The U.S. Constitution [Misinterpreted] Online

USConstitution.net ^ | 4/9/04 | steve mount

[aruanan]

This website very insidiously interprets our US Constitution in a pro-Statist manner. IE --- "The Bill of Rights did not apply to the states."

"Pro-Statist manner"? Puh-LEASE! The concept that all the restrictions placed on the federal government by the Bill of Rights apply to the states as well is the pro-Statist interpretation of the Constitution. The Bill of Rights did not apply to the states. At the time the Bill of Rights was adopted there were states with their own official state churches. This was not seen by any of the signers as a violation of the Bill of Rights. The reason? The Bill of Rights were limitations placed on the federal government by the state representatives that signed the Constitution. The states existed prior to the Constitution.

[tpaine]

Hmmmm.. ?

[Eastbound]

Well, heck. Even without the Second Amendment, every Citizen has the right to life, liberty, and the pursuit of happiness. Without the right to defend your life wherever you go, your liberty means nothing and the pursuit of happiness is a myth. The Second Amendment is a bonus -- a warning to gummint.

[Ken H]

As one who recently switched to the BOR restricts the feds mode, here's why: I'd much rather face state clowns on their clown bikes trying to take away my right to keep and bear arms, than have the Feds park a FatBoy in my living room with five justices riding in the sidecar.

What would the downside be to the RKBA by having the Second Amendment apply to State and local governments as well as Federal?

[tpaine]

This website very insidiously interprets our US Constitution in a pro-Statist manner. IE --- "The Bill of Rights did not apply to the states."

"Pro-Statist manner"? Puh-LEASE! The concept that all the restrictions placed on the federal government by the Bill of Rights apply to the states as well is the pro-Statist interpretation of the Constitution.

The BOR's apply to ALL levels of our government. All of our officials are required to swear an oath to support the US Constitution as the supreme Law of the Land. Read Art. VI.

The Bill of Rights did not apply to the states. At the time the Bill of Rights was adopted there were states with their own official state churches.

Yep, they were 'grandfathered' in. Big deal. Utah was later refused Statehood until they abandoned their state approved religious establishments.

This was not seen by any of the signers as a violation of the Bill of Rights. The reason? The Bill of Rights were limitations placed on the federal government by the state representatives that signed the Constitution. The states existed prior to the Constitution.

They existed as former Colonies, independent from English rule. They became States of the USA upon ratification of our Constitution.

[budwiesest]

What would the downside be to the RKBA by having the Second Amendment apply to State

None whatsoever. In fact, crime among the states would be so low that spending on law enforcement could be decreased by one half with no noticeable effect to the average citizen. The gungrabbers at the state level don't want to implement this test. They'd much rather the Feds try to form the 'more perfect' union.

'More perfect' is best acheived from the bottom up rather than top-down. Ask any serf.

[CalRepublican]

The Bill of Rights was not originally intended to be applied to the states. The protections of the BOR have been applied to the states only by virtue of incorporation into the 14th Amendment.

(The Supremacy Clause has nothing to do with this--if the BOR was written only to apply to the FedGov then it doesn't matter if it is the supreme law of the land or not.)

In Barron v. Baltimore, decided in 1833, Chief Justice Marshall held that the takings clause of the Fifth Amendment did not apply to state and local governments.

It was only years after passage of the 14th Amendment that parts of the Bill of Rights began to be applied to the states. Even today, parts of the BOR do not apply to the states, i.e., the right to be charged by a grand jury. Today, you can be charged by prosecutor's information in some states.

This is important, because it is through this incorporation idea that we have gotten the notion that school prayer is unconsitutional. A strong argument can be made that, even after the 14th Amendment, the Constitution should not be interepreted to incorporate the 1st Amendment and apply it to the states.

[Ken H]

What would the downside be to the RKBA by having the Second Amendment apply to State and local governments as well as Federal?

None whatsoever. In fact, crime among the states would be so low that spending on law enforcement could be decreased by one half with no noticeable effect to the average citizen. The gungrabbers at the state level don't want to implement this test.

Exactly.

They'd much rather the Feds try to form the 'more perfect' union.

Agreed. See post #37 for one of the main reasons why we have a huge, expensive, and intrusive Federal government.

