States Rights vs Bill of Rights

[Bartholomew Roberts]

hugh - the problem with your argument is that you read those comments too narrowly.

You read them to say that the only purpose of the 14th is to enact the Civil Rights Bill because of concerns that it was unconstitutional.

If the 14th Amendment applies the BoR to the States, then every one of those comments is still a valid point. The 14th Amendment is redundant to the Civil Rights Act - especially if it has the broader view that Mr. Bingham says he intends.

[Mr. Bingham] says the act is unconstitutional ... I wish to make assurrance doubly sure ... and to prevent a mere majority from repealing the law"

Mr. Bingham also said that the purpose of the amendment was to apply the first 8 amendments to the States.

 

[sailortoo]

All of this thread seems to be on scholarly research, and a very educational read. Just for a change of pace, but on subject: I too feel that the 2A does bind the states, and for a reason enumerated in the Presser v. Illinois case. Without placing the case here - paraphrased: If the various states may restrict their people from keeping and bearing arms, then the United States has no Militia to call upon in time of need; therefore, the states may not restrict the people from keeping and bearing arms (the actual statement upon request). The point being, if the federal government, because of states rights, cannot have a ready Militia to call up, then the whole point of the 2A amounts to nothing. IANAL (obviously) but the concept here seems to not leave the states open to regulate arms out of existance (D.C., Illinois, etc).
sailortoo

 

[Ergosphere]

The Supremacy Clause only has power when there is a conflict between the Constitution and federal and state laws (one is "to the Contrary" of another).

Exactly! And if the laws of a state were to violate constitutional protections under the bill of rights, then there would be such conflict.

Both Joseph Story (in Commentaries on the Constitution) and St. George Tucker (in Blackstone's Commentaries) noted that the Supremacy Clause is only effective for constitutional laws and treaties.

Huh? Using that to argue that the BoR did not originally limit the states requires holding the Bill of Rights to not be constitutional.

The Supremacy Clause does not extend any of the powers of the federal government in the Constitution

It is not necessary to expand federal powers in order to limit the states.

Finally, while it has been said before, if the Bill of Rights had originally applied to the states, there would have been absolutely no need or reason to adopt the 14th Amendment.

Yes, as a result of Barron v. Baltimore... my contention is that Barron was a bad decision, much like the various later cases that gutted the privileges and immunities clause of the 14th amendment. The later Court clearly ignored the purpose of the 14th amendment. I'm saying that in 1833, the Court did essentially the same thing, and ignored the supremacy clause for the same purpose.

 

[gc70]

Exactly! And if the laws of a state were to violate constitutional protections under the bill of rights, then there would be such conflict.

The 'Constitutional protections' in the Bill of Rights were structured as prohibitions against (in my opinion) the federal government. Therefore, the only way for state laws to conflict with federal law was for the federal law to be an unconstitutional usurpation of a prohibited power; in that case, the Supremacy Clause would have supported the state laws.

Yes, as a result of Barron v. Baltimore... my contention is that Barron was a bad decision, much like the various later cases that gutted the privileges and immunities clause of the 14th amendment. The later Court clearly ignored the purpose of the 14th amendment. I'm saying that in 1833, the Court did essentially the same thing, and ignored the supremacy clause for the same purpose.

While we may disagree as to whether the Bill of Rights was or was not originally intended to apply to the states, Barron v. Baltimore did legally settle the question in 1833.

 

[gc70]

The later Court clearly ignored the purpose of the 14th amendment. I'm saying that in 1833, the Court did essentially the same thing

I disagree. Chief Justice Marshall presented a cogent and compelling rationale (better and more succinct than I have presented in my posts above) for the unanimous decision in Barron v. Baltimore. The Court danced around the real issues in the Slaughterhouse Cases and clutched straws and diced words to form a decision.

BTW, Chief Justice Marshall was a Federalist ally of James Madison at the Virginia ratifying convention, so he had direct personal knowledge of the genesis of the Bill of Rights.

 

[hugh damright]

If the 14th Amendment applies the BoR to the States, then every one of those comments is still a valid point.

