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 The second article of amendment to the Constitution of the United States is hereby repealed.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 ...
Today, yes. But not before 1897 when the takings clause was incorporated under the due process clause of the 14th amendment.
In Chicago, B. & Q. R. Co. v. Chicago, 166 U.S. 226 (1897), Justice Harlan delivered the opinion of the USSC:
"In our opinion, a judgment of a state court, even if it be authorized by statute, whereby private property is taken for the state or under its direction for public use, without compensation made or secured to the owner, is, upon principle and authority, wanting in the due process of law required by the fourteenth amendment of the constitution of the United States, and the affirmance of such judgment by the highest court of the state is a denial by that state of a right secured to the owner by that instrument."
" He cited a lower court ruling by Justice Jackson in Scott v City of Toledo, 36 F 385, 396 (CC ND Ohio, 1888) who said:
"Whatever may have been the power of the states on this subject prior to the adoption of the fourteenth amendment to the constitution, it seems clear that, since that amendment went into effect, such limitations and restraints have been placed upon their power in dealing with individual rights that the states cannot now lawfully appropriate private property for the public benefit or to public uses without compensation to the owner, and that any attempt so to do, whether done in pursuance of a constitutional provision or legislative enactment, whether done by the legislature itself or under delegated authority by one of the subordinate agencies of the state, and whether done directly, by taking the property of one person and vesting it in another or the public, or indirectly, through the forms of law, by appropriating the property and requiring the owner thereof to compensate himself, or to refund to another the compensation to which he is entitled, would be wanting in that 'due process of law' required by said amendment. The conclusion of the court on this question is that, since the adoption of the fourteenth amendment, compensation for private property taken for public uses constitutes an essential element in 'due process of law,' and that without such compensation the appropriation of private property to public uses, no matter under what form of procedure it is taken, would violate the provisions of the federal constitution."
I suggest that Marshall in Barron v Balt. contradicted Mason's observation that "The judges are obliged to take notice of the laws of the general government[and the US Constitution]"
Mason was right. Marshall cast doubt, and caused Justice Jackson to say "whatever".
"The ...Bill [of Rights]... establishes some rights of the individual as unalienable and which consequently, no majority [neither state legislature nor Congress] has a right to deprive them of."--Albert Gallatin to Alexander Addison, Oct 7, 1789, MS. in N.Y. Hist. Soc.-A.G. Papers
mrsmith's statement was: "there are NONE[ of the founders], 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."
(By the way, I don't think Albert Gallatin was a founder but he did see that the new BOR restricted the States too.)
There are two things going on here with "incorporation" that shouldn't be confused. A 2nd Amendment right can be "incorporated" into a State Constitution by the supremacy clause (as Mason intimated), but the Congress STILL wouldn't have the power to enforce that on a state, because that was a reserved power. It wasn't till section 5 of the 14th Amendment came along that Congress could meddle with State due process. That's how we got busing and equal distribution of wealth (what "equal protection" means to some some Federals) and other do-good liberal acts.
If he didn't know what was going on, who would?
My only other nit to pick would be that BECAUSE of the Supremacy Clause, the Second should NEED no "incorperation". Incorperation is a judical fantasy where laws do not apply unless they have been ruled on by some black robed pervert.
The 14th may have its flaws, but Incorperation is Black Death on wheels.
It could mean "irregardless of the power". And note that he referred to the "power" of the state rather than the state "protection" of the individual right to just compensation.
I submit that if the fifth amendment applied to the states from its inception, Justice Jackson would have said, "Whatever may have been the level of state protection ..."
But he refers to "power" -- the power of the state to take property, constitutionally.
You highlighted the wrong part. I agree with the above statement -- an unalienable right cannot be taken away, at least, not without individual due process. The unalienable rights to life, liberty, and property are an example.
But the right to keep and bear arms is not an unalienable right -- how can we forbid all 16-year-olds from buying a gun? Can we take his life? Can we lock him up? Can we take the property he, for example, receives in a will?
The RKBA is a fundamental right, protected (or not) by the state.
Some of the state courts did voluntarily hold their states to the federal Bill of Rights, nothing wrong with that. In fact I've seen a quote from Madison saying that he hoped it would serve as a guideline.
But to reason that it was meant to require them to do so would be unsupportable. Logically it would lead to the fed courts ruling that it was required- yet not having power to enforce their decision!
All the requirements that the Constitution placed on the states are specifically stated or neccessarily (ha ha) implied by powers given to the feds.
It does seem strange now that the Founders trusted more to their states than the federal government to protect their liberties, but the federal government was new and untried then. It's really surprising that they could have been convinced at the time to give it as much power as they did. It was a near thing! The anti-federalists came within one state of having it all done over again.
The 14th was forced upon us at the point of a gun and has proven a bottomless pandora's box of federal powers.
I would instead enforce section 5 of the 14th - to keep the courts from using it as a blank check. Though on it's face giving the legislature this power seems to be the end of federalism I think the legislature would be more restrained in it's usage than the courts have proven themselves to be.
