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

[hugh damright]

I'm beginning to think that nobody understands the OP poll question re: whether the 2nd should be incorporated under the 14th's "due process" clause. I voted "no", and I said that I think "due process" meant "procedural due process" and not "substantive due process". Perhaps somebody here would like to address that, and explain why the 2nd should be incorporated under the "due process" clause as opposed to the "privileges and immunities" clause? I don't think Bingham or Howard ever said that the due process clause had such an intent, in fact, I think that pesky Mr. Rogers from NJ tried to pin Bingham down on the meaning of "due process", and Bingham said that it was "well established" ... did he mean to say that substantive due process was well established and that everybody would understand it that way? I don't see how such an assertion could be supported.

... let me explain these terms I am using, in case others don't know these terms, or maybe I don't know them and am using them improperly.

PROCEDURAL DUE PROCESS - I believe the idea is that, just as one person has no right to take another's life or property or liberty, government also has no such right, except by due process of law. I understand this to mean that someone in government cannot just take your property, kill you, imprison you ... but these things can be done by due process of law.

SUBSTANTIVE DUE PROCESS - As I understand it, the idea here is to take this same declaration, that liberty cannot be deprived without due process of law, and construe it to mean that liberty cannot be deprived even with due process of law. The theory is that a law which violates a fundamental right isn't due process of law. For instance, IIRC, in 2003 in Lawrence V Texas, the SCOTUS ruled that the 14th's "due process" means that a State cannot have laws against homosexual acts.

INCORPORATION DOCTRINE - is part of a fundamental rights doctrine which is based upon substantive due process ... in other words, if the SCOTUS fancies something such as buggery, they can call it a "fundamental right", and thus they usurp jurisdiction ... and if the SCOTUS fancies a fundamental right that happens to be in the USBOR, then that becomes "incorporation".

 

[hugh damright]

Virginia did not ratify or in any way agree to live under Vermont's BOR, nor vice versa.

Virginia did not ratify a USBOR that was binding upon Virginia anymore that Virginia ratified a Vermont BOR that was binding upon Virginia.

I'd say that you were posting irrelevant nonsense to avoid addressing my post which you quoted -- the rhetorical equivalent of RADAR chaff.

I tried to answer your question. Maybe you need to think about it some more.

 

[El Tejon]

Virginia did not ratify a USBOR that was binding upon Virginia anymore that Virginia ratified a Vermont BOR that was binding upon Virginia.

Then why were the states, antebellum, applying the USBoR to themselves?

What could explain this change of behavior? The mysteries of history!

 

[ArmedBear]

Virginia did not ratify a USBOR that was binding upon Virginia anymore that Virginia ratified a Vermont BOR that was binding upon Virginia.

The entire Constitution is binding on Virginia, which of course, did ratify it, as well as the first 10 amendments.

You can debate about what someone really meant by a sentence or phrase in the Constitution, but the argument that the Constitution, as amended, is not binding on Virginia any more than the constitution of Vermont is binding on Virginia, is inane.

You know, I might even agree with you when you assert that the 14th Amendment, or a particular phrase in it, wasn't intended to "incorporate" the Bill of Rights, at least by some people involved in authoring it. (As I said, I don't care, and I am hardly afraid of some potential for the excessive enforcement of individual liberty against other governments by the Federal Government. Too much freedom is hardly our greatest problem today in the US.)

However, you're really shooting your own credibility in the foot with these posts, and it's really you who needs to "think about it some more."

 

[Sam Adams]

Like I said before, I think incorporation is ridiculous concept that doesn't pass a single logical test when applied to the second amendment.

With all due respect, ridiculous or not, we're stuck with the law as it IS, not as we think it is before we open our eyes in the morning.

I happen to agree with you that the 2nd binds by the feds and the states, not just the feds. But that belief, combined with yours and about $3.50 will get one cup of burned coffee at Starbucks.

