2nd A. & States' Rights

[ctdonath]

A rant, submitted for comment:

---

There is much discussion over whether the Bill Of Rights, specifically the 2nd Amendment, applies to the states.

The notion that it doesn't is preposterous.

1. The Bill Of Rights _recognizes_ rights, it does not grant them. A fundamental axiom to our constitutional republic is that individuals have natural rights, which a government is expected to protect and may not take away. These rights exist regardless of whether a government improperly suppresses them. The Declaration of Independence makes clear the whole point of the Revolution in the first place was to enact a government which would recognize and protect those rights. Ergo, the states have a duty to recognize and protect those rights, not suppress them.

2. US Constitution Article VI: "This Constitution, ... shall be the supreme law of the land; and the judges in every state shall be bound thereby, anything in the Consitution or laws of any State to the contrary notwithstanding." The "...shall not be infringed" clause trumps any infringing state law.

3. The 14th Amendment binds the Bill Of Rights to the states. That the Supreme Court has said that the binding must be evaluated on a right-by-right basis is absurd, but nonetheless the issue may (nay, must!) be raised and SCOTUS must agree that the 2nd Amendment protects a right (whatever it is) and that the states must likewise protect that right. To not do so is to deny the plain existence of the 2nd Amendment.

4. The "states' rights" argument is trumped by "citizens' rights". Those who adamantly push for the rights of the states over the rights of the federal government lose sight of the fact that both exist to protect the rights of individuals. Whether states or feds trump the other is interesting, but both pale before and must give way to the rights of the individual.

Am I missing any?

For a state (territories etc. included) to infringe on the individual's right to keep and bear arms requires arguments overcoming _all_ of the above points; for even one of the above to hold means the 2nd Amendment _must_ be respected for what it plainly says.

 

[Rev. DeadCorpse]

I wish also, in revising the constitution, we may throw into that section, which interdicts the abuse of certain powers in the state legislatures, some other provisions of equal if not greater importance than those already made. The words, "No state shall pass any bill of attainder, ex post facto law, &c." were wise and proper restrictions in the constitution. I think there is more danger of those powers being abused by the state governments than by the government of the United States. The same may be said of other powers which they possess, if not controuled by the general principle, that laws are unconstitutional which infringe the rights of the community. I should therefore wish to extend this interdiction, and add, as I have stated in the 5th resolution, that no state shall violate the equal right of conscience, freedom of the press, or trial by jury in criminal cases; because it is proper that every government should be disarmed of powers which trench upon those particular rights. I know in some of the state constitutions the power of the government is controuled by such a declaration, but others are not. I cannot see any reason against obtaining even a double security on those points; and nothing can give a more sincere proof of the attachment of those who opposed this constitution to these great and important rights, than to see them join in obtaining the security I have now proposed; because it must be admitted, on all hands, that the state governments are as liable to attack these invaluable privileges as the general government is, and therefore ought to be as cautiously guarded against. James Madison Proposing Bill of Rights to House, June 8, 1789

And...

"If a positive declaration of some essential rights could not be obtained in the requisite latitude, the answer is, "Half a loaf is better than no bread". If we cannot secure all our rights, let us secure what we can." --Thomas Jefferson to James Madison, 1789. ME 7:310

I've got a metric ton of these lying around...

The Founders were quite clear on their intent to secure individual Rights from encroachment at any level. It wasn't until almost 50 years later that Marshall, in his declining years, gave in to political pressure to come up with an "incorperation doctrine" ostensibly to prevent the BoR applying to freed slaves.

The rest, as they say, is history. Stare decisis has perpetuated this "myth" since then and the accumulated effects are felt in todays court room where claiming your Second Amendment Rights are not allowed.

 

[Malum Prohibitum]

But this "preposterous" notion has been the law of the land since 1833.

 

[The Real Hawkeye]

Keep in mind that the Founders' main fear associated with forming a new central government was that of consolidation of powers, properly belonging to the States, therein. This is why they made a central government of limited, delegated and enumerated powers, rather than one of indefinite powers, like the States enjoy.

