A pro-gun hot-head posting comments to a CNN article proclaimed that he’d taken an oath to uphold the Constitution long ago and had every intention of putting himself on the line to do so now. The “reasonable” not-against-the-second honest-trust-me commenter said:
What if the Constitution changes?I answered:
“I think that when a contract is altered that it's a new contract. The one you swore to uphold is the one you swore to uphold. If it's a different Constitution, you'd have to swear over again to the new Constitution.”
Apparently this is absurd.
“And if the Constitution changes it's entirely reasonable for someone who has taken a personal oath to uphold the old version to revert to the level of non-obligation that each person has when he or she is born.”
I'm told:
“Your comment is about as whacked out as they come.”I'm told:
“What a cop out. The Constitution was made with a built-in mechanism so the vast majority could change it.”From one of the main people saying he’d be fine with laws that banned all semi-autos if that’s what people wanted and sees no Constitutional problem with doing that to any gun that fails a “lethality” score built from range, accuracy, rate of fire and magazine capacity…. But who isn’t against guns.
His “reasonable” opinion:
“Uhm, look around Julie. I'm speaking of reality. The Constitution--and especially the Second Amendment--have already been severely compromised. Go try to buy an RPG. A machine gun. A grenade. An F-22. A drone (plus the FAA wouldn't even let you fly...). A tomahawk missile. A fuel-air bomb. Can't? Well... there's your Second Amendment being violated EVERY SINGLE DAY.”Well okay then… I guess I’m just fine with that. I’ve been violated so violate me some more.
I had said:
“What I hear you say is... I've got no security in my person or my possessions if I'm not in the majority, that the Constitution does not protect the minority from the majority. And yet you'd suggest that anyone worried about the government coming to take their guns away is being a silly NRA stooge.”
This is what upset me so much that I couldn’t let it go and stayed for no good purpose banging my head on a wall for far too long. The ONLY purpose of the Constitution is to buck majority opinion and to protect those that the majority wishes to control.
There is no purpose in including “protections” in the Constitution if it is all subject to what people believe is reasonable now. And this opinion is presented as “reasonable” and “intelligent” and objecting that the Constitution means something makes you “wacked out” and it scares me in a very real way that people can make these arguments and think that they’re the thoughtful ones.
It really and truly scares me.
Free Speech is not necessary if it only applies to speech people generally agree with. No one would even bother to stick such an insane statement in our founding documents: “You are free to say anything that people like to hear.”
There's no purpose to including Freedom of Religion if it only applies to “freedom of Christian religion or what the majority believe”, which is a real argument I’ve heard.
There is no purpose to including a guarantee of the right to bear arms if it is limited to: "The right to carry whatever weapon the majority, through the enforcement mechanisms of the State, decide they don’t mind you having."
39 comments:
OK, I'm going to get in trouble for saying this, but the 2nd amendment is about arming a militia - in those days that meant a Brown Bess or Charleville musket, or, for a few, a Pennsylvania Long Rifle.
Most would be kept on the mantle, but, for those in a city like, um, Boston, they'd be kept at an armory in the neighborhood (which is why the Redcoats were coming).
Today, it would be an M-4, M-16, M-249 SAW or whatever replaces them (this is the way it works in Switzerland, BTW; you have your FN in the hall closet).
If you want a justification for a weapon for personal protection, you go to the 9th Amendment (The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people) - one of those rights was a brace of pistols or a rifle - particularly if the local redmen were on the loose
And, yes, every day we're being shown how much the Constitution, as written, matters. Whoda thunk somebody would have sued over their 3rd Amendment rights, but they have.
If there was an armory for those in cities who didn't have their own weapons, it doesn't imply that they weren't guaranteed the right to have their own weapons.
OTOH, if what is required is that the government buys me (or the man of the house) a belt fed machine gun to keep in my closet... I'm okay with that.
This raises some interesting questions.
Suppose that the constitution itself doesn't change; but the meaning of plain English words changes, to be interpreted as meaning what 5 twat-waffles in robes want them to mean.
Can those sworn to uphold the constitution then declare themselves to be released from that oath?
I'm not arguing one way or the other, just curious about your answer.
It would be annoying, Pasta, but at least it's generally understood that when there is a contract dispute a judge gets to rule on what the contract really says.
