Greg CampFeb 8, 2012 06:36 AM
Laci keeps quoting that saying, but he has yet to show how it is a part of U.S. law. As far as I can tell, it comes from a mediaeval legal theorist, and thus may be interesting, but only as relevant as de Vattel.
My response:
Once again, Greg demonstrates that his ignorance knows no bounds.
All this is mentioned in Blackstone's Commentaries:
The citation from Blackstone regarding the “proeme, or preamble” is part of a larger section that consists of “observations concerning the interpretation of laws.” 1 Blackstone at *58. One of those “observations” was: “BUT, lastly, the most universal and effectual way of discovering the true meaning of a law, when the words are dubious, is by considering the reason and spirit of it; or the cause which moved the legislator to enact it. For when this reason ceases, the laws itself ought likewise to cease with it.” 1 Blackstone at *61.
Blackstone refers to this “when the reason ceases, the law ought to cease” principle several times in the Commentaries, which would seem to indicate that he considered it a fairly important interpretive principle. 2 Blackstone at *390-91 (discussing property interests in tame and domestic animals and noting “But here the reasons of the general rule cease, and ‘cessante ratione cessat et ipsa lex‘ [The reason of the law ceasing, the law itself also ceases]“), 3 Blackstone at *219 (discussing the law of nuisance, and noting “But, where the reason ceases, the law also ceases with it : therefore it is no nuisance to erect a mill so near mine, as to draw away the custom, unless the miller also intercepts the water.”), 4 Blackstone at *3 (noting that some aspects of Britain’s criminal law “seem to want revision and amendment” and explaining that “These have chiefly arisen from too scrupulous an adherence to some rules of the antient common law, when the resons have ceased upon which those rules were founded . . . “), 4 Blackstone at *81 (discussing the law of treason, and noting that the “plain intention of this law is to guard the blood royal from any suspicion of bastardy, whereby the succession to the crown might be rendered dubious: and therefore, when this reason ceases, the law ceases with it . . .”), 4 Blackstone at *330 (discussing the plea of a former attainder, and noting “But to this general rule however, as to all others, there are some exceptions; wherein, cessante ratione, cessat et ipsa lex.”).
Some of these seem to refer to common-law decision making, but he also applies this principle to statutes.
Which means that if the “cause/reason” for the Second Amendment was the “well-regulated militia”, then it could be argued that when that reason ceased, the law ought likewise to cease with it.
Too bad, Greg is ignorant of the fact that Blackstone is mentioned as being highly influential upon US Jurisprudence.
In fact, since Blackstone commentaries were rather inexpensive and widely published, they were used for legal training in the US.
So, if you want to argue that Blackstone is "only as relevant as de Vattel", you have your work cut out for you, Greg.
I strongly suggest that you keep your ignorance to yourself in future.
If I don't respond to you or Leagle, it not that you have demonstrated brillaince which has left me speechless, but that I have addressed these issues many times before.
ReplyDeleteOf course, that never stops you for repeating things that demonstrate your ignorance.
In short, if you were truly as intelligent as you believe yourselves to be, you can find my responses to these specious argumet since I have seen them before and addressed them as well.
But, Greg is always willing to show how ignorant he is.
Hello Laci The Dog--
DeleteYou have not addressed the issues I brought up, you have ignored them.
I have specifically addressed your point about "when this reason ceases, the laws itself ought likewise to cease with it", demonstrating that even Blackstone acknowledged that it did not apply to acts of Parliament. Please provide any case at any time when a provision of the US Constitution has ever been challenged based upon such an argument.
Additionally, you have demonstrated a clear misunderstanding of the Miller case. You, like Stevens, could not even get the facts of the case correct, so how can we accept your interpretation of same when it is obvious that you have not even read it?
Further, you have postulated that Saul Cornell's civic right thesis was the "time honored" interpretation of the 2nd. Well that is odd, because Cornell's theory was first broached in 2006 and no case had ever employed it previously.
Finally, you have never addressed my initial inquiry about how the 2nd Amendment works in your view to guard the well regulated militia from the evils expressed by the framers concerning the federal control of the militia found in Article I, Sec 8, cls. 15-16 and what, if anything, would constitute a violation of same.
(PS: when denigrating another person's intelligence, it wise to spell check and grammar check: "it not that you have demonstrated brillaince which has left me speechless", "argumet")
Are you saying that Justice Douglas, who was one the Court at the Time of Miller also misunderstood Miller when he said in ADAMS v. WILLIAMS, 407 U.S. 143 (1972)?