The Federal Government, therefore, only legitimately possesses those powers which were delegated to it via the Constitution. One of those powers was NOT to prevent States from enacting gun control laws. Yes, the right to keep and bear arms is referred to as a real existing thing in the Second Amendment, belonging to the people, but the Second Amendment is an amendment to the US Constitution, and the US Constitution is a list of powers delegated to the Federal Government. The Second Amendment does not grant a new power to the Federal Government. It denies to it a power, namely that of passing laws which have the effect of infringing on the right of the people to keep and bear arms. That's it. This is not a delegation of power to the Federal Government to tell the States what kinds of gun related laws they can have, therefore that power does not legitimately exist in the Federal Government.

The Fourteenth, by its words, only incorporates part of the Fifth Amendment to the States, i.e., that part about due process, holding the States to the same standards as the Federal Government in this regard. That's it, as far as incorporation goes. The rest of Incorporation Doctrine is pure judicial fantasy enacted into de facto law by judicial fiat.

That said, I fully favor each State's constitutions getting in line with each person's right to keep and bear arms. To the extent that this is not now the case, an injustice is being perpetrated against anyone entering that jurisdiction, but it's a State matter, not a Federal matter whether or not the States' laws are in line with our individual rights, except with regard to that portion of the Fifth Amendment which was incorporated by the plain words of the Fourteenth Amendment, and a few other matters that have been the subject of Constitutional Amendments, none of which has anything to do with delegating power to the Federal Government over State gun laws.

 

[Malum Prohibitum]

The reigning federal Supreme Court decision on this issue of whether the Second Amendment applies to the states is U.S. v. Cruikshank.

It is always cited by courts as authority for the proposition that the Second Amendment applies only to Congress and not the states. Want to know a little more about that case?

Man, how intellectually dishonest can one get? Everybody on this site needs to READ U.S. v. Cruikshank so that they can combat this horse manure whenever it comes up! It is a case about nullifying the Fourteenth Amendment so that whites can oppress blacks!

US v. Cruikshank was NOT, strictly speaking, a Second Amendment case. Why, then, is it cited by the anti-gunner judges every time the Second Amendment is proposed in litigation as a bar to state laws restricting the right to keep and bear arms?

Because they are dishonest.

US v. Cruikshank held that NO constitutional rights of black citizens being infringed by the states are subject to review by the federal courts.


A little history. The Colifax massacre was the slaughter of over one hundred black Americans by a white mob. The Supreme Court held that the federal legislation under which the white murderers were indicted was faulty, because Congress could not enforce the Fourteenth Amendment against the states. The Court specifically pointed to the FIRST Amendment as well as the Second (wonder why they never mention that?).

Quote:

The right of the people peaceably to assemble for lawful purposes existed long before the adoption of the Constitution of the United States. In fact, it is, and always has been, one of the attributes of citizenship under a free government... It is found wherever civilization exists. It was not, therefore, a right granted to the people by the Constitution. The government of the United States when established found it in existence, with the obligation on the part of the States to afford it protection...

The first amendment to the Constitution prohibits Congress from abridging "the right of the people to assemble and to petition the government for a redress of grievances." This, like the other amendments proposed and adopted at the same time, was not intended to limit the powers of the State governments in respect to their own citizens, but to operate upon the National government alone...

...For their protection in its enjoyment, therefore, the people must look to the States. The power for that purpose was originally placed there, and it has never been surrendered to the United States.

Of course, looking to the states got these people slaughtered . . .

How anyone could cite this garbage of a case in this day and age is beyond me.



This case stands for the proposition that a state may take away the free speech, religous, and other first amendment rights of its black citizens, in addition to the right to keep and bear arms, and there is nothing Congress can do about it, even if the "deprivation of rights" in question is the massacre of scores of free citizens!

THis case is cited today for the argument that the Second Amendment limits only Congress and not the states. Remember this discussion, and what the case is about, next time you see a citation to this case! Recognize the reality of what it is that is being cited.

Here is a decent summary of the case from guncite.com for those not inclined to read the whole case.

AND the Georgia Supreme Court just cited this case this month for the proposition that the Second Amendment is no limit upon the government of the State of Georgia! No kidding, look here!

Don't tell me Georgia is a gun-friendly state!

 

[hugh damright]

"I should therefore wish to extend this interdiction, and add, as I have stated in the 5th resolution, that no state shall violate the equal right of conscience, freedom of the press, or trial by jury in criminal cases; because it is proper that every government should be disarmed of powers which trench upon those particular rights."

