Re: The 2ed Amendment as a Gun Nuts Wet Dream

Snout wrote:
> 
> "The Lone Weasel" <[EMAIL PROTECTED]> wrote in message
> news:[EMAIL PROTECTED]
> > [EMAIL PROTECTED] (ulTRAX) wrote in message
> news:<[EMAIL PROTECTED]>...
> >
> > > Which is why I believe the REAL universal right to bear arms is in the
> > > NINTH amendment not the second. But it's conditional on the 10th.
> >
> > On which state and/or federal cases do you base this belief?
> 
> And there we have it people. Lee feels the meaning of the Constitution is
> set by the Courts, not the language of the Constitution.

Article III Section 2, states "The judicial power [that's POWER,
not suggestion] shall extend to all [as in ALL] cases, in law
[as in LAW] and equity, arising under this Constitution [that's
THIS CONSTITUTION], the laws of the United States ... to
controversies to which the United States shall be a party; -- to
controversies between two or more states; -- between a State and
citizens of another State; -- between citizens of different
states... [the key concept being POWER>EXTEND>to CONTROVERSIES]. 

What do you do with judicial power over cases and controversies?
YOU JUDGE. And how do you judge cases involving the
Constitution? YOU INTERPRET. How else could you exercise the
power granted under this Article, whether the specific word
interpret is used or not? The exact word "interpret" does not
have to appear, any more than the phrase "a wall of separation
between church and state" (TJ's words, right?) need appear in
the 1st Amen to explain what is meant. Judges judge and
interpret. The words that ARE used MEAN exactly the same thing;
there is no other way to "interpret" it.

"ALL CASES... arising under this Constitution, the laws of the
United States" PLUS the controversies. Sounds like it covers an
awful lot of ground to me.

And how do you decide a case or controversy? Well, let's say Joe
says that his constitutional right to practice his religion was
infringed by a local law; the municipality disagrees and says
they have the right to make said law and it isn't a religious
matter (forget the specifics here; any case will do). The case
works it's way up to the SCOTUS, since lower court rulings keep
getting appealed. What does the SCOTUS do?

Well, assuming they take the case on its constitutional merits,
the first thing they have to do is INTERPRET what the 1st Amen
says that may or may not apply to the claims of the litigants.
How could they rule on this case WITHOUT interpreting? What else
is the basis on which they can make their decision? Either Joe's
claim is or isn't with merit; either the constitution protects
Joe or it doesn't. Who else finally decides this but the SCOTUS?
If it were obvious, there'd be no need for trials. Since people
disagree, someone must interpret what the constitution means,
otherwise the case can't be resolved. If the courts aren't
empowered to resolve cases, what function do they serve? IF the
SCOTUS ISN'T the final arbiter on the constitutionality of laws,
who is?

SOMEBODY has to make the final decision on various issues, and
we have designated the SCOTUS. If you disagree with their
decisions (and since they are only opinions, it is inevitable
that that will happen - a LOT), that's a "bad judgment" in YOUR
opinion, but in this regard YOUR opinion doesn't count, unless
YOU are a SCOTUS justice. Anyone can "interpret" the Bible to
mean anything one wants, but when the Pope "interprets"
scripture, it becomes canon law. Likewise, the courts interpret
what the constitution means in deciding cases; the decisions
determine whether a law has force or not.

In Marbury v. Madison, SCOTUS Chief Justice John Marshall said:

"It is emphatically the province and duty of the judicial
department to say what the law is. Those who apply the rule to
particular cases, must of necessity expound and interpret that
rule. If two laws conflict with each other the courts must
decide on the operation of each.

So if a law be in opposition to the constitution; if both the
law and the constitution apply to a particular case, so that the
court must either decide that case conformably to the law,
disregarding the constitution; or conformably to the
constitution, disregarding the law; the court must determine
which of these conflicting rules governs the case. This is of
the very essence of judicial duty.

