- The SCOTUS has jurisdiction...period.
So, did the SCOTUS have jurisdiction in 1972 to rule the death penalty unconstitutional?
Posted on 02/03/2006 1:05:52 PM PST by FerdieMurphy
Keep laughing.
171 posts? Actually it's still alive and running with you and that Wildcat Republican being the only two who ridiculed the posting.
So, did the SCOTUS have jurisdiction in 1972 to rule the death penalty unconstitutional?
Get back to me when you figure out how to properly frame that question.
What speeches they made makes no difference, we don't govern according to speeches or intent, we govern according to what the Constitution says. It says that Amendments apply to the States, and that the Constitution is the supreme law of the land:
This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.
Does it now? Then explain how certain cities have banned handguns. If the Constitution, and the Bill of Rights, applies to all citizens of the respective states, then those bans are illegal. But these bans have been tested in courts and have been upheld.
Which means for the simple among us, that the 14th Amendment has not yet 'incorporated' the 2nd Amendment. Ergo, the intent of the 14th Amendment was not meant to include the Bill of Rights, else it would have done so for the 2nd Amendment from the beginning.
Your question is bizarre.
It's kind of arguing that making murder illegal has had no affect, because murders are still being committed.
The Second Amendment couldn't be clearer...the right of the people shall not be infringed.
The SCOTUS has jurisdiction, how they will rule WHEN Proposition H reaches them is a separate question.
Well, contrary to incorporation nonsense, it has in certain municipalities. Some cities have banned handguns, 'assault' weapons, etc. Which, according to you, shouldn't be happening as the 14th Amendment supposedly incorporated the Bill of Rights to the states at the time of its inception.
Of course as this never happened, the 2nd Amendment applies only to relationship of the citizens of the respective states to their national government. Local governing bodies have the right to ensure public safety as they see fit, even if it means banning certain firearms. Do I agree with it? No. Do I see and understand under our Constitution they have that right? Of course
The SCOTUS has jurisdiction, how they will rule WHEN Proposition H reaches them is a separate question.
I am not familiar with Proposition H only existing tried bans on firearms. However, if the new Justices are originalist as Bush claims, they will rule they have no jurisdiction over the case (in point agree with Barron) and return the case to a state court. Whatever the ruling except a separate dissent or agreement stating this fact coming from the one conservative originalist on the bench, Justice Thomas
This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.
-185-
billbears:
Does it now? Then explain how certain cities have banned handguns. If the Constitution, and the Bill of Rights, applies to all citizens of the respective states, then those bans are illegal.
But these bans have been tested in courts and have been upheld.
Which means for the simple among us, that the 14th Amendment has not yet 'incorporated' the 2nd Amendment. Ergo, the intent of the 14th Amendment was not meant to include the Bill of Rights, else it would have done so for the 2nd Amendment from the beginning.
-186-
~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~
Well done Luis. -- You've highlighted once again the absurdity of the 'States Rights' position.
In order to give a State the power to prohibit, this position necessitates ignoring the basic principle our Republic was founded upon, -- individual liberty.
States are prohibited certain 'powers' by the Constitution; "-- any Thing in the Constitution or Laws of any State to the Contrary notwithstanding. --"
This "simple" truth cannot be denied, billbears. -- You are reduced to arguing ~for~ gun control in order to support your prohibition theory.
States are prohibited certain 'powers' by the Constitution; "-- any Thing in the Constitution or Laws of any State to the Contrary notwithstanding. --"
This "simple" truth cannot be denied, billbears. -- You are reduced to arguing ~for~ gun control in order to support your prohibition theory.
The powers delegated by the proposed Constitution to the federal government, are few and defined. Those which are to remain in the State governments are numerous and indefinite. The former will be exercised principally on external objects, as war, peace, negotiation, and foreign commerce; with which last the power of taxation will, for the most part, be connected. The powers reserved to the several States will extend to all the objects which, in the ordinary course of affairs, concern the lives, liberties, and properties of the people, and the internal order, improvement, and prosperity of the State.--Federalist 45
And you are reduced to arguing against the intent of not only the Framers, but the 'Father of the Constitution'. Well done, tpaine. You've completed the argument of an ardent statist and betrayed your 'libertarian' moniker.
This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.
billbears argues against Article VI and the 14th:
the intent of the 14th Amendment was not meant to include the Bill of Rights, else it would have done so for the 2nd Amendment from the beginning. -186-
Article VI makes it clear, "from the beginning" that the BOR's is part of the Law of the Land, bill.. --- In order to give a State the power to prohibit, your position necessitates ignoring the basic principle our Republic was founded upon, -- individual liberty.
States are prohibited certain 'powers' by the Constitution; "-- any Thing in the Constitution or Laws of any State to the Contrary notwithstanding. --"
This "simple" truth cannot be denied, billbears. -- You are reduced to arguing ~for~ gun control in order to support your prohibition theory.
billbears then quotes Federalist 45 in an attempt to justify gun prohibitions:
-- And you are reduced to arguing against the intent of not only the Framers, but the 'Father of the Constitution'. Well done, tpaine. You've completed the argument of an ardent statist and betrayed your 'libertarian' moniker.
I'm arguing that neither fed, - nor state or local governments ever were granted the power to prohibit arms.
