Constitutionality of State/Local Gun Laws.

[The Real Hawkeye]

No, TRH. Neither RealGun nor I claimed that government was the source of rights. You have a unique knack for misunderstanding or misrepresenting.

I made it a point to put several very pointed questions to you in the other thread, and you responded in the negative when asked, for example, if the Jews of the Holocaust had a right to life. Your reason for saying no, as I recall, was that the German Government did not recognize that as their right. Case closed.

Both RealGun and I argued that social convention and social practices were the source of the kind of rights we'v been discussing -- as I stated in the paragraph to which you responded, above.

Rights, of the Constitutional nature, which are powers that can be enforced if ignored, are social conventions -- supported by social contract.

As I stated previously, you are using the word "right" here to refer to a government granted privilege. Governments cannot grant rights.

Government can (but need not) be the source of those protected rights and their enforcement, but small groups of people, without forming governments, can recognize, protect, and enforce rights, too.

See above.

As we both know, that doesn't mean that government WILL enforce them -- as 100+ years of slavery in the US showed.

As I said earlier, you continue to confuse the NATURAL RIGHTS of political philosphy, with the statutory/government-based rights of the U.S. Constitution.

See above.

Further, a discussion about the SOURCE of rights is not a discussion of the FORM of government -- that seems to be another source of confusion for you, as well.

I explained this relationship in the previous post. No need to restate it here.

You can arguably have the same rights in a constituitonal monarchy as you have in a constitutional republic.

Indeed, you necessarily have the same rights wherever you go in the world.

You could have them, with enlightened leadership, in any form of government. Unlikely, but possible. Rights and forms of government are independent issues.

Although it is true that "rights and forms of government are independent issues" (although this is an interesting new admission for you), the issue of the origin, i.e., the source of, rights and the topic of government are in fact very much interrelated, as demonstrated in my previous post.

P.S. I felt it necessary to respond in this thread to your characteristic mischaracterizations of my positions, but I suggest that, rather than hijack this thread (which is about a new topic), you resurrect the old thread which concerned the topic you seem intent on discussing here.

 

[Walt Sherrill]

THR Wrote:

P.S. I felt it necessary to respond in this thread to your characteristic mischaracterizations of my positions, but I suggest that, rather than hijack this thread (which is about a new topic), you resurrect the old thread which concerned the topic you seem intent on discussing here.

Funny thing: you always claim folks are mischaracterizing your positions, but you never give examples. (When I address your points, I give examples, and specific rebuttals. You just make claims.)

You mischaracterized my statement about the Rights of the Jews -- by showing only HALF of the statement, and omitting the part that said, in effect, "if they really had rights, they could not have been killed without punishment." They were, and their killers were punished only after they lost a war. Had they won that war...

I don't want to hijack the discussion. I simply disliked your claim that you were single-handedly fighting off RealGun and I in a debate over our form of government when the form of government wasn't the subject. All of our discussions have had to do with the nature of rights. Nothing else. You say I should resurrect the discussion, but out of the other side of your mouth you've told me, time and again, that you don't want to discuss it further.

The discussion here is something different: it IS about the form and function of government. Its not about rights. The discussion here has been whether the amended U.S. Constitution and subsequent federal statutory law should control the several states. That, as several have noted, is not a simple question with a simple answer. I'm not sure I have an answer.

But I'm increasingly sure that the powers of the various states are being diminished, while the power of the federal government is increasing -- if only because the states are so intent upon getting money from the federal government, and the federal government gives money ONLY with strings attached. Money seems to be the corrupting force. The only reason the federal government doesn't try to usurp more power, I fear, is because they don't want to have to worry about paying the associated bills.

While you and I disagree on the nature of Constitutional RIGHTS, I think we agree and fear the increasing power of the Supreme Court -- and, unhappily -- the increasing power of the Executive Branch. I suspect I was just as upset as you by the recent Kelo vs. New London decision, and I'm not too pleased by the Patriot Act -- and steps to continue it without modification. But rather than fussing about the Supremes and Excecutive branch, why isn't someone screaming at CONGRESS!!They've got us into this fine mess, too!!