The judicial power of the United States is extended to all cases
arising under the constitution.

Could it be the intention of those who gave this power to say
that in using it the constitution should not be looked into?
That a case arising under the constitution should be decided
without examining the instrument under which it arises?

This is too extravagant to be maintained.

In some cases, then, the constitution must be looked into by the
judges. And if they can open it at all, what part of it are they
forbidden to read or to obey?"

Speaking of Madison: Marbury v. Madison, 5 U.S. 137 (1803)

http://www.jmu.edu/madison/marbury/background.htm

According to the US Information Agency:

"The critical importance of Marbury is the assumption of several
powers by the Supreme Court. One was the authority to declare
acts of Congress, and by implication acts of the president,
unconstitutional if they exceeded the powers granted by the
Constitution. But even more important, the Court became the
arbiter of the Constitution, the final authority on what the
document meant. As such, the Supreme Court became in fact as
well as in theory an equal partner in government, and it has
played that role ever since.

The Court would not declare another act of Congress
unconstitutional until 1857, and it has used that power
sparingly. But through its role as arbiter of the Constitution,
it has, especially in the twentieth century, been the chief
agency for the expansion of individual rights."

As for the courts, how about what Hamilton said:

"The interpretation of the laws is the proper and peculiar
province of the courts. A constitution is, in fact, and must be
regarded by the judges, as a fundamental law. It therefore
belongs to them to ascertain its meaning, as well as the meaning
of any particular act proceeding from the legislative body."
Federalist No. 78. 


And now you may reply with proof that Marshall and Hamilton were
deluded morons.

As for the "language of the Constitution," we have the
authoritative source, the Bouvier Law Dictionary for what the
TERMS used IN the Const MEANT to those who used those terms; of
course, Snout has had all this spelled out for him over and
over, but he refuses to address, much less refute, any of it:


THE PEOPLE is a legal term of art that has a specific meaning in
law and language:

PEOPLE 
A state; as, the people of the state of New York; a nation in
its collective and political capacity. 4 T. R. 783. See 6 Pet.
S. C. Rep. 467. - Bouvier Law Dictionary

STATE
This word is used in various senses. In its most enlarged sense,
it signifies a self-sufficient body of persons united together
in one community for the defence of their rights, and to do
right and justice to foreigners. In this sense, the state means
the whole people united into one body politic; (q.v.) and the
state, and the people of the state, are equivalent expressions.
1 Pet. Cond. Rep. 37 to 39; 3 Dall. 93; 2 Dall. 425; 2 Wilson's
Lect. 120; Dane's Appx. Sec. 50, p. 63 1 Story, Const. Sec. 361.

In a more limited sense, the word `state' expresses merely the
positive or actual organization of the legislative, or judicial
powers; thus the actual government of the state is designated by
the name of the state; hence the expression, the state has
passed such a law, or prohibited such an act. State also means
the section of territory occupied by a state, as the state of
Pennsylvania. - Bouvier Legal Dictionary

FREEMAN. One who is in the enjoyment of the right to do whatever
he pleases, not forbidden by law. One in the possession of the
civil rights enjoyed by, the people generally. 1 Bouv. Inst. n.
164. See 6 Watts, 556: - Bouvier Legal Dictionary

That is, A Freeman can enjoy or invoke a right OF "the people
generally"! THE RIGHT is a collective right of "the people
generally" that an individual OF that class, as a Freeman, may
enjoy, if it is applicable and distributive!

BODY POLITIC: 
When applied to the government this phrase signifies the state.
As to the persons who compose the body politic, they take
collectively the name, of people, or nation; and individually
they are citizens, when considered in relation to their
political rights, and subjects as being submitted to the laws of
the state. 

CITIZEN:
, persons. One who, under the constitution and laws of
the United States, has a right to vote for representatives in
congress, and other public officers, and who is qualified to
fill offices in the gift of the people. In a more extended
sense, under the word citizen, are included all white persons
born in the United States, and naturalized persons born out of
the same, who have not lost their right as such. This includes
men, women, and children.

