Roy Moore Wants a Constitutional Convention

Alabama Supreme Court Chief Justice Roy Moore, who is a genuine theocrat, is calling for a constitutional convention in order to put a national ban on same-sex marriage into the constitution. Because gays are evil and God says so. Or something.

Alabama’s chief justice, known on the national stage for fighting to display the Ten Commandments in a judicial building, is jumping into the gay marriage debate with his push for a states-led constitutional amendment defining the institution as a union between one man and one woman.

“The moral foundation of our country is under attack,” Chief Justice Roy Moore said in an interview with The Associated Press.

He mailed letters Wednesday to all 50 governors urging them to get their legislatures to call for a convention to add an amendment to the U.S. Constitution saying the only union recognized by state and federal governments is “the union of one man and one woman.” He also is setting up a website to rally public support.

Moore said the only way to stop judges who are finding new rights for gay unions is with a state-initiated constitutional amendment. “Government has become oppressive, and judges are warping the law, ” Moore said.

Oh yes, governments are becoming oppressive by not allowing bigoted theocrats like Moore make the government oppressive. Remember, this is a judge who filed an opinion in a custody case saying that the mother should be put in prison or killed for being a lesbian.

I concur in the opinion of the majority that D.H., the mother of the minor children in this case, did not establish a change of circumstances sufficient to transfer custody to her from H.H., the father of the minor children. I write specially to state that the homosexual conduct of a parent-conduct involving a sexual relationship between two persons of the same gender-creates a strong presumption of unfitness that alone is sufficient justification for denying that parent custody of his or her own children or prohibiting the adoption of the children of others.

In this case there is undisputed evidence that the mother of the minor children not only dated another woman, but lived with that woman, shared a bed with her, and had an intimate physical and sexual relationship with her…

The author of Genesis writes: “God created man in His own image, in the image of God He created him;  male and female He created them․ For this reason a man shall leave his father and his mother, and be joined to his wife;  and they shall become one flesh.” Genesis 1:27, 2:24 (King James). The law of the Old Testament enforced this distinction between the genders by stating that “[i]f a man lies with a male as he lies with a woman, both of them have committed an abomination.” Leviticus 20:13 (King James).

From the passage in Leviticus 20:13, the early western legal tradition garnered its laws on homosexuality. The Corpus Juris Civilis is the sixth-century encyclopedic collection of Roman laws made under the sponsorship of Emperor Justinian.  “It is Justinian’s collection which served as the basis of canon law (the law of the Christian Church) and civil law (both European and English).” The following is a statement in Law French from Corpus Juris:

“ ‘Sodomie est crime de majeste vers le Roy Celestre,’ and [is] translated in a footnote as ‘Sodomy is high treason against the King of Heaven.’ At common law ‘sodomy’ and the phrase ‘infamous crime against nature’ were often used interchangeably.”…

To disfavor practicing homosexuals in custody matters is not invidious discrimination, nor is it legislating personal morality. On the contrary, disfavoring practicing homosexuals in custody matters promotes the general welfare of the people of our State in accordance with our law, which is the duty of its public servants. Providing for the common good involves maintaining a public morality through both our criminal and civil codes, based upon the principles that right conscience demands, without encroaching on the jurisdiction of other institutions and the declared rights of individuals.

The State may not interfere with the internal governing, structure, and maintenance of the family, but the protection of the family is a responsibility of the State. Custody disputes involve decision-making by the State, within the limits of its sphere of authority, in a way that preserves the fundamental family structure. The State carries the power of the sword, that is, the power to prohibit conduct with physical penalties, such as confinement and even execution. It must use that power to prevent the subversion of children toward this lifestyle, to not encourage a criminal lifestyle.

And if you don’t let him oppress gay people, you’re oppressing him.

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  • marcus

    I, too, am disgusted by the way these homosecks rabble-rousers are trying to ram their agenda through the back door of judicial activism, rather than letting all the rest of us vote on the rights they should have as Gawd intended!

  • http://howlandbolton.com richardelguru

    “lived with that woman, shared a bed with her, and had an intimate physical and sexual relationship with her…”

    Why do I get the impression that he was jerking off while writing this?

    Probably something wrong with me

  • http://en.uncyclopedia.co/wiki/User:Modusoperandi Modusoperandi

    Is it State’s Rights to pass a Constitutional amendment that forces those states that don’t pass it to follow the amendment, or is that tyranny?

  • colnago80

    Such an amendment to the constitution in the absence of a 2/3 vote of both houses of the Congress would require the application of 2/3 of the state legislatures to call a convention to consider amendments and, upon adoption by the convention, require the votes of 3/4 of the state legislatures for approval.

    Aside from everything else, such a convention would allow any proposed amendments to be considered and one can rest assured that all manner of poison pen suggestions would be proposed.

    Article. V.

    The Congress, whenever two thirds of both Houses shall deem it necessary, shall propose Amendments to this Constitution, or, on the Application of the Legislatures of two thirds of the several States, shall call a Convention for proposing Amendments, which, in either Case, shall be valid to all Intents and Purposes, as Part of this Constitution, when ratified by the Legislatures of three fourths of the several States, or by Conventions in three fourths thereof, as the one or the other Mode of Ratification may be proposed by the Congress; Provided that no Amendment which may be made prior to the Year One thousand eight hundred and eight shall in any Manner affect the first and fourth Clauses in the Ninth Section of the first Article; and that no State, without its Consent, shall be deprived of its equal Suffrage in the Senate.

