vis-à-vis
Member
Can the original 10 ammendments to the Constitution be ammended or are they fully secure and inalienable aside from modern political hermeneutical gymnastics which assail them daily?
Can the Bill of Rights be Amended?
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BryanP
Member
From a legal standpoint there is nothing that would keep us from amending the constitution to modify or remove any or all of the original 10 amendments. I doubt it could ever get through the process though.
Besides, there's no need as long as we have the Interstate Commerce Clause to wave like a magic wand.
Besides, there's no need as long as we have the Interstate Commerce Clause to wave like a magic wand.
vis-à-vis
Member
What do you mean?
BTW, I hate that there is no quote button available. Vbulletin software is excellent and to date the only forums I enjoy visiting use it.
The Interstate Commerce Clause says that Congress has the power to regulate interstate commerce, since the States can't do it themselves (this was evident during the Articles of Confederation). The problem is that pretty much everything has some effect on interstate commerce and so Congress has used this justification to butt into whatever it wants.
For example, it had been claimed that Federal gun regulations didn't apply to someone who made their own machine gun, as long as they don't sell it or even transport it across state lines. The Federal Gov't reasoned that, if you build your own, it is conceivably one less machine gun that will be bought on the national market and that therefore has an effect on interstate commerce.
It's a sneaky way of getting around the 10th Amendment.
For example, it had been claimed that Federal gun regulations didn't apply to someone who made their own machine gun, as long as they don't sell it or even transport it across state lines. The Federal Gov't reasoned that, if you build your own, it is conceivably one less machine gun that will be bought on the national market and that therefore has an effect on interstate commerce.
It's a sneaky way of getting around the 10th Amendment.
1911 guy
Member
Interstate commerce and ammending the BOR.
First the interstate commerce clause. The supreme court ruled that you have no right to do anything that interferes with interstate commerce. Many things that have absolutely nothing to do with interstate commerce have been found to be illegal under this clause because it might, one day, in a parallel universe, interfere with interstate commerce. To toss out an example, a guy growing and consuming pot in his own back yard will have violation of the clause tossed on top of any other charges thrown at him, even though he never bought or sold any, and despite the fact that no interstate commerce in pot exists. It's a catch-all to put federal charges on anyone who gets on the gov't bad side.
As far as ammending the BOR, it's possible under the same guidelines as the rest of the Constitution, but why would you want that? The problem isn't with the BOR, the problem lies squarely on the shoulders of those willfully ignorant enough to misinterperet what it says in plain english. They are, in principle, secured by divine right from God to his creation (Founders interpretation, don't start in on me about seperation of church and state) and inalienable. The linguistic contortions are the result of a power hungry government seeking to consolidate their hold on the population by denying us the rights spelled out in the document they claim to support.
First the interstate commerce clause. The supreme court ruled that you have no right to do anything that interferes with interstate commerce. Many things that have absolutely nothing to do with interstate commerce have been found to be illegal under this clause because it might, one day, in a parallel universe, interfere with interstate commerce. To toss out an example, a guy growing and consuming pot in his own back yard will have violation of the clause tossed on top of any other charges thrown at him, even though he never bought or sold any, and despite the fact that no interstate commerce in pot exists. It's a catch-all to put federal charges on anyone who gets on the gov't bad side.
As far as ammending the BOR, it's possible under the same guidelines as the rest of the Constitution, but why would you want that? The problem isn't with the BOR, the problem lies squarely on the shoulders of those willfully ignorant enough to misinterperet what it says in plain english. They are, in principle, secured by divine right from God to his creation (Founders interpretation, don't start in on me about seperation of church and state) and inalienable. The linguistic contortions are the result of a power hungry government seeking to consolidate their hold on the population by denying us the rights spelled out in the document they claim to support.
vis-à-vis
Member
Why doesn't their logic follow? Isn't it technically true?
1911 guy
Member
Guilty until proven innocent?
They presume violation of the law with no evidence. This is contrary to the Constitution, therefore is a faulty argument. That would be like prohibiting you from buying cigarrettes or alcohol because you MIGHT give them to a minor. Or jailing you because you MIGHT commit a crime.
You must violate a law to be guilty. The governments answer has been to presume guilt of a catch-all law.
They presume violation of the law with no evidence. This is contrary to the Constitution, therefore is a faulty argument. That would be like prohibiting you from buying cigarrettes or alcohol because you MIGHT give them to a minor. Or jailing you because you MIGHT commit a crime.
