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Default 2nd Amend. case


"Hawke" wrote in message
...
You sure have given me a lot to chew on, Ed.


I would Ed, but I already know what their argument is and I'm not
buying
it.
I'm saying no sale.

That's too bad. Well, you can join the grumblers out in the street

while
the
case is decided, then. Much of your argument is simply wrong, and the
parts
that are right are well-known to the petitioners and the respondents.

The
case will be decided at the top of the steps with all of your argument

as
a
backstory that's been around for many decades and that's already been
presented in the briefs.d I'll be watching it with great interest.




You can join in with the anti people side of the argument if you like.
There
will be arguments that you can go along with making that claim. The
ACLU
and
the government will be glad to have your support. But I tell you what.
Watch
for the court's holding when they decide the case. Unless they duck the
question it's going to come out one of two ways; either the 2nd

amendment
was intended to protect the right of the public to keep and bear arms,

or
it
doesn't protect that right. All the briefs and all the legal arguments
aside, that is what the debate is about, and as I said, there really

isn't
a
legitimate debate. Because if the founding fathers didn't believe that

the
right to bear arms needed protecting then they wouldn't have believed

that
the right to free speech or of the press or to assemble would either.


If you noticed I already predicted they will find for an individual
right,
Hawke, back in one of the first messages I posted on the subject.


I don't recall that but to me I am not sure what they will do. They may
find
it an individual right but I think they are just as likely not to. You do
know that I think there is an individual right simply by my reading of the
amendment and my knowledge of early American history.


Oh, I'm not sure what they'll do, either. Predicting what the S.C. will do
on any case is foolish, but it's still worth a guess. My guess is that
they'll decide for an individual right; that they won't incorporate it at
this point; and that they'll do something strange with the matter of
scrutiny. And what they do about scrutiny will determine whether the case is
remanded back to the Circuit Court of Appeals.

While I'm sticking my neck out, I'm also going to guess that Scalia and
Thomas will file a concurring brief that rejects a substantive due process
basis (which is what I'm guessing the majority will use to decide the case)
and make a pitch for restoring the priviledges and immunities clause. Thomas
may also argue for incorporation.

But, who knows.




However, to say that it "isn't a legitimate debate," when six Circuit

Courts
of Appeals have decided the right is a collective one and two Circuit

Courts
of Appeals have decided it is an individual one, suggests that you
believe
you know the truth and they don't -- or, as you have suggested, that your
motives are honest and theirs are dishonest. More likely, it's a matter
of
them knowing far more about the history and the law involved (or their
law
clerks do) and deciding on the basis of accepted jurisprudence. "It's
just
that I know when one side has a case and the other doesn't," you say. How
much do you know about the case that has been made, anyway? What have you
studied that convinces you that you know better than the judges on six

major
federal courts what is a case, and what isn't?


I reject your argument that because certain courts had a position on the
amendment that holds any weight. BTW, that's a logical fallacy of
appealing
to authority.


Now, there's an interesting turn. Since the issue is the authority of the
Supreme Court, I think the claim of logical fallacy is an oxymoron. d8-)

This is about what the Court is going to do, Hawke. As I've said repeatedly,
arguing the case here is a waste of time. The issue is the case, and the
coming decision. They *do* have the authority. So there's no fallacy
involved. Their authority is the core of the issue.

Numbers do not make one right. I also will add that my motives
are honest and I know that I can't say that about everyone else in legal
system.


Hey, I'm not arguing the 2nd here. I'm discussing the Court case. If I
wanted to argue the 2nd, I can take either side. I've done in many times
before but I won't do it again. If we did, all you have to tell me is which
doctrines of interpretation will be used to decide the case:

http://www.constitution.org/cons/prin_cons.htm

In particular, if you're going to go for originalism, you'd have to tell me
if it's going to be "original intent" or "original understanding."


If I thought that the meaning and intention of the 2nd amendment was
to protect the right to hunt or the right of militias to be armed; I would
take that position. But after analyzing the facts, there is no way for me
to
believe that was why that amendment was written. It simply is not rational
to believe that is why the amendment was written.


Well, that's your point of view. Numerous courts have disagreed.

As to why I think I know
better than the judges, that's because I understand how judges think and
act. As a political scientist I understand the politics of the legal
system
and into the way judges make decisions. In this debate most on the "anti"
side have an anti gun agenda. In pursuing this agenda through the courts
it's clear that the only way to prevail is for the courts to accept the
idea
that American citizens don't have any natural or legal right to have arms.
If you accept that the people don't have this right then it opens the door
to disarm the public, which is what the anti gun side would like to do. If
there wasn't an active, well-financed, group wanting this outcome we
wouldn't be debating the meaning of the 2nd amendment in the first place.


You've made an assumption here that is part of why various courts have
disagreed with you. Your argument, you claim, is based on intent, or
sometimes you argue more on the basis of original understanding. The case
for that depends upon how close you're going to hold to the key sources. For
example, if you're Robert Bork, you're going to lean on the text; you'll
follow the principle that all words have meaning; and you're going to refer
first to the debates in the First Congress for guidance. That will lead you
to a conclusion that the 2nd Amendment was a recognition of the states'
authority to arm their militias as they wish -- with already-armed citizens,
if they so desire. But it will be all about militias.

Now, if you accept a wider circle of "approved commentators" or "recognized
authorities," you probably arrive at an individual right. But these are two
different, legitimate principles of jurisprudence.

Many people who defend the individual right, like Gunner and his crew, claim
to be hard-nosed originalists. Judge Bork is a conservative and the
quintessential hard-nosed originalist. And he arrives at the conclusion that
the right indicated in the 2nd Amendment is a collective one.

The irony is that he's also opposed to gun control. But not because of the
2nd Amendment.

I think much of your "understanding" about how judges think is based on your
own prejudices.

FWIW, I don't think you "know all the arguments" favoring the
militia/collective right idea, despite what you said. But I've been
trying
hard not to get into a debate with you about this because I don't really
care what arguments you might make. What I'm interested in, and what

people
who care about the 2nd should be interested in, is not the fortress of
self-fulfilling arguments gun owners have built to convince themselves,

but
rather what arguments are being made by the petitioner and the respondent

in
the case at hand, which promises to be the most significant 2nd Amendment
case in modern history. It's going to be a close call, possibly a mixed
result, and an important window on the current state of the scope of
"liberties" that will be adjudicated in substantive due process cases. It
has a lot of import and it could have a lot of consequences for all of
us,
even beyond the question of the 2nd itself.


The two "interested" sides in this issue are the pro gun
groups/individuals,
who want there to be an individual right to bear arms, and the anti gun
groups/individuals who don't want there to be an individual right to bear
arms. Then there are those of us like me who are neither. We look at the
amendment itself and at the founding fathers and at what they wanted and
what the amendment actually says and was meant to do. Without having a dog
in the fight, and after looking at a very simple and understandable
amendment, my reading and understanding of it is that it was designed to
protect the people from being arbitrarily deprived of their weapons by an
overzealous or tyranical government.


That sounds like a militia argument, right?

That is my opinion of what the
amendment is for and is why it was put there to begin with.


OK, so you have a self-armed militia. But it's still a militia. And the
states decide how to arm the militia, correct? That's the unequivocal
conclusion drawn from the 2nd; the minimum that can't be seriously argued.

I think this
because I am able to read and comprehend the English language, and I am
rational. Consequently, I don't need any authority to tell me what the
amendment means. And I don't acknowledge any superiority of brainpower or
knowledge that any court or judge has that means I need their help to
comprehend what the 2nd amendment means.


I'll submit that you probably don't have a full grasp of the meaning of a
nominative absolute sentence (something else I addressed at length earlier
and then deleted), and that you're not being mindful of the Constitutional
principle explained in the list of interpretive principles I linked to
above:

"None of the words are without force and effect, except those superseded by
amendments, unless such amendments are repealed. Except for the statement of
purpose in the preamble, every word was intended by the Framers to be
legally normative, and not just advisory, declaratory, aspirational, or
exhortatory. Verba intelligi ut aliquid operantur debent. Words should be
interpreted to give them some effect."

That's a long-standing and fundamental principle in constitutional
jurisprudence. It means that the words relating to militia must be
interpreted to have effect.

It's very tough to restrain myself from arguing with many of your
assertions. g And you're bringing up incorrect arguments in some side
issues. I had a list of citations for you concerning abortion in the Roe
case, but I deleted it because I'm not in a mood to argue Roe again. I

also
had a list of quotations from Amar and others concerning the status of
substantive due process and incorporation, but I deleted that, too.


Good, because we can argue over those issues until the cows come home and
that's very boring.

But we can dismiss a couple of these issues without getting into legal
citations. First, what you're said he

That's funny because when I was in graduate school none of my

professors,
who were all lawyers, mentioned anything about the 14th amendment being

in
question.


...is a very strange claim when you consider that the question of
incorporation still comes up all the time in court cases, and it is still
*selective incorporation*, which has yet to be applied to the 3rd

Amendment,
the 5th Amendment, the 7th Amendment, and the ban on excessive bail and
fines in the 8th Amendment. Of course, it has not been applied, either,
to
the 2nd Amendment, and it won't be applied to the 9th or 10th Amendments,
for logical reasons.


I guess why we didn't discuss it much is because there was strong
agreement
in the legal dept. that the 14th amendment applies pretty much everywhere
and that while it has not been applied that way so far, it's only a matter
of time before it will be. Incrementally, it's being applied everywhere.
In
time there won't be any debate because it'll be broadly accepted as the
way
things are.


That's an opinion, and it contradicts an attempt by the conservatives to
abandon the principle of substantive due process, which Scalia correctly
calls an oxymoron.

Whether state's rights fall completely off the table depends more on the
judges who fill future Court seats rather than some inexorable historicism
applied to Court decisions. As history shows, they flip-flop from time to
time.

You probably had a bunch of liberal profs. Or they were just tired of the
argument. Other people involved are not tired of it, and are still fighting
it. For example, at least two, and maybe as many as four, sitting Supreme
Court justices.

We could get into how Hugo Black proposed an all-encompassing

incorporation,
which was rejected by successive Courts, but we won't. d8-) The fact is

that
it is still a controversial issue; the limits of substantive due process

are
still in flux; and Scalia, among others, never misses an opportunity to
stick a knife into the heart of substantive due process in its entirety.


No need to argue that even though in the long run Hugo's view will
eventually be the accepted one in law. It's only an issue because of the
regressive, ultra conservatives who don't want to accept the role the
government has taken in our society.


Opinion on your part. Liberal opinion. It sounds Warreneske, as if nothing
has happened over the past 20 years.

As usual the conservative justices are
trying to bring the country back to the ideal days when women were chattel
and blacks were private property. They will go the way of the passenger
pidgeon but it's taking a long time for them to go, unfortunately.


Incorrect supposition. What they're trying to do is to get away from the
substantive due process "extensions" and to return to deciding unenumerated
rights on the "life, liberty, property" principle that they feel was the
sound basis for the priviledges and immunities clause. This has happened a
few times, under the 5th Amendment, and the conservative Court feels it's
better juridprudence. They're ready to overturn that decision from the
Slaughterhouse Cases, if they get the chance. The result would be a somewhat
narrower list of incorporated rights.

There is some good thought in the petitioner's brief and the amici
briefs.

I
was hoping someone would read them and want to discuss them, but, as I

said,
I've heard the standard pro-gun arguments you're making for decades and
there's nothing more left to be said about them. As far as I know, you
haven't filed a brief, so it has little to do with the case at hand. If

you
had read the respondent's brief, you might have remarked with some

surprise
that the attorneys for Heller have *explicitly* said they aren't asking

the
Court to decide on incorporation. The case was designed specifically to
avoid it. Why? Because it's still a controversy; because the conservative
justices who are likely to be sympathetic to the basic case for an
individual right are the same ones who reject the substantive due process
extensions; and because a favorable ruling on the 2nd could well be the
result of reaching into those extensions, the very substantive due
process
issues (under the 5th Amendment) that the respondent would like to have
working in their favor, while not getting into the risky territory of the
other due process issues (under the 14th Amendment) that could wind up
shooting them in the foot.


