Posted on 01/25/2005 3:57:10 PM PST by jonestown
Congress Shall Make No Law
by Matt Giwer
Without going through a myriad of examples of Congress exceeding it delegated authority, let us cut to the quick.
In passing laws in areas not delegated to it in the Constitution, it is not, repeat NOT, responding to new social pressures and changes in the world. I grant there have been many changes in the two hundred plus years since it was adopted. But what Congress is doing is not adapting to those changes.
What Congress is doing is exactly the state of affairs the Constitution itself was intended to prohibit.
For example, at no time was the granting of the power to regulate interstate commerce intended to me the power to prohibit interstate commerce.
If the power to regulate were intended to be the power to prohibit interstate commerce then the federal government would have been granted the power to economically isolate the states. No one suggests that was a power granted to Congress.
Yet, while agreeing there is no power of prohibition, we have many laws prohibiting some forms of interstate commerce. Try selling kiddie porn across state lines with an FBI agent present and see what happens. That is the power of prohibition that was not granted in the general and obviously does not exist in the particular, ANY particular.
The assault weapons ban is the same issue. It is clear that if Congress has the power to ban the manufacture of assault weapons and prohibit them from interstate commerce then in fact Congress has the power to ban any and all interstate commerce, regardless of the commodity.
If Congress should decide it does not want people traveling between states it clearly has the power to make doing so a felony if you grant it has the power to prohibit any activity between the states.
-Snip-
Technology does not change human nature.
19+1 rounds in a handgun instead of one shot flintlocks do not increase crime. In the history of London the single most effective thing to decrease crime was gaslights on the streets. The "guest bedroom" came about as no dinner guest in his right mind would go home after dark in the best of neighborhoods.
So are increasing gun restrictions a result of increased technology? Of course not. But why the increased restrictions?
Because human nature wants regimentation of human behavior.
Regulating the arms a person may possess is as old as human history. When Romans were using short swords "civilian" swords were limited to a fraction of that length. When Japan saw its Samurai system threatened by black powder it banned guns rather than getting better guns. When the peasants revolted against Peter the Great's attempt to industrialize Russia they were banned from having any weapons.
So what is new? The people who claim new laws are necessary because of changing times are NOT talking about laws which address the changes in our times. They are in fact regressing to the exact traditional and primitive response people have always had. And the people specifically did not give Congress the power to exercise those primitive responses.
Why should Congress have the power to prohibit Kentucky from growing and exporting marijuana? Where is it written Congress has the power to prohibit arbitrary items from interstate commerce? The last time that was tried, it was called Prohibition and took a Constitutional Amendment.
Where is it written Constitutional Amendments are no longer needed to do the same thing?
I am fully aware that the points I am raising are at best thirty years away from a "concerted and no failures along the way" effort to be recognized again as the meaning of the Constitution. It really is time to start over. At present the country is on a path of worship it prior decisions and refusing to admit its previous errors lest "the turmoil be too great."
It is trivial to point out that a finding against all federal drug laws would wreck havoc upon our country. But it is more important to uphold justice in that they have committed no crime as Congress had no power to pass any such law.
We are arguing our own precedent rather than the Constitution. The Constitution is not sacred. It can be changed at any time and the means of changing it are stated within it.
But when these "forces of change" are in fact regressions to exactly the arbitrary powers of government it was intend to prohibit, that is not progress. It is not response to changing times. It is regression to pre-constitutional times when anything was fair game. Gentlemen and ladies, it looks like a duck, it waddles like a duck. I would prefer to believe it is a duck than a Constitutional law.
Section 1 of the 21st amendment states, "The eighteenth article of amendment to the Constitution of the United States is hereby repealed."
So, now the power is back with the states and the fed no longer has that authority? Correct?
Wrong.
It took Section 2 to actually remove the power from the federal government, who had the power all along.
"The transportation or importation into any state, territory, or possession of the United States for delivery or use therein of intoxicating liquors, in violation of the laws thereof, is hereby prohibited."
In violation of state law, not federal law.
Cool. What's your source (or sources)? Because I don't normally recognize someone's "feelings" or "emotions" as an authority on the limits of government.
"There is simply no reason not to incorporate the 2nd amendment into the 14th;"
I agree. There is no reason why it shouldn't be. But it isn't. (See what I mean about feelings and emotions?)
"and the lack of "incorporation" is more about statist control"
Is that how you feel about it or do you have something, like a fact or two, to back that up? It could be that the USSC is waiting for the right case (hey, it took well over 100 years to incorporate what we already have incorporated).
Or it could be that the second amendment is not capable of being incorporated -- depending on the meaning assigned to it. To date, the second amendment has been interpreted by most lower courts as protecting the right of the state to form a state militia consisting of an armed people from federal infringement.
So, incorporating that amendment would prohibit the state from infringing on the right of the state to form a militia? Uh-huh.
So far, only one lower court in one case (Emerson) has ruled that the second amendment refers to an individual right. Not real good odds when it comes to actual case law.
So yeah. Let's hurry up and force the USSC to rule once and for all on the definition of the second amendment. Be careful what you wish for. You may get it.
"Cool. What's your source (or sources)? Because I don't normally recognize someone's "feelings" or "emotions" as an authority on the limits of government."
