Posted on 01/01/2004 3:49:02 AM PST by sopwith
The Conventions of a number of the States having, at the time of adopting the Constitution, expressed a desire, in order to prevent misconstruction or abuse of its powers, that further declaratory and restrictive clauses should be added, and as extending the ground of public confidence in the Government will best insure the beneficent ends of its institution;
Resolved, by the Senate and House of Representatives of the United States of America, in Congress assembled, two-thirds of both Houses concurring, that the following articles be proposed to the Legislatures of the several States, as amendments to the Constitution of the United States; all or any of which articles, when ratified by three-fourths of the said Legislatures, to be valid to all intents and purposes as part of the said Constitution, namely:
Amendment I 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.
Amendment II 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.
Amendment III No soldier shall, in time of peace be quartered in any house, without the consent of the owner, nor in time of war, but in a manner to be prescribed by law.
Amendment IV The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
Amendment V No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury, except in cases arising in the land or naval forces, or in the militia, when in actual service in time of war or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.
Amendment VI In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the state and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the assistance of counsel for his defense.
Amendment VII In suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise reexamined in any court of the United States, than according to the rules of the common law.
Amendment VIII Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.
Amendment IX The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.
Amendment X The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people.
You will hear the Supremacy Clause / Bill of Rights argument over and over, but mere repetition, even from valued sources, does not make it the correct reading. I recommend that everyone interested in genuine understanding of the U.S. Constitution do the work, read the history, and judge this question for themselves.
Here's an alternate interpretation. Inalienable rights should never be abridged by any government, county, state, or federal. Any governing entity which we can hold worthy should limit itself. Any Constitution should reiterate that inalienable rights will not be abridged. Secondly, denying the people a right to keep and bear arms (RKBA) clearly leaves a way open for governmental oppression. Therefore we cannot approve of any constitution which does not clearly establish it.
California's constitution being such a one is a gross violation and deserves our condemnation.
Now, as to whether Amendments 1-8 of the U.S. Constitution apply through the states. SCOTUS has taken a cafeteria style approach, treating enumerated rights individually, as to whether or not Amendment 14 incorporates the given right. Some say complete incorporation would be much more logical. This would mean that the Supreme Court precedents establish exactly the same protections against state encroachment as they do national encroachment, except where a state establishes even greater protection.
My position is that centralization of rights adjudication in the Supreme Court is very bad, regardless of whether incorporation is complete or partial. I would prefer the country to be finally responsible for protecting its inhabitants from encroachments of national power, and states be responsible to protect their own inhabitants from encroachments of state power. When they fail to, the people must hold them directly accountable, not in every case run to federal "daddy" (except in specific situations described in Amendment 14).
The Supreme Court is not the final arbiter of rights interpretation. The people are via the jury system. It is the right and obligation of every juror on every trial in the nation to judge the law for compliance to the constitution at the same time as they judge the facts.
This concept of jury nullification was basic to the design of our national government by the founders.
Why should they need to quarter soldiers in your house, when it's more convenient to tax the cr*p out of your house and use the money to buy $10,000 H&K MP5s? One of the big points of "quartering" was to let you know that your property was really the government's property.
I submit that if you don't pay your "property taxes" on your house, you'll find out in a hurry whose house it REALLY is. ;=-)
OK, you disagreed with my reading, which is based on Justice Rehnquist's reading, among others. But you did not give any reason why your reading must be the correct one.
The constitution's 2nd amendment, for example, does not confer a right to individuals. It limits the federal government from abridging RKBA. There is a subtle difference. The 2nd amendment does not limit state governments from trampling on RKBA. The state's constitution is responsible for establishing that protection.
Article VI states that our Constitution: "-- shall be the supreme Law of the Land; and the Judges in every State shall be bound therby; --"
Your ideas about "states rights" are being used by states like CA to violate our 2nd amendment, by prohibiting so-called 'assault weapons'.