The conservative justices are indeed being hoisted on their own petard.
Their right wing political views are putting them in a tough spot. Usually
when this happens they come up with some convoluted reasoning to do what
they wanted to and still come up with a tricky way of justifying it.
Logical
legal reasoning isn't going to cut it. Life is hard when you have a set of
hard and fast rules and a situation comes up that they don't have answers
for. It would be so much easier if they weren't such idealogues. But then
if
they weren't they wouldn't have gotten the job to begin with.


This case is far from being simple. The "yes/no" question you pose is a
chimera. You could get a "yes," and it could be rendered meaningless

(except
as a philosophical point) if the Court applies a low level of scrutiny,
allowing "compelling state interest" to be broadly defined and leaving
gun
control laws standing, with the door left wide open for many more. You

could
get a "no, but," in which the individual right is equivocal (being based

on
one reasonable conclusion drawn from Miller, for example, that there is

some
kind of individual right but that it only applies to those arms an
individual needs for serving in a militia), but it could wind up
producing
the ironic result of striking down any impediments to owning machine
guns.


Yes, it's tough isn't it? If you say the 2nd amendment guarantees the
right
of the citizens to arms that makes them a threat to the safety of everyone
in government. How do you come up with a reasoning that says people can
have
guns but not the kind or enough of them to threaten the government?


I don't think you can. Nor has anyone made that argument. The safety issue
is about other citizens. It's all over the place in the petitioner's brief
and the related amici.

It would
be so much easier to say the 2nd amendment denies the public the right to
be
armed. But then the consititution really makes it so clear that it does
mean
that. What to do. What to do. If they were really honest arbiters of the
constitution rather than politicos the decisions would make a lot more
sense
and would be a lot easier to make. They're going to **** off a lot of
people
on this one no matter what they do. Maybe some of them will quit.


I think you're getting carried away.

These are outliers in the range of possibility, but they illustrate that

the
"yes/no" question is a problematic one. "Yes/no" isn't all that's being
decided. More relevant, it may not even be the significant issue in terms

of
gun-law consequences.


Of course they can't just make it a yes or no decision. That's because
they
are interested in so much more than simply what does the constitution
says.
If that was all that mattered a simple yes or no would be easy. It's
because
they are more interested in all the other issues than what the
constitution
means that makes it difficult. In my view, all they are supposed to do is
worry about the constitutionality of a matter and not about the resulting
fallout from what they decide. The don't have the guts to just say what
the
constitution says and they all have political agendas to promote that
makes
deciding this case hard.


That was less than five years ago BTW. If you're referring to the
court expanding federal power over the states by way of the due process
clause there may be some state arguments about what the federal

government
can or can't do, but the court has allowed more and more federal
control
over the states all the time. It's only a matter of time before the
"power"
of the individual states is really nothing more than a fiction because

the
federal government is more or less now a national government with

states'
authority being merely window dressing. The 14th amendment is just the
vehicle for making this a reality.

If you are referring to another debate on the 14th then I'd ask that
you
refresh my memory as to what you mean.


Well, you've modified that somewhat from what you originally said, and

which
I was referring to:

I'm familiar with Gitlow, and the application of the 14th amendment to

the
states is not a yes or no. It's a yes. The interpretation is that the
amendment applies the supremecy of the federal government over the

states.
All the time. That doesn't mean there aren't some lawsuits that the

states
win in disputes with the federal government. But the court's ruling on
the14th amendment means that the constitution applies everywhere all
the
time.


Not "everywhere." Not at all, so far, on the Amendments I refer to above.
The active doctrine is that incorporation is selective, and that it

applies
only to individual issues that have been decided by the Court.


Yes, the courts are still dragging their feet on this one. Most things
have
already been decided in favor of applying the 14th to the states. How much
longer do you think it's going to take until Black's universal application
is the rule? I don't think it's a matter of if. It's a matter of when,
which
is why I said that there isn't really a debate. It's going one way and one
way only and that's how it will be. It's just taking a long time to get
there.


In recent years, Rehnquist, Thomas, and Scalia have all argued against
incorporation in various cases. Besides them, there is Harvard's Akhil Amar,
probably one of the top three Constitutional scholars in the business today,
who has argued persuasively against incorporation of the religious
Establishment Clause, of all things, in his book _The Bill of Rights:
Creation and Reconstruction_. That book today is considered the last word on
the incorporation of the Bill of Rights by many legal scholars.

So, again, I think you have been a bit misled. Incorporation is not a done
deal. We see states' rights emerge from time to time in various cases. The
doctrine of substantive due process is an embarrassment among many legal
scholars on both sides of the liberal/conservative divide, just as the 2nd
Amendment itself is an embarrassment (recall Sanford Levinson's Yale Law
Review article by that name: "The Embarrassing Second Amendment"). And, like
Dred Scott, it's an open secret that the Slaughterhouse Cases are a bad
precedent that we continue to live with and accept.



The point is that there is no standing doctrine that says "yes," except
as
the Court decides each issue. There is no "yes" on habeas corpus. There
is
no "yes" on grand juries. And there is no "yes" on the 2nd Amendment. The
thing about the 2nd is that there are interpretations of it that could

lead
to an individual right, but not to incorporation. That's why the

respondents
in this case specifically chose to avoid the issue.


That's the way of the law. Nothing changes until it absolutely has to and
every nit has to be argued over endlessly. If it wasn't done like that
look
how many less billable hours attorneys would be entitled to. It takes
forever to resolve legal issues and even when you think it's finally
decided
someone decides to argue it some more. No wonder lawyers bill by the hour
instead of the job.

Now, if you want to take issue with this and have the last word, go for

it.
I'm not interested in arguing the 2nd Amendment in terms that were laid

out
20 or 30 years ago. I've done that dozens of times. I am interested in
the
case at hand and the way it's being argued. But that's all in the briefs.
How the Court reacts to it will be in the oral argument. The rest is just
background noise.


I'm less interested in the briefs and the legal arguments because the
opposing sides are so partisan. They will make any argument over any and
every issue if they think it will help them win. They don't care about
what
the constitution really means because all they want is to advance their
political goal. It's like a divorce case were all the sides care about is
getting the most money and don't give a **** about what's fair. I'm about
what is right. I think that is the nub of our debate.


No, it's not. The nub of our debate is that the only relevent subject is the
upcoming hearing about the 2nd Amendment. The case you're making, which is a
watered-down version of the case made in several of the amicus briefs, is
only half of the story. The other half is the *opposing* case that's being
made.

I'm interested in an
outcome that is right according to the actual wishes of the founding
fathers
and you are more interested in who comes up with a winning legal argument
in
the current proceeding. Those are quite different, not wrong just
different.


In other words, what you're interested in is that the Supreme Court sees
things your way. d8-)


If you would repost some of the links to those legal briefs I wouldn't
mind
taking a look at them.


Finally...

Here are all of them in one place:

http://www.gurapossessky.com/news/parker/pleadings.html

--
Ed Huntress


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Default 2nd Amend. case


"Gunner" wrote in message
...
On Fri, 22 Feb 2008 09:29:00 -0600, Rex wrote:

Ed Huntress wrote:
"nick hull" wrote in message


snip

On the other hand, Montana may secede:

"Various Montana politicians have signed a resolution arguing that
anything other than an individual-right interpretation of the Second
Amendment ... would violate the compact between Montana and the U.S."

http://www.reason.com/blog/show/125075.html

I like those guys - may have to relocate


If Montana goes, its likely Idaho, and the Dakotas will also.

There is a flourishing arms industry growing in Sturgis among other
places.

In fact, there are quite a number of Western states that would pull
the plug as well. The very long term war between the Feds and the
Western states is hardly over, and would simply provide further
reasons to bail out of the Union.

It would be interesting to see how many corporations and industries
that would move to those states, just for the banking and tax
advantages alone.

Anyone envision the Hildabitch or Comrade Obama in the role of Abe
Lincoln?

Gunner


Hahahahahoho...ho.. Hey, what happened to that Free Vermont project? Weren't
the libertarians supposed to occupy Vermont and secede from the United
States? Did that one just sort of die on the vine? Or did the libertarians
all run out of gas before they got there?

--
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"Gunner" wrote in message
...
On Fri, 22 Feb 2008 11:26:57 -0600, cavelamb himself
wrote:

snipped - to show that it really can be done...

On the other hand, Montana may secede:

"Various Montana politicians have signed a resolution arguing that
anything other than an individual-right interpretation of the Second
Amendment ... would violate the compact between Montana and the U.S."

http://www.reason.com/blog/show/125075.html

I like those guys - may have to relocate


Ha-ha! Is that "Dixie" I hear them whistling? d8-)

I'm sure that any court, anywhere, would declare the "compact" moot. As
a
condition of statehood they had to declare that they would adhere to the
US
Constitution -- including amendments, Supreme Court decisions, etc.
Where
their constitution conflicts with the current Court declarations of the
US
Constitution, the supremacy clause comes into effect: the US
Constitution
trumps.

But it's an entertaining idea.

--
Ed Huntress



We had the same fantasy here in Texas when I was a kid.

As the only state that was an independent nation it was a fun fantasy to
play with. But civics class in high school ruined the whole thing!

Darned education...


Richard


I wonder if anyone would care to point out the portions of the
Constition and so forth, where states are forbidden to bail out of a
tyrannical Union?


They're bound by oath under Articles VI and VII. There's no getting around
it, Gunner. Once they ratified, they agreed to support the Constitution.


That rat******* Lincoln used the Might is Right model, because there
was no such prohibition to be found.


That's the result of an indifferent education on your part.

--
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"nick hull" wrote in message
.. .
In article ,
"Ed Huntress" wrote:

I agree rebellions are usually a bad idea, but if you push people far
enough someone is going to try it. Any rebellion today would have to
be
secret to have any chance of success; political assasinations, smart
roadside bombs, cell structure or even dispersed leadership. It would
be like nothing ever seen before. I do know there are secret groups
making plans and accumulating supplies but do not expect to see any
action until inflation becomes ruinous (or some other national crisis).
The 'people' will not join a revolution until it is seen as a done
deal,
most of them will be unaware there is even a rebellion going on until
very late in the game. A developed country, as you realize, has
sufficient military might to crush anything it can find so the type of
insurrection as seen in 3rd world countries would not work here.


That's nice. Enjoy your rebellion fantasies, Nick. When we hang you for
treason, there will be plenty of people begging to pull the lever. As Tim
McVeigh learned, the large majority of people don't believe that
rebellions
are justified under an amendable Constitution.


I'm way too old to even think about rebellion myself, but there are
going to be some young people who will feel they are being cornered by
gun control, inflation and no social security.


There always are, always have been, and always will be. And then they grow
up -- most of them, anyway.

Beware of those who have
nothing to lose, they are the most dangerous.


They always are. It wouldn't matter what kind of government they had, they'd
probably still be the ones with nothing to lose. That tends to be the result
of their own behavior rather than the government they have.

As you say, when someone revolts there will be plenty of people willing
to pull the lever, but that cuts both ways. There will be enough
willing to pull the trigger, especially if they believe they will never
be identified. It's that intractable difference of opinion that will
bring on a civil war, and I have no idea if it will be next year or in a
hundred years. When it starts it will be difficult to stop. No system
lasts forever, there will be revolutions and invasions and secessions
eventually.


One never knows.

--
Ed Huntress


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"comment" wrote in message
...
In , on Fri, 22 Feb 2008
10:43:22 -0800, Gunner, wrote:

I wonder if anyone would care to point out the portions of the
Constition and so forth, where states are forbidden to bail out of a
tyrannical Union?


There is no such restriction. At the time of the
Constitutional Convention, the assumption was that
any state could leave at any time for any reason.


That's a load of crap.


That rat******* Lincoln used the Might is Right model, because there
was no such prohibition to be found.