You must violate a law to be guilty. The governments answer has been to presume guilt of a catch-all law.
Yes, the amendments can be modified, amended, etc. (see Art V for 'how' - proposed by congress, ratified by 3/4 state's legislatures or conventions)
BUT the rights they articulate and protect (and some they don't) from encroachment can NOT be rescinded, because they derive from natural rights, and so are inalienable, inherent, and NOT dependent on any social contract. (see the 5th amendment on ways a right can be disabled)
The 2nd amendment was just that - AN AMENDMENT - not only does it #1)articulate and protect a natural right, it is a change to the Constitution, in this case one which #2) overides ANYTHING previous in the Constitution that would infringe on the right to keep and bear arms...and especially a clause the does not explicitly give Congress that power...the State commerce clause included.
The government having to rely on its commerce powers to regulate arms - specifically their manufacture, possession or their use, is obviously an encroachment into the people's right to keep and bear them. When 3/4 of the State conventions ratified the 10 out of the 12 proposed Amendments, they agreed that what is known as the Bill of Rights would amend, and become part of, the law of the land...PERIOD! (until subsequently amended)
BUT the rights they articulate and protect (and some they don't) from encroachment can NOT be rescinded, because they derive from natural rights, and so are inalienable, inherent, and NOT dependent on any social contract. (see the 5th amendment on ways a right can be disabled)
The 2nd amendment was just that - AN AMENDMENT - not only does it #1)articulate and protect a natural right, it is a change to the Constitution, in this case one which #2) overides ANYTHING previous in the Constitution that would infringe on the right to keep and bear arms...and especially a clause the does not explicitly give Congress that power...the State commerce clause included.
The government having to rely on its commerce powers to regulate arms - specifically their manufacture, possession or their use, is obviously an encroachment into the people's right to keep and bear them. When 3/4 of the State conventions ratified the 10 out of the 12 proposed Amendments, they agreed that what is known as the Bill of Rights would amend, and become part of, the law of the land...PERIOD! (until subsequently amended)
vis-à-vis
Member
I agree with you about no crime no punishment. However the idea is this (as I understand it from the above example):
Premise 1: Any goods produced impact national economy
Premise 2: A manufactured machine gun (even for private use) is a good.
Premise 3: There are already Machine Guns on the Market
Therefore: If one is manufactured then someone has impacted the national economy, which falls under the clause.
I do not necessiarily see a presumption of guilt, but rather Caesar defining his law and making a certain action a crime.
I'm playing Devil's Advocate a bit with you. It helps me understand.
vis-à-vis
Member
Good post, informative. This helps me view the Commerce Clause better. Ammendment #2 overrides any previous statement made in the Constitution which would override the ammendment.
So we are back to either interpretation or Constitutional Ammendment. If the anti-Gun folk had jewels of substance they ought to just propose to ammend the clause to get rid of the headache of interpretation.
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1911 guy
Member
Huh?
You missed the whole point of my post. The government can indeed say that it must protect interstate commerce. What the government cannot do (but they do anyway) is prohibit you from doing things which do NOT interfere with interstate commerce.
If I buy something from you and we live in seperate states, I am required to pay sales tax on that item, by law. Following the example of misuse of the clause, my state government would prevent me from buying from you because I MIGHT not pay tax. Expand the principle to a fed. level and you get the idea.
One of your assumptions is false, or could be. Number two and number three are true, they are stating facts. Automatic weapons exist and they are goods available for trade.
Number one assumes they will be bought and sold between state lines. If I were to buy and keep a weapon made in Ohio, it would have no impact on interstate trade, no more than buying a pack of gum made here. If I were to sell it to an out of state resident, then it would fall under the clause. Again, assumption of guilt without being guilty.
You missed the whole point of my post. The government can indeed say that it must protect interstate commerce. What the government cannot do (but they do anyway) is prohibit you from doing things which do NOT interfere with interstate commerce.
If I buy something from you and we live in seperate states, I am required to pay sales tax on that item, by law. Following the example of misuse of the clause, my state government would prevent me from buying from you because I MIGHT not pay tax. Expand the principle to a fed. level and you get the idea.
One of your assumptions is false, or could be. Number two and number three are true, they are stating facts. Automatic weapons exist and they are goods available for trade.
