The U.S. Constitution [Misinterpreted] Online

USConstitution.net ^ | 4/9/04 | steve mount

[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 The second article of amendment to the Constitution of the United States is hereby repealed.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.

[Dead Corpse]

From the schizophrenia in Bobbies posts, I'm starting to wonder if we aren't dealing with either a bi-polar depressive with delusional tendencies, or maybe more than one person. Considering the massive differences from post to post and thread to thread, he either can't keep track of what he said, has more than one psychological state formulating replies, or he isn't communicating with his confederates very well.

Personally, I'm hoping for a brain damaged option as it would make an intriguing case study.

[tpaine]

Dead Corpse wrote:

From the schizophrenia in Bobbies posts, I'm starting to wonder if we aren't dealing with either a bi-polar depressive with delusional tendencies, or maybe more than one person.

______________________________________


Paulsen does remind me of 'roscoe' at times.

[I hesitated to mention that name, because ethics calls for a ping]

[Dead Corpse]

Roscoe? I he still here? I thought for sure he had gotten banned finally?

Then again, I've been trying to stay away from certain topics as they strain the limits of my civility with some of these idiots.

[Ken H]

I say Federal anti-gun laws do infringe on the RKBA mentioned in the second amendment.

What does the 1994 AWB have to do with the second amendment?

What do the courts say the 1994 AWB has to do with the second amendment, numbnuts?

I don't believe the courts have said one way or the other.

Does robertpaulsen think the 1994 AW ban should be considered a Second Amendment issue?

[tpaine]

Far as I know roscoe just sort of faded away when he couldn't get any more Curry.

Strange sort of symbiotic relationship, but there it was.

[H.Akston]

What ever happened to Walt? Did I miss his complete mental collapse and final banning?

[tpaine]

Walt?

[H.Akston]

1. looks like we're on the same page on that one. Semantics got us hung up there.

2. I'm glad I was just imagining that you have contempt for the south.


"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?
"

That's too broad a brush. States' reserved powers are "numerous and indefinite". Generally speaking, a state can not violate rights of the people. But the devil is in the details.

A state can't take basic rights that are protected by the Constitution and State laws.

However, say you and I may think that it's an "unenumerated right" to make whiskey, and a guy in another state has a law that will put him in jail for making moonshine for his own consumption. Did that State violate his "unenumerated right?" Maybe so, but it's none of our business if regulating alcohol is a state right. Prior to the 13th, and the Wah, regulating slavery was a state right. None of our business what other states did about it.

So to make your statement, "The 10ths powers, those reserved to the States, cannot be used to violate the enumerated or unenumerated rights of the people", more accurate, here's what you need to realize:

The 10ths powers, those reserved to the States, might be used to violate what the people of another state consider to be a "right" of ITS people, but not what that same state considers to be a "right" of ITS people.

[H.Akston]

Yes, WhiskeyPapa, i.e. "Walt". Remember? Was he taken to Gitmo?

[Dead Corpse]

Actually, on the moonshine issue... wouldn't that be violating property rights? At least until I tried to sell it? Then it could be covered under commerce either intra or interstate.

[robertpaulsen]

"Does robertpaulsen think the 1994 AW ban should be considered a Second Amendment issue?"

That's part of my nightly prayers.

Mott point -- the federal AWB will go away. That leaves state-level AWB's like California and a half-dozen others. Given the decision in Silveira v Lockyer, I don't hold much hope for a second amendment challenge being heard by the USSC.

[H.Akston]

Let's say that in my hypothetical state, it's like growing hemp - if the cop sees the plant - or the distillery... he can make an arrest, even though it's on private property.

[Dead Corpse]

Shouldn't be able to. Of course, property Rights aren't what they used to be.

[tpaine]

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.

______________________________________

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 state can't take basic rights that are protected by the Constitution and State laws.

However, say you and I may think that it's an "unenumerated right" to make whiskey, and a guy in another state has a law that will put him in jail for making moonshine for his own consumption.
Did that State violate his "unenumerated right?" Maybe so, but it's none of our business if regulating alcohol is a state right.

Faulty logic. The State has no power to absolutely prohibit a man from " -- making moonshine, -- for his own consumption."
It only has the power to reasonably regulate his making moonshine for ~others~ consumption. Big difference.

Prior to the 13th, and the Wah, regulating slavery was a state right. None of our business what other states did about it.

Yep, States had that power, but were about to lose it. We the people were about to prohibit [by amendment] the States supposed 'right' to enforce laws that enslaved human beings. Thus, - the war.

