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Matt Collins
02-21-2010, 12:52 AM
Which way do YOU think that the US Supreme Court should rule on the application of the 2nd Amendment to the State governments?


This is a tricky one because this is where libertarianism and Constitutionalism do not intersect. :)


Selected clips:


http://online.wsj.com/article/SB10001424052748704269004575073771717464954.html?m od=rss_Today%27s_Most_Popular




The court will consider March 2 whether the Constitution blocks states from restricting handguns. The case could further rework arms regulations in the aftermath of the court's 2008 decision to strike down a law for violating the Second Amendment for the first time.

hat decision invalidated the District of Columbia's handgun ban for infringing what the court called an "inherent right to self-defense." The capital's peculiar status as a federal enclave, however, left unclear the implications for state law. The Supreme Court will hear arguments over that question in challenges to handgun bans in Chicago and Oak Park, Ill., weighing whether the principle it set for Washington, D.C. also applies to states and local communities.

In a 1997 book, "A Matter of Interpretation," Justice Scalia wrote that he viewed "the Second Amendment as a guarantee that the federal government would not interfere with the right of the people to keep and bear arms."
Yet, this next passage gives court watchers some pause. "Of course," Justice Scalia continued, "properly understood, it is no limitation upon arms control by the states."


Now a claim to the contrary—that the Second Amendment does limit arms control by the states—is pending.



http://sg.wsj.net/public/resources/images/NA-BE400A_GUNS_NS_20100218212558.gif

Kludge
02-21-2010, 01:01 AM
I would prefer all rights in the amendments were incorporated to apply to state and even local governments, though I see the position as tyrannical and oppressive, but only against tyrannical voters & officials. ... I can swallow the dilemma.

purplechoe
02-21-2010, 01:33 AM
http://www.statesman.com/multimedia/dynamic/00101/WGS-Debra-Medina-GU_101027e.jpg

hotbrownsauce
02-21-2010, 02:27 AM
As the story says the 14th amendment has been used to apply Federal Laws to the States. Keeping with the tradition if the Justices believe the Federal Government can't deprive someone of their 2nd amendment right then it may well be applied to the State governments as well.... another power grab by the Federal Government.

As much as I don't like very tight gun regulations and would like to see them repealed I don't want the the Supreme Court (Federal Government) giving themselves the power to decide.

Baptist
02-21-2010, 03:12 AM
http://www.ronpaulforums.com/showthread.php?t=212698

RM918
02-21-2010, 03:25 AM
Unless the states are allowed to ignore other amendments in the constitution, I don't see why the 2nd is an exception.

kkassam
02-21-2010, 03:48 AM
Excellent question Matt, a sticky issue indeed. The expeditious libertarian in me would be quite happy to see the 2nd Amendment incorporated against the states through the 14th Amendment. If the majority opinion sounded like it had come from the pen of Randy Barnett, I would find it difficult to complain. However, the more cautious student of political economy inclines me to notice that there will doubtless be 'reasonable regulation' exceptions large enough to drive a truck through, and the decentralist in me shudders at the Federal Octopus wrapping it's tentacles further around the once-sovereign states.

nobody's_hero
02-21-2010, 04:39 AM
I would prefer all rights in the amendments were incorporated to apply to state and even local governments, though I see the position as tyrannical and oppressive, but only against tyrannical voters & officials. ... I can swallow the dilemma.

I agree with you on that, but I don't think it is going to happen. There are too many anti-gun folks in local and state governments who know how to work with the anti-gun folks in D.C. to see to it that tyrannical bans remain in place.

The best thing we have left, in my opinion, is to allow the local governments to ban guns and let Darwin sort it out. When the crime shoots up in those cities and states and all the productive liberty lovers move and take their tax dollars somewhere else, well, that'll serve those tyrants right for making their communities safe for criminals.

Fox McCloud
02-21-2010, 07:39 AM
I always thought that the 2nd amendment was a tad bit different than a few others in the fact that it's one of the few that does over-ride the State governments.

This is good and bad; if the Federal government is lax on gun-control, it'll likely end up being better than what we currently have, but if it decides to go gun-control crazy, well, we're toast.

Something tells me the Supreme Court will rule in favor of the States this time.

Southron
02-21-2010, 09:33 AM
If we are going to claim the US Constitution is sovereign over the states then how can we claim to defend states rights?

At that point I see no purpose in defending states at all and we might as well abolish the states and create a National Democracy.

Nullification and secession would be meaningless as well.

AParadigmShift
02-21-2010, 10:27 AM
If we are going to claim the US Constitution is sovereign over the states then how can we claim to defend states rights?

At that point I see no purpose in defending states at all and we might as well abolish the states and create a National Democracy.

Nullification and secession would be meaningless as well.

This.

If we, with one hand, grant the federal gov't its supra-constitutional misinterpretation of "due process" by way of the 14th Amendment to secure a Right against cumbersome state laws, we then concede with the other hand that the Bill of Rights, far from being a list of "further declaratory and restrictive clauses" is indeed, only another grant of power to the benefit of Leviathan.

:eek:

LibForestPaul
02-21-2010, 10:40 AM
Unless the states are allowed to ignore other amendments in the constitution, I don't see why the 2nd is an exception.

:)

Or maybe Georgia does have the authority to bring back slavery.

pcosmar
02-21-2010, 10:48 AM
I guess I see it from a different angle. and ask a couple questions,
Which States Ratified the Constitution or Joined the union with the 2nd amendment in place?
Did any sign on with stipulations or objections to the 2nd Amendment?

The way I see it," Rights", as the Declaration of Independence recognizes, transcend both the State and Federal governments.

