Re: Oregon's proposed new class of terrorists
On Wednesday, May 21, 2003, at 04:03 PM, Trei, Peter wrote:
The feeling I get is that Oregon combines the worst of California and the 'classic Western' states.
California has a highly intrusive, interventionist government, but this is leavened by the liberalism of many of the positions it holds. Thus, while California is really bad for some individual rights (such as the RKBA), it's fairly libertine on others (such as lifestyles).
In the 'classic Western' states (I'm thinking of Wyoming, Montana, Nevada, Idaho, etc, and I don't claim to be really well informed on this), while the general population holds pretty rightwing views, this is leavened by a strain of semi-libertarianism in the government, in the 'don't intevene' sense.
Oregon seems to combine the worst of both, along with none of the good points - a highly intrusive California style government, with very rightwing views.
My recollection is that Oregon has legalized/recognized homosexual "marriage" and "right to die" schemes. The Willamette Valley, where most of the population is, is fairly libertine. Most San Francisco types fit in quite well in Eugene, Portland, Beaverton, Corvallis, etc. The coastal fishing and logging areas are now more dominated by tourism and retirement (from California). The eastern half of the state is largely high desert, and is sparsely populated. I would not class Oregon with Wyoming, Montana, Idaho, etc. (and Montana is becoming more like California and the Pacific Northwest, as wealthy Californians buy ranches and retirement homes there--too cold for me, but they like the "Big Sky Country," until too many people move in, that is). I think Ernest Callenbach had it about right when he described the region from British Columbia down through most of coastal California as "Ecotopia." (Or maybe this was the book called "The Seven Nations of North America"...I lent my copy to someone and never saw it again. Extreme southern California has more of a Mexican flavor and is dubbed "Aztlan" or somesuch word and is lumped in with Arizona, southern Nevada, New Mexico, etc.) The meta-issue is of course that all of these states, and all of the nations of the world, have set up machines for producing more and more laws and more and more priests to interpret the laws. Didn't we basically have enough laws 40 years ago? Granted, some new situations came up, and new legislation was needed, but not in proportion to the numbers of new laws and the nearly year-round meeting of legislators to pass more laws. The mischief that all the new legislation about Patriot Acts and Terrorist Information Awareness and Bill 742 is creating will never be undone. The Supreme Court lacks the guts to take on sweeping cases and strike down thousands of very similar and very unconstitutional laws across the country. A good example, one of many, being the bullshit about the "incorporation doctrine" and whether the Second Amendment prevents _states_ from violating the Bill of Rights in the same way--it has been accepted--that the states may not establish official churches or deny due process, blah blah. Not being a law student, it has always seemed clear to me that the states agreed to support the Constitution of the United States as a condition for joining the Union and they clearly cannot impose their own press censorship, official religions, etc., nor can they violate the Fourth Amendment and just raid houses as they wish. Nor can their courts ignore jury trial and other constitutional issues. So, somehow the Second Amendment is deemed to be "unincorporated" (??). How con-veeeenient! The Supreme Court should issue a simple and concise statement: "The Second Amendment is no different from the First, Third (quartering troops), Fourth, Fifth, Sixth, etc. amendments. Some of the states do not seem to have grasped this. And we have been remiss in not making this abundantly clear a long time ago. .... We hereby instruct the Federal Marshals Service to visit the various prisons in states which have gun laws violating the Second Amendment and release the prisoners. We further order...and we order...and those officials which ignore this order shall be charged...." But of course the Supreme Court is unwilling to rock the boat. And now that we have the Colored Person Slot, the Jewish Person Slot, the Female Slot, the Jewish Female Slot, the Italian-American Slot, various groups are clamoring for the Queer Slot, the Hispanic Slot, the Hispanic Woman Slot, and, of course the Asian Person Slot. Once the last of the whitemales has retired, the Supreme Court can be our true Rainbow Coalition and the rest of the Bill of Rights can be further shredded. --Tim May By the way, I usually have my .sig randomly rotated from about 25 of them. Look at what just happened to pop up this time: "The whole of the Bill [of Rights] is a declaration of the right of the people at large or considered as individuals... It establishes some rights of the individual as unalienable and which consequently, no majority has a right to deprive them of." -- Albert Gallatin of the New York Historical Society, October 7, 1789
Tim wrote:
A good example, one of many, being the bullshit about the "incorporation doctrine" and whether the Second Amendment prevents _states_ from violating the Bill of Rights in the same way--it has been accepted--that the states may not establish official churches or deny due process, blah blah. Not being a law student, it has always seemed clear to me that the states agreed to support the Constitution of the United States as a condition for joining the Union and they clearly cannot impose their own press censorship, official religions, etc., nor can they violate the Fourth Amendment and just raid houses as they wish. Nor can their courts ignore jury trial and other constitutional issues. So, somehow the Second Amendment is deemed to be "unincorporated" (??). How con-veeeenient!
