NationStates Jolt Archive

The Supreme Court has just concluded a momentous and historic term, and found correctly and justly in all the major cases it heard.

Boumediene, Kennedy, and of course the historic landmark case Heller.

Each decision was a joy, and some very basic rights and principles of the law in our free society were upheld and defended.

The right of habeas corpus, the principle of rational and proportionate rather than barbaric punishment, and far more importantly, the basic and fundamental right to keep and bear arms for defense of life, liberty and property.

Justice Antonin Scalia, for all his ideological faults, and Dick Anthony Heller, as well as his attorney Alan Gura are owed a great debt of gratitude by all Americans for this noble undertaking and its favorable conclusion.

The right of habeas corpus, the principle of rational and proportionate rather than barbaric punishment, and far more importantly, the basic and fundamental right to keep and bear arms for defense of life, liberty and property.

1) there have already been not one but two topics on the recent ruling. At least one is several pages long and on the front page.

2) if you truly think that owning a gun is "far more important" than the right to the writ of habeas corpus and freedom from torture, there is something grievously wrong with you.

1) there have already been not one but two topics on the recent ruling. At least one is several pages long and on the front page.

2) if you truly think that owning a gun is "far more important" than the right to the writ of habeas corpus and freedom from torture, there is something grievously wrong with you.

Then there must be something equally wrong with the constitution, Neo. Gun Possession is dealt with specifically; torture is only tangentially considered, and the writ of Habeas Corpus is specifically named as being suspendable in certain situations.

Then there must be something equally wrong with the constitution, Neo.

At what point have I ever claimed the constitution was flawless? But with that in mind.

Gun Possession is dealt with specifically

Yeah, muskets. In 1791.

torture is only tangentially considered,

Actually it's mentioned directly, merely in the language of the time.

and the writ of Habeas Corpus is specifically named as being suspendable in certain situations.

Actually it's specifically mentioned as only being suspended at the times of great national emergency, namely insurrection and rebellion. Short of such national emergencies it is not suspendable.

At what point have I ever claimed the constitution was flawless? But with that in mind.



Yeah, muskets. In 1791.

If they meant muskets, they'd've said muskets. They said "arms".



Actually it's mentioned directly, merely in the language of the time.

No. They forbade "cruel and unusual punishments." I'm willing to believe they intended to forbid torture for information, but that was not stated.



Actually it's specifically mentioned as only being suspended at the times of great national emergency, namely insurrection and rebellion. Short of such national emergencies it is not suspendable.

And this contradicts my statement how?

1) there have already been not one but two topics on the recent ruling. At least one is several pages long and on the front page.

2) if you truly think that owning a gun is "far more important" than the right to the writ of habeas corpus and freedom from torture, there is something grievously wrong with you.

This topic is very clearly about the supreme court's recent term, not only about Heller.

The right to keep and bear arms for self defense affects orders of magnitude more Americans than does the decision in Boumediene.

Heller is, in practical and historic terms, a much more important ruling.

I think you should put more thought into what you post, especially, but not exclusively, with regards to accusations of grievous personal defects.

Yeah, muskets. In 1791.


"We do not interpret constitutional rights that way. Just as the First
Amendment protects modern forms of communications,
e.g., Reno v. American Civil Liberties Union, 521 U. S. 844,
849 (1997), and the Fourth Amendment applies to modern
forms of search, e.g., Kyllo v. United States, 533 U. S. 27,
35–36 (2001), the Second Amendment extends, prima
facie, to all instruments that constitute bearable arms,
even those that were not in existence at the time of the
founding."

Justice Scalia, writing for the majority of the Supreme Court.

They made some good decisions, but I'm a little disturbed by all the 5-4 squeakers. SOme of these, especially the death penalty for child rape and the dc handbun ban, I expected to be more lopsided. Feh.

"We do not interpret constitutional rights that way. Just as the First
Amendment protects modern forms of communications,
e.g., Reno v. American Civil Liberties Union, 521 U. S. 844,
849 (1997), and the Fourth Amendment applies to modern
forms of search, e.g., Kyllo v. United States, 533 U. S. 27,
35–36 (2001), the Second Amendment extends, prima
facie, to all instruments that constitute bearable arms,
even those that were not in existence at the time of the
founding."

Justice Scalia, writing for the majority of the Supreme Court.

that's kind of irrelevant for two reasons:

1) I don't believe I'm obligated to agree with Justice Scalia

2) while his opinion may be consistent with judicial interpretation of the constitution, that doesn't disprove my point. Even though the court may be bound to interpret the constitution in a modern framework, it doesn't change the fact that a constitutional amendment that was useful and valid in the historical perspective of 1791 may not be as useful in 2008.

