He’s pointing out the hypocrisy of the right, ANandy - who scream “state’s rights” whenever they complain about the Feds, but are happy to go along with this astonishing ruling by activist judges…
Andy, if you’re going to cite the 10th amendment, at least please read what it ACTUALLY SAYS!
“The power not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”
The Constitution DOES RESERVE POWERS TO THE UNITED STATES- THE FEDERAL GOVERNMENT, many of them, and it is the states trying to usurp that power- Arizona and Chicago for instance.
Libertarian, the hypocrisy would only be equal if both sides were constantly whining about “states’ rights” and “activist judges”…not just the Republicans.
The Second Amendment referred only to muzzle-loading single-shot muskets and hand guns. It took pure judicial activism to stretch it to today’s rifled arms that can fire multiple times without a reload.
IMHO, it also took pure judicial activism to shorten the Second to “The right of the people to keep and bear Arms shall not be infringed.”
But as Motive pointed out, Republicans have no problem abandoning their fight against “states’ rights” when it suits their purpose. For instance, if constitutionality of the Defense of Marriage Act were to be brought before the courts, they’d be falling over themselves calling for judicial activism to save it.
^ No Anthony the liberals constantly complain about how the Republicans wish to weaken the Federal government. (and they do) because they like the laws passed by the Feds. They say the States have no rights to oppose those laws Remember Wallace at the front door.
But when there is a Federal law they don’t like see 2nd Amendment then they wish to have the states decide.
Equal hypocrisy.
If the 2nd A only applies to muzzle-loading muskets etc I can hardly wait for the Republicans to censor liberal speech/press on the internet as obviously that didn’t exist in the 18th Century. There were no microphones, TV, radio etc So are all censorable? Why is the only aspect of the Bill of rights you wish to keep back in the 18th C the 2nd Amendment?
Libertarian, I think it makes sense to incorporate the 2nd, given that most of the rest are. If it were up to me, I’d have the same traffic laws in every state, too.
I still don’t see the lefties as complaining about judicial activism or states’ rights. If they’re against a federal law, it’s because of the content of the law itself, not because of a JA or SR argument.
I never said that I wish to keep the 2nd amendment, nor any others, back in the 18th century. Read it again, and you may see that I’m merely pointing out that it is judicial activism that brings the Constitution into the 21st century, unless we use a legislative process to redefine what the Constitution means by “arms” or “press”.
Howie, say something intelligible and I’ll be happy to respond.
The Anti-Heller lefties, the anti-McDonald lefties, the the anti-CU lefties are indeed complaining about judicial activism. That is their whole complaint.
They don’t want to see SCOTUS overturn a state law as that is their definition of judicial activism except if the state law is anti black, anti gay, anti-abortion etc etc. Then it is times change. Somehow the only change their times permit is in their direction not the other way.
3rd paragraph. Confusing to me If the 1st A says “Congress shall make no law” and the 21st Century SCOTUS says that actually means Congress shall make no law, why is that judicial activism?
Judicial activism would mean that the 21st Century SCOTUS has changed the constitution to mean what I want it to mean not what it actually says.
It has been my impression that whenever you see someone complaining about “judicial activism”, there’s a 99% chance that person is a rightie. And there’s an equal chance they’ll become immediately silent about it for their favorite agenda issues. How many Republicans have you seen screaming that Citizens United v. Federal Election Commission was judicial activism?
Regarding your confusion: For just about every law in the land from the Constitution on down, there are going to be situations that the law doesn’t quite cover. At that point, either the legislature has to change or replace the law, or a judge has to expand it. That’s how our system has always worked, and why the sections on judge-made law in our law libraries dwarf the sections on legislative black-letter law. It has to work that way…there’s no way legislatures could keep up with what the courts now handle.
Thus, we have “arms” and “press” now covering things beyond even the imagination of the Bill of Rights’ authors. It’s because the judicial branch expanded the definitions. It’s not “judicial activism”, it’s the judiciary doing its job.
Thus, my point about the 2nd amendment: Judicial restraint would mean that “arms” refers to “what it actually says”, which can only mean the arms of the day. Expanding it to anything more modern, from a revolver to a shoulder-mounted tactical nuke, would be as you say, changing it “to mean what I want it to mean”.
You just beautifully articulated the differences between conservatives and liberals.
Read your entire post about the absolute necessity of judges doing a-b or c. That is the definition of judicial activism. A judge’s only job is to apply the law as written by the legislative and signed by the executive. There is always a law there. It may not give equity but that is not the judge’s option. He must just follow the written law. As long as you truly and honestly believe that judges should make law we will never be able to come to an agreement.
Libertarian, I must admit I was entirely ignorant of that last fact until I went to law school.
Before that all I knew was what I’d learned in junior high school…the legislature makes the law, the judiciary interprets the law, blah, blah. That’s the level of understanding your posts show.
Then in law school I learned about common law, precedent, stare decisis, case law, etc.
It was quite an eye-opener to learn that all three branches make laws.
As long as you truly and honestly believe that judges should never make law, then there are a LOT of laws that we’d need to abandon. Innocent unless proven guilty, for instance. Or that we have a right to privacy. Or that we have a right to travel. Or that the Bill of Rights amendments might be applicable to state law.
Or that “arms” can apply to revolvers.
It’s not a case of conservatives or liberals. It’s just how our government works.
IMHO “judicial activism” merely means a decision you don’t agree with, which is why conservatives never cried “judicial activism” when the term “arms” was extended to include revolvers, rifles, and who knows what else.
The Conservatives and the GOP are quite willing to change their position on the issues – I know this is true because have no positions, ideas, or, for that matter, morals.
They scream for State Rights when it come to immigration, school history books, voting rules and regulations, and, of course, are completely against State Rights when comes to such simple and safe things like guns.
You have confused me. You told me you were a physician, an anesthesiologist. We discussed your practice which you said was different from mine. Now you say you went to law school.
Not impossible to do both but to be honest I have become very suspicious.
I retired from medicine and went to law school (wasn’t Harvard, but it was an easy commute from my home).
Did it more for the enjoyment of going back to school than anything else. Passed the California bar and worked for a year in a workers’ comp firm, decided (as expected) that I didn’t like lawyering, and gave it up.
