Constitutional/Heller Question

ConstitutionCowboy

November 21, 2007, 09:40 PM

In Cruikshank the SCOTUS said, "The Second Amendment declares that it shall not be infringed; but this, as has been seen, means no more than that it shall not be infringed by Congress.(and does not bind the states)" SCOTUS has gotten this wrong. Nowhere in the Second Amendment does it say that the said Second Amendment applies to the federal government alone. The statement I placed in bold refers to previous decisions and the SCOTUS in this instance accepted that statement carte blanc. It didn't come to that "conclusion" in Cruikshank, the Court dug into its bag of precedence for it.

The logic is simple here. How can anyone say that the only source of tyranny would come on the federal level? It is patently and provably FALSE! The tyranny the slaves lived under...Pardon me...Existed under was at the STATE level! In my opinion, the Cruikshank decision purposely avoided the application of the Second Amendment to the states because, in 1875, the SCOTUS didn't have the guts to force the states to adhere to the Constitution.

The SCOTUS contradicted itself in Cruikshank in that it stated that the rights enumerated in the Constitution are preexisting to the Constitution but ignored the fact that those same rights are preexisting to the states as well! The illogic of this boggles my mind. How could the founding fathers have recognized the Right to Keep and Bear Arms, placed protection of it in the Constitution, and done so only as an academic exercise? Every citizen of this country is a citizen of a state. It is pure fallacy to claim a preexisting right, protected by the Constitution for the security of the people, cannot be protected from infringement by the states by that same Constitution that all states agreed to adhere to!

Truth is, SCOTUS does not have the guts to force the states to adhere to the constitutional protections of our rights. Is it fear of We the People? Maybe. If fear is the player here, all in government who have and would do more to stifle our rights are to blame. The more they stifle, the louder the rhetoric from us becomes. I, for one, don't want that rhetoric to develop into anything more serious than a rush to the ballot box, and it may disappoint them if they loose there, but there is much more to fear at the cartridge box. All it would take is for them to recognize, unfetter, and hold sacred our rights and there would be NOTHING to fear from We the People.

My wish for myself, family, and all my fellow citizens (We the People) is to have the peace, freedom, and security only our unfettered rights can guarantee. The most pertinent ones are enumerated in the Constitution. Those not enumerated are protected by the Constitution as well. Know this:...The most restricted government on this Earth is the most powerful, the wealthiest, healthiest, most free, and is host of the most sought-after and envied place to live. Do you want to keep this land? Then you must campaign for, vote for, fight for, preserve, teach the importance of, and cherish those rights.

Know what would make me happy? To be alive on the day the Congress and the Court decide to abide the Constitution and not all their agenda driven drivel.

Woody

"I pledge allegiance to the rights that made and keep me free. I will preserve and defend those rights for all who live in this Union, founded on the belief and principles that those rights are inalienable and essential to the pursuit and preservation of life, liberty, and happiness." B.E.Wood

another okie

November 21, 2007, 11:22 PM

The men who wrote our Constitution were not concerned that their rights would be infringed by the states in which they lived. They were all big men in their home states, and the states themselves had constitutions to restrain those governments. They were concerned that a large central government would begin to infringe on their rights, and that's why the Bill of Rights exists.

Now on their face some of the rights seem to apply only to Congress, and others are more general, but there is no doubt the signers thought they just applied to the central (or as it was referred to then, the General) government.

It's my understanding that one reason why Heller was brought is that because D.C. is not a state you don't have to ask the Supreme Court to overturn Presser v. Illinois, which holds that the second amendment does not apply to the states.

It is best in Constitutional cases not to ask the court to do too much at once. The NAACP did this by bringing incremental cases to overturn segregation. Note that Brown v. Board of Education was in 1954, but segregation in higher education was not fully struck down until well into the 1960s.

gc70

November 22, 2007, 12:16 AM

ConstitutionCowboy

SCOTUS has gotten this wrong.

You are entitled to your opinions, but the Supreme Court's opinions are enforced as the law of the land. :)

ilbob

November 22, 2007, 11:10 AM

Amendment 14 - Citizenship Rights.

1. 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; 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.
...

5. The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.

One would think that the fairly clear wording of the 14th amendment would mean that no state can deny any US citizen any of his rights. However, paragraph 5 may well mean congress might have to deal with the problem.

There is another slippery slope that the courts got themselves into here. By selectively incorporating some rights and not others, they may have essentially gutted paragraph 5.

You would think that if any right is incorporated by court action, as opposed to congressional action, that all of them would have to be incorporated.

personally, I think the fact that the 14th gave the power to congress to determine just how to deal with infringement of rights by the states, might well have meant that the courts had no power to do so in the first place, beyond whatever power was given to the courts by congress to deal with this specific issue.

just an evil thought that does not apply in this case since DC is not a state.

OTOH, I cannot imagine any liberal arguing that the courts have no jurisdiction to deal with state infringement of the rights of citizens beyond what is granted by congress.

ConstitutionCowboy

November 22, 2007, 11:43 AM

One would think that the fairly clear wording of the 14th amendment would mean that no state can deny any US citizen any of his rights. However, paragraph 5 may well mean congress might have to deal with the problem.

There is another slippery slope that the courts got themselves into here. By selectively incorporating some rights and not others, they may have essentially gutted paragraph 5.

You would think that if any right is incorporated by court action, as opposed to congressional action, that all of them would have to be incorporated.

personally, I think the fact that the 14th gave the power to congress to determine just how to deal with infringement of rights by the states, might well have meant that the courts had no power to do so in the first place, beyond whatever power was given to the courts by congress to deal with this specific issue.

Woody smacks his forehead and says, "WOW! I could'a had a V-8!"

Excellent , Ilbob. Excellent.

I don't think the Court gutted Paragraph 5, though. Usurped(partially) maybe, but not gutted. Congress still has that power. All Congress needs to do is act with it. That would be another avenue for us to better secure our RKBA - to get in the face of those in Congress and say, "HEY! Do something for the people for once in your term. YOU have the power. YOU tell the states to bugger off!"

I'd really like that.

Woody

Thomas Jefferson worried that the Courts would overstep their authority and instead of interpreting the law would begin making law....an oligarchy...the rule of few over many.

I think the Court has already done that - all too often, too, especially when once is more than is allowed...

Matt King

November 22, 2007, 02:36 PM

Nowhere in the Second Amendment does it say that the said Second Amendment applies to the federal government alone.

But that was the founders intent.

Remember: Congress shall make no laws. . .

hvengel

November 22, 2007, 09:29 PM

But that was the founders intent.

Remember: Congress shall make no laws. . .

No that was the 1st not the 2nd. The 2nd says "..shall not be infringed..." which is clearly much broader in scope. In addition, it is clear the the courts have incorporated the 1st even though it's language is clearly designed as a limitation on the power of congress to enact certain laws.

ConstitutionCowboy

November 22, 2007, 09:30 PM

Remember: Congress shall make no laws. . .

That is only in the First Amendment. The Second Amendment - and any of the other eight in the Bill of Rights - have no such caveat, and each one of these stands alone.

Woody

Matt King

November 23, 2007, 12:56 PM

I take that to carry on to the rest of the BOR.

Megistopoda

November 23, 2007, 01:47 PM

Looking through this thread has me thinking that a few here don't understand the current law of the land (whether you like it or not, the current law stands, but is of course subject to change in the future). To clarify, I make the following statements.

1. The second amendment has not been incorporated via the 14th. Thus, states have the authority to regulate (and prohibit) firearms as they please and as depends on their constitutions. Some states further allow home rule powers to local governments, who may enact their own prohibitions (such as Chicago).

2. The DC v. Heller case is almost certain not to bring incorporation of the 2A to the table. Thus, incorporation will likely be brought up in a future case challenging some state or city gun ban. Likely that will be Chicago as Chicago's ban (handguns) is the second-most strict to DCs. The Illinois Supreme Court held that Morton Grove's ban is consitutional (under IL consitution) and Presser (1886) held that the 2A is a limitation only on the power of Congress and the national government, and not of the States. Thus, until the 2A is specifically incorporated, state and city bans shall legally stand.

3. As an aside, an individual rights ruling in Heller is NOT going to eliminate all federal firearms laws in one fell swoop. The NFA, GCA, and FOPA (Hughes Amend.), etc. are not just going to suddenly disappear. Until those laws are challenged and over-ruled, they will stand as law. One might argue that the zeal to enforce them would be lessened. Even in a strong individual rights ruling, current federal firearms laws will be slow to fall, if they ever fall.

ConstitutionCowboy

November 23, 2007, 02:37 PM

As for "incorporation", when was Article III of the Constitution incorporated? When was the Eleventh Amendment incorporated? How about the Thirteenth Amendment, or the First Article of the Constitution? I'm truly curious, because it seems we've been living under these amendments and articles for quite some time but I have found nothing from the Supreme Court or Congress "incorporating" these articles and amendments.

Woody

another okie

November 23, 2007, 06:43 PM

If you read the 13th amendment you will see that it applies to all the territory "within the United States", so no incorporation is necessary.

ConstitutionCowboy

November 23, 2007, 08:01 PM

If you read the 13th amendment you will see that it applies to all the territory "within the United States", so no incorporation is necessary.

Yeah, I know. I was being facetious - or trying to appear facetious. Article III pretty much "incorporates" itself, as does the Eleventh Amendment and Article I. Truly, the only amendment of the first ten needing "incorporation" is the First Amendment since it originally only applied to Congress. The Third Amendment technically can't apply to the states unless Congress authorizes the states to keep troops in time of peace or the states engage in war 'cause the feds can't get there in time.

