Posted on 07/09/2004 9:19:09 AM PDT by tpaine
This website very insidiously interprets our US Constitution in a pro-Statist manner. IE --- "The Bill of Rights did not apply to the states."
"The Bill of Rights was understood, at its ratification, to be a bar on the actions of the federal government.
Many people today find this to be an incredible fact. The fact is, prior to incorporation, discussed below, the Bill of Rights did not apply to the states."
It is incredible, seeing the author completely ignores the supremacy clause in Art. VI.
He then goes on to bash our 2nd Amendment:
"Recognizing that the need to arm the populace as a militia is no longer of much concern, but also realizing that firearms are a part of our history and culture and are used by many for both personal defense and sport, this site has proposed a new 2nd Amendment - an amendment to replace the 2nd Amendment to the Constitution. This proposed text is offered as a way to spark discussion of the topic.
Section 1. The second article of amendment to the Constitution of the United States is hereby repealed.
Section 2. The right of the people to keep arms reasonable for hunting, sport, collecting, and personal defense shall not be infringed.
Section 3. Restrictions of arms must be found to be reasonable under Section 2 by a two-thirds vote of Congress in two consecutive sessions of Congress before they can be forwarded to the President for approval.
This proposed amendment is a truer representation of how our society views our freedom to bear arms. Because "reasonableness" can be far too elastic, the two-Congress restriction requires that two Congresses in a row pass the same bill - this allows both thoughtful reflection and for the opinions of the people, to be expressed between these votes, to be heard (both at the ballot box and in general). It is an unusual, but not unprecedented, way of passing legislation.
Finally, the courts would have the ultimate authority in determining if a restriction is not reasonable, providing a final layer of protection (after the two pairs of debate in the House and Senate and the President's own agreement). The militia is removed from the equation, greatly clarifying the purpose of the amendment.
Historical note: in Section 2, the "collecting" clause was added, and Section 3 is a replacement for "The Congress shall have power to enforce this article by appropriate legislation" after concerns over "reasonableness" were examined more fully.
Reasonable restrictions do seem to be the way to go, acknowledging the Amendment, but molding it, as we've done with much of the Constitution.
After all, we have freedom of speech in the United States, but you are not truly free to say whatever you wish. You cannot incite violence without consequence; you cannot libel someone without consequence; you cannot shout "Fire!" in a crowded theater without consequence. Why cannot gun ownership by similarly regulated without violating the Constitution?
The trick is finding that balance between freedom and reasonable regulation. Gun ownership is indeed a right - but it is also a grand responsibility. With responsibility comes the interests of society to ensure that guns are used safely and are used by those with proper training and licensing. If we can agree on this simple premise, it should not be too difficult to work out the details and find a proper compromise."
Know you enemy.. This man Steve Mount is NOT a friend of our Constitution.
(Excerpt) Read more at usconstitution.net ...
False. Such a decision would not have struck down any State or local laws on nude dancing.
The State/local laws could have been changed through acts of a legislative body. A USSC decision saying nude dancing is not protected by the First Amendment leaves the issue to State/locals to decide.
Same with the Second Amendment. A USSC ruling saying the Second Amendment does not protect an individual RKBA leaves the decision to the States/locals. Just like it is currently.
If the USSC gives a narrow definition and says that political ads less than 30 days before an election are not protected speech, no laws would be struck down. Do I have that correct?
Correct. It would be left to the appropriate legislative body to change or not change such laws.
States that currently define and protect political ads less than 30 days prior to an election -- those laws can remain on the books?
Correct. Why would they not? Such a ruling does not mean States cannot protect such speech. It means they are not restrained by the First Amendment if they choose to ban it.
You're setting up these strawman arguments just to knock them down. I never said that the decision would strike down the laws. I said the decision would open the door for litigation, the result of which would strike down the existing laws.
I said in my post #57 that IF the second amendment were incorporated (ie., applied to the states) the word "arms" could be interpreted by the USSC, some time in the future, as to NOT include handguns.
Does that ruling change anything? Any state laws? No, it doesn't.
But, that ruling now allows the gun grabbers to go after state constitutions that protect "arms", and push for laws banning hadguns since they're not protected by the second amendment. The USSC says so, and that applies to all states laws.
