Constitutionality of State/Local Gun Laws.


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dk-corriveau
July 29, 2005, 11:37 AM
I am sure that this has probably been covered, but what types of challenges have there been against state/local gun laws at the Supreme Court level. I am sure that it is naive of me to think this way, but it seems like there really is a basis for a constitutional challenge.

To make the argument that states can determine what are or arenít appropriate arms, in my opinion, is tantamount to states deciding what is or isnít appropriate free speech. Arms is a pretty broad term, but so is Free Speech. Would a state be allowed to limit the free discussion of evolution vs. creation or abortion or any other hot button issue? I doubt it. Yet states can say 10 rounds are ok, but 15 rounds are not. Unreal.

Furthermore, cities or counties saying that its residents can not keep or bear arms is the most black and white violation of the constitution that I have ever heard of. It says right in the Constitution, the right of the people to keep and bear Arms, shall not be infringed. :banghead:

Anyway, I just needed to rant a bit. These issues get me really worked up, but I remain unsurprised at the sad state of things in this country. :cuss: To see the rights of law abiding citizens trampled on just drives me mad. Living in Virginia, I personally have more than enough access to guns to satisfy my needs/desires, if only my finances could keep up. But to listen to the challenges that so many of you go through is just unreal.

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The Real Hawkeye
July 29, 2005, 12:03 PM
It's a complicated question, because it is multi faceted. Firstly, there is the states rights position, which is based on the Tenth Amendment, under which, the state is at liberty to restrict just about anything, because it is presumed that states represent the will of the people, and the people are responsible for preserving their liberties via their state elections. Then there's the view that the Fourteenth Amendment causes all Constitutionally recognized rights, one of which is the right to keep and bear arms, to be forced on state governments.

Control Group
July 29, 2005, 12:21 PM
TRH summed up the principles well, but it's worth mentioning the current situation, too.

As he said, under the 10th Amendment, it's a states' rights issue, and states can legislate gun control as much as they want (depending on the state constitutions, of course). Under the 14th Amendment, however, states are required to abide by the limitations on government written into the Amendments.

In practical terms, what has actually happened is that the Supreme Court has applied individual amendments to the states on a one-by-one basis. The doctrine is "selective incorporation," and until the SCOTUS has ruled that an amendment is incorporated under the 14th, the states do not need to abide by that amendment. Obviously, the 2nd hasn't been incorporated under the 14th.

Equally obviously, this doctrine is, at very best, on shaky Constitutional ground (some of us would call it completely bogus, in fact). Either the 14th means what it says, or it doesn't. In the former case, no state has the legal right to pass gun control laws any more than it has the right to have an official state religion. In the latter case, the states can restrict guns all they want, and they can also make it legal to own slaves again.

So far, since Miller, the SCOTUS has been...ah, reluctant, let's say, to hear any cases which would force them to make a definitive ruling on the 2nd. One might conclude from this that they like gun control, but are very aware that there is no legitimate way to justify it within the bounds of the Constitution.

The dilemma for Constitution-minded gun owners is that under the intent of the framers, states absolutely have the authority to regulate guns. On the other hand, while the 14th is clearly in contravention to the original intent of the Constitution, incorporation of the 2nd under the 14th would be the single best thing to happen to gun rights in this country since the 2nd was written.

That being said, repeal of the 14th is less likely than the states calling a Constitutional Convention, so as a practical matter, the best we can really hope for is incorporation of the 2nd. I consider that a somewhat forlorn hope, but at least it's not beyond the realm of possibility.

Graystar
July 29, 2005, 12:30 PM
I am sure that this has probably been covered, but what types of challenges have there been against state/local gun laws at the Supreme Court level.None. They never get that far.

Bruce H
July 29, 2005, 12:56 PM
When a state is admitted to the union they agree to abide by the constitution and bill of rights, right. If this is true then all forms of state and federal gun control are unconstitutional. The 2nd says so. Is plain english so hard to understand?

Otherguy Overby
July 29, 2005, 01:00 PM
The dilemma for Constitution-minded gun owners is that under the intent of the framers, states absolutely have the authority to regulate guns. On the other hand, while the 14th is clearly in contravention to the original intent of the Constitution, incorporation of the 2nd under the 14th would be the single best thing to happen to gun rights in this country since the 2nd was written.


The right of the people...

It does NOT say: The right of the people, except those people residing in the several states...

IOW, what you are saying is: the only people the 2nd should apply to are in DC. Of course, we now know how that's worked.

Please also notice it says "people" not citizens, or voters, or non-felons either.

'Tiz all a legal construct to keep the rif-raf from weapons.

The Real Hawkeye
July 29, 2005, 01:06 PM
When a state is admitted to the union they agree to abide by the constitution and bill of rights, right. If this is true then all forms of state and federal gun control are unconstitutional. The 2nd says so. Is plain english so hard to understand?A State agreeing to abide by the US Constitution, by itself, doesn't transfer all restrictions placed constitutionally on the Federal Government to the State Governments. That would toss the whole concept of Federalism out the window. The point of the Constitution was to delegate certain limited powers to the new Federal Government, while retaining all non-delegated powers at the State level. Instead, allegiance to the Constitution by the States merely implies that States are bound to the Constitution only where the Constitution addresses State powers, and limits thereto.

Control Group
July 29, 2005, 01:16 PM
It does NOT say: The right of the people, except those people residing in the several states...
No, the 2nd itself does not, but the preamble to the BoR makes it quite clear that the BoR is a set of restrictions on the fed.gov:

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.

Moreover, if the states are required to abide by the amendments to the Constitution, then why was the 14th even written?

IOW, what you are saying is: the only people the 2nd should apply to are in DC. Of course, we now know how that's worked.
Oh, please. That's not even close to what I said, and you and I both know it. The 2nd Amendment, like every other Amendment in the BoR, applies to the federal government. The 2nd doesn't read "the people have the right to keep and bear arms," it reads "the right of the people to keep and bear arms shall not be infringed." See the difference? The former formulation applies to the citizens, the latter applies to the government.

The idea that it applies to every level of authority is patently ridiculous, even if you ignore the preamble. Taken the way you want to read it, it's not legal for you to tell your five year old son he can't buy a pistol! It only applies to the federal government because it's included in a document which only applies to the federal government.

If you still don't buy into the fact that the 2nd was intended to apply only to the fed.gov, then why do you suppose so many states explicitly stated it in their constitutions? If they didn't have the authority to pass laws in contravention in the first place, why bother specifying that they couldn't?

The Real Hawkeye
July 29, 2005, 01:16 PM
The right of the people...

It does NOT say: The right of the people, except those people residing in the several states...Yes, the Second Amendment certainly recognizes the preexistence of the right of every individual to keep and bear arms, but the Constitution does not delegate to the Federal Government the power to tell states what they can do internally with regard to this right. The Second Amendment restricts only what the Federal Government can do with regard to infringing on our right to keep and bear arms, i.e., it can do NOTHING. States, however, are free to limit this right, if this is what the majority of the people of that state wish, as much as I disagree with gun regulation by any level of government.IOW, what you are saying is: the only people the 2nd should apply to are in DC. Of course, we now know how that's worked.Actually, the Second Amendment does in fact apply exclusively to the Federal Government, and all agents thereof, even if it pertains to the people's right to keep and bear arms.Please also notice it says "people" not citizens, or voters, or non-felons either.Noted, but this is who it pertains to, not who it applies to.'Tiz all a legal construct to keep the rif-raf from weapons.

Control Group
July 29, 2005, 01:23 PM
When a state is admitted to the union they agree to abide by the constitution and bill of rights, right
No, not right. The Constitution is very clear about what parts apply to what bodies. Article I applies to the legislature, and defines what authority it has. Article II applies to the Presidency, Article III to the Judiciary, Article IV to the states, Article V to the amendment process, Article VI to the Constitution itself, and Article VII to the ratification thereof.

The Bill of Rights, as stated in the preamble, applies to the federal government. It does not apply to the states. Or, rather, it didn't, until the 14th was passed, the purpose of which was specifically to make the states subject to the restrictions specified by the amendments. This was necessary because it had not previously been the case. To date, the 14th has not been held to apply universally to all amendments.

Otherguy Overby
July 29, 2005, 02:02 PM
What you lot are telling me is that the 2nd ammendment should have said, though didn't, "the right of the people" really only means congress shall make no law(s).

So, the states can:

Restrict, regulate and prohibit free speach. Religion and assembly of citizens.

Restrict, regulate and prohibit arms.

Expediantly allow the quartering of troups (though possibly not federal troops) in one's residence.

Restrict, regulate and prohibit any right to security in one's papers, ownership of property....
(I must assume you reason Kelo is constitutional)

Restrict, regulate and/or prohibit the people's right to self incrimination and trial by jury.

This reasoning might also imply that "Miranda" is a violation of states rights...

Sorry, but Occam's razor is kinda sharp.

And here I'd been led to believe certain rights were inalienable...

Bruce H
July 29, 2005, 02:26 PM
What good is the bill of rights as in the ammendments if states don't have to abide by them? The ammemdments are designed to encompass all the states. This is one area where they all have to have the same rules. There was plenty left for the states to act on.

Control Group
July 29, 2005, 02:36 PM
Restrict, regulate and prohibit free speach. Religion and assembly of citizens.
Yep, sure can. In fact, I'm fairly sure several states specifically had state religions for a while after the ratification of the Constitution.

Restrict, regulate and prohibit arms.
Yep, sure can, except as prohibited by state constitutions. Mine says that they can't, of course, but I don't know if all states included that clause.

Expediantly allow the quartering of troups (though possibly not federal troops) in one's residence.
Yep, sure can.

