Posted on 06/07/2004 2:10:58 PM PDT by tpaine
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.
Because he and I agree.
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.
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?
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
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.
There was a DC Circuit decision protecting a Ninth Amendment right to picket, I believe, in DC from a federal law.
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.
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.
illegal
Wasn't the "right to privacy" found in the Ninth amendment in that early contraceptive case?
You constantly confuse a fundamental right with an unalienable right. There is a difference, other than the spelling.
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?
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.
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.
Baloney.
Then why haven't the states been able to ban abortion?
The Ninth was part of that penumbra but not all of it.
Under Randy's scheme it would be sufficient by itself.
Bump for later read
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.
Disclaimer: Opinions posted on Free Republic are those of the individual posters and do not necessarily represent the opinion of Free Republic or its management. All materials posted herein are protected by copyright law and the exemption for fair use of copyrighted works.