Yes, I've read that. It's about introducing a fresh amendment at the end of the existing body. It doesn't cover varying any of the existing material.

As I understand it, once an amendment is approved it becomes an equal part of the Constitution, and is no more susceptible to variation than any of the original clauses. At any rate, that appears to have been the intention of the people who drew up the original - they recognised that it would need to be changed over time.

If there exists a clause that says "X" is permitted and it is decided that public needs will now be better served by "X" being prohibited, will a later clause banning "X" have precedence over the original which allowed it? In other words, should the Constitution be read backwards?

short answer, yes. A later amendment can call a previous one moot.

I don't know that you are "missing" anything, in fact that would probably be me, as I am just looking to rectify your statements on this issue. "Arbitrary" is the term you applied to D.C.'s handgun ban - it connotes a lack of logic or justified purpose. When I asked you about it, you responded there is nothing arbitrary about the problem, rather it is the ban you find arbitrary and unconstitutional. Your response reiterates your position but doesn't answer my original question: What do you deem "arbitrary" about a local governmental agency deciding, based upon the unprecidented number of handgun deaths in their city, that handguns should not be possessed in that city? In otherwords, why do you see the ban as arbitrary? To me, it's just the opposite.

You say, "The reason for deciding to violate the constitution is irrelevant." That is simply legally incorrect. Constitutional guarantees are "violated" all the time: Our right to free speech is not without limits; felons in many states forego their right to vote; the federal government has infringed upon our right to travel when it comes to Cuba.

Our body of law clearly recognizes situations where constitutional rights may be "violated." However, any time a law impacts a constitutional right, the legal standard of review is "strict scrutiny." That requires the government to show a compelling state interest which justifies the law. It is the heaviest burden there is and is rarely satisfied. Still, I can think of few things more compelling than stemming the loss of human life, thus D.C.'s ban seems anything but arbitrary.

You earlier said it is not the role of judges to decide whether the constitution is relevant, but only to determine whether laws conform with the constitution, and that when judges attempt to "interpret the swayings of modern society" they violate separation of powers. I replied I was happy to see the majority in this case reiterate that their task is exactly that: in looking at statutory intent their job is an “interpretive task.” My view is that this is necessary to address changing society. You agreed that circumstances change which makes the job of a Justice difficult. Then in your last response you remind me of my reference to the need to address changes in circumstances. So do you see that as the job of a judge, or not? And whichever way you answer - Why?

You said banning assault rifles is fair game, but D.C.'s ban on handguns was out-of-bounds. I asked what you see as the difference. You replied it is a good question and that a ban on all indivudally owned arms is different from a limitation on a specific type of weapon. Again - that is a fine reiteration of your original position, but it doesn't answer my question, which is what is the difference? Why should the government be able to ban one type of weapon but not another? What criteria is used? American preference? What happens when those preferences change? Is it your position the law will never be settled in this respect?

Please forgive me if you have answered these questions and I am simply too dense to get it - but I just hear you restating your position absent explanation or rationale. My questions aren't rhetorical - I don't profess to know the answers. I just don't think the Supreme Court came up with rational ones. You appear to agree with them, so I'm wondering if you can tell me why?

Hmmm. I appreciate the scrutiny and attention given to the words I use -- can you talk to Mrs. O. for me?

When I say arbitrary -- I mean that in light of the clear nature of the Bill of Rights intended to protect individual rights (and as reaffirmed by the court) it is arbitrary to not even attempt to identify legitimate, constitutionally protected, reasons to bear arms -- D.C. simply made a sweeping pronouncement against all firearms in the city -- thus my use of the term arbitrary, meaning "capricious, unreasonable, unsupported."

To say that a rise in handgun violence in D.C. now means the law is no longer "capricious, unreasonable, and unsupported," is an interesting argument but requires a leap in logic since death by guns has gone up since the ban and the standard is not you or me, but the constitution. The constitution says it is against the law, thus the D.C.'s ban is "capricious, unreasonable, and unsupported," by that standard -- the only one to be used as we discussed, and upheld as the standard by the court.

