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Thread: Justice Ruth Bader Ginsburg has died

  1. #271
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    There are two ways to keep the court to 9 justices:

    1. Trump wins the election
    2. The Republicans hold the Senate

    So, either way the court will be safe for a while.

    I feel pretty good about that.
    With liberty and justice for all...must be 18, void where prohibited, some restrictions may apply, not available in all states.

  2. #272
    Site Supporter RoyGBiv's Avatar
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    Quote Originally Posted by willie View Post
    Ginsberg asserted that the 2nd Amendment referred to a collective right of a militia to bear arms. She stated that it's authors would have worded it otherwise if individual rights had been the concern. What is a rebuttal to her argument? I ask because I think this view will be emphasized.
    That's a Heller good question.
    https://en.wikipedia.org/wiki/Distri...mbia_v._Heller
    "No free man shall ever be debarred the use of arms." - Thomas Jefferson, Virginia Constitution, Draft 1, 1776

  3. #273
    Quote Originally Posted by Bart Carter View Post
    There are two ways to keep the court to 9 justices:

    1. Trump wins the election
    2. The Republicans hold the Senate

    So, either way the court will be safe for a while.

    I feel pretty good about that.
    There's a third way, a Constitutional amendment. Maybe throw in 18-year terms so that a new justice gets appointed at least every 2 years and neither side has to worry as much about the life expectancy of octogenarians. I don't see enough Dems in Congress and the Senate agreeing to it to meet the 2/3rds supermajority requirement though.

  4. #274
    Member Kukuforguns's Avatar
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    Quote Originally Posted by willie View Post
    Ginsberg asserted that the 2nd Amendment referred to a collective right of a militia to bear arms. She stated that it's authors would have worded it otherwise if individual rights had been the concern. What is a rebuttal to her argument? I ask because I think this view will be emphasized.
    The Second Amendment provides: "A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed."

    One of the rules of interpreting statutes, constitutions, and contracts, is that words have consistent meanings. If a statute, constitution, or contract uses a word or phrase (e.g., "the people") in more than one location, then the word or phrase should mean the same thing in all of the locations. This is a long standing rule and the Founders were familiar with it.

    The phrase, "the people" is used more than once in the Bill of Rights. Thus:
    "the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures (4th Amendment)
    "the right of the people to peaceably assemble" (1st Amendment)

    There is no doubt that the right of the people to be secure in the persons, houses, papers, and effects is an individual right. Similarly, the right to peaceably assemble is an individual right.

    And, because the phrase "the people" is used multiple times to refer to an individual right in the 1st and 4th Amendments, it is highly likely the Founders intended the phrase "the people" to reference an individual right in the 2d Amendment as well.

    In addition, the RKBA pre-existed the Constitution. At the time the Constitution was ratified, the English had an individual RKBA.

    I recommend reading Heller v. D.C. Justice Scalia wrote a clear opinion that addressed these issues in greater depth than I attempt here.

  5. #275
    Quote Originally Posted by Kukuforguns View Post
    It's never worked?! Huh. What would you say is the most powerful nation in the world? Which nation has done more than any other nation in existence for promoting individual freedom? The largest economy? These United States of America? So glad we agree on that.

    Did you know that the Constitution of these United States of America was the result of numerous compromises? The Bill of Rights was a compromise. The structure of the two houses of the Legislature was a compromise. Counting slaves and Native Americans as 5/8 of a person was a compromise. You know all of this. Which demonstrates how poorly conceived your statement was.

    The worm will turn. The Democrats at some point in the future will have the Presidency and the Senate. When that day comes, I will very much desire that the filibuster acted as a brake on extremism. One of my mentors introduced me to a saying, "Perfect is the enemy of good." There has never been a perfect law passed by Congress. The Congress has passed many good laws that would never have been passed without sacrificing perfection. The Constitution is not perfect. It would never have been ratified without compromise.

    The trick is identifying what you will not compromise. I drink cheap wine because I won't pay for the good stuff. I drink good beer - you can get world class beers for less than $20 per 750 ml bottle. So, yeah, sometimes I compromise quality for economy. Hell, I compromise all the time. But I bolted my home to its foundation.
    I would enjoy point/counterpoint with you over the next few weeks as I believe we would find much to agree and disagree on and that makes life interesting, but it should be in private messages as I don't wish this thread to be dumped in the romper room, so I will bow out here. Having been all over this great big world we certainly have a fundamental difference in opinions and that is ok. Regardless of our own opinions I have zero trust in the system as it currently stands to move forward in the way it was intended. RBG is gone and that as a Scotus is in my opinion a very good thing. What comes of all this remains to be seen but I will believe the possible good of it, only if and when the actions of those involved prove it to be so. Until then color me skeptical.

