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
John / Billybob
-- Among the ones it rejected was an amendment that would have made the Bill of Rights applicable to the state governments as well as the national." The underlined was the only point I was trying to make.
Which you have failed to make, as the point is redundant, given the supreme "Law of the Land". [see Art VI]
And, Congressman Billybob, perhaps you can correct the other historical morons who insist that the first eight amendments of the BOR, when written, applied to the states as well as the federal government? (Since you seem to be in the "historical moron correcting" kind of mood.)
I doubt that B-bob will respond on point, as he has appeared unwilling in the past to defend our Constitutions supremacy clause. -- That clause seems to give a lot of lawyerly types problems. I've long surmised that this may be due to the fact that if the clear words of our BOR's/Constitution were followed, it would throw many of them out of work.
Billybob wrote:
The first words of the First Amendment are, "CONGRESS shall make no law ...." It is crystal clear that the Bill of Rights was written to restrain the power and reach of the federal government only.
Not true. Those "first words" do not lead to that conclusion.
The BOR's are part of the supreme "Law of the Land". - Thus, it is crystal clear that the Bill of Rights was written to restrain the power and reach of all levels of government, fed, state, & local.
The 9th & 10th amendments then prove that it is the peoples rights that are protected from powers not delegated to the US, nor prohibited by the constitution to the states.
Our RKBA's is quite clearly enumerated, and is not to be infringed. - Period. ---- Such infringements are prohibited to States by the 'Law of the Land'. [See Art. VI.]
As a self proclaimed constitutional lawyer who has argued before the USSC B-bob, -- it is simply mind-boggling that you cannot address the simple facts I've outlined above.
Why is that?
Of course the Constitution is the "supreme Law." For reasons cogently explained in the Federalist, either it is the supreme law, or it is ineffective. But you leap from that jurisprudential verity to the conclusion that restrictions and definitions in the Constitution should be ignored.
When the Constitution says "Congress" it means Congress. Is that hard to understand? By your logic, the restriction of the Presidency to native-born Americans over the age of 35 should also be ignored, because the Constitution is the supreme law. Therefore, anyone should be allowed to run for President. You seem to think that the Constitution is overruling itself on the subject of the Bill of Rights.
Wrong, wrong, wrong. You should leave alone subjects that you do not understand.
Congressman Billybob
That's the way it is now because of the 14th amendment!
Dred Scott was decided before the 14th amendment. Slaves could be citizens of the state in which they resided, but they could not be citizens of the United States without Naturalization.
The answer, I think, is basically "no". What possible impact could a restraint on state law have on federal law. Indirectly, incorporation would involve clarification of the scope of the "right" in question and, since the federal government has had the arrogance to outlaw bayonet lugs, there is some hope that any clarification might bring about on overturning of such tyrannical laws.
The answer is "no".
"Please provide an act of "incorporation" which used the "due process" clause."
From the above cite:
"The "incorporation" of freedom of speech dates to the 1925 Gitlow v. New York case, when the court said, "For present purposes we may and do assume that freedom of speech and of the press -- which are protected by the First Amendment from abridgment by Congress -- are among the fundamental personal rights and 'liberties' protected by the due process clause of the Fourteenth Amendment from impairment by the States."
NOT the P&I clause.
The first words of the First Amendment are, "CONGRESS shall make no law ...." It is crystal clear that the Bill of Rights was written to restrain the power and reach of the federal government only.
Not true. Those "first words" do not lead to that conclusion.
The BOR's are part of the supreme "Law of the Land".
- Thus, it is crystal clear that the Bill of Rights was written to restrain the power and reach of all levels of government, fed, state, & local.
The 9th & 10th amendments then prove that it is the peoples rights that are protected from powers not delegated to the US, nor prohibited by the constitution to the states.
Our RKBA's is quite clearly enumerated, and is not to be infringed. - Period. ---- Such infringements are prohibited to States by the 'Law of the Land'. [See Art. VI.]
As a self proclaimed constitutional lawyer who has argued before the USSC B-bob, -- it is simply mind-boggling that you cannot address the simple facts I've outlined above.
Why is that?
Ah, tpaine, you intellectual ankle-biter. You've found yet another constitutional subject about which you are as dumb as a hoe handle.
Ah, b-bob, typically you again make personal asides in an effort to disguise your inability to argue the issue.
Of course the Constitution is the "supreme Law." -- But you leap from that jurisprudential verity to the conclusion that restrictions and definitions in the Constitution should be ignored.
Nope, not at all. You're simply lying when you claim I've ignored any 'definitions/restrictions'. - You can't cite the instances, can you?
When the Constitution says "Congress" it means Congress. Is that hard to understand?