The Fifth Amendment would apply to the states because in its text it excepts the militia same as the land and naval forces of the Union when in actual service or time of danger, meaning the militia - those not in the land or naval forces of the union and certain public officials - would be otherwise protected. The militia, being comprised of citizens in the several states, would otherwise not need excepting during service in time of danger if it didn't apply to the states in the first place. The time in service during time of public danger would not necessarily be a matter of war, but can be like in a flood, or hurricane, or earthquake, or to round up a band of criminals. Because of that, and the entitlement of all citizens to all privileges and immunities in the several states would encompass all citizens and not just those of the militia. Ergo, the Fifth Amendment must apply to the states or else it has a quandary.

Amendments IV, V(again), VI, VII, and VIII must also apply to the several states; linked inextricably by the fact that there is only one court system in this country, all courts being inferior and answerable to the one Supreme Court, and the Constitution being the supreme law of the land, etc.

The IX Amendment mentions the rights retained by the people. Retained by the people means out of the purview of the state or Union. Sorry, but those rights cannot be denied or disparaged.

The X Amendment spells out that there are powers not delegated to the Union, and some prohibited to the states, that belong to the people. Y'can't deny the applicability of the Tenth Amendment to the states!

The Fourteenth Amendment incorporates the First Amendment to the states and only puts the gild on the lily to the others(among the other stuff the amendment does).

Woody

You all need to remember where the real middle is. It is the Constitution. The Constitution is the biggest compromise - the best compromise - ever written. It is where distribution of power and security of the common good meets with the protection of rights, freedom, and personal sovereignty. B.E.Wood

Cosmoline

November 23, 2007, 08:20 PM

Disingenuous legal doctrine aside, the Bill of Rights has always applied to the states.

Not really, no. That's why the text of the First, for example, is directed at CONGRESS, and says bupkus about state legislatures. It wasn't until the 14th that the BOR was applied to limit the power of the several states as well as the federal government. Another Okie is right on the money. At the time of the founding the states were not seen as the source of danger. The founders were concerned that a central government would grow large and if left unchecked would quickly become a new form of tyranny.

linked inextricably by the fact that there is only one court system in this country, all courts being inferior and answerable to the one Supreme Court,

Where did you get that idea? There has never been a single court system in the country. There is a federal court system under Art. III and an array of court systems in the states. Each state has its own court system and its own Supreme Court. The state supreme courts are only "inferior" to the SCOTUS on certain federal issues. For example, the only way the US Supreme Court could overule the Alaska Supreme Court is on some aspect of federal law, including those portions of the BOR applied to the states. The US Supreme Court would never be able to tell our supreme court, for example, whether or not it could recognize the tort of Negligent Infliction of Emotional Distress. Though it could overrule the court on a question of whether a particular punitive damages judgment was so great as to violate the norms of due process guaranteed by the 14th. The lesser federal courts are merely sibling courts to the states, and will defer to the states on issues of state law just as the state courts defer to them on questions of federal law. You can't appeal from an Alaskan superior court jury verdict to the 9th Circuit ;-)

Ed Ames

November 23, 2007, 08:35 PM

It's not so much that the states weren't seen as a source of danger but the states were the ones ratifying the constitution. No state wanted to give up too much autonomy. Nor did they want to homogenate by adopting a single constitution for all of the member states.

ConstitutionCowboy

November 23, 2007, 09:38 PM

Nice try, Cos.

Article III, Section 1. "The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish...."

"Ordain" -

To Appoint; to decree. - that says "Such-and-Such Court" is found to be worthy and is accepted into the system. That's how the several states get their courts into the system. Congress sets the standards, the states meet the standards, and viola! The state's courts become part of the system. -

"Establish" -

5. [i]To form or model

6. to found; to build firmly; to fix immoveably.

That would be the inferior tribunals Congress would create as authorized by Article I, Section 8, Clause 9.

It's a good system. State matters are routinely brought before the Supreme Court. Just about every person about to be executed for a murder appeals to the Supreme Court. The Supreme Court will actually hear some of them. Not all murders are covered under United States law.

Woody

PS: The definitions are from Johnson's Dictionary, 1755.

gc70

November 23, 2007, 11:11 PM

"Jurisdiction" must be missing from Johnson's Dictionary, 1755.

ConstitutionCowboy

November 23, 2007, 11:58 PM

gc70

November 24, 2007, 12:26 AM

That's how the several states get their courts into the system. Congress sets the standards, the states meet the standards, and viola! The state's courts become part of the system.

Point out WHERE Congress has "ordained" or "established" the state court systems.

Be specific - cite a law passed by Congress that "sets the standards" for the state courts to meet to "become part of the system."

gc70

November 24, 2007, 12:39 AM

Not all murders are covered under United States law.

Most murders are under the jurisdiction of state courts. The vast majority of murder trials never involve circumstances that would allow any federal jurisdiction.

When a state murder trial results in a death sentence, the murderer can try to claim protection under the "cruel and unusual punishment" provisions of the 8th Amendment (as incorporated by the 14th). It is the 8A claim that gives federal jurisdiction, and then only with respect to the nature of the punishment.

ilbob

November 24, 2007, 11:25 AM

It's a good system. State matters are routinely brought before the Supreme Court. Just about every person about to be executed for a murder appeals to the Supreme Court. The Supreme Court will actually hear some of them. Not all murders are covered under United States law.

The federal courts do not decide matters of state law. They only decide matters of federal law.

What happens with these kind of cases is that the defendant alleges a violation of federal law or some violation of a federal constitutional provision, and the federal court rules on that. Not on the matter of state law. It is possible a federal court might decide a state law is invalid due to some federal law, but that is not the same thing as the federal court ruling on a state law issue.

hugh damright

November 24, 2007, 11:40 AM

It's not so much that the states weren't seen as a source of danger but the states were the ones ratifying the constitution.
I think it was a matter of constitutionalism and federalism. A constitution frames a government and a BOR limits that government. If the State governments were framed by the US Constitution, then I think the USBOR would naturally bind the States. I see a desire to have the USBOR limit the States as a desire to trample constitutionalism and/or federalism.

HonorsDaddy

November 24, 2007, 05:31 PM

ConstitutionCowboy

November 24, 2007, 07:58 PM

To gc70 and ilbob, since you two have decided to jump in for Double Naught Spy, how about answering my questions, with your explications attached, before I post my response to your query, gc70. Here are my questions reposted so you won't have to scroll to find them.

Are you saying I can bring a lawsuit against a state in another state so long as I don't bring that lawsuit up in the Supreme Court? Meaning I, living in Oklahoma, could bring a suit against Texas in a New Mexico court? In all cases in which a state is a party, the Supreme Court has original jurisdiction, but the Eleventh Amendment prohibits me as a citizen of one state to bringing that suit against another state in the United States Supreme Court because the judicial power of the United States does not extend to such a case.

Those are separate systems according to you, so I should be free to do that, right? Or, does the first sentence in Article III, Section 1, actually mean what it says?

Woody

hugh damright

November 24, 2007, 08:39 PM

you said that you take the 'congress shall make no law...' portion of the 1st amendment to apply to the rest of the BOR as well. Would you please explain what legal language or even English grammar would lead you to that conclusion?

That was without a doubt one of the most bizarre comments I have ever heard regarding the BOR.
There is nothing bizarre about it, and that is the proper reading. The intent was to limit the US, they didn't have to say so with every sentence. The Virginia BOR doesn't say in every article that the intent is to limit Virginia, but it is understood. The USBOR has a preamble which explains that the intent was to limit the powers created by the US constitution. And it is a fact under constitutional law that the USBOR was not intended to limit the States.

Further, if the USBOR limits the States, then it empowers the US to limit the States, and we don't just assume that the US has powers unless the Constitution says otherwise ... the Second Amendment would have to say something like "No State shall infringe on the RKBA; Congress shall have power to enforce this provision by legislation". Since it says no such thing, the term "shall not be infringed" means "by Congress".

Why in the world would someone assume that the bor of one government must limit other governments unless it specifies otherwise? In Baron v Baltimore, the SCOTUS said:

"the limitations on power, if expressed in general terms, are naturally, and we think necessarily, applicable to the government created by the instrument. They are limitations of power granted in the instrument itself, not of distinct governments framed by different persons and for different purposes."

It's not a question of rules of grammar, its a question of rules of constitutionalism.

gc70

November 24, 2007, 09:41 PM

To gc70 and ilbob, since you two have decided to jump in for Double Naught Spy

:eek: Double Naught Spy has not posted in this thread.

another okie

November 24, 2007, 10:09 PM

hughdamright: What we call the first amendment was not originally the first, but the third, so to argue that the "Congress" language of the first modifies all of the first eight is straining a little.

While that is a poor argument, it is true that the founders intended these as restrictions on the power of the General Government.

The founders found it so obvious that these amendments only applied to the General Government that they did not see the need to spell it out.

In this case a little history goes a long way:

For example, Madison actually made a motion in Congress that the amendments bind the states as well, but it was defeated.

According to Page Smith, the motion was defeated because Congress feared such a provision would give too much power to the federal government. Mr. Smith does not expand on this, but he means that such a provision would have given the federal government the power to interefere in state government matters. Page Smith, "The Constitution: A documentary and narrative history," page 290.

hugh damright

November 24, 2007, 10:28 PM

What we call the first amendment was not originally the first, but the third, so to argue that the "Congress" language of the first modifies all of the first eight is straining a little.
I don't think anyone is saying that because the First Amendment comes first, and it says that Congress shall not infringe, then that means that it applies to all the amendments. The "Congress" language doesn't modify the other amendments, it just sheds some light on them. What seems an incredible strain is the assertion that since the First Amendment says "Congress shall pass no law", it means that any amendment without that language limits the States.

ConstitutionCowboy

November 24, 2007, 10:38 PM

Double Naught Spy has not posted in this thread.

Oops! My bad. I was thinking of another thread and another question. It is Cosmoline you and ilbob have tag-teamed.

