The Second Amendment as a Window on the Framers' Worldview

A liberal bully President Giuliani and Chuckie Schumer will have LOTS of chances to work together in a bi-partisan manner.

Of that, I have no doubt.

Regulating morals was a power reserved to the States.

Regulating criminal actions was a power reserved to the States, limited by due process in the writing and enforcement of constitutional laws.

My position is [as you could read above] that States can regulate criminal aspects of 'sins' like prostitution/gambling/etc, -- They have never lost that power.
Quotations from the founding fathers to that effect are not available, because above all, - they were politicians, -- and had to cater to the 'moral majoritarians' of their day. -- Just as politicians cater to the communitarian 'majority rulers' [like you] of today.

I knew if I pushed long enough, we would get to the core of things. And there it is.
Your position is that the Founding Fathers secretly thought laws against Sodomy and Prostitution were unconstitutional.

Bull. -- I explained my position above, and in previous posts that you refuse to address. -- I have no 'secret thoughts' position; -- that is your straw man BS.

But they all remained silent because of the then, 'moral majority.' So they slipped a secret but sacred constitutional right of sodomy and prostitution into the due process clause, which took us 200 years to discover. Aside from the fact this argument is silly,

Yep, your BS is silly. I've made no such argument.

there is a more profound difficulty. They didn't believe sodomy ought to be legal. Thomas Jefferson advocated castration for sodomy. George Washington dismissed soldiers from the continental army for the the "abhorrent" and "detestable" crime of sodomy. And James Wilson, both a signer of the Declaration and the Constitution and one of the original Justices of the Supreme Court, wrote a commentary on American law. James Wilson, 2 THE WORKS OF JAMES WILSON (1967) (from lectures given in 1790 and 1791). When the subject turned to sodomy, Wilson refused even to discuss the details of the act: "The crime not to be named [sodomy], I pass in a total silence." ID. at 656.

Big deal. You seen obsessed with sodomy. The men you quote found it repugnant, as I do. I fully agree that such soldiers should be dismissed from the army.

So there you have it. Thomas Jefferson, George Washington and James Wilson, neo-Borkians and moral majoritarians.

So there you have it, more silly hype from a 'majority rule' communitarian.

If you want to argue that we should have a living constitution

I'm not making that argument. You are.

and that you ought to be able to decide what new rights should be included, at least that's an honest (if bad) argument.

Life, liberty or property rights are not 'new'. I want them 'included' as protected by every level of government in the USA. -- You disagree and say that regulating morals was a power reserved to the States.
Now that is a dishonest (and a bad) argument.

Instead you cloak your arguments in fanciful assertions about the original intent of the Founding Fathers that are, frankly, laughable.

Quote the "fanciful assertions", and cite your reasoned replies. -- All you have to show to date are straw man hypebole.

That you have been reduced to arguing a secret plot by the Framers to legalize sodomy, which of course, they told noone about (because it was a secret--shhhhh!), illustrates the weakness of your argument especially when the few public statements they made on the topic are directly contrary to your position.

There you go again. You need new lines.

My position is [as you could read above] that States can regulate criminal aspects of 'sins' like prostitution/gambling/etc, -- They have never lost that power.

Well, let's make sure I understand.

(1) Does Texas have the authority under the constitution to pass a law making it a felony for accepting money in exchange for sex?

(2) Does Texas have the authority under the constitution to pass a law making it a felony to commit sodomy?

(3) Does Texas have the power under the Constitution to pass a law making it a felony to perform an abortion.

(4) Does Texas have the power under the Constitution to pass a law making it a felony to carry a concealed weapon.

Note, I'm not asking whether these are wise laws. I'm asking about whether you believe Texas has the power to enact such laws, regardless of their wisdom.

My answers to the above questions are Yes, Yes, Yes, and No, respectively. Until the language I quoted above, I thought your answers would be No, No, No, and No. Perhaps I misunderstood your previous posts.

