Posted on 05/03/2002 9:35:57 PM PDT by Caleb1411
"'Logic!' said the Professor half to himself. 'Why don't they teach logic at these schools?'" Professor Digory in C.S. Lewis's The Lion, the Witch, and the Wardrobe was complaining about the fatuous reasoning of the children in the novel who did not believe in the existence of Narnia.
Today the problem is not just that logic is untaught. Many people, including some of the most well-schooled, do not believe in logic. How else to explain the almost comically bad thinking that passes for policy analysis of some of the most important issues of our day?
When the Supreme Court legalized "virtual" child pornography (see "Images have consequences," May 4), many of the nation's most prominent newspapers defended the decision. Portraying themselves as First Amendment fundamentalists, they editorialized that even the most offensive speech deserves protection; otherwise, all of our freedoms are in jeopardy.
And yet, nearly every newspaper that took this position also pushed for a campaign-restrictions bill that would limit political speech.
Do they believe the founders of the nation, when they drew up the Bill of Rights, intended to protect computer simulations of adults having sex with little children—and not protect American citizens expressing their political opinions in the course of electing their representatives?
And even if liberal journalists reject the "original intent" approach to constitutional interpretation, if we need to protect all speech no matter how offensive, then shouldn't this apply to speech that they find offensive, namely that of special-interest groups, lobbyists, and grassroots activists?
Or consider the cloning debate. Most everyone agrees that using cloning to produce a human baby is wrong and should be banned by law. But many people, including influential scientific groups, believe that "therapeutic" cloning, producing embryos whose stem cells and other genetic material can be used to treat disease, should be allowed.
In other words, it is wrong to use cloning technology to produce a living baby. But it is right to use cloning technology to produce a baby that is killed for its spare parts.
Surely, therapeutic cloning is more of a moral problem than reproductive cloning. The latter is wrong too, since it violates God's design in the natural order, which ordains reproduction by means of sex, an arrangement that results in the family, the offices of husband and wife, father and mother. But a cloned child would not be a soulless monster, just the twin of some adult, and would be entitled to all the rights and value of any other human being.
But to clone a child and to deny his rights and value by not letting him grow up, instead using him as a macabre medicine for sick adults—surely this is even more problematic morally. Indeed, a major reason why reproductive cloning is immoral is that it requires the production of scores of embryos before one actually "takes," with the other embryos then being destroyed.
Of course, conservatives are often accused of being similarly contradictory. How can you be against abortion, goes one charge, but be in favor of the death penalty?
But clear, logical thinking requires the ability to make distinctions. It is wrong to kill an innocent person. It may not be wrong for the state to kill someone who is guilty. A baby in the womb is not the moral equivalent of a convicted serial killer or an al-Queda terrorist.
The contradiction is really on the other side. How can you oppose the death penalty, but be in favor of abortion? How can you be against executing Oklahoma City bomber Timothy McVeigh, who murdered 168 innocent men, women, and little children, but be for executing, without trial, a baby who isn't even born yet and who hasn't hurt anybody?
Fallacies like these litter the field of public-policy discourse. Why is the American Civil Liberties Union so zealous for the First Amendment, but so indifferent to the Second Amendment? Aren't they in the same Constitution?
How can public-school teachers get away with saying that standardized tests encourage rote memorization and "teaching to the test" when the tests they are complaining about involve reading paragraphs, answering questions about them, and doing math problems, measuring reading and math comprehension, but not rote memory at all? And why is the ability to memorize a bad thing? Why do those who believe in euthanasia think suffering merits the death penalty? Hasn't it always been more despicable to kill a sick, helpless person than someone who can fight back? Don't sick people need to be cared for, not exterminated?
Mental clarity is generally a prerequisite for moral clarity. And being able to recognize bad thinking is necessary for citizens in a free society—otherwise, they will not remain free very much longer, but be at the mercy of the spin doctors and the demagogues.
The right to regulate the use of firearms falls under the police powers of the individual states. The Second Amendment is a restriction on Congressional powers.