 

[ArmedBear]

Pardon me if this has been mentioned, but this is an interesting article that cites a good number of the people involved in the 14th and the Civil Rights Bill it constitutionalized. It is quite clear that they intended the 14th to protect individuals from state infringements on RKBA, among other rights.

http://www.constitution.org/col/intent_14th.htm

 

[Ivy Mike]

sadly Sam, you are correct.
Its sad that such trickery must be played on such simple wording.

 

[Frank Ettin]

...If the somewhere around 80 million gun owners stood up and said no more of this unconstitutinal BS we would not be where we are today...

Well, it didn't happen; and AFAIK, it's not likely to happen anytime soon. Let me know when it does happen.

In the meantime, we live in the real world, and this is real life. So we need to understand reality and figure out ways that we can turn things to our benefit as much as possible in that reality, on its terms. Things are as they are. Wishing they were different isn't going to get us anywhere. Indulging ourselves in "if only" or "what if" fantasies isn't going to get us anywhere.

Trying to change things isn't a bad idea. We should all be trying to get more gun owners engaged in the fight, even if only by joining the NRA, and other RKBA organization, so that we can demonstrate that we represent a formidable political and economic force.

But in the meantime, we need to do the best we can with what we've got.

...I think incorporation is ridiculous concept that doesn't pass a single logical test when applied to the second amendment.

You're certainly welcome to think that, and as a theoretical proposition, it's has merit. The thing is, nothing is going to get done on the basis of that line of thinking. However, if you're ever in the neighborhood, I will buy you a cup of coffee at Starbucks.

 

[ConstitutionCowboy]

Show me where that power is granted to the Court in the Constitution.

Article III, Section 1-

"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...."

Article III, Section 2 --

"The judicial power shall extend to all cases, in law and equity, arising under this Constitution, the laws of the United States, and treaties made, or which shall be made, under their authority;--to all cases affecting ambassadors, other public ministers and consuls;--to all cases of admiralty and maritime jurisdiction;--to controversies to which the United States shall be a party;--to controversies between two or more states;--between a state and citizens of another state;--between citizens of different states;--between citizens of the same state claiming lands under grants of different states, and between a state, or the citizens thereof, and foreign states, citizens or subjects."(empahsis added)

As to the Constitution being "law", note that Article IV provides, in pertinent part that,

"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;..."

Thus the Framers understood the Constitution to be part of the law, and as such would be applied, as is law in general, by courts in the resolution of cases and controversies.

Getting down to the meat of this, you've presented the part of the Constitution that creates the judiciary and enumerates it's range of power. And, ironically(or by projection), you've emphasized the very part of that Article and Section that says the Court's power lies entirely UNDER the Constitution and used it to say the Court has power to construe the Constitution as the Court sees fit as if the Court was given power to lord OVER the Constitution. The Court has been given no such power and neither has any other branch of the Union. All this power you seem to be happy with the Court using is usurpation.

By voting for people who will accomplish that into positions that have the relevant power in government....

First, let's remind everyone what we're talking about. From your post #41, above, you are proposing to replace, "...errant Justices with honorable Justices who will abide the Constitution and rule according to the Constitution,..."

Since under Article III, Section 1, federal judges, "... shall hold their offices during good behaviour,...", the only way to remove and thus replace them is, "... impeachment for, and conviction of, treason, bribery, or other high crimes and misdemeanors......" (Article II, Section 4) Impeachment requires a simple majority vote of the House of Representatives. Conviction requires a two-thirds majority vote of the Senate following a trial in the Senate.

So in order to carry out your plan, we all would need to elect at least 50% of the members of the House and 67% of the members of the Senate who would be disposed to agree that a federal judge's failure to interpret the Constitution your way constitutes an impeachable "high crime or misdemeanor." Doing so would be a pretty neat trick, aside from the fact that it is debatable whether impeaching judges because you disagree with their application of the law is sound public policy.

