Without arguing through each of your points (although that would be interesting), your bottom line is that the 2nd Amendment grants a federal right to keep nuclear weapons.
Curious that you don't think that, rather, the states retained full power to regulate weapons in the same sense that you think that states retained the power to regulate commercial speech.
You really want me to go through all of this? Ok then, let's take it piece-by piece. I've pasted your post, below, and have grouped your points by subject matter. I'm going to answer those here, and then I am going to answer your short, culminating point about the laws not stopping various crimes you mentioned.
You've raised points about the Constitution. I am going to assume nothing about your education and training. I will tell you that I am a lawyer, trained in both the US and France in the US Common Law and French Civil Law systems. I made it a point to extensively and in detail study the US Constitution, and to read in depth a whole panoply of American colonial documents, including state constitutions, the articles of confederation, royal charters, many different 17th and 18th century court cases from provincial courts and the privy councils, and quite a bit of general text concerning the English North American colonies and the Early American period. I am not very much interested in biography, and have tended to stick much more to legal and economic texts. With age, I have become far more focused on what primary sources actually say than what modern writers who selected pieces of primary sources to bolster certain arguments say those primary sources meant. In legal practice, I often have to cut to the chase in discussions with different folks by saying "Don't tell me what the contract MEANS. Tell me what it SAYS."
Much has been written about what the US Constitution MEANS, and with good reason: the Constitution has almost talismanic power over the American mind, and it has real legal authority to this day. As such, if one can command the high ground of what the Constitution MEANS (ground de facto and, by its own lights de jure, occupied by the US Supreme Court), one can literally determine the law of the land and the outcome of political struggles. In a real sense Americans, in this most Protestant of all countries, treat their Constitution like a sort of secular Bible - the veritable FOUNT of law.
And it IS really the underlying textual support for the authority of all FEDERAL law, and much state law as well, because only 13 of the 50 American states were British colonies. The rest were territorial appendages of the United States, first organized and given governments by the Federal Government of the US, and ruled by Federal government officials, before finally being granted statehood. So, while to an extent the original 13 colonies enjoyed a juridical existence prior to the establishment of the US Constitution, the other 37 states were all creatures established by the Federal government of the USA, with borders determined by Federal power, and with their original administration all brought in by Federal governors for a certain interval before finally being flighted up to the status of states. Thus, while one might consider the Constitution to be an "agreement between the states", it is in truth an agreement between the people of only a small portion of the states. The rest of the American states were almost all creations of the Federal government of the US, and granted their existence by the Federal government, not the reverse.
Is this important? It depends on what time period one is looking at. For the time period of the creation of the US Constitution, no. For today yes, it is important, as is the whole struggle to end slavery and give the blacks equality with whites. It was THAT singular struggle, against bigotry in law and in fact, that so altered the original constitutional structure of the USA that the modern government would not be very much recognizable to the Founders. The Founders established a government that was to busy itself with foreign affairs and keeping the Indians off the frontiers and the states from quarrelling with each other, but to otherwise leave the various regional gentries alone to rule the roost in their states. By the 1860s, slavery in the American South had become so morally intolerable to a substantial number of Northerners that the country could not agree on leadership. By the rules of the Constitution, Lincoln became President, but with a severe minority of the vote, the country split in two, and for all practical purposes the Constitution of 1787, with its limited government and state sovereignty was at an end. The sheer effort required to win the Civil War required forging a central federal military and administrative power such as was never envisioned by any of the Founders, and that power was wielded to do what was inconceivable to the Founders other than as the very thing they feared and wanted to avoid: the dragging of departing states back into the federation by armed force, with the imposition of laws (regarding slaves) that were violently opposed by majorities of the voters in all of those states. Then, to ensure the maintenance of black civil rights, a large standing army of occupation was kept in existence for a decade, the Constitution was systematically amended (and interpreted by the Supreme Court) to make the Bill of Rights applicable to the States (with exceptions).
