by Jack Hunter, from The American Conservative
When the City of Chicago banned all handguns recently, countless Americans rightly cried foul. When it looked like the Supreme Court might overturn the ban, gun-rights advocates cheered the decision. But while their heart is in the right place, their enthusiasm is not, as what gun-rights advocates are really cheering is the federal government assuming even more power.
The Bill of Rights was never intended to be a list of individual rights, but a list of things the federal government could not do. Patrick Henry and his anti-federalist friends did not want an all-powerful “national†government and insisted the Bill of Rights be added to the Constitution in order to make crystal clear that the federal government’s powers were few, limited, and only those delegated to it by the states.
The rights to free speech, freedom of religion, and to keep and bear arms were rights the federal government could never take away from the states, allowing states to regulate speech, religion — and yes, firearms — as each saw fit. Today, the Founders would declare federal gun legislation like the Brady Bill to be unconstitutional, pointing to the 2nd, 9th, and 10th amendments. The Founders also would have declared Chicago’s gun ban constitutional (albeit stupid), also pointing to the 9th and 10th amendments. The 2nd amendment does not apply to the Chicago gun ban because the federal government is not involved — nor should it be.
Constitutional historian Kevin Gutzman put the Founders intentions into perspective during an interview with radio host Mike Church: “when we have a Second Amendment, essentially what that means is that the federal government is to have nothing to do with your ownership and use of weapons. But that doesn’t mean that nobody is able to regulate your ownership and use of weapons. If neither the federal government nor the states can regulate ownership of weapons, are we saying that retarded people and insane people and felons and children can all own weapons? Clearly some level of government has to be able to regulate the use and possession of firearms.â€
So how can the Supreme Court overturn Chicago’s ridiculous, yet constitutional law using the 2nd amendment? Also, why should conservatives — typically champions for gun rights — be opposed to this court decision? Because this decision would trample the most important right of all — that of the states to limit the power of the federal government.
Reporting on the Chicago controversy, a Washington Times headline this week read, “Gun rights lawyer gives hope to liberal causes: 14th Amendment argument opens to gay rights, abortion.†Using what’s called the “incorporation doctrine,†the Supreme Court has argued that the 14th Amendment, which was meant to protect the basic rights of former slaves after the War for Southern Independence, magically turned the Bill of Rights into a list of individual rights.
If this is true, as the Supreme Court is about to declare once again in the Chicago case, then federal law trumps state law anytime the court sees fit, completely ignoring the Bill of Rights’ intended purpose of limiting federal authority. What some consider a small victory for gun rights is actually a grand defeat for limited government. If Patrick Henry were alive, he would likely be reaching for his musket.
What happens when the court decides that gay marriage is a “right,†or that healthcare is a “right,†two concepts many liberal Democrats already subscribe to? States will be powerless to stop the invention of these and other new “rights†and completely at the mercy of federal judges. Reported the Washington Post: “Justice Stephen Breyer needled the majority about its rather situational view of federalism when it comes to ‘incorporating’ the Second Amendment to make it binding on states rather than just the federal government. ‘Without incorporation, it’s decided by state legislatures,’ he said. ‘With, it’s decided by federal judges.â€
In his book Original Intentions: On the Making and Ratification of the United States Constitution, conservative author Mel Bradford warned against embracing unconstitutional court decisions based on situational whims: “Legitimate change in the Constitution can only be made by amendment-not by the will of the High Court, its well-meaning, teleocratic misuse of its originally narrow and specific role within the law. For if it does not keep the law, who will? And if the law itself is personalized or politicized at its source, who among us is secure?â€
I’m not a constitutional scholar. In fact, I’m not a scholar of any kind.
My observations, whether on talk radio or in my columns, are the thoughts of an average American with an average education attempting to deduce simple truths about our nation and its government.
But one need not be an expert of any sort to recognize that our federal government has long trended toward increased centralization, sometimes in the name of the Constitution itself.
As Bradford noted, if the federal government is to be the sole arbiter of its own power then there really are no limits to that power, and those who still believe in the Founders’ constitution should not cheer its destruction by championing increased centralization over local control, federal dictates over states’ rights and “conservative†victories that are not.
The “Southern Avenger” Jack Hunter is a conservative commentator (WTMA 1250 AM talk radio) and columnist (Charleston City Paper) living in Charleston, South Carolina. See his blog.
Copyright 2010, The American Conservative
Disagree. The rights in the constitution were rights that citizens have and no federal or state government can take away. These are natural rights. NO government can take away. According to your logic there can be a state that can ban all freedom speech? I don't think so.
Actually, this is something that is supposed to be addressed by state constitutions.
Now you are right – that rights are inherent by our nature, but is the federal government of the united states authorized to take action to protect free speech rights in, say, canada? No, that is not in their jurisdiction. Neither is it in their jurisdiction to do so in the states.
What is important, of course, is to follow the constitution to the letter. The founder did not apply the constitution and the bill of rights to the states. Period. There is no serious debate on this at all.
Some, however, argue that the 14th amendment requires the states to follow the bill of rights. I personally do not agree that this is either historically correct or even good for the cause of liberty. But, if you are going to make the argument, that is where you need to start.
I've been doing some scant reading on the 14th amendment and it seems that was designed to protect someone's civil rights because blacks were being denied citizenship status which prevented them from being able to get their rights in either federal or state courts. Declaring someone a citizen of the federal government simply entitles them to all protections of the constitution but a person only has the protections specified in the constitution itself.
Some courts have superimposed protections you get as a federal citizen onto state citizen but those protections only exist if they are stated in the constitution. The first amendment is a good example of this superimposing. A federal citizen is protected from congressional laws that violate their right to practice their religion and that is only as far as that protection goes. It can't be applied to state laws that do the same thing.
To assume it does enables any state protections to be superimposed against federal laws and to this date no one has suggest it can. This makes that interpretation of the 14th amendment a perverese attempt to superimpose federal law onto state law and a destruction of state rights (or powers/authority).
Tim, I definitely agree with you on this!
My reason for pointing out the 14th is not to say that the way it is used is correct, but merely to say that those who argue that the bill of rights applies to state governments base their claims off the 14th.
Why should the states be able to subject their citizens to a watered down version of liberty? Tim- the case that defined the 14th amendment as declaring a citizen of the federal government, thus only giving them rights only specified in the constitution itself were the Slaughterhouse case. This definition was not what the framers of the amendment had intended at all. The purpose of the amendment was to protect Citizens from the States infringing on the rights garunteed to them in the Bill of Rigths. After all, the Civil War wasn’t fought because the States were attacking people on the high seas or blocking access to the Bureau of Engraving and Printing.
That would be true if the constitution said citizens had rights. There is nothing in the constitution that declares a single right to any citizen. There is plenty of language about what powers governments have under the constitution and if the federal government has no power to limit speech of any kind then it does not matter what citizen of what government you are because the congress of the US simply can't pass a law supresing your speech.
There are no rights that get transcribed from the first ten amendments to each person that can thwart any state power. A right a citizen of Canada has can not make that person immune from any law within the United States so a 'right' a federal citizen has can't make them immune from any law any state has and any right a citizen of one state has doesn't make that citizen immune from the laws of another state. The only time state power can be thwarted is when there is a restriction placed on it that is specified in the constitution.
