Posted on 10/27/2005 3:51:18 PM PDT by William Tell
NOT ACCORDING TO THE ATTORNEY GENERAL FOR THE STATE OF CALIFORNIA…
| QUOTE: “…. If Plaintiffs ( gun owners ) are implying that a right to keep and bear arms is one of the rights recognized in the California Constitution’s declaration of rights THEY ARE SIMPLY WRONG. No mention is made in it of a right to keep and bear arms. “ ( Kasler v. Lockyer 2000 ) |
Amending the California Constitution is the best way to restore respect for the rights of law abiding gun owners. It will also undermine attempts by local jurisdictions to restrict your right to keep and bear arms. Candidates for political office will also find that this initiative represents one of the best issues upon which to base their campaign for office. ( Remember how Al Gore lost his own state of Tennessee in 2000? ) The Democrats have learned that hostility to gun rights can lose and election. We think supporting gun rights can win one. We need volunteers to put this issue directly to the voters. As a volunteer you will play a pivotal role in making this initiative a reality at the county level. Our goal is 850,000 signatures of registered voters in California and we can only achieve this with your help!
The inalienable right to defend life and liberty as set forth in Article I, Section 1 of the California Constitution includes the fundamental right of each person to keep and bear arms for the defense of self, family and home. This right shall not be infringed.
1. All State government action regulating the right of law-abiding persons to acquire and possess arms for the defense of self, family and home shall be subject to strict scrutiny, in the same respect as the freedoms of speech and of the press. All county, city and local government action on this subject is preempted by state law and this Amendment.
2. This Amendment does not limit the State from regulating the acquisition and possession of arms by: felons, minors, the mentally incompetent, and any person subject to restraining orders based upon their own violent conduct.
Thanks for the ping!
I appreciate and commend your enthusiasm. Sadly, I gave up on CA years ago. Don't let my pessimism slow you down but CA is MA squared.
Perhaps you still know some pro-gun folks back here who might be willing to help. Pass the word if you can. Thanks.
That is the most incoherent attempt at revisionist history I have read in quite a while. The term "States Rights" has been around since the beginning of our nation, and was landmarked by the wording of the 10th Amendment to the Constitution.
Tell me just where the Bill of Rights uses the specific term; "State's Rights"? It NEVER does. The language of the U.S. Constitution uses the terms "rights" and "powers" for "person", "persons" and "the people", and uses the term "power" or "powers" only for government, irrespective of federal or state . . . powers emanate from the "right of the people" to confer these powers upon government.
By splitting hairs over a word or two you are ignoring a basic tenet of the constitution: the people at the state level have the right to create forms of government that are not allowed at the federal level. For example, the people of Massachusetts have the right to establish a state government that respects the establishment of religion. The people comprising the federal government have no such right. Hence, "States Rights". In general, the term "States Rights" refers to right belonging to the people of the several states to create powers that do not belong to the federal government. Thomas Jefferson explained states rights and the 10th Amendment in an 1808 letter this way:
I consider the government of the U S. as interdicted by the Constitution from intermeddling with religious institutions, their doctrines, discipline, or exercises. This results not only from the provision that no law shall be made respecting the establishment, or free exercise, of religion, but from that also which reserves to the states the powers not delegated to the U.S. Certainly no power to prescribe any religious exercise, or to assume authority in religious discipline, has been delegated to the general government. It must then rest with the states, as far as it can be in any human authority.
Jefferson also warned us about the dangers to states rights from the Supreme Court with lifetime appointments in this fragment from an 1822 letter to William T Barry:
We already see the power [the Supreme Court], installed for life responsible to no authority, (for impeachment is not even a scare-crow,) advancing with a noiseless and steady pace to the great object of consolidation. The foundations are already deeply laid by their decisions, for the annihilation of constitutional State rights, and the removal of every check, every counterpoise to the ingulfing power of which themselves are to make a sovereign part.
You certainly can't say that Jefferson didn't warn us about the dangers to states rights from the Supreme Court.
In any case, there is an argument for using the term "states rights" to apply to rights people have to create powers at the state level, but not at the federal level, and Jefferson gave it to us.
But if you continue to insist that "States Rights" do not exist, then I have to insist that the "Bill of Rights" do not exist because that term is not mentioned in either the Constitution or Amendments.
The term "States Rights" has been around since the beginning of our nation, and was landmarked by the wording of the 10th Amendment to the Constitution.
The wording of both the 9th. and 10th. Amendments do not use the term "State's Rights" at all. To the contrary, the only entity mentioned in these amendments that have "rights" (as well as powers), are "the people". So if both terms, rights and powers, are equivelent, why did the framers of the constitution never vary in the style, manner and context of their use of the two words? Why not just use one word?