I would argue, by the way, that some actions of the Supreme Court seen here as "corruption" are not necessarily as "UnConstitutional," as they seem; the Supreme Court's role is to administer the Law of the Land based on the the Constitution *AND* upon the practices of common law and equity. Says so in the Constitution: "Clause 1: The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States..."

The term "in Law and Equity" has special meaning to Constitutional Lawyers and scholars. As I understand it, it means the Supreme Court is expected to follow the practices of Common Law, which can include a healthy respect for precedent (which is critical to very nature of Common Law).

When precedent and the Constitution are at odds, it isn't slam dunk to say that a simple reading of the Constitution means "X" and that a simple reading trumps Common Law. Most of us here probably agree that it should, but many legal scholars may disagree.

That was certainly the case in Kelo decision: precedent overrode what most of us felt was a basic Constitutional Right. I don't agree with the SCOTUS decision, but understand how they came about it. They were using Common Law practices as their guide. (I'm not defending the decision; I don't like it either.)

The Equal Protection Clause of the XIV Amendment is probably the next battle ground -- and the next thing to be tested. If one state (like Conn.) can allow government seizure of property, are not those citizens (whose property was seized and sold) being denied rights available to others? I'm waiting for THAT lawsuit. That may be where the next 2nd Amendment fight is undertaken.

 

[The Real Hawkeye]

Walt, although the Supreme Court's judicial power extends to all cases in law and equity, this does not mean that they are at liberty to disregard the law or the facts. Read further and you will see that the Supreme Court's appellate jurisdiction is over law and fact. Equity power means the power to make things right, but not apart from the law. Read the rest of the sentence that you started to quote, and you will see that.

 

[The Real Hawkeye]

Once again, I feel that, in fairness, I cannot let your false statements go unanswered

Funny thing: you always claim folks are mischaracterizing your positions,

Mischaracterizing your opponent's arguments is an all too common ploy amongst those who are on the wrong end of a good one. I believe in calling a spade a spade. Your strategy is also called "erecting a straw man." It's so common that it has a name, so don't be surprised that I've occasionally called others on it too.

but you never give examples.

They are so obvious that a child could see them, but just in case, I clearly identified what I was referring too each and every time, except perhaps near the end of our exchanges, when it became obvious that even you couldn't believe that you were fairly and accurately characterizing my positions.

 

[RealGun]

The 14th Amendment means what it says, unless you don't want it to. If the federal government can't infringe upon the RKBA (among the privileges and immunities of being a citizen of the US), States can't either. What's confusing is that the federal government does indeed infringe upon the RKBA, and the States apparently know quite well that the Supreme Court will not address the matter or claim jurisdiction.

 

[The Real Hawkeye]

Walt, did you forget about this recent thread http://www.thehighroad.org/showthread.php?t=147817&page=8&pp=25? In the last few pages of it, it seems to me that we (you, myself and Realgun) were having it out pretty good about aspects of our system of government. You said it never happened. Just thought I'd set the record straight.

Naturally, I was being hyperbolic when I said that I was "single handedly defending our system of government" from you two, but we are all adults here. A little hyperbole for fun is allowed from time to time. Adults can see it for what it is, and not take offense (maybe even have a little chuckle over it, as intended). One hopes so, anyway.

 

[The Real Hawkeye]

The 14th Amendment means what it says, unless you don't want it to. If the federal government can't infringe upon the RKBA (among the privileges and immunities of being a citizen of the US), States can't either. What's confusing is that the federal government does indeed infringe upon the RKBA, and the States apparently know quite well that the Supreme Court will not address the matter or claim jurisdiction.

Realgun, if the Fourteenth Amendment is so clear to you, please break it down into its component parts and explain to us, in detail, what it so clearly means. Please use references to specific language in the Amendment and in the remainder of the Constitution, as necessary (the so-called "incorporated" portions). I am eager to see this.

 

[Walt Sherrill]

I read back through it, THR. It was about the nature of rights, not the FORM of government.

 

[RealGun]

Realgun, if the Fourteenth Amendment is so clear to you, please break it down into its component parts and explain to us, in detail, what it so clearly means.

