Hasta La Vista, 2nd Amendment

Liberty Belles ^ | Jennifer Freeman

[TERMINATTOR]

 

California Governor, Arnold Schwarzenegger, has recently reaffirmed his support for a federal ban on the private ownership of semi-automatic rifles, commonly known as the "Assault Weapons" ban. There was much debate and speculation about Schwarzenegger's position on firearms ownership prior to his being elected. This was primarily due to the fact that there was very little public information about his position on firearms. Californians were left to speculate about whether The Terminator -- the alpha male who made millions of dollars making movies in which characters used semi-automatic rifles to defend themselves -- was actually Mr. Shriver, a gun-banning politican towing the line for the Kennedy clan. Perhaps the Governor is neither an alpha male, nor a Kennedy wanna-be. Perhaps he is more like Bill Clinton in that he makes his decision based on what the polls say. And we know all how inaccurate polls can be. Whatever the reason, a person cannot support a ban on the private ownership of semi-automatic rifles and claim to uphold the Constitution. A politician cannot take away the rights of the citizens to protect themselves and claim to be for the people. A man cannot be judged as having good character, if his decisions are based on personal gain. And Californians cannot complain about gun rights while voting for a candidate who is questionable, at best, on the issue of firearm rights.

Say, "Hasta la vista" to the Second Amendment, baby!

[Ken H]

If the USSC interpreted the incorporated second amendment to mean that it did NOT protect an individual RKBA, state laws to the contrary could be invalidated by legal action, similar to the state flag burning laws.

In the flag burning case, USSC interpreted freedom of speech in a manner to expand an individual right to free speech.

Therefore, State laws banning flag burning were nullified.

Had USSC interpreted FOS more restrictively, saying flag burning is not protected FOS, then no State laws on flag burning would have been nullified, correct?

And here's the main point. With a restrictive FOS interpretation, States that allowed flag burning would not be forced to outlaw it.

Same with the RKBA.

An interpretation that expands the individual RKBA would nullify many State and local laws restricting the RKBA.

Now, if USSC rules more restrictively and says RKBA is not a protected individual right, then no State laws restricting RKBA are nullified.

And like the flag burning analogy (with a restrictive FOS ruling), no State would be forced to restrict the RKBA. The decisions regarding the RKBA would be left in the hands of the States.

IOW, you have no basis for saying a "no individual RKBA" ruling by USSC would open the door to States being forced to be more restrictive on the RKBA.

I ask yet again, how could USSC force Vermont to be more restrictive with guns?

[LexBaird]

I pointed out that it was about limiting the Constitution's powers - the powers that the Constitution confers. Since it doesn't confer powers on the states (except, as you say, the power of initiating and ratifying amendments - it'd be pretty interesting for someone to show exactly how that power is limited by the BOR), then it would have to refer to federal powers.

Since you concede that the BoR is about limiting the powers of the Constitution, not the Feds directly, and you concede that the Constitution does have the ability to confer and limit specific powers to the States, then it does not follow that the BoR is limited to the Fed.

By the way, powers granted to the States are not just the amendment process. Read Article IV, particularly Section 2, Clause 2. Now explain how Amendments IV through VIII should have no effect on the States handling of this extradition.

Now read Article IV:2:1, and explain how I can have my 5th A. privileges and immunities abridged in, say, Ohio, when I enjoy them in Pennsylvania.

[Godebert]

...republicans and conservatives are making headway, regardless of the embarrassment we suffer from the whacked out, jackbooted and intolerant right-wing element.

I don't know if you've noticed....but this IS a right-wing forum. Kinda ironic that a gun-grabbing leftist schmuck such as yourself is calling us "jackbooted".

[LexBaird]

Prior the the 14th amendment, the state defined and protected your rights -- it did not provide immunity from infringement. These rights are listed in your state constitution. If they are not in the state constitution, the state does not protect them. The Bill of Rights to the U.S. Constitution protected rights from being infringed by the federal government. If your state declared that you had the right to free speech, the federal government could not pass a law prohibiting it. If, however, your state did not declare such a right, well then, there was nothing for the federal government to infringe. The Bill of Rights did not create rights.

