Second Amendment is completely general (applies to states and federal government)

[Michael Courtney]

In several threads I have read ignorant statements asserting that it was the intention of our founding fathers to only restrict the federal government with the second amendment.

The authors of our Bill of Rights knew well how to write amendments that only limited certain branches of government and did begin some amendments with the phrase "Congress shall make no law . . ." The original intent and strict construction of this phrasing clearly applies only to Congress.

However, it is a grave hermaneutical error to infer these words into amendments where they are not present. The second amendment does not limit Congress alone. It is completely general, ". . . the right of the people to keep and bear arms shall not be infringed." Thus it applies to any and every agent of governmental authority.

Michael Courtney

 

[El Tejon]

Yes, and so . . .?

I'm sorry, Mike, I missed your point.

 

[hugh damright]

Sorry, but the ignorant statements are the ones that assert that the USBOR was intended to limit the States. A Constitution frames a government and a BOR limits that government, it doesn't have to say with every clause that the intent is to limit only the government framed by the Constitution in question. We cannot just infer the words "no State shall" when the USBOR says no such thing. To do so would be to infer federal powers when there is no such delegation. If the Second Amendment had been intended to bind the States, it would say "no State shall" and "Congress shall have power to enforce this provision".

 

[RP88]

I've missed both the point and Hugh's counterpoint here.

The bill of rights doesnt bind anything; it states the essential freedoms that both the federal and state governments cannot infringe. Due process, right to property, privacy, freedom of speech, etc. and of course the 2A are all nonspecific amendments that protect the rights of the people, and not impose any balance or such on powers between state and federal government. Neither has the right to interfere with these rights. The Bill of rights in its entirety is meant to protect the people by limiting the government, fair and simple. Separation of church and state, enumeration and reservation of powers, etc. that strengthen and balance the rights of both governments come later are not in the bill of rights, and none of those amendments give any level of government the explicit power to override--on any level--any right found in the bill of rights by their personal choosing to begin with.

 

[romma]

Why would Founding Fathers that were constucting a Country "Of The People, For The People and by The People" create and establish a Bill Of Rights for the Goverment and not the People?

It makes ZERO sense absolutely ZERO sense.

 

[hugh damright]

I understand it to be a principle of constitutionalism that a constitution frames a government and a BOR limits that government. A BOR of one government does not limit other governments with their own constitutions and their own BOR. In this view, the USBOR doesn't limit Virginia for the same reason that the North Carolina BOR doesn't limit Virginia. And of course, we should not take the fact that the NCBOR was not intended to limit Virginia, and conclude that the NCBOR is useless, or that Virginia is not bound by a BOR. Each government, VA, NC, and US, is framed by its own Constitution and limited by its own BOR. The point of the USBOR is to limit the US government framed by the US Constitution.

Of course, if the US were a wholly national government such that the States had no sovereignty, then the USBOR would naturally be binding throughout the US just as the Virginia BOR is binding throughout Virginia. But our constituted frame of government preserves the States' sovereignty, such that Virginia and the US are both considered sovereign, and the USBOR wasn't intended to limit Virginia just as the Virginia BOR wasn't intended to limit the US.


"The question thus presented is, we think, of great importance, but not of much difficulty. The constitution was ordained and established by the people of the United States for themselves, for their own government, and not for the government of the individual states. Each state established a constitution for itself, and in that constitution, provided such limitations and restrictions on the powers of its particular government, as its judgment dictated. The people of the United States framed such a government for the United States as they supposed best adapted to their situation and best calculated to promote their interests. The powers they conferred on this government were to be exercised by itself; and the limitations on power, if expressed in general terms, are naturally, and, we think, necessarily, applicable to the government created by the instrument. They are limitations of power granted in the instrument itself; not of distinct governments, framed by different persons and for different purposes." - Barron v Baltimore

 

[rantingredneck]

Doesn't the simple fact that each ammendment has to be ratified by 3/4 of the states mean that the states are thereby bound by them? I can't envision a system where 3/4 of the states say yes to the amendment and then go off and do what they damn well please.