No one said it would be easy, but it is the proper procedure as laid out in the Constitution. The avenue exists and thus we must conclude the Founding Fathers meant for us to be able to expel errant justices or any other errant office holder in the Union. Justices may be impeached when ever they are no longer in good behavior. The list of crimes requiring impeachment in Article II, Section 4, is not a limitation of impeachable crimes or misbehavior. Lack of good behavior from a Justice is reason enough to impeach said justice. Article III, Section 1, makes it requisite that Justices may hold office only during good behavior. Congress may make that call. It's their duty. It's part of the balance of power - checks and balances as it were - that Congress has over the Judiciary and Executive.

Whether it's sound public policy or not doesn't matter. It'll depend upon who and how many believe it's sound public policy. It's undeniable that the Founding Fathers thought such action might need to take place. They put the tools in the Constitution to make it an option.

As to the Protection of Lawful Commerce in Arms Act, Congress tends to put all sorts of things into a law's "purpose" clause. But if the constitutionality of that law is challenged, specifically Congress' power to enact it, I believe that it is most likely that a court would find that Congress indeed had the power to enact it under the Commerce Clause -- thus upholding the constitutionality of the Act. Note paragraph (4) of the "purpose" clause invoking the Commerce Clause.

Congress didn't invoke any power it has under the Commerce Clause in paragraph (b)(4) of the Protection of Lawful Commerce in Arms Act. It mentioned commerce, but didn't draw upon any power it has under that clause. It exercised it's power in the Fourteenth Amendment, Section 5, and in Article IV, Section 1(the Full Faith and Credit Clause).

The problem is that the courts would not agree with you. In 1833, in the case of Barron v. Baltimore, the Supreme Court ruled that the Bill of Rights applied only to the federal government and not to any state. That decision has not been overruled and remains the law.

However, beginning in the 1890s the Supreme Court began interpreting the 14th Amendment to incorporate portions of the Bill of Rights, thus making those portions applicable to the states. This has all been done on a piecemeal basis.

So right now, a state would have a good argument that, based on Barron, the Second Amendment (and therefore the ruling in Heller) doesn't apply to the state or its regulation of guns. In order to overcome that argument, the court will have to rule that the Second Amendment is also incorporated in the 14th Amendment and thus applicable to the states through the 14th Amendment.

All the discussions of how the language of the Second Amendment should be interpreted to make it applicable to the states without incorporation, all the arguments that the Second Amendment should logically apply to the states in any event and all the protests that incorporation isn't (or shouldn't) be necessary are really beside the point. Courts will follow precedent. The precedent here, Barron, is that the Seocnd Amendment would not apply. That precedent may be overruled only by the Supreme Court. So the only way a court could invalidate a state gun law based on the Second Amendment would be by finding the Second Amendment incorporated in the 14th Amendment and thus applicable to the states.

The good news is that there are hints in the Court's opinion in Heller that the Second Amendment should be found to be incorporated. The further good news is that a lower court could indeed rule that the Second Amendment is incorporated in the 14th Amendment; and we could thus get a favorable ruling, to start, without going all the way up to the Supreme Court. (Remember that Barron is a Supreme Court decision, so only the Supreme Court would have the authority to overrule it and apply the Second Amendment to the states without incorporation.)

While the operation of the law(your history dissertation) appears to be how it has been, Barron was torpedoed by the Fourteenth Amendment and had the Court and it's inferior tribunals adjudicated by the Fourteenth, and Congress exercised it's power in Section 5 of the amendment a bit more often, this "incorporation" balderdash would never have taken place. The Court incorporated its own agenda instead.

The Court following its own "precedent" is the Court making up its own law and following it in stead of what the Constitution might actually allow or dictate. I'll grant that some "precedent" might follow the Constitution, and when it does, is it right for the Court to claim it as its own? Ergo, it can't be anything other than agenda, misconstrual, or usurpation when "precedent" doesn't follow the Constitution or constitutional law. As a result, we've got competing legislative branches, neither one caring much about our rights or the limited powers they continually exceed. Only when they cross swords do we see any kind of actual adherence to something in the Constitution if one side or the other believes it'll help their cause. Mostly, We the people lose something when they agree and as often when they are at odds.