  6. #276
    Site Supporter the Schwartz's Avatar
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    Quote Originally Posted by willie View Post
    Ginsberg asserted that the 2nd Amendment referred to a collective right of a militia to bear arms. She stated that it's authors would have worded it otherwise if individual rights had been the concern. What is a rebuttal to her argument? I ask because I think this view will be emphasized.
    A reasonably brief rebuttal to Ginsburg's argument (based on prior case law) is as follows...

    In United States v. Cruikshank (1876), the U.S. Supreme Court recognized that the right to arms pre-existed the Constitution and in that case and in Presser v. Illinois (1886) recognized that the Second Amendment protected the right from being infringed by Congress. In United States v. Miller (1939), the Court again recognized that the right to arms is individually held and, citing the Tennessee case of Aymette v. State, indicated that it protected the right to keep and bear arms that are "part of the ordinary military equipment" or the use of which could "contribute to the common defense."

    I suspect that the latter cited case law (Amyette v. State) is at least part of the basis of the majority's holding in which firearms in common usage are protected as a class.
    ''Politics is for the present, but an equation is for eternity.'' ―Albert Einstein

    Full disclosure per the Pistol-Forum CoC: I am the author of Quantitative Ammunition Selection. www.quantitativeammunitionselection.com

  7. #277
    Brass Rat Borderland's Avatar
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    Quote Originally Posted by Bart Carter View Post
    The relevant text is the appointments clause of Article II, Section 2, which provides: “[The president] shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States…” This language makes the Senate’s consent a prerequisite to presidential appointments, but it does not place any duty on the Senate to act nor describe how it should proceed in its decision-making process. Even if the word “shall” in the clause is read as mandatory, “shall” refers only to things the president does. Instead, the Senate’s core role in appointments is as a check on the president, which it exercises by not giving consent—a choice it can make simply by not acting.
    True. They can do that if they want. Just like Harry Reid got the dem senate to change the requirement to pass legislation to a majority (51) vote. That wasn't such a hot idea either. But like you say, it's all perfectly within the rules. Personally I don't think another conservative SC justice is a bad thing. If they do their job nobody should have anything to worry about. I'll just wait for the election and see how all of this unfolds. I'm probably a down ticket voter again this election anyway.
    Last edited by Borderland; 09-23-2020 at 08:53 PM.
    Barely tolerating the insurgency.

  8. #278
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    Quote Originally Posted by Glenn E. Meyer View Post
    We've had plenty of general philosophy for years. What matters for the 2nd Amend. is not a speech at a forum but whether, when and how they act. The folks who do the legal planning, should be designing an action plan if a nomination goes through.

    How long have we heard politicians spout their support for the 2nd Amendment and then scamper away from real action? Certainly after the two positive decisions Scotus did - probably due to Roberts.

    So again, do they act after the candidate gets confirmed? Or 5 years from now, we will be reading about Kumquat vs. Mayberry which will the wonder case that turns everything around if we send a check.

    Read Barrett's dissent in Kanter:
    http://media.ca7.uscourts.gov/cgi-bi...:N:2309276:S:0.

    There are a number of cases that could be before the Court next term.

  9. #279
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    Quote Originally Posted by willie View Post
    Ginsberg asserted that the 2nd Amendment referred to a collective right of a militia to bear arms. She stated that it's authors would have worded it otherwise if individual rights had been the concern. What is a rebuttal to her argument? I ask because I think this view will be emphasized.
    I'm woefully underqualified to present the finer points of case law and precedent. But the lay argument I use (shamelessly stolen from the internet) to clarify the language for people is this:

    "A well balanced breakfast being necessary to the start of a healthy day, the right of the people to keep and eat food shall not be infringed."

    Who has the right to food? A well balanced breakfast or the people?

  10. #280
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    Quote Originally Posted by Seven_Sicks_Two View Post
    I'm woefully underqualified to present the finer points of case law and precedent. But the lay argument I use (shamelessly stolen from the internet) to clarify the language for people is this:

    "A well balanced breakfast being necessary to the start of a healthy day, the right of the people to keep and eat food shall not be infringed."

    Who has the right to food? A well balanced breakfast or the people?
    Nice! I love it.

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