3. All natives are not citizens of the United States; the
descendants of the aborigines, and those of African origin, are
not entitled to the rights of citizens. Anterior to the adoption
of the constitution of the United States, each state had the
right to make citizens of such persons as it pleased. That
constitution does not authorize any but white persons to become
citizens of the United States; and it must therefore be presumed
that no one is a citizen who is not white. 1 Litt. R. 334; 10
Conn. R. 340; 1 Meigs, R. 331.
http://www.constitution.org/bouv/bouvier_c.htm

("The Bouvier Law Dictionary remains the basis for the
interpretation of Law since the founding of the American nation.
In questions of law regarding legal definitions from that period
it remains the final arbiter of any disputed interpretation of
that law.")

Judge Story discusses the relationship between "the people" and
"the state" (equivalent expressions) and quotes Justice Wilson
with respect to the rights of states (a state being a "moral
person"). This carries weight, since the Justice Wilson is James
Wilson, signer of the Declaration of Independence, a part of the
first Supreme Court appointed by Washington, a professor of law
at the University of Pennsylvania, and above all, a delegate to
the Constitutional Convention where he served on the "Committee
on Detail," which was charged with putting the Constitution
into its final form. Here's what Story and Wilson said (I thank
Leif Rakur for providing this cite):

"§ 208. In like manner the word "state" is used in various
senses. In its most enlarged sense it means the people composing
a particular nation or community. In this sense the state means
the whole people, united into one body politic; and the state,
and the people of the state, are equivalent expressions.2 Mr.
Justice Wilson, in his Law Lectures, uses the word "state" in
its broadest sense. "In free states," says he, "the people form
an artificial person, or body politic, the highest end [and]
noblest, that can be known. They form that moral person, which
in one of my former lectures,3 I described, as a complete body
of free, natural persons, united together for their common
benefit; as having an understanding and a will; as deliberating,
and resolving, and acting; as possessed of interests, which it
ought to manage; as enjoying rights, which it ought to maintain;
and as lying under obligations, which it ought to perform. To
this moral person, we assign, by way of eminence, the dignified
appellation of STATE." - Joseph Story, "Commentaries on the
Constitution of the United States," 1833.


"The end of the institution, maintenance, and administration of
government, is to secure the existence of the body politic, to
protect it, and to furnish the individuals who compose it with
the power of enjoying in safety and tranquillity their natural
rights, and the blessings of life: and whenever these great
objects are not obtained, the people have a right to alter the
government, and to take measures necessary for their safety,
prosperity and happiness. 

The body politic is formed by a voluntary association of
individuals: it is a social compact, by which the whole people
covenants with each citizen, and each citizen with the whole
people, that all shall be governed by certain laws for the
common good. It is the duty of the people, therefore, in framing
a constitution of government, to provide for an equitable mode
of making laws, as well as for an impartial interpretation, and
a faithful execution of them; that every man may, at all times,
find his security in them."
http://www.state.ma.us/legis/const.htm

To repeat Heyman:
In its preamble, the Massachusetts Constitution sets forth the
relationship between society and its members. The "people" or
"the body-politic" are "formed by a voluntary association of
individuals," who come together through "a social compact." What
is most remarkable is that, having distinguished between the
"people" and "the individuals who compose it," the document then
uses these terms in a consistent way throughout. This makes it
possible to discern with great clarity how the various rights
were understood, and whether they were viewed in individual or
collective terms...

In this way, the Massachusetts declaration draws a clear and
uniform distinction between the rights that belong to
individuals and those that belong to the people as a whole. This
distinction is followed so carefully that it is observed even
when both sorts of rights are implicated. Thus, Article XXIX
declares that the independence of the judiciary is essential
"for the security of the rights of the people, and of every
citizen."

-- 
Steven Krulick / [EMAIL PROTECTED]
Ellenville NY 12428-130727