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 The second article of amendment to the Constitution of the United States is hereby repealed.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 ...
Hugh claims:
California has outlawed prostitution. It has been able to do what you said it couldn't --- 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.
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California has outlawed assault weapons, hugh. It has been able to do what you said it couldn't ---
Yet, there is no viable court challenge to CA to make assault weapons legal. Why?
Because CA has the 10th Amendment reserved power to 'regulate' assault weapons, according to clowns like H.Akston, and Sarah Brady, and robertpaulsen, and Steve 802 Mount
.
No hugh, States have the power to reasonably regulate the commercial aspects of prostitution.-tpaine
"NO"!??!! LMAO. Most of the states in the union outlaw prostitution!
"Because CA has the 10th Amendment reserved power to 'regulate' assault weapons, according to clowns like H.Akston..."
Yet I said:
"We're in agreement that the Constitution requires CA judges to adhere to the the 2nd Amendment." (338), and I took no position on CA's right to regulate assault weapons.
You say that states can't outlaw prostitution, while calling me a clown! LMAO!!! Can I push your big red nose?
Hugh claims:
California has outlawed prostitution. It has been able to do what you said it couldn't --- 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.
_____________________________________
California has outlawed assault
weapons, hugh. It has been able to do what you said it couldn't ---
Yet, there is no viable court challenge to CA to make assault weapons legal. Why?
Because CA has the 10th Amendment reserved power to 'regulate' assault weapons, according to clowns like H.Akston, and Sarah Brady, and robertpaulsen, and Steve 802 Mount
.
341 tpaine
______________________________________
Yes, you said:
"We're in agreement that the Constitution requires CA judges to adhere to the the 2nd Amendment."
Now you say CA has the 10th Amendment reserved power to regulate & outlaw individual rights, just as the gun prohibitionists do. -- Make up your mind.
-- The 9th clearly says that both enumerated rights like the 2nd, and our unenumerated rights, [IE, - like using our own bodies] are not to be denied or violated.
States have no powers to 'outlaw' prostitution, -- they can only 'reasonably regulate' such 'sinful' behaviours.
Maybe you don't understand the definition of outlaw (verb, transitive)":
To make illegal.
Maybe you don't understand the definition of outlaw (verb, transitive)":
To make illegal.
Maybe you don't understand that in order to make a 'sinful' behavior 'illegal' nationwide the States felt it necessary to pass an Amendment back in 1919.
The Eighteenth Amendment only prohibited "manufacture, sale, or transportation of intoxicating liquors . . . for beverage purposes."
An individual could still make beer & wine for personal use. Alcohol could be made for medicinal uses, etc.
The individuals rights were not "outlawed".
Although the 18th was the "supreme law of the land," it still required an Act of Congress to make it enforceable.
Enter the super-dry, ultra-religious congressman from Minnesota, Andrew J. Volstead. Many who supported the Eighteenth Amendment took the term "intoxicating liquors" to mean liquor: whiskey, rum, and other distilled spirits. Most liquors were at least 40% alcohol ("eighty proof"); some, particularly of the "greased lightning" variety, were as much as 90% alcohol.
Surely beer, with its three to seven percent alcohol content, and wine, with its less-than-fifteen percent alcohol content, would be permitted—with certain restrictions and regulations, of course.
Much to people's surprise, Volstead, backed by the triumphant evangelicals, defined "intoxicating liquors" as any beverage containing more than one-half of one percent alcohol.
Using the momentum of the anti-German, anti-beer bias, Volstead was able to pass his National Prohibition Act over President Wilson's veto. Understandably, many supporters of the Eighteenth Amendment felt betrayed.
A religious belief had become the law of the land.
In exchange for giving up one of their basic freedoms, the people of the United States were promised great things by the reformers. The great things never came. And, of course, the 'Volstead Act' was an unconstitutional exercise of Congressional power, in the opinion of many rational men.
Thus, its repeal, when sanity again ruled.
And, he is clearly quite convinced that our individual rights to life, liberty, or property can be 'regulated' away by State governments. -- Loony Tunes are playing in Al's mind.