The 14th amendment bans states from not providing any protection to only some people and not to others and declares a person a citizen of a state and a citizen of the federal government. This makes sure that certain procedurial rights exist for anyone when dealing with the federal or state governments.
Tom:
You have to look at the state constitution to see what, if any, rights the citizens of that state gave away to the state.
So, there COULD theoretically be a state that could ban all speech if the people of that state allowed this SPECIFICALLY in their state constitution. (Not a good idea but it's possible.)
But, unless the people SPECIFICALLY AND EXPRESSLY give away their rights, the people still have them because the rights originate with the people and stay with the people unless they are given away to the government.
Under your logic, no government could ever regulate in any area because governments have no power ab initio. Until/unless the people give up some of their natural rights to form the government there is no such thing as a government. That's the whole point of organizing a government; you give up some of your natural rights to be free in order to get the advantages of a government. The list in the 1st 8 amendments is just a sampling of the rights people thought were 'super important' back then.
In our system, the STATE is where the locus of power was intended to reside – NOT the feds. So, the 2nd amendment only restricts the feds. Again, whether the people of Illinois gave up their gun rights can be determined by looking at the Illinois State Constitution.
Finally, the 14th amendment doesn't change this analysis but that's covered elsewhere on this site.
I actually think that the 2nd amendment, by the way it is written, does apply to all governments in the system since it state 'the right to bear shall not be infringed'. It does not state that it shall not be infringed by the federal government but can be infringed by the state governments. Other amendments such as the 5th amendment are written in the same manor because it starts out with 'no person shall…' but the first amendment is unique because it is a limitation on the federal government only since it starts out with 'congress shall pass no law'.
Tim, that's a mis-reading of the original understanding of the constitution and the bill of rights as a whole.
At the time of the founding, no one (and I mean no one) thought or implied that any of the bill of rights applied to the state governments. It was written and included solely as a limitation on the Federal Government. That's what the Preamble to the Bill of Rights says.
On top of it, this is exactly what the state amendment calls for the bill of rights stated – that the states wanted to further limit the power of the federal government. And, finally, even John Marshall, who is often cited as being a leading proponent of more centralized government, also verified this in a Supreme Court ruling in 1833.
As far as the original constitution and bill of rights, there is no debate on this – just misunderstanding, and an awful government-run education system in this country (which is so bad and controlling it even affects the quality of the private schools)
The question about applicability to the states comes not from the 2nd, or any of the other amendments, it comes from the 14th. That is the only place it comes from.
Then why wouldn't they write the 2nd amendment like the first by saying 'congress shall pass no law'?
Keep in mind 2 things:
1. The first amendment is the unique one on this, specifying Congressional limitations on making such laws
2. The preamble of the Bill of Rights, which most people do not even know exists, explains further. A Preamble defines the intention of the document and the document itself explains how that is to be done. The BofR preamble explained quite clearly that the states were concerned about the powers of the new government and included it "in order to prevent misconstruction or abuse of its powers"
I just found the preamble and am not entirely willing to accept its mission statement but, that aside, wouldn't it be funny if an anti-gun liberal claimed state rights in the gun ban restriction? At that point, we can call them racist…LOL!
It is possible for states to remove certain freedoms from people but people in those states are not powerless to stop that because they can enact legislation to protect their freedoms or move to another state which makes enforcing bad laws impossible. That is why the state by state attempt to get rid of prohibition failed because it could not be enforced.
Yeah, the natural right you mentioned must have been on the 2nd stone tablet that Moses dropped and broke. I think it was the 11th Commandment: "Thou shalt not deprive thy neighbor his gun."
This whole "natural rights" thing is bogus. Rights are the label people give to states of being they implement as social mores.
Did God also fashion trial by jury? Did he ordain the number of jurors in Texas would be 6 in county courts at law and 12 in district courts?
What kind of cap would God put on punitive damages? Is God for or against nuclear weapons? How about public schools? How about public EMS transport of accident victims to hospitals?
I don't know. Maybe God is agnostic on these other questions and finds gun ownership is important enough that it trumps over concerns for things like education and people in need of ambulances.
I'll have to start taking on criminal defense and invoke the "Natural Rights" doctrine. I'm sure I could get lots of mileage out of it. Does anyone have a complete list of these Natural Rights I can research? I'd like to bone-up on them and then, Shepardize them to make sure they're still current law.
I know I over-killed it. Just trying to emphasize the whole fallacy of this "Natural Rights" non-sense. Let's deal with the fact that people write laws, and people decide whether or not they will follow them.
Clearly people write laws but do you need the law to feel like you have rights. Again, if I were to steal from you would you feel that you had a right to retain what you had without any laws that said you did? And do we have to write a law for every action you wish to freely do? Do you have a complete list of freedoms the government has granted to you? Are you aware that the government did not write a law allowing you to access this website? You should turn off the computer immediatly and wait for uncle sam to allow to you to do such a thing.
If I understand your concern about the scope of the BoR correctly, and I’m sorry to be the messenger on this one, but please note the following. Historical records concerning James Madison, Thomas Jefferson, Chief Justice John Marshall, John Bingham and undoubtedly other constitutional experts all clearly indicate the following. The Founders made the 1st and 10th Amendments to reserve government power to regulate our basic personal rights like speech and religion to the states, regardless that the Founders made the 1st A. to prohibit such powers altogether to the federal government.
But in the same breath I will also note that state power to address religion, for example, is the same power that allows things like Creationism to be taught in the public schools. So state power to regulate religion is not necessarily a bad thing.
Getting back to idea that the states had reserved for themselves the power to regulate our basic freedoms, here are some examples from constitutional experts. Although he didn’t mention amendment numbers, Jefferson references both the 1st and 10th Amendments in the following excerpt.
“3. Resolved that it is true as a general principle and is also expressly declared by one of the amendments to the constitution that ‘the powers not delegated to the US. by the constitution, nor prohibited by it to the states, are reserved to the states respectively or to the people’: and that no power over the freedom of religion, freedom of speech, or freedom of the press being delegated to the US. by the constitution, nor prohibited by it to the states, all lawful powers respecting the same did of right remain, & were reserved, to the states or the people…” –Thomas Jefferson, Kentucky Resolutions, 1798. http://tinyurl.com/oozoo
Next, the following link is to a page from the post-Civil War Congressional Globe, a precursor to the Congressional Record. It shows that 14th A. main author Bingham lamented the fact that the Founders had decided not to make the federal BoR apply to the states.
http://tinyurl.com/y3ne4n
Since this blog concerns the 2nd A., not the 2nd A. in the middle column of the page at the link above. This shows that Bingham had included the 2nd A. when he read the first eight amendments as examples of statutes containing privileges and immunities which the 14th A. had applied to the states. So the Chichago gun regulations are probably unconstitutional.
And the above references are just the tip of the iceberg with respect to why we are now plagued with politically correct interpretations of the Constitution. So please ask more questions about the BoR and other constitutional issues. I, but certainly others in this board, will hopefully able to reasonably address your concerns. Otherwise, I would make a post that would fill a chapter in a book and blow up Mr. Boldin’s board in the process.
