Posted on 09/20/2002 6:31:53 AM PDT by The Unnamed Chick
The purpose of the Bill of Rights was listed in the preamble thereto: "The conventions of a number of the States having at the time of their adopting the Constitution, expressed a desire, in order to prevent misconstruction or abuse of its powers, that further declaratory and restrictive clauses should be added: And as extending the ground of public confidence in the Government, will best insure the beneficent ends of its institution." (emphasis added) "Its powers" of course means the Constitution's powers - specifically, the powers that the Constitution grants to the federal government, not to the states (since the Constitution grants no powers to the states).
These "decalaratory clauses" may be reflective of natural rights, but the preamble makes it very clear that it is only forcing the federal government to respect those rights. It was assumed that state constituions already provided such protections.
NOR WILL I
The tyrants will disarm us as they do with the gradual elimination of our other right (like the 4th and the 5th). They will NOT try to disarm the populous all at once. They will instead disarm a few (or one) at a time. They will use ruses like charges of domestic violence, or DUI, or any other "crime" they think of in order to confiscate a persons right to bear arms. By the time we realize that our guns are beung confiscated ... it will be too late (like it may be NOW)
The way I look at the preamble (the way I believe it was intended to be interpreted) is as an expression that the delegates to the conventions of many of the states were deeply concerned that not enough parameters were defined within the Constitution itself to ensure that the powers that the federal government received through that very document would be specifically defined, and minimal.
I believe their fear was justified in that regard, but I don’t believe the ‘declaratory clauses’ they wanted to add had anything to do with what I like to call ‘natural rights’ (freedom to speak, freedom to congregate, freedom to defend oneself …. ).
By ratifying the Constitution itself, the various states were, in effect, placing their trust in three concepts:
(1) that the ‘natural (God-given) rights’ that each individual state had heretofore attempted to protect in its own constitution were now ensured under the much broader (and uniformly defined) U.S. Constitution.
(2) that the responsibilities of the federal government would consist of those which would better be administered on a federal level rather than a state level, would be minimal, clearly defined, and would not infringe on the rights of the individual states or its inhabitants.
(3) that anything not falling under the ‘better administered on a federal level’ label would be left to the discretion of the states and/or the people.
Now, more than two hundred years later, it is disingenuous for special-interest groups to claim that the Constitution clearly states that the federal government cannot abridge the right to keep and bear arms, and, by insinuation, the states are allowed to do so. The Constitution clearly states that the right to keep and bears arms is not to be infringed by any government body. And such an interpretation of the Framers’ intent in no way infringes upon states’ rights. Such an interpretation simply illustrates the supremacy of individual rights, which makes the concept of states’ rights pale in significance.
If there is anyone who doubts where, in order of preference, the Founders would have placed individual rights vs. states’ rights, versus federal power, they had better go back and read the Founders’ writings.
The right to keep and bear arms was considered, both by the states which ratified the Constitution, and by the Framers themselves, to be one of those ‘natural rights’ over which no government institution has oversight. And I don’t believe the preamble to the Bill of Rights was as much a reflection on such natural rights as it was a statement of fear that those areas in which state governments ought to rein supreme (‘natural rights’ being vehemently excluded from inclusion in that category) might someday be usurped from the states by the federal government, unless further declaratory and descriptive clauses were added (and I believe they were right).
It does indeed cause such an infringement, if it results in giving federal judges the power to second-guess state laws, in any area where the Constitution does not specifically restrict state action. Giving them that power has already contributed greatly to the virtual emasculation of state government's ability to act as an important check on the power of the federal government.
And it's a very well-established principle of construction that where the Constitution speaks in general terms, it only applies to the general government, because it's a Constitution of the United States, it's purpose being to create and delimit federal powers. It's only when it indicates the states by word (as in "No State shall...") that its strictures apply to the states.
I can’t agree with your well-established principle (somebody needs to un-establish it).
Why call ourselves the United States of America if we haven’t, under our Constitution, agreed to accept those enumerated ‘natural rights’ as uniform, inalienable precepts by which we partially define our existence …. and whose sanctity we protect from any (federal, state, local) government interference?
I agree with you that ‘general [Constitutional] terms’ which limit government power do not apply to the states, but rather only to the federal government. Strictly defining, and reining in possible abuses of, federal government power were perhaps the Framers’ most overwhelming concerns.
