Posted on 07/09/2004 9:19:09 AM PDT by tpaine
This website very insidiously interprets our US Constitution in a pro-Statist manner. IE --- "The Bill of Rights did not apply to the states."
"The Bill of Rights was understood, at its ratification, to be a bar on the actions of the federal government.
Many people today find this to be an incredible fact. The fact is, prior to incorporation, discussed below, the Bill of Rights did not apply to the states."
It is incredible, seeing the author completely ignores the supremacy clause in Art. VI.
He then goes on to bash our 2nd Amendment:
"Recognizing that the need to arm the populace as a militia is no longer of much concern, but also realizing that firearms are a part of our history and culture and are used by many for both personal defense and sport, this site has proposed a new 2nd Amendment - an amendment to replace the 2nd Amendment to the Constitution. This proposed text is offered as a way to spark discussion of the topic.
Section 1. The second article of amendment to the Constitution of the United States is hereby repealed.
Section 2. The right of the people to keep arms reasonable for hunting, sport, collecting, and personal defense shall not be infringed.
Section 3. Restrictions of arms must be found to be reasonable under Section 2 by a two-thirds vote of Congress in two consecutive sessions of Congress before they can be forwarded to the President for approval.
This proposed amendment is a truer representation of how our society views our freedom to bear arms. Because "reasonableness" can be far too elastic, the two-Congress restriction requires that two Congresses in a row pass the same bill - this allows both thoughtful reflection and for the opinions of the people, to be expressed between these votes, to be heard (both at the ballot box and in general). It is an unusual, but not unprecedented, way of passing legislation.
Finally, the courts would have the ultimate authority in determining if a restriction is not reasonable, providing a final layer of protection (after the two pairs of debate in the House and Senate and the President's own agreement). The militia is removed from the equation, greatly clarifying the purpose of the amendment.
Historical note: in Section 2, the "collecting" clause was added, and Section 3 is a replacement for "The Congress shall have power to enforce this article by appropriate legislation" after concerns over "reasonableness" were examined more fully.
Reasonable restrictions do seem to be the way to go, acknowledging the Amendment, but molding it, as we've done with much of the Constitution.
After all, we have freedom of speech in the United States, but you are not truly free to say whatever you wish. You cannot incite violence without consequence; you cannot libel someone without consequence; you cannot shout "Fire!" in a crowded theater without consequence. Why cannot gun ownership by similarly regulated without violating the Constitution?
The trick is finding that balance between freedom and reasonable regulation. Gun ownership is indeed a right - but it is also a grand responsibility. With responsibility comes the interests of society to ensure that guns are used safely and are used by those with proper training and licensing. If we can agree on this simple premise, it should not be too difficult to work out the details and find a proper compromise."
Know you enemy.. This man Steve Mount is NOT a friend of our Constitution.
(Excerpt) Read more at usconstitution.net ...
"How do you figure that [1st Amendment] applies to the states?" - H.Akston
" -- prohibiting the free exercise "..."Thus, the establishment clause of the 1st applied to the powers of States" -tpaine
Oh - I see how you figure now - you just leave out text that doesn't support you. In this case, you left out "Congress shall make no law". I'm getting tired of handing you your head.
An illegal crosses the border, then squats down and delivers a new U.S. citizen, thanks to the 14th.
"They display mind-boggling myopia"
Your myopic South-bashing doesn't cloud your ability to see the root cause of any of today's problems, nor cause you to misrepresent others' opinions, does it?
You say that rp wants States to have the power to ignore ALL of the personal rights outlined in the Constitution.
Assuming this is not a false accusation,
Having the power to do something, and doing it, are two different things. I've already cited an example of a State protecting freedom of religion with an even higher standard than the 1st Amendment. The US's is not the only Constitution out there.
Which part of Judge Perez' historical account of the fraudulency of the 14th Amendment is wrong?
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Where it said:
"We learned that the 14th Amendment was:
1) fraudulently, unlawfully, illegally proposed by the U.S. Congress rendering it null and void at the outset;
"
What is your reason for disagreeing with this conclusion?
Where are the Judges' numbers wrong?
The phrase "tar and feather" comes to mind.
I agree. The USSC (ab)uses the 14th the same way Congress (ab)uses the Commerce Clause.
237 robertpaulsen
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Akston wants to "modify" the 'squalid' 14th, enabling the States to ignore the personal rights of the 1st, at least.
Paulsen wants States to have the power to ignore ALL of the personal rights outlined in the Constitution.
They display mind-boggling myopia, while prattling on about the, -- " Many things we are plagued with today -- "
238 tpaine
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That's a lie. I've said it needs to be modified, because the vindictive zealots who hated the South overreached.
240 H.Akston
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robertpaulsen wrote:
I'd love to go back in time and see tpaine try to convince the Founding Fathers that the federal government is a better protector of their rights
than their own state.
