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 The second article of amendment to the Constitution of the United States is hereby repealed.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 ...
Good point.
Thanks.
I have every right to yell Fire in a crowded theater or any where else I deem fit..
Especially if there is a FIRE..
I then not only have a right but a responsibility..
( I would probably wait until I was near the exit, however.. )
As for the 2nd, ...
I will pry the guns from the cold, dead hands of the Jack Booted thugs that come to get MY guns..
And use them get even more..
robertpaulsen wrote:
--- you still feel that we should organize, arm, and form a citizens militia? To fight ... who?
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Enemies, -- domestic?
Our enemy within becomes ever more bold paulsen, as we see by exposing sites like this one, and you all, -- who support them.
headsonpikes wrote:
I see the usual 'reasonable' crowd is showing up to slag you.
The right to keep and bear arms is, as a matter of historical fact, SPECIFICALLY rooted in the natural right to defend against tyranny.
You know it; I know it; even the 'reasonable' bunch know it. They just deny it - that's all.
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And isn't it amazing that we have to keep re-arguing these VERY basic principles with socalled 'conservatives' on FR.
So, we need to organize, and arm, a citizens state militia to combat these domestic enemies? Just so I know where to aim my gun, could you point out one of them?
I don't know what's more appropriate for you -- my Reynold's Wrap picture or my Black Helicopter Crowd picture.
He's correct about the Bill of Rights' not applying to the States. The First Amendment, e.g., says CONGRESS shall make no law... It was the Supreme Court that decreed that "Congress" means "your local government school" or "your local city council" is not allowed to put up a Christmas tree, etc. It is the Supreme Court that decreed that because CONGRESS is prohibited from limiting speech, your state cannot do anything about pornography, etc.
Look in a mirror.
Which line only applied to the establishment clause, as Justice Thomas just noted in his 'Newdow' opinion. The rest of our BOR's applies to ALL levels of Government, and protects ALL of our individual rights.
It was the Supreme Court that decreed that "Congress" means "your local government school" or "your local city council" is not allowed to put up a Christmas tree, etc.
Yep, the USSC is just as out of control as the Statists.
It is the Supreme Court that decreed that because CONGRESS is prohibited from limiting speech, your state cannot do anything about pornography, etc.
There are plenty of valid laws about the criminal aspects of porn.
We don't need more prohibitional decrees on 'sin' nor on 'evil' property like 'assault weapons' .
Of course, he ignores the fact that with the federal BOR comes the USSC interpretation of those BOR. That how you get the 1st amendment free speech protecting nude dancing, but not political advocacy ads 30 days prior to an election. Insanity that now applies to every state in the union.
Just what the Founding Fathers had in mind.
Hello all ... an anonymous emailer left me a link to this discussion. It is gratifying to see that something I wrote prompted a spirited debate. Some posters here have disparaging remarks for me, but I'll take them with a grain of salt. I wanted to address a few points made in the original post.
Regarding my "insidious" interpretation of the Constitution in a pro-statist manner ... I'm not sure I've ever heard my interpretations described as insidious, and I don't think I would ever have described myself as pro-statist ... is there a definition of that that I can see? I've always considered myself a strong federalist/nationalist, though I certainly see great benefit in the separations we have with the states.
Regarding my ignoring the Supremacy Clause: I know of this clause of which you speak ... but the Supreme Court prior to incorporation did not apply this clause to the states, as a historical look at Supreme Court decisions will show. My discussion of incorporation on by Bill of Rights page gets into detail.
Do I bash the 2nd Amendment? I guess you could say I do, but in the long run, I think my suggested replacement protects gun ownership in a way that the 2nd might not. In any case, to anyone who is afraid that my amendment would remove the text of the 2nd from the Constitution, be aware that that is just not how it is done, and I would not do it. The amendments are not only our law but are our historical context. Despite the fact that the 18th is no longer applicable, it remains in mine and all copies as a reminder of where we have been.
As to the note that I am not a friend of the Constitution, I beg to differ most strongly on this point. There are not many people who have done as much as I have to bring this wonderful document to the common person.
As to some of the other posts, I'm not exactly sure what "freeping" is, but if it involves "stuffing the ballot box," I do hope that the poll is not skewed by multiple votes by one person. That would be a shame and would reflect badly on whomever votes multiple times.
Anyway - thanks for stopping by my site and reading my content. If anyone has any questions or comments for me, I'm happy to address them.
Uh-huh. And Newdow was a federal case. Would you care to tell me why Justice Thomas even brought it up? No one else seems to know why.
tpaine likes it that way. He wants to ensure that the BOR in the U.S. Constitution applies to everyone equally. He doesn't trust those yucky states to do it.
