Hello all ... an anonymous emailer left me a link to this discussion. It is gratifying to see that something I wrote prompted a spirited debate. Some posters here have disparaging remarks for me, but I'll take them with a grain of salt. I wanted to address a few points made in the original post.
Regarding my "insidious" interpretation of the Constitution in a pro-statist manner ... I'm not sure I've ever heard my interpretations described as insidious, and I don't think I would ever have described myself as pro-statist ... is there a definition of that that I can see? I've always considered myself a strong federalist/nationalist, though I certainly see great benefit in the separations we have with the states.
Regarding my ignoring the Supremacy Clause: I know of this clause of which you speak ... but the Supreme Court prior to incorporation did not apply this clause to the states, as a historical look at Supreme Court decisions will show. My discussion of incorporation on by Bill of Rights page gets into detail.
Do I bash the 2nd Amendment? I guess you could say I do, but in the long run, I think my suggested replacement protects gun ownership in a way that the 2nd might not. In any case, to anyone who is afraid that my amendment would remove the text of the 2nd from the Constitution, be aware that that is just not how it is done, and I would not do it. The amendments are not only our law but are our historical context. Despite the fact that the 18th is no longer applicable, it remains in mine and all copies as a reminder of where we have been.
As to the note that I am not a friend of the Constitution, I beg to differ most strongly on this point. There are not many people who have done as much as I have to bring this wonderful document to the common person.
As to some of the other posts, I'm not exactly sure what "freeping" is, but if it involves "stuffing the ballot box," I do hope that the poll is not skewed by multiple votes by one person. That would be a shame and would reflect badly on whomever votes multiple times.
Anyway - thanks for stopping by my site and reading my content. If anyone has any questions or comments for me, I'm happy to address them.
It is unfortunate that what you say may be true. Properly read, the Second Amendment prohibits infringement, regardless of how many super-majority votes such a bill might receive.
Your redefinition omits the most serious reason why free people have the right to keep and bear arms. That is to maintain the security of a free state. You need to add that back in, recognizing that governments derive their just power from the consent of the governed and that the people need to retain their power to abolish governments which become tyrannical.
Finally, you need to make explicit that the prohibition against infringement extends to all governments and is not just a constraint on Congress.
Put simply, much if not all of Art. I, 8 (including portions of the Commerce Clause itself) would be surplusage if Congress had been given authority over matters that substantially affect interstate commerce. An interpretation of cl. 3 that makes the rest of 8 superfluous simply cannot be correct. Yet this Court's Commerce Clause jurisprudence has endorsed just such an interpretation: the power we have accorded Congress has swallowed Art. I, 8.
Indeed, if a substantial effects test can be appended to the Commerce Clause, why not to every other power of the Federal Government. There is no reason for singling out the Commerce Clause for special treatment. Accordingly, Congress could regulate all matters that substantially affect the Army and Navy, bankruptcies, tax collection, expenditures, and so on. In that case, the clauses of 8 all mutually overlap, something we can assume the Founding Fathers never intended.
Our construction of the scope of congressional authority has the additional problem of coming close to turning the Tenth Amendment on its head. Our case law could be read to reserve to the United States all powers not expressly prohibited by the Constitution. Taken together, these fundamental textual problems should, at the very least, convince us that the substantial effects test should be reexamined.
Do you agree with Justice Thomas' comments on substantial effects and the Commerce Clause?
It is gratifying to see that something I wrote prompted a spirited debate. Some posters here have disparaging remarks for me, but I'll take them with a grain of salt. I wanted to address a few points made in the original post.
Regarding my "insidious" interpretation of the Constitution in a pro-statist manner ... I'm not sure I've ever heard my interpretations described as insidious, and I don't think I would ever have described myself as pro-statist ... is there a definition of that that I can see?
Being 'pro-state' in a Constitutional sense is pretty self evident 'Statist' in my opinion.
To me Statism is an insidious type of anti-constitutionalism, as it can be passed off as being very patriotic, but in political reality it leads to supporting group 'rights', ~majority rule~, over individual liberty under the rule of constitutional law.
I've always considered myself a strong federalist/nationalist, though I certainly see great benefit in the separations we have with the states.
Sorry, but your opinions as quoted sure give me the opposite impression.
Regarding my ignoring the Supremacy Clause: I know of this clause of which you speak ... but the Supreme Court prior to incorporation did not apply this clause to the states, as a historical look at Supreme Court decisions will show.
Yep, that clause has been ignored by States for obvious reasons. -- And imo, it was ignored before the Civil War by the feds, for the same obvious reasons. --- Ignoring it now, in the case of our RKBA's, is becoming anti-constitutional in its effect.
My discussion of incorporation on by Bill of Rights page gets into detail. Do I bash the 2nd Amendment? I guess you could say I do, but in the long run, I think my suggested replacement protects gun ownership in a way that the 2nd might not.
The people that own arms will, in the end, protect our RKBA's. Suggesting appeasement measures to 'protect' it is the REAL way to tear this nation apart.
In any case, to anyone who is afraid that my amendment would remove the text of the 2nd from the Constitution, be aware that that is just not how it is done, and I would not do it. The amendments are not only our law but are our historical context. Despite the fact that the 18th is no longer applicable, it remains in mine and all copies as a reminder of where we have been.
As to the note that I am not a friend of the Constitution, I beg to differ most strongly on this point. There are not many people who have done as much as I have to bring this wonderful document to the common person.
To 'bring' it to us, misinterpreted as you have, is no favor Steve. Our RKBA's is an inalienable individual liberty, not a negotiable privilage.
As to some of the other posts, I'm not exactly sure what "freeping" is, but if it involves "stuffing the ballot box," I do hope that the poll is not skewed by multiple votes by one person. That would be a shame and would reflect badly on whomever votes multiple times.
Anyway - thanks for stopping by my site and reading my content. If anyone has any questions or comments for me, I'm happy to address them.
I'd comment that you should give serious thought to revising your sites endorsement of a States 'power' to ignore the supremacy of our US Constitutions guarantees of life, liberty and property..
Thanks again for responding.
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 ?
"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. "