  • marcus

    “The State carries the power of the sword, that is, the power to prohibit conduct with physical penalties, such as confinement and even execution. It must use that power to prevent the subversion of children toward this lifestyle, to not encourage a criminal lifestyle.”

    Vladmir is that you?

  • http://www.facebook.com/msmith1 mattsmith

    Perhaps we can also get rid of the 2nd amendment at the same time.

  • colnago80

    Re mattsmith @ #6

    Or modify it to make it clear that it applies to organized militias, not individual parties.

  • colnago80

    Re #4

    That should read poison pill, not poison pen.

  • Phillip Hallam-Baker

    Getting rid of the 2nd amendment, grand juries and jury trials for civil cases would be a good start.

    The Republican party would probably like to get rid of the electoral college as well since with Texas trending blue, they look set to get locked out of the presidential race before it starts. There is no way for the Republicans to win if the Democrats have all of the five largest states.

  • cottonnero

    Roy Moore saying “Judges are warping the law” certainly qualifies for a Bryan Fischer award, wouldn’t you say?

  • had3

    Moore supports Ken Ham to head the department of education.

  • criticaldragon1177

    Ed Brayton

    A constitutional convention would be a bad idea, even if the changes they wanted to make would be a good idea. Suddenly the entire constitution could be thrown out. Who knows what would be unleashed upon the nation.

    I’m really glad that Roy Moore won’t get what he wants. Not only do I not want this in the constitution, there’s no way of knowing what other changes they would make.

  • criticaldragon1177

    #11 Had3

    “Moore supports Ken Ham to head the department of education.”

    If that’s true, I’m hardly surprised.

  • matty1

    Provided that no Amendment which may be made prior to the Year One thousand eight hundred and eight shall in any Manner affect the first and fourth Clauses in the Ninth Section of the first Article

    Interesting it seems the first clause mentioned protected the slave trade. Lucky they put that time limit in.

  • unbound

    It might be fun to force the judge to read all of Leviticus and ask if he will do an all or none approach… :-)

  • lancifer

    mattsmith,

    Yeah, let’s deride Ol’ Roy for wanting to use a constitutional convention to take away people’s rights and then… yes that’s right…advocate using a constitutional convention to take away people’s rights.

    That’s the problem with rights. The constitution gives rights that you don’t like to people you don’t like.

    Seems you and the judge have quite a bit in common.

  • lancifer

    Of course I should say that the constitution doesn’t “give” rights to anyone. It’s just a framework to protect those rights, including those that aren’t specifically delineated.

    The right to bear arms was seen as so important that it was the second one specifically delineated in the Bill of Rights.

    To suggest that it was intended to protect the right of the government to have weapons is patently absurd.

  • dingojack

    Lancy – said:”That’s the problem with rights. The constitution gives rights that you don’t like to people you don’t like.”

    What, like rights given to gay people, you mean?!?

    Dingo

  • Red-Green in Blue

    Lancifer, I can see no indication of @mattsmith deriding Roy Moore for wanting a constitutional convention, only making the point that if one person can call for one particular amendment to the constitution, then other people can call for other amendments to the constitution. If you disagree with that principle, then you clearly don’t understand that:

    The constitution gives rights that you don’t like to people you don’t like.

    See what I did there?

  • cheesynougats

    “The State may not interfere with the internal governing, structure, and maintenance of the family, but the protection of the family is a responsibility of the State.”

    First time this week I’ve seen someone self-contradict in a single sentence.

  • chilidog99

    Can we call on a constitutional convention to kick Alabama, Mississippi, and Louisiana out of the union?

  • Michael Heath

    mattsmith writes:

    Perhaps we can also get rid of the 2nd amendment at the same time.

    lancifer responds:

    mattsmith,

    Yeah, let’s deride Ol’ Roy for wanting to use a constitutional convention to take away people’s rights and then… yes that’s right…advocate using a constitutional convention to take away people’s rights.

    That’s the problem with rights. The constitution gives rights that you don’t like to people you don’t like.

    lancifer, you are denying the fact that gun control advocates are lobbying the government to protect their security rights. The gun rights/control controversy exists within a competing rights debate. This is not a debatable point, even the majority opinions in the two recent SCOTUS rulings that protected gun rights at the expense of security rights conceded this, those being D.C. v. Heller and McDonald v. Chicago. Moore’s seeking to turn the U.S. into a theocratic fascist state is not analogous to the gun rights/control competing rights debate.

    lancifer writes:

    The right to bear arms was seen as so important that it was the second one specifically delineated in the Bill of Rights.

    To suggest that it was intended to protect the right of the government to have weapons is patently absurd.

    Justice John Paul Stevens’ dissent in Heller, which is a predominately originalist argument, falsifies your claim that such an argument is “patently absurd”. The historical facts he presents on the original meaning and original intent are very compelling. In addition Justice Antonin Scalia’s majority opinion that the 2nd Amendment does convey an individual right to bear arms appears to me to be based wholly on non sequiturs. A debate exists on this point, to argue this debate doesn’t exist is just one more instance, of many, of you practicing denialism consistent with your political ideology.

    lancifer to mattsmith:

    Seems you and the judge have quite a bit in common.

    We can say that of you and the Judge Moore. Both of you rely on factually untrue premises that deny reality in order to promote your political ideology at the expense of other people’s rights.

  • Abdul Alhazred

    It makes strategic sense.

