[big inch]

How is it that certain states and districts can deny law-abiding citizens the right to keep and bear arms?

Which part of the second amendment is unclear?

How long will the American people continue to let our freedoms slip away?

Please discuss. :confused:

[The Real Hawkeye]

How is it that certain states and districts can deny law-abiding citizens the right to keep and bear arms?

Which part of the second amendment is unclear?

How long will the American people continue to let our freedoms slip away?

Please discuss.Well, the Second Amendment is part of the U.S. Constitution, which is the document that both formed and strictly limited the powers of the United States government. It placed, however, no legal limits on what states could do or outlaw with legislation. That said, it did evidence the Founders' common conviction that the keeping and bearing of arms is indeed a right. They were correct in that, of course, but the U.S. Constitution does not restrict what state legislatures can do, except where a power is stated in the Constitution as belonging exclusively to the Federal Government, e.g., the states cannot engage in their own independent foreign policies with other nations, and cannot maintain navies and such.

It is up to each state citizen, therefore, to make sure that his state recognizes in its laws and constitution his right to keep and bear arms. The Feds are forbidden from infringing on our right to do so, but unless your state has a similar amendment in its constitution, it is legally empowered to violate your free exercise of this right. The powers of the Federal Government are, as Madison observed, few and defined, while the states' powers are many and undefined. This is the Federalism that the Founders gave us. Sadly, the system of federalism described above no longer exists in the United States. It was replaced with a totalitarian form of central government, wherein the states are mere subsidiary units of the central government. Thank you Abe Lincoln.

[The Real Hawkeye]

In support of my above post, I offer the following:The author of our Constitution, James Madison, wrote in The Federalist Papers: "The powers delegated by the proposed Constitution to the federal government are few and defined. Those which are to remain in the State governments are numerous and indefinite. The former will be exercised principally on external objects, as war, peace, negotiation and foreign commerce. ... The powers reserved to the several States will extend to all the objects which in the ordinary course of affairs, concern the lives and liberties, and properties of the people, and the internal order, improvement and prosperity of the State." Madison further noted, "If Congress can do whatever in their discretion can be done by money, and will promote the General Welfare, the Government is no longer a limited one, possessing enumerated powers, but an indefinite one, subject to particular exceptions."

[Wildalaska]

How is it that certain states and districts can deny law-abiding citizens the right to keep and bear arms?

Which ones?

WildexamplespleaseAlaska

[The Real Hawkeye]

Which ones?How about Mass-a-two-sh*ts

[Wildalaska]

How

WildexamplespleaseAlaska

[R.H. Lee]

Aren't handguns verboten in D.C, NYC and Chicago? <A little cleanup by Art>

[The Real Hawkeye]

How?Aren't you willing to stipulate that in the state of Mass, ordinary law abiding citizens are denied the legal authorization to exercise their right to keep and bear arms?

[Wildalaska]

Aren't handguns verboten in D.C, NYC and Chicago? (and maybe soon in San Fransyphco, the syphilis capital of the country).

Actually they are just verboten in DC, so there is a jurisdiction that clearly acts contrarr to the 2nd

WildgoodexampleAlaska

[El Tejon]

How? Gee, Wild, I don't know how the BoR would be violated by the states ? How about requiring a license in order for an individual to own a book or attend a house of worship? Or limiting what books you are allowed to read, what that book looks like, or whether you may carry a book about without governmental permission?

big, because after the Civil War the Supreme Court was heavily Southern. The Court came up with an a la carte menu for the Bill of Rights to be applied to the States in order to impede the freedom of Blacks (called "selective incorporation"), even though it was obvious that it was the intent of Congress to apply all the BoR to the States to stop Southern tyranny as the Civil Rights Act of 1866 was not taken seriously down there.

It took until the 1920s for the First Amendment to be applied to the states; it was not until the 1960s that many other provisions of the BoR were applied to the states (from Southern criminal procedure).

Today two rights remain unincorporated: the Second and the right to grand juries in the 5th.

Chicago has enacted a book freeze since 1983.

