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Old March 24, 2013, 09:32 PM   #26
fragtagninja
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The questions you are asking Come and Take it get into some extremely sticky legal terms. By the Constitution all state laws are subject to federal law. Thus when a state law is in conflict with a federal law the fed over rules the state. However the Constitution is supposed to be the supreme federal law of this country. Therefore a law that is passed by a state that is in agreement with the Constitution should be the winner if a federal law that is not in agreement with our founding document comes into dispute with that state regulation.

The problem here is that not everyone agrees about what is in conflict with the constitution and we have no road map as to how to interpret this document. It is in the hands of the Supreme Court to do so and there is nothing binding them to reading it a certain way or even basing their rulings on the document. What they say it means is what it means legally. Regardless of what a passage of any part of the Constitution obviously says it is still subject to the Courts rulings on the matter.



And of course when you are talking about legal matters there is never such a thing as cut and dried. It is always a murky swamp with loopholes to exploit.

If you really want a best answer to these questions a lawyer who specializes in such matters would be the best resource as no one else is truly able to speak on such matters with any authority due to the fact that we cannot truly understand the ins and outs of it all. Great questions by the way.
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Old March 25, 2013, 09:55 AM   #27
Boomer58cal
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That is not my opinion. It is theirs. Read their writings. The founders wrote about their beliefs at great length and in great detail. You should also look up the word "Infringed". There's not much to debate. The government cannot restrict our right to keep and bear arms in any way. As a matter of fact the founders thought everyone able to carry a firearm should do so at all times. That's the militia part. Read the federalist papers.

Thanks to them we also get to have an opinion. Yours is always welcome.Boomer
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Old March 25, 2013, 10:13 AM   #28
Frank Ettin
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Originally Posted by Boomer58cal
That is not my opinion. It is theirs. Read their writings. The founders wrote about their beliefs at great length and in great detail. ....
Sorry, but that's not how things are in the real world. If you want to begin to understand how the law and the Constitution work in the real world, I suggest that you can start with Spats McGee’s Federal Constitutional Primer. You might also want to spend some time looking over Al Norris' thread keeping track of current RKBA litigation.
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Old March 25, 2013, 11:14 AM   #29
Boomer58cal
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"On every question of the constitution let us carry ourselves back to the time when the constitution was adopted, recollect the spirit manifested in the debates, and instead of trying what meaning can be squeezed out of the text, or invented against it, conform to the probable one which was passed." Thomas Jefferson

"The language of the constitution cannot be interpreted safety except by reference to the common law and to the British institutions as they were when the instrument was framed and adopted." Chief Justice Taft.

Today despite this clear evidence, gun control proponents attempt to "squeeze" the text of the second amendment. The second amendment is not negotiable.

Boomer
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Old March 25, 2013, 11:27 AM   #30
fragtagninja
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If I might interject Mr Ettin and Mr Boomer. You are both right. Boomer the founding fathers were very clear about their intentions with the bill of rights, and such. However Frank Ettin you are correct the courts have the right to make rulings on what those documents mean.

Therefore you are both right.
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Old March 25, 2013, 11:56 AM   #31
Boomer58cal
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It is the people's job to judge whether the courts are ruling justly. That's the reason for the second amendment. To protect ourselves from a corrupt government. The second amendment is the teeth of our right. The second amendment is absolute. That is it's point. "Infringed." It's not just our right but our duty to protest unjust rulings.

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Old March 25, 2013, 12:25 PM   #32
zukiphile
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Quote:
Originally Posted by Boomer58cal
It is the people's job to judge whether the courts are ruling justly. That's the reason for the second amendment. To protect ourselves from a corrupt government. The second amendment is the teeth of our right. The second amendment is absolute. That is it's point. "Infringed." It's not just our right but our duty to protest unjust rulings.
Toward what end? I do not ask that flippantly, but wonder what advance you see being made (other than being put on some kind of watch list) by "protesting" the NFA for instance?

Stepping away from utility and examining the theory of government, if "the people" are at liberty to "overrule" a court, is there any real judicial authority?

If "the people" are free to overrule judicial authority, is Congress free to overrule the decision in Heller?

Quote:
Originally Posted by Horatioo
The Supreme Court lies about what the constitution says. Look at the commerce clause, take out interstate, and the supreme court would read it the exact same way.
I dislike use of the word "lie". It suggests a motive and a malevolence that are relatively uncommon, and puts an end to any sort of civil and constructive interaction.

A great way to undermine a viable analysis is to overstate it. Your statements above overreaches in two specific ways. First, you use the word "lie"to describe an activity that is other than a clear deception involving a simple misstatement. Commerce clause jurisprudence is not the same as "You look great. Have you been working out?" Or "I did not have sexual relations with that woman, Ms. Lewinsky". Second, while it is likely that you and I do not concur with the current state of commerce clause jurisprudence, in fact, the Supreme Court does not get there by ignoring the interstate component.

