Does anyone give a shit about the law anymore? Really? Did you ever?

[CyranoJ]

You're mistaken to imagine that it's all about "sides" and point-scoring for everyone else, Conager. I get that GOP loyalists these days are encouraged to think that partisanship above every other consideration is a normal mindset that everybody shares, but that isn't actually the case. If Democrats were ever to become so attached to partisan maneuvering as to outright damage their own country's economy in the way the Tea Party did, they'd deserve to come in for the same pasting and from me, at least, they'd get it.

But don't go asking me to pretend "both sides do it" is a rational evaluation of what's going on now, because that's a lie. It just isn't so. And don't go trying to foist these absurd comparisons on me as if I'm going to buy them, because it's insulting. The use of the power of the purse to shut down the Vietnam War was bipartisan, because it had become plain that the policy was untenable; comparing that to the Tea Party fucking with the debt ceiling in purely partisan fashion to try to undermine basic governing powers of their opposition is pure foolishness. They're not remotely comparable and you're kidding yourself if you think otherwise.

Congress has the power of the purse and the responsibility to act in the interests of all American citizens. The Republican section of Congress has more or less forgotten that second bit, by now, and now exists almost purely to promote scorched-earth partisanship. It isn't business as usual. It isn't normal. It isn't something "both sides do." At some point GOPers are going to have to face up to that, because it's destroying their party and damaging their country.

 

[JAMESBJOHNSON]

Once again, from the link:



You and the article's author can critique the Court's rationale or absence of it in Coleman all you want, and I will join in that critique in many respects, but to deny that that ruling had the practical affect of validating the ratification process of the 14th Amendment is to be detached from the same reality you would accuse the Court of suffering.

Again, is it bad law? It is not hard to make that case.

Is it settled law over 147 years after the fact? Yes. Most certainly.

I never denied SCOTUS had no effect on the 14th Amendment. I assert SCOTUS validated the amendment process which violates the Constitution.

 

[CyranoJ]

Witch!

Luckily the SCOTUS has upheld our right not to have bridges built out of us by a margin of 5-4.

Oh wait, I'm in Canada. Wonder what our Supreme Court's up to?

Oh.

 

[Recidiva]

Luckily the SCOTUS has upheld our right not to have bridges built out of us by a margin of 5-4.

Oh wait, I'm in Canada. Wonder what our Supreme Court's up to?

Oh.

Maybe they're witches.

There are a whole lot of tweets today about "Now I'm moving to Canada" followed by snickers and "Is anybody going to tell them? Nah."

 

[Colonel Hogan]

You are proving my point. Application of the law is not about sentence diagramming. The context is clearly that the individual right to bear arms is protected insofar as their participation in a militia is in the interest of the state. Not so that every stick up artist, gang banger, doomsday prepper and psychopath can slaughter our citizens.

But here is the fundamental point that people who make that argument keep missing. Even if one accepts your analysis of the framer's general intent, the text they wrote also is in harmony with a general "right" and use of firearms which the historical context of the times indicates the framers most certainly understood -- the right of individual self-defense and hunting for food.

The contention that a modern day militia no longer requires the possession of personal firearms does NOT create a legal premise for merely ignoring the Second Amendment in lieu of the Constitutional process of repeal -- even if you deny the framers' cognizance of the other "rights" I've suggested.

 

[bronzeage]

I think we're approaching a time where the law means whatever the person with the most power wants it to mean, which leads to anarchy.

That's actually what it's always meant.

Current policy is what you let slide last time. What's written down is irrelevant.

 

[Conager]

Admittedly and regrettably true, but I do not believe that reality justifies a wholesale disrespect for the law or the courts.

I'm not accusing you of that mindset, understand; just commenting on what seems to be a general trend.

