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To: ltlflwr
I am not sure Mr. Creel is correct in his interpretation of the second amendment. His beef is with the idea that the 14th amendment "incorporates" the bill of rights as against the states. I agree with Mr. Creel that the incorporation doctrine was a pernicious piece of judicial legislation. But I do not think that incorporation is necessary to apply the second amendment to the states.

A close reading of the bill of rights suggests that some of the amendments were intended only as a check on the power of congress--eg the first amendment, which states 'congress shall make no law . . .' Obviously, this amendment limits only congress. So the "incorporation" dipsy doodle of the Warren Court was necessary to apply the first amendment as against the states.

By way of contrast, the second amendment states that the rights of the "people" to keep and bear arms "shall not be infringed." Congress is not mentioned. In fact, by using the passive voice, the second amendment does not have congress, or the federal government, as the subject of the sentence. It seems to say that noone may infringe the right to keep and bear arms.

Do any FREEPERS know if the legislative history of the second amendment sheds any light on this argument?

3 posted on 08/28/2002 9:22:12 AM PDT by ffrancone
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To: ffrancone
I wish the Supreme Court were as attentive to the language of the Constitution as you are! You are correct that the "shall not be infringed" is not explicitly directed at Congress, but when the Bill of Rights was being adopted the drafters could have had no other governmental authority in mind. Similarly, in the First Amendment context, the drafters said "Congress" because it was inconceivable to them that the judicial branch would ever enter the legislative arena and someday violate the "free exercise" clause by forbidding school children to pray.
I formed my views on the 14th Amendment and the doctrine of incorporation from a reading 25 years ago of (recently deceased) Prof. Raoul Berger's "Government by Judiciary" (is the title correct, FReepers?), in which his thesis was that later Supreme Court construction of the amendment was far removed from the limited aims of its propounders and sponsors (to heal the nation of its Civil War scars rooted in maltreatment of slaves and former slaves). I think those views are validated further by our historical assurance that the Founders regarded the Second Amendment as the ultimate guarantee against the return of tyranny to these shores. Neither they nor anyone today could see any individual state as a serious threat to our general liberties; if any individual state turns oppressive, citizens can always vote with their feet, carrying their weapons with them to a more liberty-loving domicile.

As a practical matter, this discussion is largely academic. I personally favor state constitutions which mirror the federal Second Amendment and, in any event, if states where liberal majorities live choose to disarm themselves, why the fuss?

But it is not merely academic if patriots, in their zeal to defend the purity of the Second Amendment, wind up validating the perverted understanding of the 14th Amendment which has already stood the Bill of Rights on its head and which has become the primary weapon for eroding the Second Amendment in the federal context. If you dispute this, ask yourself how it came to be that Federal gun control laws are already on the books and more bills are being introduced in each succeeding Congress--with NRA lobbyists actually bowing to their inevitability and implicitly conceding their constitutionality!

Our strategy must be to insist on a literal reading of "shall not be infringed" in the federal context alone, and then work state by state to accomplish a constitutional mirroring everywhere (I have not checked but would guess that most states with large numbers of hunters and sportsmen already enjoy such mirroring). Any hint of validation for the perversion of incorporation merely strengthens those who would like to see the Second Amendment destroyed.
7 posted on 08/28/2002 10:04:56 AM PDT by Frank Creel
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To: ffrancone
Do any FREEPERS know if the legislative history of the second amendment sheds any light on this argument?

It's a legitimate question but I don't know if it's germain.

The right to self protection is "in the eye of the beholder". By that I mean that the issue of the method of self protection is individual and only balanced by the rights of other individuals that my actions might effect, not the government's policy.

12 posted on 08/28/2002 4:36:06 PM PDT by Amerigomag
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To: ffrancone
At first glimpse, from a modern perspective, it may seem like what you're saying is correct, but it's a known fact that where the Constitution uses passive negative construction (IOW, such-and-such "shall not be" done), it was intended to only apply to the federal government - because it's a Constitution of the United States, that is, a Constitution whose primary purpose was to create a federal government and define its powers. In those instances where a state is prohibited from doing something, the Constitution specifies by saying "No State shall...." To see that fact brought into sharp relief, compare Sections 9 and 10 of Article I (for example, the parts about bills of attainder and ex post facto laws). You'll see what I mean.
13 posted on 08/28/2002 6:48:30 PM PDT by inquest
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