Great input, thanks for sharing! One caveat, though, on the 14th amendment, IF you take the position that the 14th made the whole bill of rights apply to the states, then yes, the chicago gun ban is absolutely unconstitutional. But, not without the 14th.
And then again, there is a huge debate about the proper reading of the 14th, much of which has been covered in other articles on this website, that provides very good support for the idea that the people who ratified the amendment had no intention of applying the BofR to state governments. For example, while Bingham was the principle author, he was not the only one. And, there is plenty of discussion about his personal intent and what he actually got approved and ratified – which can often be very different.
If Bingham's intent through his quotes is not to be considered, what are we to make of all those Jefferson quotes?
A very good point was made. That's not to say it makes the entire case, but it is very noteworthy.
Ahhh, Jeff, you should not imply that I think Bingham's intent and quotes should not be considered. Just that I believe that the evidence to the opposite is overwhelming….regarding the intent, the debates, the understanding of the others involved, the ratifiers, etc.
But yes, if it were just Bingham who drafted it alone, who alone explained it and alone ratified it, incorporation would be a slam dunk. Well, maybe. There are plenty of quotes that show he was all over the place on this, so like selective incorporation, selective adherence to the constitution, we also have selective quoting!
Very true. These guys who did all the ratifying held different views. It's like trying to write something that says, "The sky is blue," but if you ask everyone who agrees on it to pick a shade of blue to use to paint it, they'll be picking all kinds of different "blues."
If anything was so clear about all this, this site wouldn't exist.
For the very reason these ratifiers were not all on an even keel, we have the various modes of construction, some of which methods purposefully exclude extraneous statements of scriveners.
However, the view previously expressed by Bingham does tend to solve some interesting problems (while at the same time, creating some as well). For example, if the incorporation doctrine did not apply, then states could be free to unreasonably search with a law that says, "we can search anyone, anywhere, anytime." Then, of course, that enables them to treat former slaves unfairly by wielding such an arbitrary power. Yet, the idea of the 14th was to provide equal dignity and treatment. And nobody has successfully argued the 14th was not expressly designed to handcuff the power of states.
There are just a bunch of confounding issues that come up to make arguments pro/con fail-proof. But maybe you are someone knows how to deal with every issue I could raise without resort to the incorporation doctrine.
Well, I think Gutzman said it best in my podcast with him last fall – that we are better off dealing with little dictators than one who covers the entire country.
Decentralization's sole duty is not to eliminate violations of liberty by governments – that's an impossible goal, IMO. I believe it is best suited to minimize the damage of tyrants.
So as far as what is good on a practical level, I oppose incorporation. As far as being historically correct, as you know, I'm far in the camp that sees incorporation as an opinion that's been thrust on history – instead of the other way around.
Yes, I understand your sentiment. It is very much similar to the idea that the U.S. has no business getting involved in saving the people in foreign nations, such as Darfur and Bosnia, from ethnic cleansing, holocaust, extermination, etc.
On that topic, I have mixed feelings. I think people should tend to meddle as little as possible, but when atrocities become bad enough, it just makes one's stomach turn to sit back and watch it.
So….. I don't know. There's some good; there's some bad. I think most of us agree, but where we start disagreeing is when the oversight/involvement starts getting too meddlesome and into micro-management.
yes, the practical is quite important. But when I'm not in my "activist" shoes, I'm thinking purely from a constitutional standpoint and I've yet to be convinced that incorporation has any solid footing in history.
I am, however, planning to read a new series of papers on this from one of my favorite scholars, Kurt Lash. I'm sure he'll make quite the compelling argument! This is the never-ending story for me, I guess…
…. and will probably never end. LOL!
The many curve-balls life can throw is so full of varying circumstances, there's no way a single sentence or two could have ever addressed the thrust of the purpose of the 14th.
If, for example, a state has no prohibition against cruel and unusual punishment, and if the 8th is not incorporated, you could only cross your fingers and pray if you or your child are traveling in that state and get stopped by the police and accused of wrong-doing.
In fact, these incidents are frequent in the international scene. Remember the caning judgment in China years ago (or was it the Philippines)? And then there was the recent concern over the young ladies captured crossing the North Korean border and what would happen to them. We just couldn't sit back and say, "Sure. Do with them what you will."
So, obviously, we come to points where constraining abhorrent behavior is seemingly justified, and of course, we articulate the many reasons to justify what actions we wind up taking.
It's all sort of a game that way – but in fairness, it is a serious game.
Re: the Lash article, I read this one: http://papers.ssrn.com/sol3/papers.cfm?abstract_i…
If this is the one you referenced, I'd be interested to hear your thoughts when you finish it. My opinion is it does not answer nearly enough. About 1/3 to 1/2 is dedicated to differentiating approaches, such as textual, non-textual, and such. Another chunk seems to be dedicated to whether the 10th survived (of course, it did).
And then, at the end, there is not a very satisfactory conclusion, for the reason that the article does not delve into the myriad issues based in either real or hypothesized situations.
That's the problem with social theory. Life is too complex to always think every peg fits in a square hole.
The paper could have addressed issues that fit one one theory, and juxtaposed them to other issues which we would recognize require yet another theory. This would then demonstrate why it was inevitable that we would breath life into more than a single theory as issues developed and were confronted.
Just from a realistic stand-point, we don't have competing doctrines for any other reason, except that each has its benefits and detriments. It's impossible to pick just one and declare it "perfect."
Jeff:
You write: "These guys who did all the ratifying held different views."
That is exactly why I KEEP HARPING on the rules of construction that correctly tell us NOT to look outside the document itself unless the document is unclear. This is not just a "various mode of construction" but the most logical mode of construction for legal documents and it's what is taught in 1L law school FOR GOOD REASON.
Am I the only person here who learned this in law school?
I keep seeing comments here that indicate the author of the comment is using information he read outside the document to interpret the US Constitution BEFORE he carefully analyzes the actual words themselves.
If you read the entire US Constitution, you will easily conclude that the purpose was to form a limited federal government. In other words, the document should be construed in as limited a way as possible in order to comport with the 'intent of the parties.'
With that in mind, you get one overriding rule and several corollaries to follow:
RULE: The States and the people have the MAXIMUM freedom possible.
Corr. a) If it's not there, the feds can't do it.
Corr. b) To limit the powers of the States or the rights of the people, the document must expressly say it.
The only correct way to read a legal document like the Constitution is to NOT assume anything and simply take every word at face value unless it leads to an utterly absurd or pointless result. DO NOT CONSIDER outside sources unless you absolutely must do so to make any sense of the situation.
Here, the first question is whether the BoR applied, ab initio, to the States. Easy answer using legal logic and the rules above: NO. This would limit the States power and the document does not expressly so provide. Simple.
The 2nd question is whether the 14th amendment applies all the BoR to the States even though it does not say that it does. Quick answer again: NO. Again, this would limit the States power and the document does not expressly so provide.
If the 14th amendment were intended to apply to the states, that would be in contradiction to the normal intent of the parties that the States and the people had the maximum freedom. So, if we're going to reach a result that will go against the normal intent of the parties, we need to find SPECIFIC LANGUAGE to that effect.