 

[hugh damright]

Doesn't the simple fact that each ammendment has to be ratified by 3/4 of the states mean that the states are thereby bound by them?

Not at all. The States' concern was that the US Constitution was creating a federal government that was too powerful. They intended the USBOR to limit the federal government, and that is what they ratified.

Just the other day I read something in the Congressional record where a Congressman from Vermont stated the reality rather plainly:

"in the minds of those who framed the Constitution probably no belief was firmer than that for all time it was much safer to leave the states to protect the rights of the people than to place that duty upon the General Government."

 

[Gordon Fink]

This nonsense again?

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.

…​

The Bill of Rights has always applied to the several states, despite legal shenanigans to the contrary.

~G. Fink

 

[gc70]

In several threads I have read [strike]ignorant[/strike] statements

The Bill of Rights has always applied to the several states, despite legal shenanigans to the contrary.

The Bill of Rights was not applied to the states until (piecemeal) incorporation under the 14th Amendment. One would think that the Founders would have noticed and mentioned such "shenanigans" in the nation's first century of existence... if they had existed.

From the preamble of the Congressional resolution that presented to the states the first 12 proposed amendments to the Constitution:

Congress OF THE United States,

begun and held at the City of New York, on
Wednesday the fourth of March, one thousand seven hundred and eighty nine.

THE Conventions of a number of the States, having at the time of their adopting the Constitution, expressed a desire, in order to prevent misconstruction or abuse of its powers, that further declaratory and restrictive clauses should be added: And as extending the ground of public confidence in the Government, will best ensure the beneficent ends of its institution.

The purpose of the amendments that became the Bill of Rights was to "prevent misconstruction [of the Constitution]" or to "prevent... abuse of [the Constitution's] powers." There is no mention of the states demanding amendements to the federal Constitution that would limit state powers.

 

[Gordon Fink]

Yes, the federal and state governments routinely break the law. What else is new?

~G. Fink

 

[gc70]

Yes, the federal and state governments routinely break the law. What else is new?

Rather than a non-answer that ignores available evidence, it would be enlightening if you could provide references to early federal court decisions, writings of the Founders, or discussions during state constitutional ratifying conventions that show the Bill of Rights was intended to limit, constrain, or remove state powers. Otherwise, I appreciate your opinion but respectfully disagree.

 

[hugh damright]

it would be enlightening if you could provide references to early federal court decisions, writings of the Founders, or discussions during state constitutional ratifying conventions that show the Bill of Rights was intended to limit, constrain, or remove state powers.

Indeed. And it might also help to explain this constitutional theory whereby a BOR limits governments other than the one framed by the Constitution which the said BOR is part of.

 

[ctdonath]

The bill of rights doesnt bind anything;

"Congress shall make no law..."
"...shall not be infringed."
"No Soldier shall..."
"...shall not be violated..."
"No person shall be held to answer ... nor shall any person be subject ... nor shall be compelled ... nor be deprived ... nor shall private property be taken ..."
"...the accused shall ... be informed ...; to be confronted ...; to have compulsory process ..., and to have the Assistance ..."
"...the right of trial by jury shall be preserved..."
"...shall not be required, nor ... imposed, nor ... inflicted."

Sounds like a whole lotta binding to me (to wit: the gov't shall or shall not do a whole lotta things; gov't is obliged, as contrasted with gov't doing whatever it wants).

 

[USAFNoDAk]

The 10th Amendment: "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."

So this would seem to indicate that there were certainly powers of the states which were limited or "prohibited" to the states by the constitution. The Bill of Rights are a part of the Constitution. Thus, they could be shown to limit state powers. I don't know of any legal cases where that thought process was decided to be valid. However, there is a USSC case where the finding was that the right to keep and bear arms is not a right granted by the Second Amendment, nor is it in any way dependent upon it for it's existence. Is the right then dependent upon state powers for its existence?