As Lincoln well knew. After secession there was much
hand wringing and teeth gnashing in DC about what to do
about the Confederacy... for months. There was no legal
basis upon which to do anything at all. The Confederacy
was reluctantly recognized as a sovereign and independent
nation... and you couldn't just go around attacking other
nations for such specious reasons as "national security"
(in those days when the plain language of the Constitution
was better recognized, anyway).

It wasn't until the handy excuse of Ft. Sumter came
along that the DC crowd perceived a loophole. Had the
Confederacy managed to live with that situation, it's
hard to imagine what pretext DC could have used.


More crap.

Besides the oaths made in Article VI ("The Senators and Representatives
before mentioned, and the members of the several state legislatures, and all
executive and judicial officers, both of the United States and of the
several states, shall be bound by oath or affirmation, to support this
Constitution..."), they agreed to the supremacy clause. The principles and
the wording were built upon the unseverable covenant of the Articles of
Confederation.

As Lincoln rightly said, the arguments made by Calhoun and others for a
"right" of secesion were self-serving sophistry, a creation of the authors'
imaginations and nothing more. Certainly the Confederate states had a right
to revolt; that was a principle ensconsed in several of the documents upon
which the country was founded. And the federal government had a right to put
down the revolt. Which they did.

The rest is nonsense cooked up to justify a violation of solemn oaths.

--
Ed Huntress





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"nick hull" wrote in message
.. .
In article ,
"Ed Huntress" wrote:

Besides the oaths made in Article VI ("The Senators and Representatives
before mentioned, and the members of the several state legislatures, and
all
executive and judicial officers, both of the United States and of the
several states, shall be bound by oath or affirmation, to support this
Constitution..."), they agreed to the supremacy clause. The principles
and
the wording were built upon the unseverable covenant of the Articles of
Confederation.


It might seem to some that the feds are not supporting the constitution
and seceeded states might support it better


You're welcome to vote for someone who would support that, Nick. But don't
be surprised if most voters don't agree with you.

--
Ed Huntress


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In article ,
"Ed Huntress" wrote:

Besides the oaths made in Article VI ("The Senators and Representatives
before mentioned, and the members of the several state legislatures, and all
executive and judicial officers, both of the United States and of the
several states, shall be bound by oath or affirmation, to support this
Constitution..."), they agreed to the supremacy clause. The principles and
the wording were built upon the unseverable covenant of the Articles of
Confederation.


It might seem to some that the feds are not supporting the constitution
and seceeded states might support it better

Free men own guns - www(dot)geocities(dot)com/CapitolHill/5357/
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Ed, I think that you are right about the lack of voter support for Nick's
idea of secession. I also agree with Nick that our "leaders" have tromped
merrily over the Constitution and usurped power not specifically granted to
the Federal Government. This I think needs to be stopped. We had a
Constitutional Amendment to stop booze. We didn't bother with an Amendment
for the Drug war and are merrily locking away people when found with small
amounts of Marijuana and in fact have created a similar industry to that run
by the gangs in prohibition days. We didnt' bother with an Amendment when
Bush latched on to the power to declare someone an enemy combatant and strip
them of their Constitutionally guranteed rights. Further as Naomi Wolf
says in her book, the changes that have been going on in our government
parallel closely those used by historically famous dictators. I don't think
that Constitutional Amendments are going to work anymore if the Elected
Representatives choose to ignore the Constitution to start with.
Stu Fields
"Ed Huntress" wrote in message
...

"nick hull" wrote in message
.. .
In article ,
"Ed Huntress" wrote:

Besides the oaths made in Article VI ("The Senators and Representatives
before mentioned, and the members of the several state legislatures, and
all
executive and judicial officers, both of the United States and of the
several states, shall be bound by oath or affirmation, to support this
Constitution..."), they agreed to the supremacy clause. The principles
and
the wording were built upon the unseverable covenant of the Articles of
Confederation.


It might seem to some that the feds are not supporting the constitution
and seceeded states might support it better


You're welcome to vote for someone who would support that, Nick. But don't
be surprised if most voters don't agree with you.

--
Ed Huntress




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"Stuart & Kathryn Fields" wrote in message
.. .
Ed, I think that you are right about the lack of voter support for Nick's
idea of secession. I also agree with Nick that our "leaders" have tromped
merrily over the Constitution and usurped power not specifically granted
to the Federal Government. This I think needs to be stopped. We had a
Constitutional Amendment to stop booze. We didn't bother with an
Amendment for the Drug war and are merrily locking away people when found
with small amounts of Marijuana and in fact have created a similar
industry to that run by the gangs in prohibition days. We didnt' bother
with an Amendment when Bush latched on to the power to declare someone an
enemy combatant and strip them of their Constitutionally guranteed rights.
Further as Naomi Wolf says in her book, the changes that have been going
on in our government parallel closely those used by historically famous
dictators. I don't think that Constitutional Amendments are going to work
anymore if the Elected Representatives choose to ignore the Constitution
to start with.


You have some good points, Stu, and I think a lot of the blame has to fall
on Congress for not contesting Bush's usurpations. There's a lot of
discussion in policy circles these days about how difficult it is to roll
back presidential powers once they're implemented if Congress doesn't
challenge them. For the most part, only Congress has standing to challenge
those things in court. But such challenges rarely get to the Supreme Court
because nobody likes a Constitutional crisis.

The thing that makes it sticky right now is our semi-war footing. During a
war, presidential powers usually are granted and allowed to slide. After the
war is over, everyone understands that the president can't expect Congress
to go along with any special powers assumed during the war. Congress now is
somewhat between a rock and a hard place, because the realists know they
can't just pull out of Iraq, and they're giving Bush as much slack as they
can to prosecute the war and get it over with. Of course, there also are
plenty in Congress who want out right now, but not enough to make anything
stick, legally.

But I'm among those who think they have allowed too much, and they should
force a confrontation on many issues now, while Bush is a lame duck and has
little sway over Republicans in Congress. Now is the time to roll those
things back.

--
Ed Huntress


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Default 2nd Amend. case

I don't recall that but to me I am not sure what they will do. They may
find
it an individual right but I think they are just as likely not to. You

do
know that I think there is an individual right simply by my reading of

the
amendment and my knowledge of early American history.


Oh, I'm not sure what they'll do, either. Predicting what the S.C. will do
on any case is foolish, but it's still worth a guess. My guess is that
they'll decide for an individual right; that they won't incorporate it at
this point; and that they'll do something strange with the matter of
scrutiny. And what they do about scrutiny will determine whether the case

is
remanded back to the Circuit Court of Appeals.


How they will come down on this is difficult if not impossible to know but
the best guess comes from the personal viewpoints of the justices. I don't
see how they can remand this case. This case is ripe. They put it off for
years when Rhenquest was in charge because he was dodging it. Now's the time
to decide it especially with so many conservatives on the bench. That will
change if we get a Democrat in the White House. If I was betting I'd say
they will come down on the side of individual rights but then will qualify
it somehow so as to not really give the full right to the public.


While I'm sticking my neck out, I'm also going to guess that Scalia and
Thomas will file a concurring brief that rejects a substantive due process
basis (which is what I'm guessing the majority will use to decide the

case)
and make a pitch for restoring the priviledges and immunities clause.

Thomas
may also argue for incorporation.


Guessing they will see the right for the individual is one thing but
predicting that Scalia and Thomas will concur isn't sticking your neck out.
They may take different routes to explain themselves but they will wind up
in the same place.

I reject your argument that because certain courts had a position on the
amendment that holds any weight. BTW, that's a logical fallacy of
appealing
to authority.


Now, there's an interesting turn. Since the issue is the authority of the
Supreme Court, I think the claim of logical fallacy is an oxymoron. d8-)


That isn't what I meant. I acknowledge the supremecy of the Supreme Court's
decision. What I meant was that just because six circuit courts had decided
a certain way or that the accepted view is such and such doesn't mean it's
the right decision. Saying that because of the authority of circuit courts
or to other legal authorities means the 2nd amendment means X doesn't mean
that is a fact. X is the court's opinion. It may be right but maybe not. In
this case I was saying using them as the authority that the 2nd amendment
was about militias was an appeal to authority and not a valid argument in an
of itself.



This is about what the Court is going to do, Hawke. As I've said

repeatedly,
arguing the case here is a waste of time. The issue is the case, and the
coming decision. They *do* have the authority. So there's no fallacy
involved. Their authority is the core of the issue.


No question about SC authority just on whether accepting the earlier court's
holding
is an appeal to authority. As to arguing the case, yes, that doesn't make a
lot of sense because I get the impression that for the most part we agree on
the meaning of the 2nd amendment.

Hey, I'm not arguing the 2nd here. I'm discussing the Court case. If I
wanted to argue the 2nd, I can take either side. I've done in many times
before but I won't do it again. If we did, all you have to tell me is

which
doctrines of interpretation will be used to decide the case:


I think what I'm trying to say is that whatever legal interpretation one
chooses to use it's just a cover for what they really think. Some justices
think the 2nd Amendment is about militias and some think the opposite. They
can pick and choose any legal argument they want to justify what they want
to decide.


http://www.constitution.org/cons/prin_cons.htm

In particular, if you're going to go for originalism, you'd have to tell

me
if it's going to be "original intent" or "original understanding."


That's a good example of what I mean. All those arguments or rationals for a
decision are beside the point. What does the judge actually believe the
amendments says? The answer to that is what determines what "interpretation"
he takes to explain his decision.

Well, that's your point of view. Numerous courts have disagreed.


Of course they have. That's because different courts have judges that have
different political persuasions. Maybe it's the political scientist in me
but I always attribute legal decisions to political motives. You want a
conservative opinion go to a republican judge. Want a liberal opinion on the
same issue, go to a progressive judge.


You've made an assumption here that is part of why various courts have
disagreed with you. Your argument, you claim, is based on intent, or
sometimes you argue more on the basis of original understanding. The case
for that depends upon how close you're going to hold to the key sources.

For
example, if you're Robert Bork, you're going to lean on the text; you'll
follow the principle that all words have meaning; and you're going to

refer
first to the debates in the First Congress for guidance. That will lead

you
to a conclusion that the 2nd Amendment was a recognition of the states'
authority to arm their militias as they wish -- with already-armed

citizens,
if they so desire. But it will be all about militias


You're right that I do argue original intent whenever possible. But other
times I think what the founder's thought is no longer relevant or simply
doesn't apply and a new standard has to be created. I'm adaptable. I look at
the plain language of the amendment and I look at what the writers intended,
which I get from historical references and writings. I could see how someone
could misinterpret the 2nd amendment though and believe it was all about
militias, that is if they didn't know American history. But I do. Lots of
legal minds are great on the law but know nothing about history.

You do know that the founders put the Bill of Rights in a specific order
with the most important first and the least important farther down the list,
right? Because if you know this it's hard to believe that the founding
fathers thought the question of militias was second in importance only to
the rights protected by the first amendment.


Now, if you accept a wider circle of "approved commentators" or

"recognized
authorities," you probably arrive at an individual right. But these are

two
different, legitimate principles of jurisprudence.

Many people who defend the individual right, like Gunner and his crew,

claim
to be hard-nosed originalists. Judge Bork is a conservative and the
quintessential hard-nosed originalist. And he arrives at the conclusion

that
the right indicated in the 2nd Amendment is a collective one.


He probably is one of those guys who knows everything about law but nothing
about history. How you can be a strict originalist and come up with an
opinion that denies that the 2nd amendment was meant to protect the people's
right to arm themselves seems competely irrational. Unless you realize that
Bork is a right wing type that is for giving the government dictatorial
powers in a number of areas. At the heart of his view is that no matter what
the government has a right to protect itself at all costs. A free and armed
people is at odds with that view. But idealogues like Bork are known for
being inconsistent. That comes from having to fit everything into a set of
preconceived ideas.



The irony is that he's also opposed to gun control. But not because of the
2nd Amendment.


See, inconsistent.


I think much of your "understanding" about how judges think is based on

your
own prejudices.