I hear you when you state that in light of increasing gun violence D.C.'s actions aren't arbitrary, but indeed they are because D.C. is utilizing another of the definitions for arbitrary, "decided by governmental authority rather than law or statute." When the D.C. government ignores the law of the land and decides for itself whether or not to apply the U.S. Constitution in its jurisdiction, it is acting arbitrarily by the very literal definition of the word. This is what I meant by their rationale for violation being "irrelevant." You state instances where the state found reason to violate the constitution for a compelling public interest. I will argue that these are usually instances regarding specific groups of people (mentally ill, felons) or particular times. Consider the sweeping dictation as was shown in D.C. -- compelling ALL citizens to behave a certain way at all times. Talk about arbitrary.

Enough on "arbitrary."

Now for handguns versus assault rifles. The D.C. law did not make the distinction -- I introduced it for argument's sake

From the D.C. statute...

...Except as otherwise provided in this unit, no person or organization in the District of Columbia (”District”) shall receive, possess, control, transfer, offer for sale, sell, give, or deliver any destructive device, and no person or organization in the District shall possess or control any firearm...

This is arbitrary with a capital "A." Had D.C. allowed handguns and outlawed assault rifles (or vice versa heaven-forbid) the supreme court would have had a different issue to deal with. Fact is, D.C. made it very easy for Scalia -- they made no attempt to find reasonable accommodation within the confines of the second amendment. The exceptions they listed primarily dealt with group affiliation with law enforcement - denying the "individual" right as we discussed.

Thus the grounds for my original assertion...



Lastly,I do indeed believe evolving societal norms do require new scrutiny given to the constitution, but this is far different than abandoning the tenants entirely (a la Ginsberg). For example, should Ray Guns (think Star Wars) become readily available, the court would be perfectly within its right to determine whether or not this new technology is reasonable to be used by an individual for self-defense or if it should only be the purview of the military or other organized governmental unit. This is far different than saying evolving society says we need to scrap the original intent of the founders -- that can only be done by amendment (and rightfully so, lest we be subject to the whims of an unscrupulous justice or justices).

Thank you so much for taking the time to craft such articulate responses. I can honestly say I learned a lot from reading this. Thanks again.

don't encourage us B&G

Thank you to those with specific and superior knowledge for sharing their views on this very important issue

The point that cannot go unnoticed after reading some very persuasive points for all sides of this particular issue is that on November 5th 2008 the most powerful man in the free world will not be Barack Obama, it will not be John McCain or even Bob Barr, but rather Anthony Kennedy, and therein lies the problem.

2 of our 3 "separate but equal" branches of government have somehow ceded power to one unelected branch that answers to no one, least of all the citizens?

The Court no longer seems to be primarily concerned with upholding the constitution, but rather with offering personal and politically biased interpretations? The most glaring point in recent years being the 2 times (not once as portrayed by the recent HBO movie "Recount") where the Supreme Court was split along party lines on the issue of returning to the State (Florida) an issue defined by that States constitution: that was a very sad day for "justice" in the USA, regardless of which side of that particular issue each of us may have sympathised with

All of this encourages me to think that the US would be better off without a constitution, or at least one that made such specific rules. Britain doesn't have a written constitution, or at any rate a codified one, and that allows the supreme courts to interpret existing law as they believe is most appropriate to the circumstances and times. Has its problems, but overall I think it's much better because it's more flexible. Sadly all our legal heritage is being destroyed in the interests of "European Unity", and Britain will soon have a Roman legal system like the rest of the EU and will be much the worse off for it.

Apologies for a question which shows my ignorance of American current affairs - who/what is Anthony Kennedy?

Justice Kennedy is the current "swing vote" on the Supreme Court. In the last few days he has delighted some by upholding 2nd Amendment rights in a 5-4 vote, and horrified many of those same people by granting rights to enemy combatants(also a 5-4 vote!)...remember, if we capture Osama, read him those Miranda Rights, we'd hate the 9th Circuit to free him on a technicality

pedro -- a good argument for a constitution is the very problem you state. It would be illegal for the U.S. to abdicate far-reaching powers to an E.U.-like entity without a constitutional amendment. In Britain, it's far too easy.

As for so many rules -- I have no problem whatsoever that it is very very difficult for the government to get approval for a new power that takes a right from me. The pros far outweigh the cons. Because of British law, Sharia existing within a completely incompatible system is no problem. That would (or should be) absolutely unheard of in our limited constitutional government.

There are many things I prefer about the British parliamentary democracy -- but this topic ain't one of them.