Kolbe en banc decision

clandestine said:

I.P. Check in aisle 6

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Dude, knock that off...you scared him away...and just when he was closing on 50

SWO Daddy said:

Article 5 convention is a horrible idea. I'd rather have a constitution written by the founders than the current state legislatures.

We're on a glideslope towards a bad place, but historically, that trajectory doesn't change without a fall.

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Invention time travel.. problem solved.

By the way the more you learn about our founders the less impressed you are likely to be. No 24 x 7 news cycle..Lots of white washing...


And they did Bork up a lot of things..


Anyway I rule out time travel as likely... And proceed from there..

kcbrown said:

That doesn't mean a whole lot. In the case where there's civil war first and "alteration" (more realistically, a complete rewrite) of the Constitution after, the rules for that alteration will be made up on the spot. Making up rules on the spot is the equivalent of not starting off with any rules in the first place. The victors can choose to use the existing Article V rules, of course, but that is a choice. A rule which is optional is not really a rule, now is it?




Well, yes, that much is clear, and I'm certainly not arguing otherwise. However, an Article V Convention would logically occur under the context where specific problems with the Constitution have been identified and the states are determined to address them. A Constitutional Convention occurs in the context where the rule of law has disappeared completely and the victors want to craft a set of rules for governing the country.

If the latter yields something anything close to the same as the former, it will only be through a massive stroke of luck.




In the aftermath of a civil war, what makes you think there will be anything called "states"? The victors might well decide to eliminate the notion of distributed government entirely, seeing how it's primarily (some of) the states that are forcing a large portion of the issues in the first place.




Yeah. It has to be tried. To refuse to try an available peaceful option before opening the ammo box is an unforgivable dereliction of duty, and amounts to a decision to kill people before there's no other choice.

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Why does it take you so long to agree with me

pitpawten said:

Dude, knock that off...you scared him away...and just when he was closing on 50

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?????

Rob00taws6 said:

What if a simple majority of the governed consented that my 2A rights are a relic of the past and that it was necessary to infringe upon those rights for the good of the collective?

What if a simple majority of the governed consented that because my speech was deemed inflammatory that I needed to be segregated from society? What if they deemed that I needed to be put in a camp with like minded sub human individuals?

That's exactly why the system needs to change, because if that way of governing is being taught to my generation then the ruling class has NO limitations. And, that is exactly how Maryland general assembly behaves and much of the federal body.

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It seems like your underlying point is, "things aren't going exactly the way I want them to, therefore the system is broken." But that's not how things work. We have a beautiful system of checks and balances. It usually works, though not always immediately in every instance, and never to everyone's satisfaction. The only way someone gets everything they want is to become a dictator, which is, you know, what the Constitution was explicitly designed to prevent from happening.

The limitation on the ruling class is VOTING. Roughly 92 million eligible voters sat out the 2016 elections. Off-year elections can often be won with support from around 20% of the eligible populace in that jurisdiction. For example, Hogan won the gov election with fewer than 900k votes in a state with 3.9 million registered voters (~23% of eligible). Most Americans just can't bother to put their phones down long enough to become engaged and involved...

Rob00taws6 said:

That is exactly what I'm advocating for and the discussion is about! Amending the Constitution through Article V to combat judicial activism.

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"Judicial activism" is meaningless beyond rousing a certain segment of the population to political action (see prior post about voting rates...). You know what was an activist decision? Brown v. Board of Education. Was that wrongly decided? You know what else was activist? Heller. (1) It completely flipped all previous precedent on the central question and (2) it overturned a law passed by a legislative body. What could be more activist than that? But somehow, I'm guessing that's not an activist decision anyone here wants to see undone...

abu Haqiqa said:

"Judicial activism" is meaningless beyond rousing a certain segment of the population to political action (see prior post about voting rates...). You know what was an activist decision? Brown v. Board of Education. Was that wrongly decided? You know what else was activist? Heller. (1) It completely flipped all previous precedent on the central question and (2) it overturned a law passed by a legislative body. What could be more activist than that? But somehow, I'm guessing that's not an activist decision anyone here wants to see undone...