In any case, there is an argument for using the term "states rights" to apply to rights people have to create powers at the state level, but not at the federal level, and Jefferson gave it to us.
Just go on believing that. In the end, the states will have confiscated all the individual rights not now "incorporated" into the 14th. Amendment. These rights will, however, be protected at the federal level, but then who lives in a federal "State"? We all live in one of the "several states", don't we? As it stands now, the Bill of Rights only applies to "some" states, in the end it will apply to none.
By splitting hairs over a word or two you are ignoring a basic tenet of the constitution:...
No it's not, it's getting right to the heart and soul of the Constitution and that it is: "the People" are superior to the government, be it federal or state, and that a "right" is individual and inalienable, and that a power is derived from the consent of the governed and may be removed. It's not semantics, as you "States Righters" are prone to claim. The two terms have very separate and important meanings and "States Rights" is just another name on the road to serfdom. Especially if Hillary is president!
For example, the people of Massachusetts have the right to establish a state government that respects the establishment of religion. The people comprising the federal government have no such right.
I was unaware that there was such a thing as a citizen of the federal government. Americans live in states, not in the federal government.
Furthermore; " the people of Massachusetts have the right to establish a state government that respects the establishment of religion."
Not anymore they don't. But MA can declare a "right" for gays to marry.
"In general, the term "States Rights" refers to [the] right belonging to the people of the several states to create powers that do not belong to the federal government."
I agree with the underlined portions of your statement,above, being that the people poses the rights and the state derives its power from the people. It is an exact example my point. However, state (and federal) government, in and of itself, has no rights.
Thomas Jefferson explained states rights and the 10th Amendment in an 1808 letter this way:"...but from that also which reserves to the states the powers not delegated to the U.S."
Your T. Jefferson citation uses the term "powers", not rights to convey his idea that there is a division of powers among the "U.S." and the states. He makes no mention of any kind of "Rights", state or otherwise.
Jefferson also warned us about the dangers to states rights from the Supreme Court with lifetime appointments in this fragment from an 1822 letter to William T Barry: [ for brevity, text omitted from reply, elbucko]
You certainly can't say that Jefferson didn't warn us about the dangers to states rights from the Supreme Court.
No I can't. It is still an issue to this day that we refer to as Judicial Activism. That Jefferson used the term "constitutional state rights", is undeniable. That some of the Founding Fathers, in their correspondence, used the terms powers or rights casualy and interchangeably is without doubt. But casual correspondence between intimates and the lawful expression of legal ideas are two different things. Or, if words don't mean anything, why is CA AG Lockyer denying 2nd. Amendment rights to the citizens of California because the right does not exist in the CA state constitution (i.e. state's rights?) and that the state is not compelled to recognize the 2nd. Amendment because it is not incorporated into the 14th Amendment by reason of state's rights again? Rights and powers are, indeed in issue. I am as opposed to "State's Rights, as I am opposed to "Federal Rights" as I am opposed to "Dog Catcher Rights". All are a corruption of their meaning and all threaten our individual liberty.
But if you continue to insist that "States Rights" do not exist, then I have to insist that the "Bill of Rights" do not exist because that term is not mentioned in either the Constitution or Amendments.
You are free to exercise your individual, 1st. Amendment right that the Bill of Rights does not "exist" as the first ten amendments to the Us Constitution and, in doing so, prove that you are twice the idiot that I supposed you to be.
>>>You are free to exercise your individual, 1st. Amendment right that the Bill of Rights does not "exist" as the first ten amendments to the Us Constitution and, in doing so, prove that you are twice the idiot that I supposed you to be.<<<
Elbucko, everything you wrote in post #65 was gibberish. Not only is your understanding of constitutional history weak, but you completely ignored the fact that Thomas Jefferson used the term state rights in his correspondence (I provided you an exact quote from an 1822 letter which you ignored). This is going to come as quite a blow to your ego, but I tend to believe Thomas Jefferson more than you in matters relating to the Constitution.
So do I. I put Jefferson second, only to Washington, among the Founding Fathers. But Jefferson is rarely considered by the courts in any Constitutional issues today. Even the Federalist Papers have to file an amicus brief just to be considered in any SCOTUS decision.
Elbucko, everything you wrote in post #65 was gibberish.
You're going to make me spell it out for you, aren't you? To wit:
The use of the term "States Rights" has been historically used by the states to deny minorities their natural or constitutional rights and not, as some believe, make the federal government mind its own business. Specifically, "States Rights" were used to deny Africans of their Natural rights prior to the Civil War. Second, "States Rights", were used by these same Southern States, to deny freed black slaves their constitutional rights and to enforce such unconstitutional policies as segregation and Jim Crow laws against this minority in those states claiming "States Rights". In the History of the US, the term "States Rights" has only been used in the suppression of a minority and NEVER in the protection of one.
