First, I'm a firm believer in natural law. So I think we both understand rights. I think we differ on who he would trust with upholding those rights. A all powerful Federal government that would force states to do what ever it decided. Which is our current situation, going beyond rights. Or 50 separate state governments, which all have similar constitutions to the Federal constitution. I personally would rather take my chances with states over the Federal. Atleast I could move out of and to another state, can't do that with the Federal government. This argument is as old as our country is, Federalist vs Anti-Federalist.
No 2nd amendment in Mass.
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First, I'm a firm believer in natural law. So I think we both understand rights. I think we differ on who he would trust with upholding those rights. A all powerful Federal government that would force states to do what ever it decided. Which is our current situation, going beyond rights. Or 50 separate state governments, which all have similar constitutions to the Federal constitution. I personally would rather take my chances with states over the Federal. Atleast I could move out of and to another state, can't do that with the Federal government. This argument is as old as our country is, Federalist vs Anti-Federalist.
The Federalist Papers are irrelevant to the interpretation of the 14th Amendment. They pre-date the 14th Amendment by some 80 years.mowmer said:
Whatever the Founding Fathers understood and intended the interpretation and application of the Bill of Rights to be, the 14th Amendment changed that. That's what a Constitutional Amendment does; it changes the Constitution.
Clearly the Founding Fathers expected and intended the Constitution to be subject to change. They built into the Constitution procedures for doing so (Article V).
Bartholomew Roberts
Member
mowmer said:
How are drug laws or the FCC related at all to the Bill of Rights or the 14th Amendment? I don't recall either one being menioned in the BoR or the 14th Amendment and as far as I know none of the laws in that regard cite either the BoR or the 14th Amendment as the source of their powers.
As to the others, those have been found to fall under the 1st Amendment or in the case of abortion, the unenumerated rights. As a result, neither state NOR federal government may regulate in certain areas. However, this is a restriction, not an allowance. Personally, I tend to favor lessening the areas where government may regulate.
On the contrary, it helps protects those powers reserved to the people by letting them use the federal government to protect themselves against the state government (for example, the Civil Rights era).
I don't get what point you are trying to make here. The 14th Amendment acts to protect rights AGAINST government regulation. It doesn't allow it. If the Heller decision had gone against gun owners (which it already had in every circuit but the 5th Circuit and D.C.), the 14th Amendment wouldn't allow the Feds to write more gun laws. In fact the 14th Amendment would have a pretty awkward relationship with a collective rights interpretation of the Second.
Again, why is applying the Bill of Rights to the States a bad idea? Is there something particularly horrible in the Bill of Rights?
One more time for good measure - the Bill of Rights tells government (both state and federal when applied by the 14th) where it MAY NOT regulate. The 14th Amendment doesn't allow the Feds to force states to do whatever it decides. It does allow the Feds to step in an protect the rights of citizens when the state will not uphold them. For example, when some states refused to desegregate their schools and allow black students, it allowed the federal government to step in and force this. People have a right to freedom of worship, so Massachusetts cannot throw atheists in the stocks, state constitution not withstanding.
Finally, the 14th Amendment does absolutely nothing from stopping the states from adopting even stricter protections of the Bill of Rights (though the supremacy clause of the Constitution might). States can still act to protect the rights in the Bill of Rights as well, so it isn't an either/or choice (states or feds).
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GMFWoodchuck
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This whole thing is stupid. The judges obviously either never asked themselves the basic question as to what the founding fathers wanted when they wrote the 2nd ammendment or they don't give a damn.
Either way, they should be tried and convicted of treason.
Either way, they should be tried and convicted of treason.
GMFWoodchuck
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How can a right be a collective right if it doesn't aply to the the individual? If I can't have a gun. My neighbors can't have guns. Then, how can we as a whole have guns? The "collective-right" idea is just a skirt around by lawyers telling the masses what they need to hear in order to shut up. Anyone with common-sense can use logic and see how this isn't possible. The 2nd ammendment was ABSOLUTELY NEVER INTENDED to protect the rights of a government. It was intended to protect the rights of INDIVIDUALS no matter what state they reside in. These rights are protected and garanteed by the constitution. Not granted. We were already granted these rights the moment we came into existence as individuals when we were concieved. Whether or not a person is Christian and thinks these rights are granted by god, or an Atheist and is granted the rights as a basic neccessity of life as a way of self-defense.
