Skip to comments.The U.S. Constitution [Misinterpreted] Online
Posted on 07/09/2004 9:19:09 AM PDT by tpaine
This website very insidiously interprets our US Constitution in a pro-Statist manner. IE --- "The Bill of Rights did not apply to the states."
"The Bill of Rights was understood, at its ratification, to be a bar on the actions of the federal government.
Many people today find this to be an incredible fact. The fact is, prior to incorporation, discussed below, the Bill of Rights did not apply to the states."
It is incredible, seeing the author completely ignores the supremacy clause in Art. VI.
He then goes on to bash our 2nd Amendment:
"Recognizing that the need to arm the populace as a militia is no longer of much concern, but also realizing that firearms are a part of our history and culture and are used by many for both personal defense and sport, this site has proposed a new 2nd Amendment - an amendment to replace the 2nd Amendment to the Constitution. This proposed text is offered as a way to spark discussion of the topic.
Section 1. The second article of amendment to the Constitution of the United States is hereby repealed.
Section 2. The right of the people to keep arms reasonable for hunting, sport, collecting, and personal defense shall not be infringed.
Section 3. Restrictions of arms must be found to be reasonable under Section 2 by a two-thirds vote of Congress in two consecutive sessions of Congress before they can be forwarded to the President for approval.
This proposed amendment is a truer representation of how our society views our freedom to bear arms. Because "reasonableness" can be far too elastic, the two-Congress restriction requires that two Congresses in a row pass the same bill - this allows both thoughtful reflection and for the opinions of the people, to be expressed between these votes, to be heard (both at the ballot box and in general). It is an unusual, but not unprecedented, way of passing legislation.
Finally, the courts would have the ultimate authority in determining if a restriction is not reasonable, providing a final layer of protection (after the two pairs of debate in the House and Senate and the President's own agreement). The militia is removed from the equation, greatly clarifying the purpose of the amendment.
Historical note: in Section 2, the "collecting" clause was added, and Section 3 is a replacement for "The Congress shall have power to enforce this article by appropriate legislation" after concerns over "reasonableness" were examined more fully.
Reasonable restrictions do seem to be the way to go, acknowledging the Amendment, but molding it, as we've done with much of the Constitution.
After all, we have freedom of speech in the United States, but you are not truly free to say whatever you wish. You cannot incite violence without consequence; you cannot libel someone without consequence; you cannot shout "Fire!" in a crowded theater without consequence. Why cannot gun ownership by similarly regulated without violating the Constitution?
The trick is finding that balance between freedom and reasonable regulation. Gun ownership is indeed a right - but it is also a grand responsibility. With responsibility comes the interests of society to ensure that guns are used safely and are used by those with proper training and licensing. If we can agree on this simple premise, it should not be too difficult to work out the details and find a proper compromise."
Know you enemy.. This man Steve Mount is NOT a friend of our Constitution.
(Excerpt) Read more at usconstitution.net ...
In a federal election, the question is, "If a state finds that these CFR laws violate free speech and the state allows issue ads (say in a local newspaper) within 30 days of a federal election, aren't they violating the Supremacy Clause?
Too many Conservatives seem to take this position also, especially with respect to the first amendment.
The author does not seem to distinguish between actions and tools. A firearm ban is not the equivalent of preventing someone from yelling "fire" in a crowded theater (2nd Amd. vs. 1st Amd); it is more the equivalent of cutting one's tongue out.
The author is just another prohibitionist, justifying an attempt to over-regulate behavior by banning the 'evil' property associated with the supposed sin.
BOR was added to the U.S. Constitution to further restrict the powers of the federal government.
As I stated - I posted without commentary. None should be necessary. If I posted the BOR as a seperate document it would be included.
Now, along comes a citizen of the state (funded by the gun grabbers) and he files a suit saying that the state law allowing handguns violates his unalienable right to life, liberty, and property, in that the vast majority of crimes involving guns use handguns.
Now, I'm not a lawyer. I don't know how the suit would be worded. But I imagine it would be worded similar to the justification used in the California AWB or the Federal AWB.
The point being that without second amendment protection, the gun grabbers would be free to pursue court cases in favorable venues. It would be appealed to the federal courts. It may go to the USSC.
Nevertheless, it would have a domino effect on other states.
In Barron v. Baltimore, decided in 1833, Chief Justice Marshall held that the takings clause of the Fifth Amendment did not apply to state and local governments. It was only years after passage of the 14th Amendment that parts of the Bill of Rights began to be applied to the states.
The 14th Amendment was intended to render Barron v. Baltimore void, to overrule it.
The Supreme Court proceeded almost immediately to pretend that the Amendment meant something other than what was intended by its authors.
The southern States abusing the BOR's were adamant. They were determined to ignore the 14th, so the USSC, and the country, went along with Jim Crow. Restoration of the Union was supposedly more important than the individual rights of newly freed slaves.
Now we find the 'states rights' crowd [this time allied with socialists] again saying that ~some~ individual rights must be ignored for the good of society & our union. -- That we must have State laws that ban evil objects, and restrict sinful behaviors.
Nothing ever changes but the faces of the prohibitionists.