Restrict, regulate and prohibit any right to security in one's papers, ownership of property....
Yep, sure can.

(I must assume you reason Kelo is constitutional)
You assume correctly. The federal government has no business telling a state what to do with its land. The people of the state, of course, have every reason to tell their government to get bent, and unelect the jackasses who would grant eminent domain powers to private industry.

Restrict, regulate and/or prohibit the people's right to self incrimination and trial by jury.
Yep, sure can.

This reasoning might also imply that "Miranda" is a violation of states rights...
It certainly is. Just like Wickard.

Sorry, but Occam's razor is kinda sharp.
Don't apologize for correctly reading the Constitution.

And here I'd been led to believe certain rights were inalienable...
If you can show me where in the Constitution any reference is made to inalienable rights, I'll be very, very impressed. The Declaration Of Independence is a moving and historically important document, but it isn't now and never has been legally binding.

Remember, the founders didn't intend this to be a "nation" in the modern sense, they intended it to be a collection of essentially sovereign states, which states empowered a central government to deal with certain things that needed to be dealt with at that level. If you doubt my interpretation of the Constitution, I refer you to the Federalist Papers, where all this is made perfectly clear in the words of the founders: what they intended for the Constitution to accomplish.

Now, the 14th was intended to change all that, and place upon the states the restrictions on the fed.gov enumerated in the Amendments to the Constitution. You can therefore make a solid case that, currently, the 2nd applies to all states through the 14th. The Supreme Court has, so far, not taken that step. The 14th itself, of course, is on Constitutionally shaky ground, but, as I said earlier, the chances of it being repealed are utterly nonexistent.

Control Group
July 29, 2005, 02:41 PM
What good is the bill of rights as in the ammendments if states don't have to abide by them? The ammemdments are designed to encompass all the states. This is one area where they all have to have the same rules. There was plenty left for the states to act on.
It prevents the federal government from abridging the enumerated rights. Read the preamble to the Bill Of Rights (I posted it above); it's very clear what the BoR is intended to do. It is up to you, as a citizen of a state, to make sure your state government doesn't trample on your rights.

You have to remember that the federal government was never supposed to be the governing authority over citizens. The states did that. The federal government was intended to have effectively zero impact on your life. Since the Civil War, the intended positions of authority between federal and state have reversed, and now the federal government is seen as the primary authority in the lives of citizens. This is not the way the system was designed. It is the way the Civil War and the 14th have made it.

tyme
July 29, 2005, 02:42 PM
Most states have their own RKBA guarantees. I think the founders didn't propose a 14th amendment because they expected the citizens of each state to protect, by way of a State BoR, any rights they cared about.

Of course, the population of the entire U.S. in 1790 was less than 4 million. The population of greater NYC is much larger than that, so maybe the NYC charter needs a bill of rights. Maybe ever city over some population limit (100k?) needs a bill of rights in its charter.

Smurfslayer
July 29, 2005, 02:47 PM
Some of them ARE unconstitutional, but acts of the General Assembly, Congress, etc. are given the presumption of constitutionality...

There are those of us who feel that some of the encroachments are too far...
This is of particular interest since you are showing a Virginia location.

http://www.virginia1774.org/Virginia1774ConstitutionalChallenge.html

On the 1774 main page, there are links to various state court decisions. Believe it or not, many states have ruled that their state constitutions DO protect a right to keep and bear arms.
http://www.virginia1774.org/Page7.html

Historical state case law...

The thing is that often times a "bear arms" defense comes up with an "unsympathetic" defendant, or quite frankly, " a loser case ". When a lawyer and defendant in a loser case falls to this defense, the courts are loathe to strike down a law, or erect a protection where there was none before.

richyoung
July 29, 2005, 02:53 PM
The 14th itself, of course, is on Constitutionally shaky ground


Nothing shaky about it - passed and ratified, it is PART of the Constitution, so by definition it CAN'T be unconstitutional - in fact, any conflict between it and previous language in the Constitution must be resolved in the 14ths favor - as an amendment certainly has the authority and power to modify the Constitution. What IS shaky is the "selective incorporation" doctrine, which I fear was nothing more than an attempt to do an end-run around the PURPOSE of the 14th...to prevent newly freed slaves from being armed!

tyme
July 29, 2005, 02:54 PM
richyoung, it's on shaky ground because the north forced the southern states to ratify it as a condition of re-joining the union, despite the fact that they didn't really have the option of not-rejoining the union.

Otherguy Overby
July 29, 2005, 02:55 PM
You have to remember that the federal government was never supposed to be the governing authority over citizens. The states did that. The federal government was intended to have effectively zero impact on your life. Since the Civil War, the intended positions of authority between federal and state have reversed, and now the federal government is seen as the primary authority in the lives of citizens. This is not the way the system was designed. It is the way the Civil War and the 14th have made it.

OIC, the Bill of Rights was never really intended to apply to the "people."

Control Group
July 29, 2005, 03:09 PM
OIC, the Bill of Rights was never really intended to apply to the "people."
We have a winner!

That's it exactly. The Bill of Rights is about the people, but it applies to the fed.gov, much like TRH said earlier.

Up until the 14th, anyway. And I'm still waiting for your opinion on why they bothered writing the 14th if the amendments already applied to the states.

I'm also still waiting on why many states bothered putting a protection of RKBA in their constitutions if they weren't able to pass laws in contravention anyway.

Control Group
July 29, 2005, 03:15 PM
Nothing shaky about it - passed and ratified, it is PART of the Constitution, so by definition it CAN'T be unconstitutional - in fact, any conflict between it and previous language in the Constitution must be resolved in the 14ths favor - as an amendment certainly has the authority and power to modify the Constitution. What IS shaky is the "selective incorporation" doctrine, which I fear was nothing more than an attempt to do an end-run around the PURPOSE of the 14th...to prevent newly freed slaves from being armed!
You are, in a sense, right. Tyme already explained what makes the 14th shaky, but, as it is now in the Constitution, I'll grant you that it is, by definition, Constitutional.

But one has to be careful with the line of thought that, if it exists, it's Constitutional. The SCOTUS worked in accordance with their delegated powers in Wickard; by the strictest definition, therefore, Wickard is Constitutional, but I still refer to it as not. Similarly, acts of Congress are presumed Constitutional until specifically struck down, so, in the strictest sense, the entire body of existing law is Constitutional, including every federal violation of the 2nd.

Nonetheless, I take your point.

And you are, of course, entirely right about selective incorporation. "Shaky" is the politest word I could come up with for it. Other words that leap to mind are "bunk," "crap," "idiotic," and a variety of other terms that would have me bent over Art's Grammaw's knee.

richyoung
July 29, 2005, 03:21 PM
richyoung, it's on shaky ground because the north forced the southern states to ratify it as a condition of re-joining the union, despite the fact that they didn't really have the option of not-rejoining the union.

Interesting - I thought the whole premise of the North was that the Southern states didn't have the right to leave the Union - if so, then they never really left, and there should have been no need to be "re-admitted"...of course, this isn't the ONLY non-sequiter involving the War of Northern Aggression....who would have authority at this late date to "de-certify" the 14th?

richyoung
July 29, 2005, 03:23 PM
...and can we get then to decerity the 16th? Please? :neener:

The Real Hawkeye
July 29, 2005, 03:32 PM
What you lot are telling me is that the 2nd ammendment should have said, though didn't, "the right of the people" really only means congress shall make no law(s).Not really. The significance of the Second Amendment is that the Federal Government, through it, acknowldedges that 1) everyone has an individual right to keep and bear arms, and that 2) it is legally bound not to infringe upon that right. It does more than restrain Congress, in this respect. It also acknowledge a right held by every American. But the acknowledgment of this right is not the same as an empowerment to control what states can do in this regard. At most, you could argue that states must also acknowledge this right, but that is not to say that states are also bound by the Federal Second Amendment not to infringe upon this right, as the Federal Government is, since the Bill of Right is only a legal restraint of the Federal Government.So, the states can:

Restrict, regulate and prohibit free speach. Religion and assembly of citizens.

Restrict, regulate and prohibit arms.

Expediantly allow the quartering of troups (though possibly not federal troops) in one's residence.

Restrict, regulate and prohibit any right to security in one's papers, ownership of property....
(I must assume you reason Kelo is constitutional)

Restrict, regulate and/or prohibit the people's right to self incrimination and trial by jury.

This reasoning might also imply that "Miranda" is a violation of states rights...

Sorry, but Occam's razor is kinda sharp.

And here I'd been led to believe certain rights were inalienable...Be careful not to confuse the inalienability of rights with the powers of government. Government is perfectly capable of violating your inalienable rights, and that doesn't make them any less inalienable. It is up to you to see to it that your State's government makes no law which violates your inalienable rights.

The Founders, for example, had the inalienable right to form a new government, even though the government which ruled them, that of England, did not recognize that fact. Inalienable rights are inalienable, not because governments cannot violate them, but because governments cannot take the rights away from you.

Refirignis
July 29, 2005, 03:46 PM
Nothing shaky about it - passed and ratified, it is PART of the Constitution, so by definition it CAN'T be unconstitutional
I beg to differ. The 14th Amendment is the most illegal amendment. It was ratified by military puppet legislatures that Congress replaced the South's actual legislatures with. That's just one of the many illegal parts about it. It's entirely invalid.

1833 - Supreme Court says the Bill of Rights is not binding on the States. (http://www.google.com/search?hl=en&q=1833+Barron+vs+Baltimore&btnG=Google+Search)
1868 - 14th Amendment "ratified" (not), States begin incorporating the Bill of Rights in whatever form they see fit in their State Constitution--or choose not to, in the case of many states, such as PRNJ. They can change our rights to whatever they want, or make them privileges, which is what they have done.