[Wildalaska]

Aren't you willing to stipulate that in the state of Mass, ordinary law abiding citizens are denied the legal authorization to exercise their right to keep and bear arms?

I dunno, you tell me....

How about requiring a license in order for an individual to own a book or attend a house of worship? Or limiting what books you are allowed to read, what that book looks like, or whether you may carry a book about without governmental permission?

Now now LT, you darn well know the difference :)...Betcha I can find ya examples of constituional assault book laws?

WildofftothelibraryseeyalaterAlaska

[The Real Hawkeye]

I dunno, you tell me....How could I tell you what you are willing or unwilling to stipulate to?

[El Tejon]

Wild, yes, yes, the difference is that there has been extensive First Amendment litigation, but not Second.

[FeebMaster]

How is it that certain states and districts can deny law-abiding citizens the right to keep and bear arms?

Which part of the second amendment is unclear?

How long will the American people continue to let our freedoms slip away?

Please discuss.

You mean there are places in America where the right to keep and bear arms isn't being infringed? Where?

[The Real Hawkeye]

You mean there are places in America where the right to keep and bear arms isn't being infringed? Where? :neener: Well, maybe one or two. I'd say that Vermont comes pretty close. Of course the Federal Government, i.e., the one entity specifically forbidden from infringing on the right, infringes on it constantly. Just another example of how the system of federalism established in 1789 has been turned on its head.

[FeebMaster]

Well, maybe one or two. I'd say that Vermont comes pretty close.

Do federal laws not apply in Vermont? Did Vermont repeal their ban on silencers?

[Third_Rail]

How


Um... WA, please tell me this is a joke. The PD has the ability to deny ANYONE for ANY REASON at ANY TIME. Even after you've been accepted, have had your LTC for years, etc. They deny you, and everything you've bought (kept by the state registry, another violation of our rights) is contraband, taken, and destroyed without compensation.


That's how.

[The Real Hawkeye]

Do federal laws not apply in Vermont? Did Vermont repeal their ban on silencers?I said it comes pretty close. If the state of Vermont has outlawed silencers, it has infringed on the right to keep and bear arms to some degree. If I were a Vermonter, I'd look at my state constitution and see if my right to keep and bear arms is guaranteed against infringement by the government of Vermont.

[Wildalaska]

Wild, yes, yes, the difference is that there has been extensive First Amendment litigation, but not Second.

Come on LT ya can do better than that.....no restrictions on the first amendment?

How could I tell you what you are willing or unwilling to stipulate to?

Dude you are the proponent of a certain assertion..ya'll want me to stipiulate to somehting, set forth the terms thereof.

WildeasyAlaska

[The Real Hawkeye]

Dude you are the proponent of a certain assertion..ya'll want me to stipiulate to somehting, set forth the terms thereof.My point, which I think is clear, is that you seem unwilling to stipulate to the obvious. Two carpenters cannot proceed with a debate on the best way to install bookshelves if one of the carpenters insists that the other first prove that matter exists. In order to proceed, both have to stipulate to the obvious, i.e., that matter does indeed exist. In our debate, you are unwilling to stipulate to (that is to say, you insist on evidence for) the obvious fact that most states blatantly infringe upon (if not outrightly deny), with force of law, an ordinary individual's right to keep and bear arms. This is an attempt on your part, I contend, to stall debate.

[SpaceCowboy]

It is different when you are in ancorage alaska, separated from the rest of the country as oppossed to Chicago (Which like NYC goodexamplealaska) denies the right of the people to own a handgun(and charges $25 per year per long gun to register assuming those long guns fall within a strict set of compliant features) while the cage unit, a pseudo local/state/federal task/swat force breaks down doors in the middle of the night because you failed to renew your registration or let your firearms card expire.

[Standing Wolf]

How long will the American people continue to let our freedoms slip away?

Until they're all gone.

[grampster]

What Standing Wolf says.

[hammer4nc]

So, about this supremacy clause thing ...

How come it's applied strictly with regard to the first amendment (i.e. alabama ten commandments case, and many others).