So I have next to nothing in the way of practical law skills…just what I learned in law school.
ANandy, where to begin with you?
Here, learn about the right to travel, and why “No authority denies anyone, acting legally, movement within or between states” here:
http://www.usconstitution.net/constnot.html
(You might enjoy this link, too, Libertarian, as it explains many other non-legislative laws we live under.)
Speaking of “stupidly”, if “arms is a broad term”, do you hold that U.S. citizens have the right to bear nuclear arms? If not, why do you make such a statement?
Do you understand the concept that the judiciary tries, as part of its processing, to determine “legislative intent”? Please explain how arms from machine guns to shoulder-mounted tactical nukes could possibly have been the legislative intent of the authors of the 2nd amendment.
You both might like to Google “judge made law” as a step to getting past the junior-high-civics level of understanding.
And just to keep your heads spinning, consider this: When Bush was president, it was illegal for federally-funded medical researchers to obtain new stem cell lines. Now it’s legal. Who made those laws?
Anthony
Must have been fun to start life all over and stop medicine and start law.
If you haven’t practiced medicine in many years the huge number of changes will make it difficult for you to understand our current problems. This explains to me why you approached the situation so differently than modern practictioners. Imagine working with one patient for 15 minutes, getting paid $37 and knowing your expenses for that exact period are $52.
Please don’t you fall into the trap that if it didn’t exist in 1789 we need to have modern justices rewrite the constitution. Internet didn’t exist and yet we wouldn’t want judges to say government could censor blogs. The concept remains.
The intention of the writers of the 2A was whatever the current field carried weapons of the militia was what was protected.
The complaint is judicial activism not executive activism. if we don’t like Bush or Obama we can throw them out. Not so with SCOTUS. Obama executive order could change stem cell research. The legislature also could. The judiciary could not.,
SCOTUS has been wrong before jim crow comes to mind they overturned their own ruling, good. overturned an hundred years of president regarding limits on corporation ability to buy the government they want,bad
From a strict absolute legal viewpoint Brown v Board of Ed did not “overturn” Plessy. That actually has never been done but of course Brown made it null and void.
CU did overturn many years of incorrect constitutional interpretation.
My, people are working hard to avoid the initial comment, which was specifically that this was an example of the hypocrisy of the right. I certainly didn’t claim there was no hypocrisy on the left; just that this was an example of it on the right.
So all your arguments calling me an “idiot,” ANandy: irrational and wrong.
Lib: Nope, you lose, too. If you read my posts carefully, I am commenting on the irony that those most likely to complain about “judicial activism” on the left are ignoring it on the right. Overturning two centuries of settled law is judicial activism, whether it is in the Constitution or not – and the idea that all Americans have a right to guns at all times is not in there, sorry.
I object to the decision itself for my own reasons, which have nothing to do with taking away guns from law-abiding Americans. I have cited specific examples, e.g., the pro-gun group whose first priority is to overturn the law taking guns away from spouse abusers despite the data proving they are more likely to shoot their spouses (usually wives). I also object to the idea that terrorists who happen to be citizens should be able to buy any gun they want at any time with no restrictions. Call me crazy, but a few constraints on that would do more to protect us than the entire eight years of Bush-Cheney managed.
First, going back to school was fun, especially in a subject in which I’d had no prior experience. (Why, I used to think only the legislative branch created law…how naive!)
Second, I don’t recall discussing medical billing, so I have no idea why you’re suddenly changing the subject to that. If I did, please bring it to my attention.
Third, when you say “the concept remains”, you are correct, but you don’t understand the implication: It is those concepts that are the basis for judge made law, much of which is made based on analogies to similar, but still different, situations.
Fourth, your statement, “The intention of the writers of the 2A was whatever the current field carried weapons of the militia was what was protected” will need some backing up, as that is clearly NOT what the 2nd amendment states. Furthermore, if it is true, then you’re claiming it covers machine guns, bazookas, shoulder-to-air missiles, flame-throwers, shoulder-mounted tactical nukes…come on, do you really want all citizens to have those?
Fifth, your creation of the phrase “executive activism” is just another red herring. I was merely pointing out that just as most people are ignorant of the huge body of judge-made law, they’re also ignorant of the fact that the executive branch makes a lot of law (administrative law, executive orders, regulations, e.g. most of the I.R.S.) But that’s an aside, not relevant to our discussion of “judicial activism”.
Now to deal with ANandy…sigh. Probably easier (and less painful) to just bang my head against the wall since ANandy has continually proven she will never admit her mistakes (deleting her posts is so much easier for her). But here goes:
ANandy: “I dealt with your remark that, as the firearms available when the Constitution was ratified were muskets, you insisted the only arms authorized were muskets.”
I pointed out those were the only arms in existence, yes.
ANandy: “SCOTUS disagrees. I concur.”
Then tell us the decision in which the Justices said the 2nd amendments authors were referring to weapons not even envisioned.
ANandy: “What has an offensive weapon, a nuclear device, to do with free men protecting their rights, life and property, the basis of the decision?”
It’s an “arm”. And a pretty bleeep effective one, too, if you have an opposing army marching on you.
ANandy: “Another of your attempts to obfuscate.”
Nope, just a successful attempt to point out issues you never thought of. And it’s an example of judge-made law. Without any input from the legislature or executive branches, the term “arms” in the 2nd amendment has gone from not including revolvers to including them. The right to bear them was originally linked to necessity of militias; now it is free from that requirement. And up until recently, states had the right to impose their own restrictions; now that right has been severely curtailed.
ANandy: “A “right to travel” is presumed, not explicit. What’s your point?”
Well, it seems that the point is that you were too lazy to spend less than a minute educating yourself via the link I gave you, as evidenced by your misstatement above. Our right to travel *is* explicit, thanks to SCOTUS decisions U.S. v Guest, 383 U.S. 745 (1966) and Shapiro v Thompson, 394 U.S. 618 (1969). More judicial activism!
ANandy: “Stare decisis, precedent, etc does not make law.”
You are simply wrong. Go read the definitions of “common LAW” and “case LAW” and get back to us. Tell us what you’ve learned about how this huge body of LAW was made. I’ll even give you a hint: The answer includes terms like “stare decisis” and “precedent”.
