Tag Archives: U.S. Constitution

How SCOTUS can dodge Alabama’s Trap.

Law, Politics, , ,

A great deal has been written the past few days over just what and why Alabama passed such a draconian anti-abortion law. Mostly they all agree that it is to make a test case for the Supreme Court to over turn Roe vs Wade. An this may well be the case, but I think the Alabama Legislative may just have gone a bit to overboard in their enthusiasm. I see a way for the court to dodge the issue of abortion entirely and still overturn the law.

The Alabama law makes it illegal for a person (aka woman) to travel out side of the state to get an abortion. This one little clause. The first that came to mind was the ‘full faith and credits’ clause of the Constitution. Later, as I started writing this post in occurred to me that it also violates the right of any Citizen of the United States to freely travel between states with-out hindrance (with a few notable exceptions for convicted felons). Here are your citations: Full faith and Credit see Article IV Section 1. Right of movement see link.

SCOTUS could, or even a lower court could, declare the law unconstitutional on either one or both grounds and never even look at the issues of Roe v Wade. It is quite possible SCOTUS will not even hear the case if the appeals court rules the law unconstitutional on theses grounds. They could just let the lower court ruling stand.

To my way of thinking this is the end this law deserves. It is a bad law, badly written, badly intended, and was never intend to work except as a ‘cause celeb’ of the anti-abortion movement.

My Thoughts on the Second Amendment

Law, Philosophy, Politics, , ,

2nd Amendment on a scroll

Let’s be clear here, I am a student of Constitutional  Law, I am not a scholar nor a jurist (practicing or otherwise).  I have studied and followed Constitutional Law since I was first introduced to my first Supreme Court decision in the 12th grade (way back in 1968).  I graduated collage with a degree in Political Science, specializing in Jurisprudence (Law) with the hope of become a Constitutional  lawyer .  It didn’t happen, I became a programmer.  So that said, I love talking about the Constitution, no I’m not an expert but I do understand it just a bit better than most.

To move on, please read the image above.  It is an accurate rendering of what is in the Constitution (feel free to check).  Next I’d like to share with one of the first things my first Professor of Constitutional Law beat into my head.  “There is NOTHING in the Constitution just for show.  Everything is important and has bearing on what is being said.” For me this means that while the Constitution is a beautiful work of rhetoric nothing in it simply rhetorical.  More on this later.

Next, like all American Citizens, I reserve the right to my own interpretation of the Constitution.  BUT, the Supreme Court of the United States has the last word in how the Constitution is applied in law.  I can disagree with SCOTUS, but in court they win.

To start, here is a list of SCOTUS cases dealing with the 2nd Amendment .  All the cases are important but some are more important than others.  I have read both the brief given with the list and the cases themselves and the briefs seem good to me but feel free to send me you views.  As you can see that while the debate over the 2nd Amendment has been going on for sometime, it really wasn’t under debate before 1875.  I think that is significant, for 88 years there was little dispute on just what it meant. Just a few of the questions now being discussed:  What does “Malitia” mean?  What did it mean in 1786 and what does it mean now?  What does  “well regulated” mean, again 1n 1786 and new.  What does the word “Arms” mean?  What does it encompasses, all weapons and weapons systems or just some?

So, you can see the problem we are facing just with the words.  I shan’t go into the problems with all of the different legal philosophies on how to interpret the constitution, other than to say there are more than just “originalizem, Texturalizm, Intentualizm, Pragmatizium, and Natural Law. (Please see this link for details.)  First because they are all complex and secondly I know of know one who ever follows them completely.

So what do we do?  All we can do is follow the decision(s) of SCOTUS.  We can also demand and motivate SCOTUS to make good Law.  That is law that is clear, concise, capable of being enforced, and, hopefully just to all.  To this I say that I hold that  District of Columbia vs Heller is not very good law.  While it clearly stats that the right of an individual to keep and bear arms is a fundamental right and any law has to pass the “strict construction” test it does not supply any kind of example of what this test should be.  An while SCOTUS has c learifed that in the case of the 2nd amendment Arms means Bearable Arms, it has yet to give a clear indication of what Arms fall under the title of Bearable Arms Arms.

Just think of what might have happened if in Las Vegas instead of modified simi-automatic rifles being used a RPG or just a basic 40mm  grenade launcher had been used?  Both are quite capable of being born by an single individual, are they considered Bearable Arms?  I don’t know and the court has yet to say?