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TPaine7

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Member since: Sat Apr 12, 2008, 03:28 PM
Number of posts: 4,286

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It was quite common at the time to have purpose clauses or preambles.

In the case of the Second Amendment and many other laws of the time, the purpose clause was given to communicate the purpose of the enactment. That is the same reason for the first clause in the paragraph in the will. It is also the reason for the Preamble to the Constituition.

However, it would be illegitimate for the president to claim that the Preamble's "provide for the common defense" snippet overrode the clear directive that he can serve no more than two terms, and that in order for the nation to have clear and consistent leadership through these trying times, he must continue as Commander in Chief—for the common defense. That would (hopefully) get laughed out of court—the preamble cannot override a clear directive in the body.

The purpose clause of the Second Amendment sounds strange to us today, but we still have something similiar (and I would argue much more superfluous). Here's a made up example of how some laws still read:

Wheareas the great state of Nevada has always been at the forefront of championing human rights, and Whereas the people of Nevada have seen fit to entrust this body with the sacred duty of protecting the bond between mother and child, and whereas it has been shown that breastfeeding is beneficial to children's mental, emotional and social development, be it hereby enacted that

1) All restaraunts in the state of Nevada having greater than 2,500 sf of dining area shall provide no fewer than three (3) private booths suitable for mothers to breasfeed their children...


Why would the legislature take the time to inform us that the state of Nevada is great? I guess because it sounds good. But it is not enforceable in court. It is very clear where the enforceable part begins.

The bottom line: the signers wanted to tell us why they were enacting the Second Amendment, it was customary in those days, and we have analogous clauses even today, though we word them differently.

Edited to add:

As to what the Supreme Court could do, the Court is reluctant to reverse itself, perversely so IMO. For example, the Court in MacDonald did not reverse the lower court on the right grounds—the priviledges or immunities clause. Scalia addmitted that they were wrong as a matter of history and logic, but that they would do the right thing with the wrong rationale rather than revisit settled law and upset the legal apple cart.

However, the sooner the opportunity arises to overturn Heller and MacDonald, the more likely it is that it will not be regarded as "settled law", no matter what platitudes the Justices spout in order to get through confirmation. The bottom line is, the Court can do anything they think they can get away with, including transparent lying and making up their own facts so as to support an abomination.

That's what Chief Justice of the Supreme Court of the United States of America Roger Taney did (with the backing of a 7-2 majority) to support slavery, as I write about here: http://www.democraticunderground.com/discuss/duboard.php?az=view_all&address=118x176226#176809 . That started the Civil War, after which the Fourteenth Amendment was written, in part to allow individual citizens, including blacks, to carry guns. The language that did it, the "priviledges and imunities" clause, was purposefully nulified by the Court, and the Court still, while overturning the wrong, insists on maintaining its pretend infallibility by not restoring the proper interpretation of the original language with its original intent.

Clear as mud?

I don't mind answering these questions, and I don't think you're being argumentative in the least.

"...discarding the first part of the amendment..."

It is not discarding the first part of the Second Amendment to interpret it the way the Supreme Court and the Framers of the Fourteenth Amendment did.

In fact, people in the Founder's time would have found the way many honest people interpret it today strange indeed. Preambles and purpose clauses do not limit the scope of a law unless the operative portion is unclear. Since "the right of the people to keep and bear arms" is clear, the purpose clause does not limit its meaning.

The way laws, consitutions and even contracts are interpreted hasn't changed since the Constitution was writen, it's just that writing in that way is much less common today. However, consider a simple analogy.

A father's last will and testament is read. One of the paragraphs reads as follows:

Since competence in accounting is necessary to the management of an accounting firm and Susan is the only one of my children who is a certified public accountant, I leave my company to her provided that she must take a salary of no more than $150,000 per annum adjusted for inflation and share the profits equally with her siblings.


The purpose clause—"Since competence in accounting is necessary to the management of an accounting firm and Susan is the only one of my children who is a certified public accountant—contains not a shred of direction.

A court would interpret this exactly as if it read: "I leave my company to {Susan} provided that she must take a salary of no more than $150,000 per annum adjusted for inflation and share the profits equally with her siblings." The court would not be ignoring the first part, it would be reading it exactly as it was written. It would be enforcing every instruction that the first clause contained; it is not the court's problem that the first clause contained no instruction whatsoever. If the clause contains no instruction, one cannot be created by the court and injected to avoid "ignoring" the clause.

Now let's say that Susan's brother Jim went to school and got his CPA. Let's say he went to a better school than the one Susan attended and got better grades. Let's say he then wanted to take over the company, or at least to share control with her.

