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 ...
Good catch. I had that thought as well.
This point is best illustrated by one of the amendments that Madison proposed in his initial speech:
"Fifthly, That in article 1st, section 10, between clauses 1 and 2, be inserted this clause, to wit: No State shall violate the equal rights of conscience, or the freedom of the press, or the trial by jury in criminal cases."
This clause, seemingly innocuous to us today, was rejected by the Senate in its final draft of the Bill, and the concept that any part of the Bill of Rights would apply to the states was still 100 years away. Several cases that came before the Supreme Court in the 19th century attempted to have the Court establish that the Bill should apply to the states, to no avail:
So Madison had wanted to place limits on state powers in the BOR, but Congress did not include that language.
The Federalist was written before the Constitution was ratified, before the 1st Congress met, before the BOR was written or ratified. It contains no discussion on the BOR, nor could it have.
That is just silly. Using your logic, they should never have included Art 6 para 2 then. Nor should they have included Amend 10.
The courts have created a legal fiction of "selective incorporation", notwitstanding the fact that the original intent of the 14th Amendment clearly requires a full incorporation of Amendments I-VIII (the Ninth and Tenth don't contain any specific guarantees to incorporate).
To me, reading a judge's opinion is like reading an preface of a book on earthworms. I can never gain much from them and always seems to work like nyquil on me.
Im happy to read some of the posts to get better insight. :)
It is a cardinal principle of statutory construction that the intent of the lawmaker constitutes the law. This principle also applies to constitutional law. In this case, we have a direct quote from the individual who framed the wording of the first section of the Fourteenth Amendment -- "letter for letter syllable for syllable." The intent of section 1 of the Fourteenth Amendment, as stated by its author, was to make the limitations enumerated in the first eight amendments of the Bill of Rights applicable to the States.
Would he vote against states being allowed to ban machine guns?
That is not an issue before the court in this case. That's the same mistake the Brady folks are making in assuming that he wants to put a machine gun in the hands of every crook. He is doing the job, as laid down in the constitution, of arbitrating based on the law and the constitution, as argued, not substituting his own likes and dislikes.
That is, by definition, what a conservative judge does.
Oh, and I prefer the original Richard Matheson story, I Am Legend to the Heston remake, but Omega Man is still one of my favorite movies. Good handle.
The judicial activism consisted SOLELY of inventing the notion that incorporation was a cafeteria-menu selection of preference, rather than an across-the-board requirement of constitutional law as guided by original intent.
The complete text of the only non-ratified amendment in the original twelve appears below. Kindly point out the section that supports your assertion:
After the first enumeration required by the first article of the Constitution, there shall be one representative for every thirty thousand, until the number shall amount to one hundred, after which the proportion shall be so regulated by Congress, that there shall be not less than one hundred representatives, nor less than one representative for every forty thousand persons, until the number of representatives shall amount to two hundred; after which the proportion shall be so regulated by Congress, that there shall be not less than two hundred representatives, nor more than one representative for every fifty thousand persons.
Even laying aside the 2nd and 14th amendments, many states Constitutions have similar RKBA provisions. At most they allow regulation of the wearing or concealing of arms, not of mere possession. The states with such RKBA provisions which also regulate or ban machine guns on the state level, are as guilty of violating their constitutions as the federal government is of violating its own. Only 6 states, (CA, IA, MD, MN, NJ, NY have no RKBA provision at all. A quick check of the others' provisions revealed no power to ban possession of arms, only allowances to regulate bearing and to define lawful uses of arms.
I thought this was a place to debate ideas without people calling each other ignorant and such. I post under my own name not behind a screen name, and I am willing to own up publicly to what I say here. Frankly, the stupidity of some of the debates around here, and the DU type name-calling just makes me sick.
I'm sorry, but that is incorrect!
I can't quote the number, but it is one of the last federalists papers. In it, Hamilton went to great lengths explaining the absurdity of a BOR - specifically using the freedom of the press as an example.
His reasoning was, essentially, why include a specific prohibition against something that the congress was not given the power to regulate in the first place.
That didn't mean they didn't want the Rights of the People to be recognized by the states.
Who are you calling stupid? The only one to make a mistake in this debate has been you.
Stupidity? I take it that means you have no means of contradicting my points and are now falling back to the age old tactic of namecalling and redirecting the issue.
Nice going Ace. Instead of challenging yourself and learning something, just run and hide.
Did a quick search - Federalist 84 . . .