Not at all. "The first words of the First Amendment, -- "CONGRESS shall make no law ...." can be understood to apply to the rest of the 1st amendment. But then YOU make a leap to apply those words to amendments 2 thru 7. -- Why?
The 2nd amendment clearly applies to an inalienable right of the people of the United States.
By your "dumb as a hoe handle" logic only Congress is prohibited from infringing upon our RKBA's, despite the clear words of our supremacy clause in Art VI.
Why is that? - Why do YOU want States to have the power to prohibit assault weapons, b-bob?
Perhaps it is you who should leave alone subjects that you do not understand, "Congressman" Billybobby.
Looks as though they simply declared it to be so.
"Their reference to the First Amendment protection is only relevant in light of the "privileges and immunities" which are extended to citizens of the United States."
Nowhere in the case is P&I mentioned. What's with you and P&I? Get off it -- it's irrelevant.
I said, read it again. The logic of the decision, apart from the lack of a specific reference to "P&I" seems pretty irrefutable to me.
The decision was that Gitlows "liberty" of free speech was not deprived without due process. This determination depends completely upon the determination that freedom of speech was among those liberties protected. Pray tell me how it came to be that freedom of speech became protected for Gitlow relative to a state law which was determined NOT to deny Gitlow due process? The "due process" issue was decided AGAINST Gitlow. It was in now way responsible for "incorporation".
I would welcome anyone else's comments, since this is the exact point at which previous threads have ended, with robertpaulsen insisting that "incorporation" is a "due process" issue. That is semantic nonsense.
The word "incorporate" comes from the latin "in" and "corpus". It means "to bring into the body". It refers to bringing into the body of privileges and immunites of citizens of the various states a privilege or immunity of citizens of the United States.
If that is not what "incorporate" refers to in this case, then please tell us how you define it?
The first item in the syllabus of the Gitlow decision reads as follows:
1. Assumed, for the purposes of the case, that freedom of speech and of the press are among the personal rights and liberties protected by the due process clause of the Fourteenth Amendment from impairment by the States.
This is an essential part of the decision. The question is "is freedom of speech PROTECTED by the due process clause". The PROTECTION is by virtue of a prohibition against depriving of liberty without due process. The decision states that there was no deprivation of due process. The question is only relevant if there is a prohibition against deprivation of due process. This only exists because "freedom of speech" applies to the states.
The Supreme Court was probably reluctant to be more explicit because it would make it obvious that such things as the right to keep and bear arms would also be incorporated if they explained their "assumption".
Please explain how this very famous case, which was decided AGAINST the defendant, resulted in incorporation? It should be obvious to you that not everything went the way that Gitlow wanted. He was successful at having freedom of speech included in his liberties through "incorporation". He was unsuccessful at having the state law ruled unConstitutional by virtue of a deprivation of "due process".
If only the second item had been accomplished, we would not be talking about this case.
The USSC ruled "that "freedom of speech and of the press" are among the personal rights and liberties protected by the due process clause of the Fourteenth Amendment from impairment by the States".
OK. That's established. Now, on to the case itself.
What speech is Gitlow attempting to use? Why, he's promoting the overthrow of the government! Can that speech be curtailed by the government? The answer was yes.
The bottom line? States must now protect your right to freedom of speech. States, however, "may forbid both speech and publication if they have a tendency to result in action dangerous to public security, even though such utterances create no clear and present danger."
And since there was no denial of "due process", what is the only mechanism by which the Supreme Court was able to determine that freedom of speech is protected? Remember, now, THERE WAS NO DENIAL OF DUE PROCESS. What is it that enabled the Supreme Court to require "due process" in this case. Remember, now, they referred to the First Amendment which reads "Congress shall make no law ...". What is it that makes the First Amendment relevant to this case? The First Amendment makes no mention of "due process". Remember, Gitlow LOST the case and yet the case is of great importance legally.
Try to explain how there was NO denial of due process and yet "incorporation" happened?
He happened to lose his case -- but that doesn't mean due process was denied to him.
In fact, that is why he lost his case. He did not lose his case because the First Amendment did not apply to him.
You have recognized that there were two issues in the case. The second issue was whether due process was denied. The court found that due process had not been denied.
The first issue was whether or not the "due process" clause was even applicable. The court "assumed" that the First Amendment was among the "liberties" protected from deprivation of due process by the states. If the court had not made this "assumption", then there would have been no protection regarding due process.
"Due process" played no part whatever in deciding the first part of the case. The Supreme Court noted that the First Amendment, which only specifies that "Congress shall make no law", applies to the states.
Now, where did the Supreme Court come up with the idea that the liberty of free speech which is protected in the First Amendment is a liberty which the states must recognize? This case is notable because, prior to this case, the First Amendment did not create an obligation on the part of the various states to protect that liberty.