I have seen some bewildering decisions rendered first hand. A good friend, founding partner of one of the larger firms in the area I was in at the time once said to me that no one but the lawyers ever "wins" a lawsuit. Sage advice, and I prefer to find other remedies if at all available. When one goes to court and finds judges that seem to be failed lawyers without an ability to follow a logical train of though to its inevitable conclusion, one wonders where they get great minds for the higher courts?

I don't see any solution for the ever-growing body of often mis-cited and misconstrued case law. Judges deciding that a previous case means what the more charismatic, or more familiar to his lawyer says it does when a simple reading by a layman would suggest otherwise.

As you know there is a cite for any conceivable position on any conceivable argument. Showmanship seems to sell over sound rhetoric.

As in the case here the controlling law in each and every case should begin with what is black letter law. what do the words say, and what does a plain reading of that law suggest? Not how was this interpreted by some other court of unknown facility with the law. Reading a cite does not tell you the nuances of why in that one case, there was either a miscarriage of justice, or perhaps it was just, but the specific minutiae of that case bent the frame of the law just enough that reasonable people would concur.

Civil disobedience is always an option, as is jury nullification with bad law. A bad reading of the law when you have carefully researched, examined its application to your case and had every reason to be confident is devastating. Each level of appeal is more expensive and looked it with jaundiced eye as if the appellate is unreasonable not to accept the lower court's finding, no matter how wrong. No consequences fall upon incompetent jurists. if the mechanism is political appointment, the same pull that got them there keeps them there, ditto if retention is approved by voters, that flawed idea that voters have any idea who they are voting to retain is silly. Most people vote a straight ticket of yes, save the one judge that harmed them or someone they knew.

When you win an expensive appeal (which should never have been necessary) the vibe is that the reversal was a "technicality" as if it is OK to get the law technically wrong.

I am not a fan of the industry of "the law." I would love to live in a land where the law was clear as possible and justice was smart and impartial. of course I think America gets it right better than anywhere else but it is really short of ideal.

 

[Conager]

You're mistaken to imagine that it's all about "sides" and point-scoring for everyone else, Conager. I get that GOP loyalists these days are encouraged to think that partisanship above every other consideration is a normal mindset that everybody shares, but that isn't actually the case. If Democrats were ever to become so attached to partisan maneuvering as to outright damage their own country's economy in the way the Tea Party did, they'd deserve to come in for the same pasting and from me, at least, they'd get it.

But don't go asking me to pretend "both sides do it" is a rational evaluation of what's going on now, because that's a lie. It just isn't so. And don't go trying to foist these absurd comparisons on me as if I'm going to buy them, because it's insulting. The use of the power of the purse to shut down the Vietnam War was bipartisan, because it had become plain that the policy was untenable; comparing that to the Tea Party fucking with the debt ceiling in purely partisan fashion to try to undermine basic governing powers of their opposition is pure foolishness. They're not remotely comparable and you're kidding yourself if you think otherwise.

Congress has the power of the purse and the responsibility to act in the interests of all American citizens. The Republican section of Congress has more or less forgotten that second bit, by now, and now exists almost purely to promote scorched-earth partisanship. It isn't business as usual. It isn't normal. It isn't something "both sides do." At some point GOPers are going to have to face up to that, because it's destroying their party and damaging their country.

So the Republicans cross the aisle to do the right thing with majority Democrats (happens with some frequency even if it is a handful) and no Democrat crossing the aisle to do the right thing when Republicans are in the majority is evidence to you that the Democrats are reasonable and the Republicans are intransigent?

The Republicans were not allowed any input at all into the ACA, they were howling that a bill no one has read covering this much territory of law was bound to be fraught with peril and mistakes and unintended consequences and the democrats bulldozed it through.

Given that the Democratic party is, essentially a wholly owned subsidiary of the Trial Lawyers Association, the fact that the bill had not even a nod towards tort reform in it was telling. The fact that the law had no mechanism in it at all that any reasonable person could say would make the sum total of health care in this country go down was reason to oppose it.