I already went over what the 14th Amendment actually did here (http://www.thehighroad.org/showpost.php?p=1763312&postcount=7) and here (http://www.thehighroad.org/showpost.php?p=1765681&postcount=11). :rolleyes:

Here's an additive I hadn't found last time (http://www.zianet.com/drbill/govnmt/urrights.txt).

The truth is that the Court is not binding the states by the Bill of Rights but is using the "selective" incorporation doctrine to give the people "rights" which are similar to but which do not mirror those of the Bill of Rights and only as extensive of "rights" as the Court deems fit. What this means is that although the people read the Bill of Rights and have their understanding from the Bill of Rights, the rights enumerated in the Bill of Rights ae binding ONLY on the federal government. Those rights "granted" in the Civil Rights Act of 1965 are not "rights" but are privileges granted by the government. These "privilege rights" are just as easily removed when the government deems it necessary.
:rolleyes:

Control Group
July 29, 2005, 03:50 PM
1833 - Supreme Court says the Bill of Rights is not binding on the States.
:what:

It did? What decision was that?

More importantly, how do I not already know about it?

Looks like I've got some reading to do.

Jadecristal
July 29, 2005, 03:53 PM
Article VI, Clause 2: This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.

Doesn't this pretty much say that the Constitution (The BoR contains amendments to the Constitution, and thus remain part of it, unless someone has something that shoots this down) is the supreme law, and judges have to follow it, and ignore any state laws that differ?

The Real Hawkeye
July 29, 2005, 03:54 PM
Control Group, Tyme and others, where were you guys a couple of weeks ago when I had to defend our system of government single-handedly against RealGun and Walt? So refreshing to see that I am not alone here.

Refirignis
July 29, 2005, 04:02 PM
It did? What decision was that?

More importantly, how do I not already know about it?
I turned what you quoted into a Google link. Just glance at the results page and you will see the words "not binding" "states", etc. I came across this decision after going back and doing more research on the 14th to destroy an extremely arrogant bastid at another forum.

Same way I didn't know about it. I didn't look enough. I've gotten most of my info on the 14th from a PDF by two people called "USA the Republic: The House That No One Lives In", and glancing around elsewhere, other info seems to generally match what it basically says.

The Real Hawkeye
July 29, 2005, 04:02 PM
Doesn't this pretty much say that the Constitution (The BoR contains amendments to the Constitution, and thus remain part of it, unless someone has something that shoots this down) is the supreme law, and judges have to follow it, and ignore any state laws that differ?No, this only applies to the Feds exercise of its Constitutional powers. With regard to powers not delegated to the Fed, the Tenth Amendment gives legal supremecy to the States, in cases where Federal and State laws conflict.

The Supremacy Clause would prevent the States from legislating in areas where both of the following factors are present, i.e., 1) The Constitution, by its language (no penumbras or emanations please), gives power to the Federal Government, and 2) Federal law contradicts state law. That's the only circumstance where the Supremecy Clause has any effect on state law. The Second Amendment gives no power to the Federal Government, therefore a State's regulation of guns is not in conflict, so the Supremacy Clause does not apply.

Control Group
July 29, 2005, 04:15 PM
TRH: sorry, I must have missed that thread. Either that, or I thought you had the situation well in hand. ;)

I do have to admit, though, that it wouldn't have been all that long ago that I would have disagreed with you on this (something like 6 months, and I wouldn't be surprised if you could dig up old posts of mine that contradict what I'm saying in this thread); reading around on THR, and reading various people's analysis of the Constitution has completely changed my point of view on it. Most likely, you're one of the people that contributed to that change, so I owe you some thanks, too. THR has really made me rethink everything I thought I knew about the Constitution and our government, which I took for granted because it was just "the way things are."

Skyalmian: Thanks for the link. Looks like I'll have to read Barron, and add it to my arsenal of arguments.

The Real Hawkeye
July 30, 2005, 10:38 AM
Perhaps the best answer to the question that started this thread, as well as questions that followed it, was provided over two hundred years ago by James Madison in his explanation of the then proposed U.S. Constitution, viz., 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; with which last the power of taxation will, for the most part, be connected. The powers reserved to the several States will extend to all the objects which, in the ordinary course of affairs, concern the lives, liberties, and properties of the people, and the internal order, improvement, and prosperity of the State. Federalist No. 45, James Madison

P.S. Notice also that the Framers of the Constitution envisioned that the vast majority of federal funding would come from taxation on "foreign commerce," i.e., tariffs. So long as the Federal Government remained bound by the chains established for it in the Constitution, it required very little funding to operate. Then came the Sixteenth Amendment in 1913, and there is no longer any stopping its growth in size, power and intrusiveness. The absence of a Sixteenth Amendment in the original Constitution was designed as an additional check on its potential growth into the behemoth we have today.

Another such check was Article I, Section 3 of the Constitution, which provided that US Senators would be chosen by State Legislatures, not directly by the citizens of each State. This gave States the ability to have their State interests represented in the Federal Government, which was a vital check on the growth of Federal power and intrusiveness with regard to the internal operation of each State. The individual citizens of each state, after all, already had representation at the Federal level via their elected Representatives in Congress. The Article I, Section 3 check on the Growth of Federal Power, visa vis State Power, was expunged by the Seventeenth Amendment. See a pattern beginning to develop?

javafiend
July 30, 2005, 12:49 PM
The quality of the conversation here at THR never ceases to amaze me. I always learn something when I come here. Hats off to the participants as well as the moderators.

beerslurpy
July 30, 2005, 12:56 PM
Any good decisions get overturned at the apellate level and the supreme court denies certiorari. Emerson was a perfect example of this BS-

Judge: "So youre saying that outside of government issued guns in the national guard, the 2nd amendment guarantees no right to own guns?"
US Attorney: "Yes."
Judge: "Ok, overturned." (the last bit is a summary of the legal sleight of hand)

The only way we will ever get anything out of the SCOTUS on guns is when the entire federal judciary is stacked with pro-gun judges who force the SCOTUS to either let pro-gun precedents stand or overturn it themselves, at which point we can proceed to revolt or be disarmed.

beerslurpy
July 30, 2005, 01:06 PM
The absence of a Sixteenth Amendment in the original Constitution was designed as an additional check on its potential growth into the behemoth we have today.

No, hawkeye, it isnt that simple. We had income taxes before then but they were usually short lived and small. The states were certainly free to pass income taxes and still would be. If you look at the supreme court cases around the time of the 16th amendment, it neither creates not modifies the existing power to tax that the government had.

The problem is really one of a fundamental shift of attitude towards the role of government in the early part of the 20th century in this country. Starting in the 1900s the populist/progressivist movements were basically pushing socialist style worker reforms. They had great success in the elected bodies, but their reforms were suppressed by the courts through the 1920s. This was the Lochner era. After the Lochner era ended in the 1920s, It took another 10 years of interference with the markets before the government managed to destroy the economy and clear the way for the 1937 attempt to stack the courts and force actual Socialism through as constitutionally valid law. We've been tumbling headlong into the abyss every since.

beerslurpy
July 30, 2005, 01:10 PM
And the 14th amendment does away with the States authority to infringe upon natural law or common law rights or those specifically enumerated in the bill of rights.

You wouldnt know this from reading the news though.

The Real Hawkeye
July 30, 2005, 01:22 PM
No, hawkeye, it isnt that simple. We had income taxes before then but they were usually short lived and small.Correct me if I'm wrong, but I believe that the Supreme Court, prior to the passage of the Sixteenth Amendment, struck down all direct federal taxes on personal income as unconstitutional.The states were certainly free to pass income taxes and still would be. If you look at the supreme court cases around the time of the 16th amendment, it neither creates not modifies the existing power to tax that the government had.It did create the power in the Federal Government to directly tax personal income. I believe you are mistaken if you are asserting something to the contrary.The problem is really one of a fundamental shift of attitude towards the role of government in the early part of the 20th century in this country. Starting in the 1900s the populist/progressivist movements were basically pushing socialist style worker reforms. They had great success in the elected bodies, but their reforms were suppressed by the courts through the 1920s. This was the Lochner era. After the Lochner era ended in the 1920s, It took another 10 years of interference with the markets before the government managed to destroy the economy and clear the way for the 1937 attempt to stack the courts and force actual Socialism through as constitutionally valid law. We've been tumbling headlong into the abyss every since.As to everything else that you've said in this post, we are on precisely the same page.

beerslurpy
July 30, 2005, 01:30 PM
My point was that they had to go through legal dances but they could still issue taxes. Direct taxation was held unconstitutional in 1895 in Pollock v Farmer's Loan and Trust.

But wait!

Between 1895 and 1913, the Supreme Court partially reversed itself, determining various facially direct taxes to be "excise taxes" (Nicol v. Ames, Knowlton v. Moore, and Patton v. Brady).

In Flint v. Stone Tracy Co. (1911) they found that a direct corporate income tax was actually "an excise tax based on the privelige of doing business in a corporate form." Note that the amendment hasnt happened yet.

And *drum roll* In Brushaber v. Union Pac. R.R. (1916) the same black-robed cowards said......

'[T]he Sixteenth Amendment conferred no new power of taxation but simply prohibited the previous complete and plenary power of income taxation possessed by Congress from the beginning from being taken out of the category of indirect taxation to which it inherently belonged.

So not only did congress always have the power to levy income taxes, but it has always been an indirect tax!