    It sure looks like the Supreme Court is gong to find equal protection covers marriage equality. It’s just a question of when the proper test case hits.

    So how better to head this off than by changing the constitution accordingly?

    I’m guessing Roy Moore is no big fan of the 14th amendment in a general way, and not just as applied to gay people,

  • Michael Heath

    Abdul Alhazred writes:

    It sure looks like the Supreme Court is gong to find equal protection covers marriage equality. It’s just a question of when the proper test case hits.

    Four of the conservative justices consistently, with few exceptions, support opinions consistent with conservative GOP political objections. I.e., it doesn’t matter what the Constitution states, they predominately find a way to rule in a manner consistent with a conservative, partisan objective.

    The afore-mentioned Heller is a perfect example of five conservative justices creating or joining an ahistorical argument to claim the 2nd Amendment numerates a protected right for individuals to own and bear arms.*

    In terms of the equal protection clause, here’s Scalia waving away the original intent of the framers of the equal protection clause, along with the original meaning, which is also clear and unambiguous:

    . . . you know, if indeed the current society has come to different views, that’s fine. You do not need the Constitution to reflect the wishes of the current society. Certainly the Constitution does not require discrimination on the basis of sex. The only issue is whether it prohibits it. It doesn’t. Nobody ever thought that that’s what it meant. Nobody ever voted for that. If the current society wants to outlaw discrimination by sex, hey we have things called legislatures, and they enact things called laws. You don’t need a constitution to keep things up-to-date. All you need is a legislature and a ballot box. You don’t like the death penalty anymore, that’s fine. You want a right to abortion? There’s nothing in the Constitution about that. But that doesn’t mean you cannot prohibit it. Persuade your fellow citizens it’s a good idea and pass a law. That’s what democracy is all about. It’s not about nine superannuated judges who have been there too long, imposing these demands on society.

    Cite: http://goo.gl/u2sVh9

    This is why gay rights advocates are justifiably nervous about the Roberts’ court deciding on their fundamental right to marriage. Precisely because current probabilities weigh heavily on the decision coming down to what J. Kennedy will do. In spite of the fact the court has long found the Constitution demands government protect people’s fundamental right to marry, and because of the 14th Amendment’s due process and equal protection clauses are clear and unambiguous.

    *I think the right to own and bear arms is a constitutionally protected right, regardless of the meaning of the 2nd Amendment. There’s no delegated authority for the government to infringe on this right, unless the protection of that right is challenged by the competing rights of others. In the case of Heller I too would have struck down D.C.’s gun prohibition laws, but in a concurring opinion rather than support J. Scalia’s dishonest logically incoherent opinion.

  • lancifer

    Michael Heath,

    Justice John Paul Stevens’ dissent in Heller, which is a predominately originalist argument, falsifies your claim that such an argument is “patently absurd”. The historical facts he presents on the original meaning and original intent are very compelling.

    Justice Stevens’ opinion is incoherent. As is your facile appeal to the word “compelling”. Perhaps next you can appeal to the meaning of the word “is”.

    Then you say,

    …Scalia’s majority opinion that the 2nd Amendment does convey an individual right to bear arms appears to me to be based wholly on non sequiturs.

    Followed by,

    A debate exists on this point, to argue this debate doesn’t exist is just one more instance, of many, of you practicing denialism consistent with your political ideology.

    So when I claim Steven’s argument is patently absurd I am a denialist that is denying that a debate exists, but you can claim that the position, with which you disagree, is based on “non sequiturs” and somehow you aren’t denying that a debate exists.

    To use one of your favorite words, project much?

  • Michael Heath

    lancifer writes:

    So when I claim Steven’s argument is patently absurd I am a denialist that is denying that a debate exists, but you can claim that the position, with which you disagree, is based on “non sequiturs” and somehow you aren’t denying that a debate exists.

    To use one of your favorite words, project much?

    No projection at all. Just because J. Scalia’s argument fails remedial critical thinking doesn’t mean other cogent arguments that the Constitution protects the right to own and bear arms doesn’t exist. I point out one of those arguments in my last comment post.

    As I previously noted, there is a valid ongoing debate, contra your false denialist claim no such credible debate exists.

  • lancifer

    Your bloated self-importance is rather impressive. You consistently make self-refuting arguments and yet have the audacity to claim victory.

    Re-read you criticism of the four “conservative” justices and then try to see why any self-aware person with an eighth grade education, and the tiniest semblance of humility, would realize that the exact same criticism could be turned on their own perfunctory argument.

    Projection is more than just a mapping of an idempotent set.

  • lancifer

    Red-Green in Blue,

    The subject of this thread is to criticize, and indeed deride, Judge Moore’s call for a constitutional convention to limit the rights of others.

    To which mattsmith chimed in, “Perhaps we can also get rid of the 2nd amendment at the same time.”

    To which I replied,

    “Seems you and the judge have quite a bit in common.”

    Get it now or do I have to resort to pictograms?

  • Michael Heath

    lancifer to presume me:

    . . . You consistently make self-refuting arguments

    You’ve never quoted me doing this, and when you impotently try like you do above, the evidence is convincing that you are wrong. I.e., your post at 25 claiming I made a self-refuting argument which I falsify at 24 by pointing out a valid argument for the protection of gun rights.

    lancifer writes:

    Re-read you criticism of the four “conservative” justices and then try to see why any self-aware person with an eighth grade education, and the tiniest semblance of humility, would realize that the exact same criticism could be turned on their own perfunctory argument.

