Should the 2nd Am. Be Incorporated Under the Due Process Clause of the 14th Am.

[Frank Ettin]

[QUOTE-ConstitutionalCowboy]...the Constitution is so plainly written that no "interpretation" is needed nor is there room for it to be "interpreted" without altering it's meaning. Second, it is not the Constitution that is construed(decided) as to how it applies to a certain case, but exactly the opposite. The case(the facts and the law) before the Court is decided as to constitutionality, and the case is adjudicated thusly....[/quote]
No you're wrong here.

If the Constitution is so plainly written that no interpretation is necessary, why has there been, over the years, so much disagreement about what it says and how it is to be applied in different circumstances? Perhaps you plan to explain that by asserting that many so called interpretations are erroneous and the result of "agendas" or "evil intent." But what you are really saying is that you know the truth, and everyone else is wrong.

And I don't buy that.

In any case, construing the Constitution in the context of a case arising under it is a necessary part of deciding that case. And not all cases arising under the Constitution involve deciding whether or not a law is Constitutional.

If Congress wanted to invoke the Commerce Clause, it would have said so, same as it invoked Section 5 of the Fourteenth Amendment, and the Full Faith and Credit Clause....

Not necessarily. Reference to "undue burden on interstate commerce" is sufficient for that purpose and will so be understood by a court.

No it isn't. If so, what US Code or Federal Regulation is it? It's just precedent. I see nothing in the Constitution that says "precedent" is the law of the land....

Barron is indeed law. Precedent under the doctrine stare decisis is accepted by courts as a rule it is bound to follow in deciding matters. You may not believe is, but it is how courts work. Unless you understand this, you will not understand the decisions made by courts; nor will you be able to anticipate how courts will be likely to decide matters in the future.

I would say my lack of legal indoctrination is what's bothering you.

No, truly it's your ignorance that bothers me. You seem to be building an alternate universe in which certain things ought to be happening in certain ways. The problem is that they are not. Courts are conducting their business and affecting real people every day, but they are doing so in a way that largely doesn't seem to track with your expectations. Sorry, but that's the way it is. I guess you really don't want to understand the real world. (I know that you want to change things. But how can you really hope to change things unless you truly understand what is happening now? An engineer can't build a better engine until he thoroughly understands, in detail, how current engines work.)

 

[RealGun]

No, truly it's your ignorance that bothers me. You seem to be building an alternate universe in which certain things ought to be happening in certain ways. The problem is that they are not. Courts are conducting their business and affecting real people every day, but they are doing so in a way that largely doesn't seem to track with your expectations. Sorry, but that's the way it is. I guess you really don't want to understand the real world. (I know that you want to change things. But how can you really hope to change things unless you truly understand what is happening now? An engineer can't build a better engine until he thoroughly understands, in detail, how current engines work.) - fiddletown

Critical to the RKBA is not accepting things the way they are. Gun owners do in fact live in "an alternate universe", which corrupted law has created for them. I believe it is the idealists that keep this thing alive and why I can go unmolested wearing a gun. In another state or country I might not be able to exercise such a right, but there would be a multitude of lawyers ready to explain why that has to be the case.

 

[hugh damright]

[it is the word "immunities" which refers to all fundamental and natural rights including the USBOR]

Are you sure about that? Or is it possible that you couldn't claim that rights were "privileges", and so the only option left for you was to try to claim that it is the word "immunities" that refers to natural and fundamental rights? Let's consider the definition you provided:

Exemption from normal legal duties, penalties, or liabilities, granted to a special group of people: legislative immunity.

Exemption from legal prosecution, often granted a witness in exchange for self-incriminating testimony.

Is the USBOR an enumeration of exemptions from normal legal duties, penalties, or liabilities? I thought you just said it was an enumeration of fundamental rights (which also isn't correct but we'll let that go for now). Can you see that the definition of immunities doesn't equate to "fundamental rights"? Are fundamental rights "granted to a special group of people"??

Perhaps you assumed that "legislative immunity" meant immunity from legislation as opposed to legislators having immunity from prosecution in their political duties??

Maybe you think that "exemption from legal prosecution", such as granted to a witness in exchange for self-incriminating testimony, means that we are all exempt from laws which regard "rights"? Is that it???

I have a book which contains the congressional debates over the reconstruction amendments. And it has an index, so I can simply look up "immunities" and see when it was discussed. I cannot find one single example of anyone saying that "immunities" is a reference to all fundamental rights.

