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 The second article of amendment to the Constitution of the United States is hereby repealed.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 ...
"what a pitiful display of denial, unfounded assertion, and 'found' powers." - tpaine
"Agreed." - DC
How can you agree with that? There's no denial, there's no unfounded assertion, and there is such a principle as enumerated and reserved powers. - you'll "find" the same things in the records.
The RKBA is a fundamental right, protected (or not) by the state. "
A State has the (reserved) power to decide when a person is responsible enough to have a gun, just as when he's old enough to handle other deadly weapons. Determining the age of majority, consent, responsibility etc. is one of the few remaining (unstolen or undelegated) State powers.
Generally speaking, an unalienable right is a right that it would be immoral to take away without consent.
No slam towards you. I think you and tpaine may be talking pssed each other. Once you guys agree on verbiage, your positions may reconcile. Paulsen and mrsmith are just friggin' looney tunes. tpaines sentiments on them I echo whole heartedly.
Sh*t. I should have kept reading further down the thread. The above statement is full of bovine scatological matter. A child's Rights are held in trust by their PARENTS, not the State. As such, upon reaching the age of majority, the child takes over advocacy of their own Rights. The only way a State can "remove" those Rights would be through criminal proceedings.
A State has the power to set the Age of Majority as agreed to by the people of that State. But due to the Second Amendment, upon reaching that age a person has full use of their Rights.
Responsible? Are you really sure that you want the capricious State we see today with its attendant abuses deciding who is "responsible"?
The quote is from the Virginia Constitutional Ratification Convention. There was no Bill of Rights yet. The federalists were opposing having one.
He was asking for one.
One of his expressed reasons- as you can see in the quoted remarks- was to limit the meaning of the Supremacy Clause so the state Bill of Rights would be protected from the federal government.
"If you believe there are any quotes from Founders, or even merely important participants in our early republic, that say the states were restricted by any part of the Bill of Rights feel free to ping me"
I do not believe that any of the Founders, or even important participants, were eager to restrict their states by the BOR, but the Mason quote that you cited actually acknowledges that the supremacy clause causes the US Constitution to be binding on the State Governments.
He didn't say that the States were restricted by the BOR but he did say that the supremacy clause binds the judges in every state to follow what's in the Constitution. Once the BOR got into the Constitution... they therefore became restrictive on the States, except where excepted, i.e. in the First Amendment.
You are saying that the rights secured by the Virginia constitution are given up to the federal government because the Bill of Rights was passed (so they wouldn't be secured by mere implication)!
I think the irony of that is pretty obvious.
Isn't that just the opposite of what Mason wanted?
I think it is truly difficult for people today to understand just how fearful the Founders were of the new federal government. But it is impossible to appreciate the Bill of Rights unless one understands that.
Ignoring the history of the Bill of Rights it would be fair to interpret them as any other amendment, which is how you're treating the Second Amendment, but that history did happen.
It is logical to treat the Bill of Rights as binding or not on the states, however history shows it was not nor was it meant to be. Should we ignore history now?
That being said, there were many founders eager to restrict their states with something besides the Articles of Confederation, as you probably know.
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""
That's what you wrote, hugh, quoted here again:
"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."
Now you claim:
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!
Indeed I do:
The supremacy clause causes the US Constitution to be binding on the State Governments. The States were restricted by the BOR because the supremacy clause binds the judges in every state to follow what's in the Constitution. --- Once the BOR got into the Constitution... they therefore became restrictive on the States.
Sound familiar?
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.
See your own words hugh, just above. YOU are "all over the place", not me.
I think you thrash because you have contempt for the South and by default,
You aren't thinking hugh, you're imagining things.
the basic structure set up by the Constitution, and 10th Amendment rights, which include "states' rights', and are as important as the RKBA.
The 10ths powers, those reserved to the States, cannot be used to violate the enumerated or unenumerated rights of the people.
-- A simple concept you 'states rightists' just can't accept. Why is that?
THE SUPREMACY CLAUSE
Article. VI.
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.
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The supremacy clause causes the US Constitution to be binding on the State Governments.
The States are restricted by the BOR because the supremacy clause binds the judges in every state to follow what's in the Constitution.
--- The BOR's and all Amendments are intergal parts of the Constitution... They therefore became restrictive on the States.
The 9th & 10th are clear.
The Ninth says that the peoples unemumerated rights cannot be denied or violated.
Thus the 10ths powers, both Federal, -- and those reserved to the States, -- cannot be used to violate the enumerated or unenumerated rights of the people.
-- A simple concept our 'states rights' contingent just can't accept.
Why is that?
The state takes away life and liberty all the time without consent. They do it via individual due process in a court of law. Actually, that's the only way to negate an unalienable right.
We do not take each and every 16-year-old to court to determine if we may negate his individual RKBA. We say all 16-year-olds may not purchase or own a gun. You cannot do that with an unalienable right.
Agreed. But more specifically, his remarks were directed toward the power of the Federal Congress, not the Supreme Court. As you pointed out in a prior post, his concern was that federal courts might not be diligent enough in restraining Congress.
