You quoted Madison earlier -- please allow me to do so also. His comments before the House of Representatives when he was arguing in favor of a Bill of Rights:
"It has been objected also against a bill of rights, that, by enumerating particular exceptions to the grant of power, it would disparage those rights which were not placed in that enumeration; and it might follow, by implication, that those rights which were not singled out, were intended to be assigned into the hands of the General Government, and were consequently insecure. This is one of the most plausible arguments I have ever heard urged against the admission of a bill of rights into this system; but, I conceive, that it may be guarded against. I have attempted it, as gentlemen may see by turning to the last clause of the fourth resolution."He was referring to the text that would eventually become the 9th Amendment:
-The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.
(Wait a minute -- that's the 9th Amendment verbatim, saying that the Constitution enumerates rights? Yes, with the express caveat that rights not enumerated were still retained by the people. That's a good thing.)
Yes, the Founders also provided for Amendments to the Constitution. But an amendment like the 14th (which supposedly applied the BOR to the states) was totally contrary to the original intent of the Founders!
Bite your tongue. If you read the full text of Madison's previously quoted (by both you and me) speech to the House, you'll hear several times a distinct wink and a nod to the effect that he hopes all the States will incorporate the equivalent of the Bill of Rights in their own Constitutions and laws. Madison again:
"If they are incorporated into the constitution, independent tribunals of justice will consider themselves in a peculiar manner the guardians of those rights; they will be an impenetrable bulwark against every assumption of power in the legislative or executive; they will be naturally led to resist every encroachment upon rights expressly stipulated for in the constitution by the declaration of rights. Besides this security, there is a great probability that such a declaration in the federal system would be enforced; because the State Legislatures will jealously and closely watch the operations of this Government, and be able to resist with more effect every assumption of power, than any other power on earth can do; and the greatest opponents to a Federal Government admit the State Legislatures to be sure guardians of the people's liberty. I conclude, from this view of the subject, that it will be proper in itself, and highly politic, for the tranquillity of the public mind, and the stability of the Government, that we should offer something, in the form I have proposed, to be incorporated in the system of Government, as a declaration of the rights of the people."So I would disagree that the 14th Amendment was some sort of gross aberration to the intent of the Founders. In reality, it was the logical extension to the spirit of the Constitution, because it settled once and for all that the rights enumerated in the Constitution (yes, enumerated in the Constitution, I said it again) applied to the People in all the States. (Okay, I apologize -- I'm just tweaking with you a little with the whole "enumerated" thing, even though I'm right. The Constitution actually enumerates very limited powers to the government, and reserves all others for the States and the People, I realize that. But the Bill of Rights is commonly said to "enumerate rights" -- you were merely arguing semantics to say otherwise).
You'll have to be more specific when you talk about my inconsistencies -- I don't know what you're talking about.
Sorry, I thought I was clear about that. I'm simply saying that you seem to be in favor of strong, even extreme federalism when it is convenient for a political position you support (gun control laws), but in favor of the Supremacy Clause and federal intervention when that allegedly supports a different political position you hold (drug laws, which is a case where I would argue that ironically, the federal government has actually overstepped its Constitutionally enumerated powers, by using "regulation of commerce" as a baldfaced phony excuse to restrict activities which should in fact fall under the control of the States' police powers. I know you'll cite case law to support your position, and I'll still tell you you're wrong -- the standard application of Constitutional law in this area is "well-intentioned" but wrong). You seem to engage in a la carte principle selection, depending on which one suits your political position, rather than taking a consistent stand on principle and letting the political results of that position flow naturally from the principle.
Furthermore, every federal court in every court decision (save one court in one decision) has stated that the second amendment of the U.S. Constitution only protects a collective RKBA (ie., as part of a state militia). In other words, the federal government may not infringe the states' ability to arm the citizens and form a state militia. That's all the second amendment does.
