Rewrite the Second Amendment?

Magic City Morning Star ^ | Jun 2, 2004 | Richard D. Skidmore

[tpaine]

In the absence of any evidence tending to show that possession or use of a "shotgun having a barrel of less than eighteen inches in length" at this time has some reasonable relationship to the preservation or efficiency of a well regulated militia, we cannot say that the Second Amendment guarantees the right to keep and bear such an instrument.
Certainly it is not within judicial notice that this weapon is any part of the ordinary military equipment or that its use could contribute to the common defense.

Wow, -- coming out of the closet, are you?
-- Short barreled shotguns have been part of the standard issued military arms for hundreds of years. -- This is a 'given' to anyone who knows military weapons.
Why do you think short shotguns are 'evil'?

[Djarum]

Why do you think short shotguns are 'evil'?

I don't share the court's erroneous opinion, I posted that so arthurus could view the important portion of the ruling.

[tpaine]

I subscribe to the States' rights view.
236 Djarum

The 'states rights view' claims that States can prohibit ANYthing a majority sees fit to call 'evil'.

Police powers are used in the same way, as I explained in #236.

Then why do you subscribe to a view that does not honor the principles of our Constitution?

[Djarum]

Then why do you subscribe to a view that does not honor the principles of our Constitution?

Whether it honor's the principles of our Constitution is moot, but as I already wrote, "We cannot replace the sizeable portion of our population that promotes and facilitates this tyranny, at best we can separate ourselves from them, which is why I subscribe to the States' rights view."

[RKV]

Horsesh*t Billybob. Senator Jacob Howard of Michigan, introduced the 14th Amendment, specifically stating that the privileges and immunities clause would extend to the states “the personal rights guaranteed and secured by the first eight amendments.” What happened subsequently is that a bunch of Democrats hijacked the case law and created the partial incorporation or non-incorporation theories out of nothing. You know better - original intent does matter.

[robertpaulsen]

It was thought that the U.S. Constitution BOR would be selectively incorporated under the P&I Clause of the 14th amendment. The USSC surprised everyone and used the Due Process Clause of the 14th amendment instead. Why? I don't know.

"IF there is an individual right to keep and bear arms, as referred to in the Second Amendment, and IF citizens of the United States are immune to federal infringement of such right, and IF such immunity is among the "privileges and immunities" due process (my guess is that the second amendment would be incorporated under this clause, not P&I) referred to in the Fourteenth Amendment, THEN why does my right to keep and bear arms depend in any way on the Constitution of California?"

At that point it wouldn't, since now the federal government and the USSC are defining the meaning of the second amendment, and the Supremacy Clause is in effect.

[robertpaulsen]

"then the Congress could not call forth the militia as provided in Article I, Section 8 Clause 15 ..."

Sure they can. Article I, Section 8 Clause 16 allows the federal government to "provide for organizing, arming, and disciplining the Militia ..."

What's the problem?

"RP asks us to believe an interpretation ..."

What????

[robertpaulsen]

"could as easily have found Dred Scott to be a free citizen of the United States"

The USSC is not allowed to confer citizenship. Congress is given the power in Article I, Section 8, Clause 4, "To establish an uniform Rule of Naturalization ..."

And therein was the problem, and that's why the 14th amendment was necessary.

[robertpaulsen]

Also remaining unincorporated are the seventh amendment, the "Grand Jury" clause of the fifth amendment, and the third amendment (although a lower court did rule on the third amendment, the USSC has not).

Thank you for settling this issue.

[Congressman Billybob]

I'm a firm believer in "original intent." However, a single floor speech by a single Member of Congress does NOT establish the intent of the entire Congress, much less the intent of Congress plus the intent of the ratifying state legislatures.

By contrast, it was clear from most Members of Congress and most ratufying state legislatures that the BOR were intended, when written, to apply only to the states.

John / Billybob

[robertpaulsen]

Please read post #239.

[William Tell]

robertpaulsen said: "The USSC is not allowed to confer citizenship. Congress is given the power in Article I, Section 8, Clause 4, "To establish an uniform Rule of Naturalization ..."
And therein was the problem, and that's why the 14th amendment was necessary.

Once again you find a way to disallow freedom when there is a way to recognize freedom. As I pointed out before, Dred Scott lacked only the economic value of a slave to be a free man. Since he was born in the United States, he hardly needs naturalization, he only requires freedom from slavery.

[William Tell]

robertpaulsen said: "It was thought that the U.S. Constitution BOR would be selectively incorporated under the P&I Clause of the 14th amendment. The USSC surprised everyone and used the Due Process Clause of the 14th amendment instead.

WHO thought that the BOR would be selectively incorporated? Please provide an act of "incorporation" which used the "due process" clause. The very word "incorporate" implies a process to include in the body of privileges and immunities. To what would the word "incorporate" refer if the issue is "due process"?

[Ken H]

Whether or not the incorporation doctrine is legitimate, it is probably too late to go backwards and reject that doctrine. However, it is clearly a dishonest doctrine as long as some parts of the BOR remain unenforced.

Would incorporation of the Second Amendment have any disadvantages with respect to Federal encroachment on the RKBA?

Does having the Second Amendment unincorporated help protect the RKBA from Federal encroachment?

[William Tell]

I said: "The Gitlow decision was a recognition that freedom of speech is a privilege and immunity whose infringement ..."