DeleteThe leading case is United States v. Miller, 307 U.S. 174 , upholding a federal law making criminal the shipment in interstate commerce of a sawed-off shotgun. The law was upheld, there being no evidence that a sawed-off shotgun had "some reasonable relationship to the preservation or efficiency of a well regulated militia." Id., at 178. The Second Amendment, it was held, "must be interpreted and applied" with the view of maintaining a "militia."
"The Militia which the States were expected to maintain and train is set in contrast with Troops which they were forbidden to keep without the consent of Congress. The sentiment of the time strongly disfavored standing armies; the common view was that adequate defense of country and laws could be [407 U.S. 143, 151] secured through the Militia - civilians primarily, soldiers on occasion." Id., at 178-179.
Critics say that proposals like this water down the Second Amendment. Our decisions belie that argument, for the Second Amendment, as noted, was designed to keep alive the militia. But if watering-down is the mood of the day, I would prefer to water down the Second rather than the Fourth Amendment.
I believe that Douglas gives the same opinion as I do.
And you are wrong about that opinion--no matter what you might think--LegalEagle
I think that Douglas's opinion counts for far more than yours.
But, you prefer to call me wrong when you can't really explain away Douglas's comment.
Laci the Dog wrote: "Are you saying that Justice Douglas, who was one the Court at the Time of Miller"
DeleteIf you had read Miller, which you obviously have not, you would learn that: "Mr. Justice Douglas took no part in the consideration or decision of this cause."
And yes he got it wrong, read the case. The court remanded the case to the trial court which had sustained a demurrer to the indictment on 2nd Amend grounds.
"In the absence of any evidence tending to show that possession or use of a "shotgun having a barrel of less than eighteen inches in length" at this time has some reasonable relationship to the preservation or efficiency of a well regulated militia, we cannot say that the Second Amendment guarantees the right to keep and bear such an instrument. Certainly it is not within judicial notice that this weapon is any part of the ordinary military equipment or that its use could contribute to the common defense. Aymette v. State, 2 Humphreys (Tenn.) 154, 158."
Because the record on appeal consisted solely of a non evidentiary demurrer and the court could not otherwis take judicial notice of whether the sawed off shotgun "is any part of the ordinary military equipment or that its use could contribute to the common defense", the court reversed the judgment of the trial court and ordered that the case be remanded further proceedings. Ask yourself this question as you read the case.... Would Miller had been allowed at the trial on remand to at least try to make an evidentiary showing that complied with the requirements established by SCOTUS? If you answer yes to that question, then Douglas was wrong. If you answer no to that question than I seriously doubt your credentials as an attorney.
Now, you read the case carefully and tell me whether you agree with me or not. Do not rely on Douglas' dissenting opinion in which he also said that one portion of the Bill of Rights should be watered down so as to promote another portion of the Bill of Rights.
"But if watering-down is the mood of the day, I would prefer to water down the Second rather than the Fourth Amendment." Adams v. Williams, 407 U.S. 143, 150 (1972)(Douglas,J., dissenting)
However, don't feel too bad. Justice Stevens got Miller wrong in Heller as well. He thought the Miller court upheld a conviction. It amazes me that people will try to act like experts on Miller without even bothering to read the case.
"Upholding a conviction under that Act, this Court held that..." DISTRICT OF COLUMBIA v. HELLER pg 2 slip opinion of Stevens, J., dissenting.
http://www.law.cornell.edu/supct/pdf/07-290P.ZD
HAve you reasd Aymentte?
DeleteTo make this view of the case still more clear, we may remark, that the phrase, "bear arms," is used in the Kentucky constitution as well as in our own, and implies, as has already been suggested, their military use. The 28th section of our bill of rights provides, "that no citizen of this State shall be compelled to bear arms, provided he will pay in equivalent, to be ascertained by law." Here we know that the phrase has a military sense, and no other; and we must infer that it is used in the same sense in the 26th section, which secures to the citizen the right to bear arms. A man in the pursuit of deer, elk and buffaloes, might carry his rifle every day, for forty years, and, yet, it would never be said of him, that he had borne arms, much less could it be said, that a private citizen bears arms, because he has a dirk or pistol concealed under his clothes, or a spear in a cane. So that, with deference, we think the argument of the court in the case referred to, even upon the question it has debated, is defective and inconclusive.
I think you need to get a better understanding and stop pushing bullshit--legal Eagel
I think you must have gone to a very crappy law school, perhaps Liberty University.
because If I went to a low level one, I am making you look like a fool.
I must remind you that repeating lies do not make them true.
Hi Laci The Dog
DeleteYou wrote: "HAve you reasd Aymentte?"