But, when considering the constitutionality of state laws which infringe upon the American citizens' Second Amendment right to keep and bear arms, we are not talking about ‘general Constitutional terms’ as regards the limits of government. We are talking about ‘general Constitutional terms’ as regards the citizens’ ‘natural rights’. They are two entirely different considerations. One enumerates strict parameters within which the general (federal) government may operate. The other enumerates individual rights over which no form of government may trespass. Different color horses we’re talking about here.
I abhor (the all-too-frequent) federal court decisions which chip away at states’ rights. But any federal court which declares a state law prohibiting or restricting its citizens’ right to keep and bear arms is simply performing its Constitutional duty (to uphold). That (Constitutionally purist) kind of ruling is an all-to-infrequent occurrence today, which makes me even more resolved to defend it.
We call ourselves the United States because ours is a system where the primary locus of sovereignty is in the states, and it's their primary responsibility to protect those natural rights you mention. If they fail to do so, then there's not much the federal government can do for them, but there is plenty the federal government can do to them, if it's not kept within proper bounds.
Now, I'm having a bit of trouble following you in your last couple of responses, so I'd like to backtrack a little. You started off saying,
The way I look at the preamble (the way I believe it was intended to be interpreted) is as an expression that the delegates to the conventions of many of the states were deeply concerned that not enough parameters were defined within the Constitution itself to ensure that the powers that the federal government received through that very document would be specifically defined, and minimal.
So far, so good. It sounds like you were agreeing with what I said, that the BOR was intended by the Preamble to apply against the federal government only. But you then said in this last post,
But, when considering the constitutionality of state laws which infringe upon the American citizens' Second Amendment right to keep and bear arms, we are not talking about ‘general Constitutional terms’ as regards the limits of government. We are talking about ‘general Constitutional terms’ as regards the citizens’ ‘natural rights’.
If you agree that the intent behind the BOR was "to ensure that the powers that the federal government received through that very document would be specifically defined, and minimal," then it would have to follow that we are indeed "talking about 'general Constitutional terms' as regards the limits of government." Wouldn't it seem?
Which you have apparently never bothered to read:
SECTION 1. Section 11362.5 is added to the Health and Safety Code, to read:Semantics note: As previously noted, states have no "rights" at all, merely "authorized (or unauthorized) powers."11362.5. (a) This section shall be known and may be cited as the Compassionate Use Act of 1996.
(b)(1) The people of the State of California hereby find and declare that the purposes of the Compassionate Use Act of 1996 are as follows:
(A) To ensure that seriously ill Californians have the right to obtain and use marijuana for medical purposes where that medical use is deemed appropriate and has been recommended by a physician who has determined that the person's health would benefit from the use of marijuana in the treatment of cancer, anorexia, AIDS, chronic pain, spasticity, glaucoma, arthritis, migraine, or any other illness for which marijuana provides relief.
(B) To ensure that patients and their primary caregivers who obtain and use marijuana for medical purposes upon the recommendation of a physician are not subject to criminal prosecution or sanction.
(C) To encourage the federal and state governments to implement a plan to provide for the safe and affordable distribution of marijuana to all patients in medical need of marijuana.
(2) Nothing in this section shall be construed to supersede legislation prohibiting persons from engaging in conduct that endangers others, nor to condone the diversion of marijuana for nonmedical purposes.
(c) Notwithstanding any other provision of law, no physician in this state shall be punished, or denied any right or privilege, for having recommended marijuana to a patient for medical purposes.
(d) Section 11357, relating to the possession of marijuana, and Section 11358, relating to the cultivation of marijuana, shall not apply to a patient, or to a patient's primary caregiver, who possesses or cultivates marijuana for the personal medical purposes of the patient upon the written or oral recommendation or approval of a physician.
(e) For the purposes of this section, ''primary caregiver" means the individual designated by the person exempted under this section who has consistently assumed responsibility for the housing, health, or safety of that person.
