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The Rights Retained by The People [and the presumption of liberty]
Barrnett ^ | 6/7/04 | Randy Barnett

Posted on 06/07/2004 2:10:58 PM PDT by tpaine

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To: An.American.Expatriate
"Because of that, I suggest that the people of a state COULD give that power to a state."

You have a fundamental right to keep and bear arms. As a citizen of a state, you give your state the power, defined by the state constitution, to protect that fundamental right. It is this right which "shall not be infringed" by Congress.

State laws concerning your RKBA are a result of legislation interpreted by the state Supreme Court to meet the intent of the state constitution. Some states, like California, have nothing in their state constitution regarding the RKBA. Because of that, those state legislatures are not restricted when writing gun control laws.

61 posted on 06/08/2004 9:01:25 AM PDT by robertpaulsen
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To: tpaine; An.American.Expatriate
"Why not argue with paulsen?"

Because he and I agree.

62 posted on 06/08/2004 9:04:06 AM PDT by robertpaulsen
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To: tpaine

All of that can be easily negated by local, state, and federal Liberal legislation and judicial interpretation by Leftist judges and justices. It's been ongoing for some time now. Another example: The Second Amendment will remain on the books, but will be negated as described above. The Democrats don't give up on their agenda.


63 posted on 06/08/2004 9:10:03 AM PDT by Consort
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To: robertpaulsen

I'm really having a hard time following you. Are you saying that the second ammendment does not apply to the states, and therefore the states can regulate or ban handguns at will?


64 posted on 06/08/2004 9:13:40 AM PDT by bad company (free Khashayar)
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To: Texas Federalist
I just may read Randy's book for the research in it. The Ninth, being a limit on the federal judiciary's power, is never cited in decisions except as a reason to deny federal action- or by frustrated judges in petulant dicta or dissents- so his legal research is appreciated.

Randy's opinions on the Ninth are popular on the web and I'm quite familiar with them now however.

Now the courts have to inquire into what my unenumerated rights are. This is precisely what Randy wants to change.
But if the courts expand their power to define rights ( such as "liberty") as they wish, then they will lose the confidence of the people and be corrected- one way or another.
We are not giving them sanction to define our rights any more than we would give them the power to define our bank account balance- they will have to go and look if it concerns them.

Ironically, the first test to put a libertarian proposal to is "does it replace a majoritarian tyranny with a minority tyranny?". Randy's Ninth Amendment reinterpretation, however good his intentions, fails that test.
Democracy is a terrible form of goevernment... etc

65 posted on 06/08/2004 9:19:08 AM PDT by mrsmith ("Oyez, oyez! All rise for the Honorable Chief Justice... Hillary Rodham Clinton ")
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To: robertpaulsen
-- tpaine wants these same liberal jerkoffs to define the second amendment for us.

No, I want the USSC to tell the State of CA to stop their violations of our RKBA's. - And, -- I want our Executive branch to enforce that decision upon the CA state officials that have ignored their oaths of office to protect & defend our US Constitution.

AND WHAT MAKES YOU THINK THEY WOULD? That's my whole point.

Nope, your whole point is that the 'State' has a 'right' to control our RKBA's. They have no such power, and never had.

What has the USSC done recently to make you think that they would rule in such a conservative manner? Actually, the chances are very good that they would simply follow the Ninth Circuit.

Either way they 'rule', I would win. The ballot box or the cartridge box would prevail.

The good citizens of the state of California need to get off their butts and pass a state constitutional amendment that protects their RKBA.

The majority refuse. - Period.
You claim they have that 'right'. You're dead wrong.

66 posted on 06/08/2004 9:23:22 AM PDT by tpaine (The line dividing good and evil cuts through the heart of every human be" -- Solzhenitsyn)
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To: mrsmith
"The Ninth, being a limit on the federal judiciary's power, is never cited ...," in cases on state law.

There was a DC Circuit decision protecting a Ninth Amendment right to picket, I believe, in DC from a federal law.

67 posted on 06/08/2004 9:32:22 AM PDT by mrsmith ("Oyez, oyez! All rise for the Honorable Chief Justice... Hillary Rodham Clinton ")
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To: bad company
"Are you saying that the second ammendment does not apply to the states ..."

That is precisely what I'm saying. The second amendment only applies to the federal government.

"... and therefore the states can regulate or ban handguns at will?

No. States are bound by their state constitution. Your state constitution reads:

Sec. 4.
"The people have the right to bear arms for their defense and security; but standing armies, in time of peace, are dangerous to liberty, and shall not be tolerated, and the military shall be in strict subordination to the civil power."

Now, compare that to mine in Illinois:

SECTION 22. RIGHT TO ARMS
"Subject only to the police power, the right of the individual citizen to keep and bear arms shall not be infringed."

This is why we have to pass a background check and purchase a Firearm Owners ID (FOID) card to even handle a gun in a store or to purchase ammunition. Why handguns are banned (illigal to own, possess, or carry) in Chicago, Morton Grove, Wilmette, etc. Why Illinois doesn't have concealed carry.

