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Old April 17, 2013, 12:32 PM   #301
csmsss
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Unfortunately, we have John Marshall to blame for all of this. In writing McCulloch v. Maryland, Marshall pumped a previously unheard of elasticity into the Constitution, which has confounded us to this day.

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Old April 17, 2013, 12:32 PM   #302
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Kochman, your argument is really not that different from the old, "If you are going to be raped, you may as well lie back and enjoy it."

Just because things have happened, that does not mean we have to like it, nor does that mean we have to just let it keep happening or refrain from trying to reverse the trend.
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Old April 17, 2013, 12:33 PM   #303
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It doesn't really help to argue about it, as it is so deeply ingrained in our culture, society... the way you are reading it only amendments would make law changes possible... but you're reading it too strictly, or else the US Marshals Service, etc wouldn't exist... because not specifically called for...
Courts must have officers. Ergo if we have federal courts, we must have federal officers. As Congress may constitute courts inferior to the Supreme Court, it must follow those courts have officers.
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Old April 17, 2013, 12:34 PM   #304
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A wise man said, "pick your battles"...
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Old April 17, 2013, 12:47 PM   #305
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A wise man said, "pick your battles"...
Which would be relevant if and only if this was a battle gun rights supporters picked. It isn't. It came to us. The choice isn't over which battle. The choice here is whether you wish to fight the battle that has been thrust upon you or to surrender meekly and hope for the best.
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Old April 17, 2013, 12:47 PM   #306
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Kochman,

It's a logical progression.

There are only two possible outcomes.

1)The powers of the government are not limited by the COTUS. Therefore, they change and evolve with time. Therefore, they are, for all intents and purposes, unlimited. Therefore, the COTUS is pointless as it sets no limits. Why bother spelling out a bunch of powers and limits that don't actual set any powers or limits?

2)The government is limited by the powers enumerated in the COTUS. End.

All you really need do is read the document and take it for what it says. Don't add meaning, don't bring tortured interpretations that make it mean what you hope it means.

Read it.

It says things like, "The Congress shall have Power To..."

and it goes into a big, long list.

If Congress can do whatever they want to do, what is the purpose of this list?

They must be limited by the enumerated powers or they have no limit. There is no in-between.

You're absolutely right, by the way, that the reality on the ground is no where close to what I describe (and the Founders described) as what the United States is supposed to be.

BUT, we are multi-taskers. We can be aware of the current situation, work within the current system and still have a goal to return the system to it's intended state.

We do not accept that because it is the way it is, we must "live with it" and "get real". The goal is always to restore proper constitutional authority and conditions.
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Old April 17, 2013, 12:49 PM   #307
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There is a third choice Brian. That the scope of that list changes over time as various attempts to restrict and push the boundaries of what is "legal" occur over time, and the powers of the federal and state governments fluctuate over time. Theoretically in a delayed synch with the ebb and flow of which political party is in power at the time.
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Old April 17, 2013, 01:01 PM   #308
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But that's really no limit, Jim. It's just not "unlimited" at any given moment in time. There might be limits at the moment, but there are no limits for what might be tomorrow. Ultimately, there are no limits under that scenario.
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Old April 17, 2013, 01:05 PM   #309
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If allowed to run unchecked yes. But we have, historically, been at least decent at reining ourselves in. It may take a while, but we do eventually get it right.
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Old April 17, 2013, 01:10 PM   #310
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If allowed to run unchecked yes. But we have, historically, been at least decent at reining ourselves in. It may take a while, but we do eventually get it right.
Can you please provide some illuminating examples of where we "reined ourselves in" ?
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Old April 17, 2013, 01:11 PM   #311
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Yet what both you and Kochman suggest, instead of a reining in, is to allow more momentum to be built toward federal expansion.
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Old April 17, 2013, 01:33 PM   #312
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Quote:
Originally Posted by Kochman
What boggles my mind is that some people act as though if it isn't explicitly in the COTUS, it's not ok.
Some things are implied/understood... the basis of law, through history, is pretty much to encourage the proper behavior or discourage improper behavior... that's why laws exist.

The COTUS is not a stand alone document.
Hell, to get passed, it had to have an explicit set of amendments right off the bat!
Perhaps I should prepare a Primer on Constitutional History. (I did mention that my side job is teaching ConLaw, didn't I?)

At the top of the L&CR forum, there's Spats McGee’s Federal Constitutional Primer. Take a look, why don't you? I get the impression you have not done so. Let's go back to that Preamble you wanted to talk about. There was actually a big debate at the Constitutional Convention over how the Con should start. Obviously, the winning phrase was:
Quote:
We the People of the United States, . . . .
The other phrase that was in question was "We the States," but it was decided that the power of governance was to come from The People, not from The States. Conceptually, that could have accounted for a huge change in how our laws are interpreted.

Anyway, the Articles of the Constitution are specific grants of power. They tell us exactly what powers the federal government has. It was intended to be a government of limited power, just as the federal courts are courts of limited jurisdiction. (State courts are considered courts of general jurisdiction.)