But Madison's proposed amendment to limit the States failed the Senate (as we might expect). Is it your assertion that this proves that the USBOR limits the States? I think it is proof that it does not limit the States, that Madison had such an intent, but it failed.

 

[Rev. DeadCorpse]

The Federal Government, therefore, only legitimately possesses those powers which were delegated to it via the Constitution. One of those powers was NOT to prevent States from enacting gun control laws. Yes, the right to keep and bear arms is referred to as a real existing thing in the Second Amendment, belonging to the people, but the Second Amendment is an amendment to the US Constitution, and the US Constitution is a list of powers delegated to the Federal Government. The Second Amendment does not grant a new power to the Federal Government. It denies to it a power, namely that of passing laws which have the effect of infringing on the right of the people to keep and bear arms. That's it. This is not a delegation of power to the Federal Government to tell the States what kinds of gun related laws they can have, therefore that power does not legitimately exist in the Federal Government.

Interesting paragraph. It illustrates perfectly the current legal fiction and where everything went wrong. This interpretation is complete BS. It is how the Confederacy fell apart.

The Debates in the Several State Conventions on the Adoption of the Federal Constitution Elliot's Debates, Volume 3 Friday, June 27, 1788.

Mr. WYTHE reported, from the committee appointed, such amendments to the proposed Constitution of government for the United States as were by them deemed necessary to be recommended to the consideration of the Congress which shall first assemble under the said Constitution, to be acted upon according to the mode prescribed in the 5th article thereof; and he read the same in his place, and afterwards delivered them in at the clerk's table, where the same were again read, and are asfollows:--

"That there be a declaration or bill of rights asserting, and securing from encroachment, the essential and unalienable rights of the people, in some such manner as the following:--

"1st. That there are certain natural rights, of which men, when they form a social compact, cannot deprive or divest their posterity; among which are the enjoyment of life and liberty, with the means of acquiring, possessing, and protecting property, and pursuing and obtaining happiness and safety.

"2d. That all power is naturally invested in, and consequently de, rived from, the people; that magistrates therefore are their trustees and agents, at all times amenable to them.

"3d. That government ought to be instituted for the common benefit, protection, and security of the people; and that the doctrine of non-resistance against arbitrary power and oppression is absurd, slavish, and destructive to the good and happiness of mankind.

Note: None of the above speaks to "encroachment only by the Federal Government", but is spoken of generally. It was understood that the weaknesses of the former Confederation were not to be repeated with the Federal Constitution and that the new government would be the "Supreme law of the Land". To prevent the abuse of Rights, it was deemed that a minimal list of Rights be added, that having placed them at the highest level of government, they would be common to all US citizens and above infringement as defined.

The problem is, that if the BoR's protections for Rights are not generally "declaratory and restrictive" of all governing bodies operating in the US, then nothing prevents a State from restoring slavery as a legal institution.

 

[The Real Hawkeye]

It was understood that ... the new government would be the "Supreme law of the Land."

Yes, there is a supremacy clause, but it only regards powers delegated exclusively to the Federal Government, all others belonging to the States. You've yet to show that the power to thwart State gun control laws was one of those delegated powers. Your argument, therefore, falls short of your goal.

If you will but read Federalist No. 45, you will gain a better understanding of the division of powers the Founders intended as between the States and the Federal Government. Following is a salient portion.

The powers delegated by the proposed Constitution to the federal government are few and defined. Those which are to remain in the State governments are numerous and indefinite. The former will be exercised principally on external objects, as war, peace, negotiation, and foreign commerce; with which last the power of taxation will, for the most part, be connected. The powers reserved to the several States will extend to all the objects which, in the ordinary course of affairs, concern the lives, liberties, and properties of the people, and the internal order, improvement, and prosperity of the State.

 

[hugh damright]

It was understood that the weaknesses of the former Confederation were not to be repeated with the Federal Constitution and that the new government would be the "Supreme law of the Land". To prevent the abuse of Rights, it was deemed that a minimal list of Rights be added, that having placed them at the highest level of government, they would be common to all US citizens and above infringement as defined.

Where do you fit in the idea of limited federal government? Are you saying that the US Government is supreme over the States in all matters, and that the US is the higher level of government? Because I think that in most matters the States are the supreme and highest level, and that the US is only supreme within the limited jurisdiction which the States delegated.

