THE BILL OF RIGHTS Amendments 1-10 of the Constitution

the people

[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.

[tpaine]

the state [does not have ] the power to give itself the power to [confiscate firearms]
It is not legitimate. It arrogated the power unto itself.

---

Yet you claim:
"2. The 2nd amendment does not limit state governments from trampling on RKBA."


Can you agree that 'we the people' can ratify a constitution that says:

'The 2nd amendment limits state governments from trampling on our RKBA?'

I submit we did so, back in 1791.

You must admit that in the territory of CA, before statehood, US citizens had a RKBA's, -- yet you insist, because of a oversight, modern CA can now ban arms..
This is an illogical position.

[Nanodik]

In some cases, the USC limits the federal govt, in others it empowers the individual. If we are to take your interpretation, the DOI was overwritten by the USC. Why do you suppose the first 10 amendments are referred to as "The Bill of Rights"? Were they speaking of state's rights or individual rights? Let's take the 4th and 5th amendments, for instance. The 4th mentions neither the state or federal govt. It does mention the "people". What good would this amendment be since, at the time of the constitution, 99.9% of criminal cases would have been tried in state courts? The same can be said of the 5th. In your interpretation, "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" would mean that a state court could compel someone to give testimony against themselves. The constitution is clear and in keeping with the DOI. Rights belong to individuals, are God-given, and "inalienable".

[tpaine]

Commentary by Jon Roland:

" --- we can see Barron as a decision like that of Dred Scott, intended to avoid a rupture among the states.

At the time the rights recognized in the Bill of Rights were being violated by state courts in the slave states, which is what laid the basis for the 14th Amendment following the Civil War.
We can see Barron as an attempt to evade a confrontation.

Barron was wrongly decided, and needs to be overturned.

Federal courts should not accept jurisdiction of state civil rights cases unless or until all recourse within the state courts has been exhausted, but it should accept jurisdiction over appropriate cases involving any of the rights recognized in the Bill of Rights after that has occurred, and extend all of those protections to cases between a citizen and his state.

Especially important are the protections of the Second Amendment, the right to a grand jury of the Fifth, and the right not to have state officials or their agents exercise undelegated powers.



Barron v. Baltimore, 32 U.S. 243 (1833)
Address:http://www.constitution.org/ussc/032-243jr.htm Changed:5:44 AM on Wednesday, December 31, 2003

[mrsmith]

It's not my interpretation.
It is the interpretation of those who wrote and ratified the Constitution and the Bill of Rights.

I'm sorry they mean nothing to you, but your's is obviously not an unusual attitude these days!

[inquest]

What good would this amendment be since, at the time of the constitution, 99.9% of criminal cases would have been tried in state courts?

State constitutions already had protections such as those. The purpose of the Bill of Rights in the federal Constitution was to keep federal powers in line (as state constitutions kept state powers in line). The preamble to the Bill of Rights explains this.

[tpaine]

"It's not my interpretation."
-mrsmith-

---

Well it is sure -NOT- the interpretation of those who wrote and ratified the Constitution and the Bill of Rights, -- that our individual rights could be violated by governments of any sort..

It is incredible how you 'states righters' will try to rationalize giving a state the power to control life, liberty, & property..
Why do you abandon your own freedoms?

[tpaine]

inquest wrote:
State constitutions already had protections such as those.

---

States have always violated our constitution. See #43 & read the link:

Commentary by Jon Roland:

" --- we can see Barron as a decision like that of Dred Scott, intended to avoid a rupture among the states.
At the time the rights recognized in the Bill of Rights were being violated by state courts in the slave states, which is what laid the basis for the 14th Amendment following the Civil War.
We can see Barron as an attempt to evade a confrontation.
Barron was wrongly decided, and needs to be overturned.

[inquest]

From the link:

The argument made by Justice Marshall in his dictum in Barron is that the Constitution established only the federal government, and therefore any recognition of rights it might provide were only against that government. This argument implicitly denies that the rights are fundamental and pre-existing....

Marshall's argument doesn't deny any such thing. It simply makes the observation that the Constitution divides responsibility for protecting rights between the state and federal governments, and as part of that division of duties, does not give the federal government the power to enforce rights against state governments. That's far from saying that rights aren't fundamental.

