Gun Rights and Gun Control

[carpedm9587]

It depends how you define a constitution - functionally or concretely? If you define it functionally, you would say that any group of any kind that operates for a lengthy period of time must have an 'unwritten constitution' in the sense that among the group members is some sort of joint understanding of how it is that they operate. If you define it concretely as "does the group have a written document which says 'this is our constitution that outlines how we operate'?" then obviously some groups have a constitution and others don't.

Obviously the New Zealand government, as a democratic entity operating for 150 years, has rules of operation. Not all of them have been written down, and not all in one place. If you turn up in New Zealand and say to a person, "hi, can I have a copy of your country's constitution?" they are going to look at you blankly because we don't have any such document. If you ask a person "how does your government operate?" they will be able to answer your question though.

I think most people around the world understand a country's "Constitution" in the concrete sense of being a single official document that stands outside of the country's normal legal system and government and in some sense 'founds' the country's government. It has supreme power and grants authority to the government, and stands above and beyond the country's normal laws, and has a special process for amendments that are outside the normal legal process. We don't have one of those.

Back in the day the British governor here was like: "Democracy is a thing, we should have that here." So people set up a democratic government and it's been running ever since, and by and large running pretty well (least corrupt country in the world, has 5-7 political parties etc). One of our ex-leaders seems to have the lifelong dream of wishing he could be a constitutional lawyer and so finds it devastating to himself on a personal level that our country has no constitution, and so he has written up a constitution he thinks we should adopt and has written a book about it, and he writes opinion pieces in the news approximately once a year on the subject. I think he's an idiot and that his idea is implausible for a number of reasons (ranging from giving the courts the power to reject democratically created laws as 'unconstitutional' = just asking for trouble, through to the level of political power wielded by the native people here is an issue of ongoing controversy and you'd never get agreement regarding a constitution as a result)

All of that is understood. But apparently at least someone in NZ - specifically the government itself - uses the term "constitution" to refer to this body of documents. It is clearly more information. It is clearly not a single document. And it clearly functions as you described.

I think we might be making much ado about not much.

[Sparko]

Because you're wrong and because I'm informed about the politics of my own country?

We keep telling you this about the USA but you never listen.

[One Bad Pig]

Because you're wrong and because I'm informed about the politics of my own country?

One would think so, but your own government contradicts you.

[RumTumTugger]

We keep telling you this about the USA but you never listen.

what do you expect Sparko, Starlight doen't want his false narrative challenged he is not interested in facts like all other anti intellectual bigots he has built up a false narrative that he tries to force facts to fit and if they don't he ignores them.

[Teallaura]

It's a US legal mess regarding the constitution that goes something like this:
- The US founders originally wrote the Bill of Rights in the constitution to restrict the power of the federal government to do things. So, for example, the 2nd amendment says that the federal government can't infringe the right of states to operate a militia.
- But the things in the Bill of Rights did not apply to the state governments and were not binding on them.
- The 14th amendment uses pretty vague and wide-ranging language in its abolition of slavery, regarding what states are now required to do, and the primary writer of the amendment (Rep. John Bingham) felt that the 14th amendment meant that the first 8 amendments in the Bill of Rights now applied to states not just to the federal government.
- But the Supreme Court declined to follow Bingham's interpretation of how his amendment interacted with the other amendments, and instead essentially decide that the Supreme Court would have to go through a process of very carefully analyzing exactly how they were to reinterpret the various pieces of the Bill of Rights to apply to the states given they were not originally designed to do this and the application was far from obvious in many instances (e.g. with the 2nd amendment that guarantees the federal government isn't allowed to prohibit the state from operating a militia... how do you apply that at the state government level as a restriction on the state government?). And so they went with a default of: Any given amendment in the Bill of Rights didn't apply to the states, until such time as a case came up that offered an opportunity for the Supreme Court to analyze in detail how it was going to apply, and from then on it would apply with the Supreme Court's interpretation.
- So over the last 70 years at various times the Supreme Court has taken cases that gave it opportunities to explore how an amendment in the bill of rights might be applied to the states, and this process is known as "incorporation".

So, as you can imagine, incorporation is a relatively absurd process at the best of times.

However, it's been particularly stupid in the case of the 2nd amendment because of the political weight the gun manufacturers have been able to wield via their NRA puppet. So in District of Columbia v. Heller (2008) and a 2010 clarification, the Supreme Court came 5-4 to the absurd decision that the 2nd amendment that literally says that states can operate a "well regulated Militia" means, once incorporation is particularly creatively applied, that states cannot regulate firearms even outside of militias.

This is why constitutions are a bad idea.

You do realize that the second wasn't incorporated until very recently, right? Also, that incorporation did not overturn most existing gun control laws at a variety of governmental levels. Granted, it will probably play out pretty weird but it clearly does not interfere with the state's right to regulate.

Also, judicial review is extra-constitutional - your argument makes no sense.

[Teallaura]

Not having one? The UK, NZ and Israel don't have constitutions. And we survive just fine.

I think if you're going to have a constitution it needs to be as short as possible and stick to outlining the basics of how the democratic process works, with zero scope for the courts to start getting creative or overturning legislation. Here the democratically elected parliament is the final authority not the supreme court - they cannot reject a democratically enacted law as 'unconstitutional' or anything like that. The most they're allowed to do is give their professional opinion as to how a law is in contradiction to our own Bill of Rights Act and the parliament can then take that opinion into consideration in passing further laws or altering existing ones if it feels like it.

