[CorsiHockeyLeague]

Originally Posted by New Era

The comment was directed more at those who think that something is unconstitutional just because their interpretation says so.

Well, their interpretation might well be correct, and the Court's might well be wrong. That applies even in the case of a unanimous decision, but it should be made obvious by the fact that dissenting judgments are a thing.

With respect please articulate where I have been wrong in explaining how the system works. I suspect this is going to devolve into an argument of semantics.

I think I have - your statement that any enacted statute is constitutional, provided that it follows the appropriate process to be enacted into law. Then, it can be challenged in Court, and if the Court agrees, the law becomes unconstitutional when the Court rules on it That's my understanding of how you think the framework works. So, where I'd say you're wrong is - and I think I put it in precisely these terms - the law was already unconstitutional; the Court merely recognizes that it is once a constitutional challenge is made. In other words, you need a Court order recognizing this fact in order to give any effect to that unconstitutional status.

I'll give you a further example based specifically in US jurisprudence (though similar principles exist in other common law jurisdictions). Imagine a statute that for the sake of argument, we will say clearly violates the first amendment. However, it can be applied in a number of ways. Imagine that the statute is applied to a defendant, but just because of the peculiar circumstances of his case, it wasn't applied in a manner that offended first amendment principles in any way. In that case, the Court may recognize that the statute is unconstitutional, and they might say so in the judgment - but because of the facts, and establish judicial rules that restrict the things that can be ruled on in a particular case, they're not permitted to rule on that issue and the law will not be struck down. They have to wait until a case comes before them that applies the unconstitutional statute in a way that violates first amendment principles. Until that case comes up, you've got a law that everyone acknowledges is unconstitutional, but still in effect because the right case hasn't come before the USSC yet.

But they weren't wrong before that. As social context changes and society evolves laws that were constitutional can become out dated and unconstitutional. African Americans were considered 3/5ths of a person and not granted constitutional protection. Laws were passed that were considered constitutional at that time that hurt African Americans.

We're actually getting into constitutional legal theory as opposed to practical application here, but really, my earlier explanation was overly simplistic for the benefit of being colloquial. Really, my saying "it was always right, we just didn't realize it until our society evolved to a point where it became apparent" is correct only if you view constitutional meaning as largely adamantine. It's a very "Antonin Scalia" sort of view. The other, more nuanced view is that the constitution is a living document, and the meaning of the words on the page evolves over time to cohere with American societal values. If you accept this theory, then a statute could go from being constitutional to unconstitutional over time. You could say, for example, that laws prosecuting homosexuality were constitutional a hundred years ago, but the exact same law on the exact same terms isn't constitutional today.

However, this is a very different thing than what you're suggesting, which is that the law would be constitutional today if it were enacted, right up until a Court gets to strike it down. I still disagree - it is the content of the law that makes the law unconstitutional, not the act of the Court pronouncing it to be so. The law is inherently constitutional or unconstitutional.

And, incidentally, this is why I referenced the Euthyphro: it makes no sense to suggest that the constitutional character of a law rests solely in a Court's decision. That would necessarily mean that all Court judgments on constitutionality are inherently arbitrary.

This is just how constitutional law works, in Canada, in Australia, in the UK, and as far as I know, in the United States. Your view of how things work down there would mean that the US is vastly different, in a way that I don't think coheres at all with the purpose of a constitution as an organizing document. So I think it's you that really needs to bear the burden of establishing that, indeed, the US system is different from everyone else's in this way, and hopefully give some context as to why that might be.

Originally Posted by New Era

Okay, please explain further. The monopoly angle is a completely different kettle of fish. You were saying that congress could not pass a law with a single manufacturer as a key component based on constitutional law. There is nothing in the constitution that says congress cannot enact such law. Said law would not impact the 2nd amendment, nor the freedom of choice. I agree that anti-trust and competition laws may preclude such a law, but constitutional law would not have a bearing. Please educate me on where this is wrong, and feel free to reference the constitution and case law to support your claims.

Let me first be clear: I'm not saying Congress couldn't pass such law. I'm saying that whether they passed it or not, it would be, ab initio, an unconstitutional law, and would end up being struck down once challenged.

The 2nd amendment is engaged every single time a law is applied in such a way as to restrict access to gun ownership. That doesn't mean every law that engages 2nd amendment protections should be struck down, because of the test you were talking about earlier - the judiciary has established a series of judicial review protocols that they have to go through to determine whether a law that restricts gun ownership is unconstitutional.

In the present case, where we're talking about weapon restriction lists, that protocol requires that two main questions need to be asked: first, does this law promote important government policy goals, and second, that the method used to promote that goal is reasonably closely related to that interest (to prevent overreaching).

When you're trying to enact a weapon restriction list, the public policy goal you're going for is presumably public safety. That's an important goal. But is the method you're using related to it? Well, in this case, where we're talking about a restriction list that says "you can only buy guns made by Glock", the answer is no. This is because it doesn't actually further public safety to restrict the public's access to guns by only allowing them to buy one brand. Glock's guns aren't any safer than their competitors', as far as I know.

Further, the Court might (I think they likely would) find that the purpose of a statute like that isn't public safety at all. Rather, there's a better explanation for why the legislator enacted this law: he has some reason for wanting to enhance Glock's business interests.