Posted on 01/15/2006 8:59:46 AM PST by Dog Gone
I think that it SHOULD be applicable against the states but it's a simple fact that it's (at least yet) not. The entire history of the BoR and the entire case law (starting in 1830) shows that the BoR originally limited only the federal government. Now after the adoption of the XIV Amendment the SCOTUS chose the "selective incorporation" doctrine rather than the "complete incorporation" and gradually extended most of the BoR provisions to the states. As I already said many times it did not extend some provisions of the BoR, like f.ex. the RKBA, but it also did not extend the right to unanimous jury verdicts. I believe that in order to avoid the whole XIV Amendment chutzpah (especially post-WW II when the SCOTUS changed its mind many times on what should extend to the states and what not, again compare f.ex. Bute v. Illinois - there is no right to counsel, and Gideon v. Wainwright - there is a right to counsel, or Wolf v. Colorado - no exclusionary rule, with Mapp v. Ohio) the Congress should simply pass a new Constitutional Amendment which would declare that the entire Bill of Rights is now extended to the states (OTOH some states may not want to ratify it...).
How amusing. You're admitting that a SCOTUS opinion can change the meaning of the 2nd, "incorporating it" to apply to the States.
Where is the 'incorporation power' delegated to SCOTUS?
They don't. Only the states have that authority. That's why the 18th Amendment was needed to permit the feds to prohibit personal consumption of alcohol. Now getting the courts to agree with that interpretation is a different story.
Thanks for posting those dissents. They state exactly what I was trying to say.
The 2A is a right of the people period as the plain language of the BOR's attests. Who do you suppose "the People" are?
But not much is really evaluated fairly in the Constitution. It's quite common for a clause, or even a few words within a sentence, to be grabbed as a justification for a particular court outcome.
That's still preferable, though, to making up imaginary words and rights.
"Now getting the courts to agree with that interpretation is a different story." You said a mouthful. What courts rule these days is pretty far off base.
It is interesting to compare the First Amendment and the Second. The First starts out with "Congress shall pass no law" - which to simple ol' me, means it was a constraint on Congress, not anyone else.
Whereas the Second ends with "shall not be infringed" and also, as you noted, contains "the right of the people".
Yet the Second hasn't been incorporated by SCOTUS, whereas the First has (but somehow that "Congress shall pass no law" ditty was disregarded when they upheld McCain-Feingold.)
Which means, at the end of the day, that words have no meaning in this day and age.
Really? You don't think that protections against unreasonable seizures should carry weight against government takings to ensure that the takings are reasonable? Didn't Fifth Amendment takings have to first show that there weren't other reasonable alternatives for roads or building sites before a taking happened? Withouth the Fourth, one could take the first thing they saw, which is pretty much what they're doing now after Kelo.
I could see an argument in the case where there aren't other competing or influencing mentions in the Constitution, but when there are (as I believe there are in this case), then one should be balanced against the other to ensure that the interpretations are fair and consistent.
If Kelo didn't consider Fourth Amendment protections, would that be a possible avenue for a new case to give the Court a chance to reverse their Kelo ruling?
-PJ -PJ
I thought the Constitution just applied to what the Feds could do to you.
"The powers they conferred on this government were to be exercised by itself; and the limitations on power, if expressed in general terms, are naturally, and, we think, necessarily, applicable to the government created by the instrument. They are limitations of power granted in the instrument itself; not of distinct governments, framed by different persons and for different purposes.(...)
The third clause, for example, declares, that 'no bill of attainder or ex post facto law shall be passed.' No language can be more general; yet the demonstration is complete, that it applies solely to the government of the United States. (...)
Had congress engaged in the extraordinary occupation of improving the constitutions of the several states, by affording the people additional protection from the exercise of power by their own governments, in matters which concerned themselves alone, they would have declared this purpose in plain and intelligible language." There is no reason to suspect that the Second Amendment is different.
Maybe, but nevertheless the Barron decision was unanimous, never overruled and I've never heard of any Supreme Court justice who would oppose it.
I would bother but I've already gone through this.
Not really. What do you gain by allowing a State to infringe on your RKBA's? -- It's a simple question.
See the links I have provided. It is very clear the intent of the 14th Amendment was not meant to incorporate the Bill of Rights.
I've seen all those links before.
None of them make that point, as the framers of the 14th made their intent clear in the 1868 debates before ratification. They wanted ex-slaves to have the RKBA's.
As late as 1925 the Supreme Court ruled exactly that on the First Amendment. The Fifth was not incorporated until 1897. Do a quick search on 14th and incorporation theory.
'Incorporation' is as you said, a theory. Where in our Constitution is the USSC given the power to decide if an Amendment applies to State & local governments?
Clearly, Article VI applies all of the the US Constitution to States, "- any thing in the Constitution or Laws of any State to the Contrary, notwithstanding. --"
Article VI - Yep. It does. "...shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby...'
Simply not true. Certain of the amendments contained in the BOR's limited the power of Congress, others were simply administrative and yet others acknowledged indivdual rights. According to your interpretation the BOR's should be called the Bill of Limited Federal Government.
While certain of the first 10 amendments certainly did that, some did other things. Please explain how the text of the second amendment is simply a limiting of federal power and not an acknowledgemnt of an individual right.
I suppose, but I'd consider it a long shot. The Fourth and Fifth Amendments are talking about entirely separate things and it takes a pretty tortured reading of the Constitution to argue that either impacts the other.
Don't get me wrong, I still can't find the constitutional basis for the Kelo decision. It is just as bad law as Roe or the original commerce clause decisions. All of those cases seem clearly to me to be decisions that were made on the basis of policy with some effort made to cloak them in constitutional reasoning. Horrible law from the purists or strict constructionist reasoning.
" In times of war and the terrorist threat, we do have to be rational. I support the President when it comes to monitering the phone calls to and from potential terrorists."
The Bill of Rights doesn't apply to the enemy. As long as the info gathered is used only to detect and thwart enemy ops, the taps are valid. Again, simple.
Ruth Bader Ginsberg is evil, but understands this, and is a very intelligent jurist. She claims the right to abortion is actually contained in the fourteenth amendment, guaranteeing equal protection. Since men cannot have babies, the law only applies to women. This is also faulty reasoning, but is more defensible intellectually than the fourth amendment argument. It's also less likely to open the door to absurdist interpretations. If the reasoning used in Roe v. Wade was applied unilaterally, drug use would be constitutionally protected, as would prostitution, bestiality, all forms of gambling, suicide, dog fighting, games of Russian roulette, and basically any other form of activity, so long as it didn't take place in public view.
The question is what is reasonable, rather than whether privacy is a right. The right to own private property is also one of those implied things as is defining a corporation as a person.
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