ANandy: “Decisions are regularly overturned.”
As are legislative, “black-letter” laws. Your point?
ANandy: “Imagine an arrest based on a judicial decision.”
I don’t have to imagine it. I’ve been to law school. (Oh, sorry, forgot who I was talking to: I graduated from law school and passed the California bar exam.)
Apparently so much of this discussion comes down to defining “judicial activism”. It was popularized by Republicans after the Warren/Burger courts made Roe v Wade, Miranda, Griswold, Affirmative Action decisions. The complaint made was there was no exact word in the Constitution eg abortion, privacy etc to allow for those decisions. Judge made laws.
Then Democrats to counteract the success of the Republicans in convincing the public came up with a new original definition of activism eg overturning state laws.
Finally after being in charge for 40 years they brilliantly added another new definition. We were in charge for 40 years we made up hundreds of laws. Based on stare decisis now that you are in charge you must continue these laws in force or else that is judicial activism. Of course that is laughable and they know that when they say that. Does that mean in 40 years when they resume control they should not overturn Heller or CU because they are established? No liberal believes that.
Liberals overturn state laws with great regularity Loving, Lawrence, Brown v Ed, Griswold, etc etc. MM, of course there is hypocrisy by the Republicans just as there is with the Democrats.
A major difference now is when the liberals were activist the words eg abortion, privacy were not in the constitution. But now the words RKBA, free speech etc are there word for word.
My days are varied, but often involve a fair amount of time at my computer…time that used to be used reading books and magazines, watching TV and movies, shopping, exchanging mail, debating…much of which now takes place on my computers instead.
Libertarian (I wish I could use the abbreviation “Lib”, but it just doesn’t work): Your post makes much more sense.
My favorite definition for “judicial activism”: A process by which a judge/Justice makes a ruling that you don’t like.
But as used by conservatives, I’d have to say that Roe v Wade comes closest to being judicial activism.
Regarding states’ rights, that was another issue I never fully appreciated until I went to law school…it was only then I realized that our country isn’t quite as cohesive and homogeneous as I had thought of it.
As such, I generally personally don’t have a hard time when a national law supplants state laws, even though I now understand the historical and Constitutional complications.
ANandy, your statement “Stare decisis, precedent, etc does not make law” is not wrong because of semantics. It is wrong because you’re 180 degrees from understanding the concept.
A concept that has been explained to you in detail, but as usual, you don’t have the integrity to admit it, much less be thankful for the education. If you did, then perhaps you’d find that people don’t have to “wear” you “down”.
ANandy: “You can claim court decisions are making law all you care to. It doesn’t relieve the legislature from their responsibility of enacting law to meet the needs of court decisions, which is the case.”
Look, how many court cases are there every day on the appellate level and above? ALL of these cases become part of case law (which I notice you refused, as usual, to look up). Do you honestly believe the legislatures could produce that many laws daily? Just this once, try to face facts.
ANandy: “Handlesman does not, nor do you, understand that the States never had the Right.”
Once again, it is you that don’t understand, but can’t admit it. Until one of the Bill of Rights is incorporated (that is, made to apply to the states’ governments via the 14th amendment), the states can make laws that are incompatible with it.
This is the first time the 2nd amendment has been incorporated, an important event in the field of constitutional law.
In Heller, written by Scalia, and in McDonald, written by Alito, certain basic principles were enunciated. The RKBA is an individual right (9-0 in Heller). That is now settled. One can be unhappy with that but nevertheless it is the law.
Just as with the 1A there may be restrictions. Speech= time, place or manner. RKBA= felons, mentally ill, schools etc. Each of these restrictions/exceptions will be decided on a case by case basis by appellate courts.
The individual’s right to possess a handgun in his own home for self defense is now established. DC or Chicago may not in a blanket law disallow the ownership in every case. Settled law.
My reference to you and medicine was that you seemed much more favorable towards Obamacare than any other “practicing” physician I had ever met. Harvard professors were for it and city administrators but for the people in the trenches it is a disaster.
Libertarian, agreed on the “settled law”…law defined by the courts.
Interestingly, though, based on the actual text of the 2nd amendment, the restrictions you list (felons, mentally ill) would be unconstitutional. The 2nd clearly states “the right of the people to keep and bear Arms, shall not be infringed”
“Shall not” doesn’t allow for restrictions.
And it doesn’t even refer to citizens, just “the people”. I don’t know if that term has been defined by the courts (more judicial activism), but as written, it includes everyone.
ANandy: “What part of the generic term “ARMS” don’t you grasp?”
There is no such thing as a “generic term”, ANandy. Legal terms must be defined, and when the legislature didn’t do it, the courts must. One of the things the courts look to is “legislative intent”.
I contend that the 2nd amendment authors did not intend it to include arms such as flame throwers and tactical nukes. Any extension beyond the arms of the day requires further definition, or proof that the authors intended to include any possible weapon that might be invented in the future, including those beyond their wildest imagination.
That seems to be your position, yet you’re not surprisingly unable to support it.
Oh, yeah, medical billing stuff. You might be right there, “Lib”.
Although I don’t think what got passed should be called “Obamacare”, since it bore little resemblance to what he originally proposed.
The first years of my medical career were in the Navy, where doctors don’t have any billing or ability-to-pay issues to worry about, and that pretty much became my attitude for my civilian career, too. Cost me…I lost an average of about $20K a year to non-payers, but I just decided not to worry about it. I still made a bunch of money.
Also, as an anesthesiologist, I didn’t have much say in patient selection…I just got whomever the surgeons had. Thus, for near-identical cases I’d make widely-varying amounts of money.
But as long as the overall inflow was nice, I didn’t sweat the details.
Of course the same thing could be said about the 1A. “Congress shall make no law…” Yet the first can be abridged by time place or manner. Way too many restrictions but that is now the law of the land.
As i said felons, mentally ill, schools, courts etc will all be acceptable restrictions.
Anthony Re Medical practice. Funny day to be talking about money. Free agent day in basketball and LBJ talking $70-90M.
