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johnwk
10-06-2009, 08:35 PM
Alan Gura is working feverishly to have the 2nd Amendment applied to the States, ostensibly to protect the people’s right to keep and bear arms. It is said that the 2nd Amendment is useless unless it is applied to the States. But I for one believe our founding fathers would have strenuously disagreed with that notion, especially since the first ten amendments of our federal Constitution, which includes the 2nd Amendment, was specifically intended by the founders to restrict the newly created federal government and was not intended to create a legal path for the federal government to enter the States and impose its will upon the people under the pretext of enforcing the federal “Bill of Rights” and its restrictions upon the people of the various States. In fact, the people of the various States intended to bind and enforce the restrictions of the federal Bill of Rights upon the federal government!

The simple truth is, after creating our federal Constitution with its delegated powers which became effective in 1789, ten amendments were quickly adopted [1791] which were intentionally designed “to prevent misconstruction or abuse of its powers”, and this is stated in the Resolution of the First Congress Submitting Twelve Amendments to the Constitution; March 4, 1789 (http://avalon.law.yale.edu/18th_century/resolu02.asp)

Perhaps Alan Gura is not aware but the people of each state prior to creating our federal Constitution had created State constitutions with specific rights and privileges to be protected. For example, the people of Pennsylvania declared in their State’s Declaration of Rights, adopted in 1776 (http://avalon.law.yale.edu/18th_century/pa08.asp):

XIII. That the people have a right to bear arms for the defence of themselves and the State; and as standing armies in the time of peace are dangerous to liberty, they ought not to be kept up; And that the military should be kept under strict subordination to, and governed by, the civil power.

And, after placing the right to bear arms in their State Constitution to restrict their state government, they went on to place this same restriction on the federal government by the adoption of the adoption of the first ten amendments to our federal Constitution, thereby preventing the federal government from using its force to enter the states and infringing upon rights already acknowledged and protected under each State’s Constitution!

As a matter of fact, the people of the various States intentionally adopted the Tenth Amendment to specifically preserve federalism, our Constitution’s plan, protecting the right of the people, in each of the various states, to determine their own destiny within their own State’s borders!

So, does Alan Gura not realize “progressives” who are dedicated enemies of federalism are anxiously awaiting a time when and if the right to keep and bear arms within each state will be in the hands of federal judges who may protect that right subject only to necessary and proper regulations which are made for the general welfare of the people of the united states, but will most certainly be enacted to effectively disarm the people and dissolve the protection now afforded under State Constitutions?

Apparently there are those who do not understand the advantages of federalism, our Constitution’s plan, which was intended to preclude an absolute power being created in Washington, but which some, including Alan Gura, foolishly seem to be only too willing to set aside under the false hope that the federal government will protect their right to keep and bear arms.

Question is, will the federal government protect that right? History proves otherwise. Keep in mind the federal government has the exclusive power to enact legislation in the District of Columbia and has effectively disarmed the people in spite of the 2nd Amendment, and they now keep the people disarmed in spite of the Heller Case by newly creative rules and regulations allegedly enacted for the public safety which are applied to law abiding citizens seeking to bear arms, but in effect the rules and regulations adopted in spite of the 2nd Amendment makes it almost impossible, and extremely costly, for law abiding Citizens to purchase and register a handgun in the District of Columbia. Do we really want the 2nd Amendment applied to the various states which opens a legal path for Congress to impose the District of Columbia’s rules and regulations within the borders of every state in the Union? If not, then why does Alan Gura work so hard to falsely pretend the 2nd Amendment may be constitutionally be enforced upon the states under the 14th Amendment?

If Alan Gura gets his way and has the 2nd Amendment applied to the States and federal judges start enforcing the 2nd Amendment upon the States, can we really expect the federal government to not then apply the same federal rules and regulations now used in the District of Columbia upon the people in every state in the union which are intentionally designed to disarm law abiding citizens under the guise of the people‘s general welfare?

