At 7:39 AM -0500 7/24/01, measl@mfn.org wrote:
At the risk of going Choatien and stepping far beyond any degrees I may have, the position that each and every LEO in this country *should* (as opposed to does) decide for himself whether a law fits his understanding of the constitution before enforcing it is not only unworkable, but--if the LEO truly believes in the concepts of "Rule of Law", wrong headed.
Wrong headed or not, LEOs are manufactured out of human beings, and because of this, the spend a considerable amount of time in the Maggot Academy (tm) being taught the fine points of this very issue. In fact,
No, they don't. Spoke with an officer this evening about it. The cover (at least the academy he went to here in SillyCon valley) 4 amendment issues, and only from the practical standpoint, not the philosphical standpoint, and mostly was "scenario" based.
a great majority of an LEO's "education" time is spent instructing them on how to determine [decide] what is and is not constitutionally protected {speech, action}. If they did not use this "ability", they would have to arrest *everyone*, and let the courts sort out the mess.
No, they would have to arrest everyone they witnessed (or knew) committed an act that violated the law. Other than said 4th amendment issues, street cops *rarely* get involved in constitutional issues.
As a further disclaimer, let me say that I don't think "The Legal Community" agrees with me. They're agreement or not isn't a factor in my thinking. I already know (as Declan points out) that Reno doesn't agree with me, but from her actions it's quite clear she doesn't believe in the Rule Of Law--at least not in the sense I've been using it.
Actually, she is the perfect example: she interpreted the constitution her way. The "Rule of Law" has to be implemented at the individual [enforcer] level: therefore, each enforcer is putin the position of having to make and act on their [constitutional] opinions on a moment to moment basis.
Uh. No. From her *ACTIONS* she did not believe in the "Rule Of Law", but believed strongly in the long arm and mailed fist of the law. Witness her actions, and the actions of departments under her. The FBI was, in direct violation of the brady law, retaining the information about firearm purchases. Witness how quickly the Waco crime scene was bulldozed. Witness DOJ lawyers arguing in the Ruby Ridge case that Lon H. was not touchable by state law because he was a Fed acting under orders.
The fact that you [and in this rare case] I agree that Reno is a fascist sack of shit is completely irrelevent.
Well, it's nice to see we agree about something.
Now, in an ideal world the constitution would be clearly worded and the semantics would be clearly understood by the people who live under it. However, "It ain't like that". English is by no means an ISO (or even ANSI) standard, and even reasonable people can disagree on the complexity generated by the various articles and sections of the constitution and the amendments.
Look for example to the issue of the Second Amendment. The clearest plain word interpretation of that amendment is that the no one has the ability to infringe on the right of "the people" to keep and bear arms.
Fairly simple.
Does that then mean that just about every firearm law in the country is invalid on it's face? Yes.
No.
And if you are at all familiar with the history of 2A case law, you will understand why the SCOTUS has been so meticulous in avoiding a ruling. Of course, our friends [hrmmm... Never thought I'd say THAT] in Texas may well put an end to the charade soon.
Still waiting to hear about the Emerson case (and the 5th is in New Orleans IIRC).
Well, no. See, the same constitution also grants Congress the power to regulate interstate trade, so as long as they don't "infringe" on the right, they have a wide latitude to set standards etc. Or do they? What are the limits of that particular clause?
Virtually the entire 2A ablating federal infrastructure is based on a truly scary "finding" that *any* firearm is the product of Intertate Commerce, regardless if it has been out of the state in which it was
Well, no. Only about 1/2 of the ablating. The other half is Congresses power to tax. (At the federal level a good number of firearms cases are on charges of failing to file and or pay the class 2 or 3 weapons tax stamp).
Further more, what is *constitutionally* an infringement?
Als at the risk of going Choation, what part of "Shall not be infringed" don't you understand?
I understand "shall not", it's the "infringed" I'm asking about. Is it *really* an infringement on your rights to require firearms manufacturers to meet reasonable standards of functioning? In fact, given the basis of the second amendment--that arms are to be available for self-defense, defense of the community and defense of or from the Nation, it could easily be argued that government legislation standardizing a reasonable level of functionality and safety (minimum rounds between malfunctions, drop tests) are not only not infringements, but are enhancements--the guarantee (as much as legislation can) that the arm you buy at the Walmart store will be useful in it's constitutional indicated manner. I'm not arguing for such laws, IMO they aren't needed, but they still would mostly like *not* be considered an infringement.
Is it acceptable for Congress to set (legitimate) product reliability standards? (e.g. to require a pistol must be capable of firing <x> rounds between failures etc.)
No. This is a free market issue.
Whether the free market can provide this or not is orthagonal to the question.
Let's get even finer.
Do you *really* want your local beat cop to be making decisions on what does and doesn't fall into "protected speech" (or even whether there is a distinction there to be made?) See above: it is by definition unavoidable.
There are a lot of things that in a society are unavoidable. The question is whether those things should be encouraged or discouraged. My contention is that encouraging a LEO to decide for himself whether a law is constitutional or not is both wrong, and counter productive.
It's happened in Chicago, and worse (see below).
There are at least 3 states a law can be in vis-a-vis constitutionality:
(1) Adjudged unconstitutional. (2) Adjudged constitutional. (3) Not adjudged relative to it's constitutionality.
Irrelevent. We are not discussing abstract legal theory, we are discussing factual implementation.
Factual implementation, outside of dot-coms, should descend from theory.