Yes. Look at what they say about “keep arms”
“The legislature, therefore, have a right to prohibit the wearing, or keeping weapons dangerous to the peace and safety of the citizens, and which are not usual in civilized warfare, or would not contribute to the common defence.”
However as to the right to KEEP a weapon which does contribute to the common defense the court stated:
“The citizens have the unqualified right to keep the weapon, it being of the character before described, as being intended by this provision.”
Not members of the militia, but citizens. Miller was a keep case, not a bear case. Thus DC v Heller was correct in determining that the absolute handgun ban was unconstitutional... all in conformance with Miller. However the safe storage laws might have withstood scrutiny if you do not dig a little deeper.... so lets talk about what is meant by "keep arms" just a bit.
Now if you were really good you would have shepardized Aymette and discovered a later case from the same court describing what was meant by “keep arms”.
“The right to keep arms, necessarily involves the right to purchase them, to keep them in a state of efficiency for use, and to purchase and provide ammunition suitable for such arms, and to keep them in repair. And clearly for this purpose, a man would have the right to carry them to and from his home, and no one could claim that the Legislature had the right to punish him for it, without violating this clause of the Constitution."
"But farther than this, it must be held, that the right to keep arms, involves, necessarily, the right to use such arms for all the ordinary purposes, and in all the ordinary modes usual in the country, and to which arms are adapted, limited by the duties of a good citizen in times of peace; that in such use, he shall not use them for violation of the rights of others, or the paramount rights of the community of which he makes a part.” Andrews v. State, 50 Tenn. (3 Heisk.) 165, 178-179, 8 Am. Rep. 8 (1871).
The case involved the carrying of a pistol, the court quashed the indictment..:
"If the party is protected in the keeping and use of such arms as we have indicated, only to be restrained by such regulations as may be enacted by the Legislature, with a view to prevent crime, it would seem that the use of such a weapon for defense of the person when in actual peril, the end being a lawful one, ought not, upon any sound principle, to subject a party to punishment." Id at 192.
Now this is exactly in accord with the English decisions rendered prior to the American Revolution and involving the keeping of arms:
"The Game Acts did “not extend to prohibit a man from keeping a gun for his necessary defence." Rex v. Gardner, 87 Eng. Rep. 1240, 1241 (K.B. 1739). “[T]he mere having a gun was no offense . . . for a man may keep a gun for the defense of his house and family." Mallock v. Eastley, 87 Eng. Rep. 1370, 1374 (K.B. 1744). "[A] gun may be kept for the defense of a man’s house." Wingfield v. Stratford, 96 Eng. Rep. 787 (K.B. 1752); accord, The King v. Thompson, 100 Eng. Rep. 10, 12 (K.B. 1787) (it is “not an offence to keep or use a gun”), and Rex v. Hartley, II Chitty 1178, 1183 (1782) (“a gun may be used for other purposes, as the protection of a man's house.”).
I assume that you have now read Miller and agree with me, since you made no further comment. I also assume the corresponce law school you attended did not teach you how to shepardize a case.
I should also add, that since Leagle45 is going to argue that the "Well regulated militia" language provides the reason for the Second Amendment.
ReplyDeleteThat leaves us with the question if that reason is no longer valid, then why shouldn't the Second Amendment be seen as an historical curiousity rather than something which is relevant to modern society?
Hello, Laci The Dog.
DeleteThe well regulated militia is a viable entity today according to two unanimous decisions by SCOTUS, one of which was authored by Stevens. Maryland v. United States, 381 U.S. 41 (1965); Perpich v. Department of Defense, 496 U.S. 334 (1990).
Those decisions point out that the Militia is now the National Guard, and if you wish to joint that body--then you can exercise your militia right.
DeleteOtherwise, saying you are a member of a sedentary militia is the same as saying you have a draft card.
It gives you no rights whatsoever.
The National Guard is the modern Militia reserved to the States by Art. I, § 8, cl. 15, 16, of the Constitution.
DeleteMaryland v. United States - 381 U.S. 41 (1965)
The District Court rejected the Governor's challenge, holding that the federal Guard was created pursuant to Congress' Article I, § 8, power to raise and support armies; that the fact that Guard units also have an identity as part of the state militia does not limit Congress' plenary authority to train the units as it sees fit when the Guard is called to active federal service; and that, accordingly, the Constitution neither required the gubernatorial veto nor prohibited its withdrawal. The Court of Appeals affirmed.
Perpich v. Department of Defense, 496 U.S. 334 (1990).
The Second Amendment relates to the Body created under Article I, Section 8, clause 16.
What are the powers granted to Congress under this clause--LegalEagle?
I think that you are only provingg that you have no idea of what you are talking about, LegalEagle.