The constitution protects and garantees ALREADY GRANTED rights to the individual. No government has the right to restrict that. Though many use the COLLECTIVE (there's that lawyer word again) power to physically restrict granted individual rights.
The constitution protects and garantees ALREADY GRANTED rights to the individual. No government has the right to restrict that. Though many use the COLLECTIVE (there's that lawyer word again) power to physically restrict granted individual rights.
outerlimit
Member
If healthcare passes federal law trumps state law, but if states pass unconstitutional gun laws, state laws trump federal laws. Go figure 
FCC has the ability to regulate free speech thru the median of TV, radio, wire, satellite, cable, etc.. This goes against the very idea of the 1st amendment and what the Federal government should not be doing.
One of the issues the Federalist had with the BoR rights, was that they feared government would only see those 10 amendments as the only rights people had. Drug laws are a example of that. If you believe in natural law than you believe people can do what they want with there bodies. This is a example of government refusing you that right and making everyone in the 50 states criminals if you use illegal drugs.
I understand, but what if the Federal government makes laws that violate or regulates a right. Which they have and do. This will force states to comply with that regulation and law. Eminent domain is another example of this. Again this is about one centralized government making all the rules opposed to 50 state governments. People have more power at the local and state levels then the Federal. I know states have not been perfect in upholding rights, but neither has the Federal government.
It does? How, by letting the Federal government decide on what a right is while forcing states to except there interpretation of a right. It allows the Federal government to regulate that right. This is what Alexander Hamilton warned about in the Federalist papers.
As far as the Heller case. If it had gone against gun owners, the supreme court decision by itself would have told the entire country that the 2nd was a collective right. Every state official wanting to ban guns would have started legislating for gun laws using the supreme court of the US as case law to validate there actions. This is the danger of the Federal government defining a right, the states have to go by this because the Supreme court of the US said so. With 50 states, who would be free to choice which gun laws (or none at all) prescribed by there constitution and allow there courts to decide. 50 states, 50 state courts=better odds that the majority of states would uphold the right to self defense.
But the Federal government does regulate rights and does force states to uphold IT"S decision on those rights. I have no problem with the BoR, in fact I don't believe it goes far enough. The problem is if a right is defined by the federal government, that definition is forced on the states to abide by right or wrong. One centralized government opposed to 50.
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Bartholomew Roberts
Member
mowmer said:
OK... I am not sure what to say to this since it doesn't make any sense to me. Are you arguing that because you feel the FCC violates the First Amendment, the federal government should not be able to stop states from violating the First Amendment? Because I do not understand how the FCC is related to the 14th Amendment. Maybe you can explain that for me.
You do understand that the FCC doesn't claim to be able to regulate these things BECAUSE of the 14th Amendment, right?
Which is why we have the 10th Amendment, which the 14th Amendment does not negate by the way. To date, being able to take drugs has not been found by any court to be one of the fundamental rights protected by the founding fathers and so it has not been protected by the Bill of Rights.
Your argument appears to basically be "I don't agree with the way the Federal government defines rights and I would prefer that the States were able to write definitions completely different from the Federal government - which I cannot do because of the 14th Amendment."
If that is your argument - and I am not sure it is since much of what you say makes no sense to me - then we disagree about the desirability of your result; but we both know how to change it - repeal the 14th Amendment.
No. Once a right is established, neither the states nor the federal government may regulate without meeting the strict scrutiny test. The Feds do not force the states to adopt any regulation, they PREVENT the states from adopting regulations. You keep saying you understand this distinction; but then you turn around and repeat the idea that the 14th Amendment somehow confers a regulatory power on the Feds that they did not already have.
OK, let's examine that scenario:
Prior to Heller, only Texas, Louisiana, Mississippi and Washington D.C. have an individual right to own firearms, and that right is so weak, that all the existing federal laws so far have been found to be OK. Everywhere else there is a collective right and states can pass any firearms laws they like, restricted only by their state constitutions. So let's see what happens under several different scenarios:
1. We are defeated in Heller and the dissenting opinion prevails. The Second Amendment is not incorporated through the 14th Amendment.
Results: Texas, Louisiana, Mississipi and D.C. lose whatever weak protections they had from the Federal government. States can still regulate however they want. Law stays the same everywhere else. Your state assault weapons ban is good law.
