Background checks - controversy

[Spats McGee]

Aren't we discussing the legal definition, though?

interstate commerce

n. commercial trade, business, movement of goods or money, or transportation from one state to another, regulated by the federal government according to powers spelled out in Article I of the Constitution. The federal government can also regulate commerce within a state when it may impact interstate movement of goods and services and may strike down state actions which are barriers to such movement under Chief Justice John Marshall's decision in Gibbons v. Ogden (1824). Theoretically commerce is regulated by the Interstate Commerce Commission (I.C.C.) under authority granted by the Interstate Commerce Act, first enacted by Congress in 1887. This authority has been diffused among various federal agencies, and the I.C.C. may soon be history.

http://dictionary.law.com/Default.aspx?selected=1008

[Brian Pfleuger]

We are.

But there's two points, what is and what should be.

[JimDandy]

what should be.

So what's your argument to make what should be what is?

[Brian Pfleuger]

Originally Posted by JimDandy

So what's your argument to make what should be what is?

We convince people. Easier said than done, unfortunately.

The SCOTUS upheld slavery and segregation at one time so just because they interpret it one way, doesn't make it right. The 14th, for example, they gutted intentionally and with malice.

People need to learn history and hermeneutics.

The start is simple. Ask yourself one question... "Were the writers of the constitution trying to be cryptic and confusing or were they educated men who knew what they meant to say and said it?"

Then, read it.

Read each piece, each sentence or paragraph and ask yourself, "What does it say?"

When the plain sense makes sense, seek no other sense.

That's the start.

[JimDandy]

That's how you convince the other guy at the bar. To convince SCOTUS to disturb a prior decision and contradict itself will take more than that.

[Brian Pfleuger]

It's not going to happen unless and until people who think like that get into SCOTUS.

[Spats McGee]

Originally Posted by Brian Pfleuger

It's not going to happen unless and until people who think like that get into SCOTUS.

Well, then Brian, we just have to get you elected POTUS, so that you can appoint me and Frank as Justices.

[johnwilliamson062]

Despite excellent marketing to the contrary, the US military is not volunteer. It is professional.
When signing the papers you agree to a term of service with AND in the fine print it says the government can extend this term unilaterally. Now, you could easily convince me that any private company getting an 18 year old who received straight Ds through four years of HS English to sign such a contract would lose handily in court on the grounds the contract is abusive, but that obviously isn't going to happen with the military. Of course, an E1 is in the 87th percentile of yearly income globally. Yes, I put my asbestos suit on before posting.

[Brian Pfleuger]

Well, then Brian, we just have to get you elected POTUS, so that you can appoint me and Frank as Justices.

It's a deal!

Seriously though, that's what it will take. "Originalists" getting into office, elected and appointed.

[Derius_T]

I have read through nearly all of the current pages of this thread. This subject, and the subject of rights in general interests me greatly, as I fought for them, and do not enjoy seeing them given away so freely for promises of compromise that either doesn't come, or isn't really compromise to begin with. As I have read this thread, and others it seems to me that there are two basic sides to this argument that keep popping up over and over.

One side feels that it is okay if a few "good" people are occasionally hindered, or restricted, or outright denied in some way, from exercising their Constitutional rights, as long as some "bad" people are stopped somewhere along the line.

The other side feels that it is never okay to hinder, restrict, or otherwise deny a Constitutional right from a person who is lawfully exercising that right, on the presumption that it "might" hinder a few bad guys along the way.

That about it?

Seems a very smart man once said: "Those who would give up essential liberty to purchase a little temporary safety deserve neither liberty nor safety."

And this by another: "Let the reins of government then be braced and held with a steady hand, and every violation of the constitution be reprehended. If defective, let it be amended, but not suffered to be trampled upon whilst it has an existence."

[JimDandy]

Well, then Brian, we just have to get you elected POTUS, so that you can appoint me and Frank as Justices.

Hey, I want in too! I'm a better choice than Feinstein.

One side feels that it is okay if a few "good" people are occasionally hindered, or restricted, or outright denied in some way, from exercising their Constitutional rights, as long as some "bad" people are stopped somewhere along the line.

I don't feel it's "okay", I feel it's inevitable given the fact that the system is designed and managed by human beings, subject to the foibles that define the human condition- and judge those hindrances in the spirit they happen in- and try to make the best of a bad situation.

[Derius_T]

So it's inevitable that some people's God given rights must be crushed or hampered in order that some perceived measure of safety for someone else might be achieved?

That's just an easy way of saying it's okay to trample the rights of some as long as you are doing good for some others.

I don't think it's inevitable at all. The only thing that is inevitable is that rights will continue to be stripped to the benefit of those in power, if good, honest men continue to allow it to happen.