We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness. — That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed,
They were to be untouchable.

jmdrake
02-21-2010, 10:58 AM
It's odd. Nowhere in the second amendment is the congress or any other branch of the federal government mentioned, yet somehow people think the 2nd amendment only applies to the federal government.

A bigger question is why if the second amendment only applies to weapons that the military does not use (basis of the Miller decision) then why can the government ban machine guns?

Matt Collins
02-21-2010, 11:31 AM
It's odd. Nowhere in the second amendment is the congress or any other branch of the federal government mentioned, yet somehow people think the 2nd amendment only applies to the federal government.But it's my understanding that it wasn't until the Incorporation Doctrine (http://en.wikipedia.org/wiki/Incorporation_doctrine) came into effect?


.

Matt Collins
02-21-2010, 11:59 AM
From a fairly well known attorney / Constitutional expert whom I will not cite because they did not give me permission to:


The 2A stands for the idea that gun regulation is up to state (including local) governments. The lawsuit asks the federal courts to assume a supervisory role. That isn't application of the 2A against state governments, it's an inversion of the 2A.

Here is another expert attorney in this field that will also remain anonymous:

From a state's rights perspective and placing the constitution into context that the states are sovereign and created it voluntarily, the entirety of the incorporation doctrine which has been used to apply the Bill of Rights to the states is wrong. We cannot and should not be tempted to destroy state sovereignty when a perceived "good" set of facts are pending as such temptation sets precedent for future damage of immeasurable scope.

.

Pericles
02-21-2010, 12:46 PM
It's odd. Nowhere in the second amendment is the congress or any other branch of the federal government mentioned, yet somehow people think the 2nd amendment only applies to the federal government.

A bigger question is why if the second amendment only applies to weapons that the military does not use (basis of the Miller decision) then why can the government ban machine guns?

Correct answer.

http://www.thenewamerican.com/index.php/usnews/constitution/2603-the-second-amendment-the-states-and-the-people

It all went wrong with Barron v. Baltimore when the SCOTUS took the language of the 1A in this 5A case and decided the BoR only applied to the federal government.

It was the wrong decision then, and is contrary to the statements of the founders and the debate in the federalist papers. That the Constitution applied to the States at all levels of government was clearly understood.

giddyup
02-21-2010, 12:54 PM
nm

Pericles
02-21-2010, 12:56 PM
But it's my understanding that it wasn't until the Incorporation Doctrine (http://en.wikipedia.org/wiki/Incorporation_doctrine) came into effect?


.

In 1791 William Rawle (http://www.temple.edu/lawschool/library/rawle.htm) was appointed as a United States Attorney for Pennsylvania by President George Washington, a post he held for more than eight years. He had also been George Washington's candidate for the nation's first attorney general, but Rawle declined the appointment. Rawle's "A View of the Constitution of the United States of America" (1829), was adopted as a constitutional law textbook at West Point and other institutions. He describes the scope of the Second Amendment's right to keep and bear arms. (Rawle's comments quoted from Halbrook, Stephen P., That Every Man Be Armed: The Evolution of a Constitutional Right, University of New Mexico Press, 1984.)

"the powers not delegated to congress by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people[quoting the 10th Amendment]. What we are about to consider are certainly not delegated to congress, nor are they noticed in the prohibitions to states; they are therefore reserved either to the states or to the people. Their high nature, their necessity to the general security and happiness will be distinctly perceived."

"In the second article, it is declared, that a well regulated militia is necessary to a free state; a proposition from which few will dissent. Although in actual war, in the services of regular troops are confessedly more valuable; yet while peace prevails, and in the commencement of a war before a regular force can be raised, the militia form the palladium of the country. They are ready to repel invasion, to suppress insurrection, and preserve the good order and peace of government. That they should be well regulated, is judiciously added. A disorderly militia is disgraceful to itself, and dangerous not to the enemy, but to its own country. The duty of the state government is, to adopt such regulation as will tend to make good soldiers with the least interruptions of the ordinary and useful occupations of civil life. In this all the Union has a strong and visible interest."



"The corollary, from the first position, is that the right of the people to keep and bear arms shall not be infringed."



"The prohibition is general. No clause in the Constitution could by any rule of construction be conceived to give to congress a power to disarm the people. Such a flagitious attempt could only be made under some general pretence by a state legislature. But if in any blind pursuit of inordinate power, either should attempt it, this amendment may be appealed to as a restraint on both."



"In most of the countries of Europe, this right does not seem to be denied, although it is allowed more or less sparingly, according to circumstances. In England, a country which boasts so much of its freedom, the right was secured to protestant subjects only, on the revolution of 1688; and is cautiously described to be that of bearing arms for their defence,'suitable to their conditions, and as allowed by law.' An arbitrary code for the preservation of game in that country has long disgraced them. A very small proportion of the people being permitted to kill it, though for their own subsistence; a gun or other instrument, used for that purpose by an unqualified person, may be seized and forfeited. Blackstone, in whom we regret that we cannot always trace expanded principles of rational liberty, observes however, on this subject, that the prevention of popular insurrections and resistance to government by disarming the people, is oftener meant than avowed, by the makers of forest and game laws."

Ethek
02-21-2010, 01:02 PM
http://www.statesman.com/multimedia/dynamic/00101/WGS-Debra-Medina-GU_101027e.jpg

Nice XDm. The black one is in my sig. Sometimes I wish I had gotten the one with the stainless slide. Looks good on her.

KCIndy
02-21-2010, 01:20 PM
So, if the Second Amendment does NOT limit the individual states from restricting firearm ownership, what about the rest of the Bill of Rights?

If each state can override the so-called guarantees of freedom listed in the Bill of Rights, then does that mean Indiana (my state) can limit my right of peaceable assembly? Can it tell me to forget about that "Freedom of Religion" nonsense?