Analyzing the Constitution in a vacuum is a generally fruitless way to try to understand how the Constitution may be applied to real life matters that affect us. To understand the real world application on the Constitution, one must become familiar with the past ruling of the courts and the rich literature of judicial decisions.

Absolutely. Especially if you wish to continue to allow your rights to be eroded into oblivion and live under the oligarchy the Court is doing its best to become - well, in all fairness, that some on the Court are trying to make it into. In my opinion, following the Constitution as it is written is far better than what has been done to what it truly says - how it has been twisted, ignored, and interpolated.

To all who read this, don't fall for the "real world" citations and the inferred futility of learning what the Constitution truly says. The status quo will be the downfall of this Union, our freedoms, rights, and any hope of passing on a viable life of freedom to our progeny. Learn for your self what the Constituting is. Learn for yourself what has become of the government and what it has cost us in freedom, security, personal sovereignty and money(none of this crap is free).

Those wishing to discourage you are no different than those who have taken this country down to the levels it has sunk to. When enough of us have educated ourselves to the truth of how it is supposed to be, it won't be long before the truth of how it is now will be tossed.

With all due respect, ridiculous or not, we're stuck with the law as it IS, not as we think it is before we open our eyes in the morning.

I happen to agree with you that the 2nd binds by the feds and the states, not just the feds. But that belief, combined with yours and about $3.50 will get one cup of burned coffee at Starbucks.

Pitifully apathetic.

Trying to change things isn't a bad idea. We should all be trying to get more gun owners engaged in the fight, even if only by joining the NRA, and other RKBA organization, so that we can demonstrate that we represent a formidable political and economic force.

But in the meantime, we need to do the best we can with what we've got.

A ray of hope, fiddletown. But then this:

...I think incorporation is ridiculous concept that doesn't pass a single logical test when applied to the second amendment.

You're certainly welcome to think that, and as a theoretical proposition, it's has merit. The thing is, nothing is going to get done on the basis of that line of thinking. ...

I'd have to say the prospects of that line of thinking are good. In DC v. Heller ,at 34, Justice Scalia quoted William Rawle's analysis of the Second Amendment:

“The first [principle] is a declaration that a well
regulated militia is necessary to the security of a free
state; a proposition from which few will dissent. . . .

“The corollary, from the first position is, that the
right of the people to keep and bear arms shall not be
infringed.

“The prohibition is general. No clause in the constitution
could by any rule of construction be conceived
to give to congress a power to disarm the people. Such
a flagitious attempt could only be made under some
general pretence by a state legislature. But if in any
blind pursuit of inordinate power, either should attempt
it, this amendment may be appealed to as a restraint
on both.” Rawle 121–122.20

20 Rawle, writing before our decision in Barron ex rel. Tiernan v.
Mayor of Baltimore, 7 Pet. 243 (1833), believed that the Second
Amendment could be applied against the States. Such a belief would of
course be nonsensical on petitioners’ view that it protected only a right
to possess and carry arms when conscripted by the State itself into
militia service.​

Clearly, it's on the mind of the five concurring Justices.

Woody

I see it clearly as fact. Words mean things. Just as numbers have value, you can add, subtract, multiply and divide them. I just do the math. B.E. Wood

 

[Frank Ettin]

...you've presented the part of the Constitution that creates the judiciary and enumerates it's range of power. ...and used it to say the Court has power to construe the Constitution as the Court sees fit as if the Court was given power to lord OVER the Constitution. The Court has been given no such power...

