jcutonilli
Ultimate Member
- Mar 28, 2013
- 2,474
DC is not a state and the study period was 1991 to 2016, which is pre Shall Issue
Study Finds Shall Issue States have 9% increase in homicides
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DC is not a state and the study period was 1991 to 2016, which is pre Shall Issue
When I look at a study my first question is "who paid for it" usually studies are commissioned with the expected result communicated to the study author. I once sat in a meeting with senior management of my company, and a financial analyst. The analyst was asked to study a technical question. His reply was " what do you want the answer to be" Management was baffled and stated that they " just wanted to l know what the data showed". Analyst smiled smugly and replied that selection of the "data" was an option available to the study author and would determine the outcome. Data sets that don't support the narrative are excluded. The fine print (which is never cited in the headlines) describes what data was included and, if the study author has principles, what data was excluded and why.
I could probably craft a study proving bigfoot was alive and well and living with Elvis in Montanna. Doesn't make it true. That's why seemingly innocent calls by government to commission a study always frighten me. Without detailed descriptions of what the study parameters are its up to the whim of the study author and the person managing the work product for the Government. The author is beholden to the manager to fund the next study.
I could probably craft a study proving bigfoot was alive and well and living with Elvis in Montanna. Doesn't make it true. That's why seemingly innocent calls by government to commission a study always frighten me. Without detailed descriptions of what the study parameters are its up to the whim of the study author and the person managing the work product for the Government. The author is beholden to the manager to fund the next study.
kcbrown
Super Genius
- Jun 16, 2012
- 1,393
The second test determines the degree to which the law burdens or infringes the right to keep and bear arms. That much is plainly stated by multiple cases.
But burden is the same as infringement by the plain meaning of the term "infringe". The definition of "infringe" from the founding period, per Samuel Johnson's A dictionary of the English Language, is:
A law that burdens the right to keep and bear arms clearly infringes per the second definition above ("to hinder").
Yes, but that does nothing to contradict the stated approach taken by the court, which is that which I cited. Put another way, what I'm showing is the approach the courts in general are taking when applying "scrutiny".
But Kachalsky wasn't, and that's the other case I cited. There are more that I'll be happy to dig up if you insist.
That's what the courts have often done, but it's nonsensical. What's the point of assuming, without deciding, that the law infringes upon the right if the court has already decided that the law doesn't infringe upon the right?
So the deal is this: either the courts are, as they themselves claim, determining infringement first and then using scrutiny to decide whether or not the infringement should be allowed to stand, and are thus in direct contravention of a Constitutional command, or they're using scrutiny to determine whether or not infringement is present, in which case they're violating the rules of statutory construction (because according to those rules, if you've determined the plain meaning of the term and it's unambiguous, then you're done -- and the definition of "infringe" is both unambiguous and has nothing to do with scrutiny tests).
--
But if your claim truly is that the courts have decided that the law doesn't infringe upon the right before going forth with a scrutiny test, then it follows that your public safety arguments would be worthless, because those arguments cannot make any difference if the court isn't going to decide the case based on a scrutiny test in the first place.
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jcutonilli
Ultimate Member
- Mar 28, 2013
- 2,474
Burden is not the same as infringement. Courts use modern English definitions in their writing although it does not really matter in this case. https://www.merriam-webster.com/dictionary/burden
As stated previously, the first test is to determine if circumstances pertain to the 2A (Is this a 2A issue). They are evaluating if the duty or responsibility of the right applies to the circumstances in question. They are evaluating if some kind of load is placed on the 2A. In Kachalsky, the court assumed that there was some kind of duty to the 2A that needed to be evaluated, while the Peruta and Kolbe courts found that there was no load, duty or responsibility that needed to be evaluated.
Courts only decide what is necessary to reach an opinion. If the answer is that the circumstances are outside the limits of the right, then it does not really matter if there is some kind of burden on the right.
As stated previously, the first test is to determine if circumstances pertain to the 2A (Is this a 2A issue). They are evaluating if the duty or responsibility of the right applies to the circumstances in question. They are evaluating if some kind of load is placed on the 2A. In Kachalsky, the court assumed that there was some kind of duty to the 2A that needed to be evaluated, while the Peruta and Kolbe courts found that there was no load, duty or responsibility that needed to be evaluated.
Courts only decide what is necessary to reach an opinion. If the answer is that the circumstances are outside the limits of the right, then it does not really matter if there is some kind of burden on the right.
kcbrown
Super Genius
- Jun 16, 2012
- 1,393
You're kidding, right? Okay, fine, I guess I have to spell it out for you.
What matters is the original meaning of the term "infringe" because that's what the authors of the Constitution used.
- Infringe: to hinder
- Hinder: to obstruct ; to stop ; to let ; to impede
- Burden: to load ; to incumber
"Infringe" and "burden" are synonymous. They're the same.
Yes, in their writing. But that's not what's at issue here. What's at issue is the meaning of the 2nd Amendment. And that wasn't written by the courts. It was written by the founders, back at the time of the founding. The meaning of the term "infringe" is that which the founders understood, not what the courts think it should mean today.
Load == burden == infringement.
You also make the mistake of using the noun definition of the word when the courts are using the verb, which has the following modern definition:
If you insist that, somehow, the modern meaning of "burden" does not materially intersect with the original meaning of "infringe", that is on you to prove. The above shows so much similarity between them that for practical purposes, and especially as applied here, they are identical.
jcutonilli
Ultimate Member
- Mar 28, 2013
- 2,474
The original meaning and the current meaning of infringe is essentially the same. It is To violate; to break laws or contracts. Why did you delete that definition that you posted in the previous post? It is exactly what it meant.