If I travel to Ohio, do I suddenly find myself without any Constitutional guarantee against draconian fines or cruel or unusual punishment? ("I saw you jaywalk, sir. That'll be four years in prison and a million dollar fine.")

I understand there's supposed to be some legal splitting of fine hairs here, but until someone can explain WHY in greater detail, I will remain at a loss as to why the rest of the Bill of Rights seems to apply uniformly and without question, but not the Second Amendment.

Pericles
02-21-2010, 02:17 PM
So, if the Second Amendment does NOT limit the individual states from restricting firearm ownership, what about the rest of the Bill of Rights?

If each state can override the so-called guarantees of freedom listed in the Bill of Rights, then does that mean Indiana (my state) can limit my right of peaceable assembly? Can it tell me to forget about that "Freedom of Religion" nonsense?

If I travel to Ohio, do I suddenly find myself without any Constitutional guarantee against draconian fines or cruel or unusual punishment? ("I saw you jaywalk, sir. That'll be four years in prison and a million dollar fine.")

I understand there's supposed to be some legal splitting of fine hairs here, but until someone can explain WHY in greater detail, I will remain at a loss as to why the rest of the Bill of Rights seems to apply uniformly and without question, but not the Second Amendment.

Curious line of reasoning isn't it? If the BoR only applies to the federal government then it is OK if the states have laws that do the following:

Quarter soldiers in homes (3A)

Police may search without a warrant and probable cause is not required (4A)

States may dispense with grand juries, you may be tried again for the same crime if the state does not like the verdict first time around, and you may be called to testify against yourself in a state trial (5A)

The state can take as long as it wishes to try you, and you may have the aid of counsel, if allowed by law (6A)

And so on ... especially before the 1860s, state courts ruled that the Constitution applied to the states ...

AParadigmShift
02-21-2010, 03:29 PM
That the Constitution applied to the States at all levels of government was clearly understood.

I haven't looked at the link yet, but I do not understand this comment.

The Constitution was advertised as a document of limited and enumerated powers. The addition of the Bill of Rights in 1791, two years after the adoption of the Constitution proper, was thought to be superfluous, even redundant, as presumably, the federal gov't could not have moved in 1789 to abridge Free Speech anymore that it could have after being amended in 1791. It had no will to do so, as it had no authority to act.

How those "further declaratory and restrictive clauses" (http://www.billofrights.org/) now become a grant of power to the federal gov't to dictate state behavior is beyond me.

That individual states can be egregious violators of Natural Law Rights is a given, but how were such things to be rectified?

:confused:

Pericles
02-21-2010, 04:30 PM
I haven't looked at the link yet, but I do not understand this comment.

The Constitution was advertised as a document of limited and enumerated powers. The addition of the Bill of Rights in 1791, two years after the adoption of the Constitution proper, was thought to be superfluous, even redundant, as presumably, the federal gov't could not have moved in 1789 to abridge Free Speech anymore that it could have after being amended in 1791. It had no will to do so, as it had no authority to act.

How those "further declaratory and restrictive clauses" (http://www.billofrights.org/) now become a grant of power to the federal gov't to dictate state behavior is beyond me.

That individual states can be egregious violators of Natural Law Rights is a given, but how were such things to be rectified?

:confused:

The Anti - Federalists recognized the power of the supremacy clause in Section VI, so the purpose of the BoR was to place those restrictions and partial enumeration of rights into "the supreme law of the land .... every Judge in every State shall be bound thereby" anything in any law or Constitution of any State not-withstanding.

Nunn v. State of Georgia (1846) the Georgia supreme court ruled:

Nor is the right involved in this discussion less comprehensive or valuable: "The right of the people to bear arms shall not be infringed." The right of the whole people, old and young, men, women and boys, and not militia only, to keep and bear arms of every description, not such merely as are used by the militia, shall not be infringed, curtailed, or broken in upon, in the smallest degree; and all this for the important end to be attained: the rearing up and qualifying a well-regulated militia, so vitally necessary to the security of a free State. Our opinion is, that any law, State or Federal, is repugnant to the Constitution, and void, which contravenes this right, originally belonging to our forefathers, trampled under foot by Charles I. and his two wicked sons and successors, reestablished by the revolution of 1688, conveyed to this land of liberty by the colonists, and finally incorporated conspicuously in our own Magna Charta! We are of the opinion, then, that so far as the act of 1837 seeks to suppress the practice of carrying certain weapons secretly, that it is valid, inasmuch as it does not deprive the citizen of his natural right of self-defence, or of his constitutional right to keep and bear arms. But that so much of it, as contains a prohibition against bearing arms openly, is in conflict with the Constitution, and void.

Cockrum v. Texas (1859)

"The right of a citizen to bear arms, in lawful defense of himself or the State, is absolute. He does not derive it from the State government. It is one of the "high powers" delegated directly to the citizen, and 'is excepted out of the general powers of government.' A law cannot be passed to infringe upon or impair it, because it is above the law, and independent of the lawmaking power."

State courts are using the BoR to strike down state laws they find to be in conflict with the Constitution.

And there is the last and ultimate check on any misuse of government power - the militia. Note the following quote is not limited to the federal government:

"Whereas civil rulers, not having their duty to the people duly before them, may attempt to tyrannize, and as military forces, which must be occasionally raised to defend our country, might pervert their power to the injury of their fellow citizens, the people are confirmed by the article in their right to keep and bear their private arms."

Tench Coxe

jmdrake
02-21-2010, 05:18 PM
From a fairly well known attorney / Constitutional expert whom I will not cite because they did not give me permission to:


The 2A stands for the idea that gun regulation is up to state (including local) governments. The lawsuit asks the federal courts to assume a supervisory role. That isn't application of the 2A against state governments, it's an inversion of the 2A.