He could argue that the first part of the sentence—the purpose clause—is no longer true. He would be right. He could also argue that since the first part is no longer right—Susan is no longer the only one of his father's children who is a CPA—the operative clause is no longer binding. But that logic would not work in court.

The purpose clause cannot overule or change the scope of a clear directive.

Where do you stand on banning guns?

The BS about Fast & Furious

A Big Local Scandal

Imagine that you have been following a local trial. The sworn testimony has painted a dramatic picture.

One of your neighbors, John Thompson, says that while out of town, he got a call from a sheriff's deputy. Someone claiming to be his daughter said there was a body in the living room. He put the deputy on hold and called his wife "honey, was there anything strange in the living room when you left this morning--the cops are asking about a report of a body?" She denied seeing any such thing. John was unable to raise his daughter, Mindy, but he was able to reach Paul, his youngest son. Paul emphatically denied that there was a body in the house, speculating that maybe one of the neighborhood kids was being funny, so John clicked over to the deputy and told him it was a false alarm, probably a prank.

A few minutes after John hung up, Mindy breathlessly returned his call. "There's a body in the living room, there's a body in the living room, there's a body in the living room!" "Ok, baby, calm down." John pulled over and opened his security app. He turned on a live feed from the camera in his living room, but saw nothing out of the ordinary.

"Where are you?" "I'm upstairs. I called mom, but I can't get her, so I dialed 911." "Ok, Mindy, where in the living room is the body?" "Behind the couch." she replied. He couldn't see the area she's talking about; the couch blocked the view from the camera location. "Text me a picture." She did, and sure enough, there was a body, or something that looked like one."Don't touch anything, Mindy, and go back upstairs” he said. “I'll have your brother come over."

John Jr. got there in about 15 minutes from the nearby university. He checked the pulse, and the body was quite cold.

Reluctantly, John called the Sheriff’s office to report that there actually was a body in his house. His wife came home a few minutes later (she had been out of the office in a cell phone dead zone) and saw it through the window (the sheriff had told them to stay out of the house). The forensics team arrived and the place was crawling with specialists and detectives by the time John drove back home.

A few days after reading the court testimony, you strike up a conversation in the grocery line. The guy says he's just read an informative article by a prizewinning journalist. According to the reporter, there never was a body in the house. After speaking to some of the children and reviewing their iPhone pictures, she concluded that the father, the mother and the detectives were all wrong. The father, she implied, admitted to having a body in the house for legal expedience. He didn't feel like explaining to the sheriff's office that there actually wasn't a body in his house, and thought it would be easier and more convenient to say that there was. The Sheriff's office, as was well known, had it in for poor John and have been trying to get something on him for some time, so that explains their claim that there was a body. The story didn't even attempt to explain why John's wife went along with it.

The guy in line is adamant about the newspaper story being the best authority. He's not sure why the father would admit to having a body in the living room, but he swallows the reporters alleged implication whole—it was just more convenient to falsely admit a body in the home than to argue with the sheriff's deputy. "Why would you falsely admit to having a body in your house?" you ask. "Wouldn't that just get you a forensics team combing your house for evidence and endless hours answering detectives' questions?" "The sheriff's office had it in for them, so they were going to be harassed anyway." You're amazed at his answer, but you press on. "Why did the wife and two of the kids join the conspiracy?" He ignores the issue and instead talks about the reporter. "She's a Rhodes Scholar" he gushes. "Thompson haters don't appreciate education." You sigh. "You realize that you're defending the Thompsons by branding them as dishonest or so incompetent that they don't know whether there was a body in their own house, right?" "Hey," he replies, "we might not know for sure why the father admitted to a body in his house, but I've already explained that it was easier than arguing with the sheriff's deputy. And I don't know why the wife and some of the kids agreed. But we know there was no body in the house. A Rhodes Scholar and award winning investigative journalist told us that. Did I mention she's a Rhodes Scholar?!"

"I'm scientifically knowledgeable and I understand how to reason when there's uncertainty—something you need to learn. You always trust the Rhodes scholar, especially when she's saying what I want to hear." His face is red and the vessels in his neck are bulging as he starts screaming insults. He calls you a "Thompson hater with a third grade education and a deficient upbringing."

Conveniently, it's your turn at the counter, and you pay for your food and walk away.

So what would you believe? We know John Thompson got it wrong once, so would that mean that his second statement was suspect as well? But wouldn’t a man more readily accept his child’s word that there was no body in the house than that there was a body?! Wouldn’t he check very carefully to make sure of his facts before calling the sheriff to reverse himself? Wouldn’t he have every incentive to be 100% certain before crossing that bridge? Would it make sense that he admitted having a body in the house to simplify his life?!! And why would his wife go along with the plan? How would having a forensics team in their house for an indefinite time help her?