It is not up to you to make rules of engagement, disallowing my comments unless they meet your conditions, since the discussion does not revolve around you. In this case, I would simply refer you to pro RKBA books and articles that address the 14th Amendment far better than I could second hand. One you might try is Dr. Halbrook's "The Right To Keep and Bear Arms under the Second and Fourteenth Amendments: The Framers' Intent and Supreme Court Jurisprudence".

See http://www.guncite.com/journals/gun_control_saf-hal.html

Dr. Cottrol also included it in his Gun Control and the Constitution.

 

[RealGun]

"single handedly defending our system of government" from you two - The Real Hawkeye

I am trying to decide whether to be offended. First of all. you don't define our system of government. You are to be commended for being studied on the subject, but I am not necessarily impressed with what you do with it.

I would draw a distinction between what our government should be and what it has become. I don't recall ever criticizing the underlying plan but am also not naive about the compromises that needed to be made to get the original States to agree on a Constitution.

I am extremely critical of the Courts and of legislatures, but only to the extent that they undermine the Framers' intent or abuse State powers.

Let's get this straight. You are not defending "our system of government" from RealGun.

I would also ask that Walt mention my name only in a specific reference to prior discussion. This is not Walt and RealGun versus The Real Hawkeye, although neither of us appear to appreciate puffery.

 

[Walt Sherrill]

I would also ask that Walt mention my name only in a specific reference to prior discussion. This is not Walt and RealGun versus The Real Hawkeye, although neither of us appear to appreciate puffery.

Sorry. My apologies for appearing to conflate our positions; that really wasn't my intent. I'll take extra care in that regard, in the future -- if it comes up again.

I'm quite sensitive to the fact that you and I came into these discussion from different starting points and by different paths.

Our main point of agreement seems to be that we disagree with TRH on a couple of key issues (but not necessarily for the same reasons).

 

[The Real Hawkeye]

I read back through it, THR. It was about the nature of rights, not the FORM of government.

Walt, I am happy to allow the record to speak for itself.

 

[The Real Hawkeye]

It is not up to you to make rules of engagement, disallowing my comments unless they meet your conditions.

Realgun, I guess it's too much to ask that someone actually support their stated assertions with facts and logical arguments. That said, your response doesn't surprise me in the least, I'm sorry to say.

 

[The Real Hawkeye]

I would also ask that Walt mention my name only in a specific reference to prior discussion. This is not Walt and RealGun versus The Real Hawkeye, although neither of us appear to appreciate puffery.

Firstly, I cannot blame you for not wanting to be tied in with Walt, LOL, although often the comparison is hard to avoid. Secondly, my "puffery," as you call it, was a thinly veiled attempt on my part to draw the two of you into the discussion, which I naturally suspected you were in the side lines of. I also thought it was obvious that it was intended to be lightheartedly humorous. Come on now, "single-handedly defending our system of government" against you two? That's clearly hyperbole. Loosen up.

Having said that, let's now put aside our differences and allow this thread, hopefully, to get back on its original track, as I think it was an important topic. Do you two have anything else to say on the topic at hand?

 

[The Real Hawkeye]

I would simply refer you to pro RTKABA books and articles that address the 14th Amendment far better than I could ...

I sympathize with the motivations behind the RTKABA approach to supporting an expansive interpretation of the Fourteenth Amendment, because I like the immediate outcome that this seems to imply, i.e., that the Federal Government is thereby empowered to storm into Boston, Mass, New York City, New York, and LA, California, to force the legislatures of those cities and states to toss out every piece of gun control legislation they ever passed. I think, however, that this is a bit of a pipe dream on the part of said advocates of an expansive reading of said amendment. Furthermore, consolidation of political power in the central government, even when motivated by good causes like ours, has never historically led to increases in personal liberty. Rather, the exact opposite is the repeated lesson of history.

Additionally, I am philosophically opposed to expansive readings of the Constitution, because the more expansive the reading, the less we are governed by law and the more we are ruled by the personal policy preferences of men in positions of power. This is why I favor a strict constructionist approach to the Fourteenth Amendment, and all aspects of our Constitution and laws, even if in the short term, this seems to be a set back for the RTKABA. Judicial activism, even when you are pursuing, in the short term, good causes like ours, has the inevitable long term effect of transforming constitutional republics into despotic regimes where liberty is the first "luxury" sacrificed to expediency. We are seeing it now.

