Does the 2nd Am restrict all govts? Or just Fed govt?

[gc70]

by woodcdi:
Are you and "The Real Hawkeye" one and the same person?

Another revelation! I was not aware that only certain persons could respond to particular posts. I had always assumed that communications directed to a single person were handled in PMs.

 

[ConstitutionCowboy]

However, the Bill or Rights was only intended to limit the national government...

I can only assume you haven't read Madison's proposal. In it, he expresses the need for a Bill of Rights because those rights as secured by the states - for those that even had a bill of rights - for the most part, sucked!("Sucked" is my word choice; to sum up the more eloquent language he used.) And, that the intention was for the protection of those rights to be universal.

It cannot be a secret to the gentlemen in this house, that, notwithstanding the ratification of this system of government by eleven of the thirteen United States, in some cases unanimously, in others by large majorities; yet still there is a great number of our constituents who are dissatisfied with it; among whom are many respectable for their talents, their patriotism, and respectable for the jealousy they have for their liberty, which, though mistaken in its object, is laudable in its motive. There is a great body of the people falling under this description, who as present feel much inclined to join their support to the cause of federalism, if they were satisfied in this one point: We ought not to disregard their inclination, but, on principles of amity and moderation, conform to their wishes, and expressly declare the great rights of mankind secured under this constitution. The acquiescence which our fellow citizens shew under the government, calls upon us for a like return of moderation. But perhaps there is a stronger motive than this for our going into a consideration of the subject; it is to provide those securities for liberty which are required by a part of the community. I allude in a particular manner to those two states who have not thought fit to throw themselves into the bosom of the confederacy: it is a desirable thing, on our part as well as theirs, that a re-union should take place as soon as possible. I have no doubt, if we proceed to take those steps which would be prudent and requisite at this juncture, that in a short time we should see that disposition prevailing in those states that are not come in, that we have seen prevailing [in] those states which are.

But I will candidly acknowledge, that, over and above all these considerations, I do conceive that the constitution may be amended; that is to say, if all power is subject to abuse, that then it is possible the abuse of the powers of the general government may be guarded against in a more secure manner than is now done, while no one advantage, arising from the exercise of that power, shall be damaged or endangered by it. We have in this way something to gain, and, if we proceed with caution, nothing to lose; and in this case it is necessary to proceed with caution; for while we feel all these inducements to go into a revisal of the constitution, we must feel for the constitution itself, and make that revisal a moderate one. I should be unwilling to see a door opened for a re-consideration of the whole structure of the government, for a re-consideration of the principles and the substance of the powers given; because I doubt, if such a door was opened, if we should be very likely to stop at that point which would be safe to the government itself: But I do wish to see a door opened to consider, so far as to incorporate those provisions for the security of rights, against which I believe no serious objection has been made by any class of our constituents, such as would be likely to meet with the concurrence of two-thirds of both houses, and the approbation of three-fourths of the state legislatures. I will not propose a single alteration which I do not wish to see take place, as intrinsically proper in itself, or proper because it is wished for by a respectable number of my fellow citizens; and therefore I shall not propose a single alteration but is likely to meet the concurrence required by the constitution.

There have been objections of various kinds made against the constitution: Some were levelled against its structure, because the president was without a council; because the senate, which is a legislative body, had judicial powers in trials on impeachments; and because the powers of that body were compounded in other respects, in a manner that did not correspond with a particular theory; because it grants more power than is supposed to be necessary for every good purpose; and controuls the ordinary powers of the state governments. I know some respectable characters who opposed this government on these grounds; but I believe that the great mass of the people who opposed it, disliked it because it did not contain effectual provision against encroachments on particular rights, and those safeguards which they have been long accustomed to have interposed between them and the magistrate who exercised the sovereign power: nor ought we to consider them safe, while a great number of our fellow citizens think these securities necessary.

It has been a fortunate thing that the objection to the government has been made on the ground I stated; because it will be practicable on that ground to obviate the objection, so far as to satisfy the public mind that their liberties will be perpetual, and this without endangering any part of the constitution, which is considered as essential to the existence of the government by those who promoted its adoption.