The word "burden" is not found in the 2A
Neither the original meaning you have referenced nor the modern definition of burden indicates that it means to incumber.
The word "burden" is not found in the 2A
Neither the original meaning you have referenced nor the modern definition of burden indicates that it means to incumber.
kcbrown
Super Genius
- Jun 16, 2012
- 1,393
So you think courts can legitimately escape the intent of the Constitution merely by using different words? Really??
The original meaning as conveyed by the text of the 2nd Amendment is all that matters. The dictionary of the time makes it plain that "infringe" includes "to impede". Moreover, the dictionary references make it clear that the original meaning of "burden" also includes "to impede", thus making them the same thing. But regardless, even the modern meaning of the verb "burden" implies "impede", i.e. both of those terms share the same implication: making something harder than it would be otherwise.
Uh, exactly what do you think "see encumber" means???
i admire your tenacity here, and realize that your training makes conceding an argument essentially off-limits. It's a shame we don't have an impartial judge in front of us to make the decision as to which of our arguments is more compelling
Ok here is my expert analysis as a 40 year old male:
Lived in Baltimore County from 1980-2013
Lived in Tampa, FL from 2013- Present
Have traveled through and vacationed in 38 states. Have been back to visit family in Baltimore County off and on the last few years.
Have had a FL Permit since 2014 and carry everyday. No one that I know that has a Permit WANTS TO LOSE THE PERMIT, so we are on average more law-abiding than the police and are taught not to draw unless we literally have no other options.
"May-Issue" states have squeegee boy extortion rackets, "Shall-Issue" states do not. "May-Issue" states have 6 "gentleman" from West Baltimore attacking patrons of beach side bars in Baltimore County with baseball bats asking "who's next?".........Shall-Issue states do not
Maryland is the most dangerous state I have ever lived in or visited, hands down. It's funny, but mostly sad, that the state that needs concealed carry the most doesn't have it.
At the end of the day Concealed Carry saves lives.......just ask this Florida Deputy about it, if that was a Maryland cop he would have died. See the link below:
https://abcnews.go.com/US/video-shows-passerby-shooting-florida-deputys-attacker/story?id=46143376
Lived in Baltimore County from 1980-2013
Lived in Tampa, FL from 2013- Present
Have traveled through and vacationed in 38 states. Have been back to visit family in Baltimore County off and on the last few years.
Have had a FL Permit since 2014 and carry everyday. No one that I know that has a Permit WANTS TO LOSE THE PERMIT, so we are on average more law-abiding than the police and are taught not to draw unless we literally have no other options.
"May-Issue" states have squeegee boy extortion rackets, "Shall-Issue" states do not. "May-Issue" states have 6 "gentleman" from West Baltimore attacking patrons of beach side bars in Baltimore County with baseball bats asking "who's next?".........Shall-Issue states do not
Maryland is the most dangerous state I have ever lived in or visited, hands down. It's funny, but mostly sad, that the state that needs concealed carry the most doesn't have it.
At the end of the day Concealed Carry saves lives.......just ask this Florida Deputy about it, if that was a Maryland cop he would have died. See the link below:
https://abcnews.go.com/US/video-shows-passerby-shooting-florida-deputys-attacker/story?id=46143376
jcutonilli
Ultimate Member
- Mar 28, 2013
- 2,474
The courts are not trying to escape the intent of the Constitution by using different words. They are using different words to express different ideas and are used in a legal context. You need to look at the definitions in this context and these legal definitions can be found toward the bottom of the screen.
https://www.merriam-webster.com/dictionary/infringe
Infringement is about violations of laws or rights
https://www.merriam-webster.com/dictionary/burden
burden is about duty, obligation, or responsibility
As I continue to maintain, the first test assesses whether there is any responsibility to further evaluate the right. It does not evaluate if there are any violations of the right, which describes as an infringement. The second test determines infringement.
kcbrown
Super Genius
- Jun 16, 2012
- 1,393
But the only idea that matters is whether or not the law in question infringes upon the right, as understood by the founding generation. Yes, it makes sense to ask whether the law in question operates in the same arena as the right itself (which involves the scope of the right), which I believe is the first test you refer to, since a law that does not operate in the same arena logically cannot infringe upon the right.
But once it does operate in the same arena, the only question left is whether or not the law in question impedes exercise of the right. That is not a question that scrutiny can answer. Whether or not a law impedes exercise of the right is independent of whether or not the law protects public safety (or any other important or compelling government interest). A law that protects public safety can impede exercise of the right, or it can avoid impeding it. Similarly, a law that fails to protect public safety can impede exercise of the right or just as easily not impede exercise of the right. They are completely independent. Therefore, whether, or even the degree to which, the law protects public safety or furthers any government interest is irrelevant to the question of whether or not the law infringes upon the right.
But whether you say "infringe", or "hinder", or even "burden", it is the effect on the right that matters. A law that burdens the right is one that makes the right more difficult to exercise, as indicated by the modern dictionary (remember, it is the verb's definition that matters here). A law that infringes upon the right is likewise one that makes the right more difficult to exercise. This is all from the plain real-world meaning of the word as understood by the founding generation, as indicated by Johnson's dictionary of the era. That means they refer to the same thing in practice. It is ultimately the real-world effects that matter, whatever those effects are called. The purpose of the words in the Constitution is to convey real-world meaning about real-world effects.
