Posted on 06/02/2004 12:44:36 PM PDT by neverdem
Well, here we go again.
At the risk of making everyone dizzy, please explain the statement in Dred Scott concerning his carrying of arms wherever he went. This pre-dated the Fourteenth Amendment.
In light of the Fourteenth Amendment, and recognizing that the Gitlow decision found the First Amendment so relevant, the applicability of the Second Amendment, at least since the passage of the Fourteenth Amendment, does include the states, notwithstanding the inability of the Supreme Court to understand the plain language.
Oh c'mon, tacticalogic, certainly your statement was not meant to be selective, was it? That it applies to one power, but not another?
Well, nonetheless, I'm saving it. You open your yap one millimeter on the Commerce Clause and this is comin' right atcha.
Oh the horror. You've found something else you can take out of context to yammer on about.
Is that all Gitlow was? "Encouraging others to overthrow the government"?
I believe I described it as "utterances advocating the overthrow of organized government by force, violence and unlawful means".
I could try to find the actual words if that would make a difference. Is there a limit for you, or do you insist on actual institutional damage before you would advocate taking action?
Would you consider Congress to be remiss if we didn't have standard weights and measures, interstate transportation systems, restrictions on state imposed trade barriers?
That's absurd!
If there was so little trade among the several States, then why delegate such a power to Congress in the first place?
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 you believe in governing according to the actual words of the Constitution, then Congress only has the power to regulate interstate commerce, not that which substantially affects interstate commerce.
The US managed to get along for about 150 years without the New Deal "substantial effects" test.
If so, then why did the Founding Fathers have the states to extend that power to the federal government to begin with?
Why indeed if there "was very little trade among the several States"? Maybe because your assertion is bogus and there was a thriving interstate and foreign commerce? They simply wanted to facilitate such commerce because it was important to economic prosperity.
It meant that the Negro could carry arms just like a white man. That wherever a white man could carry arms, a Negro could carry arms. That the privilegres and immunities of each state would also be extended to the Negro.
That's all it meant.
"For if they were so received (as citizens with "rights, and privileges, and rank, in the new political body throughout the Union" --rp), it would exempt them from the operation of the special laws and from the police, regulations which they considered to be necessary for their own safety. It would give to persons of the negro race, who were recognised as citizens in any one State of the Union, the right to enter every other State whenever they pleased, singly or in companies, without pass or passport, and without obstruction, to sojourn there as long as they pleased, to go where they pleased at every hour of the day or night without molestation, unless they committed some violation of law for which a white man would be punished; and it would give them the full liberty of speech in public and in private upon all subjects upon which its own citizens might speak; to hold public meetings upon political affairs, and to keep and carry arms wherever they went."
This passage has to do with state laws. It has nothing to do with he second amendment or even the first amendment (A side note: Notice how it clarifies and limits the first (unincorporated) amendment -- "upon all subjects upon which its own citizens might speak" -- not just "upon all subjects").
"In light of the Fourteenth Amendment, and recognizing that the Gitlow decision found the First Amendment so relevant, the applicability of the Second Amendment,"
No. The amendments in the BOR were brought in selectively. The applicability of one does not mean the applicability of another. Maybe you think it should, fine. But that's not the way it was done.
Not at all, but that's me. Some libertarians on this board wouldn't agree. Do you think we should have the FDA, the FAA, FTC, FCC? How far off-topic do you want to go?
Congress has the power to regulate commerce among the several states. It doesn't mean that Congress must use that power. It certainly doesn't mean that Congress is responsible for commerce as you suggest in your generalized (not "out of context") remark.
Read this from post #330 and stand by to be corrected on your misstatement:
"The legislative and executive branches could not get away with Commerce Clause abuse if the judicial branch honored its oath to the Constitution. They are certainly co-conspirators."
mrsmith wrote: Today's living constitutionalist never search in vain for something in the constitution. They just assume it means what they want.
Again from #330 I wrote:
"Isn't that what all three branches have done with the "substantial effects" doctrine?"
So you see paulsen, you have made yet another false claim and it was just refuted.
Congress is responsible for regulating (keeping in good working order) commerce among the several states, and would be remiss in their duty if they did not. You've essentially agreed to that. The only disagreement we have left is how you choose to characterize my comment. I say you're trying to use it out of context, and you say you're not. The full context is right there for everyone to see, so why not just let them do it?
"Not the way it is done", you say. I think you mean "Not the way it is being done." If you wish to maintain that it is acceptable for the Supreme Court of the United States to avoid its responsibility to "incorporate" the Second Amendment for over a century, then you have a much lower expectation for the impact of amending the Constitution than I.