Not prejudices, observations.

FWIW, I don't think you "know all the arguments" favoring the
militia/collective right idea, despite what you said. But I've been
trying
hard not to get into a debate with you about this because I don't

really
care what arguments you might make. What I'm interested in, and what

people
who care about the 2nd should be interested in, is not the fortress of
self-fulfilling arguments gun owners have built to convince themselves,

but
rather what arguments are being made by the petitioner and the

respondent
in
the case at hand, which promises to be the most significant 2nd

Amendment
case in modern history. It's going to be a close call, possibly a mixed
result, and an important window on the current state of the scope of
"liberties" that will be adjudicated in substantive due process cases.

It
has a lot of import and it could have a lot of consequences for all of
us,
even beyond the question of the 2nd itself.


I question your calling this decision one of monumental proportions. I don't
think they will come up with anything definitive. They'll dance around the
real issue and come up with some half assed opinion that goes half way to
saying the right is to protect individual gun owner's rights. I also predict
that all the "liberal" justices will find that the right is not an
individual one. I know, that's not going out on much of a limb, is it?


The two "interested" sides in this issue are the pro gun
groups/individuals,
who want there to be an individual right to bear arms, and the anti gun
groups/individuals who don't want there to be an individual right to

bear
arms. Then there are those of us like me who are neither. We look at the
amendment itself and at the founding fathers and at what they wanted and
what the amendment actually says and was meant to do. Without having a

dog
in the fight, and after looking at a very simple and understandable
amendment, my reading and understanding of it is that it was designed to
protect the people from being arbitrarily deprived of their weapons by

an
overzealous or tyranical government.


That sounds like a militia argument, right?


Uh, no, not really. My reading of the amendment is that the clause about the
militias is simply meant as an explanation of why the right is for the
people to keep arms. Militias and all that pertains to them is under the
purview of the states and they have the right to do whatever they want to
regarding them. That is not an issue of national magnitude like the right to
arms is. The constitutional amendment is meant to guarantee a right from
usurpation by the national and state governments.


That is my opinion of what the
amendment is for and is why it was put there to begin with.


OK, so you have a self-armed militia. But it's still a militia. And the
states decide how to arm the militia, correct? That's the unequivocal
conclusion drawn from the 2nd; the minimum that can't be seriously argued.


You can call individuals with arms a militia if you want but unless it is
organized somehow it's simply individuals with their own private weapons. I
don't disagree that the states control their own militias but that comes
from other sections of the constitution and not the Bill of Rights. The Bill
of Rights is meant to restrain the federal government in regards to the
people's rights.


I'll submit that you probably don't have a full grasp of the meaning of a
nominative absolute sentence (something else I addressed at length earlier
and then deleted), and that you're not being mindful of the Constitutional
principle explained in the list of interpretive principles I linked to
above:


I'll have to disagree; especially when the sentence is well written and is
only sixteen words long. I would submit that if someone like me with 20
years of education and some of that is in the field of law cannot understand
what a sentence like the one in the 2nd amendment means then the founding
fathers did one hell of a bad job in writing it. Because if I can't grasp
the true meaning of it then there aren't many who can. And I would also
suggest that the writers of that amendment kept it short for one reason,
that they wanted it to be easily understood by all and for its meaning to be
clear and unambiguous. The alternative is that they wanted their amendment
to be so arcane and difficult to understand that only a few highly trained
experts could comprehend it. Something tells me that was not their intent
even though I didn't read that anywhere. 8-)


"None of the words are without force and effect, except those superseded

by
amendments, unless such amendments are repealed. Except for the statement

of
purpose in the preamble, every word was intended by the Framers to be
legally normative, and not just advisory, declaratory, aspirational, or
exhortatory. Verba intelligi ut aliquid operantur debent. Words should be
interpreted to give them some effect."


That sounds like a definition of legal parsing to me. There is the meaning
of each and every word and then there is the meaning of the sentence and the
paragraph. One can easily lose the meaning of the whole when concentrating
too much on the parts. Unnecessarily complicating the meaning of the 2nd
amendment is just another way of making an argument as to it's actual
meaning. If everyone could understand what it meant it wouldn't be possible
to argue about it's meaning. I still say it means yea or nay.

That's a long-standing and fundamental principle in constitutional
jurisprudence. It means that the words relating to militia must be
interpreted to have effect.


I'm sure they do but they just were not meant to protect the right to
militias. That right falls under the rights reserved to the states. The Bill
of Rights was added to the constitution after it was written and those
rights enumerated were some of the most vital to the protection of the
people. Nothing about militias falls in that category. The right to arms,
yeah.


That's an opinion, and it contradicts an attempt by the conservatives to
abandon the principle of substantive due process, which Scalia correctly
calls an oxymoron.


I would call a Scalia opinion and rationality an oxymoron. For a guy who is
supposedly so bright isn't it funny that every decision of his has a far
right political spin to it? When this is the case I think his legal
reasoning comes into question. On the one hand, Scalia sees the government
as having no rights to intervene in anything but on the other he thinks the
SC should intervene in a national election and decide who becomes president.
See what I mean? He's completely inconsistent. He's so far to the right his
decsions are rarely rational. That's why I don't give his "legal" arguments
any weight.


Whether state's rights fall completely off the table depends more on the
judges who fill future Court seats rather than some inexorable historicism
applied to Court decisions. As history shows, they flip-flop from time to
time.


Yes they do but over the long haul they tend to accept certain trends. They
do this because they don't like to make decisions that make big differences,
it gets them in trouble, so they like to do things incrementally over time.



You probably had a bunch of liberal profs. Or they were just tired of the
argument. Other people involved are not tired of it, and are still

fighting
it. For example, at least two, and maybe as many as four, sitting Supreme
Court justices.


Aren't all profs liberal? I haven't found a lot of Ph.Ds that are right
wing. As to the 14th debate I just don't see it as much of a big issue
anymore. It's like tobacco being addictive. Some still say it's not, like
tobacco company CEOs. But for all intents and purposes it's decided. I think
that is what we have here. Some still haven't accepted that supremecy of the
federal government in all areas as deemed by the 14th amendment but the rest
of us see it as inevitible.


No need to argue that even though in the long run Hugo's view will
eventually be the accepted one in law. It's only an issue because of the
regressive, ultra conservatives who don't want to accept the role the
government has taken in our society.


Opinion on your part. Liberal opinion. It sounds Warreneske, as if nothing
has happened over the past 20 years.


It depends on your perspective. Conservatives are still fighting to limit
federal power but the majority don't go along with that view. If that's the
majority view then it's not a liberal one. Only the conservative political
justices are arguing the 14th doesn't apply. It's like global warming. Go
anywhere on the planet and the widely held view is man is causing it. Come
to the US and the only people who say it isn't are conservatives.

As usual the conservative justices are
trying to bring the country back to the ideal days when women were

chattel
and blacks were private property. They will go the way of the passenger
pidgeon but it's taking a long time for them to go, unfortunately.


Incorrect supposition. What they're trying to do is to get away from the
substantive due process "extensions" and to return to deciding

unenumerated
rights on the "life, liberty, property" principle that they feel was the
sound basis for the priviledges and immunities clause. This has happened a
few times, under the 5th Amendment, and the conservative Court feels it's
better juridprudence. They're ready to overturn that decision from the
Slaughterhouse Cases, if they get the chance. The result would be a

somewhat
narrower list of incorporated rights.


You can believe that if you want. You think it's just a matter of legal
principles and which applies best to a specific fact pattern? I don't. I see
conservatives trying to maintain the status quo or to return to policies
that were the norm in the 1950s. You give them too much credit. They are
just people and nothing special. Believe me, I know and understand
conservatives and judges are no different than anyone else. They like to
hide behind legalisms to pretend they don't have a hidden agenda they are
secretly trying to advance. I've never met one that didn't have one.



Yes, it's tough isn't it? If you say the 2nd amendment guarantees the
right
of the citizens to arms that makes them a threat to the safety of

everyone
in government. How do you come up with a reasoning that says people can
have
guns but not the kind or enough of them to threaten the government?




I don't think you can. Nor has anyone made that argument. The safety issue
is about other citizens. It's all over the place in the petitioner's brief
and the related amici.


I don't know about you Ed. I think you're being awful naive. You know that
when they say it's not about the money, it's about the money? Well, when
they say it's about the safety of the people, it's not. It's about the
safety of the state. People say that armed citizens can't do anything about
the army so the 2nd isn't relevant to the people's ability to overthrow the
government. Just imagine if 10,000 armed citizens showed up at the main
police station in your city. Think that would mean anything to the cops?
It's been known for thousands of years that when the populace is aroused
they can do just about anything and if they are an armed populace they are
that much more of a force. The bottom line is what is the 2nd amendment
about militias or something else. I say something else. Just an opinion, of
course.


I think you're getting carried away.


In recent years, Rehnquist, Thomas, and Scalia have all argued against
incorporation in various cases. Besides them, there is Harvard's Akhil

Amar,
probably one of the top three Constitutional scholars in the business

today,
who has argued persuasively against incorporation of the religious
Establishment Clause, of all things, in his book _The Bill of Rights:
Creation and Reconstruction_. That book today is considered the last word

on
the incorporation of the Bill of Rights by many legal scholars.


I'm not familiar with him or his book so I can't comment on it. But you'll
notice that those against incorporation all have one thing in common, ultra
conservatism. I know nothing about Amar but is it possible he's a
conservative too? Do you know?



So, again, I think you have been a bit misled. Incorporation is not a done
deal. We see states' rights emerge from time to time in various cases. The
doctrine of substantive due process is an embarrassment among many legal
scholars on both sides of the liberal/conservative divide, just as the 2nd
Amendment itself is an embarrassment (recall Sanford Levinson's Yale Law
Review article by that name: "The Embarrassing Second Amendment"). And,

like
Dred Scott, it's an open secret that the Slaughterhouse Cases are a bad
precedent that we continue to live with and accept.


Bad law and the US Supreme Court! Gee, how common is that?


The point is that there is no standing doctrine that says "yes," except
as
the Court decides each issue. There is no "yes" on habeas corpus. There
is
no "yes" on grand juries. And there is no "yes" on the 2nd Amendment.

The
thing about the 2nd is that there are interpretations of it that could

lead
to an individual right, but not to incorporation. That's why the

respondents
in this case specifically chose to avoid the issue.


That's the way of the law. Nothing changes until it absolutely has to

and
every nit has to be argued over endlessly. If it wasn't done like that
look
how many less billable hours attorneys would be entitled to. It takes
forever to resolve legal issues and even when you think it's finally
decided
someone decides to argue it some more. No wonder lawyers bill by the

hour
instead of the job.

Now, if you want to take issue with this and have the last word, go for

it.
I'm not interested in arguing the 2nd Amendment in terms that were laid

out
20 or 30 years ago. I've done that dozens of times. I am interested in
the
case at hand and the way it's being argued. But that's all in the

briefs.
How the Court reacts to it will be in the oral argument. The rest is

just
background noise.


I'm less interested in the briefs and the legal arguments because the
opposing sides are so partisan. They will make any argument over any and
every issue if they think it will help them win. They don't care about
what
the constitution really means because all they want is to advance their
political goal. It's like a divorce case were all the sides care about

is
getting the most money and don't give a **** about what's fair. I'm

about
what is right. I think that is the nub of our debate.


No, it's not. The nub of our debate is that the only relevent subject is

the
upcoming hearing about the 2nd Amendment. The case you're making, which is

a
watered-down version of the case made in several of the amicus briefs, is
only half of the story. The other half is the *opposing* case that's being
made.


I hate to say it but I have become bored over most legal cases over the last
few years because I see them as ways to avoid making necessary and hard
decisions and instead simply as ways to argue with opponents without
actually doing anything substantive. Ultimately, what I am saying is that to
me the anti individual rights argument is simply without merit. If I was a
judge ruling on the case I would throw out the petitioner's case as
frivilous. You, on the other hand seem quite interested in the merits of the
petitioners' arguments. But as I said, to me it's simple and one side has no
argument. That happens all the time in court. People and business bring
suits all the time that seem meritless. Sometimes they win too which is why
everyone is so afraid of actually litigating. The other thing is that I
think the court will come up with a gutless decision and the outcome of the
case will be meaningless, and things will continue as they have in the past.
Call me a cynic.


