Posted on 03/20/2007 4:04:15 PM PDT by neverdem
On March 9, the Circuit Court of Appeals for the District of Columbia issued a groundbreaking ruling. It declared in a 2-1 decision that the Washington, D.C. ban on handgun possession in private homes, in effect since 1976, is unconstitutional. The court reached this conclusion after stating unequivocally that the Second Amendment's right to keep and bear arms applies to individuals and not just "the militia."
It is quite likely that this ruling will be appealed to Supreme Court, which hasn't offered an interpretation of the Second Amendment since 1939.
Appalled by the District Court ruling, the Washington Post editorialized that it will "give a new and dangerous meaning to the Second Amendment" that, if applied nationally, could imperil "every gun control law on the books."
The Post accused the National Rifle Association and the Bush administration's Justice Department of trying "to broadly reinterpret the Constitution so as to give individuals Second Amendment rights."
But actually, to argue that the Second Amendment does not apply to individuals is a reinterpretation of the Constitution and the original intent of the founders.
One of the major concerns of the anti-Federalists during the debate over the Constitution in 1787 was the fact that the new document lacked a Bill of Rights. In order to get the Constitution ratified, the framers promised to pass a Bill of Rights during the First Congress as amendments to the Constitution. The Second Amendment with its right to keep and bear arms became part of that package.
What was the original intent of the Second Amendment? Was the right to bear arms a collective right for militias, or an individual right for all citizens? The "Dissent of the Pennsylvania Minority," from the debates of 1787, is telling. This document speaks...
(Excerpt) Read more at realclearpolitics.com ...
You said in the post I responded to that gun laws were none of the Federal government's business.
I've read it a dozen times. You think the U.S. Supreme Court is going to read that, slap their collective foreheads and announce, "Of course! Why didn't we see that! The sentence structure, the placement of the commas, the use of capital letters -- why that grammar just screams an individual right!"
I wouldn't hold my breath.
"It's not that difficult."
Ah. You think I'm not answering it because it's difficult? No. I'm not answering it until you rephrase it to look more like the second amendment.
Can you? Or are you only able to cut and paste your challenges?
>that the military or the militia don't bear arms concealed,<
Military and militias wanted all to see the various weapons that their men carried. They wanted to instill fear in those who would challege them.
>that is the practice of highwaymen and other ner do wells.<
Recalling the various handgun collections that I have seen during my adult life, I long ago determined that a great many concealable handguns were meant for ladies to carry in their purses. Specifically, I am thinking of the two shot derringers that were engraved with floral designs and had pretty sculpted pearl handles.
Quite a few of Iver Johnson and H&R's original revolvers were almost too small to be held in a mans hand. The grip was too small.
Harrington and Richardson, Hopkins and Allen, Iver Johnson, and Forehand and Wadsworth all made some dainty firearms.
They wouldn't have been manufactured in such great numbers if it were illegal to be carried concealed.
Please don't refer to our foremothers as n'er do wells.
It's not your call.
You say YOU want an M-4. What does your state want you to have as an armed Militia member? Do they want their citizens to keep and bear M-4s?
I mean, if they do, and if the federal government will not allow you to obtain one, then your state may take the federal government to court as violating the second amendment's protection to form a state Militia.
Betty,
He will not answer nor will he admit that contrary to what some courts have ruled that 2A does 'say what it means and mean what it says' in the simple, plain, easily understandable English in which it is written. So proved by the link I supplied, by many others here, and recent court rulings.
RP is simply a person unable to comprehend the obvious and refuses to give credence to any argument that does not support him no matter how well written or how well supported it might be.
Do your sanity a favor and ignore him as I wish all others would do.
I said how the state decides to organize and run their state Militia is none of the federal government's business. I said if the state wants you to take your arms home or store them in an armory, that's up to the state.
That may be want many of us want to believe but it isn't so. Madison himself indicated that the Bill of Rights only applied to the federal government. In his initial speech he said,
"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.
Why would Madison propose such a thing if he thought that the 1st, 4th and 5th amendments applied to the states as well?
The bottom line is that the framers screwed up when they crafted the 2nd amendment. The way that it is worded makes it very easy for any reasonable person to see it any way they want.
To be fair, the due process clause of the 14th amendment wasn't around for those 150 years.
Was there a Federal militia? No. The individual States had militias therefore the 2nd is bound to the states also.
The fact of the matter is that many cases during that 150 years made it to the SCOTUS during that time so it's not like it took 150 years for someone to recognize a problem.