2. We are defeated in Heller and the dissenting opinion prevails. The Second Amendment IS incorporated through the 14th Amendment.
Results: Texas, Louisiana, Mississipi and D.C. lose whatever weak protections they had from the Federal government. States can still regulate however they want. Law stays the same everywhere else. Your state assault weapons ban is good law.
3. Heller majority prevails. The Second Amendment is not incorporated through the 14th Amendment.
Results: Federal law actually overturned. The Second Amendment now protects an individual right to own firearms against federal alw; but that right can be regulated out of existence at the state level if states allow it. Your state assault weapons ban is good law.
4. Heller majority prevails. The Second Amendment IS incorporated through the 14th Amendment.
Results: Federal law actually overturned. The Second Amendment now protects an individual right to own firearms in all 50 states; and neither the feds nor the states cannot pass any law that is the same or worse than the law in Heller. Your state assault weapons ban can be challenged.
Let's highlight this again:
Presuming that the state constitution allows such a ban, the only way to stop state officials from passing gun laws is for the voters in that state to remove said officials or for the 14th Amendment to incorporate the Second Amendment. Typically, the places where firearms owners are most discriminated against are the places where they have the least voting power - this is the whole point of the Bill of Rights, to protect the unpopular minority from the majority.
Do you understand where the federal governments power to regulate comes from? It comes from the Constitution.
The Bill of Rights outlines areas the Federal government MAY NOT regulate. The 14th Amendment extends those protections to the states. By denying the protection of the Bill of Rights, it doesn't mean you also get to deny the federal power to regulate under the Constitution. You understand this right?
For example, the 1994 Assault Weapon Ban was passed under Congress's commerce clause power. The fact that the Second Amendment had not been incorporated against the states didn't stop Congress from applying this ban to the states through the Supremacy Clause. Do you get it? The 14th Amendment has nothing to do with that.
StarDust1
Member
I understand your disgust and frustration with the blatant despotism of the MA court, but in truth, the 2nd Amendment has been meaningless for decades!The following article blows my mind becasue the judges/freedom snachers disregard the Heller case. Read the following article about how the Supreme Court in Mass ruled that the 2nd amendment does not apply to states. I can only bang my head against the wall as I watch America circle the drain.
http://www.southcoasttoday.com/apps/pbcs.dll/article?AID=/20100311/NEWS/3110340.
Honestly, I cannot believe this!! I am going to get rid of all my guns and get a lobatomy, and watch TV all day long.
I'll get flamed by the usual suspects for this but the truth is the truth, it's not a right if you must seek permission before purchasing or carrying a firearm, that by definition is called a privilege!
The committed anti-gun crowd is much, much more than just anti-gun, they are what they've always been, anti-individual, pro-statist totalitarians.
The FCC is defining what the Federal government says is OK to broadcast, say, etc.. The FCC does not care where in the USA your radio station is. It does not care what the state laws are in regard to free speech. It's going to regulate your speech and tell you what you can't say. There by over riding state law and violating the 10th amendment. It's defining what is or isn't expectable in regards to the 1st amendment by it's actions. There by telling the states the limits the Federal government places on the 1st amendment. This is then translated to the 14th amendment because this is what the Federal government see's as OK or not in regards the the 1st amendment. It's placing a limit on a right that the states will also be held to. So if you sued the FCC and the case went to the SCOTUS, they would say there is limits on your right and the FCC is ok. Because they are given the authority over state rights to tell you your limits on that right.
Yes, your making my point on this. The problem with the BoR's is people and government are lead to believe that those rights are the only one's you have. However natural law says otherwise. Unless you commit force or fraud against someone, you should be allowed to do whatever you want.Natural laws states you own your mind and body, this is were property laws start. Which naturally lead to a free society and capitalism.
This is basically my agreement. But it's not every definition of a right by the Federal government i.e. supreme court that I have a problem with. It's the fact the supreme court decisions supersede state laws. This isn't what the founding fathers wanted and really isn't the intention of the 14th amendment. Look at a early definition of the 14th by the supreme court: Supreme Court ruled that the amendment's Privileges or Immunities Clause was limited to "privileges or immunities" granted to citizens by the federal government by virtue of national citizenship. Look at article 4 of the constitution that defines privileges and immunities: "privileges and immunities" clause prohibits state governments from discriminating against citizens of other states in favor of resident citizens (e.g., having tougher penalties for residents of Ohio convicted of crimes within Michigan). It also establishes extradition between the states, as well as laying down a legal basis for freedom of movement and travel amongst the states.