The Real Hawkeye
July 30, 2005, 01:35 PM
And the 14th amendment does away with the States authority to infringe upon natural law or common law rights or those specifically enumerated in the bill of rights.I beg to differ. The relevant part of the Fourteenth Amendment readsNo 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.Now, as to the rights of life, liberty and property, the Fourteenth Amendment clearly establishes the Federal enforceability of the right to due process of law at the state level (and that state laws must apply equally to everyone in that state), but as to the rest of what you've said, the Fourteenth Amendment is silent.

beerslurpy
July 30, 2005, 01:41 PM
Priveliges and Immunities: Bill of rights
Life liberty property: Natural law rights
Due process, equal protection: Common law rights

From whence do priveliges and immunities derive if not some legal document like the Bill of Rights?

The Real Hawkeye
July 30, 2005, 01:44 PM
BeerSlurpy, I like you, dude, but read clearly what I am saying: The Sixteenth Amendment is what first created the power in the Federal Government to direclty tax personal income. You have as yet provided no evidence, unless I'm badly mistaken, which contradicts this statement.

beerslurpy
July 30, 2005, 01:47 PM
Read Brushaber v. Union Pac. RR. It doesnt differentiate between corporate and personal income taxes. Indeed, corporations are a type of person. The supreme court was of the opinion that the 16th did not grant any new powers to congress. It already had the power to tax incomes.

Linky (http://caselaw.lp.findlaw.com/scripts/getcase.pl?navby=case&court=us&vol=240&invol=1)

We may personally disagree with this assessment, but the solution is not to repeal the 16th, no more than the solution to Wickard v Filburn is to restate the commerce clause. The SCOTUS can give the government the power to tax even if there is no basis for making such a determination.

And waht can we do about it? Since the moderators have already forbidden me from advocating the assassination of federal judges, I must remain silent.

The Real Hawkeye
July 30, 2005, 01:54 PM
Priveliges and Immunities: Bill of rights
Life liberty property: Natural law rights
Due process, equal protection: Common law rights

From whence do priveliges and immunities derive if not some legal document like the Bill of Rights?BeerSlurpy, do me a big favor and 1) name a right, other than to due process and equal protection in the context already mentioned, which the Fourteenth Amendment prevents the states from violating, and 2) please cite the U.S. Constitution word for word as the source of such protection. Don't just say, "Bill of Rights," and "Common law rights."

Walt Sherrill
July 30, 2005, 01:56 PM
The Real Hawkeye wrote:Control Group, Tyme and others, where were you guys a couple of weeks ago when I had to defend our system of government single-handedly against RealGun and Walt? So refreshing to see that I am not alone here.No. That wasn't it at all. You were'nt defending our form of government from RealGun and Walt, you were attempting to defend some pretty shaky assertions about RIGHTS, which you never really justified. That had NOTHING to do with the form of government.

You kept claiming you answered our questions, too, but all you ever did was restate definitions or assertions, and offerend nothing in the way of logical or legal proofs. You can also, here, claim victory, but it doesn't mean its anything more than a claim

Look back through the discussions. The topic was INALIENABLE RIGHTS -- which both of us claimed were ideas or goals (for want of better terms.) Both RealGun and I said that the only rights that matter are those which can be made real, through social enforcement. That enforcing power may be your family, your group, your neighbors, your community, or your government. But without the social force, rights are moot.

Natural Rights and Constitutional Rights aren't the same thing -- and its clear you confuse the two.

beerslurpy
July 30, 2005, 02:00 PM
I'm heading out, so I'll come back to this later, but what about the whole 1st amendment?

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.

The effect of this one is entirely felt at the state and local level because of the 14th amendment. Indeed, the "establishment of religion" has been deemed to apply to all exercise of religion by employees of any government be it state, local or federal.

If I misunderstood your question, please restate it for me and I'll answer it when I get back later tonight. I have to admit I dont get where you are going with this.

The Real Hawkeye
July 30, 2005, 02:08 PM
BeerSlurpy, I am rarely surprised by what can be found in Supreme Court decisions. I am speaking of the Constitution itself, not necessarily what any particular Supreme Court might have said it says.We may personally disagree with this assessment, but the solution is not to repeal the 16th, no more than the solution to Wickard v Filburn is to restate the commerce clause. The SCOTUS can give the government the power to tax even if there is no basis for making such a determination.Not really. Firstly, it can only pretend to give the Federal Government powers not granted in the actual Constitution. Then the Federal Government may act on that pretended granting of power, but in either case, it is not just power unless it is power actually granted according to the language of the Constitution.And what can we do about it? Since the moderators have already forbidden me from advocating the assassination of federal judges, I must remain silent.LMFAO!

The Real Hawkeye
July 30, 2005, 02:44 PM
I'm heading out, so I'll come back to this later, but what about the whole 1st amendment?

Quote:
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.There is no "privilege" mentioned here. There is, however, an "immunity," and that immunity is from intrusion by the Federal Government into various State affairs (See also the Tenth Amendment and Federalist No. 45 for its in-depth analysis). So I grant you that this immunity is enjoyed by each and every American citizen of every State, and that State governments may not now interfere with this immunity, but it was also an immunity enjoyed by each and every American citizen of every State prior to the Fourteenth Amendment, and I don't think State governments ever minded not interfering with it. In fact, I imagine they were quite pleased about it.

So, before the Fourteenth Amendment, each and every citizen of every State enjoyed immunity from Federal usurpations regarding these State concerns, and now, after the Fourteenth Amendment, each and every citizen of every State enjoys immunity from Federal usurpation regarding these State concerns. Nothing has changed regarding these immunities as a result of the Fourteenth Amendment according to any reasonable reading of it or of the First Amendment, or of a combination of the two.The effect of this one is entirely felt at the state and local level because of the 14th amendment. Indeed, the "establishment of religion" has been deemed to apply to all exercise of religion by employees of any government be it state, local or federal.Again, "has been deemed" is not relevant. It has also "been deemed" that if I make a machine gun on my own property, without ever intending to sell it in interstate commerce, the Federal Government can regulate this object (and my rights in relation to it) because that machine gun has the potential of one day being sold in interstate commerce. I don't any more trust the SCOTUS, a branch of the Federal Government, to tell me the Constitutional limits of Federal Power than I trust a weasel to tell me how many hens I actually had day before yesterday.If I misunderstood your question, please restate it for me and I'll answer it when I get back later tonight. I have to admit I dont get where you are going with this.Do you get it now?

The Real Hawkeye
July 30, 2005, 03:09 PM
Walt, with regard to your complaints about me, the record is available for anyone to judge on their own. I stand on that. Furthermore, unless I am mistaken, there were more than one threads on which you and I had exchanges recently, not just the "origin of rights" thread, which by the way is necessarily a discussion of our form of government, since you argued that, in essence, our government is the source of rights, since absent government's recognition of our rights, you assert that our rights do not exist.

Walt Sherrill
July 30, 2005, 03:45 PM
No, THR. Neither RealGun nor I claimed that government was the source of rights. You have a unique knack for misunderstanding or misrepresenting.

Both RealGun and I argued that social convention and social practices were the source of the kind of rights we'v been discussing -- as I stated in the paragraph to which you responded, above.

Rights, of the Constitutional nature , which are powers that can be enforced if ignored, are social conventions -- supported by social contract. Government can (but need not) be the source of those protected rights and their enforcement, but small groups of people, without forming governments, can recognize, protect, and enforce rights, too. As we both know, that doesn't mean that government WILL enforce them -- as 100+ years of slavery in the US showed.

As I said earlier, you continue to confuse the NATURAL RIGHTS of political philosphy, with the statutory/government-based rights of the U.S. Constitution.

Further, a discussion about the SOURCE of rights is not a discussion of the FORM of govenrment -- that seems to be another source of confusion for you, as well. You can arguably have the same rights in a constituitonal monarchy as you have in a constitutional republic. You could have them, with enlightened leadership, in any form of government. Unlikely, but possible. Rights and forms of government are independent issues.

Hawkmoon
July 30, 2005, 03:56 PM
Remember, the founders didn't intend this to be a "nation" in the modern sense, they intended it to be a collection of essentially sovereign states, which states empowered a central government to deal with certain things that needed to be dealt with at that level. If you doubt my interpretation of the Constitution, I refer you to the Federalist Papers, where all this is made perfectly clear in the words of the founders: what they intended for the Constitution to accomplish.
True

To put it simply, this is why they called it "The United States of America" rather than just "America."

The Real Hawkeye
July 30, 2005, 04:44 PM
No, TRH. Neither RealGun nor I claimed that government was the source of rights. You have a unique knack for misunderstanding or misrepresenting.I made it a point to put several very pointed questions to you in the other thread, and you responded in the negative when asked, for example, if the Jews of the Holocaust had a right to life. Your reason for saying no, as I recall, was that the German Government did not recognize that as their right. Case closed.Both RealGun and I argued that social convention and social practices were the source of the kind of rights we'v been discussing -- as I stated in the paragraph to which you responded, above.

Rights, of the Constitutional nature, which are powers that can be enforced if ignored, are social conventions -- supported by social contract.As I stated previously, you are using the word "right" here to refer to a government granted privilege. Governments cannot grant rights.Government can (but need not) be the source of those protected rights and their enforcement, but small groups of people, without forming governments, can recognize, protect, and enforce rights, too.See above. As we both know, that doesn't mean that government WILL enforce them -- as 100+ years of slavery in the US showed.