So to make your statement, "The 10ths powers, those reserved to the States, cannot be used to violate the enumerated or unenumerated rights of the people", more accurate, here's what you need to realize:
The 10ths powers, those reserved to the States, might be used to violate what the people of another state consider to be a "right" of ITS people, but not what that same state considers to be a "right" of ITS people.

Nope. Our self evident inalienable human rights are the same in any State of our Union. So says our supremacy clause & BOR's.

-- The 'majority will' of the people in CA do NOT have the 'right' to prohibit me from keeping & bearing an 'assault rifle', for instance.

Get it now, Hugh? -- 'A state can't take basic rights that are protected by the US Constitution.'

[H.Akston]

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'm agreeing that the purpose in Mason's (and other Founders') mind of the Bill of Rights, was indeed to EXPLICITLY protect the States from the Federal government's encroachment on rights that their state constitutions already protected.

Mason noted that this federal threat was derived from the supremacy clause, which made the Constitution and federal laws supersede any contradictory laws of the States. None of the Bill of Rights changed this clause! So anything they put in the Bill of Rights was also going to be a restraint on the State governments. This was not a concern because they were putting the same things in the Bill of Rights that Mason's state already had in its own Constitution (except for the 10th Amendment of course).

I think the irony of that is pretty obvious.

Rights weren't 'given up to the federal government because of the Bill of Rights being passed' - Powers were delegated in Article VI, when the constitution was ratified, and it was ratified contingent on the Bill of Rights being passed, to protect the states/people from federal abuse of those powers.

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 [edited to show assumed meaning] on the states, however history shows it was not nor was it meant to be. Should we ignore history now?

History should not be ignored, but neither should text. If we're going to say that history trumps textual logic, then the convention debates should at least show that the supremacy clause was interpreted to NOT bind the states. However Mason interpreted the clause to bind the states, and it was ratified with the same wording.

I believe Mason knew that under the US Constitution, a federal judge would be able to overturn a state law that in the judge's opinion, violated the 2nd Amendment. But he also would have felt confident that no State would make any such law. So he didn't "worry" that the States would be bound by the BoR - in his mind, they already were.

[H.Akston]

Faulty logic. The State has no power to absolutely prohibit a man from " -- making moonshine, -- for his own consumption." It only has the power to reasonably regulate his making moonshine for ~others~ consumption. Big difference. "

Ahh but there's the rub isn't it? You've seen something "fundamental" in the right to make moonshine, that another state did not see. What makes you right and them wrong? Suppose moonshine was causing problems in a state that you, in a foreign state, weren't aware of, such as becoming a threat to life? Often what seems like a violation, is really a protection of a more basic right. You might have to live there to understand.

Say that California has restricted chemicals "known to the State of California to cause cancer" from being made or sold. You may think it's a fundamental right to make or sell these chemicals, but unless you live in CA, it's none of your business. Their 10th Amendment right to regulate chemicals, trumps your opinion about what is and is not a fundamental right. Their population density is different from your state's population density, and therefore some chemicals, to them, are more threatenting to life than in your state.

To repeat, 10th amdendment powers might be used to violate what the people of a foreign state consider to be a "right" of ITS people, but not what that same state considers to be a "right" of ITS people.

[tpaine]

Faulty logic. The State has no power to absolutely prohibit a man from " -- making moonshine, -- for his own consumption."

Our self evident inalienable human rights are the same in any State of our Union. So says our supremacy clause & BOR's.

-- The 'majority will' of the people in CA do NOT have the 'right' to prohibit me from keeping & bearing an 'assault rifle', for instance.

Ahh but there's the rub isn't it? You've seen something "fundamental" in the right to make moonshine, that another state did not see. What makes you right and them wrong?

Common sense. We have the right to preserve food by making booze, beer or wine from our surplus corn, fruit or whatever.

Suppose moonshine was causing problems in a state that you, in a foreign state, weren't aware of, such as becoming a threat to life?

Hype. -- 'Suppose' what you like, hugh, -- but we don't base our Constitutional laws on supposition.

Often what seems like a violation, is really a protection of a more basic right. You might have to live there to understand. Say that California has restricted chemicals "known to the State of California to cause cancer" from being made or sold. You may think it's a fundamental right to make or sell these chemicals, but unless you live in CA, it's none of your business. Their 10th Amendment right to regulate chemicals, trumps your opinion about what is and is not a fundamental right. Their population density is different from your state's population density, and therefore some chemicals, to them, are more threatenting to life than in your state.