Laci the Dog wrote: "Those decisions point out that the Militia is now the National Guard"
DeleteYou did not read Perpich very well, did you? Maryland held that the NG was an Article I, Sec 8, cl 15-16 militia when it has not been called up by the Feds. Perpich held that the dual enlistment provision contained in the the NG law converted the NG into a regular armed forces when called into federal service. Perpich also stated
"Congress has provided by statute that, in addition to its National Guard, a State may provide and maintain at its own expense a defense force that is exempt from being drafted into the Armed Forces of the United States. See 32 U.S.C. § 109(c). As long as that provision remains in effect, there is no basis for an argument that the federal statutory scheme deprives Minnesota of any constitutional entitlement to a separate militia of its own." Perpich v. Department of Defense, 496 U.S. 334, 351 (1990).
Now if you were really good, you would have even read footnote 25:
"The Governor contends that the state defense forces are irrelevant to this case because they are not subject to being called forth by the National Government, and therefore cannot be militia within the meaning of the Constitution. We are not, however, satisfied that this argument is persuasive. First, the immunity of those forces from impressment into the national service appears -- if indeed they have any such immunity -- to be the consequence of a purely statutory choice, and it is not obvious why that choice should alter the constitutional status of the forces allowed the States. Second, although we do not believe it necessary to resolve the issue, the Governor's construction of the relevant statute is subject to question. It is true that the state defense forces "may not be called, ordered, or drafted into the armed forces." 32 U.S.C. § 109(c). It is nonetheless possible that they are subject to call under 10 U.S.C. §§ 331-333, which distinguish the "militia" from the "armed forces," and which appear to subject all portions of the "militia" -- organized or not -- to call if needed for the purposes specified in the Militia Clauses. See n. 21 supra."
You really should brush up on your reading skills.
All of this makes sense if you merely read Article I, Sec 8, cl 15-16:
"To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repeal Invasions;
To provide for organizing, arming, and disciplining, the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress;"
In Perpich, the feds called the NG into federal service for training outside of the country. If the NG was a true militia, they could not do this. The militia can not be sent out of the country for any reason and the states have the right to train them, not the feds. That is why they had to draft the entire militia into the armed forces in 1917. That is why Governors refused to allow their militia to be sent to Canada in the War of 1812. That is why the government came up with the dual enlistment provision for the NG to create a hybrid force which is a militia when employed by the states, but part of the regular armed forces when called into Federal Service. Finally that is why State Guard units are also Article I, Sec 8, cl 15-16 militias.
Want to try again after you have actually read and understand the cases?
I think Leagle45 mentioned that the notion that a law is void if the reason for it is no longer valid does not apply to Constitutional law. Could you respond to that?
ReplyDeleteThen he is wrong.
DeleteIt applies to all branches of the law.
See comment to Greg below.
DeleteIf Legal says such things, it comes as no surprise to me.
US law schools do not teach the law.
U.S. law schools don't teach the law? ?Como que huh? Give that statement a moment of thought. Where else would American prospective lawyers learn the law? Or do we conclude by your comment that you're using British thinking to understand American law?
DeleteCorrect. Laci could expound to you the difference between legal theory, which is mostly what is taught in law school, and legal practice of which little or not education is usually provided.
DeleteYou don't need to take Laci's word for it; it has been the topic of a great deal of well-researched writing. But then, as Laci so often points out, you are intellectually lazy.
So let me provide a source for you, since you don't know how to do it for yourself (apparently).
http://www.nytimes.com/2011/11/20/business/after-law-school-associates-learn-to-be-lawyers.html?_r=2
"...have each spent three years and as much as $150,000 for a legal degree.
What they did not get, for all that time and money, was much practical training. Law schools have long emphasized the theoretical over the useful, with classes that are often overstuffed with antiquated distinctions, like the variety of property law in post-feudal England. Professors are rewarded for chin-stroking scholarship, like law review articles with titles like “A Future Foretold: Neo-Aristotelian Praise of Postmodern Legal Theory.”
So, for decades, clients have essentially underwritten the training of new lawyers, paying as much as $300 an hour for the time of associates learning on the job. But the downturn in the economy, and long-running efforts to rethink legal fees, have prompted more and more of those clients to send a simple message to law firms: Teach new hires on your own dime.
“The fundamental issue is that law schools are producing people who are not capable of being counselors,” says Jeffrey W. Carr, the general counsel of FMC Technologies, a Houston company that makes oil drilling equipment. “They are lawyers in the sense that they have law degrees, but they aren’t ready to be a provider of services.”