The point of his speech was to ensure that the Rights of Virginians were secure. He knew that the Supreme Court was to be given original jurisdiction in all Cases in which a State was a party.
If he were worried about the USSC, I would expect that he would have made mention of Article III.
Did Mason ever warn against USSC original jurisdiction in all Cases involving States?
Also, would a USSC interpretation that says the Second Amendment applies to the States make the RKBA of Virginians less secure?
. Determining the age of majority, consent, responsibility etc. is one of the few remaining (unstolen or undelegated) State powers.
Generally speaking, an unalienable right is a right that it would be immoral to take away without consent.
282 H.Akston
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robertpaulsen replied:
"The state takes away life and liberty all the time without consent."
They do it via individual due process in a court of law. Actually, that's the only way to negate an unalienable right. We do not take each and every 16-year-old to court to determine if we may negate his individual RKBA. We say all 16-year-olds may not purchase or own a gun.
You cannot do that with an unalienable right.
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The state does NOT take away life and liberty all the time without consent, paulsen.
Our 'consent' is given in our State & US Constitutions.
As DC noted, childrens inalienable rights are held in trust by parents, and by our agreed upon State laws on the age of majority.
'We the people' have given consent to State laws on that matter.
Paulsen, your inability to understand even the most simple points of Constitutional logic is truly mindboggling.
Have you ever considered seeking professional help?
I'm thinking Ayran Nation/National Socialist. The ideologicla finger prints are all over his posts. I actually kinda hope I'm wrong on that one. But head over to Storm Front and check out some of their propaganda, then re-read some of RP's posts. Errie.
cibersnot wrote:
Sad how communist elitists always believe they speak for everyone.
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"The utterly insufferable arrogance of power, and the need for it, is an absolute fact of the human condition.
-- Nothing can be done about it. - Just as the poor shall always be with us, so shall we have these infinitely shrewd imbeciles who live to lay down their version of 'the law' to others."
Dead Corpse wrote: He's a troll. Has been since the first time I ran into him on one of these threads.
I'm thinking Ayran Nation/National Socialist. The ideologicla finger prints are all over his posts. I actually kinda hope I'm wrong on that one. But head over to Storm Front and check out some of their propaganda, then re-read some of RP's posts. Errie.
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Yep, its become pretty obvious, he either has some sort of well hidden agenda, or real mental problems. Maybe both.
Sad case.
On matters of foreign affairs there was some dissatisfaction with the power of the Senate to make treaties. Some limits were proposed (like requiring more than a majority of a quorum). After the Jay treaty there was an amendment proposed to give the House of Representatives some say in treaties.
But again, no amendment of the Constitution resulted from these concerns either.
But concerns over the domestic powers that the federal government might be construed to have did result in amendment of the Constitution. Ten times.
Concerns that the feds should have more power over the people and the states had no discussion, and resulted in no amendments (notably there was Madison's summarily rejected proposed amendment to require the states to respect rights of conscience. That was an interesting anomaly as he certainly knew it would be rejected by the congress.
Was it Madison's bitter poke in the eye to the anti-federalists who had somewhat hypocritically claimed the mantle of protectors of personal liberities in their calls for a Bill of Rights or a harbinger of an attitude that would grow and flower years later after the feds had shown themselves as reputable as the states? Probably both.)
The reply of marshall is on the next page. A little of it: "With respect to disputes between a state and the citizens of another state, its jurisdiction has been decried with unusual vehemence. I hope that no gentleman will think that a state will be called at the bar of the federal court. Is there no such case at present? Are there not many cases in which;the legislature of Virginia is a party, and yet the state is not sued? It is not rational to suppose that the sovereign power should be dragged before a court. The intent is, to enable states to recover claims of individuals residing in other states. I contend this construction is warranted by the words. But, say they, there will be partiality in it if a state cannot be defendant — if an individual cannot proceed to obtain judgment against a state, though he may be sued {556} by a state. It is necessary to be so, and cannot be avoided. I see a difficulty in making a state defendant, which does not prevent its being plaintiff. "
My, how times change.
After 200 years I, like most Americans, can accept the federalization of rights previously protected only by the states.
The incorporation of the Second would not injure the RKBA by itself.
But as I've said before it would happen in a ruling that would 'doctrinize' the federal RKBA to something less than the fundamental right intended. Though not well respected by the courts now, at least federal abuse is not a matter of settled judicial doctrine.
After 200 years I, like most Americans, can accept the federalization of rights previously protected only by the states.
If true, then why do you fight the reality that our rights were always protected from both Fed & State infringments?
The incorporation of the Second would not injure the RKBA by itself.
True. Those who say it would are hyping reality.
But as I've said before it would happen in a ruling that would 'doctrinize' the federal RKBA to something less than the fundamental right intended.
Hype. Such a 'ruling' would NOT be accepted. It would be repugnant to basic principles of our constitution, and would at ~best~, be ignored.
I would bet it would create a huge Constitutional crisis, worse than booze prohibition.
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