 

[Art Eatman]

Seems like there's a bit too much near-sarcasm and scorn in some of y'all's comments. It's not particularly personal attack, but it sure detracts from trying to follow the arguments and make sense of them. Too many emotionally-laden words.

Art

 

[The Real Hawkeye]

Art, I suppose I might be guilty on that point, though sometimes it seems almost unavoidable. I propose, however, that we all three make a concerted effort to bury the hatchet and allow this thread, which I think is a good one otherwise, to proceed without further petty bickering. I, for one, am on board with that.

 

[Bruce H]

I'm not the sharpest knife in the drawer so bear with me. Aren't the ammendments binding to all states? How can one state decide what an ammendment means to it when it is the direct opposite of another state? There has to be a common rules binding to all states on certain things or there is is no nation.

 

[The Real Hawkeye]

I'm not the sharpest knife in the drawer so bear with me. Aren't the amendments binding to all states? How can one state decide what an amendment means to it when it is the direct opposite of another state? There has to be a common rules binding to all states on certain things or there is no nation.

It's not a question of how sharp you are. You can be another Albert Einstein and if you, for whatever reason, don't really understand how our system of government works, it doesn't make you a dummy.

That said, the Amendments to the US Constitution were designed to be restrictions on what the Federal Government can do, not on what the States can do. Each State had its own Constitution, placing limits on their own State governments which were thought most prudent by the citizens of each State. You see, the big concern at the time the Constitution was written was that the new Federal Government that was being proposed was going to consolidate all political power within itself, thereby taking power away from the States that rightfully belong there. People were afraid of large and powerful central governments because history had demonstrated that this always resulted in tyranny. They felt that political power, except for such matters as foreign relations, war and the like, should remain in the hands of the States, i.e., closer to the people, and more responsive, therefore, to their will. The system they instituted to achieve this end is called Federalism. Please read the quotation I provided above written by James Madison. This will clarify a lot of this for you.

 

[antarti]

Back to the original thread premise

Forgive my being a legal/constitutional luddite... my degree is in Early American Lit (that period begins with Indian writings, and ends with the constitutional convention).

Where do I go wrong in the following (admittedly left-field, hackneyed) interpretation?

A well regulated militia, being necessary to the security of a free State, <--- A preamble or explanation of rationale for what follows. However, it explains that "a free State" is to be defended (and it is necessary and proper to do so with "Arms", mentioned later).

the right of the people to keep and bear Arms, <-- Recognizes there is a "right of the people" (not just citizens of any state or region, voters, men, property holders, Federal agents, or anything else)

shall not be infringed. <-- Shall not be impeded in any way, shape, or form.

Now I've heard that the "shall not be infringed" refers only to the Fed.gov, only to the states, yada, yada. I'm arguing that's completely irrelevant as to "who does the infringing". It's the "right of the people" part I'm interested in.

The 14th also contains "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;"

Since everybody is a dual citizen (try fighting the IRS and SS admin on that one) by modern interpretation and myriad sign-off sheets (not just those born in DC and guam or PR), any state and federal laws could/would apply to those citizens. I don't care how you order it, or how you interpret it. I'm also arguing that's irreleant and moot...

because as "people" we have the 2A regardless of what else we are.

Can't you excercise your 2A right (and later go to court as) a "person" and not a citizen of anything? I mean a dual citizen is already 2 things, whats the stretch to say you are also a "person", thus that part of you is entitled and not restrained by your citizenship? Which is the most inseparable and primary (takes precedence)? Citizenship can be renounced, State of residence/citizenship can be changed, but can you ever cease being a "person", and thus lose what's recognized under the 2A?

Sorry for quoting so much stuff I feel should be ignored, but I'm trying to make a very simple case and get some feedback.

And please, no jokes about the "Peoples Court".

Couldn't you also posit:

1) "Damn right I'm a US Citizen, I'll subpoena the IRS and SS admin to prove that to you. The 2nd Amendment comes after the "Interstate commerce clause" and amends it. I am covered lastly by the 2A, and thus am covered for that Tommy I restored at home and drove over state lines with."

