Free Republic
Browse · Search
News/Activism
Topics · Post Article

Skip to comments.

The U.S. Constitution [Misinterpreted] Online
USConstitution.net ^ | 4/9/04 | steve mount

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 The second article of amendment to the Constitution of the United States is hereby repealed.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 ...


TOPICS: Constitution/Conservatism
KEYWORDS: bang; banglist; usconstitution
Navigation: use the links below to view more comments.
first previous 1-5051-100101-150151-200 ... 451-500 next last
To: robertpaulsen
There were laws that defined and allowed nude dancing. Citizens filed suit to stop the practice, saying that nothing in the Constitution allows nude dancing. If the USSC said that nude dancing wasn't protected speech, the laws would have been struck down.

False. Such a decision would not have struck down any State or local laws on nude dancing.

The State/local laws could have been changed through acts of a legislative body. A USSC decision saying nude dancing is not protected by the First Amendment leaves the issue to State/locals to decide.

Same with the Second Amendment. A USSC ruling saying the Second Amendment does not protect an individual RKBA leaves the decision to the States/locals. Just like it is currently.

If the USSC gives a narrow definition and says that political ads less than 30 days before an election are not protected speech, no laws would be struck down. Do I have that correct?

Correct. It would be left to the appropriate legislative body to change or not change such laws.

States that currently define and protect political ads less than 30 days prior to an election -- those laws can remain on the books?

Correct. Why would they not? Such a ruling does not mean States cannot protect such speech. It means they are not restrained by the First Amendment if they choose to ban it.

101 posted on 07/11/2004 4:28:58 PM PDT by Ken H
[ Post Reply | Private Reply | To 95 | View Replies]

To: Ken H
"Such a decision would not have struck down any State or local laws on nude dancing."

You're setting up these strawman arguments just to knock them down. I never said that the decision would strike down the laws. I said the decision would open the door for litigation, the result of which would strike down the existing laws.

I said in my post #57 that IF the second amendment were incorporated (ie., applied to the states) the word "arms" could be interpreted by the USSC, some time in the future, as to NOT include handguns.

Does that ruling change anything? Any state laws? No, it doesn't.

But, that ruling now allows the gun grabbers to go after state constitutions that protect "arms", and push for laws banning hadguns since they're not protected by the second amendment. The USSC says so, and that applies to all states laws.

Can they do this now? Sure, but it would be up to each state court, possibly a federal appeals court, to determine the definition of "arms" in their state constitution. Now, maybe the gun grabbers will get lucky in a city like Wilmette, Illinois or Morton Grove, Illinois, or Chicago and get handguns banned in those cities. But that ruling has absolutely no effect or influence on other states.

102 posted on 07/11/2004 4:59:10 PM PDT by robertpaulsen
[ Post Reply | Private Reply | To 101 | View Replies]

To: Ken H
"Why would they not? Such a ruling does not mean States cannot protect such speech."

The federal government will not allow such an ad to be run no matter what the state says.

If federal law says something like, "Private organizations shall not advertise their candidates platform within 30 days prior to an election", but the state allowed it as a free speech issue, the state would be found in violation of the Supremacy Clause, yes?

I mean, I'd like to believe you, but I don't.

103 posted on 07/11/2004 5:09:00 PM PDT by robertpaulsen
[ Post Reply | Private Reply | To 101 | View Replies]

To: robertpaulsen; steve802
Pausen & I have been arguing about his anti-constitutional views for quite some time.

This isn't personal, its just business. Constitutional business. -- I've sworn an oath to protect & defend, -- apparently he hasn't.

Of course it is.

Not to me paulsen.
You are just one in a long run of phony 'conservatives' I've argued with on this site.
In fact, most were better at this than you are. I'd bet you won't last much longer under this name. Your persona has pretty well become in-credible. You oppose most everything our free republic stands for.

I gave you a link that debunked your claim.

Dream on, -- your link 'debunked' no claim I had made.

Rather than refuting the facts,

You linked to opinions, not to facts.

you went to a different page of my linked source in an attempt to discredit the author of the web site, thereby hoping to discredit my link.

Your author 'Steve802', discredited himself, and was unable to defend his erroneous opinions.

I would say that he took it personally in his post #31 to you. And he was a heck of a lot nicer to you than I would have been.