So, look around you, "white boy", you're fast becoming a "minority" and the Democrats in your state, my state, and other states are a fixin' to use their own version of "States Rights" against you. Just as California Attorney Lockyer has used "States Rights" against California gun owners to refuse recognition of the 2nd. Amendment. Is that simple enough for you? (I doubt it!)
I too want to leave this state. It sure was a lot easier to move out here than it is to leave. A FReeper Rescue?
Of course in this day and age our constitution and original intent rarely trump the new-fangled substitute for the constitution called "judicial precedent".
The use of the term "States Rights" has been historically used by the states to deny minorities their natural or constitutional rights and not, as some believe, make the federal government mind its own business.
I would expect to read that line in DNC talking points, but not written by another freeper. But I think I understand you now. You take offense to the term "States Rights" because you think the term has applied only to suppression of blacks; and that clouds your ability to discuss it rationally.
Specifically, "States Rights" were used to deny Africans of their Natural rights prior to the Civil War. Second, "States Rights", were used by these same Southern States, to deny freed black slaves their constitutional rights and to enforce such unconstitutional policies as segregation and Jim Crow laws against this minority in those states claiming "States Rights". In the History of the US, the term "States Rights" has only been used in the suppression of a minority and NEVER in the protection of one.
Incorrect. I pointed out an example by Jefferson and you conveniently ignored it (you left it completely out of your response). Examples of other "State Rights", include the right of states to recognize the establishment of religion, to require a religious test for public office, to enforce morality and decency, to have militias (which is independent of the individual right to keep and bear arms), etc.. It is possible the term "State's Rights" was originally coined by anti-Federalists and others who held strong beliefs in retaining state sovereignty. For example, in the Elliot Debates, it is written:
"Other equally strong State Sovereignty and State Rights men remained; and, by the final action of the Convention, an equality of votes in the Senate was secured to the States, as we have seen. They were perfectly satisfied that the Federal system was still retained by this adjustment . . . Luther Martin was unyielding upon the point of equality of suffrage on the part of the States in both Houses of Congress. Indeed, he was unalterably opposed to many of the new and additional powers delegated by the Constitution. He was opposed to the Executive and Judiciary Departments, as constituted, and to the prohibitions on the States against emitting Bills of Credit or passing laws impairing the obligations of contracts. He thought the Government, notwithstanding the opinion of its friends to the contrary, would end in despotism, and so warned his countrymen, in eloquence of the highest order."
In this example, Luther Martin was concerned about a despotic federal government (justified as it turned out). This is similar to the concern Jefferson possessed in the example I posted in a previous thread. In his 1836 Commentaries on the Constitution, Justice Joseph Story wrote:
"We find, that it is the known course of the judicial department of the several states to decide in the last resort upon all constitutional questions arising in judgment; and that this has always been maintained as a rightful exercise of authority, and conclusive upon the whole state.17 As such, it has been constantly approved by the people, and never withdrawn from the courts by any amendment of their constitutions, when the people have been called to revise them. We find, that the people of the several states have constantly relied upon this last judicial appeal, as the bulwark of their state rights and liberties; and that it is in perfect consonance with the whole structure of the jurisprudence of the common law. Under such circumstances, is it not most natural to presume, that the same rule was intended to be applied to the constitution of the United States? And when we find, that the judicial department of the United States is actually entrusted with a like power, is it not an irresistible presumption, that it had the same object, and was to have the same universally conclusive effect? Even under the confederation, an instrument framed with infinitely more jealousy and deference for state rights, the judgments of the judicial department appointed to decide controversies between states was declared to be final and conclusive; and the appellate power in other cases was held to overrule all state decisions and state legislation."
There are many other examples of the use of the term "state rights" or "state's rights" in early American writings.
So, look around you, "white boy", you're fast becoming a "minority" and the Democrats in your state, my state, and other states are a fixin' to use their own version of "States Rights" against you.
I cannot argue with your premise. The difference is, the true version of states rights used in the past has our Constitution's blessing and is lawful. Today's phony version is contrary to the constitution and therefore a criminal act.
Maybe a 12-step program; Californians Anonymous?
Perhaps kidnappings and forced de-programming?
I'm held here by the firmest of family ties. I plan vacations to free states and love to breathe the free air. Don't give up on me. There is hope.
Hang tough WT. We will prevail !