Most, if not all Federal anti-gun legislation uses the Commerce Clause as the grant of power to infringe the RKBA.

'More perfect' is best acheived from the bottom up rather than top-down. Ask any serf.

Bingo.

[budwiesest]

tpaine, I applaud your inexhaustible efforts to apply the 2nd ammendment to the fifty states. What concerns me is your competition. Black robed 'appointees' sit in the wings waiting to do the same. The second ammendment defangs the feds. It defangs Feinstein and Schumner.

To bring to vote any infringements on the right to bear arms at the federal level by these two is nothing short of treason- a direct violation of the 2nd. They should be handcuffed and led out of our Senate. Were we today, the people recently relieved of the British occupation and it's tyranny, they'd be blindfolded, offered a cigarette, and shot.

Put me solidly in the camp with state's rights, 'cause without them, individual rights don't exist.

BTW, a FatBoy is a very big Harley Davidson motorcycle. Unlike the provervial elephant, I seriously doubt this baby would go unnoticed in most living rooms.

[budwiesest]

I've read many of your posts and enjoy your take on things constitutional. Post #37 and Thomas' remarks ring true as power, like nature, abhores a vacuum. Commerce clause as a road to tyranny was probably not imagined by those who wrote it.

Leave it to those forever adorned with jackboots to infiltrate that which was designed to keep them expressly from the party. Rude barely begins to describe them.

[aruanan]

1. The BOR's apply to ALL levels of our government. All of our officials are required to swear an oath to support the U.S. Constitution as the supreme Law of the Land. Read Art. VI.

It doesn't follow that, because all officials are required to swear an oath to support the US Constitution, the Bill of Rights, when adopted, applied to all levels of government. At the time, it did not. You're being anachronistic.

2. The Bill of Rights did not apply to the states. At the time the Bill of Rights was adopted there were states with their own official state churches.

Yep, they were 'grandfathered' in. Big deal. Utah was later refused Statehood until they abandoned their state approved religious establishments.

No, not grandfathered in. That Utah was refused statehood over state-approved religious establishments is a reflection of subsequent interpretations of the Bill of Rights; it's not an indication of original intent.

3. This was not seen by any of the signers as a violation of the Bill of Rights. The reason? The Bill of Rights were limitations placed on the federal government by the state representatives that signed the Constitution. The states existed prior to the Constitution.

They existed as former Colonies, independent from English rule. They became States of the USA upon ratification of our Constitution.

Nope. As colonies, they were not, by definition, independent from English rule. They ceased being colonies and became sovereign, independent states when they signed the Declaration of Independence. Upon ratification of the Constitution, the formerly independent states became states united under the Constitution.

[tpaine]

CalRepublican wrote:

The Bill of Rights was not originally intended to be applied to the states. The protections of the BOR have been applied to the states only by virtue of incorporation into the 14th Amendment.

Your faction, and a bunch of southern rebels, simply made that idea up, in order to justify ignoring our BOR's prior to the Civil War.

(The Supremacy Clause has nothing to do with this--if the BOR was written only to apply to the FedGov then it doesn't matter if it is the supreme law of the land or not.)

Circular argument. Our BOR's was written to apply to ALL levels, - fed/state/local, -- of government. ALL officials were sworn by oath to support the supremacy of our US Constitution.

In Barron v. Baltimore, decided in 1833, Chief Justice Marshall held that the takings clause of the Fifth Amendment did not apply to state and local governments.

So what? Marshals opinion did not alter the Constitutions/BOR's supremacy as the Law of the Land.

It was only years after passage of the 14th Amendment that parts of the Bill of Rights began to be applied to the states. Even today, parts of the BOR do not apply to the states, i.e., the right to be charged by a grand jury. Today, you can be charged by prosecutor's information in some states.

Today, the State of CA claims it can prohibit 'assault weapons'. Do you agree?

This is important, because it is through this incorporation idea that we have gotten the notion that school prayer is unconsitutional. A strong argument can be made that, even after the 14th Amendment, the Constitution should not be interepreted to incorporate the 1st Amendment and apply it to the states.

Yep, and using the same arguments, "the Constitution should not be interpreted to incorporate the 2nd Amendment and apply it to the states."

