What is a Tenther?

"What if I told you that the Federal government has no business what-so-ever getting involved in these issues?"

I'd say that's you're contradicting yourself. Since the federal government also claims to be the NATIONAL government-- and a national government can do anything it please, by law.

Of course, in reality each STATE is a sovereign nation by law, and can OVERRULE the federal government; but you're wholly SILENT on this, and therefore, you are CONSENTING to the federal government's claim of national authority over the states-- including its use of deadly force to enforce its dictates over the states, ever since 1861.

You may disagree with its decisions, but that's a personal opinion-- not a legal one; for the final rule is 100% discretionary with the national government.

So the choice is clear: either you claim that the states are each sovereign nations unto themselves, or you're contradicting yourself regarding your argument regarding the federal government's business.

If you want a detailed study of the purpose of the 14th Amendment, read Raoul Berger's Government by Judiciary, The Transformation of the Fourteenth Amendment.

It provides compelling evidence that the amendment was not intended to incorporate the Bill of Rights. It is an amazing book. You can get the 1977 version:
http://oll.libertyfund.org/?option=com_staticxt&a...

Or buy a later version that has answers to some critics.

Hah, quite a controversial topic.
I love the book cover on "who killed the constitution" by the way!

>>Couldn’t be much clearer – if it’s not in the Constitution, it’s left for the states or the people to decide.

Exactly. But don't forget Article 1, Section 8: "18: To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers,"

And don't forget the final clause of the Tenth Amendment:

"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.

The people can exercise that power reserved to them through their votes and thus through elected officials.
http://rjw-progressive.blogspot.com/2010/10/art-1...

As long as we're repealing all the other amendments . . . . let's repeal the 10th as well. That will make this stupid web-site unnecessary as well

http://www.TENTHERS.com

CSBubba:

Yes, I am a northern progressive (it's redundant to say liberal-progressive). By "us" I take it you mean the southern states that lost the Civil War.

Interpretation of the Constitution is not something President Lincoln invented or was put into place after the Civil War. It started with Justice Marshall and that was because the Constitution is vague and begs interpretation.

I think we all need to understand the context in which the constitution was written. The intent was to correct the problem of interstate commerce: States were setting up their own import tariffs which slowed the flow of goods between states igniting a tariff war. The commerce clause solved the main problem of the articles. The Bill of Rights solved other points of concern. The tenth amendment seems like a reassurance (in an oblique way) to the southern states that slavery could continue.

With that in mind, we need to understand that the constitution is not holy writ, is not an ingenious document written by savants, and most certainly is not the best constitution out there today. It has been amended time and again, does not speak to the modern world, is intentionally vague in many areas, and is really showing its age.

The Swiss confederation rewrote its constitution in 1989. It is a document that speaks to today's problems while preserving the confederation. We could learn much from the Swiss.

It's time to stop venerating our constitution as if it is a holy relic. We should convene a constitutional convention and rewrite the rule book.

Constitutionalist and Tenth Amendment supporters believe that the U.S. Constitution is probably the tallest man political document could imagine. Of course, Articles Confederation was also a great document actual convention delegates, who gave us the current constitution was the technical meeting to review the articles. That said, we support the U.S. Constitution and sincerely hope those elected to federal office to observe. Unfortunately, they stopped many years ago.

There's something about Article IV Section 2 that is missing the the argument that The Bill of Rights does not apply to states. The First Amendment was deemed early on not to apply as it states clearly in the text "Congress shall make no law..." The rest of them are not limitations on Congress and they are tied together with Article IV Section 2 which states: "The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States." The 14th Amendment addresses the process of that clause and was adopted to ensure that citizens, no matter who they were, would not be disarmed.

I'm sorry for another comment, this is an important topic, in my opinion!

As far as gun control laws in the early republic - yes, they existed - not in huge numbers like today, but they did.

1. There were actually gun restrictions in the states - mostly applied to black people - obviously a disgusting view - but most applied to even free black people. This was simply an extension of the power of the state to make its own determination of who could or could not carry a weapon.

2. Because the general police power to control or regulate gun ownership was part of state power, it was common for state constitutions to make gun ownership a protected right. Unnecessary if the 2nd amendment already did that.

3. The standard legal doctrine of the time was to prevent superfluous entries in a constitution - state or federal. For example, if the general welfare clause gave the feds the power to do anything it wanted in regards to the welfare of the people, it would have been superfluous to include the rest of Article I, Section 8 explaining what that clause meant - and that was commonly stated by the founders.

4. I generally dont like citing a government website, but this one actually gives a good overview:
http://www.loc.gov/law/help/second-amendment.php

3.

One more!

The fact that the purpose was to, "prevent abuse of its powers" and "extending the ground of public confidence in the [central] government" doesn't change the fact that that the states agreed that "the right to keep and bear arms shall not be infringed.".

Well - you are actually saying two opposite things.

IF it is correct that the new amendments were written to define and restrict the power of the new government THEN it is not possible that the states were agreeing to anything other than restricting the power of the federal government...

As far as your comments about the states agreeing to the bill of rights.... A simple act of a group of sovereign states agreeing to something regarding their agent does not mean automatically that they are creating new rules for their own action.

The preamble is the statement to start with. Understanding the reason the bill of rights were added makes reading that preamble quite easy.

This is where constitutional understanding requires a bit more than just pure logic - because your thoughts on this definitely ARE logical. But, when you put a 21st century analysis and definition on an 18th century legal document, you will often go astray.

I have yet to see any documentation from the founders themselves that say the bill of rights applied to the states upon approval. I doubt you will find any either - there just isn't any scholarly debate on this issue.