Such language can be found in the Constitution where it SPECIFICALLY denies certain powers to the States but it cannot be found in the 14th amendment. (See, Art. I, sec.10)
If you don't follow these rules, you will end up in endless arguments with people who have read all kinds of related material and find it impossible to keep all that information out of their minds when they read and try to interpret a section.
It's like using a skill just because you have it even though it's not called for. It seems it is almost impossible for people not to 'show off' their expertise even if their expertise is not called for. It's also called human ego.
There are cases where you need to go outside the document but, again, this is not one of them.
There is no way to avoid going outside the document – even if to God and "Natural Law" if that's your preference.
What do the following words and phrases meean:
Due process
Privileges and Immunities
Cruel and Unusual
Peaceably
Infringed
Unreasonable
Probable
Particularly describing
Infamous
Public Danger
Just Compensation
Speedy and Public
Impartial
Assistance of Counsel
There are many, many more I could cite.
What the 14th A. does not make clear is this, IMO. The 14th A. does not take away state’s rights. In fact, given that Bingham’s statements that the 14th A. did not take away state’s rights are essentially buried in the Congressional Globe which doesn’t seem to be indexed (corrections welcome), justices possibly never got the word that the 14th A. did not take away state powers. And not only would the misunderstanding that 14th A. possibly took away state’s rights understandably spook pro-state power justices, but it would certainly spook judges and legislators who knew that the states needed to regulate guns to some extent.
So I’ll attribute the USSC’s unnecessary tradition, IMO, of selective incorporation concerning the 14th A. to the argument that the 14th A. could have been better written to show that federal lawmakers had decided to preserve 10th A. protected state powers.
And as I've ranted elsewhere, there is evidence that anti-religious expression justices argued that the 14th A. applied the BoR in its entirety to the states for the following reason. Such an argument wrongly suggests that the lawmakers who made the 14th A. had also intended for that amendment to apply the 1st A.'s prohibition on federal government power to regulate religion to the states. After all, such an argument is an effective excuse to prohibit Creationism, for example, from being taught in public schools. Here's an excerpt which supports that idea.
"The First Amendment declares that Congress shall make no law respecting an establishment of religion or prohibiting the free exercise thereof. The Fourteenth Amendment has rendered the legislatures of the states as incompetent as Congress to enact such laws. The constitutional inhibition of legislation on the subject of religion has a double aspect." –Mr. Justice Roberts, Cantwell v. State of Connecticut 1940. http://tinyurl.com/38a87c
I second the "thanks" for that link to Bingham's statement. If you are so inclined, I wonder what your thoughts would be on Natelson's law journal article, where he describes what he says was really meant by the phrase "privileges and immunities." He quite clearly says this phrase does not equate to "rights," and he gives some interesting materials to back up his assertion.
http://www.umt.edu/law/faculty/natelson/articles/…
isn't California wanting to ban cussing? thats speech bud. if the states want to do that then don't elect the people or move
I agree with you Tom, the Bill of Rights address the Federal Governments intrusion on the rights of the individual not the state…What would be the purpose of the 10th Amendment if the 2nd Amendment merely prevents the federal government from intruding on the right of the state to police certain behavior. I believe the 2nd Amendment states that "the right of the people to keep and bear arms shall not be infringed" not the right of the states to regulate the right of the people to keep and bear arms. In fact, if the latter were the case, woundn't the 10th Amendment be counterproductive…I can just imagine the Supreme Court attempting to explain the reservation clause in the 10th Amendment if the 2nd Amendment somehow delegated authority to the States as oppose to ensuring the rights of the individual.
Not only does this 2nd amendment / gun issue have ramifications to the 10th amendment but what about the 1st amendment and freedom of religion issue. If the 2nd amendment applies to states, counties, cities, and individuals then so to does the freedom of religion. However, if the 2nd amendment is limited to just the federal level, then the 1st amendment cannot be used to stop state, county, and city level promotion of religion. Only local laws hold sway. That opens up the possibility of a Bible belt state or county to have religion taught in the public school system and be perfectly legal.
My head is spinning to think of all the ramifications this 2nd amendment / gun issue addresses. Personally I would like to see the Bill of Rights only apply to the federal level and let diversity happen on the lower government levels. I happen to live in Tennessee and I know the majority of people in my county would favor the Bible being taught in the public school system. If somebody does not like it they can move to a different county. The only reason why the Bible is not taught in the public school system is because people think the 2nd amendment applies to local government. In fact our county just got sued because a prayer was said before a high school football game. However if the 2nd amendment is only for federal level laws, then our county did not violate the 2nd amendment at all.
That is JUST the kind of argument that former Alabama Supreme Court Justice Roy Moore made when he said that it was not federal jurisdiction to determine if the ten commandments could be displayed in an Alabama courthouse. On that point, he was absolutely right.
Here's the kind of sludge you get when you start preaching in terms of so-called "Natural Law."
In Blackwell, a qualified woman was denied membership in the state bar because of the Law of the Creator:
"The natural and proper timidity and delicacy which belongs to the female sex evidently unfits it for many occupations of civil life….The paramount destiny and mission of women are to fulfill the noble and benign office of wife and mother. This is the law of the Creator." [83 U.S. 130 at 141].
Natural law is the rights a human being has in their natural setting not their biological setting. Natural law is self-limiting simply because when the freedom of one overlaps into another that overlap cancels that action out. In other words, my freedom to steal becomes nullified when it overlaps your freedom to retain your possesion.
The way I understand natural law is that freedom of every person is absolute but is also self-limiting at the same time because my freedom to steel becomes void when it overlaps into your freedom to retain your possession. A simpler less volatile explanation is that my freedom to walk straight ahead into a crowd intersects with the crowd's freedom to stand their therefore I am limited in my actions by the freedom of others.
Where do these concepts intersect when a person is accused of a crime before be proven guilty – i.e. what is the natural law regarding detaining a person until trial vs. bail? What if the person is ultimately found not guilty? Does that mean that natural law does not always work?
That does not apply because the nature of government automatically restricts your freedom which is why, when dealing with the government, you don't have natural rights. Instead you have procederial rights that have to be followed in order to protect your natural rights.
We delegate certain powers to the government to protect our natural rights which is why me charging into a crowd, slamming people to the ground, and being dissordly will get me arrested.
I'll leave you to think about both those statements and how they don't square. Hint: Where is the point of demarcation when God says He doesn't care anymore and will leave the procedural details to the people?
That is up to the people to decide since they delegate powers to the government to handle such things since that choice is up to their natural freedom and if it is not a part of their natural freedom to decide what powers the government has then the government is violating their natural rights.
Why is it the people's "natural freedom" to decide whether I get bail or not while criminal charges are pending trial against me? Are they not treading on my freedom? All there is are charges based on what some group of people SAY is probable cause, but I have been convicted of nothing.
Do you not see the fallacy, yet? I am trying, but I don't see what else could be obvious enough if no progress is being made this far into it.
Its a part of my natural freedom to be detained by anyone without my permission. My neighbor can not hold me against my will since that will violate my freedom but if I said to him "if I were to steal you may hold me in your prison". That would not violate natural law since I freely gave him permission to do so under those conditions.