What about Rep Broomhall saying that the 14th would pass because it passed in another shape in the civil rights bill? If the 14th went so much further than the civil rights bill, then would that comment still be a valid point?

You read them to say that the only purpose of the 14th is to enact the Civil Rights Bill because of concerns that it was unconstitutional.

Really the primary concern seemed to be that the civil rights act would be repealed. But I understand your point. I am not saying that the 14th began with the purpose of making the civil rights act part of the constitution, nor that everyone understood that to be its only purpose ... but it appears to me that in the end the primary purpose of the 14th was to make the civil rights act part of the Constitution, and it appears to me that some people saw it in that light.

Mr. Bingham also said that the purpose of the amendment was to apply the first 8 amendments to the States.

Are we to conclude that everyone saw it that way?

 

[Jim March]

Since Bingham was the primary author of the 14th Amendment, esp. the opening section incorporating the Bill Of Rights against the states, I think we should pay attention to his "opinions".

In 1984 Stephen Hallbrook (NRA attorney) wrote a book on the 2nd Amendment implications of the 14th Amendment titled "That Every Man Be Armed". He found period quotes by Bingham going into all of this. Bingham was 100% firm on three points:

* The 14th Amendment was going to overturn Barron v. Baltimore 1833;

* The 14th was going to overturn Dred Scott (1856);

* The 14th was going to apply the first 8 amendments to the states, specifically including the right to arms.

In 1998 radically LIBERAL Yale law professor Akhil Reed Amar quoted many of the same Bingham passages in "The Bill Of Rights". Amar was aghast at what he was seeing, where Halbrook had been gleeful. But both reported the same points.

US Supreme Court justice Hugo Black had said the same thing in the Adamson dissent, also citing Bingham's intent.

There is no counter-scholarship out there against this point, not backed by the kind of evidence Hallbrook and Amar bring to the table.

One of the state-level violations of civil rights that Bingham had declared disgusting was an 1858 South Carolina statute calling for the death penalty against any minister or preacher speaking abolition from the pulpit, thus stomping on two different parts of the 1A (freedom of speech, freedom of religion).

This issue didn't come up in Heller because it wasn't a state-level violation of rights. However, the court signalled STRONGLY that they were aware of the historical injustice in Cruikshank and gave lower courts a strong warning against taking it seriously as precedent.

Everything else I need to say is here:

http://www.thehighroad.org/showthread.php?t=374581

...esp. the attachment.

Note that even without revisiting Slaughter-house and Cruikshank, there are states violating the hell out of the rights of travelers into the states that can be immediately stomped on in Federal court where jurisdiction is fully understood now. California and I don't know how many other states will issue CCW to in-state residents under at least some circumstances, but not to out-of-state residents. That can be controlled in Federal courts. Other states pick and choose reciprocity so as to punish people who live in some states over others - again, that's a Federal matter under current case law and in the post-Heller world won't last 10 seconds before a Federal judge. See appendix A of the document attached at the link above.

 

[Aguila Blanca]

You're correct about the Supremacy Clause. The feds have the POWER to pass a Constitutional provision which restricts the states, and always have. The Constitution itself takes certain key powers away from the states, such as foreign diplomacy and the ability to overrule the feds. The question is what the intent of the framers was when they wrote the BOR. If you look to the First, it reads "CONGRESS shall make no law," and this is a good indication of what they were thinking. They BOR does not apply to the states on its own because it was never intented to apply to the states on its own. It took the adoption and ratification of the 14th to do that. Once that was done, the BOR because the supreme law of the land to the extent it was incorporated.

Yes, the reference to "Congress" in the 1st IS a good indication of what they had in mind. As is the reference to "unreasonable" search and siezure in the 4th.

However, I note that in the 2nd Amendment they did NOT use the word "Congress," nor did they say that the RKBA shall not be "unreasonably" infringed. Therefore, since we know from the 1st Amendment that they were perfectly capable of restricting only the Congress (i.e. the Federal government) when they so intended, and we know from the 4th amendment that they understood how to allow for "reasonable" regulations or infringements of civil liberties when they felt it appropriate ... I am left with the inescapable conclusion that their intent was obviously for the 2nd Amendment to be binding on the states as well as on the Federal government, and that by NOT referencing "unreasonably" infringed they did not intend to allow for any regulations (which are, after all, infringements) whatsoever.