It has been several times truly remarked, that bills of rights are in their origin, stipulations between kings and their subjects, abridgments of prerogative in favor of privilege, reservations of rights not surrendered to the prince. Such was Magna Charta, obtained by the Barons, sword in hand, from king John. Such were the subsequent confirmations of that charter by subsequent princes. Such was the petition of right assented to by Charles the First, in the beginning of his reign. Such also was the declaration of right presented by the lords and commons to the prince of Orange in 1688, and afterwards thrown into the form of an act of parliament, called the bill of rights. It is evident, therefore, that according to their primitive signification, they have no application to constitutions professedly founded upon the power of the people, and executed by their immediate representatives and servants. Here, in strictness, the people surrender nothing, and as they retain every thing, they have no need of particular reservations. "We the people of the United States, to secure the blessings of liberty to ourselves and our posterity, do ordain and establish this constitution for the United States of America." Here is a better recognition of popular rights than volumes of those aphorisms which make the principal figure in several of our state bills of rights, and which would sound much better in a treatise of ethics than in a constitution of government.
But a minute detail of particular rights is certainly far less applicable to a constitution like that under consideration, which is merely intended to regulate the general political interests of the nation, than to a constitution which has the regulation of every species of personal and private concerns. If therefore the loud clamours against the plan of the convention on this score, are well founded, no epithets of reprobation will be too strong for the constitution of this state. But the truth is, that both of them contain all, which in relation to their objects, is reasonably to be desired.
I go further, and affirm that bills of rights, in the sense and in the extent in which they are contended for, are not only unnecessary in the proposed constitution, but would even be dangerous. They would contain various exceptions to powers which are not granted; and on this very account, would afford a colourable pretext to claim more than were granted. For why declare that things shall not be done which there is no power to do? Why for instance, should it be said, that the liberty of the press shall not be restrained, when no power is given by which restrictions may be imposed? I will not contend that such a provision would confer a regulating power; but it is evident that it would furnish, to men disposed to usurp, a plausible pretence for claiming that power. They might urge with a semblance of reason, that the constitution ought not to be charged with the absurdity of providing against the abuse of an authority, which was not given, and that the provision against restraining the liberty of the press afforded a clear implication, that a power to prescribe proper regulations concerning it, was intended to be vested in the national government. This may serve as a specimen of the numerous handles which would be given to the doctrine of constructive powers, by the indulgence of an injudicious zeal for bills of rights.
On the subject of the liberty of the press, as much has been said, I cannot forbear adding a remark or two: In the first place, I observe that there is not a syllable concerning it in the constitution of this state, and in the next, I contend that whatever has been said about it in that of any other state, amounts to nothing. What signifies a declaration that "the liberty of the press shall be inviolably preserved?" What is the liberty of the press? Who can give it any definition which would not leave the utmost latitude for evasion? I hold it to be impracticable; and from this, I infer, that its security, whatever fine declarations may be inserted in any constitution respecting it, must altogether depend on public opinion, and on the general spirit of the people and of the government.1 And here, after all, as intimated upon another occasion, must we seek for the only solid basis of all our rights.
There remains but one other view of this matter to conclude the point. The truth is, after all the declamation 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. Is it one object of a bill of rights to declare and specify the political privileges of the citizens in the structure and administration of the government? This is done in the most ample and precise manner in the plan of the convention, comprehending various precautions for the public security, which are not to be found in any of the state constitutions. Is another object of a bill of rights to define certain immunities and modes of proceeding, which are relative to personal and private concerns? This we have seen has also been attended to, in a variety of cases, in the same plan. Adverting therefore to the substantial meaning of a bill of rights, it is absurd to allege that it is not to be found in the work of the convention. It may be said that it does not go far enough, though it will not be easy to make this appear; but it can with no propriety be contended that there is no such thing. It certainly must be immaterial what mode is observed as to the order of declaring the rights of the citizens, if they are to be found in any part of the instrument which establishes the government. And hence it must be apparent that much of what has been said on this subject rests merely on verbal and nominal distinctions, which are entirely foreign from the substance of the thing.
1. To show that there is a power in the constitution by which the liberty of the press may be affected, recourse has been had to the power of taxation. It is said that duties may be laid upon publications so high as to amount to a prohibition. I know not by what logic it could be maintained that the declarations in the state constitutions, in favour of the freedom of the press, would be a constitutional impediment to the imposition of duties upon publications by the state legislatures. It cannot certainly be pretended that any degree of duties, however low, would be an abrigement of the liberty of the press. We know that newspapers are taxed in Great-Britain, and yet it is notorious that the press no where enjoys greater liberty than in that country. And if duties of any kind may be laid without a violation of that liberty, it is evident that the extent must depend on legislative discretion, regulated by public opinion; so that after all, general declarations respecting the liberty of the press will give it no greater security than it will have without them. The same invasions of it may be effected under the state constitutions which contain those declarations through the means of taxation, as under the proposed constitution which has nothing of the kind. It would be quite as significant to declare that government ought to be free, that taxes ought not to be excessive, &c., as that the liberty of the press ought not to be restrained.
Theoretical question for you . . .
if the Second Amendment had not been ratified, would the federal / state governments have the power to regulate the RKBA issue??
The Second does not grant anything. It enumerates a preexisting right.