Archive for the ‘constitution’ Category

General Counsel Unconstitutional?

This is more of a question than a statement, but since the Fourth Amendment has a specificity requirement wouldn’t a remit to just go forth and investigate violate that?

The fact that the Mueller Investigation is turning up evidence of thinigs beside Russian Collusion, which was its remit reminds me of a general warrant. General warrant wereissued by the English Secretary of State for the arrest of the author, printer, or publisher of a seditious libel, without naming the persons to be arrested. Such warrants were banned by Parliament in 1766.

Here is the black letter law on one.

A general warrant refers to a warrant providing a law-enforcement officer with broad discretion or authority to search and seize unspecified places or persons. A general warrant lacks a sufficiently particularized description of the person or thing to be seized or the place to be searched. General warrants are unconstitutional because they do not meet the Fourth Amendment’s specificity requirements..

The Fourth Amendment

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.[1}

It seems to me that if the investigation related to Russian Interference than the remit can’t be to go forth and find evidence of crimes without that being in violation of the Fourth Amendment. As the court pointed out in U.S. v. George,  975 F.2d 72, 74 (2d Cir. 1992): the language any other evidence relating to the commission of a crime was unconstitutional. That’s because it was ” plainly is not sufficiently particular with respect to the things to be seized because it effectively granted the executing officers’ “virtually unfettered discretion to seize anything they [saw].”

it seems to me that any investigation would have to have specific limits or it violates the Fourth Amendment.

Footnote:
[1] this from the North Carolina Constitution:

General warrants, whereby any officer or other person may be commanded to search suspected places without evidence of the act committed, or to seize any person or persons not named, whose offense is not particularly described and supported by evidence, are dangerous to liberty and shall not be granted.

Imagine this actually happening at the US Constitutional Convention.

The Good News: Catherine the Great has promised to give us a Donkey Show if we create an Electoral College.
The Bad News: It won’t be for another 230 years or so.

Next, Let’s ensure that we will have gun mayhem and mass shootings in the future.

Oh, cake!

 

washington_constitutional_convention_1787

Originalism and the Second Amendment

This is all very simple since according to people who claim to believe in Originalism, “Constitutional interpretation should remain anchored in the original meaning of the Constitution’s text, which is the source of the Court’s authority and legitimacy.” Using that definition:

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.

The text of the Second Amendment begins with “A well regulated Militia” which is “necessary to the security of a free State“. The language of the text does not mention Self-defence, hunting, target practise, or any other non-militia uses. It is a well established rule or statutory interpretation that inclusio unius est exclusio alterius  which means  that ‘including one excludes another’. The example given where I found this was the statement ‘no dogs allowed’ under this rule would mean that panthers were allowed.

Likewise, the fact that the Militia is specifically referenced would lead one to conclude that this text addresses the militia, but does not cover uses other than the militia.

Likewise, a search of the US Constitution shows that it addresses the militia, but personal defence is not addressed. Likewise, the preamble of the text makes it clear that one of the reasons for adopting the Constitution is to deal with matters of the common defence. However, there are people who claim to follow originalism who are willing to ignore the actual text of the Constitution to advance their beliefs.

The actual wording of the Constitution makes it clear that the Militia and Common defence are covered, but personal uses of weapons aren’t.  I am not going to get into the grammar of the Second Amendment since that isn’t really germane if one is going solely upon the text. Anyway, Dennis Baron addresses that issue in his amicus brief to the Heller decision and this essay where he demonstrates that the founders would indeed have seen this as only relating to the militia.

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 18 th -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.

The Second Amendment was pretty much considered settled case law which was thrown into disarray by Heller and McDonald. US v. Cruikshank, 92 U.S. 542 (1875) wasn’t very helpful since it addressed private action, but Presser v. Illinois, 116 U.S. 252 (1886) and US v. Miller, 307 U.S. 174 (1939) both made it clear that the Second Amendment related to the Militia. Miller is usually not properly represented in recent “Second Amendment Scholarship” and totally ignored in the Heller and McDonald decisions because it is “not helpful”.

