Constitutional right to privacy a figment of imagination

Houston Chronicle ^ | January 15, 2005 | JUDGE HAROLD R. DEMOSS JR.

[Dog Gone]

In this season of politicized and contentious confirmation hearings to fill vacancies on the U.S. Supreme Court, some of the sharpest debate and disagreement concerns a so-called "right of privacy" in the U.S. Constitution.

The advocates of a constitutional right of privacy speak as though that right were expressly stated and enumerated in the Constitution. But the text of the Constitution does not contain the word "privacy" or the phrase "right of privacy."

Consequently, in my view, a constitutional "right of privacy" could only be unenumerated and is therefore a figment of the imagination of a majority of the justices on the modern Supreme Court. Let me explain why.

Webster's Dictionary defines "enumerate" as "to name or count or specify one by one." Roget's Thesaurus states that the synonyms for "enumerate" are "to itemize, list, or tick off." Adding the negative prefix "un" reverses the definitions or synonyms so that "unenumerated" means not named, not counted, not specified, not itemized, or not listed.

The right of privacy is unenumerated because neither the word privacy nor the phrase right of privacy appears anywhere in the Constitution or its amendments. Nor does the text contain any words related to other rights the Supreme Court has found to derive from that right, including the right to an abortion and rights related to sexual preference. Neither "abortion" nor "sexual preference" appear anywhere in the text of the Constitution.

The idea of a constitutional "right of privacy" was not even recognized by the Supreme Court until 1965, when Justice William O. Douglas used the idea in writing for the majority in Griswold v. Connecticut, where the court concluded that a state law criminalizing the use of contraception was unconstitutional when applied to married couples because it violated a constitutional right of privacy. That was 176 years after ratification of the Constitution, 174 years after ratification of the Bill of Rights and 97 years after the ratification of the Fourteenth Amendment.

In his opinion, Justice Douglas cited cases that he maintained, "bear witness that the right of privacy which presses for recognition [in Griswold] is a legitimate one."

Note the phrase "which presses for recognition." That phrase reveals that the right of privacy, that is still hotly debated by the American people today, was first recognized by the Supreme Court in this opinion. Note, also, that if the right of privacy had been "named" or "listed" or "specified" or "itemized" in the Constitution, there would have been no need for it to "press for recognition" in this opinion.

What the Supreme Court was really doing with such language was interpreting some of the specific prohibitions enumerated in the Bill of Rights as indicating the existence of a general right of privacy that is not expressly written, and then finding a new specific right, i.e., the right to use contraceptives, as an unstated part of the unstated general right of privacy.

This same technique was used by the Supreme Court in 1973 in Roe v. Wade, in which the majority stated:

"The Constitution does not explicitly mention any right of privacy. In a line of decisions, however, going back perhaps as far as [1891], the court has recognized that a right of personal privacy, or a guarantee of certain areas or zones of privacy, does exist under the Constitution. In varying contexts, the court or individual justices have, indeed, found at least the roots of that right in the First Amendment, in the Fourth and Fifth Amendments, [and] in the penumbras of the Bill of Rights.

"This right of privacy, whether it be founded in the Fourteenth Amendment's concept of personal liberty and restrictions upon state action, as we feel it is, or as the district court determined, in the Ninth Amendment's reservation of rights to the people, is broad enough to encompass a woman's decision whether or not to terminate her pregnancy."

Just substitute "a woman's right to terminate her pregnancy" (Roe) for "a married couple's right to use contraceptives" (Griswold) and the Supreme Court again found an unstated specific right within the unstated general right of privacy. Note also that the Supreme Court admitted in the first sentence of the above quotation that "the Constitution does not explicitly mention any right of privacy." I think my use of the adjective "unenumerated" in this context is both accurate and appropriate.

The court's choice of the word "penumbra" and the phrase "penumbras of the

Bill of Rights" in these opinions is revealing.

According to Webster's, penumbra comes from two Latin roots: paene, meaning almost, and umbra, meaning shadow. The meaning of penumbra, as stated in the dictionary, that is relevant to our understanding of the Supreme Court's opinions regarding the Bill of Rights is "an outlying, surrounding region."