I simply don't view the 2nd amendment as all that important or useful in today's society. It exists, there's no debate about that. I just question whether it should.

I also note with amusement that Scalia's opinion is in direct opposition to his views on a great many other instances.

What's going on here? Is this just another "Yay! we can has guns!" thread?

What's going on here? Is this just another "Yay! we can has guns!" thread?

Actually, it's a "Yay! We can pie New Manvir!" thread.

*demonstrates*

I think you should put more thought into what you post, especially, but not exclusively, with regards to accusations of grievous personal defects.

I think my accusations as to your character as a result of you finding "yay, the government can't take our guns" is more important than "yah, the government can't torture us" requires no further thought, as it's pretty well evidenced on its face.

If you don't wish to be shown in such a negative light, I suggest that it is you who needs to put more thought into what you post.

2) while his opinion may be consistent with judicial interpretation of the constitution, that doesn't disprove my point. Even though the court may be bound to interpret the constitution in a modern framework, it doesn't change the fact that a constitutional amendment that was useful and valid in the historical perspective of 1791 may not be as useful in 2008.
but doesn't this argument cut against your claim regarding torture
Actually it's mentioned directly, merely in the language of the time.

but doesn't this argument cut against your claim regarding torture

you make a good point, but one problem. Torture, and indeed "cruel and unusual" punishment means pretty much the same thing now as it did then. Painful, humiliating, degrading, and disproportionate methods.

Torture as a concept is still pretty much the same thing. The methodology may have changed slightly, but torture now and torture then are inherently the same idea, loathed for the same reasons, and prevented for the same ideology.

On the other hand, a front loaded musket or black powder rifle held by a yoeman farmer in a mostly agrarian 18th century fledgling nation without a standing military, who was expected to take up musket and defend the nation from invaders, just as they did not a scant 15 years before is a VERY different thing than a 9 mm baretta owned by a guy living in a country with the most advanced and powerful army in the world.

The reasons for the 2nd amendment, and the historical context it was placed in, aren't as relevant anymore. Private ownership of modern handguns by civilians in today's society is, if not more harmful than beneficial, at least has the negatives very closely following the positives so that to call it so extremely important is...highly questionable at best.

Torture is torture, whether in 1791 or 2008. It was for the same purpose, the same rationale, and for the same reasons. "arms", and the reasons that arms were allowed in 1791 are vastly different than in 2008.

Now, this isn't to say we should just ignore the 2nd amendment. It's there. We can't deny it's there. It's law. I think Scalia is right (if highly disingenuous) when he says that we can't just decide an amendment has outlived its usefulness, and I think the court decided rightly....mostly.

This 2nd amendment is part of our constitution, and as such it's law. However the mere fact that it is in our constitution doesn't mean we should suddenly stop the debate as to whether it should be.

I think my accusations as to your character as a result of you finding "yay, the government can't take our guns" is more important than "yah, the government can't torture us" requires no further thought, as it's pretty well evidenced on its face.

If you don't wish to be shown in such a negative light, I suggest that it is you who needs to put more thought into what you post.




There seems to be a lack of critical thinking in the false characterization of my opinion that Heller is more noteworthy and important than Boumediene as "It is more important that the government can't take our guns than that the government can't torture us," especially because Boumediene did not redefine the legal environment for torture laws in the profound sense that Heller did for gun laws.

The magnitude of the effect of Heller is much larger than that of Boumediene.

I think my accusations as to your character as a result of you finding "yay, the government can't take our guns" is more important than "yah, the government can't torture us" requires no further thought, as it's pretty well evidenced on its face.

If you don't wish to be shown in such a negative light, I suggest that it is you who needs to put more thought into what you post.




There seems to be a lack of critical thinking in the false characterization of my opinion that Heller is more noteworthy and important than Boumediene as "It is more important that the government can't take our guns than that the government can't torture us," especially because Boumediene did not redefine the legal environment for torture laws in the profound sense that Heller did for gun laws.

The magnitude of the effect of Heller is much larger than that of Boumediene.

you make a good point, but one problem. Torture, and indeed "cruel and unusual" punishment means pretty much the same thing now as it did then. Painful, humiliating, degrading, and disproportionate methods.

Torture as a concept is still pretty much the same thing. The methodology may have changed slightly, but torture now and torture then are inherently the same idea, loathed for the same reasons, and prevented for the same ideology.

On the other hand, a front loaded musket or black powder rifle held by a yoeman farmer in a mostly agrarian 18th century fledgling nation without a standing military, who was expected to take up musket and defend the nation from invaders, just as they did not a scant 15 years before is a VERY different thing than a 9 mm baretta owned by a guy living in a country with the most advanced and powerful army in the world.

