Posted on 03/20/2007 4:04:15 PM PDT by neverdem
Thanks. To be clear, I want all of the Bill of Rights to be applied to the states and I want the 2nd to be considered an individual right and not a collective one.
To make this happen, though, we have to recognize what the current legal realities are and then determine what our options are. Barron v Baltimore is a cornerstone decision from almost 200 years ago so it is doubtful that it will every be overturned.
Although, many here do not like incorporation, it is our best shot - especially the approach of arguing that the Bill of Rights cannot be incorporated selectively.
The next best approach, I feel, is to argue that the wording of the 2nd is unique and unlike the other 8 amendments, have always applied to all levels of government.
If either of these two are successful, we still need the SCOTUS to affirm the DC decision that the 2nd is an individual right.
Ignoring the reality of Barron v Baltimore is not going to get us anywhere though.
Without incorporation, none of the bill of rights would apply to the states. I do agree that it does seem strained, but the only other hope is overturning Barron v Baltimore which is very unlikely.
Congress OF THE United States begun and held at the City of New York, on Wednesday the Fourth of March, one thousand seven hundred and eighty nine.
THE Conventions of a number of the States having at the time of their adopting the Constitution, expressed a desire, in order to prevent misconstruction or abuse of its powers, that further declaratory and restrictive clauses should be added: And as extending the ground of public confidence in the Government, will best insure the beneficent ends of its institution
RESOLVED by the Senate and House of Representatives of the United States of America, in Congress assembled, two thirds of both Houses concurring, that the following Articles be proposed to the Legislatures of the several States, as Amendments to the Constitution of the United States, all or any of which Articles, when ratified by three fourths of the said Legislatures, to be valid to all intents and purposes, as part of the said Constitution; viz.:
ARTICLES in addition to, and Amendment of the Constitution of the United States of America, proposed by Congress, and ratified by the Legislatures of the several States, pursuant to the fifth Article of the original Constitution.
This clearly is all the "incorporation" the Amendments need to be part of the "Supreme Law of the Land", the "laws of any State to the contrary notwithstanding", and "the Judges of every State shall be bound thereby".
Yes. You have inalienable right to defend yourself. If you're living above the tree line like Jeremiah Johnson, you also have the natural right to defend yourself with whatever weapon you choose. No one cares.
But if you choose to live among people who have formed a society, then your right to defend yourself with a weapon may or may not be protected by that society.
You have a right to defend yourself, yes. That is an inalienable right. But your right to use a weapon while doing so may be restricted.
"Low life thief, Morio Billings, broke into the De Mar residence last week. He stole a TV set, a ring of keys and Mr. De Mar's BMW sport utility vehicle. A few nights later, the brazen felon - Mr. Billing's - entered the DeMar home again for second helpings, setting off a burglar alarm which propelled Mr. De Mar down the stair case with his loaded 38 caliber Smith & Wesson; greeting Morio with some unexpected hot lead."
"Wounded, Billing's crashed through the front window and drove himself to the local hospital in DeMar's stolen BMW."
"Now De Mar has been arrested and charged for violating Wilmette's firearm ordinance, banning hand gun ownership, and an additional charge for an expired Illinois Firearms Ownership Identification Card."
Again, that is not how the courts see it and is not legal reality. You guys can post snippets of the constitution all you want, but John Marshall and his court had access to this same words as have all of the subsequent Supreme Court justices and they don't see that way.
The bill of rights only apply to the federal government - that has been settled law for almost 200 years.
Overturning Barron v Baltimore, a landmark decision made almost 200 years ago by one of the most revered justices and a contemporary of the ratification, is just very unlikely. Especially since every court since that time and even those after the 14th amendment have had the opportunity to do it but have refused to.
For better or worse, total incorporation of the bill of rights via the 14th amendment is our best hope.
And they thought the world was flat for thousands of years. Length of time in the belief in an incorrect philosophy does not lend it any verity.
One SCOTUS case re-iterating the text of the legislation from December 15th 1791 is all that is required to correct almost 200 years of bad, horrible, possibly criminal stare decisis.
If a person believed that the world was flat then that didn't make it a reality.
