Posted on 12/17/2002 7:17:04 AM PST by MrLeRoy
Basing policy on "feelings" is what liberals do.
I don't mean to be ornery or anything since I think we actually do agree on many matters, but I, like most people who've studied the matter and take the constitution seriously, do not believe it would be legal for California to outlaw all guns. (Of course, as a practical matter it all depends on the 9 people on SCOTUS.)
That's because the 14th Amendment is generally seen as extending most or all of the Bill of Rights to the states, and it was clear during its passage that the right to possess guns was a major factor in the minds of the legislators who passed it.
I suspect "feeling" was more accurate. On what "education" is this guess based?
I went there too, but learned no such lesson. You'll have to be more specific.
Several reasons, actually, but chief among them is that they're terminally misguided and they demonstrably lack the brainpower to reason correctly. Anyone truly wondering the answer to the question "is marijuana different from other Schedule 1 drugs" could be awash in evidence indicating it is after even the most rudimentary of Google searches.No state interest in criminalizing marijuana is so compelling that it trumps a citizen's natural law right to be free from government interference. I have serious philosophical and political differences with those who'd so lightly give the federal government the power (a power a strict Constitutional constructionist would argue they don't even have, mind you) to criminalize a behavior that's not inherently criminal, and allow the it to incarcerate "offenders," relieve them of their freedom, and confiscate their property.
As I've written on this thread (and you've decided to ignore), I believe there are compelling state interests in criminalizing certain hard drugs that trump a citizen's natural law right to be free from government interference. Because---and this is the tricky part for you, I understand that---hard drugs are different from marijuana.
My point was that you do not distinguish between marijuana and other drugs and believe that the federal government should not make them illegal.
For the last time, I do distinguish between marijuana and other drugs. I do believe the federal government could make a compelling argument for prohibiting certain hard drugs, provided they did so in the correct manner (amendment), vice hanging everything on the Commerce Clause. Your "point," such as it is, is the flailing about of a man who really doesn't have a point to make in the first place.
In the past you have stated:"By ending the Federal War on Drugs, I mean just that---ending the Federal War on Drugs. It's unconstitutional. Outside amending the Constitution, the Federal government simply does not have the authority to make criminal a substance by prohibiting it."
I don't see any distinction on your part, do you? Sounds like a blanket statement to me. Yet you chide the drug warriors for not distinguishing between the two. Nice try.
You're not the swiftest boat in the race, are you Mr. Paulsen . . . ?
Oh geez, I seem to have skipped right over this disclaimer in your previous posts. I guess us in the slow boats should learn to read, huh?
It appears so, yes.
December 6, 2002, 12:25 p.m.
Who’s Right on Second?
Living, breathing decisions.
By Eugene Volokh
Someone asked me yesterday, after the Ninth Circuit's latest decision about the Second Amendment: Shouldn't courts read the Second Amendment as part of an evolving Constitution? Say the Ninth Circuit was wrong, last year's Emerson decision from the Fifth Circuit was right, and the Framers thought of the Amendment as securing an individual right. Shouldn't judges update it due to the passage of time, based on evolving standards of justice and practicality?
1. Well, here's one way to justify this position: The Second Amendment as written was meant to apply only to the federal government, and can only apply to the states via the Fourteenth Amendment. Thus, when we consider what the Second Amendment means with regard to state laws, we shouldn't look at what people in 1791 thought of the right-to-bear arms — we should look at what people in 1868 thought the Fourteenth Amendment would do as to the right-to-bear arms.
If we do that, we see that while in 1791 the Framers did think of the right as largely aimed at societal self-defense, including defense against government tyranny — albeit self-defense that would be assured through individual gun ownership — in 1868, people saw the right as also focused on private arms ownership aimed at protection against crime. The Freedmen's Bureau Act of 1866 (surely not intended by Congress to preserve states' powers to maintain their own armed military forces!) provided that
in every State or district where the ordinary course of judicial proceedings has been interrupted by the rebellion . . . the right to make and enforce contracts, to sue, be parties, and give evidence, to inherit, purchase, lease, sell, hold, and convey real and personal property, and to have full and equal benefit of all laws and proceedings concerning personal liberty, personal security, and the acquisition, enjoyment, and disposition of estate, real and personal, including the constitutional right to bear arms, shall be secured to and enjoyed by all the citizens of such State or district without respect to race or color, or previous condition of slavery [emphasis added].