It is no different with government. We gave them the power to hold people when we violated certain conditions such as breaking the law. It only has those powers because we freely gave those powers to them in no different a way than giving those powers to my neighbor. Its a contract between people that each side freely enters into and this contract establishes certain procedures that must be put in place to keep those powers from being abused.
The government can not go outside these conditions or it will be violating my natural rights no different if my neighbor decided to kidnap me.
correction: Its NOT a part of my natural freedom to be detained by anyone without my permission.
Hold on there. I have two questions:
(1) What if I never gave permission for anyone to detain me if I steal? You presume I did or would agree to do so. That presumes too much.
(2) Similarly, you tried to gloss over the gray area by saying "if I steal." My question was about detention by people who merely ALLEGE I steal.
1) You can actually walk out of the agreement if you want and whatever protections that agreement affords you will also be lost. This means that if someone decided to steal from you their will be no legal repercussions whatsoever which means you may not wish to do that.
2) You have procededrial rights to protect your freedom. Those procederial rights enable to you fight back against those accusations.
1. If I walk out of the agreement, then, naturally, it doesn't apply to me anymore, and I can steal. Right?
2. These procedural rights are indeed VERY substantive. The right to counsel appointed by the state is very substantive and not just procedure. Imagine defending yourself pro se against a prosecutor. But how GOOD a lawyer am I entitled to have appointed? One as good as the prosecutor or better? This is a very substantive question – not procedural. What is the Natural Law on that?
1) No because 'protections' will still apply to people in the agreement. Those people are entitled to those protections whether you are not in the agreement or not. The law would then protect those people from your act.
2) Did I say that procedurial rigths did not exist? No. They exist within the state as legal procedures to protect your already existing rights. It prevents the government from violating your rights at will which is why when the government wants to put you in jail for murder it is forced to have a trial, provide evidence, and follow due process established by law in order to protect your freedom in the event you are innocent of the charges.
I live in Chicago, and would love to see this ban overturned; however, by allowing the Federal government to stick its nose in this matter, we allow the wolves to check the sheep. I direct you to a great response to the Heller case, by Stephan Kinsella. http://www.lewrockwell.com/blog/lewrw/archives/02…
The BOR was NEVER an attempt to bind the states, because the BOR was redundant in the first place (we didn't need the BOR). That is, even without the BOR, the FEDS could not prohibit speech, ban guns, ect.; because it was never delegated in the first place. By the way, this is the tenth amendment center. which upholds states' powers. Allowing the FEDS to intervene in state matters, or local matter, makes a mockery out of the tenth amendment. In case you think this is great, just remember, by allowing the federal government to intervene in state matters, we allow them unlimted power; thus the federal government is not one of limited powers, but one of a limitless plane, where the skies the limit. So, as tempting as it is, let's not waver.
Let me add to these comments by reminding all that the States are in competition with each other… just as the local areas in a State compete with each other. If people are not happy in one area, they will move to another; if they are not happy in one State, they will move to another.
This competition is what will make or break any area. And, as we all know, as crime increases in those areas with strict gun laws that forbid the people the defense that firearms gives them – people will leave those areas and seek out a place that allows them their freedom of choice in the matter… taking with them their business and/or skills. This movement of people has an effect on all aspects of life in any area, such as limiting the pool of prospective employees for businesses and so on.
It may eventually dawn on those legislative bodies that what they have done was detrimental … but in a city the size of Chicago – it would take a very long time for any effect (other than an increase in crime) to be realized.
What really stuns me is that Chicago did not learn the lesson that Morton Grove, Illinois taught them with its gun ban. Crime soared, especially home burglaries. But then … maybe that is what they are hoping for??
I’m moving to New Hampshire: as apart of the Free State Project. I love my city of Chicago, but the tyranny of the area forces me to relocate. This is what the residual powers mean. I hope all patriots remain vigilant; let us suck the power out of the federal government.
After all the discussion on weather or not the bill of rights applies to the states, I'm supprised that nobody pointed out that chicago is not a state. Given that chicago is not a state, even if the 14th amendment does bind the states with regard to the 2nd amendment it still wouldn't apply to chicago because chicago isn't a state.
That being said, the tenth amendment says that rights not granted to the federal government are reserved to the states or to the people. The second amendment specificly says the right of the people. now, given that rights are reserved to either one or the other and the right of the people is specificly mentioned in the 2nd amendment I would say that the right to keep and bear arms is a right of the people rather than the states.
You can argue the intent all you want, but the letter of the law still says the right of the people and the letter of the law takes precedence, which is why laws have can have unintended consequences. Sometimes it's not what you meant to do that counts as much as what you did. This is especially true when several people intend to do several different things and they have to come to an agreement like our founding fathers did when they wrote the constitution and ratified the bill of rights.
Well, it took three posts but i finally got it all in.
What if the 2nd Amendment or the Constitution are not applied in this case. The Supreme Court is the highest appellate court and could decide this on other grounds, i.e. that the city of Chicago created a law that violates the state constitution.
Where in the constitution is the supreme court authorized to rule on matters that are solely in the realm of the states?
Hint ….it doesn’t exist. Scotus has as much authority over state matters as it does over Canada.
Chicago gun law is illegal for uou have the rright to protect your home and family.states have the right to reggulat gunsbut no cities and towns!McDonald v City of Chicago should win his cassee in a 5 to 4 desision.its time w usee the 10th admenment to take back our rright from federal goverment.
The “people”, a “person”, the “accused”, and such are words used in the Bill of Rights for a reason. These words were chosen for a reason; it borderline absurd to suggest that some of the finest legal minds of the time chose them lightly. The second amendment says that “the right of the people to keep and bear arms shall not be infringed”. It does not say “shall not be infringed by the newly created federal government” or something similar. Only the first amendment contains language to this effect.
The Constitution is a binding agreement between both the states and the newly created federal government. The states voluntarily sacrificed their power to infringe upon the rights enumerated by the Bill of Rights (with the possible exception of those in the 1st) in ratifying the Constitution. The states should not be permitted to weasel out of this agreement and violate explicitly protected individual rights whenever they wish.
Do you base that off of your personal opinion, your public education, tv pundits, talk show hosts, or the founders?
If it’s the latter, can you provide anything to verify that other than your own perspective? I.e…..statements from founders saying the same in their writings, speeches, ratifying debates?
If you have any of that i’d love to see!
The other question is this…
When the founders said they wanted to have a bill of rights to further clarify the restrictions on federal power, were they lying, or were you simply unaware of that fact?
"Do you base that off of your personal opinion, your public education, tv pundits, talk show hosts, or the founders?"
I am an engineer and not a legal scholar or historian of any kind, so my these statements are based only on my own personal opinion and modest reading on subject.
"When the founders said they wanted to have a bill of rights to further clarify the restrictions on federal power, were they lying, or were you simply unaware of that fact?"
