The Partisan Divide on Issues

[Bob Butler 54]

(08-18-2020, 06:56 PM)David Horn Wrote:

(08-18-2020, 05:08 PM)Bob Butler 54 Wrote: The wording of the Second states the right shall not be infringed.  This forbids regulation.  Any attempt to infringe the Second would bounce out of any textual court that pays attention to what is written...

As recently as the court under Chief Justice Burger, the willful blindness to the explanatory clause about well regulated militias, stood as the defining element of the 2nd. At some point, that will be addressed again, or the 2nd will become toast by some other means. As currently defined, it's the enabling element in the Constitutional suicide pact several Justices (Brandies and Jackson to name two) have noted in the past ... the one that's not acceptable under any circumstances.

One common label is the justification phrase and the implementation phase.  For example in some state constitutions they wrote that as legislators have to have free speech, all shall have free speech.  Rights are granted by God.  They apply to everybody, not just government employees.  The interpreting you are suggesting would take away free speech from the people.

The Founding Fathers had an opinion and wrote it down both in the Constitution and elsewhere.  If the courts honor the text or the intent of the authors, they come to one conclusion.  The alternative is that the Constitution is only a suggestion and that the justices are supposed to legislate from the bench.

Now I tend to agree that the Second is obsolete.  A reasonable compromise would be to allow weapons sufficient for target shooting, hunting and self defense, but to allow state regulation of military weapons.  Assault rifles just didn't exist in the Founding Father's time.

But such a compromise was unthinkable a short time ago.  For years the Jim Crow interpretation that made the entire Bill of Rights go away was applied to the Second.  The Democrats got used to it, and thought the Jim Crow court's interpretation was correct.  Meanwhile, the conservatives were correct.  Both sides clung to their positions with a ferocity that made compromise impossible.

Not sure this will hold true in a 4T.  The Democrats could very well take the congress and White House, but Trump has still appointed a lot of young judges who honor strict construction and intent of the authors.  The amendment process still counts on winning states, which gives an unreasonable advantage to the more rural population.  You will have to wait on the progressives appointing judges willing to legislate from the bench.  That would lead to prying weapons from cold dead fingers.

But a real compromise will have to wait on the election.  That is not apt to be the first thing Biden will want to work on first assuming a win.  Save the hard stuff which might trigger a revival of conservative feeling slide for a while.  You don't want to invite the next replacement for Trump.  You want to give the more reasonable conservatives a chance to consolidate their influence.