Bingham seemed to think that it was the word "privileges" which referred to fundamental rights. On Feb 28th 1866, Bingham explained that the word "immunities" meant "exemption from unequal burdens".

On Mar 1st 1866, Wilson of Iowa explained that the word "immunities" simply means "freedom or exemption from obligation; an immunity is a right of exemption only, as an exemption from serving in an office, or performing duties which the law generally requires other citizens to perfom. This is all that is intended by the word "immunities" as used in this civil rights bill. It merely secures to citizens of the US equality in the exemptions of the law."

Feb 8th, 1869 Senator Frelinghuysen: "An immunitiy is an exemption from a duty; not the guarantee of a right."

Apr 5, 1869 Mr. Golladay: "immunities are rights of exemption only, freedom from what otherwise would be a duty or burden."

Apr 6, 1871 Burchard: immunities means "exemption from a burden".

If there is any record that the framers of the 14th intended the word "immunities" to regard all fundamental rights, I cannot easily find it. Regardless, when the amendment went to the States, how were they to know that the word "immunities" regarded all fundamental rights? It is inane.

Whether you're showing that you're ignorant or disingenuous, it further erodes your credibility

I was trying to show that I have a sense of humor, making a joke about the USBOR having passed so maybe we should call it the "ACT of rights". And you say that erodes my credibility? My advice to you is to take a Midol or Pamprin and come back later when you are feeling better.

 

[Frank Ettin]

...Gun owners do in fact live in "an alternate universe", which corrupted law has created for them. I believe it is the idealists that keep this thing alive and why I can go unmolested wearing a gun...

It's not about accepting the way things are. It's about understanding how things actually are and work. No one said that we have to accept current or any new restrictions on our rights or that we shouldn't try to change current injustices or fight efforts to impose new ones. But you can't do that effectively unless you understand how things actually are and work in the real world. You can't fix a carburetor unless you understand how it functions.

As long as you believe you live in an alternate universe, it's questionable how much longer you will indeed be able to wear a gun unmolested. It's the realists who understand the way the legal and political processes actually work, and who can use them effectively and who also believe in the RKBA, who will be able to preserve our rights -- and in some cases win them back.

Twenty years ago, one could not carry a concealed gun in most states. Now one can in most states (at least with a permit that is relatively easy to obtain). This right was won by people who understood and could effective use the political process. Not by idealists who denigrated the political process and rejected it as corrupt.

Dick Heller and his lawyers won a Supreme Court decision for the first time directly holding that the Second Amendment is an individual right and rejecting the "collective right" view that had become popular and had been driving anti-gun legislation and court decisions. This can become a powerful tool in our efforts to preserve the RKBA against a generally increasingly antagonistic society.

Heller and his lawyers did not accomplish this by idealistically rejecting the law and legal system as corrupt. They accomplished this by understanding the law and how it works and making appropriate use of it.

So enjoy your alternate universe while you can.

 

[redneckrepairs]

I just dont see how its a question . All rights should be incorperated with attendant problems

 

[ConstitutionCowboy]

fiddletown

I'm not ignorant of the law. Otherwise, how do you suppose I can tell the difference between how it's supposed to be and how it is?

If the Constitution is so plainly written that no interpretation is necessary, why has there been, over the years, so much disagreement about what it says and how it is to be applied in different circumstances? Perhaps you plan to explain that by asserting that many so called interpretations are erroneous and the result of "agendas" or "evil intent." ...

Seems you know the answer without asking. Why ask?

But what you are really saying is that you know the truth, and everyone else is wrong.

Not at all. I'm not the only one who knows the truth. I'd include you in that crowd as well. You are not ignorant enough not to know the difference.

Not necessarily.

I'll accept that as, "You know, you might be right". That's good enough for me.

An engineer can't build a better engine until he thoroughly understands, in detail, how current engines work.) - fiddletown

That goes without saying. That doesn't, however, give due credit to the guy who invented the engine in the first place. It is thus with the Founding Fathers. What those on the Court(and a whole bunch of other people as well) have done to that "engine" they invented is despicable. It skips, it blows smoke, it's headed in the wrong direction, it gobbles far too much fuel - let alone the fodder trampled in its path - and it doesn't respond to the throttle anymore.

Sometimes, to fix a thing, all that is necessary is to rid the thing of all the "improvements" and stripped nuts and bolts that have been rounded off by the use of the wrong wrenches.
Put mufflers on a P-51 Mustang and it won't perform near half as well as when it's "free to breath" as intended. So it is with the Constitution.

