Sunday, June 18, 2017

The Second Amendment is a victim of desuetude--LIVE WITH IT!

Desuetude is a doctrine that causes statutes, similar legislation or legal principles to lapse and become unenforceable by a long habit of non-enforcement or lapse of time. It is what happens to laws that are not repealed when they become obsolete.

Unfortunately, this doctrine currently only enjoys recognition in the courts of West Virginia and nowhere else in the US. Perhaps this is why Scalia somehow decided that he could bring an outdated, anachronistic, and defunct section of the US Constitution kicking and screaming into the 21st Century.  It's bad enough the Second Amendment serves no real purpose these days since there is no longer a citizen's militia (as if there really ever was) and it has been replaced by a large, standing military in peacetime.

The best argument in favour of desuetude might also be the simplest. In the words of one commentator, "it is part of the intelligent cooperation the courts owe the legislature to relieve it from the burden of seeking out and repealing statutes that clearly serve no modern purpose." Given the purpose of the Second Amendment is to ensure the continuation of a system which died out at childbirth and was possibly stillborn), it serves no purpose.

If anything, it stirs the minds of those not willing to understand it to take it out of context: Historic and Constitutional. It has been removed from its purpose by judicial fiat which has decided that the purpose is not relevant to the guarantee.

On the other hand, repeal by desuetude is much like repeal by sunset clause. Indeed, we could call the doctrine of desuetude an implied and indefinite sunset clause. Once the purpose was declared invalid, then the guaranteed right becomes invalid.

Recent events demonstrate the mischief an antiquated law can cause if it is not properly repealed: especially when the law is as misinterpreted and subject to misconceptions as the Second Amendment.  The Second Amendment does not address self-defence.

Even more importantly, it cannot be conceived as allowing people to act against the legal framework (e.g., article I, Section 8, clause 15; Article III, Section iii; and 14th Amendment, section 3).  The fact that absurdity has been given any credence goes beyond my comprehension.

It makes far more sense to declare the Second Amendment dead judicially than to amend it completely out of Constitutional context.  In fact, judicial amendment of the Constitution is totally ultra vires (beyond its power).

The "When we hang the capitalists, they will have sold us the rope" department part 3

This is the silly rhetoric which has taken the US right from being anything vaguely "conservative" into the realms of lunatic fringe:
“The courts do not have the last word on what the Constitution is. They decide particular cases, they don’t make law. Their decisions, unlike the Roe v. Wade usurpation, don’t extend to the whole of society, they’re not supposed to. And we may have to reassert that proper constitutional balance, and it may not be pretty. So, I’d much rather have an election where we solve this matter at the ballot box than have to resort to the bullet box.”

Saturday, June 17, 2017

The "When we hang the capitalists, they will have sold us the rope" department part 2

“if congress keeps going this way, people are looking for 2nd Amendment remedies.” 
                            --Sharron Angle, who served as a Republican member of the Nevada Assembly from 1999 to 2007. She ran unsuccessfully as the 2010 Republican nominee for the U.S. Senate seat in Nevada.

Don't go whimpering if the "wrong" people start acting what you have been promoting in your ignorance.

Especially when it is a BOGUS interpretation of the Second Amendment, which is so far removed from the Constitutional context as to be a total absurdity (US Constution, Article III, Section iii).

Actually, I guess that corrects the Threeper's definition of themselves so that it should be III.iii to show they are really TRAITORS according to the document they claim to follow.

Thursday, June 15, 2017

The "When we hang the capitalists, they will have sold us the rope" department

OK, this tweet is wrong on many levels.


The first one is the believe that somehow the Second Amendment invalidates article III, Section iii of the US Constitution.

Or that a document that begins:
We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence,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.
somehow contains the seeds of destruction of the nation.

The US Constitution was written as a response to Shays' Rebellion and a read of what the drafters thought about that event should eliminate any doubt that the Constitution somehow condones rebellion if it isn't clear enough from the Constitution itself.

Nevermind that the military structure envisioned by the founders which was supposed to be guaranteed by the Second Amendment is as non-existent as the American Dream.

