Posted on 01/15/2006 8:59:46 AM PST by Dog Gone
Thank you.
The 2nd Amendment is not incorporated by the courts as we speak. Of course, what is going on here, is that plenty of people are interested in not incorporating the BOR, because it would get in the way of legislation they want passed. That said, it was clear from the Senatorial debates that full incorporation was what was intended. To say the a particular court case did not reflect this approach shortly after the passage of the 14th Amendment, is merely to say that the Supreme Court wanted to limit the BOR's applicability to the states. It did so contrary to the intent of the amemndments authors and the intent of the Congress in authorizing the amendment. It should be no surprise to anyone that the Courts screw things up this way. Separate but equal is another screwy doctrine that was the law of the land until the court reversed itself in Brown (IIRC and IANAL). Reversal of prescedents like in Brown is just another reminder why courts should and indeed must remain subject to the people rather than the other way around. There is a good discussion of the development of the 14th Amendment at http://www.constitution.org/col/intent_14th.htm
I'm not familiar with the commerce clause, so I won't comment on that.
Other than that I think we're in agreement.
Okay, we are DOOMED!
It seems to me that we already lost this battle, states rights and home rule have already been diminished to irrelevance.
This is particularly true in my state of Nevada.
The fed. now dictates virtually every miniscule facet of our lives, unless we ignore their dictates.
Overall, this discussion is a replay of the original argument between the federalist and the the anti-federalist, it will rise and ebb as long as our republic endures.
If I had my way the Fed. Gov. Org. would be reduced to doing only what it is specifically directed to do under our constitution, and I would still have a right to privacy.
To too many that would be anarchy.
In my view individual rights are paramount, with each level of Gov. Org. only reluctantly accepted, and only to the least extent possible.
Call me a "small government" republican.
My privacy is of no legitimate concern to local, state, or Fed. government.
The state government has no more say over my natural rights than the Fed.
If we have no right to something so basic as personal privacy, it would follow that we have NO rights to anything else either.
Weather we ever agree on this issue is largely moot, our out of control big brother, nanny state, totalitarian leaning Gov. Org.'s will do as they please in any case, "For your own good".
I have lost all faith in "our" government, no matter which "party" is in power.
"Under his reasoning the Ninth amendment has no meaning, and is null and void." Yep. And that's at the core of what is wrong with his reasoning. Far too many so-called "conservatives" have this point of view. I thank our God Almighty that George Washington and others who didn't want a Bill of Rights did not prevail. We have enough trouble right now hanging on to our enumerated rights (and concurrently keeping government limited to its enumerated powers), and our unenumerated rights are nowhere to be found (legally speaking that is).
Too bad the Supreme Court is not as zealous in protecting the right of common citizens to their private property as they are the ficticious "right to privacy". Republicans on the Judiciary Com. should have rubbed the libs faces in Kelo every time they whined about protecting "the little people".
Hard to put too fine a point on it in a single paragraph. The enumerated powers provisions clearly place limitations on the government. The Preamble identifies the people as the power that "ordains" the constitution. The choice of words here is key because it establishes the people as a higher authority and implies a holy or Godly origin to their primacy. Article VI establishes the constitution as the supreme law of the land. The Bill of Rights was added through the amendment process to further place specific limits on the Federal government. Areas into which the government may not intrude are private, hence the use of the phrase "right to privacy".
So my right is infringed. This infringment is a moral and just infringment, but an infringment nonetheless.
Society is simply a matter of lines. We must decide where those lines are drawn. Sometimes, the line is just and reasonable, i.e., the infringment on free speech when it comes to slander or libel. Other times, the infringment is unjust, as in McCain/Feingold.
The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people. The author of this piece is an idiot.