Here is another expert attorney in this field that will also remain anonymous:


From a state's rights perspective and placing the constitution into context that the states are sovereign and created it voluntarily, the entirety of the incorporation doctrine which has been used to apply the Bill of Rights to the states is wrong. We cannot and should not be tempted to destroy state sovereignty when a perceived "good" set of facts are pending as such temptation sets precedent for future damage of immeasurable scope.

If you put 5 constitutional attorneys in the room and ask them the same question you get five answers. Anyway a true "strict constructionist" would disagree with both of the attorney's you quoted. Going from the text of the bill of right the phrase "Congress shall pass no law" is in the first amendment, but absent from the second. I forget what doctrine of statutory interpretation covers this, but basically if you have two similar parts of a statute, and certain words are left out of one part, you assume that those words were left out for a reason. So going by the "four corners" of the text (only looking at what's in the text and not going to legislative history), there's a strong argument to be made that the founders didn't want to allow any infringement of the 2nd amendment by any level of government. And once you go out of the 4 corners of the document, there's enough disputed history on both sides to say all sorts of things.

Matt Collins
02-21-2010, 06:45 PM
So going by the "four corners" of the text (only looking at what's in the text and not going to legislative history), Except that not attempting to ascertain why the text came about into law is irresponsible I would argue. Knowing the circumstances around how and for what reason it was created can be exceptionally insightful into attempting to determine both the original meaning and the original intent of the law. Ignoring the history would be akin to having a conversation with someone with that had no body language and spoke in monotone; yes information would be conveyed, but there would be critical ancillary information that would not be received that would further one's understanding of the message being conveyed.



there's a strong argument to be made that the founders didn't want to allow any infringement of the 2nd amendment by any level of government. I completely agree, but didn't the State constitutions in existence at the time already have protections from the government infringing on the right to keep and bear arms?


.

AParadigmShift
02-21-2010, 07:06 PM
Pericles, first off, fun discussion :) Secondly, I should let you know where I'm arguing from: I do not consider the Constitution a Natural Law instrument - it is not; nor do I consider it very libertarian in its makeup.


The Anti - Federalists recognized the power of the supremacy clause in Section VI, so the purpose of the BoR was to place those restrictions and partial enumeration of rights into "the supreme law of the land .... every Judge in every State shall be bound thereby" anything in any law or Constitution of any State not-withstanding.

Free Speech is fresh on my mind due to another project, so you'll have to forgive my references to it, but these brief points are germane to the topic at hand.

It was James Madison who urged the First Congress that "it was necessary that [free speech] be secured against the State Governments," though his pleas availed him nothing; and Jefferson, the undoubted champion of both free speech and a free press wrote in 1804 to Abigail Adams:



"While we deny that Congress have a right to controul the freedom of the press, we have ever asserted the rights of the states, and their exclusive right to do so."

Even as late as 1922, the Court in Prudential Ins. Co. v Cheek held that the Constitution "imposes upon the States no obligation to confer upon those within their jurisdiction. . . the right of free speech."

How is it that such "fundamental" Rights, enshrined against federal interference by way of the First Amendment, were considered by a preeminent Founder and SCOTUS to be yet manipulated through state legislatures by [presumably] due process?

If the Bill of Rights was intended to quit the appetites of states against devouring Rights by granting power to the federal gov't to check said states, how did a man as clever as Jefferson miss it?


Nunn v. State of Georgia (1846) the Georgia supreme court ruled:

Nor is the right involved in this discussion less comprehensive or valuable: "The right of the people to bear arms shall not be infringed." The right of the whole people, old and young, men, women and boys, and not militia only, to keep and bear arms of every description, not such merely as are used by the militia, shall not be infringed, curtailed, or broken in upon, in the smallest degree; and all this for the important end to be attained: the rearing up and qualifying a well-regulated militia, so vitally necessary to the security of a free State. Our opinion is, that any law, State or Federal, is repugnant to the Constitution, and void, which contravenes this right, originally belonging to our forefathers, trampled under foot by Charles I. and his two wicked sons and successors, reestablished by the revolution of 1688, conveyed to this land of liberty by the colonists, and finally incorporated conspicuously in our own Magna Charta! We are of the opinion, then, that so far as the act of 1837 seeks to suppress the practice of carrying certain weapons secretly, that it is valid, inasmuch as it does not deprive the citizen of his natural right of self-defence, or of his constitutional right to keep and bear arms. But that so much of it, as contains a prohibition against bearing arms openly, is in conflict with the Constitution, and void.

It should be clarified that Nunn moves from "The right of the people . . ." to a more narrow definition in the next paragraph:



We are of the opinion, then, that so far as the act of 1837 seeks to suppress the practice of carrying certain weapons secretly, that it is valid, inasmuch as it does not deprive the citizen of his natural right of self- defence, or of his constitutional right to keep and bear arms. But that so much of it, as contains a prohibition against bearing arms openly, is in conflict with the Constitution, and void...

If the Right was once all encompassing - "people, old and young, men, women and boys" - and inalienable per the 2nd Amendment of the Constitution as Nunn would have us understand, HOW DID IT BECOME SO VERY NARROW?


Cockrum v. Texas (1859)

"The right of a citizen to bear arms, in lawful defense of himself or the State, is absolute. He does not derive it from the State government. It is one of the "high powers" delegated directly to the citizen, and 'is excepted out of the general powers of government.' A law cannot be passed to infringe upon or impair it, because it is above the law, and independent of the lawmaking power."

And yet by 1872, the same Texas court in English, began to severely qualify this absolute Right.


