Posted on 03/10/2004 10:29:00 PM PST by William Tell
Efforts are already underway in California to collect almost a million signatures in an attempt to establish the right to keep and bear arms in the California Constitution.
Successful gathering of the necessary signatures by June 1, 2004 will allow the voters of California to decide at this November's election whether they will recognize the unalienable right to defend one's self, family, and home with firearms.
The text of the proposed amendment is as follows:
The use of the term "strict scrutiny" and references to freedom of speech and the press are intended to restrict legislators to the minimum interference with the right and only when no alternatives exist.
An organization called "The Alliance for Civil Rights" has been distributing materials and applications for volunteers. Unfortunately, their website has not been updated yet and the clock is ticking. Rather than wait while signatures could be gathered by motivated members of FreeRepublic, I have created a simple web page which makes available the essential materials for conducting a successful petition drive.
The Unofficial California RKBA Petition Web Site contains a link to the sponsoring organization's web site, The Alliance for Civil Rights, as well as a link to the Golden State 2nd Amendment Council which has made the petition files available.
My web site has links to the individual county petitions in PDF format and an instruction sheet for filling out and submitting petitions.
I have included a recommended course of action for volunteers which reflects the activities which I am carrying out in my county.
There is an email address for this unofficial web site, rkba@sonic.net. Let me know if I can help more.
There are almost 2000 California Freepers. If we had to do this by ourselves, it would take nearly 500 signatures each. But we are not alone. Signatures are already being gathered at gun shows (that is where I signed) and the word is getting out. The unsuccessful effort to repeal SB23, one of the many "assault weapon" laws in California, collected about 570 thousand signatures, about 85% of the number required to put the matter to popular vote. At that time, many who were only concerned about their shotguns might have had little interest. I think they may be listening now.
We can do this but you will need to do your part.
William Tell
...Mars will crash into the earth.
You have lost me there. Why is the first sentence below meaningful and providing of operational requirement that gives the declaration some effect, but the second one is not?
All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.
All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the State wherein they reside.
Inquest wrote: There's nothing superfluous about the clause.
I didn't say the above clause is superfluous. I said that the designation of US citizenship is superfluous, under your interpretation of the 14th.
Inquest wrote: I only looked quickly, and missed your other point about the designation of U.S. citizenship in the first sentence. That's also necessary, for the reason I mentioned at the top of the post you responded to.
And there you wrote: If they had said "privileges and immunities of the state's citizens", then that would have threatened to undo Article IV's protections against denial of privileges and immunities to out-of-state U.S. citizens.
Look again. I left the entire P/I Clause out of the "revised" 14th Amendment, so Article IV is unaffected.
To put it another way, (Article IV) + (the 14th Amendment minus the designation of US citizenship, and minus the Privileges and Immunities Clause) should fulfill your interpretation of the Fourteenth Amendment--
--The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States.
All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the State wherein they reside. No State shall 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.
Now on to the main point--
The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States.
All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the State wherein they reside. No State shall 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.
Does the above accomplish your interpretation of the 14th Amendment?
I think you should. I stated, "If those "privileges and immunities" included free speech, freedom of assembly and the RKBA for white citizens, then those "privileges and immunities" also applied to black citizens."
Dred Scott was about more than carrying a gun around.
For the gazillionth time, it came from the state, or more correctly, the citizens of the state.
"The confiscations of arms in an around Boston prior to 1776 clearly indicated that there was no recognized right to bear arms in law at the time that would protect the citizens of Boston."
That is correct. It wasn't until 1780 that Massachusetts added the following to their State Constitution: Article XVII "The people have a right to keep and to bear arms for the common defence. And as, in time of peace, armies are dangerous to liberty, they ought not to be maintained without the consent of the legislature; and the military power shall always be held in an exact subordination to the civil authority, and be governed by it."
This was all decided, only five years after the 14th amendment was ratified, in the Slaughterhouse Cases.
"Every lawyer knows why the Privileges or Immunities Clause is absent from modern constitutional law, despite its manifest presence in the Fourteenth Amendment: 125 years ago, in 1873, five years after the amendment was ratified, a bitterly divided Supreme Court, by a vote of five to four, effectively removed the clause from the Constitution. That decision, reached in the infamous Slaughterhouse Cases, rendered the clause ever after "a vain and idle enactment", precisely as predicted by the Slaughterhouse dissenters."
"Indeed, so profound was the effect of the Court's decision that in the entire history of Fourteenth Amendment jurisprudence only one state law has ever been held to be in violation of the Privileges or Immunities Clause--and that decision was overturned just a few years after it was announced."