It indeed has. The Constitution, as I've previously quoted it, states that the judicial power of federal courts extends to "cases arising under the Constitution." How do you suppose a court could exercise its judicial power (i. e., decide the outcome of the case/dispute) arising under the Constitution other than by interpreting the Constitution and deciding how the Constitution is to be applied to the facts of the case?

...The list of crimes requiring impeachment in Article II, Section 4, is not a limitation of impeachable crimes or misbehavior. Lack of good behavior from a Justice is reason enough to impeach said justice. Article III, Section 1, makes it requisite that Justices may hold office only during good behavior....

First, the offenses listed in Article II, Section 4 don't require impeachment. They are grounds for impeachment. And the official must still be convicted of the offense by a 2/3rds majority of the Senate to be removed from office.

Even assuming you're right that "misbehavior" could be an impeachable offense (and there's no judicial authority for that proposition), you still need to find 50% of the House and 66.7% of the Senate who will agree that a federal judge's not interpreting the Constitution your way is actionable "misbehavior." Good luck. Let me know when you get it done.

I don't think that we can count on that happening anytime soon. So in the meantime, we will need to deal with things as they are and litigate wisely to get the decisions that are helpful to us.

...Congress didn't invoke any power it has under the Commerce Clause in paragraph (b)(4) of the Protection of Lawful Commerce in Arms Act...

Yes it did, but you don't know enough about the law to recognize it. The phrase, "undue burden on interstate commerce" is a common term of art in Commerce Clause cases. On one hand, if a state law can be found to impose an undue burden on interstate commerce, that can support a federal court nullifying the state law. And on the other hand, if an Act of Congress can be found necessary or desirable to prevent or avoid actions by states imposing an undue burden on interstate commerce, the court will find the Act within the power of Congress under the Commerce Clause.

...Barron was torpedoed by the Fourteenth Amendment and had the Court and it's inferior tribunals adjudicated by the Fourteenth, and Congress exercised it's power in Section 5 of the amendment a bit more often, this "incorporation" balderdash would never have taken place....

No it wasn't. Barron remains the law. The courts have found ways around Barron by using the 14th Amendment selectively. If you'd bother the research the matter, you'd find that the courts have not yet incorporated all rights enumerated by the Bill of Rights into the 14th Amendment, and indeed have expressly declined to incorporate some.

And in any event, Congress apparently had not exercised its power under Section 5 to avoid the incorporation "balderdash" (as you put it), so it has in fact taken place; and it is a reality with which we must deal.

The Court following its own "precedent" is the Court making up its own law and following it in stead of what the Constitution might actually allow or dictate. I'll grant that some "precedent" might follow the Constitution, and when it does, is it right for the Court to claim it as its own? Ergo, it can't be anything other than agenda, misconstrual, or usurpation when "precedent" doesn't follow the Constitution or constitutional law. As a result, we've got competing legislative branches, neither one caring much about our rights or the limited powers they continually exceed....

And what is all this supposed to mean?

Basically, it seems to be your view that the courts have largely misconstrued and mis-applied the Constitution over the last 200+ years. You know what it really means, and everyone else in the history of constitutional jurisprudence in this country is wrong. Your primary position seems to be that the courts ought to have been applying the Constitution your way.

Well they haven't been, and it's not likely they're not going to in the future. They will continue to conduct business without notice of your opinions. We'll just have to live with that and find ways of trying to make things work out well for us dealing with the courts as they now are.

...don't fall for the "real world" citations and the inferred futility of learning what the Constitution truly says. The status quo will be the downfall of this Union, our freedoms, rights, and any hope of passing on a viable life of freedom to our progeny....

Feel better now after your rant. Pretty words -- perhaps, but they accomplish nothing. In the real world preservation of "our freedoms, rights, and any hope of passing on a viable life of freedom to our progeny" will lie with those are are educated in, and understand, the workings of our courts and legislatures.

Woody, your lack of legal education is getting tiresome.