Can they do this now? Sure, but it would be up to each state court, possibly a federal appeals court, to determine the definition of "arms" in their state constitution. Now, maybe the gun grabbers will get lucky in a city like Wilmette, Illinois or Morton Grove, Illinois, or Chicago and get handguns banned in those cities. But that ruling has absolutely no effect or influence on other states.
The federal government will not allow such an ad to be run no matter what the state says.
If federal law says something like, "Private organizations shall not advertise their candidates platform within 30 days prior to an election", but the state allowed it as a free speech issue, the state would be found in violation of the Supremacy Clause, yes?
I mean, I'd like to believe you, but I don't.
This isn't personal, its just business. Constitutional business. -- I've sworn an oath to protect & defend, -- apparently he hasn't.
Of course it is.
Not to me paulsen.
You are just one in a long run of phony 'conservatives' I've argued with on this site.
In fact, most were better at this than you are. I'd bet you won't last much longer under this name. Your persona has pretty well become in-credible. You oppose most everything our free republic stands for.
I gave you a link that debunked your claim.
Dream on, -- your link 'debunked' no claim I had made.
Rather than refuting the facts,
You linked to opinions, not to facts.
you went to a different page of my linked source in an attempt to discredit the author of the web site, thereby hoping to discredit my link.
Your author 'Steve802', discredited himself, and was unable to defend his erroneous opinions.
I would say that he took it personally in his post #31 to you. And he was a heck of a lot nicer to you than I would have been.
Yep, he knew when to give it up. - Smart man in that respect. Unlike you.
Well then, I suggest you stick with it, rather than going on about, "Do you agree with Justice Thomas' comments on substantial effects and the Commerce Clause?"
As long as Congress is using the Commerce Clause to violate the Second Amendment, Justice Thomas' comments are on topic on a RKBA thread.
Allow me to quote:
"I think that the 1968 GCA, the 1986 FOPA amendment and the 1994 AWB amendment, all violated the second amendment." -- robertpaulsen
So I'd say the use of the Commerce Clause to ban guns is relevant to the Second Amendment.
If you're going to change the subject to Justice Thomas' opinion on the awesome powers of Congress, then allow me to quote the opinion of Judge Bork on the awesome powers of the USSC.
Go right ahead, no one is stopping you.
I will continue to point out anti-RKBA writings of public persons.
And as Justice Thomas well knows, he and four unelected and unaccountable others on the USSC can frustrate and overrule 535 elected and accountable congressional representatives -- so I ask again, who shall we fear more?
I don't fear the Constitution as it is written. If you don't like what it says, amend it as prescribed in Article V.
You're setting up these strawman arguments just to knock them down. I never said that the decision would strike down the laws. I said the decision would open the door for litigation, the result of which would strike down the existing laws.
You continue to be wrong. Legislation, not litigation, could have voided laws allowing nude dancing. As for the strawman, here is the exchange:
Had USSC given a narrow definition and said nude dancing is not protected speech, no laws would have been struck down.
Baloney! There were laws that defined and allowed nude dancing. Citizens filed suit to stop the practice, saying that nothing in the Constitution allows nude dancing. If the USSC said that nude dancing wasn't protected speech, the laws would have been struck down.
Your reasoning is false. If a State allowed nude dancing, a ruling by USSC stating it is not protected by the First Amendment would not be overturned by litigation. It could be overturned by legislation.
I said in my post #57 that IF the second amendment were incorporated (ie., applied to the states) the word "arms" could be interpreted by the USSC, some time in the future, as to NOT include handguns.
Does that ruling change anything? Any state laws? No, it doesn't.
Applause!
But, that ruling now allows the gun grabbers to go after state constitutions that protect "arms", and push for laws banning hadguns since they're not protected by the second amendment. The USSC says so, and that applies to all states laws.
State and local governments are getting away with gun bans now. The only thing stopping them are voters, not the USSC.
Can they do this now? Sure, but it would be up to each state court, possibly a federal appeals court, to determine the definition of "arms" in their state constitution. Now, maybe the gun grabbers will get lucky in a city like Wilmette, Illinois or Morton Grove, Illinois, or Chicago and get handguns banned in those cities. But that ruling has absolutely no effect or influence on other states.
You are continuing to overlook the fact that Federal Courts are not protecting the RKBA now. How would a ruling saying the Second Amendment does not protect the RKBA change the status quo?
Correct, Federal law applies everywhere in the US. CFR applies to Federal offices, BTW.
