5 ms·

"The "purpose" clauses of laws and constitutional provisions are explanatory, not limiting." Cite?

by bjt 9y ago

IAmEveryone 9y ago
Heller v <Whoever was the Mayor of Washington DC at the time>
- tptacek 9y ago
  That's not a good cite: it was a 5/4 decision, and the majority explicitly rejected unlimited firearms rights despite no limit on them residing in the text of 2A. I'm sure Rayiner is right, since he went to school for this, but I doubt Heller gets us there.
  - rhino369 9y ago
    5/4 decisions don't matter. Just as good at 9/0. No rights are unlimited. And the limits suggested by Heller are totally unrelated to the purpose clause.
    - tptacek 9y ago
      A 5/4 decision means that essentially half the court disagrees in some form with the logic used by the other half. It has the force of law, but (a) not as much rhetorical force in discussion (because I can cite almost as many qualified legal scholars that disagree as agree) and (b) not as much precedential force --- the close decisions are the ones that tend to get revisited by later courts. For a recent case, you're talking about a decision that is essentially one change of justice away from being reversed. And, no, the limits suggested by Heller are, in Scalia's opinion, entirely related to the purpose of the amendment. His decision starts with a discussion of what a militia was at the time of the founders and ends with (paraphrased) "the people have a right to those weapons that would normally be borne by a civilian militia". I'm not arguing that Heller "doesn't count"; it's the law of the land. I'm saying that it's a bad example of the principle Rayiner is talking about.
      - rayiner 9y ago
        I was think about the similar analysis in Eldred v. Ashcroft: http://supreme.findlaw.com/legal-commentary/why-a-recent-supreme-court-copyright-rulingmay-have-important-implications-for-second-amendment-gun-rights-as-well.html http://supreme.findlaw.com/legal-commentary/why-a-recent-sup.... (I’m sure you can find counter examples and people who disagree. Especially considering the implications on the Second Amendment, e.g., Heller.). The problem with giving prefatory clauses force of law is that such clauses will almost certainly be exteremely general, leaving a court in the position of trying to decide whether a specific law furthers some abstract goal. That is policymaking, not adjudication. Also, we wouldn’t stand for it if the shoe were on the other foot. If the first amendment said: “robust political debate being necessary to a free state, the freedom of speech shall not be abridged,” would we treat “political debate” as a limiting clause, allowing restrictions for non-political speech?
        tptacek 9y ago
        I think I mostly agree with you? I think the problem with 2A is that it's intrinsically incoherent, not that we're wrongly construing the language of the Constitution. Having said that: if 1A read the way you suggested it could have, then absolutely I do believe we'd routinely be allowing speech to be limited. Really I think I'm just coming from a place of, Heller is usually a bad example for any kind of legal argument premised on universal principles. It was an extremely divisive opinion and a split-the-baby result, at that.

"The "purpose" clauses of laws and constitutional provisions are explanatory, not limiting." Cite?

by bjt 9y ago

"The "purpose" clauses of laws and constitutional provisions are explanatory, not limiting." Cite?

IAmEveryone 9y ago

Heller v <Whoever was the Mayor of Washington DC at the time>

tptacek 9y ago
That's not a good cite: it was a 5/4 decision, and the majority explicitly rejected unlimited firearms rights despite no limit on them residing in the text of 2A. I'm sure Rayiner is right, since he went to school for this, but I doubt Heller gets us there.
- rhino369 9y ago
  5/4 decisions don't matter. Just as good at 9/0. No rights are unlimited. And the limits suggested by Heller are totally unrelated to the purpose clause.
  - tptacek 9y ago
    A 5/4 decision means that essentially half the court disagrees in some form with the logic used by the other half. It has the force of law, but (a) not as much rhetorical force in discussion (because I can cite almost as many qualified legal scholars that disagree as agree) and (b) not as much precedential force --- the close decisions are the ones that tend to get revisited by later courts. For a recent case, you're talking about a decision that is essentially one change of justice away from being reversed. And, no, the limits suggested by Heller are, in Scalia's opinion, entirely related to the purpose of the amendment. His decision starts with a discussion of what a militia was at the time of the founders and ends with (paraphrased) "the people have a right to those weapons that would normally be borne by a civilian militia". I'm not arguing that Heller "doesn't count"; it's the law of the land. I'm saying that it's a bad example of the principle Rayiner is talking about.
    - rayiner 9y ago
      I was think about the similar analysis in Eldred v. Ashcroft: http://supreme.findlaw.com/legal-commentary/why-a-recent-supreme-court-copyright-rulingmay-have-important-implications-for-second-amendment-gun-rights-as-well.html http://supreme.findlaw.com/legal-commentary/why-a-recent-sup.... (I’m sure you can find counter examples and people who disagree. Especially considering the implications on the Second Amendment, e.g., Heller.). The problem with giving prefatory clauses force of law is that such clauses will almost certainly be exteremely general, leaving a court in the position of trying to decide whether a specific law furthers some abstract goal. That is policymaking, not adjudication. Also, we wouldn’t stand for it if the shoe were on the other foot. If the first amendment said: “robust political debate being necessary to a free state, the freedom of speech shall not be abridged,” would we treat “political debate” as a limiting clause, allowing restrictions for non-political speech?
      - tptacek 9y ago
        I think I mostly agree with you? I think the problem with 2A is that it's intrinsically incoherent, not that we're wrongly construing the language of the Constitution. Having said that: if 1A read the way you suggested it could have, then absolutely I do believe we'd routinely be allowing speech to be limited. Really I think I'm just coming from a place of, Heller is usually a bad example for any kind of legal argument premised on universal principles. It was an extremely divisive opinion and a split-the-baby result, at that.