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!

[Godebert]

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

Lucky for me I will never be embarrassed by my Conservative values. If you're so embarrassed by Conservatism.... you're on the wrong forum.

[robertpaulsen]

IF the second amendment were incorporated (ie, the second amendment now applies to the states in addition to the federal government), and

IF the USSC then ruled in some case that the RKBA provision of the second amendment did not refer to an individual right, and

IF a state constitution defined the RKBA as an individual right

Then, do you believe that the state law could be negated/overturned/whatever by civil rights litigation similar to what I proposed in my post #369?

[68 grunt]

You'd really like to alienate me, wouldn't you. Thats another sign of a weak mind, alienate those with whom you don't agree. Bleat like a sheep from deep in the flock. I'm not embarrassed by conservatism, I'm embarrassed by right-wing whackjobs, and wonder how many of them are demonrat plants, simply here to embarrass and give this forum with the impression to the lurkers out there that your ilk speak for all conservatives. They don't, and your lies don't hurt me at all.

Btw, I'm quite cozy here at FR, just wish that the whacks would realize this isn't a whackjob site.

[Ken H]

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.

Say the USSC rules that the Second Amendment does not protect the individual RKBA.

Such a ruling would mean that the "gun-wielding individual" has no constitutionally protected right to have that gun, correct?

If the Second were incorporated, it would mean that US citizens (including the gun-wielding individual) have no individual RKBA under the US Constitution. Am I correct?

If the Second were unincorporated, it would mean that US citizens (including the gun wielding individual) have no individual RKBA under the US Constitution. Am I correct?

So I ask you, why would your Equal Protection case be valid with an incorporated 2A, but invalid if the 2A is not incorporated?

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

I think the reason they don't do it today is because it is a hare-brained idea to begin with and no court would take it seriously.

[mrsmith]

Not really, if the state had a RKBA in it's constitution or other state law I don't think the lack of a federal right would enter into a lawsuit (which would be tried under state law), and I don't see how it could get into federal courts - but I'm no lawyer.

An unenumerated "right" of "freedom from gun violence" -or similar language- could eventually be found by the courts and then set above the "de-enumerated" RKBA to get to the result you cite.

[Godebert]

"I'm embarrassed by right-wing whackjobs, and wonder how many of them are demonrat plants, simply here to embarrass and give this forum with the impression to the lurkers out there that your ilk speak for all conservatives. They don't, and your lies don't hurt me at all. Btw, I'm quite cozy here at FR, just wish that the whacks would realize this isn't a whackjob site."

Do I need to recap?

You're Pro-Abortion.

You're pro-homosexual agenda.

You're a rabid anti-smoking zealot yet want to legalize dope.

You're anti-gun and support gun-confiscation.

You're anti-Christian.

You use the term "right-wing whackjob" in 95% of your posts on Freerepublic.

Now explain to us again why you think you are a Conservative?

[Ken H]

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.

If I'm not mistaken, Congress uses the General Welfare Clause as their constitutional grant of power to fund schools (I could be wrong and it might be the Commerce Clause).

They piggy-backed some anti-gun rules along with the funding. The 14th Amendment has nothing to do with it as far as I can see.

For federal highway aid states can't allow guns in cars.

Now there's Commerce Clause. (DOD in the case of interstates). They piggy-backed anti-gun laws there too without using the 14th Amendment.

For federal housing aid states can't allow guns in federally funded housing.

Not sure where in Article I Congress claimed the power to fund housing. I'd guess GW, but housing sure could have a Substantial Effect on interstate commerce.

In any event, I don't think Congress claimed the 14th granted them that power.

Then there is the 1994 AW Ban and the 1968 Gun Control act, all justified by the Commerce Clause, according to Congress.

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

Is that because Congress uses the Commerce and General Welfare Clauses as an opportunity to infringe the RKBA and the Courts let them get away with it?

[mrsmith]

I was responding to your request for examples of a difference incorporating the second without RKBA would make in state law.

Look at the restrictions- not the funding (the housing is a bad example as that is 'voluntary').