"In a single stroke, the Court had turned the centerpiece of the Fourteenth Amendment into "one of those blessed constitutional provisions that by being ignored has not caused a single bit of trouble"
-- Professor Lino Graglia, University of Texas (one of the leading conservative critics today of the Court's "activism" in overseeing state power)
I thank the 14th amendment for nothing. And neither should you or any "state's rights" conservative.
Because of the 14th, if the USSC says nude dancing is a first amendment right, then every state must honor it.
Because of the 14th, if the USSC says a high school commencement speaker cannot say "God", then every state must honor it.
Because of the 14th, if the USSC says the CFR laws are constitutional, the every state must honor them.
Sodomy? Abortion? The USSC is running this country with the Due Process Clause.
But you want to blame the Commerce Clause. Why? The Commerce Clause does nothing -- it just sits there. No judge can use it, no activist can touch it.
The only group that uses the Commerce Clause are congressional representatives that we elect every two years. If they are writing abusive laws, throw the SOBs out into the street! Are you voting today? You damn well better be, blaming the Commerce Clause for everything including the common cold.
As far as Wickard v Filburn goes, Filburn deserved to be bitch-slapped for trying to scam the system. He signed on to a program that increased the price he received by restricting production, then turned around and produced more than he agreed to.
All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the State wherein they reside. No State shall 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.
Does the above accomplish your interpretation of the 14th Amendment?
It might, once you put the pieces together, but the problem is that it leaves too much to artful construction. It's natural to assume that the authors wanted to be explicit on the point that not only are the newly freed slaves citizens, but they're entitled to all the trappings of citizenship.
For one thing, the general understanding of Article IV is that it was only a rule about how states treated citizens of other states, not their own states. The context of the provision certainly supports that interpretation. So at the very least, the 14th amendment would have to say something like, "No state shall make or enforce any law which shall abridge the privileges and immunities of its citizens."
So, would that be enough, with the alteration I made? Technically, it probably would, but the problem still remains that by having the new P&I clause refer only to the citizens of the state in question, it would create the impression that respecting the privileges and immunites of citizens of other states would be, at best, of diminished importance. So that's why they really needed to say, "privileges and immunities of citizens of the United States." That covers all bases.
The court erred in reading that as a null clause. Nothing in the 14th amendment was mere window-dressing. In making their ruling, they created a ton of unnecessary confusion on the 14th that persists to this day.
The P&I clause was intended to prevent states from treating any group of citizens as "second-class" citizens. Once the court turned a blind eye to it, that purpose was piggybacked onto the equal-protection clause (which has a different meaning altogether; I don't know if you've been following my discussion with Ken H, but I've described the difference between the two clauses. I pretty much summed it up in this post, in the middle paragraph).
Hence, a term as straightforward as "equal protection of the laws" has been twisted to mean all kinds of very odd things. And because it refers to persons rather than citizens, it's given rise to the notion that citizenship is meaningless, if aliens must be treated the same as citizens in every way. Wasn't California's Prop 187, for example, challenged on "equal protection" grounds? (I know the challenge ultimately failed, but I believe they were at least able to win a temporary injunction)
What does the 14th amendment have to do with CFR?
All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the State wherein they reside. No State shall 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.
Does the above accomplish your interpretation of the 14th Amendment?
It might, once you put the pieces together, but the problem is that it leaves too much to artful construction.
It's natural to assume that the authors wanted to be explicit on the point that not only are the newly freed slaves citizens, but they're entitled to all the trappings of citizenship.
For one thing, the general understanding of Article IV is that it was only a rule about how states treated citizens of other states, not their own states. The context of the provision certainly supports that interpretation.
Are you saying a State could abridge the P/I of its own citizens prior to the 14th Amendment? That would not be consistent with a Republican form of government, would it?
So at the very least, the 14th amendment would have to say something like, "No state shall make or enforce any law which shall abridge the privileges and immunities of its citizens."
So, would that be enough, with the alteration I made? Technically, it probably would, but the problem still remains that by having the new P&I clause refer only to the citizens of the state in question, it would create the impression that respecting the privileges and immunites of citizens of other states would be, at best, of diminished importance.
You've really lost me now. How would it create the impression that Article IV is diminished? Your provision contains nothing at all that negates Article IV. It expands its scope to include all citizens in every State.
So that's why they really needed to say, "privileges and immunities of citizens of the United States." That covers all bases.