I'm interested in an
outcome that is right according to the actual wishes of the founding
fathers
and you are more interested in who comes up with a winning legal

argument
in
the current proceeding. Those are quite different, not wrong just
different.


In other words, what you're interested in is that the Supreme Court sees
things your way. d8-)


But of course, If it was otherwise I wouldn't be human.



If you would repost some of the links to those legal briefs I wouldn't
mind
taking a look at them.


Finally...

Here are all of them in one place:

http://www.gurapossessky.com/news/parker/pleadings.html


Thanks.

Hawke






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Ed Huntress wrote:

"Stuart & Kathryn Fields" wrote in message
.. .

Ed, I think that you are right about the lack of voter support for Nick's
idea of secession. I also agree with Nick that our "leaders" have tromped
merrily over the Constitution and usurped power not specifically granted
to the Federal Government. This I think needs to be stopped. We had a
Constitutional Amendment to stop booze. We didn't bother with an
Amendment for the Drug war and are merrily locking away people when found
with small amounts of Marijuana and in fact have created a similar
industry to that run by the gangs in prohibition days. We didnt' bother
with an Amendment when Bush latched on to the power to declare someone an
enemy combatant and strip them of their Constitutionally guranteed rights.
Further as Naomi Wolf says in her book, the changes that have been going
on in our government parallel closely those used by historically famous
dictators. I don't think that Constitutional Amendments are going to work
anymore if the Elected Representatives choose to ignore the Constitution
to start with.



You have some good points, Stu, and I think a lot of the blame has to fall
on Congress for not contesting Bush's usurpations. There's a lot of
discussion in policy circles these days about how difficult it is to roll
back presidential powers once they're implemented if Congress doesn't
challenge them. For the most part, only Congress has standing to challenge
those things in court. But such challenges rarely get to the Supreme Court
because nobody likes a Constitutional crisis.

The thing that makes it sticky right now is our semi-war footing. During a
war, presidential powers usually are granted and allowed to slide. After the
war is over, everyone understands that the president can't expect Congress
to go along with any special powers assumed during the war. Congress now is
somewhat between a rock and a hard place, because the realists know they
can't just pull out of Iraq, and they're giving Bush as much slack as they
can to prosecute the war and get it over with. Of course, there also are
plenty in Congress who want out right now, but not enough to make anything
stick, legally.

But I'm among those who think they have allowed too much, and they should
force a confrontation on many issues now, while Bush is a lame duck and has
little sway over Republicans in Congress. Now is the time to roll those
things back.

--
Ed Huntress



But isn't it the responsibility of the Congress to declare war in the
first place?

Something that has not yet been done for this (or the previous) war?

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On Sat, 23 Feb 2008 21:50:06 -0600, cavelamb himself
wrote:
snip
But isn't it the responsibility of the Congress to declare war in the
first place?

Something that has not yet been done for this (or the previous) war?

snip
==================
You of course, are entirely correct, except that's 4 wars [Korea,
Vietnam/Laos/Cambodia, Iraq and Afganistan] and several actions
[Balkins, Somalia, and Haiti]

To rephrase an accurate observation into an even more pointed and
more accurate observation: "If its not a Constitution, then its a
suicide pact" [with many unwilling participants]


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"Ed Huntress" wrote:

You have some good points, Stu, and I think a lot of the blame has to fall
on Congress for not contesting Bush's usurpations.


Congress passed NFA27 and GCA68. That would be the pot calling the kettle
black.

Wes
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cavelamb himself wrote:

Something that has not yet been done for this (or the previous) war?


Korea? No
Vietnam No
Balkans? No
GW1? No
GW2? No

I like Ron Paul's position, if Congress won't declare, we are not going.

Wes
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"cavelamb himself" wrote in message
...
Ed Huntress wrote:

"Stuart & Kathryn Fields" wrote in message
.. .

Ed, I think that you are right about the lack of voter support for Nick's
idea of secession. I also agree with Nick that our "leaders" have
tromped merrily over the Constitution and usurped power not specifically
granted to the Federal Government. This I think needs to be stopped. We
had a Constitutional Amendment to stop booze. We didn't bother with an
Amendment for the Drug war and are merrily locking away people when found
with small amounts of Marijuana and in fact have created a similar
industry to that run by the gangs in prohibition days. We didnt' bother
with an Amendment when Bush latched on to the power to declare someone an
enemy combatant and strip them of their Constitutionally guranteed
rights. Further as Naomi Wolf says in her book, the changes that have
been going on in our government parallel closely those used by
historically famous dictators. I don't think that Constitutional
Amendments are going to work anymore if the Elected Representatives
choose to ignore the Constitution to start with.



You have some good points, Stu, and I think a lot of the blame has to
fall on Congress for not contesting Bush's usurpations. There's a lot of
discussion in policy circles these days about how difficult it is to roll
back presidential powers once they're implemented if Congress doesn't
challenge them. For the most part, only Congress has standing to
challenge those things in court. But such challenges rarely get to the
Supreme Court because nobody likes a Constitutional crisis.

The thing that makes it sticky right now is our semi-war footing. During
a war, presidential powers usually are granted and allowed to slide.
After the war is over, everyone understands that the president can't
expect Congress to go along with any special powers assumed during the
war. Congress now is somewhat between a rock and a hard place, because
the realists know they can't just pull out of Iraq, and they're giving
Bush as much slack as they can to prosecute the war and get it over with.
Of course, there also are plenty in Congress who want out right now, but
not enough to make anything stick, legally.

But I'm among those who think they have allowed too much, and they should
force a confrontation on many issues now, while Bush is a lame duck and
has little sway over Republicans in Congress. Now is the time to roll
those things back.

--
Ed Huntress


But isn't it the responsibility of the Congress to declare war in the
first place?

Something that has not yet been done for this (or the previous) war?


Almost all wars, actually. There has been a formal Congressional declaration
in only a handful.

--
Ed Huntress




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In article , cavelamb himself wrote:

But isn't it the responsibility of the Congress to declare war in the
first place?

Something that has not yet been done for this (or the previous) war?

I respectfully suggest that you educate yourself on what a declaration of war
actually is, and is not.

--
Regards,
Doug Miller (alphageek at milmac dot com)

It's time to throw all their damned tea in the harbor again.
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"Doug Miller" wrote in message
...
In article , cavelamb himself
wrote:

But isn't it the responsibility of the Congress to declare war in the
first place?

Something that has not yet been done for this (or the previous) war?

I respectfully suggest that you educate yourself on what a declaration of
war
actually is, and is not.

--
Regards,
Doug Miller (alphageek at milmac dot com)

It's time to throw all their damned tea in the harbor again.

Doug: I took your suggestion to learn more about the declaration of war and
found an excellent, if a bit acerbic, description of the Declaration of War
and Un declared Wars, and Authorized use of force. It seems that our
government has found ways around the intent of the authors of the
Constitution. The President has found a loop hole around the limits placed
on his office. Good executive maneuvering but it opens too many doors for
abuse of power and negates some of the checks and balances designed into our
Constitution. Ron Paul was right. We need to get back to a Constitutional
government.

Stu


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In article , "Stuart & Kathryn Fields" wrote:

"Doug Miller" wrote in message
...
In article , cavelamb himself
wrote:

But isn't it the responsibility of the Congress to declare war in the
first place?

Something that has not yet been done for this (or the previous) war?

I respectfully suggest that you educate yourself on what a declaration of war
actually is, and is not.


Doug: I took your suggestion to learn more about the declaration of war and
found an excellent, if a bit acerbic, description of the Declaration of War
and Un declared Wars, and Authorized use of force. It seems that our
government has found ways around the intent of the authors of the
Constitution. The President has found a loop hole around the limits placed
on his office. Good executive maneuvering but it opens too many doors for
abuse of power and negates some of the checks and balances designed into our
Constitution. Ron Paul was right. We need to get back to a Constitutional
government.


Perhaps you should do a little more digging, because you've missed the point:
a declaration of war is a formal acknowledgement of a situation _that already
exists_ -- see, for example, Franklin Roosevelt's speech on 8 Dec 1941 in
which he requests Congress to issue a declaration of war.

--
Regards,
Doug Miller (alphageek at milmac dot com)

It's time to throw all their damned tea in the harbor again.
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"Stuart & Kathryn Fields" wrote in message
.. .

"Doug Miller" wrote in message
...
In article , cavelamb himself
wrote:

But isn't it the responsibility of the Congress to declare war in the
first place?

Something that has not yet been done for this (or the previous) war?

I respectfully suggest that you educate yourself on what a declaration of
war
actually is, and is not.

--
Regards,
Doug Miller (alphageek at milmac dot com)

It's time to throw all their damned tea in the harbor again.

Doug: I took your suggestion to learn more about the declaration of war
and found an excellent, if a bit acerbic, description of the Declaration
of War and Un declared Wars, and Authorized use of force. It seems that
our government has found ways around the intent of the authors of the
Constitution. The President has found a loop hole around the limits
placed on his office. Good executive maneuvering but it opens too many
doors for abuse of power and negates some of the checks and balances
designed into our Constitution. Ron Paul was right. We need to get back
to a Constitutional government.

Stu


Of the 100 or more military conflicts the US has been involved in, Congress
has only declared war about a half-dozen times. There are some good reasons
for this, because there are two fundamental problems with declaring war:
First, you acknowledge sovereignty and legitimacy to the entity you're
fighting, under international law. You don't want to grant legitimacy to the
Taliban, for example. If you declare war against an entity that grabbed
power illegitimately, or that you don't want to acknowledge that it is the
true representative of a people, then you stay clear of formal declarations.
They'll bite you in the ass.

The second problem is that a formal declaration of war, under law, amounts
to a war against all of the people of that political entity. In Iraq, it
would mean we were at war with the Iraqi people. We didn't want to do that.

This issue is so over-simplified in the popular discussions about it that it
bears almost no relation to the political realities. Congress has handled it
correctly for the most part: pass an enabling bill, don't make a formal
declaration, and get on with the fight.

Ron Paul's ideas are the current incarnation of the conservative bias toward
isolationism, which was the dominant conservative view until WWII. It sounds
good, it's well-motivated, and we'd probably do well to be as cautious about
war as he suggests we should be. But it's also part of a broader
isolationism that would be ruinous to the US in today's world. You can't be
isolationist today. But you can be much more resistant to starting wars than
we have been in recent decades, and we'll all be better off for it.

--
Ed Huntress


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"Doug Miller" wrote in message
t...
In article , "Stuart &
Kathryn Fields" wrote:

"Doug Miller" wrote in message
.. .
In article , cavelamb himself
wrote:

But isn't it the responsibility of the Congress to declare war in the
first place?

Something that has not yet been done for this (or the previous) war?

I respectfully suggest that you educate yourself on what a declaration
of war
actually is, and is not.


Doug: I took your suggestion to learn more about the declaration of war
and
found an excellent, if a bit acerbic, description of the Declaration of
War
and Un declared Wars, and Authorized use of force. It seems that our
government has found ways around the intent of the authors of the
Constitution. The President has found a loop hole around the limits
placed
on his office. Good executive maneuvering but it opens too many doors for
abuse of power and negates some of the checks and balances designed into
our
Constitution. Ron Paul was right. We need to get back to a
Constitutional
government.


Perhaps you should do a little more digging, because you've missed the
point:
a declaration of war is a formal acknowledgement of a situation _that
already
exists_ -- see, for example, Franklin Roosevelt's speech on 8 Dec 1941 in
which he requests Congress to issue a declaration of war.

--
Regards,
Doug Miller (alphageek at milmac dot com)

It's time to throw all their damned tea in the harbor again.

