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Are We Doing This Wrong?

Discussion in 'Activism Discussion and Planning' started by Telemachus, Nov 14, 2016.

  1. Telemachus

    Telemachus Member

    Joined:
    Mar 1, 2015
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    Location:
    Tennessee
    I was watching youtube when I had an epiphany. What if we have been going about RKBA all the wrong way? What if we should be seeking RKBA from the 9th amendment instead of the second.

    "The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people." -9A

    Maybe, the we should argue that the individual right should be enshrined here, and the 2A is an allowance to for a militia to be formed of members equipped with weapons protected under 9A. Under this thought, the upcoming Trump administration would be and excellent time to transition. Prop 63 in California could be challenged under this argument.

    Not only would this strategy completely blindside the left, it could also allow for the utter destruction of the NFA and GCA.

    ...Just a thought...
     
    ms6852 likes this.
  2. Carl N. Brown

    Carl N. Brown Member

    Joined:
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    Location:
    Kingsport Tennessee
    Levy's History of the United States Constitution (1986) has an article on the Ninth Amendment. (I gather it ought to be called the ignored amendment.)
    The 9A "lay dormant throughout most of our history". To summarize: the Supreme Court ruled in Barron v Baltimore 1833 that the Bill of Rights was a limitation on the United States, not on the states. The assumption was state government would protect its people and the only souce of oppression of rights would be the federal government. The states had broad police powers to regulate welfare, health, education, morality andbusiness; SCOTUS review of state legislation was limited to how it affected interstate commerce.
    13A and 14A passed after the Civil War were intended to guarantee iindividual rights for former slaves (and everyone else) against state infringement. SCOTUS in the Slaughterhouse Cases 1873 moved to reassert the principle established in Barron v Baltimore 1833 that the Bill of Rights protects individual rights from the federal government, not the states. Extention of protection of individual rights against oppression by the states by 13A and 14A were very narrowly interpreted by SCOTUS. Essentially post-Civil War SCOTUS enabled the rise of Jim Crow with Slaughterhouse 1873, Cruikshank 1876 and the Civil Rights Cases 1883.
    The 1930s and 1940s began to see interpretation of the 14A to incorporate enumerated rights of the Bill of Rights through the due process of clause of the 14A and by the end of the 1960s the 1A, 4A, 5A, 6A and 8A were made binding on the states.
    9A was cited maybe in one major SCOTUS case. In Griswold v Connecticut 1965, Scotus struck down a Connecticut law that outlawed contraceptives; the goal of the state with that law was to discourage sex outside marriage by banning birth control to everyone (Griswold's crime was discussing contraception with a married couple). Justice Douglas' opinion was to find an unenumerated right to marital privacy. Three of the nine cited the 9A as protecting unenumerated rights. The majority preferred to find the unenumerated right within "penumbras, formed by emanations" from enumerated rights (1A, 3A, 4A, 5A) rather than rely on the untested 9A.

    I would argue that the individual right to keep and bear arms is specifically enumerated and protected in the operant clause of the 2A ("the right of the people to keep and bear arms shall not be infringed") from the beginning, and that the miitia clause ("A well regulated militia being necessary to the security of a free state") is an example not a limitation of reasons to protect that right.

    First, Heller and McDonald are based on the interpretation of the militia clause as an 18th century example of citing a reason important to the government to not infringe "the right of the people to keep and bear arms". In times of national emergency, how do you raise a voluntary force (militia) from a people with no familiarity with use of arms? But the militia example is a reason. not the only reason, to preserve RKBA.
    Second, to shift protection of individual RKBA from the 2A itself to the untested 9A would be abandoning court precedent on 2A in Heller '08 and McDonald '10 for a relatively untested interpretation of 9A.
     
  3. Ohio Gun Guy

    Ohio Gun Guy Member

    Joined:
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    Central Ohio
    That is why the Federal Bill of Rights is echo'ed in most (If not all) State's Constitutions. In Ohio's State Constitution, (For the purposes of this forum).... So Neither the Federal or the State can "Infringe" on these rights. The view of the Country at it's founding was a much weaker Federal Government, we were a collection of "States".... The 14th Amendment (Section 1 below), made us "US Citizens" as a hedge against what a state may do to it's Citizens (Slavery), guaranteeing the rights of "US Citizens" no matter which State they reside. So I think we have two levels of protections, First - The Federal, Second the State.

    I.04 Bearing arms; standing armies; military powers (1851)


    The people have the right to bear arms for their defense and security; but standing armies, in time of peace, are dangerous to liberty, and shall not be kept up; and the military shall be in strict subordination to the civil power.

    https://www.legislature.ohio.gov/laws/ohio-constitution/section?const=1.04

    Amendment XIV
    Section 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.
     

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