[budwiesest]

The renewal of the federal ban on assault weapons is a prudent,

Stop right here. Any, and I mean any 'infringements' on arms at the federal level (suitable for use in a militia) are strictly forbidden by the second ammendment. These would include weapons used by our military, for instance.

The states may want to play f**k-around with gun rights, so let them. I'd rather battle this issue at the state level. and can only imagine the rats scurrying from statehouses as real Americans head to the voting booths. Screw everthing else, this is THE issue that distinguishes Americans from foreign (socialist/communist) interests.

It's been a long time coming and we should embrace it. Notice to Feds: You're only there because we put you there. We can take it away. We can, as states, dissolve this 'union'. You serve at our luxury. You are our employee and no, you will not tell us what arms we may possess, we can fire you. As an employee of the several states, you've gotten kind of uppity lately, and this in going to change. Why, because the relationship has become strained and it's your fault. We'll keep our guns, you guys work on your resumes.

[68 grunt]

Because you're a liar I have to respond.

I am anti-abortion. I think the whole roe vs wade crap the defining moment when our country stated going down the crapper. We were promised the right to life. If we abandon that first promise, what does all that blather that follow mean. I am willing to compromise, however. If we were to be solidly anti-abortion we would lose ever political race, regardless or the righteousness of our position. This is why I'm willing to compromise and call the first trimester infant a thing, while I know fully that it is indeed an infant.

Ain't pro-homo, at all. I am anti-intolerance. Phobia means fear, and too many of you are too phobic.

I have know idea where you get that I am anti-smoking. You're simply mistaken.

I'm am as in favor of legalizing apples as I am marijuana. Its a plant and God's gift. The gift of happiness. That was the third original promise to us, the right to happiness.

No way am I anti-gun, and I support headshots agaisnt gun-confiscators. You must be purposely lying.

Anti-Christian? No! Anti-intolerant Christian? Yes. Those that spew their hate-filled drivel don't have Christ in their heart, and those who would follow Elmer Gantry are weak-minded. Often, those who wear their religion as a cloak to hide that they don't have Christ in their heart.

I refer to whacks in 95% of my posts? Maybe, of late. I basically enjoy civil discussions. On this thread, after the anti-Arnies raved for awhile, and I responded, the thread settled into a good debate, fed vs. state rights and whatnot. Good pertinent stuff, until you had to go and insult me. Yep, I think you're a whackjob.

Why do I call myself a conservative? Because the liberals are disgusting, and the libertarians are as whacked as the right-wing. The greens are watermelons and the brigade neo-nazis. Since RMN I've voted in every election, and except for two mistakes(Govnor moonbeam and the peanut farmer), always voted R. I'm still republican, probably always will be one, unless we succeed in destroying the demonrat party, the party of traitors, liars, cheats, thieves and communists.

[Ken H]

I was responding to your request for examples of a difference incorporating the second without RKBA would make in state law.

Do you agree or disagree that the incorporation status of the Second Amendment is irrelevant to the anti-gun laws in the examples you gave?

Also, am I right or wrong on the culprits being an anti-gun bias coupled with an expansive view of the General Welfare and Commerce Clauses, rather than the Fourteenth Amendment?

Look at the restrictions- not the funding (the housing is a bad example as that is 'voluntary').

I did and I don't care for them.

The only reason Congress can apply those restrictions in the first place is by claiming a grant of power under the GW and Commerce Clause to fund schools, housing, etc. Agreed?

[William Tell]

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

If this was the meaning of the Second Amendment, then that is what our Founders could have written.

Your assertion suggests that the meaning of the Second Amendment is a function of each particular state constitution. That federal legislation is prohibited from infringing the right to keep and bear arms for citizens of Vermont, for example, because their constitution has a right to keep and bear arms, but that the Second Amendment does not prohibit the FEDERAL government from infringing the right to keep and bear arms on the part of Californians because their constitution does not explicitly mention arms.

Please provide an example of any such federal law.

[William Tell]

mrsmith provided as an example: "For federal housing aid states can't allow guns in federally funded housing."