 

[RealGun]

Woody, your lack of legal education is getting tiresome. - fiddletown

Tiresome but correct. At least he isn't disrespectful. Study of the law should not be mastery of why things are the way they are. While it might be knowledge of how to navigate a corrupted puzzle, it should definitely include how things should be or were meant to be.

 

[hugh damright]

The entire Constitution is binding on Virginia, which of course, did ratify it, as well as the first 10 amendments ...you're really shooting your own credibility in the foot with these posts, and it's really you who needs to "think about it some more."

No, the USBOR was not intended to bind the States, and you lose all credibility by your inability to accept this simple fact and move on.

And that Jon Roland article is not to be taken seriously.

 

[El Tejon]

No, the USBOR was not intended to bind the States, and you lose all credibility by your inability to accept this simple fact and move on.

Then why were Southern states binding themselves to the USBoR by proclaiming that the Second Amendment applied to the states (at least before the Civil War)?

 

[hugh damright]

I think we're all familiar with the liberal subversive activist view of the 14th. Maybe there's somebody here who, if presented with a conservative view of the 14th, might form a new synaptic pathway.

Let's start with the Indiana Constitution which said that no negro could enter the State. How was that possible? Could Indiana have said that no Virginians could enter the State, or that no white person could enter the State, or that no person at all could enter? Of course not. The US Constitution says that a citizen of one State can go to another State and have the same P&I there as citizens of that State. So how could Indiana have prohibited negroes? Because negroes were not citizens. I suppose some might try to say that Indiana was violating the US Constitution, but if negroes were supposed to have the same P&I as white folks, then every State was violating the US Constitution, and obviously the States would not have made a compact which they were all in violation of.

To understand the P&I better, let's consider what Indiana could and could not have done ... for instance, could Indiana have said that Virginians could enter, but could not buy property there? What if Indiana said that Virginians could enter Indiana but that the laws would not apply to them and they could not expect the law to protect them nor would they have any right to press charges or sue or testify? Now let's compare this idea with the 14th's companion bill, the civil rights bill, and see what it said

"That all persons ... shall have the same right, in every State and Territory in the United States, to make and enforce contracts, to sue, be parties, and give evidence, to inherit, purchase, lease, sell, hold, and convey real and personal property, and to full and equal benefit of all laws and proceedings for the security of person and property, as is enjoyed by white citizens, and shall be subject to like punishment, pains, and penalties, and to none other"

At this point we might being to question the assertion that there was a need to make the USBOR binding upon the States. Some people are so very devout about their belief that there was a need to make the USBOR binding upon the States, but if there was such a need, then why didn't the Civil Rights Act make the USBOR binding upon the States?

The 14th was "passed" with the intent of making the Civil Rights Act part of the Constitution. And the 14th says nothing about making the USBOR binding upon the States. It is too liberal a construction for me to construe "due process of law" to be a delegation of federal jurisdiction over all privileges, immunities, and rights. And it is also too liberal a construction for me to construe "privileges and immunities" to refer to every privilege, immunity, fundamental right, natural right, the USBOR, and so on.

Should an amendment be construed with an intent of preserving the rest of the Constitution as much as possible, or should it be construed with an intent of undermining the rest of the Constitution as much as possible? The idea that the central government should have jurisdiction over all "rights" is antithetical to the federal system framed by the US Constitution. A limited federal government cannot have such broad and general powers ... here's an exchange in the Senate on April 11, 1871:

Mr. Trumbull: this national government was not formed for the purpose of protecting the individual in his rights ...

Mr. Carpenter: That is what I understand to be the very change wrought by the fourteenth amendment ...

Mr. Trumbull: Then it would be an annihilation entirely of the States. Such is not the fourteenth amendment ...

The difference ... is, as to what are the privileges and immunities of citizens of the United States. I insist that the privileges and immunities belonging to the citizens of the United States as such are of a national character, and such as the nation is bound to protect, whether the citizens be in foreign lands, or in any of the states of the Union.