    I have no idea which, “exact same criticism” you are referencing. Neither do I know which of these four justices’ arguments you’re referencing. So whatever point you’re attempting to make remains in your imagination. I think by eighth grade most students have learned that they have to reference that which they describe if they hope to be understood.

    Re your use of scare quotes around conservatives; are you seriously claiming that Justices Scalia, Thomas, Alito, and Roberts aren’t conservatives? I realize you demonstrate almost zero knowledge of the Constitution and appellate rulings, but if your claiming these four justices are, ‘no true Scotsmen conservatives’, that reaches an amazing level of determined ignorance and denialism. That of course is what we already knew we can confidently predict from you.

  • lancifer

    Dingo,

    If you are implying that I have some issue with recognizing the rights of non-heterosexual, transgender or any other group or individual based on their sexual identity, genital configuration or any other similar parameter, you are quite mistaken.

    Try to pay attention.

  • observer

    Lancifer,

    The notion that the Bill of Rights was arranged in numerical order of importance is new to me. Do you have any evidence to support that assertion?

  • http://polrant@blogspot.com democommie

    @31:

    While Lancifurious is cobblin’ up some bullshit answer for you, perhaps he can also explain why, of all the Articles in the BoR, ONLY the 2nd has a non-operative first clause in its first sentence*.

    * Accordin’ to the NRA and their useful idiots (and slavish customers) in GunloonzMurKKKa.

  • http://polrant@blogspot.com democommie

    I hate to have to say it twice, but this new level of security is a REALLY FUCKING HUGE PAIN IN THE ASS.

    Nothing I have to say is important enough to push the “submit” button even once. Having to do it three times is fucking ridiculous.

  • dingojack

    Lancy – Your weak argument of ‘people you don’t like pass laws you don’t like’* works both ways. Do try to keep up.

    Demo – because the knuckle draggers at the NRA wouldn’t know a nominative absolute if it jumped up and bit them on the nose.

    Dingo

    ——–

    * note Lancy’s immediate leap to ad hom, instead of recognising .criticism of an argument.

    Methinks the chimp doth protest too much.

  • DaveL

    @34,

    Dingo, it’s time you retired that terrible argument. There is no general grammatical rule that makes every nominative absolute into a conditional statement. There just isn’t. So identifying the prefatory clause as a nominative absolute adds nothing to the argument that the prefatory clause should be read as a conditional.

  • Michael Heath

    DaveL writes:

    There is no general grammatical rule that makes every nominative absolute into a conditional statement. There just isn’t. So identifying the prefatory clause as a nominative absolute adds nothing to the argument that the prefatory clause should be read as a conditional.

    I want to second DaveL’s excellent point. This is exactly why I waited years to take a position on the original meaning and intent on the 2nd Amendment until the SCOTUS’s Heller ruling.

    In reporting on the development of the 2nd Amendment in Heller , Justice Stevens’ depends on the historical evidence to conclude an individual right to bear arms is not in the 2nd Amendment. He doesn’t imagine what the 2nd Amendment means based on grammatical rules that aren’t always followed.

    Instead J. Stevens’ presents the 2nd Amendment framers’ writings as to the original meaning, the Congress’ original intent for the amendment, while also presenting other extant gun amendment texts whose respective texts were disqualified – texts which, unlike the 2nd Amendment, unambiguously conveyed an individual right to own and bear arms independent of the state purpose noted in the 2nd Amendment.

    I find that J. Scalia’s argument wilted when compared to J. Stevens’ evidence. Though again I don’t make the same conclusion as Stevens reasons other than what the 2nd Amendment has to say about an individual numerated right. But Stevens’ apparent destruction of Scalia’s argument didn’t win the day for Stevens as we all know, there were and are other factors in play. lancifer is a reliable ideologue who consistently illustrates how political ideology can cause people to avoid and deny inconvenient facts, instead depend on logical fallacies to arrive at a preconceived desired conclusion. Here lancifer’s fallacy was there are no competing rights for the government to protect when considering the protection, or infringement, of gun rights.

  • http://polrant@blogspot.com democommie

    @ DaveL:

    You like gunz, that much I know. We’ve sparred on the subject in the past.

    This:

    http://www.english.illinois.edu/-people-/faculty/debaron/essays/guns.pdf

    says you’re wrong. You’re certainly free to disagree with it, but unless you can construct a better argument, I’ll go with the reasoned argument of someone who has a background in linguistics and provides evidence to back his claims.

    The NRA and ALEC are both in the 2nd Amendment arena for ONE reason; that reason is money. They give not one bit of concern for the thousands of lives snuffed out–and many thousands more dramatically changed—by idiiotz with gunz or the millions affected by those deaths and injuries.

    When people who “stupidently” shoot themselves or others are subject to the same sanctions/penalties as those who injure or kill others through ignorance, negligence or impaired operation/behavior, then I’ll worry about their precious, sacred, GOD GIVEN RIGHT to bear arms. Until then, they’re full of shit.

  • http://polrant@blogspot.com democommie

    C’mon, webmaster! This is fucking nonsense. FIVE times I have to push submit, back up, push it again, look at a blank screen three times and then watch the fucking clock. Get your shit together, dude.

  • eric

    Such an amendment to the constitution in the absence of a 2/3 vote of both houses of the Congress would require the application of 2/3 of the state legislatures to call a convention to consider amendments and, upon adoption by the convention, require the votes of 3/4 of the state legislatures for approval.