 

[Rev. DeadCorpse]

Where do you fit in the idea of limited federal government?

The Federal Government is limited to only those things listed as Federal duties in the Constitution. Anything outside of it, like NO Child Left Behind laws, the Real ID Act, McCain-Feingold, Departments of Education, NASA, FAA, FCC, the NFA and GCA laws, are all extra-Constitutional and the FedGov shouldn't be engaging in them. Period. In the areas where Federal power is specificly defined though, yes, it is "surpeme".

However, the BoR is a list of things that are "restrictive and declaratory". They are meant as blanket statements. Previously held as protections for Rights in State constitutions, where they were variously igored or abused, in the new Federal Government the BoR was meant to apply as a list of minimal Rights of all US Citizens regardless of which State the lived in. If States wanted to enact MORE protections for other Rights not defined, then that was up to the People of each State.

No one, not ANY one no matter how much "home rule" a city thinks it has, has a just power to infringe on anything listed in the BoR. The "Congress shall make no law" clause of the First Amendment may be the only limited Amendment as it speaks directly to Congress. No such limitation is placed on any of the other prohibitions.

 

[Juna]

To the OP: Couldn't have said it better myself. I fail to see how they could argue against that, except that the SCOTUS (and judges in general, along with all branches of gov't) has too much power. They shouldn't even be allowed to decide whether or not the II A is valid. That should be off limits, as it's in the supreme law of the land.

 

[The Real Hawkeye]

The Federal Government is limited to only those things listed as Federal duties in the Constitution. Anything outside of it, like NO Child Left Behind laws, the Real ID Act, McCain-Feingold, Departments of Education, NASA, FAA, FCC, the NFA and GCA laws, are all extra-Constitutional and the FedGov shouldn't be engaging in them. Period. In the areas where Federal power is specificly defined though, yes, it is "surpeme".

Ok, I'm with you so far.

However, the BoR is a list of things that are "restrictive and declaratory". They are meant as blanket statements. Previously held as protections for Rights in State constitutions, where they were variously igored or abused, in the new Federal Government the BoR was meant to apply as a list of minimal Rights of all US Citizens regardless of which State the lived in. If States wanted to enact MORE protections for other Rights not defined, then that was up to the People of each State.

No one, not ANY one no matter how much "home rule" a city thinks it has, has a just power to infringe on anything listed in the BoR. The "Congress shall make no law" clause of the First Amendment may be the only limited Amendment as it speaks directly to Congress. No such limitation is placed on any of the other prohibitions.

None is needed, since the Bill of Rights is a list of amendments to the US Constitution. Its legal effect, therefore (unless otherwise specified), is to place limits on the government formed by the US Constitution, i.e., the Federal Government. It has no other legal effect. The reason the limits are placed is NOT because the Federal Government was one of plenary power, with only a few specified limits. Not at all. The reason for the restraints of the Bill of Rights is that the Federal Government, acting under proper authority granted elsewhere, might inadvertently step on some right the Founders wished to protect. For example, some law passed under the Commerce Clause might inadvertently prevent a business enterprise in Pennsylvania from importing Chinese manufactured SKS rifles for sale within that State. The intent of Congress was to regulate trade, but an unforeseen effect was to infringe upon the rights of Pennsylvanians to possess Chinese manufactured SKS rifles, since acquisition is required before possession is possible. The Second Amendment, in that case, would trump the Commerce Clause, and the law would need to be changed or abolished.

The Founders knew full well that the Constitution never authorized the Federal Government to take actions directed at even partially disarming the US civilian population (in the above example, though inadvertent, the partial disarming was with respect only to Chinese SKS rifles). Therefore the power to take actions directed at this aim did not exist at the Federal level to start with. The Second Amendment was not required so as to prohibit Federal actions directed at such. But this amendment is not therefore rendered redundant, because actions of the Federal Government could still inadvertently infringe on our right to keep and bear arms. The Second Amendment is not a delegation of Federal power, but a restriction of Federal power.