The Article 6 supremacy clause does bind the judges of every state to the U.S. Constitution.
However, before Amendment 14, Amendments 1 through 8 were meant to restrict powers of the federal government, not the states.
You are ignoring the preambles words. The BOR's were meant to restrict the powers of all of our governments, local, state, territorial & federal..
You will hear the Supremacy Clause / Bill of Rights argument over and over, but mere repetition, even from valued sources, does not make it the correct reading.
Just as your repetition does not make your position the correct reading. -- The words of the documents speak for themselves.
I recommend that everyone interested in genuine understanding of the U.S. Constitution do the work, read the history, and judge this question for themselves. Here's an alternate interpretation. Inalienable rights should never be abridged by any government, county, state, or federal. Any governing entity which we can hold worthy should limit itself. Any Constitution should reiterate that inalienable rights will not be abridged. Secondly, denying the people a right to keep and bear arms (RKBA) clearly leaves a way open for governmental oppression. Therefore we cannot approve of any constitution which does not clearly establish it. California's constitution being such a one is a gross violation and deserves our condemnation.
Our existing constitution condemns CA's violation. We need to see that it is enforced.
Now, as to whether Amendments 1-8 of the U.S. Constitution apply through the states. SCOTUS has taken a cafeteria style approach, treating enumerated rights individually, as to whether or not Amendment 14 incorporates the given right. Some say complete incorporation would be much more logical. This would mean that the Supreme Court precedents establish exactly the same protections against state encroachment as they do national encroachment, except where a state establishes even greater protection.
Some say that 'incorporation' is a legality, a sham that is un-needed. -- States have never had the power to violate our inalienable rights to life, liberty, and property. -- It is ludicrous to argue otherwise.
My position is that centralization of rights adjudication in the Supreme Court is very bad, regardless of whether incorporation is complete or partial. I would prefer the country to be finally responsible for protecting its inhabitants from encroachments of national power, and states be responsible to protect their own inhabitants from encroachments of state power. When they fail to, the people must hold them directly accountable, not in every case run to federal "daddy" (except in specific situations described in Amendment 14).
Why is it necessary, -in your mind-, to trust state/local government to honor our individual rights?
We have a constitutional system of checks & balances in place, -- that only needs to be enforced, as written, to accomplish that end.
True enough, Our RKBA's is an inate, self-evident, and inalienable individual right. -- It is not "confered"..
It limits the federal government from abridging RKBA. There is a subtle difference.
It limits ~any~ level of government in the USA from infringments.
The 2nd amendment does not limit state governments from trampling on RKBA. The state's constitution is responsible for establishing that protection.
You did not give any reason why your reading must be the correct one.
Why on earth do you WANT a state to have the power to infringe upon one of your inalienable rights?
Your position makes no sense.
I've already given a very logical and widely agreed upon disposition of what Article 6 means in this context. No need for me to repeat it.
Your ideas about "states rights" are being used by states like CA to violate our 2nd amendment, by prohibiting so-called 'assault weapons'.
They are not my ideas but the framers' ideas. I did not use the phrase "state's rights." CA cannot violate the 2nd amendment if it only restricts the federal government.
Our existing constitution condemns CA's violation.
I agree. In essence, it condemns it.
States have never had the power to violate our inalienable rights to life, liberty, and property.
I agree. But that is not due to the Supremacy Clause OR the BOR, which each have their specific meanings.
Why is it necessary, -in your mind-, to trust state/local government to honor our individual rights?
It is not a matter of trust, but of responsibility. We cannot trust the states or the federal government: they serve at our pleasure.
I have no problem with a judge over riding a verdict for the benefit of the defendant. It is the reverse that is horrible.
Right now, they habitually lie to jurors telling them that they MUST take the law as the judge explains it to them. They also block exculpatory evidence, if it may help to convince the jury to nullify (example-forbid the defendant to mention his medical need for Marijuana as they put him in jail as a drug user/pusher.