So the use of the word penumbra by the Supreme Court should be understood to mean that in the court's view the right of privacy exists somewhere in the region that surrounds and lies outside of the Bill of Rights.

But there is absolutely nothing in the text of the Bill of Rights about any such surrounding or outlying area, nor is there any catch-all phrase (like "other similar rights") indicating that the rights specifically enumerated exemplify a larger class of rights that were not enumerated. Consequently, whatever rights might be found in the phrase exist only in the mind, contemplation and imagination of each individual reader and are not part of the constitutional text.

Some proponents of a constitutional right of privacy insist that it can be found in the liberty clause of the Fourteenth Amendment. But the liberty clause of the Fourteenth Amendment is identical to the liberty clause in the Fifth Amendment; and just as in the case of the Bill of Rights, neither the word "privacy" nor the phrase "right of privacy" appear anywhere in the Fourteenth Amendment, much less in the liberty clause.

The fact that the Supreme Court has said that the right of privacy could come from the First, Fourth, Fifth or Fourteenth amendments is solid evidence that the court is just guessing about where it does come from.

The Supreme Court's actions I have just described amount to an attempt to amend the Constitution rather than an interpretation of its text. Let me explain why.

There are two ways to amend a document like the Constitution:

(1) you can delete words that already exist therein; or (2) you can add new words not previously included.

The latter is what the Supreme Court has done, and this action differs fundamentally from the court's legitimate task of interpreting and applying existing words and phrases like "cruel and unusual punishment," "due process," "public use" and "establishment of religion" that appear verbatim either in the text of the Constitution or its amendments.

But the Constitution does not give the Supreme Court the power to amend the Constitution. Neither the Supreme Court (the judicial branch) nor the president (the executive branch) is mentioned in Article V of the Constitution, which defines the process for amending the Constitution.

As defined in Article V, the power to amend lies with the American people, acting through the Congress and the state legislatures. It is "We, the people, of the United States" who are expressly denominated as the acting parties in our original Constitution who "do ordain and establish this Constitution for the United States of America."

Likewise, in our Declaration of Independence, one of the truths we declared to be self-evident is that "Governments are instituted among men, deriving their just powers from the consent of the governed."

Our first president, George Washington, put it this way in his farewell address to the nation in 1796:

"The basis of our political system is the right of the people to make and to alter their constitutions of government.

"If in the opinion of the people the distribution or modification of the constitutional powers be in any particular wrong, let it be corrected by amendment in the way which the Constitution designates but let there be no change by usurpation; for though this in one instance may be the instrument of good, it is the customary weapon by which free governments are destroyed."

Similarly Chief Justice John Marshall wrote as follows in his historic opinion in Marbury v. Madison:

"That the people have an original right to establish, for their future government, such principles as, in their opinion, shall most conduce to their own happiness, is the basis on which the whole American fabric has been erected.

"From these, and many other selections which might be made, it is apparent, that the framers of the Constitution contemplated that instrument, as a rule for the government of courts, as well as of the legislature."

The Constitution does speak to the circumstance of unenumerated rights in the Ninth and Tenth amendments. The Ninth Amendment in simple plain English says, "The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people."

The right of privacy is not one of the rights enumerated in the Constitution, and consequently, the Ninth Amendment gives us two instructions: first, we are not "to deny or disparage" the existence of a right of privacy simply because it is not enumerated in the Constitution; and second, we are required to recognize that any such right of privacy is "retained by the people."

Clearly, a right of privacy exists at some level, but it has not been made subject to the Constitution unless and until the people act to make it so.

Likewise, the Tenth Amendment simply states, "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."

The Constitution does not delegate to the Supreme Court (or any other branch of the U.S. government) any power to define, apply, or enforce whatever may be the right of privacy retained by the people. Similarly, the U.S. Constitution does not prohibit any state in particular, nor all states in general, from defining, applying or enforcing whatever the people of that state may choose as the right of privacy. Therefore, as the Tenth Amendment clearly provides, the power to define, apply or enforce a right of privacy is "reserved to the states respectively, or to the people."

