Gun Rights and Gun Control

[carpedm9587]

Yeah, I knew I was gonna get it wrong off the top of my head like that.

You should be more like me. I NEVER get anything wrong...

But you did larn me sumptin!

[rogue06]

You should be more like me. I NEVER get anything wrong...

But you did larn me sumptin!

If you were as humble as me you could admit that you aren't perfect. For instance I thought I made a mistake once but I was wrong.

[carpedm9587]

If you were as humble as me you could admit that you aren't perfect. For instance I thought I made a mistake once but I was wrong.

I AM humble

And very proud of it

[rogue06]

I AM humble

And very proud of it

Meh. I has gots more humility in my little finger than you have in your whole body.

[carpedm9587]

Meh. I has gots more humility in my little finger than you have in your whole body.

That must be a GINORMOUS little finger...

[Starlight]

OK - now I need education. What is "incorporation" in reference to this subject?

It's a US legal mess regarding the constitution that goes something like this:
- The US founders originally wrote the Bill of Rights in the constitution to restrict the power of the federal government to do things. So, for example, the 2nd amendment says that the federal government can't infringe the right of states to operate a militia.
- But the things in the Bill of Rights did not apply to the state governments and were not binding on them.
- The 14th amendment uses pretty vague and wide-ranging language in its abolition of slavery, regarding what states are now required to do, and the primary writer of the amendment (Rep. John Bingham) felt that the 14th amendment meant that the first 8 amendments in the Bill of Rights now applied to states not just to the federal government.
- But the Supreme Court declined to follow Bingham's interpretation of how his amendment interacted with the other amendments, and instead essentially decide that the Supreme Court would have to go through a process of very carefully analyzing exactly how they were to reinterpret the various pieces of the Bill of Rights to apply to the states given they were not originally designed to do this and the application was far from obvious in many instances (e.g. with the 2nd amendment that guarantees the federal government isn't allowed to prohibit the state from operating a militia... how do you apply that at the state government level as a restriction on the state government?). And so they went with a default of: Any given amendment in the Bill of Rights didn't apply to the states, until such time as a case came up that offered an opportunity for the Supreme Court to analyze in detail how it was going to apply, and from then on it would apply with the Supreme Court's interpretation.
- So over the last 70 years at various times the Supreme Court has taken cases that gave it opportunities to explore how an amendment in the bill of rights might be applied to the states, and this process is known as "incorporation".

So, as you can imagine, incorporation is a relatively absurd process at the best of times.

However, it's been particularly stupid in the case of the 2nd amendment because of the political weight the gun manufacturers have been able to wield via their NRA puppet. So in District of Columbia v. Heller (2008) and a 2010 clarification, the Supreme Court came 5-4 to the absurd decision that the 2nd amendment that literally says that states can operate a "well regulated Militia" means, once incorporation is particularly creatively applied, that states cannot regulate firearms even outside of militias.

This is why constitutions are a bad idea.

[carpedm9587]

It's a US legal mess regarding the constitution that goes something like this:
- The US founders originally wrote the Bill of Rights in the constitution to restrict the power of the federal government to do things. So, for example, the 2nd amendment says that the federal government can't infringe the right of states to operate a militia.
- But the things in the Bill of Rights did not apply to the state governments and were not binding on them.
- The 14th amendment uses pretty vague and wide-ranging language in its abolition of slavery, regarding what states are now required to do, and the primary writer of the amendment (Rep. John Bingham) felt that the 14th amendment meant that the first 8 amendments in the Bill of Rights now applied to states not just to the federal government.
- But the Supreme Court declined to follow Bingham's interpretation of how his amendment interacted with the other amendments, and instead essentially decide that the Supreme Court would have to go through a process of very carefully analyzing exactly how they were to reinterpret the various pieces of the Bill of Rights to apply to the states given they were not originally designed to do this and the application was far from obvious in many instances (e.g. with the 2nd amendment that guarantees the federal government isn't allowed to prohibit the state from operating a militia... how do you apply that at the state government level as a restriction on the state government?). And so they went with a default of: Any given amendment in the Bill of Rights didn't apply to the states, until such time as a case came up that offered an opportunity for the Supreme Court to analyze in detail how it was going to apply, and from then on it would apply with the Supreme Court's interpretation.
- So over the last 70 years at various times the Supreme Court has taken cases that gave it opportunities to explore how an amendment in the bill of rights might be applied to the states, and this process is known as "incorporation".

So, as you can imagine, incorporation is a relatively absurd process at the best of times.