"That every power vested in a government is in its nature sovereign, and includes, by force of the term, a right to employ all the means requisite and fairly applicable to the attainment of the ends of such power, and which are not precluded by restrictions and exceptions specified in the Constitution, or not immoral, or not contrary to the essential ends of political society." -- Alexander Hamilton"But the constitution of the United States has not left the right of Congress to employ the necessary means, for the execution of the powers conferred on the government, to general reasoning. To its enumeration of powers is added that of making 'all laws which shall be necessary and proper for carrying into execution the foregoing powers, and all other powers vested by this constitution, in the government of the United States, or in any department thereof.' " -- United States Supreme Court, McCulloch v. Maryland (1819)
Main Entry: 1pow·er
Pronunciation: 'pau(-&)r
Function: noun
Usage: often attributive
Etymology: Middle English, from Old French poeir, from poeir to be able, from (assumed) Vulgar Latin potEre, alteration of Latin posse -- more at POTENT Date: 13th century
1 a (1) : ability to act or produce an effect (2) : ability to get extra-base hits (3) : capacity for being acted upon or undergoing an effect b : legal or official authority, capacity, or right
I agree (obviously) that the 14th amendment doesn't mention the Bill of Rights. When the wording of the Constitution (or one of its amendments) is unclear, I think one should go back to the discussion of the people who wrote the Constitution (or the particular amendment) to try to figure out what they were trying to say.
(NOTE: This is most emphatically NOT the same as attempting to re-interpret the words to their modern meanings. Nor is it even the same as ignoring the actual words, in favor of the "spirit." Rather, it's an attempt to find the meaning of the words, where those words are unclear.)
Akhil Reed Amar (of the Yale Law School) has written a detailed (i.e., lonnnnng) analysis of the meaning of the 14th amendment:
http://www.saf.org/LawReviews/Amar1.html
I'll quote selectively from Dr. Amar's analysis, to reach my conclusion (which isn't necessarily the same as Dr. Amar's conclusion).
First, before the Civil War (and the 14th amendment), states...especially *Southern* states, didn't allow many of the Rights in the Bill of Rights...regardless of what their state constitutions may have said regarding those rights:
"The structural imperatives of the peculiar institution led slave states to violate virtually every "right" and "freedom" declared in the Bill- not just rights and freedoms of slaves, but of free men and women too. [106] Simply put, slavery required repression. Speech and writing critical of slavery-even if plainly religious or political in inspiration-was incendiary and had to be suppressed in Southern states, lest slaves overhear and get ideas. [107] Teaching slaves to read (even The Bible) was a criminal offense punished severely in some states. [108] In a society that saw itself under siege after Nat Turner's rebellion, [109] access to firearms had to be strictly restricted, especially to free blacks. [110] The problem of fugitive slaves created further pressures on civil liberties that made life treacherous indeed for free blacks. Typically, all Southern blacks were legally presumed to be slaves, subject to arbitrary "seizures" of their "persons," triable as fugitives without juries in proceedings lacking basic rudiments of due process and, if adjudged to be escaped slaves, subject to great cruelty as a warning to others. [111]"
But that was "OK" (in complete accordance with the Constitution), because the Bill of Rights weren't taken as applying to the states.
But the writers of the 14th Amendment (particularly, Congressman John Bingham) made it very clear that they were attempting to "plug" that "hole," as evidenced by Amar's analysis that:
"Earlier drafts of the key sentence had omitted the words "No State shall" in favor of other formulations, but as Congressman John Bingham explained several years after the Amendment's adoption, he rewrote Section One in response to and in reliance upon Barron:
In reexamining that case of Barron, Mr. Speaker, after my struggle in the House in February 1866, ... I noted and apprehended as I never did before, certain words in that opinion of Marshall. Referring to the first eight articles of amendments to the Constitution of the United States, the Chief Justice said: "Had the framers of these amendments intended them to be limitations on the powers of the State governments they would have imitated the framers of the original Constitution, and have expressed that invention." Barron vs. The Mayor, &c., 7 Peters, 250.
Acting upon this suggestion I did imitate the framers of the original Constitution. As they had said "no State shall emit bills of credit, pass any bill of attainder, ex post facto law, or law impairing the obligations of contracts;" imitating their example and imitating it to the letter, I prepared the provision of the first section of the fourteenth amendment as it stands in the Constitution .... [116]"
As far as the "privileges" not being the same as "rights"...well, Congress, in the 1866 Civil Rights Act, addressed this issue:
"Only weeks before adopting the Fourteenth Amendment, Congress passed the Civil Rights Act of 1866, widely seen as the statutory precursor of Section One. In draft, the Act spoke of "civil rights and immunities," leading its sponsor to play the role of law dictionary: "What is an immunity? Simply 'freedom or exemption from obligation ...."' [125]
So CONGRESS, only two weeks before the Fourteenth Amendment, equated "immunity" to "freedom..."