The problem with the current state of commerce clause jurisprudence came with the decision in Wickard, and the development of a doctrine by which the Supreme Court would refuse to strike laws that did not regulate interstate commerce only, but extended to matters that could arguably influence interstate commerce remotely. That kind of interpretation is that it has the effect (as opposed to the rationale) of changing the meaning of the words "interstate commerce" to "interstate commerce and not interstate commerce".

That is not a lie in any simple sense, but it does change the effective meaning of the words in the Constitution. The problem there is that once one usurps the authority to change the meaning of the words used in laws, he destroys their character as laws..

Arguably that kind of reinterpretation is more damaging than a single, simple and discreet "lie".

Last edited by zukiphile; March 25, 2013 at 12:32 PM.
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Old March 25, 2013, 12:27 PM   #33
Frank Ettin
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Quote:
Originally Posted by Boomer58cal
It is the people's job to judge whether the courts are ruling justly. That's the reason for the second amendment. To protect ourselves from a corrupt government. The second amendment is the teeth of our right. The second amendment is absolute. That is it's point. "Infringed." It's not just our right but our duty to protest unjust rulings....
So you apparently believe that the courts are ruling unjustly (and perhaps with the Founding Fathers for assigning to the federal courts the job of exercising the judicial power of the United States to decide cases arising under the Constitution).

So what's your plan for fixing that?
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Old March 25, 2013, 12:46 PM   #34
Boomer58cal
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Any ruling that infringes our rights to keep and bare arms is unjustified. If the courts, congress, or the president do not heed our peaceful protests we are duty bound to protest with force. The founders said so enthusiastically and unanimously.
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Old March 25, 2013, 12:52 PM   #35
zukiphile
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Quote:
Any ruling that infringes our rights to keep and bare arms is unjustified. If the courts, congress, or the president do not heed our peaceful protests we are duty bound to protest with force. The founders said so enthusiastically and unanimously.
We do not ordinarily consider people bound to a duty to engage in a futile act. If you would like to provide times and places you will be acting with force, that may contribute to a general sense of entertainment.

At the risk of repeating myself, what purpose will be served by these acts of force in which you are duty bound to engage?
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Old March 25, 2013, 01:00 PM   #36
Frank Ettin
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Originally Posted by Boomer58cal
Any ruling that infringes our rights to keep and bare arms is unjustified. If the courts, congress, or the president do not heed our peaceful protests we are duty bound to protest with force....
So you are proposing that if things don't go the way you think they should we should have a civil war?
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Old March 25, 2013, 01:04 PM   #37
Boomer58cal
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My only plans are peaceful but if the people of our great nation stand together they constitute the single largest armed force in the history of mankind. Greater in number than all the armies of all the nation's on earth. In my opinion you futile is going the wrong way. That was in fact the spirit of the second amendment.
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Old March 25, 2013, 01:17 PM   #38
dajowi
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American law operates under the doctrine of stare decisis, which means that prior decisions should be maintained -- even if the current court would otherwise rule differently. This however is not sacrosanct. The U.S. Supreme Court has overruled prior Supreme Court rulings many times:

Chisholm v. Georgia
Adler v. Board of Education
Pace v. Alabama
Wolf v. Colorado
Dred Scott v. Sandford

And on, and on.

Don't believe for an instant that the courts decision in District of Columbia v. Heller can't or won't be overruled by a future supreme court seeded with Obama appointees.
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Old March 25, 2013, 01:33 PM   #39
Frank Ettin
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Originally Posted by Boomer58cal
My only plans are peaceful...
Then I might suggest that you will want to work a bit harder to understand how the legal and political system actually work. I understand your opinions, and no doubt those opinions guide you in your political activities. But --
  1. The meaning an application of the Constitution are still matters for the federal courts.

  2. Most of the time people object to the way the system is working it seems to be primarily because they aren't getting what they want. But we live in a pluralistic Republic, and not everyone agrees that things ought to be the way you want them to be.

    1. Whenever a court makes a major decision that one disagrees with, the judicial system is broken and the judges corrupt. Whenever a court makes a major decision that one agrees with, the judges are great scholars (except any dissenters, who are corrupt), and our courts are the last bulwark against the machination of the political toadies bought and paid for by special interests.

    2. There has been, and probably always will be, a huge negative reaction by a large number of people to every important to the pubic Supreme Court decision. There are plenty of folks who loved Roe v. Wade and hated Heller, and perhaps as many who hated Roe v. Wade and loved Heller.

    3. Most of the time when folks call a decision of a court a bad decision, it isn't really because it didn't comport with the law and precedent. Most people tend to think a court decision is a bad decision because it did not achieve the result they wanted.