By finding a constitutional right of privacy that is not expressly enumerated in the Constitution, the Supreme Court has "usurped" the roles and powers of the people, the Congress, and the state legislatures.

Shed of all semantical posturing, the critical issue becomes: Does the U.S. Constitution permit amendments by judicial fiat?

Some argue that the Constitution must be a "living, breathing instrument" and that it is right and proper for a majority of the Supreme Court to decide when, where and how the Constitution needs to be changed so as to be "relevant to modern times."

These folks operate on the premise that the Supreme Court is infallible and omnipotent, and that once the Supreme Court has spoken, there is no way to change its ruling.

I disagree with that view. But we as a society must decide which view should prevail.

On several occasions the Supreme Court has held that Congress does not have the power to change by legislation a prior Supreme Court decision. Similarly, nothing in the Constitution instills the president with the power to do so. Therefore, to remedy the "usurpation" by the Supreme Court as to a "right of privacy," we must go to the highest authority — the people.

Thus, the ultimate remedy to this controversy lies not with the individual members of the Supreme Court, but with the people whose will could be expressed in the form of a national referendum either affirming or rejecting the Supreme Court's actions.

Such a national referendum would be a win-win situation. For those who support the power of five justices to amend the Constitution as they see fit, it would afford the opportunity to demonstrate that a majority of the people in each of a majority of the states agree with the Supreme Court and that therefore, the right of privacy should be treated as a part of the Constitution, just as if it had been adopted by the amendment process in Article V.

On the other hand, for those of us who believe the Supreme Court has usurped the power of the people to consent or not to consent to a constitutional change, a national referendum would afford the opportunity to demonstrate that a majority of the people in each of a majority of the states reject the power of the Supreme Court to make constitutional changes.

The will of the people would then override any judicially fabricated constitutional amendment, and the right of privacy would not be treated as part of the Constitution.

This referendum could be called by Congress and placed on the November 2006 ballot for Congressional elections.

This controversy has been brewing for more than 30 years with little sign of resolution. The best thing would be to settle this controversy one way or another as quickly as possible by a vote of all of the people.

As a U.S. citizen, I respectfully petition the Congress to call a national referendum to permit the people to just say no or yes to the Supreme Court's usurpation of the power to amend the Constitution. I invite others who share my views to do likewise.

DeMoss practiced law in Houston for 34 years before being appointed in 1991 by former President George H.W. Bush to the 5th U.S. Circuit Court of Appeals, where he now serves.

[Conservative Goddess]

You can shout your opinions from the mountain top, roof top, counter top. It does not make it so.

The only way to challenge existing precedent is to present the SCOTUS with a case. They are prohibited from issuing advisory opinions (opinions issued on hypothetical facts) by article III.

Here's a very interesting link to the Annals of Congress....where the Framers were debating the Second Amendment. http://memory.loc.gov/cgi-bin/ampage?collId=llac&fileName=001/llac001.db&recNum=391

Where Mr. Sherman said: "....We do not live under an arbitrary Government, said he, and the States, respectively, will have the government of the militia, unless when called into actual service; besides, it would not do to alter it so as to exclude the whole of any sect, because there are men amongst the Quakers who will turn out, notwithstanding the religious principles of the society, and defend the cause of their country...."

Earlier in the same discussion.....

"....Whenever Governments mean to invade the rights and liberties of the people, they always attempt to destroy the militia, in order to raise an army upon their ruins...." Clearly the Founders were trying to protect against an unfettered Federal Government. Those are the only two chestnuts that jump out with respect to the Second Amendment. Unfortunately, the debate spanned just over a page, nearly all of which was devoted to the question of religious exception to the right to keep and bear arms.