I’m beginning to suspect Alan Gura’s real motives may not be as noble as he claims because those in the past who have pretended the 14th Amendment has made various parts of the federal Bill of Rights applicable to the States have done so for nefarious reasons and to enlarge the reach and power of the federal government while imposing their personal whims and fancies upon the people of the United States. One such activist being none other than Ruth Bader Ginsburg who began her assault upon the 14th Amendment during the 1970’s while volunteering for the ACLU and now sits on the U.S. Supreme Court, and has proven to be a domestic enemy of our written Constitution and the documented intentions and beliefs under which it was adopted.

Aside from the above, I think concerned Americans who support a citizen’s right to keep and bear arms for their own defense, defense of their family and in defense of the state and the country, ought to check their State’s declaration of rights and make certain there is appropriate wording that clearly protects this right for all citizens not convicted of a felony or other infamous crime who may then be subject to such restrictions as the Legislature may think proper. Bottom line is, each state must declare in their state Constitution something to the effect that:

no law shall be passed or enforced in this State abridging the right of citizens to keep and bear arms for their own defense and defense of the state excepting regulations which may be adopted and imposed upon persons who have been duly convicted of a felonious crime.

It’s time for those who support the right to keep and bear arms to make certain this right is protected in each state’s Constitution! Keep in mind the buck stops with We the People and We the People must take back our country from all those who are now acting in rebellion to our written constitutions, state and federal, and the documented intentions and beliefs under which these constitutions were adopted!

JWK


"In matters of power let no more be heard of confidence in men, but bind him down from mischief by the chains of the Constitution. ...Jefferson

Pericles
10-07-2009, 12:05 AM
I disagree with your reasoning on applying the bill of rights only to the federal government. Rights are retained by the people or the states for the purpose of restraining the federal government (10th). The now first is the only one of the BoR to mention Congress specifically, and the language of Article VI states that every judge in every state shall be bound by the Constitution.

Why would a state judge be bound by the Constitution if none of it applied to the states and only the federal government?

The design of the 2A is to constrain federal power by ensuring the people retained arms "little, if any, inferior" to the national army raised by the federal government that can be used in the form of a militia that was administered by the states until called forth either by the state or the state on behalf of the federal government.

This goes to the fundamental question of Constitutional study - is the federal government a creation of the states, or of the people?

johnwk
10-07-2009, 07:12 AM
I disagree with your reasoning on applying the bill of rights only to the federal government.


The documented intentions of the founders concerning the reason for the first ten proposed amendments is clearly stated in the Resolution of the First Congress Submitting Twelve Amendments to the Constitution; March 4, 1789 (http://avalon.law.yale.edu/18th_century/resolu02.asp)

They were intentionally designed to bind the hands of the federal government and “to prevent misconstruction or abuse of its powers” This of course is also emphasized in the Tenth Amendment which was specifically designed to preserve federalism and the people’s right within each State to be in charge of their own destiny without the federal government’s meddling.

It is very important to make the distinction between rights being secured under state Constitutions as they now are and the federal government looking to used the federal bill of rights, intended to restrict the federal government, being used by the federal government to gain entry into the various state borders and imposing its interpretations of the federal bill of rights upon the people in every state.

I wonder if Alan is happy with the federal government using the 1st Amendment to gain entry into every state in the union and attacking religion in every state in the Union. How about the 5th Amendment, intended to bind the hands of the federal government being used by the federal government to allow murderers, rapists, and other criminals to go free because of Miranda rights created out of thin air by federal justices, and not state legislatures where such power properly resides? Or, how about Roe vs. Wade in which federal judges unconstitutionally used both the 14th and Ninth Amendments , to subjugate State law, and impose its will upon the entire population of the united States. I wonder if Alan is happy with those types of decisions under which the federal government had no constitutionally authorized jurisdiction and yet has imposed its whims and fancies upon the entire population of the united States by pretending the federal bill of rights applies to the states rather than the federal government which it was intended to restrict.

Our founders very careful to protect federalism, our Constitution’s plan and did so by the adoption of the first ten amendments to our Constitution.