Yep, he knew when to give it up. - Smart man in that respect. Unlike you.

104 posted on 07/11/2004 5:10:06 PM PDT by tpaine (A stupid person causes losses to another while himself deriving no gain, or even incurring loss)
[ Post Reply | Private Reply | To 100 | View Replies]

To: robertpaulsen
"The topic of this thread is the Second Amendment.

Well then, I suggest you stick with it, rather than going on about, "Do you agree with Justice Thomas' comments on substantial effects and the Commerce Clause?"

As long as Congress is using the Commerce Clause to violate the Second Amendment, Justice Thomas' comments are on topic on a RKBA thread.

Allow me to quote:

"I think that the 1968 GCA, the 1986 FOPA amendment and the 1994 AWB amendment, all violated the second amendment." -- robertpaulsen

So I'd say the use of the Commerce Clause to ban guns is relevant to the Second Amendment.

If you're going to change the subject to Justice Thomas' opinion on the awesome powers of Congress, then allow me to quote the opinion of Judge Bork on the awesome powers of the USSC.

Go right ahead, no one is stopping you.

I will continue to point out anti-RKBA writings of public persons.

And as Justice Thomas well knows, he and four unelected and unaccountable others on the USSC can frustrate and overrule 535 elected and accountable congressional representatives -- so I ask again, who shall we fear more?

I don't fear the Constitution as it is written. If you don't like what it says, amend it as prescribed in Article V.

105 posted on 07/11/2004 6:04:30 PM PDT by Ken H
[ Post Reply | Private Reply | To 97 | View Replies]

To: robertpaulsen
Such a decision would not have struck down any State or local laws on nude dancing.

You're setting up these strawman arguments just to knock them down. I never said that the decision would strike down the laws. I said the decision would open the door for litigation, the result of which would strike down the existing laws.

You continue to be wrong. Legislation, not litigation, could have voided laws allowing nude dancing. As for the strawman, here is the exchange:

Had USSC given a narrow definition and said nude dancing is not protected speech, no laws would have been struck down.

Baloney! There were laws that defined and allowed nude dancing. Citizens filed suit to stop the practice, saying that nothing in the Constitution allows nude dancing. If the USSC said that nude dancing wasn't protected speech, the laws would have been struck down.

Your reasoning is false. If a State allowed nude dancing, a ruling by USSC stating it is not protected by the First Amendment would not be overturned by litigation. It could be overturned by legislation.

I said in my post #57 that IF the second amendment were incorporated (ie., applied to the states) the word "arms" could be interpreted by the USSC, some time in the future, as to NOT include handguns.

Does that ruling change anything? Any state laws? No, it doesn't.

Applause!

But, that ruling now allows the gun grabbers to go after state constitutions that protect "arms", and push for laws banning hadguns since they're not protected by the second amendment. The USSC says so, and that applies to all states laws.

State and local governments are getting away with gun bans now. The only thing stopping them are voters, not the USSC.

Can they do this now? Sure, but it would be up to each state court, possibly a federal appeals court, to determine the definition of "arms" in their state constitution. Now, maybe the gun grabbers will get lucky in a city like Wilmette, Illinois or Morton Grove, Illinois, or Chicago and get handguns banned in those cities. But that ruling has absolutely no effect or influence on other states.

You are continuing to overlook the fact that Federal Courts are not protecting the RKBA now. How would a ruling saying the Second Amendment does not protect the RKBA change the status quo?

106 posted on 07/11/2004 6:27:39 PM PDT by Ken H
[ Post Reply | Private Reply | To 102 | View Replies]

To: robertpaulsen
The federal government will not allow such an ad to be run no matter what the state says.

Correct, Federal law applies everywhere in the US. CFR applies to Federal offices, BTW.

If federal law says something like, "Private organizations shall not advertise their candidates platform within 30 days prior to an election", but the state allowed it as a free speech issue, the state would be found in violation of the Supremacy Clause, yes?

NO!

If a State has no law on its books regarding election advertising, it is legal under State law, correct? Are you saying if a State does not make it illegal, they are in violation of the Supremacy Clause?

Is Vermont in violation of the Supremacy Clause because weapons banned under the 1994 AWB are legal under Vermont State law?