I'll repeat my questions for your convenience:

Are you saying I can bring a lawsuit against a state in another state so long as I don't bring that lawsuit up in the Supreme Court? Meaning I, living in Oklahoma, could bring a suit against Texas in a New Mexico court? In all cases in which a state is a party, the Supreme Court has original jurisdiction, but the Eleventh Amendment prohibits me as a citizen of one state to bringing that suit against another state in the United States Supreme Court because the judicial power of the United States does not extend to such a case.

Those are separate systems according to you, so I should be free to do that, right? Or, does the first sentence in Article III, Section 1, actually mean what it says?

Woody

hugh damright

November 24, 2007, 10:57 PM

Are you saying I can bring a lawsuit against a state in another state so long as I don't bring that lawsuit up in the Supreme Court? Meaning I, living in Oklahoma, could bring a suit against Texas in a New Mexico court? In all cases in which a state is a party, the Supreme Court has original jurisdiction, but the Eleventh Amendment prohibits me as a citizen of one state to bringing that suit against another state in the United States Supreme Court because the judicial power of the United States does not extend to such a case.

Those are separate systems according to you, so I should be free to do that, right? Or, does the first sentence in Article III, Section 1, actually mean what it says?
I don't know how you come up with the idea of sitting in one State and suing another State in a third State's judicial system.

If a Citizen of Oklahoma visits Texas, and has some conflict there, he is able to use the Texas judicial system to fight it out in the courts. But he doesn't have any right to fight it out in the federal courts, unless there is a federal issue.

gc70

November 24, 2007, 11:33 PM

The question in #30 is a diversion and unrelated to the unsupported claims made in #28. Nevertheless...

11A recognizes the sovereign immunity of states. As a general proposition, you can not sue a state unless the state gives permission for you to do so. If the state grants permission, Article III jurisdiction applies. Here is more information about Article III (http://www.gpoaccess.gov/constitution/pdf2002/013.pdf) and the 11th Amendment (http://www.gpoaccess.gov/constitution/pdf2002/029.pdf).

Okay, Woody - now it is your turn to answer the question in #31:

Point out WHERE Congress has "ordained" or "established" the state court systems.

Be specific - cite a law passed by Congress that "sets the standards" for the state courts to meet to "become part of the system."

shield20

November 24, 2007, 11:55 PM

Okie,

Do you have more specifics on Madison's proposal you mention? I read in the debates where he had wanted a separate "No state shall..." amendment somewhat similiar to the what became the 1st, but it was rejected. I have not seen so explicit a demand for other amendments to bind the States.

shield20

November 25, 2007, 12:43 AM

Oh and gc, (you'll like this!:)) on this same subject is some of the strongest language I have come across about the intent of the scope of the BoR:

[re: the "No State shall..." proposal by Madison]
MR. TUCKER: this is offered, I presume, as an amendment to the constitution of the United States, but it goes only to the alteration of constitutions of particular states. It will be much better, I apprehend, to leave the state governments to themselves, and not to interfere with them more than we already do; and that is thought by many to be rather too much. I therefore move, Sir, to strike out these words.

MR. MADISON conceives this to be the most valuable amendment in the whole list. If there were any reason to restrain the government of the United States from infringing upon these essential rights, it was equally necessary that they should be secured against the state governments. He thought that if they provided against one, it was as necessary to provide against the other, and it was satisfied that it would be equally grateful to the people.

This was Aug 17th however - so the question of "form" regarding how the amendment process would take place (separate list or revised constitution had not been resolved). And the "Congress shall make no law..." had already been (substantially) agreed to; so maybe this still isn't conclusive.(??)

gc70

November 25, 2007, 12:52 AM

shield20,

Try the Annals of Congress (http://memory.loc.gov/ammem/amlaw/lwac.html); the BOR debate starts here (http://memory.loc.gov/cgi-bin/ampage?collId=llac&fileName=001/llac001.db&recNum=366) and continues here (http://memory.loc.gov/cgi-bin/ampage?collId=llac&fileName=001/llac001.db&recNum=380).

shield20

November 25, 2007, 12:55 AM

Oh I know - I read them constantly! (just can't remember where & when who said what! :))

ConstitutionCowboy

November 25, 2007, 12:59 AM

gc70,

The question in #30 is not a diversion. It's genuine. If what has been claimed is true, that the several state courts are autonomous in regard to the federal courts, I should be free, under that system, to bring suit against a state not my own in a third state(or even in my own state). Since the Eleventh Amendment limits the jurisdiction of the federal judiciary, I can't bring such a suit to the Supreme Court - ever - even on appeal. How about an answer? Invoking Article III if a state gives permission sidesteps the issue because now you are saying the courts are actually one and the same in that now my state matter can be addressed federally.

The Eleventh Amendment doesn't recognize any "sovereign immunity" of the several states. It limits(repeals) a certain federal judiciary "original jurisdiction" originally granted to the federal judiciary in Article III.

I've got my response to #31 all composed and saved. When you answer my questions in #30, I'll post it.

I repeat:

Are you saying I can bring a lawsuit against a state in another state so long as I don't bring that lawsuit up in the Supreme Court? Meaning I, living in Oklahoma, could bring a suit against Texas in a New Mexico court? In all cases in which a state is a party, the Supreme Court has original jurisdiction, but the Eleventh Amendment prohibits me as a citizen of one state to bringing that suit against another state in the United States Supreme Court because the judicial power of the United States does not extend to such a case.

Those are separate systems according to you, so I should be free to do that, right? Or, does the first sentence in Article III, Section 1, actually mean what it says?

I'm not trying to trick you, I'm only trying to show that the judicial power in the United States all falls under the jurisdiction of the one Supreme Court. My answer that I'll post when you answer my question shows it.

Woody

Aguila Blanca

November 25, 2007, 01:04 AM

When a state murder trial results in a death sentence, the murderer can try to claim protection under the "cruel and unusual punishment" provisions of the 8th Amendment (as incorporated by the 14th). It is the 8A claim that gives federal jurisdiction, and then only with respect to the nature of the punishment.
But most appeals of murder convictions are not based on cruel and unusual punishment. I believe most, in some way or another, are based on some claim of violation of due process.

gc70

November 25, 2007, 01:24 AM

The Eleventh Amendment doesn't recognize any "sovereign immunity" of the several states. It limits(repeals) a certain federal judiciary "original jurisdiction" originally granted to the federal judiciary in Article III.

The previous reference about the 11th Amendment (http://www.gpoaccess.gov/constitution/pdf2002/029.pdf) has "State Immunity" as the first entry in the Table of Contents and entails an 18-page discussion.

But Woody has read the Constitution and has spoken, so we can ignore the Constitutional Analysis and Interpretation (http://www.gpoaccess.gov/constitution/pdf2002/001-Title.pdf) by the Congressional Research Service and Library of Congress.

-----

Aguila Blanca: I was trying to keep my examples simple.

ConstitutionCowboy

November 25, 2007, 01:28 AM

Aguila Blanca,

Just to show gc70 I'm a fair guy, I'll answer for him. "Due Process" would still fall under the umbrella of federal jurisdiction under the 14th and 5th Amendments.

Woody

gc70

November 25, 2007, 01:42 AM

Woody,

You did not have to answer on my behalf... because Aguila Blanca did not ask a question.

legaleagle_45

November 25, 2007, 09:44 AM

Federal courts are courts of limited jurisdiction. They only have power to adjudicate certain matters or when the case involves certain persons. Examples would include "federal question" jurisdiction and "diversity" jurisdiction. Thus, a federal court does not have subject matter jurisdiction to hear a case only involving only an issue of state law where all the litigants are citizens of that same state.

Further, even when the federal court has subject matter jurisdiction, the rulings of state courts on matters of state law will be binding upon the federal court. Thus, if a state supreme court has ruled that a state law means "x" a federal court has no power to disagree with them and say that the state law means "y"... that ruling is considered "binding precedent" for the federal court. Oftentimes, a federal court will "refer" an issue of state law to the state supreme court for an opinion prior to deciding a case and issuing a decision.

Woody, The judicial power of "the United States" is vested in the federal courts. The judicial power of "Alabama" is not vested in the federal courts. The legislative power is vested in Congress, that does not mean Alabama legislature does not have legislative power. The executive power is vested in the President of the United States. That does not mean the governor of Alabama has no executive power. The USA is a constitutionally limited federal republic, and the state governments are seperate soveriegns when operating within areas not specifically denied them by the Constitution. That is what the concept of "federalism" means.

Jurisdiction is an incredibly complex and diverse topic. To name just a few... there is "subject matter" jurisdiction, "in personam jurisdiction", "equity jurisdiction", "concurrent" jurisdiction, "exclusive" jurisdiction, "admiralty" jurisdiction....

ilbob

November 25, 2007, 11:12 AM

"admiralty" jurisdiction

isn't that where they have flags with fringe on it and the UN takes over? :)

HonorsDaddy

November 25, 2007, 11:21 AM

for your argument that the BoR applies only to the federal government to be true, it would mean the states were not required to adhere to any of the other protections, such as the right to a trial by a jury of one's peers, the right to be secure in one's papers and possessions; private property could have been taken at will without compensation; one could be forced to incriminate oneself, punishments could be as cruel as a state wished to make them, etc.

Essentially what you're saying is, the states could have been run as little dictatorships, and unless the FEDERAL government violated someone's rights directly, the people would have no recourse. That simply doesn't make sense.

legaleagle_45

November 25, 2007, 11:44 AM

for your argument that the BoR applies only to the federal government to be true, it would mean the states were not required to adhere to any of the other protections, such as the right to a trial by a jury of one's peers

Originally, they did not. It is only by virtue of the 14th amend that those restrictions are made applicable on the states. Even today, not all of the restrictions are applicable to the states. For example, the right to a jury trial where the amount in controversey exceeds $20 is not applicable to the states. Oregon provides for exclusive jurisdiction for all actions involving less than $500 to the Small Claims division where no jury trial is provided for.

