Proposed Constitutional Amendments as a "Silencer"

Discussion in 'US Constitution' started by DGS49, Mar 28, 2018.

  1. DGS49
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    DGS49 Gold Member

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    The recent Op-Ed piece by retired USSC Justice John Paul Stevens opined that the Second Amendment ought to be repealed. He knows it would never happen, of course, because of the super-majority requirements in Article V, so exactly how he thinks it would be repealed is a mystery. Based on his own history on the Court, he probably advocates a Supreme Court case where the USSC just, on its own, says, "Fuck it. Done. It's repealed."

    But here's the thing: Why doesn't anyone in Congress use a failed Amendment to shut off discussion of Left Wing talking points? Why not actually introduce an Amendment repealing the Second Amendment, and watch it go down in flames?

    For another example, much of the Left Wing believes that there ALREADY IS a Constitutional "right of privacy," that prevents the State from, say, criminalizing sodomy. Or restricting marriage to a man and a woman. Or prohibiting abortion.

    But a close inspection of the Constitution reveals that there is no such right in the Constitution or any Amendment, and it was created in the minds of Leftist USSC justices, and now we are all stuck with it.

    So why doesn't some CONSERVATIVE legislator propose an Amendment to the Constitution, formalizing the Right of Privacy, with enough detail (the Amendment are usually very general in nature) to make it clear that the new "right" legalizes abortion, mandates gay marriage, and so on?

    So rather than allowing the USSC to make these broad and far reaching changes to the Constitution, we'll put it to a vote.

    And it will fail, of course. And in failing, it will clarify and finalize the point that the States are free to legislate in these areas, as they all did originally, and as they are entitled to under the Constitution.

    A similar proposed Constitutional Amendment could close off all of the bizarre bullshit in connection with the death penalty. The Amendment would say, "The Death Penalty is hereby abolished in all cases and in all courts within the United States." And again, it would fail, (a) making it crystal clear that the death penalty IS constitutional, and also that (b) each state has the right to abolish it if they choose to do so within their borders. And maybe the States would stop pussyfooting around about whether one lethal injection or another is "cruel," or might cause some discomfort in the person being executed.

    My favorite would be an Amendment that says, "Anyone born within the geographical limits of the United States or its Territories is a United States Citizen, with all of the privileges and immunities associated therewith!" As we watch that one go down in flames - as it surely would - we could also acknowledge that there is no such provision in place now, and that the Supreme Court verbiage to that effect was DICTA, and not binding.

    But I guess I'm rambling now.
     
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  2. usmbguest5318
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    usmbguest5318 Gold Member

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    You may be the first person whose exposition on Constitutional theory I've read ignores among the most basic concepts of critical thinking (logic), legal strategy, political strategy, legal theory, and more. For example:
    • Critical Thinking:
      Really? You attest to what Justice Stevens knows because.....You did the "Vulcan mind meld" with him and know what he thinks, knows and believes? He's your close buddy and you two chatted about it?
      One cannot attest to what another person knows or doesn't know and expect to be seen as credible when one does not at lest present some of that other person's remarks that show one's assertion to be with high probability accurate.

    • Legal/political strategy:
      Were such a bill introduced onto the Floor of either chamber of Congress, today, it'd likely not pass. However, the mere introduction of the measure for a vote would animate a national discussion that would result in making clear something that has remained ambiguous and vague for quite some time: quantification and qualification of the nation's appetite for various changes pertaining to the 2nd Amendment.

      That kind of information is hard to come by, but when faced with a real prospect, however fleeting, of actually altering the Constitution, as opposed to the notion being merely an abstraction, the quality of such information increases markedly and becomes a legitimate foundation for gun-control groups to define far clearer targets for a host of political pursuits. That newly delivered clarity does little but empower and refine the strategies and tactics such groups need to use to achieve their goals and with that clarity, the changes they want effected will become a matter of "when," not "if." In case you've not noticed, social activist/advocacy groups have a very well established track record of demonstrated patience. It's worth noting too that once such a measure passes, it "stays out there" until such time as enough state legislatures pass it.

      You clearly don't understand what it is you're proposing and what be its legal and political implications.

    • Legal Theory Incoherence/Ignorance that Alludes to Utter Selfishness and a Lack of Integrity:
      The right to privacy is a derived not explicit right. It derived from what's called a "loose constructionist" interpretive principle of Constitutional legal theory. Now one can credibly and with integrity be a loose or strict constructionist, but one cannot, as you are, be acknowledged as of integrity and credibility and be both.

      To wit, strict constructionist legal theory asserts that position, and they do so on a literal-reading basis, which is typical of strict construction, that the Constitution literally says "shall not be infringed." In short, strict constructionists assert, as you have above, that what the Constitution doesn't expressly assert isn't permitted and that what it doesn't expressly prohibit allowed.

      Now, I suspect you'd argue 2nd Amendment forbears no restrictions on one's rights to own, buy, possess, etc. arms. Okay. That makes you a strict constructionist, which is a valid legal "camp" in which to sit. However, I bet you would object to a law that puts heavy restrictions on the manufacture, distribution and sale of ammunition. Well, having argued using the strict constructionist theory of Constitutional interpretation/reading, for you to object to restrictions on ammunition is for you to tactically declare that you but a partisan, not a person of integrity, who wants to have your way. That is the tacit declaration you make because arms are one thing and ammunition is another, and the Constitution provides no right to bearing ammunition. Thus, applying your line of reasoning from above....
    This is your remark from your OP:
    ...And the red text below shows what I've changed to apply your strict constructionist rationale to the matter of ammunition....