The Supreme Court should issue a simple and concise statement:
"The Second Amendment is no different from the First, Third (quartering troops), Fourth, Fifth, Sixth, etc. amendments. Some of the states do not seem to have grasped this. And we have been remiss in not making this abundantly clear a long time ago. .... We hereby instruct the Federal Marshals Service to visit the various prisons in states which have gun laws violating the Second Amendment and release the prisoners. We further order...and we order...and those officials which ignore this order shall be charged...."
But of course the Supreme Court is unwilling to rock the boat.
The Supreme Court won't rock the boat because it built the boat in Dread Scott, part II, known amongst lawyers as "United States v. Cruikshank". (Most of the following is from a post to this list I made in 2002). Steve Schear wrote:
I think whether the 2nd is enforceable against states and municipalities will depend upon the SC deciding to apply the 14th Amendment. The Supreme Court has long held that the 14th Amendment does not make all of the Bill of Rights applicable to the States. Only those rights the Court finds to be "fundamental" apply. To this day, several portions of the Bill of Rights, including the right to indictment by grand jury, to a jury trial in any common-law suit over $20, and to the rules of the common law in judicial review of jury fact-finding, have not been held to be fundamental and to this day are not applicable to the states.
[...]The question if the 2nd Amendment imposes limits on the ability of the States to regulate arms closely relates to whether the Supreme Court holds that the 14th Amendment extends 2nd Amendment's reach to the States. However, the answer to this question is not one that will need to be decided in the future. It has been decided over 125 years ago in one of the first test cases of the then new 14th Amendment In United States v. Cruikshank, 92 U.S. 542 (1876), the Supreme Court held that: "The government of the United States, although it is, within the scope of its powers, supreme and beyond the States, can neither grant nor secure to its citizens rights or privileges which are not expressly or by implication placed under its jurisdiction. All that cannot be so granted or secured are left to the exclusive protection of the States." "The right to bear arms is not granted by the Constitution; neither is it in any manner dependent upon that instrument for its existence. The second amendment means no more than that it shall not be infringed by Congress, and has no other effect than to restrict the powers of the national government." As you can see by reading the entire case, the Court held not only that the 14th Amendment does not extend the 2nd Amendment to the States, but also held that the States are free to regulate firearms at their leisure, in effect, the Court held that the 2nd Amendment solely constrains Congress from infringing upon the right to keep and bear arms while leaving the Executive free to infringe upon this right, or deny its exercise entirely, at will. In their ruling, the Supreme Court of course utterly ignored the legislative history of the 14th Amendment which shows that the 14th Amendment was put in place precisely to ensure, amongst other civil rights, that the newly freed blacks would be able to arm themselves as a protection from their militarily beaten, but no less racist, white neighbors. Under Cruikshank, Congress may not pass a bill infringing on the right of the citizens to keep and bear arms, but a Presidential Executive Order that all private citizens are to turn in their guns tomorrow passes Constitutional muster. As would any State laws banning any and all possession of firearms by civilians. The Supreme Court slightly soften their contention that the 2nd Amendment was not worth the parchment it is written on (at least when it comes to, horrors, blacks with guns) ten years later in Presser v. Illinois, 116 U.S. 252 (1886). "The provision in the Second Amendment to the Constitution, that 'the right of the people to keep and bear arms shall not be infringed,' is a limitation only on the power of Congress and the national government, and not of the States. But in view of the fact that all citizens capable of bearing arms constitute the reserved military force of the national government as well as in view of its general powers, the States cannot prohibit the people from keeping and bearing arms, so as to deprive the United States of their rightful resource for maintaining the public security." Unfortunately, while at first glance being rather favorable to the right to keep and bear arms, Court in Presser did not overturn the Court's earlier determination in Cruikshank that the 14th Amendment does not extend the 2nd Amendment to the States. While the Court has in the well over 100 years that have since passed extended virtually the entire Bill of Rights to the States via the 14th Amendment, it has failed to so with the 2nd Amendment. The decision in Cruikshank that the 14th Amendment does not extend the 2nd Amendment to the States stands has not only been made by the Supreme Court, the decision stands to this day. --Lucky Green --Lucky (IANAL)
On Wednesday, May 21, 2003, at 10:57 PM, Lucky Green wrote:
In United States v. Cruikshank, 92 U.S. 542 (1876), the Supreme Court held that:
"The government of the United States, although it is, within the scope of its powers, supreme and beyond the States, can neither grant nor secure to its citizens rights or privileges which are not expressly or by implication placed under its jurisdiction. All that cannot be so granted or secured are left to the exclusive protection of the States."