"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."
I know Mason felt the Bill of Rights was too weak..."I have received much satisfaction from amendments to the federal Constitution that have lately passed . . . with two or three further amendments . . . I could cheerfully put my hand and heart to the new government." ... but I don't know of him ever saying that it had actually invreased the federal government's powers over the states/people.
I believe the author of the widely copied Virginia Declaration of Rights, though near death, would have been extremely angry and vocal if he thought it had!
"It is logical to treat the Bill of Rights as binding or not [edited to show assumed meaning] on the states"
It is logical to treat the Bill of Rights as binding (or not) [edited to show intended meaning] on the states...
Texturally one may logically argue for either view depending on which clauses one wishes to emphasize. It's useful to examine the Constitution texturally, some times it's neccessary as obviously not all possibilities could be considered by the Founders. But when one ends up with a view opposite to that expressed by it's authors and ratifiers one's analysis is deficient.
Virginia, had some restrictions on bearing arms. I don't think that anyone but slaves were forbidden them without some sort of process of law.
Mason did not include RKBA in his draft Declaration of Rights, a militia clause was added to it in committee but I don't know if that was his effort or one of the other members.
I doubt if he did. Again, I do NOT contend that the Bill of Rights increased the Federal Government's powers over the States/People. It increased the Federal and State COURT's (not Congress') power over the States (but not the people, since the BOR restrained governments, not people). Until the 14th Amendment came, Congress was rightly unable to legislate and meddle with State due process, in spite of the Supremacy clause or the Bill of Rights. It has been the 14th Amendment section 5 and the black (Hugo, that is) death on wheels incoproration doctrine that has truly caused the Bill of Rights to "increase the federal government's powers over the states."
The Supremacy clause, not the BOR, is what Mason and I say "increased the federal government's powers over the states/people".
If VA had some restrictions on RKBA, they probably would have been construed by any federal court of that day to be in keeping with the 2nd Amdnement.
"Maybe you don't understand that in order to make a 'sinful' behavior 'illegal' nationwide the States felt it necessary to pass an Amendment back in 1919."
You have given me a great opportunity to teach you again.
They felt it necessary to pass a constitutional amendment, because they knew that Congress could make no such prohibition of liquor, because the 10th Amendment reserved the prohibition of liquor as a State power.
The tee-totalling zealots wanted to give Congress the power to prohibit liquor, hence the need for section 2:
"Section 2. The Congress and the several States shall have concurrent power to enforce this article by appropriate legislation. "
Congress did not have the power, before the 18th Amendment, only states did, and ever since the 21st was ratified, only states do.
Not according to the language of that amendment. Wine is intoxicating. Beer is intoxicating. People need to be very careful what they put into an amendment. It was quite a good thing that it was repealed. By the language of that amendment, you could make grain alcohol, and inject it intravenously, and Congress would have no power to prevent that, because you wouldn't be using it for "beverage purposes".
A state also has the power to outlaw prostitution. - H.Akston
"No hugh" - tpaine
Virginia has outlawed prostitution.
The Eighteenth Amendment only prohibited "manufacture, sale, or transportation of intoxicating liquors . . . for beverage purposes."
An individual could still make beer & wine for personal use. Alcohol could be made for medicinal uses, etc. The individuals rights were not "outlawed"
You have given me a great opportunity to teach you again.
Hugh, you have a fantasy about 'teaching' people lessons. Give it up. Makes you look like a clown.
They felt it necessary to pass a constitutional amendment, because they knew that Congress could make no such prohibition of liquor, because the 10th Amendment reserved the prohibition of liquor as a State power.
No such 'power' has ever been given to our States by the people. -- Our rights to life, liberty & property, with due process of law, are inalienable. Fiat prohibitional 'laws' are unconstitutional infringements on due process.
The tee-totalling zealots wanted to give Congress the power to prohibit liquor, hence the need for section 2: "Section 2. The Congress and the several States shall have concurrent power to enforce this article by appropriate legislation. " Congress did not have the power, before the 18th Amendment, only states did, and ever since the 21st was ratified, only states do.
