Rewrite the Second Amendment?

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

[mrsmith]

The federalists at the Virginia Ratification Convention certainly didn't reply to Mason and Henry that the new government would arm the militia from an implied ( or even penumbral) "responsibility".

Marshall:" If Congress neglect our militia, we can arm them ourselves. Cannot Virginia import arms? Cannot she put them into the hands of her militia-men?"

[Ken H]

The New Deal Commerce Clause came about not by finding words in the Constitution that weren't there, but by finding meanings in the words that aren't part of the idea it was intended to convey.

Agreed.

To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes;

That is the Commerce Clause in its entirety. There is nothing in the clause that mentions "substantial effects", or regulating commerce within a State, or anything that nullifies the Second Amendment.

Yet, Congress passed the 1994 assault weapon ban using the Commerce Clause as their authorization.

The misuse of the Commerce Clause is a much bigger villain than the misuse of the Fourteenth Amendment in increasing the size and power of the Federal government.

[Ken H]

Looks like the misuse of the Commerce Clause has had a substantial effect on the Federal government:

The Federal Register, where new rules are published daily, hit an all-time high of 75,606 pages this past year (up from 49,795 in 1990).

In the pipeline are now 4,187 rules at various stages of completion.

Five agencies are responsible for more than half of this torrent:

Environmental Protection Agency and the Transportation, Treasury, Agriculture and Interior departments.

--NEW FEDERAL REGULATIONS GREW TO 75,606 PAGES IN 2002

From the same article:

But who answers for the $860 billion -- 8 percent of gross domestic product -- that federal regulations now cost on top of federal outlays?

In "Ten Thousand Commandments: An Annual Snapshot of the Federal Regulatory State," analyst Clyde Wayne Crews finds regulatory spending takes up more than one-third of the entire federal budget

If that weren't enough, they use the Commerce Clause to infringe the RKBA as well!

[neverdem]

Thanks for the link.

[Ken H]

Looks like this thread has been put to bed for the night.

What follows is an opinion from Justice Clarence Thomas on the Commerce Clause. I've selected two paragraphs for brevity, but the entire opinion is worth reading.

Put simply, much if not all of Art. I, §8 (including portions of the Commerce Clause itself) would be surplusage if Congress had been given authority over matters that substantially affect interstate commerce. An interpretation of cl. 3 that makes the rest of §8 superfluous simply cannot be correct. Yet this Court's Commerce Clause jurisprudence has endorsed just such an interpretation: the power we have accorded Congress has swallowed Art. I, §8.

Our construction of the scope of congressional authority has the additional problem of coming close to turning the Tenth Amendment on its head. Our case law could be read to reserve to the United States all powers not expressly prohibited by the Constitution. Taken together, these fundamental textual problems should, at the very least, convince us that the "substantial effects" test should be reexamined.

Justice Thomas' entire opinion is here:

www.constitution.org/ussc/514-549c.htm

Do you agree with Justice Thomas that the "substantial effects" interpretation cannot be correct under the Constitution?

[Ken H]

Please read post #239.

Thanks for calling it to my attention and I took your suggestion.

The consensus here seems to be that under the current Constitution, the Second Amendment means that the RKBA shall not be infringed by Federal, State, or local government.

I think a couple of posters have had their positions misunderstood on this thread, so I offer the following take on their answers.

If I have misstated their positions, I encourage them to set me straight.

Congressman Billybob wrote in #239:

Whether or not the incorporation doctrine is legitimate, it is probably too late to go backwards and reject that doctrine. However, it is clearly a dishonest doctrine as long as some parts of the BOR remain unenforced. (Sadly, intellectual dishonesty is, all too often, par for the course on the part of the Supreme Court.

That is a clear statement that the honest interpretation of the current Constitution is that the Second Amendment applies to all levels of government.

In response to the question, "Do you think that a correct reading of the Constitution means that no level of government may infringe the RKBA?", mrsmith wrote:

If the Fourteenth were applied to the Second Amendment, which may be the most important, as it is to the others very few restrictions could be placed on the RKBA.

I do not like the huge power a total incorporation of the first eight amendments gives the federal government, but that was apparently the intent of the Fourteenth's authors.

His answer means yes, the correct reading of the current Constitution is that the Second Amendment means no level of government may infringe the RKBA.

Same question. Do you think the correct reading of the current Constitution means that no level of government may infringe the RKBA?

[tacticalogic]

I still maintain that you cannot neglect what is not your responsibility. and I don't believe, and don't think the framers of the Constitution and BOR believed in power without responsibility.

[tacticalogic]

Congress doesn't even have to quantify the effect of their regulation on interstate commerce, or what constitutes a "substantial effect", They simply have to "find" that there is one. What should be a fairly easily quantifiable, and objective determination is totally subjective.

[robertpaulsen]

Let's take the Gitlow case and assume he was arrested by federal agents for distributing pamphlets advocating the violent overthrow of the federal government.

In other words, let's keep the first amendment at the federal level where it was.