What? YES they do, it's called supreme court decisions. What scrutiny test are you referring to? LOOK at what I've been trying to get you to understand, www.law.cornell.edu/supct/cases/topic.htm
These are all cases that the supreme courts decisions are brought down on the states to follow, right or wrong.
The supreme court decided correctly in the heller case because it was all Federal laws involved in the case. But it's now telling a city what it can not do. What if they said it was a collective right. This would then give any state a justification for gun laws over there own state laws because the supreme court has been given this god like status on defining rights.
What if SCOTUS said warrant less searches are OK. States would then be able to disregard there own state laws and conduct warrant less searches .Why, because the police could appeal there case to the supreme court, which already said it was ok. There by defining a right and superseding state rights.
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No? Ever heard of the Supremacy Clause?
"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." (emphasis added)
Called the Slaughterhouse Cases. Almost unanimously considered to be wrongly decided. Even the current Court thinks so, but is reluctant to overturn 140 years of precedent.
You've also taken a very narrow view of the 10th Amendment. The 10A protects not just the states, but the people. It reads "The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people. The Founding Fathers at the time envisioned the States as defense against an overreaching Federal Government. They didn't contemplate the states themselves violating the rights if their respective citizens. But it is clear in the 10th Amendment that the rights are reserved to the people as well.
That means that States DO NOT have carte blanche to violate citizens rights without interference. The 14th Amendment protects the states from doing exactly this. The 14A is a Constitutional Amendment and therefore carries as much weight as the 10th, or 1st, or 2nd Amendment, or any other clause in the Constitution. It cannot be marginalized as less important.
The original system was that the states protect its citizens from the federal government. So I ask you... Who protects the citizens when their own State Government infringes on their liberty? What recourse do the citizens have?
That is why we have a system of checks and balances. To solve (or attempt to solve) the age old question, "Who will guard the guards?"
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Bartholomew Roberts
Member
mowmer, your understanding of our system of government is wrong on so many levels I don't know where to start.
OK, give me an example of a state law that is less restrictive than the FCC law and how the FCC has forced the state to accept its interpretation. More importantly, explain to me under what Constitutional authority the FCC has that authority according to the legislation or courts.
I'm already familiar with the Slaughterhouse Cases and have read much of the amicus briefs on both sides in McDonald. I would recommend you do the same as it would help explain many of the issues you do not seem to understand.
No mowmer, this is not the way it works. States can have more restrictive protections that the Federal constitution. If the Federal government said that warrantless searches did not violate the 4th Amendment, then this would not make it OK to conduct warrantless searches in states that had laws prohibiting such conduct.
Let me use an actual case to explain this. The Fifth Amendment says "nor shall private property be taken for public use, without just compensation". In the now infamous Kelo case, the Supreme Court ruled that condemning property for economic development was a "public purpose" justifying eminent domain.
Under your mistaken interpretation, States can now take private property for economic development, even if it violates their own state laws and state constitutions because they can just appeal to the Supreme Court; but that isn't the way it works in real life.
State law is different from federal law and states can still be more protective of rights than the federal government, subject to the supremacy clause and those powers delegated to the federal government. The 14th Amendment does not change that AT ALL.
There by over riding state law and violating the 10th amendment.[/quote]
OK, give me an example of a state law that is less restrictive than the FCC law and how the FCC has forced the state to accept its interpretation. More importantly, explain to me under what Constitutional authority the FCC has that authority according to the legislation or courts.
I'm already familiar with the Slaughterhouse Cases and have read much of the amicus briefs on both sides in McDonald. I would recommend you do the same as it would help explain many of the issues you do not seem to understand.
No mowmer, this is not the way it works. States can have more restrictive protections that the Federal constitution. If the Federal government said that warrantless searches did not violate the 4th Amendment, then this would not make it OK to conduct warrantless searches in states that had laws prohibiting such conduct.
Let me use an actual case to explain this. The Fifth Amendment says "nor shall private property be taken for public use, without just compensation". In the now infamous Kelo case, the Supreme Court ruled that condemning property for economic development was a "public purpose" justifying eminent domain.
Under your mistaken interpretation, States can now take private property for economic development, even if it violates their own state laws and state constitutions because they can just appeal to the Supreme Court; but that isn't the way it works in real life.
