Posted on 06/02/2004 12:44:36 PM PDT by neverdem
Richard Skidmore is a professor at Los Angeles Pierce College, Woodland Hills, California, having taught at Pierce College since 1975.
O’ Hear ye, the 9th U.S. Circuit Court of Appeals has ruled in their December decision that the Second Amendment of the Constitution was not adopted "to afford rights to individuals with respect to private gun ownership or possession."
The left hails this courts decisions as decisive and correct, while the right sees the court as a bulwark to destroy our republican form of government and forging the links in chains of usurpation. Remember, this is the same federal court that declared the Pledge of Allegiance an unconstitutional endorsement of religion and has a record of more decisions reversed than any other court.
Have these judges made a sound judicial decision or legislated from the bench? The answer is in our history, our Constitution and especially the Second Amendment, a part of our "Bill of Rights." Some may think that surely this is a trick question that only a judge can divine. However, I assure you that the answer is meant for the common man in jury to resolve.
Judge for yourself, the Second Amendment states: "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."
Today’s media debates are often pro-gun and anti-gun advocacy matches. But reviewing the debates that confirmed our Constitution and our "Bill of Rights" we recognize that today’s debates are similar to those of 1787: Should we have a federal government that is overreaching and infringes on individual liberties or should the individual be protected and the federal government be limited?
Indeed I hear your question: Where can I find the answer to a limited or infringing government which in turn can resolve the debate on gun control and determine if the 9th Circuit Court gets an A or an F in its decision?
The answer is in two books, "The Federalist Papers" and "The Anti-Federalist Papers." One may obtain them at any quality bookstore, each at under $10.
Federalists sought a central federal government to assure a "more perfect union," with the benefits that an energetic government would bring in commerce and prestige much as England had. James Wilson, Supreme Court Justice and signer of both the Declaration of Independence and the Constitution, saw with particular clarity, strong government could as much serve the people when controlled by them as it could injure them when it was hostile.
Anti-federalists were skeptical of any new constitution and saw the federalist hopes as lust by ambitious men for a "splendid empire" where, in the time-honored way, "the people would be burdened with taxes, conscriptions, and campaigns." They saw the enlarged powers of any central government as familiar threats to the rights and liberties of the people.
Be not mistaken in this, Federalists understood the need to limit the powers of government having endured the long struggle to end the "tyranny" of kings and wanted insurance that government would be faithful to the people, stable, and filled with wisdom in its enactments.
As the debate over the new Constitution progressed, anti-federalist objections crystallized into specific proposals for amendments that would assure the new federal governments limited powers. In some state conventions, these amendments were insisted upon prior to their ratifying the Constitution. Their proposals being similar in nature were later included as the first ten amendments, which we call "The Bill of Rights."
Consider Virginia, in 1788, offered 20 amendments for consideration.
Its 17th states: "That the people have a right to keep and bear arms; that a well-regulated militia, composed of the body of the people trained to arms, is the proper, natural, and safe defence of a free state; that standing armies, in time of peace, are dangerous to liberty, and therefore ought to be avoided, as far as the circumstances and protection of the community will admit; and that, in all cases, the military should be under strict subordination to, and governed by, the civil power."
Similarly Pennsylvania, upon ratification, issued 14 recommended amendments and the 7th reads: "That people have a right to bear arms for the defense of themselves and their own state … and that the military shall be kept under strict subordination to and be governed by the civil powers."
Considering our recorded history, one could reasonably ask: Did the 9th Circuit judges abrogate the history of our nation, ignore the grievances that compelled us to separate from England, discard the debates of the Federalists and Anti-federalists, legislate from the bench which is not their responsibility, and thus compel another re-writing of our natural history to justify their decree, relying on the general ignorance of the people to allow their decisions to stand? A simpler question is: What part of "shall not be infringed" is not understood?
Richard Skidmore is a professor at Pierce College in Woodland Hills, Ca. He may be contacted at rskidmor49@excite.com.
