Thread: Obama Administration's War Against The Second Amendment...Continued...

Originally Posted by Nemo

You have made a rather profound observation. As a matter of judicial interpretation, Justice Scalia’s opinion in District of Columbia v. Heller is strikingly similar to that of Justice Blackmun in Roe v. Wade. A woman’s right over her body is based on privacy. In this, there is no express provision of the Constitution for a general right of privacy. Rather it is based on the decisions of the Supreme Court in interpreting the First, Fourth, Fifth and Ninth Amendments viewed through the prism of the due process clause of the Fourteenth Amendment in such cases as Griswold v. Connecticut, Roe v. Wade, Cruzon v. Missouri Dept. of Health, and most recently, Lawrence v. Texas. It is the product of an expansive reading of the Constitution rather than a literal interpretation of its provisions. (I can remember former Judge Robert Bork stating that there was no right to privacy, which did not go down well in the Senate confirmation hearings for his failed nomination to the Supreme Court.) Oddly enough, in extending Second Amendment protection for an individual right to have firearms, Justice Scalia has done the same thing, albeit from the perspective of an original, textural interpretation. Both decisions are controversial, being driven by popular sentiment; which, as Justice Holmes observed, makes bad law.

In my opinion, the point of view regarding privacy you present is the inverse of what our Founding Fathers ordained and established for us, by merely delegating powers to our elected representatives and providing for States rights and Article 4, Section 2 of our federal Constitution. The right to privacy and private property are usually secured by State Constitutions.

A question should be, where did the general government of the Union derive any power to deny or disparage any form of individual liberty without due process.

CALIFORNIA CONSTITUTION
ARTICLE 1 DECLARATION OF RIGHTS
SECTION 1. All people are by nature free and independent and have inalienable rights. Among these are enjoying and defending life and liberty, acquiring, possessing, and protecting property, and pursuing and obtaining safety, happiness, and privacy.

Originally Posted by danielpalos

I agree to disagree regarding your view of natural rights, simply and merely because our Ninth Amendment recognizes that concept.

Well, sir, what can I say? I think we have had this discussion before, have we not? At the risk of repeating myself, what can I tell you? The basis for your disagreement is your belief in natural rights, which is a fiction. The notion that one has natural, imprescriptible rights is, as Bentham put it, “simple nonsense.” Jeremy Bentham, Anarchical Fallacies (1816). It is unsupportable: the Declaration of Independence is not authority for such rights. Indeed, the only thing that is “self-evident” is that “the Laws of Nature and of Nature’s God” are not the laws that govern our nation and society. To say that you have rights under the Ninth Amendment is only to beg the question that such rights exist by law; and until you recognize this fundamental fact, you will be at odds with the true order of things.

While I have not read the writings of the author you cite; how can natural rights be any form of figment of my imagination for (political) animals where natural rights may include might.

Originally Posted by danielpalos

While I have not read the writings of the author you cite; how can natural rights be any form of figment of my imagination for (political) animals where natural rights may include might.

“Might”? What, are you referring to the “Law of the Jungle”? Beyond the law there is only savagery - where Kraft macht Recht (“might makes right”) - that is the state of natural law, a scrambling possession unlikely to last beyond the first to challenge them by force. Natural rights are but cold comfort when they can be taken away with impunity. Nonsense! Rights can only exist within the structure of organized society subject to the rule of law. Real rights are legal rights - rights provided and protected by law.

Might makes right could be viewed as a "natural" right for non-political animals. Only political animals may have some sense of Justice to go along with their "natural" rights.

Originally Posted by Nemo

I think you are right about the lack of knowledge of the Constitution - ignorance of that most fundamental document is pervasive. (Certainly, when the Speaker of the House of Representatives gets up in public and loudly and proudly misquotes the Preamble, it gives one cause to pause and reflect on the need for an enlightened electorate, not to mention the elected.) And, I can well appreciate your perspective on all this political wrangling.The electorate is uninformed yet I don't blame them. The leader however must shoulder the blame for the failures of those they lead. A quote from Washington "Truth will prevail where there is pains taken to bring it to light" Aug.10,1794. I believe they leave the electorate ignorant for ease of manipulation. The act of honesty is rare in the city named after our greatest leader.(my humble opinion of course)They give us lies, offer shiny beads to buy our loyalties, and blame the other guy who much like looking in a mirror is the same just the image is reversed. I should be one of the least informed as I am of the lower class. I believe the electorate has just accepted this is how it has always been and always will be. As a child I remember the amazing patriotic pride in the rural country side. That pride is fading as it become clear we are not as important as the vote in urban areas. I now live in the rural area of my families roots. Having left the inner-city to have my children raised where life is slow.

