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Under your interpretation of Marbury v. Madison, there is no need for a federal judiciary under Article III of the Constitution as the people determine the constitutionality of the acts of Congress. Under your interpretation, if you don't agree with the law, you are free to disregard it as it is void ab initio. Where do you get this nonsense?
The people DO determine the constitutionality of law. If you think otherwise ask those involved in the Civil Rights movement who determines what.
SCOTUS is the final arbiter of law as it relates to government.
Not the people. While SCOTUS can affirm or overturn any law if unconstitutional it can't prevent people from removing laws by whatever action they take.
By your interpretation, those that helped slaves escape were criminals. Those that performed "sit ins" were criminals.
False. The laws were illegal even before SCOTUS agreed.
And if SCOTUS upholds an illegal and unconstitutional law it is still illegal and unconstitutional. The ability of govt to enforce its rules by overwhelming force of arms does not legitimize illegal or unconstitutional laws.
SCOTUS stated that Dredd Scott was not a citizen and that the framers of the Constitution, believed that blacks "had no rights which the white man was bound to respect; and that the negro might justly and lawfully be reduced to slavery for his benefit..."
That decision was unconstitutional and illegal the moment they made it.
What country do you think you live in? North Korea?
The people and not the government run this country.
ETA: The decision was illegal and unconstitutional as soon as they made it. The laws and actions supporting this before going to SCOTUS were always illegal and unconstitutional.
Rights are rights regardless if whether the govt recognizes then.
As put forth in the Bill of Rights.
9th Amendment...
"The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people."
Nullification is a right regardless of whether it is listed or if the feds agree or not.
10th Amendment
"The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people."
The Constitution does NOT grant Congress or SCOTUS the ability to remove the right of nullification which was an essential part of English Common Law and included as the basis of our law.
In fact, the Constitution does not list nullification at all which means that unless an individual state bans nullification it remains a right. Feds can't ban it because they have no power to do so because the Constitution specifically does NOT grant it.
Period...
Hence, states like New Hampshire are not claiming the right solely as their own (though they could) and are correctly admitting that the right then falls to the people as per the Constitution.
This shows why the people who wrote and ratified the 2nd amendment left out any allowances for "reasonable restrictions" or "except by due process of law".
It's inconceivable that the Framers intended for a mass murderer to keep his gun when found at the scene of his crimes. Yet they wrote the 2nd as an ironclad guarantee that no govt agent could take away a citizen's gun - even that mass murderer.
And why? Because they knew all about Jury Nullification.
They knew a cop would certainly take the murderer's gun away instantly... and should. And that the murderer, being crazy as all mass murderers must be, and being lawyered up as they often are, might actually sue the cop for violating his (the murderer's) 2nd amendment rights, by taking the gun away.
The only way a govt agent can get away with violating a constitutional provision, is by a jury of his peers letting him off, despite what the Constitution clearly says, because the jury members devoutly believe that the constitutional provision should not apply to that particular case. And, in the case of a murderer standing in a restaurant with rapidly-cooling bodies all around him, the ban against a govt agent (cop) taking a gun away, obviously should not apply, in that one particular instance. And the cop can be as certain as the day is long, that a jury would not convict him for taking the gun, despite the clear Constitutional ban on his taking the gun.
So the well-educated cop (cops had better be well educated, yes? and so should the jury the cop picks to try him) will know that he CAN take the murderer's gun away... due to jury nullification. And his Chief will agree, and encourage him to do it in such a situation.
Jury Nullification.
We The People can, and will, disregard any Constitutional provision we feel is appropriate... but only for a certain case, and only in a formal, public setting, where our action is done publicly, after much discussion, and only where it is clearly the best thing to do. Only in jury trying a case.
Quote:
Originally Posted by Little-Acorn
The 4th amendment bans searches and seizure, but not all of them: It specifically names unreasonable searches and seizures.
The 5th amendment says that no one can be jailed or executed etc... but makes an exception: unless there is "due process of law".
Even the 13th amendment that prohibits slavery or involuntary servitude, makes an exception: "except as a punishment for crime whereof the party shall have been duly convicted."
But the 2nd amendment, which forbids government from taking away or restricting our right to keep and bear arms, is conspicuously devoid of any such language. As written, it permits NO exceptions or "reasonable restrictions". Period.
Why?
There's an important characteristic of the people's right to keep and bear arms, which might explain why the 2nd is written without qualifications. It says "Since X is so, the people's RKBA cannot be taken away or restricted." Unlike the 4th, 5th, and 13th, the 2nd does NOT say "except by due process of law". And it does NOT say "unless the person is a certain type of extreme criminal", and etc.
To make up an extreme example, suppose some guy goes into a restaurant, pulls out a gun and blows away half a dozen people. The cops show up and surround him, and one cop says, "Give me your gun right now." The guy says, "Sorry, the 2nd amendment says my right to KBA cannot be taken away or restricted, PERIOD, so you have no authority to make me give you my gun." And this with gunsmoke in the air and bodies bleeding on the floor next to him.
