Posted on 02/18/2009 2:14:18 AM PST by marktwain
The Second Amendment, to the extent it is honored at all, has only been seen as a restraint on the federal government from enacting draconian firearm laws. State and local governments have not needed to so much as pay lip service to the Second Amendment.
That, of course, was the original idea--the Bill of Rights was intended to act as a brake on federal power. With the Reconstruction Era advent of the Fourteenth Amendment, though, much of the rest of the Bill of Rights has been applied to the people's dealings with state and local governments, as well. This incorporation of the Bill of Rights was found necessary to protect the rights of newly emancipated slaves in the post-war South, but has never been applied to the Second Amendment.
That is unfortunate, because many of the most draconian gun laws exist at the state and local levels. It would also seem to be in defiance of the intent of the Fourteenth Amendment. From Stephen Halbrook's That Every Man Be Armed: The Evolution of a Constitutional Right, quoting Representative John A. Bingham (R-OH)--who drafted the 14th Amendment--during debate over anti-KKK legislation enacted in 1871:
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. These eight amendments are as follows:
[Reads the first eight amendments of the Bill of Rights]
These eight articles I have shown never were limitation upon the power of the States, until made so by the fourteenth amendment. The words of that amendment, "no State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States," are an express prohibition upon every State of the Union. . . . Although actual application of the incorporation doctrine eventually rested on the due process clause of the Fourteenth Amendment, rather than the privileges and immunities clause cited by Representative Bingham, the idea still holds--the Fourteenth Amendment was at the time intended to apply to all of the first eight amendments of the Bill of Rights.
The time may at last be at hand for states to be forced to recognize the Second Amendment. In a lawsuit challenging Chicago's draconian handgun ban, Alan Gura (lead attorney in the Heller case) is systematically laying the foundation for incorporation of the Second Amendment, and I'm cautiously optimistic that the case he's building will be unbeatable.
It's about time. After all, an unalienable right that can be denied by state or local government isn't really . . . unalienable, is it? ---------- Cleveland Gun Rights Examiner Daniel White will be on NRA News at 10:20 (Eastern) tonight, discussing his "News from the weekend illustrates the futility of gun control schemes" article from yesterday. Catch that show if you can.
No, the Bill of Rights applied to "The People" to keep Government both Federal AND State from violating the People's "God Given Rights"!
If the 1, 3,4,5,6,7,8,9..... amendments apply to the states then why doesn’t the 2nd?
Just askin
You have to keep in mind that the founders feared the government in ANY form, the Bill Of Rights was and is a backstop to the tyranny of ANY government, they have been misrepresented over the years by.... the Government!
The Bill of Rights are not made to restrict the people’s actions... they are put in place by the founders as a DIRECT RESTRICTION of the Governments actions.
Agreed, and to expand further, the second amendment and the other nine in question, refer to “any government of any kind. Federal, State, or Local.
The Bill of rights “all ten of the first ten amendments to the Constitution of the United States of America, enumerate for those who can’t read, the rights of a Free People. In my mind they are the only amendments necessary.
All others are superfluous and have been the cause of the distortion and confusion relating to the meaning of the first ten.
Someone pointed out to me what the Pennsylvania constitution has to say about t this.
The right of the citizens to bear arms in defense of themselves and the State shall not be questioned.
Any Questions ? ....Yes ... Shut up .
"A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed."
If you have not already, join the GOA, NRA and your State/Local Gun Rights Group... and don't forget to get family and friends involved.
If the Second Amendment falls, ALL other Rights go with it!
The Second Amendment does not “need” to be incorporated (as though the incorporation doctrine were not a fraud, anyway), because it doesn’t start “Congress shall make no law...”
Those amendments do not apply to certain enties by virtue of their membership in a group. They are individual articles and the provenance of each is determined by its wording. The first AMD says"Congress shall make no law..." and thus applies originally only to Congress. The 2nd says "...shall not be infringed" and does not specify a particular party that shall not infringe. If any entity infringes RKBA it is against the Constitution. That is obvious from the English wording of the article. Of course, if you learned your grammar in government schools, there is no help for you and no explanation is sufficient.
Actually, that's not the case. Originally, the USA was envisioned as a confederation of independent states, and as such each state had nearly complete autonomy. For instance, the First Amendment stops the federal government from establishing an official state religion, while many of the original states DID have official state religions. The First Amendment did not banish these official state religions. It was only later that the Constitution was applied to state and even local laws (I believe around or after the Civil War).
The Bill of rights “all ten of the first ten amendments to the Constitution of the United States of America, enumerate for those who can’t read, the rights of a Free People. In my mind they are the only amendments necessary.
There were more than a few founders who opposed the entire concept of a "Bill of Rights," in that they feared that some would come to see it as a list of rights allowed to the States and The People. The Constitution was written to be a document that stated exactly what the federal government was supposed to do, and if it was not in that document, the the federal government wasn't supposed to do it. The supporters of the BoR felt that some of the more egregious violations of the G-d given rights of a free people needed to be addressed, so the BoR was drawn up. Unfortunately, to this day there are a lot of people who believe exactly what those opponents feared: That the Bill of Rights "grant" those enumerated rights to the people, as opposed to the original intent, which is that ALL RIGHTS come from "The Creator," and the Constitution and BoR are actually limitations on the powered of the government (at the time, only the federal government).
Mark
Excellent message. And, you point to the critical importance of the 10th Amendment. I’m heartened that the 10th is getting renewed attention in a number of states, recently.
To further expound upon the discussion of the BOR, it was felt to be needed at the time in order to get all of the states to ratify the Constitution. Many of the states were unable to get the votes to ratify the constitution without having a guarantee of these basic rights. There were originally 12 amendments but two of them did not make it in. Both had to do with restrictions on Congress and not enumerating the rights of the people so they do not belong in the BOR anyways. One of them ended up being the 27th and latest amendment.
With the above in mind, why would the citizens want to ensure that their natural rights were enumerated and protected by the federal government but not thier own states? It doesn’t make sense. And if you read the constitutions of the original 13 states I believe that every one of them have the elements of the BOR in them. It was assumed that all citizens (not just citizens of a certain state) were guaranteed protection of these rights. Your natural rights (which the BOR outlines the majority of those assumed at the time) are inviolable and people of that age understood it.
bttt
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