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To claim that these were "activist" decisions on the basis that they contradicted prior decisions presumes that stare decisis overrides the original meaning and intent of law and, especially, the Constitution. But the Constitution, in particular, is the supreme law of the land, and therefore overrides everything, including court precedent that conflicts with it.

While the courts are empowered with interpreting the Constitution and the laws underneath it, they do not legitimately have the power to arbitrarily do so. Arbitrary interpretive power is unfettered power, the ability to make anything mean whatever one wishes. It is judicial activism to do so. Prior decisions which engaged in judicial activism are rightly overridden by later decisions which are faithful to the original meaning and intent of the Constitution.

There are well-understood techniques for getting at the original intended meaning of historical documents. People who attempt to substitute their own desires for the original intended meaning of historical documents are rightly called "intellectually bankrupt", because we do not treat instruction manuals passed down to us that way. Any decision which fails to properly use those well-understood techniques for acquiring the meaning of the Constitution is likewise intellectually bankrupt, and therefore an instance of judicial activism (substitution of the preferences of the judges for the original intended meaning of the Constitution and/or the law being examined).

abu Haqiqa said:

As a lawyer and professor of law, yes, it matters a lot. The Constitution derives its power from the consent of the governed, not appeals to higher authority. The former is fundamentally legitimate; the latter is not.

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Highly argumative. See Locke. While it's true that no reference to a specific higher power is required or specified the enlightenment arguments against divine right government can not be disregarded.


The claim is that the power to govern, even if it does come from a higher power ( given that it is no more possible to disprove the god hypothesis than to prove it it's best to rely on an atheist world view to counter divine right) flows not into an single semi, or in somecases,fully divine royal line,but rather though the people as a whole.


Such is Locke notion . Compatible with but not reliant on an specific religious view... Including athiesm.


Nature and of nature's god is a self conscious allusion to Lockes state of nature..

Miller court rules that SBS have no protections because they are not in use by the military

Heller rules weapons in common use (handguns) are protected.

Mcdonald applies due process incorporation to the states

Kolbe out of the 4th circuit then says the AR15 has military purposes regardless of being in common use is not protected or given any consideration


So not for military uses = not protected when talking about SBS

Then if it is for military purposes = not protected when talking about the AR15

But a handgun for self defense protected

fabsroman said:

You need to keep in mind that the Constitution is a living document. In essence, it can be changed. If a vast majority of the people are against firearm ownership, an Amendment could be passed to repeal the 2nd Amendment.

We elect the morons that pass the laws and appoint the judges. We can also change the Constitution should we like. You just have to have enough people pushing for the change.

Doubt we will see the 2nd Amendment going away anytime soon though. They are whittling away at it little by little so the sheep feel safer.

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Living document? If it's alive it would change itself. It does not. .

Cowards in robes change it, leveraging the passive voice to hide thier treachery.

Meanwhile.... If the vast majority want to instill a monarch...they can do this as well.

Likewise genocide as a frequent hobby of the masses.

Laws have no force. Only a lawyer would find this newsworthy..

Brooklyn said:

Why does it take you so long to agree with me

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Because it's so fun to debate you?

ddestruel said:

Miller court rules that SBS have no protections because they are not in use by the military

Heller rules weapons in common use (handguns) are protected.

Mcdonald applies due process incorporation to the states

Kolbe out of the 4th circuit then says the AR15 has military purposes regardless of being in common use is not protected or given any consideration


So not for military uses = not protected when talking about SBS

Then if it is for military purposes = not protected when talking about the AR15

But a handgun for self defense protected

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There is not now,and never has been anything in existence properly identifiable as "legal reasoning".

Reason is the exclusive domain of the sciences, and mathematics.. Law is the exclusive domain of racketeers and confidence artists.