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All the FF would need to see is CA, claiming that they can prohibit arms because -- "Congress shall make no law"; --
-- just as as you two contend.
That seems to be the question: did they want states 'bound', or were they more concerned with a tyrannical central government, such as the one recently defeated (a lot like the one we have today).
Given that neither the states nor feds respect the 2nd ammd., one has to look to the strongest position available in securing a right that the framers may have intended to apply to all.
By assuming the BOR were limits upon the general govt. you are basically going 'all-in', and should be able to knock the biggest chip-holder out of the game as wording such as "shall not be infringed" are quite clear. Should certain states try to mess with this 'right', lots of money could be spent defeating gun-grabbers at the state level and to this effort, I'd make plenty of 'ammo' available to organizations willing to undertake this.
You have it exactly backwards.
The Bill of Rights wasn't passed to extend federal power under Article 6- as you are trying to do- but expressly to limit it's powers under Article 6.
Here is George Mason calling for a BIll of Rights at the Va. Ratification Convention:
"...Let us advert to the 6th article. It expressly declares, that "this Constitution, and the laws of the United States which shall be made in pursuance thereof, and all treaties made, or which Shall be made, under the authority of the United States, 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."
Now, sir, if the laws and Constitution of the general government, as expressly said, be paramount to those of any state, are not those rights with which we were afraid to trust our own citizens annulled and given up to the general government?
The bill of rights is a part of our own [Virginia] Constitution. [But] The judges are obliged to take notice of the laws of the general government; consequently, the rights secured by our bill of rights are given up. If they are not given up, where are they secured? By implication!
Let gentlemen show that they are secured in a plain, direct, unequivocal manner. It is not in their power. Then where is the security? Where is the barrier drawn between the government and the rights of the citizens, as secured in our own state government?
These rights are given up in that paper; but I trust that this Convention will never give them up; but will take pains to secure them to the latest posterity."
There are ample quotes from Founders asking for a federal Bill of Rights to limit the powers of the federal government, there are NONE, I repeat NONE, asking for a Bill of Rights to give the federal government more power over the states or any person. Nor any after it was passed saying that it did.
That is why Marshall (who was at the convention where Georg Mason and Patrick Henry called for a Bill of Rights) ruled as he did in Barron.
"The Bill of Rights wasn't passed to extend federal power under Article 6- as you are trying to do-"
Interesting. Where did you get the idea I was trying to do that?
The BOR were passed to restrict the federal government, but they also restrict the STATE governments BECAUSE of article 6.
I'm not intimately familiar with Barron v. Balt, but I believe it is a case where the State of Maryland tried to deny just compensation to a person whose property was "eminent domained" by the State. The person lost, and Maryland won, said Marshall.
Let's say that's the jist of it, for the sake of argument. Here's what Marshall should have realized in Barron v Balt.:
The supremacy clause requires a state judge to rule that a person whose property is taken by a state, must be given just compensation by the state, even if the State's constitution or laws don't require just compensation.
Article VI places the 5th Amendment, for all practical purposes, in the State's constitution, and if there's something in the State's "constitution or laws to the contrary", then it is superseded by the 5th Amendment, and the Judge must rule that the State must provide compensation. What would it have hurt, for Marshall to rule this way?
An interesting nuance that may help clarify that I'm NOT saying the federal government gets more power over the States because of the Supremacy clause:
The Congress would not have power to enforce the Bill of Rights on the States, under the Akston implementation of the supremacy clause (pre-14th Amendment). It would be up to the States' Courts only, to hold the State Legislatures to the 5th Amendment. I would repeal Section 5 of the 14th Amendment.
If it is a good thing that "NONE...I repeat NONE [of the Founders], ask[ed] for a Bill of Rights to give the federal government more power over the states or any person", then you also should like to see (at least) section 5 of the 14th repealed, because it rushed in where the Founders dared not tread.
I fully understand that the purpose of the Bill of rights in the Founders' minds was to restrain the US government. Mason was correctly worried that the power to, say regulate commerce, could have been abused and resulted in illegitimate searches and seizures, and prohibition of RKBA, for example, if the BOR wasn't added. "Implication" of "enumerated powers" wasn't enough.
By adding the BOR, to a document that contained the supremacy clause, they by default closed any loopholes allowing infringments in any state constitutions. It may not have occured to them that the US constitution (w/BOR) was going to be more protective of liberty than any of their jealously guarded State constitutions, but perhaps, at least in the case of Maryland's, it was.
"All the FF [Founding Fathers] would need to see is CA, claiming that they can prohibit arms because -- "Congress shall make no law"; --
-- just as as you two contend."
Hey - if California doesn't have the sense to have in its constitution a right to bear arms, then the supremacy clause puts it in. - just like you contend, i.e. "The 'Barron' opinion was wrong, as it completely ignored the supremacy clause. "151 (it scares me when we agree)
Here is George Mason calling for a BIll of Rights at the Va. Ratification Convention:
"...Let us advert to the 6th article.
