Bookmark it Danno!
Posted on 11/06/2003 6:19:06 PM PST by PsyOp
I included two quotes from that speech in my compilation. Its the one I was refering to.
It appears I have responded to some of your posts out of order. Sorry for any confusion.
I agree. I have about a gigabyte of saved articles on my HD as well.
on writs of certiorari to the united states court of appeals for the ninth circuit [June 27, 1997]
Justice Thomas, concurring.
The Court today properly holds that the Brady Act violates the Tenth Amendment in that it compels state law enforcement officers to "administer or enforce a federal regulatory program." See ante, at 25. Although I join the Court's opinion in full, I write separately to emphasize that the Tenth Amendment affirms the undeniable notion that under our Constitution, the Federal Government is one of enumerated, hence limited, powers. See, e.g., McCulloch v. Maryland, 4 Wheat. 316, 405 (1819) ("This government is acknowledged by all to be one of enumerated powers"). "[T]hat those limits may not be mistaken, or forgotten, the constitution is written." Marbury v. Madison, 1 Cranch 137, 176 (1803). Accordingly, the Federal Government may act only where the Constitution authorizes it to do so. Cf. New York v. United States, 505 U.S. 144 (1992).
In my "revisionist" view, see post, at 3, the Federal Government's authority under the Commerce Clause, which merely allocates to Congress the power "to regulate Commerce . . . among the several states," does not extend to the regulation of wholly intrastate, point of sale transactions. See United States v. Lopez, 514 U.S. 549, 584 (1995) (concurring opinion).
Absent the underlying authority to regulate the intrastate transfer of firearms, Congress surely lacks the corollary power to impress state law enforcement officers into administering and enforcing such regulations. Although this Court has long interpreted the Constitution as ceding Congress extensive authority to regulate commerce (interstate or otherwise), I continue to believe that we must "temper our Commerce Clause jurisprudence" and return to an interpretation better rooted in the Clause's original understanding.
Id., at 601; (concurring opinion); see also Camps Newfound/Owatonna, Inc. v. Town of Harrison, 520 U. S. ___, (1997) (Thomas, J., dissenting).
Even if we construe Congress' authority to regulate interstate commerce to encompass those intrastate transactions that "substantially affect" interstate commerce, I question whether Congress can regulate the particular transactions at issue here. The Constitution, in addition to delegating certain enumerated powers to Congress, places whole areas outside the reach of Congress' regulatory authority. The First Amendment, for example, is fittingly celebrated for preventing Congress from "prohibiting the free exercise" of religion or "abridging the freedom of speech."
The Second Amendment similarly appears to contain an express limitation on the government's authority. That Amendment provides: "[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." This Court has not had recent occasion to consider the nature of the substantive right safeguarded by the Second Amendment. [n.1] If, however, the Second Amendment is read to confer a personal right to "keep and bear arms," a colorable argument exists that the Federal Government's regulatory scheme, at least as it pertains to the purely intrastate sale or possession of firearms, runs afoul of that Amendment's protections. [n.2]
As the parties did not raise this argument, however, we need not consider it here. Perhaps, at some future date, this Court will have the opportunity to determine whether Justice Story was correct when he wrote that the right to bear arms "has justly been considered, as the palladium of the liberties of a republic." 3 J. Story, Commentaries §1890, p. 746 (1833).
In the meantime, I join the Court's opinion striking down the challenged provisions of the Brady Act as inconsistent with the Tenth Amendment.
Notes
1 Our most recent treatment of the Second Amendment occurred in United States v. Miller, 307 U.S. 174 (1939), in which we reversed the District Court's invalidation of the National Firearms Act, enacted in 1934. In Miller, we determined that the Second Amendment did not guarantee a citizen's right to possess a sawed off shotgun because that weapon had not been shown to be "ordinary military equipment" that could "contribute to the common defense." Id., at 178. The Court did not, however, attempt to define, or otherwise construe, the substantive right protected by the Second Amendment.
2 Marshaling an impressive array of historical evidence, a growing body of scholarly commentary indicates that the "right to keep and bear arms" is, as the Amendment's text suggests, a personal right. See, e.g.,
J. Malcolm, To Keep and Bear Arms: The Origins of an Anglo American Right 162 (1994);
S. Halbrook, That Every Man Be Armed, The Evolution of a Constitutional Right (1984);
Van Alstyne, The Second Amendment and the Personal Right to Arms, 43 Duke L. J. 1236 (1994);
Amar, The Bill of Rights and the Fourteenth Amendment, 101 Yale L. J. 1193 (1992);
Cottrol & Diamond, The Second Amendment: Toward an Afro Americanist Reconsideration, 80 Geo. L. J. 309 (1991);
Levinson, The Embarrassing Second Amendment, 99 Yale L. J. 637 (1989);
Kates, Handgun Prohibition and the Original Meaning of the Second Amendment, 82 Mich. L. Rev. 204 (1983).