The above is a fact... you may disagree with the decisions of SCOTUS wherein those principles were established, but the fact remains. The BoR's were not held applicable to the states prior to the 14th amendment, and only some of them are applicable to the states today by virtue of the doctorine of "selective incorporation". We can argue all day about whether SCOTUS was or is right in those decisions, but that is what we got and only if SCOTUS overrules its previous decisions or if we pass a constitutional amendment will that be changed.

isn't that where they have flags with fringe on it and the UN takes over?

Only if it is gold colored fringe....:)

hugh damright

November 25, 2007, 03:57 PM

Essentially what you're saying is, the states could have been run as little dictatorships, and unless the FEDERAL government violated someone's rights directly, the people would have no recourse. That simply doesn't make sense.
When you say that the people would have no recourse, I assume you mean to say that they would have no federal recourse. And that is correct. It makes great sense to me, but you have to be able to put it into the context of limited federal government and constitutionalism.

And no, I don't see free States as "little dictatorships", I see them as the bulwarks of liberty. I believe we are founded upon the idea that having one big central government as the bulwark of liberty cannot work, and can only result in one giant dictatorship.

El Tejon

November 25, 2007, 04:06 PM

Ask the Freedmen how much of a "bulkwark of liberty" the free state of Mississippi, Georgia, South Carolina, et al were.:rolleyes:

The states were run as little dictatorships. That's why we have the Civil Rights Act of 1866 and the 14th Amendment, to prevent state level tyranny.:)

gc70

November 25, 2007, 04:35 PM

A little tyranny can be a good thing.

If you like gun control, you can live in Massachusetts. If you do not like gun control, you can live next door in Vermont.

With 50 states, we should have a near-perfect learning laboratory to find environments that people would like. Unfortunately, the federal government too often stomps in to impose a uniform 'solution' to eliminate differences between states.

hugh damright

November 25, 2007, 05:20 PM

Ask the Freedmen how much of a "bulkwark of liberty" the free state of Mississippi,Georgia, South Carolina, et al were.

The states were run as little dictatorships. That's why we have the Civil Rights Act of 1866 and the 14th Amendment, to prevent state level tyranny.
The Civil Rights Act was vetoed for being an attempt to subvert our frame of government. And the 14th was rejected for being an attempt to subvert our frame of government. Clearly you prefer the subverted yankee version, but that does not change the fact that the Framers' Constitution had a USBOR that limited only the federal government and not the States.

And no, the Southern States were not "dictatorships" ... except during reconstruction when yankees put them under military rule for voting against the 14th.

yinyangdc

November 25, 2007, 05:34 PM

Further, if the USBOR limits the States, then it empowers the US to limit the States, and we don't just assume that the US has powers unless the Constitution says otherwise ...
No, we are supposed to assume that the US has NO powers unless the Constitution says otherwise. This is further emphasized by Amendment X.

Cosmoline

November 25, 2007, 07:10 PM

State matters are routinely brought before the Supreme Court.

Woody, where did you get this idea? I've argued in front of the Alaska Supreme Court several times, and I can assure you no federal court can overrule it when it comes to Alaska state matters unless those matters violate some aspect of federal Constitutional law. This really isn't a matter for reasonable debate. Your position is akin to arguing that there are no state legislatures because the Federal constitution established Congress.

I, living in Oklahoma, could bring a suit against Texas in a New Mexico court? In all cases in which a state is a party, the Supreme Court has original jurisdiction, but the Eleventh Amendment prohibits me as a citizen of one state to bringing that suit against another state in the United States Supreme Court because the judicial power of the United States does not extend to such a case.

You're all mixed up I'm afraid. The Supreme Court's original jurisdiction has bo diddly with you suing anybody. That's a reference to the unusual situation that arises when the State of New York sues the State of New Jersey, for example, over territorial rights to certain muddy islands. Or in a case closer to my home, where the State of Alaska sues the United States over territorial claims to even muddier islands off the North Slope. These are extraordinary cases where the US Supreme Court acts as a trial court to decide the dispute between the sovereign entities. You or I could never take a private case to court in this fashion. As a practical matter the court appoints a special master to take care of the actual trial, then reviews his findings.

You and I as private citizens can sue a state government, and will typically do so in state court under the state's tort claims act. The feds would only be involved if I was suing in federal district court alleging that the state government violated some aspect of my federal constitutional rights or in some cases a federal statute. Though I could also bring these claims in state court as well.

The jurisdictional inplications of federalism get complex, to put it mildly. But the basic idea is that there are fifty sovereign states (plus tribes) and a single federal government. The federal government is not like a Parliament. It does not control the states as administrative districts. Each state remains in a real sense an independent nation. But each state has agreed to give up part of its power to the central government, and agreed that federal law is supreme. But that does not mean the legislatures are beholden to Congress for approval, or that the Alaska Superior Court is beholden to the Federal District Court for approval.

As far as the court sytem, the easiest way to think about it is that the state trial courts (however designated) are the starting place for 90% of all litigation and criminal prosecution. They and they alone are the courts of GENERAL JURISDICTION. They handle both state and federal legal questions. The federal trial courts (called district courts) are courts of LIMITED JURISDICTION. You only get there through some aspect of the federal judiciary acts. Diversity of citizenship is one way, federal question is another. A case which proceeds through state trial court continues through the state appeals courts to the state supreme court. A case which proceeds through the federal district court proceeds through the appeals court and, possibly, to the US Supreme Court if cert is granted. They are dual systems. The state court systems are NOT part of Art. III.

ConstitutionCowboy

November 25, 2007, 10:26 PM

Woody, The judicial power of "the United States" is vested in the federal courts. The judicial power of "Alabama" is not vested in the federal courts. The legislative power is vested in Congress, that does not mean Alabama legislature does not have legislative power. The executive power is vested in the President of the United States. That does not mean the governor of Alabama has no executive power. The USA is a constitutionally limited federal republic, and the state governments are separate soveriegns when operating within areas not specifically denied them by the Constitution. That is what the concept of "federalism" means.

You're smarter than this! The judicial power of the United States is vested in one supreme court and in such inferior courts as Congress may ordain and establish. It doesn't say anything about federal courts. It talks of the Supreme Court and inferior courts.

Only the legislative powers granted in the Constitution are vested in Congress, not all legislative powers.

The executive powers of the president are specifically laid out in the Constitution and those powers do not extend to the executive position of the State of Alabama.

Your last statement is correct.

The above is a fact... you may disagree with the decisions of SCOTUS wherein those principles were established, but the fact remains. The BoR's were not held applicable to the states prior to the 14th amendment, and only some of them are applicable to the states today by virtue of the doctorine of "selective incorporation". We can argue all day about whether SCOTUS was or is right in those decisions, but that is what we got and only if SCOTUS overrules its previous decisions or if we pass a constitutional amendment will that be changed.

That's not entirely true. The State of Texas might disagree with you:

"It is contended, that this article of the code, is in violation of the constitution of the United States, and of this state. The clause in the constitution of the United States, that it is said to be in violation of, is the 2d article of the amendments: "A well regulated militia being necessary to the security of a free state, the right of the people to keep and bear arms shall not be infringed." O. & W. Dig. 7. The clause in the constitution of this state, which it is said to violate, is the 13th section of the bill of rights: "Every citizen shall have the right to keep and bear arms, in the lawful defense of himself or the state." O. & W. Dig. 14.

The object of the clause first cited, has reference to the perpetuation of free government, and is based on the idea, that the people cannot be effectually oppressed and enslaved, who are not first disarmed. The clause cited in our bill of rights, has the same broad object in relation to the government, and in addition thereto, secures a personal right to the citizen. The right of a citizen to bear arms, in the lawful defense of himself or the state, is absolute. He does not derive it from the state government, but directly from the sovereign convention of the people that framed the state government. It is one of the "high powers" delegated directly to the citizen, and "is excepted out of the general powers of government." A law cannot be passed (p.402)to infringe upon or impair it, because it is above the law, and independent of the law-making power." - Texas Supreme Court Decision, Cockrum vs State of Texas, ---- 1859, seven years before the Fourteenth Amendment was proposed, and nine years before it was ratified.

Either way, it won't be necessary to await for the Court to "incorporate" the Second Amendment into the Fourteenth. Congress has that power in Section 5. of the amendment, and all it will take is a simple act of Congress. Know of any congressmen with the xʊʦpæ to introduce such a bill?

Woody, where did you get this idea? I've argued in front of the Alaska Supreme Court several times, and I can assure you no federal court can overrule it when it comes to Alaska state matters unless those matters violate some aspect of federal Constitutional law. This really isn't a matter for reasonable debate. Your position is akin to arguing that there are no state legislatures because the Federal constitution established Congress.

My query, in total:... Are you saying I can bring a lawsuit against a state in another state so long as I don't bring that lawsuit up in the Supreme Court? Meaning I, living in Oklahoma, could bring a suit against Texas in a New Mexico court? In all cases in which a state is a party, the Supreme Court has original jurisdiction, but the Eleventh Amendment prohibits me as a citizen of one state to bringing that suit against another state in the United States Supreme Court because the judicial power of the United States does not extend to such a case.

Those are separate systems according to you, so I should be free to do that, right? Or, does the first sentence in Article III, Section 1, actually mean what it says?
...has a purpose. If those systems are as separate as you'all are saying, I should be able to sue one state in another state, and the Eleventh Amendment wouldn't apply. But, if the judicial power of the United States covers all, the Eleventh Amendment would apply and I would not be able to sue a state I am not a citizen of. As for the "legislative quandary" you and legaleagle 45 are trying to introduce to muddy the waters, see my response to legaleagle 45 above. I know you are smarter than that as well.