The forgoing, quoted from Madison's proposal, states why it should be necessary to have a Bill of Rights(or at least amendments to the Constitution protecting those rights). It is(was) more than to simply entice the two states holding out on joining the Union, too.


The Big Kahuna!

It has been said by way of objection to a bill of rights, by many respectable gentlemen out of doors, and I find opposition on the same principles likely to be made by gentlemen on this floor, that they are unnecessary articles of a republican government, upon the presumption that the people have those rights in their own hands, and that is the proper place for them to rest. INTERJECTION: Notice that Madison did not say that the people's rights were in the hands of the states, but in their own hands. It would be a sufficient answer to say that this objection lies against such provisions under the state governments as well as under the general government; and there are, I believe, but few gentlemen who are inclined to push their theory so far as to say that a declaration of rights in those cases is either ineffectual or improper. INTERJECTION: Here again, Madison is saying that some of the states HAVE a bill of rights in spite of the presumption.

It has been said that in the federal government they are unnecessary, because the powers are enumerated, and it follows that all that are not granted by the constitution are retained: that the constitution is a bill of powers, the great residuum being the rights of the people; and therefore a bill of rights cannot be so necessary as if the residuum was thrown into the hands of the government. I admit that these arguments are not entirely without foundation; but they are not conclusive to the extent which has been supposed. It is true the powers of the general government are circumscribed; they are directed to particular objects; but even if government keeps within those limits, it has certain discretionary powers with respect to the means, which may admit of abuse to a certain extent, in the same manner as the powers of the state governments under their constitutions may to an indefinite extent; because in the constitution of the United States there is a clause granting to Congress the power to make all laws which shall be necessary and proper for carrying into execution all the powers vested in the government of the United States, or in any department or officer thereof; this enables them to fulfil every purpose for which the government was established. Now, may not laws be considered necessary and proper by Congress, for it is them who are to judge of the necessity and propriety to accomplish those special purposes which they may have in contemplation, which laws in themselves are neither necessary or proper; as well as improper laws could be enacted by the state legislatures, for fulfilling the more extended objects of those governments. I will state an instance which I think in point, and proves that this might be the case. The general government has a right to pass all laws which shall be necessary to collect its revenue; the means for enforcing the collection are within the direction of the legislature: may not general warrants be considered necessary for this purpose, as well as for some purposes which it was supposed at the framing of their constitutions the state governments had in view. If there was reason for restraining the state governments from exercising this power, there is like reason for restraining the federal government.

It may be said, because it has been said, that a bill of rights is not necessary, because the establishment of this government has not repealed those declarations of rights which are added to the several state constitutions: that those rights of the people, which had been established by the most solemn act, could not be annihilated by a subsequent act of the people, who meant, and declared at the head of the instrument, that they ordained and established a new system, for the express purpose of securing to themselves and posterity the liberties they had gained by an arduous conflict.

I admit the force of this observation, but I do not look upon it to be conclusive. In the first place, it is too uncertain ground to leave this provision upon, if a provision is at all necessary to secure rights so important as many of those I have mentioned are conceived to be, by the public in general, as well as those in particular who opposed the adoption of this constitution. Beside some states have no bills of rights, there are others provided with very defective ones, and there are others whose bills of rights are not only defective, but absolutely improper; instead of securing some in the full extent which republican principles would require, they limit them too much to agree with the common ideas of liberty.

There it is, placed in bold by me, from the hand of the gent who proposed the bill of rights in Congress, his intent that a bill of rights is necessary and that it should apply across the board because - again summed up in my words - on the whole, the protections of our inalienable rights by the states sucked!

by woodcdi:
Are you and "The Real Hawkeye" one and the same person? [/quote
Another revelation! I was not aware that only certain persons could respond to particular posts. I had always assumed that communications directed to a single person were handled in PMs.

I never said you couldn't respond. It was a simple question, not an excoriation for jumping in the middle of a public forum discussion. Either one of you could answer. Anyone who knows either of you could answer - or if you are one and the same, any one who knows you could answer. Truth be told, it was a rhetorical question.