 

[sailortoo]

Aguila Blanca - +1
Very direct approach. The idea that "The Congress" in any one of the amendments refers to all of the amendments can only be false. It is either stated as so, or does not apply - no inference allowed! My 2 cents.
sailortoo

 

[hugh damright]

The idea that "The Congress" in any one of the amendments refers to all of the amendments can only be false.

It doesn't "apply" to the other amendments, it merely raises the question - if the intent was to limit the States, then why does the First say "Congress shall pass no law"? Clearly the First Amendment, by any reasonable construction, was not intended to bind the States. It makes sense to me that the other amendments were seen in the same light. Is there some theory as to why they would make the First Amendment binding only against the federal government and then make the rest of the amendments binding against all government? Is there something unique about the First Amendment that would result in such a design??

 

[gc70]

The idea that "The Congress" in any one of the amendments refers to all of the amendments can only be false. It is either stated as so, or does not apply - no inference allowed!

The Constitution contains lists in which the first item makes reference to the US government and subsequent items infer that reference. See Article 1, Section 9, Clause 1 of the Constitution which includes "...shall not be prohibited by the Congress..." Clauses 2 through 7 do not specifically state, but rather infer, that they refer to the US government. Want proof? Clause 7 begins "No Money shall be drawn from the Treasury..." So which "Treasury" would that be if not the US Treasury?

 

[sailortoo]

If inference is valid in the BOR, then I guess it is open season on defining what any amendment may mean. We can then "infer" that the statement "A Well Regulated Militia ..." must somehow infer that the militia is the primary reason for the 2A - not .."the Right of the People to Keep and Bear Arms ...". That is exactly where groups such as the ACLU are coming from. My take - just an old fisherman, not an illustrious lawyer!
sailortoo

 

[hugh damright]

If inference is valid in the BOR

You infer that it says "no State shall".

 

[sailortoo]

No, I do not infer at all, I read "... Shall Not Be Infringed", without any qualifier of any kind. The "inferrence" seems to be that "The Congress" in the First Amendment is hidden somewhere in the Second Amendment. Or did I miss-understand your comment?
sailortoo

 

[hugh damright]

You infer that "shall not be infringed" means that the amendment is binding upon governments other than the one framed by the constitution in question.

 

[sailortoo]

We seem to be getting into a circular argument here. If the 2A means only the federal government is forbidden to "infringe" the peoples rights, then the 2A has no value at all for the purpose of raising a Militia that is self armed. Any or all of the states may, by using that process, disarm the whole of their people (look around parts of the country now), leaving the federal government essentially powerless to raise said Militia. That very (paraphrased) statement is straight out of "Presser v. Illinois", where the court states in plain language (exerpt) "... the states cannot, ... prohibit the people from keeping and bearing arms, ...". Again, IANAL, and do not presume to follow all of the elite naunces of distorting the language, but to be read as plain English, that statement by the court is hard for me to read as anything but a restriction on the states. By the way, this thread has been highly beneficial for us non-lawyers, if only to highlight the need to not trust any lawyer language - the old "what is is" stuff. I realize that I may be naive about law language, but where plain English is used, I do feel I have a clear understanding (may not be right, but sounds good!).
sailortoo

 

[ConstitutionCowboy]

Yes, the reference to "Congress" in the 1st IS a good indication of what they had in mind. As is the reference to "unreasonable" search and siezure in the 4th.

However, I note that in the 2nd Amendment they did NOT use the word "Congress," nor did they say that the RKBA shall not be "unreasonably" infringed. Therefore, since we know from the 1st Amendment that they were perfectly capable of restricting only the Congress (i.e. the Federal government) when they so intended, and we know from the 4th amendment that they understood how to allow for "reasonable" regulations or infringements of civil liberties when they felt it appropriate ... I am left with the inescapable conclusion that their intent was obviously for the 2nd Amendment to be binding on the states as well as on the Federal government, and that by NOT referencing "unreasonably" infringed they did not intend to allow for any regulations (which are, after all, infringements) whatsoever.