So to insist that the application of scrutiny, after a burden or infringement on the right has been determined to exist, is a legitimate means of determining whether or not the law should be allowed to stand, is to insist that it is permissible for the judiciary to ignore the direct and unequivocal Constitutional command that the right shall not be infringed. When a law impedes (interferes with, slows, imposes upon, etc.) exercise of the right, the Constitutional command is being violated, period, and the law thus cannot be allowed to stand without remaining in violation of the Constitutional command.
I realize that law can be complicated, and that a technique of litigation is to make something appear more complicated than it is so as to persuade the listener to one's point of view. But the above is simple, straightforward, and to the point, just as the Constitutional command is. It is a disservice of the highest order to mince words for the purpose of obscuring the proper and sensible meaning of a foundational work like the Constitution. And while I appreciate the need to not oversimplify it, it is at least as much of a disservice to overcomplicate it. It is the latter that I believe the courts have done, for political purposes.
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jcutonilli
Ultimate Member
- Mar 28, 2013
- 2,474
The Constitution created a system where one way to resolve the question of infringing upon our rights is through our court system. If you want to use the court system to resolve the issue then the only thing that matters is how the court system resolves these issues.
The courts have developed a number of methodologies to help them resolve these issues. One problem that arises is how to actually interpret the Constitution. https://en.wikipedia.org/wiki/Judicial_interpretation The Constitution does not specify how courts are supposed to interpret itself. There are many schools of thought and none of them are used exclusively. Originalism (https://en.wikipedia.org/wiki/Originalism) is certainly one way to interpret it, but it is not the only way.
Once you understand what the Constitution means you then need to perform a judicial review. https://en.wikipedia.org/wiki/Judicial_review_in_the_United_States There are a number of ways to conduct this review, but the main way the court uses to perform this review is through the tiers of scrutiny. Text, history and tradition is another way. Originalists tend to disfavor the scrutiny approach when it comes to fundamental rights, which may be one reason Scalia wrote Heller the way he did.
To say "That is not a question that scrutiny can answer." is to completely misunderstand the process. It is the main way courts use to evaluate the constitutionality of various laws and is likely one of the reasons why the lower courts favor this approach. Cases where text, history, and tradition are the preferred method of review rarely get litigated and the courts have little familiarity with that method.
To say "whether the law protects public safety is irrelevant to the question of whether or not the law infringes upon the right." is to completely ignore the text, history, and traditions that existed at the time of our founding. Heller contains numerous historic examples of where the right is restricted based on public safety.
I have looked at the scrutiny process as well as the text, history, and tradition of the right. The problem that I see with the past cases is an oversimplification of public safety. There is no determination of what public safety actually means; the role the government plays in it or who actually provides it. One of the traditional roles of the militia was law enforcement and an even longer tradition of the people themselves helping to provide public safety. Police did not exist at the time and even today the government has no responsibility to protect its individual citizens. How can the government have a substantial interest in something it has no responsibility for? The past cases all concede public safety is a substantial government interest and turn the determination of public safety into a political exercise.
You see a problem with the courts because they are coming up with bad results.
I see the biggest problem the poor arguments that are made. I believe that the courts, while somewhat biased, will likely determine the correct answer, if the case is correctly argued. Certain judges will make it hard, while others make it easy to win. I do not see any other way to feasibly get rid of infringing laws.
The courts have developed a number of methodologies to help them resolve these issues. One problem that arises is how to actually interpret the Constitution. https://en.wikipedia.org/wiki/Judicial_interpretation The Constitution does not specify how courts are supposed to interpret itself. There are many schools of thought and none of them are used exclusively. Originalism (https://en.wikipedia.org/wiki/Originalism) is certainly one way to interpret it, but it is not the only way.
Once you understand what the Constitution means you then need to perform a judicial review. https://en.wikipedia.org/wiki/Judicial_review_in_the_United_States There are a number of ways to conduct this review, but the main way the court uses to perform this review is through the tiers of scrutiny. Text, history and tradition is another way. Originalists tend to disfavor the scrutiny approach when it comes to fundamental rights, which may be one reason Scalia wrote Heller the way he did.
To say "That is not a question that scrutiny can answer." is to completely misunderstand the process. It is the main way courts use to evaluate the constitutionality of various laws and is likely one of the reasons why the lower courts favor this approach. Cases where text, history, and tradition are the preferred method of review rarely get litigated and the courts have little familiarity with that method.
To say "whether the law protects public safety is irrelevant to the question of whether or not the law infringes upon the right." is to completely ignore the text, history, and traditions that existed at the time of our founding. Heller contains numerous historic examples of where the right is restricted based on public safety.
I have looked at the scrutiny process as well as the text, history, and tradition of the right. The problem that I see with the past cases is an oversimplification of public safety. There is no determination of what public safety actually means; the role the government plays in it or who actually provides it. One of the traditional roles of the militia was law enforcement and an even longer tradition of the people themselves helping to provide public safety. Police did not exist at the time and even today the government has no responsibility to protect its individual citizens. How can the government have a substantial interest in something it has no responsibility for? The past cases all concede public safety is a substantial government interest and turn the determination of public safety into a political exercise.
You see a problem with the courts because they are coming up with bad results.
I see the biggest problem the poor arguments that are made. I believe that the courts, while somewhat biased, will likely determine the correct answer, if the case is correctly argued. Certain judges will make it hard, while others make it easy to win. I do not see any other way to feasibly get rid of infringing laws.
kcbrown
Super Genius
- Jun 16, 2012
- 1,393
That's true as a practical matter, of course, but that does nothing to diminish my point. Nothing precludes a mechanism that you're forced to use to resolve an issue from being incorrectly operated. And so it is here, or so I assert.
