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 ...
Now those statements are going to inflame the hell out of a lot of people, and several will probably yell "ignorant" and "you don't get it." People are often reading comprehension challenged. Given the supercilious tone of so many would-be constitutional experts on this thread, you'd think it would make me laugh. It doesn't. I like my guns as well as the next guy. If we want the law changed we're going to have to do it one state at a time, unless a majority on the Supreme Court decides to incorporate or otherwise change its mind. Here's a link showing the court's non-incorporation.
http://caselaw.lp.findlaw.com/data/constitution/amendment02/
TaTa.
Maybe. Maybe not.
There's more to say about the Constitution than just what the Supreme Court has decided.
It is possible for people to form their own opinions about the Constitution and the Supreme Court's decisions.
The language of the Second Amendment refers quite explicitly to a "right of the people". It could have referred to a right of the states or a right of militias.
Further, the language of the Second Amendment is a bar to infringement of the right to keep and bear arms. One could readily understand it to make the people immune to federal action infringing that right.
The Fourteenth Amendment quite clearly makes several points.
One point is that "All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside."
Another point is that "No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; "
If one grants that the Second Amendment is a guarantee of immunity from infringement, then the language of the Fourteenth Amendment would appear to prohibit any state from making a law which abriges such an immunity.
Please tell me how this reasoning is wrong.
This is where we disagree. We can, and DID "give up" some inherit rights by granting the state / federal government the power to regulate those areas - anything we did not grant, we retained unto ourselves.
For example, "free" men would be able to engage in commerce with anyone / everyone they chose, regardless of whether such commerce were intrastate / interstate. However, we granted power to both the state and federal governments to regulate these areas.
The US Constitution SHOULD take precedent. Article VI makes that clear.
Valid point - but I'm arguing whether the government even has the power to regulate! For example - I see no power granted unto the federal government which would allow the government to regulate RKBA issues! (except of course the convuluted paths via abused clauses such as the commerce clause).
Some state constitutions may allow some degree of regulation, but, I would contend that the majority of them contain no language which grants the legislatures to regulate RKBA issues. (Someone will likely prove me wrong here :) )
I agree that article VI's "supreme law" assertion is compelling. Actually, it, like the BoR shouldn't even need to be stated!! But, I guess some things, however obvious, must be stated to prevent so wisea** lawyer type from misconstrueing the "intent"!! However, at the time that this clause was adopted, it applied only to the unamended constitution. THAT Constitution simply granted the fed's limited powers and prohibited to the states the exercise of certains powers (like coining money).
Well, theory is "fun", but the reality is, all levels of government have been exceeding / abusing the powers grnated for a VERY long time now - and the majority of "WE the People" seem to care less.
For me, it is an interesting exercise when looking at what the congress passes and the president signs - I truely believe that the majority of the founders would be quite displeased with the lot of them.
That is exactly what Brady et al want us to believe. An Amendment goes into effect immediately after ratification, not after the court rules on it. Same as any other law.
To say otherwise is sheer lunacy.
Our Rights exist without the Protection of the Constitution. The Constitution does not GIVE us Rights. The Bill of Rights was added to increase protection for a minimal set of Rights for ALL Americans on top of and in addition to any State protections.
You seem to be very confused about a great many things. You are obviously a product of the last 20-30 years worth of what passes for academia today. Stop regurgitating what you were told and learn to think for yourself. Start reading the notes from the First Continental Congress to see what those who passed those Amendments thought the scope of their affect would be. It is quit clear that they assumed that any Federal BoR would supersede merely State protections. You will find out VERY quickly that you are quite, horribly, completely wrong.
This runs contrary to current legal fiction. It has to or the entire system would collapse under the weight of it. Think of all those Federal agencies and programs that have NO CONSTITUTIONAL POWER TO EXIST. Think of all those legislators and lawyers who have built careers out of persecuting us for trying to exercise our Rights. They have a vested interest in maintaining the status quo...
So... apparently, do you...
Er, that's precisely what they did. (See Msg#48 for an unambiguous original-intent citation.)
The BoR is exactly what it says it is. Incorperation IS ratification. Once a bill is passed, it goes into effect. At the Federal level, Amendments on civil Rights are 50 State supreme as per Art 6 Para 2 as soon as they are ratifyed in convention. Just like we have always maintained against the bleatings of the gun grabbers and their legal hounds.
This has to stop. We cannot let them get away with their lies any more.
You and I are in almost complete agreement. Mostly certainly with your last two paragraphs.
More to the point, the second throught the eight do not need incorporation at all, they are simply an acknowledgement of rights inherent to the people.
14th Amendment guys like you are like the Colonel in the movie the Bridge Over the River Kwai. You embrace the building of that bridge until you look at the power the 14th Amendment has given to courts to act as both a legislative and executive branch and then say, Oh Lordy what have I done. You just haven't looked at the bridge yet.
I'm a bit unclear where you come down on the 14th Amendment. You're not buying into the idea that the people do not have a RTKABA unless the second is incorporated by the 14th by courts, are you?
Works for me!