But this is what happens when one chooses to ignore the purpose of the Second Amendment ("A well regulated Militia, being necessary to the security of a free State") and call it somehow meaningless.  Saying that a clause in the constitution which is somehow "mere surplusage" is a statement which makes judicial review meaningless (see Marbury v. Madison, 5 U.S. 137 (more) 1 Cranch 137, 2 L. Ed. 60, 1803 U.S. LEXIS 352).

If the people who make idiotic statements like this would take a few moments to consider the ramifications of the Alexandria shooting, then we might actually get somewhere.
They need to understand one person's freedom can be seen as another's tyranny. One person's freedom fighter is another's terrorist.

They can't go making statements like that and not understand that they may have just put a target on their OWN backs.

Even more importantly, one cannot have a serious war on terrorism and make weapons easily accessible to your enemy.

If anything, the Second Amendment's "well regulated" needs to be brought into the debate. And it fucking well doesn't mean "well-trained",[1] but under strict civilian control (the real issue of the Second Amendment is civilian control of the military, not personal weapons--that is exactly what you will find if you actually do some thinking and stop parroting idiotic statements which are detrimental to the constitutional structure of the US).


If gun rights are enumerated, then they are under very tight control.  As State v. Buzzard, 4 Ark. (2 Pike) 18 (1842), pointed out about  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.
The US Supreme Court said in Presser v Illinois, 116 U.S. 252, 6 S.Ct. 580, 29 L.Ed. 615 (1886):
It is undoubtedly true that all citizens capable of bearing arms constitute the reserved military force or reserve militia of the United States as well as of the states, and, in view of this prerogative of the general government, as well as of its general powers, the states cannot, even laying the constitutional provision in question out of view, prohibit the people from keeping and bearing arms, so as to deprive the United States of their rightful resource for maintaining the public security, and disable the people from performing their duty to the general government. But, as already stated, we think it clear that the sections under consideration do not have this effect...

It is undoubtedly true that all citizens capable of bearing arms constitute the reserved military force or reserve militia of the United States as well as of the states, and, in view of this prerogative of the general government, as well as of its general powers, the states cannot, even laying the constitutional provision in question out of view, prohibit the people from keeping and bearing arms, so as to deprive the United States of their rightful resource for maintaining the public security, and disable the people from performing their duty to the general government. But, as already stated, we think it clear that the sections under consideration do not have this effect.

It cannot be successfully questioned that the state governments, unless restrained by their own constitutions, have the power to regulate or prohibit associations and meetings of the people, except in the case of peaceable assemblies to perform the duties or exercise the privileges of citizens of the United States, and have also the power to control and regulate the organization, drilling, and parading of military bodies and associations, except when such bodies or associations, are authorized by the militia laws of the United States. The exercise of this power by the states is necessary to the public peace, safety, and good order. To deny the power would be to deny the right of the state to disperse assemblages organized for sedition and treason, and the right to suppress armed mobs bent on riot and rapine.
US v. Miller was not helpful to the revisionist agenda of the Heller-McDonald decisions because it made clear that the Second Amendment has the "obvious purpose to assure the continuation and render possible the effectiveness of such forces (organised in accordance with USC Article I, Section 8, Clauses 15 & 16), the declaration and guarantee of the Second Amendment were made.[2] It must be interpreted and applied with that end in view."

The Second Amendment is a victim of desuetude and it was  Scalia's job to have declared it such.  But it is now the public which must come to the realisation that the Second Amendment serves no purpose in modern society.

Before it ends up being the self-destruct button for the United States.

Notes:
[1] Military regulations are not a drill manual, but the rules of conduct.  And while we are discussing Article I, Section 8, we should mention clause 14 which states:

"The Congress shall have Power To ...make Rules for the Government and Regulation of the land and naval Forces...."

Anyone with a shred of familiarity with the US Constitution should be ashamed at pushing the absurdity of the revisionist "individual right" interpretation of the Second Amendment as being so far removed from the text to be an obvious non-sequitur.

See also, www.heritage.org/constitution/#!/articles/1/essays/54/military-regulations

[2] " the declaration and guarantee of the Second Amendment were made"--this means that the Second Amendment MUST be read as a whole.  That basically invalidates the bullshit spouted by the Heller and McDonald decisions and the pseudoscholarship which would remove the Second Amendment from its Constitutional context.