When ObamaCare was passed he said not only would it not cost more money to insure the extra 47M but we would come out ahead. No sentient human actually believed that but when you read his rationale it became more ludicrous. In days when unions are negotiating 2% increases instead of the usual 8% Obama balanced the health care bill by proposing to cut physician payments by 20% the first year and more later.
When his poster child the Mayo Clinic of Arizona totally dropped out of medicare Congress suddenly realized Lincoln freed the slaves and physicians wouldn’t work for free. But the total savings from ObmaCare came from salary slash.
Brilliant solution. ObamaCare would be profitable by cutting physician saiaries. Totally separate bill not connected to obamaCare - simply put all that money right back in. If the 2 bills - obamacare and return of salaries were combined obamaCare would have, as predicted, lost billions.
MSM didn’t discuss that but of course WSJ and AMA did.
“As i said felons, mentally ill, schools, courts etc will all be acceptable restrictions.”
More judicial activism.
What do you think about the “public option”, Lib? (Not counting that as a libertarian, you should be against any government program). Do y’not think it might have provided some competition and lowered insurance rates?
Another related issue: I remember looking at a patient’s hospital bill around 20 years ago…it showed the hospital’s costs, and what they charged. The one that stayed in my memory was the standard one liter bag of IV fluid. Cost the hospital less than a dollar; the patient (or his insurance company) was charged $21. Today, that same charge is over a hundred dollars, although I see online you can buy them for $2.80:
I was also thinking more about your comment about me being in favor of “Obamacare”…I also recall feeling that given how the present system is spiraling out of control, that any attempt to fix things would be better than doing the usual…i.e. nothing.
Re: Physician’s salaries…I often felt I was paid too much…but then I seem to have simpler needs than most.
ANandy: “Anthony, where is a legislature in the constitutional process?”
They write black-letter law, Nandy, as opposed to the common, or case, law written by the judiciary, and the administrative law written by the executive branch.
I could have sworn we already covered this.
ANandy: “If legislative intent is worthwhile, framers intent is no less.”
I heartily agree. That’s why I asked you to back up your contention that they intended “arms” to include modern weaponry such as revolvers, flame throwers and tactical nukes.
ANandy: “the Federal powers must be FEW gives pause”
Agreed. Just one of the concepts I really learned for the first time in law school.
Anthony I guess you haven’t practice Medicine in 20 years. Times have changed. There are 8 hospital employees for every patient. The union staff belong to 1099 and make a living wage. Even with all those charges you saw the hospitals are going bankrupt anyway.
Did the framers mean freedom of the press to cover the internet? Did they actually write the 1A covers the internet?
It’s been about 12 years, but if I were to return to it I’d still do it the same way. Otherwise it wouldn’t be fun. Maybe I’d only net $200K instead of $300K, but I’d get by.
“Did the framers mean freedom of the press to cover the internet? Did they actually write the 1A covers the internet?”
Of course not. So how should the Justices handle that fact? Via “judicial activism” or “judicial restraint”?
Are you suggesting the framers’ intent was that the right to arm oneself included shoulder-mounted tactical nukes?
Regarding unreasonable searches, you can assume that, if you’re completely ignorant of any Supreme Court decisions that have expanded the concept to modern-day situations. You know, judicial activism.
(Of course, you’d also have to ignore the fact that it applied to people not in buggies…like walking down the road, in their homes, etc., but that would ruin your lame attempt at analogy.)
Anthony If you have been away from the practice of medicine for 12 years you have missed some dramatic changes. Obviously, there is a huge difference between gross income and net after all expenses. For my field, expenses were 52% of gross. Take your numbers if your gross fell from $300,000 to $200,000 your net would have been less than $100,000. Teachers in NYC earn more than that and work 180 6 hour days.
Again we have a difference in our use of the term judicial activism. If a law says a 6 bullet gun or a 10 bullet gun or an 18 bullet gun is OK. And the judge see a case where there is a 15 bullet gun, I don’t call that judicial activism for him to say 15 is OK. Judicial activism is for him to say it is not OK because he doesn’t like guns and is looking for any reason to say no.
I was using the term black-letter law to refer to laws passed by the legislature, not the judiciary or executive branch.
I see the reason for my nuclear weapon example flew right over your head. It was to point out the extreme example of what the term “bear arms” could lead to, once we decide that it isn’t limited to what the 2nd Amendment authors had in mind.
If I have the right (not privilege) to bear arms, and I no longer have to be in a militia, and that right shall not be infringed, then why can’t I carry around a nuke anywhere I want?
No, ANandy, you haven’t answered. As soon as you claim the “bear arms” phrase is extendable to modern weaponry (via judicial activism), you either have to extend it to all modern arms, or create some arbitrary cut-off point…a point that didn’t exist when the Bill of Rights was written.
You’ve been unable to come up with such a point, or give a rationale for one, and lying about it won’t help.
Motivemagus almost 14 years ago
He’s pointing out the hypocrisy of the right, ANandy - who scream “state’s rights” whenever they complain about the Feds, but are happy to go along with this astonishing ruling by activist judges…
cfimeiatpap almost 14 years ago
http://www.azcentral.com/arizonarepublic/news/articles/2010/06/29/20100629immig-fedsvisit0629.html
http://www.azcentral.com/arizonarepublic/news/articles/2010/06/29/20100629mexico-slaying0629.html
Libertarian1 almost 14 years ago
Motivemagus
Would it be OK with you if Mississippi banned abortion- states rights? (Roe v Wade)
Would be OK with you if Texas banned all gay relationships- states rights? (Lawrence)
Would it be OK with you if Virginia banned black/white marriages- states rights? (Loving)
Would it be OK with you if Kansas had separate schools for blacks and whites- states rights? (Brown v Board of Education)
The hypocrisy is equal for both parties. Why do you seem to forget that?
Dtroutma almost 14 years ago
Andy, if you’re going to cite the 10th amendment, at least please read what it ACTUALLY SAYS!
“The power not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”
The Constitution DOES RESERVE POWERS TO THE UNITED STATES- THE FEDERAL GOVERNMENT, many of them, and it is the states trying to usurp that power- Arizona and Chicago for instance.
riley05 almost 14 years ago
Libertarian, the hypocrisy would only be equal if both sides were constantly whining about “states’ rights” and “activist judges”…not just the Republicans.
