Posted on 10/08/2009 9:34:51 PM PDT by Copernicus
Our friend the Welshman from The Liberty Sphere has an excellent analysis of the Chicago 2nd Amendment Incorporation Case.
The comments section offers some further intriguing thoughts.
Stop by and add your two cents.
Tantalizing Excerpt:
Rationality, it would seem, would dictate that it is a no-brainer that the rights enumerated in the Bill of Rights automatically extend to all of the state and local governments.
What good is free speech or a free press, for example, if the Constitution is meant only to restrict Congress from encroaching on those rights but leaves state and local governments with the power to run slip-shod over our God-given liberties?
This school of thought seems to be antithetical to everything we have come to cherish about America--the land of the free and the home of the brave.
Yet, in order to insure that state and local governments got the message, our forebears began the process known as 'incorporation' to insure that all governmental entities within the United States abide by the restrictions set forth by the Constitution.
(Excerpt) Read more at johnjacobh.wordpress.com ...
Several good thoughts in the post and comments.
Best regards to all,
“Rationality, it would seem, would dictate that it is a no-brainer that the rights enumerated in the Bill of Rights automatically extend to all of the state and local governments.”
Fooferah! Especially when the Constitution explicitly names the federal government as the subject of what the rights are being protected against. True, at various parts the U.S. Constitution deny power to the states, but it always says so. By the logic of the 10th amendment, which I understand by virtue of my rationality, powers are reserved for the states (or the people) unless they are explicitly denied to them.
“What good is free speech or a free press, for example, if the Constitution is meant only to restrict Congress from encroaching on those rights but leaves state and local governments with the power to run slip-shod over our God-given liberties?”
It is good because it limits the federal government. State governments have their own constitutions, and their own limits. You don’t have to take care of everything at once, all the time, you impatient child.
“True, at various parts the U.S. Constitution deny power to the states, but it always says so”
This was a pretty bad sentence. I’d rather say, “True, in various instances the U.S. Constitution denies power to the states, but it always alerts us to that fact.”
“Rationality, it would seem, would dictate that it is a no-brainer that the rights enumerated in the Bill of Rights automatically extend to all of the state and local governments. “
Not really. The first amendment starts “Congress shall make no law. . . “ The US Supremes in the 40’s and 50’s had to do some real hoop jumping to get to “incorporation” of the bill of rights against the states. They had to pretend that the 14th amendendment “incorporated” the bill of rights as against the states, although the amendment does not say that.
OTOH, the second amendment does not just limit congress. It is passive voice “. . . the rights of the people . . . shall not . . . “ You don’t need the 14th amendment to get you there.
So there’s a much better argument from the git go that the second applies to the states than that the first applies to the states.
“Yet, in order to insure that state and local governments got the message, our forebears began the process known as ‘incorporation’ to insure that all governmental entities within the United States abide by the restrictions set forth by the Constitution.”
This also is pretty much nonsense. Our “forbears” [sic] had nothing to do with it. The post new-deal supreme court and then the Warren court invented the doctrine and used it ruthlessly to expand the power of the federal government over the states—usually for dubious left wing causes.
The Miranda decision was the US bill of rights incorporated against the states. Roe vs Wade was the US bill of rights incorporated against the states and on and on.
There is no historic justification whatsoever that our founding fathers had anything to do with the doctrine and would propabably been appalled by it.
Yeah, I have never understood how some of the bill of rights could be incorporated and not others. Incorporation is based on the 14th ammendment to the US Constitution.
It says, “No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States;” That sounds to me like neither the state nor its agents, ie Cities states incorporate, can abridge the rights of US citizens. If that include the right to free speech, it would necessarily to me include the right to bear arms.
If the Roberts court does this, the left will explode.
I wouldnt doubt that this wasnt the plan all along when they agreed to hear Heller...
“Incorporation” is totally irrelevant. The 2nd Amd does not restrict its effect to Congress. It says that RKBA “shall not be infringed.” If a town or a state restricts the RKBA then that town or state is INFRINGING. The 2nd Amd does not make an exception for any entity. The 1st amd is limited intits wording to “Congress shall make no law...” The 2nd dose not do that. It is absolute. If the Court says that it must be Incorporated against the plain wording of the Article, then the USSC is abrogating the 2nd Amd.
The problem in this discussion is the tendency to debate whether the written words apply to various jurisdictions - failing to observe that these are NATURAL RIGHTS, existing outside any written nuances, and that any government which willingly transgresses them is inherently evil. It's not so much whether the 2ndA should be incorporated, it's why the he11 does any jurisdiction think they can infringe that right.
That the debate has lowered to wondering whether a declaration of applicability (14thA) applies to an enumerated right (2ndA) in a redundant explicit limitation of powers (BoR) clarifying a strictly limited granting of powers (Constitution) shows that those debating the issue are dangerously & grossly ignorant of the concept of "rights".
Many thanks to all,
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