Sunday, June 11, 2017

The Danger of the Reality Challenged Right (or "Hey, Mitch" part 2).

As if having Donald Trump be president isn't enough to clue people in on that.

Anyway, this relates to the Britsh election and Theresa May's flirting with the Democratic Unionist Party, which is a quarantined version of the US religious/reality challenged right wing.  I thought about mentioning this article from the British satirical site the Daily Mash which makes it plain how far out the DUP happens to be: if the comparison of Iris Robinson to Michele Bachmann didn't.

The Guardian is reporting that Conservative MPs are objecting to this alliance, which is good.  I have found that non-US conservatives are reasonable people who one can have an intelligent conversation with even if you disagree (e.g., I staunchly believe in the EU and European Monetary Union, or Euro).

On the other hand, US "conservatives" have been willing to use hot button issues to short circuit the masses intellect for far too long.  Gun control is a prime example of this. 

I find it amusing that this public safety issue has been turned into a "battleground" for "left v. right" when there are loads of examples of true conservatives being staunchly "gun grabbing". Case in point being Richard Nixon is on record as saying:
"I don't know why any individual should have a right to have a revolver in his house. "The kids usually kill themselves with it and so forth." He asked why "can't we go after handguns, period?"

Nixon went on: "I know the rifle association will be against it, the gun makers will be against it." But "people should not have handguns." He laced his comments with obscenities, as was typical.[source]
And let's not forget Jim "Bear" Brady happened to be Ronald Reagan's press secretary (and some of the Goldwater republicans who ran the Brady Campaign).  But that is one of many toxic issues which the Republicans have glommed onto in a successful campaign to get people to vote against their self-interests.

On the other hand, I read this on the Guardian website:
The Observer has learned that the DUP was planning to dodge a row when negotiations began by avoiding the inclusion of any controversial social policies, such as opposition to gay marriage or abortion, in its so-called “shopping list” of demands to the Tories. Party sources said it would be seeking commitments from May that there would be no Irish unity referendum and no hard border imposed on the island of Ireland.

However, some Tories remained concerned that a pact would damage a brand they have spent years trying to detoxify.
The DUP is opposed to abortion and same-sex marriage. It has also appointed climate change sceptics to senior posts within the party. That is in contrast to the UK Conservative Party which at one time made climate change a plank in its platform, but it now seems to be missing from their website.

Another point, Jonathan Powell, Tony Blair’s secret negotiator with the IRA after the 1998 Good Friday agreement, said on Monday: “If Mrs May depends on the DUP– Ian Paisley’s party, not the old Official Unionists who used to work with the Tories – to form a government it will be impossible for it to be even-handed.”


David Cameron's ill fated gamble on Brexit may have just sentenced the Tories to a slow and lingering death.  Let's hope the same befalls the US religious/reality challenged right.  I know that some of the more reasonable right wingers have defected to the Dems already, which is why neoliberal Clinton as the nominee instead of Sanders.

Friday, June 9, 2017

Thoughts on the British Election

Britain has a hung parliament, which means that neither party really has enough members to make a majority.  The Democratic Unionist Party (DUP) is now being seen as a coalition ally for the Tories. That goes to my Thoughts on US Third Parties since the DUP is a relic of the troubles and known to people like me who spent time in Ulster, but pretty much ignored.

Unless we are talking about Iris Robinson, who is sort of the Ulster version of Michele Bachmann, but much more amusing.  Iris went down with something called Irisgate. [1] Michele Bachmann is only an embarrassment for people who come from Minnesota (Iris did her part to embarrass Ulster Unionists,  but did it in a way that was funny [2]).

So, Most people know little about the DUP besides it being a political party founded by Ian Paisley which Iris Robinson once belonged to: if even that much. Of course, that pretty much sums up the DUP for those who don't know anything about it.

On the other hand, this is a party which pretty much would be like the religious/reality challenged right wing of the US Republican Party: Except they had nothing to do with Irish Republicans since they were Unionists (people who know Irish politics will get that comment).

Well, other than trying to kill the Irish Republicans (which clarifies the previous comment a bit).