With respect to the different language employed between the First and the Second......See the bottom left hand corner of page 757....which you should be able to access here: http://memory.loc.gov/cgi-bin/ampage?collId=llac&fileName=001/llac001.db&recNum=380 It doesn't appear that there is any reason to believe that we can read anything more into the language employed in the first amendment other than the wish to avoid the establishment of a federally sponsored religion.

[Conservative Goddess]

Thank You for the warm welcome.

The constructive innovations indeed.

"dead corpse" posted a link to the Annals of Congress....which document the debate with respect to the proposed BOR. This is exquisite reading.....and I repost it with credit to DC (even if he is, well.....nevermind).

http://memory.loc.gov/ammem/amlaw/lwaclink.html

[Tarkin]

This also happens to be the opinion of every single Supreme Court justice in history.

So you claim. Opinions do not prove your point.

Then name a single SCOTUS justice that claimed that the BoR directly applied to the states. The question presented in Barron was so easy even back then that the SCOTUS didn't even bother to listen to arguments in Barron.

The only thing that remotely applies is your pointing out that both Sections 9 and 10 mention Bills of Attainder & ex post facto laws. -- Which were mentioned separately because the bill of rights was not contemplated at that point.

So why did the framers of the Amendments depart from this "cautious language" and clear distinction between what applies to the general government and what applies to the states.

It is not necessary to add to the 2nd Amendment a line that "no state shall" infringe.

Of course it is necessary. If the 2nd Amendment was to apply to both the feds and the states it would state: "The right of the citizens to keep and bear arms shall not be infringed by the United States or by the several states." As I said there is always a clear distinction in the original text. There is no reason to ignore these distinctions in the Amendments (and the fact that the proposed Amendment which would explicitly apply the BoR to states was rejected, why would there be a need for such Amendment in the first place if the BoR was to apply to the states).

Because the they loved the power the phony "incorporation doctrine" gave them.

But the liberals (at least Douglas, Black, Murphy and few others) believed that the entire BoR applied to the states. They didn't want to "select" these rights (unlike Frankfurter, Harlan and Stewart, who generally believed in, lame as it may be, the "consience-shocking" standard). But even they (even though they wanted to apply the BoR completely and without any exception) did not claim that the BoR directly applied to the states. We both know you simply cannot defend your position, and leave it at that.

Well, I'm showing you SCOTUS opinions (if you want to I can send you to more - if Barron is not enough for you then check others: Walker v. Sauvinet, Hurtado v. California, Twining v. New Jersey, Snyder v. Massachusetts, Palko v. Connecticut, Bute v. Illinois, Wolf v. Colorado and literally hundreds of others, and each and every single one of them proves my point), federalist papers etc. You on the other hand have nothing to prove your point except your own opinion (which I might say with all due respect is not enough to prove your point). Don't you feel that it's rathere strange to claim that the whole world, all constitutional scholars, all Supreme Court Justices, and each and every single Supreme Court decision are wrong and you are right.

[Tarkin]

At least, that is how it is used throughout the Convention notes and the debates in the First Congress.

I believe that it has shown numerous times at this thread that it's not the case. Screw Marshall.

But don't you find it interesting that Marshall's opinion was accepted by every single Supreme Court Justice in history? Do you really think that all SCOTUS Justices in history are idiots, don't know the law, history of the Amendments etc.? Surely at least some of them had to know the TRUTH (unless of course you want tell us that all of them, starting with Joseph Story and ending with Clarence Thomas are liars who want to hide the REAL meaning of the Constitution)...

[Tarkin]

And also don't forget Madison's letters to Jefferson in which he lamented that he thought the lack of oversight on the state's ability to pass unjust laws that limit the rights of the individual was the most fatal flaw in the Constitution. And also don't forget his Introduction of the BoR:

I do conceive that the constitution may be amended; that is to say, if all power is subject to abuse, that then it is possible the abuse of the powers of the General Government may be guarded against in a more secure manner than is now done, while no one advantage arising from the exercise of that power shall be damaged or endangered by it.(...)

I am inclined to believe, if once bills of rights are established in all the States as well as the federal constitution, we shall find that although some of them are rather unimportant, yet, upon the whole, they will have a salutary tendency.(...)