It is also important to recall that Madison states the following with regard to adopting the Tenth Amendment and federalism:


“It cannot be a secret to the gentlemen in this House, that, notwithstanding the ratification of this system of Government by eleven of the thirteen United States, in some cases unanimously, in others by large majorities; yet still there is a great number of our constituents who are dissatisfied with it; among whom are many respectable for their talents and patriotism, and respectable for the jealousy they have for their liberty, which, though mistaken in its object, is laudable in its motive. There is a great body of the people falling under this description, who at present feel much inclined to join their support to the cause of Federalism” ___See :Madison, June 8th, 1789, Amendments to the Constitution (http://memory.loc.gov/cgi-bin/ampage?collId=llac&fileName=001/llac001.db&recNum=226)


Let us not try to make the Constitution mean whatever we wish it to mean and follow the documented intentions and beliefs under which our Constitution was adopted.

JWK


Those who reject abiding by the intentions and beliefs under which our Constitution was agree to, as those intentions and beliefs may be documented from historical records, wish to remove the anchor and rudder of our constitutional system so they may then be free to “interpret” the Constitution to mean whatever they wish it to mean.

Pericles
10-07-2009, 08:39 AM
I read your post the first time. Then, I may assume your position is that the Constitution is not the supreme law of the land?

Article VI paragraph 2

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, any Thing in the Constitution or Laws of any State to the Contrary notwith-standing.

johnwk
10-07-2009, 10:10 PM
I read your post the first time. Then, I may assume your position is that the Constitution is not the supreme law of the land?

.


Please do not speak in riddles and please don't assume what my position is unless I have stated it.

Now, did you have a point to make in reference to what I posted?

Pericles
10-08-2009, 08:23 AM
The Anti Federalists were well aware of the power contained in Article VI - here is an example:

Written by Robert Yates

18 October 1787
To the Citizens of the State of New-York.

When the public is called to investigate and decide upon a question in which not only the present members of the community are deeply interested, but upon which the happiness and misery of generations yet unborn is in great measure suspended, the benevolent mind cannot help feeling itself peculiarly interested in the result.

.......

With these few introductory remarks, I shall proceed to a consideration of this constitution:

The first question that presents itself on the subject is, whether a confederated government be the best for the United States or not? Or in other words, whether the thirteen United States should be reduced to one great republic, governed by one legislature, and under the direction of one executive and judicial; or whether they should continue thirteen confederated republics, under the direction and controul of a supreme federal head for certain defined national purposes only?

.............

This government is to possess absolute and uncontroulable power, legislative, executive and judicial, with respect to every object to which it extends, for by the last clause of section 8th, article 1st, it is declared "that the Congress shall have power to make all laws which shall be necessary and proper for carrying into execution the foregoing powers, and all other powers vested by this constitution, in the government of the United States; or in any department or office thereof." And by the 6th article, it is declared "that this constitution, and the laws of the United States, which shall be made in pursuance thereof, and the 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, any thing in the constitution, or law of any state to the contrary notwithstanding." It appears from these articles that there is no need of any intervention of the state governments, between the Congress and the people, to execute any one power vested in the general government, and that the constitution and laws of every state are nullified and declared void, so far as they are or shall be inconsistent with this constitution, or the laws made in pursuance of it, or with treaties made under the authority of the United States. — The government then, so far as it extends, is a complete one, and not a confederation. It is as much one complete government as that of New-York or Massachusetts, has as absolute and perfect powers to make and execute all laws, to appoint officers, institute courts, declare offences, and annex penalties, with respect to every object to which it extends, as any other in the world. So far therefore as its powers reach, all ideas of confederation are given up and lost. It is true this government is limited to certain objects, or to speak more properly, some small degree of power is still left to the states, but a little attention to the powers vested in the general government, will convince every candid man, that if it is capable of being executed, all that is reserved for the individual states must very soon be annihilated, except so far as they are barely necessary to the organization of the general government.


......

It might be here shewn, that the power in the federal legislative, to raise and support armies at pleasure, as well in peace as in war, and their controul over the militia, tend, not only to a consolidation of the government, but the destruction of liberty. — I shall not, however, dwell upon these, as a few observations upon the judicial power of this government, in addition to the preceding, will fully evince the truth of the position.