That's true, but there's only one correct way to attempt to interpret it. Allow me to explain.
The Constitution is a written document, a piece of written communication. The purpose of communication is to convey ideas as envisioned by the authors. An author wouldn't bother writing a document for others to read if he believed that the readers would simply interpret it in whatever fashion they wished. There would be no point -- readers already know how and what they want to think. Moreover, when an author is still alive and someone is uncertain as to the meaning the author intended, the natural thing for that person to do is to ask the author to clarify. If the purpose of communication were not to convey the author's intended meaning, the recipient of that communication would never bother to ask for clarification in the first place.
Having established that the purpose of communication is to convey the author's intent, it follows that the proper meaning of the communication must be that which the author intended. No other meaning is legitimate. That an author is no longer present does nothing to diminish the duty the reader has to attempt to ascertain, to the degree he can, what the author's original intended meaning was.
The Constitution is no different in this regard.
The Supreme Court recognized this when it said that Constitutional rights are enshrined with the scope they were understood to have when the people adopted them. The authors of the Constitution were of the founding generation, and their intended audience was likewise of the founding generation. The authors knew that their document would be the bedrock of the nation for decades at least, so they knew to attempt to write it with as much clarity as they could muster, but because it was the founding generation that was to establish the country on the basis of the Constitution, that generation had to be the primary target of the Constitution's messages. This is why we place importance upon the understanding of the founding generation, especially when we lack more direct evidence of the intended meaning of the authors. Those two things, that the authors were of the founding generation and that the primary audience was also of the founding generation, are why founding-era meanings are of prime importance.
Therefore, the proper way to interpret the Constitution is the same way one would attempt to interpret any historical document in an attempt to ascertain the meaning the original authors intended. The purpose of the inquiry is, and must be, to ascertain that original intended meaning. For given the entire purpose of communication, nothing else matters.
This is especially true because the Constitution was authored in order to achieve a real-world effect: the establishment of a country with certain characteristics that the authors believed to be desirable. This makes the Constitution as a written work akin to a set of instructions, not merely some theoretical treatise.
Therefore, it is intellectually dishonest to attempt to interpret the Constitution in any other manner, as to do so is to ascribe the meaning that the reader, and not the author, intended.
This misunderstands my entire point.
There are two things that matter for evaluating infringement: the scope of the right, and the scope of the restriction. When those two intersect, you have infringement.
If the founding generation believed that a restriction did not infringe upon the right, it is because they believed that the scope of the right does not extend to that which the law restricted.
I don't disagree with this. What I disagree with is the claim that arguing this will, firstly, cause us to win where previously we have lost and, secondly, not encode into precedent the notion that infringement is allowable when we lose this "public safety" argument.
No, I see a problem with the courts because of how they're coming up with bad results. Scrutiny is not an historical inquiry and had not even been invented when the founders drafted the Constitution. It asks nothing about historical meaning or understanding. But because infringement turns exclusively on that understanding, it follows that scrutiny is wholly unsuited for determining infringement.
I'm skeptical. How is it that nearly all of the arguments made are poor, such that the courts decide against us? The arguments cover a huge amount of ground and are highly diverse in their approach. And yet, they almost always fail.
When you almost always get the same result no matter how you argue, it follows that it's likely something other than the argument that is driving the result.
jcutonilli
Ultimate Member
- Mar 28, 2013
- 2,474
The Constitution is not simply a communication, it is the law. Our laws are based on a common law system. See https://en.wikipedia.org/wiki/Common_law
One of its principles is that there is a evolution over time in the law. This is one of the reasons not everyone is an Originalist. Additionally the Constitution was approved by a group. There are likely numerous interpretations because different people read the same language differently. Whose interpretation is the controlling interpretation?
One of the problems with originalism is how to deal with changes. For example AR's were not invented at the founding so a strict interpretation might find that it is not part of the right because there was no possible way to envision it. A different interpretation might find similarities with existing military small arms and find that they are part of the right. How do you handle updated public safety issues, which may or may not be part of the right?
You may want to look at this event https://www.heritage.org/courts/eve...rutiny-it-time-the-supreme-court-abandon-them
I would hesitate to say all of the arguments are poor. The real problem is how similar they all are. They cite Heller/McDonald, introduce different conflicting information so that the case appears political, concede that public safety is a substantial government objective, ignore any public safety benefits of individuals having arms and simply proclaim "its my right". The exact wording and circumstances change between cases but the arguments are very similar. Even the lawyers are consistent. Typically 4 firms handle the majority of the cases.
One of its principles is that there is a evolution over time in the law. This is one of the reasons not everyone is an Originalist. Additionally the Constitution was approved by a group. There are likely numerous interpretations because different people read the same language differently. Whose interpretation is the controlling interpretation?
One of the problems with originalism is how to deal with changes. For example AR's were not invented at the founding so a strict interpretation might find that it is not part of the right because there was no possible way to envision it. A different interpretation might find similarities with existing military small arms and find that they are part of the right. How do you handle updated public safety issues, which may or may not be part of the right?