Personally, and as a lawyer, I don’t find it particularly helpful to attempt to divine the original intent of the framers of our Constitution in every context;
nor illuminating to read it by candlelight. We Americans have always been a forward-looking people and not anachronistic in our views. (We no longer go
about our lives in powdered wigs and small clothes.) I think it must be admitted that the Constitution is a "living document," as evident by the fact
that it has been amended twenty-seven times since its adoption by the several states; which is a testament to the wisdom and foresight of the framers in
making provision for such future changes. Surely, they could not have intended that we be ruled by their dead hands. I respect your profesion in fact I wish I would have taken more intrest in my studies as a child. Instead of the desire for immediate rewards. My son is looking into the field of law as a possibility.
I understand we must keep up with the times. I do feel however that bending the rules without following procedures. Sets dangerous precedents for our leaders that have demonstrated a tendency to abuse their power. I have no issue with amendments. Yet my concern with the judical reviews is it just adds more "dead hands" by which to be ruled. I do not mean to say this as pretending I know it all. I am no intellectual by any means. I just say what appears true to a simple man. It would make sense to me that the more complex our laws are to understand. The harder they become to follow, are even know if they are being followed. As well as the less the ruled understand about how there ruled; the more likely it becomes they will rebel against that rule. I believe a parents rule over a child would make a good analogy to the above statements.
Times have changed. Democracy in America has come a long way from its early beginnings following our struggle for independence. The America Alexis de Tocqueville described in the 1830's, which was largely an agrarian society, was eclipsed by the rise of the nation as an industrial power in the latter half
of the Nineteenth Century to become the great economic and military power of the Twentieth Century; and with such changes came the inevitable expansion
of the nature and power of government, and the laws that govern our society.
Our "founding fathers" could only be utterly astonished at the America of
today. But what would comfort them most, notwithstanding the recent efforts of certain groups to rewrite our history, is that we are still a nation of laws and not men.

I agree completely what are founding father accomplished was amazing. The fact that the whole constitution has not been thrown out. Is a testament to those great men who's vision has proven true. I am proud of what America has accomplished. Yet despite the great success some of her citizens have been forgotten. Our jobs have been sent overseas where cheaper labor can be found. Illegal immigrants( who I respect greatly) are allowed to drive wages down for labor we use to perform. I understand the benefits for most Americans; but that does not change the effects, on the ones, that are forgotten. I could write for hours all the ideas in my mind. Yet I have drifted far off topic already. I hope my punctuation has not made reading this a pain. I appreciate the ideas that I will research. As well I hope my perspective has not offended you.

Originally Posted by danielpalos

Might makes right could be viewed as a "natural" right for non-political animals. Only political animals may have some sense of Justice to go along with their "natural" rights.

The problem with the concept of natural rights is that it is egocentric; i.e., it places the individual in the center of importance. It assumes, falsely, that man, as Locke espoused, has certain inherent rights; or, as Jefferson phrased it, unalienable rights. However, that is not how things are ordered. There are no inherent rights; there are no unalienable rights; there are only legal rights. The words “inherent” and “unalienable” do not appear anywhere in the Constitution. The framers of the Constitution created a nation of laws and not men. It is the recognition, from the time of Magna Carta to this day, that no person can be above the law; for it is not the individual that is sovereign, it is the law. To say that one has a right to anything need must admit that such right exists by law. Indeed, there is nothing in the varied course of human events, from the moment of life’s conception to the final disposition of one’s mortal remains and property after death, that is not governed by law.

Originally Posted by Texsdrifter

I agree completely what are founding father accomplished was amazing. The fact that the whole constitution has not been thrown out. Is a testament to those great men who's vision has proven true. I am proud of what America has accomplished. Yet despite the great success some of her citizens have been forgotten. Our jobs have been sent overseas where cheaper labor can be found. Illegal immigrants( who I respect greatly) are allowed to drive wages down for labor we use to perform. I understand the benefits for most Americans; but that does not change the effects, on the ones, that are forgotten. I could write for hours all the ideas in my mind. Yet I have drifted far off topic already. I hope my punctuation has not made reading this a pain. I appreciate the ideas that I will research. As well I hope my perspective has not offended you.

I find your ideas original and refreshing, which gives me hope for the younger generation. And you express yourself well. (Don't bother yourself with little things like punctuation.) In all the world, there are few original thinkers. Most people, like cautious lawyers, subscribe to the conventional wisdom. New ideas are rare, and more rarely welcome for they portend change, which challenges the established order. It is nothing but amazing how artistic license, not to mention the many scientific and technological innovations, could have managed to survive the tyranny of the status quo.

Originally Posted by Nemo

The problem with the concept of natural rights is that it is egocentric; i.e., it places the individual in the center of importance. It assumes, falsely, that man, as Locke espoused, has certain inherent rights; or, as Jefferson phrased it, unalienable rights. However, that is not how things are ordered. There are no inherent rights; there are no unalienable rights; there are only legal rights. The words “inherent” and “unalienable” do not appear anywhere in the Constitution. The framers of the Constitution created a nation of laws and not men. It is the recognition, from the time of Magna Carta to this day, that no person can be above the law; for it is not the individual that is sovereign, it is the law. To say that one has a right to anything need must admit that such right exists by law. Indeed, there is nothing in the varied course of human events, from the moment of life’s conception to the final disposition of one’s mortal remains and property after death, that is not governed by law.

Are you claiming that might does not make right for non political animals in Nature? If not, then how can you claim what you do regarding natural rights?

Originally Posted by danielpalos

Are you claiming that might does not make right for non political animals in Nature? If not, then how can you claim what you do regarding natural rights?

Go live on a uninhabited island - if you can find one - and there you can have your natural rights. The rest of the world is ruled by law.