On Sun, 27 Feb 2011 23:01:05 -0800, "DGDevin"
wrote:



"dhall987" wrote in message
.. .


I guess to me the "best form" would be to expect the Supreme Court to
apply the Constitution appropriately and not accept that "the
Constitution says whatever the Supreme Court says it does".

Think about that, exactly who gets to tell the Supreme Court which
interpretation is "appropriate"? Other than a Constitutional Amendment, the
SCOTUS is the end of the road. So the realistic view is that the
Constitution says what the court says it does.
Didn't say that I had the answer, just that accepting without argument
(or actually celebrating) that the Supreme Court isn't bound to
actually "interprete" the Constitution is not the answer. Saying that
it is a "living document" from the perspective that these 9 can change
it at will is not the answer.
The whole
concept of the Constitution being a "living document" just seems
bizarre to me.

At least some of the men who wrote the Constitution disagreed, Jefferson
among them (although of course he also distrusted the judiciary having the
final say over constitutional issues). But Jefferson made it clear that the
Constitution was not a perfected document, that at times improvements would
only be possible "by inches" and thus had to be ongoing.

As I have read Jefferson, he did believe that the Constitution would
change over time, but he seems to me to have said that it would be
changed via the amendment process until it could no longer be and then
it would be done via violence. "The tree of liberty must be refreshed
from time to time with the blood of patriots & tyrants". He certainly
did not appear to assume that it would be changed passively at the
whim of a majority of the Supreme Court.

Unfortunately I still want to believe in a government
of laws, not men - but if we accept that the 9 can simply ignore the
law and make up whatever they want then that old saw doesn't quite
work.

What is the alternative? Many people believe the Constitution is
intentionally vague because the Framers knew they couldn't possibly go into
detail on every issue. So the law had to be left up to the various branches
of government (which includes the courts) with broad guidance from the
Constitution. But interpretation was inevitable, and sooner or later that
buck has to stop somewhere.

Of course "interpretation" is needed. To try to codify in detail gets
you the EU's new "constitution" which if I recall correctly is several
hundred pages long or longer. However, there is a distinct difference
between interpreting the constitution and simply making it up. If you
hire someone to "interprete" spanish and he states that "si" means
buffalo or "uno" means green then he really isn't "interpreting" is
he?
Now the 2nd amendment and our court's failure, currently and
historically, to uphold it is a prime example to me. I truly believe
and wish that the government could control private ownership of arms.
However, even a simpleton reading the 2nd amendment and the history of
its enactment know that such controls are illegal. If our courts had
held that way historically, we would have replaced the 2nd amendment
decades ago. The amendment does not talk about handguns or rifles or
muskets or bows & arrows ~ it talks about "arms". This clearly meant
all forms of arms because it clearly meant the arms necessary to
protect ourselves against an over-reaching central (federal)
government.

Not really, if you look for it you can find exactly what the Framers meant
because they spelled it out, e.g. Virginia's state constitution which
detailed what sort of arms citizens were required to bring when summoned to
militia duty--personal arms such as muskets or pikes--no artillery. It is
reasonable to think the Framers meant for the arms citizens commonly owned
at the time to be protected--muskets/rifles, shotguns, handguns--not forms
of weaponry which few private citizens possessed.

....and yet most of the artillary used in the Revolution (other than
that which we took from the British Fort of West Point) came from
private owners. Hmmmmm...
Yet courts a long time ago allowed the government to
strictly govern and restrict our rights to keep and bear arms such as
155MM howitzers, 50 cal machine guns, mortars, etc. Believe me, if the
2nd amendment were interpreted as meant, we would have scared
ourselves enough to overturn it a very long time ago.

Amusing, but not historically accurate.

What isn't accurate? Didn't government long ago outlaw (or restrict to
the point or virtually outlawing) private ownership of large weaponry?
Try to "bear" a bazooka some day...
So, to kind of summarize, I am that odd person who is a strict
constructionist that wants to have gun control. I just believe that we
must (and should) change the constitution first. I do not think that
the Supreme Court should be able to decide that society has "reached a
new concensus" and dictate it. If we reach such a concensus then we
should express it in one of the 2 ways set out in the Constitution for
making that change.

Again, if you read what they wrote outside the Constitution you can find
*why* the Framers thought the 2nd Amendment was necessary, namely that they
thought the 2nd was the amendment that made all the rest of the Bill of
Rights possible, a concept they actually inherited from English law. As you
say, if that is now an obsolete concept then the Constitution provides the
means for itself to be amended. But if no government is willing to
undertake that process, then it is inevitable that the courts will have deal
with it.

Only if you want to live in a dictatorship of the judiciary. And thus
we return to the beginning...