Our Rights were extant before the Constitution. The Constitution of the FedGov and the States were just a list of power we were ceding to our various governments. The Second cannot be ceded to a State government as the Federal BoR over-rides merely State Laws.
The Founders knew this. Everyone at the time accepted it save those who wanted MORE POWER for themselves. A couple hundred years hasn't changed that last equation. Those bleating that the BoR does not apply to State infringements because of the selective incorperation of the 14th Amendment by activist judges and lawyers... are idiots.
"Incorporation" comes from the 14th amendment, requiring states to respect the Bill Of Rights. Unfortunately, SCOTUS has decided that each Right can only be deemed "incorporated" if a relevant case makes it to SCOTUS and they decide that the 14th Amendment applies to that right.
That is exactly correct albeit entirely unconstitutional. But the latter is a mere trifling to the Marxists in the Cal Legislature. I have been waiting for the California Legislature to try and do it. The Silviera ruling from the 9th Circuit has set it up. I think it is only a matter of time - the right governor, the right courts, the right legislative balance and that's all she wrote. We are precariously close to that day in Cal. It will be interesting to see how the San Francisco Prop H vote turns out. And even more interesting if it passes.
All kidding aside, this is a serious issue. The first article I wrote for the Washington Weekly was a review of Unintended Consequences. That was in 98 if I remember correctly. That's when I first found out about Free Republic.
I have no doubt that there is an underlying international agenda to disarm people around the world. It's the first step to world government. Many prominent people, both R and D, have spoken publicly about the coming end of the nation-state. I used to have a printout of those quotations. I think the whole idea is hideous and I oppose it.
At the same time, we must understand what the federal constitution and BOR say and do not say about gun ownership. We must understand how the BOR was commonly understood from 1791 till Barron v. Baltimore and after. We must understand what the framers of the 14th Amendment understood themselves to be doing. We must understand how the Court has used that Amendment. Then we can craft a strategy to protect our freedom without advocating a new type of judicial activism that achieves our goals in an unconstitutional manner. These are complex subjects and they stir up a lot of angry passion. Those of us for gun ownership must try to quell those passions and speak to each other calmly and as friends.
You'll get no argument from me about that. I have learned a great deal about law in general and about the current and historical legal aspects of RKBA in particular by being a part of this forum over the last several years. That's because despite what many of us laymen think, there are still honorable men and women practicing the profession of law. I do think they may be in the minority, however.
I try to temper my wishful thinking about guns with the reality of the current state of gun laws around the country and the reality of the mountain of case law on the books with regard to same. No, I don't much like what I see. As much as I'd like to see it, I don't think the day is coming when we will as free citizens be able to exercise the 2nd without any restrictions at all. Even the 5th Circuit's Emerson case left open the door to gun regulation.
I guess it would help to have judges in the Federal Judiciary who really were more concerned about encroachments on the Constitution and less concerned about social engineering. The sad truth is that the judiciary has always been politicized; its just seems it has become much more so in the last 50 years. While there may be a few old line RATs that do support the RKBA, the party line clearly is to make it very difficult, indeed, to own firearms. The Brady Boob's idea of instituting a federal needs-based licensing system is a part of the RAT platform, even though it may not be written down as such. Everything they do in the legislative arena points down that road. The really sad truth is that the Republican Party would just as soon maintain the status quo with regard to guns as long as they are the majority. The sunsetting of the egregious federal AW ban was the first time in my lifetime that any gun law was removed from the books.
In a way I think its a good thing that the US SC has not deigned to hear a real 2nd Amendment case in some time. I fear with the current makeup of the bench, the decision may not be the "right" one. I figured if they had taken Silviera, we would all have been hosed.
As Judge Bork stated about Roe v. Wade, for 184 years everyone assumed states, as sovereign entities (within the sphere of their reserved powers), had the right to outlaw abortion. Roe overturned that, and Bork found it odd that it took that long for people to understand the original meaning of the constitution. In other words, it was activism.
Both liberals and conservatives can be activists, when it's their ox being gored.
I could go on and describe the original theory of state constitutions and of the federal constitution, the first being plenary governments, the latter being a government of delegated powers only. But what's the use? Until someone gets a court somewhere to accept these ideas I see put forth above, it's all just hot air anyway. Save me a seat to that revolution.
The thing that bugs me about forums such as this is that people read something and all sorts of replies come to their minds, some of which they choose to post. Some of those replies accuse/attack someone on a totally wrong basis. I'm guilty of it too, I'm sure.
I have spoken about incorporation in other posts on this forum. I don't know how to find them, and frankly don't have the energy to. I said it's a mess, it does not represent the intent of the authors and ratifiers of the 14th amendment. I believe that, and the expert is Raul Berger and the book is "Government by Judiciary." Anyone who has not read the book is not ready for the discussion. It is that important a piece of scholarship.
The problem for your position is that absent incorporation, no part of the BOR applies to the states, except the 9th in some unspecified way, and the 10th, where it affirms the reserved powers of the states.
If you disagree with that please give me a CASE CITATION, not someone's philosophy. We are talking law here, not philosophy. I will check to see your reply, but if it's not case citations I'm finished with this very enlightening thread.
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