than
    "because that's what I want to believe"........which seems to be the case with too many of your arguments on a wide range of topics, inluding this one.

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  7. Excuse me, Fat White Man, please substantiate your remarks with FACTS,not your uneducated OPINION.

    It's not even your original opinion since you don't have enough background in the topic to formulate one.

    On the other hand, I demonstrate that I DO have the background and knowledge to have an informed opinion.

    Just cause isn't a good enough reason for me to buy your argument, nor is it very persuasive.

    It's just ignorant chatter and not worth a response.

    So,if you don't get one from me in the future, it's not because you have "won", but because I don't have the time to waste trying to educate morons like yourselves.

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  8. BTW, that was the polite version.

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  9. FWM, As a climate change denier, it seems odd that you're comparing others to flat earthers.

    I don't know about anybody else but I like then new kinder gentler Laci.

    I agree wtih Dog Gone: "I understand Laci to be stating that there are flaws in the Heller decision."

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  10. I do not deny global warming, though I do find it amusing to make fun of when we've had some of the coldest and heaviest snowfall winters in recent years.

    No, I think global warming is very real. I have not seen any evidence, however, that it is a man-made event though. I also haven't seen any real solutions offered that can make a difference.

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  11. FWM, if you haven't seen any of the overwhelming evidence that supports the incredibly significant elements of humans in global warming, then you have had to actively avoid looking at the scientific evidence, in favor of ideology and blind and uninformed belief. This is another case of 'it's true because I want to believe it's true, facts and reason be damned' thinking.

    It justifies calling you a flat-earther.

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  12. The only overwhelming evidence is that the planet is warming naturally, and that a lot of people are trying to claim it's human-caused so that they can steer things their way. If Algore believed what he says, why would he have 5 or so energy-wasteful mansions, & spend all his time burning fuel jetting around the globe? Sorry, folks, you've been caught at your game. Try another fraud.

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  13. TB, as I said in another post, I strongly suggest that you go to the following websites:

    http://www.skepticalscience.com/
    http://www.realclimate.org/

    I suppose you have quite a few shares in the Brooklyn Bridge, if not full ownership, TB?

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  14. TennBud only believes Koch bros. funded cooked crooked science.

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  15. TB, if abstinance based sex-ed works--explain Bristol Palin?

    Or her mother?

    Or the other women who give the US one of the highest unintended teen birthrates in the world?

    Is Bristol's getting a bun in the over prior to the non-existant shotgun wedding because of what her name means in British slang?

    YOu love to tout the right wing myths, but they aren't backed in fact. Why was there opppposition to federal legislation to be medically accurate. IS it because the US right doesn't like facts or reality?

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  16. Huntsman's chief strategist John Weaver said this about the 2012 roster of candidates on the right:
    "We're not going to win a national election if we become the anti-science party," John Weaver…said in an interview Wednesday. "The American people are looking for someone who lives in reality and is a truth teller because that’s the only way that the significant problems this country faces can be solved. It appears that the only science that Mitt Romney believes in is the science of polling, and that science clearly was not a mandatory course for Governor Perry."

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  17. I think the proper terminology is "climate change," not "global warming," which could be a smaller aspect of the major damage.

    I grew up near the Esso refinery in Linden NJ. When I was a kid they used to pump out the blackest foulest crap out of their smokestacks, 24/7. At some point the laws began to change, maybe as far back as the late 60s and you know what they did. They turned off the pumps during the day and turned them back on at night. I kid you not.

    That was just one glimpse in my little world. Miltiply that by all the other polluting factories and all the cars and multiply that by the last 20 decades, you still find it hard to believe in the man-made aspect of the problem?

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