McDonald v. City of Chicago

[Jamie6.5]

The 9th didn't get kicked, as the 2ndA IS specifically enumerated, as in:

"The right of the people to keep and bear arms shall not be infringed."

Secondly, the SCOTUS didn't reverse the decision, supplanting it with their own. They remanded it back to the lower court with orders to reconsider it in light of the 2ndA clarification, regarding the quote above.

They did however deliver another blow to left leaning tyrants. Specifically the corrupt Daley organization that prefers subjects as opposed to citizens.
That is what concerns most liberals I'm sure, since their #1 guy hails from there.

Thanks for the confirmation buggy.

 

[Sasquatchvnv]

I wouldn't have a party just yet - the way I read it, it looks like they have turned a god given right into a privilege granted by the government. They didn't shut the door on local governments ability to "regulate" your 2A right as they see fit and proper. I think I'll kick back and watch for a while...

 

[bugeye]

I think I may regret this, I can see how the concept of incorporation is damaging to the 9th, but, more specifically to the 2nd and this case, how does acknowledging a right which is enumerated have any impact on those not enumerated?

"The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people. ”

The Wikki article handles this a good deal better than I can. The word 'others' is key here and from the debate that lead to this amendment it seems clear that others included rights both enumerated and non enumerated and not just rights non enumerated.

From the debate at the time of the constitution it seems pretty clear to me the bill of rights was designed to limit federal law and not set the bar for all law. However, over the years this has changed. As a matter of fact the constitution does not give the supreme court the right to decide constitutionality, you see this has also changed.

 

[Bruce]

It is too bad that the right of free speech is not tied to the right of the people to bare arms. Same language in both amendments.
If the left had been fighting for gun rights instead of free speech we would all have the right to bare nuclear arms.

 

[chris61182]

"The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people. ”

The Wikki article handles this a good deal better than I can. The word 'others' is key here and from the debate that lead to this amendment it seems clear that others included rights both enumerated and non enumerated and not just rights non enumerated.

From the debate at the time of the constitution it seems pretty clear to me the bill of rights was designed to limit federal law and not set the bar for all law. However, over the years this has changed.

Something is lacking from your argument, you use the first few words of the 1st amendment to imply it's Federal only, and that's a fair assessment. But then you try to apply that to all the others which don't start the same way.

Then I'm still not clear on what you're trying to use the 9th to say. Yes we have had many rights acknowledged which aren't enumerated. Privacy and the right to form contracts are two that come to mind.

If anything I'd say that both the 9th and 10th amendments make it perfectly clear who is meant by "people" and that the people have those rights, including the non-enumerated ones. As such I don't see anyway to resolve the 9th and 10th with the bill of rights only creates restrictions for the Federal government.

As a matter of fact the constitution does not give the supreme court the right to decide constitutionality, you see this has also changed.

As a matter of fact it would seem to give them this power...

The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution,....

If a law or case does not arise under the Constitution it would not be try-able by the court and hence unconstitutional.

 

[ZachS]

As a matter of fact the constitution does not give the supreme court the right to decide constitutionality, you see this has also changed.


As a matter of fact it would seem to give them this power...

The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution,....

If a law or case does not arise under the Constitution it would not be try-able by the court and hence unconstitutional.

"Cases in law and equity" does not encompass "acts of Congress."

The power in question, known as Judicial Review, comes from Marbury v. Madison, a case from 1803. The Constitution left the question unsettled, because different factions had different views on how powerful the judiciary should be. This opinion was written by John Marshall, the Court's first Chief Justice, in a manner that basically kept the folks against judicial review (Jefferson's anti-Federalists) from pushing back against it - and the power of the young Court.

It was a fairly brilliant decision.

 

[chris61182]

"Cases in law and equity" does not encompass "acts of Congress."

Now bare with me because that seems like a very minor distinction.

Lets say that hypothetically Congress passed a law banning all firearms. Someone is then arrested for violating this law, they are put on trial, and eventually the case makes its way to the Supreme Court. The justices would then realize the the law violates the 2nd amendment. As such this is not a case in law that arose under the constitution and toss it out. Effectively nullifying the law because it's not prosecutable in a court of law.

How is what you're describing as an act of Congress different?

 

[chris61182]

Or put another way, any laws created by Congress which operate counter to article 1, sections 8 and 9, or states and section 10 or article 6, or the amendments (primarily the Bill of Rights for what we're concerned with) the law would not have arisen under the Constitution (ie. fancy words for unconstitutional) and should/would then be nullified by the courts.

