Scalia's write-up

[Shoobee]

The issue with D.C. has been that it isn't a state and so some argue that it gets special treatment and doesn't fully fall under the Constitution (at least not when it's convient for it to not and when they think they can get away with it such as with guns). After all, as a non-state it doesn't ratify new amendments, nor can the 10A apply to it since it isn't a state. Seems like they want to try and treat it as a territory so that they can get more "freedom" to do what they want (and by "freedom" i mean politicians getting more power to ignore peoples rights when it suits them).

That's an interesting politcal position, that the DC should be treated in all ways like a territory rather than like a fully fledged state.

I am sure we will see a USSC ruling one way or the other on that before the 21st Century is over.

 

[Shoobee]

It really makes me wonder how one could determine that a sawed-off shotgun is NOT protected by the Second Amendment, but a handgun is. A shotgun of 18" would probably be ruled protected, but one of 16" would not. This logic is repugnant to the Second Amendment, and its intent. We have a right to keep and bear arms, and it is absolute! I don't understand how the justices mistake "...shall not be infringed," for "The Second Amendment is not absolute." The Founders would laught in the Justices' faces for speaking with such idiocy.

I suspect that since Scalia missed out on Viet Nam that therefore he never got to see any sawed off Japanese shotguns in use in Viet Nam by the US military. They work like a charm close up.

 

[Shoobee]

I have to side with Citizen on this... your quote talks about the judicial power of the United States...but you are neglecting a few things...

1) As noted by Citizen (more clearly than I was trying, IMO)... where is it said that the Supreme Court (or any of the Federal Courts) have the FINAL say on the Constitutionality of a law or government action? It is not stated plainly at all in Article 3.

2) The founders did not exactly feel that the courts would be the final opinion on the Constitution .. take a peek at the Federalist Papers #78 among others. We also have some of Jefferson's opinion on this:


3) Since I don't see in the the Article 3 anything that would indicate that the Federal Courts would have final "review" over legislation on the Federal or State level, I would politely suggest that the 10th Amendment "The powers 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." becomes operative pretty quickly.

You guys seem to agree because you either were not paying attention in high school government class when everyone else was taking the test on the Constitution, or else you went to public schools that did not teach it, or else you still cannot read plain English.

Just google the US Constitution and read it yourself, if you can.

 

[Citizen]

You guys seem to agree because you either were not paying attention in high school government class when everyone else was taking the test on the Constitution, or else you went to public schools that did not teach it, or else you still cannot read plain English.

Just google the US Constitution and read it yourself, if you can.

I think this is the whole point, Shoobee. Judicial powers did not include judicial review. Thus, the controversy.

There were lots of things I was taught by my high school history/government teacher that turned out to be not entirely accurate. Just because something is taught in a government school does not make it true. For example, my school taught slavery, slavery, slavery as the cause of the Civil War. Nobody mentioned that the northerners in control of congress raised tariffs to punitive levels on imports, adversely affecting a south heavily dependent on imports, which northern vultures, probably having instigated the tariffs in the first place, took advantage of by raising prices to match the tariffed goods. Nobody mentioned that Lincoln is on record as saying he didn't care about slavery either way, he wanted to hold the union together.

Same for state nullification of unconstitutional laws. Rarely, if ever mentioned. Despite the fact that at one point there was agitation in the north to secede over the federal fugitive slave law that required escaped slaves to be returned. Despite the fact that a few northern states nullified the fugitive slave act.

So, the issue is whether judicial review was ever included in judicial powers. Looking at it today from information easily available today would make it seem it was. Its become the norm. But, just because it became the norm doesn't mean it was always that way. My argument is that it was not--judicial review was not understood to be included in judicial powers.

 

[Shoobee]

I think this is the whole point, Shoobee. Judicial powers did not include judicial review. Thus, the controversy.

There were lots of things I was taught by my high school history/government teacher that turned out to be not entirely accurate. Just because something is taught in a government school does not make it true. For example, my school taught slavery, slavery, slavery as the cause of the Civil War. Nobody mentioned that the northerners in control of congress raised tariffs to punitive levels on imports, adversely affecting a south heavily dependent on imports, which northern vultures, probably having instigated the tariffs in the first place, took advantage of by raising prices to match the tariffed goods. Nobody mentioned that Lincoln is on record as saying he didn't care about slavery either way, he wanted to hold the union together.

Same for state nullification of unconstitutional laws. Rarely, if ever mentioned. Despite the fact that at one point there was agitation in the north to secede over the federal fugitive slave law that required escaped slaves to be returned. Despite the fact that a few northern states nullified the fugitive slave act.

So, the issue is whether judicial review was ever included in judicial powers. Looking at it today from information easily available today would make it seem it was. Its become the norm. But, just because it became the norm doesn't mean it was always that way. My argument is that it was not--judicial review was not understood to be included in judicial powers.

The USSC and the various Circuits Courts of Appeals are precisely courts of judicial review. They don't do anything else but judicial review.

You can take a look at US Title XXVIII in the US Code if you need a technical definition.

Article III of the US Constitution broadly establishes the US Supreme Court, and Title XXVIII codifies everything else regarding the judiciary.