Yet completely ignored concerning the second amendment (states free to pass restrictive laws in violation of federal constitution).

What am I missing?

[El Tejon]

hammer, you are missing the doctrine of "selective incorporation". See Professor Tejon's brilliant lecture supra. :D

wild, now, now, young man, you know the scrict scrutiny test. Just need litigation to treat the Second as the First. :)

[mhdishere]

Well, I'm going to go after the question in the original post:

How is it that certain states and districts can deny law-abiding citizens the right to keep and bear arms?

Having grown up in a place where such rights are denied (NYC) then moved to a place where it's only slightly better (NJ), here's my take. In the urban areas people are less willing to take care of themselves and more willing to let someone else do so. For instance, how many New Yorkers know how to clean a fish? Fish and meat are items purchased in a store and wrapped in plastic, with all the yucky stuff already removed and usually with no indication that the hunk of stuff was once walking, swimming or flying. If a drain clogs you call someone, if someone attacks you you call someone, you don't get your hands dirty by doing it yourself. Such people trust strangers, especially strangers in the government, to take care of them. Most strangly, they trust the government while at the same time saying that all politicians are liars and crooks.

People in more rural areas tend to be more self sufficient. They understand that if your car breaks down during a blizzard you can die, and that there's no one else who can help you but you.

Which part of the second amendment is unclear?

No part of it is unclear, but it's been ignored by many people. The same people who can't change their own tire accept that it applies to the National Guard.

How long will the American people continue to let our freedoms slip away?

There will always be people who are unwilling to take responsibility, such people are parasites. These are the people Orwell said sleep safe in their beds at night because rough men stand ready to do violence on their behalf. If the SHTF they'll be the first to go. If not, they'll plod thru their miserable lives. Either way there will always be people insist upon taking care of themselves.

Please discuss.

[RealGun]

The 2A has not been applied to the States via the Fourteenth Amendment. See The Right to Keep and Bear Arms under the Second and Fourteenth Amendments: The Framers' Intent and Supreme Court Jurisprudence - Stephen J. Halbrook (http://www.guncite.com/journals/gun_control_saf-hal.html)

State infringements, i.e. ignoring the 2A and having no RKBA in the State Constitution, are unmistakably centered around large cities, for example in California, Illinois, New York, and Maryland. Furthermore, those cities are allowed to be more restrictive than the rest of the State.

[BB62]

So, about this supremacy clause thing ...

How come it's applied strictly with regard to the first amendment (i.e. alabama ten commandments case, and many others).

Yet completely ignored concerning the second amendment (states free to pass restrictive laws in violation of federal constitution).

What am I missing?

You are 1000% correct. The liberals fight tooth and nail to make sure that SOME of the Bill of Rights are applied to the States, but not all.

I think Ohio should restrict the freedom of the press by requiring registration of reporters and submission of stories before printing! Let's see if liberals claim that the B of R is a floor or a ceiling on a citizen's rights as per the state legislature.

I think the biggest problem is that the true meaning of 2nd Amendment is hidden and distorted at every opportunity by the powers that be.


BB62

[TheEgg]

How long will the American people continue to let our freedoms slip away?

How long? Until they are ALL gone. Why? Because many people are enamored of ever increasing government control of almost everything, envisioning the possibility of the perfection of man through legislation. Even some of the most prolific posters to this very board are statists who believe that as long as one can point to a "law" any kind of violation of the rights of human beings is justifiiable. And to this type of poster, anyone who disagrees with their viewpoint is simply some kind of nut-case extremist.

[saltydog]

Question:
Why are there places in America that deny our rights?

Answer:
Because the voting majority of those places don't want any rights! Just look at who they elect. Enought said. :eek:

[Michigander]

Amendment 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.

Amendment I specifically states "Congress."

Amendment II
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.

Amendment II does not specify "Congress."

So, if Amendment II was only a restriction on the Federal Government, why would it not state, "the right of the people to keep and bear Arms shall not be infringed by Congress."?

