Rewrite the Second Amendment?

Magic City Morning Star ^ | Jun 2, 2004 | Richard D. Skidmore

[tpaine]

Notice that smith skipped over my questions at #296 in order to prattle on about "living constitutionalists", the new 'great evil' as defined by the states rights crowd.

[mrsmith]

"Had the framers of these amendments intended them to be limitations on the powers of the State governments, they would have imitated the framers of the original Constitution, and have expressed that intention.
Had Congress engaged in the extraordinary occupation of improving the Constitutions of the several States by affording the people additional protection from the exercise of power by their own governments in matters which concerned themselves alone, they would have declared this purpose in plain and intelligible language.

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. "

[tacticalogic]

Why would Congress vote to admit into the Union a state that knowingly compromised the security and freedom of it's citizens?

[mrsmith]

AFAIK every state met the requirements of the federal militia law when it joined, and provided a republican form of government.

What state didn't?

[tpaine]

" -- These amendments contain no expression indicating an intention to apply them to the State governments.
This court cannot so apply them. "
Chief Justice John Marshall 1833

Notice Marshall's weasel wording qualifier, -"these amemdments"-. ---
The BOR's amendments themselves need no such 'indicators', as the supremacy clause make clear that the States are bound to honor ALL of the constitution as the Law of the Land. Marshall was trying to hold the union together with his erroneous 1833 Barron decision.
His decision gave credence to the states rightists efforts to ignore our BOR's protections, necessitating the passage of the 14th amendment to end the controversy.

-- Needless to say, those who value State power over individual rights are still among us, subverting our most basic principle of personal liberty.
Why they are so obsessed is a true mystery. Can you explain it? -292- Mrs mith, your inablity to comment on my rebuttal to your defense of 'Barron', or to answer my question, are duly noted.

[tpaine]

Why would Congress vote to admit into the Union a state that knowingly compromised the security and freedom of it's citizens?
303 tacticalogic

AFAIK every state met the requirements of the federal militia law when it joined, and provided a republican form of government. What state didn't?
-304-

Poor form mrs mith, as you didn't answer the question.
Calif "compromised the security and freedom of it's citizens" by [imo unknowingly] passing a constitution in 1848 that had no RKBA's provision.
-- Congress unknowingly compounded the error by allowing statehood without such a protection, little realizing the day would come when 'states rights' zealots would use that error to prohibit possession of "assault" type weapons. Why do you favor such gun prohibitions Smith?

[arthurus]

Read the words as they are written. What they have written, they have written. When there is a legitimate queston about the wthe meaning of a word in a clause, one may have recourse to the Founders, like just what did they mean by "militia"? Are you saying the founders had a different meaning for the word "infringe"? or that when a negative is written in the Constitution the Founders must be deemed to have meant a positive? Is "shall not" a qualified phrase when written in the Constitution? Are you saying that a clear statement in the Constitution must be found to have exceptions that are NOT written in that same Constitution? In NO copy of the Constitution that I have seen does it say "...shall not be infringed except..."

[tacticalogic]

Moreover, I don't think a "republican form of government" is sufficient in and of itself. It must be a republican form of government that is consistent with the structure and architecture of our republic, as laid out in the Constitution.

[arthurus]

Your assertion here might be more reasonable if in other amendments it did not "Congress shall make no law..." The amendments are written as specifically as is warranted. Thus the 1st amendment, at least did not apply to the states which had no institutions denoted Congress. A universal ban does not itemize those to whom the ban applies because any itemization limits the application and is surmounted when other institutions are invented that are not specified in the ban. The 2nd does not ban any specific nstitutions from any activity. It bans the activity to occur at all.

[arthurus]

A "living constitution"alist has recourse to the founders if he thinks he can use them to support some fashionable stricture not actually found in the WORDING of the Constitution. That gets you all sorts of echos and penumbrae, and nuances.

[mrsmith]

In NO copy of the Constitution that I have seen does it say "...shall not be infringed by a state"

The reason for that is it would not have been ratified if it had.

The Bill of Rights was not in any fashion a grant of more power over the states or the people to the new government.

[mrsmith]

"A "living constitution"alist has recourse to the founders if he thinks he can use them to support some fashionable stricture not actually found in the WORDING of the Constitution. " Such as "by a state".

So what Founder can you take recourse to to support including "by a state" in the Second Amendment?
I'd appreciate hearing that as none of the living constitutionalists have so far offered anything but contempt for the Founders' to support their opinions.

[arthurus]

It does not say by anyone in the amendment. That is the whole argument. There is no specified agency. The prohibition is total. Your phrase "by a state" would be linguistically nonsensical placed in that sentence. You are shooting at things that are not there. What part of "shall not be infringed" do you not understand?

[mrsmith]

Since it doesn't say it applies to a state therefore it applies to a state. Fascinating view of federalism there.

No wonder none of you have a Founder to cite for your interpretations.

Or even think you should have one.

" ...in every inhibition intended to act on State power, words are employed which directly express that intent; some strong reason must be assigned for departing from this safe and judicious course in framing the amendments before that departure can be assumed. We search in vain for that reason. "
John Marshall, Barron 1833

"All the restraints intended to be laid on the state governments (besides where an exclusive power is expressly given to Congress) are contained in the 10th section of the 1st article..." John Marshall, Virginia Constitutional Ratification Convention of 1788

(What an example of faithfulness to the constitution!)

Today's living constitutionalist never search in vain for something in the constitution. They just assume it means what they want.

[Ken H]

Today's living constitutionalist never search in vain for something in the constitution. They just assume it means what they want.

Do you believe the "substantial effects" test, which uses the Commerce Clause to expand Federal power, is an example of living constitutionalism?

[tacticalogic]

...in every inhibition intended to act on State power, words are employed which directly express that intent; some strong reason must be assigned for departing from this safe and judicious course in framing the amendments before that departure can be assumed. We search in vain for that reason. "

John Marshall, Barron 1833

For a Fifth Amendment case perhaps. Does the phrase "being necessary for the security of a free state" hold any particular significance to a state?

[mrsmith]

Somewhat. Judges use "doctrines" to try to match law to actual cases, just as mechanics use "rules" instead of actual physical laws to work on machinery.
I think "substantial effects" is more a poor "doctrine" than a deliberate attempt at living constitutionalism.

Most of the blame for the Commerce Clause's abuse has to be laid at the feet of the elected branches IMHO.

[mrsmith]

I don't think you can turn constitutional interpretation upside down on the basis of that "security" phrase.

The feds are granted some power over the militia elsewhere in the Constitution.

But nothing in the Bill of Rights can be turned into a grant of power to the federal government ( before the Fourteenth Amendment).

[tacticalogic]

But nothing in the Bill of Rights can be turned into a grant of power to the federal government ( before the Fourteenth Amendment).

They have the power to keep a state from entering the Union. It appears to be more a implication of responsibility than a grant of power.

[mrsmith]

Yeah, but that's not in the Bill of Rights. Am I missing your point?