 

[XD Fan]

This discussion leaves me baffled. I looked up the fourteenth ammendment on Wikipedia (not scholarly source, I know) in order to reread the wording of section. It is hard for me to imagine anyway of interpreting the following words except that that protect all items in the bill of rights: "No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States" (U.S. Constitution, Amendment 14, Section 1) It seems so obvious to me that the Bill of Rights becomes universal and supreme with the ratification of the 14th. Clearly great legal minds see it differently than I...

I found the following quote in the Wikipedia article:

"At the present, the Supreme Court has held that the due process clause incorporates all of the substantive protections of the First, Fourth, Sixth, and Eighth Amendments and all of the Fifth Amendment other than the requirement that any criminal prosecution must follow a grand jury indictment, but none of the provisions of the Seventh Amendment relating to civil trials."

Can anyone explain this? How can it be judges to apply to some but not all unless those exemptions are explicitly declared in the words of the the 14th? I am truly baffled. This smacks of activist judges, but I may not fully understand the legal issues.

As for the following:

The "Congress shall make no law" clause of the First Amendment may be the only limited Amendment as it speaks directly to Congress. No such limitation is placed on any of the other prohibitions.

I had a Poli Sci professor once explain to me that the language of the ammendments clearly showed that the "Congress shall make no law" phrase applied to all of them. I still don't see the clarity of that point, but apparently many lawyers and judges do and have for many years.

 

[The Real Hawkeye]

It is hard for me to imagine anyway of interpreting the following words except that that protect all items in the bill of rights: "No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States."

It's hard for you because, perhaps, you don't understand that the primary privilege and immunity of citizens of the United States is self government within their States of residence, without the interference of the Federal Government. This is a huge part of the purpose of the US Constitution, i.e., to secure THAT privilege and THAT immunity, i.e., the privilege of self government within our own States, and the immunity from Federal usurpation of powers properly belonging to the States and the people, respectively. If you understand that, you can understand that the Fourteenth Amendment was not intended to turn the great gift of constitutional federalism on its ear.

 

[Rev. DeadCorpse]

None is needed, since the Bill of Rights is a list of amendments to the US Constitution. Its legal effect, therefore (unless otherwise specified), is to place limits on the government formed by the US Constitution, i.e., the Federal Government. It has no other legal effect.

Yeah... except for that whole pesky Art 6 Para 2 clause. "Laws of any State to the Contrary notwithstanding" is pretty much a trump on mere State laws as far as the scope of the new Federal Constitution was concerned.

But thanks for playing...

 

[Rev. DeadCorpse]

It's hard for you because, perhaps, you don't understand that the primary privilege and immunity of citizens of the United States is self government within their States of residence, without the interference of the Federal Government.

It goes further than that. All power, period, comes from the soveriegn individual. No governing body may strip an individual of their Rights save as punishment for a crime. Nor can a person be said to be able to "give up" their unalienable Rights. Not to the Feds, sure as heck not to the State.

And yes, I've got even more quotes from those who WROTE the Constitution that gives the lie to your statements...

As the people of the United States enjoy the great merit of having established a system of Government on the basis of human rights, and of giving it a form without example, which, as they believe, unites the greatest national strength with the best security for public order and individual liberty, they owe to themselves, to their posterity and to the world, a preservation of the system in its purity, its symmetry, and its authenticity.
Supplement to the letter of November 27, 1830, to A. Stevenson (Madison, 1865, IV, page 138)

"It is to secure our rights that we resort to government at all." --Thomas Jefferson to Francois D'Ivernois, 1795. FE 7:4

To suppose that Jefferson et al meant to "secure" those Rights in the Federal BoR and allow petty despots at the State level to trample on those same Rights is ludacris.

"It had become an universal and almost uncontroverted position in the several States, that the purposes of society do not require a surrender of all our rights to our ordinary governors; that there are certain portions of right not necessary to enable them to carry on an effective government, and which experience has nevertheless proved they will be constantly encroaching on, if submitted to them; that there are also certain fences which experience has proved peculiarly efficacious against wrong, and rarely obstructive of right, which yet the governing powers have ever shown a disposition to weaken and remove. Of the first kind, for instance, is freedom of religion; of the second, trial by jury, habeas corpus laws, free presses." --Thomas Jefferson to Noah Webster, 1790. ME 8:112

 

[The Real Hawkeye]

Yeah... except for that whole pesky Art 6 Para 2 clause. "Laws of any State to the Contrary notwithstanding" is pretty much a trump on mere State laws as far as the scope of the new Federal Constitution was concerned.