But whatever may be the form which the several States have adopted in making declarations in favor of particular rights, the great object in view is to limit and qualify the powers of Government, by excepting out of the grant of power those cases in which the Government ought not to act, or to act only in a particular mode.(...)

The General Government has a right to pass all laws which shall be necessary to collect its revenue; the means for enforcing the collection are within the direction of the Legislature: may not general warrants be considered necessary for this purpose, as well as for some purposes which it was supposed at the framing of their constitutions the State Governments had in view? If there was reason for restraining the State Governments from exercising this power, there is like reason for restraining the Federal Government.(...)

I should therefore wish to extend this interdiction, and add, as I have stated in the 5th resolution, that no State shall violate the equal right of conscience, freedom of the press, or trial by jury in criminal cases; because it is proper that every Government should be disarmed of powers which trench upon those particular rights.(...)

As you can see Madison wanted to extend these particular restrictions to the States (but only THESE!). This idea was (as we know) rejected. If even Madison accepted the distinction between restrictions on state and federal government, than maybe Marshall was right after all. If you don't believe Marshall (and all other Supreme Court Justices and constitutional scholars) than maybe you should believe the guy who actually drafted the Amendments.

[dirtboy]

"The right of the citizens to keep and bear arms shall not be infringed by the United States or by the several states."

I can take that the other way. The First clearly was meant to apply only to the feds, since it started with "Congress shall pass no law..."

The Second did not have that language. Therefore, it should have applied to all levels of government, not just the feds.

[robertpaulsen]

"I will exercise it any dang time I feel like exercising it."

I'm familiar with your attitude -- the dope smokers use it all the time.

Do what you will. And since your right to use a gun is not a God-given inalienable one, don't bitch when you're arrested.

[Tarkin]

But that's simply not the case. Read Barron or any other SCOTUS opinion which debates the BoR. General language applies to the federal government. Only specific language applies to the states (as I already said billion times: a general provision "No bill o attainder or ex post facto law shall be passed" applies to the feds, whereas "No state shall pass any bill of attainder or ex post facto law" applies to the states, accordingly general provisions of the BoR apply to the feds). That's why Madison wanted to add another Amendment to the BoR:

"No State shall violate the equal right of conscience, freedom of the press, or trial by jury in criminal cases"

even though the general language of the VI Amendment already guaranteed trial by jury, but of course only with respect to the federal government (even though it was as broad as it gets). The Amendment was of course defeated. If the framer of the BoR and all SCOTUS Justices understood this clear distinction than I don't think we should question it.

P.S. Nice tagline :-).

[don asmussen]

That was just Marshall's opinion. It did not prove your point.

This also happens to be the opinion of every single Supreme Court justice in history.

So you claim. Opinions do not prove your point.

Then name a single SCOTUS justice that claimed that the BoR directly applied to the states.

I don't need to. Article VI makes that point for me.

The question presented in Barron was so easy even back then that the SCOTUS didn't even bother to listen to arguments in Barron.

Yet you cannot deny, Barron was 'corrected' immediately after the war by the 14th. Or do you?

In every restriction on state power, words are used, which directly express the intent to restrict the states. Whenever the Constitution limits state power it explicitly says "No state shall" etc. etc. Whenever it uses general language it restricts the federal government.

Simply not so. -- Article VI expressly says that all of the Constitution is our supreme law, and that all of the States are bound by it, "notwithstanding" any State laws "to the Contrary".

Of course but it has nothing to do with the interpreation of the language used in the Constitution.

Article VI proves my point that State powers & laws are subject to the Constitutions supreme law. -- It is not necessary to add to the 2nd Amendment a line that "no state shall" infringe.

Of course it is necessary. If the 2nd Amendment was to apply to both the feds and the states it would state: "The right of the citizens to keep and bear arms shall not be infringed by the United States or by the several states."

You're simply ignoring the fact that Article VI makes that addition unnecessary.