Due process must be used in the writing of enforceable constitutional law. -- Legislators in the USA are obligated by oath to write only constitutional regulations regarding our lives, liberties or properties. -- They cannot prohibit acts [or items of property], just because they are morally offended by the act, or imagine that the item is 'too dangerous' to possess. -- Prohibitions can only be enacted by Amendment.

My position is [as you could read above] that States can regulate criminal aspects of 'sins' like prostitution/gambling/etc, -- They have never lost that power.

Well, let's make sure I understand.
(1) Does Texas have the authority under the constitution to pass a law making it a felony for accepting money in exchange for sex?

Texas does not have the power, under the US Constitution, to pass a prohibitive 'law' making it a crime to exchange sex for love, kindness, food, drinks or money. It does have the power to regulate the public aspects of such exchanges, -- IE, streetwalking/whorehouses/pandering, etc.

(2) Does Texas have the authority under the constitution to pass a law making it a felony to commit sodomy?

See (1). - Same principle applies. Sodomy is sex, despite Clintonian objections.

(3) Does Texas have the power under the Constitution to pass a law making it a felony to perform an abortion.

Abortion can be murder. If a grand jury so indicts, a murder trial is obligated under both fed and state laws/constitutions .

(4) Does Texas have the power under the Constitution to pass a law making it a felony to carry a concealed weapon.

Texas does not have the power under the US Constitution to pass a 'law' to criminalize the carrying of arms, concealed or not.

Note, I'm not asking whether these are wise laws. I'm asking about whether you believe Texas has the power to enact such laws, regardless of their wisdom.

Note I'm not questioning the wisdom behind your odd idea that our rights to life, liberty, or property can be ignored by governments.

My answers to the above questions are Yes, Yes, Yes, and No, respectively. Until the language I quoted above, I thought your answers would be No, No, No, and No. Perhaps I misunderstood your previous posts.

You misunderstand the principles behind our Constitution, imo.

Just read it the way it’s written.

You didn't get the memo? Reading laws as they were written has gone fully and completely out of style. Laws aren't even read anymore. They're just voted and signed. The judges are likely to read them, but usually for the purpose of twisting their meaning for a particular agenda.

People can tear this [the 2nd] apart a million different ways. Just read it the way it's written. The more we try and analyze the brains of the writers, the trouble we get into.
-- 'All men' did not include Blacks. Nor did it include women, that's why women did not have the vote.

The 'people' referred to in the 2nd included women and free blacks.

I think we need to stop trying to figure out what the Framers meant 'exactly' because everyone will have a different opinion.

The original intent is clear. Our rights to life, liberty, or property were not to be infringed.

Read and enforce the Constitution the way it was written, or change it.

We can't 'change' our protection of individual inalienable rights. -- Our Constitution is not amendable/changeable in order to deny freedoms; - it is there to defend them.

Then I did not misunderstand your position. I strongly believe you are referring to the Constitution as you would have written it. Not to the Constitution as written. And that’s a completely different discussion. Rather, it should be a completely different discussion.

My position is [as you can easily read above] that States can regulate criminal aspects of 'sins' like prostitution/gambling/etc, -- They have never lost that power.

Well, let's make sure I understand.
(1) Does Texas have the authority under the constitution to pass a law making it a felony for accepting money in exchange for sex?

Texas does not have the power, under the US Constitution, to pass a prohibitive 'law' making it a crime to exchange sex for love, kindness, food, drinks or money. It does have the power to regulate the public aspects of such exchanges, -- IE, streetwalking/whorehouses/pandering, etc.

Then I did not misunderstand your position.

Of course you do; you choose to 'misunderstand' our constitutions principles because you want States to be able to dictate morals. -- Admit it.

I strongly believe you are referring to the Constitution as you would have written it. Not to the Constitution as written.

The original intent is clear, protecting our inalienable rights. -- You are unable to counter those truths, so you are trying to save face by claiming:

And that's a completely different discussion. Rather, it should be a completely different discussion.

Fine. -- Run along now, - and try to pretend you've defended our Constitution as written.

The 10th amendment does not confer any and all powers to the state that is not enumerated to the Fed. It says clearly that any powers not enumerated are reserved by the state OR THE PEOPLE. Is funny how the “OR THE PEOPLE” part gets ignored.