I could introduce Kelo v. City of New London, but you would say the Court took the case because it involved a Fifth Amendment issue, even though it started with the condemnation of the property by the City of New London, to convert the property to a higher revenue generating source for the city, a strictly instate issue. I'll add this: In order for the Supreme Court to accept the Kelo case, it had to accept the proceedings in the Connecticut court as if those proceedings were their own. That has to say something about the unity of the entire system. I wonder how many federal cases were cited in the trial before it became a federal issue... I wonder if the Fifth Amendment was cited in the case before it became a federal issue...

Ah, what snares we make when first we try to weave tangled webs. This is giving me a headache.

You and I as private citizens can sue a state government, and will typically do so in state court under the state's tort claims act. The feds would only be involved if I was suing in federal district court alleging that the state government violated some aspect of my federal constitutional rights or in some cases a federal statute.

How would that work in the light(or should I say "darkness"?) of the Eleventh Amendment if it isn't the state I live in?

Given the Sixth Amendment, how could any criminal case not come under the scrutiny of the Supreme Court?

Woody

"The power of those in government to use common sense shall not be infringed. It is imperative, however, to elect people to those positions of power who possess common sense. Remember that at the next election." B.E.Wood

legaleagle_45

November 25, 2007, 10:40 PM

It doesn't say anything about federal courts. It talks of the Supreme Court and inferior courts.

You left out the last bit...and in such inferior Courts as the Congress
may from time to time ordain and establish.

Only the legislative powers granted in the Constitution are vested in Congress not all legislative powers.

Similarly, only the judicial power granted in the Constitution are vested in the US Supreme Court and in such inferior Courts as the Congress
may from time to time ordain and establish, not all judicial power.

The executive powers of the president are specifically laid out in the Constitution and those powers do not extend to the executive position of the State of Alabama.

Similarly, the judicial powers are specifically laid out in the Constitution and those powers do not extend to the judicial powers retained by the State of Alabama.

legaleagle_45

November 25, 2007, 10:48 PM

That's not entirely true. The State of Texas might disagree with you

Texas can choose a whole cloth incorporation based upon their own interpretation. As can Georgia... see Nunn v. State, 1 Ga. (1 Kel.) 243 (1846).... but as you are aware, SCOTUS disagree.

Either way, it won't be necessary to await for the Court to "incorporate" the Second Amendment into the Fourteenth. Congress has that power in Section 5.

No it does not.

ConstitutionCowboy

November 25, 2007, 11:05 PM

No it does not.

You might want to reread the Fourteenth Amendment.

Woody

legaleagle_45

November 25, 2007, 11:40 PM

You might want to reread the Fourteenth Amendment.

No need. Congress can not enforce the 14th amend beyond the meaning of the 14th. They can only enforce the provisions thereof. If SCOTUS says the 2nd is not incorporatied by the 14th, Congress can not legislatively say it is and pass laws to enforce the 2nd based upon the 14th... Congress could go a long way towards that scenario however, but not with the 14th... with Article I, Sec 8, Par 15-16.

Cosmoline

November 26, 2007, 12:22 PM

Given the Sixth Amendment, how could any criminal case not come under the scrutiny of the Supreme Court?

A criminal case would only come under federal scrutiny if it involved a Constitutional issue or violation of a federal criminal law.

ConstitutionCowboy

November 26, 2007, 12:32 PM

A criminal case would only come under federal scrutiny if it involved a Constitutional issue or violation of a federal criminal law. Every criminal case does involve a constitutional issue...The Sixth Amendment's dictates.

Woody

Dmack_901

November 26, 2007, 06:06 PM

After finally investigating this whole Barron v. Baltimore, and Gitlow v. New York thing about the applicability of the Bill of Rights to the States, I feel there really isn't any question at all.

The Bill of Rights originally applied to the Federal Government. DC is part of the Federal government(as per Article 1 Sec. 8). Therefor, the Bill of Rights applies to DC, regardless of the 14th Amendment.

acousticmood

November 26, 2007, 07:51 PM

Wow - o.k. so I never would have made it through law school.

But getting back to guns - do I understand this correctly? The way the constitution reads and has been ruled upon by SCOTUS, California could enact a complete ban on all arms if it so choosed and would not thereby violate the 2nd. ammendment?

hugh damright

November 26, 2007, 09:08 PM

The way the constitution reads and has been ruled upon by SCOTUS, California could enact a complete ban on all arms if it so choosed and would not thereby violate the 2nd. ammendment?

Maybe if Californian banned guns it would not violate the Second Amendment, but rather it would interfere with the US militia power:

"The second amendment declares that it shall not be infringed, but this, as has been seen, means no more than that it shall not be infringed by congress. This is one of the amendments that has no other effect than to restrict the powers of the national government ... It is undoubtedly true that all citizens capable of bearing arms constitute the reserved military force or reserve militia of the United States as well as of the states, and, in view of this prerogative of the general government, as well as of its general powers, the states cannot, even laying the constitutional provision in question out of view, prohibit the people from keeping and bearing arms, so as to deprive the United States of their rightful resource for maintaining the public security, and disable the people from performing their duty to the general government." -Presser v Illinois

acousticmood

November 27, 2007, 02:10 PM

"The second amendment declares that it shall not be infringed, but this, as has been seen, means no more than that it shall not be infringed by congress. This is one of the amendments that has no other effect than to restrict the powers of the national government ... It is undoubtedly true that all citizens capable of bearing arms constitute the reserved military force or reserve militia of the United States as well as of the states, and, in view of this prerogative of the general government, as well as of its general powers, the states cannot, even laying the constitutional provision in question out of view, prohibit the people from keeping and bearing arms, so as to deprive the United States of their rightful resource for maintaining the public security, and disable the people from performing their duty to the general government." -Presser v Illinois

O.K. I think I understand - but is this decision "legislating from the bench" or is it interpreting the second ammendment or other ammendment - in other words where is it getting this conclusion from (other than what would seem like commen sense )

Rogue6

November 27, 2007, 05:47 PM

Check out http://www.opinionjournal.com/weekend/hottopic/?id=110010902, in which the Wall Street Journal's opinion page discussess "Heller" and comes out in support of the 2nd Amend. as an individual right.

Cosmoline

November 27, 2007, 08:11 PM

The way the constitution reads and has been ruled upon by SCOTUS, California could enact a complete ban on all arms if it so choosed and would not thereby violate the 2nd. ammendment?

At this point we just don't know. The 9th would likely uphold it on the grounds that Miller established only a group/militia right and all bets are currently off with the SCT.

Dmack_901

November 27, 2007, 09:29 PM

Maybe if Californian banned guns it would not violate the Second Amendment, but rather it would interfere with the US militia power:

"The second amendment declares that it shall not be infringed, but this, as has been seen, means no more than that it shall not be infringed by congress. This is one of the amendments that has no other effect than to restrict the powers of the national government ... It is undoubtedly true that all citizens capable of bearing arms constitute the reserved military force or reserve militia of the United States as well as of the states, and, in view of this prerogative of the general government, as well as of its general powers, the states cannot, even laying the constitutional provision in question out of view, prohibit the people from keeping and bearing arms, so as to deprive the United States of their rightful resource for maintaining the public security, and disable the people from performing their duty to the general government." -Presser v Illinois

That quote deserves a giant asterisk since it is old law. Whereas this case was ruled on in 1886, Gitlow v. New York of 1925 applied the amendments to the states, thus over-ruling that.

ConstitutionCowboy

November 27, 2007, 10:43 PM

No need. Congress can not enforce the 14th amend beyond the meaning of the 14th. They can only enforce the provisions thereof. If SCOTUS says the 2nd is not incorporatied by the 14th, Congress can not legislatively say it is and pass laws to enforce the 2nd based upon the 14th... Congress could go a long way towards that scenario however, but not with the 14th... with Article I, Sec 8, Par 15-16.

Congress has already done that in the "Protection of Lawful Commerce in Arms Act".

SECTION 1. SHORT TITLE.

This Act may be cited as the `Protection of Lawful Commerce in Arms Act'.

SEC. 2. FINDINGS; PURPOSES.

(a) Findings- Congress finds the following:

(1) The Second Amendment to the United States Constitution provides that the right of the people to keep and bear arms shall not be infringed.

(2) The Second Amendment to the United States Constitution protects the rights of individuals, including those who are not members of a militia or engaged in military service or training, to keep and bear arms.

(3) Lawsuits have been commenced against manufacturers, distributors, dealers, and importers of firearms that operate as designed and intended, which seek money damages and other relief for the harm caused by the misuse of firearms by third parties, including criminals.

(4) The manufacture, importation, possession, sale, and use of firearms and ammunition in the United States are heavily regulated by Federal, State, and local laws. Such Federal laws include the Gun Control Act of 1968, the National Firearms Act, and the Arms Export Control Act.

(5) Businesses in the United States that are engaged in interstate and foreign commerce through the lawful design, manufacture, marketing, distribution, importation, or sale to the public of firearms or ammunition products that have been shipped or transported in interstate or foreign commerce are not, and should not, be liable for the harm caused by those who criminally or unlawfully misuse firearm products or ammunition products that function as designed and intended.

(6) The possibility of imposing liability on an entire industry for harm that is solely caused by others is an abuse of the legal system, erodes public confidence in our Nation's laws, threatens the diminution of a basic constitutional right and civil liberty, invites the disassembly and destabilization of other industries and economic sectors lawfully competing in the free enterprise system of the United States, and constitutes an unreasonable burden on interstate and foreign commerce of the United States.