As I said there is always a clear distinction in the original text. There is no reason to ignore these distinctions in the Amendments (and the fact that the proposed Amendment which would explicitly apply the BoR to states was rejected, why would there be a need for such Amendment in the first place if the BoR was to apply to the states).

Why? Because Madison wanted to clarify the issue. The 'states rights' contingent did not.

I claim that whenever we have general restrictions (like the ones in the BoR or Section 9) they apply only to the federal government. This interpretation is supported by the entire case law and the Federalist papers.

The only thing that remotely applies is your pointing out that both Sections 9 and 10 mention Bills of Attainder & ex post facto laws. -- Which were mentioned separately because the bill of rights was not contemplated at that point.
Is it your point that they should have explained that bit of reasoning when writing the BOR's to spare us confusion?

So why did the framers of the Amendments depart from this "cautious language" and clear distinction between what applies to the general government and what applies to the states.

Because there was opposition to the BOR's from the 'states rights' contingent; -- and seeing that the issue was already covered by Article VI, there was no need to be more specific.

Well, you are confused.

Not really. You can't refute my reasoning above, so you're reduced to repeating your 'Barron' opinion bit:

Well, I'm repeating it because you're ignoring obvious facts. If Barron is so wrong and the BoR directly applied to the states than why no single USSC justice (even the wackiest liberals like Earl Warren, William Brennan or William O. Douglas never went that far) ever questioned it?

Because the they loved the power the phony "incorporation doctrine" gave them.

But the liberals (at least Douglas, Black, Murphy and few others) believed that the entire BoR applied to the states.

You just above claimed they never questioned Barron; -- which way would you have it?

They didn't want to "select" these rights (unlike Frankfurter, Harlan and Stewart, who generally believed in, lame as it may be, the "consience-shocking" standard). But even they (even though they wanted to apply the BoR completely and without any exception) did not claim that the BoR directly applied to the states.

As I said, their love of the incorporation power explains why. You just don't want to accept political realities.

There is no reason to believe that the framers of the Amendments departed from the clear words of Article VI which bound States to support all of our supreme law.

Of course they are bound to support our supreme law (as long as it applies to them).

Read Article VI. It undeniably applies.

If X Section states that: "No state shall..." they are definetly bound to support it. If Section IX or the BoR uses general language they can ignore it because it does not apply to them. You are also bound to support law but you can easily ignore the parts which don't apply to you. Again if everything applies to both the states and the feds than why is their a clear distinction between restrictions on the federal government (Section 9 - "No bill of attainder or ex post facto Law shall be passed") and restrictions on the states (Section 10 - "No state shall (...) pass any Bill of Attainder, ex post facto Law")?

You're simply repeating some of your previous points.

P.S. I'd like to finish our discussion because it seems to be quite pointless at this point. You're unwilling to accept my reasoning (even though I'm right and you're wrong ;-)) and I'm definetly unwilling to accept yours.

Feel free to declare yourself "right" and leave the field.. We both know you simply cannot defend your position, and leave it at that.

Well, I'm showing you SCOTUS opinions (if you want to I can send you to more - if Barron is not enough for you then check others: Walker v. Sauvinet, Hurtado v. California, Twining v. New Jersey, Snyder v. Massachusetts, Palko v. Connecticut, Bute v. Illinois, Wolf v. Colorado and literally hundreds of others, and each and every single one of them proves my point), federalist papers etc.

Lordy, -- but you do go on.. I guess you think you can bury me under repetitive loads of opinions.. Opinions do not trump Article VI.

You on the other hand have nothing to prove your point except your own opinion

Article VI proves my point. -- And ignoring it as you do is becoming very amusing.

(which I might say with all due respect is not enough to prove your point). Don't you feel that it's rathere strange to claim that the whole world, all constitutional scholars, all Supreme Court Justices, and each and every single Supreme Court decision are wrong and you are right.

Hype, - "all constitutional scholars" do not share your views..

Our Constitutions 'presumption of liberty' is right.. -- You ever bother to read Barnetts book?