-- Do you approve, 'CalRepublican'?

[tpaine]

The BOR's apply to ALL levels of our government. All of our officials are required to swear an oath to support the U.S. Constitution as the supreme Law of the Land. Read Art. VI.

It doesn't follow that, because all officials are required to swear an oath to support the US Constitution, the Bill of Rights, when adopted, applied to all levels of government.

Yes, that is what Art. VI says. The Constitution & its Amendments are the Law of the Land.

At the time, it did not. You're being anachronistic.

You're being idiotic. Our Constitutions words haven't changed.

The Bill of Rights did not apply to the states. At the time the Bill of Rights was adopted there were states with their own official state churches.

Yep, they were 'grandfathered' in. Big deal. Utah was later refused Statehood until they abandoned their state approved religious establishments.

No, not grandfathered in.

State religions died out.

That Utah was refused statehood over state-approved religious establishments is a reflection of subsequent interpretations of the Bill of Rights; it's not an indication of original intent.

Make your proof. Mine is in the fact, -- the 14th was not a factor in Utahs statehood problems. 'Respecting an establishment of religion', - polygamy, - was, -- three times prior to passage of the 14th in '68.

The states existed prior to the Constitution.

They existed as former Colonies, independent from English rule. They became States of the USA upon ratification of our Constitution.

Nope. As colonies, they were not, by definition, independent from English rule. They ceased being colonies and became sovereign, independent states when they signed the Declaration of Independence. Upon ratification of the Constitution, the formerly independent states became states united under the Constitution.

Yep. Upon ratification of the Constitution, the formerly independent colonies/sovereign states became US States, - united under our Constitution.

[CalRepublican]

Your faction, and a bunch of southern rebels, simply made that idea up, in order to justify ignoring our BOR's prior to the Civil War.

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Are you aware of what the Constitution looked like before the Civil War? The south did not need to ignore the BOR rights to have slaves. Nothing in the BOR or Constitution prohibited slavery. If it had, there would not have been a Union in the first place.

---

Circular argument. Our BOR's was written to apply to ALL levels, - fed/state/local, -- of government. ALL officials were sworn by oath to support the supremacy of our US Constitution.

---

No, it's not circular, your argument is. The BOR as originally drafted included protections against the states, which were thrown out in favor of what we got.

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So what? Marshals opinion did not alter the Constitutions/BOR's supremacy as the Law of the Land.

---

Do you have any idea what the Supremacy Clause says/means? It does not mean that every part of the Constitution applies to the states. It means that if there is a conflict, federal law is supreme. Because the BOR was not meant to apply to the states, there would not have been any conflict. Read part of Barron:

"The Constitution was ordained and established by the people of the United States for themselves, for their own government, and not for the government of the individual States. Each State established a constitution for itself, and in that constitution provided such limitations and restrictions on the powers of its particular government as its judgment dictated. The people of the United States framed such a government for the United States as they supposed best adapted to their situation and best calculated to promote their interests. The powers they conferred on this government were to be exercised by itself, and the limitations on power, if expressed in general terms, are naturally, and we think necessarily, applicable to the government created by the instrument. They are limitations of power granted in the instrument itself, not of distinct governments framed by different persons and for different purposes.

If these propositions be correct, the fifth amendment must be understood as restraining the power of the General Government, not as applicable to the States. In their several Constitutions, they have imposed such restrictions on their respective [p*248] governments, as their own wisdom suggested, such as they deemed most proper for themselves. It is a subject on which they judge exclusively, and with which others interfere no further than they are supposed to have a common interest.
The counsel for the plaintiff in error insists that the Constitution was intended to secure the people of the several States against the undue exercise of power by their respective State governments, as well as against that which might be attempted by their General Government. It support of this argument he relies on the inhibitions contained in the tenth section of the first article. We think that section affords a strong, if not a conclusive, argument in support of the opinion already indicated by the court. The preceding section contains restrictions which are obviously intended for the exclusive purpose of restraining the exercise of power by the departments of the General Government. Some of them use language applicable only to Congress, others are expressed in general terms. The third clause, for example, declares, that "no bill of attainder or ex post facto law shall be passed." No language can be more general, yet the demonstration is complete that it applies solely to the Government of the United States. In addition to the general arguments furnished by the instrument itself, some of which have been already suggested, the succeeding section, the avowed purpose of which is to restrain State legislation, contains in terms the very prohibition. It declares, that "no State shall pass any bill of attainder or ex post facto law." This provision, then, of the ninth section, however comprehensive its language, contains no restriction on State legislation.