Which founder(s) and in what context? As I've said, the first amendment explicitly prohibits only Congress from infringing on those particular rights. The rest of Bill of Rights does "prevent misconstruction or abuse of [federal] powers" through "further declaratory and restrictive clauses", as well as enumerating and protecting many personal rights. These rights are protected for all citizens of the United States unless you're willing to argue that the words "person", "people", or "right" mean radically different things to the states versus the federal government. Many of the founders (Jefferson and Madison come to mind) believed in the concept of inalienable (or natural) rights; I find it very hard to believe that like-thinking individuals would intend the protection of those rights to depend on which state you happened to reside in at any given time. Do you honestly think they would intend any government within the United States to have the power to alienate someone's supposedly inalienable rights? Granted that the founders were somewhat inconsistent, especially concerning a certain elephant-in-the-room issue in the warmer states.
Also, if the purpose of the Bill of Rights is merely to restrict the powers of the federal government with respect to the states, why mention the rights of the people in the ninth amendment?
John,
You argument makes sense to me, particularly when you look at the requirement in the Constitution to guarantee a Republican form of government for the states.
The only way to do that peaceably would be to have the federal government restricting the ability of the states to encroach upon the rights of the people.
However, I don't remember the exact debate, but it is one of the last days of debates before the delegates to the Constitutional convention signed it.
The gentleman who brought up the subject of the Bill of Rights spoke about it a bit, and specifically mentioned the powers of the federal government in reference to the amendments. There was no mention of restricting the states, or that it should be considered.
Michaels arguments point out a good fact – go find any references in the Constitutional debates, the Federalist Papers or the Anti-Federalist papers, and find where they are concerned about the powers of the states being abused, and a need to have the federal government intercede to limit those powers.
There may be some references to the potential for the abuse to happen, but I don't remember there being any reference from either side about needing to constrain the state governments.
On the contrary, I do remember seeing (and saw again as I went through them recently) there being talk about how the states had created constitutions that instituted great protections for their citizens' rights.
Your argument, as did my earlier argument, which was similar to yours, brings up a very good point – if the federal government does not have any legal authority to intercede if a state infringes upon the rights of its' citizens, and that infringement threatens the republican form of government in that state, then what means does the federal government have to enforce the guarantee of a republican form of government?
Similarly, if a state government were to abolish, or effectively impede, a republican form of government, and the citizens of that state revolted, which side would the federal government have to take?
The citizens would be, after all, revolting, but the state would have abolished the republican form of government.
This is another John – John, look at the Constitutional debates. When the issue of the Bill of Rights is brought up, the addition of them is in reference to the federal government. I looked it up, and I didn't have time for a word-by-word search through all of the debates, but the one that I did find, which was an argument to include a Bill of Rights, specifically mentions federal power, and says nothing and doesn't even hint at restricting the powers of the governments of the states.
Also, you must also consider the fact that the states did in fact consider themselves to be sovereign states.
In that context, they were ceding certain authorities to the federal government – the ability to post duties, for example, or a restriction of laying taxes upon merchandise traveling through their state.
They also agreed that the federal government would have certain powers that could not be interfered with by the states – like being able to collect taxes.
However, they did not agree to the federal government being able to interfere in their affairs.
In the responses to the article about federalism, I was making the case that it doesn't make sense that the founders would leave the states free to do whatever they wanted. However, as Michael pointed out, what made sense isn't necessarily what was intended.
When you look at it in the context of the time, the founders were more concerned that the freedoms of their respective state governments would not be infringed upon by the federal government, and the Constitutional debates show that.
You said, "The Bill of Rights was never intended to be a list of individual rights, but a list of things the federal government could not do." Then you go on to say that the Founder's intent was about limiting federal authority not state authority. You continuously cite the "intent" of the Founders, yet you fail to mention that James Madison himself proposed in his original draft of the Bill of Rights that, "No State shall violate the equal rights of conscience, or the freedom of the press, or the trial by jury in criminal cases." He even said that he considered this to be the most important amendment in his proposal. So even the Father of the Constitution thought that some rights were just too important to be left to the protection of the states.
But the real people that matter on this issue are not the Founders, but the 39th Congress who proposed the 14th Amendment to the Constitution. John Bingham expressed his desire to apply the Bill of Rights to the states, and so did Jacob Howard who said, "The great object of the first section of this amendment is, therefore, to restrain the power of the States and compel them at all times to respect these great fundamental guarantees." In explaining what these "great fundamental guarantees" were he said:
"To these privileges and immunities, whatever they may be — for they are not and cannot be fully defined in their entire extent and precise nature — to these should be added the personal rights guarantied and secured by the first eight amendments of the Constitution."
The 39th Congress wished to limit the powers of the states, and it doesn't matter what the "original intent" of the Founders was. Congress decided that leaving our rights up to the states was wrong and they set out to fix that mistake. And that was a good decision.
I contend that, using only the Bill of Rights as the basis, one cannot fully reconcile the 2nd Amendment, as applying to a federal restriction only, with the 10th Amendment. The reason is that "being necessary to the security of a free state" makes it "prohibited by it to the states" which makes it "reserved"…" to the people". And that does not even begin to include the entirety of the foundation of the writings and construction of the 2nd Amendment by the likes of Madison and Henry. But that is just the general interpretation of lowly engineer.
I would be more than happy for somebody to reconcile it away for me.
II. A well regulated Militia being necessary to the security of a free State, the right of the people to keep and bear Arms shall not be infringed.
X. The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.
If the people's right to bear arms can't be infringed on by any government then the 2nd amendment not only becomes a prohibition on the federal government but also the state government which is covered in the tenth amendment as things prohibited to the states.
Unknown, I was reading it the same way – the lack of a specified government means it must apply to all governments, however, when you look at what the founders said, which is absolutely necessary in this case, they make no mention of needing to prevent the states from encroaching on rights.
Their comments were actually more along the lines of implying that infringement of rights was something that would not be done, or very unlikely to be done, by the states, because the majority of people in those states would ensure that was the case.
You also have to remember that, for all intents and purposes back then, everybody had worked for, and often fought for, everything they had, so they had a very strong incentive to guard it jealously from the state governments.
I think the founders expected that would remain the norm, and that would be the protection against encroachment by the state governments.
Also, Madison, if I remember correctly, stated in the Federalist Papers that he believed that a politician wouldn't risk damaging his name and honor by using low-ball political tactics.
So, to the second amendment, "A well regulated militia being necessary to the security of a free State" does imply the states themselves; so it is saying that in order for the States to be able to protect themselves from the federal government (think of it in the context of the Revolutionary War), the federal government shall not have the power to infringe upon the right of the people to keep and bear arms. That way, the federal government could not interfere with the ability of the states to raise a militia to defend themselves.
Reading Federalist 23-28 gives one the proper perspective on this issue. In particular, Federalist 28 p6 states "that original right of self-defense which is paramount to all positive forms of government" and as such it must be a right of the people that no state or federal government can infringe without just cause. It is that simple. When a state joins the union it must adopt the constitution in whole. There is no legal way a state can usurp that law or the rights as they are in the founding documents. State constitutions that do not specify anything at least equal to the supreme law then are bound by that law by contract regardless. It would be ridiculous to assume the rights of citizens of any state could be less or even nonexistent while being admitted into a union designed to preserve those very rights.
You’re mis-representing that statement.
I am looking at it right now – that article is only speaking about the means necessary to prevent the abuse of standing armies to infringe upon the rights of the people.