Many of the people who wrote the 2nd were lawyers, and knew well the effect that certain words have when included, or omitted, from legislation. And yet they chose to omit ANY exceptions to the ban on government taking people's guns away. Strictly speaking, that would even include the extreme example I just gave: Cops can't take away the gun of a murderer at the scene of his crime.
Many people use this as the reason why the 2nd amendment MUST have been intended to implicitly allow for exceptions: It's impossible that the Framers could have intended for murderers to retain their weapons immediately after committing their murders. Yet a truly strict reading of the 2nd, forbids any govt official (including police) from taking the mass-murderer's gun.
So what could the Framers' intention have been, in omitting any exceptions?
Remember that it is GOVERNMENT that is being forbidden from taking away people's weapons. And the foremost reason it's forbidden, is so that the people can use them against government itself, if/when the government becomes tyrannical. And the Framers knew that if government were given even the tiniest exception, there would be a tendency to turn that tiny loophole into more and more twisted, warped excuses to take guns away anyway, far beyond the "reasonable" exception of being able to take away a mass-murderer's gun at the scene of his crime.
The only way the Framers could find of avoiding the far-greater evil of a tyrannical government disarming its people, was to make NO EXCEPTIONS WHATSOEVER to an explicit ban on government disarming even one of us.
So where does that leave us on the question of the cops taking the mass murderer's gun at the restaurant?
It's inconceivable that the Framers would want the murderer to retain his gun even as they haul him off to jail.
But it's VERY conceivable that the Framers would want government to have NOT THE SLIGHTEST EXCUSE, NO MATTER HOW "REASONABLE", to take away the weapons of their populace in general. Because the slightest excuse, the tiniest exception, could be stretched into a huge loophole. And the Framers regarded a government that could somehow finagle its way into disarming its own people, as a far greater threat than the occasional murderous nutcase in a restaurant.
And history has proven the Framers right, time and again.
Should we amend the Constitution, changing the 2nd amendment to officially empower government to take away the right of, say, murderers, to own and carry guns?
Some would think it's obvious that we should, to make the law "really" right. But consider the potential cost.
My own guess is, the Framers intended for an exception to be made in such a case... but not by any government official. The restaurant mass-murderer tells the cops they have no power to take his gun. The cop responds by cracking the guy's skull with his billy club, hard, and taking away his gun anyway. Did the cop violate the strict words of the 2nd amendment by doing so? Yes. But is there a jury in the world that will convict the cop for it? Probably not.
The Constitution puts the ultimate fate of anyone accused of breaking laws, into the hands of a JURY. A groupd of the accused guy's own peers, people pretty much like him. NOT government officials. And that was so the only people who can find, or even invent, exceptions to the law, are ordinary civilians: the ones on the jury. Today this is called "Jury Nullification". And I suggest that this is exactly what the Framers had in mind when the wrote the 2nd amendment with NO exceptions and NO "reasonable restrictions" on guns and other such weapons.
The 2nd amendment is a restriction on GOVERNMENT. But not on a jury.
So when the murderer from the restaurant brings charges against the cop for taking away his gun, the cop gets a chance to explain to a JURY why he did it. His explanation will probably take less than ten seconds. And the jury (whose members wouldn't be there if they hadn't been accepted by the cop) will certainly decide that the cop should not be found guilty of violating the clear language of the 2nd, in that case. Because the JURY (and nobody else) has the power to make "reasonable exceptions".
But at the same time, when government makes the slightest move toward disarming even a little of its populace by legislation, they can be met with the absolute, no-exceptions ban codified by the 2nd amendment. No loopholes, no "reasonable exceptions", no nothing. ANY legislation that infringes on the absolute right to KBA, is unconstitutional. Period.
I suspect that's how the Framers expected this particular law to work.
Can I prove it? No. When I meet one of the Framers, I'll ask him. Until that time, I can only guess, based on the records they have left behind. If anyone can come up with a better guess, I'd be happy to hear it.
We The People can, and will, disregard any Constitutional provision we feel is appropriate... but only for a certain case, and only in a formal, public setting, where our action is done publicly, after much discussion, and only where it is clearly the best thing to do. Only in jury trying a case.
Which is the entire point.
The ultimate test of law was meant to be the people.
If a law is bad, even just in certain circumstances, then juries could address this.
Us having representatives in government is not an abdication of our power.
The power of Congress, SCOTUS and even all of our laws us derived from the people.
"The right of any person to keep or bear arms in defense of his own home, person, and property, or in aid of the civil power when thereto legally summoned, shall not be held in question, but nothing herein contained shall be held to permit the carrying of concealed weapons."
Montana Constitution, section 12
NOTES:
1. Montana is an "Open Carry" state. there are, of course, some restriction on where a weapon can be carried.
2. Montana is pretty much a "Will Issue" state for Concealed Carry Permits. A weapons safety class may be required. Military service may be considered adequate training.