If you feel it is "the law of the land" and should not be changed or repealed, why do you support something ramrodded in by a past (since thrown out of office) congress, and deny the authority of the new congress to have the same sway over your health-care options?

With control of all three arms of the budget process the democrats ratcheted up spending and installed their priorities and DEMANDED that once they were thrown out of office, every jot and tittle was kept as it was. The Republicans GAVE IN to that exact demand when faced with the drumbeat (that you still believe) that it was they who were being unreasonable.

You have an interesting idea of reasonable. Compromise for a Democrat is you come my direction and I won't go even farther away from your position. Point to an example where Democrats joined with Republicans with the exception of opportunities to spend money such as build the defense and farm industrial complex to ridiculous heights, or such idiocy as Medicare part B?

It is laughable that you do not see yourself as a blind partisan.

 

[Colonel Hogan]

As in the case here the controlling law in each and every case should begin with what is black letter law. what do the words say, and what does a plain reading of that law suggest? Not how was this interpreted by some other court of unknown facility with the law.

Were you knowingly affirming originalism here, or was that inadvertent?

 

[JohnnySavage]

But here is the fundamental point that people who make that argument keep missing. Even if one accepts your analysis of the framer's general intent, the text they wrote also is in harmony with a general "right" and use of firearms which the historical context of the times indicates the framers most certainly understood -- the right of individual self-defense and hunting for food.

The contention that a modern day militia no longer requires the possession of personal firearms does NOT create a legal premise for merely ignoring the Second Amendment in lieu of the Constitutional process of repeal -- even if you deny the framers' cognizance of the other "rights" I've suggested.

There are very few who argue Original Intent any more. Modern day Originalists are of the Original Meaning school of thought.

Until such time as issues such as free speech and gun rights come up. Then they, without exception, become Loose Constructionists. Otherwise we would only be allowed to possess firearms as they were understood in 1788 - the same with the then definition of Speech.

 

[Conager]

Were you knowingly affirming originalism here, or was that inadvertent?

Although there is some danger of continually inventing the wheel, I prefer that to continually adding another random layer of debris to the ox-cart wheels. Some argue the wheel only gets larger and more efficient as the layers are baked on. What happens to how true the cart points when one wheel or the other is enlarged in an uneven manner? Make one side or the other large enough and the cart does donuts.

 

[JAMESBJOHNSON]

Although there is some danger of continually inventing the wheel, I prefer that to continually adding another random layer of debris to the ox-cart wheels. Some argue the wheel only gets larger and more efficient as the layers are baked on. What happens to how true the cart points when one wheel or the other is enlarged in an uneven manner? Make one side or the other large enough and the cart does donuts.

SCOTUS likes some laws more than others. They have no respect for precedent or longevity. When they fuck up theyre the first to hide under their desks.

 

[CyranoJ]

So the Republicans cross the aisle to do the right thing with majority Democrats (happens with some frequency even if it is a handful) and no Democrat crossing the aisle to do the right thing

It helps in the latter situation if the Republicans have a "right thing" to offer for Democrats to collaborate with. "The Tea Party demands you institute more trickle down in the midst of a financial crisis" isn't the stuff of compromise. Yes, the actual content of policies matters.

The Republicans were not allowed any input at all into the ACA,

Absolute horseshit. They declined to engage constructively in any way with the law because they were dead set from the outset on killing it for purely partisan reasons. That's their problem. It's laughable to pretend they were not "allowed any input at all." They just weren't "allowed" to demand that everything be done their way and the law be delivered in a predeceased form that would change nothing. This notion that Obama and the tyrannical Dems just rode roughsod over them is outright propaganda of the lowest variety.

Don't serve up stuff like that and then make like you're in a position to talk about who's a blind partisan. You aren't, and it looks silly.

But I tell you what, heated disagreement or not it's been fun to butt heads with people who actually seem worth the time to butt heads with. It's too rare these days. I'm out of time so I'll leave the last word to you if you want it.