Evidently the issues being discussed are the basis for a continuing debate:
From Wickipedia:
"Extremely heated debate developed in the United States beginning on or
around September 11, 2001. Opponents of the uses of military force since
began to argue, chiefly, that the Iraq War was unconstitutional, because it
lacked a clear declaration of war, and was waged over the objection of a
significantly sized demographic in the United States.

Instead of formal war declarations, the United States Congress has begun
issuing authorizations of force. Such authorizations have included the Gulf
of Tonkin Resolution that greatly increased American participation in the
Vietnam War, and the recent "Authorization of the Use of Military Force"
(AUMF) resolution that started the War in Iraq. Some question the legality
of these authorizations of force. Many who support declarations of war argue
that they keep administrations honest by forcing them to lay out their case
to the American people while, at the same time, honoring the constitutional
role of the United States Congress.

Those who oppose requiring formal declarations of war argue that AUMFs
satisfy constitutional requirements and have an established historical
precedent (see Quasi-War). Furthermore, some have argued that the
constitutional powers of the president as commander-in-chief invest him with
broad powers specific to "waging" and "commencing" war.

The February 6, 2006, testimony of Alberto Gonzales to the U.S. Senate
Judiciary Committee Hearing on Wartime Executive Power and the National
Security Agency's Surveillance Authority, however indicates otherwise:

GONZALES: There was not a war declaration, either in connection with Al
Qaida or in Iraq. It was an authorization to use military force. I only want
to clarify that, because there are implications. Obviously, when you talk
about a war declaration, you're possibly talking about affecting treaties,
diplomatic relations. And so there is a distinction in law and in practice.
And we're not talking about a war declaration. This is an authorization only
to use military force.

The courts have consistently refused to intervene in this matter[citation
needed], and in practice presidents have the power to commit forces with
congressional approval but without a declaration of war."

My point remains that the President has taken on power that could easily,
and in the case of secret prisons and torture, been severly abused. He can
authorize the use of military force without review or approval of Congress.
He can and has labelled individuals and groups of individuals as enemy
combatants and stripped them of due process. Naomi Wolf in her book The End
of America has shown the parallels with this shift of power to those
conditions enabling the move to a dictatorship experienced in Europe. There
needs to be a better defined set of checks and balances of Presidential
power.

Stu




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"Ed Huntress" wrote in message
...

"Stuart & Kathryn Fields" wrote in message
.. .

"Doug Miller" wrote in message
...
In article , cavelamb himself
wrote:

But isn't it the responsibility of the Congress to declare war in the
first place?

Something that has not yet been done for this (or the previous) war?

I respectfully suggest that you educate yourself on what a declaration
of war
actually is, and is not.

--
Regards,
Doug Miller (alphageek at milmac dot com)

It's time to throw all their damned tea in the harbor again.

Doug: I took your suggestion to learn more about the declaration of war
and found an excellent, if a bit acerbic, description of the Declaration
of War and Un declared Wars, and Authorized use of force. It seems that
our government has found ways around the intent of the authors of the
Constitution. The President has found a loop hole around the limits
placed on his office. Good executive maneuvering but it opens too many
doors for abuse of power and negates some of the checks and balances
designed into our Constitution. Ron Paul was right. We need to get back
to a Constitutional government.

Stu


Of the 100 or more military conflicts the US has been involved in,
Congress has only declared war about a half-dozen times. There are some
good reasons for this, because there are two fundamental problems with
declaring war: First, you acknowledge sovereignty and legitimacy to the
entity you're fighting, under international law. You don't want to grant
legitimacy to the Taliban, for example. If you declare war against an
entity that grabbed power illegitimately, or that you don't want to
acknowledge that it is the true representative of a people, then you stay
clear of formal declarations. They'll bite you in the ass.

The second problem is that a formal declaration of war, under law, amounts
to a war against all of the people of that political entity. In Iraq, it
would mean we were at war with the Iraqi people. We didn't want to do
that.

This issue is so over-simplified in the popular discussions about it that
it bears almost no relation to the political realities. Congress has
handled it correctly for the most part: pass an enabling bill, don't make
a formal declaration, and get on with the fight.

Ron Paul's ideas are the current incarnation of the conservative bias
toward isolationism, which was the dominant conservative view until WWII.
It sounds good, it's well-motivated, and we'd probably do well to be as
cautious about war as he suggests we should be. But it's also part of a
broader isolationism that would be ruinous to the US in today's world. You
can't be isolationist today. But you can be much more resistant to
starting wars than we have been in recent decades, and we'll all be better
off for it.

--
Ed Huntress


Ed: My wife and I were hired by the Marshallese government to establish and
operate the Disaster office for the Republic of the Marshall Islands. Due
to agreements specified in their Compact of Free Association they were
guaranteed disaster support from the US in the form of FEMA support. During
that time we became very aware of the arrogant, ignorant diplomatic behavior
of the US. We attended a party where there were Ambassadors to China, Japan
and the UN. We listened to these Ambassadors talk and describe their view
of the US. It was eye opening to say the least. We terminated our
employment after engaging in an argument with the US Ambassador to the RMI.
The argument was caused by the arrogant and ignorant behavior of FEMA. One
example of which was they spent approximately $1M dollars constructing
housing from prestwood panels with no stud reinforement in a severly
tropical environment.
Isolationist? No but our foreign policy creates some pretty bad images.
We asked our boss who was the Chief Secretary of the Trust Territories after
WWII (BTW the only Statesman I've ever met) which occupational force that
controlled the Marshalls, that he found to be the most effective. The
choices were Germany, Japan and the US. Expecting to hear the US who dumps
$$ in there like crazy, he said the Germans.
I later was a disaster consultant to the Aisian Development Bank where I
wrote the Disaster Manual for the RMI.
Approx 40% of the money flowing into the RMI from the Aisian Bank came from
the US. While the RMI liked our money, we didn't win much respect due to
our diplomats and their attitudes and behaviors.
Isolationist? No, but critic of our foreing policies? You betcha.
Condolezza Rice running about telling and applying pressure to other
countries to be more like us is the worst kind of bad.

Stu


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Default 2nd Amend. case

"Hawke" wrote in message
...
I don't recall that but to me I am not sure what they will do. They may
find
it an individual right but I think they are just as likely not to. You

do
know that I think there is an individual right simply by my reading of

the
amendment and my knowledge of early American history.


Oh, I'm not sure what they'll do, either. Predicting what the S.C. will
do
on any case is foolish, but it's still worth a guess. My guess is that
they'll decide for an individual right; that they won't incorporate it at
this point; and that they'll do something strange with the matter of
scrutiny. And what they do about scrutiny will determine whether the case

is
remanded back to the Circuit Court of Appeals.


How they will come down on this is difficult if not impossible to know but
the best guess comes from the personal viewpoints of the justices. I don't
see how they can remand this case. This case is ripe. They put it off for
years when Rhenquest was in charge because he was dodging it. Now's the
time
to decide it especially with so many conservatives on the bench.


That's not why they might remand the case. It's about levels of scrutiny,
and the effect it would have on existing gun laws. This is all laid out
clearly in the amicus brief from the Department of Justice and the original
petitioner's brief.

I have to say that it's entertaining to watch you recreate this case in your
imagination, when the issues that are before the Court are all laid out on
paper. d8-)

And you're continuing to argue the 2nd itself, which really is a boring and
burned-out enterprise for those who have been involved in these arguments
for years, Hawke. I'm surprised you're still at it. Again, the interesting
issue is how this case is going to be decided. You really must read the case
if you're going to understand what's going on.

As for Amar being a "conservative," I think you'd better look him up. He's
become very important and likely will carry the banner after Tribe retires.
He's collaborated with Tribe on various issues, including the 2nd Amendment.

Let me know if you get around to reading the briefs.

--
Ed Huntress


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"Stuart & Kathryn Fields" wrote in message
.. .

"Ed Huntress" wrote in message
...

"Stuart & Kathryn Fields" wrote in message
.. .

"Doug Miller" wrote in message
...
In article , cavelamb himself
wrote:

But isn't it the responsibility of the Congress to declare war in the
first place?

Something that has not yet been done for this (or the previous) war?

I respectfully suggest that you educate yourself on what a declaration
of war
actually is, and is not.

--
Regards,
Doug Miller (alphageek at milmac dot com)

It's time to throw all their damned tea in the harbor again.
Doug: I took your suggestion to learn more about the declaration of war
and found an excellent, if a bit acerbic, description of the Declaration
of War and Un declared Wars, and Authorized use of force. It seems that
our government has found ways around the intent of the authors of the
Constitution. The President has found a loop hole around the limits
placed on his office. Good executive maneuvering but it opens too many
doors for abuse of power and negates some of the checks and balances
designed into our Constitution. Ron Paul was right. We need to get
back to a Constitutional government.

Stu


Of the 100 or more military conflicts the US has been involved in,
Congress has only declared war about a half-dozen times. There are some
good reasons for this, because there are two fundamental problems with
declaring war: First, you acknowledge sovereignty and legitimacy to the
entity you're fighting, under international law. You don't want to grant
legitimacy to the Taliban, for example. If you declare war against an
entity that grabbed power illegitimately, or that you don't want to
acknowledge that it is the true representative of a people, then you stay
clear of formal declarations. They'll bite you in the ass.

The second problem is that a formal declaration of war, under law,
amounts to a war against all of the people of that political entity. In
Iraq, it would mean we were at war with the Iraqi people. We didn't want
to do that.

This issue is so over-simplified in the popular discussions about it that
it bears almost no relation to the political realities. Congress has
handled it correctly for the most part: pass an enabling bill, don't make
a formal declaration, and get on with the fight.

Ron Paul's ideas are the current incarnation of the conservative bias
toward isolationism, which was the dominant conservative view until WWII.
It sounds good, it's well-motivated, and we'd probably do well to be as
cautious about war as he suggests we should be. But it's also part of a
broader isolationism that would be ruinous to the US in today's world.
You can't be isolationist today. But you can be much more resistant to
starting wars than we have been in recent decades, and we'll all be
better off for it.

--
Ed Huntress


Ed: My wife and I were hired by the Marshallese government to establish
and operate the Disaster office for the Republic of the Marshall Islands.
Due to agreements specified in their Compact of Free Association they were
guaranteed disaster support from the US in the form of FEMA support.
During that time we became very aware of the arrogant, ignorant diplomatic
behavior of the US. We attended a party where there were Ambassadors to
China, Japan and the UN. We listened to these Ambassadors talk and
describe their view of the US. It was eye opening to say the least. We
terminated our employment after engaging in an argument with the US
Ambassador to the RMI. The argument was caused by the arrogant and
ignorant behavior of FEMA. One example of which was they spent
approximately $1M dollars constructing housing from prestwood panels with
no stud reinforement in a severly tropical environment.
Isolationist? No but our foreign policy creates some pretty bad images.
We asked our boss who was the Chief Secretary of the Trust Territories
after WWII (BTW the only Statesman I've ever met) which occupational
force that controlled the Marshalls, that he found to be the most
effective. The choices were Germany, Japan and the US. Expecting to hear
the US who dumps $$ in there like crazy, he said the Germans.
I later was a disaster consultant to the Aisian Development Bank where I
wrote the Disaster Manual for the RMI.
Approx 40% of the money flowing into the RMI from the Aisian Bank came
from the US. While the RMI liked our money, we didn't win much respect
due to our diplomats and their attitudes and behaviors.
Isolationist? No, but critic of our foreing policies? You betcha.
Condolezza Rice running about telling and applying pressure to other
countries to be more like us is the worst kind of bad.

Stu


So, how does this fit with your statement that we should "get back to
Constitutional government," Stu? I don't disagree with you about the state
of our foreign diplomacy (the reason I decided not to go into the diplomatic
service, after spending three years spent studying comparative politics in
the US and Europe). But that seems to me to argue for better diplomats
rather than anything to do with the Constitution itself.