 

[ZachS]

Now bare with me because that seems like a very minor distinction.

Lets say that hypothetically Congress passed a law banning all firearms. Someone is then arrested for violating this law, they are put on trial, and eventually the case makes its way to the Supreme Court. The justices would then realize the the law violates the 2nd amendment. As such this is not a case in law that arose under the constitution and toss it out. Effectively nullifying the law because it's not prosecutable in a court of law.

How is what you're describing as an act of Congress different?

Article III gives the Court the ability to hear certain types of cases - it does not explicitly (or implicitly) give it the power to declare laws null and void. It's a historical fact that the court did not have that ability until Marbury.

It's a minor distinction in the sense that either path leads to the same goal, but it's impossible to understand the development of constitutional law without understanding Marbury. I'd highly recommend reading it (and reading about it) if you haven't already. It's the best introduction to the way constitutional law really works (as opposed to the way many people would prefer that it works).

 

[chris61182]

Article III gives the Court the ability to hear certain types of cases - it does not explicitly (or implicitly) give it the power to declare laws null and void.

Either math/logic works different in the lawyer world or you've tried really hard to ignore what I've written. I've very intentionally avoided the concept of writ of mandamus because you guys are right that's not in the constitution. So I'll try it again for a third time...

Maybe we'll try the Socratic method now. Article 3 gives the court the ability to hear certain cases should specific conditions be met. But what is the court to do when one of those conditions aren't met? The court wouldn't have the required judicial power to hear the case, at which point what happens then?

One of the conditions appears to be that the law in question arises under the Constitution. No cases for that law can be heard, effectively nullifying it. This does not require the court to tell the other branch of government anything as is the case with Mandamus, simply the case wouldn't be heard and no punishment/resolution made.

Historically this approach may have never been used, but it is plainly there in the Constitution which makes bugeye's claim false. And as we just saw with Monday's ruling it's never to late for pieces of the Constitution to be revived and used as they were meant.

 

[Trlsmn]

 

[ZachS]

Either math/logic works different in the lawyer world or you've tried really hard to ignore what I've written. I've very intentionally avoided the concept of writ of mandamus because you guys are right that's not in the constitution. So I'll try it again for a third time...

Maybe we'll try the Socratic method now. Article 3 gives the court the ability to hear certain cases should specific conditions be met. But what is the court to do when one of those conditions aren't met? The court wouldn't have the required judicial power to hear the case, at which point what happens then?

One of the conditions appears to be that the law in question arises under the Constitution. No cases for that law can be heard, effectively nullifying it. This does not require the court to tell the other branch of government anything as is the case with Mandamus, simply the case wouldn't be heard and no punishment/resolution made.

Historically this approach may have never been used, but it is plainly there in the Constitution which makes bugeye's claim false. And as we just saw with Monday's ruling it's never to late for pieces of the Constitution to be revived and used as they were meant.

First, you don't understand what "Case...Arising under the Constitution" means. That clause refers to things like impeachment cases that are not based on any law or statute outside of the Constitution.

Second, you're using circular logic. Your statement that "any laws created by Congress which operate counter to [the Constitution] would not have arisen under the Constitution (ie. fancy words for unconstitutional) and should/would then be nullified by the courts" is completely meaningless. It also assumes that there could be immediate and clear agreement as to what laws "operate counter to" the Constitution. I am almost flabbergasted that the history of this country does not make it immediately clear to you that reasonable people can disagree about what is and isn't constitutional. Do you think you have some sort of magical ability to interpret the text of the Constitution that make your opinions about it correct? That you're the only person in a country of more than 300 million people who really "gets it?" Ridiculous idea, isn't it?

Third, appellate courts (including the Supreme Court) do not "nullify" laws. They overturn the decisions of lower courts. When a decision is overturned because a law it's based on is ruled unconstitutional, lower courts will stop applying the law, and executive agencies will stop enforcing it. The law will change immediately without it being officially updated or struck from the books.

Fourth, Bugeye doesn't understand how constitutional law works either. He seems to have read about it a little more than you have, but the end result is the same.

Finally, I'm not really interested in discussing your hypothetical theories. They're boring and have no basis in reality. The actual law has worked differently than you think it should for over 200 years. American courts will not reverse 200 years of jurisprudence because some guy with a computer doesn't think they're being logical enough. Even Clarence Thomas, the Supreme Court's paragon of textualism, would consider your position ridiculous.

Entertained yet?