 

[hugh damright]

The 10th Amendment ...would seem to indicate that there were certainly powers of the states which were limited or "prohibited" to the states by the constitution. The Bill of Rights are a part of the Constitution. Thus, they could be shown to limit state powers.

I do not think the Tenth can be construed to mean that the USBOR prohibits the States.

Of course a federal constitution limits the States. By delegating powers, the States are often limited from exercising that power themselves ... for instance, the US Constitution delegates the power to declare war, to make treaties, and to coin money, and then it goes on to say that no State shall engage in war, or make treaties, or coin money. There is no doubt that the clauses which begin "no State shall" bind the States, but the USBOR says no such thing, and quite the contrary, the Preamble says clearly that the intent is to prevent misconstruction and abuse of federal powers, and the First Amendment specifies that it is Congress that is being prohibited.

the right to keep and bear arms is not a right granted by the Second Amendment, nor is it in any way dependent upon it for it's existence. Is the right then dependent upon state powers for its existence?

In the same case, the SCOTUS said that the States' gun control powers have federal limits, not from the Second Amendment, but that no State could disarm its general population.

 

[gc70]

Is the right then dependent upon state powers for its existence?

IMO, the RKBA is a natural human right, the existence of which transcends governments. Governments may or may not choose to recognize or honor the RKBA, but the right still exists.

The constitutions of 44 states recognize the RKBA, although the scope of the right that is recognized varies from state to state.

 

[Gordon Fink]

I gave you Article VI, where it is written very clearly. Everything beyond that is unconstitutional obfuscation.

~G. Fink

 

[gc70]

Oh, yes, Article VI - the supremacy clause. Let's take the supremacy clause and see how many improbable scenarios we can build.

All legislative Powers herein granted shall be vested in a Congress of the United States

Check - no need for state legislatures; the US Congress takes care of legislative functions.

The executive Power shall be vested in a President of the United States of America.

Check - no need for state governors; the President takes care of executive functions.

The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish.

Check - no need for state courts; the federal courts take care of judicial functions.

I need go no further because you will provide totally accurate rebuttals to the above scenarios. Your rebuttals will prove that the Constitution applies to the federal government and federal issues, except when it specifically states otherwise. However, when the language of the Second Amendment - as part of the very same Constitution - is examined, you claim a different standard for the scope and application of the Constitution. Quite confusing.

 

[USAFNoDAk]

There is no doubt that the clauses which begin "no State shall" bind the States, but the USBOR says no such thing, and quite the contrary, the Preamble says clearly that the intent is to prevent misconstruction and abuse of federal powers, and the First Amendment specifies that it is Congress that is being prohibited.

I don't disagree with you, however, if the founders wanted only the federal government to be limited in infringing against the right to keep and bear arms, why didn't they, as they did in the first amendment, say that congress shall make no law abridging the right to keep and bear arms? I believe the founders whole heartedly believed in an individual right to keep and bear arms and wanted to protect that individual right. The Bill of Rights was a means to keep the federal government from abusing their powers. I agree with you there. However, I also believe that they were concerned about abuse of power against not only the states, but against the citizens. Thus, they created the Bill of Rights to protect the citizens from federal abuse. We seem to agree on that part. Now, what protects the citizens rights against abuses by state power? Their state constitutions? Maybe so. However, the feds seemed to be miffed at how the southern states were abusing the freed blacks in the south and so created the 14th amendment to fix this situation. Why shouldn't the 14 amendment apply to all of the Bill of Rights if it applies to even one? The southern folks argued that if we ratified the 14th amendment that it would allow freed blacks to be armed everywhere they went. Even without being part of the state militia? Apparently, that wasn't a concern at the time.

 

[gc70]

However, the feds seemed to be miffed at how the southern states were abusing the freed blacks in the south and so created the 14th amendment to fix this situation.