It's not really like how you're supposed to follow the law and the laws change. No one makes oaths about that. I figure it's more like if I make an oath to love and cherish til death do us part and then someone replaces my husband with someone else and expects me to honor my oath since I made an oath.
Wow, that statement was a mess.
Anyway... maybe I really am making a crazy assertion.
I don't figure that people get out of their oaths if the President changes or starts a war they don't like... but if you had a personal oath of fealty or promised to serve for a particular conflict that would be different.
If the contract (Constitution) changes and you don't agree, you resign. That goes for marriages, jobs, or anything else. The central purpose of a contract is predictability. If A happens then B follows. Otherwise what is the purpose of even having one. If you don't quit, it should be interpreted as agreement to the new terms.
" The ONLY purpose of the Constitution is to buck majority opinion and to protect those that the majority wishes to control."
Baloney. The purpose of the 1st Amendment is to keep the US Government from "establishing" a Religion (aka "The Church of the USA") or keep you from exercising your religion. It has nothing to do with "The Tyranny of the majority".
Judas priest, we just had 5 ivy-league lawyers in SCOTUS Robes jam "gay marriage" down the throat of 300 million American and you're afraid of Democracy.
LoL.
No, I don't think the assertion made in your post is crazy at all; I've never thought about it, and it seems right to me.
I'm just trying to figure out the boundaries.
It's a stupid example, but let's suppose that tomorrow, 5/9 of SCOTUS decides that white Hispanics have the right to round up African Americans and slaughter them en masse. It's under a penumbra somewhere.
Clearly, morally, you'd then have the right to abrogate your previous oath.
Now let's suppose you don't like the gay marriage decision (which really just boils down to whether gay couples can file their taxes jointly). Clearly (I think), there, you wouldn't have that moral right.
Somewhere between those two there's a line. Where?
Synova said...
If there was an armory for those in cities who didn't have their own weapons, it doesn't imply that they weren't guaranteed the right to have their own weapons.
You have to remember these were rights and privileges brought over from the Articles of Confederation. No mention of arms in them, except in Article 6, which basically is the equivalent of the 2nd Amendment.
Unless states forbade the possession of firearms (unlikely since most of the land was farms in the hinterland), people can be assumed to have had to right of personal possession.
This is one of the issues that come up in the Federalist Papers - secession in the event of a tyrranical government is implicit since it isn't forbidden in the Constitution.
"Till death do us part" is never taken as absolute. If your husband is screwing the dog after breakfast everyday, you don't stick around for another 40 years, because that's what the traditional words of the ceremony said. As my pet goldfish once said, "no contract is a suicide pact." Unless of course it's a suicide pact. Then it is, unless you get blood on my clothes, and I don't want to die in a dirty shirt.
rcocean, she's exactly right. If we lived in a pure democracy, 51% of the country could vote tomorrow to outlaw all religion.
We once lived in a constitutional republic, not a democracy. Now...I'm not sure what you'd call this system. Dictatorship by judiciary appointed by officials whose elections are tainted by the use of bureaucrats to intimidate and silence opponents. Cleptocracy, maybe.
And how is the State establishing a State Religion something *other than* the majority ramming it down the throat of the minority?
Bagoh, on marriage... you used to have to prove that the other guy/gal broke their vows in order to get your divorce, but that was part of it most of the time.
There are some cases where the rule has been that a State allows no divorces ever (apparently in the Philippines, at least when I was there... guy couldn't get divorced even though his wife left the country and got divorced and remarried, unless he left the country too) but even the Catholic Church allows cases where they accept that the marriage wasn't valid when one party fails to meet various criteria.
I wonder if Mrs Weiner said "till death do us part"? And if so, if she thought it included mini-Tony getting all the press.
Blogger Synova said...
I figure it's more like if I make an oath to love and cherish til death do us part and then someone replaces my husband with someone else and expects me to honor my oath since I made an oath.
The constitution includes a mechanism for change. Isn't that part of what you make the oath to? As long as the changes meet the criteria?
If I don't mind the changes then they meet the criteria? ;-)
No, see, what I figure is that we're talking about a military oath or something like it. It includes some pretty strict requirements and responsibilities of you that people do not normally hold. Essentially, you agree to allow yourself to be killed if your duty requires it. LOTS of people would never do that, and that's okay. But many people who have done that, voluntarily or not, justify it with the belief that what they made their oath about was worthy of that level of sacrifice. If it wasn't worth that much, then what did they do that for?