[standingbear]

I think alot of it hinges upon ideas.what one generation believed important yesterday is of no "bother" today. alot of people dont even vote and wont because they believe they are an insignificant amount and their vote isnt going to change things one way or the other. some of the ones that do vote, dont even know who they are voting for..the name sounds familiar or they had commercials all over the televison saying this or that. they get in office and then show their true colors, people gripe and ideals change...then its tolerated till the next one comes along...yet the laws are now on the books from the other guy..and new ideas change.What wasnt acceptable then is now or vice versa.

anyone know how many gun laws are already on the books these days?


whats it going to take?well..prolly when the blackpowder hunters get their smokepoles taken away...the over under skeet shooters get their 1500 dollar shotguns taken away...or the ammo is so highly taxed, they cant shoot them.

until every gun owner can agree that each sport is about the same thing, its going to happen.

get involved and know who youre voting for..vote and share your hobby.

[The Real Hawkeye]

So, if Amendment II was only a restriction on the Federal Government, why would it not state, "the right of the people to keep and bear Arms shall not be infringed by Congress."?I assume you are addressing my statement. The answer is: Because the Federal Constitution, unless otherwise specified by its words, is merely a list of powers that the new Federal Government was to have. Anywhere in the Constitution where powers are specifically denied, are specifically denied to that Federal Government.

State governments were considered sovereign and independent with regard to every power not given exclusively to the Federal Government. The Federal Government was denied authority to regulate firearms by the Tenth Amendment, when taken in the context of the entire Constitution. It was further specifically prohibited from doing so by the Second Amendment.

The Federal Government and the State Governments differ in that the Federal Government is one of enumerated and specific powers, while the States were to retain ALL other powers proper to a sovereign state, one of which is the power to regulate firearms, or just about anything else a state legislature wished to regulate within its boarders.The powers reserved to the several States will extend to all the objects which in the ordinary course of affairs, concern the lives and liberties, and properties of the people, and the internal order, improvement and prosperity of the State. -MadisonNow, fortunately for those states which have it, most state Constitutions specifically recognize the people's right to keep and bear arms. Those, however, which do not are subject to state regulations.

This is federalism. The idea was that since State governments were closer to the people they served, it was ok for them to have unlimited legislative powers regarding matters within their states, i.e., the people would be able to keep it in check through elections, and since one thing the U.S. Constitution does provide with regard to States is that State governments MUST be republican, this should work just fine. A republican form of government is one which is reflective of the will of the people.

Now, I agree with you that keeping and bearing arms is indeed a right, so my approach to this situation is to do my best to make my state legislature recognize this in my state's constitution, which it does, and in its laws. The Founders were not so worried about abuse of power at the state level. Their concern was the central government, which is why the U.S. Constitution creates a government of enumerated, specific and limited powers. They weren't concerned about the States, other than that self government of the States should be preserved, thus the limited form of Federal Government which they created.

They never intended the U.S. Bill of Rights to restrain any State government, as each State government had its own consitution, most with similar bills of rights.

[Michigander]

OK. I follow you there Hawkeye.

So what does Amendment XIV mean in regard to places in America where citizens rights are denied?

[El Tejon]

Real, contemporaries of the FF held that the Second Amendment applied to the states and to the federal government. As well antebellum state courts referenced the federal Second Amendment in state cases.

To suggest that states were separate units free to disregard the federal BoR is a post Civil War reconstructionalist notion that is incorrect, viewed pre or post 14th Amendment. As well, the Civil War is over, the 14 Amendment was passed, the Bill of Rights apply to the states (free at last, free at last!). :D

[The Real Hawkeye]

No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws. - Fourteenth AmendmentFirst let me say that it is more likely than not that this amendment was never ratified, and has no force in law. To start with, ten of the eleven former Confederate States refused to ratify it, and only after years of abusive martial law (Reconstruction) did enough Southern states ratify it, and even then there were extreme irregularities, such as state representatives being hauled in by soldiers to vote against their will. Additionally, two states which did ratify it, rescinded their ratification soon after, and before enough votes were in for final ratification. These rescissions were illegally disregarded by the Radical Republicans in Congress.