Good enough for ya?

No. Read the above from Madison.

If the Virginia Bill of Rights has an Article which doesn't specifically say that the intent is to limit Virginia, then does that mean that it limits the US Government? If Hawaii has a BOR with an Article which doesn't specifically say that the intent is to limit Hawaii, then does that mean that it limits New Jersey? It seems evident that a constitution frames a government and a BOR limits that government.

Are you seriously asking those questions? I must assume you are being factitious. Your last sentence is somewhat accurate. A constitution frames a government, but in that the amendments in the Constitution addressing our rights are not a specifically separate bill of rights so labeled to address only Congress, the blanket statement that these amendments are part of a specific bill of rights limiting only Congress is inaccurate. Read Madison's quote I placed in bold above and you will see that he intended the protections of our rights in the Constitution to be universal. It is unmistakable.

Woody

Look at your rights and freedoms as what would be required to survive and be free as if there were no government. Governments come and go, but your rights live on. If you wish to survive government, you must protect with jealous resolve all the powers that come with your rights - especially with the Right to Keep and Bear Arms. Without the power of those arms, you will perish with that government - or at its hand. B.E. Wood

 

[Aguila Blanca]

If the Virginia Bill of Rights has an Article which doesn't specifically say that the intent is to limit Virginia, then does that mean that it limits the US Government? If Hawaii has a BOR with an Article which doesn't specifically say that the intent is to limit Hawaii, then does that mean that it limits New Jersey? It seems evident that a constitution frames a government and a BOR limits that government.

That's akin to saying that if Virginia adopts a statewide maximum speed limit of 75 miles per hour, it can be enforced only by State police on State highways, and that if I drive through Falls Church at 90 MPH the local gendarmes can't cite that state statute in arresting me, because it applies only to the state and not to lower levels of government existing thereunder. After all, what are the states but a collective made up of "sovereign" municipalities?

 

[gc70]

I can only assume you haven't read Madison's proposal.

That is a condescending assertion since I initiated the discussion of the proposal and provided a link to it - and it would have been a tad difficult for me to provide a summary and analysis of the proposal without reading it.

Now, back to logic. Why would a person as smart as Madison propose a Bill of Rights that (under your interpretation) contained the same prohibitions twice in separate sections of a rather small document? I am sure you can explain Madison's rationale for proposing:

The civil rights of none shall be abridged on account of religious belief or worship, nor shall any national religion be established, nor shall the full and equal rights of conscience by in any manner, or on any pretext infringed.

The people shall not be deprived or abridged of their right to speak, to write, or to publish their sentiments; and the freedom of the press, as one of the great bulwarks of liberty, shall be inviolable.

The trial of all crimes shall be by an impartial jury of freeholders...

and

No state shall violate the equal rights of conscience, or the freedom of the press, or the trial by jury in criminal cases.

 

[gc70]

woody, here is another logic test.

The Constitution was ratified in 1788 and the Bill of Rights was ratified in 1791.

IF the Bill of Rights was intended to apply to both the national government and the states, why did everyone (the people, legislators, and judges) immediately forget that fact? From its ratification, the courts consistently treated the Bill of Rights as only applicable to the national government. It was not until parts of the Bill of Rights were 'incorporated' through the 14th Amendment that those rights were enforced against the states. Don't you think someone might have noticed that little difference and complained?

IF the Bill of Rights was intended to apply to both the national government and the states, why was the 14th Amendment adopted? Would it not have been much easier for Congress to simply pass legislation to enforce the (under your view Constitutional) rights of former slaves? So why go to the trouble of adopting a new Constitutional Amendment if those rights were already protected under the Bill of Rights?

 

[Cosmoline]

The Second restricts the states if it is deemed to have been included in the 14th. Otherwise it applies only to federal actions.

 

[hugh damright]

That's akin to saying that if Virginia adopts a statewide maximum speed limit of 75 miles per hour, it can be enforced only by State police on State highways, and that if I drive through Falls Church at 90 MPH the local gendarmes can't cite that state statute in arresting me, because it applies only to the state and not to lower levels of government existing thereunder. After all, what are the states but a collective made up of "sovereign" municipalities?

