Free Republic
Browse · Search
News/Activism
Topics · Post Article

To: mrsmith
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.

335 posted on 07/19/2004 9:31:16 AM PDT by H.Akston (A voluntary Union is a more perfect union)
[ Post Reply | Private Reply | To 287 | View Replies ]


To: H.Akston
"the Bill of Rights being passed, to protect the states/people from federal abuse of those powers. "
Yes, we agree that is what was intended. For me that is sufficient.

"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.

349 posted on 07/20/2004 2:46:46 PM PDT by mrsmith ("Oyez, oyez! All rise for the Honorable Chief Justice... Hillary Rodham Clinton ")
[ Post Reply | Private Reply | To 335 | View Replies ]

Free Republic
Browse · Search
News/Activism
Topics · Post Article


FreeRepublic, LLC, PO BOX 9771, FRESNO, CA 93794
FreeRepublic.com is powered by software copyright 2000-2008 John Robinson