The Second Amendment referred only to muzzle-loading single-shot muskets and hand guns. It took pure judicial activism to stretch it to today’s rifled arms that can fire multiple times without a reload.
IMHO, it also took pure judicial activism to shorten the Second to “The right of the people to keep and bear Arms shall not be infringed.”
But as Motive pointed out, Republicans have no problem abandoning their fight against “states’ rights” when it suits their purpose. For instance, if constitutionality of the Defense of Marriage Act were to be brought before the courts, they’d be falling over themselves calling for judicial activism to save it.
Libertarian1 almost 14 years ago
^ No Anthony the liberals constantly complain about how the Republicans wish to weaken the Federal government. (and they do) because they like the laws passed by the Feds. They say the States have no rights to oppose those laws Remember Wallace at the front door.
But when there is a Federal law they don’t like see 2nd Amendment then they wish to have the states decide.
Equal hypocrisy.
If the 2nd A only applies to muzzle-loading muskets etc I can hardly wait for the Republicans to censor liberal speech/press on the internet as obviously that didn’t exist in the 18th Century. There were no microphones, TV, radio etc So are all censorable? Why is the only aspect of the Bill of rights you wish to keep back in the 18th C the 2nd Amendment?
riley05 almost 14 years ago
Libertarian, I think it makes sense to incorporate the 2nd, given that most of the rest are. If it were up to me, I’d have the same traffic laws in every state, too.
I still don’t see the lefties as complaining about judicial activism or states’ rights. If they’re against a federal law, it’s because of the content of the law itself, not because of a JA or SR argument.
I never said that I wish to keep the 2nd amendment, nor any others, back in the 18th century. Read it again, and you may see that I’m merely pointing out that it is judicial activism that brings the Constitution into the 21st century, unless we use a legislative process to redefine what the Constitution means by “arms” or “press”.
Howie, say something intelligible and I’ll be happy to respond.
Libertarian1 almost 14 years ago
^ Agree that 2A should be incorporated
Your second paragraph
The Anti-Heller lefties, the anti-McDonald lefties, the the anti-CU lefties are indeed complaining about judicial activism. That is their whole complaint.
They don’t want to see SCOTUS overturn a state law as that is their definition of judicial activism except if the state law is anti black, anti gay, anti-abortion etc etc. Then it is times change. Somehow the only change their times permit is in their direction not the other way.
3rd paragraph. Confusing to me If the 1st A says “Congress shall make no law” and the 21st Century SCOTUS says that actually means Congress shall make no law, why is that judicial activism?
Judicial activism would mean that the 21st Century SCOTUS has changed the constitution to mean what I want it to mean not what it actually says.
riley05 almost 14 years ago
It has been my impression that whenever you see someone complaining about “judicial activism”, there’s a 99% chance that person is a rightie. And there’s an equal chance they’ll become immediately silent about it for their favorite agenda issues. How many Republicans have you seen screaming that Citizens United v. Federal Election Commission was judicial activism?
Regarding your confusion: For just about every law in the land from the Constitution on down, there are going to be situations that the law doesn’t quite cover. At that point, either the legislature has to change or replace the law, or a judge has to expand it. That’s how our system has always worked, and why the sections on judge-made law in our law libraries dwarf the sections on legislative black-letter law. It has to work that way…there’s no way legislatures could keep up with what the courts now handle.
Thus, we have “arms” and “press” now covering things beyond even the imagination of the Bill of Rights’ authors. It’s because the judicial branch expanded the definitions. It’s not “judicial activism”, it’s the judiciary doing its job.
Thus, my point about the 2nd amendment: Judicial restraint would mean that “arms” refers to “what it actually says”, which can only mean the arms of the day. Expanding it to anything more modern, from a revolver to a shoulder-mounted tactical nuke, would be as you say, changing it “to mean what I want it to mean”.
Libertarian1 almost 14 years ago
You just beautifully articulated the differences between conservatives and liberals.
Read your entire post about the absolute necessity of judges doing a-b or c. That is the definition of judicial activism. A judge’s only job is to apply the law as written by the legislative and signed by the executive. There is always a law there. It may not give equity but that is not the judge’s option. He must just follow the written law. As long as you truly and honestly believe that judges should make law we will never be able to come to an agreement.
riley05 almost 14 years ago
Libertarian, I must admit I was entirely ignorant of that last fact until I went to law school.
Before that all I knew was what I’d learned in junior high school…the legislature makes the law, the judiciary interprets the law, blah, blah. That’s the level of understanding your posts show.
Then in law school I learned about common law, precedent, stare decisis, case law, etc.
It was quite an eye-opener to learn that all three branches make laws.
As long as you truly and honestly believe that judges should never make law, then there are a LOT of laws that we’d need to abandon. Innocent unless proven guilty, for instance. Or that we have a right to privacy. Or that we have a right to travel. Or that the Bill of Rights amendments might be applicable to state law.
Or that “arms” can apply to revolvers.
It’s not a case of conservatives or liberals. It’s just how our government works.
IMHO “judicial activism” merely means a decision you don’t agree with, which is why conservatives never cried “judicial activism” when the term “arms” was extended to include revolvers, rifles, and who knows what else.
kennethcwarren64 almost 14 years ago
The Conservatives and the GOP are quite willing to change their position on the issues – I know this is true because have no positions, ideas, or, for that matter, morals.
They scream for State Rights when it come to immigration, school history books, voting rules and regulations, and, of course, are completely against State Rights when comes to such simple and safe things like guns.
Libertarian1 almost 14 years ago
Anthony
You have confused me. You told me you were a physician, an anesthesiologist. We discussed your practice which you said was different from mine. Now you say you went to law school. Not impossible to do both but to be honest I have become very suspicious.
riley05 almost 14 years ago
I retired from medicine and went to law school (wasn’t Harvard, but it was an easy commute from my home).
Did it more for the enjoyment of going back to school than anything else. Passed the California bar and worked for a year in a workers’ comp firm, decided (as expected) that I didn’t like lawyering, and gave it up.
So I have next to nothing in the way of practical law skills…just what I learned in law school.
ANandy, where to begin with you?