There is no "making the best of a bad situation" when it comes to losing MY rights. (or anyone else's for that matter, that myself and many others shed blood for) That is simply not acceptable.

[MLeake]

Two very good posts, Derius T, thanks.

[JimDandy]

So it's inevitable that some people's God given rights must be crushed or hampered in order that some perceived measure of safety for someone else might be achieved?

That's just an easy way of saying it's okay to trample the rights of some as long as you are doing good for some others.

I don't think it's inevitable at all. The only thing that is inevitable is that rights will continue to be stripped to the benefit of those in power, if good, honest men continue to allow it to happen.

There is no "making the best of a bad situation" when it comes to losing MY rights. (or anyone else's for that matter, that myself and many others shed blood for) That is simply not acceptable.

Yeah, it's inevitable.

Eventually the LEO's will get bad information.

Eventually someone will transpose two digits on a search warrant, mix up
street, avenue, boulevard, etc.

Eventually while apprehending one criminal that's a danger for society, bystanders wlll be shot, by one side or the other.

Eventually, the deaf man walking down the street will be tackled, assaulted, and detained when he doesn't respond in any way to the challenge of the law enforcement officer- because he was literally deaf to those orders.

We can argue theory all day long. Eventually theory has to be applied to reality. People make mistakes. It's in the nature of people. Being forcibly detained because you couldn't hear the LEO over the music in your earbuds doesn't rise to anywhere NEAR the same level of "mens rea" as using a phone book in an interrogation room to beat a confession out of someone.

[Kochman]

This subject, and the subject of rights in general interests me greatly, as I fought for them, and do not enjoy seeing them given away so freely for promises of compromise that either doesn't come, or isn't really compromise to begin with.

Who exactly did you fight that was threatening the BoR in the USA?
Or, do you mean, you served in the military, in combat, for some President's most likely ill-advised and even questionably ethical war(s) like I did?

[zukiphile]

Originally Posted by JD

Yeah, it's inevitable.

I agree that infractions of civil liberties are inevitable. The question of how to handle them legally remains.

One answer is to legally sanction those violations, building exceptions into the law. This is the approach Alan Dershowitz takes to torture; he proposes that a state should obtain a warrant from a court for the use of torture.

Another answer is to be aware that states will infringe civil liberties, but not provide the cover of law for those infringements.

[JimDandy]

It's not going to happen unless and until people who think like that get into SCOTUS.

Even a strict constructionist will need a legal argument to disturb a prior ruling, out of respect for stare decisis. Though it does happen, with the best example I can find being Bowers v. Hardwick, 478 U.S. 186 (1986) and Lawrence v. Texas, 539 U.S. 558 (2003).

[Brian Pfleuger]

Even a strict constructionist will need a legal argument to disturb a prior ruling, out of respect for stare decisis.

A strict constructionist lawyer arguing before the court would be a "legal argument". A strict constructionist judge(s) just needs "I think that was wrong."

Even the lawyer, obviously, it's complicated but the base answer is "I've got an idea! How about words and phrases MEAN what they SAY!" That's a "legal" argument.

And in terms of rights "inevitably" getting trampled, it's one thing when it's a mistake, it's another thing entirely when it's a LAW.

[JimDandy]

Another answer is to be aware that states will infringe civil liberties, but not provide the cover of law for those infringements.

I'm somewhere left? of not providing the cover of law and way right? allowing a warrant to waterboard some poor guy. I meantioned mens rea earlier, because I think that's an important part of the decision on what to do about it. If there was no malice involved- i.e. searching 1313 Mockingbird Lane instead of 3131 Mockingbird Lane when the really DID want to search 3131 Mockingbird Lane, we shouldn't be looking at jail time or punitive damages- just compensatory, though compensatory could justify a lot more things. Is there a class of damages between the two?

[Spats McGee]

Originally Posted by JimDandy

. . . .I meantioned mens rea earlier, because I think that's an important part of the decision on what to do about it. If there was no malice involved- i.e. searching 1313 Mockingbird Lane instead of 3131 Mockingbird Lane when the really DID want to search 3131 Mockingbird Lane, we shouldn't be looking at jail time or punitive damages- just compensatory, though compensatory could justify a lot more things. Is there a class of damages between the two?

This is where you get off into qualified immunity, which is more than an immunity from damages. It's an immunity from the burdens of trial.