107 posted on 07/11/2004 6:38:31 PM PDT by Ken H
[ Post Reply | Private Reply | To 103 | View Replies]

To: robertpaulsen
Correction:

If a State allowed nude dancing, a ruling by USSC stating it is not protected by the First Amendment would not [allow a nude dancing law to] be overturned by litigation. It could be overturned by legislation.

108 posted on 07/11/2004 6:56:52 PM PDT by Ken H
[ Post Reply | Private Reply | To 106 | View Replies]

To: robertpaulsen
The Preamble to the Bill of Rights is missing:

This is generally considered the preamble, and is included:
We the people of the United States, in order to form a more perfect union, establish justice, insure domestic tranquility, provide for the common defense, promote the general welfare, and secure the blessings of liberty to ourselves and our posterity, do ordain and establish this Constitution for the United States of America.
The section you posted dealing with the administrative procedures for the Bill of Rights is not generally considered part of our Constitution.
109 posted on 07/12/2004 3:03:55 AM PDT by R. Scott (Humanity i love you because when you're hard up you pawn your Intelligence to buy a drink.)
[ Post Reply | Private Reply | To 98 | View Replies]

To: tpaine

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 theatre (2nd Amd. vs. 1st Amd); it is more the equivalent of cutting one's tongue out.


110 posted on 07/12/2004 5:20:34 AM PDT by Tolerance Sucks Rocks (Kerry/Edwards--Celebrity Gay Ticket 2004)
[ Post Reply | Private Reply | To 1 | View Replies]

To: R. Scott
Fine. But if one is constructing an informational web site on the U.S. Constitution, the Preamble contains information crucial to the understanding of the Bill of Rights.

The Preamble emphasizes that the BOR was added to the U.S. Constitution to further restrict the powers of the federal government.

111 posted on 07/12/2004 5:47:29 AM PDT by robertpaulsen
[ Post Reply | Private Reply | To 109 | View Replies]

To: Ken H
"I don't fear the Constitution as it is written."

Neither do I. But that's not what we're talking about, is it? Again, off you go on some tangent.

We're talking about the way that it's interpreted, now aren't we. Not the way it's written, correct? Why is it that I constantly have to waste half a post just to get you back on topic.

Clarence Thomas and his buddies on the USSC have done far more damage to this country than Congress. And they're unelected and unaccountable. There's the danger.

112 posted on 07/12/2004 6:08:43 AM PDT by robertpaulsen
[ Post Reply | Private Reply | To 105 | View Replies]

To: CalRepublican
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. Years later, instead of fixing the bullshit precedents and restoring the Privileges or Immunities Clause to its rightful place as the clause intended to incorporate amendments 1-8, the Supreme Court invented selective incorporation via substantive due process, allowing itself to pick and choose which rights would get incorporated. That's why we're where we are today, far from what was intended by the authors of the 14th, with some rights incorporated and some not.

113 posted on 07/12/2004 6:09:44 AM PDT by Sandy
[ Post Reply | Private Reply | To 47 | View Replies]

To: Ken H
"If a State has no law on its books regarding election advertising,"

Now, what kind of a la-la land statement is this? Geez, robertpaulsen, let's start by assuming there's NO LAW on the books.

I bet there's a thousand laws on the state books regarding election advertising -- are you kidding?

Why don't you start by assuming there are contrary laws on the state books. You'll agree that those laws would be in violation of the supremacy clause?

"Is Vermont in violation of the Supremacy Clause because weapons banned under the 1994 AWB are legal under Vermont State law?"

I have no idea. Does Vermont state law say, "flash suppressors are legal" or is Vermont state law silent? If state law is silent, then how can there be a conflict? If there is a conflict, then yes, Vermont is in violation of the Supremacy clause.

You disagree?

114 posted on 07/12/2004 6:21:04 AM PDT by robertpaulsen
[ Post Reply | Private Reply | To 107 | View Replies]

To: robertpaulsen
If federal law says something like, "Private organizations shall not advertise their candidates platform within 30 days prior to an election", but the state allowed it as a free speech issue, the state would be found in violation of the Supremacy Clause, yes?

The feds can't make laws regarding local elections, only federal elections. States have their own laws and are not required to be as oppressive as the federal government.