You're arguing they were. -- That's "statism" bill..
You just can't admit it, can you?
The cool thing about arguing "intent" rather than the actual text of the Constitution is that it removes the reality of what the Constitution says from the debate, and centers it on a position that can be shifted and manipulated according to ideology.
Tribe argues in favor of gun control based on the notion that the Founder's intent was to make certain that citizens were able to form an armed militia to defend the Union/State when needed, that the word "regulated" proves that the intent of the Founders was to provide for the defense of the Union/State via private gun ownership, and that the existence of a State militia vis a vis law enforcement and National Guard units satisfies the need of the State for a "well-regulated militia" and consequentially the security of the State.
So, since the need of a State was satisfied, possession of firearms by the population was not required and the State had the right to outlaw private gun ownership.
Having said all that, I do believe that there are things which fall within a State's jurisdiction to regulate and are beyond the scope of the Federal government...abortion would be one.
How can I make that argument?
I don't believe that the right to abort a fetus is a Constitutional right.
Does the Constitution name the Federalist papers as being the Supreme Law of the Land?
I'm arguing that neither fed, - nor state or local governments ever were granted the power to prohibit arms.
Sigh, again I would refer you as well to the Barron case of 1833 as an example. Look to what Marshall stated in his opinion
The question thus presented is, we think, of great importance, but not of much difficulty. The Constitution was ordained and established by the people of the United States for themselves, for their own government, and not for the government of the individual States. Each State established a constitution for itself, and in that constitution provided such limitations and restrictions on the powers of its particular government as its judgment dictated. The people of the United States framed such a government for the United States as they supposed best adapted to their situation and best calculated to promote their interests. 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.If these propositions be correct, the fifth amendment must be understood as restraining the power of the General Government, not as applicable to the States. In their several Constitutions, they have imposed such restrictions on their respective governments, as their own wisdom suggested, such as they deemed most proper for themselves. It is a subject on which they judge exclusively, and with which others interfere no further than they are supposed to have a common interest.
The counsel for the plaintiff in error insists that the Constitution was intended to secure the people of the several States against the undue exercise of power by their respective State governments, as well as against that which might be attempted by their General Government. It support of this argument he relies on the inhibitions contained in the tenth section of the first article. We think that section affords a strong, if not a conclusive, argument in support of the opinion already indicated by the court. The preceding section contains restrictions which are obviously intended for the exclusive purpose of restraining the exercise of power by the departments of the General Government. Some of them use language applicable only to Congress, others are expressed in general terms. 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. In addition to the general arguments furnished by the instrument itself, some of which have been already suggested, the succeeding section, the avowed purpose of which is to restrain State legislation, contains in terms the very prohibition. It declares, that "no State shall pass any bill of attainder or ex post facto law." This provision, then, of the ninth section, however comprehensive its language, contains no restriction on State legislation.
This applied not only to the Fifth but all the Amendments
I'm arguing that neither fed, - nor state or local governments ever were granted the power to prohibit arms.
However as Marshall points out
The Constitution was ordained and established by the people of the United States for themselves, for their own government, and not for the government of the individual States. Each State established a constitution for itself, and in that constitution provided such limitations and restrictions on the powers of its particular government as its judgment dictated.Do I believe the states should have in their separate Constitutions the right to bear arms? Yes. However, from Madison's own words, do I know the States had the right to 'powers' that would 'extend to all the objects which, in the ordinary course of affairs, concern the lives, liberties, and properties of the people'? Without a doubt. As that was the original intent of the Framers
It's not statism if I am willing to accept the words of the Framers and their intent. Do I agree with the limitations inherent in the Constitution? To protect the separate and sovereign states from the federal government, yes. Do I understand those same limitations may have caused issues within the states? Yes, which is why the Framers also intended us to be focused on the state legislatures instead of Washington DC
Whe it comes to the Constitution, the intent is clear to anyone who reads the words, and muddled up to anyone who wishes to draw a conclusion contrary to what it clearly states.
Are you a citizen of The United States of America, or a citizen of North Carolina?
The original intent of the framers is neither here nor there. It is "the peoples" document and it is the original meaning of the Constitution viewed from the perspective of the people that is important.
His Highness Justice Marshall acknowledged as much in McCulloch(sp).
Now unless you are prepared to sit there and tell me that a guy on the farm in Ole Virginny read the second amendment as meaning that the federal government could not take his guns but his state could, I think you and Marshall are wrong.
There are two choices here, either "the people" meant exactly what they said or they were hoodwinked by the Kings.
Most of the co-sponsors said it explicitly, and no one denied it.
After researching that far, one could assume that was the intent. However two issues arise. That sentiment was not the majority
Yes it was.
and if you look to the speeches of these same men to their constituents back in their home (as reported by local papers of the time) they stated the exact opposite, one even going as far as to state the 14th would only apply to Southern states and not the more 'enlightened' northern states.
I doubt it very much. Source please.
This holding in New York States Supreme Court predates Barron by about 10 years.
It gives us a nice glimpse of what "the people" thought they were ratifying.
Disclaimer: Opinions posted on Free Republic are those of the individual posters and do not necessarily represent the opinion of Free Republic or its management. All materials posted herein are protected by copyright law and the exemption for fair use of copyrighted works.