Likewise, debates over the Fourteenth Amendment repeatedly referred to the need to protect freedmen and Union sympathizers from attempts by state governments to disarm them, and thus leave them vulnerable to criminal attack. An updated Second Amendment is thus at least as much an individual right as the original one.
2. Here's another way, which I disagree with, but which some might urge: We should look at what the public today thinks about the Second Amendment. If we do this, we see that the overwhelming majority of Americans believe that the Second Amendment secures an individual right to-bear arms: For instance, in an abcnews.com poll from earlier this year, 73 percent took that view, and 20 percent took the states' rights view.
Or perhaps the right question under this popular-sovereignty theory is whether the public thinks we should have the right-to-bear arms. The result would probably be similar: For instance, a Freedom Forum First Amendment Center poll earlier this year found that 48% of respondents saw "the right to own firearms" as "essential," and another 31% saw it as "important."
3. Here's a third way to gauge evolving standards — look to how Americans see this right as reflected in state constitutions. These constitutions, after all, are formal expressions of the public's will, and not just polls. But they are much easier to change than the federal constitution, so they should better reflect evolving views.
If we consider this, we'll see that Bills of Rights in 44 of the 50 state constitutions secure a right-to-bear arms. Most of them are quite explicit in securing an individual right, but I think all of them have to be understood this way: A Bill of Rights in a state constitution surely can't secure a right of the state, or of a small group selected and controlled by the state; it secures a right against the state.
What's more, since 1970, 14 states all across the country have either added a right-to-bear arms provision to their state Bill of Rights, or strengthened an existing one. Here's the most recent one, enacted in Wisconsin in 1998 by a 74 percent-26 percent vote: "The people have the right to keep and bear arms for security, defense, hunting, recreation or any other lawful purpose."
4. So under all these approaches, the right-to-bear arms should be read as forcefully today as in 1791 — or perhaps more so. What then do people mean when they say that "evolving standards" should lead courts to reject the individual rights view of the Second Amendment? Seems to me there's only one meaning: That judges should look not to the Framers, not to the 1868 Ratifiers, not to state constitutions, and not even to polls — but only to what they think is right, or perhaps to what the social class to which they belong (elite urban lawyers) thinks is right. You don't like a constitutional right, your honor? You don't think it makes sense today? No problem! Just evolve it out of existence.
"The very purpose of a Bill of Rights," Justice Jackson wrote in the 1943 flag-salute case, "was to withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities and officials and to establish them as legal principles to be applied by the courts. One's right to life, liberty, and property, to free speech, a free press, freedom of worship and assembly, and other fundamental rights may not be submitted to vote; they depend on the outcome of no elections." Words to live by, it seems to me.
— Eugene Volokh teaches First Amendment law at UCLA School of Law.
"The Second Amendment as written was meant to apply only to the federal government, and can only apply to the states via the Fourteenth Amendment".
California never adopted the Second Amendment under the Fourteenth Amendment. You can look in the State of California Constitution, and it ain't there.
Now, in my great state of Illinois, here's how it reads:
SECTION 22. RIGHT TO ARMS
Subject only to the police power, the right of the individual citizen to keep and bear arms shall not be infringed.
On one hand, good (individual citizen), on the other hand, bad (subject only to the police power). Now what good is the RKBA when the group you may want to protect yourself from can take away your guns?
The amendment was ratified in 1868, right after the Civil War. I don't see any connection to a 2nd amendment concern.
The federal constitution applies in all of the U.S. The states can give their people additional rights, but they cannot use their state constitutions to eliminate rights granted to the people by the federal constitution. (They can't even do it explicitly, let alone by omission.) If they could, then, for example, the South would never have had to grant civil and voting rights to black people.
But as my earlier (Volokh) posting noted:
"debates over the Fourteenth Amendment repeatedly referred to the need to protect freedmen and Union sympathizers from attempts by state governments to disarm them, and thus leave them vulnerable to criminal attack. An updated Second Amendment is thus at least as much an individual right as the original one." [emphasis added]
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