Indeed, it is not helpful to the recent decisions which were ultra vires because they amended the Constitution to add a new meaning to the Second Amendment, as this essay demonstrated. I would also add that Justice William O. Douglas addressed Miller and glossed it in his dissent in Adams v. Williams, 407 U.S 143, 150 -51 (1972) , which somehow is omitted in lists of SCOTUS cases mentioning the Second Amendment. Which is too bad since Justice Douglas was a member of the Supreme Court when Miller was decided, which makes him a very good source for how that case should be read.

Justice Douglas pointed out that in Second Amendment jurisprudence:

The leading case is United States v. Miller, 307 U.S. 174, upholding a federal law making criminal the shipment in interstate commerce of a sawed-off shotgun. The law was upheld, there being no evidence that a sawed-off shotgun had “some reasonable relationship to the preservation or efficiency of a well regulated militia.” Id., at 178. The Second Amendment, it was held, “must be interpreted and applied” with the view of maintaining a “militia.”
“The Militia which the States were expected to maintain and train is set in contrast with Troops which they were forbidden to keep without the consent of Congress. The sentiment of the time strongly disfavored standing armies; the common view was that adequate defense of country and laws could be secured through the Militia – civilians primarily, soldiers on occasion.” Id., at 178-179.

The Heller and McDonald decisions are examples of Judges failing to follow the rule of law, precedent, and their claimed theory of judicial interpretation. As I pointed out, those two decisions are ultra vires and should be ignored, which is easy since they are incredibly limited in their scope. But even then, some daring justice should show that the emperor has no clothes in these decisions.

Anyway, one doesn’t need to go far if you believe that the text of the Constitution is determining in how to interpret the Second Amendment that it only applies to the militia. It is quite obvious that the Second Amendment relates to the militia from the text. But the Heller and McDonald decisions made it clear that the text was optional, which means that Originalism is a nonsensical school of constitutional interpretation.

Sorry, but Laci is no longer taking new cases.

From the Washington Post:

A suspect in an interrogation told detectives to “just give me a lawyer dog,” the Louisiana Supreme Court ruled that the suspect was, in fact, asking for a “lawyer dog,” and not invoking his constitutional right to counsel. It’s not clear how many lawyer dogs there are in Louisiana, and whether any would have been available to represent the human suspect in this case, other than to give the standard admonition in such circumstances to simply stop talking.

While Laci strongly believes in the Constitutional Right to Counsel, she is no longer taking cases.  Even if she were willing to take this case on, she is not licensed to practise in Louisiana.

Too bad the PD was unaware of this blog, since he could have used Laci as a quite willing Canine counsel for his client in cases of judges with acute robeitis.

The Ultimate Slam Dunk Argument Against the Individual Right Interpretation of the Second Amendment.

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. [1]

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:

  1.  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.
  2.  Where are the other versions of “gun rights” in Common Law nations?
  3. 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.
  4. regulation of private arms has always been a part of the common law.
  5. 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.
  6. Why the US Constitution would concern itself with matters of “personal defence”, especially in light of point (1) above?
  7. 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.

[1] Compare Buzzard to the part of Presser v Illinois,  116 U.S. 252, 6 S.Ct. 580, 29 L.Ed. 615 (1886), which says:

Military organization and military drill and parade under arms are subjects especially under the control of the government of every country. They cannot be claimed as a right independent of law. Under our political system they are subject to the regulation and control of the state and federal governments, acting in due regard to their respective prerogatives and powers. The constitution and laws of the United States will be searched in vain for any support to the view that these rights are privileges and immunities of citizens of the United States independent of some specific legislation on the subject.