You may want to look at this event https://www.heritage.org/courts/eve...rutiny-it-time-the-supreme-court-abandon-them
I would hesitate to say all of the arguments are poor. The real problem is how similar they all are. They cite Heller/McDonald, introduce different conflicting information so that the case appears political, concede that public safety is a substantial government objective, ignore any public safety benefits of individuals having arms and simply proclaim "its my right". The exact wording and circumstances change between cases but the arguments are very similar. Even the lawyers are consistent. Typically 4 firms handle the majority of the cases.
kcbrown
Super Genius
- Jun 16, 2012
- 1,393
Yes, which makes it a really important bit of communication. That just makes it all the more important to understand its original intended meaning.
But the Constitution isn't common law, it's statutory law.
The laws themselves evolve over time as legislative bodies make changes to them. But it's quite another thing to claim that the valid interpretation of them evolves over time, and especially to claim that the valid interpretation at a given time depends on the sensibilities of the time of interpretation and not the sensibilities of the time of authorship.
But let's suppose the latter claim is actually true. If it's good enough for interpreting the Constitution, then it's good enough for interpreting statutory law, right? Therefore, when the judiciary is faced with interpreting the marriage law that says marriage is a union between a man and a woman, it's perfectly acceptable for the judiciary to interpret "man" and "woman" to mean "anyone who self-identifies as a man" and "anyone who self-identifies as a woman" respectively, right?
Or how about when interpreting a hypothetical statute, that says "the Library of Congress shall preserve all awful works", and which was written in the founding era? Back then, the term "awful" meant "That which strikes with awe, or fills with reverence". But now its primary meaning is "extremely disagreeable or objectionable". If interpreted with modern sensibilities, that law would command the Library of Congress to preserve the worst works, while the original intent was clearly for it to preserve the best works.
Or how about we apply this "flexible" approach of interpretation to the Constitution, thus making it perfectly valid for the judiciary to say "times have changed and we have this madman Trump in the White House, someone who cannot be trusted with the power of veto and who will veto sensible laws passed by Congress, so our interpretation of the Constitution now is that it grants the judiciary, not the executive, veto power over laws passed by Congress, and Congress shall henceforth submit those laws to the Supreme Court for this purpose"? Or what about "in modern times, political tensions are so high and the division so strong that the times demand that politicians no longer be entrusted with the public good, and therefore we now interpret the power granted by the 'cases and controversies' clause to include the power to craft and unilaterally impose legislation, for the good of the republic"?
If we're going to insist on interpreting the Constitution with "modern sensibilities", why not go all in on it, and allow for "interpretation" of it in whatever way happens to suit the needs and desires of the time, or even of the individual case? Why not, for instance, "interpret" the First Amendment as protecting only politically correct speech, so as to deal with the modern problem of people who need "safe spaces" and who get "triggered" when they hear words or phrases they find disagreeable? Why not, for instance, "interpret" the 4th Amendment as not existing at all, to deal with the "modern" problem of ineffective law enforcement? Why not "interpret" the 6th Amendment as no longer being relevant, so as to deal with the "modern" problem of overloaded court systems? Or do the same with the 5th Amendment to deal with the "modern" problem of people hiding behind it to protect their misdeeds? Why not just eliminate the entire bill of rights by way of "interpretation" so as to pave the way for the more "modern" communist/socialist system of government in favor of this outdated and antiquated "representative republic"? We shouldn't have to amend the Constitution to change the form of government, because that's just an old, antiquated way of doing things, not a "modern" approach, right?
And if interpretation on the basis of modern sensibilities is so important that we insist on doing so with the most fundamental foundational document we have (the Constitution), then why not ditch stare decisis in its entirety so as to enable courts to interpret all law and all case law to suit the specific modern case before them without having to deal with the baggage of the past? Why not likewise apply the same approach to the federal rules of civil procedure? If it's good enough for the Constitution, it's clearly good enough for all law, including that of a statutory and judicial nature, right?
Whether interpretation of an historic work is grounded in whatever the modern sensibilities are or is wholly disconnected from any reference, it is still arbitrary in either case because the changes in sensibilities over time are unpredictable and such sensibilities are a moving target. An unpredictable, moving target is arbitrary, so there is no discernible difference between grounding interpretation in that moving target versus allowing it to be wholly ungrounded. There is scant difference between "interpreting" a law so as to force it to conform to "modern sensibilities", and "interpreting" that law so that it means what you want it to mean.
No. The power to interpret and decide is not the power to define. Laws mean that which the original authors intended, just like any communication means that which its originators intended. Law is no different in this regard, which is precisely why the rules of statutory construction are as they are, why courts go to the trouble of examining the legislative record to determine intent, etc. If courts are loathe to interpret statutory laws in such a "flexible" manner, and are insistent upon ascertaining original legislative intent, how is it that the Constitution deserves less?
If the issue is with the changing times, the founders created a mechanism for addressing that: the amendment process. Changing times and circumstances is what that's for. That leaves absolutely no excuse at all for interpreting the Constitution with modern sensibilities under any circumstance save for when the historical record is utterly silent in every way, including the meanings of the words used, on the question before the court.
Here's a question for you: why did Congress see the need to pass a Constitutional Amendment in order to forbid manufacture, sale, or transportation of intoxicating liquors? Congress later passed a law doing precisely that with respect to a number of types of drugs, because they obviously didn't believe they needed to pass a Constitutional amendment. What changed? Well, we both know what changed: Wickard v Filburn. But the Constitution hadn't changed. What is it about the time of Wickard v Filburn (1942) that is so different from the time of the 18th Amendment (1919), a mere 23 years difference (the equivalent of comparing 1997 to now), that demands a Constitutional amendment before but allows standard legislation to accomplish the same thing after?