Law schools know all about the tough conditions that await graduates, and many have added or expanded programs that provide practical training through legal clinics. But almost all the cachet in legal academia goes to professors who produce law review articles, which gobbles up huge amounts of time and tuition money. The essential how-tos of daily practice are a subject that many in the faculty know nothing about — by design. One 2010 study of hiring at top-tier law schools since 2000 found that the median amount of practical experience was one year, and that nearly half of faculty members had never practiced law for a single day. If medical schools took the same approach, they’d be filled with professors who had never set foot in a hospital."
I understood what he meant perfectly, and I've never been to law school. I expected you would have a need to look up that information, but would instead ask a stupid question you could have answered for yourself.
As usual.
THAT is just one example of why we do not have much respect for you Greg, and why we don't find much merit in some of your posts - you are ignorant, shallow and superficial in your thinking (deplorable in a teacher) and too damned lazy to inquire or educate yourself on much of anything.
If and when you ever get past that problem - and I doubt you ever will - then you can begin to work your way up to trying to identify much less criticize my cognitive biases. You haven't gotten to the part of engaging in cognition very well yet.
You may quote from Blackstone as you like, but his commentaries help some to interpret the law. I'm not aware of them actually being law. You have yet to explain how "the people" named in the various amendments of the Bill of Rights are somehow out of date today. If you've done so in the past, provide a link.
ReplyDeleteIf you understood the reference to Blackstone, you would know that the 'his commentaries help some to interpret the law' is just one more example of your ignorance and intellectual dishonesty.
DeleteHe is one of the greatest legal minds of history; his words and concepts are used by judges in their decisions. His thinking guides at least some of our legislation.
Perhaps you are unaware of how legal precedent and case law works?
All you have demonstrated here is that you don't understand how Blackstone's work applies to the legal system.
I do understand the concepts that you named. Blackstone's writings guide our legislation? Good for him, but is what he wrote considered law in this country? That's my point. He is an influential thinker, but do his writings have the force of law?
DeleteGreg, it is not our language which is obscene.
DeleteInstead, it is your pretence at being intelligent.
If you were not intellectually crippled, you could look up
Blackstone Commentaries US Law.
But, since you have to show the world how much of an idiot you are, Greg, I shall do the work for you:
http://www.history1700s.com/articles/article1121.shtml
http://en.wikipedia.org/wiki/Commentaries_on_the_Laws_of_England:
The Commentaries are often quoted as the definitive pre-Revolutionary source of common law by United States courts. Opinions of the Supreme Court of the United States quotes from Blackstone's work whenever they wish to engage in historical discussion that goes back that far, or farther (for example, when discussing the intent of the Framers of the Constitution). The book was famously used as the key in Benedict Arnold's book cipher, which he used to communicate secretly with his conspirator John André during their plot to betray the Continental Army during the American Revolution.
http://www.earlyamerica.com/review/spring97/blackstone.html
I would also ask you, Greg, are the rules of grammar important to writing?
In the same way, the rules mentioned by Blackstone form the basis for legal method, which like grammar, form the rudimentary aspect of legal practise.
Were you legal making these stupid comments, I would emphasise that he has demonstrated that he is not worthy of the appellation "lawyer".
But, since you are merely an idiot, Greg, I can only say that you have once again proven that my opinion is well founded.
Would you try to answer my question? Do the opinions of Blackstone have the force of law in the United States? Why are you incapable of answering a direct question?
DeleteWith regard to grammar, though, perhaps you're aware that what constitutes standard English is a matter of continual debate. Usage that would never have been tolerated in years gone by now passes as professional writing, but also, new ways of expressing ideas are found. That raises a second question: Are the methods of legal thinking fluid, or do judges and lawyers always understand the law in the same manner as Blackstone did?
We have answered you question. You engage in repetitive questions which have been answered, fully.
DeleteIn Laci's professional lingo, asked and answered.
From now on every repetition of your questions that has previously been addressed will receive that short but pertinent response.
Sometimes answering your shallow and stupid repetitive questions is like listening to a toddler whining and trying to wear down a parent by saying the same thing over and over to get their way.
It doesn't work. Those are the kinds of comments btw which we justifiably decline to moderate, or on occasion remove, for lack of merit.
I believe Laci is paid for his very expert legal advice. If you want a legal education, seek one out, and pay for it yourself.
He is kind enough, dear and clever and so very kind and modest man that I know him to be, to share the benefits of his considerable legal education with me.
He was kind enough earlier today to assert that I had a better understanding of the law than some lawyers of his experience. I was pleased he has found me a quick study.
It was not my intent to become the focus of the debate. The debate should be upon the 2nd Amend.
DeleteLaci: I already responded to your cut and paste job, point, point. You will be pleased to learn that we are in agreement about Blackstone.