As I said earlier, you continue to confuse the NATURAL RIGHTS of political philosphy, with the statutory/government-based rights of the U.S. Constitution.See above.Further, a discussion about the SOURCE of rights is not a discussion of the FORM of government -- that seems to be another source of confusion for you, as well.I explained this relationship in the previous post. No need to restate it here.You can arguably have the same rights in a constituitonal monarchy as you have in a constitutional republic.Indeed, you necessarily have the same rights wherever you go in the world. You could have them, with enlightened leadership, in any form of government. Unlikely, but possible. Rights and forms of government are independent issues.Although it is true that "rights and forms of government are independent issues" (although this is an interesting new admission for you), the issue of the origin, i.e., the source of, rights and the topic of government are in fact very much interrelated, as demonstrated in my previous post.

P.S. I felt it necessary to respond in this thread to your characteristic mischaracterizations of my positions, but I suggest that, rather than hijack this thread (which is about a new topic), you resurrect the old thread which concerned the topic you seem intent on discussing here.

Walt Sherrill
July 30, 2005, 08:16 PM
THR Wrote: P.S. I felt it necessary to respond in this thread to your characteristic mischaracterizations of my positions, but I suggest that, rather than hijack this thread (which is about a new topic), you resurrect the old thread which concerned the topic you seem intent on discussing here.Funny thing: you always claim folks are mischaracterizing your positions, but you never give examples. (When I address your points, I give examples, and specific rebuttals. You just make claims.)

You mischaracterized my statement about the Rights of the Jews -- by showing only HALF of the statement, and omitting the part that said, in effect, "if they really had rights, they could not have been killed without punishment." They were, and their killers were punished only after they lost a war. Had they won that war...

I don't want to hijack the discussion. I simply disliked your claim that you were single-handedly fighting off RealGun and I in a debate over our form of government when the form of government wasn't the subject. All of our discussions have had to do with the nature of rights. Nothing else. You say I should resurrect the discussion, but out of the other side of your mouth you've told me, time and again, that you don't want to discuss it further.

The discussion here is something different: it IS about the form and function of government. Its not about rights. The discussion here has been whether the amended U.S. Constitution and subsequent federal statutory law should control the several states. That, as several have noted, is not a simple question with a simple answer. I'm not sure I have an answer.

But I'm increasingly sure that the powers of the various states are being diminished, while the power of the federal government is increasing -- if only because the states are so intent upon getting money from the federal government, and the federal government gives money ONLY with strings attached. Money seems to be the corrupting force. The only reason the federal government doesn't try to usurp more power, I fear, is because they don't want to have to worry about paying the associated bills.

While you and I disagree on the nature of Constitutional RIGHTS, I think we agree and fear the increasing power of the Supreme Court -- and, unhappily -- the increasing power of the Executive Branch. I suspect I was just as upset as you by the recent Kelo vs. New London decision, and I'm not too pleased by the Patriot Act -- and steps to continue it without modification. But rather than fussing about the Supremes and Excecutive branch, why isn't someone screaming at CONGRESS!!They've got us into this fine mess, too!!

I would argue, by the way, that some actions of the Supreme Court seen here as "corruption" are not necessarily as "UnConstitutional," as they seem; the Supreme Court's role is to administer the Law of the Land based on the the Constitution *AND* upon the practices of common law and equity. Says so in the Constitution: "Clause 1: The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States..."

The term "in Law and Equity" has special meaning to Constitutional Lawyers and scholars. As I understand it, it means the Supreme Court is expected to follow the practices of Common Law, which can include a healthy respect for precedent (which is critical to very nature of Common Law).

When precedent and the Constitution are at odds, it isn't slam dunk to say that a simple reading of the Constitution means "X" and that a simple reading trumps Common Law. Most of us here probably agree that it should, but many legal scholars may disagree.

That was certainly the case in Kelo decision: precedent overrode what most of us felt was a basic Constitutional Right. I don't agree with the SCOTUS decision, but understand how they came about it. They were using Common Law practices as their guide. (I'm not defending the decision; I don't like it either.)

The Equal Protection Clause of the XIV Amendment is probably the next battle ground -- and the next thing to be tested. If one state (like Conn.) can allow government seizure of property, are not those citizens (whose property was seized and sold) being denied rights available to others? [COLOR=Yellow] I'm waiting for THAT lawsuit. That may be where the next 2nd Amendment fight is undertaken.

The Real Hawkeye
July 30, 2005, 08:41 PM
Walt, although the Supreme Court's judicial power extends to all cases in law and equity, this does not mean that they are at liberty to disregard the law or the facts. Read further and you will see that the Supreme Court's appellate jurisdiction is over law and fact. Equity power means the power to make things right, but not apart from the law. Read the rest of the sentence that you started to quote, and you will see that.

The Real Hawkeye
July 30, 2005, 09:14 PM
Once again, I feel that, in fairness, I cannot let your false statements go unansweredFunny thing: you always claim folks are mischaracterizing your positions,Mischaracterizing your opponent's arguments is an all too common ploy amongst those who are on the wrong end of a good one. I believe in calling a spade a spade. Your strategy is also called "erecting a straw man." It's so common that it has a name, so don't be surprised that I've occasionally called others on it too.but you never give examples.They are so obvious that a child could see them, but just in case, I clearly identified what I was referring too each and every time, except perhaps near the end of our exchanges, when it became obvious that even you couldn't believe that you were fairly and accurately characterizing my positions.

RealGun
July 30, 2005, 10:22 PM
The 14th Amendment means what it says, unless you don't want it to. If the federal government can't infringe upon the RKBA (among the privileges and immunities of being a citizen of the US), States can't either. What's confusing is that the federal government does indeed infringe upon the RKBA, and the States apparently know quite well that the Supreme Court will not address the matter or claim jurisdiction.

The Real Hawkeye
July 30, 2005, 10:39 PM
Walt, did you forget about this recent thread http://www.thehighroad.org/showthread.php?t=147817&page=8&pp=25? In the last few pages of it, it seems to me that we (you, myself and Realgun) were having it out pretty good about aspects of our system of government. You said it never happened. Just thought I'd set the record straight.

Naturally, I was being hyperbolic when I said that I was "single handedly defending our system of government" from you two, but we are all adults here. A little hyperbole for fun is allowed from time to time. Adults can see it for what it is, and not take offense (maybe even have a little chuckle over it, as intended). One hopes so, anyway.

The Real Hawkeye
July 30, 2005, 10:50 PM
The 14th Amendment means what it says, unless you don't want it to. If the federal government can't infringe upon the RKBA (among the privileges and immunities of being a citizen of the US), States can't either. What's confusing is that the federal government does indeed infringe upon the RKBA, and the States apparently know quite well that the Supreme Court will not address the matter or claim jurisdiction.Realgun, if the Fourteenth Amendment is so clear to you, please break it down into its component parts and explain to us, in detail, what it so clearly means. Please use references to specific language in the Amendment and in the remainder of the Constitution, as necessary (the so-called "incorporated" portions). I am eager to see this.

Walt Sherrill
July 30, 2005, 10:50 PM
I read back through it, THR. It was about the nature of rights, not the FORM of government.

RealGun
July 31, 2005, 08:07 AM
Realgun, if the Fourteenth Amendment is so clear to you, please break it down into its component parts and explain to us, in detail, what it so clearly means.

It is not up to you to make rules of engagement, disallowing my comments unless they meet your conditions, since the discussion does not revolve around you. In this case, I would simply refer you to pro RKBA books and articles that address the 14th Amendment far better than I could second hand. One you might try is Dr. Halbrook's "The Right To Keep and Bear Arms under the Second and Fourteenth Amendments: The Framers' Intent and Supreme Court Jurisprudence".

See http://www.guncite.com/journals/gun_control_saf-hal.html

Dr. Cottrol also included it in his Gun Control and the Constitution.

RealGun
July 31, 2005, 08:19 AM
"single handedly defending our system of government" from you two - The Real Hawkeye

I am trying to decide whether to be offended. First of all. you don't define our system of government. You are to be commended for being studied on the subject, but I am not necessarily impressed with what you do with it.

I would draw a distinction between what our government should be and what it has become. I don't recall ever criticizing the underlying plan but am also not naive about the compromises that needed to be made to get the original States to agree on a Constitution.

I am extremely critical of the Courts and of legislatures, but only to the extent that they undermine the Framers' intent or abuse State powers.

Let's get this straight. You are not defending "our system of government" from RealGun. :(

I would also ask that Walt mention my name only in a specific reference to prior discussion. This is not Walt and RealGun versus The Real Hawkeye, although neither of us appear to appreciate puffery.

Walt Sherrill
July 31, 2005, 08:35 AM
I would also ask that Walt mention my name only in a specific reference to prior discussion. This is not Walt and RealGun versus The Real Hawkeye, although neither of us appear to appreciate puffery.Sorry. My apologies for appearing to conflate our positions; that really wasn't my intent. I'll take extra care in that regard, in the future -- if it comes up again.

I'm quite sensitive to the fact that you and I came into these discussion from different starting points and by different paths.

Our main point of agreement seems to be that we disagree with TRH on a couple of key issues (but not necessarily for the same reasons).

The Real Hawkeye
July 31, 2005, 09:37 AM
I read back through it, THR. It was about the nature of rights, not the FORM of government.Walt, I am happy to allow the record to speak for itself.

The Real Hawkeye
July 31, 2005, 09:44 AM
It is not up to you to make rules of engagement, disallowing my comments unless they meet your conditions.Realgun, I guess it's too much to ask that someone actually support their stated assertions with facts and logical arguments. That said, your response doesn't surprise me in the least, I'm sorry to say.