No, I think the record is quite plain on this: the courts, including the Supreme Court, have been highly political with respect to their interpretation of the Constitution, in a way that they appear to be reluctant to apply to normal statutes. And why should that be a surprise? The Constitution is the overarching foundational document that is the ultimate control on government, including the judiciary, while statutes don't rise to nearly that level of inconvenience for the judiciary or politicians in general.
This is why it is the overall understanding of the founding generation that must be considered, when the overall understanding of the original authors cannot be ascertained.
By looking at original intent. If you can't ascertain the specifics from the historical record, then you have to drop back to more general principles, i.e. the principles upon which the founders based their works.
About the only weapons that are materially different from those available to the founders in terms of their overall effects are nuclear and biological weapons, and I'm not actually certain of the latter (for all I know, warring nations might well have used some form of biological weapons on each other back in the founding era).
Put another way, it's only when there's absolutely no guidance of any kind whatsoever in the historical record that one can legitimately invoke modern sensibilities in interpreting the law.
That looks fascinating. Thanks!
If they're good solid arguments, then why should their similarity make any difference?
You're making my point for me here. The quality of the arguments covers a wide range, and yet the end result is almost unilaterally the same. When you get the same output almost irrespective of the inputs, it means that the outputs are almost certainly not dependent upon the inputs. As applied here, it means that we'll get the same results independent of the arguments we make, and that means there's no good reason to believe that using the argument you propose (as valid as I think it is, absent the problem of it tacitly acknowledging that infringement is allowable in the event the public safety argument doesn't go your way) will get us any different results.
Frankly, I think we should try your argument anyway, because what can it hurt in the face of such an apparently hostile lower judiciary?
Wait right there. You're implying here that conceding that public safety is a substantial government objective is a bad idea. Why? How could refusal to concede that possibly not backfire on us? Can you imagine the reaction of a judge to the implied prospect that public safety is not a substantial government objective? Methinks we'd be laughed out of the courtroom.
Please explain how that position could possibly be beneficial to the outcome.
Not that I necessarily personally disagree with you on this. In my opinion, public safety is the responsibility of the citizenry, not the government. The government's purpose is to secure liberty, to regulate commerce, to mediate disputes, etc. But how to convince a judiciary that has treated "public safety" as an important government interest for at least the past few decades? I suppose you can't convince without raising the argument in the first place, but I don't see how one is likely to win with such an argument.
That's true as far as it goes, but nevertheless, the arguments are still broad in scope and kind, even if they don't incorporate some things, and despite that, we almost always lose.
What you're saying here amounts to the proclamation that we have to use exactly the right argument in order to win, that failure to do so gets us a loss. This is the "Goldilocks standard", that says that the argument has to be exactly right in order to win. You don't see that as evidence of bias on the part of the judiciary? Why is that standard not applied equally to the government, such that it has to use exactly the right argument in order to win, and it would lose otherwise? Why is that standard not applied to all other arenas of litigation?
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wjackcooper
Active Member
- Feb 9, 2011
- 689
Put simply, Heller says that ratification of the 2nd Amd. (an enumerated right) settled the “public safety” v. “keep and bear” interest - balancing question in favor of keep & bear;* although longstanding prohibitions were not to be put in “doubt.”**
Put another way . . . what the studies show and scrutiny levels are not relevant issues, except in the minds of those Progressive Judges who are searching for a way to undermine Heller.***
https://www.scotusblog.com/2008/06/heller-quotes-from-the-majority/
*“We know of no other enumerated constitutional right whose core protection has been subjected to a freestanding "interest-balancing’ approach. The very enumeration of the right takes out of the hands of government – even the Third Branch of Government – the power to decide on a case-by-case basis whether the right is really worth insisting upon. (63 – 64).
**“Although we do not undertake an exhaustive historical analysis today of the full scope of the Second Amendment, nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms.” (54)
*** “In my view, Heller and McDonald leave little doubt that courts are to assess gun bans and regulations based on text, history, and tradition, not by a balancing test such as strict or intermediate scrutiny.” Judge (now Justice) Kavanagh dissenting in Heller 11. 670 F 3d 1211 at 1271.
Regards
Jack
Put another way . . . what the studies show and scrutiny levels are not relevant issues, except in the minds of those Progressive Judges who are searching for a way to undermine Heller.***
https://www.scotusblog.com/2008/06/heller-quotes-from-the-majority/
*“We know of no other enumerated constitutional right whose core protection has been subjected to a freestanding "interest-balancing’ approach. The very enumeration of the right takes out of the hands of government – even the Third Branch of Government – the power to decide on a case-by-case basis whether the right is really worth insisting upon. (63 – 64).
**“Although we do not undertake an exhaustive historical analysis today of the full scope of the Second Amendment, nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms.” (54)
*** “In my view, Heller and McDonald leave little doubt that courts are to assess gun bans and regulations based on text, history, and tradition, not by a balancing test such as strict or intermediate scrutiny.” Judge (now Justice) Kavanagh dissenting in Heller 11. 670 F 3d 1211 at 1271.
Regards
Jack
jcutonilli
Ultimate Member
- Mar 28, 2013
- 2,474
Heller does not use the term "public safety"
The interest balancing approach proposed by Breyer is ", explicitly at least, none of the traditionally expressed levels (strict scrutiny, intermediate scrutiny, rational basis), but rather a judge-empowering “interest-balancing inquiry” that “asks whether the statute burdens a protected interest in a way or to an extent that is out of proportion to the statute’s salutary effects upon other important governmental interests.”