State law is different from federal law and states can still be more protective of rights than the federal government, subject to the supremacy clause and those powers delegated to the federal government. The 14th Amendment does not change that AT ALL.
This is the way it works, look at the first paragraph of the hyperlink you left in your post. "A U.S. Supreme Court ruling GIVING local governments broad powers to condemn homes to make way for economic development projects isn't likely to have a big effect in Washington."-SEATTLE POST
Just because that local government isn't going to follow that ruling doesn't mean others won't. That ruling gave local/state governments the power to abuse eminent domain. In places like...oh, lets see, Connecticut. Even if the Kelo case was decided wrongly at the state level, it would be easier to over turn at the state level then the Federal. THIS HAS BEEN MY POINT ALL ALONG. The supreme court ruling on a right, in this case private property, CORRECT? There by defining this right,CORRECT? By that action it allows states to also abuse that right it just defined, CORRECT? It does not matter what the state laws are, a local city can just appeal it until it gets to a Federal court,CORRECT? In which case the judge will most likely us case law to decide. Or it will go again to the supreme court. I think it's naive of you to think that states, when given more power would reject that power.
Since the FCC is not in the constitution and the Federal government has no authority to even create the FCC, so I can not answer your question. The point I was trying to make was that the FCC can supersede state laws. If the FCC says you can't say something. Everyone in the USA is bound to that when they use radio, cable, internet, etc.. No matter what state they were in. So is this the Federal government telling you your limit on your rights? Is this forcing people to have to follow what the FCC tells them? Isn't this a violation of the 10th amendment? Shouldn't this power be reserved to the states and to the people. I think the supreme court would most likely rule on the side of the FCC. This, then applied thru the 14th amendment, would create a limitation on that right to the states. If a state run radio station starts ignoring the FCC, what will happen. The FCC will still go after them. Why, because the Federal government will decide what limits you have on a right, not the states. This is my problem with this issue.
Yes and by your logic why do we even have a 10th amendment if the supremacy clause supersede it, or why is the 14th amendment needed if the states are already required to follow the BoR's? I disagee about the Slaughterhouse Cases, I think it's correct in the original intention of that amendment. It was to protect freed slaves by giving them protection of the privileges or immunities clause in the constitution. I have not taken a narrow view of the 10th amendment at all. I'm more in favor of state's rights then most people. But a Federal government telling states what they can or can not do is, even in the realm of rights. In my mind this is a violation of the 10th amendment. This was the case, up until the supreme court decided wrongly to make the states follow it's definition of rights, correct or not. The founders knew it what be easier to change laws at a state level then a federal level. This is why the 10th amendment exists and why the BoR's was intended only to limit the Federal government. This is fact and anyone can do alittle history will see this was the intention. To disagree with that is like saying the 2nd applies only to the collective and not the individual. Thus allowing Federal gun laws.
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Bartholomew Roberts
Member
mowmer said:
No, not correct. First of all, it must have standing to appeal to a federal court. State supreme courts interpret state constitutions. Did you read the part of the article where it said this would not affect Seattle because the Washington state constitution was stricter than the federal with regards to eminent domain? If Seattle could simply appeal to a federal court and have the ruling overturned based on Kelo, then that wouldn't be the case, would it?
So you think that if states are given more power, they will always take that power AND you also think that the federal government shouldn't stop states from violating the Bill of Rights because states are more trustworthy than the federal government? That seems a bit contradictory to me.
mowmer, it is pretty clear at this point that you don't have the basic knowledge necessary for us to have a productive discussion on this subject and I don't have the patience/willingness to teach it all to you. So, I will no longer be participating in this discussion; but perhaps someone else will be interested in it.
The States are required to follow the BoR BECAUSE of the 14th Amendment. It's called incorporation. The Supremacy Clause and 10A are not mutually exclusive. The Supremacy Clause states Federal law trumps State law, but this is only the case where the two overlap. This means that the States get to make the law in fields where the Constitution is silent. The 14A was indeed passed to protect the freed slaves from the State governments. But under you logic, even that would be unconstitutional under the 10A, and apparently if states want to enslave people that's fine. Under your logic, Southern secession would have been appropriate.
How can you disagree with Slaughterhouse and also think the interpretation is correct?