States only 'think' they have that power. It is moot. Any adult in any State can order booze delivered from out of state sources, regardless of State 'laws'.
--- And-, -- an individual can still make beer & wine for personal use. Alcohol can be made for preservation & medicinal uses, etc.
The individuals rights were never "outlawed"
Virginia has outlawed prostitution.
Sure hugh, just like CA has "outlawed" assault weapons..
Dream on. No doubt they have a ton of stupid laws about it, some legal, some not.
But, -- in a Constitutional sense, it is not prohibited. - Just over-regulated.
Mason would be very distressed if the BOR were interpreted to increase the power of the judicial branch of the federal government over the states.
Of the federal judiciary's proposed powers under Article 3 ( which deliberately did not give the federal courts any power to interfere in disputes between a citizen and his state as your view of the BOR does) he said:
"When we consider the nature of these courts, we must conclude that their effect and operation will be utterly to destroy the state governments; for they will be the judges how far their laws will operate. They are to modify their own courts, and you can make no state law to counteract them. The discrimination between their judicial power, and that of the states, exists, therefore, but in name.
To what disgraceful and dangerous length does the principle of this go! For if your state judiciaries are not to be trusted with the administration of common justice, and decision of disputes respecting property between man and man, much less ought the state governments to be trusted with power of legislation. The principle itself goes to the destruction of the legislation of the states, whether or not it was intended.
As to my own opinion, I most religiously and conscientiously believe that it was intended, though I am not absolutely certain. But I think it will destroy the state governments, whatever may have been the intention.
There are many gentlemen in the United States who think it right that we should have one great, national, consolidated government, and that it was better to bring it about slowly and imperceptibly rather than all at once. This is no reflection on any man, for I mean none. To those who think that one national, consolidated government is best for America, this extensive judicial authority will be agreeable; but I hope there are many in this Convention of a different opinion, and who see their political happiness resting on their state governments.
I know, from my own knowledge, many worthy gentlemen of the former opinion.
[Here Mr. Madison interrupted Mr. Mason, and demanded an unequivocal explanation. As these insinuations might create a belief that every member of the late federal Convention was of that opinion, he wished him to tell who the gentlemen were to whom he alluded.]
Mr. MASON then replied, I shall never refuse to explain myself. It is notorious that this is a prevailing principle. It was at least the opinion of many gentlemen in Convention, and many in the United States. I do not know what explanation the honorable gentleman asks. I can say, with great truth, that the honorable gentleman, in private conversation with me, expressed himself against it; neither did I ever hear any of the delegates from this state advocate it.
Mr. MADISON declared himself satisfied with this, unless the committee thought themselves entitled to ask a further explanation. "
No, we must agree that Mason definitely never intended to give the federal courts any powers over the states; and that he would not silently accept any claim that the BOR he fought for had done so.
There is just no way to square the use of the supremacy clause to expand any federal power or any federal branch's power with the intent of the Bill of Rights.
Some very few ( they would have to be called 'activist' or innovative) judges did try to exercise a power to enforce the federal BOR upon their own state. Most did not, even before Barron.
That idea had never had any support from the Founders, the states, or people in general. That shows how much views have changed in 200 years.
Pings
No comment of your own "_Punk"?
No one here is trying to "expand any federal power or any federal branch's power with the intent of the Bill of Rights." -- Our BOR's purpose was to protect individual rights from infringements by Fed, State or Local governments.
Some very few ( they would have to be called 'activist' or innovative) judges did try to exercise a power to enforce the federal BOR upon their own state. Most did not, even before Barron. That idea had never had any support from the Founders, the states, or people in general.
That shows how much views have changed in 200 years.
No smith, it shows how much our political party structure has changed.
Imagine what would have happened to any CA politicians of 1904 who supported a prohibition on 'military style weapons'. They would have been run out of the State on a rail.
Today, clowns like you support them as being 'states rightists'.
Thanks for the ping!
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