"Whereas civil rulers, not having their duty to the people duly before them, may attempt to tyrannize, and as military forces, which must be occasionally raised to defend our country, might pervert their power to the injury of their fellow citizens, the people are confirmed by the article in their right to keep and bear their private arms."

Tench Coxe


Well, Amen to that.

Pericles
02-21-2010, 07:29 PM
Your two examples quoting the founders, are rights mentioned in the 1A, which specifically states "Congress shall mak no law ..." This is where the current group of states rights and the SCOTUS had it right - the 1A is clearly a restriction on the federal government, the other amendments are not so restricted.

The SCOTUS went off track in applying the standards of the 1A to a 5A case.

Things get really off track during the period of Reconstruction and afterward as the militias of the former Confederate states are disbanded, and laws originally designed to disarm former Confederates, are applied against the newly freed slaves after elections are finally held in the states of the former Confederacy.

Thus, we see the first effects of a gun control regimen - to disarm those that the government does not like in a series of laws designed to take away the rights of a minority and leaving them without the means of self defense or any other recours against onerous laws designed to steal their liberties.

The concept having worked so well in the South, it was then applied against labor organizers in the industrial states. At this time we also see the first state laws against private armed bodies, and other measures that now constitute the anti - militia laws of various states.

We are here at this juncture, as we have arrived at the other losses of liberty as a result of a failure of the SCOTUS to enforce the Constitution as written, which was supposed to be rectified by the 14A. Had the system worked, that would never had been necessary.

Pericles
02-21-2010, 07:42 PM
Except that not attempting to ascertain why the text came about into law is irresponsible I would argue. Knowing the circumstances around how and for what reason it was created can be exceptionally insightful into attempting to determine both the original meaning and the original intent of the law. Ignoring the history would be akin to having a conversation with someone with that had no body language and spoke in monotone; yes information would be conveyed, but there would be critical ancillary information that would not be received that would further one's understanding of the message being conveyed.


I completely agree, but didn't the State constitutions in existence at the time already have protections from the government infringing on the right to keep and bear arms?



Most of the 13 original states had written state constitutions between 1776 and the ratification of the BoR. CT and RI were still operating under their colonial charters (CT until 1818 for its first state constitution, and RI in 1841).

Most RKBA provisions in state constitutions, went in after the adoption of the BoR.

jmdrake
02-21-2010, 07:45 PM
Except that not attempting to ascertain why the text came about into law is irresponsible I would argue. Knowing the circumstances around how and for what reason it was created can be exceptionally insightful into attempting to determine both the original meaning and the original intent of the law. Ignoring the history would be akin to having a conversation with someone with that had no body language and spoke in monotone; yes information would be conveyed, but there would be critical ancillary information that would not be received that would further one's understanding of the message being conveyed.


Matt, please read this article about why Justice Scalia by and large rejects the use of legislative history.

http://www.princeton.edu/~lawjourn/Spring98/schmidt.html

Legislative history is often conflicting and is the quickest way to an activist judiciary because, after all, you can always find some legislative history to back up your position no matter how far it is from the text of the statute.

If congress (or the drafters of the constitution) want a law to mean something they should (or should have) said it in the text. How hard is it to say "Congress shall pass no law"? How hard is it to say "This only applies to the federal government. The states can restrict guns as much as they please"? The bill of rights is a simple document and can be simply understood.



I completely agree, but didn't the State constitutions in existence at the time already have protections from the government infringing on the right to keep and bear arms?
.

Sure. But that cuts both ways. By putting the phrase "congress shall pass no law" in the first amendment, the drafters were arguably reserving a role for the states to restrict speech and religion. Perhaps they saw no reason to reserve such a role in the 2nd amendment because they had no intent to restrict gun rights themselves?

Anyway, I'm a bit wary of those who seem too eager to sacrifice personal liberty on the alter of "states rights". The 10th amendment may be a useful tool to block and all powerful federal state, but I would not want to see that replaced by 50 all powerful local states. (Yeah I know. We disagree on this. I also disagree with the idea that public referendums are a bad think and commented on your blog. I don't know if you saw that or not).

Matt Collins
02-21-2010, 07:45 PM
Threads like this make me love RPF even that much more because I get an education, see many different points of view, and also force myself to be able to articulate certain things.

RPF is like a knowledge depository for stuff like this.

.

Pericles
02-21-2010, 08:14 PM
Threads like this make me love RPF even that much more because I get an education, see many different points of view, and also force myself to be able to articulate certain things.

RPF is like a knowledge depository for stuff like this.


This is the RPF at its best.

Philosophically, I'm with the "states rights" folks, but we have to go with the Constitution we have. I think it would have been a better case law for the country if the 2A and on down the line applied to the states via the supremacy clause in Article VI, rather than via the 14A. I consider the 14A to be one of the cornerstones of the expansion of federal power at the detriment to the states and the country, but it is there.

I'd say a literal read of the 14A leads to the result of the federal court system holding the states to the standard that if it is legal in one state, it is legal in all. And that tears out the heart of federalism. That would apply not only to the BoR, but any state law now becomes subject to federal review.

Icymudpuppy
02-21-2010, 08:59 PM
In the military, there is a concept regarding standing orders in that a junior commander may add to, but not take away from any standing order of a superior. Thus, if a General states that all soldiers under his command must wear at minimum their combat uniform in formation, a Captain cannot tell them they can downgrade to Physical fitness uniform, but could tell them to upgrade to their dress uniform.

In the same token, if the federal government supposedly is under the command of the states, and the states are under command of the people, the states cannot take away any freedom that the people haven't taken from themselves, and the Feds cannot take any freedom that the states haven't taken away from themselves. Also, just as a private cannot a captain what to do, and a captain cannot tell a general what to do, the Feds cannot tell the states what to do, and the states cannot tell the people what to do. The states can only arbitrate conflicts between individuals, and the feds can only arbitrate conflicts between states.