I do not want any state to have the power to infringe on rights, quite the contrary. However, there is no certain way of guaranteeing it. The Constitution does not create any federal apparatus for reaching down into the states and adjudicating whether or not the state has fulfilled its responsibility of protecting individual rights.
You did not give any reason why your reading must be the correct one.
Why on earth do you WANT a state to have the power to infringe upon one of your inalienable rights?
Your position makes no sense.
I do not want any state to have the power to infringe on rights, quite the contrary.
Belied by your own words, just above. You claim:
"The 2nd amendment does not limit state governments from trampling on RKBA." -- You can't have it both ways.. States do not have such powers. You claim they do..
However, there is no certain way of guaranteeing it. The Constitution does not create any federal apparatus for reaching down into the states and adjudicating whether or not the state has fulfilled its responsibility of protecting individual rights.
Wrong.. We have a supreme court to ajudicate such issues..
And if they continue to allow CA to violate our RKBA's, changes ~will~ be made..
Where do we disagree? In the manner in which powers are conferred, and the manner in which the protection of liberties is codified.
I agree to explain how I maintain these two assertions. You have said that I cannot have it both ways. The two assertions are:
1. I do not want any state to have the power to infringe on rights, quite the contrary.
2. The 2nd amendment does not limit state governments from trampling on RKBA.
If the state of CA confiscates your firearm, I am dead-set against that. It should not have given itself the power to do that. The citizens of CA and of other states should not stand for it. Thank goodness most other states have had wiser founders. And thank goodness the federal government limits itself from such a travesty. And it codified the 2nd Amendment to make dead sure of it.
How much more can I underscore this? I think it is wrong. I want it changed. Among other things, the wrongful CA Constitution is clearly having the effect of inducing people such as yourself to grant even more influence to the Supreme Court, which already has way too much.
Where did the state get the power to give itself the power to [confiscate firearms]?
It is not legitimate. The federal government did not give it that power. It arrogated the power unto itself.
The Bill of Rights was demanded only as a limit on the Federal government:
"If you give up these powers, without a bill of rights, you will exhibit the most absurd thing to mankind that ever the world saw — government that has abandoned all its powers — the powers of direct taxation, the sword, and the purse. You have disposed of them to Congress, without a bill of rights — without check, limitation, or control.
And still you have checks and guards; still you keep barriers — pointed where? Pointed against your weakened, prostrated, enervated state government!
You have a bill of rights to defend you against the state government, which is bereaved of all power, and yet you have none against Congress, though in full and exclusive possession of all power!
You arm yourselves against the weak and defenceless, and expose yourselves naked to the armed and powerful. Is not this a conduct of unexampled absurdity?
What barriers have you to oppose to this most strong, energetic government? To that government you have nothing to oppose. All your defence is given up. This is a real, actual defect. It must strike the mind of every gentleman. " Patrick Henry 1788
And that is what it was, a limit only on the federal government:
"But it is universally understood, it is a part of the history of the day, that the great revolution which established the Constitution of the United States was not effected without immense opposition. Serious fears were extensively entertained that those powers which the patriot statesmen who then watched over the interests of our country deemed essential to union, and to the attainment of those invaluable objects for which union was sought, might be exercised in a manner dangerous to liberty. In almost every convention by which the Constitution was adopted, amendments to guard against the abuse of power were recommended. These amendments demanded security against the apprehended encroachments of the General Government -- not against those of the local governments. In compliance with a sentiment thus generally expressed, to quiet fears thus extensively entertained, amendments were proposed by the required majority in Congress and adopted by the States. These amendments contain no expression indicating an intention to apply them to the State governments. This court cannot so apply them. " Supreme Court 1833 Barron v. Mayor & City Council of Baltimore, 32 U.S. 243 (1833)
(there is a link to a Libertarian 'Living Constitution' commentary at the bottom of the page which you might enjoy).
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