The Originalist's dilemma

Justice Scalia has a fallacy that the Constitution must be interpreted within its original meaning, yet he must admit that he should be incredibly incredibly (yes, I mean to say that twice) wary about overturning laws made by elected officials if he is going to do that.

Why?

This power is not expressly granted in the Constitution.

In fact, as I have pointed out many times before, this power comes from the case of Marbury v. Madison, which also said: It cannot be presumed that any clause in the Constitution is intended to be without effect.

So, should he be very wary about declaring laws unconstitutional since that is not a power which is expressly granted by the constitution? 

Additionally, since he went against Marbury once to the detriment of public safety in the Heller decision, should he admit that decision committed the grossest of errors in his political philosophy?

In fact, if anything the Heller decision totally contradicts his claimed belief in that the document should be interpreted as originally intended.  After all, the Second Amendment was implemented by the Militia Act of 1792--not the guns for criminals acts.

Scalia is not as clever as he would like to paint himself as he has painted himself into an ideological corner which those cleverer than he is can laugh at his folly.  The ultimate farce is that he is claiming powers which have not been granted to him by the document he claims to believe in.

Quote of the Day

I am really amazed at people who say they support the Constitution, yet can talk about armed rebellion against the United States:

Treason against the United States, shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort. No Person shall be convicted of Treason unless on the Testimony of two Witnesses to the same overt Act, or on Confession in open Court.
The Congress shall have Power to declare the Punishment of Treason, but no Attainder of Treason shall work Corruption of Blood, or Forfeiture except during the Life of the Person attainted.

US Constitution, Article III, Section iii

I've said it before, but you don't listen to me.

Yeah, you know more about the law than I do...

Anyway, this comes from Andrew F. Branca: somebody I would definitely describe as being pro-gun, but some of you have problems with Andy Raymond being "pro-gun".

Here’s some breaking news for you “OCIYF!” people:

YOU HAVE ABSOLUTELY NO SECOND AMENDMENT RIGHT TO CARRY A FIREARM INTO A PRIVATELY OWNED BUSINESS.

None. Zero. Zilch. Zip.

The Second Amendment forbids the Federal government—and since McDonald also the individual state governments—from infringing on the right of the people to keep and bear arms. Key word: government.

The Second Amendment does nothing whatever to constrain the rights of private property owners to determine for themselves whether to allow the carry of guns—concealed or open—on their property.
To put it even more simply, when you are on someone else’s property you are there as an invited guest. You stay at their pleasure, and under their rules, rules that only they are entitled to define. Make your host unhappy for any reason whatever and they are entirely within their rights to order you to leave. Refuse to comply and you’ve become a criminal guilty of trespass.

Got that:  The Constitution and Bill of Rights apply to government, not private action.

He also has some choice words for the Open Carry movement as well.

Question of the day

Q:  The question -- does federal law supersede or take precedent over state law?

A:  Federal law supersedes per Article VI:

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.

So, when some local yokel says they won't enforce federal law, they are being an Unconstitutionalist.

The Original Intent of the Second Amendment was to Protect Slaveholders

REUTERS/Kevin Lamarque

Civil War reenactors prepare to reenact the Battle of Manassas/Bull Run. In slave states, militias served not only as military forces, but also as slave patrols.

MinnPost

The right to bear arms was not part of the original Constitution. The Constitution did, without mentioning the word “slavery,” build in a number of protections for the institution in the South. Many of the northern framers were anti-slavery, but it was clear that there would be no union unless the slave states felt assured that the new, more powerful national government was not empowered to abolish slavery.

When the draft went to the states for ratification, one of the big battles was in Virginia, where men of towering reputations stood on both sides of the issue. The leader of the pro-ratification forces was James Madison, whose role in the story is so large that he is known as the Father of the Constitution. The noisiest opponent was the fading but famed orator Patrick Henry (whose famous line as a revolutionary was “give me liberty or give me death” and who had been the first post-colonial governor of Virginia). Henry made many, many arguments about the dangers to individual liberty and to the sovereignty of the Commonwealth of Virginia of this powerful new federal government.

Bogus emphasizes that many of the arguments dealt with “militia” issues. But Bogus adds a fact that wouldn’t necessarily occur to you. In the slave states, the militias also served the function of slave patrols. The militia was available for military operations, but its biggest function was to police the slaves, intimidate the slaves and make clear to the slaves that any effort at a slave rebellion would be met with overwhelming deadly force — armed force — gun force.

No wonder the fanatics have such an aversion to the first four words of the sacred amendment.

What's your opinion?  Please leave a comment.

Thomas Jefferson on Constitutional change

And how would I do on a quiz about the Constitution?

I'd ace it--of course!

And how would YOU do?


And while we're at it:

Fox News Shreds the Constitution - Except the 2nd Amendment, Of Course

The Daily Show with Jon Stewart
Get More: Daily Show Full Episodes,Indecision Political Humor,The Daily Show on Facebook

The Constitution - An Ancient and Outdated Document

Life, Liberty and the Pursuit of Happiness

"Life, liberty and the pursuit of happiness," to me means I can bring my kids to the playground without worrying about which of the other parents is carrying a gun, about which one of them might be in a domestic squabble with her husband who's about to storm into the playground shootin'.

But I don't have that. The reason is someone else's idea of freedom has trumped mine. This was done as a planned and systematic assault on the legislative interpretation of the 2nd Amendment.

Now, what we've got is something which would be totally unrecognizable by the sacred and revered Founding Fathers, not something they would approve of, but something they would be baffled and confounded by.