115 posted on 07/12/2004 6:21:55 AM PDT by Sandy
[ Post Reply | Private Reply | To 103 | View Replies]

To: tpaine

This proposed text is offered as a way to spark discussion of the topic

This proposed text is more like a spark in a gunpowder factory !


116 posted on 07/12/2004 6:25:20 AM PDT by sawmill trash (Yeah, I'm a REDNECK ...and I own guns...lots of them...What About It ?)
[ Post Reply | Private Reply | To 1 | View Replies]

To: Defiant1

I wouldn't be surprised to wake up one morning in the near future to read some activist federal judge has found the Constitution to be unconstitutional.

Of course this is what they want with help from the UN and World Court.

...and this is exactly why they don't want us armed with anything.
If they can take away our weapons, they can herd us onto the cattle cars at will...and will, eventually.


117 posted on 07/12/2004 6:30:12 AM PDT by sawmill trash (Yeah, I'm a REDNECK ...and I own guns...lots of them...and I ain't giving them up...What About It ?)
[ Post Reply | Private Reply | To 18 | View Replies]

To: robertpaulsen
IF the second amendment were incorporated (ie., applied to the states) the word "arms" could be interpreted by the USSC, some time in the future, as to NOT include handguns.

Does that ruling change anything? Any state laws? No, it doesn't.

But, that ruling now allows the gun grabbers to go after state constitutions that protect "arms", and push for laws banning hadguns since they're not protected by the second amendment. The USSC says so, and that applies to all states laws.

Can they do this now? Sure, but it would be up to each state court, possibly a federal appeals court, to determine the definition of "arms" in their state constitution.

Just because a right is incorporated, doesn't mean that a state can't provide protection of a right above and beyond what the federal Constitution requires. And federal appeals courts don't touch state supreme court decisions. States would be free to protect a right to own handguns, regardless of what SCOTUS says.

118 posted on 07/12/2004 6:33:50 AM PDT by Sandy
[ Post Reply | Private Reply | To 102 | View Replies]

To: steve802

I think my suggested replacement protects gun ownership in a way that the 2nd might not.

What part of "shall not be infringed upon" do you not get ?


119 posted on 07/12/2004 6:35:39 AM PDT by sawmill trash (Yeah, I'm a REDNECK ...and I own guns...lots of them...and I ain't giving them up...What About It ?)
[ Post Reply | Private Reply | To 31 | View Replies]

To: Ken H
"If a State allowed nude dancing, a ruling by USSC stating it is not protected by the First Amendment would not [allow a nude dancing law to] be overturned by litigation. It could be overturned by legislation."

Eventually. In the above scenario, I would imagine that a suit would be filed claiming that nude dancing violates the state's obscenity law. Since it has no more 1st amendment protection, the activity would be found in violation of state law (on obscenity). There would be a court order for that activity to stop.

Based on that local ruling (and assuming no appeals), I would imagine that the legislators would then change the law.

Or the petitioners could go to the legislature first to change the law. Then the nude dancers would file suit with the same result. Probably a waste of time.

120 posted on 07/12/2004 6:43:09 AM PDT by robertpaulsen
[ Post Reply | Private Reply | To 108 | View Replies]

To: Sandy
I was only referring to the CFR laws.

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?

121 posted on 07/12/2004 6:48:39 AM PDT by robertpaulsen
[ Post Reply | Private Reply | To 115 | View Replies]

To: 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."

Too many Conservatives seem to take this position also, especially with respect to the first amendment.

122 posted on 07/12/2004 6:53:13 AM PDT by Doctor Stochastic (Vegetabilisch = chaotisch is der Charakter der Modernen. - Friedrich Schlegel)
[ Post Reply | Private Reply | To 1 | View Replies]

To: robertpaulsen; tpaine; steve802; All
Here is the federal government's position:

Bill of Rights and the States.--One of the amendments which the Senate refused to accept--declared by Madison to be ``the most valuable of the whole list''12--read: ``The equal rights of conscience, the freedom of speech or of the press, and the right of trial by jury in criminal cases shall not be infringed by any State.''13 In spite of this rejection, the contention that the Bill of Rights--or at least the first eight--was applicable to the States was repeatedly pressed upon the Supreme Court. By a long series of decisions, beginning with the opinion of Chief Justice Marshall in Barron v. Baltimore,14 the argument was consistently rejected. Nevertheless, the enduring vitality of natural law concepts encouraged renewed appeals for judicial protection through application of the Bill of Rights.15


The Constitution of the United States
Analysis and Interpretation
Annotations of Cases Decided by the Supreme Court of the United States, 1992 edition
123 posted on 07/12/2004 6:59:29 AM PDT by djf
[ Post Reply | Private Reply | To 98 | View Replies]

To: Tolerance Sucks Rocks
Tolerance Sucks Rocks wrote:

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.

