Posted on 06/04/2009 5:59:45 AM PDT by epow
On Wednesday, June 3, the National Rifle Association filed a petition for certiorari to the U.S. Supreme Court in the case of NRA v. Chicago. The NRA strongly disagrees with yesterday's decision issued by a three-judge panel of the U.S. Court of Appeals for the Seventh Circuit, holding that the Second Amendment does not apply to state and local governments
This is the only acceptable limit on "shall not be infringed". It's also why they have "keep and bear" in the Amendment.
Unlawful use of any tool is still unlawful. But, as Tommy J said, the unalienable Rights of man are only circumscribed by the equal Rights of others. Gun laws that forbid the carrying or mere ownership of arms are unlawful under our form of Government. At ANY level of government.
But this Right does not give you the power to take others property by force or act as judge, jury and executioner at your own discretion and just because you are armed.
That is the "fine line" distinction they are trying to preserve... IMO.
I think Mohave may be one of those people who still subscribe to the theory that the slave holding states were sovereign entities that had the right to secede from the US if they didn't like what the federal government was doing. I'm not positive, but I don't think that the antebellum SCOTUS ever got around to deciding that issue, nor to the best of my knowledge has any later Court. But the outcome of the War Between the States did decide that issue for all practical purposes, and it appears that quite a a few folks such as Mohave still haven't become reconciled to that incontrovertible fact.
It is generally agreed that the 10th Amendment limits the Federal government's power to those powers listed in the Constitution, and the states possess all the remaining powers of legitimate government. Going by that generally agreed upon fundamental rule of constitutional law, it seems to me that it would be easy to deduce that the 2nd Amendment's status as an integral part of the Constitution supercedes a state's power to restrict the right to keep and bear arms without relying on the 14th for it's power. It may not matter anyway if the Anointed One continues to grab more and more unconstitutional power until he makes the Constitution and the SCOTUS irrelevant to what is actually taking place. In a chaotic situation such as I believe is entirely possible if he doesn't come to realize how seriously Americans take their liberty and backs off, it won't matter much whether the states can lawfully ban guns or not. Every American who loves liberty more than life and who can lay hands on a gun will have one even if they have to take it from the cold dead hands of a government law enforcement agent.
After all, preventing tyranny is one of the expressed reasons for us to have RKBA in the first place.
There are 19th Century Supreme Court decisions stating that the 2d Amendment is a restriction only on the federal government, not on the States. Heller, in a footnote, mentioned these cases and said their validity was not before the Court because Heller involved federal (D.C.) law.
Way back in 1820, the Supreme Court held that the Bill of Rights was binding only on the federal government, and that States can violate it. (Barron v. Baltimore). Starting in the 1910s, the Supreme Court began to hold that some of the Bill of Rights was made binding on the States through the 14th Amendment, but it did so through what it called "selective incorporation"-- meaning that the Supreme Court decided on an individual basis if rights guaranteed by the Bill of Rights are binding on the States or not. So far, most of the Bill of Rights has been applied to the States; two provisions have been held definitely not binding on the states (the 7th Amendment right to trial by jury in civil cases, and the Grand Jury clause of the 5th Amendment); and a few provisions have not been ruled upon either way by SCOTUS (the 2nd Amendment being one of those).
There were not that many federal crimes at first, but there were some--many more than just treason. The very first Congress enacted a number of criminal laws, including those against perjury, piracy, smuggling and bribing federal officials.
Everything else is examples of judicial activism and Constitutional re-writes from the bench that the rest of us have been railing against for more threads than just this one.
While your post outlines the current legal fiction we are currently trying to rectify, it isn't how the system was set up to run initially.
That’s certainly different from what I read into it.
Do you have a URL for the Heller decision handy? I’d like to re-read. Maybe I can find the statements I was referring to.
Well. My question was meant to be separate from the “shall not be infringed.”
Good ‘ole Mojave doesn’t even believe that the 2nd amendment is a right. Therefore, the collective vs. individual right question is irrelevant to him. He danced around questions regarding California’s restrictive gun laws from someone else as well. He is using these issues to cover for his basic disregard for the 2nd amendment if his liberal state of choice has laws that restrict the right to bear arms.
In Presser, the Court was clearly hedging their bets, and trying to mitigate the possible damage that could be incurred by their decision by specifically stating, that, even placing the Second Amendment out of view, States did not have the right to start outlawing ownership of arms by the public.
You and I went over this yesterday. I posed a few questions, you didn't answer after about half an hour (but you were active on FR), and you never responded when I answered for you.
You: Presser said that the 2nd Amendment is a restriction only on Congress, not on the states.
Me: Did it say anything about the right of the states to prohibit the people from keeping and bearing arms?
Answer: Yes, it did. This is what it said:
It is undoubtedly true that all citizens capable of bearing arms constitute the reserved military force or reserve militia of the United States as well as of the states, and, in view of this prerogative of the general government, as well as of its general powers, the states cannot, even laying the [second amendment] out of view, prohibit the people from keeping and bearing arms, so as to deprive the United States of their rightful resource for maintaining the public security, and disable the people from performing their duty to the general government. But, as already stated, we think it clear that the sections under consideration do not have this effect. Presser v. Illinois, 116 U.S. 252 (1886)
Me: What was the general nature of the statute at issue in the Presser case? What action was Presser arguing was protected by the 2nd amendment?