I think that the relationship between the US and the States is fundamentally different than the relationship between the States and the Counties.

A State is not a Union of sovereign municipalities. The Virginia Constitution is not a compact between municipalities but rather a compact between Citizens. A State is a body of people.

In contrast, the US Constitution is a compact between sovereign States. That is what I understand "federal" to mean.

Of course State laws are statewide. And national laws are nationwide. But laws limit people ... a BOR limits government, and the USBOR was intended to limit the US government, not the States.

 

[The Real Hawkeye]

With regard to the bulk of your (Woody's) above mega-post, others have responded ably. I would like to respond to this, however.

INTERJECTION: Notice that Madison did not say that the people's rights were in the hands of the states, but in their own hands.

He didn't have to say that. It was well understood that, within the respective States, the people are self-governing, i.e., their rights are in their own hands. When a people govern themselves within their States, we call the result the State's government. So, when he said the people's rights were in their own hands, he was referring to the fact that, within the States, the people are self-governing. This carries with it the idea that the Federal Government does not interfere with internal matters effecting the lives, properties and liberties of the people of the States, as Federalist No. 45 so ably explains, viz;

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 {i.e., not defined (i.e., not limited) by the US Constitution}. 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.

I think the word all here is pretty all encompassing, don't you? And this is your man Madison speaking.

 

[Rev. DeadCorpse]

Another thread on this topic? What does that make, 4 in just the last week?

Same sides, one side thinking that it's just peechy for their States to take away their Rights, the other saying, "Hey wait, aren't those Rights supposed to be 'inalienable' and protected from being infringed? From anyone?"

And never the twain shall meet...

Why is that? Why do so many people have problem with the historical evidence that show quite clearly, to those without agenda, that the Founders meant exactly what they wrote. That the Bill of Rights protected Individual US Citizen Rights from infringment, under the exact defined terms they wrote. That as the "Supreme law of the land the laws of any State to the Contrary notwithstanding" cannot be over turned via mere judicial opinion nor accumulated stare decisis. That no State is any more legitamate in restricting these basic Rights than the Federal government numerous expansions of power under various taxing authorities via the commerce clause, "penumbras", or any other "emanations".

You don't want your Rights, that's fine. Nobody will force you to exercise them. Just stop trying to invent ways to take away the Rights of the rest of us. Seriously.

The prescriptions in favor of liberty, ought to be levelled against that quarter where the greatest danger lies, namely, that which possesses the highest prerogative of power: But this [is] not found in either the executive or legislative departments of government, but in the body of the people, operating by the majority against the minority.

It may be thought all paper barriers against the power of the community are too weak to be worthy of attention…yet, as they have a tendency to impress some degree of respect for them, to establish the public opinion in their favor, and rouse the attention of the whole community, it may be one mean to control the majority from those acts to which they might be otherwise inclined.
Proposing Bill of Rights to House, June 8, 1789

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.
Proposing Bill of Rights to House, June 8, 1789

James got his wish too...

Article. IV.
Section. 2. The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States.

Does anyone have a problem with definitions for the words "privileges and immunities"?

Article. VI.
This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.

Now, does anyone have any problems with "Judeges in every State shall be bound thereby" and "Laws of any State to the Contrary notwithsanding"? I know RH will, but does anyone else have problems with it?

Come on people... this isn't rocket surgery here.

"I consider the people who constitute a society or nation as the source of all authority in that nation; as free to transact their common concerns by any agents they think proper; to change these agents individually, or the organization of them in form or function whenever they please; that all the acts done by these agents under the authority of the nation are the acts of the nation, are obligatory on them and enure to their use, and can in no wise be annulled of affected by any change in the form of the government or of the persons administering it." --Thomas Jefferson: Opinion on French Treaties, 1793. ME 3:227

It is no more "logical" that a mere State can trump our authority as individuals than it is for the FedGov to do so...

