Free Republic
Browse · Search
News/Activism
Topics · Post Article

To: Ken H
Under Bork's interpretation, a state could disarm its citizens and it would be entirely constitutional.

Yes, but you miss some important issues.

1) States are local governance, governed by the people of the state through the ballot by representation and directly by initiative and propositions. The majority of people of a given state are in control of what that state does as long as the feds don't interfere.

2) History shows it is the FEDS who impose noxious and unconstitutional requirements on the states. History also shows that the states, left alone, generally are in harmony with the rights and freedoms of individuals. Easiest example is abortion. Before 1973, the states generally prohibited abortion. It was SCOTUS and their application of the 14A against the states that outlawed state anti-abortion laws, allowing the infanticide of some 70 million unborn. Another easy example is currently, the greatest pressure against gun ownership isn't the states, it's the feds.

3) The freedom of states to run their own show, generally, is much more in line with the constitutional design of federalism. And, again, history tells us that the chances of a state disarming its citizens is much less likely than the feds forcing disarmament using the 14A as their club.

Yes, Bork says that the intent of the P&I clause in the 14A is not understood which is basically what Justice Miller said. So both are on solid constitutional ground. You're concerned about the consequences, but consequences are not the driving force of construction, whereas original understanding and intent are. Consequences are more of a sanity check in the light of original intent and understanding.

Here, the consequences are sublime in that the states represent smaller and more local and responsive governance keeping the federal government at bay and presumably within its constitutional limits where it belongs. Again, our greatest threat by far in this country is not the states, it is the $4 trillion bloated unconstitutional federal government that threatens out free way of life.

76 posted on 08/06/2014 10:33:34 PM PDT by PapaNew (The grace of God & freedom always win the debate over unjust law & government in the forum of ideas)
[ Post Reply | Private Reply | To 70 | View Replies ]


To: PapaNew
14A has certainly been violated with disastrous results, as has the Commerce Clause. Since Wickard, the CC has been fraudulently used to basically nullify the Tenth and allow fedgov control of health care, crime issues, environment, education etc. In addition, anti-RKBA laws are passed under the Wickard CC.

However, none of that changes the original intent of either the Commerce Clause or 14A.

Which brings me back my point about what the terms Privileges and Immunities of US citizens meant at the time of the 14th's ratification. It is the key to understanding the 'P or I' Clause, and has still not been addressed. What does Bork say about the meaning of Privileges and Immunities of US citizens, as the terms were understood in the late 1860s?

77 posted on 08/07/2014 12:41:13 AM PDT by Ken H
[ Post Reply | Private Reply | To 76 | View Replies ]

Free Republic
Browse · Search
News/Activism
Topics · Post Article


FreeRepublic, LLC, PO BOX 9771, FRESNO, CA 93794
FreeRepublic.com is powered by software copyright 2000-2008 John Robinson