Answer: The statute at issue was one that required obtaining a permit before conducting a parade on public property. Presser argued that his parade didn't need a permit, because his parade was made of up citizens bearing arms, and therefore, his parade was protected by the 2nd amendment to the US Constitution.
I think the full story is interesting to readers, and for the most part, the complete picture is new to them, as well. In part because folks like you tend to tell half the story.
“Yes, it reserved powers and rights to the states respectively, but also to the people.
The United States Constitution did not create the states. The United States Constitution was not the source of state powers.
The United States Constitution delegated certain limited powers to the federal government. Any rights reserved were reserved from those delegated powers.
Statists, such as yourself, prefer centralized government and legislation from the federal bench.”
Too simplified of an answer. What I think the fellow you were talking with about this was getting at is, on the right to bear arms, it is not for debate at either the state or federal level. It would be an individual choice as is plainly stated in the second amendment.
“shall not be infringed” means (as mojave suggests) “shall not be infringed by the federal government but may be abrogated as the state government sees fit” or whether it means “shall not be infringed” (as the period immediately following the word “infringed” indicates).”
I’m a day late and a dollar short. You beat me to it. How is it so hard for some people to understand?
“It has been several times truly remarked that bills of rights are, in their origin, stipulations between kings and their subjects, abridgements of prerogative in favor of privilege, reservations of rights not surrendered to the prince. Such was MAGNA CHARTA, obtained by the barons, sword in hand, from King John. Such were the subsequent confirmations of that charter by succeeding princes. Such was the PETITION OF RIGHT assented to by Charles I., in the beginning of his reign. Such, also, was the Declaration of Right presented by the Lords and Commons to the Prince of Orange in 1688, and afterwards thrown into the form of an act of parliament called the Bill of Rights. It is evident, therefore, that, according to their primitive signification, they have no application to constitutions professedly founded upon the power of the people, and executed by their immediate representatives and servants. Here, in strictness, the people surrender nothing; and as they retain every thing they have no need of particular reservations. ``WE, THE PEOPLE of the United States, to secure the blessings of liberty to ourselves and our posterity, do ORDAIN and ESTABLISH this Constitution for the United States of America.’’ Here is a better recognition of popular rights, than volumes of those aphorisms which make the principal figure in several of our State bills of rights, and which would sound much better in a treatise of ethics than in a constitution of government.
But a minute detail of particular rights is certainly far less applicable to a Constitution like that under consideration, which is merely intended to regulate the general political interests of the nation, than to a constitution which has the regulation of every species of personal and private concerns. If, therefore, the loud clamors against the plan of the convention, on this score, are well founded, no epithets of reprobation will be too strong for the constitution of this State. But the truth is, that both of them contain all which, in relation to their objects, is reasonably to be desired.
I go further, and affirm that bills of rights, in the sense and to the extent in which they are contended for, are not only unnecessary in the proposed Constitution, but would even be dangerous. They would contain various exceptions to powers not granted; and, on this very account, would afford a colorable pretext to claim more than were granted. For why declare that things shall not be done which there is no power to do? Why, for instance, should it be said that the liberty of the press shall not be restrained, when no power is given by which restrictions may be imposed? I will not contend that such a provision would confer a regulating power; but it is evident that it would furnish, to men disposed to usurp, a plausible pretense for claiming that power. They might urge with a semblance of reason, that the Constitution ought not to be charged with the absurdity of providing against the abuse of an authority which was not given, and that the provision against restraining the liberty of the press afforded a clear implication, that a power to prescribe proper regulations concerning it was intended to be vested in the national government. This may serve as a specimen of the numerous handles which would be given to the doctrine of constructive powers, by the indulgence of an injudicious zeal for bills of rights.”
Actually it is not a preference. It is an interpretation.
If so, the world is not nearly as simple as he believes.
"To suppose arms in the hands of citizens, to be used at individual discretion, except in private self-defense, or by partial orders of towns, countries or districts of a state, is to demolish every constitution, and lay the laws prostrate, so that liberty can be enjoyed by no man; it is a dissolution of the government." --John Adams
A Constitutional Amendment explicitly restricting the federal government from abridging freedom of speech empowers federal judges to silence teachers leading prayers in local public schools and to remove images of the Christ child from the local town square?
That's quite an "interpretation" you managed to put together. Ginsberg and Souter would be proud.
“To suppose arms in the hands of citizens, to be used at individual discretion, except in private self-defense, or by partial orders of towns, countries or districts of a state, is to demolish every constitution, and lay the laws prostrate, so that liberty can be enjoyed by no man; it is a dissolution of the government.” —John Adams
A quote by John Adams, the Constitution, is not. The 2nd amendment lays it out succinctly and simply. Easy enough to read, easy enough to understand.
“A well regulated militia being necessary to the security of a free State, the right of the People to keep and bear arms shall not be infringed.”
Where in the wording does it mention, anywhere in there, the state or federal levels having the ability to legislate in regards to gun ownership?
And the first federal execution was the hanging of Thomas Bird for murder on June 25, 1790.
And the Constitution has nothing to do with the local regulation of firearms described by John Admas.
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