The key seems to be ensuring that the most powerful branch of government is not the unelected court justices and instead is the democratically elected politicians. In order to do that you have to ensure that if the court is to ever overrule the politicians it must only relate to whether the process of democracy itself was properly followed, rather than relate to opinions on the content of the laws that the politicians passed. And that in turn means that the constitution (if there is one) that the courts are enforcing must say nothing whatsoever about the content of laws and rather must only outline the democratic process for their creation.

I think the issue is made significantly more complex in the US due to you having both state and federal governments. Obviously something somewhere needs to set out what things state governments have authority over and what things the federal government does. A constitution would be one way to do that. But, of course, you then get back to the issue where courts start throwing out democratically created laws on the grounds that they are 'unconstitutional'. I suspect the ideal system would be for the constitution to simply invest full and complete authority in the democratic federal government. The federal government could then itself pass a law that created all the states and delegate authority over various issues to the state governments.

But, in general, all around the world I observe problems whenever the judicial branch is the most powerful branch of government in terms of being able to throw out laws passed by the democratically elected branch of government. Because, eventually, after decades or centuries, the judicial branch will make a really serious mistake on some politically contentious issue, and those tend to be insanely difficult to change once made, because although it might be theoretically possible to 'fix' the judicial mistakes by means of a constitutional amendment, in practice these are almost impossible to accomplish (and there are similar problems actually when they are too easy to accomplish, because then instead of laws getting passed, hundreds of constitutional amendments start getting passed instead and the constitution becomes the laws). So you just get accumulations of insanity that build up in the courts over time.

Um, wrong, the UK is a constitutional form. You don't have to have a single written constitution to be a constitutional government. The UK has a number of documents that form its constitution along with a good bit of tradition - it works but is a terrible model because you need the same underlying culture to make it work.

ETA:

From the CIA Factbook:
New Zealand: Form of Government
parliamentary democracy (New Zealand Parliament) under a constitutional monarchy; a Commonwealth realm

Israel: Form of Government:
parliamentary democracy
Constitution:
history: no formal constitution; some functions of a constitution are filled by the Declaration of Establishment (1948), the Basic Laws, and the Law of Return (as amended)
amendments: proposed by Government of Israel ministers or by the Knesset; passage requires a majority vote of Knesset members and subject to Supreme Court judicial review; 11 of the 13 Basic Laws have been amended at least once, latest in 2014 (2016)


Translation - you can make the case for Israel but not a great one. The other two are constitutional forms.

[Teallaura]

All of that is understood. But apparently at least someone in NZ - specifically the government itself - uses the term "constitution" to refer to this body of documents. It is clearly more information. It is clearly not a single document. And it clearly functions as you described.

I think we might be making much ado about not much.

He's making the incorrect assumption that any document that governs a government must be a constitution but in fact it's how documents/tradition/law govern the government that makes it constitutional or not. The Soviet Union had a constitution but was not a constitutional form. Why? Because the constitution wasn't the supreme law of the land or its equivalent. NZ doesn't have a written document but is a constitutional form. Why? Because they have a set of principals the government is constrained by.

[Leonhard]

If production of guns in the US was stopped. How long before the guns currently in circulation would inoperable?

[Raphael]

If production of guns in the US was stopped. How long before the guns currently in circulation would inoperable?

Considering you can easily shoot a gun that is well over 100 years old (granted you have to use the right powder) and modern guns are made from much better steals etc. a very long time.

[Teallaura]

If production of guns in the US was stopped. How long before the guns currently in circulation would inoperable?

Um, how long does it take metal to wear out? You're probably talking two to three hundred years, given the use and maintenance variables. Longer, maybe? Although much thicker, there are handgonnes that could be fired now - and they date from the Fourteenth Century.

[Starlight]

If production of guns in the US was stopped. How long before the guns currently in circulation would inoperable?

Depends whether dictator Obama seized them all like he did in Australia...

[Leonhard]

Um, how long does it take metal to wear out? You're probably talking two to three hundred years, given the use and maintenance variables. Longer, maybe? Although much thicker, there are handgonnes that could be fired now - and they date from the Fourteenth Century.

I was thinking the same thing, remembering an old gun collection at one of the castles in Denmark. Recently testfired. Worked just fine.

[carpedm9587]

Depends whether dictator Obama seized them all like he did in Australia...

[Starlight]

One of the conservative conspiracy theories about Obama was that he was going to seize everyone's guns, and that then they wouldn't be able to fight back when he refused to step down after his term limits were up.

Australia actually enacted a big gun buyback program (the picture) after a big mass shooting there and they haven't had one since.

Hence dictator Obama seizing their guns is the joke and you made me explain a joke.

[carpedm9587]

One of the conservative conspiracy theories about Obama was that he was going to seize everyone's guns, and that then they wouldn't be able to fight back when he refused to step down after his term limits were up.

Australia actually enacted a big gun buyback program (the picture) after a big mass shooting there and they haven't had one since.

Hence dictator Obama seizing their guns is the joke and you made me explain a joke.

sorry about that....