The reasons for the 2nd amendment, and the historical context it was placed in, aren't as relevant anymore. Private ownership of modern handguns by civilians in today's society is, if not more harmful than beneficial, at least has the negatives very closely following the positives so that to call it so extremely important is...highly questionable at best.

Torture is torture, whether in 1791 or 2008. It was for the same purpose, the same rationale, and for the same reasons. "arms", and the reasons that arms were allowed in 1791 are vastly different than in 2008.

Now, this isn't to say we should just ignore the 2nd amendment. It's there. We can't deny it's there. It's law. I think Scalia is right (if highly disingenuous) when he says that we can't just decide an amendment has outlived its usefulness, and I think the court decided rightly....mostly.

This 2nd amendment is part of our constitution, and as such it's law. However the mere fact that it is in our constitution doesn't mean we should suddenly stop the debate as to whether it should be.
I disagree:

You are arguing torture is torture, then and now it is the same, just different words describe it. Then you argue arms is NOT arms because the reason for having arms and the type of arms ARE different. You are inconsistent.

They did not have the ability to use electricity or sodium pentathol for torture in 1791, but torture is still torture, no matter the method.

They did not have Glock .40 caliber semi-automatic pistols with 15 shot magazines in 1791, but arms are still arms.

The reason torture is banned has not changed since then, I'll agree. The reason private citizens "need" guns may have changed (and for the sake of argument, I'll agree it has). Just because the reasoning behind it has changed, doesn't change the meaning of the words and just because the technology used has changed doesn't change the meaning of the words.

You cannot say the 2nd Amendment's use of the word "arms" meant only muskets or black powder guns and then say "cruel and unusual" means torture, no matter what method is used without being inconsistent in your reasoning.

It is fine to argue the justification for the 2nd A. no longer exists. It is not fine to claim that the word "arms" doesn't include modern weaponry if cruel and unusual does include modern torture techniques.

I disagree:

You are arguing torture is torture, then and now it is the same, just different words describe it. Then you argue arms is NOT arms because the reason for having arms and the type of arms ARE different. You are inconsistent.

They did not have the ability to use electricity or sodium pentathol for torture in 1791, but torture is still torture, no matter the method.

They did not have Glock .40 caliber semi-automatic pistols with 15 shot magazines in 1791, but arms are still arms.

The reason torture is banned has not changed since then, I'll agree. The reason private citizens "need" guns may have changed (and for the sake of argument, I'll agree it has). Just because the reasoning behind it has changed, doesn't change the meaning of the words and just because the technology used has changed doesn't change the meaning of the words.

You cannot say the 2nd Amendment's use of the word "arms" meant only muskets or black powder guns and then say "cruel and unusual" means torture, no matter what method is used without being inconsistent in your reasoning.

It is fine to argue the justification for the 2nd A. no longer exists. It is not fine to claim that the word "arms" doesn't include modern weaponry if cruel and unusual does include modern torture techniques.

One problem. You misunderstand my argument, again. I never argued that "arms" does not include modern weaponry. I never said that. In fact I did specifically say that I think the ruling was for the most part correct. I think arms means arms. Arms might not mean the same thing as it did, but arms means arms. I never suggested any differently. What I did say was:

while his opinion may be consistent with judicial interpretation of the constitution, that doesn't disprove my point. Even though the court may be bound to interpret the constitution in a modern framework, it doesn't change the fact that a constitutional amendment that was useful and valid in the historical perspective of 1791 may not be as useful in 2008.

In regards to the 2nd amendment, I don't question the validity of applying it to modern arms, I question the value of doing so. I'm not saying the 2nd amendment ONLY applies to the concept of "arms" that we had in 1791. I'm saying our concept of arms from 1791 is what helped shape the 2nd amendment, and that the reasons we have the second amendment might no longer be valid. This doesn't change things as a matter of law, but maybe it should affect things as a matter of policy.

As I said, the 2nd amendment is law, it's there. Whether I like it or hate it, it's there. That doesn't mean I can't question whether or not it SHOULD be there. It was a great idea in 1791. Not so great in 2008. Now does the fact that I think it's a bad constitutional amendment mean we should pretend it isn't an amendment? Do I think that just because I dislike the 2nd amendment means the courts should ignore it?

No, of course not. There job is to uphold the constitution as is, not as I might think it should be. And in that vein I think the court, mostly, got it right.

Now, I don't like the 2nd amendment. I don't agree with the 2nd amendment. I look forward to the day our society has evolved past such an archaic and anachronistic tradition that has long since outlived its usefulness and gets rid of the damned thing by the methods prescribed by law. But until that day, the 2nd amendment is there, it is law, and the courts should enforce it.