(7) The liability actions commenced or contemplated by the Federal Government, States, municipalities, and private interest groups and others are based on theories without foundation in hundreds of years of the common law and jurisprudence of the United States and do not represent a bona fide expansion of the common law. The possible sustaining of these actions by a maverick judicial officer or petit jury would expand civil liability in a manner never contemplated by the framers of the Constitution, by Congress, or by the legislatures of the several States. Such an expansion of liability would constitute a deprivation of the rights, privileges, and immunities guaranteed to a citizen of the United States under the Fourteenth Amendment to the United States Constitution.

(8) The liability actions commenced or contemplated by the Federal Government, States, municipalities, private interest groups and others attempt to use the judicial branch to circumvent the Legislative branch of government to regulate interstate and foreign commerce through judgments and judicial decrees thereby threatening the Separation of Powers doctrine and weakening and undermining important principles of federalism, State sovereignty and comity between the sister States.

(b) Purposes- The purposes of this Act are as follows:

(1) To prohibit causes of action against manufacturers, distributors, dealers, and importers of firearms or ammunition products, and their trade associations, for the harm solely caused by the criminal or unlawful misuse of firearm products or ammunition products by others when the product functioned as designed and intended.

(2) To preserve a citizen's access to a supply of firearms and ammunition for all lawful purposes, including hunting, self-defense, collecting, and competitive or recreational shooting.

(3) To guarantee a citizen's rights, privileges, and immunities, as applied to the States, under the Fourteenth Amendment to the United States Constitution, pursuant to section 5 of that Amendment.

(4) To prevent the use of such lawsuits to impose unreasonable burdens on interstate and foreign commerce.

(5) To protect the right, under the First Amendment to the Constitution, of manufacturers, distributors, dealers, and importers of firearms or ammunition products, and trade associations, to speak freely, to assemble peaceably, and to petition the Government for a redress of their grievances.

(6) To preserve and protect the Separation of Powers doctrine and important principles of federalism, State sovereignty and comity between sister States.

(7) To exercise congressional power under article IV, section 1 (the Full Faith and Credit Clause) of the United States Constitution.

Yadda Yadda Yadda...

Take the three passages I placed in bold and there you have it! Our right to Keep and Bear Arms incorporated to apply to the several states by Section 5 of the Fourteenth Amendment.

Woody

It is way past time we in this country got back to arming ourselves the way our Founding Fathers so wisely saw fit to insure us the impunity to do so in the Constitution. B.E.Wood

RealGun

November 28, 2007, 10:31 AM

If SCOTUS says the 2nd is not incorporatied by the 14th, Congress can not legislatively say it is and pass laws to enforce the 2nd based upon the 14th... legaleagle

SCOTUS hasn't ruled but has failed to rule. You have no argument.

legaleagle_45

November 28, 2007, 10:51 AM

SCOTUS hasn't ruled but has failed to rule.

I never said SCOTUS has ruled on incorporation... they have not (at least within the modern context of the selective incorporation analysis)

You have no argument.

Sure I do.... it is called "assuming arguendo". If SCOTUS does not incorporate the 2nd, then Congress is not empowered to use Section 5 to do so.

legaleagle_45

November 28, 2007, 10:57 AM

Take the three passages I placed in bold and there you have it!

No you don't, you only have congress pontificating... which they do all the time. Query Woody, if Congress says in a statute that the Constitution allows Congress to "provide for the general welfare" and Congress has determined that eating bran cereal every morning will reduce the incidence of colon cancer, can they invoke the general welfare provision and thereby constitutionally mandate that everyone over the age of 2 have one bowl of bran cereal for breakfast?

Cosmoline

November 28, 2007, 12:31 PM

Take the three passages I placed in bold and there you have it!

Have what? That a two bucks will get you a cup of coffee. The Purpose and Findings section are not the operative portion of the statute.

Gitlow v. New York of 1925 applied the amendments to the states

Not the Second. Gitlow addressed the application of certain portions of the First to the states via the 14th.

http://en.wikipedia.org/wiki/Gitlow_v._New_York

http://en.wikipedia.org/wiki/Incorporation_doctrine

sailortoo

November 28, 2007, 07:16 PM

I am definitely not a constitutional scholar, but trying hard to learn. This thread has been an eye opener, an education and appreciated. My question to those that do know what the meaning of "is" is: in the case of (for instance) the Constitution of the State of New Mexico; Article II, Bill of Rights, Sec. 1. reads "The State of New Mexico is an inseparable part of the Federal Union, and the Constitution of the United States is the supreme law of the land". That is the total statement of Sec. 1. Does this statement suborn New Mexico law automatically to (again, for instance) the Second Amendment of the U.S. Constitution, sans Incorporation? It seems as tho the more debate on Constitutional questions, begets more confusion, rather than clarity.
Sailor

hugh damright

November 28, 2007, 09:24 PM

Sec. 1. reads "The State of New Mexico is an inseparable part of the Federal Union, and the Constitution of the United States is the supreme law of the land" ... Does this statement suborn New Mexico law automatically to (again, for instance) the Second Amendment of the U.S. Constitution, sans Incorporation?

"An inseparable part of the Federal Union" ... how different from Virginia's Constitution, which says that the majority of Virginians have an inalienable right to alter or to abolish government (and I understand that to include secession). In my view, the people of New Mexico have no right to frame a constitution which would deny future generations the inalieanable right to alter or to abolish their government.

Anyway, I think the Second Amendment was intended to limit only the federal government, and I don't see why declaring the US Constitution to be the supreme law would make the Second Amendment mean something other than what it was intended to mean.

ConstitutionCowboy

November 28, 2007, 09:35 PM

No you don't, you only have congress pontificating... which they do all the time. Query Woody, if Congress says in a statute that the Constitution allows Congress to "provide for the general welfare" and Congress has determined that eating bran cereal every morning will reduce the incidence of colon cancer, can they invoke the general welfare provision and thereby constitutionally mandate that everyone over the age of 2 have one bowl of bran cereal for breakfast?

Pontificating? Congress wrote that into the Act as its source of power for what they intend the Act to accomplish - to prohibit all the courts to adjudicate any of the referenced cases. For the most part - in all but one case, as far as I know - the Court has complied. The law stands unchallenged, and therefore, since the Court has not "declared" the Act unconstitutional, it is the law of the land. Got a problem with this? Take it to the Court!

Nix on the bran cereal. To begin with, We the People never gave such a power to anyone through the Constitution. I assume you are referring to the Preamble to the Constitution for the United States, and I see where you are going with this - the "obiter dictum" thing. The difference is that what was written into the Act is not obiter dictum but legislative intent. That aside, the Preamble doesn't say "provide", it says "promote" the general welfare, and is not cast as a power delegated to any branch of the Union, but as a purpose as to why We the People(that's us) crafted the Constitution to create the Union. And, we all know the best way ANY government can promote the general welfare is to stay the hell out of the way of the people, provide for their COMMON defense, establish justice, insure domestic tranquility, and secure all those things for ourselves and our descendants.

Have what? That a two bucks will get you a cup of coffee. The Purpose and Findings section are not the operative portion of the statute.

Operative or not, that is the source of power Congress tapped to create the Act and make it applicable to all the courts in the country. Y'all keep sayin' the federal courts and state courts are separate entities, and since Congress intended this Act to limit all courts, I figure y'all ought to be thrilled that the Fourteenth Amendment has been invoked - to make the Act have the force of law in the several states as well as the federal courts.

Woody

"I pledge allegiance to the rights that made and keep me free. I will preserve and defend those rights for all who live in this Union, founded on the belief and principles that those rights are inalienable and essential to the pursuit and preservation of life, liberty, and happiness." B.E.Wood

legaleagle_45

November 28, 2007, 10:04 PM

To begin with, We the People never gave such a power to anyone through the Constitution.

They would alsom thow in some mumbo jumbo about the commerce clause... and voila you are there.... just as they did with your example:

(4) To prevent the use of such lawsuits to impose unreasonable burdens on interstate and foreign commerce....
6) The possibility of imposing liability on an entire industry for harm that is solely caused by others is an abuse of the legal system, erodes public confidence in our Nation's laws, threatens the diminution of a basic constitutional right and civil liberty, invites the disassembly and destabilization of other industries and economic sectors lawfully competing in the free enterprise system of the United States, and constitutes an unreasonable burden on interstate and foreign commerce of the United States.

The difference is that what was written into the Act is not obiter dictum but legislative intent.

Irrelvant.

And, we all know the best way ANY government can promote the general welfare is to stay the hell out of the way of the people

Yeah but government does not tend do that.... so you start with a given premise (I know you disagree with that premise, but that is irrelevant to the extrapolation which you are contending for) that the 2nd is NOT incorporated by the 14th. You then assert that congress has the power to make something a part of the constitution that it was not previously... to wit that the 2nd is incorporated by the 14th and then enforce same. That is no different than asserting that the 14th establishes a power to "promote the general welfare" and force that bran cereal down your throat.

The law stands unchallenged, and therefore, since the Court has not "declared" the Act unconstitutional, it is the law of the land. Got a problem with this? Take it to the Court!

Why since the court would find it constitutional under the commerce clause? Seems rather fruitless exercise, IMHO.

ConstitutionCowboy

November 28, 2007, 11:31 PM

You then assert that congress has the power to make something a part of the constitution that it was not previously... to wit that the 2nd is incorporated by the 14th and then enforce same.

Man, that's off base! The Second Amendment has been a part of the Constitution since it was ratified in 1791! The Fourteenth Amendment and ITS incorporation of the protections of rights and freedoms to be binding upon the several states has been applicable since its ratification in 1868. There is no way to read the Fourteenth Amendment that would require the Court to "incorporate" the actions of the amendment. It's very own ratification accomplished that. Congress, using Section 5 of the amendment and the Full Faith and Credit Clause in Article IV, Section 1, passed legislation enforcing the protection of the Second Amendment onto the several states. You cannot deny that that is what the Act accomplished. The Act specifically mentions Federal and State courts.

