I have to admit to wondering when and where the email thing will take us. She HAS violated a couple of laws relating to FOIA and keeping government records, which happen to only incur civil penalties. They also only apply when someone is still in government office. That’s good for the Clinton camp since she hasn’t done anything criminally illegal that she has been convicted of (RefCo was a close call).
The real issue for me is the FBI investigation, which Clintonistas would like to think is somehow irrelevant and innocuous. Hardly. The Feds aren’t too keen on wasting time if there is no case to be had. They like winnable cases. The fun part is guessing what laws and by what parties.
The whole private server thing is pretty obvious in that She didn’t want to be under public scrutiny, despite laws to the contrary. Toss in the Clinton Foundation for an interesting twist to this story. My guess is that there is some form of mixing the position as Secretary of State with Clinton Foundation business, which is a serious no-no.
We can toss in the bit about her server being hacked as well with all those secrets. Ultimately, the emails are on Wikileaks. Anyone who tries to even imply she doesn’t have a problem will be laughed off by me.
Doing a search on Clinton Foundation reveals a treasure trove of information about how this whole thing could blow up (and explain my last post). The issue isn’t a “right wing conspiracy”, “left wing conspiracy”, “Bernie Bros”, “Obama Bros”, and so on: It’s that Hillary is Hillary’s own worst enemy.
Her penchant for secrecy was one of the many things that cost her the nomination in 2008.
There is another post here on how this election is a prime case for how the US political system needs to be totally overhauled, but the fact that Hillary Clinton is even remotely considered for being President is a serious biggie. She will go into the arena with a set of political baggage which makes it laughable that anyone in their right mind would have considered supporting her.
That would be amplified if there are indeed federal criminal indictments, which would most likely be followed by convictions (see federal conviction rate if you don’t believe me). Federal Criminal Practice isn’t really a trial practise, it’s “let’s make a deal” to try and get the best terms and sentence.
The really bad part of a Clinton nomination is that the Scandals will be hashed out very publicly, which is something most Clintonistas have been in denial about all along. But I have feeling that the email circus is going to be the final word in Clinton Scandals.
Hillary est un gros cauchemar putain.
(She is a fat fucking nightmare)
And While we’re at it, here are the results from when I was trying to find a better res image of a meme:
THE owner of a Smart car has admitted that the car he drives is overcompensation for his prodigious penis.
Source: Smart car driver overcompensating for his massive penis
The really silly thing about speculating what would have happened had the British won the War for Independence (AKA US Revolutionary War) is that there has been a British North America: Canada. Books such as For Want of a Nail and the Two Georges seem to miss that point.
Did the Tories want to stay dependent to Britain, or were they interested in a peaceful transition to independence? The problem was that the “patriots” in the War for Independence were rather hot headed and intolerant of other opinions. There wasn’t a debate as to the prudence of armed rebellion. And it was hard to go back one blood was shed.
Canada did get its independence, but Canada’s transition from a self-governing British colony into a fully independent state was a non-violent, evolutionary process that came about in such a gradual fashion that it is impossible to say independence came on a particular date. When the Dominion of Canada was created in 1867 it was granted powers of self-government to deal with all internal matters, but Britain still retained overall legislative supremacy. Total Independence didn’t come until 1982 with the passage of the Canada Act by the British Parliament.
Like Britain, Canada’s Constitution is an amalgamation of codified acts and uncodified traditions and conventions which outlines how the government functions and the rights of Canadian Citizens.
The real question isn’t what would a British North America be like, but what would be its boundaries?
One thing that Heller and McDonald demonstrated was that it didn’t really care about the Second Amendment within the Constitutional Context. That means that those two cases are an absurdity in “Second Amendment Jurisprudence”. The absurdity starts with its minimalisation of what Heller described as the “preferatory clause”. The reason for the nonsensical nature of the “individual right” interpretation is that it takes the Second Amendment out of legislative and historic context.
But one need not go beyond the four corners of the document to show this is an absurd interpretation of the Second Amendment since it is presumed that a legal document will be interpreted so as to be internally consistent. A particular section of the document shall not be divorced from the rest of the act. Thus, if the Constitution mentions certain goals or subjects in the preamble, it must be considered within the terms of those goals and subjects.
There are two versions of the Amendment and I will use this one for the purposes of the argument I will be making for the purpose of clarity:
“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.”
That means the phrase “A well regulated militia being necessary to the security of a free state” was pretty much ignored or discounted in Scalia’s analysis. This is despite the rule of constitutional interpretation that “It cannot be presumed that any clause in the Constitution is intended to be without effect.” The individual right interpretation means that not only is the “preferatory clause” mere surplusage, entirely without meaning, but so is the rest of the text
Of course, the “Individual right” theory also neglects the preamble, which most people seem to stop reading after the first three words:
“We the people of the United States, in order to form a more perfect union, establish justice, insure domestic tranquility, provide for the common defense, promote the general welfare, and secure the blessings of liberty to ourselves and our posterity, do ordain and establish this Constitution for the United States of America.”
I would assert that both the preamble of the Constitution and the “preferatory clause” are important to the analysis of the Second Amendment within the proper constitutional context. That is because the document needs to be read as a whole. Doing that it becomes clear that one of the purposes of the US Constitution is to address matters of “the common defence”.
From Plato’s Laws through common law and until modern legal systems, preambles to constitutions have played an important role in law and policy making. The preamble to the United States Constitution has become a legend. The phrase “We the people of the United States” and the remaining forty-five words of the preamble are the most well-known part of the Constitution, and the section that has had the greatest effect on the constitutions of other countries. And yet, the preamble remains a neglected subject in the study of American constitutional theory and receives scant attention in the literature. This is a shame since a preamble is the part of the constitution that best reflects the constitutional intentions of its drafters.
