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, 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.
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. The fact that you [and in this rare case] I agree that Reno is a fascist sack of shit is completely irrelevent.
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. 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.
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 manufactured. In fact, IIRC, there is an early 1970's case where a felon was convicted under federal laws, even though the weapon he posessed was self-manufactured using components found completely within the state in which the manufacture took place. The ruling basically stated that since the manufacture of the weapon utilized federal notes, there was an interstate commerce nexus. Go look: there are *thousands* of these.
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?
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.
or certain safety guidelines (e.g. that every handgun be fitted with a safety device of some sort that keeps it from firing unless the trigger has been pulled).
Again, no. The market will not support a gun manufacturer that does not produce reliable weapons.
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.
Or how about certain laws of a very questionable nature that make it a crime for groups larger than <x> to gather without a permit. On it's face these are unconstitutional, but if the vast majority of police in a district *don't* enforce these laws, but one or two do (under the belief that the constitution only applies restrictions to the state and federal government, not the city governments (there are people who believe this, and absent the explicit incorporation by the 14th (which even by the appellate courts is applied non-uniformly so far) they may have a legitimate argument) then you have a case where you are just hanging out with some 5 or 10 of your closest buddies as you do every day, and the normal beat-cop, who doesn't enforce this law because it's unconstitutional doesn't say anything, but his fill-in on a sick day rousts you all and takes you to jail.
I don't know what world *you* live in, but you have just described the world the *rest* of us live in.
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. <remainder of abstract, albeit interesting crap snipped>
As for refusing to enforce laws which are personally believed to be unconstitutional, this goes on all the time, both officially [Sherriff Blah refuses to enforce law X - publicly], and unofficially Officer Y refuses to enforce law X - privately].
And for the reasons I've outlined in this post, and in my previous post, I believe both of these cases the individuals are acting improperly. In the first, the <sic> Sherriff does his constituency a disservice. If he believes the law unconstitutional he should use his office to arrange a challenge of that law, otherwise he only "protects" those under his jurisdiction while he's in office (of course, this could simply be a ploy to retain office as in every county I've lived in the Sheriff was elected.).
Nevertheless, *this* is how the world works.
As to the individual police officer, they have to do as their conscience and beliefs guide them. I find more often than not LEOs tend to fall on the side of enforcing laws of questionable constitutionality and tend to ignore laws they find "silly" or "annoying" rather than question their constitutionality.
Agreed.
How many weeks before middle schools reopen, anyway?
You and Reese good friends?
Touche' -- Yours, J.A. Terranson sysadmin@mfn.org If Governments really want us to behave like civilized human beings, they should give serious consideration towards setting a better example: Ruling by force, rather than consensus; the unrestrained application of unjust laws (which the victim-populations were never allowed input on in the first place); the State policy of justice only for the rich and elected; the intentional abuse and occassionally destruction of entire populations merely to distract an already apathetic and numb electorate... This type of demogoguery must surely wipe out the fascist United States as surely as it wiped out the fascist Union of Soviet Socialist Republics. The views expressed here are mine, and NOT those of my employers, associates, or others. Besides, if it *were* the opinion of all of those people, I doubt there would be a problem to bitch about in the first place... --------------------------------------------------------------------