Number one assumes they will be bought and sold between state lines. If I were to buy and keep a weapon made in Ohio, it would have no impact on interstate trade, no more than buying a pack of gum made here. If I were to sell it to an out of state resident, then it would fall under the clause. Again, assumption of guilt without being guilty.
vis-à-vis
Member
Premise one is the only one as to what I considered up for debate. However the point could be made that Any goods produced impact the national economy because produced goods add to the overall stock in the country as a whole. Therefore if one state made goods and retained them for instate production, ownership, or trade only, then they impact the national economy by denying states access to those goods. But I'm not sure on that and just think that argument could be made (especially since I thought of it
).Tell what you think of the above statement though.
I think you're off a little, 1911 Guy. It's not that you could use it to engage in interstate commerce, it's that it does indeed affect interstate commerce, regardless of what you do with it.
If I make and consume my own alcohol, then that's one less unit of alcohol that I would have purchased otherwise. That reduces interstate commerce, which is an effect. You don't have to actually engage in interstate commerce to affect it.
And yes, vis-a-vis, their logic does follow. I think they're violating the intent of the clause, however.
If I make and consume my own alcohol, then that's one less unit of alcohol that I would have purchased otherwise. That reduces interstate commerce, which is an effect. You don't have to actually engage in interstate commerce to affect it.
And yes, vis-a-vis, their logic does follow. I think they're violating the intent of the clause, however.
As far as I am concerned the Bill of Rights once ratified became an inseparable part of the constitution. Any part of the constitution can be amended through the process described in it.
I don't know why people keep referring to the Bill of Rights as if it is a separate document. Once it was ratified it was incorporated and made a part of the whole constitution - or am I wrong? If so, please explain. TIA
I don't know why people keep referring to the Bill of Rights as if it is a separate document. Once it was ratified it was incorporated and made a part of the whole constitution - or am I wrong? If so, please explain. TIA
1911 guy
Member
"Home grown" versus purchased.
Making your own firearm is illegal, unless you get the proper permit and pay the TAX. Making and consuming your own alcohol is in fact quite legal, as long as you pay the TAX. Buying a firearm from an in-state company ensures that TAX will be paid, therefore has no adverse impact on the economy. Selling a weapon to an out of state party is illegal only because the receiving party can dodge the TAX. Notice I said CAN, not WILL. That's the true crux of the matter. As long as the beaurocrats get the money, they could care less what you do.
Manufacturing goods and making them available to only residents of the manufacturers state would be very legal, according to the *interstate* commerce clause, which has no bearing on goods not actually crossing state lines. If a private company wanted to sell to outside parties and the state prohibited them, that would affect interstate commerce. If the manufacturer had no such desire, there would be no effect.
Making your own firearm is illegal, unless you get the proper permit and pay the TAX. Making and consuming your own alcohol is in fact quite legal, as long as you pay the TAX. Buying a firearm from an in-state company ensures that TAX will be paid, therefore has no adverse impact on the economy. Selling a weapon to an out of state party is illegal only because the receiving party can dodge the TAX. Notice I said CAN, not WILL. That's the true crux of the matter. As long as the beaurocrats get the money, they could care less what you do.
Manufacturing goods and making them available to only residents of the manufacturers state would be very legal, according to the *interstate* commerce clause, which has no bearing on goods not actually crossing state lines. If a private company wanted to sell to outside parties and the state prohibited them, that would affect interstate commerce. If the manufacturer had no such desire, there would be no effect.
geekWithA.45
Moderator Emeritus
2 thoughts:
Commerce Clause:
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The case that ripped open that can of worms was the 1942 Wickard V Filburn, http://en.wikipedia.org/wiki/Wickard_v._Filburn.
Say, "Thanks FDR! Ya did a great job w/ the supreme court!" (By the time FDR was done, 8 out of 9 justices were his picks)
The Bill of Rights:
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I am of the school of thought that asserts that the Bill of Rights was a condition of ratification of the rest of the document, and therefore intrinsic and inherent to it. Overtly mucking with it would cast the validity of the entire constition into doubt. Randy Barnett goes into a lot of detail not so much on that topic per se, but on the requirements a written constitution must satisfy in order to create a duty of conscience to obey it. Chief among those requirements is that the natural rights of the citizens, even rights unpopular with the majority, must be protected.