The interpretive role of preambles is rooted in the common law tradition. Edward Coke asserted that preambles to an act of parliament are a “good mean to find out the meaning of the statute” and “the key to open understanding thereof”, they are “the key to the statute and the key to the makers.” William Blackstone referred to preambles as intended “to help the construction of an act of parliament.” Blackstone noted that whenever the statute is dubious, “the proem, or preamble, is often called in to help the construction of an act of parliament.” However, in a case of conflict between the preamble and the body of the act, the body of the act prevails. This is still considered good law in common law states. Some have a specific clause indicating the significant role of preambles in statutory interpretation.
The preamble may not be legally binding, but it is key to understanding the rest of the document and should be given weight in any constitutional analysis. Any interpretation that runs contrary to these principles is questionable. Anything which assumes something which is not covered by the main text must be suspect, which the individual rights interpretation does in spades.
This takes us to two concepts of statutory interpretation: (1) only items which are specifically mentioned are addressed within a law. (2) items which are not specifically mentioned are not covered by the statute.
Which takes us to Article I, Section 8, Clause 16, which gives Congress the power:
“To provide for organizing, arming, and disciplining, the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress;”
Note that Congress is given the power to ARM the militia. Only Congress has this power under the Constitution. This is where the individual rights theory provides the usual misquotations removed from their context, which in the case of the Patrick Henry “Let everyman be armed quote” is tragic since it is clear that Henry was concerned with the above section of the Constitution, not a personal right to arms, when one reads it in context.
I really don’t want to get too much into how this one sentence has been mangled and removed from constitutional context in the attempt to create a right which does not exist. The grammar is handled in this article: Dennis Baron, Guns and Grammar: The Linguistics of the Second Amendment. I will say that Prof. Baron would give the “preferatory” clause far more weight than it was given in the Heller decision:
Reading the Second Amendment as a statement in which every word counts follows from the opinion articulated by Chief Justice John Marshall: “It cannot be presumed that any clause in the constitution is intended to be without effect” (Marbury v. Madison, 1803). But even without that landmark ruling, it would have been clear to 18th-century readers that the first part of the Second Amendment was bound to the second part in a cause-and-effect relationship, that the right to bear arms was tied by the framers directly to the need for a well-regulated militia.
If you wish to go outside the Constitution, there are many more problems with the Individual right interpretation. In fact, both the Heller and McDonald decisions were exercises in sophistry which removed the interpretation from an “originalist” and “constitutionalist” context and placed them into pure fantasy. If anything, the Heller and McDonald decisions are unconstitutional exercises of power by judicial amendment of the constitution. McDonald even more so since it somehow neglected Article I, Section 8, Clause 16 and created a right which was present in state laws in contrast to its non-existence in the US Constitution.
I am truly disappointed by the praise of the emperor’s new clothes in McDonald v Chicago by the justices willingness to separate the Second Amendment from Constitutional context by even countenancing that it had nothing to do with Article I, Section 8, Clause 16. How does Congress’ power “incorporate” to the States without an amendment to the Constitution? McDonald can only be described as silly buggers and not really precedent.
State v. Buzzard, 4 Ark. (2 Pike) 18 (1842), puts the absurdity of the individual right assertion:
However captivating such arguments may appear upon a merely casual or superficial view of the subject, they are believed to be specious, and to rest upon premises at variance with all the fundamental principles upon which the government is based; and that, upon a more mature and careful investigation, as to the object for which the right was retained their fallacy becomes evident. The dangers to be apprehended from the existence and exercise of such right, not only to social order, domestic tranquillity and the upright and independent administration of the government, but also to the established institutions of the country, appears so obvious as to induce the belief that they are present to every intelligent mind, and to render their statement here unnecessary.
The revisionist theory that the Second Amendment somehow applies to a context outside the common defence is beautifully destroyed since it does not withstand scrutiny within the four corners of the US Constitution.
It is even more devastated if we are going to go outside the document since we need to have the “scholars” explain how:
- The concept of self-defence did not allow for the use of deadly force as a first option when the Constitution was written. Deadly force at that time was a LAST option. There was a duty to retreat. Deadly force could only be used if there was no lesser alternative and all other options had been exhausted. You had to have your back to the wall to be able to kill someone.
–carrying a weapon would create a presumption that you intended to do harm.
- Where are the other versions of “gun rights” in Common Law nations?
- The issue of civilian control of the military, which fear of standing armies is a common thread in English political thought. It was mentioned in the debates in relation to this Amendment, whereas personal defence was next to nonexistent.
- regulation of private arms has always been a part of the common law.
- When primary source material is read in its complete form, it highlights the above issues and the lack of concern with a right to own a weapon outside the context of the common defence.
- Why the US Constitution would concern itself with matters of “personal defence”, especially in light of point (1) above?
- Why state constitutional provisions explicitly mention this right, but it is not mentioned in the US Constitution.
There are far too many flaws in the Individual Right interpretation of the Second Amendment when one looks at it critically. There are even more flaws in the “precedent” set by Heller-McDonald despite its “friendliness” to firearms regulation. These are dangerous decisions to be left in the common law cannon.
It is a shame that Heller and McDonald have been allowed to create mischief in the US legal system.
I will not even bother readdressing the absurdity of the associated insurrection theory of the Second Amendment since it is so far from the Constitutional contexts as to be laughable. The fact that so many people are willing to accept it in their ignorance is astounding.