Reply #78: I'm so smart

[iverglas]

You're so unsuccessfully tricky. Bear with me, I have to dispose of the problems before getting to the pith and substance, since the problems still stand in the way.

You "quote" me (again, I use the word loosely) as saying:

"One little difference might be that the state has no need to control -- interest in controlling -- who gets married."

And then you say:

"Sure they do. There's a long-standing tradition of governmental regulation of who may marry. Look at the miscegenation laws that have been overturned within the past 50 years, and the very current 'gay marriage' issue that's still being knocked around."

And the damned amazing thing is that I had ALREADY SAID, in the sentences IMMEDIATELY SUCCEEDING the one you quoted:

I mean, it has some interest, e.g. in ensuring that siblings and already-married people don't marry, but that's not the point of the licence fee, and that interest is perfectly well protected by legislating and by controlling how people get married, not how much it costs them.

(I, of course, was referring to instances in which the state DOES "have an interest" in who gets married -- not to instances, such as the "miscegenation" one you cite, in which the state DOES NOT have such an interest.)

This tactic must work somewhere. Somewhere that there are really gullible people with really short attention spans. Can't we just give it up? All it does is interefere in the discourse, and irritate at least one of the participants.



On to the pith and substance. (That's a constitutional law term up here, used for determining whether legislation is properly under federal or provincial jurisdiction. Just for fun.)

.

me: "I'm not quite seeing a perfect parallel between getting married, or divorced (which is important partly because it is necessary in order to exercise that fundamental right to marry), and owning firearms."

you: "The parallel isn't perfect, because the Supreme Court has not ruled on if the Second Amendment is 'fundamental to an order of structured liberty'. Please note: This doesn't mean they have ruled that it is NOT, it means they haven't ruled either way."

No, that is not / would not be the REASON WHY ("because") the parallel is not / would not be perfect. There really can be perfect parallels in the universe without the US Supreme Court having ruled them to be.

Please note: I DID NOT SAY that the fact that the US Supreme Court has not ruled that they are perfect parallels means that it has ruled that they are not. I'd have to be an idiot to have said that. Whatever -- I didn't say it, or suggest it, or imply it, so your little note seems to have missed its mark.

I'm sure that the US Supreme Court has also not ruled that a square has four equal sides and four equal angles. (Well, relatively sure.) I also have no problem stating that a square does have four equal sides and four equal angles.

You see? -- and do please note, and if I may paraphrase you -- the fact that the US Supreme Court HAS NOT RULED that something IS a perfect parallel does not mean that it is not.

We're all free to have our own opinions about that (as we would of course be, even if the US Supreme Court had ruled). All *I* ask is that opinions offered up for me to read be accompanied by true facts and relatively sound, valid argument.

"The only real bone of contention between us is if firearms ownership is a fundamental liberty interest, and that's not really here nor there in this part of the thread."

But you see, that is NOT the only question, and so is likely not the only bone of contention.

It simply is NOT sufficient to determine that something is a "fundamental liberty interest". The other questions ALSO have to be asked and answered; to paraphrase:

- does the state have a compelling interest in the matter?
- is it necessary for the fundamental liberty interest to be interfered with in order to advance the state's interest?

That was *my* whole point.

me: "The fact that one licence fee did not stand up to strict scrutiny simply does not mean that another licence fee would not stand up to strict scrutiny."

you: "True. In order for it to stand up, it has to be a fundamental right."

But NO, you see? In order for it (the licence fee ... I think we're getting confused here) to stand up, IF it is a fee for the exercise of a fundamental right:

- the state must have a compelling interest in the matter;
- it must be necessary to charge the fee in order to advance its interest.

Strict scrutiny STARTS from the determination that there is a fundamental right in issue and that its exercise is being restricted, and THEN asks those questions and makes those determinations. It very definitely does not STOP with the determination that there is a fundamental right in issue and that its right is being restricted.

"It all comes down to 'Is it fundamental, or isn't it?'"

You see? It doesn't come down to that. It goes on well beyond that.

"We can argue about it until we're blue in the face, and until the Supreme court rules on it, our arguments will fall on each other's deaf ears."

That is simply not at all how I see it. I see such "arguments" as immensely fruitful. I regard them as the backbone of democracy, which is why I am so offended when I see deception and disingenuousness employed in place of good faith and respect. (That is a *general* statement not directly related to this specific discussion.) My ears are NOT deaf to argument. They are, however, deadened by ad personam, straw people, red herrings, misrepresentation ...

I am interested in argument not only because of the possibility of a resolution being reached, which there must always be considered to be or we may as well all jump off a cliff -- but also just to understand what the "other side" thinks ... which is actually essential to reaching a resolution, of course, but is also just interesting in itself. The ad personam, straw people, red herrings and misrepresentation do not assist me in gaining that understanding. What they do tend to do is persuade me that the other side is no more interested in thinking than in reaching a resolution.

This here might be one "argument" that actually could go somewhere, on a point that is not only relevant in itself, but illustrative of what needs to be considered on various other points -- since, as you say, we at least seem to have some really basic common ground: at least a rudimentary knowledge of what the applicable rules of constitutionality are. I must say I've yet to get even that far, very often.

"Just ONCE, I'd like to read you say 'gee, that's an interesting point, I hadn't heard of such a thing, thanks for bringing that to my attention' ...

I can oblige you partway. It is an interesting point. (The fact that I rambled on about it is generally evidence that I find it interesting, for future reference.) And the specifics that you brought up: indeed I probably hadn't heard of such a thing (i.e. marriage licence/divorce application fees). And it is absolutely relevant to issues in issue here. The "point" is a potential winner, in the "win-win" sense that everyone benefits when relevant matters are discussed from an informed and good faith position.

But I really have "heard of such a thing": I am very, very familiar with constitutional scrutiny. The rules in Canada vary in detail and emphasis, but the thrust is very much the same as in the US -- the whole fundamental rights, compelling state interest, rational/necessary connection between infringement and advancement of interest, thing -- and I have familiarized myself to a decent degree with the differences in the US approach.

me: "Has no one ever challenged licence fees for firearms possession under the 14th amendment??"

you: "Certainly not at the Supreme Court, at least as far as I've heard."

So perhaps we could set up a kangaroo moot court for the purpose. Proper rules to be followed: no ad personam, no red herrings, no straw people, no misrepresentation. In a novel twist, I'll volunteer to represent the fee-imposing state. (I made my first career out of opposing the state on behalf of individuals, you see. Of course, I might actually have to do some work on the present one before delving into such an endeavour.)

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