Wow, I thought you would have been smarter then that. I'll type slowly for you. It's not contradictory at all. The states would follow there constitution and settle there matters by means of there courts. But when SCOTUS interferes with this practice, this then allows a abuse of power. It's the Federal government that is giving the states the added power not the states. Is it that too hard to understand, this is the reality of our system. Like the Kelo case. Every state has eminate domain laws, why then do people say that the Kelo case gave states more power then if I'm wrong, as it did in that article YOU hyperlinked? This is because SCOTUS defined eminate domain, which will allow states to use that case when they wrongly use eminate domain. Again this isn't rocket science, this IS what happens. Why else would that article even been written if no power had been given? Even if Washington makes laws to prevent local abuse of that power, doesn't mean all states will. The Connecticut constitution on eminate domain is worded just like eveyother states. Yet, ok I'll type really slowly for you, that SCOTUS case gave Connecticut the OK to abuse that right. Like I said before, this decision will be ten times harder to overturn at the Federal level then at the state. Your right on one thing neither of us are going to change are mind on this topic.
Right, but my logic is correct because the US Constitution already guarantee's every citizen privileges or immunities under Article 4. Section 2. So it does not violate the 10th amendment.Slaves were not citizens, the 14th made them citizens. Southern secession was appropriate under the US constitution. Where in the US constitution does it give the Federal government power to force them to stay in the union?
As long as the Federal government didn't use slaves, slavery was unfortunately aloud. Like I said in earlier posts, I don't think the US constitution goes far enough on the topic of slavery, until the 13 amendment. However if it did at the time of the revolution, there probably wouldn't be a United States.
I don't disagree with the slaughterhouse case, I was disagreeing with your view of the case. I could have worded that better.
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JN01
Member
The contention was that property rights guaranteed by the US Constitution were violated by imminent domain seizures. SCOTUS ruled they were not, allowing States to decide what is acceptable- not saying that they HAD TO allow them, but that they COULD. The STATE and LOCAL governments are responsible for the property seizures- but that should be acceptable to you as you believe they shouldn't have to abide by the Federal constitution anyway.
If States are not bound by the BOR, then the BOR itself is pretty meaningless. If state constitutions were amended to allow state governments to totally control speech, allow unrestricted search and seizure, ban the RKBA, etc, etc., you wouldn't need to worry about the Feds messing with you.
Article 1, Section 10. Give it a quick once over.
Maybe before you get into these Constitutional arguments you should read the Constitution. Not just the first ten and 14th amendments. I don't mean this disrespectfully, but I don't think your grip on Con Law is solid. Not to mention you are the first person I have ever heard, and I have spoken to lots of people about it (Con Law scholars/professors/lawyers included), that thinks Slaughterhouse is actually correct. Even our Supreme Court doesn't think so.
The fact remains that the Federal Government does in fact have the power to step in and prevent states from violating its citizens' fundamental rights, including gun laws, which is where I think this all started. The 14th Amendment gives the Feds that power. The 10th Amendment doesn't trump the 14th. Not how it works. You can argue that it should... but you are incorrect to argue that it does.
What are you talking about here? This gives no power to the Federal government over states that have LEFT the union only to states that are IN the union. The Federal government was create by contract from the states. The Southern states ended that contract by leaving. If they were no longer states in the union, then how does anything in the constitution have power over them?
If you believe in natural rights(which trumps man-made law), then why should a state be subjected to a government that it does not want or gives consent too? Doesn't this defeat the idea of freedom and liberty? After all isn't that what the colonies did to England? The founding fathers knew/experienced this and wouldn't have been able to create the United States if they had a clause/amendment forcing states to stay in the Union.
Maybe you should try and understand what you have read. There is a lot of history behind the reason things were worded and put into the constitution that, over the years have been misunderstood and misused. Like "promote the general welfare" as a reason for social programs, instate commerce clause as reason to regulate almost everything by the Federal government, the 2nd amendment and on and on. If you want to understand for what reason things are in the constitution, it's best to look at speeches, writings of the time and not just SCOTUS rulings or others incorrect interpretation.
I understand this is our reality, my argument was how can someone be a supporter of the 10th amendment but also be a supporter of the 14th. From there it went to, what if the Federal government, when applying a right onto a state was wrong. I mean there are lots of SCOTUS rules that you could disagree with. Some of these rulings would either enable a state to abuse a right or force a state to follow them.