Sic semper proditores (Thus always to traitors)

BundyOK, all you supposed “Constitutionalists” out there:
  1.  The Constitution makes it clear that waging war on the US is treason (Article III, Section iii–it’s the only crime mentioned in the Constitution!). 18 USC Chapter 115 tells you what laws you are violating and it was passed in accordance with US Constitution Article VI.
  2.  The Second Amendment does not explicitly repeal any of the main Constitutional provisions relating to treason and insurrection.
  3.  Just because you don’t like it doesn’t mean it is unconstitutional.
Dennis v. United States, 341 U.S. 494 (1951) puts paid to the insurrectionist theory:
“The obvious purpose of the statute is to protect existing Government, not from change by peaceable, lawful and constitutional means, but from change by violence, revolution and terrorism. That it is within the power of the Congress to protect the Government of the United States from armed rebellion is a proposition which requires little discussion. Whatever theoretical merit there may be to the argument that there is a “right” to rebellion against dictatorial governments is without force where the existing structure of the government provides for peaceful and orderly change.”

Verb sap.

Alice Paul was right!

Alice Paul believed that to have freedom from legal sex discrimination requires an Equal Rights Amendment that affirms the equal application of the Constitution to all citizens. This is despite the Fourteenth Amendment beginning:

All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

The central purpose of the Fourteenth Amendment was to guarantee equal citizenship and equality before the law for all citizens and for all persons. It does not simply ban discrimination based on race. The fact that the word race is not mentioned in the text (as it is in the fifteenth amendment) was quite deliberate.

This is the man who wrote an opinion that ended the DC gun ban--spot the conflict.


The problem is that some people didn’t get the message about that, in particular one who has shown that he can find Constitutional language “is mere surplusage — is entirely without meaning”. This is despite Marbury v. Madison saying that “It cannot be presumed that any clause in the Constitution is intended to be without effect, and therefore such construction is inadmissible unless the words require it.” The even more frightening aspect is that this is a view held by the majority of the US Supreme Court that it can rewrite the Constitution, rather than interpret laws.

Alex Pareene in Salon states that:

Ok, well, all the Amendment says is that equal protection under the laws will be afforded to citizens, not “straight male citizens,” or whatever distinction Scalia’s making here. Scalia can be very literal-minded sometimes, like when he explains that the Eighth Amendment doesn’t forbid torture because interrogations aren’t “punishment.” Other times, he gets fuzzier with the language; despite the fact that the government is not allowed to establish or promote religion, Scalia is OK with “under God” in the Pledge of Allegiance. The Constitution always happens to only mean whatever an ultra-conservative Republican asshole thinks it means, isn’t that funny?

Alas, Alex, Scalia has gotten away with twisting the Constitution without too much of a peep from the legal community, let alone the general populace. In fact, Scalia’s Heller decision was held as the “correct” interpretation by many who should know much better.

The real problem is that there is no Constitutional means for telling the Supreme Court that it has it wrong: Short of a hue and cry for Scalia to be impeached. The problem is that Scalia’s bad decisions and poor judgement have gone without comment.

Which gets us back to Alice Paul, The Equal Rights Amendment is needed in order to prevent a rollback of women’s rights by conservative/reactionary political votes, and to promote laws and court decisions that fairly take into account women’s as well as men’s experiences. We now have a concrete example of a Supreme Court Justice who is more than willing to rewrite the Constitution rather than interpret it using precedent (e.g. DC v. Heller). Scalia is kind enough to point out that the political arena is the one place where we can send idiots like him a message (Impeachment and removal from office would be nice). Instead, the right is using the Court system to attack our rights. Judges, such as Scalia and Silverman, are all too willing to ignore precedent and the statute’s wording in order to trash the Constitution.

Thus, something such as this:

The Equal Rights Amendment
Section 1. Equality of rights under the law shall not be denied or abridged by the United States or by any state on account of sex.
Section 2. The Congress shall have the power to enforce, by appropriate legislation, the provisions of this article.
Section 3. This amendment shall take effect two years after the date of ratification.

Which makes it clear that discrimination because of Sex, rather than mere reliance upon the 14th Amendment’s equal protection clause is needed. Some people are too stupid to realise that women are persons.