Show me, specifically in black and white, where the Constitution or Amendments limit the BoR to the Federal government.

Prior to the 14th A., there was still Article IV:2:1 --"The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States."

[William Tell]

robertpaulsen said: A "Citizen of the United States" was only entitled to life, liberty, and property. Period. Additional rights, like the RKBA, were defined and protected by the states, and given to the "Citizen of the State".

This is not what happened in Gitlow. The "liberty" of freedom of speech, protected by "Congress shall pass no law" was specifically referred to from the First Amendment, and a determination was made by the Supreme Court that it was "fundamental" despite the lack of any such distinction in the US Constitution. Why the reference to the First Amendment at all? Why not just an unsupported opinion from the Supreme Court that freedom of speech is fundamental?

Since there obviously was not a freedom of speech protected at the state level, just how "fundamental" could it have been?

Relative to your statement I reference here, how do you characterize the Second Amendment?

The Second Amendment, as you have stated before, refers to an individual right to keep and bear arms.

It provides that "the people" will be immune from at least federal infringement. What is the logic that permits one to determine that it is not among the "privileges and immunites" of "citizens of the United States"?

How is it possible to determine that keeping and bearing arms is not a "fundamental" liberty deserving of the PROTECTION of the due process claus? What makes it possible to determine that it is not "fundamental"?

[William Tell]

robertpaulsen said: "If your state declared that you had the right to free speech, the federal government could not pass a law prohibiting it. If, however, your state did not declare such a right, well then, there was nothing for the federal government to infringe. "

"Congress shall pass no law..." protects from infringement by the federal government regardless of whether any protection is afforded by the state. Even prior to Gitlow, the federal government was prohibited from abridging freedom of speech.

[68 grunt]

I am about as far from a gun-grabber as you can be, and as long as I get to be called a leftist schmuck, I'll return the insult by calling you a keyboard hero, and real-life zero, a coward, who hides in a herd.

[mrsmith]

"Show me, specifically in black and white, where the Constitution or Amendments limit the BoR to the Federal government. "

Ah, the old belief that the federal government can do anything it is not specifically not allowed to do.

No, the federal government is a government of enumerated powers (unlike the states which have general powers).

The Constitution is the enumeration of those powers.
So where in the Constitution is the power granted to the federal government to enforce the Bill of Rights against the states?

It isn't is it?
Of course not- you're obviously quite capable of reading.

So that's why no rights in the Bill of Rights were ever enforced against the states, and why the 14th Amendment was written to grant the federal government that power (well, to enforce the first eight amendments anyway).

[robertpaulsen]

As I said before. Once the USSC actually rules that the incorporated second amendment does NOT protect an individual RKBA, the first person who is injured by a gun files a lawsuit claiming their civil right of equal protection (ie., the freedom of one person infringes on the rights of others) was violated by a gun-wielding individual who has no constitutionally protected right to have that gun to begin with. That other states protect the civil rights of their citizens, and their 14th amendment due process of equal protection is being denied to them.

They can't do that today because state constitutions define the RKBA as individual rights.

[ChefKeith]

BUH BYE arnie You TURNCOAT POS!

[robertpaulsen]

"Prior to the 14th A., there was still Article IV:2:1 --"The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States."

And that simply required the states to legally treat citizens of other states as they would their own.

"Show me, specifically in black and white, where the Constitution or Amendments limit the BoR to the Federal government."

Show me, specifically in black and white, where the Constitution or Amendments extends the BoR to the states (prior to the 14th amendment).

You have already been given black and white examples.

[Godebert]

"I am about as far from a gun-grabber as you can be, and as long as I get to be called a leftist schmuck, I'll return the insult....."

