Posted on 06/02/2004 12:44:36 PM PDT by neverdem
Back to Gitlow, then.
We agreed that there were two decisons made.
Can we agree that the Court, in the second of the two important decisions, ruled that Gitlow was NOT deprived of "due process"?
Can we agree that the Court, in the first of the two decisions, had to find that the protection against deprivation of due process applied to freedom of speech?
Can we agree that the Court referred to the First Amendment in making the first of the two decisions?
Can we agree that this famous case established the "incorporation" of the First Amendment?
If we can agree to the above, then our discussions are at an end. I am confident that the majority of Freepers can follow this logic and can recognize that your claim that there has never been a "P&I" decision is without merit.
No. Do I have to? Does it have anything to do with the second amendment?
No actually, it has to do with the Fifth Amendment. I'll be happy to withdraw the question if you can explain why Commerce Clause legislation must comply with the Fifth Amendment, but not the Second.
Why do you question their ruling? What "should" they have done? Using your notion that the Bill of Rights are not restrictive of the unamended Constitution. If there is no "judicial error" involved, why complain?
Using your logic, there is nothing that we can do about this, because any amendment attempting to restrict the action of the government can just be ignored if there is some power which seems "unrelated" to the restriction.
Why, asked another Freeper, is it not permissible to ban Bibles under the Commerce clause?
Key question: Who says it didn't? AFAIK, the 1994 federal AWB wasn't challenged on second amendment grounds.
For anyone to say that a law outlawing bayonet lugs was written "despite the second amendment" would be disingenuous.
385 posted on 06/08/2004 12:43:55 PM PDT by robertpaulsen
I didn't say that. Where was the second amendment challenge? There wasn't any.
"Why, asked another Freeper, is it not permissible to ban Bibles under the Commerce clause?"
I didn't say they could. I think it would be a free speech violation to ban bibles.
Let's stay on topic.
Lower court cites of Miller are certainly a convoluted mess, but I find Miller to be pretty clear.
There certainly is a measure of error in the decision, however.
What went right?
Miller was granted "standing" as a person whose right to keep and bear arms was infringed by federal law. He was not required to show that he was in an "organized" militia. It was sufficient that he was a member of the "people".
The case was taken even though it was clearly a challenge on Second Amendment grounds.
The court didn't just shrug and say "sure there is a right to keep and bear arms, but that doesn't mean you don't have to buy a tax stamp".
The court didn't say, "but short-barreled shotguns are just so icky and might be used to kill innocent people, so they obviously are not protected".
Instead, the court improperly concerned itself with whether there was evidence that such a weapon could be useful to a militia. Had Miller been present to continue this process, his case would have been re-tried. If the prosecution, not the defense, failed to provide evidence that the shotgun was NOT useful, then the Supreme Court would be expected to either remand the case for a third trial or dismiss with prejudice.
Since trench-guns were used in WW I, it would not have been possible for the prosecution to provide evidence that such guns are not useful to a militia.
The only thing "convoluted" about Miller is the invention of the term "collective right" by anti-gunners and out-of-control lower courts in an attempt to suggest that Miller lacked the standing which the Supreme Court had already granted him.
Unless you'd like to clarify 385, it seems a logical consequence of that argument.
Is it not then possible to violate the right to keep and bear arms using the Commerce clause? How were you able to dismiss the Second Amendment as being irrelevant to the AWB and yet you do not dismiss the First Amendment as being irrelevant to banning Bibles?
Your statements sometimes seem consistent with the idea that the Bill of Rights is only of concern to the Supreme Court. If they don't say something is wrong, then there is nothing wrong. Unfortunately, that seems to be the way much of our government works these days.
Here's another shot at clarifying our positions:
True (False): The Bill of Rights restricts the actions of Congress and the President and not just the Supreme Court.
Yes.
OK.
The Commerce Clause has been recognized to be quite powerful and can be used to ban most anything if 1) both houses of Congress choose to do so, 2) the President agrees, 3) the people agree, and 4) the USSC rules a challenge to it constitutional.
You have stated your belief that the Second Amendment means that the RKBA shall not be infringed by the Federal government.
You say here that the correct reading of the Constitution allows the Federal government to use the Commerce Clause to ban assault weapons and "most anything".
So according to what you've written, the Second Amendment means the RKBA shall not be infringed by the Federal government, and the Commerce Clause means the RKBA may be infringed by the Federal government.
Would you clarify your two opinions above regarding the correct reading of the Commerce Clause and the Second Amendment?
Isn't that something?
I wonder why the NRA didn't support a lawsuit challenging the federal 1968 Gun Contol Act (and the 1994 AWB amendment) on second amendment grounds?
It was never done.
I simply said that the 1994 AWB did not use the second amendment as justification for the law. I think the AWB does violate the second amendment. See my response in post #413.
The Bill of Rights restricts the actions of Congress and the President and not just the Supreme Court. But, ever since Marbury v. Madison (1803), the USSC is the arbiter of what is or is not constitutional.
Isn't that something?
Its more than 'something', paulsen. Your flip answer is clear evidence that you know you're making irrational arguments, -- and just don't care. You're exhibiting very weird behaviour, my boy.
I wonder why the NRA didn't support a lawsuit challenging the federal 1968 Gun Contol Act (and the 1994 AWB amendment) on second amendment grounds? It was never done.
The NRA has a vested interest in keeping the gun control pot boiling.
Isn't that something?
It is indeed.
Please explain how you can maintain that the correct reading of the Commerce Clause allows the Federal government to ban assault weapons and at the same time the correct reading of the Second Amendment does not.
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?
My avocation is early US Constitutional history. The Commerce Clause problems didn't arise until later than my useful knowledge extends.
There was an intriguing early mandatory "national health insurance" of sorts for seamen that was passed in the second congress, I believe, which might show a basis for a historical limit to the Commerce Clause (would it include seamen who only sailed within a state or not?). But sadly I haven't run across much on it.
The Commerce Clause is certainly a part of early US constitutional history, and the results of the substantial effects doctrine are well known. (see post #343 and the opinion by Justice Clarence Thomas which I quoted in part.)
I'd bet you know more about the history of the Commerce Clause and its original meaning than 99.99% of the population and probably more than most people on this forum.
I'm surprised that you think you are not informed enough to say whether or not you agree with Justice Thomas.
Good explanation of Miller. The very limited holding of that case was that it is not within judicial notice that a shotgun is a weapon that could be useful to a militia. That seems to be a very easy standard for a defendant to meet.
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