Greg: Blackstone is not US Law, nor is it English law, it is a treatise on the Laws of England and was very influential during the founding era. There is a heavy dose of natural law in Blackstone, especially Chapter the First: Of the Absolute Rights of Individuals. Blackstone had probably more influence in the US than he did in England, as many believed that Sir Edward Coke's Institutes of the Lawes of England provided better analysis (Jefferson was of this belief). However, Blackstone's work organized the study of the law into easily defined compartments, while Coke's work was not nearly as well organized. Blackstone is available on the web here:
http://www.lonang.com/exlibris/blackstone/
Book 1 Chap.1: Of the Absolute Rights of Individuals is here:
http://www.lonang.com/exlibris/blackstone/bla-101.htm
Take a look at the 5th Auxillary Right mentioned by Blackstone in that chapter. Madison's notes to his speech introducing the Bill of Rights refers to this he is explaining what was to become the 2nd Amend.
Blackstone's Treatise was replaced in importance by the work of St George Tucker in 1803. This is known as Tucker's Blackstone, since he copies Blackstone and adds his own notes and then includes a seperate treatment on the US Constitution. Following Tucker, the most influential legal treatises on the Law and Constitution were (in chronlogical order) William
Rawle, A View of the Constitution, 1829, Joseph Story, Commentaries on the Constitution of the United States (1833), and Thomas Cooley, Principles of Constitutional Law in the United States of America 1898.
Hi Greg...
DeleteTo make a very long post very short and concise...
Blackstone is as much a part of US law as is John Locke.
Better?
Well, Given thast you could give arat's arse about proper legal method and the rule of law, I understand why you would make such a comment.
DeleteOf course, it is wrong, while not officially law--Blackstone does provide the fundamentals of US legal education.
Again, something you are ignorant of, LegaleEagle.
Blackstone provides fundamental of common law.
DeleteLocke provides fundamentals of the Philosophy of the Law and is covered extensively in Jurisprudence courses in law school.
Blackstone was a fan of Locke and cites Locke's "Two Treatises of Government" extensively through out the Commentaries.
Locke's Social Contract theory of government finds expression in the Constitution. His views on natural law finds expression in both the Declaration of Independence and the Constitution where his words are copied almost verbatim.
Your legal education is extremely limited, Laci.
Wait, first you say BNlackstone has no effect on US law, then you tell me about his fifth auxiliary right.
DeleteDoes Blackstone have any influence on US law, or not?
you can't have it both waays--legalEagle.
I should also add that the fifth Auxiliary right refers to the British Bill of Rights--so, I am really unclear about your point, LegalEagle.
DeleteIf you are trying to say Blackstone is not US law and then use a reference to the British Bill of Rights, the only thing you are demonstrating is that you have a very poor knowledge of law.
UIn fact, from your comments here, it is pretty obvious that you proabably haven't read most of the material you cite.
What happened to legaleagle's reply that was here?
DeletePooch said:
ReplyDeleteWhich means that if the “cause/reason” for the Second Amendment was the “well-regulated militia”, then it could be argued that when that reason ceased, the law ought likewise to cease with it.
I guess you missed the part that says: "necessary to the security of a free state"
Notice that it does NOT continue as, the right of the states to arm their respective militias shall not be infringed."
And what was it Machiavelli said about arms and freedom when talking about Switzerland, ""the most free and most armed people" of Europe. In other words, the 2A states that in order to have security for a free state, the people must be armed.
orlin sellers
Machiavelli is sadly out of date, and does not apply. Rather the argument is that our society and culture and boundaries have now changes so substantially that private firearms, as distinct from standing armies and the national guard of the states ARE that well-regulated militia, so personal firearms not only no longer apply, they ARE part of a threat to the security of a free state. The transfer of guns from the U.S. to Mexico, and the incursions and damage and danger from the drug cartels would be just one example of that.
DeleteThere is ample evidence that parts of the Constitution should cease to exist, should be repealed.
Anyone care to point to where we actually repealed that slaves - black people - should be counted as 3/5 of a human being. That is specified in the constitution, it's never been repealed. It is clearly obsolete, superseded by later law and amendment. But it hasn't been repealed. I can name other provisions of the constitution. There is NOTHING about the constitution which makes it exempt from obsolescence, different from other aspects or branches of law.
It wouldn't be a bad idea to introduce a legislative initiative to get rid of all the obsolete crap law that exists, including a good mucking out of the Constitution where appropriate - like the 3/5 part being repealed rather than simply superseded.
"The transfer of guns from the U.S. to Mexico, and the incursions and damage and danger from the drug cartels would be just one example of that."