    To put concrete numbers on this, if 14 state legislatures did not approve, the amendment would not pass. Over 14 state legislatures have already approved gay marriage (IIRC we are up to 17 now), so even if Moore could successfully call a convention AND everyone showed up AND there were no poison pill changes to the amendment, it simply wouldn’t pass. His suggestion is as much a conservative pipe dream as these multiple-million-person DC protests. His cause simply doesn’t have the popular support he thinks it has.

    As for SCOTUS, this is one area where I think they’ll do the right thing IF they are allowed to ‘lead from behind.’ IOW if you put it in front of them this year, you’re risking a conservative bloc + Kennedy not finding any such right (to marry) in the 14th. But give them a couple more year and 5-10 more states approving gay marriage, and I bet not only Kennedy but Roberts himself will come over. Thomas, Alito, and Scalia are probably lost causes, though.

  • dingojack

    Well yes and no. In modern writing you are certainly correct, but we are taking about 18th century writers. Do you think that the language then is the same as it is now?

    The grammatical construction of the amendment itself seems to me to consist of two clauses*, the first is conditional, the second operative, in the form:

    ‘The sun having set [conditional], the sailors returned to port [operative]’ or

    ‘After a few hours wait the dogs arrived, and the search got underway’.

    Exactly the type of construction found in Latin ablative absolutes (although the second clause doesn’t stand in the ablative, of course) perfectly familiar to those framing the amendments.

    The two times the 2nd amendment are mentioned in the Federalist papers (written by, you know, the guys actually framing the amendments, not ‘Fat Tony’ Ducks pontificating on them) the ‘well ordered militias were described as being necessary in order to counter revolts, revolutions and invasions.

    The question is: are they still necessary?

    Dingo

    ——–

    * well yes, there is also an appositive insertion between the two clauses, but leaving that aside…

  • Michael Heath

    democommie writes:

    C’mon, webmaster! This is fucking nonsense. FIVE times I have to push submit, back up, push it again, look at a blank screen three times and then watch the fucking clock. Get your shit together, dude.

    Here’s the work-around I’ve been using since this extra security check started. After writing my comment post, I then copy the contents of my comment post in my clipboard. I then click the Submit Comment button. If I get the white page you reference, which I’m getting about 1/2 the time, I then open the same blog post on a new page. That new page can in a new tab in the same window, you don’t have to start-up a new window to load the blog post a second time. After the 2nd blog post appears, I then paste my clipboard contents into the comment section of that 2nd blog post page and Submit Comment, where the comment is instantly published.

  • lancifer

    Michael Heath,

    Justice Stevens’ depends on selective historical evidence to conclude an individual right to bear arms is not in the 2nd Amendment.

    There, fixed that for you.

  • Michael Heath

    dingojack writes:

    The two times the 2nd amendment are mentioned in the Federalist papers (written by, you know, the guys actually framing the amendments, not ‘Fat Tony’ Ducks pontificating on them) the ‘well ordered militias were described as being necessary in order to counter revolts, revolutions and invasions.

    You are correct the Federalist papers provides evidence on the original intent of the 2nd Amendment as cited by J. Stevens that is also contra J. Scalia’s ahistorical non-sequitur-dependent argument. However that wasn’t DaveL’s point, which is that more evidence is needed than merely understanding the relevant grammatical rules since those rules are not always followed.

    Your original comment post that DaveL objected to relied only on your understanding of grammar. So now you’re doing exactly what DaveL argued for without conceding his point that’s what’s required here; adding independent evidence beyond the rules of grammar in order to understand the original meaning and the original intent of the Amendment. I think DaveL’s earned your concession.

  • http://en.uncyclopedia.co/wiki/User:Modusoperandi Modusoperandi

    Michael Heath “Here’s the work-around I’ve been using since this extra security check started. After writing my comment post, I then copy the contents of my comment post in my clipboard. I then click the Submit Comment button. If I get the white page you reference, which I’m getting about 1/2 the time, I then open the same blog post on a new page. That new page can in a new tab in the same window, you don’t have to start-up a new window to load the blog post a second time. After the 2nd blog post appears, I then paste my clipboard contents into the comment section of that 2nd blog post page and Submit Comment, where the comment is instantly published.”

    All you need is a runway and an air traffic control tower and you’ll have your own cargo cult.*

     

    * I kid. But, seriously, John Frum isn’t going to return.

  • dingojack

    OK Dave- now it’s your turn where’s your evidence that I was wrong? (Are those crickets I hear?)

    MH – Nope, try again. The rules are not followed in modern writing, they were in the 18th century*(unless you think the 2nd amendment was really written by Obama last week) @@

    Dingo

    ——–

    * particularly by lawmakers who like to pretend they were ‘enlightened’.

  • Michael Heath

    DJ writes:

    MH – Nope, try again. The rules are not followed in modern writing, they were in the 18th century*(unless you think the 2nd amendment was really written by Obama last week) @@

    That’s a giant whoosh or a dishonest dodge. Neither DaveL nor I claimed these rules weren’t in effect. Instead we both claimed, me repeatedly, these rules weren’t always followed and therefore more evidence is required than the mere rules of grammar to determine the original meaning and the original intent of the 2nd Amendment.