When government officials abuse their offices, “action[s] for damages may offer the only realistic avenue for vindication of constitutional guarantees.” Harlow v. Fitzgerald, 457 U.S., at 814, 102 S.Ct., at 2736. On the other hand, permitting damages suits against government officials can entail substantial social costs, including the risk that fear of personal monetary liability and harassing litigation will unduly inhibit officials in the discharge of their duties. Ibid. Our cases have accommodated these conflicting concerns by generally providing government officials performing discretionary functions with a qualified immunity, shielding them from civil damages liability as long as their actions could reasonably have been thought consistent with the rights they are alleged to have violated. See, e.g., Malley v. Briggs, 475 U.S. 335, 341, 106 S.Ct. 1092, 1096, 89 L.Ed.2d 271 (1986) (qualified immunity protects “all but the plainly incompetent or those who knowingly violate the law”); id., at 344–345, 106 S.Ct., at 1097–1098 (police officers applying for warrants are immune if a reasonable officer could have believed that there was probable cause to support the application); Mitchell v. Forsyth, 472 U.S. 511, 528, 105 S.Ct. 2806, 2816, 86 L.Ed.2d 411 (1985) (officials are immune unless “the law clearly proscribed the actions” they took); Davis v. Scherer, 468 U.S. 183, 191, 104 S.Ct. 3012, 3017, 82 L.Ed.2d 139 (1984); id., at 198, 104 S.Ct., at 3021 (BRENNAN, J., concurring in part and dissenting in part); Harlow v. Fitzgerald, supra, 457 U.S., at 819, 102 S.Ct., at 2738. Cf., e.g., Procunier v. Navarette, 434 U.S. 555, 562, 98 S.Ct. 855, 859, 55 L.Ed.2d 24 (1978). Somewhat more concretely, whether an official protected by qualified immunity may be held personally liable for an allegedly unlawful official action generally turns on the “objective legal reasonableness” of the action. Harlow, 457 U.S., at 819, 102 S.Ct., at 2739, assessed in light of the legal rules that were “clearly established” at the time it was taken, id., at 818, 102 S.Ct., at 2738)

Anderson v. Creighton, 483 U.S. 635, 638-39, 107 S. Ct. 3034, 3038, 97 L. Ed. 2d 523 (1987).

This is so because qualified immunity—which shields Government officials “from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights,” Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982)—is both a defense to liability and a limited “entitlement not to stand trial or face the other burdens of litigation.” Mitchell, supra, 472 U.S., at 526, 105 S.Ct. 2806. Provided it “turns on an issue of law,” id., at 530, 105 S.Ct. 2806, . . .

Ashcroft v. Iqbal, 556 U.S. 662, 672, 129 S. Ct. 1937, 1945-46, 173 L. Ed. 2d 868 (2009)

To put this into a somewhat more succinct package: if officers want to search 3131 Mockingbird, but their warrant says 1313 Mockingbird, then the owner of 1313 Mockingbird is probably out of luck.

Damages: there are basically two broad categories: compensatory (makes the Plaintiff "whole") and punitive (teaches a defendant "don't do that"). There are a few other things like special damages, liquidated damages, and the like, but I don't think that any of those are relevant to the issues at hand.

[JimDandy]

A strict constructionist lawyer arguing before the court would be a "legal argument". A strict constructionist judge(s) just needs "I think that was wrong."

Without a legal argument of why it's wrong beyond the dictionary you'll never have it get to SCOTUS for Certiorari. You're still going to have to come up with other precedents you can cite to present the facts of the case in a new light to get it reconsidered.

[JimDandy]

This is where you get off into qualified immunity, which is more than an immunity from damages. It's an immunity from the burdens of trial.

I'm not willing to go THAT far for the State. They've collectively employed more lawyers than Dewey, Cheetum, and Howe for centuries- which isn't as far a reason as judicial action is the only form of redress for an individual in many of these cases.

[Brian Pfleuger]

Clearly, it can't be just SCOTUS. It requires a change in the way that the law is understood. I'm not saying it's going to happen. In fact, I really have no hope. I can see where our society has been, where it is and where it's being led and I see no likelihood that it's going to be stopped or reversed. The United States of America, as it was intended to be and as it was, is gone and will never be back. That doesn't mean we don't fight to put it back but it does mean that I realize that the likely best case scenario is slowly the decent.

[Spats McGee]

Originally Posted by JimDandy

I'm not willing to go THAT far for the State. They've collectively employed more lawyers than Dewey, Cheetum, and Howe for centuries- which isn't as far a reason as judicial action is the only form of redress for an individual in many of these cases.

Go that far? You don't have to go that far. That's already law.

[JimDandy]

Go that far? You don't have to go that far. That's already law.

I was under the impression it was a hodge podge. Some aspects of government had qualified immunity, some didn't. Part of this is tickling the back of my brain over the Watergate scandal.. some of those guys weren't prosecuted because they had a reasonable belief what they were doing was lawful, or some such...