Ok, now let's assume that it was ratified for real. Does it actually say what the Supreme Court says it says? Where does it say that the U.S. Bill of Rights is now presumed adopted by each State as limits on each State's powers, enforceable by the Federal Government? It's not there. It's intention, at most, seems to be to guarantee that newly freed blacks be allowed to own property, vote and the like, i.e., just like white folks in those states are allowed to do. It says nothing about incorporation, selective or otherwise, of the U.S. Bill of Rights by the States. That, in fact, would make no sense at all, since the Bill of Rights was designed precisely to protect the States, and the citizens thereof, from being controlled by the Federal Government. In order for it to mean something which departs so radically from the system of government inherited from the Founders, I should think it would have to actually say as much.

Think about it this way: One of the privilages and immunities of United States citizens is to collectively control their communities and laws through their representative State legislatures, i.e,. without interference from the Federal Government. That is clear from a reading of the Tenth Amendment. That being the case, the incorporation doctrine is completely nullified by the Fourteenth Amendment's Privileges and Immunities clause. Therefore, incorporation doctrine becomes a logical impossibility. This probably explains why there was no mention of incorporation via the Fourteenth Amendment until after FDR filled the Supreme Court with radical socialists in the 1940s. Prior to this, the Fourteenth Amendment was interpreted to mean precisely what it says, i.e., that, of those privilages and immunities shared by all Americans, all citizens share them equally, and no State law may negate that. Furthermore, everyone has a right to due process of law and the equal protection of the law. Nowhere does it say that the Constitutional Amendments restraining the Federal Government now are presumed to restrain the state governments. That is entirely a fabrication of the FDR Supreme Court, designed to permit FDR's New Deal legislation to be deemed constitutional, which had been deemed unconstitutional prior to FDR appointing a number of radical leftists to the Supreme Court.

[Art Eatman]

The Bill of Rights is a package. There is a purpose. The purpose is spelled out in the Preamble. The Preamble sez the purpose is to prevent abuse of power by the State.

To me, an obvious question is how restrictions against the state can simultaneously be restrictions against individuals or "the people"?

Court cases involving the First Amendment are civil cases. If you lose in your suit against dot-gov, you're out money--which for a while cuts down on your gun-buying.

Court cases involving the Second Amendment are mostly criminal cases. If you lose in your defense against dot-gov, you go to jail and you're out of the shooting business. Few will commit a crime to test Second Amendment issues. (Non-criminal cases SFAIK are those against laws about to be passed or recently passed. The vast majority are criminal cases and generally involve laws of rather long standing...)

Art

[The Real Hawkeye]

The Preamble sez the purpose is to prevent abuse of power by the State.

To me, an obvious question is how restrictions against the state can simultaneously be restrictions against individuals or "the people"?I'm sure you already know this, but some might be confused by your use of the word "state" in this context. In the abstract, the word refers to the controlling, organizing and law making component of a nation. This is the sense that the Founders meant except where it is clear from the context that they are referring to one of the "several states." e.g., South Carolina, New York, Texas, etc.,.

Now for your question: The answer is that those two ideas are contradictory. The U.S. Bill of Rights is a restriction on the powers of the Federal Government, not a restriction on what people can do apart from government. We have other laws that govern that.

[Flyboy]

The Bill of Rights is a package. There is a purpose. The purpose is spelled out in the Preamble. The Preamble sez the purpose is to prevent abuse of power by the State.
Just an aside, but has anybody else noticed that the preamble to the Bill of Rights is conspicuously absent from the Government's pocket book of the Constitution, Bill of Rights, etc.?

[The Real Hawkeye]

Just an aside, but has anybody else noticed that the preamble to the Bill of Rights is conspicuously absent from the Government's pocket book of the Constitution, Bill of Rights, etc.?How about posting the preamble here? Ok, I will.Congress OF THE United States
begun and held at the City of New York, on Wednesday
the Fourth of March, one thousand seven hundred and eighty nine.