The ninth section having enumerated, in the nature of a bill of rights, the limitations intended to be imposed on the powers of the General Government, the tenth proceeds to enumerate those which were to operate on the State legislatures. These restrictions are brought together in the same section, and are by express words applied to the States. "No State shall enter into any treaty," &c. Perceiving, that in a constitution framed by the people of the United States, for the government of all, no limitation of the action of government on [p*249] the people would apply to the State government, unless expressed in terms, the restrictions contained in the tenth section are in direct words so applied to the States.

It is worthy of remark, too, that these inhibitions generally restrain State legislation on subjects intrusted to the General Government, or in which the people of all the States feel an interest. A State is forbidden to enter into any treaty, alliance or confederation. If these compacts are with foreign nations, they interfere with the treaty-making power, which is conferred entirely on the General Government; if with each other, for political purposes, they can scarcely fail to interfere with the general purpose and intent of the Constitution. To grant letters of marque and reprisal, would lead directly to war, the power of declaring which is expressly given to Congress. To coin money is also the exercise of a power conferred on Congress. It would be tedious to recapitulate the several limitations on the powers of the States which are contained in this section. They will be found generally to restrain State legislation on subjects intrusted to the government of the Union, in which the citizens of all the States are interested. In these alone were the whole people concerned. The question of their application to States is not left to construction. It is averred in positive words.

If the original Constitution, in the ninth and tenth sections of the first article, draws this plain and marked line of discrimination between the limitations it imposes on the powers of the General Government and on those of the State; if, in every inhibition intended to act on State power, words are employed which directly express that intent; some strong reason must be assigned for departing from this safe and judicious course in framing the amendments before that departure can be assumed. We search in vain for that reason.

Had the people of the several States, or any of them, required changes in their Constitutions, had they required additional safeguards to liberty from the apprehended encroachments of their particular governments, the remedy was in their own hands, and could have been applied by themselves. A [p*250] convention could have been assembled by the discontented State, and the required improvements could have been made by itself. The unwieldy and cumbrous machinery of procuring a recommendation from two-thirds of Congress and the assent of three-fourths of their sister States could never have occurred to any human being as a mode of doing that which might be effected by the State itself. Had the framers of these amendments intended them to be limitations on the powers of the State governments, they would have imitated the framers of the original Constitution, and have expressed that intention. Had Congress engaged in the extraordinary occupation of improving the Constitutions of the several States by affording the people additional protection from the exercise of power by their own governments in matters which concerned themselves alone, they would have declared this purpose in plain and intelligible language.

But it is universally understood, it is a part of the history of the day, that the great revolution which established the Constitution of the United States was not effected without immense opposition. Serious fears were extensively entertained that those powers which the patriot statesmen who then watched over the interests of our country deemed essential to union, and to the attainment of those invaluable objects for which union was sought, might be exercised in a manner dangerous to liberty. In almost every convention by which the Constitution was adopted, amendments to guard against the abuse of power were recommended. These amendments demanded security against the apprehended encroachments of the General Government -- not against those of the local governments. In compliance with a sentiment thus generally expressed, to quiet fears thus extensively entertained, amendments were proposed by the required majority in Congress and adopted by the States. These amendments contain no expression indicating an intention to apply them to the State governments. This court cannot so apply them.

We are of opinion that the provision in the Fifth Amendment to the Constitution declaring that private property shall not be taken for public use without just compensation is intended solely as a limitation on the exercise of power by the [p*251] Government of the United States, and is not applicable to the legislation of the States. We are therefore of opinion that there is no repugnancy between the several acts of the general assembly of Maryland, given in evidence by the defendants at the trial of this cause, in the court of that State, and the Constitution of the United States. This court, therefore, has no jurisdiction of the cause, and it is dismissed.