Eugene Vokloh's writings on many legal topics, including the second amendment, are very illuminating. He is a professor of law at UCLA, and a respected scholar who has written many law review articles on Constitutional Law.
Of incorporation, he writes, "[T]the Second Amendment claim to Fourteenth Amendment protection is historically stronger than any other federal right save speech and jury trial."
You can go to his webpage, link here: http://www1.law.ucla.edu/~volokh/ and see his sources for this assertion.
The Second *is* an individual right, just like the rest of the Bill of Rights. The phrase "the people" doesn't mean anything different in that amendment than it does in any other, gun grabber arguments to the contrary notwithstanding. We really don't need the Supremes to rule on the issue; with 200 million plus firearms out there, we can secure our own rights.
There you go. That's much more efficient than that messy old "voting" thing.
"The Second *is* an individual right, just like the rest of the Bill of Rights."
That may very well be true. But that argument is best for another day. My point was, as confirmed by you and now by Eugene Vokloh, that "the Second Amendment, whatever it may mean, operates to restrict only the power of the federal government."
Your quote is from the Time article, not from Eugene Vokloh; it appears you are trying to mislead by attributing it to him.
The quote is one author's opinion; Constitutional scholars have differing opinions on the meaning of the 2nd amendment, which was put into the constitution in case that messy old "voting" thing didn't work to restrain government.
Well then, I did a pi$$ poor job of it, didn't I?
That may very well be true. But how many insist that the second amendment has been incorporated and applies to the states?
Fear NOT! Election is over and the DEAD have gone back to bed.
You want those bums dictating 'morals' to your kids? You want the courts backing them up in that assumed 'power'?"
Yes, I do believe that state and local governments have a right to legislate for health, safety, and morals under the so called "police power", as it has come to be known.
This is why we have laws against (among other things) obscenity, incest, selling tainted food, having bonfires in your backyard in the middle of a hot dry summer, etc.
Should these things be regulated? That is a subject for debate.
But the fact that states and local governments do have the constitutional power to regulate such things (provided that the Bill of Rights is respected) is not a matter of debate among Constitutional scholars.
That is exactly the argument used by the State of Calif to justify their 'regulations' of assault weapons. 'Banning guns is for health & safety of the children', they cry.
I don't know anyone on this site who would agree with California's position on the 2nd amendment; it's just plain wrong.
Well, now you've met one of the worse.. There are quite a few more.
Even the most die hard "states' rights" types understand that the Federal Constitution places limits on the states.
Welcome to the strange world of "States Rights", where our US Constitution is reviled for its actual words upholding individual rights, -- while 'interpretations' of it that can be used to control 'immoral acts', and prohibit 'evil objects', -- are applauded.
robertpaulsen touts:
"The Second Amendment right to bear arms, however, has never been incorporated by the Court into the Fourteenth Amendment.
The result is that today the Second Amendment, whatever it may mean, operates to restrict only the power of the federal government.
The states remain unfettered by the Amendment's limitations.
They remain essentially free to regulate arms and the right to bear them as they choose, in the absence of strictures in their own state constitutions and laws."
-- time.com, Alain Sanders
The Gun Zone RKBA -- Time Magazine's Anti-gun Agenda
Address:http://www.thegunzone.com/rkba/rkba-time.html
And then we codify it into law for the idiots who aren't bright enough not to target shoot in the living room of their apartment.
Funny you should mention that since you absolutely refuse to admit that there is any limitation at all in the Constitution.
Funny, there is a qualifier at the beginning of the First Amendment: Congress shall pass no law. I see no such qualifier at the beginning of the Second Amendment, and instead it closes with very absolute, clear language: shall not be infringed. I don't see any mention that this only applies to Congress or the federal government. All I see is shall not be infringed - PERIOD.
So this guy is blowing smoke out his tailpipe. I do agree that it took the 14th Amendment to apply the 1st Amendment to the states. But no such action is needed for the 2nd - it applies across the board because of the way it is written. No SCOTUS action required - and that is something both the Justice Department and even liberal Constitutional scholars such as Lawrence Tribe agree upon.
"But how many insist that the second amendment has been incorporated and applies to the states?"
I don't know. But I do know that the Framers intended the 2nd as an individual right, that it is an individual right, and I couldn't care less what a bunch of ConLaw scholars say about "incorporation". We don't need incorporation for the 2nd to apply to the states.
jonestown,
Do you have a link to the report? I'm interested in reading it.
It worked for FDR, didn't it?
WHETHER THE SECOND AMENDMENT SECURES AN INDIVIDUAL RIGHT
Address:http://www.usdoj.gov/olc/secondamendment2.htm
If anything in the above is incorrect, or biased, or even misleading, let's hear it.
You wanna shoot the messenger and think to yourself that you've done a fine job at rebuttal, go for it.
But with no honest reply to the above, you just look petty and foolish.
I see. So it is a fact that, with the obvious exception of the first amendment, the Bill of Rights, as originally written by the Founding Fathers and ratified by the states, applied to the federal government AND the states? This is the way the Bill of Rights has been treated since 1789?
Or, are you saying that this is your opinion?
Lawrence Tribe believes that the second amendment applies to the states? I don't think so.
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