The Court was able to make this decision because the Fourteenth Amendment has more clauses than just the "due process" clause. All issues of "due process" were decided against Gitlow. The only decision that the Supreme Court made which was notable was that the First Amendment limits state action.
That is what is called "incorporation". It was an invented term to describe the glacially slow pace with which the Supreme Court deals with the applicability of the Bill of Rights to the states. Such applicability arises due to the "P&I" clause of the Fourteenth Amendment.
The First Amendment provides "immunity" of the citizens of the United States. That is the reason that it was mentioned in the Gitlow case. Issues solely of "due process" would not have required consideration of the First Amendment.
OK. That's established. Now, on to the case itself.
ALL of our personal rights & liberties are protected by due process, and always have been, regardless of USSC 'rulings'.
What speech is Gitlow attempting to use? Why, he's promoting the overthrow of the government! Can that speech be curtailed by the government? The answer was yes.
Bad 'ruling'. It could be claimed that YOU paulsen, -- are promoting the overthrow of our Constitutionally guaranteed "republican form of government" with your 'States rights' nonsense. Can your speech be curtailed?
The bottom line? States must now protect your right to freedom of speech. States, however, "may forbid both speech and publication if they have a tendency to result in action dangerous to public security, even though such utterances create no clear and present danger."
Are your utterances dangerous to public security paulsen? I think the case has merit, and maybe I can get our county prosecutor to agree..
Its well know that a ham sandwich can be indicted in some States.
Wanna argue that point too?
I was reluctant to get into this because it seemed difficult enough just to identify what the Court did.
The judicial error here is that the consideration given to the First Amendment, which reads "Congress shall make no law ... abridging the freedom of speech, or of the press;", is very understated. The Court should have applied this as "State legislatures shall make no law abridging the freedom of speech".
Instead, the Court made up its own version of the First Amendment to apply to the states having exceptions for speech which encourages destruction of the state. If our Founders had wished such exceptions, they could have included them.
It's interesting that the wording of the "assumption" is as weak as it was. The legal world properly understood that the Court would have no business deciding this case without "incorporation" of freedom of speech", but the wording almost left the Court open to later reversing themselves by suggesting that they overstepped by taking the Gitlow case and that, in fact, there is no liberty to protect from state deprivation of due process.
There is a principle in law, I believe, which requires courts to tread as lightly as possible on existing precedent and law in their decisions, consistent with making the proper determination. This must have been a case when they decided that it would be absolutely incorrect for them to just refuse the case.
Someone more knowledgeable than I will need to tell us what decisions have been made up to the present time regarding freedom of speech. I think it may now include lap-dancing. This is probably far preferable to the situation in China. There the authorities are attempting to hold back the tide of the internet with a tennis racket.
The combination of cryptography with steganography ( hiding messages in random-appearing areas of digital pictures) will give the Chinese authorities big headaches and break their budgets with the computers they will have to install to control a billion people.
Free Speech! What a concept.
Exactly.
The USSC has a completely compromised brand of 'logic' by claiming that a State "must now protect your right to freedom of speech", but that it can, -- "forbid both speech and publication if they have a tendency to result in action dangerous to public security, even though such utterances create no clear and present danger." Protecting speech by forbidding it is an absolutely ludicrous concept.
He was present at the calls of Patrick Henry: "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."...
and of George Mason: " The government of Virginia, he remarked, was drawn from the people; yet there were certain great and important rights, which the people, by their bill of rights, declared to be paramount to the power of the legislature. He asked, Why should it not be so in this Constitution? Was it because we were more substantially represented in it than in the state government? If, in the state government, where the people were substantially and fully represented, it was necessary that the great rights of human nature should {445} be secure from the encroachments of the legislature, he asked if it was not more necessary in this government, where they were but inadequately represented? He declared that artful sophistry and evasions could not satisfy him. He could see no clear distinction between rights relinquished by a positive grant, and lost by implication. Unless there were a bill of rights, implication might swallow up all our rights. " at the Virginia Constitutional Ratification Convention for a Bill of Rights. He recognized, like Madison, that the Constitution would never have been ratified unless the calls of these and other anti-federalists to limit the powers of the new central government were answered by a Bill of Rights.
The Constitution is an historical fact. The limitations imposed on the federal government by the likes of Henry and Mason were not removed by living constitutionalists, but by the Fourteenth Amendment.
(The selective "incorporation" of the Fourteenth Amendment is an arbitrary mess. If incorporation were done logically the Second would, of course, wholly apply to the states now. For better or worse.)
Well, they meant something to the authors of the Fourteenth Amendment. That's why it had to be written.
Nowadays living constitutionalists can claim the Constitution means whatever it means to them, but there used to be more respect for our Founders.
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