What if SCOTUS rules against gun owners, wouldn't this possibly open the door for states to site that case for a reason for more gun laws? And state judges looking at the SCOTUS decision as there guide. That was my argument. It could work for or against us, I was only trying to point that out. I personally believe these matters should be left to 50 state rather then one court.
Bartholomew Roberts was trying to argue that SCOTUS decisions on rights (in this case eminate domain) had no effect on states. I argued that it would potentially enable more states to abuse this right, thus making my argument.
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Under you reasoning, the States should be free to restrict freedom of speech, force religion on people, not require probable cause for arrest, not give citizens a jury trial etc. because these things are left to be decided by the states. And you are ok with that?
The 10th Amendment grants rights to states not enumerated in the Constitution. Well, the 14th Amendment says states cannot deny citizens P&I or due process. It's right there in the Constitution, so the states can't do that now, the Constitution is no longer silent to that fact. It's not a federal law, its a Constitutional Amendment. Did it take away some state's rights? Sure. But it was done through the proper legal channels and was voted on by the states themselves.
The 10th Amendment grants rights to states not enumerated in the Constitution. Well, the 14th Amendment says states cannot deny citizens P&I or due process. It's right there in the Constitution, so the states can't do that now, the Constitution is no longer silent to that fact. It's not a federal law, its a Constitutional Amendment. Did it take away some state's rights? Sure. But it was done through the proper legal channels and was voted on by the states themselves.
Webbj0219
Member
First of all Mowmer, you need to calm down. Were all friends here. Plus its usually wise to give the mods a lil respect, they deserve it. I know you take this subject kinda passionetely, doesnt justify being uncivil.
Anyway back on topic. I remember reading how the BoR was grafted in mostly not to limit the federal government but to protect the ppl from it. The time period when the BoR was drawn up monarch was a sort of four letter word. I think that most of the ammendments that were put into the body of our constitution had to do with some of the issues that we had with the british king. They decided on having a federal government to kinda keep all the 13 states on the same page. At first some where getting kinda wild. And the BoR was to keep the central government from resembling a dictatorship. Id imagine the 2nd ammendment had something to do with what the British did in Mass. before the revolution, by confiscating weopons. They didnt want that to happen again. Even by our own government. Thats kinda how I understand it. Though I admit Im just a beginer with this stuff. Some of you know much more than I do in this subject.
Also read how Madison lost some of his 17 ammendments one of which protected certain rights from the individual states. The one that Madison thought most important. He ended up with 12 ammendments. Then in the final ratification two more were dropped, having to do with limiting salaries.
As for the tenth ammendment Ill quote from Empire of Liberty, A history of the early republic, by Gordon S. Wood.
Wood also says that Massachusettes, Connecticut, and Georgia never ratified the bill of Rights.
So the Thread Starter posed the question, if the Federal governments ammendments applied to all the states governments? I would assume it does, though I admit again I have very basic knowledge of this subject. So I dont really know.
As for the supreme court making laws. I figure that comes from how lawyers will use case law from other courts to argue their point. For exmple Such and such a court in this states capitol already went over a lenthy trial regarding a very similiar self defense case and that judge decided this party was inocent. So we dont want to go through all that again so lets just use the same conclusion this other court came up with. Enough of that kinda thing happening and Thats how I see courts in a way making the laws.
Anyway back on topic. I remember reading how the BoR was grafted in mostly not to limit the federal government but to protect the ppl from it. The time period when the BoR was drawn up monarch was a sort of four letter word. I think that most of the ammendments that were put into the body of our constitution had to do with some of the issues that we had with the british king. They decided on having a federal government to kinda keep all the 13 states on the same page. At first some where getting kinda wild. And the BoR was to keep the central government from resembling a dictatorship. Id imagine the 2nd ammendment had something to do with what the British did in Mass. before the revolution, by confiscating weopons. They didnt want that to happen again. Even by our own government. Thats kinda how I understand it. Though I admit Im just a beginer with this stuff. Some of you know much more than I do in this subject.
Also read how Madison lost some of his 17 ammendments one of which protected certain rights from the individual states. The one that Madison thought most important. He ended up with 12 ammendments. Then in the final ratification two more were dropped, having to do with limiting salaries.
As for the tenth ammendment Ill quote from Empire of Liberty, A history of the early republic, by Gordon S. Wood.
