Constitutional/Heller Question

[ConstitutionCowboy]

:
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]

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]

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

 

[gc70]

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]

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]

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.

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

 

[ConstitutionCowboy]

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

 

[gc70]

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

Originally posted by RealGun
Can you name a case that tested that point?

QUILICI v. VILLAGE OF MORTON GROVE (695 F.2d 261 (7th Cir. 1982))

In its opinion, Quilici v. Village of Morton Grove, 532 F.Supp. 1169 (N.D.Ill. 1981), the district court set forth several reasons for upholding the handgun ban's validity under the state and federal constitutions.
...
Second, relying on Presser v. Illinois, 116 U.S. 252, 6 S.Ct. 580, 29 L.Ed. 615 (1886), the court concluded that the second amendment's guarantee of the right to bear arms has not been incorporated into the fourteenth amendment and, therefore, is inapplicable to Morton Grove.
...
Since we hold that the second amendment does not apply to the states, we need not consider the scope of its guarantee of the right to bear arms.

There are differences between the way we think 2A should be interpreted and applied and the way the Federal courts have actually interpreted and applied 2A. It is valuable to understand those differences. Ignoring reality and shouting out our beliefs to drown out rational discussion is not constructive.