Griswold v. Connecticut 381 U.S. 479, 529
(Stewart, J. dissenting)
"The Court also quotes the Ninth Amendment, and my Brother GOLDBERG'S concurring opinion relies heavily upon it. But to say that the Ninth Amendment has anything to do with this case is to turn somersaults with history. The Ninth Amendment, like its companion the Tenth, which this Court held "states but a truism that all is retained which has not been surrendered," United States v. Darby, 312 U.S. 100, 124 , was framed by James Madison and adopted by the States simply to make clear that the adoption of the Bill of Rights did not alter the plan that the Federal Government was to be a government of express and limited powers, and that all rights and powers not delegated to it were retained by the people and the individual States. Until today no member of this Court has ever suggested that the Ninth Amendment meant anything else, and the idea that a federal court could ever use the Ninth Amendment to annual a law passed by the elected representatives of the people of the State of Connecticut would have caused James Madison no little wonder."
This seems fairly clear to me. If this isn't a guarantee of privacy, what is?
GRISWOLD v. CONNECTICUT, 381 U.S. 479, (1965)
(Black, J. dissenting)
(...)The Court talks about a constitutional "right of privacy" as though there is some constitutional provision or provisions forbidding any law ever to be passed which might abridge the "privacy" of individuals. But there is not. There are, of course, guarantees in certain specific constitutional provisions which are designed in part to protect privacy at certain times and places with respect to certain activities. Such, for example, is the Fourth [381 U.S. 479, 509] Amendment's guarantee against "unreasonable searches and seizures." (...)
The due process argument which my Brothers HARLAN and WHITE adopt here is based, as their opinions indicate, on the premise that this Court is vested with power to invalidate all state laws that it considers to be arbitrary, capricious, unreasonable, or oppressive, or on this Court's belief that a particular state law under scrutiny has no "rational or justifying" purpose, or is offensive to a "sense of fairness and justice." If these formulas based on "natural justice," or others which mean the same thing, are to prevail, they require judges to determine what is or is not constitutional on the basis of their own appraisal of what laws are unwise or unnecessary. The power to make such decisions is of course that of a legislative body. Surely it has to be admitted that no provision of the Constitution specifically gives such blanket power to courts to exercise such a supervisory veto over the wisdom and value of legislative policies and to hold unconstitutional those laws which they believe unwise or dangerous.(...)
My Brother GOLDBERG has adopted the recent discovery that the Ninth Amendment as well as the Due Process Clause can be used by this Court as authority to strike down all state legislation which this Court thinks violates "fundamental principles of liberty and justice," or is contrary to the "traditions and [collective] conscience of our people." He also states, without proof satisfactory to me, that in making decisions on this basis judges will not consider "their personal and private notions." One may ask how they can avoid considering them. Our Court certainly has no machinery with which to take a Gallup Poll. And the scientific miracles of this age have not yet produced a gadget which the Court can use to determine what traditions are rooted in the "[collective] conscience of our people."
I yet again advise to learn a bit about the history of the IX Amendment and its true meaning, not the one invented by Arthur J. Goldberg.
Griswold v. Connecticut 381 U.S. 479, 529
(Stewart, J. dissenting)
"The Ninth Amendment, like its companion the Tenth, which this Court held "states but a truism that all is retained which has not been surrendered," United States v. Darby, 312 U.S. 100, 124 , was framed by James Madison and adopted by the States simply to make clear that the adoption of the Bill of Rights did not alter the plan that the Federal Government was to be a government of express and limited powers, and that all rights and powers not delegated to it were retained by the people and the individual States. Until today no member of this Court has ever suggested that the Ninth Amendment meant anything else, and the idea that a federal court could ever use the Ninth Amendment to annual a law passed by the elected representatives of the people of the State of Connecticut would have caused James Madison no little wonder."
Oh really?
Then how is it possible that some states allow concealed carry and some don't? How is it possible that some cities actually ban the ownership of handguns?
What happened to Equal Protection and Due Process?
(Answer: The second amendment doesn't apply to the states, only the federal government. Gasp!)
"This point is best illustrated by one of the amendments that Madison proposed in his initial speech:"
Fifthly, That in article 1st, section 10, between clauses 1 and 2, be inserted this clause, to wit:
No State shall violate the equal rights of conscience, or the freedom of the press, or the trial by jury in criminal cases."