 

[Conager]

There are very few who argue Original Intent any more. Modern day Originalists are of the Original Meaning school of thought.

Until such time as issues such as free speech and gun rights come up. Then they, without exception, become Loose Constructionists. Otherwise we would only be allowed to possess firearms as they were understood in 1788 - the same with the then definition of Speech.

Well, when you get right down to it, the Progressives purposefully misconstruing the Incorporation Clause that led to Heller. The court could not argue that only the 2nd amendment was not incorporated with a whole body of bad case law saying all the other ones are.

The framers constructed a document of negative liberties as a famous constitutional lecturer once said. The second amendment simply proscribed the Federal government from infringing in any way whatsoever on the citizens of the several States. If the citizens of a particular state (or locality) wanted to restrict access to persons or types of weapons or what-not, they were free to do so. Many places did. Many State Constitutions have their own right to bear arms written into it because the citizens of those States felt they did not want their sovereign State to infringe either. Such a clause would have been unnecessary if the US Constitution's second amendment was incorporated or meant to restrict the right of the state or locality from infringing.

 

[JohnnySavage]

It's the Third Amendment that really gets my goat. We really need some litigation to flesh that one out.

 

[Conager]

It helps in the latter situation if the Republicans have a "right thing" to offer for Democrats to collaborate with. "The Tea Party demands you institute more trickle down in the midst of a financial crisis" isn't the stuff of compromise. Yes, the actual content of policies matters.



Absolute horseshit. They declined to engage constructively in any way with the law because they were dead set from the outset on killing it for purely partisan reasons. That's their problem. It's laughable to pretend they were not "allowed any input at all." They just weren't "allowed" to demand that everything be done their way and the law be delivered in a predeceased form that would change nothing. This notion that Obama and the tyrannical Dems just rode roughsod over them is outright propaganda of the lowest variety.

Don't serve up stuff like that and then make like you're in a position to talk about who's a blind partisan. You aren't, and it looks silly.

But I tell you what, heated disagreement or not it's been fun to butt heads with people who actually seem worth the time to butt heads with. It's too rare these days. I'm out of time so I'll leave the last word to you if you want it.

I get it. Tea party bad. Democrat good. Point to a single line in the ACA authored by a Republican staffer and I will concede you are right.

And no, arguing that the "whole idea" was a heritage foundation creation and that Romney-care did it first is not adequate. I mean someone in a republican congressman's office used a pen, a word processor, email or post-it note and inserted a single word into the bill contemporaneous to the time the law was drafted.

ETA: I wanted to send a conciliatory note via PM, but was unable to so, perhaps I should simply adopt a more conciliatory tone here? These issues are pretty divisive. I had pretty strong view at the time that the budget debate was playing out and did not like then (or obviously now) the way one side was consistently vilified. Obviously, you think that the criticism was warranted. In the end the democrats got everything they wanted so perhaps i am a bit of a sore loser on that.

 

[Conager]

It's the Third Amendment that really gets my goat. We really need some litigation to flesh that one out.

I laughed. I racked my brain and could not pull up even a fuzzy remembrance of what the third amendment was. I will gladly quarter troops if the rest of the document will be followed. Hell, I'd probably quarter troops just for the company.

Do we still have a 4th amendment? My understanding is that the cops, the Republican Patriot act, and the courts have decided that is not an appropriate amendment for our modern times.

I actually read an article once where the author proposed that we could "be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures" when we lived in small communities where the evil doers were known, but the anonymity of a big city gives the government not just the right, but the duty to snoop.

And don't get me started on RICO and what that has done to turn our law enforcement into a profit center.

 

[CyranoJ]

Fine, one more.

I get it. Tea party bad. Democrat good.

More like "Democrat less bad, depending," but I give the Dems overall more points for rationality and responsibility than the Tea Party, absolutely. And I see no reason I shouldn't. I don't go in for this false-equivalency "balance" shizz that passes for intellectual depth in a lot of conservatives' minds, it's facile and obscures reality as often as not (and in fact is usually meant to do so).