Whether the Second Amendment Secures an Individual Right, the U.S. Department of Justice position on the issue. Hope you'll take the time to actually read that -- it's lengthy but very in-depth in examining the issue. From that page:
For the foregoing reasons, we conclude that the Second Amendment secures an individual right to keep and to bear arms. Current case law leaves open and unsettled the question of whose right is secured by the Amendment. Although we do not address the scope of the right, our examination of the original meaning of the Amendment provides extensive reasons to conclude that the Second Amendment secures an individual right, and no persuasive basis for either the collective-right or quasi-collective-right views. The text of the Amendment's operative clause, setting out a "right of the people to keep and bear Arms," is clear and is reinforced by the Constitution's structure. The Amendment's prefatory clause, properly understood, is fully consistent with this interpretation. The broader history of the Anglo-American right of individuals to have and use arms, from England's Revolution of 1688-1689 to the ratification of the Second Amendment a hundred years later, leads to the same conclusion. Finally, the first hundred years of interpretations of the Amendment, and especially the commentaries and case law in the pre-Civil War period closest to the Amendment's ratification, confirm what the text and history of the Second Amendment require.One last goody for you, too. Even though you don't like the 14th Amendment, it's part of the Constitution. Despite mixed interpretations in case law regarding its effect on the 2nd Amendment, the original drafter of the 14th Amendment, John A. Bingham (R., Ohio), had absolutely no doubt as to its intended application:
Mr. Speaker, that the scope and meaning of the limitations imposed by the first section, Fourteenth Amendment of the Constitution may be more fully understood, permit me to say that the privileges and immunities of citizens of a State, are chiefly defined in the first eight amendments to the Constitution of the United States. Those eight amendments are as follows:ARTICLE I
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof, or abridging the freedom of speech, or of the press, or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.
ARTICLE 2
A well-regulated militia being necessary to the security of a free State, the right of the people to keep and bear arms shall not be infringed."
[Amendments III-VIII, also listed by Bingham, are here omitted.]
"These eight articles I have shown never were limitations upon the power of the States, until made so by the Fourteenth Amendment. The words of that amendment, "no State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States," are an express prohibition upon every State of the Union."
"-The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people."
I read that as, "The enumeration in the Constitution, of certain rights protected from federal infringement by this Constitution, shall not be construed to deny or disparage others retained by the people.
"... you'll hear several times a distinct wink and a nod to the effect that he hopes all the States will incorporate the equivalent of the Bill of Rights in their own Constitutions and laws."
Be that as it may, 150 years went by before the states started incorporating the BOR, and only because they were forced by the U.S. Supreme Court to do so! But if the states themselves adopted some or all of the BOR, at least the state supreme court would interpret them, not five justices on the U.S. Supreme Court telling us that nude dancing is protected "speech" and all states must comply. That's how the 14th is destroying federalism.
"I'm simply saying that you seem to be in favor of strong, even extreme federalism when it is convenient for a political position you support (gun control laws), but in favor of the Supremacy Clause and federal intervention when that allegedly supports a different political position you hold (drug laws ...)"
Mere coincidence.
My "principle" is based on constitutionality -- in these two areas, I happen to agree with the courts. The second amendment is not incorporated and only applies to the federal government. I think we agree, so I will not belabor the point.
Regarding drugs, I think we agree that Congress has the power to regulate the interstate commerce of drugs. Maybe they shouldn't be in that business (an arguable point), but they certainly have that power if they choose to do so (which they did so choose).
As to the intrastate regulation, that seems to be the sticking point. The bottom line is this -- since intrastate drugs would affect Congress' interstate regulation, they can control it. If they cannot, then we can just forget about the Commerce Clause.
For example, Congress regulates the airlines -- cruising altitudes, air corridors, landing patterns, radio frequencies, etc. What if the intrastate carriers took the same attitude as the pro-drug group and said that Congress may not regulate them -- that they can fly wherever and whenever they want since they only fly within their state?
Oh, that makes sense robertpaulsen, so Congress should be allowed to regulate them also. It not only makes sense, it's constitutional under the Necessary and Proper Clause. It makes as much sense for intrastate air traffic regulation as it does for intrastate drug regulation.
Whether the Second Amendment Secures an Individual Right, the U.S. Department of Justice position on the issue."
Yes, I read it. Their position and $6.95 will get you a cup of Starbucks coffee. If Hillary gets elected, I'm sure her Department of Justice will have something to say about the second amendment. Will you be citing that?
"the original drafter of the 14th Amendment, John A. Bingham (R., Ohio), had absolutely no doubt as to its intended application:"
I believe Mr. Bingham was the ONLY one who knew this. Certainly the U.S. Supreme Court didn't know its intended application -- in Twitchell v. Pennsylvania, April 5, 1869, the Supreme Court (unanimously) disposed of the case by citing the original understanding that the Bill of Rights restricted only the federal government, not the states.
Nobody mentioned the 14th Amendment. If the 14th Amendment was intended to "incorporate" the Bill of Rights against the states, you would think that nine months after it was ratified somebody would have known about this intent, either the plaintiff's lawyer, or one of the nine eminent constitutional lawyers on the 1869 Supreme Court.
Now, not only didn't the U.S. Supreme Court know its intended application, Congress didn't know its intended application. A mere eight years after the 14th amendment was ratified, Congress debated, and almost passed, the "Blaine Amendment" -- a resolution to recommend to the states a proposed constitutional amendment to impose the first amendment's religious freedom mandates on the states as well as the federal government.
Now why would they do this if the first amendment was already incorporated under the 14th amendment?