Rev, this argument has already been disposed of. You are referring to the Supremacy Clause. Just scroll up and you'll read where I addressed it. But thanks for playing.

 

[Rev. DeadCorpse]

Rev, this argument has already been disposed of. You are referring to the Supremacy Clause. Just scroll up and you'll read where I addressed it.

I read where you tried, and pointed out where you failed. Sorry about that.

 

[The Real Hawkeye]

To suppose that Jefferson et al meant to "secure" those Rights in the Federal BoR and allow petty despots at the State level to trample on those same Rights is ludacris.

It is ludicrous, indeed. But who advocated that position? States are required, by their membership in the federal government, to provide their people with a republican form of government. A petty despotism would be a violation of this requirement, would it not?

By the way, what was Honest Abe's administration if not a petty despotism?

 

[The Real Hawkeye]

I read where you tried, and pointed out where you failed. Sorry about that.

Interesting debate style you have there.

 

[Rev. DeadCorpse]

States are required, by their membership in the federal government, to provide their people with a republican form of government.

You acknowledge that, but then miss the part where the Constitution establishes the Republic and then limits any government body within said Republic. Be it the Federal government or your city council.

"I suspect that the doctrine, that small States alone are fitted to be republics, will be exploded by experience, with some other brilliant fallacies accredited by Montesquieu and other political writers. Perhaps it will be found that to obtain a just republic (and it is to secure our just rights that we resort to government at all) it must be so extensive as that local egoisms may never reach its greater part; that on every particular question a majority may be found in its councils free from particular interests and giving, therefore, a uniform prevalence to the principles of justice. The smaller the societies, the more violent and more convulsive their schisms." --Thomas Jefferson to Francois d'Ivernois, 1795. ME 9:299

In other words, to restrain the petty tyrants at State level that caused so much havok on the Rights of Individuals during the Confederacy, we needed a common set of protections to keep government abuses in check.

I would have preffered it if they had kept the FedGov weak, and just revised the Articles of Confederation with a Bill of Rights backed up with the death penalty for violators. However, I wasn't around then to be consulted.

 

[Jim March]

XD Fan: read my long post at:

http://thehighroad.org/showthread.php?t=237831

Short form: the US Supremes came up with the idea of "selective incorporation" and have been giving back the rights they stole between 1868-1905 piece at a time after 1909 when they first realized how badly they'd screwed up.

 

[Rev. DeadCorpse]

Interesting debate style you have there.

Quite.

What is a Right? It is any freedom of action an individual may engage in that does not interfere with the equal Rights of action of others.

"No man has a natural right to commit aggression on the equal rights of another, and this is all from which the laws ought to restrain him." --Thomas Jefferson to Francis Gilmer, 1816. ME 15:24

To suppose that a mere State level, ie; subordinate government within the Republic, could so easily over-ride any protections for their citizens basic human Rights is utterly contrary to everything the Founders debated and ratified.

 

[The Real Hawkeye]

You acknowledge that, but then miss the part where the Constitution establishes the Republic and then limits any government body within said Republic. Be it the Federal government or your city council.

I believe that you are wrongly characterizing my positions on this matter, intentionally or otherwise. I don't suggest, never have, that the Constitution didn't form a type of Republic, but it was one of limited federal powers, most things being handled at the State level, within the various State republics. This is known as federalism. I am happy also to acknowledge the reality of the Supremacy Clause, so long as you understand its intended limits, i.e., it regards only those powers delegated to the federal government by the States via the US Constitution. In all else, the States are supreme.

 

[Malum Prohibitum]

"At the present, the Supreme Court has held that the due process clause incorporates all of the substantive protections of the First, Fourth, Sixth, and Eighth Amendments and all of the Fifth Amendment other than the requirement that any criminal prosecution must follow a grand jury indictment, but none of the provisions of the Seventh Amendment relating to civil trials."

Can anyone explain this? How can it be judges to apply to some but not all unless those exemptions are explicitly declared in the words of the the 14th? I am truly baffled. This smacks of activist judges, but I may not fully understand the legal issues.

They only incorporate the ones that "they" find to be fundamental, which means sodomy and chopping up babies, which is exactly what the framers of the 14th Amendment had in mind at the time.