And the word "privilege" is drawn directly from the Dred Scott decision:
"At the time of the Fourteenth Amendment, the best [Page 1223] known case on the scope of the Bill of Rights was none other than Dred Scott, which involved, among other issues, questions arising under the due process clause of the Fifth Amendment. Dred Scott declared the rights in the Bill to be not simply privileges, but 'privileges of the citizen.' " [131]
Now, you may think, "Well, they should have specifically mentioned the Bill of Rights, rather than using 'privileges and immunities." But I think the reason they didn't do that is that they wanted to included MORE than just the rights in the Bill of Rights. They wanted to include the idea that state legislatures couldn't suspend habeous corpus, for example:
"Clearly, the privileges or immunities clause encompasses more than the federal Bill as such. Article I, Section 9, for example, declares that "The Privilege of the Writ of Habeas Corpus shall not be suspended," except in certain limited circumstances. Though Rawle had claimed otherwise in 1825, Barron squarely held that this clause, like all the other provisions in Section 9, bound only the federal government. [159] "
But here is the slam-dunk...again, from Dr. Amar's analysis:
"But what, precisely, were the 'privileges or immunities of citizens of the United States'? In 1859, Bingham offered no comprehensive summary, but strongly implied that all rights and freedoms guaranteed by the Constitution were included. Though he did not use the magic words 'Bill of Rights,' he either quoted or paraphrased the rights to speech, press, religion, due process, just compensation, and jury trial. In 1866, Bingham spoke to the issue at much greater length and made himself about as clear as one could ever hope for. Over and over he described the privileges or immunities clause as encompassing 'the bill of rights'-a phrase he used in a key speech on February 28th no less than a dozen times. [188] In that speech, he also explained why a constitutional amendment was necessary, citing by name and quoting from the Supreme Court's opinions in Barron and one of its progeny, Livingston v. Moore. [189] The day before, a colleague of Bingham's, Robert Hale, had suggested that states were already bound by the Bill, [190] but Bingham set Hale and others straight with the following quotation from Livingston: 'As to the amendments of the Constitution of the United States, they must be put out of the case, since it is now settled that those amendments do not extend to the States ....' [191] Six weeks later Bingham again held forth on the need for his amendment, invoking 'the bill of rights' six times in a single speech and again reminding his colleagues that it 'has been solemnly ruled by the Supreme Court of the [Page 1235] United States,' that 'the bill of rights ... does not limit the powers of States.' [192]"
"In 1871, several years after the Fourteenth Amendment's ratification, Bingham was once more called upon to parse its words. He yet again cited by name and quoted from Barron, [193] and here too he immediately linked 'the privileges and immunities of citizens of the United States' with the Bill of Rights:"
"'[T]he privileges and immunities of citizens of the United States, as contradistinguished from 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. [Bingham then proceeded to read the first eight amendments word for word.] These eight articles I have shown never were limitations upon the power of the States, until made so by the fourteenth amendment.' [194]"
So, in John Bingham's mind, at least...the 14th amemdment requires that the states respect all of the rights in the Bill of Rights. (As well as some rights, like habeas corpus, that aren't listed in the Bill of Rights.)
Therefore, I think the goal of the 14th Amendment was to require that states honor all the rights in the Bill of Rights. In my opinion, that raises a bunch of very messy issues, since it prohibits states from making ANY restrictions on speech...but that's another issue. The intent of the 14th Amendment...upon reviewing the words of the writer(s)...is pretty clear.
If it's nonetheless true that the drafters wanted it to say what Dr. Amar says they wanted it to say, then the only explanation for their wording that I can come up with is that they were afraid (and probably justifiably so) that more forthright language would impede ratification by the states. And if that's the case, then that invalidates whatever intent they had for the amendment. You said in your post, "When the wording of the Constitution (or one of its amendments) is unclear, I think one should go back to the discussion of the people who wrote the Constitution (or the particular amendment) to try to figure out what they were trying to say." That's almost right. If we're to go back to an original understanding, then we need to consider with at least equal weight, the understaning of those who ratified it. It's like if I ask you to sign a contract that I wrote up, and then afterwards claim that my less-than-clearly-worded intent for a particular phrase was different from yours. I don't think the judge would automatically rule in my favor.
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