Your layman's misinterpretation is a fun thought provoking nuance, but Title XXVIII is the definitive law.

That in simpler terms would have been what high school was trying to teach you, albeit without formal citations to the law.

You can become a philosophical Skeptic if you want and disbelieve everything. But it helps if you read first.

 

[KYGlockster]

Ummm, where in the Miller Decision did it say that a sawed-off shotgun was NOT protected by the Second Amendment?

Cite please ;-)

The Miller Decision actually held "In the absence of any evidence tending to show that possession or use of a 'shotgun having a barrel of less than eighteen inches in length' at this time has some reasonable relationship to the preservation or efficiency of a well regulated militia, we cannot say that the Second Amendment guarantees the right to keep and bear such an instrument."

In other words, the holding was that defendants need to provide evidence that a weapon had a reasonable relationship to militia use in order to make a Second Amendment claim.

The 'absence of any evidence' was because there was no evidence presented to the court. This was because the Defendant's attorney did not show up to argue the case. The Supreme Court remanded the case back down to the federal district court for "further proceedings", which never took place because the Defendant, Miller, was by that time deceased and the other defendant made a plea bargain leaving nobody to pursue the issue.

Virtually all judges looking at Miller get the holding wrong in this respect, including Scalia himself I might add. It is not because they are stupid, it is because an honest reading of Miller leads to the horrifying (to them) conclusion that fully-automatic machine guns would be protected by the Second Amendment.

Miller?

 

[carolina guy]

The USSC and the various Circuits Courts of Appeals are precisely courts of judicial review. They don't do anything else but judicial review.

You can take a look at US Title XXVIII in the US Code if you need a technical definition.

Article III of the US Constitution broadly establishes the US Supreme Court, and Title XXVIII codifies everything else regarding the judiciary.

Your layman's misinterpretation is a fun thought provoking nuance, but Title XXVIII is the definitive law.

That in simpler terms would have been what high school was trying to teach you, albeit without formal citations to the law.

You can become a philosophical Skeptic if you want and disbelieve everything. But it helps if you read first.

No need to be rude.

How about I just ask you directly, because I cannot find where the Constitution DIRECTLY mentions or authorizes "judicial review"...where is it stated?

Keep in mind that US Code did not address judicial review in the 1700's or 1800's because "Title 28" did not exist as such at that time.

From the GPO website:

The United States Code is the codification by subject matter of the general and permanent laws of the United States. It is divided by broad subjects into 51 titles and published by the Office of the Law Revision Counsel of the U.S. House of Representatives. The U.S. Code was first published in 1926. The next main edition was published in 1934, and subsequent main editions have been published every six years since 1934. In between editions, annual cumulative supplements are published in order to present the most current information.​

You appear to be arguing that after the fact publication provides the proof/justification for events before publication, but maybe I am wrong???

If Congress ALLOWS "judicial review" to take place through legislation (by using it's own powers to set the rules for the Federal Courts) then this means that the Congress can REMOVE the power of courts to exercise "judicial review". This doesn't sound like a Constitutional power if one branch can take it away from another so simply.

 

[carolina guy]

You guys seem to agree because you either were not paying attention in high school government class when everyone else was taking the test on the Constitution, or else you went to public schools that did not teach it, or else you still cannot read plain English.

Just google the US Constitution and read it yourself, if you can.

Is it necessary to be rude?

(*shrug*) BTW: You are wrong on all assumptions.

 

[Citizen]

The USSC and the various Circuits Courts of Appeals are precisely courts of judicial review. They don't do anything else but judicial review.

You can take a look at US Title XXVIII in the US Code if you need a technical definition.

Article III of the US Constitution broadly establishes the US Supreme Court, and Title XXVIII codifies everything else regarding the judiciary.

Your layman's misinterpretation is a fun thought provoking nuance, but Title XXVIII is the definitive law.

That in simpler terms would have been what high school was trying to teach you, albeit without formal citations to the law.

You can become a philosophical Skeptic if you want and disbelieve everything. But it helps if you read first.

Its a bit like whether the right to keep and bear arms includes the right carry concealed. Apparently, at the Founding, the RKBA was not thought to include CC because CC was considered something that criminals did.

Of course appellate courts have the power of judicial review. We're talking here about whether they have the power to judicially review rights. I am arguing that judicial review was not understood to include that power. Actually, we were arguing here whether SCOTUS is the final arbiter of rights, but we seem to have gotten off that point. Tell me again how we got here.

Here is Jefferson's thought's on the matter:

You seem to consider the judges as the ultimate arbiters of all constitutional questions; a very dangerous doctrine indeed, and one which would place us under the despotism of an oligarchy. Our judges are as honest as other men, and not more so. They have, with others, the same passions for party, for power, and the privilege of their corps.... Their power [is] the more dangerous as they are in office for life, and not responsible, as the other functionaries are, to the elective control. The Constitution has erected no such single tribunal, knowing that to whatever hands confided, with the corruptions of time and party, its members would become despots. It has more wisely made all the departments co-equal and co-sovereign within themselves.

See footnote #33 for the source: http://en.wikipedia.org/wiki/Marbury_vs_Madison