"The right to bear arms is not granted by the Constitution; neither is it in any manner dependent upon that instrument for its existence. The second amendment means no more than that it shall not be infringed by Congress, and has no other effect than to restrict the powers of the national government."
As you can see by reading the entire case, the Court held not only that the 14th Amendment does not extend the 2nd Amendment to the States, but also held that the States are free to regulate firearms at their leisure, in effect, the Court held that the 2nd Amendment solely constrains Congress from infringing upon the right to keep and bear arms
while leaving the Executive free to infringe upon this right, or deny its exercise entirely, at will.
Well, the Supreme Court, like most of U.S. law, is full of contradictions. Any reading of the Bill of Rights shows that it is the _First_ which explicitly mentions "Congress shall make no law," not the Second. So we're all on the same page, here are the first several articles of the Bill of Rights: -- Amendment I Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances. Amendment II A well regulated militia, being necessary to the security of a free state, the right of the people to keep and bear arms, shall not be infringed. Amendment III No soldier shall, in time of peace be quartered in any house, without the consent of the owner, nor in time of war, but in a manner to be prescribed by law. Amendment IV The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized. -- So, any convoluted claim in Cruickshank or any of the other Reconstruction era decisions that somehow the Second only refers to what _Congress_ can do must explain why it is the First which mentions Congress while the Second, Third, Fourth, Fifth, etc., and most others don't. (I'm not a Second Amendment scholar. I'd much rather practice shooting with night vision goggles than spend time trying to understand what some post-Civil War clowns decided. After all, look what Taney ruled on just before the War of Secession.) By the way, I don't think even our current system would tolerate as Constitutional an Executive Order banning guns. The language of the Second doesn't give the Executive any special power to bypass it. Nor can any case be made the Second says "Congress shall make no law..." Again, the First has this sloppy language in it, but the second does not. (Though it has sloppy language including the useless but problematic bit about militias. It would be better if the Second simply said "The right of people to keep and bear arms shall not be infringed." (Not "the people," just "people." If "the people" is used, clarify that it means "individuals," not some weird collective right which translates to "the leaders of the people, especially their Jewish senators in California, shall have special rights the hoi polloi and negroes shall not have.") (A better case, in terms of overly strict reading, would be that it is the _First_ which supposedly allows states and the Executive to ban churches, censor the press, etc., as they are not the Congress and the First explicitly mentions "Congress shall make no law." I'm not saying this would fly, and this was certainly not the intent, but the argument you give about the Second applies actually to the First. The Second is, in some ways, even more secure than the First, as it has no mention of Congress.) By the way, a meta point, covered elsewhere in the Constitution, is that only the _Legislature_ (Congress) can make laws. The Executive Branch actually has no power to make laws, no power to ban guns, no power to define crimes. To the extent this is still honored, the Executive branch seeks laws from Congress. The President then signs bills or not, and is sometimes overridden. To the extent this is _NOT_ honored, as in the rogue President Lincoln's suspension of fundamental rights and as in various Executive Orders and Double Secret Confidential Laws since then, most of the Executive lawmaking is done at what the political people call "the ministerial level." For example, the SEC and FDA and FCC creating laws in their ministries.
In their ruling, the Supreme Court of course utterly ignored the legislative history of the 14th Amendment which shows that the 14th Amendment was put in place precisely to ensure, amongst other civil rights, that the newly freed blacks would be able to arm themselves as a
protection from their militarily beaten, but no less racist, white neighbors.
Under Cruikshank, Congress may not pass a bill infringing on the right of the citizens to keep and bear arms, but a Presidential Executive Order that all private citizens are to turn in their guns tomorrow passes Constitutional muster. As would any State laws banning any and all possession of firearms by civilians.
I don't believe either a Presidential ban or State bans are constitutional. Again, it is not the Second which mentions "Congress." That honor belongs to the First. Could Nixon have ordered the NYT shut down when it was criticizing him so harshly? Could Clinton have announced that the Second Amendment was no longer valid? Could Bush have ordered citizens held in violation of the Fifth and Sixth Amendments? No, in all such cases. Of these examples, only Bush actually did what is suggested. He will be judged as harshly as we now judge Lincoln. I only hope I someday see him tried and punished harshly, along with a few hundred of his brownshirts. A special wing at Supermax in Colorado needs to be built for these criminals. --Tim May
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