    ...[M]uch of the Right Wing believes that there ALREADY IS a Constitutional "right to bear ammunition," that prevents the State from, say, criminalizing civilian non-law-enforcement-related sale, distribution, possession and/or use of ammunition. But a close inspection of the Constitution reveals that there is no such right in the Constitution or any Amendment, and it was created in the minds of Right Wing justices...​
    The Constitution is all about checks and balances. One of them, whether you realize it or not, is the balance that derives from the fact that both strict and loose constructionists will have to accept some interpretations that their chosen doctrine doesn't enjoy but that men of integrity will acquiesce to because to do otherwise is to demonstrate that they are unprincipled, uncivil, indeed, barbaric cretins having neither keen intellects nor sound ethics.​

    You were rambling the moment you started the OP. It just took however long you needed to write the whole post for you finally realize that you were rambling at all.
     
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    Last edited: Mar 28, 2018
  3. C_Clayton_Jones
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    C_Clayton_Jones Diamond Member

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    The Constitution exists solely in the context of its case law, as determined by the Supreme Court.

    "But that's not in the Constitution" is a failed and ignorant 'argument.'
     
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  4. usmbguest5318
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    usmbguest5318 Gold Member

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    ....And just damn lazy, I might add...
     
  5. DGS49
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    DGS49 Gold Member

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    Xelor, for someone who appears to have a lot of time and demonstrably understands English, you are surprisingly ignorant and gullible.

    Justice Stevens KNOWS that a repeal would not pass because he understands what a super - majority is and while he is and always been clueless about much, one can presume he has seen the poll results indictating that about 20% of Americans favor repeal.

    As for my own opinion on the 2nd, I see no reason why the right to own "arms" must be entirely unmoored; personal nuclear weapons are likely outside this "right." But Stevens has planted his flag in the same area of vapid idiocy as the faux high - schoolers who "demand reasonable restrictions to prevent mass shootings from happening." As if our scores of legislatures have been sitting on their collective hands, simply unwilling to "do what is right."

    When some genius figures out how to change human nature, I know everyone will sign on. And that will happen before a 2nd Amendment repeal is ever passed.

    As for the right of privacy, I know all the Leftist talking points and hollow sophistry. They are not that clever. But one wonders how, for example, sodomy laws lived peacefully with our Constitution for 200 years before the Court "discovered" that there was an undefined right of privacy that all along was being assaulted.
     
  6. usmbguest5318
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    usmbguest5318 Gold Member

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    I'm sure he knows it will not any time soon pass this year or next, or even five years from now, but what he doesn't know is that it will never happen..
    It wouldn't surprise me if repeal with a concurrent "replacement" (the 28th Amendment, or whatever number be next at the time such a thing be ratified) takes some 25 or 50 years, maybe longer. Like Justice Stevens, I don't know that it will never happen or that it won't ever happen, but that's not what you claimed Stevens knows, even if "will never happen" isn't what you meant. I can't read and understand your mind, but I sure can read and understand a simple word you write, and in this instance that simple word was "never."

    Say what you want, but it's not hard to leave out the word "never" if it's not what one means. Indeed, it takes less effort to omit it than it takes to write it. Would you have think you went to the effort to write "never" while not meaning "never?" Would you have me ignore the fact that you wrote "never" even though you wrote that word?

    I agree with you, but insofar as I do, one will rightly infer that I'm not a strict constructionist. I know I'm not; I've deliberately chosen my preference between the two legal theories/philosophies. Consequently, I'm not going to take a strict constructionist perspective on "Issue A" because it's convenient, and take a loose constructionist view on "Issue B."

    What? Wanting and willing are not the same things, not at all.
    • What one desires to do, one may do or one may not do it.
    • What one wills to do, one does, no matter whether one desires to do it.
    What?
    • Which do you construe as normatively monolithic: social attitudes or the Constitution?
    • Which do you construe as existentially monolithic: social attitudes or the Constitution?
     
  7. DGS49
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    DGS49 Gold Member

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    "Never" can practically be defined politically as, "not in the lifetime of the speaker or any current listener." The Second Amendment will "never" be repealed. Who knows, maybe an Article V "Convention" will occur is someone's lifetime (probably not mine), and if that happens - as we all know - all bets are off.

    There are large differences between and among, (a) the USSC interpreting a provision that has some intrinsic ambiguity, e.g., "cruel and unusual punishments," (b) the USSC creating a right that previously did not exist, and (c) the USSC simply ignoring the clear text of the Constitution. Anyone studying the history of USSC interpretations of the Constitution can cite examples of all three. In my opinion, the Second Amendment comes under (a), but ironically, if the Court did not completely toss out the concept of a citizens' militia as outmoded, then the "scary looking" weapons that are now the subject of so much horror would be precisely the type of weapons that a militia would want to have. I have no dog in the fight. I have an air pistol that I use to kill squirrels who plunder my bird feeders - that's it.

    As for contemporary new laws that would stop these school shootings, there is no such law and nobody has proposed one. Given a properly motivated bad-actor, the attack could be carried out with any one or group of weapons...or a car, for that matter. Relatively speaking, these shootings are nothing more than mosquito bites. Teens kill more people each year while driving and texting than all the shooters of the past ten years. More teens kill themselves voluntarily with controlled substances...more teens kill themselves with handguns...many times more teens are killed by other teens in urban conflicts. The only reason this comes up now and it's such a big deal is because it's suburban white kids getting killed.
     
  8. Dan Stubbs
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    Dan Stubbs FORGET ---- HELL Gold Supporting Member Supporting Member

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