When the Founders wrote the Bill of Rights, they had no idea how the Amendment would be twisted and used based on the realities of 2008.
Certainly they did not know what would be available today when they, in their wisdom, declared these rights in 1791.
Posted by jj at July 8, 2008 05:30 PMI fixed jarjar jj's sentence: When the Founders wrote the Bill of Rights, they had no idea how the Constitution would be twisted by a future president (i.e., Bush) to claim monarchal powers
Posted by gay veteran at July 8, 2008 06:05 PMIt's 7/08...nothing surprises me anymore!
Posted by Parallax at July 8, 2008 06:50 PMWell, jj is tryin' to actually make an argument, bravo. But I'd say that it was the RATS who did the "twisting" of the language based on the (conservative) "realities" of 2008.
Like the now famous Downing Street Memo, where the facts were "fixed" around a pre-existing policy of invasion, here the constitution was fixed around a pre-existing social ideology.
The Founders clearly saw the second amendment's "militia" language as a basis of a state's protection from the (new) federal govenment, not as an individual's "right" to protect his home from common criminals. Since state "protection" from the federal army is literally not a valid concern two centuries later, the proper ruling was that the second amendment had become a dead letter. And certainly not an individual right to own a handgun.
But for the conservative activists masquerading as "judges" on the Supreme Court, the history doesn't really matter. Nor do the implications. What mattered is that conservatives wanted to have a bogus "right" conferred on them, just as they endlessly claimed that a bogus right to reproductive choice had been created for lib'ruls. This is their "See, we can play this right-creating game, too!"
For over a hundred years the Court was composed of responsible men who could see that the second amendment this was not an area for the Court to be creating "rights" in. But with the rise of Reckless Conservatism (tm) all good sense has been thrown into the shitter.
My advice is to get your handguns and learn how to use them before a crazed gun-nut, gun-right conservative male tries to get into an argument with you over who is next in line at the car-wash. They don't just want to stroke their guns and lick 'em, they want to kill people with them as well. Especially demonic lib'ruls.
Scalia was happily crying that the Habeus Corpus decision would "kill Americans". Yet he's pretty sanguine about giving pinhead yahoos the "right" to own as many handguns as their lil' gun-nut brains desire. Wonder which ruling will really result in more dead Americans, Nino, you dishonest turd.
Posted by euzoius at July 8, 2008 06:51 PMI am sorry Ezzie, I should have explained. You did notice that I did not name a specific Amendment. I was not referring to the 2nd Amendment, but actually the First Amendment. If you want to play that game, it goes both ways.
Please try again.
Posted by jj at July 8, 2008 07:08 PMTurkana - did you mean to link to Bob Herbert's column, and not to Balkin and Levinson? Herbert was talking about Obama, "lurching right when it suits him." Which is relavent, but peripheral.
And I agree with the quote. Self-defense always has been, shall we say, the Weapons of Mass Destruction argument used by gun-rights advocates. Once we hold that self-defense is a matter of owning a firearm, bans by municipalities and states designed to protect citizens from firearms become up-ended and obviously wrong. If you live in a crime-ridden area, you should be able to arm and tote the maximum amount of firepower necessary to defend you and yours.
Nevermind the issue that only stupid people and criminals want handguns. If it's a matter of defense, most everyone should use a short-barreled shotgun unless they regularly go to the gun range. (if you're particularly squeamish about shooting someone, some have replaced the steel shot with rock salt . . )
And if you've ever read any modern Supreme Court book, you'd know that the Court opinions are often first drafted by the justice's clerks, whom can be highly partisan and certainly seek to cherry pick the law to support a ruling.
Posted by idiosynchronic at July 8, 2008 07:12 PMthanks, idio- fixed. i'd considered posting on herbert, but am not sure how i ended up using that link.
Posted by Turkana at July 8, 2008 09:17 PMTell me kind people, how many senators voted to approve Scalia to SCOTUS? How many voted against his approval?
I think you'll find not one senator voted against his approval. Unanimous, or nearly so. That means the likes of Kerry, Kennedy, Biden, Byrd, Leahy, Gore, etc. each saw this man to be competent for this post and used their advise and consent rights in approving him.
Posted by peter at July 8, 2008 10:30 PMMy my, what a change in jj. He must be running scared that he is going to be banned, and obviously wants to stay here at TLC. Maybe in his social circles it is an embarrassment to be thrown off a liberal blog. Don't be swayed.
Posted by Judith at July 9, 2008 04:12 AM
Bright Star Judith
You might want to read again.
Posted by jj at July 9, 2008 04:46 AMjj, you obviously missed my point. All you have ever done was snip at people here. You actually can write one coherent thought. Good for you.
Posted by Judith at July 9, 2008 05:02 AMpeter, are you really this much of a childish simpleton? Or is this just the approved script? "Senators voted for Scalia in 1988, there's nothing to validly criticize now! And they voted for Petraeus, too!" Sheesh. One "argument" fits all, I guess.