Here, learn about the right to travel, and why “No authority denies anyone, acting legally, movement within or between states” here:
http://www.usconstitution.net/constnot.html
(You might enjoy this link, too, Libertarian, as it explains many other non-legislative laws we live under.)
Speaking of “stupidly”, if “arms is a broad term”, do you hold that U.S. citizens have the right to bear nuclear arms? If not, why do you make such a statement?
Do you understand the concept that the judiciary tries, as part of its processing, to determine “legislative intent”? Please explain how arms from machine guns to shoulder-mounted tactical nukes could possibly have been the legislative intent of the authors of the 2nd amendment.
You both might like to Google “judge made law” as a step to getting past the junior-high-civics level of understanding.
And just to keep your heads spinning, consider this: When Bush was president, it was illegal for federally-funded medical researchers to obtain new stem cell lines. Now it’s legal. Who made those laws?
(Hint: Neither the legislature nor judiciary.)
Libertarian1 almost 14 years ago
Anthony Must have been fun to start life all over and stop medicine and start law.
If you haven’t practiced medicine in many years the huge number of changes will make it difficult for you to understand our current problems. This explains to me why you approached the situation so differently than modern practictioners. Imagine working with one patient for 15 minutes, getting paid $37 and knowing your expenses for that exact period are $52.
Please don’t you fall into the trap that if it didn’t exist in 1789 we need to have modern justices rewrite the constitution. Internet didn’t exist and yet we wouldn’t want judges to say government could censor blogs. The concept remains. The intention of the writers of the 2A was whatever the current field carried weapons of the militia was what was protected. The complaint is judicial activism not executive activism. if we don’t like Bush or Obama we can throw them out. Not so with SCOTUS. Obama executive order could change stem cell research. The legislature also could. The judiciary could not.,
dwnoname almost 14 years ago
SCOTUS has been wrong before jim crow comes to mind they overturned their own ruling, good. overturned an hundred years of president regarding limits on corporation ability to buy the government they want,bad
Libertarian1 almost 14 years ago
From a strict absolute legal viewpoint Brown v Board of Ed did not “overturn” Plessy. That actually has never been done but of course Brown made it null and void.
CU did overturn many years of incorrect constitutional interpretation.
Motivemagus almost 14 years ago
My, people are working hard to avoid the initial comment, which was specifically that this was an example of the hypocrisy of the right. I certainly didn’t claim there was no hypocrisy on the left; just that this was an example of it on the right. So all your arguments calling me an “idiot,” ANandy: irrational and wrong. Lib: Nope, you lose, too. If you read my posts carefully, I am commenting on the irony that those most likely to complain about “judicial activism” on the left are ignoring it on the right. Overturning two centuries of settled law is judicial activism, whether it is in the Constitution or not – and the idea that all Americans have a right to guns at all times is not in there, sorry. I object to the decision itself for my own reasons, which have nothing to do with taking away guns from law-abiding Americans. I have cited specific examples, e.g., the pro-gun group whose first priority is to overturn the law taking guns away from spouse abusers despite the data proving they are more likely to shoot their spouses (usually wives). I also object to the idea that terrorists who happen to be citizens should be able to buy any gun they want at any time with no restrictions. Call me crazy, but a few constraints on that would do more to protect us than the entire eight years of Bush-Cheney managed.
riley05 almost 14 years ago
Libertarian:
First, going back to school was fun, especially in a subject in which I’d had no prior experience. (Why, I used to think only the legislative branch created law…how naive!)
Second, I don’t recall discussing medical billing, so I have no idea why you’re suddenly changing the subject to that. If I did, please bring it to my attention.
Third, when you say “the concept remains”, you are correct, but you don’t understand the implication: It is those concepts that are the basis for judge made law, much of which is made based on analogies to similar, but still different, situations.
Fourth, your statement, “The intention of the writers of the 2A was whatever the current field carried weapons of the militia was what was protected” will need some backing up, as that is clearly NOT what the 2nd amendment states. Furthermore, if it is true, then you’re claiming it covers machine guns, bazookas, shoulder-to-air missiles, flame-throwers, shoulder-mounted tactical nukes…come on, do you really want all citizens to have those?
Fifth, your creation of the phrase “executive activism” is just another red herring. I was merely pointing out that just as most people are ignorant of the huge body of judge-made law, they’re also ignorant of the fact that the executive branch makes a lot of law (administrative law, executive orders, regulations, e.g. most of the I.R.S.) But that’s an aside, not relevant to our discussion of “judicial activism”.
riley05 almost 14 years ago
Now to deal with ANandy…sigh. Probably easier (and less painful) to just bang my head against the wall since ANandy has continually proven she will never admit her mistakes (deleting her posts is so much easier for her). But here goes:
ANandy: “I dealt with your remark that, as the firearms available when the Constitution was ratified were muskets, you insisted the only arms authorized were muskets.”
I pointed out those were the only arms in existence, yes.
ANandy: “SCOTUS disagrees. I concur.”
Then tell us the decision in which the Justices said the 2nd amendments authors were referring to weapons not even envisioned.
ANandy: “What has an offensive weapon, a nuclear device, to do with free men protecting their rights, life and property, the basis of the decision?”
It’s an “arm”. And a pretty bleeep effective one, too, if you have an opposing army marching on you.
ANandy: “Another of your attempts to obfuscate.”
Nope, just a successful attempt to point out issues you never thought of. And it’s an example of judge-made law. Without any input from the legislature or executive branches, the term “arms” in the 2nd amendment has gone from not including revolvers to including them. The right to bear them was originally linked to necessity of militias; now it is free from that requirement. And up until recently, states had the right to impose their own restrictions; now that right has been severely curtailed.
ANandy: “A “right to travel” is presumed, not explicit. What’s your point?”
Well, it seems that the point is that you were too lazy to spend less than a minute educating yourself via the link I gave you, as evidenced by your misstatement above. Our right to travel *is* explicit, thanks to SCOTUS decisions U.S. v Guest, 383 U.S. 745 (1966) and Shapiro v Thompson, 394 U.S. 618 (1969). More judicial activism!
ANandy: “Stare decisis, precedent, etc does not make law.”