So, when we read the passages below, you are correct that, in 1787, the Federal government was viewed as not having the general police power, and the limits in the Constitution were viewed as limits on the Federal government. However, since 1868, it has been clear that (most of) the rights enumerated in the Bill of Rights are NOT merely at the behest of the states, that federal rights are personal rights which the states cannot interfere with. This is important for the gun debate, because the 2nd Amendment is THE key amendment which the Supreme Court has NOT incorporated into its interpretation of the Bill of Rights to confer personal rights in spite of state laws in opposition.
As far as the argument that the incorporation of the Bill of Rights into state law by federal force is itself unconstitutional, I have two answers.
One is that that's wrong: the Constitution was amended three times in the 1860s to effectively do just that, by promising due process of law and the "privileges and immunities of citizenship" (whatever that means). The Supreme Court has repeatedly confirmed that freedom of speech and of the press are not MERELY something that the FEDS can't remove, but that, since the 1860s, the states can't either. This was all the fruit of the long struggle to give black people their liberty, and we wouldn't have the powerful central government we had had whites, especially in the South, just let go of the apartheid bit and lived up to Jefferson's call of equality in the Declaration of Independence. But they DIDN'T, and the only way to free black people from oppression by the laws of the states was to reduce the states and augment the power of the federal government to the point where the states no longer had the power left to be able to oppress the black portion of their citizenry.
We have to keep this in mind, because so often when conservatives, especially, enter into discussions of the Constitution, they do so with the viewpoint of the Founders in 1787, forgetting that the Founder's Constitution failed to address the problem of a substantial portion of the population who were left without any rights under the framework. The American Constitution is not simply the work of the men of Philadelphia 1787. It is ALSO the work of the men of the 1860s, who revised it to the core and shifted the balance of power in order to end the enslavement of black people. That the Constitution was Amended AGAIN, in 1964, once again to address the problem of the continuing oppression of black people demonstrates the persistence and depth of determination of the racist faction to hold the day. So, 1787 is only a starting point. The balance of power determined by the Founders at Philadelphia fell apart precisely because the states WOULD NOT protect the rights of a substantial number of people, and preferred to end the Union rather than let them go. The Union didn't end, but the notion of the states as withholding vast reservoirs of power over personal liberty DID end in the 1860s. The Constitution of 1787 and the Bill of Rights did indeed reserve vast powers over speech, over all of the personal rights in the Constitution, to the States. But that division of power is gone with the wind. The States USED that power to hold the blacks in slavery. The Union divided over the issue of slavery and its extension, and the Constitution was amended. The Bill of Rights is FEDERAL rights. The States do NOT have any power against them anymore. 150 years of fighting over racial issues left us with a Federal government which is the supreme guarantor of individual rights AGAINST the States, because it was the States who were the chief usurpers of the rights of some Americans for that century and a half.
So, although I hear what you say when you say, below, the Founders intended this and that. Their Constitution FAILED. It was reworked, by Amendment, in the 1860s. The First Amendment bestows free speech and freedom of religion as FEDERAL rights, and the states do not have the power, under the post-1868 Constitution, to restrict those things. That's not because the Constitution is a LIVING document. It's because it was amended after its failure, on the states' rights issue, and a bloody civil war.
I said above that I had two answers to the argument that the Bill of Rights was not legitimately incorporated into state law. The first is all that preceded, about the Civil War and the Constitution being amended and changing the balance of power decidedly in favor of the Federal government. The second is that the Supreme Court has confirmed this federalization of (most of) the Bill of Rights (but not, so far, the 2nd Amendment). In the words of John Marshall, writing in the early 1800s: "Conquest grants a title which the courts of the conqueror are bound to respect." A civil war was fought over the proposition that states rights precede federal rights. The states rights side lost, and the Constitution was amended to give federal enforcement powers over individual rights against the states. The Supreme Court has repeatedly reasserted the resolution of the 1860s for 140 years and counting. And, like it or not, the Constitution America has is the Constitution of 1868, with Federal primacy over the states on matters of civil rights. The Constitution of 1787 with state authority trumping Federal power on matters of individual rights within the states died at Appomattox Courthouse, and the result was ratified by four amendments to the Constitution which have entrenched the result.