This clause, seemingly innocuous to us today, was rejected by the Senate in its final draft of the Bill, and the concept that any part of the Bill of Rights would apply to the states was still 100 years away."
In the fall of 1946, Fairman was developing views on the 14th Amendment that would prove influential among conservatives of the day, though Fairman himself did not identify with the political right. The amendment, adopted in 1868, provides: “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.” Fairman argued that the framers of the amendment had not intended to apply the Bill of Rights to the states. The “privileges and immunities” of citizens the amendment protected were limited to such matters as the making of contracts and service on juries, he said. The federal government’s powers to fight discrimination or other abuses by the states would, accordingly, be limited. “This is not merely an academic question,” Fairman wrote in a seminal 1949 Stanford Law Review article. “It presents itself insistently today because Justices of the Supreme Court are prepared to make decisions turn upon their reading of the historical record.” Indeed, he wrote in direct rebuttal of Justice Hugo Black, who was taking the opposite view of history in his opinions at the court.Stanfordalumni.orgFairman’s narrow interpretation of the 14th Amendment likely came through in lectures to undergraduates such as Rehnquist. “He clearly taught that the 14th Amendment did not apply the Bill of Rights to the states,” Davies recalls.
And personally I wouldn't give a spit for the Radical Republicans of 1866. However the 14th Amendment's intent as well as a discussion of some of the cases it has affected are found more in depth here.
Because the SC has ignored the obvious interpretation of the constitution for several decades now. Many government entities have passed obviously unconstitutional law and gotten away with it.
As my example of Griswold and Roe discovering extensive privacy rights, while the "right of privacy" to use drugs doesn't exist, we are living in a time when the constitution means whatever the SC rules at the moment.
(Answer: The second amendment doesn't apply to the states, only the federal government. Gasp!)
The second was not limited in scope as the first was to laws that Congress passes. The second was a right given to the people, and the 14th explicity extended all rights given by the BOR to the citizens of states.
It's rather remarkable that citizens supposedly have a privacy right that is superior to their second amendment right, but that is the current state of the law.
So you have no problem with the concept that Congress may prohibit some purely intrastate activity if that activity has a substantial effect on their interstate commerce regulatory efforts -- you just disagree that pot possession has a substantial effect.
Well, until Congress can be proven otherwise, the law stands. But I think they make a pretty good case that it does affect their interstate efforts if everyone is allowed to grow pot and distribute it locally.
I do not argue that the right to privacy grants you a right to kill someone just because it is done in private. You have no right to infringe on another’s rights regardless of what right you claim to be exercising.
I do not have the right to carry a weapon into your home even if I claim I am just exercising my right to keep and bear arms.
But this is moot. The argument is whether a right must be listed on some document in order to exist. It need not be listed anywhere.
The state can restrict your right to keep and bear arms, speech, assembly, privacy, and a host of others. Get arrested sometime and see which rights are infringed upon. True the state must act in accordance with due process, but because a right can be infringed does not mean the rights doesn't exist.
Uh, no. The 14th Amendment has been used to selectively incorporate the BOR during the 20th century, and the 20th century only
Concerning a dissenting opinion in the 1892 case of O’Neil v. Vermont[15], Morrison observed:The 2nd Amendment, and the original intent of the rest of the Bill of Rights, was the relation of the citizens of the respective states to the federal government alone. And until the 20th century, it was understood this relation did not change after the passage of the 14th Amendment“Here then, in 1892, we get the first intimation from any Justice of the Supreme Court that the Fourteenth Amendment might be considered to incorporate the Bill of Rights. In view of the long line of cases beginning in 1875 in which the question [of incorporation] could have been raised, and in view of the fact that the judges who were sitting on the Court during this seventeen-year period were all mature men when the Fourteenth Amendment was adopted, the conclusion is irresistible that it was not generally supposed that the Amendment incorporated the Bill of Rights.”
A right need not be listed in some document in order to exist.
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