The Articles define exactly what powers are granted to the federal government, with certain powers reserved to the States or the People. The Bill of Rights, however, are limitations on power. Note how the Articles say "X shall have the power of," while the Amendments speak in terms of "gov't shall not encroach on Y." So powers that are "just understood," could also be called "imaginary" or "unfounded."

Now, on to this:
Quote:
Originally Posted by Kochman
I don't see expanding background checks as a "giving them more power" situation, really. I see it as a power they already have, and a justifiable power at that... so, I support it, but I support it being done effectively.
As noted, you're free to use the NICS system. Head on down to an FFL and do it. That's not what you have proposed, though. You have proposed putting in place a law imposing sanctions for failure to use that system.

Whether the federal government is lawfully empowered to mandate that is an entirely separate question. However, it being "for the common good," is not enough to support that claim. Further, it's really not clear that such a law is intended for the common good, nor that it would further it.

Quote:
Originally Posted by Kochman
And, again, it's not an "unjust" burden to do one... if that's your argument guys, you're going to lose in any court of law in the country. It won't even get lose to the SC.
That's a matter of opinion. You are, of course, welcome to that opinion, but it is not one I share.

Quote:
Originally Posted by Kochman
So, do you want free, immediate concealed carry?
What is a reasonable burden for this?
I feel like I'm dealing with a salesman: What's your budget?
Nothing, nada, zero, zip, zilch. I don't think citizens should have to pay to exercise rights guaranteed to them by the Bill of Rights.

Quote:
Originally Posted by Kochman
Specifically enumerated restrictions, rights, etc doesn't limit the gov to only those... especially since the world changes over the centuries, new inventions, etc.
"Some have made the argument, bordering on the frivolous, that only those arms in existence in the 18th century are protected by the Second Amendment. We do not interpret constitutional rights that way. Just as the First Amendment protects modern forms of communications, e.g., Reno v. American Civil Liberties Union, 521 U.S. 844, 849, 117 S.Ct. 2329, 138 L.Ed.2d 874 (1997), and the Fourth Amendment applies to modern forms of search, e.g., Kyllo v. United States, 533 U.S. 27, 35–36, 121 S.Ct. 2038, 150 L.Ed.2d 94 (2001), the Second Amendment extends, prima facie, to all instruments that constitute bearable arms, even those that were not in existence at the time of the founding." Dist. of Columbia v. Heller, 554 U.S. 570, 582, 128 S. Ct. 2783, 2791-92, 171 L. Ed. 2d 637 (2008)
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Old April 17, 2013, 01:41 PM   #313
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Quote:
Originally Posted by Kochman
A wise man said, "pick your battles"...
It's not clear to me how one makes the case that this particular battle is unwise. The Schumer background check bill has gone down in flames, and the Toomey-Manchin amendment seems quite likely to fail as well. CNN's most recent report on the status of that amendment says:
A CNN tally of senators indicated the measure was probably in trouble unless several undecided Democrats and Republicans -- mostly from conservative states -- ended up supporting it.
It seems reasonable to infer that these undecided Senators (and those, like Sen. Ayotte (R-NH), who are now coming out against it), are influenced by what their constituents are telling them; most of us have been quite diligent in this regard.

This is looking more and more like a battle we can win. It seems perverse to suggest that to do so would be unwise, unless you yourself are committed to the proposition that universal background checks are a good idea.
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Old April 17, 2013, 01:45 PM   #314
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Can you please provide some illuminating examples of where we "reined ourselves in" ?
KONIGSBERG v. STATE BAR, 366 U.S. 36 (1961)

