Reading the Second Amendment

[RealGun]

Things surely must have changed a lot since I was in law school fifteen years ago,

If you invent powers to project rights onto freed slaves, you can use those same powers to address civil rights in general. That has been the legal history, regardless of how legal purists may be offended by it. Oppressed gun owners would like a piece of the action.

 

[The Real Hawkeye]

The Court used an argument that were I to use it, would place me in ridicule, just as some have ridiculed hugh damright. The argument of the Majority, was that this amendment flew in the face of the construction of the government as envisioned by the Framers of the Constitution, so it could not mean what it clearly states.

Please isolate in a short clip for me where you have demonstrated that Article IV, Section 2, paragraph one of the US Constitution means that the Federal Government is the guarantor, against State violation, of all individual rights referenced or implied in the US Constitution. I read what you provided twice, but I must have missed it, and don't feel like plowing through it a third time. Thank you.

 

[The Real Hawkeye]

Perhaps even more interesting to the question of privileges or immunities interpretation is the passage from Dred Scott that I already cited in post #208, given that Dred Scott was decided prior to the 14th amendment.

It certainly appears to me that the Taney Court's interpretation of the Constitution's Privileges and Immunities clause in 1859 was exactly equivilent to asserting that the states had, by ratification of the original constitution, surrendered the right to limit the fundamental rights of any citizen more than in any other state or the federal entity, and that federal courts were bound to enforce those rights.



Dex

Dex, the following is from Black's Law Dictionary, which is the Dictionary of Record in the legal profession.

Dicta /dikta/. Opinions of a judge which do not embody the resolution or determination of the specific case before the court [The ulitimate issue in the above case consisted of strictly the question whether Dred Scott had standing as a US citizen]. Expressions in the court's opinion which go beyond the facts before court and therefore are individual views of the author of the opinion are not binding in subsequent cases as legal precedent. State ex rel. Foster v. Naftalin, 246 Minn. 181, 74 N.W.2d 249. See also Dictum /diktem/. Any statement of law enunciated by the court merely by way of illustration, argument, analogy, or suggestion, ... and lack the force of an adjudication. Wheeler v. Wilkin 98 Colo. 568, 58 P.2d 1223, 1226. Such do not embody the resolution or determination of the court. They are made without full consideration of the point, and are not the professed deliberate determinations of the judge himself.

 

[The Real Hawkeye]

If you invent powers to project rights onto freed slaves, you can use those same powers to address civil rights in general. That has been the legal history, regardless of how legal purists may be offended by it. Oppressed gun owners would like a piece of the action.

Then you need to go to your State representatives with a petition to that effect, and get involved in your local and State governments. If you wish your actions to be directed at the Federal Government, your best bet is to seek to restore the Constitution, which was designed to defend your rights primarily by restraining its powers. You see, it is the Federal Government that you need to worry about, rather than looking to it for protection from your State. The Federal Government is not a government made up of angels, but of men, and the very worst kinds of men. They would like you to believe that they are your salvation, but that's only so that you will first allow them to totally neutralize the protections of federalism embodied in the Constitution. Once that is fully accomplished, the hell this country will become is no place in which you will want any longer to live.

 

[gc70]

by hugh damright:
Of course there is an individual RKBA, for self-defense, for hunting, for plinking ... whatever ... but I do not see the Second Amendment as regarding these things. I believe that it regards the RKBA as necessary to the security of a free State i.e. militia. I believe that the view I express is constitutional law, and it is my opinion that constitutional law outweighs gun magazine editorials.

I disagree with your view of the Second Amendment, but not with your conclusion that constitutional law outweighs gun magazine editorials.

Unfortunately, some major authorities on constitutional law, such as the Senate Judiciary Committee (report of the Subcommittee on the Constitution) and even renowned, and liberal, constitutional law professor Lawrence Tribe ("The Second Amendment recognizes a right, admittedly of uncertain scope, on the part of individuals to possess and use firearms in the defense of themselves and their homes." from American Constitutional Law), also disagree with your view of the Second Amendment.

[edited to more clearly reflect that the comments respond to hugh damright's basic thesis]

 

[The Real Hawkeye]

After 279 posts, all I can say is that I disagree, as have others such as the Senate Judiciary Committee's Subcommittee on the Constitution (report) and even renowned (and liberal) constitutional law professor Lawrence Tribe ("The Second Amendment recognizes a right, admittedly of uncertain scope, on the part of individuals to possess and use firearms in the defense of themselves and their homes.").

I agree that it is an individual right. The question has actually become, who is the intended guarantor of said individual right?

 

[Graystar]

As noted in the above, it is evident not only what the Privileges and Immunities clause meant,

Well, I don't agree that it is evident, as the given quotes can be said to support either position, depending on your point of view.