[Little Ray]

The purpose of the Constitution is to establish the powers of the Federal Government, NOT to enumerate the rights of citizens. The fact that a "right to privacy" is not enumerated is irrelevant.
Unfortunately, this got lost somewhere along the way.

And the "right to privacy" has nothing to do with abortion, which is covered under the Fifth Amendment which says that no one shall not be deprived of Life, Liberty or Property without due process of law...

[dirtboy]

But that's simply not the case. Read Barron or any other SCOTUS opinion which debates the BoR.

And that was the first of many wrong-headed rulings by SCOTUS. There is a clear difference in the language between the First and the Second. And SCOTUS ignored those, showing yet again that words cease to have concrete meaning once you get judges involved.

I'm not disagreeing that what you say is reality. What I am saying is that the direction SCOTUS has taken was wrong and remains wrong to this day.

[Dead Corpse]

KMA.

Bare it and share it Sweetheart. Until then...

"The great object is, that every man be armed. [...] Every one who is able may have a gun." -Patrick Henry

Between that and the Debates in the Constitutional Convention and the First Congress, it is quite clear. You are WRONG. "Shall not be infringed" means by anyone. Elsewhere in the Constitution, such as the First Amendment, they specify Congress. Elsewhere they specify States. The Second is General.

You keep propping up the fiction being used to slowly strip us of our RKBA. Why is that? Closet hoplophobe? Certain classes of "icky people" you would prefer were helpless even if they are otherwise law abiding? Maybe you are a wanna-be dominatrix and like the idea of holding the whip-hand.

Piss off. We don't need you.

[jwalsh07]

"We the people of the United States, in order to form a more perfect union, establish justice, insure domestic tranquility, provide for the common defense, promote the general welfare, and secure the blessings of liberty to ourselves and our posterity, do ordain and establish this Constitution for the United States of America."

Evidently "the people" accomplished "securing the blessings of liberty to ourselves and our posterity" by ceding their rights to the states. So sayeth the great John Marshall.

[Dead Corpse]

I believe that it has shown numerous times at this thread that it's not the case.

No. What you continue to reiterate is the current legal FICTION that runs contrary to how things were originally set up. This legal fiction is also in direct contravention to the express language of the Constitution. Judicial opinion notwithstanding.

The SCOTUS cannot have more power than is given to it by the same document that empowers the legislature and the executive. They can no more infringe on that right than any other. They sure as hell cannot re-write entire sections of the Constitution to fit their own quest for legacy and power.

Which is what you are advocating they do. Law by judicial fiat. That you think this is a good thing because it has become custom speaks volumes.

If you don't want your Rights, no one is going to force you to exercise them.

[Dead Corpse]

Madison wanted redundancy and even MORE limitations on local government for things covered under the 9th and 10th Amendments. Your attempt at prevarication is noted, yet pitiful.

[Conservative Goddess]

Piffle.

You can say that "Shall not be infringed" applies to all...and without support.........it means NOTHING. Nada....zip......zero.

Show me proof in the founding documents that the Second Amendment was to apply to anyone other than the Feds.

I've shown you multiple citations to the contrary......you've shown none.

Wishing and wanting doesn't make it so.

[bigsigh]

We have a not of rights which are not enumerated in the constitution.

[Mojave]

And that was the first of many wrong-headed rulings by SCOTUS.

But it is universally understood, it is a part of the history of the day, that the great revolution which established the constitution of the United States, was not effected without immense opposition. Serious fears were extensively entertained that those powers which the patriot statesmen, who then watched over the interests of our country, deemed essential to union, and to the attainment of those invaluable objects for which union was sought, might be exercised in a manner dangerous to liberty. In almost every convention by which the constitution was adopted, amendments to guard against the abuse of power were recommended. These amendments demanded security against the apprehended encroachments of the general government--not against those of the local governments.

Historical facts versus ignorant ranting. No contest.

[Mojave]

I've shown you multiple citations to the contrary......you've shown none.

He has been challenged to produce even one for years. He has never risen to the challenge.

[bigsigh]

and a lot of rights