The Real Hawkeye
July 31, 2005, 10:01 AM
I would also ask that Walt mention my name only in a specific reference to prior discussion. This is not Walt and RealGun versus The Real Hawkeye, although neither of us appear to appreciate puffery.Firstly, I cannot blame you for not wanting to be tied in with Walt, LOL, although often the comparison is hard to avoid. Secondly, my "puffery," as you call it, was a thinly veiled attempt on my part to draw the two of you into the discussion, which I naturally suspected you were in the side lines of. I also thought it was obvious that it was intended to be lightheartedly humorous. Come on now, "single-handedly defending our system of government" against you two? That's clearly hyperbole. Loosen up.

Having said that, let's now put aside our differences and allow this thread, hopefully, to get back on its original track, as I think it was an important topic. Do you two have anything else to say on the topic at hand?

The Real Hawkeye
July 31, 2005, 10:43 AM
I would simply refer you to pro RTKABA books and articles that address the 14th Amendment far better than I could ...I sympathize with the motivations behind the RTKABA approach to supporting an expansive interpretation of the Fourteenth Amendment, because I like the immediate outcome that this seems to imply, i.e., that the Federal Government is thereby empowered to storm into Boston, Mass, New York City, New York, and LA, California, to force the legislatures of those cities and states to toss out every piece of gun control legislation they ever passed. I think, however, that this is a bit of a pipe dream on the part of said advocates of an expansive reading of said amendment. Furthermore, consolidation of political power in the central government, even when motivated by good causes like ours, has never historically led to increases in personal liberty. Rather, the exact opposite is the repeated lesson of history.

Additionally, I am philosophically opposed to expansive readings of the Constitution, because the more expansive the reading, the less we are governed by law and the more we are ruled by the personal policy preferences of men in positions of power. This is why I favor a strict constructionist approach to the Fourteenth Amendment, and all aspects of our Constitution and laws, even if in the short term, this seems to be a set back for the RTKABA. Judicial activism, even when you are pursuing, in the short term, good causes like ours, has the inevitable long term effect of transforming constitutional republics into despotic regimes where liberty is the first "luxury" sacrificed to expediency. We are seeing it now.

Art Eatman
July 31, 2005, 10:57 AM
Seems like there's a bit too much near-sarcasm and scorn in some of y'all's comments. It's not particularly personal attack, but it sure detracts from trying to follow the arguments and make sense of them. Too many emotionally-laden words.

Art

The Real Hawkeye
July 31, 2005, 11:16 AM
Art, I suppose I might be guilty on that point, though sometimes it seems almost unavoidable. I propose, however, that we all three make a concerted effort to bury the hatchet and allow this thread, which I think is a good one otherwise, to proceed without further petty bickering. I, for one, am on board with that.

Bruce H
July 31, 2005, 12:44 PM
I'm not the sharpest knife in the drawer so bear with me. Aren't the ammendments binding to all states? How can one state decide what an ammendment means to it when it is the direct opposite of another state? There has to be a common rules binding to all states on certain things or there is is no nation.

The Real Hawkeye
July 31, 2005, 01:03 PM
I'm not the sharpest knife in the drawer so bear with me. Aren't the amendments binding to all states? How can one state decide what an amendment means to it when it is the direct opposite of another state? There has to be a common rules binding to all states on certain things or there is no nation.It's not a question of how sharp you are. You can be another Albert Einstein and if you, for whatever reason, don't really understand how our system of government works, it doesn't make you a dummy.

That said, the Amendments to the US Constitution were designed to be restrictions on what the Federal Government can do, not on what the States can do. Each State had its own Constitution, placing limits on their own State governments which were thought most prudent by the citizens of each State. You see, the big concern at the time the Constitution was written was that the new Federal Government that was being proposed was going to consolidate all political power within itself, thereby taking power away from the States that rightfully belong there. People were afraid of large and powerful central governments because history had demonstrated that this always resulted in tyranny. They felt that political power, except for such matters as foreign relations, war and the like, should remain in the hands of the States, i.e., closer to the people, and more responsive, therefore, to their will. The system they instituted to achieve this end is called Federalism. Please read the quotation I provided above written by James Madison. This will clarify a lot of this for you.

antarti
July 31, 2005, 01:31 PM
Forgive my being a legal/constitutional luddite... my degree is in Early American Lit (that period begins with Indian writings, and ends with the constitutional convention).

Where do I go wrong in the following (admittedly left-field, hackneyed) interpretation?

A well regulated militia, being necessary to the security of a free State, <--- A preamble or explanation of rationale for what follows. However, it explains that "a free State" is to be defended (and it is necessary and proper to do so with "Arms", mentioned later).

the right of the people to keep and bear Arms, <-- Recognizes there is a "right of the people" (not just citizens of any state or region, voters, men, property holders, Federal agents, or anything else)

shall not be infringed. <-- Shall not be impeded in any way, shape, or form.

Now I've heard that the "shall not be infringed" refers only to the Fed.gov, only to the states, yada, yada. I'm arguing that's completely irrelevant as to "who does the infringing". It's the "right of the people" part I'm interested in.

The 14th also contains "All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States;"

Since everybody is a dual citizen (try fighting the IRS and SS admin on that one) by modern interpretation and myriad sign-off sheets (not just those born in DC and guam or PR), any state and federal laws could/would apply to those citizens. I don't care how you order it, or how you interpret it. I'm also arguing that's irreleant and moot...

because as "people" we have the 2A regardless of what else we are.

Can't you excercise your 2A right (and later go to court as) a "person" and not a citizen of anything? I mean a dual citizen is already 2 things, whats the stretch to say you are also a "person", thus that part of you is entitled and not restrained by your citizenship? Which is the most inseparable and primary (takes precedence)? Citizenship can be renounced, State of residence/citizenship can be changed, but can you ever cease being a "person", and thus lose what's recognized under the 2A?

Sorry for quoting so much stuff I feel should be ignored, but I'm trying to make a very simple case and get some feedback.

And please, no jokes about the "Peoples Court".

Couldn't you also posit:

1) "Damn right I'm a US Citizen, I'll subpoena the IRS and SS admin to prove that to you. The 2nd Amendment comes after the "Interstate commerce clause" and amends it. I am covered lastly by the 2A, and thus am covered for that Tommy I restored at home and drove over state lines with."

2) "Damn right I'm a Floridian, I'll subpoena the State to prove that to you. The 2nd Amendment governs US Citizens, then the 14th confers that on me directly. I am covered only by the 2nd, not all those unconstitutional and pesky state laws, so I was right to restore those Grease Guns in my garage."

3) "Damn right I'm a Floridian, I'll subpoena the State to prove that to you. The 2nd Amendment has nothing to do with Florida. I am covered only by the Florida constitution, not all those unconstitutional state laws. The constitution just says I have to wait 3 days IF I purchase a firearm, not that I couldn't restore those BARs in my garage. The rest is agin the Fla constitution and needs overturning."

Thoughts...

The Real Hawkeye
July 31, 2005, 01:54 PM
Antarti, I think we agree basically on what the Second Amendment accomplishes. Firstly it states that the Federal Government understands that the people possess a right to keep and bear arms and, secondly, it assures us that it will not infringe on that right, effectively removing from itself the power to make laws restricting our liberty to keep and bear arms.

The function of the US Constitution is to first create and then to grant specific powers to the Federal Government, apart from which document it would possess absolutely no just powers whatsoever. The Bill of Rights was incorporated into the Constitution to clearly state which powers the Federal Government did not possess, in case that was not made sufficiently clear to some in the language of the main body. The Bill of Rights was not therefore a restriction on the States, because it was a series of amendments to the US Constitution, not to the Constitution of Main, or New Hampshire, or Virginia. Each of those states had their own Constitutions.

beerslurpy
July 31, 2005, 02:03 PM
The 14th amendment was specifically crafted because southern states were denying 1st and 2nd amendment rights to freed slaves. It is an intentional infringement upon the authority of the states. Call that tyrannical, but that is the meaning of the 14th. The intent, the wording, the history behind it.

Now, it is reasonable to argue that the BOR just plain doesnt apply regardless of what the 14th says, which is what the Supreme Court did up till the early 1900s for reasons of its own. However, I feel this more a factor of the SCOTUS deciding it would ignore something it didnt like rather than an honest intepretation of the law. The real problem is that the 14th and the 10th amendments have wording that conflicts and some are inclined to give the BOR amendments precedence over all others (they cannot be modified or abolished) so the "balancing act" can be very contentious.

At the very least, the 2nd amendment forbids all current federal gun control legislation. If the individual states want such laws, they can pass them themselves. If the 14th amendment is binding upon the states, then nearly all gun control legislation nationwisde except maybe violent felon prohibitions are completely unconstitutional.

beerslurpy
July 31, 2005, 02:13 PM
Such is the character of the privileges and immunities spoken of in the second section of the fourth article of the Constitution. To these privileges and immunities, whatever they may be-for they are not and cannot be fully defined in their entire extent and precise nature-to these should be added the personal rights guarantied and secured by the first eight amendments of the Constitution; such as the freedom of speech and of the press; the right of the people peaceably to assemble and petition the Government for a redress of grievances, a right appertaining to each and all the people; the right to keep and to bear arms; the right to be exempted from the quartering of soldiers in a house without the consent of the owner.....

From the debates of the 14th amendment ratification. First 8 amendments all included, SCOTUS trickery notwithstanding.