  • ragingapathy

    Staying out of the 2nd amendment debate. But wanted to point out, since I saw it in TPM last week, that Tom Coburn (retiring, OK) also wants to have a constitutional convention. Also the Georgia State Senate (unsurprising).

    http://www.slate.com/blogs/weigel/2014/02/06/tea_party_georgia_tom_coburn_call_for_constitutional_convention.html

  • dingojack

    I think Michael you need a fresh cup of coffee, new reading glasses and a through re-reading of my posts.

    Goodnight.

    Dingo

  • observer

    Lancifer,

    Are you going to get around to answering my question @31? In #17 you imply that the order of The Bill of Rights signifies their relative importance. Can you point to any evidence to back up your assertion that Second Amendment was placed where it was because it was perceived to be more important than, say, the third or fourth?

  • DaveL

    @37,

    Your link does not in any way invalidate my claim, which is that the nominative absolute structure alone does not imply a conditional statement. In fact it gives examples of several other logical relationships between nominative absolutes and the clauses they refer to, including not only conditions, but also reasons, timing, and attendant circumstances.

    I would also add that a cause is not the same thing as a conditional (indeed Baron in the above essay distinctly breaks them out separately). For instance, there is ample historical evidence that the 3rd Amendment was motivated by the founders’ experience with the British practice of quartering troops in civilian residences. Having long had no prospect of troops being quartered in private residences, is that part of the constitution now, beyond being obsolete, actually inoperative?

  • Thumper: Token Breeder

    To disfavor practicing homosexuals in custody matters is not invidious discrimination…

    Yes it is.

    … nor is it legislating personal morality.

    Yes it is.

    Seriously, fuck this guy.

  • Ben P

    You like gunz, that much I know. We’ve sparred on the subject in the past.

    This:

    http://www.english.illinois.edu/-people-/faculty/debaron/essays/guns.pdf

    says you’re wrong. You’re certainly free to disagree with it, but unless you can construct a better argument, I’ll go with the reasoned argument of someone who has a background in linguistics and provides evidence to back his claims.

    http://www2.law.ucla.edu/volokh/common.htm

    I trust Eugene Volokh’s opinion as a scholar of legal language far more than I trust Dennis Baron’s opinion as a professor of English and Linguistics.

    At best the language is muddy, and while I’m by no means an absolutist, when the language is muddy it’s usually far better to interpret as granting more rights than fewer.

  • eric

    Michael Heath:

    these rules weren’t always followed and therefore more evidence is required than the mere rules of grammar to determine the original meaning and the original intent of the 2nd Amendment.

    I don’t understand why you guys are so fixated on the originalist argument in the first place. Wouldn’t you reject the very argument you’re using if someone else used it to say prayer could be put back in school? Or to say that the 14th allows for separate but equal school systems (because the 1868 opinion was that it did)? Or to say that the 14th doesn’t provide any support at all for privacy rights or pro-choice? Or to say the 14th doesn’t provide any support for gays’ right to marry? That was certainly not part of it’s intent.

    Look, if “the writers meant to say X” isn’t good enough when it’s an argument against a cause you like, then you shouldn’t be using it to support a cause you like. That’s pure, biased, partisanship. Not consistent reasoning or rationality. It’s far better (IMO) to treat the second the same way we treat the 1st and 14th (and pretty much all the other amendments): look at how it’s being applied in modern times, and require any significant change from that (especially some restriction on rights, vice an expansion) to be based on substantive argument for why the change needs to be made.

  • dingojack

    I need to sleep, I have got things to do tomorrow morning.

    To refute the argument:

    A) You would have to show that style of construction is not an absolute construction despite being identical in form to such a construction (ie that ‘plain reading’ is not justified)

    B) Show that the initial clause of this kind of construction is not always a conditional clause (as you claim)

    C) Show other contemporaneous examples of this kind of construction not having a conditional nature (that is it ‘breaks the rules’)

    OR

    D) Show that the writers of the amendments accidentally framed the it as an absolute construction

    All things being considered, your rebuttal is weak*.

    Dingo

    ——–

    * This is one of the common spoken absolute constructions in English. (Can you guess another?)

    Now I really need to hit the hay. Sorry.

  • http://polrant@blogspot.com democommie

    “Your link does not in any way invalidate my claim, which is that the nominative absolute structure alone does not imply a conditional statement.”

    Well, shucks, it sure doesn’t for you, because you like gunz. There were MILLIONS of people in the U.S. South, prior to 1865, who were convinced of the validity of owning people and DID, until a more sensible arrangement was worked out–at the point of a bayonet.

    When gunzloonz* can understand that their precious 2nd Amendment is NOT an unconditional RIGHT, there might then be some sort of reasonable discussion. Until then, fuck ’em.

    “I trust Eugene Volokh’s opinion as a scholar of legal language far more than I trust Dennis Baron’s opinion as a professor of English and Linguistics”

    Of course you do, Ben P.

    Eugene Volokh is a fucking asshole who happens to be smart. I heard the first line of his dishonest argument on a recent NPR “debate” and shut off the radio. His reasoning powers are pretty similar to Tony Ducks where the 2nd Amendment is concerned.

    You trust a 21st Century lawyer who happens to be a useful idiot to the NRA and gunzloonz nation over a guy who actually STUDIED how the language of the 18th century was spoken and written? Your privilege.

    * People who can’t understand why THEIR RIGHT to have, hold, fire, lose and mishandle their penis substitutes–and this is a substantial, VERY LOUD, minority of firearms owners–is, or should be, regulated in some way to keep over 50K dying from that misuse every year.

  • dingojack

    I’m so glad you brought up Volokh.