No. The black issue may be yours, its not mine, but it is the only example of "States Rights" being used, ante or post bellum. I take offense at the term "States Rights" because it is, essentially, a dangerous oxymoron. The concept that a state can have any rights at all flies in the face of the Enlightenment. It resonates to the sound of the "Divine Right of Kings", that is, the ultimate power of the state being derived from God rather than from the governed. "State Sovereignty" is a more appropriate term and is more easily defended against usurpation by another state, federal or otherwise. Furthermore, a "state" is a legal fiction, "persons" and all their categories are a legal fact.
Examples of other "State Rights", include the right of states to recognize the establishment of religion, to require a religious test for public office, to enforce morality and decency, to have militias (which is independent of the individual right to keep and bear arms), etc..
For better or worse, the Southern states voided the Constitution with their secession. The sad result of the Civil War was the 14th. Amendment that enables both the feds and the states to deny or protect rights, in an arbitrary manner, that are guaranteed in the US Constitution. All the eloquent speeches and letters by notable citizens, prior to 1865, fall upon deaf legal and political ears. For instance, the likelihood of a state establishing a religion today is so remote as to be moot. In fact, it's impossible unless your religion is either gun control or abortion.
My main point is that Americans have been claiming all sorts of "Rights" and having their pleas for justice fall upon deaf ears. I believe the better tactic is to question the legitimacy of the power of the state. I know the CA AG, Bill Lockyer, he is a man willing to do anything to be elected governor. His office is full of anti-gun lawyers from San Francisco. However, it is my contention that Lockyer does not have the "power" to arbitrarily deny the residents of CA their 2nd. Amendment "Rights" purely upon the powers of his office alone. As an officer of the state, his powers do not exceed those of the rights of the people.
Therein hangs the peg of my issue with any kind of government rights. If Lockyer was conferred with any "rights", by virtue of his office (as he believes he does), California would be disarmed. Completely.
I cannot argue with your premise. The difference is, the true version of states rights used in the past has our Constitution's blessing and is lawful. Today's phony version is contrary to the constitution and therefore a criminal act.
On this, we do agree.
>>>The black issue may be yours, its not mine.<<<
I must have misunderstood you when you called me a "white boy", and when you wrote,
>>>"The use of the term "States Rights" has been historically used by the states to deny minorities their natural or constitutional rights and not, as some believe, make the federal government mind its own business. Specifically, "States Rights" were used to deny Africans of their Natural rights prior to the Civil War. Second, "States Rights", were used by these same Southern States, to deny freed black slaves their constitutional rights and to enforce such unconstitutional policies as segregation and Jim Crow laws against this minority in those states claiming "States Rights"."<<<
Sorry if I misunderstood you.
>>>The concept that a state can have any rights at all flies in the face of the Enlightenment. It resonates to the sound of the "Divine Right of Kings", that is, the ultimate power of the state being derived from God rather than from the governed.<<<
What does that have to do with anything? The truth is in our history, not in your feelings.
>>>Therein hangs the peg of my issue with any kind of government rights.<<<
That "feeling" may explain your inability to understand the concept of 'states rights'. Let me try it another way...
The Constitution replaced the Articles of Confederation, which could be defined as a weak treaty between the various sovereign states. One of the main objections to the Constitution was the loss of sovereignty by the states. The people of the sovereign states were unwilling to give up certain rights, such as the right to have a republican form of government, the right to maintain their religious heritage, and the right to remain a slave or free state, among others. Of course, as you have insisted, all rights are manifested in the people. But the concept of state rights is in no way contradictory. It merely refers to the rights the people retained at the state level to create powers not specifically delegated to the Federal Government. Therefore the wording of the 10th Amendment:
"The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people."
You keep referring to your tyrannical AG, as if tyranny had anything to do with states rights. States Rights have to conditions: they must be empowered by the people, and they must not be prohibited by the Constitution. Your AG's actions are prohibited by the constitution and are therefore tyranny. The constitution does not protect you from tyranny -- only the ballot box or ammo box.
Never mind. I am truly sorry that I posted any comment at all.
>>>Never mind. I am truly sorry that I posted any comment at all.<<<
No problem.
Mr. Locklusteryear seems to contridict the CA Constitution -
"CALIFORNIA CONSTITUTION
ARTICLE 1 DECLARATION OF RIGHTS
SECTION 1. All people are by nature free and independent and have inalienable rights. Among these are enjoying and defending life and liberty, acquiring, possessing, and protecting property, and pursuing and obtaining safety, happiness, and privacy."
Defending life is in the CA Constitution, and protecting property and obtaining safety is also covered.
However, I for one would like to see a "louder" mention to the RKBA then having to "dig" to find the answers
Apparently the courts in Kalifornia are able to imagine being able to protect one's life without firearms.
This despite the fact that virtually every law enforcement officer carries a sidearm for his own self-protection.
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