You got that correct paulsen. I trust no government that is ruled by the 'will of the majority'. Our Constitutional rights suit me fine.
Of course, he ignores the fact that with the federal BOR comes the USSC interpretation of those BOR.
Belied by what I wrote at #29:
- "Yep, the USSC is just as out of control as the Statists" - like paulsen.
It is unfortunate that what you say may be true. Properly read, the Second Amendment prohibits infringement, regardless of how many super-majority votes such a bill might receive.
Your redefinition omits the most serious reason why free people have the right to keep and bear arms. That is to maintain the security of a free state. You need to add that back in, recognizing that governments derive their just power from the consent of the governed and that the people need to retain their power to abolish governments which become tyrannical.
Finally, you need to make explicit that the prohibition against infringement extends to all governments and is not just a constraint on Congress.
Yes you do have that right. However, there are consequences in law should you exercise your rights irresponsibly and cause harm to the person or property of another.
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.
Indeed, if a substantial effects test can be appended to the Commerce Clause, why not to every other power of the Federal Government. There is no reason for singling out the Commerce Clause for special treatment. Accordingly, Congress could regulate all matters that substantially affect the Army and Navy, bankruptcies, tax collection, expenditures, and so on. In that case, the clauses of 8 all mutually overlap, something we can assume the Founding Fathers never intended.
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.
Do you agree with Justice Thomas' comments on substantial effects and the Commerce Clause?
Thank you for stating the obvious..
I excluded that part on purpose.. I wrongly assumed everyone would simply understand that we are all responsible for our actions..
It is gratifying to see that something I wrote prompted a spirited debate. Some posters here have disparaging remarks for me, but I'll take them with a grain of salt. I wanted to address a few points made in the original post.
Regarding my "insidious" interpretation of the Constitution in a pro-statist manner ... I'm not sure I've ever heard my interpretations described as insidious, and I don't think I would ever have described myself as pro-statist ... is there a definition of that that I can see?
Being 'pro-state' in a Constitutional sense is pretty self evident 'Statist' in my opinion.
To me Statism is an insidious type of anti-constitutionalism, as it can be passed off as being very patriotic, but in political reality it leads to supporting group 'rights', ~majority rule~, over individual liberty under the rule of constitutional law.
I've always considered myself a strong federalist/nationalist, though I certainly see great benefit in the separations we have with the states.
Sorry, but your opinions as quoted sure give me the opposite impression.
Regarding my ignoring the Supremacy Clause: I know of this clause of which you speak ... but the Supreme Court prior to incorporation did not apply this clause to the states, as a historical look at Supreme Court decisions will show.
Yep, that clause has been ignored by States for obvious reasons. -- And imo, it was ignored before the Civil War by the feds, for the same obvious reasons. --- Ignoring it now, in the case of our RKBA's, is becoming anti-constitutional in its effect.
My discussion of incorporation on by Bill of Rights page gets into detail. Do I bash the 2nd Amendment? I guess you could say I do, but in the long run, I think my suggested replacement protects gun ownership in a way that the 2nd might not.
The people that own arms will, in the end, protect our RKBA's. Suggesting appeasement measures to 'protect' it is the REAL way to tear this nation apart.
In any case, to anyone who is afraid that my amendment would remove the text of the 2nd from the Constitution, be aware that that is just not how it is done, and I would not do it. The amendments are not only our law but are our historical context. Despite the fact that the 18th is no longer applicable, it remains in mine and all copies as a reminder of where we have been.
As to the note that I am not a friend of the Constitution, I beg to differ most strongly on this point. There are not many people who have done as much as I have to bring this wonderful document to the common person.
To 'bring' it to us, misinterpreted as you have, is no favor Steve. Our RKBA's is an inalienable individual liberty, not a negotiable privilage.
As to some of the other posts, I'm not exactly sure what "freeping" is, but if it involves "stuffing the ballot box," I do hope that the poll is not skewed by multiple votes by one person. That would be a shame and would reflect badly on whomever votes multiple times.
Anyway - thanks for stopping by my site and reading my content. If anyone has any questions or comments for me, I'm happy to address them.
I'd comment that you should give serious thought to revising your sites endorsement of a States 'power' to ignore the supremacy of our US Constitutions guarantees of life, liberty and property..
Thanks again for responding.
Thanks for posting this. As one who recently switched to the BOR restricts the feds mode, here's why: I'd much rather face state clowns on their clown bikes trying to take away my right to keep and bear arms, than have the Feds park a FatBoy in my living room with five justices riding in the sidecar.
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