There's a thought ... if we went to a foreign country and they deprived us of our life/property/liberty without due process of law, I can see how the US would not stand for that. If they said that no Americans could buy property there, or testify in court, or sue ... that seems to fit with what Trumbull said. But in contrast, if we went to a foreign country and they would not allow us to carry firearms there because that was the law there, then that seems to be a different matter.

 

[El Tejon]

No, the USBOR was not intended to bind the States, and you lose all credibility by your inability to accept this simple fact and move on.

Then why were Southern states binding themselves to the USBoR by proclaiming that the Second Amendment applied to the states (at least before the Civil War)?

Yet again, why were the antebellum Southern states applying the Second Amendment from the USBoR to themselves?

 

[Henry Bowman]

The US Constitution says that a citizen of one State can go to another State and have the same P&I there as citizens of that State.

The P&I clause is found in the 14th Amendment.

And it is also too liberal a construction for me to construe "privileges and immunities" to refer to every privilege, immunity, fundamental right, natural right, the USBOR, and so on.

Except that was the express intent of the 14th Amendment.

 

[El Tejon]

The US Constitution says that a citizen of one State can go to another State and have the same P&I there as citizens of that State.

The P&I clause is found in the 14th Amendment.

It's the a la carte/GrrrrAnimals Constitution.

I like this about the 14th Amendment, but don't like how it gives those people rights.

BTW, why were the Southern states applying the Second Amendment, the Second Amendment from that USBoR that allegedly did not apply to the states, before that thar Civil War, I say, I say, Waaaahhhhrrr Between Them Thar States, I say, I say? What could possibly have changed their mind? I wonder . . .

 

[mbt2001]

The problem with incorporation is that it becomes and EITHER / OR argument.

The bottom line is that "States Rights" don't exist anymore, so the 2nd Amendment can't be said to be "for the fed and not the states". Amazing that on one hand Liberals don't want state rights, but on the other (gun control) they do.

Either / Or

 

[hugh damright]

The P&I clause is found in the 14th Amendment.

I miss your point ... but I was referring to Article 4, Section 2.

Except that was the express intent of the 14th Amendment.

No, that was the view of a few radicals and was not representative of the intent of 2/3 of both Houses or 3/4 of the States.

 

[RealGun]

Except that was the express intent of the 14th Amendment.

No, that was the view of a few radicals and was not representative of the intent of 2/3 of both Houses or 3/4 of the States. - hugh damright

Are you trying to count ineligible Southern votes? If those members of Congress hadn't been abused, the whole government would have been nonfunctional, and we would perhaps not be here having this exchange.

President Lincoln was a "radical" too.

 

[ArmedBear]

There's another issue here.

Legally, there's NO SUCH THING as "The Bill of Rights."

"The Bill of Rights" is essentially a slang term, referring to the first 10 Amendments. Every single ratified Amendment is part of the Constitution, and stands on its own. There is no "Bill of Rights" that exists separately from the Constitution, and (after the first 10 Amendments were ratified) there never has been.

There is no reason for a belief that "all the privileges and immunities" should apply to part of the Constitution, but not some other part. If it's a "privelege" or an "immunity", then the 14th is referring to it, unless it specifically excludes it, which it does not.

 

[hugh damright]

If it's a "privilege" or an "immunity", then the 14th is referring to it.

Some of y'all seem to think that the USBOR regards inalienable fundamental personal rights, but then you insist that such a right is called a "privilege" or "immunity". I'm curious about whether y'all see the fundamental inalienable RKBA as a "privilege" or as an "immunity".

 

[hugh damright]

"The Bill of Rights" is essentially a slang term

This is funny ... I never thought of this before ... but since the Bill passed ... shouldn't we be calling it the Act of Rights?

 

[ArmedBear]

I'm curious about whether y'all see the fundamental inalienable RKBA as a "privilege" or as an "immunity".