However, it's been particularly stupid in the case of the 2nd amendment because of the political weight the gun manufacturers have been able to wield via their NRA puppet. So in District of Columbia v. Heller (2008) and a 2010 clarification, the Supreme Court came 5-4 to the absurd decision that the 2nd amendment that literally says that states can operate a "well regulated Militia" means, once incorporation is particularly creatively applied, that states cannot regulate firearms even outside of militias.

This is why constitutions are a bad idea.

So what would you suggest in place of a Constitution?

[Starlight]

So what would you suggest in place of a Constitution?

Not having one? The UK, NZ and Israel don't have constitutions. And we survive just fine.

I think if you're going to have a constitution it needs to be as short as possible and stick to outlining the basics of how the democratic process works, with zero scope for the courts to start getting creative or overturning legislation. Here the democratically elected parliament is the final authority not the supreme court - they cannot reject a democratically enacted law as 'unconstitutional' or anything like that. The most they're allowed to do is give their professional opinion as to how a law is in contradiction to our own Bill of Rights Act and the parliament can then take that opinion into consideration in passing further laws or altering existing ones if it feels like it.

The key seems to be ensuring that the most powerful branch of government is not the unelected court justices and instead is the democratically elected politicians. In order to do that you have to ensure that if the court is to ever overrule the politicians it must only relate to whether the process of democracy itself was properly followed, rather than relate to opinions on the content of the laws that the politicians passed. And that in turn means that the constitution (if there is one) that the courts are enforcing must say nothing whatsoever about the content of laws and rather must only outline the democratic process for their creation.

I think the issue is made significantly more complex in the US due to you having both state and federal governments. Obviously something somewhere needs to set out what things state governments have authority over and what things the federal government does. A constitution would be one way to do that. But, of course, you then get back to the issue where courts start throwing out democratically created laws on the grounds that they are 'unconstitutional'. I suspect the ideal system would be for the constitution to simply invest full and complete authority in the democratic federal government. The federal government could then itself pass a law that created all the states and delegate authority over various issues to the state governments.

But, in general, all around the world I observe problems whenever the judicial branch is the most powerful branch of government in terms of being able to throw out laws passed by the democratically elected branch of government. Because, eventually, after decades or centuries, the judicial branch will make a really serious mistake on some politically contentious issue, and those tend to be insanely difficult to change once made, because although it might be theoretically possible to 'fix' the judicial mistakes by means of a constitutional amendment, in practice these are almost impossible to accomplish (and there are similar problems actually when they are too easy to accomplish, because then instead of laws getting passed, hundreds of constitutional amendments start getting passed instead and the constitution becomes the laws). So you just get accumulations of insanity that build up in the courts over time.

[carpedm9587]

Not having one? The UK, NZ and Israel don't have constitutions. And we survive just fine.

I think if you're going to have a constitution it needs to be as short as possible and stick to outlining the basics of how the democratic process works, with zero scope for the courts to start getting creative or overturning legislation. Here the democratically elected parliament is the final authority not the supreme court - they cannot reject a democratically enacted law as 'unconstitutional' or anything like that. The most they're allowed to do is give their professional opinion as to how a law is in contradiction to our own Bill of Rights Act and the parliament can then take that opinion into consideration in passing further laws or altering existing ones if it feels like it.

The key seems to be ensuring that the most powerful branch of government is not the unelected court justices and instead is the democratically elected politicians. In order to do that you have to ensure that if the court is to ever overrule the politicians it must only relate to whether the process of democracy itself was properly followed, rather than relate to opinions on the content of the laws that the politicians passed. And that in turn means that the constitution (if there is one) that the courts are enforcing must say nothing whatsoever about the content of laws and rather must only outline the democratic process for their creation.

I think the issue is made significantly more complex in the US due to you having both state and federal governments. Obviously something somewhere needs to set out what things state governments have authority over and what things the federal government does. A constitution would be one way to do that. But, of course, you then get back to the issue where courts start throwing out democratically created laws on the grounds that they are 'unconstitutional'. I suspect the ideal system would be for the constitution to simply invest full and complete authority in the democratic federal government. The federal government could then itself pass a law that created all the states and delegate authority over various issues to the state governments.

But, in general, all around the world I observe problems whenever the judicial branch is the most powerful branch of government in terms of being able to throw out laws passed by the democratically elected branch of government. Because, eventually, after decades or centuries, the judicial branch will make a really serious mistake on some politically contentious issue, and those tend to be insanely difficult to change once made, because although it might be theoretically possible to 'fix' the judicial mistakes by means of a constitutional amendment, in practice these are almost impossible to accomplish (and there are similar problems actually when they are too easy to accomplish, because then instead of laws getting passed, hundreds of constitutional amendments start getting passed instead and the constitution becomes the laws). So you just get accumulations of insanity that build up in the courts over time.