Amazing hugh, -- you can go on & on about 'chemicals' but you can't address the CA prohibition on "assault weapons".

To repeat, 10th amdendment powers might be used to violate what the people of a foreign state consider to be a "right" of ITS people, but not what that same state considers to be a "right" of ITS people.

Babbling on of foreign states does not change ~our~ Constitutions BOR's restrictions on ~our~ States, hugh.

I suggest you learn to live with them.

[H.Akston]

"Babbling on of foreign states does not change ~our~ Constitutions BOR's restrictions on ~our~ States, hugh.

I suggest you learn to live with them."

Again, I don't deny this. We're in agreement that the Constitution requires CA judges to adhere to the the 2nd Amendment. In fact, I taught you this about the supremacy clause.

"Faulty logic. The State has no power to absolutely prohibit a man from " -- making moonshine, -- for his own consumption."
Our self evident inalienable human rights are the same in any State of our Union. So says our supremacy clause & BOR's."

I didn't know making moonshine was a self-evident inalianable human right. A state does indeed have that power, since it's not enumerated. Thankfully for their people's happiness, most haven't used it.

Here's a more real-life example:
A state also has the power to outlaw prostitution. Many states do, but Nevadans might think it's an unalienable right for a woman to make money from her body as she chooses. If you think it's unalienable, your 2nd sentence there can't be true. Those rights are not "the same in every state of the Union". Oh the horror! How can you live with that!?

[tpaine]

"Babbling on of foreign states does not change ~our~ Constitutions BOR's restrictions on ~our~ States, hugh.
I suggest you learn to live with them."

Again, I don't deny this. We're in agreement that the Constitution requires CA judges to adhere to the the 2nd Amendment.

Our Constitution requires CA judges to adhere to ALL of our Amendments & ALL of our rights, enumerated or not. -- You are irrationally denying that clear fact, hugh.

I didn't know making moonshine was a self-evident inalianable human right.
A state does indeed have that power, since it's not enumerated.

We have the right to preserve food by making booze, beer or wine from our surplus corn, fruit or whatever; -- thus your ignorance on the subject of unenumerated rights is obvious.
Our self evident inalienable human rights are the same in any State of our Union. So says our supremacy clause & BOR's.

A state also has the power to outlaw prostitution.

No hugh, States have the power to reasonably regulate the commercial aspects of prostitution.

Many states do, but Nevadans might think it's an unalienable right for a woman to make money from her body as she chooses.

It's an unavoidable fact of life hugh, that a woman has an inalienable right to make money from using her body as she so chooses. -- We all do. --- The State can only TRY to regulate the more commercial aspects of 'sinful' behavior. It can't win, because individual rights get in its way.

If you think it's unalienable, your 2nd sentence there can't be true.

You can't rebut my point, so you're being obtuse? Sad ploy hugh.

Those rights are not "the same in every state of the Union". Oh the horror! How can you live with that!?

A woman has the same rights to use her body in Utah as she does in Nevada, hugh.
The zealots like you, those who initially tried to form a state in Utah, disagreed, -- but your type lost.
It took over 40 years to come up with an acceptable Utah State Constitution, one that guaranteed individual rights under a republican form of government.

[H.Akston]

"It's an unavoidable fact of life hugh, that a woman has an inalienable right to make money from using her body as she so chooses. -- We all do. --- The State can only TRY to regulate the more commercial aspects of 'sinful' behavior. It can't win, because individual rights get in its way."

"Our Constitution requires CA judges to adhere to ALL of our Amendments & ALL of our rights, enumerated or not. -- You are irrationally denying that clear fact, hugh."

"A woman has the same rights to use her body in Utah as she does in Nevada, hugh.
The zealots like you, those who initially tried to form a state in Utah, disagreed, -- but your type lost.
It took over 40 years to come up with an acceptable Utah State Constitution, one that guaranteed individual rights under a republican form of government."

California has outlawed prostitution. It has been able to do what you said it couldn't : "The State can only TRY to regulate the more commercial aspects of 'sinful' behavior. It can't win, because individual rights get in its way."

Yet, there is no viable court challenge to CA to make prostitution legal. Why? Because CA has the 10th Amendment reserved power to regulate prostitution.

Now how can CA be complying with the Constitution if "Our Constitution requires CA judges to adhere to ALL of our Amendments & ALL of our rights, enumerated or not" ? When are you going to sue CA, tpaine? They're violating womens rights "rights to use her body"! (Not to mention about every other state in the union.) In your world, only Nevada is not violating a woman's unalienable right to use her body. How can you stand all this oppression that these evil states are committing?