A quick review of your posts shows that:

You are pro-homosexual Agenda. You support gun confiscation and vote for politicians that are anti-gun. You have no regard for the Constitution of the United States of America. You are as anti-smoking as Henry Waxman yet support legalization of dope. You are an athiest and an anti-Christian bigot.

That makes you a sniveling liberal in any conservative's book.

[robertpaulsen]

"Since there obviously was not a freedom of speech protected at the state level, just how "fundamental" could it have been? "

Good point. There are those who argue that the 14th amendment did NOT incorporate the BOR.

There is an argument "that the provisions of the Bill of Rights are essentially irrelevant to interpretation of the Fourteenth Amendment, and that violations of the Due Process Clause are to be determined by a natural-law-like tests such as "Does the state's action shock the conscience?" or "Is the state's action inconsistent with our concept of ordered liberty"? This is the "No Incorporation" Theory advanced by Justice Frankfurter, among others."

"Justice John Marshall Harlan wrote in 1968, "The overwhelming historical evidence marshaled by Professor Fairman demonstrates, to me conclusively, that the Congressmen and state legislators who wrote, debated, and ratified the 14th Amendment did not think they were 'incorporating' the Bill of Rights."

[Godebert]

I forgot to add......You are PRO-Abortion to the list.

[robertpaulsen]

All I was saying was that if your state did not protect free speech, an amendment prohibiting the federal government doing so was moot, as far as you were concerned.

[68 grunt]

You are very wrong, and I don't intend to debate with someone who is too dim to recognize the difference between conservative and right-wing whacko.

[robertpaulsen]

"The Second Amendment, as you have stated before, refers to an individual right to keep and bear arms. It provides that "the people" will be immune from at least federal infringement. What is the logic that permits one to determine that it is not among the "privileges and immunites" of "citizens of the United States"?"

Because the "right" was defined and protected by the individual states. This was not a "universal" right extended to all citizens of all states.

IF the right was defined and protected by a state, it could not be infringed by the federal government.

The phrase "Citizens of the United States" was created by the 14th amendment. "The Fourteenth Amendment of the Constitution of the United States, ratified in 1868, creates or at least recognizes for the first time a citizenship of the United States, as distinct from that of the states." Black's Law Dictionary, 5th Edition, p. 591 [1979].

"The importance of the (Slaughterhouse) case can hardly be overestimated. By distinguishing between state citizenship and national citizenship and by emphasizing that the rights and privileges of federal citizenship do not include the protection of ordinary civil liberties such as freedom of speech and press, religion, etc., but only the privileges which one enjoys by virtue of his federal citizenship, the Court averted, for the time being at least, the revolution in our constitutional system apparently intended by the framers of the amendment and reserved to the states the responsibility for protecting civil rights generally." Cases In Constitutional Law by Robert F. Cushman, 5th Edition, pp. 250-251 (College Law Textbook) [1979]."

"Slaughter-House held that privileges and immunities conferred by state citizenship were outside federal reach through the Fourteenth Amendment. ... Federal citizenship was seen as including only such things as interstate travel and voting. While subsequent decisions have extended the meaning of citizenship in the Fourteenth Amendment, Slaughter-House is still controlling in that it precludes use of privileges and immunities language in protecting citizens by federal authority." Constitutional Law Deskbook - Individual Rights, by Chandler, Enslen, Renstrom; Second Edition, p. 634 (Lawyers Cooperative Publishing, 1993)."

[Godebert]

You've mistaken "left-of-center moderate" with Conservative. Too bad for you this isn't the premier "Left-of-Center" forum on the web. Now go back to your bong hits, Jimi Hendrix albums and tie-die t-shirts.

[68 grunt]

And you exemplify the right-wing whacko who continues to embarrass our cause.

[mrsmith]

Well, examples that have come to me are "back door" legislative infringements:

For federal school aid states can't allow guns in cars in school parking lots.
For federal highway aid states can't allow guns in cars.
For federal housing aid states can't allow guns in federally funded housing.

Even if the court did not completely remove the RKBA these may not be protected under whatever standard the court did incorporate.