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Old April 13, 2013, 11:05 AM   #40
Charles Mosteller
Junior Member
 
Join Date: April 13, 2013
Posts: 10
Quote:
Originally Posted by Spats McGee
The 1A doesn't say "Congress shall pass no law respecting the establishment of religion, except by popular vote." The BoR, in large part, protects the individual from mob rule.
Quote:
Originally Posted by zukiphile
Until and unless someone figures out how to clone Clarence Thomas eight times and get all eight clones nominated and confirmed, I do not see Second Amendment jurisprudence clarifying into "what part of "shall not be infringed" do you not understand?".
Quote:
Originally Posted by Come and take it.
Shall not be infringed is very important. Considering that Shall in any other place in the constitution is considered holy script.
I couldn't find a quote button (and it could be because I am newly registered here), so trying to quote specific comments is more tedious and time-consuming than is typical in online forums these days, but I wanted to inject a few words into one thing that several different individuals seem to be centering on - namely, on the word "shall," by virtue of its inclusion into the Second Amendment.

Before I do elaborate a bit, however, there's one more quote from this particular discussion thread that I want to quote, since I think that it makes a distinction that is worthy of always keeping in mind.

Quote:
Originally Posted by Frank Ettin
And if we want to further the RKBA in the real world we need to understand how things work in the world. We need to be able to effectively function in the political system. We also need to be able to effectively function in the legal system.
There is the political system, and there is the legal system. There is politics, and there is law. The distinction is an important one. It's relevance is omnipresent.

It was the title of this thread that caught my eye, last night, as I was casually browsing the Internet for first one thing and then another. The Perils of Scalia. It was a subject heading that I thought was amusing. So, I decided to check it out.

My curiosity was met by Glenn E. Meyer's concerns. Glenn was wondering aloud about whether the Heller decision by the United States Supreme Court was what he, in his own words, termed "a definitive game changer," and about whether Justice Scalia and company realize they cannot dance around what Glenn characterized as "the issue" this time.

Ah. . .The perils of Scalia.

My own view on it is that Justice Scalia likely chose his words carefully. He is well-versed in the art of framing a legal argument. With an eye toward something known as judicial restraint, he did not try to resolve every concern related to the right to keep and bear arms. Rather, there was a case before the Court, and he authored an opinion for the Court that addressed that particular case. Certainly, the Court's holding has ramifications that will continue to ripple into the future. But, and this is just me speaking with my opinion of one, I think that "The Pearls of Scalia" would be a more accurate way to describe Scalia's contributions in the Heller decision, or its aftermath, than "The Perils of Scalia."

Scalia hand-delivered the golden egg from the goose of judicial power. It might be wise to ponder anew how best to now obtain more golden eggs from this very same goose.

If the desire is to frame legal arguments more narrowly, and to figure out how to build a better Second Amendment mousetrap by weaving a more precise pattern with legal nuance, then what better place to start than with the word "shall" that appears in the wording of the Second Amendment.

In legal parlance, shall is what is known as a "word of command." If you juxtapose shall as a word of command with shall as discretionary in nature, the question begs to be asked, if the word shall is not indicative of a word of command, then what word is?

Laws are comprised of words. A fight over what a law means, then, ultimately boils down to a fight over words - and what they mean, but not just and only what they mean. How they apply, for instance. In which instances do they apply, or in which instances does a certain word apply. Also, the extent to which they apply, and the limits to which they extend. All this without even getting into the realm of legal principles, that also apply.

Framing shall as being indicative of a word of command is all fine and dandy, but while persuasive as a standalone item, it does not, of itself, comprise the whole cloth on larger issues. There is, after all, more to the Second Amendment than just the words "shall not."

The right to keep and bear arms, whatever else may be said about it, is either a right that is absolute in nature, or it is not. If you frame your legal arguments in support of, or based upon, the proposition that the right to keep and bear arms is an absolute right (or plural absolute rights, as in two of them - two absolute rights, if you prefer to distinguish the right to keep arms from the right to bear arms), then you will, I believe, run the peril (to borrow from Glenn) of doing the legal equivalent of what's known as "flailing against the wind."

If the world gives you lemons, then make lemonade, the old adage goes.