The problem is that the phrase "Privileges and Immunities", as it appears in the Fourteenth Amendment, is qualified with “of citizens of the United States;”. Further, this qualification appears immediately after the dual-citizenship declaration:

…are citizens of the United States and of the State wherein they reside.

OBVIOUSLY, this was done to separate the privileges and immunities, enjoyed through US citizenship, from those enjoyed through state citizenship.

but also that the Congress meant for the federal government to take an active role in protecting the rights of all citizens against the states.

But, as Cruikshank stated, this has always been the case.

Every republican government is in duty bound to protect all its citizens in the enjoyment of this principle, if within its power. That duty was originally assumed by the States; and it still remains there. The only obligation resting upon the United States is to see that the States do not deny the right.

 

[Graystar]

The question has actually become, who is the intended guarantor of said individual right?

Both the state and federal governments are the guarantors of our rights; the state from individual violations, and the federal from state violations.

 

[The Real Hawkeye]

Both the state and federal governments are the guarantors of our rights; the state from individual violations, and the federal from state violations.

Do you contend, Graystar, that the Federal Government is the intended guarantor of each individual right as against State violations, or only certain rights? If only certain right, which ones, and why?

 

[Graystar]

Do you contend, Graystar, that the Federal Government is the intended guarantor of each individual right as against State violations, or only certain rights? If only certain right, which ones, and why?

All rights, as per my previous response to your post:

Originally Posted by The Real Hawkeye
I see the point you are making, but Roe is not a great example, because there is no wording in the Constitution which suggests that someone has the right to terminate the life of an unborn child.

I beg to differ. I believe that makes it the best example for two reasons. First, it cannot be said that this decision falls under the incorporation doctrine because, as you said, there is no such wording. Second, because there is no such wording, it proves that the federal government will defend any right (as long as they recognize it as a right) from state violation.

 

[The Real Hawkeye]

All rights, as per my previous response to your post:

Did you know that even the author of the incorporation doctrine was convinced, and publicly said as much, that the framers of the Fourteenth Amendment had no such thing in mind?

 

[Graystar]

Did you know that even the author of the incorporation doctrine was convinced, and publicly said as much, that the framers of the Fourteenth Amendment had no such thing in mind?

Did you know that this principle does not depend on the Fourteenth Amendment?

The equality of the rights of citizens is a principle of republicanism. Every republican government is in duty bound to protect all its citizens in the enjoyment of this principle, if within its power.
Cruikshank

We are citizens of two governments, both of which are duty bound to protect our rights, in different ways, that provide us with complete protection from individual and government abuse.

 

[RealGun]

http://www.stephenhalbrook.com/freedman.html

Freedman, the Fourteenth Amendment, and the Right to Bear Arms, 1866-1876

by Stephen P. Halbrook

 

[The Real Hawkeye]

Did you know that this principle does not depend on the Fourteenth Amendment?

We are citizens of two governments, both of which are duty bound to protect our rights, in different ways, that provide us with complete protection from individual and government abuse.

Yes, equal protection of the law, i.e., each State must apply their laws equally to everyone within their boarders. This is a characteristic of a republican form of government. I was speaking, however, of the incorporation doctrine, which is something else entirely, whereby it is proposed that the Federal Government is a guarantor of each person's personal rights, i.e., all rights.

 

[Graystar]

I was speaking, however, of the incorporation doctrine, which is something else entirely, whereby it is proposed that the Federal Government is a guarantor of each person's personal rights, i.e., all rights.

Yes I understand. What I'm saying is that the incorporation doctrine is meaningless nonsense. Even before the Fourteenth Amendment, the federal government was duty-bound to protect the fundamental rights of its citizens from violation by state governments. This is what Cruikshank says.

 

[The Real Hawkeye]

Yes I understand. What I'm saying is that the incorporation doctrine is meaningless nonsense. Even before the Fourteenth Amendment, the federal government was duty-bound to protect the fundamental rights of its citizens from violation by state governments. This is what Cruikshank says.

Well, at least we agree on the incorporation doctrine, but I wonder why it was argued to start with if Cruikshank already established essentially the same thing as the law of the land.

 

[RealGun]

Well, at least we agree on the incorporation doctrine, but I wonder why it was argued to start with if Cruikshank already established essentially the same thing as the law of the land.

So that the federal government didn't have to interfere in State attempts to keep guns out of the hands of blacks.

 

[Dex Sinister]

Dex, the following is from Black's Law Dictionary, which is the Dictionary of Record in the legal profession...Dicta /dikta/. Opinions of a judge which do not embody...