The part you quote only refers to the right of the people to defend themselves against any government – “If their rights are invaded by either, they can make use of the other as the instrument of redress.”
http://www.constitution.org/fed/federa28.htm
There is no mention in that letter about the Bill of Rights and whether it applies to the states or not.
The letter does say that the federal government can come to the aid of the people and suppress a tyrannical state government. That is provided for in Article IV, Section 4.
However, nowhere in that letter does it imply that the federal government has any power, besides the use of force, to protect the rights of the people from their state governments.
The letter also contends that abuse of the use of force by the federal government would be checked by the states.
And why would the bill of rights be mentioned ? It followed the discussions of the Federalist Papers and the actual adoption of the Constitution in its' final draft. In no way is that statement any less of a fact than a universal understanding being the basis for everything in the design of the constitution to preserve what were known as "original rights" or "inalienable rights" by limiting the ability of government to become powerful enough to deny those rights.
The national government was meant to be a coordinator, an efficiency not a power. It was from the beginning a conflict of interests which was harnessed to provide checks and balances upon the branches but all knew the danger that time would favor the patient cunning of power to set aside differences to achieve an end. They rested the original right to self preservation with the people for that very reason, to throw off a despotic power and if one reads the Declaration of Independence properly it is as much a declaration as it is an instruction telling the people not to wait too long when it is obvious the powers are bent on becoming despotic.
The nip it in the bud strategy is to preserve the peace and lives of those who would otherwise be faced with an organized and well funded government. I doubt anyone could argue that we don't face that right now and that the move by this administration to pass laws which will increase its powers and also allow it to turn those powers against its' opposition with the aid of the courts and armed agents of their choosing. If we are to stand a snowballs chance in …. the time to act decisively to hold them to the existing law is expiring fast. The senate is considering a bill cosponsored by McCain and Lieberman which would put the dissent of the people in the hands of the president and atty gen. to determine if you are a threat to them. We will be fools to allow that law to reach the would be tyrants desk as he will then have acquired all powers a tyrant needs to oppress at will. He will then have become what the founders hated most and what we the people will not overcome without extreme hardship and loss.
U.S. Constitution – Article 4 Section 4
"The United States shall guarantee to every State in this Union a Republican Form of Government, and shall protect each of them against Invasion; and on Application of the Legislature, or of the Executive (when the Legislature cannot be convened) against domestic Violence."
Actually, NO, this doesn't say the fedgovt can "suppress a tryrannical state govt". Just the opposite–its says the fedgovt is there to protect the STATES from its own citizens if need be. IF a state becomes tyrannical and its people revolted against the governing apparatus THEY will be suppressed by the FEDGOVT.
The privileges and immunities protected by the BoR, including gun rights protected by the 2nd A., originally did not apply to the states. This is evidenced by historical records pertaining to James Madison, Thomas Jefferson, Chief Justice John Marshall and John Bingham, the main author of Sec. 1 of the 14th Amendment. So Chicago gun laws would hypothetically have been perfectly constitutional when the BoR was ratified.
But the post-Civil War 14th Amendment changed the scope of the 2nd Amendment. More specifically, John Bingham, mentioned above, had included the 2nd A. when he read the first eight amendments as examples of statutes containing privileges and immunities which the 14th A. applied to the states. He had done so in his official clarification of the scope and purpose of that amendment to his colleagues in the HoR.
In fact, see the 2nd A. in the middle column of the page at the following link. This page is from one of Bingham's discussions of the 14th A. in the Congressional Globe, a precursor to the Congressional Record.
http://tinyurl.com/y3ne4n
So there should be no doubt in anybody mind that Chicago's gun laws are probably unconstitutional as a consequence of the 14th Amendment.
However!
Unlike the federal government which the states have never delegated the power to regulate civilian arms via the Constitution, the states still have their 10th A. protected power to regulate guns. The fact that they still have this power is evidenced by the following. Bingham had also clarified that the 14th A. took away no state powers. So the states can regulate things like minimum age to purchase a gun, for example. Here are Bingham's state's rights excerpts from the Globe, the ones that I’m aware of anyway.
"The adoption of the proposed amendment will take from the States **no rights** (emphasis added) that belong to the States." –John Bingham, Appendix to the Congressional Globe http://tinyurl.com/2rfc5d
"**No right** (emphasis added) reserved by the Constitution to the States should be impaired…" –John Bingham, Appendix to the Congressional Globe http://tinyurl.com/2qglzy
"Do gentlemen say that by so legislating we would strike down the rights of the State? God forbid. I believe our dual system of government essential to our national existance." –John Bingham, Appendix to the Congressional Globe http://tinyurl.com/y3ne4n
On a final note about the 14th Amendment, 14th A.-related USSC case opinion examples show that the USSC’s interpretations of the 14th A. is a big, PC mess, IMO. Justices never seem to reference the Congressional Record when trying to decide lawmaker’s intentions for the 14th A., instead seemingly seeking opportunities to pervert lawmaker’s intentions for that amendment where religious expression is concerned, for example.
The trick of anti-religious expression justices in stifling religous expression, for example, has been to essentially argue that the 14th A. applied the BoR in its entirety to the states. They do seemingly so that they can also argue that the 14th A. applied 1st A.’s prohibition on religious powers of the federal government to the states.
What a mess! :^(
But as I indicated above, Bingham had clarified that the 14th A. did not touch state powers, which would include power to regulate religion. And while such power might sound threatening today, it is the same power that allows states to authorize public schools to teach things like Creationism, for example. But don't forget that people's 14th A. protections must still be taken into consideration with respect to things like Creationism.
In fact, Justice Reed, an honest FDR-era justice who had the guts to acknowledge state sovereignty, had officially noted that it was the job of judges to balance 10th A. protected state powers with 14th A. protected personal federal rights.
"Conflicts in the exercise of rights arise and the conflicting forces seek adjustments in the courts, as do these parties, claiming on the one side the freedom of religion, speech and the press, guaranteed by the Fourteenth Amendment, and on the other the right to employ the sovereign power explicitly reserved to the State by the Tenth Amendment to ensure orderly living without which constitutional guarantees of civil liberties would be a mockery." –Justice Reed, Jones v. City of Opelika, 1942. http://supreme.justia.com/us/316/584/case.html
As an old Englander I find these arguements re gunlaws and who declared what to whom 200 plus years ago quite fascinating and I do thank the correspondents for their illucidations.
I find myself wondering what it was that compelled your forebearers to make this statement/provision – "A well regulated militia being necessary to the security of a free State" I believe the provision then goes on to the vital piece ( in many peoples minds) about the right to bear arms. Was it they feared an attack by the Indians? was it they feared attacks by other states or from a federal militia or was it that the states were in an anachistic mess that individual citizens fought day and night to protect their lives, wives and chickens and so you had to have a law saying anyone could carry a gun?
The original concept about an armed well regulated militia has, I believe , been interpreted as the right of the individual to carry a gun to protect him/herself.. I do not think it gave an age limitation or a "state of health" provision – e.g. can the gun holder actually see? – or that it could only be a carbine or revolver or had to be handed in when going into a bar. So does it therefore allow the possession of a surface to air missile ? or a machine pistol capable of 1.000 rounds a minute or a tank buster? Forgive me if I sound frivilous but the application of the written law can be extended for as far as the written law allows; so what limitations – in law , if any exist?..