--
Ed Huntress


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"nick hull" wrote in message
.. .
In article ,
"Ed Huntress" wrote:

The second problem is that a formal declaration of war, under law,
amounts
to a war against all of the people of that political entity. In Iraq, it
would mean we were at war with the Iraqi people. We didn't want to do
that.


The problem is that we are killing Iraqi civilians wholesale. There is
insufficient differentiation between Saddam Hussein's troops and
civilians. For every innocent civilian we kill, we make 2 enemies -
just like Vietnam.


Yup, war is hell.

--
Ed Huntress


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Default Secession

In article ,
"Ed Huntress" wrote:

The second problem is that a formal declaration of war, under law, amounts
to a war against all of the people of that political entity. In Iraq, it
would mean we were at war with the Iraqi people. We didn't want to do that.


The problem is that we are killing Iraqi civilians wholesale. There is
insufficient differentiation between Saddam Hussein's troops and
civilians. For every innocent civilian we kill, we make 2 enemies -
just like Vietnam.

Free men own guns - www(dot)geocities(dot)com/CapitolHill/5357/


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Ed, I think that you are right about the lack of voter support for

Nick's
idea of secession. I also agree with Nick that our "leaders" have

tromped
merrily over the Constitution and usurped power not specifically granted
to the Federal Government. This I think needs to be stopped. We had a
Constitutional Amendment to stop booze. We didn't bother with an
Amendment for the Drug war and are merrily locking away people when

found
with small amounts of Marijuana and in fact have created a similar
industry to that run by the gangs in prohibition days. We didnt' bother
with an Amendment when Bush latched on to the power to declare someone

an
enemy combatant and strip them of their Constitutionally guranteed

rights.
Further as Naomi Wolf says in her book, the changes that have been going
on in our government parallel closely those used by historically famous
dictators. I don't think that Constitutional Amendments are going to

work
anymore if the Elected Representatives choose to ignore the Constitution
to start with.



You have some good points, Stu, and I think a lot of the blame has to

fall
on Congress for not contesting Bush's usurpations. There's a lot of
discussion in policy circles these days about how difficult it is to

roll
back presidential powers once they're implemented if Congress doesn't
challenge them. For the most part, only Congress has standing to

challenge
those things in court. But such challenges rarely get to the Supreme

Court
because nobody likes a Constitutional crisis.

The thing that makes it sticky right now is our semi-war footing. During

a
war, presidential powers usually are granted and allowed to slide. After

the
war is over, everyone understands that the president can't expect

Congress
to go along with any special powers assumed during the war. Congress now

is
somewhat between a rock and a hard place, because the realists know they
can't just pull out of Iraq, and they're giving Bush as much slack as

they
can to prosecute the war and get it over with. Of course, there also are
plenty in Congress who want out right now, but not enough to make

anything
stick, legally.

But I'm among those who think they have allowed too much, and they

should
force a confrontation on many issues now, while Bush is a lame duck and

has
little sway over Republicans in Congress. Now is the time to roll those
things back.

--
Ed Huntress



But isn't it the responsibility of the Congress to declare war in the
first place?

Something that has not yet been done for this (or the previous) war?



The problem is that if no one is willing to say that using the military to
attack other nations is "war" then the Congress will never have a say in
when the country goes to war. This runs completely contrary to the wishes of
the Founders who specifically gave only the Congress the power to declare
war. Little did they know that the modern president would take this duty
over and make himself the one and only arbiter of whether the country goes
to war. In other words, our president can act like a king and do whatever he
wants with the military. If the Founding Fathers could see this they would
be rolling in their graves. If the Congress was not so incredibly weak this
wouldn't be a problem but in the time since WWII Congress has delegated the
power to go to war to the executive branch. Clearly unconstitutional, but
what can you do when the Supreme Court is a cabal of right wingers who
believe in executive branch sovereignty and allow him free reign to do
anything he wants?

Hawke


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Hawke wrote:

The problem is that if no one is willing to say that using the military to
attack other nations is "war" then the Congress will never have a say in
when the country goes to war. This runs completely contrary to the wishes of
the Founders who specifically gave only the Congress the power to declare
war. Little did they know that the modern president would take this duty
over and make himself the one and only arbiter of whether the country goes
to war. In other words, our president can act like a king and do whatever he
wants with the military. If the Founding Fathers could see this they would
be rolling in their graves.



If they were able to roll over, they wouldn't be dead, and wouldn't
need graves, you idiot.


--
Service to my country? Been there, Done that, and I've got my DD214 to
prove it.
Member of DAV #85.

Michael A. Terrell
Central Florida
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On Sun, 24 Feb 2008 15:57:41 -0800, "Hawke"
wrote:
snip
Little did they know that the modern president would take this duty
over and make himself the one and only arbiter of whether the country goes
to war. In other words, our president can act like a king and do whatever he
wants with the military.

snip
================
If I was a congressperson and wanted to retain my seat, this is
exactly the line I would use.

All Congress has to do is insert language making all funding
non-fungible [i.e. can be used only for the purpose for which it
was appropriated] in all the spending bills with draconian
penalties and large rewards for evasion, and make sure the
spending bills describe exactly where the personnel including not
only the military but also mercenary contractors and contract
assassins can be employed.

For example they can force the redeployment of the US Marine
garrison from Okinawa to the southern border of the US by
providing funding only for troops stationed on the southern
border and none for troops stationed in Japan.

The GAO and other financial monitors continue to report huge sums
of money and gigantic amounts of missing materials/supplies,
specifically including military hardware and weapons, which
cannot be accounted for.

To a overwhelming degree the Congress in aggregate has earned
(and continues to earn) the contempt with which it is treated by
the Administration and in which it is held by the American
electorate, and it appears large numbers of the current members
have engaged in actions and activities which have rendered them
especially vulnerable to "unofficial" pressures [translation: we
got color pictures, tapes, and DVDs....] ranging from illicit sex
with minors to gross bribery and mis-, mal-, and nonfeasance in
office.

The actions and warnings of the few honorable and honest members
are overwhelmed by the pervasive institutional corruption and
sleaze.

When the "ship hits the fan," remember we brought it on our
selves.








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Ed Huntress wrote:


Of the 100 or more military conflicts the US has been involved in, Congress
has only declared war about a half-dozen times. There are some good reasons
for this, because there are two fundamental problems with declaring war:
First, you acknowledge sovereignty and legitimacy to the entity you're
fighting, under international law. You don't want to grant legitimacy to the
Taliban, for example. If you declare war against an entity that grabbed
power illegitimately, or that you don't want to acknowledge that it is the
true representative of a people, then you stay clear of formal declarations.
They'll bite you in the ass.

The second problem is that a formal declaration of war, under law, amounts
to a war against all of the people of that political entity. In Iraq, it
would mean we were at war with the Iraqi people. We didn't want to do that.

This issue is so over-simplified in the popular discussions about it that it
bears almost no relation to the political realities. Congress has handled it
correctly for the most part: pass an enabling bill, don't make a formal
declaration, and get on with the fight.

Ron Paul's ideas are the current incarnation of the conservative bias toward
isolationism, which was the dominant conservative view until WWII. It sounds
good, it's well-motivated, and we'd probably do well to be as cautious about
war as he suggests we should be. But it's also part of a broader
isolationism that would be ruinous to the US in today's world. You can't be
isolationist today. But you can be much more resistant to starting wars than
we have been in recent decades, and we'll all be better off for it.

--
Ed Huntress



So are we in a war, or a squabble?
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nick hull wrote:

In article ,
"Ed Huntress" wrote:


The second problem is that a formal declaration of war, under law, amounts
to a war against all of the people of that political entity. In Iraq, it
would mean we were at war with the Iraqi people. We didn't want to do that.



The problem is that we are killing Iraqi civilians wholesale. There is
insufficient differentiation between Saddam Hussein's troops and
civilians. For every innocent civilian we kill, we make 2 enemies -
just like Vietnam.

Free men own guns - www(dot)geocities(dot)com/CapitolHill/5357/



War is not about hearts and minds.
It's about killing people and breaking things.

Sometimes innocent people happen along in the wrong place at the wrong time.

Sad, of course.
But that's the eay it is with wars.

And why tehy are to be avoided if possible.


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When the president 'sues' (legal term) the congress to declare war
upon declaration all sorts of things happen. Legal control over the people
start to shift and laws come into play. A true declared war also invokes
a number of treaties around the world and force those countries into war
along our sides. Some of which are SEATO, NATO, and a number of other
non-public declarations with a number of countries. This can be a rather
tricky red hot razor wire to walk upon.

Martin

Martin H. Eastburn
@ home at Lions' Lair with our computer lionslair at consolidated dot net
TSRA, Endowed; NRA LOH & Patron Member, Golden Eagle, Patriot's Medal.
NRA Second Amendment Task Force Charter Founder
IHMSA and NRA Metallic Silhouette maker & member.
http://lufkinced.com/


F. George McDuffee wrote:
On Sat, 23 Feb 2008 21:50:06 -0600, cavelamb himself
wrote:
snip
But isn't it the responsibility of the Congress to declare war in the
first place?

Something that has not yet been done for this (or the previous) war?

snip
==================
You of course, are entirely correct, except that's 4 wars [Korea,
Vietnam/Laos/Cambodia, Iraq and Afganistan] and several actions
[Balkins, Somalia, and Haiti]

To rephrase an accurate observation into an even more pointed and
more accurate observation: "If its not a Constitution, then its a
suicide pact" [with many unwilling participants]


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"cavelamb himself" wrote in message
...
Ed Huntress wrote:


Of the 100 or more military conflicts the US has been involved in,
Congress has only declared war about a half-dozen times. There are some
good reasons for this, because there are two fundamental problems with
declaring war: First, you acknowledge sovereignty and legitimacy to the
entity you're fighting, under international law. You don't want to grant
legitimacy to the Taliban, for example. If you declare war against an
entity that grabbed power illegitimately, or that you don't want to
acknowledge that it is the true representative of a people, then you stay
clear of formal declarations. They'll bite you in the ass.

The second problem is that a formal declaration of war, under law,
amounts to a war against all of the people of that political entity. In
Iraq, it would mean we were at war with the Iraqi people. We didn't want
to do that.

This issue is so over-simplified in the popular discussions about it that
it bears almost no relation to the political realities. Congress has
handled it correctly for the most part: pass an enabling bill, don't make
a formal declaration, and get on with the fight.

Ron Paul's ideas are the current incarnation of the conservative bias
toward isolationism, which was the dominant conservative view until WWII.
It sounds good, it's well-motivated, and we'd probably do well to be as
cautious about war as he suggests we should be. But it's also part of a
broader isolationism that would be ruinous to the US in today's world.
You can't be isolationist today. But you can be much more resistant to
starting wars than we have been in recent decades, and we'll all be
better off for it.

--
Ed Huntress


So are we in a war, or a squabble?


We're in a war, but not with a country. There is no recognizable political
entity at all; trying to identify one is what led us to invade Iraq. If we
can only take on and beat a *country*, the thinking goes, we will have
asserted our position and dismantled an antagonistic state. (But we still
don't want to *declare* war, or we'll be at war with the people of that
country, as well as the "evil ones." That could be messy.)

But the enemy wasn't really a state. So now we have a generalized,
amorphous, indeterminate war. Welcome to the new world.

--
Ed Huntress


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The second problem is that a formal declaration of war, under law,
amounts
to a war against all of the people of that political entity. In Iraq,

it
would mean we were at war with the Iraqi people. We didn't want to do
that.


The problem is that we are killing Iraqi civilians wholesale. There is
insufficient differentiation between Saddam Hussein's troops and
civilians. For every innocent civilian we kill, we make 2 enemies -
just like Vietnam.


Yup, war is hell.

--
Ed Huntress


Yes it is, but that's what we say when we really mean tough **** for the
innocent people we kill as we go after the ones we want. We offed a whole
lot of them in Panama when we went after one guy, Manuel Noriega. Our view
is if innocents get killed by us that's just the cost of doing business.
You'll notice that our attitude is quite different when our people get
killed as collateral damage. We make lots of enemies killing by so many
civilians. By now it's to the point where we're just about out of friends.
Talk about isolationists, we've isolated ourselves about as much as a
country can. Not by choice but by our actions. It's just more of the stuff
we've been pulling for years now.