There is nothing wrong with a Confederation. But since we adopted a Federal Constitution and becamse a Republic, we operate by slightly different rules.
By taking the protection of those rights- like RKBA- out of the hands of the state, which he trusted, and putting them solely into the hands of the new federal government (whether in the judicial, legislative or executive branches makes no difference).
It is the legislature that would pass laws that might infringe rights. There was some fear that federal courts would incline to rule for the federal side of an issue, but most worry was that they'd totally displace state courts or be used to move trials to far locations.
There was much fervent debate on the power of the federal courts. http://www.constitution.org/rc/rat_va_16.htm
"Mr. GEORGE MASON. Mr. Chairman, I had some hopes that the candor and reason of the warmest friends of this Constitution would have led them to point out objections so important. They must occur, more or less, to the mind of every one. It is with great reluctance I speak of this department, as it lies out of my line. I should not tell my sentiments upon it, did I not conceive it to be so constructed as to destroy the dearest rights of the community. After having read the first section, Mr. Mason asked, What is there left to the state courts? Will any gentleman be pleased, candidly, fairly, and without sophistry, to show us what remains? There is no limitation. It goes to every thing. The inferior courts are to be as numerous as Congress may think proper. They are to be of whatever nature they please. Read the 2d section, and contemplate attentively the extent of the jurisdiction of these courts, and consider if there be any limits to it. I am greatly mistaken if there be any limitation whatsoever... "
Marshall's reply to him is good.
Gallatin was not a Founder but an influential person. He was a member of the 1788 Harrisonburg Pennsylvania convention that requested a Bill of Rights to assure that:
" every reserve of the rights of individuals, made by the several constitutions of the states in the Union, to the citizens and inhabitants of each state respectively, shall remain inviolate, except so far as they are expressly and manifestly yielded or narrowed by the national Constitution. "
I trust you are disabused of that impression you recieved from the dishonest quote you were given.
If you believe there are any quotes from Founders, or even merely important participants in uur early republic, that say the states were restricted by any part of the Bill of Rights feel free to ping me.
The earliest I've seen that contention made is by Rawles circa 1830's.
You really are kind of a kook.
Also, pay attentio to the first couple of paragraphs here at the National Archives section for the Bill or Rights.
Madison's preface to the Debates of the Federal Convention wherein he waxes eloquent on the concerns of the State Conventions on giving up too much power to the FedGov.
And finally, Federalist #84 pretty much blows your entire arugment right out of the water.
Give it up, the Confederacy died the day they passed the Constitution into law.
By taking the protection of those rights- like RKBA- out of the hands of the state, which he trusted, and putting them solely into the hands of the new federal government (whether in the judicial, legislative or executive branches makes no difference).
It makes a big difference.
Mason's concerns were realized with Federal anti-gun laws, passed under the Commerce Clause, which do infringe the RKBA for Virginians.
How would Virginians' RKBA be made less secure by having the Second Amendment apply to Virginia?
Mason was not refering to the BOR.
Agreed. However, I can think of ONE occasion when our Right to Keep and Bear Arms could be "regulated". While performing the voluntary duty as a called up militia. At such a point, we would be volunteering for service and likely subject to an official authority, our civilian "officers", to give us our marching orders.
But even in that instance it would be expected of us to show up bearing suitable arms of our own. The very same kind Sarah Brady and her communist sympathizers in Congress want to take away from us.
Also of note, anyone NOT volunteering should a call for the militia to form, would still not be deprived of their RKBA. The Militia Act has a stipulation for objects on philosophical and religious grounds if I remember correctly. Only those WILLING to go fight would be asked to do so.
Good luck on getting an answer. Excellent point BTW. How are ANY of our Rights "infringed" or reduced by having our central government say that no State, nor the FedGov itself, may remove full use of that Right save by due process from criminal proceedings in court?
Interpretation like this are what we get for allowing judicial and legislative malfeasance get so out of hand.
You have such profound misunderstandings. There are too many false accusations to correct! I'll just pick two.
1. "Akston claims it can be violated by a States "reserved power""
I don't. It can't be violated by a state's reserved power because the Supremacy clause incorporates the 2nd Amendment into State Constitutions. I think you also have that view of the Supremacy Clause!
2. "Your Gallatin quote brought them all out prancing, trying to justify State infringements on our clearly self evident, fundamental & inalienable RKBA's."
No such thing happened! There's no justification for keeping the people (responsible grownups) from Keeping and Bearing Arms!
We agree that Barron was a wrong decision, because JM neglected the meaning of the supremacy clause!
You're all over the place. I think you thrash because you have contempt for the South and by default, the basic structure set up by the Constitution, and 10th Amendment rights, which include "states' rights', and are as important as the RKBA.
Disclaimer: Opinions posted on Free Republic are those of the individual posters and do not necessarily represent the opinion of Free Republic or its management. All materials posted herein are protected by copyright law and the exemption for fair use of copyrighted works.