DeleteWell since studies have shown that the majority of those guns found in Mexico were actually provided by our government, it would seem to argue that private ownership of weapons is indeed a part of securing a free state from actions taken by our own federal government.
DG - We changed the 3/5 clause with the 14th Amendment. Can you point to the Amendment that changes the right to bear arms clause stated in the 2nd Amendment?
DeleteWe changed it, but we never repealed it.
DeleteWe have all kinds of changes in how we interpret the 2nd Amendment now, notably a standing army. The right to bear arms is clearly associated with a common defense. That has equally been superseded with the standing army.
... except in southern Arizona where drug smugglers controlled several thousand square miles and the federal government refused to show up and do anything about it.
Delete... except in Detroit where the average 911 response time for priority calls is 24 minutes.
... except in Baltimore where one in 37 families of four had at least one family member who was a victim of violent crime.
Wasn't the 3/5th clause repealed by the Fourteenth Amendment?
ReplyDeleteBut Dog Gone, no, my question hasn't been answered. You're avoiding it. I asked if Blackstone has the force of law. Not whether his opinions are respected. Not whether his thinking is influential. I asked whether what he wrote has to be accepted by judges and legislators.
You claim that Laci is a model human being, but his behavior on this site contradicts everything that you said. People can disagree with each other without having to be rude, but not here, it seems.
Regarding your comment moderation policy, you block comments of mine that show the errors and falsehoods of your arguments. If you want an echo chamber, then please do create a comment policy page that declares that. One would hope that your goal is to seek some kind of common policy that we both can accept.
Hello Greg.
DeleteYou ask: "Wasn't the 3/5th clause repealed by the Fourteenth Amendment?"
Yes. Amendment XIV, Sec 2:
"Section. 2. Representatives shall be apportioned among the several States according to their respective numbers, counting the whole number of persons in each State, excluding Indians not taxed..."
DG said: "Machiavelli is sadly out of date, and does not apply."
ReplyDeleteThe term Machiavillian and what it means is still in use today, but if he is out of date, so is Blackstone. There, that's my opinion which is equal to your opinion. That's all your comment was, an opinion.
Dg said:"Anyone care to point to where we actually repealed that slaves - black people - should be counted as 3/5 of a human being. That is specified in the constitution, it's never been repealed."
Are Senators still elected by the state legislatures? No, you say. Correct, but you win no prize. Do you see how we changed that part of the Constitution? Yes, by amendment. Now, go look at some of those amendments that have been passed and see if you can find where that 3/5 thing was changed. Hint: try 13 & 14.
Regarding the right to bear arms, you and your paranoid, tinhat wearing anti-gun freaks can spew all the nonsense you want, but the clear meaning and intent of the unalienable RIGHTS OF THE PEOPLE, plural for individual persons, TO KEEP AND BEAR ARMS SHALL NOT BE INFRINGED. Unless, of course, you think you can get the Constitution amended by states ratifying such an amendment stating that the US Government has the right to DISARM THE CITIZENS.
Let me know how that works out fer ya.
orlin sellers.
The 3rd Amendment doesn't make sense in today's society, therefore it's anachronistic and meaningless. Does it need to be repealed? No.
ReplyDeleteSame goes for the 2nd. You don't need to be a lawyer to see that.
Mikeb, your idea of merely ignoring anything that you take to be out of date is dangerous. What happens when the government decides that having to get a warrant to search a person's property is out of date? What happens when the government decides that privacy is out of date? What happens when the government decides that due process and trial by jury are out of date?
DeleteOh, wait, all of that has happened.
Can you see how we cling to some old-fashioned, but still needed ideas?
No, Greg, I can't. I'm not talking about a whimsical decision to call something "out of date." I'm talking about a considered judgment about the original intent of those amendments and whether they pertain to today's society.
DeleteBut you didn't address my point. Over the last decade, our government has been ignoring established rights. It all has the same motiviation: control that makes us safer. And it's all equally delusional.
DeleteBut Mike no one is claiming any damages if our government ignores the 3rd Amendment. Millions of people are claiming damages if our government ignores the 2nd Amendment.
DeleteCrunchie, while there can be a lot of claims of damages that doesn't make them true or proper claims of damages in ignoring that Amendment.
DeleteHow about the many cases of damages to innocent people from gun violence do you acknowledge? Who addresses those? No one at the moment, least of all from your side of the gun position.
If you are going to whine about what I would assert is not a legitimate claim of damages relating to the 2nd Amendment, I'd like to see you address THEIR righs and THEIR damages.
I'm WAITING Crunchie. (and in case I haven't mentioned it lately, like FWM, I think you are a dear as well).