The only way you could wiggle out of this is to say the courts are all part of one judicial system, but the Act would have the same effect anyway, so, on second thought, there is no wiggle room.

Woody

"The Second Amendment is absolute. Learn it, live it, love it and be armed in the defense of freedom, our rights, and our sovereignty. If we refuse infringement to our Right to Keep and Bear Arms, as protected by the Second Amendment, we will never be burdened by tyranny, dictatorship, or subjugation - other than to bury those who attempt it. B.E.Wood

camacho

November 29, 2007, 01:27 AM

I think there is some misunderstanding on the "incorporation" issue, but I think that what Levy wrote in this piece sheds some light on it. According to Levy, while it appears that the whole Bill of Rights ought to be incorporated, the issue of Second Amendment still needs to be litigated which will be another battle ahead of us.

Room for restrictions, but D.C. ban goes too far

November 28, 2007

BY ROBERT A. LEVY

It has been 68 years since the U.S. Supreme Court examined the right to keep and bear arms secured by the Second Amendment. It has been 31 years since the District of Columbia enacted its feckless ban on all functional firearms in the capital. It has been eight months since the second most important court in the country, the U.S. Court of Appeals for the District of Columbia Circuit, declared the D.C. ban -- among the most restrictive in the nation -- unconstitutional.

The obvious incongruity of those three events could be resolved soon, when the Supreme Court reviews the appeals court decision in District of Columbia v. Heller.

Oral arguments likely will be held this spring, with a decision expected before June 30. (I am cocounsel for the plaintiffs and am one of the attorneys who initiated the lawsuit.)

The stakes are immense. Very few legal questions stir the passions like gun control. Further, Washington is home to the federal government, making it an appropriate venue to challenge all federal gun laws, no matter where an alleged Second Amendment violation might have occurred.

Thus, Heller could have an immediate effect not only on D.C. gun regulations, but on federal regulations. Equally important, if the Supreme Court affirms the D.C. circuit's holding, state gun control laws across the nation could be vulnerable to constitutional attack. But before that happens, two other issues would have to be litigated. The first is the knotty question of whether the Second Amendment can be invoked against state governments. Until 1868, when the 14th Amendment was ratified, the Bill of Rights applied only to the federal government.

But in the aftermath of the Civil War, much of the Bill of Rights was considered "incorporated" by the 14th Amendment to bind the states as well. Regrettably, the incorporation of the Second Amendment has not yet been settled. And that issue did not arise in Heller, because the District of Columbia is a federal enclave, not a state.

The second question is even more complicated: What restrictions on gun possession and use would be permissible? Almost no one argues that Second Amendment rights are absolute. After all, under the First Amendment, the right to free speech does not protect disturbing the peace; religious freedom does not shield human sacrifice. Similarly, gun regulations can be imposed on some weapons (e.g., missiles), some people (e.g., preteens) and some uses (e.g., murder).

Indeed, the appeals court acknowledged that Washington might be able to justify such things as concealed-carry restrictions, registration requirements and proficiency testing. But the Constitution does not permit an across-the-board ban on all handguns, in all homes, for all residents, as in the case of the Washington ban (with the exception of current and retired police officers). Somewhere in the middle, regulations will be deemed constitutional even if the Supreme Court upholds the lower court.

Meanwhile, the high court also will have to re-examine its 1939 gun case, United States v. Miller, which generated more heat than light regarding the Second Amendment.

The core holding of Miller was that protected weapons must be "in common use" and must bear "some reasonable relationship to the preservation or efficiency of a well-regulated militia."

Heller is entirely compatible with that holding. Pistols, which are banned in D.C., are self-evidently "in common use," and they have been carried into battle by American troops in every conflict since the Revolutionary War. But a proper reading of the Second Amendment should not attempt to link each and every weapon to the militia -- except to note that the grand scheme of the amendment was to ensure that people trained in the use of firearms would be ready for militia service.

ROBERT A. LEVY is senior fellow in constitutional studies at the Cato Institute. Write to him in care of the Free Press Editorial Page, 615 W. Lafayette, Detroit, MI 48226 or at oped@freepress.com.
http://www.freep.com/apps/pbcs.dll/article?AID=/20071128/OPINION02/711280339/1068/OPINION

legaleagle_45

November 29, 2007, 09:14 AM

Man, that's off base! The Second Amendment has been a part of the Constitution since it was ratified in 1791! The Fourteenth Amendment and ITS incorporation of the protections of rights and freedoms to be binding upon the several states has been applicable since its ratification in 1868. There is no way to read the Fourteenth Amendment that would require the Court to "incorporate" the actions of the amendment.

Woody your argument is circular. Of course, if you assume that the 2nd is incorporated by the 14th, then Congress has the power to enforce it through the 14th. But that was not your initial premise. You asserted that even if SCOTUS does not incorporate the 2nd, then Congress still has the power to enforce it throught the 14th... I realize that you have a somewhat "unique" opinion of "judicial review" and the validity of pronouncements from SCOTUS regarding the constitution when they differ from yours, which is why I asked you to assume arguendo that the 2nd was not incorporated by the 14th. If you make that basic assumption, your entire argument regarding the power of Congress to none the less pass legislation accomplishing the same thing totally falls apart...

So, pragmatically... IF SCOTUS decides that the 2nd is not incorporated by the 14th, then SCOTUS will also hold as unconstitutional efforts to create said incorporation based solely upon Section 5 of the 14th Amend.

You may disagree with SCOTUS and condemn them for their stupidity, but the fact remains that at the end of the day, Congressional attempts to enforce the 2nd through Section 5 of the 14th will be for naught sans a decision from SCOTUS declaring the 2nd incorporated by the 14th.

ConstitutionCowboy

November 29, 2007, 11:04 AM

LegalEagle 45,

Your analysis assumes a need for the Supreme Court to "incorporate" the caveats of the Fourteenth. No such requirement exists in the Fourteenth Amendment, any other amendment, or article in the Constitution. It is the ratification process in Article V which proscribes the method to follow for an amendment to become the law of the land. That has been done - a long time ago.

The reluctance of Congress and the Court to accept this boggles my mind. I cannot figure out how this amendment, being drafted in Congress and ratified by the states, passed yet is treated as more of a thorn in the side of government. Is it because it protects We the People and does not grant any power to Congress other than to enforce its caveats? The actions - or rather the lack of actions by Congress and the Court belies the true character of those who populate those branches of our government, on both state and federal levels.

It's no wonder our Founding Fathers saw fit to protect our Right to Keep and Bear Arms. There may come a time when we'll need them. I know this, too: The more arms we have, the less we'll ever need them to uphold our individual freedoms, sovereignty, and welfare. In this world, there is only one force that rules, governs, and protects; that is the force of arms. Anyone who would take them away is no less tyrannical than any foreign or domestic dictator who would take advantage of our weakened state.

Woody

You can live free holding the stock and possibly never have to pull the trigger, or you can try to live free at the muzzle. I prefer to hold the stock and live free. Those at the muzzle never seem to fare quite so well. B.E.Wood

glummer

November 29, 2007, 11:19 AM

legaleagle 45
Congressional attempts to enforce the 2nd through Section 5 of the 14th will be for naught sans a decision from SCOTUS declaring the 2nd incorporated by the 14th.Could you clarify that a bit?
It sounds like you are saying that Congress needs prior approval from SCOTUS to pass enforceable legislation? :scrutiny:
The 14th means nothing until after SCOTUS says so? :eek:
And how does SCOTUS do that, if no enforceable legislation is passed first? :confused:
SCOTUS is an appeals court. There will be no cases to rule on, without legislation.

hugh damright

November 29, 2007, 11:34 AM

It seems to me that some people assume that the 14th makes the USBOR binding upon the States, but the amendment doesn't actually say that, and the SCOTUS hasn't seen it that way. If the 14th said that the first eight amendments are binding upon the States, and that Congress has power to pass legislation to enforce the provision, then Congress would be empowered. But as it is, I do not see Congress as having jurisdiction over my personal RKBA for my personal use.

legaleagle_45

November 29, 2007, 12:24 PM

Could you clarify that a bit?
It sounds like you are saying that Congress needs prior approval from SCOTUS to pass enforceable legislation?

No, my comment was based soley upon the predicate that SCOTUS would rule or had ruled adversely to incorporation. Congress can pass the legislation and SCOTUS may thereafter determine whether said legislation is constitutional within the confines of an actual case in which the question arises.

No prior approval from SCOTUS as to any legislation can be obtained based upon the cases and controversies clause found in Article III...

What I am saying is merely this:

If SCOTUS rules that the 2nd is not incorporated by the 14th, any legislation passed by Congress which uses Section 5 of the 14th as its sole justification to enforce the 2nd as against the states will be found to be invalid. Congress may not by statute define what us and what is not constitutional.

legaleagle_45

November 29, 2007, 12:32 PM

It is the ratification process in Article V which proscribes the method to follow for an amendment to become the law of the land. That has been done - a long time ago.

Again you are assuming your conclusion as justification for your analysis. Certainly, if the 2nd is in fact incorporated by the 14th, then it of course follows that Congress may use Section 5 to force compliance by the states. However, if you assume (just for the sake of argument) that the 2nd is NOT incorporated, then it clearly follows that Congress may not boot strap incorporation of the 2nd into the Constitution by legislation merely claiming that it is.

Cosmoline

November 29, 2007, 12:45 PM

Congressional attempts to enforce the 2nd through Section 5 of the 14th will be for naught sans a decision from SCOTUS declaring the 2nd incorporated by the 14th.