"The equality among our citizens [is] essential to the maintenance of republican government." --Thomas Jefferson: Thoughts on Lotteries, 1826. ME 17:461

Kinda hard to be equal if people in one State have more 2A Rights than people in another State. This was considered axiomatic at the time the Constitution was written. the failings of the Confederacy to protect a minimal set of equal Rights for all was quite plain in the Debates of the Conventions and the First Congress.

"Nothing... is unchangeable but the inherent and unalienable rights of man." --Thomas Jefferson to John Cartwright, 1824. ME 16:48

Yeah... sounds like TJ felt is was just peechy for States to restrict those Rights didn't he? Not...

"A bill of rights is what the people are entitled to against every government on earth, general or particular; and what no just government should refuse, or rest on inferences." --Thomas Jefferson to James Madison, 1787. ME 6:388, Papers 12:440

"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

Not surrender our Rights to our "ordinary governors". Gee.. y'a think maybe he was referring to the est of restrictions they were about to impose via the BoR?

The restraints laid on the state legislatures will tend to secure domestic tranquility, more than all the bills, or declarations, of rights, which human policy could devise. It is very justly asserted, that the plan contains an avowal of many rights. It provides that no man, shall suffer by expost facto laws or bills of attainder. It declares, that gold and silver only shall be a tender for specie debts; and that no law shall impair the obligation of a contract. -- Alexander Contee Hanson, Aristides, Remarks on the Proposed Plan of a Federal Government 1788 Pamphlets 241--43

 

[Rev. DeadCorpse]

It was well understood that, within the respective States, the people are self-governing, i.e., their rights are in their own hands. When a people govern themselves within their States, we call the result the State's government.

He was even more clear that there were certain unalienable Rights which were not necessary for the States to even worry about. Religion, peaceable assembly, RKBA, jury trials were all mentioned specificly as those things the original States had already had in their Conffederate Constitutions and that placing these same principles at the highest level of government would ensure equality for all US cicitzens.

Or did you miss that part too?

 

[The Real Hawkeye]

You don't want your Rights, that's fine. Nobody will force you to exercise them. Just stop trying to invent ways to take away the Rights of the rest of us. Seriously.

Those of us on in this thread who believe in Federalism are not "against rights." How absurd! We are more in favor of our rights than you are, as we agree with the majority of the Founders that centralized governments constitute the greatest threats to our rightful liberties. You seem to think that the Founders had greater confidence in the distant central government than in the State governments. Just the reverse was in fact the case. State governments were under our direct control, and would be a much less significant threat to our liberties. The central government was thought the much greater threat, which is why it was established as one of few and delegated powers, and restrained by the shackles of a Bill of Rights. The Founders knew that power corrupts, and the more distant that power is from the check of the common citizen, the greater the potential to corrupt, thus power over our lives, properties and liberties was denied to the central government, and entirely retained by the States. It is entirely counterintuitive, therefore, to assume that the Founders would place the protection of our liberties within the power of the central government. No indeed, the security of our liberties was assured by the new Constitution precisely by keeping the hands of the central government off of them, permitting the people to secure their own liberties via their State governments, which are more responsive to their will, and less, therefore, prone to the corruption of power.

 

[Rev. DeadCorpse]

We are more in favor of our rights than you are....

Quite obviously, no you aren't.

You seem to think that the Founders had greater confidence in the distant central government than in the State governments.

Wrong again. Go back and re-read what I've posted. The Founders wanted this listing of "basic" Rights off limits. From EVERYONE. It is absurd to think they would create a stronger centralized government, codify a set of protections for individual Rights, then spout your drivel that subordinate State governments are within their just powers to infringe them.

The Founders knew power corrupts, and that protecting an individuals Rights from a tyrant ten miles away was equally as important as protecting those same Rights from one a thousand miles away.