124 posted on 07/12/2004 7:13:19 AM PDT by tpaine (A stupid person causes losses to another while himself deriving no gain, or even incurring loss)
[ Post Reply | Private Reply | To 110 | View Replies]

To: robertpaulsen
BOR was added to the U.S. Constitution to further restrict the powers of the federal government.

That should be evident from reading the text of the amendments, although some of the Big Government Socialists don’t appear to know how to read.

As I stated - I posted without commentary. None should be necessary. If I posted the BOR as a seperate document it would be included.

125 posted on 07/12/2004 7:13:34 AM PDT by R. Scott (Humanity i love you because when you're hard up you pawn your Intelligence to buy a drink.)
[ Post Reply | Private Reply | To 111 | View Replies]

To: Sandy
In my hypothetical, SCOTUS rules that a handgun is not protected by the incorporated second amendment. I agree, the states are free to protect handguns, or not. Let's say they do.

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.

126 posted on 07/12/2004 7:14:54 AM PDT by robertpaulsen
[ Post Reply | Private Reply | To 118 | View Replies]

To: Sandy

CalRepublican wrote:

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.
-Sandy-

______________________________________


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.


127 posted on 07/12/2004 8:21:55 AM PDT by tpaine (A stupid person causes losses to another while himself deriving no gain, or even incurring loss)
[ Post Reply | Private Reply | To 113 | View Replies]

To: robertpaulsen
Your doom and gloom scenarios regarding what could happen if states didn't have second amendment protection really make no sense. States don't have second amendment protection now, and what you fear might happen is in fact already happening because there's no 2A protection.

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.

128 posted on 07/12/2004 8:28:01 AM PDT by Sandy
[ Post Reply | Private Reply | To 126 | View Replies]

To: robertpaulsen
"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?

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.

129 posted on 07/12/2004 8:43:27 AM PDT by Sandy
[ Post Reply | Private Reply | To 121 | View Replies]

To: Sandy
"States don't have second amendment protection now"

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.

130 posted on 07/12/2004 9:03:56 AM PDT by robertpaulsen
[ Post Reply | Private Reply | To 128 | View Replies]

To: robertpaulsen
Our second amendment rights are defined and protected by our state constitutions -- always were.

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.

131 posted on 07/12/2004 9:22:32 AM PDT by Sandy
[ Post Reply | Private Reply | To 130 | View Replies]

To: robertpaulsen
Our second amendment rights are defined and protected by our state constitutions -- always were.

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.

132 posted on 07/12/2004 9:26:42 AM PDT by Dead Corpse (For an Evil Super Genius, you aren't too bright are you?)
[ Post Reply | Private Reply | To 130 | View Replies]

To: robertpaulsen
Sometime down the road, the USSC defines "arms" as excluding handguns, leaving everything else. Certainly that's plausible.

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.

133 posted on 07/12/2004 9:32:54 AM PDT by Sandy
[ Post Reply | Private Reply | To 130 | View Replies]

To: Sandy
"until the Supremes decided that they didn't like that idea"

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.

134 posted on 07/12/2004 9:36:24 AM PDT by robertpaulsen
[ Post Reply | Private Reply | To 131 | View Replies]

To: robertpaulsen; Sandy
Sandy:
"States don't have second amendment protection now"

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.

135 posted on 07/12/2004 9:43:53 AM PDT by tpaine (A stupid person causes losses to another while himself deriving no gain, or even incurring loss)
[ Post Reply | Private Reply | To 130 | View Replies]

To: robertpaulsen
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.

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.

136 posted on 07/12/2004 9:44:26 AM PDT by Sandy
[ Post Reply | Private Reply | To 134 | View Replies]

To: Sandy
"Incorporated rights over time get expanded, not contracted."

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?