Yes, I know the constitution disagrees with me on this. It is my own opinion. As long as I'm dreaming, I'd like to be free of death and taxes.

Anti Federalist
02-21-2010, 09:09 PM
I would prefer all rights in the amendments were incorporated to apply to state and even local governments, though I see the position as tyrannical and oppressive, but only against tyrannical voters & officials. ... I can swallow the dilemma.


That ^^^

Live_Free_Or_Die
02-21-2010, 10:01 PM
nt

Matt Collins
02-21-2010, 11:33 PM
Matt, please read this article about why Justice Scalia by and large rejects the use of legislative history.

http://www.princeton.edu/~lawjourn/Spring98/schmidt.html (http://www.princeton.edu/%7Elawjourn/Spring98/schmidt.html)
Fascinating, thanks for sharing. I read about half of it, but enough to get the point. I definitely think there is truth there and validity, but I sitll also think that there is truth and validity to understanding the legislative history. But then again my legal education is currently lacking (hopefully to change soon). ;)





By putting the phrase "congress shall pass no law" in the first amendment, the drafters were arguably reserving a role for the states to restrict speech and religion.Right because if I understand correctly there were indeed state churches at the time.
Perhaps they saw no reason to reserve such a role in the 2nd amendment because they had no intent to restrict gun rights themselves?Except that the Constitution is a negative authority. Remember that role was clearly the purview of the States because those powers were not delegated to the federal government. It clearly says when it restricts the State governments (Art I Sec 10 (http://topics.law.cornell.edu/constitution/articlei#section10)). If it restricts the State governments in the BoR why doesn't it clearly say so like it does in Art I Sec 10?




Anyway, I'm a bit wary of those who seem too eager to sacrifice personal liberty on the alter of "states rights". The 10th amendment may be a useful tool to block and all powerful federal state, but I would not want to see that replaced by 50 all powerful local states. (Yeah I know. We disagree on this.

Again to requote the previously cited anonymous attorney:
We cannot and should not be tempted to destroy state sovereignty when a perceived "good" set of facts are pending as such temptation sets precedent for future damage of immeasurable scope.


And as I've mentioned with your rationale taken to the logical conclusion it would be ok if the UN was given more power so it could secure liberty. :(



I also disagree with the idea that public referendums are a bad think and commented on your blog. I don't know if you saw that or not).No, I didn't see it until just now (unfortunately the CFL doesn't alert me when people comment on my blog.

Very good points in there that I had not previously considered.



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Matt Collins
02-21-2010, 11:35 PM
This is the RPF at its best.
Absolutely brilliant discussion on all sides here. I'm getting my brain fill for sure! :)


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RonPaulCult
02-22-2010, 12:04 AM
I'm all for states' rights but that has nothing to do with this issue.

The right to protect yourself, your family and your property is a right that you were born with. It is a right nobody and certainly NO government can take away from you. Our founders believed God gave you this right. So the idea that California or Pennsylvania can take this right away from you because of states' rights is ridiculous.

If you believe in natural God given rights (and I'm sure most if not all of you do) then this is a simple question. HELL NO - the states have no authority to put into place any of these laws. Nor does any government.

Matt Collins
02-22-2010, 12:45 AM
The right to protect yourself, your family and your property is a right that you were born with. It is a right nobody and certainly NO government can take away from you. Our founders believed God gave you this right. So the idea that California or Pennsylvania can take this right away from you because of states' rights is ridiculous. I dont think anyone is arguing that.


If you believe in natural God given rights (and I'm sure most if not all of you do) then this is a simple question. HELL NO - the states have no authority to put into place any of these laws. Nor does any government.Except the question at hand is whether the federal government has the authority to tell the State governments what the can and cannot do in this regard.


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Pericles
02-22-2010, 12:46 AM
Right because if I understand correctly there were indeed state churches at the time. Except that the Constitution is a negative authority. Remember that role was clearly the purview of the States because those powers were not delegated to the federal government. It clearly says when it restricts the State governments (Art I Sec 10 (http://topics.law.cornell.edu/constitution/articlei#section10)). If it restricts the State governments in the BoR why doesn't it clearly say so like it does in Art I Sec 10?



The answer is in the preamble to the BoR

The Preamble to The Bill of Rights
Congress of the United States
begun and held at the City of New-York, on
Wednesday the fourth of March, one thousand seven hundred and eighty nine.
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 ensure the beneficent ends of its institution.
RESOLVED by the Senate and House of Representatives of the United States of America, in Congress assembled, two thirds of both Houses concurring, that the following Articles be proposed to the Legislatures of the several States, as amendments to the Constitution of the United States, all, or any of which Articles, when ratified by three fourths of the said Legislatures, to be valid to all intents and purposes, as part of the said Constitution; viz.
ARTICLES in addition to, and Amendment of the Constitution of the United States of America, proposed by Congress, and ratified by the Legislatures of the several States, pursuant to the fifth Article of the original Constitution.


The 2A and 9A are a declaratory clauses, while most of the BoR are restrictive clauses.

Thus the 2A is the declaration of a right which shall not be infringed [period] It would be unneeded to say shall not be infringed by Congress and the States, as that could be misconstrued that some other entity might be able to infringe on that right.

Live_Free_Or_Die
02-22-2010, 12:48 AM
nt

driege
02-22-2010, 02:01 AM
There has been some debate in here about whether the Bill of Rights was meant to be restrictive of the federal government or create rights for the people. I contend that it is neither. Rather, the Bill of Rights is written recognition of our natural rights that have been endowed to us by our Creator. When states ratified the Constitution and its Amendments, they affirmed this belief.