2) "Damn right I'm a Floridian, I'll subpoena the State to prove that to you. The 2nd Amendment governs US Citizens, then the 14th confers that on me directly. I am covered only by the 2nd, not all those unconstitutional and pesky state laws, so I was right to restore those Grease Guns in my garage."

3) "Damn right I'm a Floridian, I'll subpoena the State to prove that to you. The 2nd Amendment has nothing to do with Florida. I am covered only by the Florida constitution, not all those unconstitutional state laws. The constitution just says I have to wait 3 days IF I purchase a firearm, not that I couldn't restore those BARs in my garage. The rest is agin the Fla constitution and needs overturning."

Thoughts...

 

[The Real Hawkeye]

Antarti, I think we agree basically on what the Second Amendment accomplishes. Firstly it states that the Federal Government understands that the people possess a right to keep and bear arms and, secondly, it assures us that it will not infringe on that right, effectively removing from itself the power to make laws restricting our liberty to keep and bear arms.

The function of the US Constitution is to first create and then to grant specific powers to the Federal Government, apart from which document it would possess absolutely no just powers whatsoever. The Bill of Rights was incorporated into the Constitution to clearly state which powers the Federal Government did not possess, in case that was not made sufficiently clear to some in the language of the main body. The Bill of Rights was not therefore a restriction on the States, because it was a series of amendments to the US Constitution, not to the Constitution of Main, or New Hampshire, or Virginia. Each of those states had their own Constitutions.

 

[beerslurpy]

The 14th amendment was specifically crafted because southern states were denying 1st and 2nd amendment rights to freed slaves. It is an intentional infringement upon the authority of the states. Call that tyrannical, but that is the meaning of the 14th. The intent, the wording, the history behind it.

Now, it is reasonable to argue that the BOR just plain doesnt apply regardless of what the 14th says, which is what the Supreme Court did up till the early 1900s for reasons of its own. However, I feel this more a factor of the SCOTUS deciding it would ignore something it didnt like rather than an honest intepretation of the law. The real problem is that the 14th and the 10th amendments have wording that conflicts and some are inclined to give the BOR amendments precedence over all others (they cannot be modified or abolished) so the "balancing act" can be very contentious.

At the very least, the 2nd amendment forbids all current federal gun control legislation. If the individual states want such laws, they can pass them themselves. If the 14th amendment is binding upon the states, then nearly all gun control legislation nationwisde except maybe violent felon prohibitions are completely unconstitutional.

 

[beerslurpy]

Such is the character of the privileges and immunities spoken of in the second section of the fourth article of the Constitution. To these privileges and immunities, whatever they may be-for they are not and cannot be fully defined in their entire extent and precise nature-to these should be added the personal rights guarantied and secured by the first eight amendments of the Constitution; such as the freedom of speech and of the press; the right of the people peaceably to assemble and petition the Government for a redress of grievances, a right appertaining to each and all the people; the right to keep and to bear arms; the right to be exempted from the quartering of soldiers in a house without the consent of the owner.....

From the debates of the 14th amendment ratification. First 8 amendments all included, SCOTUS trickery notwithstanding.

 

[The Real Hawkeye]

Now, it is reasonable to argue that the BOR just plain doesnt apply regardless of what the 14th says, which is what the Supreme Court did up till the early 1900s for reasons of its own. However, I feel this more a factor of the SCOTUS deciding it would ignore something it didnt like rather than an honest intepretation of the law.

For reasons already stated by me, I could not be in more disagreement with you on this point. I am still waiting for a break down of the language of the Fourteenth Amendment, side by side with the Constitutional language, having to do with the "incorporated" rights, demonstrating your point to be true. Appeals to authority have their place, but they only go so far in an argument like this one. At some point you have to get down to the brass tacks if you want your argument taken seriously.

 

[beerslurpy]

If you cant understand english then I dont see what more I can do for you. Read the debates at the time of the 14ths ratification (post right above yours). Read that wonderful 2nd amendment treatise the OLC released last year (available online after 5 seconds of searching- just search the document for 14th amendment).

All available sources point to it being commonly accepted (at the time it was ratified) that the 14th amendment made the bill of rights binding upon the states. The states could no longer choose to protect or ignore the rights of their citizens as enumerated under the federal constitution.