  3. And sometimes when the law as applied by a court doesn't achieve a satisfactory result, a legislature can change the law -- checks and balances at work.

    1. Recently there was the case of Kelo v. City of New London, 545 U.S. 469 (2005). It was a ruling on a technical point of eminent domain law (specifically involving the "takings" clause of the Fifth Amendment applied to the States through the 14th Amendment and the meaning of "public use"). The result was found to be unsatisfactory by many. As a consequence, the legislatures of 42 States revised those States' eminent domain laws to avoid a Kelo result.

  4. The Founding Fathers left us an amazing legacy -- The Constitution of the United States of America. And from the Constitution, we can infer that they intended us to have, among other things:

    1. A system of checks and balances achieved through a separation of powers among the Congress (legislative), the President (executive) and the Courts (judicial);

    2. Of these three branches of government, the legislative was most directly subject to the influence of the body politic, and the judicial was the least subject to the direct influence of the body politic;

    3. Judicial power vested in a Supreme Court and such inferior courts as Congress might establish, and this judicial power would extend to all cases arising under, among other things, the Constitution and the laws of the United States;

    4. A Constitution that could be changed, albeit with difficulty.

  5. Do I think that Congress has always enacted wise laws, and that decisions of the courts have always been wise and just, and that our public policy is always wise? Of course I don't. I personally favor more freedom and less government (both federal and state) intrusion. But does everyone who has a voice in how things work and who gets elected to office agree with me? Of course not? Our Founders also left us a system that allows us to try to hash out those differences.

  6. But the reality is that nobody is going to be completely happy all the time about the way things are.
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Old March 25, 2013, 02:08 PM   #40
Come and take it.
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This is the issue. If a case came up claiming that the supreme court may be able to override all other rulings we would read the constitution.

Quote:
Section 1. The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish....

Section 2. The Judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution,...
So if the people means individual than Shall must be defined just like it is in the quoted text. Or else the judicial power of the Supreme court can be limited in its power over lower courts.

If and individual has the right to own a gun than the right cannot be infringed or else every other mention using the word shall must be brought into question.
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Old March 25, 2013, 07:59 PM   #41
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I don't claim to know every little "loop hole". My previous quote about "squeezing" the text applies to most loop holes. I understand how our government was designed to work, but that's not how it works today in my opinion. Our government has become dysfunctional. We are told we need to compromise. Today compromises means how many of our rights are we willing to give up. I believe we should compromise by taking ten or twenty thousand gun laws off the books that don't meet constitutional muster.

About the civil war comment. If that were to happen today in the world's present economic state that would probably be the worst event in human history. The other side of our world is a powder keg. If the US fell into civil war Europe would probably collapse into civil unrest. The blow to the world's economy would be catastrophic. Without nato Israel's would likely be attacked by it's surrounding countries. As war spread east you now have world war three. I surely don't relish even part of that happening.


Boomer
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Old March 25, 2013, 10:54 PM   #42
Frank Ettin
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Quote:
Originally Posted by Boomer58cal
...I understand how our government was designed to work,...
Really? And what about all the folks who also claim to understand how the government was designed to work, but whose understanding isn't the same as yours?

Quote:
Originally Posted by Boomer58cal
...Without nato Israel's would likely be attacked by it's surrounding countries....
Really? But Israel isn't a member of NATO.
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Old March 26, 2013, 01:45 AM   #43
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Nullification of gun laws

Quote:
Originally Posted by Boomer58cal View Post
About the civil war comment. If that were to happen today in the world's present economic state that would probably be the worst event in human history. The other side of our world is a powder keg. If the US fell into civil war Europe would probably collapse into civil unrest. The blow to the world's economy would be catastrophic. Without nato Israel's would likely be attacked by it's surrounding countries. As war spread east you now have world war three. I surely don't relish even part of that happening.
Then you agree that the soap box, the ballot box, and the jury box are more likely avenues of change than the cartridge box?

Of these you'll find that the soap box is far superior as a change agent than the others. But you must be consistent and clear in the message, and don't bother preaching to the choir. Be consummately professional and impeccably prepared facing the lions. There's no one here to convert. And ranting like some of the flamboyant faces does no good either.
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Old March 26, 2013, 12:00 PM   #44
Boomer58cal
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The cartridge box is always the last option.

I never said Israel was a nato member. We are. If the US and Europe fall into anarchy there is no nato. Nato countries are the only ones that would ever come to Israel's add. If I'm preaching to the choir I'll stop.

"Remember not only to say the right thing in the right place, but far more difficult still, to leave unsaid the wrong thing at a the tempting moment."
Benjamin Franklin

Good day grents. Remember freedom cannot be given. Freedom must be taken.
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