Point to a single line in the ACA authored by a Republican staffer and I will concede you are right.

I really don't know if there is or not, but I don't see why there would be a single line in the ACA authored by a Republican staffer? Given that the Republicans were on the outside of the process by their own design given their a priori decision to kill any form of the ACA? Of course they renounced any real influence over what it contained when they did that, but like I just said, that's their problem. There was no mythic tyrannical attempt to exclude them and they have never been able to come together to offer any viable alternative; claiming otherwise is just out-and-out bull.

Now I really do have to go. Here's a positive thought, though, going back to earlier comments about Roberts: the GOP really has been handed an opportunity by SCOTUS to course-correct here. Settling the questions of ACA and gay marriage frees them up to nominate a candidate with something to say about more practical issues.

Of course, you have to be able to acknowledge that you need course-correction and have made mistakes first.

 

[Conager]

Fine, one more.



More like "Democrat less bad, depending," but I give the Dems overall more points for rationality and responsibility than the Tea Party, absolutely. And I see no reason I shouldn't. I don't go in for this false-equivalency "balance" shizz that passes for intellectual depth in a lot of conservatives' minds, it's facile and obscures reality as often as not (and in fact is usually meant to do so).



I really don't know if there is or not, but I don't see why there would be a single line in the ACA authored by a Republican staffer? Given that the Republicans were on the outside of the process by their own design given their a priori decision to kill any form of the ACA? Of course they renounced any real influence over what it contained when they did that, but like I just said, that's their problem. There was no mythic tyrannical attempt to exclude them and they have never been able to come together to offer any viable alternative; claiming otherwise is just out-and-out bull.

Now I really do have to go. Here's a positive thought, though, going back to earlier comments about Roberts: the GOP really has been handed an opportunity by SCOTUS to course-correct here. Settling the questions of ACA and gay marriage frees them up to nominate a candidate with something to say about more practical issues.

Of course, you have to be able to acknowledge that you need course-correction and have made mistakes first.

Ha... I was editing a note above when you must have had a similar thought. Enjoyed the exchange. despite it somewhat "angry-ing up my blood" (Simpson's reference.)

I agree that the Republicans do themselves no favors on those issues. I wouldn't count them out on shooting themselves in the foot on either or both of those issues.

 

[CyranoJ]

Huh, you should be on my cleared list for PMs. Weird. (EDIT: Oops, now you are, fixed. )

Not to worry, however heated I may sound I don't take these things personally. Enjoyed the exchange as well, cheers.

 

[BoyNextDoor]

But here is the fundamental point that people who make that argument keep missing. Even if one accepts your analysis of the framer's general intent, the text they wrote also is in harmony with a general "right" and use of firearms which the historical context of the times indicates the framers most certainly understood -- the right of individual self-defense and hunting for food.

The contention that a modern day militia no longer requires the possession of personal firearms does NOT create a legal premise for merely ignoring the Second Amendment in lieu of the Constitutional process of repeal -- even if you deny the framers' cognizance of the other "rights" I've suggested.

I agree with what you are saying and I do not think it is at odds with my position. A waiting period, gun registry, background checks, ending the "right" to sell a gun to a friend and not register the transaction, a state or municipality outlawing handguns in their jurisdiction, repealing open-carry, etc. does not diminish the right to bear arms.

 

[Colonel Hogan]

I agree with what you are saying and I do not think it is at odds with my position. A waiting period, gun registry, background checks, ending the "right" to sell a gun to a friend and not register the transaction, a state or municipality outlawing handguns in their jurisdiction, repealing open-carry, etc. does not diminish the right to bear arms.

Okay. So I guess we're trying to find where it is reasonable to draw the line of regulation while maintaining the spirit of the amendment. I'd say outlawing handguns within a municipal jurisdiction crosses the line. That's also what SCOTUS said.