It will work out or it will not.

abu Haqiqa said:

"Judicial activism" is meaningless beyond rousing a certain segment of the population to political action (see prior post about voting rates...). You know what was an activist decision? Brown v. Board of Education. Was that wrongly decided? You know what else was activist? Heller. (1) It completely flipped all previous precedent on the central question and (2) it overturned a law passed by a legislative body. What could be more activist than that? But somehow, I'm guessing that's not an activist decision anyone here wants to see undone...

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My original though was Article V convention of states, and I stand by that being a solution to a problem, a problem that brought about the Kolbe en banc decision. I'm not a lawyer, I have a BS in Athletic Training, I am a licensed electrician and I am working on a second bachelor's degree in electrical engineering, plain and simple it's my out. I support everyone here that supports freedom. If national reciprocity solves this problem, I support it. The most likely outcome is that I decide to vote with my feet, and move to a free state when my degree is finished, as so many of us already did.

kcbrown said:

[1] But the Constitution, in particular, is the supreme law of the land, and therefore overrides everything, including court precedent that conflicts with it.

[2] Arbitrary interpretive power is unfettered power, the ability to make anything mean whatever one wishes. It is judicial activism to do so. Prior decisions which engaged in judicial activism are rightly overridden by later decisions which are faithful to the original meaning and intent of the Constitution.

[3] There are well-understood techniques for getting at the original intended meaning of historical documents.

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[1] With respect to the Supreme Court in particular, Marbury v. Madison respectfully disagrees.

[2] I agree with your first sentence, but "judicial activism" usually just boils down to, "I don't like that decision so I'm going to malign the judges that issued it." Look, I think the majority opinion in the Kolbe en banc is a $#!tshow, but it's not because of "judicial activism" - it's because of poor reasoning, not following precedent, and so forth.

[3] The idea that we can look back with certainty to determine the founders' intent for any given provision of the Constitution is folly. They were having the same debates about the scope and limits of federal power that we are (still) having today. The Constitution was a compromise document that kicked the can down the road specifically because they couldn't agree on the details. Madison and Jefferson were as far apart on these questions as are Larry Tribe and Sam Alito today. That original conflict is inherent in the dueling, arguably conflicting mandates of the 9th and 10th Amendments. While many people of various political persuasions try to pretend or the other doesn't exist, they both do, and both must have meaning.

abu Haqiqa said:

[1] With respect to the Supreme Court in particular, Marbury v. Madison respectfully disagrees.

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Disagrees with what? That the Court cannot legitimately arbitrarily interpret the Constitution to mean whatever it pleases? That what the Court decrees, and thus the Court itself, is not supreme to the Constitution (to disagree with that would be bold indeed, seeing how the Court derives its power from that same Constitution)?

[2] I agree with your first sentence, but "judicial activism" usually just boils down to, "I don't like that decision so I'm going to malign the judges that issued it." Look, I think the majority opinion in the Kolbe en banc is a $#!tshow, but it's not because of "judicial activism" - it's because of poor reasoning, not following precedent, and so forth.

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Poor reasoning, not following precedent, etc., are symptoms. "Judicial activism" is merely an oft-used term to mean that the judges intentionally engaged in those things in order to arrive at the decision they wanted. To insist that they unknowingly made such egregious errors is to insist that the judges in question are wholly incompetent in their job (as applied to Kolbe, that amounts to a claim that the majority of judges in the 4th Circuit are somehow incompetent in exactly the same way). But for that to be true, they would have to consistently generate opinions with those characteristics.

[3] The idea that we can look back with certainty to determine the founders' intent for any given provision of the Constitution is folly.

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Who said anything about certainty? I only said that there are well-understood and agreed upon methods for determining the intended meaning behind historical documents, and that failure to follow them is indicative of intellectual bankruptcy.

Those methods don't always yield certainty. When they do not, the intellectually sound approach is to go with the interpretation that has the highest probability of being correct, on the basis of the available evidence, an understanding of what various words meant to the people at the time, etc.