The power of the sword, say the minority of Pennsylvania, is in the hands of Congress. My friends and countrymen, it is not so, for THE POWERS OF THE SWORD ARE IN THE HANDS OF THE YEOMANRY OF AMERICA FROM SIXTEEN TO SIXTY. [82] The militia of these free commonwealths, entitled and accustomed to their arms, when compared with any possible army, must be tremendous and irresistible. Who are the militia? are they not ourselves. Is it feared, then, that we shall turn our arms each man against his own bosom. Congress have no power to disarm the militia. Their swords, and every other terrible implement of the soldier, are the birthright of an American. What clause in the state or federal constitution hath given away that important right.... T he unlimited power of the sword is not in the hands of either the foederal or state governments, but where I trust in God it will ever remain, in the hands of the people. [83]-- Tench Coxe http://www.davekopel.com/2A/LawRev/hk-coxe.htm#FN;F71

 

[hugh damright]

Does anyone have a problem with definitions for the words "privileges and immunities"?

I have a problem with your construction of it. I don't see how it can mean that everyone has the same rights. Even the Articles of Confederation had a "privileges and immunities" clause. It did not do away with the States. What y'all desire, to make "rights" the same in every State, is a desire to destroy the States and our form of government. Jesse Jackson Junior seemed to express this political view rather clearly:

the nation’s greatest problem is a separate and unequal system of 50 separate and unequal states and 3,067 separate and unequal counties that must be rooted out root and branch. The enemy here is the Tenth Amendment, the unenumerated rights which permits inequalities to exist. Jackson said the only solution is a much stronger central government for “one America” http://www.frontpagemag.com/Articles/ReadArticle.asp?ID=3149

Now, does anyone have any problems with "Judges in every State shall be bound thereby" and "Laws of any State to the Contrary not withsanding"? I know RH will, but does anyone else have problems with it?

I have a problem with your construction of it. I believe that your view that the USBOR limits the States is a misconstruction. It is not the supreme law, binding all judges and States, it is just your own misconstruction.

Come on people... this isn't rocket surgery here.

I believe it is a lot more complicated than you realize. I once believed and argued that the USBOR must obviously limit the States. I now realize that I had no sense of government back then.

Kinda hard to be equal if people in one State have more 2A Rights than people in another State. This was considered axiomatic at the time the Constitution was written.

I think you are confusing the term "all men are created equal" with "equal rights". I believe that the term "all mean are created equal" was intended as a denouncement of monarchy ... I understand it to mean that a King is not born to rule over Virginians, but rather we are all equal such that Virginians are born to rule over Virginia.

I reckon that Virginians have more gun rights than people in New York, and that means all men are equal, because the majority of Virginians control the gun laws in Virginia, and the majority of New Yorkers control the gunlaws in New York.

the failings of the Confederacy to protect a minimal set of equal Rights for all was quite plain in the Debates of the Conventions and the First Congress

What I remember reading is that the US had war debt, some States weren't paying their taxes, an amendment was proposed to correct this under the Articles, but one State wouldn't ratify it. So we needed a stronger central government, where only 3/4 of the States could ratify an amendment. I don't remember equal civil rights being the issue, and besides, if equal rights for all was the concern, I think they would have included a USBOR in the US Constitution.

 

[RealGun]

I hear the arguments about "limited to the federal government", but doesn't it strike one as odd that the Supreme Court can find appellate jurisdiction on virtually anything, any right, except where the 2nd Amendment would be implicated? They even invented a right or two, to which I don't necessarily object.

 

[gc70]

Come on people... this isn't rocket surgery here.

And it is apparently not brain science either.

Same sides, one side thinking that it's just peechy for their States to take away their Rights, the other saying, "Hey wait, aren't those Rights supposed to be 'inalienable' and protected from being infringed? From anyone?"

There are two view of rights, but I will not denigrate one or the other as you did. One view is that rights are best protected by uniform application under the national government. The other view is that rights are best protected by a multitude of options in 50 different states.

Did you like the national AWB? That is what happens under the national model - good, bad, or indifferent, everyone has to swallow the same thing.

Do you like California's gun control laws? That is what happens under the state model - you can put up with what a single state does or you have the option to go to a state that does things differently, like Texas, or Alaska, or Vermont.

Some posters do not have an agenda and are actually searching for knowledge and understanding, even if what they find does not match their personal opinions about which rights model is best.