Other scholars, however, argue that the Second Amendment does not secure a personal right to keep or to bear arms. See, e.g.,
Bogus, Race, Riots, and Guns, 66 S. Cal. L. Rev. 1365 (1993);
Williams, Civic Republicanism and the Citizen Militia: The Terrifying Second Amendment, 101 Yale L. J. 551 (1991);
Brown, Guns, Cowboys, Philadelphia Mayors, and Civic Republicanism: On Sanford Levinson's The Embarrassing Second Amendment, 99 Yale L. J. 661 (1989);
Cress, An Armed Community: The Origins and Meaning of the Right to Bear Arms, 71 J. Am. Hist. 22 (1984).
Although somewhat overlooked in our jurisprudence, the Amendment has certainly engendered considerable academic, as well as public, debate.
"It would be strange to find in the midst of a catalog of the rights of individuals a provision securing to the states the right to maintain a designated 'Militia.' Dispassionate scholarship suggests quite strongly that the right of the people to keep and bear arms meant just that . There is no need to deceive ourselves as to what the original Second Amendment said and meant." A Matter of Interpretation: Federal Courts and the Law, Princeton University Press
"[T]hey [the Founders] feared that some future generation might wish to abandon liberties that they considered essential, and so sought to protect those liberties in a Bill of Rights." A Matter of Interpretation
"The Constitution Protects us from our own best intentions." (U.S. v. Printz, 1977)
United States v. Verdugo-Urquidez, 494 U.S. 259, 264 (1990)
[The question in the case was whether the Fourth Amendment protected foreign citizens on foreign soil from unreasonable searches, or applied only to U.S. soil or U.S. residents. The majority, per Chief Justice Rehnquist, said:]
"For purposes of this case, therefore, if there were a constitutional violation, it occurred solely in Mexico. . . . The Fourth Amendment provides: "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized." That text, by contrast with the Fifth and Sixth Amendments, extends its reach only to "the people."
"Contrary to the suggestion of amici curiae that the Framers used this phrase "simply to avoid [an] awkward rhetorical redundancy," "the people" seems to have been a term of art employed in select parts of the Constitution. The Preamble declares that the Constitution is ordained and established by "the People of the United States." The Second Amendment protects "the right of the people to keep and bear Arms," and the Ninth and Tenth Amendments provide that certain rights and powers are retained by and reserved to "the people." See also U.S. Const., Amdt. 1 ("Congress shall make no law . . . abridging . . . the right of the people peaceably to assemble") (emphasis added); Art. I, § 2, cl. 1 ("The House of Representatives shall be composed of Members chosen every second Year by the People of the several States")".
"While this textual exegesis is by no means conclusive, it suggests that "the people" protected by the Fourth Amendment, and by the First and Second Amendments, and to whom rights and powers are reserved in the Ninth and Tenth Amendments, refers to a class of persons who are part of a national community or who have otherwise developed sufficient connection with this country to be considered part of that community."
The ACLU: The most dangerous organization in America.
"The Right to Keep and Bear Arms
REPORT
of the
SUBCOMMITTEE ON THE CONSTITUTION
of the
UNITED STATES SENATE
NINETY-SEVENTH CONGRESS
Second Session
February 1982"
Quote from report ---".... subcommittee has managed to uncover information on the right to keep and bear arms which documents quite clearly its status as a major individual right of American citizens..... "
I have heard that the founder of the ACLU was, in fact, a communist. If true, He has done more damage to this country than Stalin could ever have hoped to.
Somebody must have given them a copy of the Bill of Rights. Thanks for the link. I'll check it out.
Barr has gone insane.
You'd think someone smart enough to be elected a senator might be able to figure out that one of the reasons there has been so little official "debate", is that until recently there was no need to. Doing so was on the level of Clinton's parsing of the the word "is". Everybody knew what the Second amendment meant.
Bookmark it Danno!
Hatch deserves a closer watch.
That depends on which "original copy" one refers to. The copy on display (sometimes) in D.C. does have 3 commmas, but the copies sent to at least a couple of states for ratification had only one. The text as it came from Congress, before being sent to the "printer", had only one. It was most often seen with only the one comma until a bit after the federal government got into the gun control buisiness. See this SAF page for links to images of various "original" versions. But as the article indicates, it really doesn't matter, the meaning is the same either way. Commas are used to separate clauses or phrases, but sometimes (more common in the past) they were also used to insert a spot to take a breath. I think this is the "function" as it were of the 1st and 3rd commas in the 3 comma version.
Since the ratified version had only one, according to the Library of Congress, officially it's only one comma and you are completely correct. (remember that the 2nd amendment was actually the 4th one proposed but the first 2 were not ratificed at that time, the first one never has been)
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