Original intent is interesting, but the original intent of 1787 is not dispositive, where that intent was supplanted, through Constitutional Amendment duly achieved, by the original intent of 1868 and 1964. It is THAT Constitution: the Constitution of 1868 and 1964, which I will analyze, because that IS the Constitution. The Constitution of 1787 with its state sovereignty over individual rights died in the Civil War and the Civil Rights struggles of the 20th Century. The Federal constitution establishes the rights of individuals in America, and the states have no residual sovereignty, whatever, that can stand against federal power on matters of rights incorporated in the state laws by the Constitution. That's the Constitution. That's the law. And that's where the answers to your questions below lie.
REGARDING THE FIRST AMENDMENT AND FREE SPEECH YOU WROTE:
"Sell is commercial conduct not free speech and regulated by state law retained by the states and not granted to the federal government. Advertising products is commerical and there are state laws against fraud as well as other crimes.
The states have slander and libel laws and they never gave up that right to the federal government. Certainly those are civil issues and handled privately not by the state criminal codes."
First of all, let's turn to the text of the First Amendment itself. "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances."
And let's add to this the text of the first section of the 14th Amendment, added in 1866: "All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside. No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws."
What those two amendments tell us, and the courts have consistently confirmed, is that there is one law of free speech in America. Congress can't pass laws restricting speech, and neither can the states. Free speech is a federal right. There is no state sovereignty to derogate from it, although the way that the states interpret what is and isn't speech at the margins can deviate somewhat, subject to review by the Federal courts.
Look at those two amendments. There's nothing in them that makes the distinction you have made between commercial speech or any other speech. Certainly back in 1787 there was not the advertising industry there is today, product liability law didn't exist, and the law of tort was practically limited to ancient common law forms of action in tresspass. The rule of the marketplace was caveat emptor. You will look in vain through the colonial law records for the deep distinction between commercial speech and other speech. The issue of false advertising in the mass media was for a different day, a day of mass production and torts-at-a-distance. So, it's objectively not true that the Founders made a deep distinction between commercial advertising and other speech, and reserved the former to state law. The state law codes of the time are very sparse, and you will struggle in vain to find any consumer's code of rights. The law of contract and sales was the old common law rule of caveat emptor.
It is true that under current American law, commercial speech is not protected to the same degree as political speech (although it is somewhat protected; there is a right to advertise, and that right is squarely a free speech right; when bar associations purported to prevent lawyers from advertising, it was the Federal courts which overrode all of those local laws and reaffirmed that free speech includes the right to advertise. State bar associations CANNOT legally prohibit it, because free speech is a federal right which states do not have the power to diminish). This protection of speech is a confection of the Supreme Court. It's a matter of case law, not a matter of original intent at all. The Founders didn't worry about this feature of modern advertising society and mass tort.
The Common Law of Fraud is a different thing. That always existed, as did the law of slander and libel. However, the American courts reversed the English rule. In the English Common Law of Blackstone, the greater the truth, the greater the libel. In America, truth was, and is, a defense against libel and slander claims. Free speech trumps. Outright fraud was illegal, and not considered a speech issue. It still isn't. Once again, this was not an intentional carve out to free speech. It was never thought of AS speech protected by the idea of "freedom of speech".