This cause came on to be heard on the transcript of the record from the Court of Appeals for the Western Shore of the State of Maryland, and was argued by counsel. On consideration whereof, it is the opinion of this Court that there is no repugnancy between the several acts of the General Assembly of Maryland given in evidence by the defendants at the trial of this cause in the court of that State and the Constitution of the United States; whereupon it is ordered and adjudged by this court that this writ of error be, and the same is hereby, dismissed for the want of jurisdiction."

This was the law of the land until the 14th Amendment. The rationale was clear--the people had already been living with their own state governments. They weren't looking to revamp those, they were hoping to form a federal government that would form a "more perfect Union" amongst the states. Because they were creating a new federal government that was the government from which they were also seeking protections.

To believe otherwise would require you to believe that people in Virginia, for example, were looking forward to the constitutional convention as a way to seize additional rights for themselves. Which doesn't make sense, because they could just have amended their own constitution if that's what they wanted.

---

It was only years after passage of the 14th Amendment that parts of the Bill of Rights began to be applied to the states. Even today, parts of the BOR do not apply to the states, i.e., the right to be charged by a grand jury. Today, you can be charged by prosecutor's information in some states.

Today, the State of CA claims it can prohibit 'assault weapons'. Do you agree?

---

Provided there is no contrary provision in the California constitution, ABSOLUTELY. My turn for a question: The state of Texas wants to prohibit abortion. Do you agree it can, or does the BOR prohibit that?

---

Yep, and using the same arguments, "the Constitution should not be interpreted to incorporate the 2nd Amendment and apply it to the states."

-- Do you approve, 'CalRepublican'?

---

I do not "approve" of gun legislation. Therefore I do not vote for candidates that support it. That has nothing to do with the Constitutionality of such legislation. If you want protection from your state, look to your state legislature and your state constitution, not to the federal government.

I believe in a federal form of government wherein I have different rights under the US Const. and the Ca. Const. The ability of states to differentiate between themselves is what makes this country great. That is Federalism. It is a conservative ideal.

[tpaine]

CalRepublican wrote:

Are you aware of what the Constitution looked like before the Civil War?

It is worded exactly the same. Nothing has changed but what the amendments added since then have altered.

Our BOR's was written to apply to ALL levels, - fed/state/local, -- of government. ALL officials were sworn by oath to support the supremacy of our US Constitution.

The BOR as originally drafted included protections against the states, which were thrown out in favor of what we got.

We 'got' amendments that protect our individual rights against ALL governments. IE, -- the wording "right of the people" means just that. The people have those rights regardless of which State or Territory they are in.

Marshals opinion did not alter the Constitutions/BOR's supremacy as the Law of the Land.

Do you have any idea what the Supremacy Clause says/means? It does not mean that every part of the Constitution applies to the states. It means that if there is a conflict, federal law is supreme.

We have a conflict. CA claims it can prohibit our RKBA's. Our US Constitution says otherwise. It is supreme, so the people should win.
Obviously, ~you~ have the problem understanding what the Supremacy Clause says/means.

Today, the State of CA claims it can prohibit 'assault weapons'. Do you agree?

Provided there is no contrary provision in the California constitution, ABSOLUTELY.

I do not "approve" of gun legislation. Therefore I do not vote for candidates that support it. That has nothing to do with the Constitutionality of such legislation.
If you want protection from your state, look to your state legislature and your state constitution, not to the federal government.

I look to our Constitution, and to ALL the officals we have elected/appointed, -- who have sworn to uphold it, to do so. -- Why don't you?
We see that reason in your question:

My turn for a question: The state of Texas wants to prohibit abortion. Do you agree it can, or does the BOR prohibit that?

The Constitution & its Amendments prohibits States from depriving people of life, liberty. or property without due process of law. A State law that absolutely prohibits abortion would violate due process. If abortion is murder, let it be prosecuted as such, before a jury of the womans peers.

I believe in a federal form of government wherein I have different rights under the US Const. and the Ca. Const.

Sorry, but all of us have the same inalienable rights under our US Constitution. My peers in CA have no power to limit my RKBA's. -- They never have had that power delegated to them. -- Never will.

The ability of states to differentiate between themselves is what makes this country great. That is Federalism. It is a conservative ideal.