137 posted on 07/12/2004 9:46:22 AM PDT by robertpaulsen
[ Post Reply | Private Reply | To 133 | View Replies]

To: tpaine
"No, such a definition would be a clear infringement, repugnant, and void"

It's already been done by a lower federal court, tpaine.

138 posted on 07/12/2004 9:48:33 AM PDT by robertpaulsen
[ Post Reply | Private Reply | To 135 | View Replies]

Again:

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.

And again:

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.)

139 posted on 07/12/2004 9:49:07 AM PDT by Consort
[ Post Reply | Private Reply | To 137 | View Replies]

To: robertpaulsen
Let's see, we've got the latest CFR laws that restrict speech.

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.

140 posted on 07/12/2004 9:59:01 AM PDT by Sandy
[ Post Reply | Private Reply | To 137 | View Replies]

To: Ken H
"The Second Amendment was designed to allow states to defend themselves against a possibly tyrannical national government. Now that the federal government has stealth bombers and nuclear weapons, it is hard to imagine what people would need to keep in the garage to serve that purpose."
--Judge Robert Bork

On top of everything else, Bork is a rank hypocrite. This argument is PRECISELY the sort of policy analysis that he (correctly) describes elsewhere as the proper responsibility of elected legislators, not judges.

141 posted on 07/12/2004 10:07:03 AM PDT by steve-b (Panties & Leashes Would Look Good On Spammers)
[ Post Reply | Private Reply | To 58 | View Replies]

To: robertpaulsen
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.

It's already been done by a lower federal court, tpaine.

So what paulsen? Courts throughout the US ignore our Constitution every day. -- Doesn't make the practice right.

142 posted on 07/12/2004 10:07:07 AM PDT by tpaine (A stupid person causes losses to another while himself deriving no gain, or even incurring loss)
[ Post Reply | Private Reply | To 138 | View Replies]

To: Sandy
"with restrictions on individuals."

Individuals used to be able to say "God" at commencement.

143 posted on 07/12/2004 10:33:00 AM PDT by robertpaulsen
[ Post Reply | Private Reply | To 140 | View Replies]

To: robertpaulsen
Ain't incorporation great?

Doesn't matter whether it's great. The 14th requires it, for better or worse. It ain't up to you or me or the Court to pick and choose which parts of the Constitution we're going to ignore and which parts we're going to enforce. Sheez.

144 posted on 07/12/2004 10:34:17 AM PDT by Sandy
[ Post Reply | Private Reply | To 137 | View Replies]

To: robertpaulsen
Individuals used to be able to say "God" at commencement.

And they still can.

145 posted on 07/12/2004 10:36:41 AM PDT by Sandy
[ Post Reply | Private Reply | To 143 | View Replies]

To: robertpaulsen
I don't fear the Constitution as it is written.

Neither do I. But that's not what we're talking about, is it? Again, off you go on some tangent.

We're talking about the way that it's interpreted, now aren't we. Not the way it's written, correct? Why is it that I constantly have to waste half a post just to get you back on topic.

It looks like you were complaining about the way it is written, specifically Article III:

And as Justice Thomas well knows, he and four unelected and unaccountable others on the USSC can frustrate and overrule 535 elected and accountable congressional representatives -- so I ask again, who shall we fear more?

They are both threats if they don't follow the Constitution. An example would be Congress when they violate the Second Amendment and the USSC when they allow them to get away with it. It's a stupid question, IMO, but I've come to expect it.

Clarence Thomas and his buddies on the USSC have done far more damage to this country than Congress. And they're unelected and unaccountable. There's the danger.

The Constitution says they are to be appointed, and set up checks in the form of impeachment and the amendment process.

It appears that you indeed do have a problem with the way the Constitution is written.

146 posted on 07/12/2004 2:05:21 PM PDT by Ken H
[ Post Reply | Private Reply | To 112 | View Replies]

To: robertpaulsen
Why don't you start by assuming there are contrary laws on the state books. You'll agree that those laws would be in violation of the supremacy clause?

So what happens if those State laws are voided? Then there are no laws allowing political advertising 30 days before an election, yes? It would therefore be legal under State law, yes?

Does Vermont state law say, "flash suppressors are legal" or is Vermont state law silent? If state law is silent, then how can there be a conflict? If there is a conflict, then yes, Vermont is in violation of the Supremacy clause.