Like shooting fish in a barrel. "Shall not be infringed" can be stated "shall be immune from infringement", without changing the meaning of the sentence. The 2nd Amendment specifies an immunity from prosecution for exercising a natural right.

Some of y'all seem to think that the USBOR regards inalienable fundamental personal rights

Well, yes. The first 10 Amendments specify that Americans shall be immune from government infringements on certain fundamental rights. I.e., they shall be immune from random search and seizure, home invasions at the whim of the government, being forced to quarter soldiers, having their arms confiscated, being jailed for written or spoken statements.

The reason "immunity" would be used is because the Constitution doesn't grant rights to individuals; it specifies the power and limitations of the power of government. Statements about rights are really statements about limitations posed on government infringing them.

James Madison, when submitting the first group of Amendments in 1789, said this: "I believe that the great mass of the people who opposed [the Constitution], disliked it because it did not contain effectual provision against encroachments on particular rights, and those safeguards which they have been long accustomed to have interposed between them and the magistrate who exercised the sovereign power"

This was the era of the Enlightenment, and there was an unspoken assumption that these rights were natural rights. What Madison proposed was to add specific written limits on the government's power to the Constitution, to guarantee the immunity of individuals from encroachments on these rights.

A simple trip to the American Heritage Dictionary will show how the word is used in American law:

3. Law.

1. Exemption from normal legal duties, penalties, or liabilities, granted to a special group of people: legislative immunity.
2. Exemption from legal prosecution, often granted a witness in exchange for self-incriminating testimony.

It's difficult to see how the 14th would use the term "immunities" differently in this clause, and still make sense. What sort of "immunities" could it be referring to?

This is funny ...

What's funny, hugh, is that, even with all your reading, you don't seem to be familiar, or you pretend to be unfamiliar, with where the term "Bill of Rights" comes from, and that it doesn't refer to a bill in Congress, nor an Act of Congress. Whether you're showing that you're ignorant or disingenuous, it further erodes your credibility.

 

[ConstitutionCowboy]

IBTL For Drift and Snark

How do you suppose a court could exercise its judicial power (i. e., decide the outcome of the case/dispute) arising under the Constitution other than by interpreting the Constitution and deciding how the Constitution is to be applied to the facts of the case?

First, 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. Those Justices with an agenda will, of course, construe the Constitution to fit as you see the process.

First, the offenses listed in Article II, Section 4 don't require impeachment. They are grounds for impeachment. And the official must still be convicted of the offense by a 2/3rds majority of the Senate to be removed from office.

Hmm...(S)hall be removed from office ... Sounds quite point blank to me. If such a person suspected of such a violation were not impeached and tried, there would be political hell to pay for those who didn't make it happen. But, you're right. It doesn't say shall be impeached and tried, it says shall be removed upon conviction.

Yes it did, but you don't know enough about the law to recognize it. The phrase, "undue burden on interstate commerce" is a common term of art in Commerce Clause cases.

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. At best, Congress prevented these law suits from usurping their power under the Commerce Clause. It's their power to exercise, not the Court's. This isn't a Commerce Clause case, but law to halt the court system from be used to "legislate" as if it was a power of the Court. Me thinks it is you wishing I didn't know enough about the law.

Even assuming you're right that "misbehavior" could be an impeachable offense (and there's no judicial authority for that proposition), ..

Of course there is no judicial authority for that proposition. It's in the hands of Congress.

No it wasn't. Barron remains the law.

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.There is nothing in Article VI - namely, the Supremacy Clause - that says precedent set by the Court has any power over the Constitution or laws of the United States and treaties made under the authority of the United States. Each and every case brought before the Court deserves to be adjudicated on the merits of those cases and not summarily closed assembly line fashion. The only truly viable "precedent" is the Constitution and constitutional law.

Basically, it seems to be your view that the courts have largely misconstrued and mis-applied the Constitution over the last 200+ years.

Not completely.

Woody, your lack of legal education is getting tiresome.

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

Woody