It expressly declares, that "this Constitution, and the laws of the United States which shall be made in pursuance thereof, and all treaties made, or which Shall be made, under the authority of the United States, 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."
Now, sir, if the laws and Constitution of the general government, as expressly said, be paramount to those of any state, are not those rights with which we were afraid to trust our own citizens annulled and given up to the general government?
The bill of rights is a part of our own [Virginia] Constitution.
The judges are obliged to take notice of the laws of the general government;
consequently, the rights secured by our bill of rights are given up.
If they are not given up, where are they secured? By implication! Let gentlemen show that they are secured in a plain, direct, unequivocal manner. It is not in their power.
Then where is the security? Where is the barrier drawn between the government and the rights of the citizens, as secured in our own state government?
These rights are given up in that paper;
but I trust that this Convention will never give them up; but will take pains to secure them to the latest posterity."
There are ample quotes from Founders asking for a federal Bill of Rights to limit the powers of the federal government, there are NONE, I repeat NONE, asking for a Bill of Rights to give the federal government more power over the states or any person.
Over course there aren't, smith. Our BOR's was intended to limit the powers of ALL levels of government in the USA.
Geo Mason admits as much just above, when he says: " - Then where is the security? Where is the barrier drawn between the government and the rights of the citizens, as secured in our own state government?
These rights are given up in that paper -- " [our BOR's]
Nor any after it was passed saying that it did. That is why Marshall (who was at the convention where Georg Mason and Patrick Henry called for a Bill of Rights) ruled as he did in Barron.
Marshall 'ruled' as he did in Barron in a futile attempt to avert civil war over States violating individual rights.
States have never had the power to infringe upon our inalienable rights to life, liberty, or property. The 14th made that original constitutional principle crystal clear in 1868.
You 'states rights' zealots are still fighting against those basic freedoms. `
"All the FF [Founding Fathers] would need to see is CA, claiming that they can prohibit arms because -- "Congress shall make no law"; --
-- just as as you two contend."
151
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Hey - if California doesn't have the sense to have in its constitution a right to bear arms, then the supremacy clause puts it in. - just like you contend, i.e.
"The 'Barron' opinion was wrong, as it completely ignored the supremacy clause. "
(it scares me when we agree)
250 hugh
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Akston, we don't agree.
You think states have the power to ignore ~some~ of our rights to life, liberty, or property.
You are wrong.
Laws of the general government means laws passed by Congress, correct?
Examples of Mason's concern would be Federal anti-gun laws infringing the RKBA for Virginians.
Let gentlemen show that they are secured in a plain, direct, unequivocal manner. It is not in their power. Then where is the security? Where is the barrier drawn between the government and the rights of the citizens, as secured in our own state government?
Since the Supremacy Clause makes the Laws of the United States supreme, could Mason be referring to rights in the VA Constitution being overridden by laws passed by Congress?
These rights are given up in that paper; but I trust that this Convention will never give them up; but will take pains to secure them to the latest posterity."
Mason is expressing concern that the rights of Virginians could be at risk from the Federal government.
How could applying the BOR in the US Constitution to Virginia make the rights of Virginians less secure?
Here is the next paragraph from Mr. Mason:
I said, the other day, that they could not have sufficient information. I was asked how the legislature of Virginia got their information. The answer is easy and obvious. They get it from one hundred and sixty representatives, dispersed through all parts of the country. In this government how do they get it? Instead of one hundred and sixty, there are but ten — chosen, if not wholly, yet mostly, from the higher order of the people — from the great, the wealthy — the well-born — the well-born, Mr. Chairman, that aristocratic {267} idol — that flattering idea — that exotic plant which has been lately imported from the ports of Great Britain, and planted in the luxurious soil of this country.
I think he's referring to powers of Congress, not the Courts.
Did Mason ever comment on Article III granting USSC original jurisdiction in cases in which a State shall be a party?
A better way to put it: I think he's referring to powers in Article I coupled with Article VI, not the BOR.
OK. I feel less scared now :)
"The whole of the Bill [of Rights] is a declaration of the right of the people at large or considered as individuals... It establishes some rights of the individual as unalienable and which consequently, no majority has a right to deprive them of."
-Albert Gallatin to Alexander Addison, Oct 7, 1789, MS. in N.Y. Hist. Soc.-A.G. Papers
Maybe Virginia had laws against abortion, believing that the fetus has a right to life.
To all general purposes we have uniformly been one people each individual citizen everywhere enjoying the same national rights, privileges, and protection. As a nation we have made peace and war; as a nation we have vanquished our common enemies; as a nation we have formed alliances, and made treaties, and entered into various compacts and conventions with foreign states.
John Jay, Federalist No. 2, 1787
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