Checks and balances

The Washington Times ^ | December 19, 2007 | Alan Nathan

[CampusKing]

When are Supreme Court justices interpreting the Constitution, and when are they simply amending it? The judicial-restraint crowd prefers a more denotative analysis relying on the actual words employed by the framers. Those opting for the living-document philosophy, or judicial activism, want the court to interpret our founding document in a way that accommodates their positions on laws that might not otherwise pass literal muster. Since their advocates cannot meet the written standard, they want the standard to meet them.

[CampusKing]

After reading this article, every American should care about their fundamental right guaranteed by the Second Amendment: "the right of the people to keep and bear arms." This gives every American the right to defend themselves, especially in DC, where the good people have been left defenseless against the criminals for far too long.

[DuncanWaring]

No, it does not "give" every American the right to defend themselves, it protects the right of every American to defend themselves.

IBrp.

[beltfed308]

Bump! IBTTGR

[Non-Sequitur]

The Supreme Court has refused to overturn laws banning gun ownership in the past and I would be surprised if they do so in this case.

[LowCountryJoe]

No, it does not "give" every American the right to defend themselves, it protects the right of every American to defend themselves.

Excellent post!

Man, I am sure glad you wrote that! It is a very important distinction to be pointed out. Too many people think that government grants rights that are, in fact, natural rights of man. It has become such a misread of liberty and our Founder's intentions when the words are either not chosen correctly or there's a fundamental error in how natural rights of man are viewed.

[Amendment10]

As has already been mentioned somewhere in cyberspace, what D.C. v. Heller will actually test is how corrupt the Supreme Court is. This is because John Bingham, the main author of Sec. 1 of the 14th A., included the 2nd A. when he read the first eight amendments as examples of constitutional statutes containing privileges and immunities that the 14th A. made mandatory for the states to respect. So I have no doubt that the 2nd A. protects the personal right to keep and bear arms from both the feds and the states as much as any other constitutional privilege and immunity, particularly those contained in the BoR, protects other personal rights. See the 2nd A. in the middle column of the following page in the Congressional Globe, one of the precursors to the Constitutional Record.

http://tinyurl.com/y3ne4n

[CampusKing]

OK, that’s true. I believe you are making reference to Judge Laurence Silberman, for the majority in Parker v District of Columbia (DC Cir. 2007), who said “the Second Amendment protects an individual right to keep and bear arms.

However, there are also those that say that second amendment guarantees individuals the “right” to possess firearms, not just members of “militias.” Like the article states, there must be a “right of the people to keep and bear arms.”

Thoughts?

[DuncanWaring]

I don’t understand your question.

It looks like both sides of your “however” are the same.

[CampusKing]

I’m focusing on language here.

We both know what the 2nd amendment says. My argument was trying to focus on the fact that the anti-gun crowd has always claimed that the right to bear arms is only contingent upon a militia.

The “right” of the people, under our Constitution, can keep and bear arms in order to create a militia inorder to maintain security. Tell me where I’m wrong?

[DuncanWaring]

The only place you’re wrong is that the Constitution does not “grant” the right, it “protects” the right.

Repealing the Second Amendment, as many bed-wetters wish to do, would not remove that right.

A more appropriate name for the “Bill of Rights” would be “Bill of Government Restrictions”.

[CampusKing]

Agree! Well done!

[CampusKing]

Agree! Well done!

[DuncanWaring]

You can say that again.

[marktwain]

“The Supreme Court has refused to overturn laws banning gun ownership in the past and I would be surprised if they do so in this case.”

They have refused to *hear* cases banning gun ownership in the past.

That is quite different than refusing to *overturn*.

[Non-Sequitur]

They have refused to *hear* cases banning gun ownership in the past.

When they refuse to hear a case it's the equivilent of placing the court's seal of approval on the lower court's decision.

[marktwain]

“When they refuse to hear a case it’s the equivilent of placing the court’s seal of approval on the lower court’s decision.”

A common misconception.

This is from Techlawjournal.com:

“Someone who is dissatisfied with the ruling of the Court of Appeals can request the U.S. Supreme Court to review the decision of the Court of Appeals. This request is named a Petition for Writ of Certiorari. The Supreme Court can refuse to take the case. In fact, the Court receives thousands of “Cert Petitions” per year, and denies all but about one hundred. If the Court accepts the case, it grants a Writ of Certiorari.

“Review on writ of certiorari is not a matter of right, but a judicial discretion. A petition for writ of certiorari will be granted only for compelling reasons.” Rule 10, Rules of the U.S. Supreme Court.

The U.S. Supreme Court’s certiorari process is covered in Rules 10-16, Rules of the U.S. Supreme Court.

The effect of denial of certiorari by the U.S. Supreme Court is often debated. The decision of the Court of Appeals is unaffected. However, the decision does not necessarily reflect agreement with the decision of the lower court.”

[Non-Sequitur]

However, the decision does not necessarily reflect agreement with the decision of the lower court.

I know a number of lawyers and they would disagree with that assessment. If the Supreme Court refuses to grant a writ of Certiorari it is generally because they do not believe the lower court decision needs review. In a constitutional case, like Quirelli v. Morton Grove, you had the first instance where a municipality outlawed the ownership of firearms. Yet the Supreme Court refused to hear the case but instead let the lower court ruling stand. The reaon is that they saw nothing in the lower court ruling that needed review.

[marktwain]

“In fact, the Court receives thousands of “Cert Petitions” per year, and denies all but about one hundred.”

Do they then agree with 95% plus of lower court decisions?

It seems unlikely to me. There are many reasons why they might deny cert, such as simply believing that the case is not “ripe” or that the issues are not clear enough, or issues that they are not willing to address.