Where was I? Oh, yeah, an otherwise insignificant party is playing a big role since there isn't a real majority in parliament, which also gets into how a parliamentary system works. 

That is the party with a majority runs the show. The leader of the majority party runs the government. If the party can't run the government it is dissolved, which happens if they can't pass a budget bill. 

Taking that description it is easy to see why the US isn't a parliamentary democracy since the current "leader" not only lost the election, but lost it with 46.4% of the popular vote (his opponent did slightly better with 48.5%, but still not a majority).  The opposition is known to not pass budget bills, leading to the government actually shutting down.

The US would go through governments faster than the Italians or Belgians, making both countries seem paragons of stability, if it were a parliamentary democracy.

Seriously, the bottom line of watching the UK election is that the US has a defacto parliamentary system since the legislature has the power of the purse.  Any small party (or faction) is better off being separate since the large "coalition" parties are meaningless. 

Another thing I have to say is that people are sick of politics as usual.  The Brexit vote, US, French, and UK elections have demonstrated that "non-traditional" politicians can do well.  Bernie did a hell of a lot better than I thought he would have.  And Trump showed that a clever politician can game the system (he spent far less than Clinton and got free publicity by being outrageous).

Also, people need to understand they are not as powerless as they are led to believe. In the US, they can vote their consciences in legislative elections to make more of a statement than they can in the presidential election.  The real power is in the legislature (which makes the electoral college superfluous).

And the establishment parties need to understand that they are near the end of life if they don't undergo drastic changes.

[1] Irisgate probably made Iris Robinson better known than her husband, Peter, which compounded the embarrassment since Peter Robinson was DUP leader at the time.
[2] Alternate version of this here.

Thursday, June 8, 2017

Quis custodiet ipsos custodes?
(Variously, who will watch the watchmen?
or Who will guard the guards?)

I've liked this phrase since I first saw it when I took Latin as a youngster, nearly fifty years ago (definitely over 40 years ago).  Roman History taught me that the tribunes were able to wield tribunitial power and overrule the watchers. It was then that I knew I wanted to be a Tribune.

Which is just a fancy word for lawyer, which I ended up being.

Anyway, I've been using this phrase in relation to out of control police (and general government power) for nearly 50 years.  It was pretty much the only useful thing I retained from taking Latin.

That said, I had to laugh when this site appeared in my radar with this statement:

"This is a very cool phrase indeed and you can use it to be pseudy, cool, or downright intellectual - and at the right moment it can be bomb shell in a discussion, chat-up scenario (I have dropped it often myself with great effect :-), or even to liven up a really boring business meeting"
Indeed!

On the other hand, it is useful to remember that the courts are there to do just that.

Friday, June 2, 2017

The Paris Accord Surprise?

I am amazed that people are so shocked by Trump quitting the Paris Accord on climate change since it was one issue that was ignored in the Presidential debate according to the Guardian.[1]  Well, Mother Jones says it got 82 seconds of attention during the 2016 debates, which was 82 Seconds more than it received in 2012. Although Mashable doesn't agree with Mother Jones.

The bottom line is that it didn't receive a lot of attention during the campaign, which was one of the many reasons I went Green (but that is another post altogether).  Climate change deniers can keep their heads in the sand about this issue, but it is fairly obvious it is happening (again another post, but I did notice that Europe had much warmer temperatures than parts of the US recently among many other things).

I've posted that conservatives in other nations have admitted to the reality of climate change, but reality denial is what makes one a "conservative" in the US.  The real shock comes from the people who didn't vote for Trump, who lost the popular vote by nearly 3 million votes to Clinton (only winning in the Electoral College), being surprised by all this.  On the other hand, some of us weren't too sure about Clinton's position on this issue as her interaction with this Greenpeace volunteer highlighted.

I am not going to get into Public-Private positions, but it would have been nice if this issue and the environment had been a much more significant issue in the past campaign. The fact it wasn't mentioned seems strange given the importance this has to life on the planet.

 Notes:
[1] The Guardian mentioned the lack of attention this issue received during the campaign at least twice.  Not sure about the USMSM since I don't pay too much attention to it.