Thats about all I know of the tenth ammendment, actually never studied the tenth till just now, mostly focused on the second.
Wood also says that Massachusettes, Connecticut, and Georgia never ratified the bill of Rights.
So the Thread Starter posed the question, if the Federal governments ammendments applied to all the states governments? I would assume it does, though I admit again I have very basic knowledge of this subject. So I dont really know.
As for the supreme court making laws. I figure that comes from how lawyers will use case law from other courts to argue their point. For exmple Such and such a court in this states capitol already went over a lenthy trial regarding a very similiar self defense case and that judge decided this party was inocent. So we dont want to go through all that again so lets just use the same conclusion this other court came up with. Enough of that kinda thing happening and Thats how I see courts in a way making the laws.
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Every state has a constitution of it's own. All have some form of a BoR's. It's not like states would become a monarchy or dictatorships. One of the points I was making is a state could be stricter on a right. A SCOTUS decision comes along, enabling that state to potently abuse that right with out amending it's laws. The fact is your rights are never 100% secure. I believe at a local/state level, I as a individual have more ability to protect those rights, then at a Federal level.
I believe in this for two main reasons. One: it would be easier to undo bad laws or abuses of rights at the local/state level, people have more power at the state level. Two: there are 50 states, if you don't like a state government in one state you could move to another. As I will be doing. New York state is hopeless and nothing I do can change it. So my reason number one failed but I can/will move soon to a better state. To make my argument, what if the Federal Government became like NY state in terms of gun laws. Every state would then be bound to crappy gun laws. But luckily SCOTUS decisions have favored us (for now atleast,remember it was only 5-4) and I can leave one state's oppression for a freer state.
At the end of the day, I know we are all on the same team here. Our disagreements pale in comparison to the disagreements we have with liberals views on the constitution and gun rights.
Carl N. Brown
Member
If I recall reading the arguments of the Federalists and the Antifederalists correctly, the original assumption was that the state governments would be more likely to respect the rights of their people, but the federal government, being more removed from the people, might be more likely to infringe upon the rights of the people. Therefore, the Bill of Rights was needed to protect against infringement at the federal level, because the federal power was suspect of abuse.
Mowmer,
What you are saying holds up well when the law is a restriction on something. It doesn't make as much sense when you are talking about incorporating the Bill of Rights. The 14A has been used to protect us, to apply the fundamental freedoms of the Bill of Rights to state governments. The 14A has been used to give us more freedom, not restrict it.
What you are saying holds up well when the law is a restriction on something. It doesn't make as much sense when you are talking about incorporating the Bill of Rights. The 14A has been used to protect us, to apply the fundamental freedoms of the Bill of Rights to state governments. The 14A has been used to give us more freedom, not restrict it.
Bartholomew Roberts
Member
OK, I'm on lunch, so I'll waste the time.
Kelo cannot (and did not) give states more power in eminent domain cases unless the laws of that state already offered less protections than the Supreme Court interpretation of the 5th Amendment in Kelo.
Washington's state constitution was stricter than that, so it did not grant Washington any more powers - even though the 14th Amendment applied the 5th Amendment protection against takings to the state of Washington. Clear?
Well mowmer, I hesitate to say that you don't know what are talking about when given your grammar and spelling, I am not all that clear on what you are talking about.
Instead of giving me a stream of consciousness hypothetical, how about giving me a concrete example of where a state had a stricter protection for a right than that outlined in the Bill of Rights, and a Supreme Court interpretation of the Bill of Rights enabled the state to abuse that right without amending its consitution or laws? Maybe then I can understand what point you are trying to make.
mowmer said:
Kelo cannot (and did not) give states more power in eminent domain cases unless the laws of that state already offered less protections than the Supreme Court interpretation of the 5th Amendment in Kelo.
Washington's state constitution was stricter than that, so it did not grant Washington any more powers - even though the 14th Amendment applied the 5th Amendment protection against takings to the state of Washington. Clear?
mowmer said:
Well mowmer, I hesitate to say that you don't know what are talking about when given your grammar and spelling, I am not all that clear on what you are talking about.
Instead of giving me a stream of consciousness hypothetical, how about giving me a concrete example of where a state had a stricter protection for a right than that outlined in the Bill of Rights, and a Supreme Court interpretation of the Bill of Rights enabled the state to abuse that right without amending its consitution or laws? Maybe then I can understand what point you are trying to make.
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