[Nanodik]

Madison on the Bill of Rights prior to it's adoption:

But whatever may be [the] form which the several states have adopted in making declarations in favor of particular rights, the great object in view is to limit and qualify the powers of government, by excepting out of the grant of power those cases in which the government ought not to act, or to act only in a particular mode. They point these exceptions sometimes against the abuse of the executive power, sometimes against the legislative, and, in some cases, against the community itself; or, in other words, against the majority in favor of the minority. ...But I confess that I do conceive, that in a government modified like this of the United States, the great danger lies rather in the abuse of the community than in the legislative body. The prescriptions in favor of liberty, ought to be levelled against that quarter where the greatest danger lies, namely, that which possesses the highest prerogative of power: But this [is] not found in either the executive or legislative departments of government, but in the body of the people, operating by the majority against the minority. ...It may be said, because it has been said, that a bill of rights is not necessary, because the establishment of this government has not repealed those declarations of rights which are added to the several state constitutions: that those rights of the people, which had been established by the most solemn act, could not be annihilated by a subsequent act of the people, who meant, and declared at the head of the instrument, that they ordained and established a new system, for the express purpose of securing to themselves and posterity the liberties they had gained by an arduous conflict. I admit the force of this observation, but I do not look upon it to be conclusive. In the first place, it is too uncertain ground to leave this provision upon, if a provision is at all necessary to secure rights so important as many of those I have mentioned are conceived to be, by the public in general, as well as those in particular who opposed the adoption of this constitution. Beside some states have no bills of rights, there are others provided with very defective ones, and there are others whose bills of rights are not only defective, but absolutely improper; instead of securing some in the full extent which republican principles would require, they limit them too much to agree with the common ideas of liberty.

Seems to me he is more worried about the state government and the community at large and his reason is that the feds had few enumerated powers in Article 1 Section 8.

[tpaine]

States have always violated our constitution. See #43 & read the link:
Commentary by Jon Roland:

" --- we can see Barron as a decision like that of Dred Scott, intended to avoid a rupture among the states.
At the time the rights recognized in the Bill of Rights were being violated by state courts in the slave states, which is what laid the basis for the 14th Amendment following the Civil War.
We can see Barron as an attempt to evade a confrontation.
Barron was wrongly decided, and needs to be overturned.
47 tpaine

---

From the link:
"The argument made by Justice Marshall in his dictum in Barron is that the Constitution established only the federal government, and therefore any recognition of rights it might provide were only against that government. This argument implicitly denies that the rights are fundamental and pre-existing...."


Marshall's argument doesn't deny any such thing. It simply makes the observation that the Constitution divides responsibility for protecting rights between the state and federal governments, and as part of that division of duties, does not give the federal government the power to enforce rights against state governments. That's far from saying that rights aren't fundamental.
48 -inquest-

---

And your point is? - Do you agree we have fundamental rights that cannot be violated by any level of government?

[inquest]

Yes, I've always agreed with that. What I don't agree with is the view that the federal government (at least pre-14th amendment) was given the power to keep states in line in that regard.

[inquest]

Madison spoke those words before the BOR was even drawn up. He was making a motion to get the House of Representatives to consider drawing up these amendments. And yes, he did initially intend to have some provisions apply to the states, but that idea was explicitly rejected. In fact, it would be instructive to look at his proposed amendments. This is a link to the passage you quoted. It includes his proposed amendments. Lets look at these provisions in particular:

"The civil rights of none shall be abridged on account of religious belief or worship, nor shall any national religion be established, nor shall the full and equal rights of conscience by in any manner, or on any pretext infringed.

"The people shall not be deprived or abridged of their right to speak, to write, or to publish their sentiments; and the freedom of the press, as one of the great bulwarks of liberty, shall be inviolable."

"No state shall violate the equal rights of conscience, or the freedom of the press, or the trial by jury in criminal cases. "

Now, if the two on top applied to all levels of government, there would have been no need to repeat them below. Hence, Madison, as well as everyone else in Congress, understood that unless the states were explicitly mentioned, general prohibitions on power contained in the Constitution applied to the federal government only.