On the other hand, a SCOTUS ruling, correct or incorrect, is law of the land and is reality until it is overturned.
I hope the difference is not lost on you.
I hope the difference is not lost on you.
Note the other solicited response in #484 (and other numerous & verbose relevant postings by same) clearly points out the status quo (to wit: gov't facilitation of criminals against their victims), unapologetically defending it as status quo with no interest in recognizing, much less resolving, the injustice.
Apparently Mao was right.
Methinks JeffAtlanta fully agrees with you. He is merely (albeit animatedly & agressively) pointing out that those in power don't particularly care.
-PJ
It's the typical dilemma. Arguing over the definition of "water" while Rome burns...
"On the other hand, a SCOTUS ruling, correct or incorrect, is law of the land and is reality until it is overturned."
Sorry but you're wrong 100%
Article VI, Paragraph 2 of the United States Constitution is known as the Supremacy Clause:
“ 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.
He agrees.
He's just noting that so long as SCOTUS doesn't actually recognize that fact, their verdicts are modeled by the legislature and enforced by the executive. Yes, it's law of the land - but if the arresting cop doesn't know and the convicting judge doesn't care, you can continue studying that notion as part of a prison-provided law course.
I guess I misread what he said then. Sure looked to me like he was making the claim that SCOTUS decisions are the Supreme Law of the land.
I stand corrected.
Sorry Jeff, see post 495 for my correction.
True but that's quite different than licensing, registering and requiring background checks to simply own a firearm done entirely in the absence of any overt act of harm including acts that could be reasonably considered credible threats. No such standard applies to freedom of speech, freedom to assemble, freedom to worship and so on.
The Militia Acts, some of the first acts of Congress, predominantly, if not completely, written by the same folks who had just written the Bill of Rights, make no sense without the expectation that nearly every able man was armed. The Militia Acts are linked through the first link in comment# 370. Here's section VII:
"VII. And be it further enacted, That the rules of discipline, approved and established by Congress, in their resolution of the twenty-ninth of March, 1779, shall be the rules of discipline so be observed by the militia throughout the United States, except such deviations from the said rules, as may be rendered necessary by the requisitions of the Act, or by some other unavoidable circumstances. It shall be the duty of the Commanding Officer as every muster, whether by battalion, regiment, or single company, to cause the militia to be exercised and trained, agreeably to the said rules of said discipline."
That was the extent that the militia was to be "well regulated" in the Second Amendment, i.e. to the standard of the Continental Army as propounded by Baron Von Stueben in 1779, accepted by George Washington and approved by Congress. That's what was meant in the prefatory clause of the Second Amendment by "well regulated," they were expected to be trained to the standard of a Regular Army soldier, even though they were part of a state militia. If you read the link to the Militia Acts completely, you'll understand that they could be federalized at the drop of a hat. The Founding Fathers feared a large standing "regular" army. They expected that the militia with their own weapons could be a viable substitute for a large standing, aka regular, army.
N.B. The U.S. Army Sixth Infantry Regiment is called "The Regulars", as in Regular Army, not the regulated army. I had been assigned to it a while ago, so I can attest to its name.
LOL - I like that. ct is right, I didn't mean that the SCOTUS literally makes laws but their decisions have the effect of either striking down or affirming existing ones and in some cases, even have the effect of making new laws by redefining the current interpretation of the constitution.
Since the SCOTUS has, over time, come to speak for the Constitution (judicial review/"it means what they say it means"), their decisions have the, de facto, force of the constitution.
Of course, the SCOTUS has no power to enforce their decisions but the resulting constitutional battle is one that very few executives would ever engage in.
I am in total agreement with the concept that the 2nd amendment is an individual right rather than a collective one. The problem is that Barron v Baltimore is settled law and the Parker decision will not affect any state laws.
Now the supreme court could rule that the Bill of Rights cannot be incorporated selectively (our best hope) or that the unique language of the 2nd makes it unique among the 8 and has always applied to all forms of government.
The courts, even after the passage of the 14th amendment, have had opportunity after opportunity to overturn Barron v Baltimore but all of them for 170 years have refused to do so.
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