Replies

>> You have forgotten that each state, as a condition of statehood, must have a state constitution and, within each state constitution, you’ll generally find an enumeration of protected rights that mirror the federal Bill of Rights.

I have not, at all, forgotten that. Whether the State has exercised its power to revoke the rights of its citizens is entirely irrelevant in an argument about whether they SHOULD have the power to do so. The fact would remain that a state legislature would have the authority to not recognize, or repeal a right in its own Constitution ... and thus would, under your interpretation, be under no obligation to recognize the rights enumerated in the Bill of Rights.

Lets take the right to keep and bear arms, for example. I have browsed the California Constitution, and cannot find a right to keep and bear arms enumerated in the California Constitution.

If your answer is “yes” ... then at least you’re consistent. Entirely wrong, but consistent. The NRA would probably like to have a word with you, though.

If your answer is “no” ... why not? Under your interpretation of the 14th amendment, the 2nd Amendment is a wholly federal right. If a State’s Constitution does not further guarantee the right to keep and bear arms, upon an act of the state legislature, California should be entirely within its rights in forcibly confiscating every gun in the state.

I’d bet you would think California confiscating every gun is a violation of the Constitutional rights of its citizens - and you’d be right. However, you seem to think California would be perfectly within its rights to ban the sale of pornography. In which case, you’re cherry-picking the rights which you believe a State should be federally forced to recognize.

I think they should be - and, in fact, are - federally forced to recognize each of the rights in the Bill of Rights ... including both the right to bear arms, and the right to freedom of speech.

>> My question to you is: if the federal Constitution were intended, originally, to restrict State behavior, why would there be the need for such redundancy?

This is a two part answer ...

(1) I’d omit the word “originally” in your question. The federal Bill of Rights was not intended to apply to the States until the ratification of the 14th amendment in 1868. I’ve been very clear on this point. Thus, your question would only apply to those 13 States whose Constitutions were enacted AFTER the ratification of the 14th amendment.

(2) State Constitutions Bill of Rights, even if redundant, have a couple of purposes beyond merely recognizing the rights ... and those purposes would exist regardless of whether the State were forced to abide by federal rights. First, the presence of a State Bill of Rights creates a State cause of action for violations of those rights - allowed to be litigated in state court. Second, and probably more importantly ... States are fully permitted to (and often do) expand on those rights enumerated in the Federal Constitution. State Constitutions allow the State government to set boundaries on liberties in excess of federal boundaries ... States are simply not allowed to contract or contradict any federally recognized rights.

>> The only reason that the 14th Amendment restricts State rights is because the Supreme Court says it does. It is not written that way, nor do I believe it was intended to do any such thing. It was originally intended to protect newly freed blacks from having their citizenship rights taken away by former slave states who were using grandfather clauses to keep blacks down.

The 14th amendment was written to rectify slavery issues, and to prevent any future ignoring of the Constitutional rights of individuals, regardless of race, by State governments.

>> The result is the federal government telling a local public office, for example, that they cannot display a cross, or teh Ten Commandments, or telling local public schools that they can’t celebrate Christmas. That is what the flawed interpretation of the 14th has wrought.

Distorted intepretations of the 1st amendment, as applied to the States as well as the Federal government, cannot be blamed on a correct interpretation of the 14th. It is the interpretation of the 1st amendment, in those cases, which is erroneous.

Is it your position that the State of California is permitted, with the approval of its legislature and governor, to prohibit the sale and ownership of firearms within its borders, and forcibly confiscate all weapons at its discretion?

My answer to that is yes. I don't like that idea, but it would be correct. The interesting corollary to that question, however, is that if you believe that the state of California does NOT have that right, and your belief is in line with the SCOTUS interpretation, then both you and the SCOTUS should immediately recognize that every law California has on the books restricting or banning ownership of arms is unconstitutional. This means that both you and SCOTUS should hold California in violation of the highest law of the land. When will the federal troops be coming in to rectify this great injustice?

(1)...The federal Bill of Rights was not intended to apply to the States until the ratification of the 14th amendment in 1868. I’ve been very clear on this point. Thus, your question would only apply to those 13 States whose Constitutions were enacted AFTER the ratification of the 14th amendment.

My point with the federal Constitution not being originally intended to apply to the states is that there is nothing in the 14th amendment which would seem to reverse this position. The SCOTUS has interpreted that amendment to be a reversal of this philosophy, but the language of the amendment does not indicate such a reversal other than by the most broad (read: twisted) interpretation. Although lawyers do like to use the most obfuscatory language possible, I would think that any amendment fully intended to reverse the entire founding philosophy of federalism would say so quite clearly, rather than being an interpretation that must be tortured out of a mere clause.

(2) State Constitutions Bill of Rights, even if redundant, have a couple of purposes beyond merely recognizing the rights ...States are simply not allowed to contract or contradict any federally recognized rights.

You seem to be contradicting yourself here. If you admit that, before the 14th amendment, the federal constitution was not meant to apply to the states, and state constitutions pre-date the 14th, then your above statement cannot be a true explanation for the purpose of state constitutions. The purpose of these constitutions pre-dates the 14th, so that purpose cannot incorporate the thinking that you claim is found in the 14th. There must be another reason that the state constitutions provided for exactly the same rights, in many cases, that the federal constitution protects.

It is my position that the purpose of the state constitutions was to protect the rights of state citizens because the federal constitution was not intended to apply to the states. Further, the 14th amendment offers no clear language that reverses this governmental philosophy and, quite frankly, does not appear to have even a vague reference to reversing this essential philosophy of federalism. The SCOTUS invented this interpretation of the 14th amendment in order to have power over state and local matters, a power they NEVER had before.