Broken
In a post on what to watch for in Heller, Kevin says:
There’s something wrong with a system that essentially demands that you break a law before you can challenge its Constitutionality.
Indeed.
16 Responses to “Broken”
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June 14th, 2008 at 6:38 pm
Standing is an important legal doctrine because it’s important to remember that the constitution only vests in the court “The judicial power of the United States.” It keeps the courts limited to those matters over which they have jurisdiction. You can argue on the specifics, but to get rid of any concept of standing is for the courts to usurp power not granted to them under the constitution.
June 14th, 2008 at 7:44 pm
The rot set in with Marbury vs. Madison. The Petit Jury, nay, even the individual citizen, decides what’s constitutional and what ain’t.
Of course that might require more courage from said individual than I seem to have, lately, but then also I’m getting to that stage of oldness and grumpiness at which I just might not care about consequences to me or to evil other people.
June 14th, 2008 at 10:37 pm
“essentially demands”? Is that like “does not actually demand”? Because you can challenge laws that violate fundamental rights without breaking them. The means are usually called “actions for declaratory judgment (not available to morons)”.
June 15th, 2008 at 10:23 am
Of all the plaintiffs in Parker only Heller was found to have standing because he was actually “injured” by the law, according to the Appeals court. In California, no individual can claim injury due to violation of his Second Amendment rights because in Hickman the 9th Circuit declared that no such right existed and therefore no individual had standing.
Hollis Wayne Fincher deliberately violated the law in the 8th Circuit by possessing and unregistered machine gun, but if he’d read prior case law he’d have known that his challenge HAD to lose due to precedent. And the Supreme Court denied cert.
So how, exactly, do you challenge laws that violate fundamental rights without breaking them? I’m sure Mr. Fincher would like to know.
June 15th, 2008 at 11:26 am
I’m sorry to have called Mr. Fincher a moron (I conceded that he was brave at the time) but his case was more like “how do you challenge a tiger to a wrestling match without being eaten?”
June 15th, 2008 at 4:00 pm
It’s kind of sweet that there is still someone who doesn’t think the system is broken.
June 15th, 2008 at 4:36 pm
Come on now, “standing” serves a very useful purpose for judges sometimes. By denying cert, they can effectively not rule on important cases that they can’t somehow dodge another way. This is part of the standard mischief that allows a jurist to look good in front of the senate, just in case they happen to get that judicial appointment to a higher court or something.
I mean, is a judge really qualified to be a supreme without having a good idea from their past behavior on how they feel about important stuff like the 1st Amendment, The 2nd Amendment, The elastic clause, the limits of the federal goverment to control everything imaginable by just slapping an interstate commerce clause sticker on the top of the bill, or trifling little matters such as habeas corpus? I mean, if we don’t know as least that much about a judge, we might as well confirm a randomly selected fully informed jury member from from off the street.
Bong hits 4 Jesus!
June 15th, 2008 at 5:54 pm
No, nk, Fincher was a moron. The 8th Circuit was NOT The circuit in which to challenge the machine gun ban. If any was, it would have been the 5th. Fincher believed that we have a “justice” system rather than a “legal” system.
I imagine that he’s disabused of that notion now.
June 15th, 2008 at 10:34 pm
To a pragmatist, Fincher was a moron. To a free and full man he was right, and courageous enough to try, even though he knew the game was fixed. Pragmatists never do that. But then again, they’re never really free full men.
Fincher is no longer free, but he still is a full man. Some people do make the term moron seem complimentary, now don’t they? At least compared to the “smart move”.
Excuse me, but wasn’t it all the smart moves by all the pragmatists that put us in the position where men like Fincher or Olofson end up in prison for exercising traditional and constitutionally guaranteed rights? Thank you, just the same, but I would rather be a moron than be so smart by balls fell off.
June 15th, 2008 at 10:47 pm
So, straightarrow, when are you going to intentionally and publicly break the machine gun ban and show us how big your balls are?
June 15th, 2008 at 10:51 pm
How do you reach that conclusion? Because we didn’t arm up and revolt over the ’89 machine gun ban?