The fact of the matter is that the Constitution, as written, only applied the Bill of Rights to the federal government and not the states. States were free during this time to virtually anything they wanted regarding personal liberties.
True, but that has nothing to do with my statement.
The poster claimed that the Supremacy Clause applied the Bill of Rights to the states. The Bill of Rights was ratified in 1791.
Most of the Bill of Rights were incorporated in the 1940's, 150 years later.
...and you are saying what? That even though these statements (which are given here implying that it was common practise but without documentation so I am accepting them for the sake of the arguement) go against the clear language of the Constitution, that it was a good thing?
Did our nation immediately, upon adopting the constitutiopn, change over to fully complying with it? or did it take time? Clearly, it took time and we are better for it.
That does not mean that violating the constitution is a good, or proper thing...it just means that that is the way it rolled out.
Based on your statement, and your reasoning as you are apllying it to the second amendment, you could equally then apply that same reasoning to justify today that whole list of items that you just mentioned. Would you? Do you?
If not, then my statement to you is that you cannot have it both ways. If you would, well, then at least you are consistant, but, at least from my own perspective and IMHO, still wrong.
Amen, and well said.
I noticed that after I posted to you. I agree that tt is very clear that the Suupremacy clause has nothing to do with this matter since the Bill of Rights do not apply to the states anyway.
The Barron v Baltimore decision in 1833 (written by John Marshall) makes this quite clear. Part of Marshall's finding;:
"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 (federal) government-not against those of the local governments. 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."
Those disagreeing with the contention that the Bill of Rights were not originally meant to be applied to the states should read Marshall's decision - it is quite short (about 5 paragraphs) and easy to to understand.
Maybe my terminology was not clear. When I say "applied" I meant it to mean that the rights in the 1st, 2nd, 4th, 5th, applied to the people, not the federal government. To put it another way, if it were to be viewed as a limit on powers, then that limit would be applied to the federal government, meaning that the federal government could not infringe on the rights of the people as laid out in the Bill of Rights.
Then, taken with the supremacy clause in Article VI, and with the full faith and credit clause about relations between the states, the states cannot infringe on the rights retained by the people as laid out in the Bill of Rights.
-PJ
No, that it was a constitutional thing.
The Founders created a federated republic, meaning that each state was autonomous as to the rights they protected and the laws they wrote. A citizen was free to move to another state if they were unhappy with either.
If a state wanted to prohibit flag burning they could, without some centralized government telling them they couldn't because it was protected "speech". It that a bad thing? If a state allowed a prayer at high school graduations, is that a bad thing?
The 14th amendment destroyed federalism. The Bill of Rights now mean what five justices say it means. If they say nude dancing is "protected speech", but political ads 60 days before an election are not, then all 50 states must comply.
And you want these same justices to define your second amendment rights?
No, it is used as evidence to show that from the beginning that the states were not bound by the Bill of Rights.
Again, many cases made it to the supreme court during the first 50 years after the ratification of the constitution - it's not like it took 150 years for anyone to bring a case before the court.
Check out Barron v Baltimore in my previous post - in a decision from John Marshall's court in 1833 expressly ruling that the Bill of Rights do not apply to the states.
That's not defining the right...when they go that route and read into, change, re-interpret the clear language of the founders who wrote the constitution (and doi so without any properly ratified amendment)...as they have done many times (ie. Roe V. Wade, exisitng 2nd amendment laws, etc.)...they themselves are stepping outside their bounds and fall under the umbrella, IMHO, of what I said in the earlier post about why so many violations of the constitution exist these days.
In the end, as regards the 2nd amendment, there are 90 million or more gun owners in this country who ultimately will have the say on what it means. That can (and hopefully will) happen at the ballot box, and in the hearts and minds of the resulting statemsmen and judges with virture and integrity. I pray that is the case and of late there are many reasons to continue to hope that it will and that a resort to other types of boxes will not be necessary.
But, our founders themselves showed that from time to time in human history such recourse can become necessary, and it is a good thing to remind politicians (no need to do so with true statemen) that millions recognize that, that was the real intent of the amendment in the first place.
I look at how the the question of the behavior of schools pertains to the rights in the Constitution.
Clearly, public schools are about as local as one can get as a government institution, and yet we're barraged by 1st amendment claims about what can and cannot go on in schools. So, what does that say about the extension of the Bill of Rights to local governments?
-PJ
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