Generally - I find the American system is functional - but not perfect. The biggest risk to it, right now, is the failure of the electorate to remain informed, and the deep polarization of the electorate, which translates to polarization in government itself.

[One Bad Pig]

Not having one? The UK, NZ and Israel don't have constitutions. And we survive just fine.

I don't know why you keep pretending that NZ does not have a constitution. You've been called out on this before. Your own government says it has one - it's just not a single written document, like most.

[RumTumTugger]

I don't know why you keep pretending that NZ does not have a constitution. You've been called out on this before. Your own government says it has one - it's just not a single written document, like most.

So what else is new with Starlight who pretends to know better then we do about our form of government, history and politics better then we do doen'st know how his country is run?

[carpedm9587]

I don't know why you keep pretending that NZ does not have a constitution. You've been called out on this before. Your own government says it has one - it's just not a single written document, like most.

Maybe hairsplitting? Technically - they don't have "a" constitution!

[Starlight]

I don't know why you keep pretending that NZ does not have a constitution. You've been called out on this before. Your own government says it has one - it's just not a single written document, like most.

Because you're wrong and because I'm informed about the politics of my own country?

The closest thing we have is a law passed by the democratic parliament that's called the "constitution act". But in a legal sense it's a law, not a constitution.

What I and others mean when we say we have no constitution is that we have no founding document akin to the US Constitution or any other country's constitution that stands outside / above the normal laws of the democratic parliament and governs the political process and is enforceable by the courts over and above other laws.

Of course we have "accepted ways of doing things" and "democratic processes" that combined together effectively perform many of the same functions that a constitution would perform. But we have no concrete thing you can point to that is a "constitution" document in any sense any average person around the world would think of one. See here for a short explanation regarding the UK, Israel and NZ's lack of standard constitutions.

[carpedm9587]

Because you're an idiot who can't read/don't understand the contents of the link you've got there? And because I'm informed about the politics of my own country?

OK - color me confused. This website appears to be an NZ government website - it is titled "New Zealand's Constitution" and down on the page it says, "New Zealand's constitution is not found in one document."

So I agree that it does not have "a" Constitution in the sense of the single document that the U.S. points to, or a laborious ratification process like the one in the U.S. But it appears to have, according the the NZ government, a body of documents that serve as its constitution.

So maybe you're both right...?

[Starlight]

OK - color me confused. This website appears to be an NZ government website - it is titled "New Zealand's Constitution" and down on the page it says, "New Zealand's constitution is not found in one document."

So I agree that it does not have "a" Constitution in the sense of the single document that the U.S. points to, or a laborious ratification process like the one in the U.S. But it appears to have, according the the NZ government, a body of documents that serve as its constitution.

So maybe you're both right...?

It depends how you define a constitution - functionally or concretely? If you define it functionally, you would say that any group of any kind that operates for a lengthy period of time must have an 'unwritten constitution' in the sense that among the group members is some sort of joint understanding of how it is that they operate. If you define it concretely as "does the group have a written document which says 'this is our constitution that outlines how we operate'?" then obviously some groups have a constitution and others don't.

Obviously the New Zealand government, as a democratic entity operating for 150 years, has rules of operation. Not all of them have been written down, and not all in one place. If you turn up in New Zealand and say to a person, "hi, can I have a copy of your country's constitution?" they are going to look at you blankly because we don't have any such document. If you ask a person "how does your government operate?" they will be able to answer your question though.

I think most people around the world understand a country's "Constitution" in the concrete sense of being a single official document that stands outside of the country's normal legal system and government and in some sense 'founds' the country's government. It has supreme power and grants authority to the government, and stands above and beyond the country's normal laws, and has a special process for amendments that are outside the normal legal process. We don't have one of those.

Back in the day the British governor here was like: "Democracy is a thing, we should have that here." So people set up a democratic government and it's been running ever since, and by and large running pretty well (least corrupt country in the world, has 5-7 political parties etc). One of our ex-leaders seems to have the lifelong dream of wishing he could be a constitutional lawyer and so finds it devastating to himself on a personal level that our country has no constitution, and so he has written up a constitution he thinks we should adopt and has written a book about it, and he writes opinion pieces in the news approximately once a year on the subject. I think he's an idiot and that his idea is implausible for a number of reasons (ranging from giving the courts the power to reject democratically created laws as 'unconstitutional' = just asking for trouble, through to the level of political power wielded by the native people here is an issue of ongoing controversy and you'd never get agreement regarding a constitution as a result)