Critical to the RKBA is not accepting things the way they are. Gun owners do in fact live in "an alternate universe", which corrupted law has created for them. I believe it is the idealists that keep this thing alive and why I can go unmolested wearing a gun. In another state or country I might not be able to exercise such a right, but there would be a multitude of lawyers ready to explain why that has to be the case.

Thanks. We need more of you and I out there. One thing, though: We are the true realist. We know how it's supposed to be. The opposition are idealists. They have taken what was real and turned it into their ideal. Just because they are ahead at the time doesn't make what they have done any less bent to their ideal than when it was real - meaning the current situation is not real, but a twisted ideal. "Reality" being how it is at the time doesn't make it right.

If that doesn't make sense, it's because the left has buggered the language, too.

Woody

 

[Frank Ettin]

... how do you suppose I can tell the difference between how it's supposed to be and how it is?

And who says you can, beside yourself, that is? How are things supposed to be, and who says?

I'll accept that as, "You know, you might be right". That's good enough for me.

Well, that's not what I said, but no matter.

Sometimes, to fix a thing, all that is necessary is to rid the thing of all the "improvements" ...

Is that your solution -- reinvent society from the ground up? So where do you suggest we start. Our current world, and the institutions and cultural foundations we rely on every day evolved over several thousand years. Do we go back that far, or do we just throw out everything since last week, or last year or the start of the 19th Century? And if we start tossing out all our old institutions and ways of do everything, how do we function while devising new institutions and ways of doing things?

 

[RealGun]

Quote:

Originally Posted by ConstitutionCowboy
Sometimes, to fix a thing, all that is necessary is to rid the thing of all the "improvements" ...

Is that your solution -- reinvent society from the ground up? So where do you suggest we start. Our current world, and the institutions and cultural foundations we rely on every day evolved over several thousand years. Do we go back that far, or do we just throw out everything since last week, or last year or the start of the 19th Century? And if we start tossing out all our old institutions and ways of do everything, how do we function while devising new institutions and ways of doing things? - fiddletown

Argumentative. Now you're just sniping. Woody is exactly right when it comes to the benefits of simply shedding gun control laws and legal precedents used in bogus fashion.

 

[Frank Ettin]

It may be argumentative, but then again, we're arguing.

And I do not grant the proposition that we should simply shed all gun control laws and legal precedent. And who decides what has been used "in a bogus fashion"? Indeed, what does that mean anyway?

When anyone starts to talk about "starting over" the issues I raised are legitimate. It seems to me that a lot of people like to talk glibly about throwing out the old and reinventing ourselves with respect to a variety of issues. But people who do that don't seem to be considering what that would entail and how to deal with the extraordinary dislocation it would create.

 

[ilcylic]

I can see both sides of the incorporation debate. On one hand, the first amendment clearly says "Congress shall make no law", implying the limit is only on Congress. I've seen what happens when one skips down the road "interpreting" the constitution, instead of just reading what it says, and it's not pretty.

On the other hand, the BoR makes reference to the states, and talks about which powers are reserved to it, and which are reserved to the people. And likewise, the BoR is part of the constitution, which all the states had to agree to to get in. Which, to me, seems like that means they agreed to follow the BoR.

On the gripping hand, even if the BoR doesn't guarantee certain rights, or isn't binding upon the states, or the 14th doesn't make them apply, the fact on the ground is, I still have a rifle in my hands.

 

[hugh damright]

On the gripping hand, even if the BoR doesn't guarantee certain rights, or isn't binding upon the states, or the 14th doesn't make them apply, the fact on the ground is, I still have a rifle in my hands.

Is New Mexico so bad that your choices are (1) have the federal government take over or (2) you still have your rifle in your hands? It all seems so backwards to me. As a Virginian, my feeling is that if the federal government is going to be in charge of "rights", then that's when we start to run out of options.

 

[ConstitutionCowboy]

Hugh, I don't often respond to what you say, but this time I must. The Union isn't in charge of the rights, the Union is supposed to PROTECT our rights. That is what the Fourteenth Amendment is all about in this respect. The Fourteenth Amendment doesn't grant power to Congress to "manage" our rights. Section 5 of the Fourteenth gives Congress power to enforce the provisions in the Fourteenth, and no provision in the Fourteenth gives Congress any power beyond that.