This turns out to be a rather significant point, for when the First Amendment reads that Congress shall pass no law "abridging the freedom of speech" it wasn't, as you have postulated, that false advertising and common law fraud were envisioned as being areas of speech reserved to the states. It was, rather, altogether simpler: nobody thought that "freedom of speech" was the unlimited right to speak. It didn't (and still doesn't) MEAN the right to say whatever the hell one wants to. Freedom of speech refers to a limited set of utterances which one can make free of legal consequences. Fraud, threats, libel, slander, fighting words - these things are all speech - but they were NEVER considered "Free speech", or "protected speech". Freedom of speech is a limited concept, not an unlimited concept. More and more it has been stretched to be a wider and wider concept, but it still to this day does not mean that one is legally free to say absolutely anything to anybody, as a federal right. It never meant and still doesn't mean fraudulent speech, libelous speech, slanderous speech, treasonous speech. A person can too easily read "freedom of speech shall not be infringed" and think that it means the unlimited ability to say whatever, whenever, to whoever. It NEVER, EVER meant that. It meant that body of speech which was considered to be free speech, which is to say political speech, scholarly speech, scientific speech, casual speech, reasoned speech, but NOT criminal speech. Criminal speech was not encompassed within "Freedom of Speech".
So, the fact that, as you point out: "Treason is set out in Article III section 3 of the Constitution .It is separate and distinct from the 1st amendment and apparently not applicable to the new york times and their sources." is not indicative of some sort of departure from the principle of unlimited speech when it came to treason. Rather, treason had to be spelled out carefully because of the ease of which its definition has always been used in Western Europe to use the power of government to violently proscribe enemy political factions. We even see that urge in your writing, in which you infer that the New York Times has committed "treason". If you carefully read the definition of treason, and aid and comfort to the enemy as spelled out in the Constitution, and the way the courts have parsed this, you find that the New York Times has not committed treason. They've printed things you and I don't like, and which we view as being harmful to morale, but this doesn't rise to the point of adhering to the enemy or giving him aid and comfort, in the definition as applied by the court. More is required.
As far as the states "never giving up the right to slander and libel laws" to the federal government, although that's true, it's not relevant. Slander and libel are not free speech. If the Supreme Court or Congress decided they WERE free speech, and protected by the First Amendment, then ever since 1866 all of the state and local laws of libel and slander would evaporate in an instant. Free speech is a federal right which completely occupies the field. States can EXPAND upon it, but they cannot reduce it.
This issue of "Freedom of Speech", as used in the Constitution, being a legal term of art that is not synonymous with the freedom to utter anything one pleases at any time is important when we consider the Second Amendment. The Second Amendment does not grant everybody the right to have whatever weapon he wants, whenever. It guarantees only that "the freedom to keep and bear arms shall not be infringed". The freedom of speech NEVER meant the freedom to utter whatever. Freedom of speech is a term of art, referring to a SET of speech in the universe of utterances. Is "the freedom to keep and bear arms" likewise not an unlimited right to have whatever weapons, however and whenever, but also a term of art referring to an English Common Law idea of what the "right to keep and bear arms" meant? Yes, it is. And this is precisely why it is no violation of the Constitution, and never was, to prevent dangerous persons from bearing arms, or to prevent people from possessing certain classes of arms. The "Freedom to keep and bear arms" is a term of art. It's a bounded right, stemming from the English Civil War. It never meant the right to train up private armies to be able to unbalance the state. It never meant the ability to store up dangerous quantities of gunpowder in the middle of town, creating a public nuisance. It has become more narrowly interpreted, with time, but the point is that the term "freedom to keep and bear arms" cannot be read as "unlimited right to have any weapon" any more than "freedom of speech" can be read to mean "unlimited right to utter whatever, whenever". They certainly DO NOT mean that, legally, and nobody drafting the Constitution, nor amending it in the 1860s and later, nor interpreting it in the Supreme Court, ever thought that it did.
You seem to think that if a rule against private nuclear weapons or anthrax is imposed, that there has been an erosion of your liberty in some small way. But actually, you never had that broad a right to keep and bear arms in the first place, at least not if you care about the intent and reasoning of the drafters of the Constitution. There is no unlimited right in that document, because the Common Law and the Founders and nobody else in government ever has believed in unlimited rights. They're too dangerous.
Now, as to FREEDOM OF THE PRESS, you wrote this:
"Fornication is shown on the airways every minute of the day. Check your cable, dish, direct tv."