© Copyright 2003 by Magic City Morning Star
"In spite of the intent of it's Congressional authors, as documented in the Congressional record, that it apply the first 8 amendments to the states)"
Geez, too bad they just didn't spell it out instead of listing things like "due process" and "priviledges and immunities" and "equal protection", huh?
Now, some would say that the intent of the 14th amendment was to to nullify the holding of the United States Supreme Court in Dred Scott v. Sandford, 19 How. 404 (1856), thereby providing citizenship for former slaves and giving them full civil rights.
But what do they know?
Even a racist like Chief Justice Roger B. Taney knew that if Blacks were citizens, they had a right to bear arms (see Dred Scott quoted above). The only way he had out the logical box was to declare that they were property, not citizens.
Simple. Just sit at your little keyboard and type, "You can't! It's unconstitutional!". Standard response which doesn't call for any thinking. Idiots.
In actuality, the banning or regulation of any weapon is done at the state level within the limitations of the state constitution. California is FUBAR because their state constitution says nothing about guns. My state, Illinois, is only slightly better.
The federal government has no authority in this area under the second amendment. Any law they pass under the second amendment would only apply to the federal government, not the states, since the second amendment only applies to the federal government.
That's why the federal Gun Control Act of 1968 and the federal AWB of 1994 were passed under the Commerce Clause, not the second amendment.
Your RKBA is a fundamental right (some call it a natural right) which is regulated by your state when you become a member of society and are then protected and governed by those laws.
You want to be a mountain man, separate from society, governed by the laws of nature, fine. You have the right to defend yourself however you wish.
But, once you become part of a society, a citizen of a state, you are governed by those laws.
Any idea why it was rejected? Of those approximately 200 amendments, were any rejected because they were considered superflous or redundant?
By the way RP that quote from Senator Howard is here
http://www.ourdocuments.gov/doc.php?flash=old&doc=43. The original intent of the 14th Amendment CLEARLY applies the BOR to the states per the Congresional Record. That courts have ruled otherwise is only because they are in ERROR.
If the first amendment states that, "Congress shall pass no law ...", then why does the first amendment apply to the states? It specifically says "Congress".
See my post #114.
The BOR originally applied only to the newly-formed federal government. Years after the passage of the 14th amendment, some, but not all, of the BOR were applied to the states in a process known as selective incorporation.
The second amendment has not been incorporated, and only applies to the federal government. Your gun rights are secured by your state constitution
Paulsen, it is truly amazing to see you post day in an day out, -- advocating that State & local governments be allowed to violate your own constitutional rights.
-- What's your angle? What will you gain by losing your freedom?
You retort:
Advocating? I'm stating a fact which you cannot dispute, so you attack my motives?
I've disputed your misstatement of the facts for years, in every particular. Your refusal to acknowledge the supremacy clause raises doubts as to your motives.
Sorry, but that's the way the U.S. Constitution was written by the Founding Fathers.
Yep, our Constitution is the supreme "Law of the Land". Admit it.
When Jefferson was working on the BOR, he was presented with an amendment which would apply the BOR to the states -- he rejected it.
As being redundant. How many times must that be repeated to you?
It wasn't until years after the ratification of the 14th amendment in 1868 -- a change to the U.S. Constitution as originally drafted -- that some of the BOR were applied to the states.
The BOR's always applied. The 14th was passed to put a stop to violations of them [the RKBA's in particular] by various States.
Someone tells you the sky is blue and your response is, "I wonder why he said that? Is he saying the sky should be blue? Well, if he says it's blue, then I know it's not blue despite my lying eyes." Get a grip. Argue the facts, if you can. Otherwise ....
I argue the facts, then ask why you ignore them.
-- So you whine that I'm attacking your motives.. Daft.
You're saying the BOR always applied to the states -- even the first amendment which specifically states, "Congress shall make no law ...". Is that correct, or are you making an exception for the first amendment?
Now, you're also saying that since the BOR applied to the states, for the last 215 years "the courts have failed to enforce the Constitution and that legislatures pass unconstitutional laws".
