Skip to comments.Alito Dissenting Opinion U.S. v Rybar (Machine Gun Ownership)
Posted on 10/31/2005 8:46:21 AM PST by antaresequity
SNIP - ALITO DISSENTING OPINION
Maj. Op. at ----. In other words, the majority argues in effect that the private, purely intrastate possession of machine guns has a substantial effect on the interstate machine gun market.
This theory, if accepted, would go far toward converting Congress's authority to regulate interstate commerce into "a plenary police power." Lopez, --- U.S. at ----, 115 S.Ct. at 1633. If there is any sort of interstate market for a commodity--and I think that it is safe to assume that there is some sort of interstate market for practically everything--then the purely intrastate possession of that item will have an effect on that market, and outlawing private possession of the item will presumably have a substantial effect. Consequently, the majority's theory leads to the conclusion that Congress may ban the purely intrastate possession of just about anything. But if Lopez means anything, it is that Congress's power under the Commerce Clause must have some limits. Cf. Charles Fried, Foreword: Revolutions?, 109 HARV.L.REV. 13, 36-37 (1995).
(Excerpt) Read more at cs.cmu.edu ...
Deserves repeating. It really is just that simple.
Hogwash. Read Article VI. Done deal.
Incorporation is a myth, a fantasy.
Still, it is the current, prevailing legal fiction until we can get a court with balls to straighten things back out again. The SCOTUS has only one source for its stare decisis, the Constitution and those that wrote it.
We can cure this ignorance by trying to correct it whenever it pops up. Some will insist they are in the right, even though we can point to the Papers and debates from the State conventions pointing out the contrary. Such people either aren't smart enough to figure it out or they may actually have a anti-gun agenda.
And yes... it is just that cut and dried.
This is called the incorporation doctrine. That doctrine 'incorporates' the bill of rights (in part) to apply against the states by way of the 14th amendment.
The incorporation doctrine was one of the most pernicious left-wing judicial inventions of the 20th century. It is, for example, the reason that Roe could be applied against STATE laws and why the states cannot sponsor religious activities. Without the incorporation of the bill of rights (which limits only the federal government) to apply against the state governments, most of the left wing judicial activism of the past century would simply fold up and disappear.
The 14th amendment should be reinterpreted to conform to it's obvious original intent--to prevent states from reestablishing slavery under another name. Thus, it protects slaves and their descendants rather strongly. It protects noone else.
Nope. See my post 24 on this thread. The first time the 14th amendment was used that way was when the left-wing activists in the second half of the 20th century created the fiction that the 14th amendment 'incorporated' selected parts of the bill of rights into the 14th amendment. Thus, the left reasoned, the US Supreme Court could control the states.
The 14th amendment itself applies quite obviously only to slaves and their descendants.
If anything, the 14th wasn't needed. Once ratified, it should have been "incorperated" under the aforementioned Art 6 para 2 clause that makes the Constitution the "Supreme Law of the Land".
The first Congress sent out 12 amendments to the states to ratify. One would have applied the BOR to the states. It was not ratified. One was for elections before pay raises. Only 10 were ratified, but then the 11th became the 27th amendment later on. So the first Congress also wrote the 27th Amendment.
In Barron v. Baltimore John Marshall told us what was obvious to all constitutional scholars: the BOR does not apply to the states. In my opinion nothing has happened in the time since to change that. However the Court does not care about my opinion, and it reads the DPC of the 14th to allow (require?) selective incorporation.
Really? Explain Art 6 para 2. Also, explain the Pre-amble to the BoR. Also explain why language was removed from the Second Amendment during the debates that removed the words "by Congress" from after the words "shall not be infringed" but was left with the deliberately broader implications.
Rightful liberty is unobstructed action according to our will within limits drawn around us by the equal rights of others. I do not add 'within the limits of the law' because law is often but the tyrant's will, and always so when it violates the rights of the individual. Thomas Jefferson
Yep, sure does. Do you want to tell me what it says in the other nine?
The first Congress sent out 12 amendments to the states to ratify. One would have applied the BOR to the states. It was not ratified.
You want to back that up with proof?
In Barron v. Baltimore John Marshall told us what was obvious to all constitutional scholars: the BOR does not apply to the states.
Wouldn't be the first time a SC Justice was wrong.
not 947 F.2d 726?
Now read the text of the Second Amendment. No such restriction is there. Even during the revision process, they only made it more broad as they wanted an iron clad protection for such an important individual Right.
This itself should give the lie to the claim of self declared "constitutional scholars".
Yeah, John Marshall was a pretender.
If something is a "right", then no level of government can legitimately infringe on it.
Any true conservative IS a libertarian.
I checked it out, my memory was wrong on that, I correct the record here and admit my mistake. The non ratified amendment had to do with apportionment. But see Barron v. Baltimore, 1833, for established precedent on the original intent of the BOR
Fact is, he didn't write it, nor pass the Constitution, alone.
Weigh his opinion against Jefferson, Adams, ect... You'll find that they were at odds over several issues. Facts remain persistant though. The debates are there, the language is clear.
I'm on the side of liberty and freedom on this issue. Which side are you on?
It's a great bit of reasoning, but people should not be confused by this argument. In it, he is NOT pro-Second-Amendment, he is anti-Commerce-Clause.
It is not an argument based on gun rights, but an argument based on states' rights.
Second, I've read Barron v. Baltimore, Marshall is/was wrong. Any reading of the Founders makes a person realize that they meant what they said.
Article. VI. Clause 1: All Debts contracted and Engagements entered into, before the Adoption of this Constitution, shall be as valid against the United States under this Constitution, as under the Confederation.
Clause 2: This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.
Clause 3: The Senators and Representatives before mentioned, and the Members of the several State Legislatures, and all executive and judicial Officers, both of the United States and of the several States, shall be bound by Oath or Affirmation, to support this Constitution; but no religious Test shall ever be required as a Qualification to any Office or public Trust under the United States.
Clause Two is very simple.
There remains but one other view of this matter to conclude the point. The truth is, after all the declamations we have heard, that the Constitution is itself, in every rational sense, and to every useful purpose, A BILL OF RIGHTS. The several bills of rights in Great Britain form its Constitution, and conversely the constitution of each State is its bill of rights. And the proposed Constitution, if adopted, will be the bill of rights of the Union. Publius. Federalist #84.
From these observations it appears, that in forming a government on its true principles, the foundation should be laid in the manner I before stated, by expressly reserving to the people such of their essential rights as are not necessary to be parted with. The same reasons which at first induced mankind to associate and institute government, will operate to influence them to observe this precaution. If they had been disposed to conform themselves to the rule of immutable righteousness, government would not have been requisite. It was because one part exercised fraud, oppression and violence, on the other, that men came together, and agreed that certain rules should be formed to regulate the conduct of all, and the power of the whole community lodged in the hands of rulers to enforce an obedience to them. But rulers have the same propensities as other men; they are as likely to use the power with which they are vested, for private purposes, and to the injury and oppression of those over whom they are placed, as individuals in a state of nature are to injure and oppress one another. It is therefore as proper that bounds should be set to their authority, as that government should have at first been instituted to restrain private injuries. Brutus. Anti-Federalist #84
Game. Set. Match. The opinions of the judiciary that run contrary to the express language and original intent of the Constitution are vacant and wrong.