 

[Jamie6.5]

Man, this discussion is cracking me up, in light of the Senate Judiciary hearings that just concluded.
An awful lot of time was spent on Elena Kagan's interpretation of the SCOTUS' role in "interpreting' the Constitution in a traditional "on the face of" form, versus it's adaptability with regard to changing societal norms.
Not to mention the discussions about the court's responsibility (or lack of) to rein in overzealous lawmakers, and their policy preferences when making laws without regard for Constitutionality.

It's really too bad she had to spend so much time stating she "hadn't had time" to read the MacDonald decision.

 

[chris61182]

First, you don't understand what "Case...Arising under the Constitution" means. That clause refers to things like impeachment cases that are not based on any law or statute outside of the Constitution.

That makes no sense given Congress has that power not the courts. Instead you'd see that impeachment is a case that is not "in Law and Equity."

Second, you're using circular logic

And one might think you failed Discrete Math 101 since you're arguing A = B&C is a circular argument, well actually there's an &D on that as well but we're not interested in who can sue who in this instance.

Your statement that "any laws created by Congress which operate counter to the Constitution] would not have arisen under the Constitution (ie. fancy words for unconstitutional) and should/would then be nullified by the courts" is completely meaningless. It also assumes that there could be immediate and clear agreement as to what laws "operate counter to" the Constitution.

If you actually read any of my posts I already enumerated a number of those circumstances, ie. if the law runs counter to Article 1 Sections 8 and 9 it would be unconstitutional, among other parts of the constitution.

I am almost flabbergasted that the history of this country does not make it immediately clear to you that reasonable people can disagree about what is and isn't constitutional. Do you think you have some sort of magical ability to interpret the text of the Constitution that make your opinions about it correct? That you're the only person in a country of more than 300 million people who really "gets it?" Ridiculous idea, isn't it?

Truthfully you'd likely find most disagreements on topics like this are matters of bias. Take Justice Stevens' dissent on McDonald for example. He intentionally looked only at Cruikshank and Presser while wholely ignoring the 2nd amendment, simply because it suites his stance. Similarly you are only looking at Marbury while wholey ignoring Article 3, simply because it suites your stance.

Third, appellate courts (including the Supreme Court) do not "nullify" laws. They overturn the decisions of lower courts. When a decision is overturned because a law it's based on is ruled unconstitutional, lower courts will stop applying the law, and executive agencies will stop enforcing it. The law will change immediately without it being officially updated or struck from the books.

Isn't that exactly what I'm describing with the issue of nullification? Mandamus seems to imply the courts tell the other branches to change the law, nullification leaves it up to them to do the sensible thing.

We have the beauty of not being a lower court, we citizens, like the SCOTUS justices can look beyond case law and back at the Constitution itself. And I suspect your views are colored by your profession, you aren't allowed to look beyond case law. You'll continue on like Justice Stevens, hiding behind case law in order to avoid looking at the document in question, because you profession allows nothing else.

The rest of us might be interested in what it actually says, nothing will change but we'll at least know what was written.

Fourth, Bugeye doesn't understand how constitutional law works either. He seems to have read about it a little more than you have, but the end result is the same.

You keep making the mistake that I'm arguing about how things are done today. Bugeye's statement regarded the constitution, I'm simply analyzing what is in the text to that effect, and as such Bugeye's statement is incorrect about what is contained in the Constitution. So if you could stop trying to make this an argument about something else that would be fantastic.

 

[ZachS]

Truthfully you'd likely find most disagreements on topics like this are matters of bias. Take Justice Stevens' dissent on McDonald for example. He intentionally looked only at Cruikshank and Presser while wholely ignoring the 2nd amendment, simply because it suites his stance. Similarly you are only looking at Marbury while wholey ignoring Article 3, simply because it suites your stance.

My only stance that you're living in a fantasy world and think that the actual law and history that our country's based on are irrelevant. Your arguments are illogical and practically incomprehensible. You remind me of an old paranoid-schizophrenic friend of mine, but he thinks and communicates with more clarity than you do.

You keep making the mistake that I'm arguing about how things are done today. Bugeye's statement regarded the constitution, I'm simply analyzing what is in the text to that effect, and as such Bugeye's statement is incorrect about what is contained in the Constitution. So if you could stop trying to make this an argument about something else that would be fantastic.

You are not analyzing anything, you're making up interpretations based on your inability to comprehend the text. Regardless, arguing about the text of the Constitution in a vacuum is something that only pedants and the uneducated resort to. Our political system has never, ever been based solely on the text of the Constitution - not even at the moment it was finally ratified.


Just one more example before I ignore you completely: in response to my assertion that you're making circular arguments, you said

ie. if the law runs counter to Article 1 Sections 8 and 9 it would be unconstitutional, among other parts of the constitution.