That's your position, huh? And that makes sense to you?
Who are you arguing against?
Actually, the Constitution is the supreme law of the land, and superscedes state and local laws as well. Otherwise, states could have opted out of prohibition, and voting rights could be denied in state and local elections. I don't recall the Amendment that extended it to the states and localities off-hand, but I believe that it's implied in the Amendment. Of course, given the courts' and politicians' penchant for completely ignoring the 10th Amendment places all control in the hands of the federal government.
Mark
Please respond to the quote of the Senator who introduced the 14th Amendment to the Senate first. To me, that is clear evidence of original intent, and should cover the question of what status court decisions subsequent to passage of the 14th Amendment stand in, which do not apply the first 8 items of the BOR to the states (i.e. they are in ERROR). Then I will answer your further questions about whether or not the BOR applied before the passage of the 14th Amendment (and by the way, yes I am saying that Congress passes unconstitutional laws [see the Campaign Finance Reform Act for starters]).
Fanatics like rp are only trying to protect their tinpot dictator status from us peons.
robertpaulsen also said: "Years after the passage of the 14th amendment, some, but not all, of the BOR were applied to the states in a process known as selective incorporation.
I think I am beginning to see the difficulty we are having. You seem relatively content to describe "what is" whereas some of us feel justified in dealing with "what should be".
There is no mechanism, save that invented by the Supreme Court, to cause "privileges and immunities" to suddenly spring up as the result of one of their decisions.
The Gitlow decision was a recognition that freedom of speech is a privilege and immunity whose infringement is prohibited by the states through action of the Fourteenth Amendment. Freedom of speech, itself, is an unalienable right granted by our Creator.
In much the same fashion, the human right to self defense, (as enumerated in the Kalifornia Constitution) includes the right to utilize human tool-making skills to arm oneself suitably to fend off an attack by criminals or tyrannical governments. This right was not created by the Second Amendment nor is it in any way dependent upon it for its continuation.
That the right to keep and bear arms is among the "priveleges and immunities" of free people was explicitly stated by the Supreme Court in Dred Scott. Suggesting that lack of more recent Supreme Court decisions recognizing this immunity causes it not to exist, is to grant the Supreme Court the power to create privileges and immunities. There is no such power granted to the Supreme Court.
Well put...
The objective of non-incorporationalists (or partial incorporationalists) is pretty clear. To wit, minorities may not look to the Federal government for protection of their fundamental rights from the tyranny of majorities in the States. Admitedly the Feds have gone way beyond their enumerated powers, but that does not excuse the States from the limits on their powers imposed by the Constitution.
You are ignoring the Supremacy Clause again. Any law Congress passes is the Supreme Law of the Land until either the USSC overturns it or Congress rescinds it. The Feds can enforce their laws within States if it's on the books.
Did you forget what you wrote here?--
Should the federal ban on assault weapons be... Freep this CNN Poll (assault weapon ban Posts 101 through 122 should refresh your memory.
That's why the federal Gun Control Act of 1968 and the federal AWB of 1994 were passed under the Commerce Clause, not the second amendment.
Yes, that would be the New Deal "substantial effects" sophistry which you defend so vigorously. I believe you called it "using the full potential of the Commerce Clause" or something like that.
He solicited ideas for the BOR from the thirteen states, and consequently a lot of them were redundant, yes.
"... the 13 state conventions produced a dizzying list of recommendations-210 different amendments to be precise, covering 80 different areas."
-- firstamendmentschools.org/resources/newsweekone.html
As to his rejection of the amendment, it's my guess that it went against the whole concept of independent states. (IIRC, only five had state constitutions at the time of the signing of the Constitution, and he encouraged the remainding states to write one!)
" Madison urged that “No state shall violate the equal rights of conscience, or the freedom of the press, or the trial by jury in criminal cases,” but this was rejected apparently because Congressmen wanted a bill of rights applying only to the central government, not the states."
-- libertystory.net/LSUNFORGETBATTLEFORBILLRIGHTS.htm
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