I know what dicta is, Hawkeye - and I know as well as you do that what is considered dicta varies considerably depending on which side happens to wish to include/exclude the opinions contained therein.

I'm also well aware that many legal opinions also cite law journals and textbooks to justify their rulings - sources that also have as little precidential value as judge's musings on the reasons that they came to a given decision. After all, I started out my comments when I joined the thread by saying that, as a philosopher, I consider reading a most case law a waste of time, as much "reasoning" contained there is merely self-serving obfuscation designed to conceal the real reasons that a given result was reached. You'll notice that I did not present Dred Scott as binding case precident - merely as "perhaps even more interesting to the question of privileges or immunities interpretation."

Nonetheless, the musings of a collection of Supreme Court Justices, in 1859, prior to the 14th amendment, talking about the meaning of the priviliges and immunities clause - regardless of whether that opinion directly binds later case law - has possibly considerably more weight than the renowned Dr. Samuel Francis, writing in the 21st century and telling us what constitutional interpretation is "supposed" to look like.

Incidently, I googled Sam Francis, [of your very long article in posts # 271-273] and I find the results a little disturbing:

From the obituary on his own website www.samfrancis.net

Through his understanding of elite behavior and his advocacy of the just interests of his own people and culture, Sam was able to reveal the political and historical meaning behind the surface of political events.... He provided unique insights unavailable elsewhere, and gave the fight over race, immigration, and multiculturalism a political dimension others often missed. Sam did not argue the pros and cons about issues, preferring instead to show readers the real — usually anti-white — political and financial motivations behind the elites and interest groups manipulating those issues. He knew, for example, that the drive for "diversity" is simply the abstract rationalization used by America's corporate elites to cloak their appetite for cheap labor from non-Western countries.
[...]
Although his enemies routinely denounced him with the usual cuss words, from "white supremacist" and "white racist" to "bigot," Sam was steadfast in the storm, even when the going got rough and his neoconservative enemies engineered his firing from the Washington Times.
[...]
Sam was devotedly loyal to his friends, a quality some of them did not share. After Sam had been denounced in the press as "racist," the frightened editors of the formerly courageous New American of the John Birch Society quietly dropped Sam's name from the masthead where he had been listed as a contributor. (underlined emphasis mine)

Not that being "routinely denounced as a white supremacist" or writing for the John Birch Society necessarially disqualifies his interpretation of constitutional law, mind you, but it might possibly raise some questions about the impartiality of his analysis. As far as I could see, a mention of any sort of education in legal analysis seemed to be conspicuously missing from Sam's list of qualifications as a constitutional legal historian.

I myself prefer, say, Richard Epstein or Randy Barnett, both of whom are recognized constitutional writers with a number of law school texts to their credit. Have you read Restoring the Lost Constitution by Barnett? Very interesting, I thought.

Dex

 

[Dex Sinister]

But, as Cruikshank stated, this has always been the case.

Part of the difficulty, Graystar - and I do hate to point this out since I agree with your position - is that the passage that you are using from Cruikshank is out of context. In context, it is obvious that it is being applied to the "equal protection" section only.

The fourteenth amendment prohibits a State from denying to any person within its jurisdiction the equal protection of the laws; but this provision does not, any more than the one which precedes it, and which we have just considered, add any thing to the rights which one citizen has under the Constitution against another. The equality of the rights of citizens is a principle of republicanism. Every republican government is in duty bound to protect all its citizens in the enjoyment of this principle, if within its power. That duty was originally assumed by the States; and it still remains there. The only obligation resting upon the United States is to see that the States do not deny the right. This the amendment guarantees, but no more. The power of the national government is limited to the enforcement of this guaranty.

Dex

 

[Graystar]

Part of the difficulty...is that the passage that you are using from Cruikshank is out of context.

Hmmm...I think you may be right.

I had started writing this:

“The point of the quote wasn’t of what right was being protected, but the notion that a right would be protected by the United States as a matter of principle, not of the Fourteenth Amendment.”

But then I reread the last line of the section I quoted, along with the next sentence:

The only obligation resting upon the United States is to see that the States do not deny the right. This the amendment guarantees, but no more.

Now, the US is a republican government, so one could say that it was duty bound, as a matter of principle to protect our rights. However, that last sentence makes it seem that such protection is gained through the Fourteenth Amendment. Such a conclusion could be viable if one views US citizenship by individuals to not have existed until the Fourteenth Amendment made all individuals US citizens. From that point of view, I might say that my previous statement was wrong and it has not always been the case.

But even if one presumes US citizenship to have begun with the Fourteenth Amendment, the scope of protection remains the same, because the principles of republicanism remain the same. And it is a principle of the republican form of government to protect the rights of citizens.