Correct. The Congressional debate about the 14th Amendment strongly suggests that it was specifically designed to extend the coverage of the Bill of Rights to the states. Of couse, that presents the question of why bother adopting the 14th Amendment if, as some claim, the Bill of Rights had already covered the states.

Interestingly, the Supreme Court rejected the 14th Amendment's blanket extension of the Bill of Rights in the Slaughterhouse Cases and later only extended coverage incrementally on a right-by-right basis. Some have suggested that the court initially minimized the 14th Amendment's impact due to discomfort that the amendment had been ratified under duress by the Southern states.

 

[USAFNoDAk]

Correct. The Congressional debate about the 14th Amendment strongly suggests that it was specifically designed to extend the coverage of the Bill of Rights to the states. Of couse, thats presents the question of why bother adopting the 14th Amendment if, as some claim, the Bill of Rights had already covered the states.

Just to make it more clear, possibly. There were many instances where the founders seemed intent on specifically clarifying certain portions of the constitution. I believe they created the Bill of Rights for the same reason. They wanted to specifically put a check on government power, even though the constitution itself limited federal government power. I am guessing that they didn't feel the need to specifically address the states in the Bill of Rights because they trusted the states to more closely guard and protect the general well being and safety of their own citizens than a large federal government would. That thinking turned out to be wrong after the civil war. Thus, they had to move to specifically spell out the protections for "the people" with the 14th. This time they specifically protected the people's rights from state power abuses.

Even so, was there ever any existence of state power to disarm their citizens, even the citizens who were not part of the state militia? I don't think so. Also, I thought that by joining the Union, each state was to obey the consitution of the United States. Didn't the representatives of each state swear an oath to uphold the consitution of the United States?

 

[USAFNoDAk]

Minnesota has no provision in it's bill of rights to protect the right to keep and bear arms. Zip. Zero. Nada. Would this mean that Minnesota could ban all firearms possession for all of its citizens except for those who serve in the Minnesota Reserves or National Guard? Some folks say the Second Amendment does not apply to the states. Some say that, since the 14th amendment has never been found to apply to all of the Bill of Rights (only the Second Amendment seems to be in question) that any of the states would be free to ban all firearms ownership within the state if their own constitution didn't stop them from doing so.

So, would Minnesota be within it's powers to ban all firearms in this state, as the federal and Minnesota State constitutions exist today? I wonder what the Supreme Court would have to say about such an act. We may never know. Just like finding out how many licks it takes to get to the chocolate center of a Tootsie Pop.

 

[gc70]

This time they protected the people from state power abuses.

I agree, within the context of different purposes at different times.

When the states ratified the Bill of Rights, the states did not fear themselves, but did fear the possibility that the "new" federal government would get out of control.

Following the Civil War, the treatment of blacks by the Southern states offended the Northern states. The Northern states proposed the 14th Amendment and forced its ratification to give the federal government power to overrule the actions of the Southern states. Whether viewed as right or wrong, the Founders' original fears that the federal government would become all-powerful and dictate to the states were essentially realized.

 

[Michael Courtney]

Sorry, but the ignorant statements are the ones that assert that the USBOR was intended to limit the States.

So you are arguing that states (including state militias and state agencies)have the power to take private property for public use without just compensation, quarter soldiers in private homes in times of peace, and conduct searches with neither warrants nor probable cause?

So you are also arguing that states have the power to try people twice for the same crime, deprive people of life, liberty and property without due process, and convict people without a trial by jury?

Furthermore, you are arguing that states are not bound by the 8th amendment prohibition against cruel and unusual punishments, excessive fines, and excessive bail?

Are calling me ignorant, but at the same time arguing that all these protections only limit the federal government and not the states?

It is not a "Bill of Limitations of Federal Power" it is a "Bill of Rights."

Only the 1st Amendment is constructed in such a way as to limit only the Federal power.

Michael Courtney