Incorporation can't make things worse. You're overlooking the fact that the 2nd isn't ever going to be incorporated unless the Court declares RKBA is an individual right, subject in all likelihood to strict scrutiny. A right that isn't respected isn't going to get incorporated in the first place, because incorporation essentially defines a right as being of utmost importance. You have this idea that the Court is going to incorporate a right that the Court doesn't even respect. It ain't gonna happen like that.
No. It wouldn't be the state's call to allow or even to disallow issue ads. States aren't required to enforce federal laws. If people run the ads, the feds will have to bust them.
I understand. Our second amendment rights are defined and protected by our state constitutions -- always were.
My scenario works, and it's not "gloom and doom". It wasn't gloom and doom in Wilmette. Or Morton Grove. Or Chicago. The USSC can incorporate, finding that the individual RKBA is a fundamental right to liberty. Fine.
Sometime down the road, the USSC defines "arms" as excluding handguns, leaving everything else. Certainly that's plausible.
My point is that definition can then be used by the gun grabbers as in my post #126. And instead of that definition being applied by one city or even one state, that definition now applies to all 50 states.
Don't tell me that incorporation can't make things worse.
Hardly. You act like the civil war never happened. The 14th meant that the states would be required to protect RKBA, until the Supremes decided that they didn't like that idea. You can pretend otherwise. Some of us will continue to try to get that error fixed.
Under the Confederacy. Yes. We became a Republic though and set up a Federal Constitution. The States ceded a certain amount of power to the FedGov. This is a point you refuse to acknowledge as it would ruin your entire "incorporation" argument.
Incorporation was never needed. It is a legal fiction brought about by racist, power monger judicial activists and those like you who persist in being their enablers and dog robbers.
How many more times do we have to go over all of this Bobby? The intent of the Founders is clear, despite the judicial and legislative malfeasance of the last hundred years. Watching you do the same, ignorant, purposefully obtuse song and dance time and again is getting tiresome.
Just keep repeating the big lie. It just firms the rest of our opinions that you are a Brady Campaign shill and a troll.
No, it's not plausible in the least. Incorporated rights over time get expanded, not contracted. There's no reason to expect that RKBA would be the exception to the rule. Hell, if history is any clue, the next thing you know, the Court will declare that everyone has a right to a taxpayer-provided arsenal.
I was wondering why the USSC never incorporated the second. So it was because they "didn't like the idea", huh?
Compelling legal analysis there, Sandy.
I guess the Supremes decided they didn't like the idea of the third, or the seventh, or the "Grand Jury" clause of the fifth either. Picky picky.
I understand. Our second amendment rights are defined and protected by our state constitutions -- always were.
The CA Constitution proves you wrong, paulsen. The 2nd Amendment is part of our supreme Law of the Land. Nothing will ever change that.
My scenario works, and it's not "gloom and doom". It wasn't gloom and doom in Wilmette. Or Morton Grove. Or Chicago. The USSC can incorporate, finding that the individual RKBA is a fundamental right to liberty. Fine. Sometime down the road, the USSC defines "arms" as excluding handguns, leaving everything else. Certainly that's plausible.
No, such a definition would be a clear infringement, repugnant, and void. Neither States nor the people would be bound by it.
My point is that definition can then be used by the gun grabbers as in my post #126. And instead of that definition being applied by one city or even one state, that definition now applies to all 50 states. Don't tell me that incorporation can't make things worse.
'Incorporation' is a legal myth. ALL of our Constitutions Amendments apply to ALL levels of Government & to ALL levels of Officials in the USA, unless otherwise specified.
That's exactly right. The Court picks the rights that they decide are most important and disregards the rest. That's why they call it selective incorporation, but I guess "picky picky" works too.
Speech? Let's see, we've got the latest CFR laws that restrict speech. Certainly hate crimes restrict speech. Sexual harrassment laws -- watch what you say. Fly the Dixie flag? No.
Then we have anti-speech laws under the anti-establishment laws. Can't say God at commencement ceremonies. Can't display the Ten Commandments. Can't display a Nativity Scene. (But you can display your breasts -- that's protected). "Under God" is under attack.
And those rulings apply to all 50 states. Ain't incorporation great?
It's already been done by a lower federal court, tpaine.
The Constitution, to a large degree, is whatever at least five Justices (a majority) interpret it to be at any given time, based on their ideology, and regardless of what the Founders intended or what the citizens expect.
The 1st Amendment right to free speech is a worthy ideal, but it will never catch on and, in fact, we are steadily moving further away from that ideal. It is being usurped by other laws of the land and by Political Correctness.
Saying what you believe can get you in hot water, can inhibit your career potential, can get you ostracised, can get you fired, can get you sued, can get you labeled as a bigot / hater / intolerant / homophobe / etc, can lose you an election, can scar you for life, can turn you into a "person of interest," can get you dead,......and it's all legal. (The "dead" part may or may not be legal, but it's real.)
So what? Think that law's gonna stand against an as applied challenge? Think again.
Certainly hate crimes restrict speech.
I'm not aware of any hate crimes laws directed solely at speech. Got a cite?
Then we have anti-speech laws under the anti-establishment laws. Can't say God at commencement ceremonies. Can't display the Ten Commandments. Can't display a Nativity Scene.
You make my point. Freedom from establishment has been expanded beyond belief. Expanded. Individuals are still free to do all of the above. You're confusing restrictions on government with restrictions on individuals.
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