The Real Hawkeye
July 31, 2005, 02:18 PM
Now, it is reasonable to argue that the BOR just plain doesnt apply regardless of what the 14th says, which is what the Supreme Court did up till the early 1900s for reasons of its own. However, I feel this more a factor of the SCOTUS deciding it would ignore something it didnt like rather than an honest intepretation of the law.For reasons already stated by me, I could not be in more disagreement with you on this point. I am still waiting for a break down of the language of the Fourteenth Amendment, side by side with the Constitutional language, having to do with the "incorporated" rights, demonstrating your point to be true. Appeals to authority have their place, but they only go so far in an argument like this one. At some point you have to get down to the brass tacks if you want your argument taken seriously.

beerslurpy
July 31, 2005, 02:22 PM
If you cant understand english then I dont see what more I can do for you. Read the debates at the time of the 14ths ratification (post right above yours). Read that wonderful 2nd amendment treatise the OLC released last year (available online after 5 seconds of searching- just search the document for 14th amendment).

All available sources point to it being commonly accepted (at the time it was ratified) that the 14th amendment made the bill of rights binding upon the states. The states could no longer choose to protect or ignore the rights of their citizens as enumerated under the federal constitution.

The Real Hawkeye
July 31, 2005, 02:29 PM
From the debates of the 14th amendment ratification. First 8 amendments all included, SCOTUS trickery notwithstanding.There were a few versions of the Fourteenth Amendments being proposed at the time. Had the "Radical Republicans" had their way, they would have in fact given us a Fourteenth Amendment that did precisely what you say ours does. Fortunately, however, cooler heads prevailed, and a significantly toned down version was eventually ratified. The quote you provide, therefore, is not at all surprising, though it does not accurately characterize the Fourteenth Amendment as finally ratified (if ratified it ever was, which is questionable).

El Tejon
July 31, 2005, 02:46 PM
dk, no challenges have reached the Supreme Court. The Fresno Rifle and Pistol Club came close but no cigar.

While prior to the 14th Amendment, much of the BoR was said to apply only to the federal government, many commentators held that it did apply to the states. As well, many state courts acted as if the Second Amendment DID apply to the states, Nunn (one of my favorite antebellum RKBA cases) being the most famous.

After the Civil War and the obvious ineffectiveness of the Civil Rights Act of 1866, Congress sought to ensure that the BoR would be applied to the freedmen being terrorized in the South by thugs and nightriders. It is obvious from the original intent of the Framers of the 14th that the RKBA was meant to apply. The purpose of the federal government is to ensure that the states have a republican form of government; republican government is impossible without the rights of citizens being protected.

However, the Supreme Court did not want to help Blacks and adopted a doctrine of "selective incorporation" on a case by case basis. Today the RKBA and right to grand juries remain undecided.

The Real Hawkeye
July 31, 2005, 03:14 PM
Beerslurpy said:If you can't understand English then I don't see what more I can do for you.Now, is that kind of talk really warranted? Shame on you, sir. Shame!

All I have ever asked for is a breakdown of the language demonstrating your point. For example, if the First Amendment is in fact to be interpreted to protect a privilege and/or an immunity, it is a privilege and/or an immunity from Federal interference with regard to the issues of religion and speech (You cannot possibly disagree with this, can you?). That is to say, we have the privilege of not having the Federal Government interfere in these matters, and the immunity from same. Now, along comes the Fourteenth Amendment, which forces this self-same privilege and/or immunity on the States, i.e., that from Federal interference. Am I wrong in my reading of the English language, sir, in concluding that this merely prevents the States from interfering with said privilege and/or immunity, i.e., that from Federal interference?

beerslurpy
July 31, 2005, 03:24 PM
My opinion is that the first amendment expresses a right of individuals assemble, worship, speak and print freely etc. That right hollowed out an area into which the federal government could not intrude. The 14th amendment merely takes this sphere of protection of individuals and applies it to all governments of which US citizens are a part.

You seem to be claiming that since the Bill of Rights is only worded as a restriction upon congress, that there are no underlying rights which it protects against all interference, whether by congress or not. You seem to be claiming that a restriction cannot be construed as evidence of an underlying right and thus not protected as the 14th amendment does.

If this is so, you are engaging in sophistry, and you should know better.

El Tejon
July 31, 2005, 03:26 PM
TRH, well, that depends. :D

Some antebellum courts agreed with your view, some did not. However, I believe the historical evidence is that some of the Framers, including the hotheaded anti-Federalists, believed that the BoR was universal and applied to both the federal government and the states, while some did not. Sort of like THR--lol.

However, dk's concern was current history. :) dk's answer is that the Supremes have been ducking the Second for a looong time. They know the horrific consequences to government if they are forced to rule on it.

beerslurpy
July 31, 2005, 03:31 PM
My opinion is that the bill of rights recognizes the natural law rights of all individuals to be secure in exercise of liberty and freedom from the harassment and thievery of others.

And contrary to the Cruikshank decision, I beleive that the Bill of Rights is binding upon everyone and everything within the united states. It is immaterial if my right to free speech is infringed upon by my neighbor, the local city council or the secretary of defense- all infringements are forbidden.

The Real Hawkeye
July 31, 2005, 03:32 PM
Beerslerpy said: If this is so, you are engaging in sophistry.Have we now stooped to name calling? Nice way to dismiss my argument without actually addressing it.

The Real Hawkeye
July 31, 2005, 03:52 PM
Some antebellum courts agreed with your view, some did not. However, I believe the historical evidence is that some of the Framers, including the hotheaded anti-Federalists, believed that the BoR was universal and applied to both the federal government and the states, while some did not.ET, the Founders were brilliant men. I think they were able to comprehend the meaning of the words, "Congress shall make no law ..." Sorry, that dog won't hunt.

Yes, the Bill of Rights had our rights in mind, but the way those rights were protected was to prevent the Federal Government from interfering with the states, and the people, in regard to those rights. Your interpretation requires a turning of the Constitution itself on its head. This was, one assumes, not the intent of the framers of the Fourteenth Amendment. To presume otherwise presumes also that the Fourteenth Amendment constituted nothing less than a coup detat, essentially overthrowing Federalism in the United States. The words of the Amendment do not , however, require that interpretation, and the US Supreme Court, following the ratification of the Fourteenth Amendment, agreed with me. Only as the make-up of the Supreme Court became steadily less strict constructionist and more judicial activist, did we start to see your interpretation (which is today's "orthodoxy") of the Fourteenth Amendment prevail in the SCOTUS.

El Tejon
July 31, 2005, 04:18 PM
TRH, ummm, as I said, some agreed with you, some did not. As I mentioned earlier, some believed the Second Amendment was to be applied to the federal and state governments, some did not. Some state courts held that the Second Amendment applied to the states, some state courts held that the BoR only applied to the federal government.

The intent of the Framers of the 14th is very clear--protect the freedmen by assuring that the BoR applies to the Southern States. This is no sort of coup but Congress acting in its Constitutional duty to ensure a republican form of government in the several states.

Now, if only Congress would do the same for our friends in California, New Jersey, inter alia. :)

The Real Hawkeye
July 31, 2005, 04:20 PM
And contrary to the Cruikshank decision, I beleive that the Bill of Rights is binding upon everyone and everything within the united states. It is immaterial if my right to free speech is infringed upon by my neighbor, the local city council or the secretary of defense- all infringements are forbidden.So, any infringement, according to you, no matter by whom, gives you a case in a federal court, huh? Wow, that's a lot of power in the hands of the Federal Government over our individual lives. I don't think I want to live in your America.

El Tejon
July 31, 2005, 04:29 PM
TRH, yes, both civil (Bivens suits) and criminal (civil rights violations) charges can be employed within certain limitations (e.g. state action).

The Real Hawkeye
July 31, 2005, 04:40 PM
TRH, ummm, as I said, some agreed with you, some did not. As I mentioned earlier, some believed the Second Amendment was to be applied to the federal and state governmentsI would be happy to entertain any evidence you have in support of this assertion, some did not. Some state courts held that the Second Amendment applied to the states, some state courts held that the BoR only applied to the federal government.Some state courts held all sorts of things. Relevance?The intent of the Framers of the 14th is very clear--protect the freedmen by assuring that the BoR applies to the Southern States.You have yet to prove this. It is easy to prove that the desire of the Radical Republicans was to do this, but this is not the same as proving that the intent of the Framers of the Fourteenth Amendment was to do this. The best way to judge the framers' intent is the language used. Best to stick with that.This is no sort of coup but Congress acting in its Constitutional duty to ensure a republican form of government in the several states.This may come as a shock to you, but not all "republican forms of government" need be uniform with all other said forms. The only thing required is a representative assembly of some kind, and a written Constitution establishing rules for said assembly.

The Real Hawkeye
July 31, 2005, 04:45 PM
TRH, yes, both civil (Bivens suits) and criminal (civil rights violations) charges can be employed within certain limitations (e.g. state action).ET, thanks, but I am already aware that the de facto status of Federal Law is inconsistant with my views on legitimate government, said views being based on the those of the Founders.

Bruce H
July 31, 2005, 05:49 PM
The Real Hawkeye, I do not accept your difinition at all. What you are saying is the federal government cannot do certain things and the states can do whatever they want. How can we have fifty little feifdoms with individual constitutions saying they can do what ever they want? This reasoning would be the basis of a pure cluster**** for a style of government. There has to be a basis for the beginning of government. The constitution and the ammendments, agreed to by the states is it. There is know way government will work without this premice. There is error by the supreme court and states at this present day.

The Real Hawkeye
July 31, 2005, 06:45 PM
The Real Hawkeye, I do not accept your definition at all. What you are saying is the federal government cannot do certain things and the states can do whatever they want. How can we have fifty little fiefdoms with individual constitutions saying they can do what ever they want? This reasoning would be the basis of a pure cluster**** for a style of government. There has to be a basis for the beginning of government. The constitution and the amendments, agreed to by the states is it. There is know way government will work without this premise. There is error by the supreme court and states at this present day.Your disagreement is not with me, but with the Founding Fathers. James Madison qualifies as one of those. I will let you have it out with himThe 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; with which last the power of taxation will, for the most part, be connected. The powers reserved to the several States will extend to all the objects which, in the ordinary course of affairs, concern the lives, liberties, and properties of the people, and the internal order, improvement, and prosperity of the State. -James Madison Federalist No. 45

Have at it, Bruce.