Heller states that "Under any of the standards of scrutiny that we have applied to enumerated constitutional rights,[Footnote 27] banning from the home “the most preferred firearm in the nation to ‘keep’ and use for protection of one’s home and family,” 478 F. 3d, at 400, would fail constitutional muster." The problem is that they did not really explain why it would fail intermediate scrutiny.
These traditionally expressed levels of scrutiny have been used with other enumerated rights. Scrutiny has not been explicitly ruled out by Heller/McDonald and SCOTUS has not provided any additional guidance.
jcutonilli
Ultimate Member
- Mar 28, 2013
- 2,474
The Constitution is not really statutory law it is constitutional law. It certainly does not define terms like many statues do. For example, the Constitution states that the right to keep and bear arms shall not be infringed, yet does not specify the extent of the right or even define what is considered an arm. This is where the common law part of the system comes in. The common law fills in the details. In Heller, there was no definitive place the court looked at to determine the extent of the right or what was considered an arm.
I am not trying to convince you that originalism is bad, I certainly understand the goals of originalism. I am trying to get you to understand that there are other methods and why the court may use some of these other methods.
While all the arguments made in other 2A cases are not poor, they are not good either. They contain lots of holes that allow the courts to sustain otherwise infringing laws. The similarity of the arguments propagates these holes to all of the cases allowing lots of losses to happen. It does not matter that the cases deal with different aspects of the 2A, the holes are still there, unresolved.
The problem with conceding public safety is a substantial government interest is the breadth of statement. Any aspect of public safety is apparently part of the goverment's interest. I am not arguing that the government had no interest in public safety. It certainly plays a role, but what is that role and is protecting individual citizens from being killed part of that right. I believe the case law is pretty clear, the governments role is a general one that provides police and courts to arrest and punish people. It does not provide protection to any individual citizen however. It is easy for a court to find that the law provides some aspect of public safety if you define it so generally almost anything applies.
The other side of public safety is who actually provides it. One of the missing arguments is that the people themselves provide part of it and protect a portion that cannot be provided by government. By restricting individuals, public safety is negatively affected. There is historical precedent that the people provide public safety.
My point is that there are lots of holes in the arguments that need to be better argued. It is abundantly clear that the courts are not going to make it easy to strike down infringing laws. We need to figure out the holes in the arguments and adjust them so that the court has no option but to strike down infringing laws.
I am not trying to convince you that originalism is bad, I certainly understand the goals of originalism. I am trying to get you to understand that there are other methods and why the court may use some of these other methods.
While all the arguments made in other 2A cases are not poor, they are not good either. They contain lots of holes that allow the courts to sustain otherwise infringing laws. The similarity of the arguments propagates these holes to all of the cases allowing lots of losses to happen. It does not matter that the cases deal with different aspects of the 2A, the holes are still there, unresolved.
The problem with conceding public safety is a substantial government interest is the breadth of statement. Any aspect of public safety is apparently part of the goverment's interest. I am not arguing that the government had no interest in public safety. It certainly plays a role, but what is that role and is protecting individual citizens from being killed part of that right. I believe the case law is pretty clear, the governments role is a general one that provides police and courts to arrest and punish people. It does not provide protection to any individual citizen however. It is easy for a court to find that the law provides some aspect of public safety if you define it so generally almost anything applies.
The other side of public safety is who actually provides it. One of the missing arguments is that the people themselves provide part of it and protect a portion that cannot be provided by government. By restricting individuals, public safety is negatively affected. There is historical precedent that the people provide public safety.
My point is that there are lots of holes in the arguments that need to be better argued. It is abundantly clear that the courts are not going to make it easy to strike down infringing laws. We need to figure out the holes in the arguments and adjust them so that the court has no option but to strike down infringing laws.
kcbrown
Super Genius
- Jun 16, 2012
- 1,393
Heh, well, yeah, that's true. I called it "statutory law" based on definitions such as here and here.
Most of the sources I've read that describe the term talk about how the distinguishing feature of statutory law is that it's written law crafted by a legislative type of body, as opposed to common law (precedent deriving from judicial decisions) or regulatory law (law written by the executive in response to authority delegated by the legislative body). And most certainly, the Constitution qualifies as "statutory law" in that respect, and really in all the ways that matter.
That's true, but it's not a distinguishing feature of statutory law. Laws passed during the founding era likewise didn't define terms. See, e.g., the alien and sedition acts. As such, I'm more inclined to say that if the Constitution were to be written now, it would define terms since that is now the custom for crafting law.
Moreover, and correct me if I'm wrong here, a statute defines a term when that term either differs from its plain meaning as understood at the time the statute was written, or when the plain meaning at that time was itself ambiguous (as can be the case if the the term had multiple definitions). Perhaps it does so also when the term is of critical import. Statutes don't define all words used within the statute, for obvious reasons, so they have to confine themselves to defining terms where doing so actually must be done for the statute to be understood properly.
The common law may provide a source of information about the way terms are used in the Constitution, of course, but as with all other sources, it needs to be from the same period. This is so because at the end of the day, it's still the original intended meaning that is to be ascertained, for the reasons I've already described.
This actually isn't entirely true. For instance:
District of Columbia v. Heller said:
Here we see the Court making use of Samuel Johnson's dictionary, among a couple of others. And while the Court didn't use a singular source for the meaning of "arms", all of the sources they used were period-specific.
It's not unexpected that the Court would reference multiple sources. In fact, that's to be expected, as it's what would be needed to understand most historical works. There's an entire field of study that deals with interpretation of historical works: philology.