...........

In a free republic, although all laws are derived from the consent of the people, yet the people do not declare their consent by themselves in person, but by representatives, chosen by them, who are supposed to know the minds of their constituents, and to be possessed of integrity to declare this mind.

In every free government, the people must give their assent to the laws by which they are governed. This is the true criterion between a free government and an arbitrary one. The former are ruled by the will of the whole, expressed in any manner they may agree upon; the latter by the will of one, or a few. If the people are to give their assent to the laws, by persons chosen and appointed by them, the manner of the choice and the number chosen, must be such, as to possess, be disposed, and consequently qualified to declare the sentiments of the people; for if they do not know, or are not disposed to speak the sentiments of the people, the people do not govern, but the sovereignty is in a few. Now, in a large extended country, it is impossible to have a representation, possessing the sentiments, and of integrity, to declare the minds of the people, without having it so numerous and unwieldly, as to be subject in great measure to the inconveniency of a democratic government.

.....

They will use the power, when they have acquired it, to the purposes of gratifying their own interest and ambition, and it is scarcely possible, in a very large republic, to call them to account for their misconduct, or to prevent their abuse of power.

These are some of the reasons by which it appears, that a free republic cannot long subsist over a country of the great extent of these states. If then this new constitution is calculated to consolidate the thirteen states into one, as it evidently is, it ought not to be adopted.

Though I am of opinion, that it is a sufficient objection to this government, to reject it, that it creates the whole union into one government, under the form of a republic, yet if this objection was obviated, there are exceptions to it, which are so material and fundamental, that they ought to determine every man, who is a friend to the liberty and happiness of mankind, not to adopt it. I beg the candid and dispassionate attention of my countrymen while I state these objections — they are such as have obtruded themselves upon my mind upon a careful attention to the matter, and such as I sincerely believe are well founded. There are many objections, of small moment, of which I shall take no notice — perfection is not to be expected in any thing that is the production of man — and if I did not in my conscience believe that this scheme was defective in the fundamental principles — in the foundation upon which a free and equal government must rest — I would hold my peace.

Brutus.

The entire letter may be found here: http://www.constitution.org/afp/brutus01.htm

Therefore, the BoR is put in place as the supreme law of the land, as part of the Constitution designed to limit the power of the federal government, but because of Article VI, also applies to every governmental entity in the United States.

Since the Marshall court, this has been a minority view at the SCOTUS, but if the majority is always right, laws are rather redundant .....

Notice that the now 1A is the only amendment in the BoR that mentions its scope is limited to a federal level. The language applying the 1A to the states passed the House, but was rejected by the Senate, and this Senate version is the version that was ratified as the 1A.

If you accept my line of reasoning, the 14th serves to do two things (1) Correct the record in applying Amendments 2 to 10 to the states which was the original intent, and (2) Extending the 1A to the states.

johnwk
10-08-2009, 07:04 PM
Therefore, the BoR is put in place as the supreme law of the land, as part of the Constitution designed to limit the power of the federal government, but because of Article VI, also applies to every governmental entity in the United States.

.

Therefore? Therefore what? You offer nothing to substantiate your conclusion but the fears expressed by the Anti-Federalists. And you offer nothing based upon fundamental principles of constitutional law to arrive at your conclusion.

In fact, the complaints and fears of the Anti-Federalists which you mention above, were answered in the Federalist Papers and insisted to be without foundation and not part of the proposed Constitution.

And this brings us to the following line of reasoning. If the Anti Federalist expressed the fears as found in the Anti-Federalist papers such as an unlimited legislative power lodged in the proposed government, and were against such powers being granted, and, the Federalists assured the Anti-Federalists that such an interpretation was not within the intended meaning of the proposed Constitution, who can be pointed to as being an advocate of granting the alleged an unlimited powers which were feared?

As a matter of fact the most fundamental rule of constitution law is stated as follows:

The fundamental principle of constitutional construction is that effect must be given to the intent of the framers of the organic law and of the people adopting it. This is the polestar in the construction of constitutions, all other principles of construction are only rules or guides to aid in the determination of the intention of the constitution’s framers

And so, without establishing that it was the intentions and beliefs of those who framed and ratified the Constitution to establish the kind of government which the Ant-Federalist feared, the conclusion you have arrived at is totally without foundation.