And robertpaulsen said: "No. The USSC said nothing about "privileges and immunities" in the above case. The "P&I vs. due process" argument is a separate subject. "

robertpaulsen also said: It was thought that the U.S. Constitution BOR would be selectively incorporated under the P&I Clause of the 14th amendment. The USSC surprised everyone and used the Due Process Clause of the 14th amendment instead. Why? I don't know.

I think that you need to read Gitlow v. New York a little more carefully.

With regard to freedom of speech the decision states:
"For present purposes we may and do assume that freedom of speech and of the press -- which are protected by the First Amendment from abridgment by Congress -- are among the fundamental personal rights and "liberties" protected by the due process clause of the Fourteenth Amendment from impairment by the States."

Since the court decided AGAINST Gitlow and ruled that his liberty was not deprived without due process, the question arises, how did the Supreme Court make the determination that freedom of speech was included among those liberties. Their reference to the First Amendment protection is only relevant in light of the "privileges and immunities" which are extended to citizens of the United States.

[William Tell]

Ken H asks: "Would incorporation of the Second Amendment have any disadvantages with respect to Federal encroachment on the RKBA? "

Ken H also asks:"Does having the Second Amendment unincorporated help protect the RKBA from Federal encroachment?"

The term "incorporation" is used to describe the glacially slow process whereby the Supreme Court accepts difficult cases and provides the freedom we seek from onerous state laws.

There is quite a controversy within the pro-gun community regarding which cases should be considered. Since I wish to have my infringed right restored in my lifetime, I don't feel that I have the luxury to wait for just the right case.

Those who believe that there is some optimum series of cases would probably prefer to see the smallest possible movement in each successive case.

Generally, the Supreme Court should decide cases which remove federal infringements prior to suggesting that the Second Amendment applies to individual states.

A decision that "shall not be infringed" is equivalent to "Congess shall make no law" would be a great start. This would shut down the unConstitutional system of FFLs, gun registration, the BATFE, and anti-bayonet laws. If only our Founders had been just a little more suspicious of government power. I am sure that they are rolling in their graves to hear me say that. A simple ruling that requiring a serial number on a firearm is an infringement would have almost the same effect.

Recently, the Massachusetts Supreme Court warned the legislature of Massachusetts that they needed to allow gay marriage. The government actually has no business interfering with what was a church matter for centuries, but the Massachusetts Supreme Court has taken a different approach to the problem of granting freedom.

In much the same manner, the US Supreme Court needs to warn the states that it will no longer facilitate gun control and it needs to warn the Congress that there may be need to start the amendment process with regard to WMDs or nuclear tactical weapons. This is long past due.

Once the US Supreme Court clears up the federal system, it would then be time to recognize that the "right" to keep and bear arms cannot be infringed by anybody, including the states. The encouraging trend in concealed-carry laws has already resulted in both Vermont and Alaska not requiring permits. Incorporation of the Second Amendment would require that all states stop infringing the right to carry a concealed arm.

Our nation survived pretty well for a century and a half with almost no laws restricting the right to keep and bear arms by free persons. As recently as 1934 the federal government disguised the National Firearms Act as a tax mechanism because it was obvious at the time that they could not do otherwise and still claim that there was no infringement. There is no justification to believe that we cannot continue to survive without anti-gun laws.

[RKV]

The quote was from the Senator who introduced the Amendment John. I would be like reading the McCain or Feingold on the CFR {disaster). Same story is true from the House as well (see John Bingham of Ohio for instance). You are just looking for a way to get your pet theory (partial incorporation) to work. Sorry to be so negative. I do respect your opinion - I just disagree and I think this is an important point.

[Ken H]

A decision that "shall not be infringed" is equivalent to "Congess shall make no law" would be a great start. This would shut down the unConstitutional system of FFLs, gun registration, the BATFE, and anti-bayonet laws. If only our Founders had been just a little more suspicious of government power. I am sure that they are rolling in their graves to hear me say that. A simple ruling that requiring a serial number on a firearm is an infringement would have almost the same effect.

It would certainly be a move in the right direction!

Once the US Supreme Court clears up the federal system, it would then be time to recognize that the "right" to keep and bear arms cannot be infringed by anybody, including the states. The encouraging trend in concealed-carry laws has already resulted in both Vermont and Alaska not requiring permits. Incorporation of the Second Amendment would require that all states stop infringing the right to carry a concealed arm.

My $64,000 question--

Would it make any difference in how and where a restrictive Federal gun law would apply if the Second Amendment is incorporated versus unincorporated?

[RKV]

I would further recommend "The Right to Keep and Bear Arms under the Second and Fourteenth Amendments The Framers' Intent and Supreme Court Jurisprudence" by Stephen P. Halbrook for your reading John and for the others in this debate. When looking for original intent, see the part of the article where Halbrook examines the voting patterns of those who approved the 14th Amendment and how they also voted in favor (to a man) of the Freedman's bureau bills federally protecting 2nd Amendment rights. "When reintroduced after the President's veto, and as passed, the Freedmen's Bureau Act protected the "full and equal benefit of all laws and proceedings concerning personal liberty, personal security, and the acquisition, enjoyment, and disposition of estate, real and personal, including the constitutional right to bear arms". Cong. Globe, 39th Cong., 1st Sess., 3412; 14 Stat. 176 (emphasis added)."

[Ken H]

Re my questions:

Would incorporation of the Second Amendment have any disadvantages with respect to Federal encroachment on the RKBA?

Does having the Second Amendment unincorporated help protect the RKBA from Federal encroachment?

What I'm getting at is this:

Would incorporation of the Second Amendment open the door for the Feds to apply a restrictive gun law more widely than if it remains unincorporated?