The important part IS the preamble to the bill of rights, when defined under the language of the day (which needs to be done for any constitutional analysis), the preamble said, in modern language -

"We are concerned that some of the language of the new constitution will be misconstrued by the new federal government. so, we are adding this bill of rights to include some additional restrictions and declarations on the power of that new federal government."

That is what it said, and that is what it did. The question I pose people on this is always the same - if you can find just one source from the founders that claimed the bill of rights applied to the states (or even just the 2nd amendment), it is worth discussing. I have yet to see one. In fact, I don't believe there is a constitutional scholar in existence who would even make that claim.

The claim on the 2nd (or any other amendment) applying to the states does not come from the founding. It never did. It only comes from the 14th.

Thanks Michael, I am sincerely puzzled. I am vaguely aware of some of the history you mention (although the Cato Instititute argues that the Slaughterhouse interpretation of the 14h amendment was inconsistent with its language and intent... I still need to read more about that.).

However, the amendment says what it says and the states agreed to it. Saying it doesn't apply to them is like saying that growing my own wheat on my own farm to feed my own hens is interstate commerce. It requires an abuse of language. You may as well not have a Constitution if it doesn't mean what it says. Out of curiosity, are there any pre-progressive era examples of states limiting the right to keep and bear arms?

You raise an important point that the amendments need to be viewed in the context of the preamble and the rest of the constitution. For any other readers, I found the full preamble here - http://www.billofrights.org/,

The fact that the purpose was to, "prevent abuse of its powers" and "extending the ground of public confidence in the [central] government" doesn't change the fact that that the states agreed that "the right to keep and bear arms shall not be infringed.". If the states institute laws to infringe the right to keep and bear arms, they are in violation of the plain language of their agreement.

As with your example of the well regulated militia bit, it seems to me that the preamble describes "why", but doesn't describe 'what". Even in the context of the preamble, the 'what" part still seems unambiguous to me.

You said:

There are no words limiting that agreement to the federal government.

Here is the preamble to the Bill of Rights, which explains the purpose and goal of the entire thing - the states wanted include further.....restrictive clauses...on the new government (that is, the federal one)

THE Conventions of a number of the States having at the time of their adopting the Constitution, expressed a desire, in order to prevent misconstruction or abuse of its powers, that further declaratory and restrictive clauses should be added: And as extending the ground of public confidence in the Government, will best insure the beneficent ends of its institution

Steve, while a logical analysis, not correct. Using the first to understand the rest leads a lot of people astray.

The founders were all quite clear in many of their writings and debates that the entirety of the bill of rights applied solely to the federal government. There was simply no dispute on this amongst them. In fact, even after the 14th was passed, there was no dispute on this. There was little consideration that such a thing would ever be the case until the courts made it that way, starting around 1925.

As far as the first - many people make that argument - if the first only restricted Congress then the rest restricted all governments. Well, the actual explanation is so obvious that I missed it for a long time as well.

Congressional power was limited in these areas because the founders wanted to make sure, surprisingly enough, that the executive had some latitude in action. The first simply acted on congress and prevented it from making a law - it was not a message to say that the rest of the amendments - or the 2nd for example - applied to the states.

On top of it, if you read the preamble to the bill of rights in the proper context - it is quite obvious that the entire set of amendments was done to limit the federal government and its power further.

I agree w/ George and Paul about the second amendment...

The first amendment says, "congress shall make no law...", thus limited to the federal government (and possibly incorporated to the states by the 14th amendment).

The second amendment says, "the right of the people to keep and bear Arms, shall not be infringed.".

It seems pretty clear to me that when the states ratified the bill of rights, they agreed that, "the right of the people to keep and bear Arms, shall not be infringed". There are no words limiting that agreement to the federal government. It's not the federal government telling the states they can't regulate guns. They told themselves that when they agreed to the amendment. The text is not even ambiguous.

Check out the new video based on this article on the Tenth Amendment Center's YouTube channel. Pretty cool!

That's the common misnomer we hear from people all the time. Generally when people say the 2nd applies to the states, they aren't making a 14th amendment argument. In fact, that's rare. Most of the time it's from a belief that the founders intended it that way. There are plenty of comments on this thread that lean that direction - and some of those same commenters have left comments on other threads with those kinds of discussions in more detail.

Hi Michael I can find no commenter on this form or on the replies that "claim that the Bill of Right ALWAYS applied to the states".

Then you don't have a problem with the author. His whole point was the state governments and their people decide what they want in their borders not the federal government.

The founders. Sadly, most people don't understand that.

There is no serious argument about the bill of rights applying to the states. That's pretty much considered a joke as the constitution was originally ratified.

No founders ever advocated this as being the case. If you have anything to verify your thoughts other than your own view of it, please share.

The 14th amendment is where the confusion comes in. Since the 1920's, the courts started ruling that the 14th amendment made the bill of rights applicable to the states. It was never even considered the case before then. that's historical fact.

Slowly, under what's known as "selective incorporation," more and more of the bill of rights have been applied to the states - under the 14th amendment - not the original meaning of the Constitution.

No, You're mistaken.
Like Paul said,
The 1st Amendment specifically limits Congress.
The 2nd through 9th garantee people's rights free from any government.
The 14th may garantee citizens their rights from the 1st free from State as well.

Who's Constitution are you reading?

whew! Thanks for clearing that up!!

Tenthers are a bunch of lunatics!

The tenther movement claims everything from Medicare to Social Security to the GI Bill to the highway system is unconstitutional.