 

[Aguila Blanca]

Now, does anyone have any problems with "Judges in every State shall be bound thereby" and "Laws of any State to the Contrary not withsanding"? I know RH will, but does anyone else have problems with it?

I have a problem with your construction of it. I believe that your view that the USBOR limits the States is a misconstruction. It is not the supreme law, binding all judges and States, it is just your own misconstruction.

Now I think you are really stretching, Hugh. The Constitution itself says it is the supreme law of the land, that's not somebody's "misconstruction." And when the documents itself says "Judges in every State shall be bound thereby, ... Laws of any State to the Contrary not withsanding," how can you possibly label it a "misconstruction" to say that it means what it says?

 

[The Real Hawkeye]

The Constitution itself says it is the supreme law of the land.

Indeed, properly understood. You must read the Supremacy Clause within the context of the Tenth Amendment to properly understand its meaning and limits. Any power not delegated to the US Government, belongs to the States respectively, and the people, i.e., the vast vast majority of powers, and just about all powers dealing with the lives, liberties and properties of the people, are not delegated to the US Government, and consequently belong to the States respectively, and the people. The Supremacy Clause only gives supremacy to the Federal Government with respect to those few powers delegated to the Federal Government. Regarding all else, the States respectively, and the people, are supreme.

 

[gc70]

The Constitution itself says it is the supreme law of the land

You are absolutely correct! In areas covered by the Constitution, it is the supreme law of the land. And in areas not covered by the Constitution, it means absolutely nothing.

Look at the SCOTUS decision in Kelo vs. New London. The court ruled in favor of the city because it had presented a "public use" as required under the Takings clause of the Fifth Amendment. The court also said that the Constitution did not give the national government power to define "public use," but the states did have that power and could limit the definition of "public use."

Citing the supremacy clause to support either viewpoint in this debate is meaningless.

 

[hugh damright]

Now I think you are really stretching, Hugh. The Constitution itself says it is the supreme law of the land, that's not somebody's "misconstruction." And when the documents itself says "Judges in every State shall be bound thereby, ... Laws of any State to the Contrary not withsanding," how can you possibly label it a "misconstruction" to say that it means what it says?

It's as if you're saying that however you read the Constitution is what it really says and the supreme law and binding on all judges in every State ... couldn't you possibly read something wrong, misunderstand it, have more to learn about it? If you did somehow possibly misconstrue something, would your misconstruction be the supreme law of the land? Well, I believe that your idea that the USBOR was intended to limit the States is a misconstruction.

 

[Rev. DeadCorpse]

The court also said that the Constitution did not give the national government power to define "public use," but the states did have that power and could limit the definition of "public use."

Isn't it funny how the courts found a "public use" by taking private property and giving it to a PRIVATE developer. Regardless of increased tax revenue, that decision was one of the worst in a long line of bad court decisions.

Viotaling one persons Rights for enrichment of another is wrong. It should be such a logical thing that I feel slightly embarrassed having to mention it.

 

[ConstitutionCowboy]

Indeed, properly understood. You must read the Supremacy Clause within the context of the Tenth Amendment to properly understand its meaning and limits. Any power not delegated to the US Government, belongs to the States respectively, and the people, i.e., the vast vast majority of powers, and just about all powers dealing with the lives, liberties and properties of the people, are not delegated to the US Government, and consequently belong to the States respectively, and the people. The Supremacy Clause only gives supremacy to the Federal Government with respect to those few powers delegated to the Federal Government. Regarding all else, the States respectively, and the people, are supreme.

You are absolutely correct! In areas covered by the Constitution, it is the supreme law of the land. And in areas not covered by the Constitution, it means absolutely nothing.

The Supremacy Clause does not refer to the powers granted in the Constitution, it refers to itself, the laws of the United States which shall be made in pursuance of itself; and treaties made, or which shall be made, under the authority of the United States as being the supreme law of the land. It makes itself the Supreme Law of the Land. That means everything in it is the supreme law of the land, including any new added articles and amendments to the original Articles, better known as "Amendments". We all know the amendments to the Constitution are as much a part of the Constitution as any of its Articles. Of pertinence is the statement in the act of Congress, March 4, 1789, launching the "Bill of Rights", which includes the statement "...as amendments to the Constitution of the United States; all or any of which articles, when ratified by three-fourths of the said Legislatures, to be valid to all intents and purposes as part of the said Constitution...