The rest of your stipulations I could accept, although I believe it should be on a local jurisdiction basis. I do not believe the federal government has any right to outlaw open-carry nationwide.

 

[Ishmael]

I agree with what you are saying and I do not think it is at odds with my position. A waiting period, gun registry, background checks, ending the "right" to sell a gun to a friend and not register the transaction, a state or municipality outlawing handguns in their jurisdiction, repealing open-carry, etc. does not diminish the right to bear arms.

Okay. So I guess we're trying to find where it is reasonable to draw the line of regulation while maintaining the spirit of the amendment. I'd say outlawing handguns within a municipal jurisdiction crosses the line. That's also what SCOTUS said.

The rest of your stipulations I could accept, although I believe it should be on a local jurisdiction basis. I do not believe the federal government has any right to outlaw open-carry nationwide.

While we're at it let's register all those who attend church, which church they attend etc. I can make a case for vital state interest and security for that. And let's 'certify' all journalists. You know, government approved disseminators of the news. I can see how that would serve the public. (There was a bill that died in a Senate committee a few years ago that would have done just that. Got to shut those pesky Bloggers up ya know?)

Peaceably assemble? But of course, with background checks and permits.

None of the aforementioned should interfere with anyone's rights.

Ishmael

 

[BoyNextDoor]

When you need to go to all reductio ad absurdum I think it just means that the argument being made is sound. So if we agree that good public policy would be, as the Colonel said very aptly, trying to find where it is reasonable to draw the line of regulation while maintaining the spirit of the amendment, where would you draw it? Because current public policy without any of those regulation is not cutting it.

How about just this one change: Ending the "right" to sell a gun to a friend and not register the transaction. Because this is how the guns end up in the hands of criminals. You have the right to the weapon, but you have the responsibility of it as well.

How do guns purchasers/owners be made to be responsible for the guns they bring into society?

 

[Ishmael]

When you need to go to all reductio ad absurdum I think it just means that the argument being made is sound. So if we agree that good public policy would be, as the Colonel said very aptly, trying to find where it is reasonable to draw the line of regulation while maintaining the spirit of the amendment, where would you draw it? Because current public policy without any of those regulation is not cutting it.

How about just this one change: Ending the "right" to sell a gun to a friend and not register the transaction. Because this is how the guns end up in the hands of criminals. You have the right to the weapon, but you have the responsibility of it as well.

How do guns purchasers/owners be made to be responsible for the guns they bring into society?

Now that goes to the crux of the matter. The premise, perpetrated by you and others, that legal gun owners are NOT responsible. A premise that flies in the face of the facts. It is the irresponsible gun owner that is the rarity, and one that is covered by all manner of laws from civil liability to criminal negligence to first degree felony.

You continually try to put forth the premise that the Militia clause is somehow a bar to general arms ownership. It is NOT! The militia is the whole of the population. Once considered to be all able bodied men, the Suffrage amendment effectively added women to the list.

You also cleave to the notion that the Founders never envisioned unencumbered universal arms ownership by the citizenry, but I can provide you quote after quote going back to the Federalist Papers disabusing you, or anyone else, of that notion.

In other words we have traveled full circle to the presumption of quilt. That the unlawful can, and do, commit felonious acts is not an excuse to burden the lawful.

“False is the idea of utility that sacrifices a thousand real advantages for one imaginary or trifling inconvenience; that would take fire from men because it burns, and water because one may drown in it; that has no remedy for evils, except destruction. Laws that forbid the carrying of arms laws of such a nature. They disarm only those who are neither inclined nor determined to commit crimes.… Such laws make things worse for the assaulted and better for the assailants; they act rather to encourage than to prevent homicides, for an unarmed man may be attacked with greater confidence than an armed man.” – Thomas Jefferson - Quoting Cesare Beccaria, On Crimes and Punishment

Ishmael