The 10th amendment is a explicit limit to federal power. State powers are limited to those enumerated in state constitutions. There are only two states that have the constitutional (state constitution) power to regulate morality.

The 10th amendment does not confer any and all powers to the state that is not enumerated to the Fed. It says clearly that any powers not enumerated are reserved by the state OR THE PEOPLE. Is funny how the “OR THE PEOPLE” part gets ignored.

The 10th amendment is a explicit limit to federal power. State powers are limited to those enumerated in state constitutions.

Yes. But besides incorporating other provisions of the Constitution, the 10th does not add additional limits to the States. And, it's not clear what the Framers meant by 'respectively.' My best guess is that they meant just to leave thing as they were as between the States and the people. Had they intended a change, they would have been more explicit. In other words, the 10th was there to make sure that a specific enumeration of the rights of the people did not turn into an exclusive list as between the Feds and State, The Feds and the people and the States and the People.

There are only two states that have the constitutional (state constitution) power to regulate morality.

Generally, what I have been sloppily referring, on this thead, as morals legislation is regarding as having been in the police power of the State. As the States were sovereign nations before the Articles and the Constitution, their powers were limited in the Constitution only by the enumerated powers of congress and explicit prohibitions.

In using the term "morals legislation", I really adopted the libertarian terms of argument. Laws against prostitution and sodomy, for example, are actually not a legislation of thoughts--but of actions. Thinking about having sex for money is not illegal. Similarly, having sex for money is illegal even if the person doing that is aware it is immoral and feels badly about doing it. So morals legislation is not regulating whether a person believes in morality or has moral or immoral thoughts. It is regulating behavior. It only becomes "morals" legislation because we posit that legislators must have been making moral judgments when they passed the law.

But, the necessary conclusion from that is that there is no real "moral basis" distinction between laws against prostitution and assault. Both involve judgments about morality to some extent in that they involve a state judgment that the prohibited activity is immoral. Rather the, sub silentio distinction being made is between so-called victimless immorality and other forms of immorality. There is also a sense in this terminology that laws regulating anything having to do with sex are bad. But sex doesn't make the complete distinction; because most folks arguing that the states have no power to regulate prostitution would also argue the states have no power to regulate marijuana. So the only principled distinction between so-called morals legislation and legislation against assault is the NATURE of the legislature's moral judgment in passing the law. If the moral judgement involves so-called victimless crimes, it is unconsitutional according to much of the argument on this thread.

Once you get into the details of State constitutions, I have to confess my ignorance. I would be interested to know which two states have that Constitutional authority, as you see it, and (excluding the issue whether the Federal Constitution has prohibited to the States the power to enact morals-legisation, which has been flogged mercilessly on this thread) why you believe that the other 48 do not have that power. Do those two states have state constitutional provisions prohibiting, say, prostitution? While the others have no clause at all regarding the subject?

As the powers of the federal government are enumerated and therefore limited via the constitution so are states powers both enumerated and limited by states constitutions. States do not have unlimited powers. The 10th amendment states that there are powers reserved to the people so what is to determine what powers are reserved to the people or the states? Only the state constitution can answer those questions.

Wyoming, quite specifically, states that they have the power to regulate morality in the states constitution. (sec 20). Viginia, through logical infrence, has the power to regulate morality as they lay claim to any power not ceded to the fed, again explicitly. These are the only two cases that I am aware of where the state has a legitimate claim to regulate morality.

To: ModelBreaker:
As the powers of the federal government are enumerated and therefore limited via the constitution so are states powers both enumerated and limited by states constitutions.

It's amazing to me seeing you both totally ignore the fact that the 10th clearly specifies that some powers are prohibited to States by the US Constitution.

States do not have unlimited powers. The 10th amendment states that there are powers reserved to the people so what is to determine what powers are reserved to the people or the states? Only the state constitution can answer those questions.

Not true. -- The US Constitution enumerates various powers prohibited, -- and the most important are specified in the first 14 Amendments, imo.

Wyoming, quite specifically, states that they have the power to regulate morality in the states constitution. (sec 20).

