Posted on 04/04/2006 11:24:00 AM PDT by Merchant Seaman
What is wrong with the Second Sentence of Section 1 of the Fourteenth Amendment" That sentence reads as follows:
“No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”
Why is the United States missing from the prohibitive declaration, "No State shall"?
Perhaps then, those who wrote and ratified the 2d Amendment should not have placed a "reason", or condition clause in front of the expression of the right. In any case, it has certainly been the perceived loophole that the gun control advocates have clung to.
Ironically enough, I think that clause was put in there in order to emphasize the importance of that right, hardly in order to limit it.
The clauses of the 5th refer to the powers of the Executive and the Judicial branch of the U.S. Government.
And the 14th refers to the powers of the Legislative branch of the State governments.
I don't disagree, because a "right" cannot have a condition attached or it is not a right. But it is that clause that has caused most of the dispute. And in any case, as with all "rights", they can be controlled so as not to infringe on the rights of others. And of course, there's that old "intent" issue, which courts do consider. So it would have been far better, not to place such emphasis, because of course, that need for a well regulated militia is certainly not the requisite today.
Nothing in either amendment indicates which branches of government they apply to.
Yes. That is how corporations got the right to own corporations. The state legislatures were forced to yield.
Not in a day-to-day sense. And except on the frontier, there wasn't that much of a day-to-day need for a militia even in 1789. But now as well as then, there is a need for every state to have the capability of forming one, so that it can be defended against usurpations of power. That's why there was so much of an emphasis on militias then. The fact that they've fallen out of use doesn't change their utility in defending freedom.
Madison and Hamilton both argued in the Federalist Papers against a BoR, stating that it was unnecessary as the federal government only possesed the enumerated powers. The Supreme Court held in Barron v. Mayor & City Of Baltimore that the BoR did NOT apply to the states.
Nonetheless, Washington put his army together from state (colonial) militias, and the state militias continued to exist on into the new nation. Even in the War of 1812, state militias were called up and some refused.
But now as well as then, there is a need for every state to have the capability of forming one, so that it can be defended against usurpations of power.
I seriously doubt after the Civil War, any state is going to form some sort of militia over and above the national guard to protect itself against "usurpations of power", whatever that may mean to you.
OH YES THEY DO!
Everything about the 5th is about what the Executive and Judicial branch can do to an individual for their propensity to violate constitutional rights.
Section 1, 2nd sentence specifically states "make and enforce any law." That implies the Legislative and Executive (arrest) branches. Although the Judicial branch can be thrown in as "after the fact" (adjudication).
Damn it. I think you just blew a hole in that part of my theory.
There was no federal government at the time to give him a standing army. But you make my point: When fighting against your own army when it's trying to take away your freedom (as Washington was doing), you need militias. That was the whole point about it "being necessary to the security of a free state".
Only with regard to privileges and immunities. A separate clause then begins with regard to due process.
But I am still hung-up on the missing "United States" ... It is a thorn sticking in my skin.
FOR EVERYONE!
http://amricancommondefencereview.blogspot.com/
#@$&^)%$
Thank you. I'll get it corrected ASAP.
He was fighting against an army that had to travel weeks across the ocean. Can you paint me a scenario where a state militia today would be used against a usurpation of poower?
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.