"The Second Amendment declares that it shall not be infringed, but this, as has been seen, means no more than that it shall not be infringed by Congress." - US Supreme Court, U.S. v. Cruikshank, 92 U.S. 542 (1875), Presser v. State of Illinois, 116 U.S. 252 (1886)
The logic of the supremacy clause would seem to require that the powers of Congress be determined by the fair reading of the express and implied grants contained in the Constitution itself, without reference to the powers of the States. For a century after Marshall's death, however, the Court proceeded on the theory that the Tenth Amendment had the effect of withdrawing various matters of internal police from the reach of power expressly committed to Congress. This point of view was originally put forward in New York City v. Miln, 22 which was first argued but not decided before Marshall's death. The Miln case involved a New York statute which required the captains of vessels entering New York Harbor with aliens aboard to make a report in writing to the Mayor of the City, giving certain prescribed information. It might have been distinguished from Gibbons v. Ogden on the ground that the statute involved in the earlier case conflicted with an act of Congress, whereas the Court found that no such conflict existed in this case. But the Court was unwilling to rest its decision on that distinction.
Speaking for the majority, Justice Barbour seized the opportunity to proclaim a new doctrine. ''But we do not place our opinion on this ground. We choose rather to plant ourselves on what we consider impregnable positions. They are these: That a State has the same undeniable and unlimited jurisdiction over all persons and things, within its territorial limits, as any foreign nation, where that jurisdiction is not surrendered or restrained by the Constitution of the United States. That, by virtue of this, it is not only the right, but the bounden and solemn duty of a State, to advance the safety, happiness and prosperity of its people, and to provide for its general welfare, by any and every act of legislation, which it may deem to be conducive to these ends; where the power over the particular subject, or the manner of its exercise is not surrendered or restrained, in the manner just stated. That all those powers which relate to merely municipal legislation, or what may, perhaps, more properly be called internal police, are not thus surrendered or restrained; and that, consequently, in relation to these, the authority of a State is complete, unqualified, and exclusive.'' 23 Justice Story, in dissent, stated that Marshall had heard the previous argument and reached the conclusion that the New York statute was unconstitutional. 24
The conception of a ''complete, unqualified and exclusive'' police power residing in the States and limiting the powers of the National Government was endorsed by Chief Justice Taney ten years later in the License Cases. 25 In upholding state laws requiring licenses for the sale of alcoholic beverages, including those imported from other States or from foreign countries, he set up the Supreme Court as the final arbiter in drawing the line between the mutually exclusive, reciprocally limiting fields of power occupied by the national and state governments. 26
Until recently, it appeared that in fact and in theory the Court had repudiated this doctrine, 27 but in National League of Cities v. Usery, 28 it revived part of this state police power limitation upon the exercise of delegated federal power. However, the decision was by a closely divided Court and subsequent interpretations closely cabined the development and then overruled the case.
Following the demise of the ''doctrine of dual federalism'' in the 1930s, the Court confronted the question whether Congress had the power to regulate state conduct and activities to the same extent, primarily under the commerce clause, as it did to regulate private conduct and activities to the exclusion of state law. 29 In United States v. California, 30 upholding the validity of the application of a federal safety law to a state-owned railroad being operated as a non- profit entity, the Court, speaking through Justice Stone, denied the existence of an implied limitation upon Congress' ''plenary power to regulate commerce'' when a state instrumentality was involved. ''The state can no more deny the power if its exercise has been authorized by Congress than can an individual.'' While the State in operating the railroad was acting as a sovereign and within the powers reserved to the States, the Court said, its exercise was ''in subordination to the power to regulate interstate commerce, which has been granted specifically to the national government. The sovereign power of the states is necessarily diminished to the extent of the grants of power to the federal government in the Constitution.'' 31 A series of cases followed in which the Court refused to construct any state immunity from regulation when Congress acted pursuant to a delegated power. 32 The culmination of this series had been thought to be Maryland v. Wirtz, 33 in which the Court upheld the constitutionality of applying the federal wage and hour law to nonprofessional employees of state-operated schools and hospitals. In an opinion by Justice Harlan, the Court saw a clear connection between working conditions in these institutions and interstate commerce. Labor conditions in schools and hospitals affect commerce; strikes and work stoppages involving such employees interrupt and burden the flow across state lines of goods purchased by state agencies and the wages paid have a substantial effect. The commerce clause being thus applicable, the Justice wrote, Congress was not constitutionally required to ''yield to state sovereignty in the performance of governmental functions. This argument simply is not tenable. There is no general 'doctrine implied in the Federal Constitution that ''the two governments, national and state, are each to exercise its powers so as not to interfere with the free and full exercise of the powers of the other.''' . . . [I]t is clear that the Federal Government when acting within a delegated power, may override countervailing state interests whether these be described as 'governmental' or 'proprietary' in character. . . . [V]alid general regulations of commerce do not cease to be regulations of commerce because a State is involved. If a State is engaging in economic activities that are validly regulated by the Federal Government when engaged in by private persons, the State too may be forced to conform its activities to federal regulation.'' 34
The answer is that people's hearts have been darkened, they have rejected God, and His laws.