Wyoming, like all States, is prevented from writing legislation ["moral" or otherwise] that deprives persons of life, liberty or property without due process of law.

Viginia, through logical infrence, has the power to regulate morality as they lay claim to any power not ceded to the fed, again explicitly. These are the only two cases that I am aware of where the state has a legitimate claim to regulate morality.

Dream on. -- Prohibitive type laws [malum prohibitum] violate due process.

As Justice Harlan recognized:

"-- [T]he full scope of the liberty guaranteed by the Due Process Clause `cannot be found in or limited by the precise terms of the specific guarantees elsewhere provided in the Constitution.
This `liberty´ is not a series of isolated points pricked out in terms of the taking of property; the freedom of speech, press, and religion; the right to keep and bear arms; the freedom from unreasonable searches and seizures; and so on.
It is a rational continuum which, broadly speaking, includes a freedom from all substantial arbitrary impositions and purposeless restraints, . . "

It's amazing to me seeing you both totally ignore the fact that the 10th clearly specifies that some powers are prohibited to States by the US Constitution.

It's amazing to me you could read my post and come to the conclusion that I don't know that the 10th amendment (among others) limits the powers of the state. I think I stated that pretty clearly.

Not true. -- The US Constitution enumerates various powers prohibited, -- and the most important are specified in the first 14 Amendments, imo.

I was specifically discussing reserved power not powers that were prohibited. When determining what powers are reserved to the states it only stands to reason that reserved powers can't be those which are prohibited so the answer has to be found in the state constitution. I kinda see your point but really you are arguing against something I never stated.

Wyoming, like all States, is prevented from writing legislation ["moral" or otherwise] that deprives persons of life, liberty or property without due process of law.
And? My point was that Wyoming has the enumerated power to legislate morality. I did not say that this power trumped the US constitution.

Dream on. -- Prohibitive type laws [malum prohibitum] violate due process. The Virginia constitution exists regardless of my dream state. The way it was written plainly claims that all powers not ceded to the Fed, or prohibited to them by such, are reserved to the state. I don't like it or particularly agree with the concept and in fact one could make an argument that the concept is unconstitutional, but have that argument with someone else as I didn't have any part in the creation of the state of Virginia's constitution.

Wyoming, like all States, is prevented from writing legislation ["moral" or otherwise] that deprives persons of life, liberty or property without due process of law.
-- Prohibitive type laws [malum prohibitum] violate due process.

And? My point was that Wyoming has the enumerated power to legislate morality. I did not say that this power trumped the US constitution.

Dream on that any State can declare a power to legislate 'morals'. -- Prohibitive type laws [malum prohibitum] violate the due process clause of our US Constitution.

The Virginia constitution exists regardless of my dream state.

Of course it does.

The way it was written plainly claims that all powers not ceded to the Fed, or prohibited to them by such, are reserved to the state.

And we both agree that malum prohibitum laws are unconstitutional. Good.

I don't like it or particularly agree with the concept and in fact one could make an argument that the concept is unconstitutional, but have that argument with someone else as I didn't have any part in the creation of the state of Virginia's constitution.

We have no argument then, and indeed I was making that argument to someone else.

Prohibitive type laws [malum prohibitum] violate due process.

Why do you assume that any laws passed to regulate morality would be malum prohibitum and not malem se?

Regardless, while I tend to agree that malum prohibitum laws violate due process, they certainly seem popular with both the left and the right. From click-it-or-ticket, motorcycle helmet laws, smoking bans, and etc., they spawn like rabbits. I don't see many of them being overturned due to their debatable constitutionality.

Wyoming, like all States, is prevented from writing legislation ["moral" or otherwise] that deprives persons of life, liberty or property without due process of law.
-- Prohibitive type laws [malum prohibitum] violate due process.

Why do you assume that any laws passed to regulate morality would be malum prohibitum and not malem se?

Malum in se - is an innately immoral act, regardless of whether it is forbidden by law. Examples include perjury, theft, and murder, -- not motorcycle helmet 'laws', smoking bans, gun prohibitions, etc.