But what about hard-core pornography, with full penetration, and bondage, even, on prime time network television? Freedom of the press, if it meant the same sort of unlimited liberty that "the right to keep and bear arms" is alleged to mean, would have to mean precisely that. What government agency could sanction anyone for showing hardcore pornography? The market alone would have to deal with it (and would probably reward it with profits). Freedom of the press is a term of art. It does not mean the unlimited freedom to broadcast whatever, whenever.
AS TO FREEDOM OF RELIGION:
"There are no limits on freedom of religion set out in the constitution. As you say, there have been state criminal laws set in place that do punish those who otherwise might find them part of their ritual."
Yes there are: no person shall be deprived of life, limb or property without due process of law. The Federal government has not had to pre-empt the states because the states don't allow human sacrifice (other than abortion, but that is because the feds have prempted the states and imposed abortion), but if a state DID allow it, the Feds would have constitutional grounds to pre-empt due to protection of civil rights (of the sacrificed).
AS TO SEARCH AND SEIZURE, you wrote:
"The IV amendment to the constitution governs search and arrests. "The right of the people to be secure in their persons, houses, paper, and effects shall not be violated, and no warrants shall issue, but upon probable cause, supported bu oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized." It more than a mere process it is a basic guarantee, while sadly weakened by supreme court rulings, of freedom that the people never granted to the federal or state governments."
Actually, the federal courts have very greatly strengthened the protections against warrantless searches, faulty warrants, and gone so far as to impose suppression of evidence and "fruit of the poisonous tree" doctrine, none of which were part of the English Common Law.
AS TO THIS:
"The 5th amendment regarding testimony against oneself applies to any proceeding civil and criminal, trial or investigation, and congressional hearings. In OJ's case he had already been found not guilty on the criminal charges which is the difference. Else wise all criminal proceedings would first start with a simple civil lawsuit and civil discovery rules."
Criminal trials often do start that way. Consider Bill Clinton's case. Accused of sexual harrassment, he resisted the charges. He was then prosecuted for perjury when he lied under oath. Ditto for Scooter Libby. Investigated for something that wasn't even a crime, he is alleged to have lied to prosecutors and was convicted of that.
Now, as to the rest, I will reserve comment on the Second Amendment issue for the next post, except with regards to this:
"The way the world is is just the reason to not limit the right to bear arms.
Where do you find the right to fight against tyranny is a collective right."
The way the world is, is precisely the problem. We have hundreds of murder-suicides every year. They contribute substantially to the overall murder rate. Right now, these people cannot easily get mass casualty weapons. They blow away their co-workers with a handgun, but they are unable to clear whole streets with fully-automatic military machine guns, which WOULD be available if they were legal, but whose illegality has in fact kept them quite suppressed. If severely depressed, suicidal-homicidal people were able to easily obtain, as a matter of right, weapons of mass destruction, then these multiple murder-suicides which we have every single year in every single city would take out whole city blocks and leave hundreds or thousands dead at a pop. It is a reality of modern life that it is extremely stressful, and that people cook off and go on a killing rampage all the time. Limiting the availability of mass casualty weapons DOES dramatically keep down the collateral damage from this sort of activity.
FINALLY, YOU WROTE THIS:
"We are all endowed by our creator with certain inalienable Rights; every time we the people consent to the government impinging on these rights is a loss of liberty."
That is true. The extent to which we have the inherent right to defend ourselves is also true. The extent to which we require weapons to do it is a function of the effectiveness of society in dealing with its marginal people. Ours is not too good, so there is a right to bear firearms. There's not God-given right to have a gun; the right is to self-defense. If people are protected enough that they don't NEED self-defense, there's no right from God to carry around deadly weapons anyway, just for the hell of it, because those things ARE dangerous to other people. For as long as society is as dangerous as it is, we do have the right to arm ourselves for protection. However, in absolutely no sense is a depressed man endowed by his Creator with the right to possess a weapon in his house that, when he decides to suicide, allows him to take out five city blocks with him. There is no such right to take down others, and it is not an infringement of any rights at all to say that individuals cannot be trusted with such powerful weapons in the first place, because they can't be.