I thought that this one had already been struck down as a violation of privacy or some such reason. People don't lose their right to keep and bear arms just because federal funding is provided for their housing.

[tpaine]

 Posted by robertpaulsen:

The phrase "Citizen of the United States" was created by the 14th amendment.

Typical weird misinfo by the 'states rights' anti-constitutional crowd.

"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].

"Blacks" is wrong. All Representatives, Senators, & the President must be a "Citizen of the United States", as is specified in Articles I & II.

[LexBaird]

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

From saying that the BoR extends to the States to belief in the above statement is quite a leap of logic. I contend no such thing. Contrariwise, I believe that neither is the State allowed anything not specifically disallowed. That ultimate power resides in the people.

The Constitution is the enumeration of those powers.

Among other things. Such as the prohibiting of certain things to the States.

So where in the Constitution is the power granted to the federal government to enforce the Bill of Rights against the states?

Enforce? Rather the Constitution establishes a Supreme law over both the Federal and the State governments. All officers of government, Federal and State are bound by oath to uphold the Constitution. If a State legislature should pass a law to deprive the citizens of their State of a basic Right, it is incumbent upon the Judiciary and/or Executive of that State to uphold their oath. If they should fail in this duty, then there is recourse to Federal appeal to strike down the errant law.

Maybe there has been a case where a State has persisted in enforcing an unconstitutional law, but I am not immediately aware of one. However, at that point I guess a case could be made for insurrection. Perhaps you could consider the enforcement of Brown v. Board of Education, where the Natl. Guard was used by the Feds to enforce the Constitution.

[LexBaird]

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

Article V: ... [amendments] shall be valid to all Intents and Purposes, as Part of this Constitution...

Article VI, Clause 2: This Constitution, ..., shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.

[robertpaulsen]

"Say the USSC rules that the Second Amendment does not protect the individual RKBA."

This is the problem I've had with your hypothetical from the beginning. The USSC just doesn't wake up one morning and start interpreting the second amendment.

I'd be interested in the details of the hypothetical case that the USSC heard to come to this conclusion. The reason being that I believe it would be the landmark case that individual gun grabbers would use at the state level to fight against their own state laws and the interpretation of their own state constitution, especially if their own state constitution contains language similar to the second amendment.

Also, is it in this landmark case that the second amendment is incorporated? If not, how did it come about to be incorporated?

It's your hypothetical -- make something up. I don't mean to waste your time, but these landmark cases are important when it comes to subsequent legislation.

I tried to provide you with analogies where the USSC interpreted an incorporated BOR amendment and that interpretation then applied to the states. Obviously, I wasn't successful, but that's my argument.

How about this? How about federal first amendment restrictions on pornography? Doesn't the USSC interpretation of free speech apply to the states? Can a state allow, for example, child pornography as protected free speech if it wishes? Do you understand my point?

[Dead Corpse]

NO incorperation needed, as has been amply explained to you time and again.

And no. Kiddie porn is evidence of a CRIME and cannot be considered under free speech. Lame try at diverting the conversation from your lame, repetitive, LOOSER arguments.

You should really be ashamed of yourself.

[Dead Corpse]

Speaking of losers. Drink coffee first, then type.

[robertpaulsen]

If the state right to keep and bear arms exists, the federal government shall not infringe that particular state right.

If there is no state right to keep and bear arms, there's simply nothing for the federal government to infringe. It dies there.

I'm not saying that because there is no state right, the federal government is free to do what, pass some federal gun law only applicable to California?

As far as federal gun laws go, I don't care how they came to be (and neither does Congress). Maybe the commerce clause, maybe the general welfare clause, I don't know.

Sure, they can be challenged under the commerce clause if that was the source of power, or the general welfare clause, but I want to see that federal gun law challenged under the second amendment.

Wouldn't you think that an assault weapon is exactly the weapon that the founding fathers wanted to protect from federal infringement? I mean, we can perhaps save the "individual or collective right" argument for another day, but at least let's define the type of arms that "shall not be infringed". But, no second amendment challenge. Why not?