Sure, I get that, and appreciate that. But my point is that because of what the Constitution is (a foundational written communication from the founders of the country), there is only one valid goal of Constitutional interpretation: ascertaining the original intended meaning of the Constitution. It's not like interpretation of historical works is a new thing, either -- we've been doing that for many decades, if not centuries, and as with any other such endeavor, we've gotten better at it over time. The methods for arriving at the original intended meaning of a work are reasonably well-understood by now.
I also appreciate that there may be some circumstances under which the original intended meaning might not be possible to ascertain as relates to a specific issue. My main point is that it is only after exhausting all methods of historical inquiry that a court should even begin to entertain the notion of applying modern sensibilities to the meaning of the Constitution as respects the issue before it. Prior to that point, the court must use historical inquiry, because it's the only approach that is capable of yielding the original intended meaning.
To put it simply, ascertaining the original intended meaning is the only valid goal to be pursued by the courts as regards the Constitution because it is the only goal that is consistent with the communicative purpose of creating that document in the first place.
And finally, at least in the arena of the 2nd Amendment, the courts have made it plain that they engage in the use of methods of scrutiny after determining, or assuming, that the law infringes (as per the meaning of the term as understood by the founders and/or the founding generation) upon the right, and that is plainly in contravention of a direct Constitutional command. And since the Constitution is the supreme law of the land, it follows that courts which do that are simply and plainly incorrect in doing so, for their duty is to uphold the Constitution, not to violate it or to allow violation of it.
Were we talking about some other discipline that the courts were having to contend with, e.g. computing, I might find it understandable that the courts would be getting things wrong here, would have widely varying opinions as to the meanings involved, etc. But this is the Constitution we're talking about here. It is the foundational work of the country, and has been in existence for over 230 years. It is supposed to be the primary and ultimate point of reference of the courts. If there's anything the courts should be a subject matter expert on, it is the meaning of the Constitution. And yet, they fail spectacularly at that, to the point that even now there is substantial disagreement on even the most basic concepts. In every other longstanding discipline, understanding improves over time and the areas of disagreement get ever more specific and minute. But with respect to the courts' understanding of and use of the Constitution, the opposite appears to have happened. This is an atrocious state of affairs, and speaks incredibly badly of the courts.
Would you be willing to point out some of these holes, aside perhaps from the concession of public safety as a substantial government interest?
Yes, exactly. But you can't counter that by not conceding that the government has a substantial interest in public safety. The opposition will rightly point out the logical implications of such a refusal (either the government has a substantial interest in public safety or it doesn't -- there's no middle ground there. So to not concede that it does is to either insist that it doesn't or to at least ignore decades of precedent that says that it does). Not conceding that the government has a substantial interest in public safety is a very different thing from arguing that the public safety the government has an interest in is incomplete to the point of placing the public in danger as regards the laws in question.
Yes, and I completely agree with you that we should be making that argument. I don't know if that argument has already been made, however, especially by amici.
But it needs to be done carefully, so as to not encode into precedent the notion that it's fine for a law to infringe upon the right as long as it doesn't negatively impact the actual safety of the public.
The problem as I see it is that there is no such thing as "the court has no option but ...". Courts always have the option. They can, and do, pick and choose what evidence they consider "persuasive", and do the same for arguments and yes, even precedent itself (the nice thing about precedents is that there are so many to choose from
). An argument that we find persuasive, and indeed that any rational objective individual would find persuasive, might not be persuasive to the court in question.I think the main issue here is that the Supreme Court has been utterly silent as all of this has been going on, and we're dealing with what amounts to a brand new area of litigation. It shouldn't be much of a surprise that courts will initially impose their own preferences in what amounts to a vacuum. We saw the same thing happen during the civil rights era. See, e.g., NAACP v Alabama. The difference between then and now is that the Supreme Court was actively involved in securing civil rights at that time, and regularly corrected lower courts when they erred, while the Court has done no such thing with respect to the right to arms. And when the parents are away, the children will play, as it were.
This study is so unsophisticated and uncontrolled for known huge variables in incarceration rates, and general national crime trends, which for example included gun homicide decrease of more than 60.
for example Connecticut did not increase incarceration as much in total but increased sentences and time served for prior felons who are >80% of a murder perps. Connecticut decrease persons incarcerated for minor offense but increased incarceration rates and length of sentences for serious crimes, and that lines up with Connecticut trends on violent crime -- whereas Connecticut gun laws do not line up with murder rates.
moreover these states that they contended have UBC, violent misdemeanor laws and may/no issue also had decreases on average in NON GUN murder clearly showing this was not about guns or gun law at all.
The OP;s cited study is uncontrolled junk. No one would pass peer review if it had been none in any other issue, or any other area of epidemiology.
that said I agree with you on public safety, in fact the argument being made by the new generation of gun banners is not" public safety," nor "public health" but a new regime called "population health." That new "population health" is an insanely broad assertion of legitimacy of government deploying all means, be it bans, taxes, or whatever to tweak and adjust behavior of the population.
We should also consider what is going on with justifications for cutting Second Amendment rights on the basis of population health mean for the First, and especially Fourth and Fifth Amendments.
Could you imagine a CDC study on the negative consequences of our US warrant requirements and exclusions, other evidenciary exclusions, our double jeopardy prohibition, our very high threshold for holding and treating the mentally ill against their will and our strong privacy regulations.
WE are outliers in the developed democracy world when it comes to extreme protections for Fourth, Fifth and First amendment rights and this can be easily proved to be "harmful" to population health.