What Would You Change in the Constitution?

Essay Question--How Does the Second Amendment negate Article III, Section iii?

Actually, this question goes further in depth than just relating to Article III, Section iii of the United States constitution which defines treason.

“Treason against the United States, shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort.”

The militia’s purpose is to suppress insurrections, not foment them according to Article 1, Section 8, Clause 15:

“To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions;”

Insurrection being defined by Webster (a good American Dictionary, not that evil OED) as:

an act or instance of revolting against civil authority or an established government

Dennis v. United States, 341 U.S. 494 (1951) mentions the insurrectionist theory as being off the table:

The obvious purpose of the statute is to protect existing Government, not from change by peaceable, lawful and constitutional means, but from change by violence, revolution and terrorism. That it is within the power of the Congress to protect the Government of the United States from armed rebellion is a proposition which requires little discussion. Whatever theoretical merit there may be to the argument that there is a “right” to rebellion against dictatorial governments is without force where the existing structure of the government provides for peaceful and orderly change. We reject any principle of governmental helplessness in the face of preparation for revolution, which principle, carried to its logical conclusion, must lead to anarchy. No one could conceive that it is not within the power of Congress to prohibit acts intended to overthrow the Government by force and violence. The question with which we are concerned here is not whether Congress has such power, but whether the means which it has employed conflict with the First and Fifth Amendments to the Constitution.

Explain how a document that says that the Militia is to suppress insurrections and only lists one crime, treason, which is pretty much the same thing as insurrection, allows for people to commit treason using the Second Amendment:

A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.

.

Benjamin Franklin Speaks about The Constitution

via Sam Wise Gingy commenting on my post on Daily Kos

The idea that what a group of smart men decided two hundred years ago should be considered beyond question today is madness.

Even Ben Franklin himself agrees with me.

Guns - Open Carry - The Constitution

via The Truth About Guns

Well, actually that video was just chock full of thought-provoking ideas. One good one is that when someone thinks they're life is being threatened they have the right to defend themselves with lethal force. I admit this guy didn't sound like a brain surgeon, but if you think about it he made a really good point in an ironical way. It's not the non-gun owners who do this with their cars like he was saying. It's you gun owners. It's you guys as well as the cops who do this every single day. Bogus DGUs and murder disguised is what it is, in many cases where you only thought your life was in jeopardy.

Another good point is the more superficial one about open carry guys. There's something wrong with guys who want to do that and they can easily be presumed to be criminals. In places where it becomes popular, criminals could imitate them and go undetected.

But, best of all, he made a wonderful presentation for the fact that all guns in criminal hands come from you law-abiding gun owners. This is the irrefutable fact that ties you together with the criminal gun owners like first cousins.

There's more, but that'll do for now. Thanks for a wonderful fascinating video, Robert.

A Well Regulated Militia

via Norwegianity and dedicated to Schaeffer

Beck to Matthews about Bachmann

Trying to look beyond all the hysterics, there are some good questions here. Who is distorting the Constitution? Did the Founding Fathers of our country really do right by the slaves? Is that what the Progressives missed according to Glenn?

Did Michelle Bachmann just mis-speak when she said that thing about John Qunicy Adams? Is the Three-fifths compromise to be seen as a good thing?

What's your opinion? Please leave a comment.

Anachronisms in the U.S. Constitution

1. The Three-fifths Compromise.

Following the Civil War and the abolition of slavery by the Thirteenth Amendment to the United States Constitution (1865), the three-fifths clause was rendered moot.

2. The Second Amendment.

No explanation needed.

3. The Third Amendment.

The "con" is it isn't truly necessary anymore as we are a nation with a standing military and have bases, barracks, and a military that is field deploy-able. It is an anachronism.

What's your opinion? Did I miss any?

Please leave a comment.

The Greatest Spin Doctor Ever - Glenn Beck

I agree with the "cowardice" part. But what I love best is the double standard. The completely anachronistic 2nd Amendment is referred to as if it were the voice of God Himself, while the 3rd Amendment and the 3/5ths Compromise are avoided, or actually eliminated as in this case.

What's your opinion? Please leave a comment.

Ezra Klein on the Constitution

The Constitution and Slavery

Digital History has a wonderful article on this subject.

On the 200th anniversary of the U.S. Constitution, Thurgood Marshall, the first African American to sit on the Supreme Court, said that the Constitution was "defective from the start." He pointed out that the framers had left out a majority of Americans when they wrote the phrase, "We the People." While some members of the Constitutional Convention voiced "eloquent objections" to slavery, Marshall said they "consented to a document which laid a foundation for the tragic events which were to follow."

I enjoyed this bit of information very much because I often disparage mention of the "framers," referring to them as "slave owners."

As it turns out, only about half of them were. The reason some of the others went along with the scheme was pure politics.

They were convinced that if the Constitution restricted the slave trade, South Carolina and Georgia would refuse to join the Union. But by sidestepping the slavery issue, the framers left the seeds for future conflict.

And of course you've got plenty of double talk and hypocrisy.

A Virginia delegate, George Mason, who owned hundreds of slaves, spoke out against slavery in ringing terms. "Slavery," he said, "discourages arts and manufactures. The poor despise labor when performed by slaves." Slavery also corrupted slaveholders and threatened the country with divine punishment: "Every master of slaves is born a petty tyrant. They bring the judgment of Heaven on a country."

Why in the world would anybody quote these guys or anything they wrote? Why would people take their names as their own, as Mike V. has?

What's your opinion? Please leave a comemnt.