The States power to 'differentiate' ends when it violates an individuals inalienable rights to life, liberty or property. -- THAT is the conservative ideal.

[robertpaulsen]

"When a judge assumes the power to decide which distinctions made in a statute are legitimate and which are not, he assumes the power to disapprove of any and all legislation, because all legislation makes distinctions."
-- Judge Robert Bork

You tell me what's more dangerous, Ken H, elected officials passing bad laws or unelected, appointed for life, activist judges.

We have more to fear from Justice Thomas and his 8 buddies on the USSC than we do from Congress. IMO.

[robertpaulsen]

You realize, of course, that if the second amendment were incorporated (ie., applied to the states), any USSC interpretation of the second amendment would also apply to the states.

Similar to the first amendment where the USSC said that free speech protects nude dancing, all 50 states must abide by that ruling.

Do you want 5 USSC justices ruling that "arms" in the second amendment does not include handguns? (not far fetched -- the 7th Circuit said exactly that in Quilici v. Village of Morton Grove -- "Under the controlling authority of Miller we conclude that the right to keep and bear handguns is not guaranteed by the second amendment"). That ruling would then apply to all states.

Do you want 5 USSC justices ruling that "bear arms" in the second amendment does not include concealed carry? (again not far fetched -- the Rhode Island Supreme Court said in State v. Storms, 1973:

"... "the prevailing view" was that "a constitutional guarantee to keep and bear arms is not infringed upon by legislation which, in broad terms, forbids the unlicensed carrying of a pistol or revolver upon one's person excepting only in his home and place of business or upon his land."

"Superior Court Judge Michael A. Silverstein concluded that based on the Storms case and the state Constitution, he was "unable to declare that a person in Rhode Island has a fundamental right to carry a weapon outside the limits of his or her own land or business with or without a license which, in turn, would entitle them to due-process protection when applying for a license.")

Now, these kind of decisions at a local or a state level are one thing. At the federal level, with the decision affecting all 50 states -- why would you want this??

Why do you think the USSC will protect your gun rights? Why do you assume this?

[Ken H]

"The Second Amendment was designed to allow states to defend themselves against a possibly tyrannical national government. Now that the federal government has stealth bombers and nuclear weapons, it is hard to imagine what people would need to keep in the garage to serve that purpose."
--Judge Robert Bork

We have more to fear from Justice Thomas and his 8 buddies on the USSC than we do from Congress. IMO.

Marshaling an impressive array of historical evidence, a growing body of scholarly commentary indicates that the "right to keep and bear arms" is, as the Amendment's text suggests, a personal right.

--Justice Clarence Thomas

Does robertpaulsen prefer the Second Amendment view of Judge Bork and congressional gun grabbers over the view of Justice Thomas?

[Ken H]

You realize, of course, that if the second amendment were incorporated (ie., applied to the states), any USSC interpretation of the second amendment would also apply to the states.

So how would such a ruling adversely affect the RKBA?

Do you want 5 USSC justices ruling that "arms" in the second amendment does not include handguns? (not far fetched -- the 7th Circuit said exactly that in Quilici v. Village of Morton Grove -- "Under the controlling authority of Miller we conclude that the right to keep and bear handguns is not guaranteed by the second amendment"). That ruling would then apply to all states.

States with the RKBA would still have it.

How would such a USSC decision make the RKBA less secure?

[xm177e2]

Why would it be necessary to REPEAL the 2nd Amendment in order to more clearly spell out what our rights are with regard to firearms? That is why I do not trust this fellow. I am not against adding an amendment to the Constitution to list what exactly the government is and is not allowed to regulate (if, of course, it was generous to gun rights). In fact, it would probably be good for our country if the rules were clearer.

I think it should take the form of two sets of rules: what the fedgov/local governments are allowed to regulate and what only local governments are allowed to regulate (with everything else held as a right of the people that cannot be infringed by any government).

There would be some risk inherent in this (what if we lost the political fight and anti-gunners got to change the Constitution?) but if we succeeded, it would have the benefit of securing near-permanently a core subset of gun rights (the most important stuff). The more controversial rights would have to be won at the ballot box, but it would be a better situation than we have today, because anti-gunners would know their limits.