"The right of any person to keep or bear arms in defense of his own home, person, and property, or in aid of the civil power when thereto legally summoned, shall not be held in question, but nothing herein contained shall be held to permit the carrying of concealed weapons."
Montana Constitution, section 12
There are still lots of laws that violate the 2nd amendment.
There are still lots of laws that violate the 2nd amendment.
That's one of them.
There are many laws that violate many constitutional rights.
Hell, in VA, the state has a preemption law barring any lower govt from enacting gun laws but many localities still have gun laws on the books forcing people to slog through the courts to force the govts to comply with the law...
That's why people are the final arbiter because you can't trust the government.
ETA: The decision was illegal and unconstitutional as soon as they made it. The laws and actions supporting this before going to SCOTUS were always illegal and unconstitutional.
Rights are rights regardless if whether the govt recognizes then.
As put forth in the Bill of Rights.
9th Amendment...
"The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people."
Nullification is a right regardless of whether it is listed or if the feds agree or not.
10th Amendment
"The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people."
The Constitution does NOT grant Congress or SCOTUS the ability to remove the right of nullification which was an essential part of English Common Law and included as the basis of our law.
In fact, the Constitution does not list nullification at all which means that unless an individual state bans nullification it remains a right. Feds can't ban it because they have no power to do so because the Constitution specifically does NOT grant it.
Period...
Hence, states like New Hampshire are not claiming the right solely as their own (though they could) and are correctly admitting that the right then falls to the people as per the Constitution.
No. To say that there are rights retained by the people under the Ninth Amendment only begs the question of the existence of such rights by law.
Take, for example, the right of marriage; which is considered a "fundamental" right. It should be noted that there is no express provision in the Constitution granting a person the right of marriage; not that the framers thought marriage unimportant, but rather it is a right retained by the people under the Ninth Amendment, and power reserved to the several states or to the people under the Tenth Amendment. Marriage is strictly a matter of state (not federal) law. Each state has the sovereign power to enact laws governing marriage; and provided that such laws do not infringe upon a citizen’s rights under the Fourteenth Amendment, they are valid and enforceable. See, e.g., Loving v. Virginia, 388 U.S. 1 (1967). It is the recent instances of states recognizing same-sex marriage that has prompted the move to amend the Constitution to provide a definition of marriage as between a man and a woman; which would be an intrusion on states’ rights to govern marriage, and an unwarranted limitation on the liberty of the people provided by law. However, until the Supreme Court rules on the issue, the recent amendment to the Texas Constitution limiting marriage to a man and a woman are the law of that state; as well as the statutes of the other states that provide the right of marriage to persons of the same sex.
No. To say that there are rights retained by the people under the Ninth Amendment only begs the question of the existence of such rights by law.
Take, for example, the right of marriage; which is considered a "fundamental" right. It should be noted that there is no express provision in the Constitution granting a person the right of marriage; not that the framers thought marriage unimportant, but rather it is a right retained by the people under the Ninth Amendment, and power reserved to the several states or to the people under the Tenth Amendment. Marriage is strictly a matter of state (not federal) law. Each state has the sovereign power to enact laws governing marriage; and provided that such laws do not infringe upon a citizen’s rights under the Fourteenth Amendment, they are valid and enforceable. See, e.g., Loving v. Virginia, 388 U.S. 1 (1967). It is the recent instances of states recognizing same-sex marriage that has prompted the move to amend the Constitution to provide a definition of marriage as between a man and a woman; which would be an intrusion on states’ rights to govern marriage, and an unwarranted limitation on the liberty of the people provided by law. However, until the Supreme Court rules on the issue, the recent amendment to the Texas Constitution limiting marriage to a man and a woman are the law of that state; as well as the statutes of the other states that provide the right of marriage to persons of the same sex.
It is the law that governs. Get used to it.
This is patently false...
The government has no power to regulate marriage nor could they.
The power it enforces is the power to recognize that marriage.
The marriage license does not grant marriage. It grants legal recognition of marriage. What? People didn't get married before government came around???
While recognition is a right. The 9th Amendment passes unenumerated rights to the states first and THEN the people.
You are mixing state and federal powers. States have this power. The feds absolutely do not.
However, the people could hold a referendum. Which they are not doing so it is their choice. Or a gay couple can marry where it is legal and Texas is bound by law to recognize that "out of state" marriage.
States have the power to deny unenumerated rights and claim them for themselves. Recognition of marriage and jury nullification are unenumerated rights.
Thus a state can bar jury nullification. Or they can pass and it then defaults to the people.
The federal government can NOT do that. Which is why they have NOT done so.
That's how this country was founded. The states are sovereign. Not the federal govt.
The people have direct control of the states via votes, propositions, referendums and whatever other names direct voting is called.
Welcome to America...
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