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
click here to read article
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.
Yes... I am also aware that the Courts of today don't see things that way. That is because they are basing their decisions on almost a century of increasingly screwed up rulings.
Let me say this slowly. The Federalist Papers were written in 1788. The Bill of Rights to the Constitution was ratified in 1791. Whatever the Federalist Papers have to say about a bill of rights in general, they cannot be taken as an analysis of the congressional history of, or the original meaning of the Bill of Rights of 1791. Nor can the Federalist Papers provide any analysis of or interpretation of the state ratifying debates for the Bill of Rights of 1791. Therefore the precise purpose, scope, or application of the Bill of Rights of 1791 cannot be found within the pages of the Federalist Papers.
Thanks - wnated to get that clear up front.
Now, since the power to regulate RKBA was not granted to the feds - what would the effect be if the cititzens of the state of say maryland DID grant that power to the legislature of that state . . . .
The one and only amendment that lends itself to incorporation was the one beginning "Congress shall make no law...". And that is simply not a function of the courts anyway. If the people wanted to incorporate it then the people could and should have done it through the amendment process.
Other amendments such as the Second don't need incorporation or an amendment, they mean what they say.
And you can't choose to give up rights. That would be like saying that if the citizens of Texas decided to give the power to the state to make slavery legal, it would be okie dokie.
Doesn't work that way.
"Hence, so far as a declaration of rights can to prevent the exercise of undue power, it cannot be doubted but such declaration is proper. But I confess that I do conceive, that in a Government modified like this of the United States, the great danger lies rather in the abuse of community than in the legislative body." - Madison
He goes on for sometime, even talks briefly about the "tyranny of the majority" and how a BoR could over come this. Giving us all one, equal, protected set of Rights to bind us together as a Nation. Not as a minimum, but only as a starting point to be grown upon by each State. Start with a firm foundation kind of thing.
Do you begin to get the idea yet?
"Five of the states that ratified the Constitution also sent demands for a Bill of Rights to Congress. All these demands included a right to keep and bear arms. Here, in relevant part, is their text:
New Hampshire: Twelfth[:] Congress shall never disarm any Citizen unless such as are or have been in Actual Rebellion.
Virginia: . . . Seventeenth, That the people have a right to keep and bear arms; that a well regulated Militia composed of the body of the people trained to arms is the proper, natural and safe defence of a free State. That standing armies in time of peace are dangerous to liberty, and therefore ought to be avoided, as far as the circumstances and protection of the Community will admit; and that in all cases the military should be under strict subordination to and governed by the Civil power.
New York: . . . That the People have a right to keep and bear Arms; that a well regulated Militia, including the body of the People capable of bearing Arms, is the proper, natural and safe defence of a free State; That the Militia should not be subject to Martial Law except in time of War, Rebellion or Insurrection. That Standing Armies in time of Peace are dangerous to Liberty, and ought not to be kept up, excess in Cases of necessity; and that at all times, the Military should be under strict Subordination to the civil Power.
North Carolina: Almost identical to Virginia demand, but with "the body of the people, trained to arms" instead of "the body of the people trained to arms."
Rhode Island: Almost identical to Virginia demand, but with "the body of the people capable of bearing arms" instead of "the body of the people trained to arms," and with a "militia shall not be subject to martial law" proviso as in New York."
Marshalls's opinion not withstanding, it seems silly to suggest that the rights of the Citizens of The United States can be infringed by any of the several states.
This looks good. Bump for later.
No. Not all. Just those that infringe RKBA. Product liability laws enforced at the State level would still be legal. I couldn't make a gun that blows up every third round and consider myself protected under the 2nd or any State RKBA provision.
It took hanging around on FR for me to finally understand the nature and impact of the 14th Amendment. For that I am grateful. Its clear that the 14th "muddied" the waters of the RKBA, and that successive court decisions since its passage have not helped the matter.
This would massively upset the BATFE applecart, make the Brady Bunch melt down completely, and possibly reduce the over all value of some NFA collectors "retirement stash".
But... it would be the RIGHT thing to do. We need our Freedom more than they need their laws. This should be self evident.
States wanted to keep their own authority regarding religion and other such matters. Thus, the scope of the First Amendment is limitted to Congress. You suggest that the authors and ratifiers deliberately wanted the First Amendment to apply only to Congress rather than to the states, and wrote the language to make that clear. If they likewise wanted to make the Second applicable only to Congress, is there any reason to believe they would not likewise have made that clear?
I don't understand what you mean here.
To me, the Fourteenth Amendment is really pretty clear. It is the Supreme Court which seems to have invented an "incorporation" process which is nowhere mentioned to preclude lower courts from reading the clear language of that amendment.
I would like to alter that a tad if you don't mind.
Second Amendment, America's ONLY Homeland Security! That's more accurate. Blackbird.
Senator Spector will not like this.
I saw him a few weeks ago expressing anger (it appeared to me ) that the "Rehnquist Court" in the Lopez case did not allow Congress to control guns in a school zone, using interstate commerce.
It is tyranny.
That is why I am dedicating as much of my time and energy as I can in support of the upcoming petition drive to add the Right to Keep and Bear Arms to the California Constitution.
It's been clear to me for some time that Democratic politicians are more anti-gun than the average Democrat. Getting the RKBA on the ballot provides an opportunity for liberal politicians to put up or shut up.
Hurricane Katrina has been a friend to gun owners, illustrating just how thin the thread holding civilization together can be.
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.
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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