JWK



"On every question of construction [of the Constitution], carry ourselves back to the time when the Constitution was adopted, recollect the spirit manifested in the debates, and instead of trying what meaning may be squeezed out of the text, or invented against it, conform to the probable one in which it was passed."--Thomas Jefferson, letter to William Johnson, June 12, 1823, The Complete Jefferson, p. 322.

johnwk
10-09-2009, 06:21 AM
The question is, Is Alan Gura a wolf in sheep’s clothing?



Keep in mind that the people, in a number of states having placed the right to keep and bear arms in their State Constitution to restrict their state government from infringing upon this right, they went on to place this same restriction on the federal government by the adoption of the first ten amendments to our federal Constitution, the Second Amendment intended to prohibit the federal government from using its force to enter the states and infringing upon the right to keep and bear arms.

It should also be noted that one of the first ten amendments added to our federal Constitution, the Tenth Amendment, specifically announced and declared the preservation of federalism, our Constitution’s plan, intended to protect the right of the people, in each of the various states, to be in charge of determining their own destiny within their own State’s borders in matters which affected the lives, liberties, and properties of the people, and the internal order, improvement, and prosperity of the State as was mentioned in Federalist No. 45. In fact, the Tenth Amendment gave constitutional force and effect to the intentions expressed in Federalist No. 45!

“The powers delegated by the proposed Constitution to the federal government are few and defined. Those which are to remain in the State governments are numerous and indefinite. The former will be exercised principally on external objects, as war, peace, negotiation, and foreign commerce; with which last the power of taxation will, for the most part, be connected.

The powers reserved to the several States will extend to all the objects which, in the ordinary course of affairs, concern the lives, liberties, and properties of the people, and the internal order, improvement, and prosperity of the State.

Question is, why does Alan Gura work so feverishly to accomplish the “progressive’s goal” which is to eradicate federalism and create a federal dictatorial power allowing federal judges to enter the states under the 2nd Amendment and impose their “interpretations” of the right to keep and bear arms upon the people in every state in the Union, and thereby approve and dictate despotic rules and regulations concerning the right to keep and bear arms as necessary and proper regulations for the general welfare of the people of the united states, and will most certainly be approved by progressive federal judges to effectively disarm the people and dissolve the protection now afforded under State Constitutions? My guess is, Alan Gura is a progressive wolf in sheep’s clothing!

One of the biggest myths promoted by progressives, starting with the Warren Court, is the 14th Amendment created a legal path for the federal government to enter the States to impose the federal Bill of Rights upon the States. Perhaps Alan Gura would like to take the time and support his unsubstantiated opinions in this forum. I will be more than willing to enlighten him to the documented historical facts.


JWK



Those who reject abiding by the intentions and beliefs under which our Constitution was agree to, as those intentions and beliefs may be documented from historical records, wish to remove the anchor and rudder of our constitutional system so they may then be free to “interpret” the Constitution to mean whatever they wish it to mean.

johnwk
10-10-2009, 03:59 PM
SEE: Social Conservatives Mount Last-Ditch Effort to Stop Hate Crimes Bill (http://www.foxnews.com/politics/2009/10/09/social-conservatives-mount-ditch-effort-stop-hate-crime/)


But the real question is, under what constitutional authority does Congress act to make it a federal crime to assault people because of their sexual orientation?

What article, section, clause or amendment have the American people adopted in the federal Constitution to allow federal prosecutors for the first time to intervene in cases of violence perpetrated against gays.?

Seems to me the Tenth Amendment prohibits the federal government from sticking their noses in such matters. But I could be wrong and will anxiously await for some answers. I suspect the progressives are on the move once again with the 14th Amendment incorporation myth.


JWK


“The Constitution is a written instrument. As such, its meaning does not alter. That which it meant when adopted, it means now. “___ South Carolina v. United States, 199 U.S. 437 (1905)