Lots of Judicial Activism?

[Wingnut]

I agree with your assessment that the drafters saw a difference in Militia (individuals capable of serving) and an Army (formal group of such individuals).
And I agree that there is nothing in the constitution preventing me from owning and weapon that I want ... bazooka, tactical nuke, M1A tank or even an F22. In fact, I'm pretty sure that it states that anything not granted specifically to the "state" (national government) is forbidden to it ... so it truly doesn't have the right to enact 99.999% of the laws it does ... since they're nothing at all to do with interstate commerce nor protection of the nation.
But what do I know?

 

[Charlie_Iliff]

<font color=blue>One thing that appears certain to me is that they, nowhere in their writings, allowed for judges to make laws. They'd more likely be on my side and consider impeachment too small a punishment for such scoundrels.</font color=blue>

I'm afraid that one calls for a mild response. The Constitution actually was an unusual document, in that it was written law enacted within a system in which most of the law actually was made by judges. The United States did not discard the English Common Law as the primary source not only of civil but of criminal law. Given a couple of hundred years of legislation at the state and local levels, we have a lot of statutes to pay attention to, but a lot of the law currently applied in courts on a daily basis is Common Law - judges made it and judges can change it.

 

[rmorgan]

Peter--

Here I go again. Last I checked, no judge ever "made a law" . . . it's been pretty well established, though, since Marbury v. Madison, that they can invalidate them. Of course, Marbury itself could be considered unconstitutional, in which case judges would be reduced to fining speeders and we would still have signs on gas stations like I remember from a few decades ago pointing around back to the "colored" bathrooms and having "white only" drinking fountains, and "equal"/w3tcompact/icons/laugh.gif schools for black Americans whose ancestors arrived here long before my own (remember, those laws survived for about a century after the 14th Amendment). I believe the intent of the framers was pretty clear that the purpose of lifetime tenure for judges is to allow them to guard against legislative and executive excess--and, as it happens, this often has allowed the courts to lead the way on such things as desegregation, defendants' rights, etc. As to whether it is "liberal" for a judge to invalidate a state law against limiting what I can do with my property . . . which includes my body, IMHO . . . or whether it is "conservative" for a judge to invalidate a decades-old federal law which says that the federal government has the right under the Constitution to legislate that states cannot discriminate in hiring on the basis of handicap or gender . . . all seems pretty much to depend on whose ox is being gored, no? /w3tcompact/icons/wink.gif

 

[Charlie_Iliff]

Rick:
<font color=red>no judge ever "made a law"</font color=red> "Made a law" in this context means "enacted a statute" right? Can't picture a legislature as original source of the Rule in Shelley's Case. For that matter, never could find "Shelley's Case", either - just opinions citing it with approval.

 

[rmorgan]

Well, shucks, Charlie, I was referring to American judges. Those wacky Brits, like the one who enacted the Rule in Shelley's Case in 1581 (the Rule was then ported over as part of American "common law"), are the whole reason we have an independent, non-legislative judiciary in the first place, no?

(For the unitiated, the Rule in Shelley's Case is thusly: "when an ancestor by any gift or conveyance takes an estate of freehold and in the same gift or conveyance an estate is limited, either mediately or immediately, to his heirs or the heirs of his body, in such a case the word "heirs " is a word of limitation and not of purchase; that is to say, the estate of the ancestor is not a life or other freehold estate with remainder to the heirs or heirs of the body, but an estate in fee or an estate tail according to circumstances." Or, as Charlie Brown's mom would say, Wahh, wahhwahh wahh wahh, wahh.")

 

[Ozarker]

I agree that the federal government has grown to a monster that was never intended by the founders and that they are not empowered to pass the vast majority of the law that they pass.

But, looking at the Second Amendment on it's own merits and trying to determine why they thought it was important, I think it is easy to see that they intended to insure that there was a ready supply of individual soldiers prepared to come armed and equipped if called. That would mean that individuals had the right to possess all the tools and equipment that a modern soldier of the day would have. Today, that would include assault weapons, handguns, grenades, bazookas, etc etc.

I don't believe it would include tactical nukes. A nuke set off in the middle of farm land would definitely disrupt interstate commerce for years to come.

 

[Charlie_Iliff]

Rick:
One of my old professors used to challenge students at cocktail parties to recite the Rule in Shelley's case. If they got it right, his next challenge was to recite the Infield Fly Rule.
The point, however, is that American judges still make a lot of the laws that cases are decided by. I've tried a lot of them in which there was no statute at issue, and a number where one side or the other made a legitimate attempt to get the judge to change the law - to make new law. I assume you have, as well.
Incidentally - at one time, at least, there were scholars who believed that the whole 1580-1 "decision" in Shelley's case was apocryphal - that Lord Coke made it up so he'd have a basis for a later decision. Fortunately, whatever its source, most states passed laws repealing it.

 

[knucklehead]

Huh? Whut? Knuckles getting....closer to....dirt! Can't....pull them....uuuuupppp!

Kinda shows ya why it ain't so simple as "an eye for an eye", anymore, don't it?

/w3tcompact/icons/grin.gif

 

[Chuck52]

Ozarker,

I can't tell from reading that last if you think that your interpretation of the founder's words is a good thing or not. Doesn't much matter to my central theme, which isn't about any of the ammendments in particular. Since no one has objected to my use of the term "interpreted" in this context, I will assume the point is made and accepted.

Chuck

 

[Wingnut]

Sorry, Rick ... I was referring to the Supremes, who - over the years - have decided to interpret laws (cases?) in such a fashion that it becomes the norm. Desegregation is a good example indeed. One I like even more is the right to throw away evidence if the judge decides the perp wasn't served the right flavor of ice cream.
Actually ... I don't care who's ox is being gored ... I'd just like to see the laws administered ... without the personal prejudices of the judge affecting the outcome. Me, I'd vote for robots in a trice ...

Peter