The "wind" to which I refer, above, is the judicial power. Attempting to frame the right to keep and bear arms as an absolute right is akin, not to climbing Mount Everest, but rather, to climbing Mons Olympus.

Rights as absolute in nature share something in common with government powers as being plenary in nature - they both prove to be problematic for something called "the concept of ordered liberty upon which our constitutional system was founded."

Not so much problematic for us, as individuals engaged in casual and informal discussions of such matters. Rather, problematic for the judicial power guided by judicial restraint, when it seeks to adjudicate complex issues put before it - complex issues with competing principles than animate each, respectively, and which clash with one another within the sphere of the judicial power. At least, that's a quick attempt at characterizing it off-the-cuff.

From my perspective, it's not just a matter of which individual lines of argument that you want to advance before the Court. The order in which you attempt to argue each of them can, I believe, have bearing upon how your entire presentation fairs.

That which you cede, you do not have to persuade the Court on. That may strike some as a rather counter-productive or counter-intuitive way to advance one's cause, but before you toss the baby out with the bathwater, one might be well served to more fully grasp how the art of ceding can be utilized to one's advantage. In a sword fight, it can be akin to something known as parrying. It can also be a path to crafting one's core argument in a more efficient manner, thereby yielding greater impact on narrow questions.

The independent judiciary has a natural predisposition to ruling narrowly. Judicial restraint is the judiciary's bread and butter. So, why exhaust one's self trying to feed the judiciary the legal equivalent of sand, when you already know what it likes to eat?

Rather than eat sand, what the judiciary is far more likely to do is to eat you alive - by rejecting legal arguments that are sloppy or which seek to accomplish something contrary to the concept of ordered liberty.

When you do cede in a line of argument, it is important to understand what it is that you are ceding, and where you do cede, you want to make certain that you cede narrowly, rather than broadly, and you want to do so in conjunction with a broader purpose.

To advance the right to keep and bear arms as an absolute right before the United States Supreme Court over two hundred years after the Constitution became supreme law of the land is a sizable challenge, to say the least. To cede that the right to keep and bear arms is not an absolute right is not the same thing as ceding that it is not a right that is fundamental in nature, or that it is not a right that is very broad in nature.

The Second Amendment has a lot of landscape, from a verbal or word perspective. If you want to seize the equivalent of the judicial high ground, it is not likely to be found in the swamps and morass of absolutism.

If you frame your lines of reasoning with shall being indicative of a word of command, while saddling it with the notion that the right to keep and bear arms is a right that is absolute in nature, you damage the first part of your argument more than you strengthen the second part of your argument.

In any nation, a body of law on a given subject is something that transpires with the passage of time. It is said that patience is a virtue.

It is understandable that what the Heller and McDonald cases did not say give many a case of apprehension. But, that is one of the prices to be paid for judicial restraint.

Make no mistake about it - Heller was a seminal event. It was the origin of a legal tsunami. Its effect and impact will become only greater with the passage of time. While it may not be equivalent to a total solution, no case would be.

Scalia was no fool. He knew exactly what he was saying in the opinion that he authored. He knew what he was saying, and he knew how to say it, to achieve maximum possible effect. He made no effort to try and resolve all outstanding questions pertaining to the right to keep and bear arms. That would be both premature and over-reaching, from a judicial perspective.

Justice Scalia knows full well how to kill the legal equivalent of a vampire. But a single stake through the heart would be a quick and tidy way to slay the beast, of course. Yet, that's just not the way that things are properly done.

Even if life were truly that simple, then you're still going to need more than one stake (one case), if for no other reason than because there's more than one vampire to kill.

Scalia also knows that there's more than one way to slay a vampire, just as there's more than one way to skin the proverbial cat.

Heller wasn't the end of gun control vampirism. Scalia did demonstrate, however, that it is more than possible to slay this kind of legal vermin.

If you want to kill all of the vampires (gun control laws), then they have to be hunted down, one by one. Scalia only kills them, if you bring them to him.

My apologies for the intrusion, and I hope that you will all continue on with your discussion.

Take care.

Last edited by Charles Mosteller; April 14, 2013 at 12:09 AM. Reason: To correct typos.
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