They were having the same debates about the scope and limits of federal power that we are (still) having today.

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Were they now? Where did they debate whether or not the right to keep and bear arms is limited to the home? Where did they debate whether or not the right to keep and bear arms protects "weapons of war" (specifically, muskets, since that was the bearable weapon of choice in war at the time)? Where did they debate whether or not the 2nd Amendment protects an individual right?

The Constitution was a compromise document that kicked the can down the road specifically because they couldn't agree on the details. Madison and Jefferson were as far apart on these questions as are Larry Tribe and Sam Alito today. That original conflict is inherent in the dueling, arguably conflicting mandates of the 9th and 10th Amendments. While many people of various political persuasions try to pretend or the other doesn't exist, they both do, and both must have meaning.

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True as that may be, that doesn't translate to carte blanche to interpret the Constitution in whatever way one desires. While there was conflict over what was to be put into the Constitution, what matters is how the authors and ratifiers of the Constitution interpreted what actually landed in it. To insist that those people had diametrically opposed interpretations of the same text is something that demands substantial evidence, because it is an extraordinary claim.

abu Haqiqa said:

[1] With respect to the Supreme Court in particular, Marbury v. Madison respectfully disagrees.

[2] I agree with your first sentence, but "judicial activism" usually just boils down to, "I don't like that decision so I'm going to malign the judges that issued it." Look, I think the majority opinion in the Kolbe en banc is a $#!tshow, but it's not because of "judicial activism" - it's because of poor reasoning, not following precedent, and so forth.

[3] The idea that we can look back with certainty to determine the founders' intent for any given provision of the Constitution is folly. They were having the same debates about the scope and limits of federal power that we are (still) having today. The Constitution was a compromise document that kicked the can down the road specifically because they couldn't agree on the details. Madison and Jefferson were as far apart on these questions as are Larry Tribe and Sam Alito today. That original conflict is inherent in the dueling, arguably conflicting mandates of the 9th and 10th Amendments. While many people of various political persuasions try to pretend or the other doesn't exist, they both do, and both must have meaning.

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Ok, maybe maybe "judicial activism" was a poor choice of words on my part. Would Roberts decision to legislate form the bench on the affordable care act be a example of judicial activism?

And, from your position, if the majority opinion in Kolbe en banc was because of poor reasoning how is that balanced. I know Congress has the power to impeach judges even defund the 4th circuit, but I am under the impression that like article V that has never been done before. just seem to me that our only recourse of action is to wait until judges kick the bucket or retire, and hope they are replaced with like minded people.

Brooklyn said:

Invention time travel.. problem solved.

By the way the more you learn about our founders the less impressed you are likely to be. No 24 x 7 news cycle..Lots of white washing...


And they did Bork up a lot of things..


Anyway I rule out time travel as likely... And proceed from there..

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On the lighter side, this new concept "Time Crystals" came up in discussion with some of the guys I study engineering and physics with, so time travel might not be completely impossible. It's also above anything I can explain. But, I do have to say the firearms are a little more interesting now.

Brooklyn said:

Invention time travel.. problem solved.

By the way the more you learn about our founders the less impressed you are likely to be. No 24 x 7 news cycle..Lots of white washing...


And they did Bork up a lot of things..


Anyway I rule out time travel as likely... And proceed from there..

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Exceeding the quality of our current legislatures isn't a very high bar.

SWO Daddy said:

Exceeding the quality of our current legislatures isn't a very high bar.

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Then get started...

Rob00taws6 said:

On the lighter side, this new concept "Time Crystals" came up in discussion with some of the guys I study engineering and physics with, so time travel might not be completely impossible. It's also above anything I can explain. But, I do have to say the firearms are a little more interesting now.

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Time is relative... Traveling forward in time via time dilation is certainly possible...But not likely to help in the present context.

Of course it may let some of us ride out the apocalypse... but frankly I would rather not..