Posted on 08/03/2006 7:03:58 AM PDT by steve-b
It is interesting that, to the framers and opponents of the 14th amendment, the right of the individual to keep and bear arms WAS incorporated!
The Fourteenth Amendment and the Right To Keep and Bear Arms: The Intent of the Framers, by Stephen P. Halbrook, Ph.D., attorney and
counselor at law
Why do you downplay the importance of the phrase "citizens of the United States"? The language of the Fourteenth Amendment clearly applied that status to ME, since I was born in the US. That amendment protects me from any state enforcing a law which abridges the privileges and immunities of all citizens of the United States.
All that is missing is for the Supreme Court to recognize the fundamental nature of the right to keep and bear arms by "incorporating" the Second Amendment, and then the state of Kalifornia will no longer be able to violate my right to keep and bear arms.
How do you make the case that the Supreme Court should not "incorporate" the Second Amendment?
Think Che Guevera, Kmer Rouge, and the SLA. Armed "liberals" are actually hard core socialists or communists. They tend to be "true believers" who convert "non-believers" at the barrel of a gun.
Mark
An armed liberal is a hypocrite!
It took hundreds of postings in a thread many months ago to get as far as the questions that I asked in my posting 141.
RP, perhaps unintentionally, created an ambiguity regarding whether he was stating his own opinions or the decisions of various courts. I think we all can recognize that the court cases regarding the right to keep and bear arms are a tangled mess.
The confusion is a tremendous asset to the anti-gunners because they can make virtually any claim they want and find some unrefuted decision somewhere to back them up.
The Supreme Court's Miller decision, for example, is actually extremely pro-individual rights. It created a ridiculous test regarding whether a short-barreled shotgun is useful to a well-regulated militia, but it in no way challenged Miller's standing to bring the case nor his right to possess such a weapon if it was useful to a militia.
I have never received from somebody knowledgeable in the law a good explanation of the actual legal ramifications of the Miller decision. The case was reversed, which means the dismissal of the charges by the original court no longer was valid, and the case was remanded, presumably back to that original court.
What I haven't been able to make sense of is what the original court would then have done if Miller had still been prosecuted. I would presume that the judge would have instructed the prosecution that it had the burden to demonstrate that the weapon WAS NOT useful to a militia.
The alternative would be to believe that the Supreme Court was relegating the Second Amendment to the status of an affirmative defense, requiring that the prosecution prove nothing. Despite Miller, I believe that most courts would probably not admit evidence showing the usefulness of a firearm to a militia as part of a defense, despite the clear meaning of Miller.
You might enjoy this on Miller - "CAN THE SIMPLE CITE BE TRUSTED?: LOWER COURT INTERPRETATIONS OF UNITED STATES V. MILLER AND THE SECOND AMENDMENT by Brannon P. Denning"
http://www.guncite.com/journals/dencite.html
I only saw one question. I responded to it -- I said they do not.
"Perhaps you can clarify for the rest of us whether you believe that the failure to "incorporate" the Second Amendment is judicial error."
I believe that those amendments that were incorporated was judicial activism. The 14th was never meant to incorporate the Bill of Rights. Hell, nothing changed for 100 years after the 14th was ratified!
"Why do you downplay the importance of the phrase "citizens of the United States"?"
Because it was only meant to give the newly freed slaves some basic rights.
"The language of the Fourteenth Amendment clearly applied that status to ME, since I was born in the US. That amendment protects me from any state enforcing a law which abridges the privileges and immunities of all citizens of the United States."
Yes, but those privileges and immunities are basic and limited (things like the freedom to travel from state to state and the freedom to enter into contracts and stuff like that). Your key rights were protected by your state.
"How do you make the case that the Supreme Court should not "incorporate" the Second Amendment?"
Well, at least one court has ruled that the second amendment doesn't protect concealed carry. So, if Congress wished, they could pass a law banning concealed carry and it would then apply to every state. You want that?
Gee, maybe some future liberal U.S. Supreme Court will decide that handguns do not qualify as "arms" since the common Militia soldier didn't carry one. Maybe they'll decide that "keep" means "keep in a state armory".
Yep. Lets have five liberal justices defining the second amendment for every state and every citizen. Like they defined "privacy" to include the murder of the unborn and applied that to every state in the union.
That's how I make the case. History.
The 14th amendment was ratified in 1868. In 1875, in United States v. Cruikshank, 92 US 542, the U.S. Supeme Court concluded, "The second amendment declares that it shall not be infringed; but this, as has been seen, means no more than that it shall not be infringed by Congress. This is one of the amendments that has no other effect than to restrict the powers of the national government ..."