I do however get a little intellectual chuckle out of Justice Antonin "originalist intent" Scalia justifying his position by using an argument for the application of modern understanding of words.

Again, do I think the court interpreted the 2nd amendment correctly? Yes.
Do I think the 2nd amendment is out of date? Yes.

I couldn't care less about how the Constitution frames it. Legal firearm ownership is in no way far more important than habeus corpus and banning torture, on a moral level, and you're getting this from a strong defender of legal firearm ownership.

One problem. You misunderstand my argument, again. I never argued that "arms" does not include modern weaponry. I never said that. In fact I did specifically say that I think the ruling was for the most part correct. I think arms means arms. Arms might not mean the same thing as it did, but arms means arms. I never suggested any differently. What I did say was:



In regards to the 2nd amendment, I don't question the validity of applying it to modern arms, I question the value of doing so. I'm not saying the 2nd amendment ONLY applies to the concept of "arms" that we had in 1791. I'm saying our concept of arms from 1791 is what helped shape the 2nd amendment, and that the reasons we have the second amendment might no longer be valid. This doesn't change things as a matter of law, but maybe it should affect things as a matter of policy.

As I said, the 2nd amendment is law, it's there. Whether I like it or hate it, it's there. That doesn't mean I can't question whether or not it SHOULD be there. It was a great idea in 1791. Not so great in 2008. Now does the fact that I think it's a bad constitutional amendment mean we should pretend it isn't an amendment? Do I think that just because I dislike the 2nd amendment means the courts should ignore it?

No, of course not. There job is to uphold the constitution as is, not as I might think it should be. And in that vein I think the court, mostly, got it right.

Now, I don't like the 2nd amendment. I don't agree with the 2nd amendment. I look forward to the day our society has evolved past such an archaic and anachronistic tradition that has long since outlived its usefulness and gets rid of the damned thing by the methods prescribed by law. But until that day, the 2nd amendment is there, it is law, and the courts should enforce it.

I do however get a little intellectual chuckle out of Justice Antonin "originalist intent" Scalia justifying his position by using an argument for the application of modern understanding of words.

Again, do I think the court interpreted the 2nd amendment correctly? Yes.
Do I think the 2nd amendment is out of date? Yes.
I don't have any problem with this and I do understand it.

My whole argument is based on your first statement Yeah, muskets. In 1791. which you followed up with the statement Actually it's mentioned directly, merely in the language of the time. and I'm pointing out the apparent inconsistency between the 2 statements which seems to relegate the definition of "arms" to muskets, but "cruel & unusual" to modern day torture as well as the forms that existed then.

If that was not your intent, fine. Again, I'm not arguing about your belief the 2nd Amendment is archaic. It may be, that's another issue. I'm just arguing that I think your first statements were incongruous and inconsistent with each other, that's all, nothing more or less than that those 2 statements appear to be inconsistent with each other.

If that was not your intent, fine. Again, I'm not arguing about your belief the 2nd Amendment is archaic. It may be, that's another issue. I'm just arguing that I think your first statements were incongruous and inconsistent with each other, that's all, nothing more or less than that those 2 statements appear to be inconsistent with each other.

My point was in response to a claim that the framers would have thought gun ownership more important than habeas corpus or prohbitions against torture. My point was that it may have been extremely important in 1791, perhaps even more important than the aforementioned. But judging by how the framers viewed the heirarchy of rights is perhaps not the best indicator as to how important they are today.

My point was in response to a claim that the framers would have thought gun ownership more important than habeas corpus or prohbitions against torture. My point was that it may have been extremely important in 1791, perhaps even more important than the aforementioned. But judging by how the framers viewed the heirarchy of rights is perhaps not the best indicator as to how important they are today.Ok, I can accept that, my apologies for misunderstanding your point.

Personally, I think the framers probably thought Habeas was much more important than the 2nd amendment since it is in the main body of the Constitution and the 2nd A. is just that, an amendment or "afterthought" to the main document.

Actually, it's a "Yay! We can pie New Manvir!" thread.

*demonstrates*

*flees*

There seems to be a lack of critical thinking in the false characterization of my opinion that Heller is more noteworthy and important than Boumediene as "It is more important that the government can't take our guns than that the government can't torture us," especially because Boumediene did not redefine the legal environment for torture laws in the profound sense that Heller did for gun laws.

The magnitude of the effect of Heller is much larger than that of Boumediene.
Heller really changed nothing. The Second Amendment is still not incorporated. It still only applies on a federal level. And it only disallows an outright ban.