While I don't think that the federal government is "supreme" over the states, I think that by ratifying the Bill of Rights, the states assented to the existence of those rights. Ideally, state courts should strike down any gun control laws because they violate the 2nd amendment (having been agreed to by the states). When they fail to do this, I think that it is appropriate for the Supreme Court to make a ruling, for it was in a federal document (the Constitution) that the states assented to the rights.

Some will argue that this type of incorporation doctrine is what leads to terrible decisions like Roe v. Wade. This strikes me as ridiculous. Roe v. Wade came about because of a terrible invention of a right to "privacy", which even if it were to exist, I am not sure how abortion would qualify. Sure, Roe v. Wade could not have been applied to the states if not for incorporation, but that isn't why it was a terrible decision. It is perfectly reasonable for rights actually declared in the Constitution (free speech, assembly, no illegal search/seizure, bear arms) to be applied to the states - once again, they assented to these rights. The problem with Roe v. Wade was that it created a right found nowhere in the Constitution and THEN applied it to the states. Of abortion, the Constitution speaks not.

I'm sure some will disagree with this post, but I think it is a logically consistent way to interpret the Constitution and BoR.

LibForestPaul
02-22-2010, 08:08 AM
Originally Posted by jmdrake View Post
Anyway, I'm a bit wary of those who seem too eager to sacrifice personal liberty on the alter of "states rights". The 10th amendment may be a useful tool to block and all powerful federal state, but I would not want to see that replaced by 50 all powerful local states. (Yeah I know. We disagree on this.
>>Again to requote the previously cited anonymous attorney:
>>We cannot and should not be tempted to destroy state sovereignty when a perceived "good" set of facts are pending as such temptation sets precedent for future damage of immeasurable scope.

One can always move to a different state, move their money, their profession, and their business. If a state was not respecting peoples natural rights, how long would it last?

Quartering soldiers, only a federal issue, since only United States government can have standing army.

LibForestPaul
02-22-2010, 08:13 AM
The problem with Roe v. Wade was that it created a right found nowhere in the Constitution and THEN applied it to the states. Of abortion, the Constitution speaks not.
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created a right found nowhere in the Constitution?
So, if the constitution does not enumerate a natural right it does not exist?

Of abortion, the Constitution speaks not. Or RPGs, or body armor...

Q: So, what is your view of miscegenation laws. If a state prohibits a colored from marrying a white or oriental, and the state supreme court affirms this decision...
Does said state have to recognize interracial from other states?
Can the individuals appeal to the SCOTUS?
Can the SCOTUS affirm individuals complaint and order the state to recognize the marriage?

fisharmor
02-22-2010, 09:11 AM
I don't agree at all with using the 10th Amendment to nullify the 2nd.


the right of the people to keep and bear Arms, shall not be infringed.

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.

I think it's simple. The 10th Amendment states that the constitution not only delegates powers to the federal government, it also prohibits powers to the states.

The 2nd Amendment, via use of the passive voice, clearly prohibits the power to infringe on RKBA to everyone.


Q: So, what is your view of miscegenation laws. If a state prohibits a colored from marrying a white or oriental, and the state supreme court affirms this decision...
Does said state have to recognize interracial from other states?
Can the individuals appeal to the SCOTUS?
Can the SCOTUS affirm individuals complaint and order the state to recognize the marriage?

I see your point. Yes, these are all important issues to answer. If we had a history of SCOTUS concentrating on the text, and not inventing new rights and expanding government power through tortured twisting of definitions and logic, then we might be able to spend some energy getting our legislators to do something about them.

There's a system and a process for answering those questions: the republican process. No, I don't think individuals can appeal to the courts to get what they want, nor do I believe that was ever the intent. By constitutionally forcing these questions to be answered in a republican fashion at a local level, the individual not only has more of a chance of getting change, but the local society also has more of a chance of resisting that change if they see fit.

driege
02-22-2010, 10:30 AM
created a right found nowhere in the Constitution?
So, if the constitution does not enumerate a natural right it does not exist?

Of abortion, the Constitution speaks not. Or RPGs, or body armor...



It's not that a right cannot exist without being enumerated in the Constitution. It just is not Constitutionally protected. The Supreme Court should not be enforcing it. That is judicial activism.

As for miscegenation laws, I do not agree with them (obviously). That doesn't mean that they are unconstitutional. There are a lot of terrible laws that are not specifically prohibited in the Constitution.

Elwar
02-22-2010, 11:45 AM
So...if the states can have their own laws concerning the 2nd Amendment...can they have their own laws concerning the 16th Amendment?

Perhaps pass a state law against the collection of taxes on income?

Southron
02-22-2010, 08:12 PM
Nullification or secession are remedies for breach of contract.

Unfortunately the contract was breached on the federal government end well over 100 years ago.

Matt Collins
02-24-2010, 12:00 AM
Roe v. Wade came about because of a terrible invention of a right to "privacy", which even if it were to exist, I am not sure how abortion would qualify. The problem with Roe v. Wade was that it created a right found nowhere in the Constitution and THEN applied it to the states. Of abortion, the Constitution speaks not.Judge Napolitano discusses how the right to privacy and the right to be left alone are established in the 4th Amendment.

Remember though that all rights are reserved unless otherwise noted. Nowhere does the federal government usurp the right to privacy in the Constitution without due process (and maybe the census). Therefore, per the 10th, that right is up to the State governments, or to the people.


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Matt Collins
03-01-2010, 03:41 PM
Allegedly CSPAN is covering a panel on this right now.

Promontorium
03-01-2010, 04:34 PM
That any state is able to restrict any of the Bill of rights is anti-liberty.