Now, please explain what you are talking about.
Yep, an aging Marshall gave us an erroneous opinion which tried to compromise the split in the Union over slavery & 'states rights':
"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 US Constitution also placed limitations on the States constitutions and laws. -- Article VI is the primary one.
"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."
They did, in Article VI. -- Marshall ignores its clear words on the supremacy of our Law of the Land.
"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.
Encroachments from local gov't were covered, -- by Article VI.
In compliance with a sentiment thus generally expressed, to quiet fears thus extensively entertained, amendments were proposed by the required majority in congress, and adopted by the states. These amendments contain no expression indicating an intention to apply them to the state governments. This court cannot so apply them."
Marshall totally ignores that Article VI contains the application to States, not the first nine Amendments.
He also ignores the 1Oth, which specifies that some powers are prohibited to States, but reserved to the people. -- The right of the people to keep and bear arms shall not be infringed --- is one such prohibition.
What say you paulsen? Can you even attempt to address the issue?
There's your clue, hotshot. Freedom of speech, the same as would be granted BY THE STATES to their own citizens.
Freedom of speech was defined and protected by each state as was the RKBA.
Even at the time of ratification, those who wrote the Constituion were of veried minds about its powers and extent. Marshall, obviously, was one of those who wanted States to retain ALL power with no real set of mutual Rights protected from ANY encroachment.
Again, we've had this same discussion before. You are no more correct in your assumptions now than you were then.
What I find amusing is that you fight so hard against a PROTECTION for a Right. Silly little troll...
You have yet to show where in the Constitution the passing of an Amendment requires "incorperation" by a Judge.
Robert, I thought that was obvious. What aspect needs clarification?
How do you make the case that the Supreme Court should not "incorporate" the Second Amendment?"
Well, at least one court has ruled that the second amendment doesn't protect concealed carry.
Court opinions are not 'rules' -- they are not the 'law of the land' paulsen.
So, if Congress wished, they could pass a law banning concealed carry and it would then apply to every state.
Another paulsen howler.. He assumes Congress can pass an unconstitutional infringement because of a court "ruling".
You want that?
I want you to support your delusions..
Gee, maybe some future liberal U.S. Supreme Court will decide that handguns do not qualify as "arms" since the common Militia soldier didn't carry one. Maybe they'll decide that "keep" means "keep in a state armory". Yep. Lets have five liberal justices defining the second amendment for every state and every citizen. Like they defined "privacy" to include the murder of the unborn and applied that to every state in the union.
Rant on. USSC opinions & 'definitions' do not change our Constitution.
That's how I make the case. History.
Your own pitiful take on our history. -- Ludicrous.
That is, you do not believe that the Second Amendment, or any amendment, should be incorporated.
Also, you do not believe that the right to keep and bear arms is among those "privileges and immunities" protected by the Fourteenth Amendment, despite the use of that phrase in one of the most significant Supreme Court decisions in our country's history.
We have accomplished a great deal because we can see quite plainly that we differ on these two points.
You further wrote: "So, if Congress wished, they could pass a law banning concealed carry and it would then apply to every state. You want that?"
I fail to see the logic in claiming that applying the Second Amendment to the states will provide the Congress of the United States with additional power to infringe the right to keep and bear arms. Whatever the Second Amendment means, it already limits the power of the federal government. Applying the Second Amendment to the states would not change in any way the constraints on Congress.
Perhaps you can provide an example of any incorporated "right" resulting in a reduction of Congress' limitations regarding that right.
Why do you suppose the Dred Scott decision mentioned the right to carry arms along with the right to freely travel? And yet you would claim that one is basic and fundamental and the other is not? What level of significance do you attach to the right to keep and bear arms? Is this not the mechanism by which oppressed people can abolish tyrannical governments? Just what do you believe the Second Amendment means?
While I certainly agree with you that liberals will twist any legal situation to suit their own ends, I do not fear incorporation of the Second Amendment.
And other courts can decide that the Second Amendment does not protect "open carry".
Which one do you suppose is right? If they are both right, then it should be possible to outlaw the bearing of arms altogether. That would not seem to be in accord with the Second Amendment.
The alternative is to recognize that the Second Amendment is silent on the fashion of bearing of arms. The limitations on the right need be no more than that needed to protect the rights of other people. I just don't share your concerns here.
So which did he live to be...98 or 91?
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