The Constitution says that the right of the people to keep and bear arms shall not be infringed. That is the Supreme Law of the Land. That makes anything in the constitution or laws of any state to the contrary not withstanding. Nothing in the Tenth Amendment diminishes or alters that, or could diminish or alter that.

Woody


"The Second Amendment is absolute. Learn it, live it, love it and be armed in the defense of freedom, our rights, and our sovereignty. If we refuse infringement to our Right to Keep and Bear Arms, as protected by the Second Amendment, we will never be burdened by tyranny, dictatorship, or subjugation - other than to bury those who attempt it. B.E.Wood

 

[ConstitutionCowboy]

Look at the SCOTUS decision in Kelo vs. New London. The court ruled in favor of the city because it had presented a "public use" as required under the Takings clause of the Fifth Amendment. The court also said that the Constitution did not give the national government power to define "public use," but the states did have that power and could limit the definition of "public use."

Isn't it funny how the courts found a "public use" by taking private property and giving it to a PRIVATE developer. Regardless of increased tax revenue, that decision was one of the worst in a long line of bad court decisions.

I also find it funny that though the Court couldn't define "public use", it could define "regulate" in the Commerce Clause to include "limit" and "prohibit".

Woody


"There is nothing to fear in this country from free people. But, when freedom is usurped, there is something to fear for people will revolt to remain free. To all usurpers, do the math. But don't wonder the outcome when you miscalculate." B.E.Wood

 

[gc70]

woody, some examples may help...

In areas covered by the Constitution, it is the supreme law of the land.

The Constitution covers how representation in Congress is allocated among the states. A state might pass a law declaring that it should have 100 representatives in Congress, but that law would be meaningless because what the Constitution says on that topic is the supreme law of the land.

And in areas not covered by the Constitution, it means absolutely nothing.

The Constitution does not cover cats. A state can pass any kind of law it wants to about cats. Since the Constitution does not cover cats, it is totally irrelevant to the discussion of cat laws.

The Constitution says that the right of the people to keep and bear arms shall not be infringed. That is the Supreme Law of the Land. That makes anything in the constitution or laws of any state to the contrary not withstanding.

That in no way adds support to your view of the Second Amendment. The Second Amendment is the supreme law of the land regardless of whether the Second Amendment limits only the national government or it limits both the national government and the states.

 

[ConstitutionCowboy]

That in no way adds support to your view of the Second Amendment. The Second Amendment is the supreme law of the land regardless of whether the Second Amendment limits only the national government or it limits both the national government and the states.

The very essence of The Supreme Law of the Land is that it covers everything. There is no other constitution or law under any other constitution that is exempt from the supreme law of the land. Have you actually read what you just wrote? You are really hilarious - but you know that don't you!

Woody

You can live free holding the stock and possibly never have to pull the trigger, or you can try to live free at the muzzle. I prefer to hold the stock and live free. Those at the muzzle never seem to fare quite so well. B.E.Wood

 

[gc70]

Isn't it funny how the courts found a "public use" by taking private property and giving it to a PRIVATE developer. Regardless of increased tax revenue, that decision was one of the worst in a long line of bad court decisions.

SCOTUS did not find a "public use" in Kelo and the states held the power to limit the definition of "public use."

This Court’s authority, however, extends only to determining whether the City’s proposed condemnations are for a “public use” within the meaning of the Fifth Amendment to the Federal Constitution.

We emphasize that nothing in our opinion precludes any State from placing further restrictions on its exercise of the takings power.

You put more value on whether you like the results of a case than whether a case is decided in accordance with the law. It sounds like you would be happy for judges to "legislate from the bench" as long as you liked the outcome.

When judges stick to the law and you don't like the outcome, you can vote for legislators who will change the law. When judges make up law as they go, they are no better than petty dictators.