Hello Mike-- You wrote: "The 3rd Amendment doesn't make sense in today's society, therefore it's anachronistic and meaningless."
ReplyDeleteYou might want to take a look at Engblom v. Carey, 677 F. 2d 957 (2d Cir. 1982), on remand, 572 F. Supp. 44 (S.D.N.Y.), aff'd. per curiam, 724 F.2d 28 (2d Cir. 1983). In that case the 3rd amend was employed when the Governor of NY replaced striking prison guards at Attica State Prison with units of the National Guard. As part of the job, these prison guards were afforded housing on the premises of the prison, the Governor tried to house the NG in these facilities....
Actually, there are three decisions on the Third Amendment, all from Lower US Courts. Those in addition to Engblom v. Carey are:
DeleteUnited States v. Valenzuela, 95 F. Supp. 363 (S.D. Cal. 1951)
Jones v. United States Secretary of Defense, 346 F. Supp. 97 (D. Minn. 1972)
The Dissent in Englblom pointed out that the case was actually a farce.
If one were to consider the prison guards accommodations as barracks, then this would hardly be a violation of the Third Amendment since the guards were on Strike and the National Guard were their temporary replacements.
But, Mike's point stands--there is no Supreme Court Case which addresses this Amendment.
It's quite obvious that you do not understand the concept of Desuetude, LegalEagle.
n Walz v. Tax Commission of the City of New York, 397 U.S. 664, 678 (1970) addresses the First Amendment--hardly what one would call a little used aspect of the Constitution, The United States Supreme Court asserted in it that: "It is obviously correct that no one acquires a vested or protected right in violation of the Constitution by long use, even when that span of time covers our entire national existence and indeed predates it."
"It must be a very strong case," says Chief Justice Tilghman, "to justify the court in deciding, that an act standing on the statute book, unrepealed, is obsolete and invalid. I will not say that such case may not exist -- where there has been a non-user for a great number of years; where, from a change of times and manners, an ancient sleeping statute would do great mischief, if suddenly brought into action; where a long, practice inconsistent with it has prevailed, and, specially, where from other and latter statutes it might be inferred that in the apprehension of the legislature, the old one was not in force." 13 Serg. & Rawle, 452; Rutherf. Inst. B. 2, c. 6, s. 19; Merl. Repert. mot Desuetude.
That seems to back up my point about Desuetude--one cannot amend the Constitution by Judicial fiat--there is a Constitutional process for amendment, which Heller violated.
""It must be a very strong case," says Chief Justice Tilghman, "to justify the court in deciding, that an act standing on the statute book, unrepealed, is obsolete and invalid."
DeleteApplying this logic to the 2nd Amendment would imply that even though we have not had militias in a long time, the right of the people to bear arms still exists in case the militia is ever needed again. Nothing in the 2nd Amendment indicates that membership in the militia was required for the person to keep and bear arms, just that the militia was necessary to securing a free state. Nothing has ever repealed the 2nd Amendment that I am aware of.
Laci the Dog wrote: "But, Mike's point stands--there is no Supreme Court Case which addresses this Amendment."
DeleteYou might have a point if either Mike or myself made claims about a decision by SCOTUS or a lack thereof. The fact that there are cases (and I only cited the most recent) demonstrates that the 3rd is not obsolete.
Did you ever find that case which decided that a constitutional provision was void because the reason for the provision had disappeared?
Nice dicta about obsolete laws, but here are some actual decisions:
"A positive statute, unrepealed, can never be repealed by non-user alone." 4 Yeates, Rep. 181; Id. 215; 1 Browne's Rep. Appx. 28; 13 Serg. & Rawle, 447.
"The disuse of a law is at most only presumptive evidence that society has consented to such a repeal; however this presumption may operate on an unwritten law, it cannot in general act upon one which remains as a legislative act on the statute book, because no presumption can set aside a certainty.A written law may indeed become obsolete when the object to which it was intended to apply, or the occasion for which it was enacted, no longer exists." 1 P. A. Browne's R. App. 28.
re: Desuetude.... Is it your position that the well regulated militia does not exist any longer? You should really inform SCOTUS.
Desuetude does not apply to violations of the United States Constitution. In Walz v. Tax Commission of the City of New York, 397 U.S. 664, 678 (1970).
You really are not too good at this, Laci.
Sure, Legaleagle, and you can pull out some of those ridiculous sex crimes that are still on the books. It's bullshit.
DeleteLegalEagle is beginning to show he is an ideologue, not a lawyer.
DeleteIn Laci's definition, a lawyer is someone with legal training in the United Kingdom who agrees with him.
Delete