Are you saying that Congress cannot pass a statute (law) to prevent this type of "speech"? Why do you think that? The USSC wrote in Gitlow, "By enacting the present statute the State has determined, through its legislative body, that utterances advocating the overthrow of organized government by force, violence and unlawful means, are so inimical to the general welfare and involve such danger of substantive evil that they may be penalized in the exercise of its police power. That determination must be given great weight. Every presumption is to be indulged in favor of the validity of the statute."

If the USSC ruled that a state could write such a statute, why do you think they wouldn't have allowed Congress to write one? In other words, Gitlow would have been denied his brand of free speech whether it was a state or a federal law.

[robertpaulsen]

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

The federal power was always there -- it simply had no cause to be used for the first 100 years of its existence since the was so little trade "among the several states".

Do you believe the states should be allowed to undermine and thwart the interstate regulation attempts by Congress with intrastate commerce that has a detrimental effect on those regulations?

If so, then why did the Founding Fathers have the states to extend that power to the federal government to begin with?

[robertpaulsen]

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

Bingo.

But it's much easier for people like Ken H to blame the USSC for "unconstitutional behavior" than for them to admit that Congress is the body responsible for these laws to begin with.

If they placed the blame where it belonged, then they would have to admit that they are NOT helpless, that they have the power every two years to vote out the people who write the laws.

[justshutupandtakeit]

The Marshall Court in 1831 (?) Barron decision ruled that the BoR did NOT apply to the states. Certainly the South NEVER intended to allow it to apply to a large percentage of its population.

Only after passage of the 14th amendment did the BoR apply.

[justshutupandtakeit]

The BoR limited what the Fedgov could do NOT what the State gov or local could do. There were state-supported churches until well into the 1800s upheld by manditory tithes for example.

In many cases this was a moot point since the states had BoRs in their own constitutions which spoke to the same rights.

[robertpaulsen]

Wow, you do read a lot into other poster's statements. Allow me to be crystal clear with mine.

The second amendment does NOT apply to the states. It has never applied to the states. It only applies to the federal government.

[robertpaulsen]

"and don't think the framers of the Constitution and BOR believed in power without responsibility."

Is that right? Hmmmmm.

So, if Congress has the power to regulate "commerce among the several states", then they're responsible for commerce? Well, if we're going to hold them responsible, wouldn't the result of that encourage Congess to take on an even greater role?

Are you saying that Congress should have the resonsibility to regulate commerce "among the several states"? Wow. I didn't realize you were such a centrist!

[tpaine]

bumpkin

[robertpaulsen]

"Do you agree with Justice Thomas that the "substantial effects" interpretation cannot be correct under the Constitution?"

Justice Thomas is a sitting justice on the USSC. If he believes that Congress is overreaching their constitutional powers for any reason, he and four others have the power to stike down the legislation as unconstitutional. What is his problem?

After all, two recent "commerce clause" statutes were struck down by Justice Thomas and the USSC as overreaching by Congress (VAWA and the Gun-Free Schools Act -- as you well know).

So, Justice Thomas' crying about how helpless we all are in the face of a controlling Congress is a bit much.

[robertpaulsen]

Oops. There must have been a glitch in the system.

Your insightful, mature, and thoughful resonse to my post was cut off, and all that appeared in your post was the word "bumpkin".

Certainly you have more than two brain cells rubbing together to come up with a better response. Then again, maybe not.

[tacticalogic]

So, if Congress has the power to regulate "commerce among the several states", then they're responsible for commerce?

Troll your sorry ass down the road, Robert.

[William Tell]

robertpaulsen said: "If the USSC ruled that a state could write such a statute, why do you think they wouldn't have allowed Congress to write one? In other words, Gitlow would have been denied his brand of free speech whether it was a state or a federal law.

I think that you are correct about the Supreme Court at the time and I believe that the Supreme Court was wrong at the time.

I believe that the very understated way in which "incorporation" tool place was to avoid the very strong language that "Congress shall make no law ...". This language is about as strong as it can be. CFR is so obviously unConstitutional because of the fact that Congress has made a law abridging the freedom of speech.

This very topic is why I invited others to explain what the present state of the law in this area is. I doubt that Gitlow is still the level of protection required.

Virtually every public library contains a copy of Marx's Communist Manifesto. "Workers of the world, unite! You have nothing to lose but your chains!" is not a call to engage in collective bargaining. Prior restraint on speech is very rare.

I actually saw a man yell "Fire" in a crowded theater which was not on fire, and he was not jailed. It was Paul Newman in the movie "Torn Curtain". The speech itself is entirely protected and only negligent or criminal attempts to do bodily harm are outlawed.

If you know, please describe more recent case law on this matter.

It is certainly not the case that government has unlimited power to prevent its own destruction. Such a concept would allow violation of every restriction on government which could be written. Given that there are limits, then one ought to look to the written limitations to understand what those limits are. Our Founders chose "Congress shall make no law ...", not "Congress shall make no law except those which prohibit people from encouraging others to overthrow the government".

The laws concerning "conspiracy" are very close to abridgements of free speech. I believe that there is a requirement that at least one alleged conspirator commit some act in furtherance of the conspiracy in order to apply the law. There are then, do doubt, requirements for tying the other alleged conspirators to an intention to commit that act.