True, but if Congress actually wanted to protect the RKBA in general they could do so with regular old commerce clause legislation. They've taken some small steps in that direction but not many. Protecting the makers from suit is one example. Allowing lawful cross-state transport of firearms under certain conditions is another.

legaleagle_45

November 29, 2007, 12:57 PM

True, but if Congress actually wanted to protect the RKBA in general they could do so with regular old commerce clause legislation.

Or through Article I, Sec 8, Par 15-16... which is why I inserted legal weasel words such as:

any legislation passed by Congress which uses Section 5 of the 14th as its sole justification to enforce the 2nd

Legaleagle= got an A+ in the law school course on the proper usage of legal weasel words....

glummer

November 29, 2007, 01:20 PM

eagle
If SCOTUS rules that the 2nd is not incorporated by the 14th, any legislation passed by Congress which uses Section 5 of the 14th as its sole justification to enforce the 2nd as against the states will be found to be invalid.It seems to me that you're jumping to an enormous and unnecessary conclusion here.
In the real world, any such legislation would be automatically valid, until such time as a case challenging it reaches SCOTUS and they rule one way or the other on the issues of that case. A blanket assumption that any such case will succeed is unjustified.

By the way, what does section 5 do, according to SCOTUS? It surely empowers Congress to do something that it could not do previously. Under the original-non-incorporation theory, what power is enabled?

BobbyQuickdraw

November 29, 2007, 02:37 PM

Doesn't it seem silly and absurd that the Founders of the Constitution would set up a list of Freedoms that the National Government can't take away, but they were willing to let individual states strip those freedoms away?

All this talk of "incorporation" seems to amount to "States can pick and choose the Amendments" or maybe "The Supreme Court decides what the states can and can't make law."

The Fathers founded a Nation, not a Confederation. We are the United States of America. Not the Confederated States. National laws and national rights exist. They are in the Bill of Rights. It boggles my mind that this is even an arguable point and it downright infuriates me that some lawmakers could somehow see it differently.

If there is ever doubt that the Founding Fathers meant every free man to be armed, I would like to see 1 single quote where a Father says something that is anti-private gun ownership. I've been waiting for the quote for over 20 years and its not here.

hugh damright

November 29, 2007, 04:26 PM

The Fathers founded a Nation, not a Confederation. We are the United States of America. Not the Confederated States. National laws and national rights exist. They are in the Bill of Rights. It boggles my mind that this is even an arguable point and it downright infuriates me that some lawmakers could somehow see it differently.

The US Constitution is a compact between the States, a federal compact, not a national compact. And the USBOR did not originally bind the States.

CleverNickname

November 29, 2007, 08:59 PM

Doesn't it seem silly and absurd that the Founders of the Constitution would set up a list of Freedoms that the National Government can't take away, but they were willing to let individual states strip those freedoms away?
Not really, because the 14th Amendment wasn't passed until 1868. All the founders were long dead by then.

What does seem absurd to me is that if incorporation is a valid legal theory, that Congress in 1868 only intended to incorporate parts of the Bill of Rights, not the whole thing. There's nothing in the 14th Amendment to indicate that, or to indicate which parts of the BoR should or should not be incorporated.

gc70

November 30, 2007, 11:12 PM

Originally Posted by legaleagle 45
No need. Congress can not enforce the 14th amend beyond the meaning of the 14th. They can only enforce the provisions thereof. If SCOTUS says the 2nd is not incorporatied by the 14th, Congress can not legislatively say it is and pass laws to enforce the 2nd based upon the 14th... Congress could go a long way towards that scenario however, but not with the 14th... with Article I, Sec 8, Par 15-16.Originally Posted by ConstitutionCowboy
Congress has already done that in the "Protection of Lawful Commerce in Arms Act".
What happened, ConstitutionCowboy?

Aren't you the guy who frequently tells everyone that the Constitution can not be interpreted by SCOTUS and certainly can not be changed by a mere Act of Congress?

Are you now saying that Congress can simply pass a law to change the meaning or application of the Constitution?

ConstitutionCowboy

December 1, 2007, 12:26 AM

:
Originally Posted by legaleagle 45:

No need. Congress can not enforce the 14th amend beyond the meaning of the 14th. They can only enforce the provisions thereof. If SCOTUS says the 2nd is not incorporatied by the 14th, Congress can not legislatively say it is and pass laws to enforce the 2nd based upon the 14th... Congress could go a long way towards that scenario however, but not with the 14th... with Article I, Sec 8, Par 15-16.

Originally Posted by ConstitutionCowboy:

Congress has already done that in the "Protection of Lawful Commerce in Arms Act".

What happened, ConstitutionCowboy?

Aren't you the guy who frequently tells everyone that the Constitution can not be interpreted by SCOTUS and certainly can not be changed by a mere Act of Congress?

Are you now saying that Congress can simply pass a law to change the meaning or application of the Constitution?

Not at all. I'm saying Congress has been granted power in Section 5 of the Fourteenth to enforce the provisions of the Fourteenth. If the Court doesn't like something Congress does in that regard, the Court can "shoot it down" if and when a case is ever brought to it objecting to what Congress has done. Until that time, Congress is merely exercising power granted to it in Section 5 of the Fourteenth. Congress does not need to ask permission from the Court to exercise its powers.

Woody

To be liberal is to live in a cloud of delusion fraught with fantasy, and a disregard for the law and fair play. Alas; clear fact, unambiguous consensus, scrutiny, and researched reason does prevail and keeps me in touch with who is who, what is what, and explains why I am conservative. B.E.Wood

RealGun

December 1, 2007, 08:46 AM

Congress' "power to enforce" would be very limited. They talk, accept bribes, and pass legislation. It's the Executive that gets stuff done and has power in any physical sense. Same with SCOTUS, and we all know the story about Lincoln challenging a group of old farts in black robes to stop him.

Matt King

December 1, 2007, 09:06 PM

So gun control on the state level isn't unconstitutional?

gc70

December 2, 2007, 12:02 AM

So gun control on the state level isn't unconstitutional?That depends on the constitutions of the individual states. Based on current court positions, state controls do not violate the US Constitution.

RealGun

December 2, 2007, 06:53 AM

Based on current court positions, state controls do not violate the US Constitution. - gc70

Can you name a case that tested that point? State controls DO violate the US Constitution. SCOTUS has not heard the case yet. There are also State Supreme Courts that have not ruled on their own RKBA.

Note that the 2nd Amendment, certainly any applicability to States via the 14th Amendment, is "just a G-D piece of paper", because the Court hasn't heard a case testing the point. Do you really want to say that the Constitution means nothing, until the SCOTUS hears a case testing every narrow point?

Where does it say that a Constitutional amendment doesn't apply until SCOTUS rules on a case testing it?

Steam dragon

December 2, 2007, 09:35 AM

Way back at post # 12, Mr.Workman said
No, Gordon, it is NOT 'disingenuous legal doctrine.' It's what the Supreme Court ruled, and therefore it is the law.

Just because you may disagree with something the court says, that does not render it moot, it only renders your opinion moot.
...

And then at #78 and #79, Real Gun and Legaleagle 45 continued

Quote:
SCOTUS hasn't ruled but has failed to rule.
I never said SCOTUS has ruled on incorporation... they have not (at least within the modern context of the selective incorporation analysis)

Quote:
You have no argument.
Sure I do.... it is called "assuming arguendo". If SCOTUS does not incorporate the 2nd, then Congress is not empowered to use Section 5 to do so.
legaleagle_45 is offline Report Post

How about this for a paradigm shift?

However the court may interpret the provisions of the Constitution, it is still the Constitution which is the law, and not the decision of the court.
-Charles Warren, The United States Supreme Court in History, 1999 ed. (www.amazon.com/Supreme-Court-United-States-History/dp/1893122182/ref=sr_1_1?ie=UTF8&s=books&qid=1196605123&sr=8-1")

Of course, the question of enforcement comes into play...

ConstitutionCowboy

December 2, 2007, 10:17 AM

Texas ruled on their protection of the RKBA as well as the Second Amendment to the Constitution PRIOR to the Fourteenth Amendment and ruled a certain Texas law was indeed in violation of both and struck down that law.

"It is contended, that this article of the code, is in violation of the constitution of the United States, and of this state. The clause in the constitution of the United States, that it is said to be in violation of, is the 2d article of the amendments: "A well regulated militia being necessary to the security of a free state, the right of the people to keep and bear arms shall not be infringed." O. & W. Dig. 7. The clause in the constitution of this state, which it is said to violate, is the 13th section of the bill of rights: "Every citizen shall have the right to keep and bear arms, in the lawful defense of himself or the state." O. & W. Dig. 14.

The object of the clause first cited, has reference to the perpetuation of free government, and is based on the idea, that the people cannot be effectually oppressed and enslaved, who are not first disarmed. The clause cited in our bill of rights, has the same broad object in relation to the government, and in addition thereto, secures a personal right to the citizen. The right of a citizen to bear arms, in the lawful defense of himself or the state, is absolute. He does not derive it from the state government, but directly from the sovereign convention of the people that framed the state government. It is one of the "high powers" delegated directly to the citizen, and "is excepted out of the general powers of government." A law cannot be passed (p.402)to infringe upon or impair it, because it is above the law, and independent of the law-making power." - Texas Supreme Court Decision, Cockrum vs State of Texas, ---- 1859

Texas did that without the "benefit" of the Fourteenth Amendment nor any ruling from the Supreme Court of the United States.

I think Texas understood the value and necessity of protecting the Right of the People to Keep and Bear Arms having recently been engaged in a war against a tyrannical dictator a mere 23 years prior to this case. Certainly some of the participants in that revolution were still around, just as when the Second Amendment was crafted, many survivors of the revolution were still around.

Do we need another such action to reaffirm the value of the people's right and purpose to be armed or shall we learn from history?

Woody

"Knowing the past, I'll not surrender any arms and march less prepared into the future." B.E.Wood