Bruce H
July 31, 2005, 07:01 PM
Madison was wrong also. The federalist papers aren't the constitution or the ammendments. They are the ramblings of those who didn't get it right the first time.

The Real Hawkeye
July 31, 2005, 07:10 PM
Madison was wrong also. The federalist papers aren't the constitution or the ammendments. They are the ramblings of those who didn't get it right the first time.Bruce, you have no idea how your admission is music to my ears (so to speak). I shall take sides with Mr. Madison over you, sir.

I only wish others on this thread shared your boldness. That would make my task all the easier.

beerslurpy
July 31, 2005, 07:33 PM
I agree that the 14th amendment contradicts with the wishes of the founders, which is probably why it was passed under duress during one of the most chaotic periods in our history.

Are you proposing that we overturn it or merely ignore it?

I propose following the letter and the intent of the 14th amendment until its evils/goods are fully realized and states begin to forcefully object to federal interference.

Have you noticed that when 3/4s of the states get pissed off over any one thing they tend to get their way in elections anyway, so the 14th becomes a moot point? The trick will be to get them all pissed off over separate issues and to make the least painful way out the repeal of the 14th. Quite a juggling act, if it is even possible.

The alternative is to selectively ignore the 14th when it could cause real resistance but bring it back for less objectionable kinds of tyranny. It will always be hanging there like the sword of damocles threatening the authority of the states. This is the approach you seem to be advocating. Am I wrong?

The Real Hawkeye
July 31, 2005, 08:23 PM
I agree that the 14th amendment contradicts with the wishes of the founders, which is probably why it was passed under duress during one of the most chaotic periods in our history.Bruce went further. He contended that the opinions of the Founders regarding what the Constitution of 1789 means were wrong, LOL. That's a pretty big meatball. As for your assertion, I think you are correct to a point. The Fourteenth Amendment, as it was ultimately ratified, only somewhat contradicts the vision of the Founders (even if its modern interpretation turns the Constitution on its ear). Remember, the Radical Republicans wanted a Fourteenth Amendment that would place the same restrictions on the States that the Founders placed on the Federal Government visa vis the States, essentially putting the Federal Government in charge of the states. What they got was significantly less than that. The first sentence simply made all former slaves citizens, reversing Dred Scott. The remainder of section 1 provided simply that every citizen was now to be accorded due process rights equal to every other citizen, and that all other state laws must be applied equally. The privileges and immunities clause actually says nothing new at all, as I've explained. It was a meaningless bone tossed to the Radical Republicans to get them to sign onto the modified version of the amendment.Are you proposing that we overturn it or merely ignore it? If you propose that we overturn it, how do you propose accomplishing this?Interpreted according to its strict construction (as the SCOTUS at first did), it does very little if any damage to Federalism, and needs not be repealed. It is only the expansivist interpretation that causes problems with the concept of Federalism. That is not to say we wouldn't have been much better off without it in the first place.I propose following the letter and the intent of the 14th amendment until its evils/goods are fully realized and states begin to forcefully object to federal interference.So noted.Have you noticed that when 3/4s of the states get pissed off over anything they tend to get their way in elections anyway, so the 14th becomes a moot point? The trick will be to get them all pissed off over separate issues and to make the least painful way out the repeal of the 14th. Quite a juggling act, if it is even possible.Interesting observation.

Bruce H
July 31, 2005, 09:40 PM
What I'm saying is that this very day we have supposedly statesmen who after a law is passed claim that it doesn't mean what they thought. Why should the seventeen hundreds be any different? It is damn hard to get everything right the first time when people are in a hurry to get on the table. That it wasn't fixed two hundred years ago is beyond me.

The Real Hawkeye
July 31, 2005, 09:56 PM
Bruce, you came right out and said, bottom line, exactly what you meant to say, without any guile whatsoever, and I admire that. It cuts right through all the BS. Instead of wasting a lot of words back and forth, all I had to say to you in the end was that I understand where you stand, and I fundamentally disagree with you. No arguments necessary.

What was it you said? The Federalist Papers are no more than the "ramblings of those who didn't get it right the first time." Beautiful! Rare when you can get such a straightforward answer from anyone in one of these debates. I love it. Don't ever change.

iiibdsiil
July 31, 2005, 10:39 PM
Aight, so I didn't read all of this. Funny thing is I was just thinking about posting the very same question as the original poster.

Since the 2nd says "shall not be infringed" which from what I gathered it based solely on fed.gov and not the state, then when you apply for a class III firearm, you have to have a chief of police or whatever sign off on it. Thus, it isn't fed.gov restricting you, it is the state. Is that correct? Basically, a class III firearm is open to all (21+) according to fed.gov but the state (chief of police or whatever) can deny that right.

I'm also trying to figure something out. If a judge rules one way on something, then we call that case law, and that can be used in your defense. But, the problem is with us or our 2nd amendment right is that we can't get the SCOTUS to hear anything or make any decision. *** is that. Then, when we finally do, you know they are going to say something we don't want to hear, which we are going to feel is unconstitutional, but now is constitutional until another judge over throws that decision?

Oh, and let me get this one straight too. We elect these "officials" to make our decisions for us. What happens is they get their own agenda, and don't really give a damn what we want. What are we going to do about it? Most of the time nothing. So, they pass all these BS laws and what not, most of which the majority of people don't even know about until it is too late. And then we are told "well, that's the elected official, and he represents what the people want."

And I getting this straight? I don't understand how fed.gov works very well, so I might be mistaken here. What I would like to see is every quarter or half a year, we have a vote. Like elections, except we vote for the law. What happens is basically there is a website/sheet of paper/whatever that tells you what each law says and does. None of this passing the one law tucked in with another crap. Let the people decide. They can have it discussed on TV, with your favorite liberal or conservative or whoever telling you why you should/shouldn't support it, and that's it. With technology the way it is today, there is no reason why this isn't feasible. We could do it from the comfort of our own home even.

That seems like it would be a great way to hear what the people REALLY have to say, and what they want.

The Real Hawkeye
July 31, 2005, 10:50 PM
iib, I find that I cannot disagree with much, if anything, of what you have said there. I even share your bafflements.

iiibdsiil
July 31, 2005, 11:03 PM
How does that conversation go?

Joe: Bob, did you hear about that new supreme court ruling?
Bob: Ya, good thing is doesn't affect me.
Joe: So what happens when it does?
Bob: I'll take it to the supreme court
Joe: :banghead:

publius
August 1, 2005, 06:50 PM
What I would like to see is every quarter or half a year, we have a vote. Like elections, except we vote for the law. What happens is basically there is a website/sheet of paper/whatever that tells you what each law says and does. None of this passing the one law tucked in with another crap. Let the people decide.
Someone has to write the laws before we can vote on them. Who is going to do that? Care for any limitations on the kinds of laws which can be written?

I don't have time for this today. I suggest reading the Federalist Papers (http://thomas.loc.gov/home/histdox/fedpapers.html).

The Real Hawkeye
August 2, 2005, 04:55 PM
I suggest reading the Federalist Papers.The Federalist Papers refer to the Constitution of 1789. What we have today is almost the exact reverse of the system established by the 1789 Constitution, so referring someone to the Federalist Papers as an explanation for why the status quo is good will not do. If anything, the Federalist Papers should convince us that the status quo is very bad indeed. That being the case, a Federal system of referendum is not a bad idea at all. It beats the current system by a long shot. Its limits can be the same as the limits we have today.

Referendum, by the way, only means that before a bill becomes law, the people must vote in its favor by a simple majority. Just one more step after the president signs it. It would be a much needed check on an out of control Federal Government, which makes very good sense when you consider that many of the checks that the Founders placed on it have been removed by amendment. We would, of course, need an amendment to accomplish this new check on Federal Power.

El Tejon
August 2, 2005, 05:03 PM
What if a majority votes to deny certain members of a society constitutional rights? Democracy is something the Founders feared very much. It is no panacea, a check maybe, but not the solution.

TRH, if we are suggesting changes, then I propose adding to Congress Robert Heinlien's "House of Repeal" in "The Moon is a Harsh Mistress." :D A three chamber house! Just let them try to get anything done! :cool:

The Real Hawkeye
August 2, 2005, 05:23 PM
What if a majority votes to deny certain members of a society constitutional rights? Democracy is something the Founders feared very much. It is no panacea, a check maybe, but not the solution.Well, ET, that can happen today too. It would be handled in exactly the same way. It's Constitutionality could be challenged in court, and it could also go up to the Supreme Court, which may or may not grant cert. What's the problem that you are anticipating? The House still proposes. The Senate would then vote on it. The President would then sign it, or veto it. If vetoed, the two Houses of Congress could then override it. If signed, or the veto is overridden, then it goes to popular referendum for final passage. We could have referendum votes twice a year, and every registered voter who is interested in participating could show up to their voting place and vote for it or against it. If more than 50% vote for it, it becomes the law of the land, subject to Constitutional challenge like any other law.

publius
August 2, 2005, 06:54 PM
I was suggesting the Federalist Papers as a reference on why a democracy is a bad idea, as well as on the structure of our government (or at least the intended structure).

A referendum tacked onto the existing system at the end is not what I understood to be the suggestion. I still don't care much for the idea. Congress passes few laws that I like, and almost all of those are laws with zero "Joe Sixpack Appeal" factor.

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