If federal law says something like, "Private organizations shall not advertise their candidates platform within 30 days prior to an election", but the state allowed it as a free speech issue, the state would be found in violation of the Supremacy Clause, yes?
NO!
If a State has no law on its books regarding election advertising, it is legal under State law, correct? Are you saying if a State does not make it illegal, they are in violation of the Supremacy Clause?
Is Vermont in violation of the Supremacy Clause because weapons banned under the 1994 AWB are legal under Vermont State law?
If a State allowed nude dancing, a ruling by USSC stating it is not protected by the First Amendment would not [allow a nude dancing law to] be overturned by litigation. It could be overturned by legislation.
The Preamble to the Bill of Rights is missing:
The author does not seem to distinguish between actions and tools. A firearm ban is not the equivalent of preventing someone from yelling "fire" in a crowded theatre (2nd Amd. vs. 1st Amd); it is more the equivalent of cutting one's tongue out.
The Preamble emphasizes that the BOR was added to the U.S. Constitution to further restrict the powers of the federal government.
Neither do I. But that's not what we're talking about, is it? Again, off you go on some tangent.
We're talking about the way that it's interpreted, now aren't we. Not the way it's written, correct? Why is it that I constantly have to waste half a post just to get you back on topic.
Clarence Thomas and his buddies on the USSC have done far more damage to this country than Congress. And they're unelected and unaccountable. There's the danger.
It was only years after passage of the 14th Amendment that parts of the Bill of Rights began to be applied to the states.
The 14th Amendment was intended to render Barron v. Baltimore void, to overrule it. The Supreme Court proceeded almost immediately to pretend that the Amendment meant something other than what was intended by its authors. Years later, instead of fixing the bullshit precedents and restoring the Privileges or Immunities Clause to its rightful place as the clause intended to incorporate amendments 1-8, the Supreme Court invented selective incorporation via substantive due process, allowing itself to pick and choose which rights would get incorporated. That's why we're where we are today, far from what was intended by the authors of the 14th, with some rights incorporated and some not.
Now, what kind of a la-la land statement is this? Geez, robertpaulsen, let's start by assuming there's NO LAW on the books.
I bet there's a thousand laws on the state books regarding election advertising -- are you kidding?
Why don't you start by assuming there are contrary laws on the state books. You'll agree that those laws would be in violation of the supremacy clause?
"Is Vermont in violation of the Supremacy Clause because weapons banned under the 1994 AWB are legal under Vermont State law?"
I have no idea. Does Vermont state law say, "flash suppressors are legal" or is Vermont state law silent? If state law is silent, then how can there be a conflict? If there is a conflict, then yes, Vermont is in violation of the Supremacy clause.
You disagree?
The feds can't make laws regarding local elections, only federal elections. States have their own laws and are not required to be as oppressive as the federal government.
This proposed text is offered as a way to spark discussion of the topic
This proposed text is more like a spark in a gunpowder factory !
I wouldn't be surprised to wake up one morning in the near future to read some activist federal judge has found the Constitution to be unconstitutional.
Of course this is what they want with help from the UN and World Court.
...and this is exactly why they don't want us armed with anything.
If they can take away our weapons, they can herd us onto the cattle cars at will...and will, eventually.
Does that ruling change anything? Any state laws? No, it doesn't.
But, that ruling now allows the gun grabbers to go after state constitutions that protect "arms", and push for laws banning hadguns since they're not protected by the second amendment. The USSC says so, and that applies to all states laws.
Can they do this now? Sure, but it would be up to each state court, possibly a federal appeals court, to determine the definition of "arms" in their state constitution.
Just because a right is incorporated, doesn't mean that a state can't provide protection of a right above and beyond what the federal Constitution requires. And federal appeals courts don't touch state supreme court decisions. States would be free to protect a right to own handguns, regardless of what SCOTUS says.
I think my suggested replacement protects gun ownership in a way that the 2nd might not.
What part of "shall not be infringed upon" do you not get ?
Eventually. In the above scenario, I would imagine that a suit would be filed claiming that nude dancing violates the state's obscenity law. Since it has no more 1st amendment protection, the activity would be found in violation of state law (on obscenity). There would be a court order for that activity to stop.
Based on that local ruling (and assuming no appeals), I would imagine that the legislators would then change the law.
Or the petitioners could go to the legislature first to change the law. Then the nude dancers would file suit with the same result. Probably a waste of time.
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