In other words, "If the law runs counter to the Constitution, it would be unconstitutional." You answered my assertion by repeating the same circular argument.... A fifth-grade debate club wouldn't waste its time with you, and neither will I.

 

[chris61182]

My only stance that you're living in a fantasy world and think that the actual law and history that our country's based on are irrelevant. Your arguments are illogical and practically incomprehensible. You remind me of an old paranoid-schizophrenic friend of mine, but he thinks and communicates with more clarity than you do.

Really, I'm illogical and incomprehensible? So Stevens introductory paragraph didn't really culminate in, "The so-called incorporation question was squarely and, in my view,correctly resolved in the late 19th century.1"?

In other words, "If the law runs counter to the Constitution, it would be unconstitutional." You answered my assertion by repeating the same circular argument.... A fifth-grade debate club wouldn't waste its time with you, and neither will I.

I would have assumed sections 8 and 9 would be easy for you to follow since they are enumerated rules regarding powers and limitations but apparently not. Checking for validity against such a list is not a circular argument. This is similar to the pigeonhole sort in discrete math. In this case the law must find a match in the powers and no match in the limitations. If that doesn't make sense to you I really worry about the state of our legal system, this is rudimentary math and logic. Another match would be to declarative programming, but I doubt you'd understand that either.

 

[OldBolts]

Let's suppose there's a list P = {P_0, P_1,..., P_n} of enumerated powers and a list E = {E_0, E_1,..., E_n} of excluded powers. The federal government should only be able to do something that has been listed in at least one P_i and is not any E_j.

 

[ZachS]

I would have assumed sections 8 and 9 would be easy for you to follow since they are enumerated rules regarding powers and limitations but apparently not. Checking for validity against such a list is not a circular argument. This is similar to the pigeonhole sort in discrete math. In this case the law must find a match in the powers and no match in the limitations. If that doesn't make sense to you I really worry about the state of our legal system, this is rudimentary math and logic. Another match would be to declarative programming, but I doubt you'd understand that either.

Law, including constitutional law, deals with questions that aren't reducible to math or formal logic. It's not even a tool for answering those questions, it's a continuous process used to solve complex individual and societal problems that those questions bear on. During that process the meaning of every word and sentence in a law is continuously debated and redefined in the context of the problem being solved. The Constitution is not a computer program. If you put ten judges into a room and ask them to define "necessary and proper," you'll get twelve different answers - each as legally viable as any other.

You seem convinced that words are like numbers, and every document has one clear meaning that's logical and obvious. You mentioned bias earlier, but you probably don't believe that you're biased toward anything but "the truth."

You're wrong.

Even though you clearly don't like how this process works, it's the way it's always worked in the Anglo-American legal system. The common law is a fundamental part of our heritage, and the Constitution cannot be understood outside of a common-law context. Even our most conservative judges support this principle.

 

[chris61182]

The Constitution is not a computer program. If you put ten judges into a room and ask them to define "necessary and proper," you'll get twelve different answers - each as legally viable as any other.

They may debate the meaning of the word necessary, and they may debate the meaning of the word proper, but I'd be shocked if they were debating the meaning of the word and.

You seem convinced that words are like numbers, and every document has one clear meaning that's logical and obvious. You mentioned bias earlier, but you probably don't believe that you're biased toward anything but "the truth."

Certainly not every document, even many parts of the Constitution suffer that problem as can be pointed out in the interstate commerce clause, and the general welfare clause. But at the same time the Constitution does have many parts which are logically clear as day, even if they've been overruled by case law.

Even though you clearly don't like how this process works, and has always worked, in the Anglo-American legal system, it's the way it'll always work. The common law is a fundamental part of our heritage, and the Constitution cannot be understood outside of a common-law context.

And what you still refuse to acknowledge is that I'm not arguing how the process works. Additionally you still refuse to acknowledge that from 1788-1803 the Constitution contained the phrase I've been harping about and THAT was the law. It is/was real, not make believe, not some crazies' fiction, and no one is in any way arguing to go back to it today.

 

[ZachS]

And what you still refuse to acknowledge is that I'm not arguing how the process works. Additionally you still refuse to acknowledge that from 1788-1803 the Constitution contained the phrase I've been harping about and THAT was the law. It is/was real, not make believe, not some crazies' fiction, and no one is in any way arguing to go back to it today.

That wasn't your argument, but if you distill it down that far, of course I agree. Just as you must certainly agree that it would have still been subject to the interpretation of courts...