    He says in part:

    “Today few believe that the trial of the facts in the vicinity where they happen is essential to life, liberty, and property.”

    Really, Eugene? If you had consensual homosexual anal sex in Chicago in 1989 (when this was written), I’m sure you’d have been perfectly happy to move the trial to Texas* (criminalisation of sodomy only overturned in 2003). Where the trial occurred would have absolutely no bearing, on ‘life, liberty, and property’ right?

    With logic like that…

    Dingo

    ——–

    * or, more extremely, Iran. Doesn’t even have to be in the same country, right Eugene?

  • D. C. Sessions

    The two times the 2nd amendment are mentioned in the Federalist papers (written by, you know, the guys actually framing the amendments, not ‘Fat Tony’ Ducks pontificating on them) the ‘well ordered militias were described as being necessary in order to counter revolts, revolutions and invasions.

    The question is: are they still necessary?

    The 13th Amendment pretty much ended that requirement.

  • lofgren

    The bolded passage is ambiguous, leaving me to contemplate whether Moore is an awful writer and a worse person or an awful person and a worse writer.

    Of course it’s all angels and pins at that point. He’s clearly very bad at both.

  • DaveL

    B) Show that the initial clause of this kind of construction is not always a conditional clause (as you claim)

    Baron’s essay lists several other possible semantic relationships between nominative absolutes and the clauses they refer to, and he gives examples. Do please take it up with him.

    Well, shucks, it sure doesn’t for you, because you like gunz. There were MILLIONS of people in the U.S. South, prior to 1865, who were convinced of the validity of owning people and DID, until a more sensible arrangement was worked out–at the point of a bayonet.

    What on earth does that have to do with anything? How is this example of people who were morally wrong (but legally right, actually) have to do with interpreting a completely separate clause of the constitution?

    When gunzloonz* can understand that their precious 2nd Amendment is NOT an unconditional RIGHT, there might then be some sort of reasonable discussion. Until then, fuck ‘em.

    I don’t think it’s an absolute right; I don’t think any of the rights protected by the Constitution are absolute, because of the impossibility of resolving the inevitable collisions between absolutes. But that doesn’t mean that this particular condition that you favor is in fact enshrined in law, and it certainly doesn’t support that this condition exists because that particular clause is a nominative absolute.

  • colnago80

    I really think this discussion about the use of language in 1790 vs the use of language today is an exercise in futility. The fact is that the Supreme Court has ruled that the 2nd amendment includes an individual right to the ownership of weapons. Like it or not, that’s the way it stands until there is either another SCOTUS ruling reversing it or a Constitutional Amendment clarifying the 2nd Amendment.

    The only question is the extent to which the government can limit the type of weapons that individuals can own. As I understand it, even Scalia the schmuck says that it can. I think that not even Sir Lancelot would argue that the 2nd amendment is to be interpreted to mean that individual ownership of nuclear weapons can’t be prohibited. Thus, the only issue is where the dividing line should be drawn and that’s where the discussion should focus.

  • lancifer

    colnago80,

    Thus, the only issue is where the dividing line should be drawn and that’s where the discussion should focus.

    I agree. This is of course true for all rights.

  • D. C. Sessions

    So it appears that somewhere between strategic nuclear weapons and muzzle-loading muskets the State acquires the ability to regulate weapons.

    Interestingly, there’s never been much controversy over edged steel. It’s apparently not classed as “arms” in the USA.

  • Michael Heath

    Me earlier:

    . . . these rules weren’t always followed and therefore more evidence is required than the mere rules of grammar to determine the original meaning and the original intent of the 2nd Amendment.

    eric responds:

    I don’t understand why you guys are so fixated on the originalist argument in the first place. Wouldn’t you reject the very argument you’re using if someone else used it to say prayer could be put back in school? Or to say that the 14th allows for separate but equal school systems (because the 1868 opinion was that it did)? Or to say that the 14th doesn’t provide any support at all for privacy rights or pro-choice? Or to say the 14th doesn’t provide any support for gays’ right to marry? That was certainly not part of it’s intent.

    I’ve never encountered a cogent originalist argument that would cause any of the scary items you present to happen.

    Additionally, you may not notice but your point here ignores original meaning altogether. Original meaning originalism also typically demands both a severe limitation of government power to infringe upon a right and a strong obligation by the federal government to defend that right, e.g., school prayer and gay marriage. We don’t see such broad protections for the 2nd Amendment when it was originally passed precisely because we see the rare conditional limitation, the opposite of the broadly written religious freedom law that’s also coupled to a numerated prohibition of government power (the establishment clause).

    In addition, you can’t conclude that a modern day original intent argument prohibits the government from protecting a right merely because a case or controversy didn’t exist at the time a particular clause was written and then ratified. That’s not at all how our system works. The court doesn’t address any particular case or controversy until a case is presented to it that also meets certain conditions that allows that case to be considered. Then it takes on the case.

    We know that laws are frequently passed with no regard to their constitutionality, Ed blogs about such laws all the time. There is no effective check on such laws unless the court tries the case on its merits. Frequently the court finds that such laws and their corresponding original intent are unconstitutional, which is exactly why the federal courts sometimes overturn laws.

    A law that passes to protect to a particular right without consideration for a particular future right, e.g., the equal protection clause of the 14th Amendment in relation to gay marriage, can still withstand both original meaning scrutiny and original intent scrutiny. The original meaning of the equal protection clause is both unambigous, clear, broad, and definitive. Ed used to blog at ScienceBlogs about the intent of the framers’ of this clause to provide broad generic protection well beyond citizen rights for black Americans. Where both the original meaning and the original intent to state, “no state shall make any law” was purposefully broad to capture future state governmental infringement on rights.