[mrsmith]

That is a very misleading excerpt of Madison's speech, HERE is a complete transcript.
"the abuse of the powers of the general government may be guarded against in a more secure manner than is now done" is the heart of his speech and of the entire debate on the Bill of Rights.

Madison did propose some limitations on the state governments for the Bill of Rights:
"I wish also, in revising the constitution, we may throw into that section, which interdicts the abuse of certain powers in the state legislatures, some other provisions of equal if not greater importance than those already made. The words, "No state shall pass any bill of attainder, ex post facto law, &c." were wise and proper restrictions in the constitution. I think there is more danger of those powers being abused by the state governments than by the government of the United States. The same may be said of other powers which they possess, if not controlled by the general principle, that laws are unconstitutional which infringe the rights of the community.
I should therefore wish to extend this interdiction, and add, as I have stated in the 5th resolution, that no state shall violate the equal right of conscience, freedom of the press, or trial by jury in criminal cases; because it is proper that every government should be disarmed of powers which trench upon those particular rights. I know in some of the state constitutions the power of the government is controlled by such a declaration, but others are not. I cannot see any reason against obtaining even a double security on those points; and nothing can give a more sincere proof of the attachment of those who opposed this constitution to these great and important rights, than to see them join in obtaining the security I have now proposed; because it must be admitted, on all hands, that the state governments are as liable to attack these invaluable privileges as the general government is, and therefore ought to be as cautiously guarded against. "(from the same speech)

But they were quickly removed in the congress and were never even offered for ratification.

Some people say that Madison was just playing politics " nothing can give a more sincere proof of the attachment of those who opposed this constitution to these great and important rights, than to see them join in obtaining the security I have now proposed" (sticking it to the anti-federalists!), I don't know. Later he would certainly not want the federal government courts to have such power, but at the time he was quite the Federalist.

[tpaine]

And your point is? - Do you agree we have fundamental rights that cannot be violated by any level of government?
50 tpaine

---

Yes, I've always agreed with that.

What I don't agree with is the view that the federal government (at least pre-14th amendment) was given the power to keep states in line in that regard.
-inquest-

---

Why is this USSC protection of fundamental rights a 'problem'?
-- I always end up asking 'states rightists' this same question..

As Roland summarized:

"Federal courts should not accept jurisdiction of state civil rights cases unless or until all recourse within the state courts has been exhausted, but it should accept jurisdiction over appropriate cases involving any of the rights recognized in the Bill of Rights after that has occurred, and extend all of those protections to cases between a citizen and his state.

Especially important are the protections of the Second Amendment, the right to a grand jury of the Fifth, and the right not to have state officials or their agents exercise undelegated powers."

Barron v. Baltimore, 32 U.S. 243 (1833)
Address:http://www.constitution.org/ussc/032-243jr.htm Changed:5:44 AM on Wednesday, December 31, 2003

[gitmo]

Amendment XXVII

No law, varying the compensation for the services of the Senators and Representatives, shall take effect, until an election of Representatives shall have intervened.

How did it get bumped down the list to #27?

[tpaine]

"It's not my interpretation."
-mrsmith-

---

Well it is sure -NOT- the interpretation of those who wrote and ratified the Constitution and the Bill of Rights, -- that our individual rights could be violated by governments of any sort..

It is incredible how you 'states righters' will try to rationalize giving a state the power to control life, liberty, & property..

Why do you abandon your own freedoms?
-46-

---

-- Can't answer the tough ones, aye? --

[gitmo]

Excellent synopsis. I was thinking along those lines and saw your post.

I would add the Eminent Domain laws and all property taxes as violations of Amendment IV & V.

Amendment VII There have been several cases where the judge simply threw out a jury decision because he didn't agree with it.

[inquest]

Why is this USSC protection of fundamental rights a 'problem'?

I didn't say it was.

The power necessary to accomplish that, however, is a problem, because that power can be abused.

[Grand Old Partisan]

Though passed by Congress in 1789, it was not ratified until 1992.

[gitmo]

Talk about tenacity.