You are simply wrong. Go read the definitions of “common LAW” and “case LAW” and get back to us. Tell us what you’ve learned about how this huge body of LAW was made. I’ll even give you a hint: The answer includes terms like “stare decisis” and “precedent”.
ANandy: “Decisions are regularly overturned.”
As are legislative, “black-letter” laws. Your point?
ANandy: “Imagine an arrest based on a judicial decision.”
I don’t have to imagine it. I’ve been to law school. (Oh, sorry, forgot who I was talking to: I graduated from law school and passed the California bar exam.)
Libertarian1 almost 14 years ago
Apparently so much of this discussion comes down to defining “judicial activism”. It was popularized by Republicans after the Warren/Burger courts made Roe v Wade, Miranda, Griswold, Affirmative Action decisions. The complaint made was there was no exact word in the Constitution eg abortion, privacy etc to allow for those decisions. Judge made laws.
Then Democrats to counteract the success of the Republicans in convincing the public came up with a new original definition of activism eg overturning state laws.
Finally after being in charge for 40 years they brilliantly added another new definition. We were in charge for 40 years we made up hundreds of laws. Based on stare decisis now that you are in charge you must continue these laws in force or else that is judicial activism. Of course that is laughable and they know that when they say that. Does that mean in 40 years when they resume control they should not overturn Heller or CU because they are established? No liberal believes that.
Liberals overturn state laws with great regularity Loving, Lawrence, Brown v Ed, Griswold, etc etc. MM, of course there is hypocrisy by the Republicans just as there is with the Democrats.
A major difference now is when the liberals were activist the words eg abortion, privacy were not in the constitution. But now the words RKBA, free speech etc are there word for word.
myming almost 14 years ago
ANTHONY -
you’re such a talented person - i enjoy reading your retorts.
what is a “normal” day for you ?
riley05 almost 14 years ago
My days are varied, but often involve a fair amount of time at my computer…time that used to be used reading books and magazines, watching TV and movies, shopping, exchanging mail, debating…much of which now takes place on my computers instead.
Libertarian (I wish I could use the abbreviation “Lib”, but it just doesn’t work): Your post makes much more sense.
My favorite definition for “judicial activism”: A process by which a judge/Justice makes a ruling that you don’t like.
But as used by conservatives, I’d have to say that Roe v Wade comes closest to being judicial activism.
Regarding states’ rights, that was another issue I never fully appreciated until I went to law school…it was only then I realized that our country isn’t quite as cohesive and homogeneous as I had thought of it.
As such, I generally personally don’t have a hard time when a national law supplants state laws, even though I now understand the historical and Constitutional complications.
riley05 almost 14 years ago
ANandy, your statement “Stare decisis, precedent, etc does not make law” is not wrong because of semantics. It is wrong because you’re 180 degrees from understanding the concept.
A concept that has been explained to you in detail, but as usual, you don’t have the integrity to admit it, much less be thankful for the education. If you did, then perhaps you’d find that people don’t have to “wear” you “down”.
ANandy: “You can claim court decisions are making law all you care to. It doesn’t relieve the legislature from their responsibility of enacting law to meet the needs of court decisions, which is the case.”
Look, how many court cases are there every day on the appellate level and above? ALL of these cases become part of case law (which I notice you refused, as usual, to look up). Do you honestly believe the legislatures could produce that many laws daily? Just this once, try to face facts.
ANandy: “Handlesman does not, nor do you, understand that the States never had the Right.”
Once again, it is you that don’t understand, but can’t admit it. Until one of the Bill of Rights is incorporated (that is, made to apply to the states’ governments via the 14th amendment), the states can make laws that are incompatible with it.
This is the first time the 2nd amendment has been incorporated, an important event in the field of constitutional law.
riley05 almost 14 years ago
By the way, ANandy, in which decision did the Justices say the 2nd amendments authors were referring to weapons not even envisioned?
Couldn’t help but notice you ran away from this claim, but didn’t have the integrity to admit that there’s no such case.
Libertarian1 almost 14 years ago
In Heller, written by Scalia, and in McDonald, written by Alito, certain basic principles were enunciated. The RKBA is an individual right (9-0 in Heller). That is now settled. One can be unhappy with that but nevertheless it is the law.
Just as with the 1A there may be restrictions. Speech= time, place or manner. RKBA= felons, mentally ill, schools etc. Each of these restrictions/exceptions will be decided on a case by case basis by appellate courts.
The individual’s right to possess a handgun in his own home for self defense is now established. DC or Chicago may not in a blanket law disallow the ownership in every case. Settled law.
Everything else will be debated at great length.
Libertarian1 almost 14 years ago
Anthony
My reference to you and medicine was that you seemed much more favorable towards Obamacare than any other “practicing” physician I had ever met. Harvard professors were for it and city administrators but for the people in the trenches it is a disaster.
riley05 almost 14 years ago
Libertarian, agreed on the “settled law”…law defined by the courts.
Interestingly, though, based on the actual text of the 2nd amendment, the restrictions you list (felons, mentally ill) would be unconstitutional. The 2nd clearly states “the right of the people to keep and bear Arms, shall not be infringed”
“Shall not” doesn’t allow for restrictions.
And it doesn’t even refer to citizens, just “the people”. I don’t know if that term has been defined by the courts (more judicial activism), but as written, it includes everyone.
riley05 almost 14 years ago
ANandy: “What part of the generic term “ARMS” don’t you grasp?”
There is no such thing as a “generic term”, ANandy. Legal terms must be defined, and when the legislature didn’t do it, the courts must. One of the things the courts look to is “legislative intent”.
I contend that the 2nd amendment authors did not intend it to include arms such as flame throwers and tactical nukes. Any extension beyond the arms of the day requires further definition, or proof that the authors intended to include any possible weapon that might be invented in the future, including those beyond their wildest imagination.
That seems to be your position, yet you’re not surprisingly unable to support it.
riley05 almost 14 years ago
Oh, yeah, medical billing stuff. You might be right there, “Lib”.
Although I don’t think what got passed should be called “Obamacare”, since it bore little resemblance to what he originally proposed.