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 [i.e., those powers created by the Constitution], 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 institutionNotice that it says that the Bill of Rights is to prevent misconstruction or abuse of Constitutional powers (i.e., Federal Powers), not the States powers. Very significant!RESOLVED by the Senate and House of Representatives of the United States of America, in Congress assembled, two thirds of both Houses concurring, that the following Articles be proposed to the Legislatures of the several States, as Amendments to the Constitution of the United States, all or any of which Articles, when ratified by three fourths of the said Legislatures, to be valid to all intents and purposes, as part of the said Constitution; viz.:

ARTICLES in addition to, and Amendment of the Constitution of the United States of America, proposed by Congress, and ratified by the Legislatures of the several States, pursuant to the fifth Article of the original Constitution.

[RealGun]

I think you should guard against arguing that the meaning of the 14th amendment is very narrow and then come back and be very precise about the semantics of the BoR preamble. I would also point out here that there is an important word in "declaratory". The privileges and inmunities of US citizenship may not be abridged by the States, period. The amendments to the BoR were progressively incorporated, applied to the States, until it came time to balk at hearing cases on the Second Amendment.

[The Real Hawkeye]

I think you should guard against arguing that the meaning of the 14th amendment is very narrow...Narrow??!! So saying that it doesn't actually authorize turning the federal system established by the Founders upside-down is being NARROW in my interpretation?and then come back and be very precise about the semantics of the BoR preamble.While the preamble isn't law, per se, it gives us insight into what was intended by the law which follows it.I would also point out here that there is an important word in "declaratory". The privileges and inmunities of US citizenship may not be abridged by the States, period.Ok, but one of the privilages and immunities guaranteed to each citizen is the ability to have self government within their states with regard to every power not exclusively granted to the Federal Government, nor denied to the states. Read the Tenth Amendment. This being the case, the incorporation doctrine is internally contradictory and meaningless.The amendments to the BoR were progressively incorporated, applied to the States, until it came time to balk at hearing cases on the Second Amendment.There was no talk of incorporation until the 1940s. Prior to this, the Supreme Court correctly held that the Fourteenth Amendment did not cause incorporation.

[El Tejon]

Real, your views of history aside (we'll go over that somewhere else, quibbling really), I wanted to answer you questions:

1. Yes, the 14th Amendment says what the Supreme Court says it means. Bartkus v. Illinois, 359 U.S. 121 (1959) (provisions in the BoR that are guaranteed or consistent with state constitutions are held to be protected by 14th).

2. The first 21 words of the 14th Amendment bring the BoR to the states. The federal government may enforce this by § 5. See also Adamson v. California, 332 U.S. 46, 68 (1947); Akhil Reed Amar, The Bill of Rights and the Fourteenth Amendment, 101 YALE L.J. 1193 (1992).

3. The Congressional Record is crystal clear, the intent of the 14 Amendment was to bring the Bill of Rights to the states to stop the privation of Blacks by the Southern states. "I find in the Constitution an article which declared 'the right of the people to keep and bear arms shall not be infringed.' For myself, I shall insist that the reconstructed rebels of Mississippi respect the Constitution in their local laws." Rep. Clarke, Kansas, Cong. Globe, 39th Cong., 1st Sess. (1866). Michael Kent Curtis, No State Shall Abridge: The Fourteenth Amendment and the Bill of Rights 112 (1986) (myriad of references to total incorporation in Congressional Record).

4. The 14th Amendment's intent from structure and history is indeed for full incorporation, however the whole "scheme of ordered liberty" slowed things up just a tad (Palko was '37, not in the '40s). :D

[El Tejon]

Real, there was plenty of talk of incorporation prior to the 1940s. That talk was done by the Framers of the 14th Amendment. The Framers were all for incorporation since that's why they passed it--to allow Blacks to help themselves against the Southern states.