 

[The Real Hawkeye]

I know what dicta is, Hawkeye - and I know as well as you do that what is considered dicta varies considerably depending on which side happens to wish to include/exclude the opinions contained therein.

I'm also well aware that many legal opinions also cite law journals and textbooks to justify their rulings - sources that also have as little precidential value as judge's musings on the reasons that they came to a given decision. After all, I started out my comments when I joined the thread by saying that, as a philosopher, I consider reading a most case law a waste of time, as much "reasoning" contained there is merely self-serving obfuscation designed to conceal the real reasons that a given result was reached. You'll notice that I did not present Dred Scott as binding case precident - merely as "perhaps even more interesting to the question of privileges or immunities interpretation."

Nonetheless, the musings of a collection of Supreme Court Justices, in 1859, prior to the 14th amendment, talking about the meaning of the priviliges and immunities clause - regardless of whether that opinion directly binds later case law - has possibly considerably more weight than the renowned Dr. Samuel Francis, writing in the 21st century and telling us what constitutional interpretation is "supposed" to look like.

Nice come back. Your point is well argued.

 

[The Real Hawkeye]

Part of the difficulty, Graystar - and I do hate to point this out since I agree with your position - is that the passage that you are using from Cruikshank is out of context. In context, it is obvious that it is being applied to the "equal protection" section only.



Dex

Thanks. You made my rebuttal for me, even though you agree with him on the larger issue, and disagree with me. Shows you are fair minded and intellectually honest.

 

[hugh damright]

Why shouldn't I have a valid claim under the federal Constitution when VA attempts to arrest me for carrying a concealed weapon given that the Constitution commands that VA give full faith and credit to CA's legislative act?

I do not believe the "full faith and credit" clause can be construed in such a manner. It would seem to mean that a Nevada License to Prostitute would have to be recognized by every State, and clearly that can't be right. And such a construction would seem to eliminate the States.

Ronald Reagan said that the people of each State were free to form their own culture, society, and government, within limits enumerated in the Constitution. Maybe I over react, but I get the impression sometimes that a discussion is not about which powers/rights are reserved to the States, but whether about a State has any powers/rights at all. I do not believe in a vision of the US where every person in every State must have the same society/culture/government, just as I do not believe in a vision of the US where every person in every State must have the same religion.

Further, a reason why you could not defy VA's CCW laws and then take us to the SCOTUS ... I believe that the 11th Amendment was intended to prevent such a construction, when it says that the US judicial power shall not be construed to extend to matters of equity prosecuted against a State by Citizens of another State.

Many argue that, while the 2nd protects our personal right from Federal infringement, States are free to stomp all over that "Right" as they see fit.

Well, that is not my belief. To me, that would be like saying that since the CA BoR doesn't limit VA, that means that VA is unlimited. But VA has a BoR, and if we did not, then we Virginians would create one. To turn this around, I might say that many argue that if Virginians were free, then we would disarm ourselves, so we need the federal government to rule over us.

My contention is that all States agreed to be bound by the Constitution and BOR when they signed said document and therefore have no legal ground to override its contents.

But hold on now ... this always confuses me ... one the one hand, I believe that the States were concerned that the US Constitution was creating a too powerful central government, and so they requested the original amendments and the BoR to clarify that the US was a limited federal government and did not have jurisdiction over our basic fundamental rights. But it's as if that idea has been flushed down the "truth hole", and replaced with the idea that the States were concerned that the US Constitution created a too weak central government, and they didn't want a limited federal government but rather a national government, and so they requested a BoR with the intent of making the US more powerful, so much more powerful that they have jurisdiction over rights, which is to say everything, as if the US is supreme in all matters.

I do not believe that the States agreed to be bound by the US BoR, I believe their intent was to bound the US.

If you invent powers to project rights onto freed slaves, you can use those same powers to address civil rights in general. That has been the legal history, regardless of how legal purists may be offended by it. Oppressed gun owners would like a piece of the action.

I like guns but I am not a "gun law abolitionist" who wants to "invent powers", in legislation from the bench, in an attempt to further my cause. Personally, I do not believe in attacking the separation of State and federal powers, or the separation of legislative and judicial powers, in the name of "rights" ... I believe that the rule of law is a vital protection of our rights. I believe that the ways of government must be respected as much as the means. Otherwise, the Constitution would not be the supreme law, it would be more like a suggestion.

Now, the US is a republican government, so one could say that it was duty bound, as a matter of principle to protect our rights.

But the US is not a simple republic, the States are the republics ... the US is a "republic of republics" ... I believe that the principles of free government and of the US Constitution determine that it is each State which is duty bound to protect our rights, and that the US is duty bound to respect the States' sovereignty in their internal affairs.