It poses other question for me .. can you be refused entry to a public building because you are carrying a gun? when you have the right to bear arms?. Can they stop you boarding an aircraft carrying a gun? Can an hotel or church refuse you admission. Does a policeman have the right to take your gun away because you have committed a traffic offence? Where does it say that a person with a criminal record cannot carry a gun? If I were to visit the U S A can I walk in to a gun shop and buy one when you hold no record as to my worthiness or otherwise? I would hasten to add that I have no wish to do so.
May I move on to federal and state laws. As I understand the U.S. of A, you are in fact a federation of independant states with state joining ( but not being permitted to leave !!) and agreeing to be bound by a federal constitution and subscribing to a Bill of Rights. The purpose of the federal government seems to be restricted to matters of a federal taxation and the right to declare war. The supreme court is purely there to render interpretations of federal law and prevent abuses thereto.. So when your President proposes a new health scheme to cover everyone, individual states can, if they wish, turn a blind eye to it since they are independant states? I am sure I am wrong on this issue otherwise a lot of politicos would not be getting hot under the collar about the health issue; so what are the limitations on the federal government's right to pass federal legislation?
With the invention of online newspapers you gain an international readership which I think is splendid but one of the consequences is you get idiot questions from foreigners wanting to understand..
Thank you for your space and time.
M Don. Devon. England.
Looking at the plain language of the first and second amendments presents a conundrum for me.
The first amendment clearly states that "Congress shall make no law…", and lists the freedoms of religion, speech, press, assembly, and petition.
The second amendment does not mention Congress at all; it asserts "the right of the people to keep and bear arms."
The first amendment restricts what Congress can do; it does not restrict the states. Many have pointed out that certain states had state religions when the Bill of Rights was adopted, so clearly the first amendment was aimed at restricting Congress. To be consistent, it seems to me, one would have to argue that states could pass laws restricting the freedom of speech just as they could be permitted to maintain their state religions. That can't be right. Or is it?
There is no mention of Congress in the second amendment. The right to bear arms is granted to the people, so neither a state nor the federal government can abridge that right. or so it would seem.
Neil – it's logical, but incorrect as far as the original constitution goes. there is not a single founder on record saying that the bill of rights – including the 2nd amendment – applied to anything but the federal government.
That is a fact, pretty close to indisputable.
And, on top of it, you are missing the preamble of the Bill of Rights, which makes clear that the states were adding restrictions to the federal government.
-BUT-
All the argument for giving the states the authority to regulate arms as they see fit is contrary to the Second Amendment,the Supremacy Clause,the Constitution itself,and the very principles of liberty and Inalienable rights that this nation was founded on,and consequently – just as illegitimate as the federal laws that violate it.
Kevin Gutzman fails to not only respect other people by not calling them 'retarded',he also fails to accurately represent -and thus respect- the Second Amendment and the Constitution itself.
We can definitely make the argument that laws (like the Health Care Scam) that are created from the blasphemy of a bastardized government that believes it has any power it wants under a warped and mis-rendered ruling of any one of its enumerated duties is not Constitutionally legitimate to begin with,and has no force under the clause claimed to give it any,let alone the supremacy Clause itself,but the Second Amendment is most definitely meant to apply to every form of government in the United States via the Supremacy Clause
Besides,wasn't it just 60 years ago that we found out that 'retarded' people and others deemed 'not worthy' of acting in their own self defense by the state,were those who needed to be able to defend themselves the most?
When Hitler used the Wiemar Gun Control Act of 1938 to deprive 'certain' peoples of their arms,what then happened to those people?
I believe our founders would agree with this statement-
That if your not in the custody of the state or a private mental institution,after being placed there according to a fair trail,your inalienable rights to self defense as facilitated by arms and as protected across the ENTIRE United States by the Second Amendment to the United States Constitution is ABSOLUTE and SHALL NOT BE INFRINGED.
I also disagree.
It seems to me,that having failed at making everyone believe that 'gun control' is Constitutionally legitimate on a federal level,there are those that want to try to make the argument for it being legitimate at a state level,where government does indeed have more authority.
But NO LEGITIMATE authority exists for 'gun control' in the United States.NONE.
The Supremacy Clause,that clause most abused by the federal government to assert authority over the Union,even when that authority is nothing less than a blaspheme of the Constitution,says very clearly that the Constitution is the Supreme Law and that while the states definitely do have more latitude in making a broader range of laws than the federal government -which is limited to just 16 duties- there is no excuse or permission in the Constitution ,given to the states, to trample the rights of the citizens.
"This Constitution, and the Laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every state shall be bound thereby, anything in the constitution or laws of any state to the contrary notwithstanding."
And while I agree that the Bill of Rights is not a list of rights 'given' to the people by the government,it is a list of rights the people do in fact have by their very nature,as described in detail and at length in the Declaration of Independence.Natural Rights.
When Thomas Jefferson wrote-
"that all men are created equal, that they are endowed by their Creator with certain unalienable Rights"
This is what he meant by that.Human beings DO HAVE natural,inalienable rights,and those rights are SUPPOSED to be protected BY LAW at EVERY LEVEL of government in the United States.Thats one of the things that makes America great.LOL,or WAS,anyway.
These rights exist BEFORE government,and they exist DESPITE it as well.
In any case,one of the rights inherent in mankind is the absolute right to self defense.We have the right to defend ourselves,our loved ones and our property,and we have the right to do so with personal arms suitable for such.
The Supremacy Clause makes it quite clear,crystal clear in fact,that any law or treaty made by the federal government pursuant to the powers vested in it by the Constitution and that the Constitution itself is the highest law of the ENTIRE land,and that states and the courts in different states do not have the authority to trample the Constitution.
And while I have other issues with the blatant double-speak and misconceptions of the rulings handed down by the supreme court regarding gun rights like when the winning side declared in Heller that the right to keep and bear arms is an individual right,yet subject to 'reasonable regulations' rather than RIGHTFULLY being ruled to be an an uninfringable, inalienable right -which it is- and which it says so itself to be,and I generally agree with 10thers who say that the SCOTUS is nothing more or less than the fox guarding the hen house,I totally disagree with ya'll that the federal government does not have the authority to enforce the Constitutional itself upon the states,if it were to ever actually come to its senses and abide the law itself.(yeah,when pigs fly out of my butt).
In fact,the main reason I subscribe to this site is because of its eloquent argument and excellent presentation of exactly how the people have the power themselves to enforce the highest law of the land -nullification- despite the SCOTUS and the feralgov.
But, since the 2nd amendment applies to the federal government, how are such bad laws a violation of the constitution?
And, why do most states, if not all, have similar protections in their own constitutions? Redundancy is not something the founders considered acceptable.
You said:
But, there were local gun control laws, however awful they may have been, in the early days of the republic, and they were never argued as being in the sphere of the federal government. When they need to be addressed, like just about everything else, they need to be addressed on a state or local level. Not with DC.
unless, of course, you feel safe in your RTKBA with people like Biden and Obama at the helm.