The first years of my medical career were in the Navy, where doctors don’t have any billing or ability-to-pay issues to worry about, and that pretty much became my attitude for my civilian career, too. Cost me…I lost an average of about $20K a year to non-payers, but I just decided not to worry about it. I still made a bunch of money.
Also, as an anesthesiologist, I didn’t have much say in patient selection…I just got whomever the surgeons had. Thus, for near-identical cases I’d make widely-varying amounts of money.
But as long as the overall inflow was nice, I didn’t sweat the details.
Libertarian1 almost 14 years ago
^^^Anthony
Of course the same thing could be said about the 1A. “Congress shall make no law…” Yet the first can be abridged by time place or manner. Way too many restrictions but that is now the law of the land.
As i said felons, mentally ill, schools, courts etc will all be acceptable restrictions.
Libertarian1 almost 14 years ago
Anthony Re Medical practice. Funny day to be talking about money. Free agent day in basketball and LBJ talking $70-90M.
When ObamaCare was passed he said not only would it not cost more money to insure the extra 47M but we would come out ahead. No sentient human actually believed that but when you read his rationale it became more ludicrous. In days when unions are negotiating 2% increases instead of the usual 8% Obama balanced the health care bill by proposing to cut physician payments by 20% the first year and more later.
When his poster child the Mayo Clinic of Arizona totally dropped out of medicare Congress suddenly realized Lincoln freed the slaves and physicians wouldn’t work for free. But the total savings from ObmaCare came from salary slash.
Brilliant solution. ObamaCare would be profitable by cutting physician saiaries. Totally separate bill not connected to obamaCare - simply put all that money right back in. If the 2 bills - obamacare and return of salaries were combined obamaCare would have, as predicted, lost billions.
MSM didn’t discuss that but of course WSJ and AMA did.
riley05 almost 14 years ago
“As i said felons, mentally ill, schools, courts etc will all be acceptable restrictions.”
More judicial activism.
What do you think about the “public option”, Lib? (Not counting that as a libertarian, you should be against any government program). Do y’not think it might have provided some competition and lowered insurance rates?
Another related issue: I remember looking at a patient’s hospital bill around 20 years ago…it showed the hospital’s costs, and what they charged. The one that stayed in my memory was the standard one liter bag of IV fluid. Cost the hospital less than a dollar; the patient (or his insurance company) was charged $21. Today, that same charge is over a hundred dollars, although I see online you can buy them for $2.80:
http://www.nextag.com/iv-saline-solution/compare-html
I was also thinking more about your comment about me being in favor of “Obamacare”…I also recall feeling that given how the present system is spiraling out of control, that any attempt to fix things would be better than doing the usual…i.e. nothing.
Re: Physician’s salaries…I often felt I was paid too much…but then I seem to have simpler needs than most.
riley05 almost 14 years ago
ANandy: “Anthony, where is a legislature in the constitutional process?”
They write black-letter law, Nandy, as opposed to the common, or case, law written by the judiciary, and the administrative law written by the executive branch.
I could have sworn we already covered this.
ANandy: “If legislative intent is worthwhile, framers intent is no less.”
I heartily agree. That’s why I asked you to back up your contention that they intended “arms” to include modern weaponry such as revolvers, flame throwers and tactical nukes.
ANandy: “the Federal powers must be FEW gives pause”
Agreed. Just one of the concepts I really learned for the first time in law school.
Libertarian1 almost 14 years ago
Anthony I guess you haven’t practice Medicine in 20 years. Times have changed. There are 8 hospital employees for every patient. The union staff belong to 1099 and make a living wage. Even with all those charges you saw the hospitals are going bankrupt anyway.
Did the framers mean freedom of the press to cover the internet? Did they actually write the 1A covers the internet?
riley05 almost 14 years ago
It’s been about 12 years, but if I were to return to it I’d still do it the same way. Otherwise it wouldn’t be fun. Maybe I’d only net $200K instead of $300K, but I’d get by.
“Did the framers mean freedom of the press to cover the internet? Did they actually write the 1A covers the internet?”
Of course not. So how should the Justices handle that fact? Via “judicial activism” or “judicial restraint”?
Your turn.
riley05 almost 14 years ago
Are you suggesting the framers’ intent was that the right to arm oneself included shoulder-mounted tactical nukes?
Regarding unreasonable searches, you can assume that, if you’re completely ignorant of any Supreme Court decisions that have expanded the concept to modern-day situations. You know, judicial activism.
(Of course, you’d also have to ignore the fact that it applied to people not in buggies…like walking down the road, in their homes, etc., but that would ruin your lame attempt at analogy.)
Libertarian1 almost 14 years ago
Anthony If you have been away from the practice of medicine for 12 years you have missed some dramatic changes. Obviously, there is a huge difference between gross income and net after all expenses. For my field, expenses were 52% of gross. Take your numbers if your gross fell from $300,000 to $200,000 your net would have been less than $100,000. Teachers in NYC earn more than that and work 180 6 hour days. Again we have a difference in our use of the term judicial activism. If a law says a 6 bullet gun or a 10 bullet gun or an 18 bullet gun is OK. And the judge see a case where there is a 15 bullet gun, I don’t call that judicial activism for him to say 15 is OK. Judicial activism is for him to say it is not OK because he doesn’t like guns and is looking for any reason to say no.
riley05 almost 14 years ago
Fortunately, as an anesthesiologist, I had very little in the way of overhead. Just 6%, I think it was, to my billing service, insurance, license fee.
riley05 almost 14 years ago
I was using the term black-letter law to refer to laws passed by the legislature, not the judiciary or executive branch.
I see the reason for my nuclear weapon example flew right over your head. It was to point out the extreme example of what the term “bear arms” could lead to, once we decide that it isn’t limited to what the 2nd Amendment authors had in mind.
If I have the right (not privilege) to bear arms, and I no longer have to be in a militia, and that right shall not be infringed, then why can’t I carry around a nuke anywhere I want?
riley05 almost 14 years ago
No, ANandy, you haven’t answered. As soon as you claim the “bear arms” phrase is extendable to modern weaponry (via judicial activism), you either have to extend it to all modern arms, or create some arbitrary cut-off point…a point that didn’t exist when the Bill of Rights was written.
You’ve been unable to come up with such a point, or give a rationale for one, and lying about it won’t help.