Regardless, while I tend to agree that malum prohibitum laws violate due process,

Tend?

they certainly seem popular with both the left and the right. From click-it-or-ticket, motorcycle helmet laws, smoking bans, and etc., they spawn like rabbits. I don't see many of them being overturned due to their debatable constitutionality.

So now you admit you find Malum Prohibitum - An act which supposedly is 'immoral' because it is decreed to be illegal; -- debatable.

Well, I don't agree. We've never given governments the power to decree what acts are to be immoral.

Common law has long established what are 'innately immoral acts', -- we don't need 'new' socialistic moral majorities dictating any more.

Malum in se - is an innately immoral act, regardless of whether it is forbidden by law. Examples include perjury, theft, and murder, -- not motorcycle helmet 'laws', smoking bans, gun prohibitions, etc.
Yes...and by passing those laws are they not regulating morality? My point is that they are not necessarily passing malum prohibitum laws to regulate morality.

Regardless, while I tend to agree that malum prohibitum laws violate due process, Tend?

Yes tend. At a high percentage.

So now you admit you find Malum Prohibitum - An act which supposedly is 'immoral' because it is decreed to be illegal; -- debatable.

Certainly I hope it is still debatable as it is being done and needs to be stopped.

Well, I don't agree. We've never given governments the power to decree what acts are to be immoral. Common law has long established what are 'innately immoral acts', -- we don't need 'new' socialistic moral majorities dictating any more.

The people of Wyoming gave the Wyoming state government the power to regulate morality. That does not give them the power to usurp any powers and in fact could be argued that it doesn't infer any power that isn't specifically enumerated. All of that is beside the point however. By adopting english common law we did ourselves an injustice by not being forced to determine the underlying ethical principles on which they were founded. At the time of the founding it was far better understood then it is in contemporary society, however, had our founders not adopted the english common law system and had created their own we would have had some great debates and the underlying premise for all laws would have had to be justified. You know as well as I, in fact judging from your post history you know better then I, that some peoples rationalization for why something is immoral goes something like "It's immoral because it illegal, Why is it illegal? Because it's immoral". That isn't good reasoning obviously but the issue goes beyond Malum in se and Malum Prohibitum. What underlying ethical principle makes something Malum in se, or inherently immoral?

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So now you admit you find Malum Prohibitum - An act which supposedly is 'immoral' because it is decreed to be illegal; -- debatable.
Well, I don't agree. We've never given governments the power to decree what acts are to be immoral.
Constitutionally speaking its an undebatable principle, -- we cannot alienate our own rights.
Common law has long established what are 'innately immoral acts', -- we don't need 'new' socialistic moral majorities dictating [inventing] any more.

By adopting english common law we did ourselves an injustice by not being forced to determine the underlying ethical principles on which they were founded.

I contend that we were forced to find those underlying ethical principles by our civil war, -- and we enumerated them in the 14th, - saying that our rights to life, liberty or property CAN NOT be denied by governments without using due process in the writing or enforcement of new law..

At the time of the founding it was far better understood then it is in contemporary society, however, had our founders not adopted the english common law system and had created their own we would have had some great debates and the underlying premise for all laws would have had to be justified. You know as well as I, in fact judging from your post history you know better then I, that some peoples rationalization for why something is immoral goes something like "It's immoral because it illegal, Why is it illegal? Because it's immoral".
That isn't good reasoning obviously but the issue goes beyond Malum in se and Malum Prohibitum.

As you say, the 'reasoning' of the moral majority is socialistic nonsense.

What underlying ethical principle makes something Malum in se, or inherently immoral?

Actual harm is done to actual human beings, - with malice aforethought; -- in an inherently immoral act.
And, -- using due process - a jury can be found to agree that not only those malicious acts took place, but that the criminal law in question is valid.

Actual harm is done to actual human beings, - with malice aforethought; -- in an inherently immoral act. And, -- using due process - a jury can be found to agree that not only those malicious acts took place, but that the criminal law in question is valid.

I would agree with your definition of the underlying principle of malum in se laws. Now to convince the out of control government...