The idea that even a legal change done by all the rules (the majority vote and all the states ratify) and tomorrow the Constitution no longer has a 2nd Am or a 3rd, that someone who took this oath that binds no other citizen or regular person at all, now has that oath transferred to this new (entirely legitimate) version really offends me.
People get to decide NOW if they want to make an oath like that or not. They should get a chance to formally agree to the new situation or not.
This is why we shouldn't be fucking with it so much. People are depending on it not changing, not being reinterpreted, and words being assigned new meanings. This should be the job of the Supreme Court - not playing with, but preserving it.
Wow, this is some pretty heady stuff. I'm a morning person, so have to say good night.
If the contract (Constitution) changes and you don't agree, you resign. That goes for marriages, jobs, or anything else. The central purpose of a contract is predictability. If A happens then B follows. Otherwise what is the purpose of even having one. If you don't quit, it should be interpreted as agreement to the new terms.
Spot on.
If the contract (Constitution) changes and you don't agree, you resign. That goes for marriages,...
So THAT explains how I got single! Thanks. But just one question:
When did I change the contract?
Just today I have a contract renewal. They say by law I must give 60 days notice if I intend to change things, but I believe I can get out of that one easily enough.
By dying.
Sue me, see if I care. I won't even feel it.
"When did I change the contract?"
Maybe you didn't change it, but like I said if it changes and you stay, then staying means accepting the changes. Marriage is not a binding contract, which I think is a major drawback and a part of why I never did it.
bagoh20,
Maybe you didn't change it, but like I said if it changes and you stay, then staying means accepting the changes.
Hmmm. Let's see:
My wife, staying with me, while on a killing spree with a homeopathic quack doctor/guru she's fucking.
How much fine print is in that contract?
Can those sworn to uphold the constitution then declare themselves to be released from that oath?
Just the opposite, I would say. E.g., if the Supreme Court decided to rule tomorrow that gun confiscation was constitutional, it would be the duty of the police to ignore them. The oath is to defend the Constitution, not to obey the self-proclaimed interpreters of the Constitution.
"How much fine print is in that contract?"
That's how this stuff works. You sign the contract with smiles all around, and then when it goes to shit, you go back and read the fine print and learn something you didn't know you were signing.
I bet you are much better judge of character now. Maybe you owe her some flowers.
"The oath is to defend the Constitution, not to obey the self-proclaimed interpreters of the Constitution."
They aren't "self-proclaimed". We pick them, either directly or through our representatives. There really is no way around the fact that we the people are responsible for what we get in a democracy. No matter how corrupt, or how much money is spent lying to you, you still have the power to learn the truth, and to vote completely contrary to the status quo or not, and to convince your neighbors to do the same. If you don't trust the people, and I can definitely see why you might not, then don't commit to defending that contract.
I'm kind of a neocon, but if I was more libertarian on foreign policy I would think twice about enlisting in the armed forces.
bagoh20,
I bet you are much better judge of character now.
Oh yeah - now I don't trust ANYBODY,...
They aren't "self-proclaimed". We pick them, either directly or through our representatives.
The phrase I used was "self-proclaimed interpreters of the Constitution".
We pick Presidents and representatives who appoint/approve members of the Supreme Court. You're absolutely right about that. But there is nothing, anywhere in the Constitution, that says the Supreme Court gets the final say on Constitutional interpretation or that their interpretation overrides that of the people or the other branches of government.
The current arrangement is a bargain, struck shortly after the ratification of the Constitution, between the three branches of government. The legislative and executive branches agreed to defer to the judicial, provided the judicial weren't dicks about it.
The Constitution says what it says. The judiciary interprets it, but when "interpretation" crosses the line into "rewriting", "ignoring", or "contradicting" then the judiciary's decision has no legitimacy.
I don't believe it matters that much what the law says anymore or the constitution. What matters is who we send to the levers of power. The wrong people will find a way to get around it if we don't sufficiently balance them with good people. I think we often have had just too many of the wrong people there at the same time, and I think we are getting worse about that.