But, do carry on. Someone must speak out for state sovereignty.

Woody

 

[TEDDY]

states rights

the whole agument here is on states rights.some are still living in the dream world of confederate rights.if theis was wrought it would mean all states would be in poverty as the southern states still are.look at california and there interpitation of the second.and Mass.wake up and smell the roses.
I lived when most people were free to own guns,and I note the soutern states were very adept at controling the blacks with gun control and murder.

 

[ArmedBear]

It seems to me that a lot of people like to talk glibly about throwing out the old and reinventing ourselves with respect to a variety of issues. But people who do that don't seem to be considering what that would entail and how to deal with the extraordinary dislocation it would create.

That's the most asinine argument there is, against liberty or upholding the Constitution. It's not new, either. Segregation is, of course, a rather obvious example of where this argument has been used.

I don't recall seeing any provision in the Constitution that says, "Unless it's inconvenient or would require people to adapt."

In essence, your point boils down to this: change is bad. Changing something that is wrong with our system should be avoided, simply because change disrupts, and disruption is the worst possible threat to society. Look what terrible things might happen if we actually pay attention to the Constitution now! We just can't afford to do it.

In a word: bull****.

 

[hugh damright]

the BoR makes reference to the states, and talks about which powers are reserved to it, and which are reserved to the people.

I think this is a misconstruction. Virginia came first, we delegated enumerated powers to the US, agreed to enumerated limits (which say "no State shall", not the USBOR) ... the powers which Virginians did not delegate are not reserved to the people of the whole US, that turns the amendment and the whole Constitution against itself ... powers in Virginia which were not delegated are reserved to Virginia, either to the State government, or to the People of Virginia if we have not delegated the power in question.

the whole agument here is on states rights.some are still living in the dream world of confederate rights

An inability to comprehend and/or respect federalism hardly removes the concept from reality. The US Constitution frames a federal system, and a federal system is founded upon States' rights.

look at california and there interpitation of the second

All the more reason for the many States to keep the RKBA an intrastate affair, so that Californians can only screw their own State and not screw us all.

 

[ConstitutionCowboy]

When anyone starts to talk about "starting over" the issues I raised are legitimate. It seems to me that a lot of people like to talk glibly about throwing out the old and reinventing ourselves with respect to a variety of issues. But people who do that don't seem to be considering what that would entail and how to deal with the extraordinary dislocation it would create.

We're not really talking about starting over. It's more repairing the damage done, correcting the usurpations, restoring the power to where it belongs, and returning society to personal responsibility and accountability. You know - abide the Constitution.

All the more reason for the many States to keep the RKBA an intrastate affair, so that Californians can only screw their own State and not screw us all.

Actually, it's an affair of the people. The Union and the several states be damned! That is what the Second Amendment is all about. If California or any other state can't touch the RKBA, what in God's name would there ever be to worry about in Virginia?

Woody


Look at your rights and freedoms as what would be required to survive and be free as if there were no government. If that doesn't convince you to take a stand and protect your inalienable rights and freedoms, nothing will. If that doesn't convince you to maintain your personal sovereignty, you are already someone else's subject. If you don't secure your rights and freedoms to maintain your personal sovereignty now, it'll be too late to come to me for help when they come for you. I will already be dead because I had to stand alone. B.E.Wood

 

[Frank Ettin]

ArmedBear, it looks like you signed on to Obama's "change" bandwagon.

The point is that change isn't good or bad in and of itself. It depends on what the change is, how it is brought about and what the probable consequences are. There's been a lot of change in the last 50 years that we don't like, and that hasn't accomplished what it was promoted to do. And I suspect that we wouldn't like the changes that Obama has in mind.

I'm not interested in anyone beating the drum for change, even if it may be otherwise attractive to me, unless he has also convinced me that he has thought out how to bring the change about, how to deal with any disruption or dislocation it might cause, and what any unintended consequences may be.

It's easy to be glib about change when you're not going to be held accountable for the result. That's one reason politicians like to promote change. Its sounds "progressive" and they can duck any responsibility for the result.

If you want change, step up to the plate, figure out how to implement it and be accountable for how things turn out.

If you're interested in reading about how much of the ill conceived change of the last 50 years has actually had some significant, unexpected negative results, I suggest that you read some Thomas Sowell, especially his book, Knowledge and Decisions. He's a black, conservative economist and scholar and a fellow of the Hoover Institution.