Each state has RKBA laws based on the protections offered by their state constitution. California, Iowa, Maryland, Minnesota, New Jersey, and New York have nothing in their state constitution protecting arms.

68 posted on 06/08/2004 9:41:33 AM PDT by robertpaulsen
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To: robertpaulsen
You have a fundamental right to keep and bear arms. As a citizen of a state, you give your state the power, defined by the state constitution, to protect that fundamental right.

Which, in this case, the State of California is refusing to do, - and instead is enacting 'laws' that violate my fundamental RKBA's. Thus, CA is violating our US Constitution in a number of ways found not only in the BOR's, but in the body of the Constitution itself, - primarily in Art. VI.

It is this right which "shall not be infringed" by Congress.

By its inaction in this case, Congress itself is also violating our RKBA's. -- As is the rest of the US Government.

State laws concerning your RKBA are a result of legislation interpreted by the state Supreme Court to meet the intent of the state constitution. Some states, like California, have nothing in their state constitution regarding the RKBA. Because of that, those state legislatures are not restricted when writing gun control laws.

Bizarre logic, paulsen, as you admit a fundamental RKBA's, - then you claim it can be violated without restriction.

69 posted on 06/08/2004 9:44:38 AM PDT by tpaine (The line dividing good and evil cuts through the heart of every human be" -- Solzhenitsyn)
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To: robertpaulsen

illegal


70 posted on 06/08/2004 9:46:34 AM PDT by robertpaulsen
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To: mrsmith

Wasn't the "right to privacy" found in the Ninth amendment in that early contraceptive case?


71 posted on 06/08/2004 9:48:08 AM PDT by robertpaulsen
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To: tpaine
"as you admit a fundamental RKBA's, - then you claim it can be violated without restriction."

You constantly confuse a fundamental right with an unalienable right. There is a difference, other than the spelling.

72 posted on 06/08/2004 9:51:41 AM PDT by robertpaulsen
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To: robertpaulsen

Following that logic the bill of rights doesn't apply to anyone. only the state constitutions apply. this seems to be in the "Home rule " school of thought, correct?


73 posted on 06/08/2004 9:52:28 AM PDT by bad company (free Khashayar)
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To: robertpaulsen
California, Iowa, Maryland, Minnesota, New Jersey, and New York have nothing in their state constitution protecting arms.

All States, when they join the union, are obliged to honor our Constitution/BORs as the supreme law. The supreme law protects our RKBA's, if the State fails to do so.

74 posted on 06/08/2004 10:01:16 AM PDT by tpaine (The line dividing good and evil cuts through the heart of every human be" -- Solzhenitsyn)
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To: bad company
"Following that logic the bill of rights doesn't apply to anyone."

No. Following that logic the Bill of Rights only applies to the federal government. Correct?

The BOR (actually the first eight amendments of the BOR) originally applied only to the federal government. After the 14th amendment was ratified in 1868, most, but not all, of the first eight amendments were made applicable to the states through a process known as "selective incorporation". For example, free speech/press was "incorporated" in 1925. The fourth amendment (unreasonable searches and seizures) was "incorporated" in 1914. Prior to those dates, legislators and state courts were bound only by their individual state constitution.

To date, the second amendment, the "Grand Jury" clause of the fifth amendment, and the seventh amendment have not been incorporated. State constitutions prevail in those areas.

75 posted on 06/08/2004 10:06:19 AM PDT by robertpaulsen
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To: tpaine
"The supreme law protects our RKBA's, if the State fails to do so."

Baloney.

76 posted on 06/08/2004 10:10:59 AM PDT by robertpaulsen
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To: robertpaulsen

Then why haven't the states been able to ban abortion?


77 posted on 06/08/2004 10:13:51 AM PDT by bad company (free Khashayar)
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To: robertpaulsen
It was found in a penumbra of the First, Third, Fourth, Fifth and Ninth.

The Ninth was part of that penumbra but not all of it.

Under Randy's scheme it would be sufficient by itself.

78 posted on 06/08/2004 10:16:36 AM PDT by mrsmith ("Oyez, oyez! All rise for the Honorable Chief Justice... Hillary Rodham Clinton ")
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To: tpaine

Bump for later read


79 posted on 06/08/2004 10:18:52 AM PDT by Just another Joe (Warning: FReeping can be addictive and helpful to your mental health)
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To: robertpaulsen
What has the USSC done recently to make you think that they would rule in such a conservative manner?

Actually, try to look at the idea from a different perspective. Barnett's view of interpreting the Ninth Amendment is a supportable rationale for conservative justices to practice the same sort of judicial activism that liberal judges have been practicing for years. Right now, the liberals invent rights like abortion and freedom from religion and the conservatives counter with strict constructionalism. In the Ninth Amendment we can find our best weapon as conservatives. Imagine if when liberal judges discovered a right to abortion, conservatives would find a right to property and find the whole welfare state unconstitutional. We need a weapon in the Constitutional war and Barnett has found it.

80 posted on 06/08/2004 10:51:26 AM PDT by Texas Federalist
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