It's much more about the net effect of electoral choices than what the constitution says. The constitution is looking more and more like the judges in a pro boxing fight. Sure they score and announce the winner, but nobody believes it's based on strict and fair application of the rules. Often it's like a pro wrestling ref who is only there to make it look fair and official, with the winner never in doubt.
How many of us really expected the ACA to be struck down? And are't we pretty sure that voter fraud is serious, rampant, and untouchable without the right people in sufficient numbers? The law is powerless without that. Elections are everything, and we have complete power there, we just choose poorly.
interesting thread--seems to me that the whole thing about "judicial review" (Marbury v Madison) was an assertion by Mr Marshall that the SCOTUS had the right to do it. Again, IMO, Marshall asserted a right, not anywhere in the constitution, that he could do it. I fault Andrew Jackson for not being more assertive--although to Jackson's credit he did say that Mr Marshall has made his decision, now let him enforce it.
The assertion of SCOTS power for judicial review is now stare decisis, and barring a constitutional convention, we appear to stuck with it.
the 2nd amendment is about arming a militia
Akhil Amar has argued (and it makes sense to me) that we should think of a militia as an armed jury. In other words the militia is a popular institution. It's quite different from an army (and the framers understood the difference).
I think the 2nd Amendment clearly has a federalist component. The armed people of a state are to be "well-regulated." And who regulates them? North Carolina! New York! Texas! The states regulate the popular militia, not the federal government.
Like the entire Bill of Rights, the 2nd Amendment is speaking to Congress. And it strips Congress of all authority to disarm our people.
The ONLY purpose of the Constitution is to buck majority opinion
No, that's so wrong!
The guy to read on popular sovereignty is Akhil Amar, who's brilliant. Our Constitution is presumed to be popular. It's presumed to represent the will of our people. In other words, under this jurisprudence, any statute that offends our Constitution, also offends our people.
Laws are struck down not to protect unpopular minorities. Laws are struck down because our elected representatives have exceeded their authority.
You were given no authority to abridge speech, and so your censorship is undemocratic and unconstitutional. You have seized power that was not given to you! That's the basis for finding a statute unconstitutional.
Yes, the free speech clause protects bad speakers, but that's because a majority of us like free speech.
The free exercise clause protects weird religions, because the majority of us like religious exercise.
The point of law and lawyers is to apply the laws fairly, even to unpopular people. Judges are not supposed to impose their will on the world! That's the essence of anti-democracy.
Judges are supposed to democratic. They're supposed to be followers, not leaders. And what are they following? The will of our people, as expressed in our laws, including our Constitution.
Consider the opposite argument.
If the Constitution is anti-democratic, and designed to thwart majority will, then you can't be upset if 5 unelected dictators start issuing unpopular rules. After all, they're being undemocratic, which under this undemocratic philosophy, that's what they're supposed to do!
Murder is unpopular. So should we protect a right to murder, since most people will hate it? Or is it okay to discriminate against the unpopular minority of us who want to murder?
Even if you're not convinced that a majority of Americans like our Constitution, this is exactly the jurisprudence we want our judges to have. We want them to follow our laws, including our Constitution.
We do certainly do not want to invite them to be anti-democratic! So it's far better jurisprudence to assume that our Constitution represents the popular will.
My wife, staying with me, while on a killing spree with a homeopathic quack doctor/guru she's fucking.
How much fine print is in that contract?
That depends. How good is her attorney?
The idea that any constitutional ruling by the SCOUTS must be obeyed is absurd. Its nowhere in the constitution.
Not only that but there's no limit or Constitutional requirement that we have 9 judges or that 5-4 decisions are good enough to overturn federal or state law.
Over the last 50 years liberals have been able to impose their minority beliefs on the rest of country using the courts, because they know most conservatives are blinded by SCOTUS worship.
You love elitism, to protect you from some mythical mob, so all the liberals have to do is capture an elite institution and you're sunk.
If Kennedy or Scalia retires and liberals get their 5th vote, you'll see the SCOTUS find a "constitutional right" to all kinds of things, you never even thought of, and they'll pare back of 2nd Amendment rights to nothing.
If the Constitution is anti-democratic, and designed to thwart majority will, then you can't be upset if 5 unelected dictators start issuing unpopular rules.
"The Constitution was designed to thwart majority rule" does not imply "all antidemocratic government activity is legitimate".
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