That a person was confirmed to a position does not render them above criticism for the time they hold the post, that's a position only feeble minded, craven authoritarians take, and it shows you don't really understand anything about being a citizen of this country. It the kind of thing I imagine a Nazi party offical or a Politburo member would say.
Your level of "thought" and information on so many topics is so shallow and low that I have to wonder if you aren't actually mildly retarded. That's fine, your "President" is mildly retarded as well.
And jj, I write several paragraphs on the actual topic (gun rights) while you throw in two meaningless lines, which you later claim to be about the (irrelevant) first amendment. And you ask ME to "try again"?
If the TLC trolls are banned, it will be for simple incompetence and base stupidity, and certainly not for anything they "say". Politics and policy is simply a matter of being on "Team Conservative" to them, it certainly isn't anything they know the slightest thing about.
You two guys are abject pinheads. As "commenters" (and citizens) you are simply worthless. Have a great day!
Posted by euzoius at July 9, 2008 05:08 AMto modern "conservatives", activist judges are those judges who reach decisions that do not conform to right-wing dogma
Scalia is the most corrupt justice on the SC. Maybe he should do some more duck hunting with Cheney.
Posted by Gay Veteran at July 9, 2008 05:08 AM
No Judith, it went right over your head.
Turn the "comprehend" button on.
Ezzie, you might want to turn your "bitter" button off.
You sound silly .
Posted by jj at July 9, 2008 08:10 AMI think you'll find not one senator voted against his approval. Unanimous, or nearly so. That means the likes of Kerry, Kennedy, Biden, Byrd, Leahy, Gore, etc. each saw this man to be competent for this post and used their advise and consent rights in approving him.
peter makes a valid point. Modern Democratic Senators, with a small number of exceptions (one living, one killed in a 2002 plane crash), are wimps.
Which is why the continuation of American Democracy rests on keeping a Republican out of the White House for at least the next 8 years. One more Scalito clone and civil rights are dead.
Posted by Anonny at July 9, 2008 08:28 AMA well regulated Militia being necessary for the security of a Free State, the right of the People to keep and bear arms shall not be infringed.
I can write it from memory. Perhaps one of the most well intentioned but poorly written clauses in the Constitution.
It is impossible to interpret this one sentence without a deep understanding of the context in which it was written. Unfortunately, my gun rights friends tend to focus only on the second clause. Eugene Vohlkov has even written a long, much linked-to, essay in which he argues that the first 13 words are meaningless. It's absurd to think that in a document where brevity is the rule that basically half of one amendment is considered meaningless, but this argument has swayed many including some on the Supreme Court.
For the best insight into the intent of the 2nd amendment one should read Article XII of the 1776 Virginia Declaration of Rights:
That a well regulated militia, composed of the body of the people, trained to arms, is the proper, natural, and safe defense of a free state; that standing armies, in time of peace, should be avoided as dangerous to liberty; and that, in all cases, the military should be under strict subordination to, and be governed by, the civil power.
I strongly urge all Americans to read the Virginia Declaration of Rights in its entirety. It is quite illuminating - much of it made its way into the Declaration of Independence, Constitution and the Bill of Rights. If there is any doubt what the "Founding Fathers" intended in 1776 and 1787, this document settles the question.
http://www.yale.edu/lawweb/avalon/virginia.htm
Specifically regarding the 2nd amendment, the intent of the founders was to use a model of national defense similar to Switzerlands. Comprised of State Militias, to be called up in time of national emergency, subject to national direction only so long as the individual State agreed. The founders -- correctly -- saw permanent armies as bad news.
The purpose of the 2nd amendment, thus, was to tell the new national government "hands off" when it came to regulating the State Militias. At the time the Bill of Rights was drafted the feeling was that individual State governments were already constrained by their own Constitutions, but that the new National government needed similar constraints. The Bill of Rights was aimed at limiting powers only of the National government. In the second amendment, the founders are saying that well-regulated Militias are critical for each individual State, and therefore the national government may not restrict the ability of the People (as represented by the individual State governments, which is how the term "People" was used back then) to bear arms.
Later the 14th amendment extended unspecified rights and protections previously applied to only the national government to state and local governments. The intent here was to protect released slaves, and it is anything but clear how that apples to the second amendment.
Today, with a massive permanent national military and with state National Guard units subject to thie whims of the President, who is to say how the founders would interpret the 2nd amendment? Many views can be argued on this. However, the idea that cities can't ban one type of weapon -- handguns -- but that the state and national government can ban others -- say, bazookas -- is pure invention by the Scalia gang.
Personally I do see a strong individual right to bear arms in the 2nd amendment. As it is now clear that the founder's fears that a standing national army "as dangerous to liberty" have been realized, the people need some protection from our national government. Alas, it is not probably too little too late.
Posted by Anonny at July 9, 2008 08:49 AM