I repeat: Challenging the ban in the 8th Circuit was stupid. There was already established case law. If you trust judges to do the job they’re supposed to do in our system, they could not find for Fincher.
The only Circuit where anyone would have had a chance was the 5th. and any lawyer worth his salt (or layman willing to do the research) could have figured that out.
So Fincher is ideologically pure, and has a large following. If that was his plan, it worked. But it hasn’t freed him, and it hasn’t gotten anybody any new post-’86 machine guns either.
June 15th, 2008 at 10:55 pm
in any event, he’s a harmless moron and deserves to be pardoned.
Hell, George (W for Washington) pardoned the ringleaders of the whiskey rebellion, and that an army up in arms because individuals out on the fronter (who just fought and won themselves sovereign citizenship, by the way) were being taxed at a higher rate than businesses back in the cities.
You don’t want to leave people with only the “quarter past Claire time” option.
June 16th, 2008 at 1:01 am
Patience, guys, patience. We might get the Heller opinion tomorrow, and very likely within the next two weeks. Depending on how close the Supreme Court makes the Second Amendment right similar to the First Amendment right (yes I meant “makes”), we might get a broader access to actions for declaratory judgment.
June 16th, 2008 at 10:17 am
Mr. Jones, I have no intention of publically doing as you suggest. I am turned much differently from Mr. Fincher. He is a better man than I. I mean that. I am the sort who will do what he wishes as long as he brings no harm to others and who will resist those that would punish me for it. I do not mean resistance on an intellectual level. The prey can often become the predator. Predators tend to forget that they too can be hunted.
Mr. Fincher is a much more peaceable man than I, though I am by most measures very peaceable. I am however not weighted down with false humanity when attacked or trespassed. Mr. Fincher, I believe, really believes in that humanity and conducted himself accordingly. I believe those who call him stupid or moron do so to disguise their own unwillingness to live to their stated principles.
Kevin, YES! And one more thing. The world didn’t begin with your birth or your coming of age or your age of awareness. You can trace the genesis of the problems pragmatism has wrought upon our rights, all of them much farther back than the late 80’s. Of course the self centered may not be willing to admit anything of import happened before themselves.
As for trusting judges, we are supposed to be able to trust them to adjudicate the law with respect to case law, precedent, and the literal translation of it so long as it doesn’t violate the constitution. Therefore they could have and should have found for Fincher. Fincher’s most grevious mistake was in trusting the judge to do his job. Which most of us would have known the judge would not. Even you pointed out, though unintentionally, that we can’t trust them to do their jobs when the political aspect of a case is repugnant to the supreme law of the land.
Is that what you are defending, make up law as we go along depending on which way the political wind blows at any particular moment without regards to the bedrock anchor of the constitution? If so, your advocacy position is dominant right now. That in no way imbues ithat position with legitimacy.
June 16th, 2008 at 10:47 pm
Straightarrow, NO. I’ve had this discussion before, and I’m currently working on an essay that brushes on this topic that I’ll hopefully press “Publish” on tonight, but the fact of the matter is, if you want a legal system that works, it must be predictable. That means upholding bad precedent until a higher court overturns, even if you as a sitting judge believe the precedent was wrongly decided. Read my earlier essay Game Over, Man. Game Over. Perhaps Fincher thought that this time the Supreme Court would hear his case, but I cannot imagine what would have led him to that conclusion.
No, I’m telling you that bad precedent in our system must stand if higher courts will not overturn. And the result of this is “making up law as we go along depending on which way the political wind blows.”
Lower Court judges have the power to throw monkey wrenches into the mechanism, and higher court judges have the power to sit back and watch the fireworks.
And there’s something very wrong with that.
June 18th, 2008 at 11:12 am
“And there’s something very wrong with that.”
Agreed. However, a lower court judge not following bad precedent would have the effect of returning the precedent back for further review.
This top down approach is the one destroying the country, not just our country all countries. It shouldn’t be necessary to pretend a reverence for something that is wrong because it is above your pay grade. Every fallen civilization died from the malnutritious effects of just that dynamic.