Commerce Clause:
------------------
The case that ripped open that can of worms was the 1942 Wickard V Filburn, http://en.wikipedia.org/wiki/Wickard_v._Filburn.
Say, "Thanks FDR! Ya did a great job w/ the supreme court!" (By the time FDR was done, 8 out of 9 justices were his picks)
The Bill of Rights:
-----------------
I am of the school of thought that asserts that the Bill of Rights was a condition of ratification of the rest of the document, and therefore intrinsic and inherent to it. Overtly mucking with it would cast the validity of the entire constition into doubt. Randy Barnett goes into a lot of detail not so much on that topic per se, but on the requirements a written constitution must satisfy in order to create a duty of conscience to obey it. Chief among those requirements is that the natural rights of the citizens, even rights unpopular with the majority, must be protected.
geekWithA.45
Moderator Emeritus
Er, no. Making an ordinary firearm is not illegal, in most states, anyway. You just can't sell or give it to anyone.
Kael
Member
beat me to the punch.
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DKSuddeth
Member
to set the record completely straight on this one, in the Raich case the USSC majority opinion, once again using 'stare decisis', said that congress does not have to prove that intrastate activities affect interstate commerce, just claim that it does. They also said that even though a person may grow pot on his own land, using his own resources, having purchased no other items to do so via interstate or intrastate commerce, still affects interstate commerce because the 'war on drugs' is of national concern. The USSC also decided that they'd give congress and themselves even MORE power over the people by adding the 'necessary and proper' clause in its opinion further expanding the governments power to regulate anything and everything it deems necessary.
I'd dearly love to see a bench with balls and integrity to declare 'stare decisis' a load of crap.
1911 guy
Member
Read the entire sentence, please.
I stated that making your own firearm WITHOUT THE PROPER NOTE FROM NANNY GOV'T was illegal. After acquiring the permit, it is entirely legal, just as making your own booze is.
If I am wrong, please correct me.
I stated that making your own firearm WITHOUT THE PROPER NOTE FROM NANNY GOV'T was illegal. After acquiring the permit, it is entirely legal, just as making your own booze is.
If I am wrong, please correct me.
Kael
Member
ConstitutionCowboy
member
Know This:
Amendments to the Constitution can all be amended. But, more important, the amendments supersede anything in the Constitution. That is why we have amendments - to supersede that which is in the Constitution. That would include the Commerce Clause. Congress has been forbidden to infringe the RKBA by the Second Amendment. The Commerce Clause cannot be constitutionally used to exercise a power that has been specifically prohibited. Congress may regulate commerce, but not where it infringes upon the right to keep and bear arms.
Woody
A law that says you cannot fire your gun in the middle of downtown unless in self defense is not unconstitutional. Laws that prohibit brandishing except in self defense or handling your gun in a threatening or unsafe manner would not be unconstitutional. Laws can be written that govern some of the uses of guns. No law can be written that infringes upon buying, keeping, storing, carrying, limiting caliber, limiting capacity, limiting quantity, limiting action, or any other limit that would infringe upon the keeping or bearing of arms. That is the truth and simple reality of the limits placed upon government by the Second Amendment to the Constitution. B.E.Wood
Amendments to the Constitution can all be amended. But, more important, the amendments supersede anything in the Constitution. That is why we have amendments - to supersede that which is in the Constitution. That would include the Commerce Clause. Congress has been forbidden to infringe the RKBA by the Second Amendment. The Commerce Clause cannot be constitutionally used to exercise a power that has been specifically prohibited. Congress may regulate commerce, but not where it infringes upon the right to keep and bear arms.
Woody
A law that says you cannot fire your gun in the middle of downtown unless in self defense is not unconstitutional. Laws that prohibit brandishing except in self defense or handling your gun in a threatening or unsafe manner would not be unconstitutional. Laws can be written that govern some of the uses of guns. No law can be written that infringes upon buying, keeping, storing, carrying, limiting caliber, limiting capacity, limiting quantity, limiting action, or any other limit that would infringe upon the keeping or bearing of arms. That is the truth and simple reality of the limits placed upon government by the Second Amendment to the Constitution. B.E.Wood
johnster999
Member
There is no need to amend them when the government has sufficient power to simply violate them at will.
RNB65
Member
The first 10 amendments (aka, the Bill of Rights) are no different from the 27 other amendments that follow it and can be amended at any time. Will that ever happen? No.
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