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To: tpaine; Ken H; RKV; tacticalogic; William Tell; Wurlitzer

Please read post #239.


251 posted on 06/05/2004 6:25:02 PM PDT by robertpaulsen
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To: robertpaulsen
Okay, I read it. I'm afraid I don't see the logic in declaring that the appearance of "Congress shall make no law" in the First Amendment restricts the application of that amendment, and every amendment to follow to the Federal government.
263 posted on 06/06/2004 5:36:08 AM PDT by tacticalogic (I Controlled application of force is the sincerest form of communication.)
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To: robertpaulsen; tacticalogic; neverdem; Dead Corpse; RKV; arthurus; Quiller; MarkL; William Tell
We have the authoritative words of a Founder who participated in the debates over the Constitution and Bill of Rights upon it's application to the states:
"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. "

Chief Justice John Marshall 1833

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.)

278 posted on 06/06/2004 6:07:29 PM PDT by mrsmith ("Oyez, oyez! All rise for the Honorable Chief Justice... Hillary Rodham Clinton ")
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To: robertpaulsen; Congressman Billybob; mrsmith
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?

346 posted on 06/08/2004 12:40:32 AM PDT by Ken H
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