Hawke


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"Hawke" wrote in message
...

The second problem is that a formal declaration of war, under law,
amounts
to a war against all of the people of that political entity. In Iraq,

it
would mean we were at war with the Iraqi people. We didn't want to do
that.

The problem is that we are killing Iraqi civilians wholesale. There is
insufficient differentiation between Saddam Hussein's troops and
civilians. For every innocent civilian we kill, we make 2 enemies -
just like Vietnam.


Yup, war is hell.

--
Ed Huntress


Yes it is, but that's what we say when we really mean tough **** for the
innocent people we kill as we go after the ones we want.


Or tough **** for us when the killing is on the other side.

We offed a whole
lot of them in Panama when we went after one guy, Manuel Noriega. Our view
is if innocents get killed by us that's just the cost of doing business.
You'll notice that our attitude is quite different when our people get
killed as collateral damage.


You have a short-sighted view of civilian casualties, Hawke. There use to be
many, many more, in nearly every war.

We make lots of enemies killing by so many
civilians. By now it's to the point where we're just about out of friends.
Talk about isolationists, we've isolated ourselves about as much as a
country can. Not by choice but by our actions. It's just more of the stuff
we've been pulling for years now.


War is reaching a critical stage. In attempting to minimize civilian
casualties we've created a hyper-sensitivity to them. This is a political
complication that suggests war is going to go through another evolution, and
probably fairly soon. I have no idea how it will evolve.

Meantime, the "asymmetrical warfare" metaphor has become an apology for the
fact that insurgents can hide among and behind civilians, forcing their
adversaries to kill some civilians or capitulate. This, of course, is a
serious war crime, a capital offense, under international law. But
insurgents know that war crimes tribunals have become a farce and they have
virtually no chance of being prosecuted.

Stay tuned. Something will happen. Don't bet the farm on what it will be.

--
Ed Huntress


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Ed Huntress wrote:
"cavelamb himself" wrote in message
...

Ed Huntress wrote:


Of the 100 or more military conflicts the US has been involved in,
Congress has only declared war about a half-dozen times. There are some
good reasons for this, because there are two fundamental problems with
declaring war: First, you acknowledge sovereignty and legitimacy to the
entity you're fighting, under international law. You don't want to grant
legitimacy to the Taliban, for example. If you declare war against an
entity that grabbed power illegitimately, or that you don't want to
acknowledge that it is the true representative of a people, then you stay
clear of formal declarations. They'll bite you in the ass.

The second problem is that a formal declaration of war, under law,
amounts to a war against all of the people of that political entity. In
Iraq, it would mean we were at war with the Iraqi people. We didn't want
to do that.

This issue is so over-simplified in the popular discussions about it that
it bears almost no relation to the political realities. Congress has
handled it correctly for the most part: pass an enabling bill, don't make
a formal declaration, and get on with the fight.

Ron Paul's ideas are the current incarnation of the conservative bias
toward isolationism, which was the dominant conservative view until WWII.
It sounds good, it's well-motivated, and we'd probably do well to be as
cautious about war as he suggests we should be. But it's also part of a
broader isolationism that would be ruinous to the US in today's world.
You can't be isolationist today. But you can be much more resistant to
starting wars than we have been in recent decades, and we'll all be
better off for it.

--
Ed Huntress


So are we in a war, or a squabble?



We're in a war, but not with a country. There is no recognizable political
entity at all; trying to identify one is what led us to invade Iraq. If we
can only take on and beat a *country*, the thinking goes, we will have
asserted our position and dismantled an antagonistic state. (But we still
don't want to *declare* war, or we'll be at war with the people of that
country, as well as the "evil ones." That could be messy.)

But the enemy wasn't really a state. So now we have a generalized,
amorphous, indeterminate war. Welcome to the new world.

--
Ed Huntress



Sorry Ed, but it sounds like the same old ****.

How are we supposed to know when we win?

Or lose?






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"cavelamb himself" wrote in message
...
Ed Huntress wrote:
"cavelamb himself" wrote in message
...

Ed Huntress wrote:


Of the 100 or more military conflicts the US has been involved in,
Congress has only declared war about a half-dozen times. There are some
good reasons for this, because there are two fundamental problems with
declaring war: First, you acknowledge sovereignty and legitimacy to the
entity you're fighting, under international law. You don't want to grant
legitimacy to the Taliban, for example. If you declare war against an
entity that grabbed power illegitimately, or that you don't want to
acknowledge that it is the true representative of a people, then you
stay clear of formal declarations. They'll bite you in the ass.

The second problem is that a formal declaration of war, under law,
amounts to a war against all of the people of that political entity. In
Iraq, it would mean we were at war with the Iraqi people. We didn't want
to do that.

This issue is so over-simplified in the popular discussions about it
that it bears almost no relation to the political realities. Congress
has handled it correctly for the most part: pass an enabling bill, don't
make a formal declaration, and get on with the fight.

Ron Paul's ideas are the current incarnation of the conservative bias
toward isolationism, which was the dominant conservative view until
WWII. It sounds good, it's well-motivated, and we'd probably do well to
be as cautious about war as he suggests we should be. But it's also part
of a broader isolationism that would be ruinous to the US in today's
world. You can't be isolationist today. But you can be much more
resistant to starting wars than we have been in recent decades, and
we'll all be better off for it.

--
Ed Huntress

So are we in a war, or a squabble?



We're in a war, but not with a country. There is no recognizable
political entity at all; trying to identify one is what led us to invade
Iraq. If we can only take on and beat a *country*, the thinking goes, we
will have asserted our position and dismantled an antagonistic state.
(But we still don't want to *declare* war, or we'll be at war with the
people of that country, as well as the "evil ones." That could be messy.)

But the enemy wasn't really a state. So now we have a generalized,
amorphous, indeterminate war. Welcome to the new world.

--
Ed Huntress


Sorry Ed, but it sounds like the same old ****.

How are we supposed to know when we win?

Or lose?


What is it you want to win? The old things -- stopping a country's threats
of violence, etc. -- aren't available anymore.

--
Ed Huntress


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In article ,
cavelamb himself wrote:

But the enemy wasn't really a state. So now we have a generalized,
amorphous, indeterminate war. Welcome to the new world.

--
Ed Huntress



Sorry Ed, but it sounds like the same old ****.

How are we supposed to know when we win?

Or lose?


It's simple; we lose when we go bankrupt by runaway inflation. We won't
win, there is nothing to win.

Free men own guns - www(dot)geocities(dot)com/CapitolHill/5357/
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Ed Huntress wrote:
"cavelamb himself" wrote in message
...


So are we in a war, or a squabble?


We're in a war, but not with a country. There is no recognizable
political entity at all; trying to identify one is what led us to invade
Iraq. If we can only take on and beat a *country*, the thinking goes, we
will have asserted our position and dismantled an antagonistic state.
(But we still don't want to *declare* war, or we'll be at war with the
people of that country, as well as the "evil ones." That could be messy.)

But the enemy wasn't really a state. So now we have a generalized,
amorphous, indeterminate war. Welcome to the new world.

--
Ed Huntress


Sorry Ed, but it sounds like the same old ****.

How are we supposed to know when we win?

Or lose?



What is it you want to win? The old things -- stopping a country's threats
of violence, etc. -- aren't available anymore.

--
Ed Huntress



Then it's perpetual war?


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Yup, war is hell.

--
Ed Huntress


Yes it is, but that's what we say when we really mean tough **** for the
innocent people we kill as we go after the ones we want.


Or tough **** for us when the killing is on the other side.


Except for one thing, the killing of our people is so much less than it is
on the other side. Remember we're masters of war, so when we inflict harm on
our enemies we do it at a far higher rate than any of them do to us. In the
process we kill enormous numbers of innocents. Iraq is proof of that. Look
at the amount of insurgents we killed compared to how many civilians we
killed. It's the civilians who have the high casualty rate.



We offed a whole
lot of them in Panama when we went after one guy, Manuel Noriega. Our

view
is if innocents get killed by us that's just the cost of doing business.
You'll notice that our attitude is quite different when our people get
killed as collateral damage.


You have a short-sighted view of civilian casualties, Hawke. There use to

be
many, many more, in nearly every war.


No I don't. You're looking at war as it is recently. Look at it historically
and you find that it used to be soldiers and warriors who got killed not the
civilians. Look at the numbers in WWI. Relatively few civilians were killed
but millions of soldiers died. Same with the Civil War. Historically wars
were fought among soldiers and civilian deaths were small. The 2nd WW was
the aberation.


We make lots of enemies killing by so many
civilians. By now it's to the point where we're just about out of

friends.
Talk about isolationists, we've isolated ourselves about as much as a
country can. Not by choice but by our actions. It's just more of the

stuff
we've been pulling for years now.


War is reaching a critical stage. In attempting to minimize civilian
casualties we've created a hyper-sensitivity to them. This is a political
complication that suggests war is going to go through another evolution,

and
probably fairly soon. I have no idea how it will evolve.


We may be trying to minimize civilian casualties but we're doing a bad job
of it. Look at Afghanistan. We've killed not only innocent civilians but
quite a few allies as well. It's true the attitude towards killing civilians
is a lot better than it was in WWII but well intentioned or not we're still
killing a lot of people we didn't intend to.

I'm not sure war is going through any major changes. It looks pretty much
the same as it always has to me. Different people and different weapons but
aside from that it's not very different than in the past. As to the future,
a prophet I'm not.


Meantime, the "asymmetrical warfare" metaphor has become an apology for

the
fact that insurgents can hide among and behind civilians, forcing their
adversaries to kill some civilians or capitulate. This, of course, is a
serious war crime, a capital offense, under international law. But
insurgents know that war crimes tribunals have become a farce and they

have
virtually no chance of being prosecuted.


I think the insurgents know they will either be killed or imprisoned for
life. They see the legal system of the infidels as a farce. They know if
they are caught for anything it's prison for life. I think they're probably
right. As far as hiding behind civilians that isn't a new idea in warfare
either. Like I said, aside from weapons I don't see a lot of changes in
warfare.


Stay tuned. Something will happen. Don't bet the farm on what it will be.


My bet is that for the most part things will remain the same. Now if we stop
using force to get what we want that will surprise me.

Hawke




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"cavelamb himself" wrote in message
...
Ed Huntress wrote:


Of the 100 or more military conflicts the US has been involved in,

Congress
has only declared war about a half-dozen times. There are some good

reasons
for this, because there are two fundamental problems with declaring war:
First, you acknowledge sovereignty and legitimacy to the entity you're
fighting, under international law. You don't want to grant legitimacy to

the
Taliban, for example. If you declare war against an entity that grabbed
power illegitimately, or that you don't want to acknowledge that it is

the
true representative of a people, then you stay clear of formal

declarations.
They'll bite you in the ass.

The second problem is that a formal declaration of war, under law,

amounts
to a war against all of the people of that political entity. In Iraq, it
would mean we were at war with the Iraqi people. We didn't want to do

that.

This issue is so over-simplified in the popular discussions about it

that it
bears almost no relation to the political realities. Congress has

handled it
correctly for the most part: pass an enabling bill, don't make a formal
declaration, and get on with the fight.

Ron Paul's ideas are the current incarnation of the conservative bias

toward
isolationism, which was the dominant conservative view until WWII. It

sounds
good, it's well-motivated, and we'd probably do well to be as cautious

about
war as he suggests we should be. But it's also part of a broader
isolationism that would be ruinous to the US in today's world. You can't

be
isolationist today. But you can be much more resistant to starting wars

than
we have been in recent decades, and we'll all be better off for it.

--
Ed Huntress



So are we in a war, or a squabble?



In Iraq we're not in a war. It's an occupation, pure and simple. It's no
different than when the Nazis occupied France in WWII except that we're not
Nazis, I think.

Hawke


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