One could write a Supreme Court decision virtually identical to Gitlow and from the same date, concerning a state law prohibiting bayonet lugs. And it would be perfectly reasonable for the Supreme Court to have "assumed" that the liberty of bearing arms is "protected" by the "due process clause" of the Fourteenth Amendment. The Supreme Court would then need to decide whether prohibition of bayonet lugs is so necessary to the survival of government that a state should be allowed to deprive its citizens of that liberty.
How do YOU justify the situation we now find ourselves in. The Supreme Court allows the federal government to outlaw some bayonet lugs despite the Second Amendment. The Supreme Court allows states to outlaw bayonet lugs despite the Fourteenth Amendment.
Do you agree or disagree that their statements mean that the correct reading of the current Constitution is that the Second Amendment applies to all levels of government?
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.
That doesn't exactly address my question, which was, "Do you think the correct reading of the current Constitution means that no level of government may infringe the RKBA?".
Your answer might be referring to the current reality of Second Amendment application, rather than what you think the correct reading is.
So let's try again:
Do you think the correct reading of the current Constitution means that no level of government may infringe the RKBA?
Do you agree with Justice Thomas that the "substantial effects" interpretation cannot be correct under the Constitution?
Yes or no?
That's it? No cites, no arguments, nothing?
Of the approximately 1400 cases which reached the Supreme Court under the (commerce -rp) clause prior to 1900, the overwhelming proportion stemmed from state legislation. The result was that, generally, the guiding lines in construction of the clause were initially laid down in the context of curbing state power rather than in that of its operation as a source of national power."
caselaw.lp.findlaw.com/data/constitution/article01/28.html
That's the reason the full power of the Commerce Clause wasn't used. It wasn't necessary.
"then why delegate such a power to Congress in the first place?"
Foresight?
"The US managed to get along for about 150 years without the New Deal "substantial effects" test."
You really need to familirize yourself with the Shrevepoert Rate Case (20 years before the New Deal "substantial effects" test) which dealt with intrastate commerce having an effect in interstate commerce. To wit:
"It is for Congress to supply the needed correction where the relation between intrastate and interstate rates presents the evil to be corrected, and this it may do completely, by reason of its control over the interstate carrier in all matters having such a close and substantial relation to interstate commerce that it is necessary or appropriate to exercise the control for the effective government of that commerce.
Exactly. With the same number of words, the "unincorporation of the right to keep and bear arms" could have been noted. It was not.
On other threads I have asked whether there were any restrictions on the right to keep and bear arms on the part of free, white men prior to the Civil War. I have heard of none. Are you aware of any such state laws at the time of Dred Scott?
I have not and do not!
Congress has the power to regulate commerce. Not the obligation, not the duty, not the responsibilty.
There are many people, primarily libertarians, who wish that Congress would avoid regulating commerce totally, and let the issues be worked out by the parties involved.
That is why I mentioned conspiracy law. I would require at least one overt act in furtherance of an illegal purpose. Speech alone would not be criminalized.
It was also my contention that Gitlow is probably no longer the proper test for freedom of speech. Is there not a more broad protection than that used in Gitlow?
Hey, why not? YOU think it's perfectly acceptable for the USSC to incorporate the first amendment which specifically says, "Congress shall make no law ...". Fine with you that the USSC ignores the word "Congress" and makes the law applicable to the states.
"The Supreme Court allows the federal government to outlaw some bayonet lugs despite the Second Amendment"
That's not true and you know why. How can you type these things when you know they're not true, and you know that I know they're not true? Are you trying to influence the casual observer here? What, really, is your reason for doing this?
You sound so sure of yourself.
I was under the impression that I could take a perfectly legal semi-automatic rifle and, merely by attaching a bayonet lug to it, make it into a dreaded "assault weapon". And that for doing so I would be open to felony prosecution and imprisonment. Is that not so?
I agree with Justice John Marshall Harlan who wrote in 1968, "The overwhelming historical evidence marshaled by Professor Fairman demonstrates, to me conclusively, that the Congressmen and state legislators who wrote, debated, and ratified the 14th Amendment did not think they were 'incorporating' the Bill of Rights."
So, I choose "correct reading", and that correct reading would be that NONE of the amendments in the BOR apply to the states.
Or is your "correct reading" different than my "correct reading"? I bet it is.
Wait. Then who's correct? We can't both be correct. But, one of us must be, but we're both correct, yet ... yet .... -- stack overflow--
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