All else is window dressing.
No and no. There is no state that has "banned gun ownership" in the way I think you mean. However if they did, then there would be causable action in front of the USSC based on the 2nd amendment. The Courts ruled that all citizens have a 14th Amendment right to "privacy" and "equal protection under the law" to abortion. California has no 2nd amendment parallel in their constitution but they have not "banned gun ownership"........... yet. The 14th amendment has been called the "Judiciary amendment" for decades since it is the most cited amendment used by the courts to over-rule state law.
I would think that Barbour"s use of the adverb "merely" when drawing his equivalence between "internal police" and "municipal legislation" argues for a somewhat broader view of the definition of "police" than is colloquial.
In any case, the authority of the State with regard to "arms" would seem to be limited in that arms are specifically addressed in the BoRs, and thereby should be out of the State's purview.
That the states have been allowed to retain legislation that restricts arms, as a precedent, should carry no more weight than the existence of the "War Powers Act" or "Roe."
No gun law is ever crafted to "restrict the right" to bear arms. Most are based on "regulation". NO STATE has outlawed gun ownership. They "regulate" it. Even the "assault rifle" ban is not an infringement on "your right to bear arms" any more than your state's restriction on flying a non-approved aircraft restricts your "right" to travel.. It is just a ban on a sub-section of a class of items. You make a good point on the abortion restrictions and it makes intuitive sense except for the fact In Roe v Wade there were state statutes against abortion (Texas) so therefore the court found a 14th amendment rationale to overturn them. Since there are no state statutes "banning gun ownership" there is nothing for the court to enforce.
And the restriction is specifically addressed to Congressional power.
"The Second Amendment declares that it shall not be infringed, but this, as has been seen, means no more than that it shall not be infringed by Congress." - US Supreme Court, U.S. v. Cruikshank, 92 U.S. 542 (1875), Presser v. State of Illinois, 116 U.S. 252 (1886).See also Cases v. United States, 131 F.2d 916 (1st Cir. 1942); United States v. Kozerski, 518 F.Supp. 1082 (D. N.H. 1982), aff'd 740 F.2d 952 (1st Cir. 1984); United States v. Tot, 131 F.2d 548 (3rd Cir. 1942); Eckert v. City of Philadelphia, 329 F.Supp. 845 (E.D. Pa. 1971), aff'd 477 F.2d 610 (3rd Cir. 1973); United States v. Johnson, 497 F.2d 548 (4th Cir. 1974); Love v. Peppersack, 47 F.3d 120 (4th Cir. 1995); United States v. Johnson, 441 F.2d 1134 (5th Cir. 1971); United States v. Warin, 530 F.2d 103 (6th Cir. 1976); Quilici v. Village of Morton Grove, 532 F. Supp. 1169 (N.D. Ill., E.D. 1981), aff'd 695 F.2d 261 (7th Cir. 1982); United States v. Hale, 976 F.2d 1016 (8th Cir. 1992); Fresno Rifle and Pistol Club, Inc. v. Van de Kamp, 746 F. Supp. 1415 (E.d. Ca. 1990), aff'd 965 F.2d 723 (9th Cir. 1992); United States v. Oakes, 564 F.2d 384 (10th Cir. 1977).
Exactly.
Now there's the rub, isn't it. An employer tells you to take a "mandatory unpaid vacation" as opposed to "laying you off" to hopefully avoid unemployment compensation claims.
How does "restrict" not meet the critiera of "infringed?"
"To suppose arms in the hands of citizens, to be used at individual discretion, except in private self-defense, or by partial orders of towns, countries or districts of a state, is to demolish every constitution, and lay the laws prostrate, so that liberty can be enjoyed by no man; it is a dissolution of the government. The fundamental law of the militia is, that it be created, directed and commanded by the laws, and ever for the support of the laws." -- John Adams
When did the ACLU take the position that Congress didn't have the power to restrict the right to keep and bear arms?
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