Prior to Palko, a Southern Supreme Court was having nothing to do with BoR going down to the states. That took a long, long time. :(

[RealGun]

In my earlier post in this thread I provided a link to Halbrook's article, which addresses this issue directly. The following is quoted from the Conclusion section in its entirety:

"Supreme Court jurisprudence coupled with the intent of the Framers makes clear that the Second Amendment guarantess the right of law-abiding individuals to keep and bear arms. The Fourteenth Amendment incorporates the Second Amendment so as to protect this right from state infringement. As Americans celebrate the Bicentennial of the Bill of Rights, it is evident (p.24) that the Second Amendment is not a relic to hide in the closet, but is as essential to human freedom as is any other fundamental right."

(p.24) - reference to bibliography

Given that, I gather that it gets in your way, when apparently having some bias to argue for State's rights instead.

[The Real Hawkeye]

3. The Congressional Record is crystal clear, the intent of the 14 Amendment was to bring the Bill of Rights to the states to stop the privation of Blacks by the Southern states. "I find in the Constitution an article which declared 'the right of the people to keep and bear arms shall not be infringed.' For myself, I shall insist that the reconstructed rebels of Mississippi respect the Constitution in their local laws." Rep. Clarke, Kansas, Cong. Globe, 39th Cong., 1st Sess. (1866). Michael Kent Curtis, No State Shall Abridge: The Fourteenth Amendment and the Bill of Rights 112 (1986) (myriad of references to total incorporation in Congressional Record).Firstly, let me say in response that I guess I should have been more precise in my wording. When I said there was no mention of incorporation prior to the FDR Supreme Court, I was referring to the court's interpretation of the actual Fourteenth Amendment in the form in which it was finally "ratified." Naturally, during the debates on the original wording the Radical Republicans in Congress were eager to nail the Southern States to the ground, placing in themselves total authority over the States, and turning our system of federalism on its head. This, however, was not the kind of Fourteenth Amendment they ended up getting. Fortunately, not only were Southern States against that kind of a Fourteenth Amendment, but neither were the Northern States in favor of it. This is why they had to water it down so that at least most Northern States would agree to ratify it, and they figured the Southern States would eventually knuckle under, with enough punitive martial law, sufficiently to ratify it too.

My point is that the Fourteenth Amendment that we got falls far short of the Fourteenth Amendment that the Radical Republicans wanted. Political expediency didn't ultimately allow them to achieve what they wanted, so they got the watered down version we have today, which version absolutely does not say that the restrictions on the Federal Government found in the US Bill of Rights are now presumed to be restrictions also on the states. Even as written, however, New Jersey (a Northern State) ultimately rescinded their ratification before final ratification, invalidating its ultimate ratification as an amendment to the US Constitution (It's claimed final ratification, by the way, was a fraud). New Jersey's concern was that even though the Radical Republicans didn't get the wording they wanted, some future Supreme Court might interpret it to mean much more than it says, and New Jersey, along with all the other States, they feared, would eventually become mere subdivisions of a super national government, ruled from Washington, DC.

Secondly, let us assume the incorporation doctrine is a correct interpretation of the Fourteenth Amendment. Please explain to me in detail how the Tenth Amendment can now be held to be a restriction on the States' powers. Please explain using the words of the Tenth Amendment, word by word, phrase by phrase, how this is possible. Remember, you said that the entire Bill of Rights are now also applied to the States.

Thirdly, If anyone would like to argue that the Second Amendment applies to and restricts the States also, you can do so perfectly well without any reference to incorporation via the Fourteenth Amendment. The argument would go thus: Since the Second Amendment clearly acknowledges the existence of a right to keep and bear arms belonging to the people, and since all states have sanctioned the Constitution's legitimacy as the founding document of the nation to which they are a part, those states have also legally bound themselves to acknowledging the right of the people to keep and bear arms, and are bound to reflect that acknowledgment in their laws. After all, as someone rightly pointed out earlier in this thread, the Second Amendment, unlike the First, makes no mention of Congress being restrained, but simply and flatly states that the right "shall not be infringed." That being the case, it shall not be infringed by Congress, the President, the Federal Judiciary or the States who signed onto said document. There is no need to use a Fourteenth Amendment Incorporation argument to support the notion that the Second Amendment restrains the states as well.