States cannot ignore federal law. Why, by any argument, are they allowed to ignore the few laws that are written as explicit rights?

Should this mean a state could re-enact slavery?


If you think the bill of rights doesn't 100% apply to everyone, you're pro slavery.

Matt Collins
03-01-2010, 04:38 PM
If you think the bill of rights doesn't 100% apply to everyone, you're pro slavery.I hope to God this is sarcasm! :mad:



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Promontorium
03-01-2010, 04:48 PM
There has been some debate in here about whether the Bill of Rights was meant to be restrictive of the federal government or create rights for the people. I contend that it is neither. Rather, the Bill of Rights is written recognition of our natural rights that have been endowed to us by our Creator. When states ratified the Constitution and its Amendments, they affirmed this belief.


Preambe to the Bill of Rights:

"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"


Simply Translated: States demanded "declaratory" and "restrictive" clauses in order to prevent misconstruction or abuse of the Constitution's powers.

It's not really a debate as to why the bill of rights were written. They were commands against the Constitution in defense of rights.

It is impossible for a piece of paper to "create rights" but it is as you said, based on natural rights. However, the bill of rights was not the end all for our rights, it was only a short list, a reminder as it were. Those against the bill of rights believed it would be used in the opposite manner of its intention, that is, used as a list of exactly what the government can't do, granting everything else to be up for grabs. Unfortunately that is what has happened.


While I don't think that the federal government is "supreme" over the states

Yeah it is. You might think it shouldn't be. You might think it isn't functioning in that way. But the Constitution is the "supreme law", and you'd need an amendment to the Constitution to change that.

Article 6 Clause 2 of the U.S. Constitution.

"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 notwithstanding."

Promontorium
03-01-2010, 04:52 PM
I hope to God this is sarcasm! :mad:.

Not exactly sarcasm, but it was definitely satirical.

pappy
03-01-2010, 05:40 PM
"The prohibition is general. No clause in the Constitution could by any rule of construction be conceived to give to congress a power to disarm the people. Such a flagitious attempt could only be made under some general pretence by a state legislature. But if in any blind pursuit of inordinate power, either should attempt it, this amendment may be appealed to as a restraint on both."



Heheh agree with most of these quotes but was most impressed with this word. :-)

I love that word--never heard it before.

furface
03-02-2010, 12:48 PM
The case should never have gone to the Supreme Court. The 14th Amendment clearly makes Heller apply to states, so outright bans on guns are unconstitutional.

Having said that, state rights again are being quashed by a Supreme Court that thinks the 10th Amendment doesn't exist, and in general has a problem interpreting plain English.

Unfortunately the 2nd Amendment has been turned into a mere bone from the federal government granting slaves the right to posses pea shooters when the real and original power of it had to do with the creation of militias to counter federal power.

Matt Collins
03-02-2010, 01:13 PM
The case should never have gone to the Supreme Court. The 14th Amendment clearly makes Heller apply to states, so outright bans on guns are unconstitutional.

Having said that, state rights again are being quashed by a Supreme Court that thinks the 10th Amendment doesn't exist, and in general has a problem interpreting plain English.

Unfortunately the 2nd Amendment has been turned into a mere bone from the federal government granting slaves the right to posses pea shooters when the real and original power of it had to do with the creation of militias to counter federal power.You do realize the 14th Amendment was never ratified, right? :)


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furface
03-02-2010, 02:52 PM
You do realize the 14th Amendment was never ratified, right? :)


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If only we lived in a country ruled by laws. I view the Supreme Court as a monkey house where the justices tear off pieces of the constitution, wipe their butts with it, and fling it at the American people. Welcome to the monkey house.

Matt Collins
03-02-2010, 03:05 PM
If only we lived in a country ruled by laws. I view the Supreme Court as a monkey house where the justices tear off pieces of the constitution, wipe their butts with it, and fling it at the American people. Welcome to the monkey house.That sounds like a photoshop waiting to happen :p

Matt Collins
03-15-2010, 04:07 PM
A libertarian vs libertarian debate on whether the 2A applies to the states!

YouTube - Mike Church Show Previews Bricker vs. Hunter Debate (http://www.youtube.com/watch?v=aTyRpl9gDOk&feature=player_embedded)

Pericles
03-16-2010, 03:51 PM
Heheh agree with most of these quotes but was most impressed with this word. :-)

I love that word--never heard it before.

Being an 18th Century historian, I'm really impressed with the use of language by the educated class. Those people possessed an articulate speech now long gone.

TheBlackPeterSchiff
03-16-2010, 03:55 PM
I never been on the "State's Rights" bandwaggon.

So, the State has the right to violate my Constitutional rights? Then why have a Constitution at all?

seeker4sho
03-16-2010, 04:20 PM
Which way do YOU think that the US Supreme Court should rule on the application of the 2nd Amendment to the State governments?


This is a tricky one because this is where libertarianism and Constitutionalism do not intersect. :)


Selected clips:


http://online.wsj.com/article/SB10001424052748704269004575073771717464954.html?m od=rss_Today%27s_Most_Popular







http://sg.wsj.net/public/resources/images/NA-BE400A_GUNS_NS_20100218212558.gif

It is very clear to me. The Second Amendment guarantees the right of the people to keep and bare Arms. That power is delegated to the United States by the Constitution. Only 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 (Tenth Amendment). The States gave up the power to prohibit the people's right to keep and bare Arms when they ratified the Constitution.

Matt Collins
03-16-2010, 10:55 PM
Being an 18th Century historian, I'm really impressed with the use of language by the educated class. Those people possessed an articulate speech now long gone.I absolutely agree. I would love to be able to learn to speak like they did back then.