    Your comments that I quote here strongly suggests your perspective of originalism is a strawman rather than originalism done credibly. Justices Thomas and Scalia simply don’t do it right or do it only when it’s convenient, with a few exceptions. Originalism is a highly respectable practice where I frequently encounter liberals and moderates employing this approach, as I think they should.

    The originalist example provided here has J. Stevens figuring out the original meaning and intent of the 2nd Amendment. Scalia fails because he merely looked for advocates at the time that argued for an individual right and then claimed, “presto” when he found them. That the original meaning is a numerated right to own and bear arms beyond the states’ interests to field a militia because some people advocated for such. But that’s not what the framers wrote about their original meaning and intent, nor the chief advocates in the Congress regarding their intent, nor the general understanding by the leading ratifiers in the states. Scalia’s argument doesn’t fail because he poses as an originalist, his argument fails because it rests on a non sequitur where the totality of relevant facts has the reasonable person concluding the opposite. That the original intent is limited to the original meaning which is limited to exactly what was written, albeit somewhat awkwardly.

  • Michael Heath

    democommie writes:

    When gunzloonz* can understand that their precious 2nd Amendment is NOT an unconditional RIGHT, there might then be some sort of reasonable discussion.

    Neither of the two recent SCOTUS rulings assert an unconditional right to own and bear arms. The problem with the laws that were struck down is that they were both broadly prohibitive, rather than merely restrictive. In both cases the majority opinion provided ample room for gun control advocates to win the day legislatively and have their laws pass constitutional muster under both McDonald and Heller.

    I don’t think either of these rulings are significantly harming our ability to better reduce the number of casualties from gun violence. And it’s hard to blame the public here either since the vast majority support the agenda of the Democratic party on gun control laws, including a large share of Republican voters. The root cause defect is the power of the NRA to influence a sufficient members of Congress. Where members of Congress who vote against gun control laws are not going to cause Republicans who support gun control to vote for the other party, it’s not a litmus test issue for the subset of Republicans who favor more restrictions. But the NRA sure does threaten GOP members of Congress when it comes to the threat of getting primaried.

  • eric

    Interestingly, there’s never been much controversy over edged steel. It’s apparently not classed as “arms” in the USA.

    Correct. Multiple states have laws against carrying swords in public, as the second amendment’s “arms” is typically interpreted to cover firearms, not clubs, edged weapons, bows, or crossbows.

    Though in many cases things in those categories are more likely to be considered sporting equipment rather than weapons. You aren’t going to be arrested on the street for carrying a gym bag full of fencing foils or baseball bats.

  • eric

    Michael Health:

    In addition, you can’t conclude that a modern day original intent argument prohibits the government from protecting a right merely because a case or controversy didn’t exist at the time a particular clause was written and then ratified. That’s not at all how our system works.

    Of course not. I’m not concluding that – YOU are. You are asserting that your original intent argument prohibits the government from protecting an individual right to bear modern arms. I agree with your last statement – that’s not how our system works. Using your own logic, above, you should agree that the government is not prohibited from protecting a rifle ownership right merely because a rifle ownership case didn’t exist at the time the 2nd amendment was written. Correct?

  • http://polrant@blogspot.com democommie

    “I don’t think it’s an absolute right; I don’t think any of the rights protected by the Constitution are absolute, because of the impossibility of resolving the inevitable collisions between absolutes. But that doesn’t mean that this particular condition that you favor is in fact enshrined in law, and it certainly doesn’t support that this condition exists because that particular clause is a nominative absolute.”

    Right. Neither does Mr. Michael Heath. Otoh, both of you insist that the only way to interpret the wording of the 2nd Amendment is to allow the greatest possible freedom (lack of regulatory action) to people who own firearms. You and Michael Heath both like gunz, I LIKE gunz; I don’t like the notion that the only way to keep over 100K people from being wounded/killed by bullets every year is to rely on the machinations of the U.S. Congress or the largesse of the fucking lunatics that foam at the mouth and threaten “2nd Amendment solutions” for people who are trying to arrive at, well, 2nd Amendment solutions.

    There is a gulf of difference, a wide one, between the restrictions on my lst Amendment rights and the RIGHT to bear arms. If I say, “I’m going to fucking kill you!” and I am overheard by an officer of the court, or even a witness, I can lose my freedom or at the least be required to show up for various state functions–trials, hearings, etc.,. Regardless that I just “lost my temper” and let loose a threat I had no intention of carrying out. Conversely, I actually fucking KILL somebody with a gun, I might not even lose my right to use THAT weapon in future. Don’t take my word for it, there are many, many stories of this sort of thing happening, going back to the founding of this country.

    Colnago80:

    I’m aware of the state of the law re: The RIGHT to bear arms”. I’m also aware that a SCotUS decision enshrined the right of slaveholders to pursue their “property” and “repossess” it in states that did not allow such things as slavery, prior to that decision being overturned by a presidential decree. The fact of their making a decision has nothing to do with morality and public safety and everything to do with their fucked up notions of politics and manliness.

    I will make a bald assertion that if the SCotUS were to reverse themselves and declare that there is NO individual right to own gunz that there would be numerous vacancies on the SCotUS in short order.