Same thing as above. If the State law allowing flash suppressors is voided, then flash suppressors are still legal, yes?

If there is no State law against it, it's not illegal under State law.

147 posted on 07/12/2004 2:14:39 PM PDT by Ken H
[ Post Reply | Private Reply | To 114 | View Replies]

To: Sandy
Sheez? The 14th requires it? Pretty sure of yourself, aren't you?

Samuel Francis begs to differ in his article, Judicial Tyranny. He says that, "The Framers of the 14th Amendment had no intention of initiating a revolution in constitutional law or of bringing the states under the constraints of the Bill of Rights. The whole Incorporation Doctrine is simply an invention of judges and justices eager to impose their own ideology, political beliefs, and personal preferences on the nation as a whole, and they have had to rely on the courts to do so because the American people have never supported or been willing to enact the measures the courts have sought to impose through their revolution."

So there! Sheesh!

148 posted on 07/12/2004 4:29:51 PM PDT by robertpaulsen
[ Post Reply | Private Reply | To 144 | View Replies]

To: steve802
I hope this thread doesn't determine your opinion of Free Republic! In case you decide to drop back in, I offer one criticism:

"One of the arguments of the Anti-Federalists during the ratification debates was that the new nation did not arm the militias, an odd argument since neither did the U.S. under the Articles."

You hardly do the antifederalists justice with this! I know you can't treat every aspect of the debate in your article- and I don't think any thing on your page is superfluous ... still a few more words would be in order.

The Constitution would give the new federal government new powers over the state militias and there was much concern and debate ( and hyperbole too) over just what was the extent of these new powers.
From the Virginia Ratifying Convention on June 14 and June 16 1788 ( an excellent summary of the Second and Tenth Amendments rationales):