Let's say that you personally knew the sheriff's office had it in for John; even so, why would John and his wife join a conspiracy with the Sheriff against themselves? Why would some of their children be the only ones to stick to the actual facts (assuming the reporter was telling the truth)? And why would a reporter, who didn't live in the house or have the access that the family or police did, be the definitive authority on the issue?

Fast and Furious is similar to this story.

The Sheriff’s deputy calling is analogous to Issa’s opening of the investigation. He asked the Attorney General (analogous to the father, John Thompson) if there was a practice of walking guns (a body in the house).

(Please note carefully, the issue is not whether a couple of rogue agents let guns walk against policy. That would hardly be reason for a congressional hearing and grilling of the Attorney General. That would be a little like calling the Chairman of the Joint Chiefs of Staff on the carpet because a few soldiers were caught smuggling drugs back from Afghanistan. No, the issue was whether there was a tactic, an intentional, organizational practice of walking guns.)

Initially, Holder said no, just like the father in our story. Then he heard differently from within his own organization. Like the father, he would have been loath to reverse himself, so I am going to go out on a limb and say that he turned over every leaf and examined every angle before did.

My reasoning?:

1) Holder is intelligent and ambitious. You don’t get where he is by admitting to things like gun-walking without being very sure it’s true.

2) Holder is competent. It is incompetent to make a damning admission and subject your organization to a prolonged, extensive, and public anal examination on a false point.

3) It is not expedient to admit to having walked guns unless it is true, any more than it is legally expedient for a father to admit to having a corpse in his home unless it is true.

4) Holder is not timid or averse to arguing much finer points than whether gun-walking was an intentional tactic of the program. He corrected a senator who characterized his initial report as “false”—which it was according to Holder’s own testimony—by making the point that “false” implied intentionally misleading. I like to debate, but even I would have simply admitted that the information was “false.”

Let’s look at the record, shall we?

”Dad’s” Testimony



Pay special attention to the testimony at 3:20 to 3:50. He’s not talking about rogue agents. Listen to 5:14 to 5:47, where he talked about the "tactics" of Fast and Furious. He is not talking about a few isolated incidents.

“Mom’s” take

Operation Fast and Furious (2009-2010)

In Operation Fast and Furious, ATF agents in Phoenix utilized gunwalking tactics that were similar to previous operations. In October 2009, ATF agents had identified a sizable network of straw purchasers they believed were trafficking military-grade assault weapons to Mexican drug cartels. By December, they had identified more than 20 suspected straw purchasers who “had purchased in excess of 650 firearms.”

Despite this evidence, ,the ATF agents and the lead prosecutor, in the case believed they did not have probable cause to arrest any of the straw purchasers. As the lead prosecutor wrote: “We have reviewed the available evidence thus far and agree that we do not have any chargeable offenses against any of the players.”

In January 2010, ATF agents and the U.S. Attorney’s Office agreed on a strategy to build a bigger case and to forgo taking down individual members of the straw purchaser network. The lead prosecutor presented this broader approach in a memo that was sent to U.S. Attorney Dennis Burke. The memo noted that “there may be pressure from ATF headquarters to immediately contact identifiable straw purchasers just to see if this develops any indictable cases and to stem the flow of guns.” In the absence of probable cause, however, the U.S. Attorney agreed that they should “[h]old out for bigger.” Over the next six months, agents tried to build a bigger case with wiretaps while making no arrests and few interdictions.

After receiving a briefing on Operation Fast and Furious in March 2010, ATF Deputy Director William Hoover became concerned about the number of firearms involved in the case. Although he told Committee staff that he was not aware of gunwalking, he ordered an “exit strategy” to take down the case and ready it for indictment within 90 days. ATF field agents chafed against this directive, however, and continued to facilitate suspect purchases for months in an effort to salvage the broader goal of the investigation. The case was not indicted until January 2011, ten months after Deputy Director Hoover directed that it be shut down.


http://democrats.oversight.house.gov/images/stories/minority_report_13112.pdf


Here’s more from “Mom” or congressional Democrats

ATF-Phoenix agents watched guns walk


Documents obtained by the Committee indicate that while ATF-Phoenix and the U.S. Attorney’s Office pursued their strategy of building a bigger case against higher-ups in the firearms trafficking conspiracy, ATF-Phoenix field agents continued daily surveillance of the straw purchaser network. With advance or real- time notice of many purchases by the cooperating gun dealers, the agents watched as the network purchased hundreds of firearms. One ATF-Phoenix agent assigned to surveillance described a common scenario:


{A} situation would arise where a known individual, a suspected straw purchaser, purchased firearms and immediately transferred them or shortly after, not immediately, shortly after they had transferred them to an unknown male. And at that point I asked the case agent to, if we can intervene and seize those firearms, and I was told no. 142



When asked about the number of firearms trafficked in a given week, one agent answered:


Probably 30 or 50. It wasn’t five. There were five at a time. These guys didn’t go to the FFLs unless it was five or more. And the only exceptions to that are sometimes the Draco, which were the AK-variant pistols, or the FN Five-seveN pistols, because a lot of FFLs just didn’t have ... 10 or 20 of those on hand.143



Agents told the Committee that they became increasingly alarmed as this practice continued, which they viewed as a departure from both protocol and their expectations as law enforcement officials. One agent stated:


We were walking guns. It was our decision. We had the information. We had the duty and the responsibility to act, and we didn’t do so.


So it was us walking those guns. We didn’t watch them walk, we walked.144


http://democrats.oversight.house.gov/images/stories/minority_report_13112.pdf



Yes, much of the blame belongs to the prosecutors, but according to congressional Democrats (“Mom”) there was a body in the house. Agents defied their boss, ATF Deputy Director William Hoover. They chafed against his directive, and “continued to facilitate suspect purchases for months.”

And even if you could pin this 100% on the prosecutors, that wouldn’t change things for Holder. That’s just another group of his children.

Now a body in his house does not prove that Dad is guilty. Someone could have broken in and died of natural or self-inflicted causes. Similarly, the fact that gun-walking took place does not mean that Holder or the President authorized it. Even Issa admits there is no evidence of that.

The Rhodes Scholar Reporter for Fortune

Quite simply, there's a fundamental misconception at the heart of the Fast and Furious scandal. Nobody disputes that suspected straw purchasers under surveillance by the ATF repeatedly bought guns that eventually fell into criminal hands. Issa and others charge that the ATF intentionally allowed guns to walk as an operational tactic. But five law-enforcement agents directly involved in Fast and Furious tell Fortune that the ATF had no such tactic. They insist they never purposefully allowed guns to be illegally trafficked. Just the opposite: They say they seized weapons whenever they could but were hamstrung by prosecutors and weak laws, which stymied them at every turn.

http://features.blogs.fortune.cnn.com/2012/06/27/fast-and-furious-truth/


Someone is lying or incompetent. Either these guys are covering their behinds or Holder cannot select and supervise investigative talent and needs to resign. Or he lied. And who knows how congressional Democrats were bamboozled into telling that whopper about agents defying their own Deputy Director and continuing to facilitate suspect purchases for months after being told to stop?

This is one monumental conspiracy theory. Holder and Democrats in Congress went along with Issa so that Republicans could rake them over the coals (testimony by Holder and election ads against Democrats in the next election).

And they pulled those poor, innocent agents and Obama under the bus with them.

It is theoretically possible that these agents and the Rhodes scholar are painting the correct picture, just like it is possible that there never was a body in the Thompson’s house. But to maintain that Holder and Congress are obviously wrong, that special secret evidence apparently only available to our celebrated intrepid Rhodes Scholar proves it, and that she is the definitive source on this matter is just stupid.

Right wing fire breathers are supposed to be the ones who can’t see past their biases. Here’s a simple rule. If the Democrats and the Republicans agree on a point of fact with embarrassing political implications, it’s probably true. Remember Nixon’s troubles? The break in probably actually happened. (And no, I'm not implying that gun-walking is comparable to Watergate except on the point I made—Democrats and Republicans agree.)

Bottom line? That guy at the grocery store is not thinking rationally. Let’s not let folks like him lead us into imitating the Sarah Palins and Glenn Becks of this world. Holder and congressional Democrats have investigated this issue and made statements. Until the IG’s report comes out—or some other really credible source—we should probably give them the benefit of any doubts.

"A firm voice usually does the trick, and when it doesn't, a little firmer always works."

That may well be the most naive post of all time, on any site!

You may be extremely lucky or skilled, or perhaps you live in an alternate reality. But it is simply not true that a little firmer voice always works, and I hope no one here is foolish enough to actually believe, based on your word, that a little firmer voice will be 100% effective in these situations.

Your post is an insult to all the people who have been severely beaten, raped, tortured, kidnapped and held for ransom or killed. What fools they were to suffer such abuse needlessly, when

A firm voice usually does the trick, and when it doesn't, a little firmer always works.


Wow.
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