BRANDENBURG v. OHIO, 395 U.S. 444 (1969)
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Old April 17, 2013, 01:46 PM   #315
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One thing we should all keep in the backs of our minds - assuming this bill fails (which certainly appears likely), we can expect to see the failure used to justify some outrageous gun-control end-runs implemented (or attempted to be implemented) administratively.
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Old April 17, 2013, 01:50 PM   #316
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Yet what both you and Kochman suggest, instead of a reining in, is to allow more momentum to be built toward federal expansion.
I don't know what he's suggesting. But I believe what I'm suggesting is narrowly tailored enough to pass muster. All transfers of title via private sale- retail or second hand- go through the NICS background check process at something approximating the cost of the check. Giving the State an opportunity to prove you ineligible is slightly but importantly different than proving your eligibility.
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Old April 17, 2013, 01:56 PM   #317
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So...you're citing cases that are over forty years old as evidence that we are "reining things in" ? Seriously?
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Old April 17, 2013, 01:59 PM   #318
Spats McGee
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Quote:
Originally Posted by csmsss
Quote:
Originally Posted by Kochman
A wise man said, "pick your battles"...
Which would be relevant if and only if this was a battle gun rights supporters picked. It isn't. It came to us. The choice isn't over which battle. The choice here is whether you wish to fight the battle that has been thrust upon you or to surrender meekly and hope for the best.
I have to wholeheartedly agree with csmsss on this particular point. Gun owners didn't pick this battle, because we weren't given that chance. It was brought to our doorstep.
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Old April 17, 2013, 02:01 PM   #319
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You asked for examples of times we've done so. To furnish that information, I picked another highly controversial time, and the controversial amendment/issue of the day. In this case the first amendment, and protections of association and speech mostly as regards the Red Scare. Those cases cited are examples of when we pulled the infringing of the first amendment back. i.e. from the Clear and Present Danger test in Schenck v United States, to the Bad Tendency to finally, in Brandenburg, the imminent lawless acts test.
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Old April 17, 2013, 02:06 PM   #320
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You asked for examples of times we've done so. To furnish that information, I picked another highly controversial time, and the controversial amendment/issue of the day. In this case the first amendment, and protections of association and speech mostly as regards the Red Scare. Those cases cited are examples of when we pulled the infringing of the first amendment back. i.e. from the Clear and Present Danger test in Schenck v United States, to the Bad Tendency to finally, in Brandenburg, the imminent lawless acts test.
They are, as well, unrelated to firearms or gun control laws. Perhaps I should have been more specific - please illuminate me where infringing gun control laws have been "reigned in" - and the expiration of the 94 AWB doesn't count.
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Old April 17, 2013, 02:16 PM   #321
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I find the idea that the power of the federal government has been "reigned in" to be amusing, at best.

A single incident or two where power was regained by the people hardly counts as "reigning in".

I see a barn with the doors wide open and 49 of 50 horse stalls are empty, the sounds of hooves retreating in the distance still audible, with one stable boy standing with his arms outstretched, keeping the 50th horse in it's stall while yelling over his shoulder "Don' worry boss! I've got 'em reigned in!"

The power of the federal government has been anything and everything BUT reigned in. It has grown endlessly and incessantly, with nothing more than the tiniest blip to slow it along the way.
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Old April 17, 2013, 02:16 PM   #322
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Pick your battles wasn't in reference to this bill...

It was in reference to those wanting the COTUS to be read at the strictest, and as a stand alone document, with nothing but Amendments allowed at the federal level.
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Old April 17, 2013, 02:22 PM   #323
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Pick your battles wasn't in reference to this bill...

It was in reference to those wanting the COTUS to be read at the strictest, and as a stand alone document, with nothing but Amendments allowed at the federal level.
I find that curious, because that what you describe above isn't "a" battle. It's a series of campaigns composed of a series of battles. No one has suggested that such a goal could be accomplished in this fight.

As I see it, we're just trying to hold our ground where and how possible.
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Old April 17, 2013, 02:27 PM   #324
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A single incident or two where power was regained by the people hardly counts as "reigning in".
Had the power of the federal government, as held in say.. Schenk not been reigned in- the Dixie Chicks, Cindy Sheehan, the Diplomats and Military Commanders for Change, then Senator and Presidential Candidate John Kerry, and countless others could/would have been convicted of violating the Espionage Act of 1917.
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Old April 17, 2013, 02:32 PM   #325
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And yet, Kochman, the bar is supposed to be very high for the feds to be able to introduce new federal powers, including expansions of existing ones.

We should fight toward a goal of bringing federal government back in line with what the Constitution intended it to be. This was such a losing cause that it resulted in the election and reelection of Ronald Reagan...

Pendulums swing, of course, but that doesn't make it a bad idea to try to damp the amplitude, nor to try to push back.

What you suggest with regard to this bill, specifically, is to voluntarily cede more power to the feds, when they have already grabbed too much power; what you suggest is to voluntarily accept more restrictions against individual liberties and property rights - and in this specific case, those restrictions run counter to Constitutional protections. You suggest we should think this is the only reasonable and responsible option.

JimDandy, you say there is no harm in the bill, since the 4473 system exists anyway, and it just gives the State a chance to act on prior due process. Except that we have already established that a significant percentage of holds get overturned, eventually, so they are either no longer valid or they were never valid in the first place.

I ask what benefit comes from the bill? If you say that it could save lives, I counter that allowing the feds to grow, unfettered, can ultimately result in more loss of life; I would further argue that if avoidance of any casualties were the highest virtue, we might as well disband the military. Cold as it may sound, some things are more important than X number of shooting victims; preventing the government Leviathan from expanding beyond all control is one of those things I think is more important.

But that is beside the point, because you haven't made the case that all those stopped sales actually prevented any murders. You infer that they must have; yet you disregard the other potential inference, which is that systemic stops and delays may have resulted in fatal harms to victims of stalkers and domestic violence.

In other words, you can't prove that there have actually been lives saved; all you can prove is that there have been transactions stopped. And so far, neither of you have actually established what number of those transactions stopped should have been considered valid, nor what number were no longer valid, nor what number were never valid.

I'm not sure how you can argue minimal harms, when you fail to quantify the harms.
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