Mason: "Mr. Chairman, unless there be some restrictions on the power of calling forth the militia, to execute the laws of the Union, suppress insurrections, and repel invasions, we may very easily see that it will produce dreadful oppressions. It is extremely unsafe, without some alterations. It would be to use the militia to a very bad purpose, if any disturbance happened in New Hampshire, to call them from Georgia. This would harass the people so much that they would agree to abolish the use of the militia, and establish a standing army. I conceive the general government ought to have power over the militia, but it ought to have some bounds... This power is necessary; but we ought to guard against danger. If ever they attempt to harass and abuse the militia, they may abolish them, and raise a standing army in their stead. There are various ways of destroying the militia. A standing army may be perpetually established in their stead. I abominate and detest the idea of a government, where there is a standing army.
The militia may be here destroyed by that method which has been practised in other parts of the world before; that is, by rendering them useless by disarming them. Under various pretences, Congress may neglect to provide for arming and disciplining the militia; and the state governments cannot do it, for Congress has an exclusive right to arm them, &c. Here is a line of division drawn between them — the state and general governments. The power over the militia is divided between them. The national government has an exclusive right to provide for arming, organizing, and disciplining the militia, and for governing such part of them as may be employed in the service of the United States.
The state governments have the power of appointing the officers, and of training the militia, according to the discipline prescribed by Congress, if they should think proper to prescribe any. Should the national government wish to render the militia useless, they may neglect them, and let them perish, in order to have a pretence of establishing a standing army. "
Henry: "Your men who go to Congress are not restrained by a bill of rights. They are not restrained from inflicting unusual and severe punishments, though the bill of rights of Virginia forbids it. What will be the consequence? They may inflict the most cruel and ignominious punishments on the militia, and they will tell you that it is necessary for their discipline. "
Madison: "If inimical nations were to fall upon us when defenceless, what would be the consequence? Would it be wise to say, that we should have no defence? Give me leave to say, that the only possible way to provide against standing armies is to make them unnecessary. The way to do this is to organize and discipline our militia, so as to render them capable of defending the country against external invasions and internal insurrections. But it is urged that abuses may happen. How is it possible to answer objections against the possibility of abuses? It must strike every logical reasoner, that these cannot be entirely provided against. I really thought that the objection in the militia was at an end. Was there ever a constitution, in which if authority was vested, it must not have been executed by force, if resisted? "
Corbin: "He thought that, if there was a constructive implied power left in the states, yet, as the line was not clearly marked between the two governments, it would create differences. He complained of the uncertainty of the expression, and wished it to be so clearly expressed that the people might see where the states could interfere. As the exclusive power of arming, organizing, &c., was given to Congress, they might entirely neglect them; or they might be armed in one part of the Union, and totally neglected in another. " Marshall: "Gentlemen have said that the states cannot defend themselves without an application to Congress, because Congress can interpose! Does not every man feel a refutation of the argument in his own breast? I will show that there could not be a combination, between those who formed the Constitution, to take away this power. All the restraints intended to be laid on the state governments (besides where an exclusive power is expressly given to Congress) are contained in the 10th section of the 1st article. This power is not included in the restrictions in that section... If Congress neglect our militia, we can arm them ourselves. Cannot Virginia import arms? Cannot she put them into the hands of her militia-men?
He then concluded by observing, that the power of governing the militia was not vested in the states by implication, because, being possessed of it antecedent to the adoption of the government, and not being divested of it by any grant or restriction in the Constitution, they must necessarily be as fully possessed of it as ever they had been. And it could not be said that the states derived any powers from that system, but retained them, though not acknowledged in any part of it. "
"Mr. HENRY still retained his opinion, that the states had no right to call forth the militia to suppress insurrections, &c. But the right interpretation (and such as the nations of the earth had put upon the concession of power) was that, when power was given, it was given exclusively... Is it fair to say that you give the power of arming the militia, and at the same time to say you reserve it? This great national government ought not to be left in this condition. If it be, it will terminate in the destruction of our liberties. "
Madison: "The 4th section of the 4th article is perfectly consistent with the exercise of the power by the states. The words are, "The United States shall guaranty to every state in this Union a republican form of government, and shall protect each of them against invasion, and, on application of the legislature, or of the executive, (when the legislature cannot be convened,) against domestic violence." The word invasion here, after power had been given in the former clause to repel invasions, may be thought tautologous, but it has a different meaning from the other. This clause speaks of a particular state. It means that it shall be protected from invasion by other states."
Mason: "Mr. Chairman, a worthy member has asked who are the militia, if they be not the people of this country, and if we are not to be protected from the fate of the Germans, Prussians, &c., by our representation? I ask, Who are the militia? They consist now of the whole people, except a few public officers. But I cannot say who will be the militia of the future day. If that paper on the table gets no alteration, the militia of the future day may not consist of all classes, high and low, and {426} rich and poor; but they may be confined to the lower and middle classes of the people, granting exclusion to the higher classes of the people. If we should ever see that day, the most ignominious punishments and heavy fines may be expected. "

149 posted on 07/12/2004 5:56:54 PM PDT by mrsmith ("Oyez, oyez! All rise for the Honorable Chief Justice... Hillary Rodham Clinton ")
[ Post Reply | Private Reply | To 31 | View Replies]

To: robertpaulsen
As usual, Samuel Francis is wrong:
Debate over the anti-KKK bill naturally required exposition of Section 1 of the Fourteenth Amendment, and none was better qualified to explain that section than its draftsman, Rep. John A. Bingham (R., Ohio):

Mr. Speaker, that the scope and meaning of the limitations imposed by the first section, fourteenth amendment of the Constitution may be more fully understood, permit me to say that the privileges and immunities of citizens of a State, are chiefly defined in the first eight amendments to the constitution of the United States. Those eight amendments are as follows:

[text of Amendments I-VIII]

These eight articles I have shown never were limitations upon the power of the States, until made so by the Fourteenth Amendment.


150 posted on 07/12/2004 8:03:47 PM PDT by steve-b (Panties & Leashes Would Look Good On Spammers)
[ Post Reply | Private Reply | To 148 | View Replies]


Navigation: use the links below to view more comments.
first previous 1-5051-100101-150151-200 ... 451-500 next last

Disclaimer: Opinions posted on Free Republic are those of the individual posters and do not necessarily represent the opinion of Free Republic or its management. All materials posted herein are protected by copyright law and the exemption for fair use of copyrighted works.

Free Republic
Browse · Search
News/Activism
Topics · Post Article

FreeRepublic, LLC, PO BOX 9771, FRESNO, CA 93794
FreeRepublic.com is powered by software copyright 2000-2008 John Robinson