They did not have to add US citizenship to cover their bases if all persons born/naturalized in the US were citizens of the State in which they reside and that the State could not abridge the P/I of its own citizens.
"Republican form of government" refers to the form of the government, not its policies (one might argue that slavery represents an un-republican form of government, even though that was obviously not considered to be the case). The phrase is deliberately vague as to what specific forms it must take. Its main purpose is to commit the federeal government to act whenever someone tries to launch a coup, or declare martial law, or something of that nature.
You've really lost me now. How would it create the impression that Article IV is diminished?
Say your town has an ordinance against playing loud music from 8pm to 8am, but now it wants to pass a new ordinance to prohibit it altogether. Which wording for the new ordinance do you think would get the point across better: "The playing of loud music is prohibited from 8am to 8pm" - or - "The playing of loud music is prohibited at any time"?
Say your town has an ordinance against playing loud music from 8pm to 8am, but now it wants to pass a new ordinance to prohibit it altogether. Which wording for the new ordinance do you think would get the point across better: "The playing of loud music is prohibited from 8am to 8pm" - or - "The playing of loud music is prohibited at any time"?
Clearly the latter in your exampe, but I'm having trouble lining up the terms in your analogy with terms in Article IV and the 14th.
Can you give an example that might come before a court or legislature where Article IV would be diminished or made more complicated if the wording of Section 1 of the 14th were--
-- All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the State wherein they reside.
No State shall make or enforce any law which shall abridge the privileges or immunities of its citizens;
I don't see the necessity of adding US citizenship with article IV in effect.
-- All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the State wherein they reside.
No State shall make or enforce any law which shall abridge the privileges or immunities of its citizens;
Under that specific wording, no, no Article IV complications to speak of. But without any mention at all of U.S. citizenship, that wording risks creating the impression that there can be such a thing as a citizen of a state, but not a citizen of the United States. So the first sentence would have to be as it's actually written in the 14th amendment. Thus "amended", we have, so far:
All persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of its citizens;
Now this wording can present complications in light of Article IV. By talking about both state citizens and U.S. citizens in the first clause, and then referring only to state citizens in the second, it might give encouragement to the notion that the P&I clause of Article IV has been amended to say something different. Why take the risk, instead of making it absolutely clear, as you agreed should be done in regard to the hypothetical noise ordinance?
Today, without the 14th amendment, if a state wanted to run an advocacy ad within 30 days of a primary or within 60 days of a general election, it could.
Since the first amendment has been incorporated under the 14th, doesn't the federal government/USSC now set all free speech rules?
It exists in our constitution,.....
So does the Constitution confer upon the states the power to take your life after your right of "due process", as is stated in the 5th. Amendment, has been satisfied. As Paulson tried to explain to all you Perry Mason's, there is a huge legal difference between a "Right" and a "Power" in the Constitution. RKBA'rs keep stumbling over these differences to their detriment. We have not kept check on state power, esp. CA.
I would also like to know, exactly, what you all mean by "automatic weapons"? If you mean "fully automatic" and not "semi-automatic", you may as well all be happy with paint ball guns. Because the "Soccer Mom's" and the comfortably rich are not going to permit you to have these toys without some very stringent requirements. Enlistment, as an example.
If RKBA'rs cannot understand reality, the 2nd. Amendment, as envisioned by the Founding Fathers, will only be found in Fantasy Land.
The way I read it was that P&I function was turned over to the Due Process Clause. I think, for example, Roe v Wade and the Texas Sodomy cases were both decided on due process, not equal protection.
Maybe the court did indeed error on the P&I of the 14th amendment. But null and dead it is.
Hey, feel free to debate the issue with KenH. It's interesting reading. Moot, but interesting.
"The only privileges which the Fourteenth Amendment protected against state encroachment were declared to be those ''which owe their existence to the Federal Government, its National character, its Constitution, or its laws.'' These privileges, however, had been available to United States citizens and protected from state interference by operation of federal supremacy even prior to the adoption of the Fourteenth Amendment. The Slaughter-House Cases, therefore, reduced the privileges and immunities clause to a superfluous reiteration of a prohibition already operative against the states."
As I said, moot.
Well, they've always claimed that power with regard to federal law.
It's true, however, that with "incorporation" federal courts have had far more opportunities to pass judgment on the meaning of the various provisions of the Bill of Rights. That's why it's always important to see how they rule on a case arising out of some state's law, because they'll be sure to apply that precedent to federal law as well. Just one more reason why "incorporation" is such a bad idea (in addition to being unconstitutional).
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