Yes, it's undeniable logic and grammatical. The Founding Fathers did not mince words nor make suggestions.

It doesn't "apply" to the other amendments, it merely raises the question - if the intent was to limit the States, then why does the First say "Congress shall pass no law"? Clearly the First Amendment, by any reasonable construction, was not intended to bind the States. It makes sense to me that the other amendments were seen in the same light. Is there some theory as to why they would make the First Amendment binding only against the federal government and then make the rest of the amendments binding against all government? Is there something unique about the First Amendment that would result in such a design??

In answer to your first question, there is no "theory", but there is a reason. Some of the states were religious colonies; i.e. with state religions. Those states did not want a federal religion that would override or interfere with their religion. This religious freedom those states enjoyed and practiced was, in the beginning, why many of the first immigrants to this land came here - to avoid persecution and to practice their faith.

As for your second question, the uniqueness of the First Amendment is BY design.

The Constitution contains lists in which the first item makes reference to the US government and subsequent items infer that reference. See Article 1, Section 9, Clause 1 of the Constitution which includes "...shall not be prohibited by the Congress..." Clauses 2 through 7 do not specifically state, but rather infer, that they refer to the US government. Want proof? Clause 7 begins "No Money shall be drawn from the Treasury..." So which "Treasury" would that be if not the US Treasury?

The limitations in Section 9 of Article I, when taken in the context of the article, is clearly a list of limitations upon the powers granted Congress. Article I begins with Section 1 in which it says, "All legislative powers herein granted shall be vested in a Congress of the United States, ...". These limitations in Section 9 are limitations upon those powers. No powers are granted to any state legislature in Article I(save the selection of Senators which has been removed by the Seventeenth Amendment, unfortunately). The limitations in Section 9, Clause 7, upon drawing money from the Treasury are upon Congress's powers to "..., pay the debts, and provide for the common defense and general welfare of the United States; ...". No power has been granted to any state to draw money from the Treasury.

Since Article I is about legislation, it was only appropriate that the limitations upon the several states (Section 9) be included so as to avoid any conflict between the powers granted Congress and any state or any of them.

In essence, The Court in Heller agreed that the Right to Keep and Bear Arms is an individual right, and by recognizing that it is it binding upon a political construct not of the Union itself, the protection of the right does indeed extend beyond Congress's power to legislate.

I offer the following that I wrote on August 25, 2006, and some of what Antonin Scalia wrote in Heller is a close parallel.

What The Second Amendment Really Says:

The Second Amendment talks of "a well-regulated militia,..." not THE militia specifically, but A militia in general. Then it says, "...,being necessary to the security of a free state,...". Hmm, "a free state". Everywhere else in the Constitution where "a", "another", "any", "no", "each", "every", "(F)oreign", "new", "one", "other", "particular", "the", "that", "same", "such", or "the several" state(s) are addressed, it is clear that the political unit "state" is being addressed, except in Article II, Section 3, which I'll address later. These are demonstrative adjectives. In the Second Amendment, the adjective "free" modifies "state" and does not demonstrably indicate a political unit state, but a condition. Since there is no comma between "a" and "free", one of those adjectives is demonstrative("a"), and the other("free") a simple modifier of whatever "state" is.

So, we're talking about a free state. Is it talking about a free political unit or a free condition? If it said , " ...being necessary to the security of the several states", or "...,being necessary to a state", or, "...,being necessary to any state," it would be more in line with the remainder of the Constitution and undeniably talking about the political unit definition of "state".

The word "state" is also used as "condition" elsewhere in the Constitution - Article II, Section 3, which commands the president to report on the state of the union. Right there in the Constitution is precedent for the word "state" to be used with the meaning "condition", as well as the more common "political unit". Bear with me a little longer.


The Second Amendment says, "...,being necessary to the security of a free state,". OK. Cool! What about the security of the nation? Article I gives Congress power to call forth the militia, to arm it, and place whatever portion of it into the employ of the United States it deems necessary. Did our Founding Fathers forget all about that when they drafted the Second Amendment? Wouldn't they have covered that in the amendment by adding something like, "..., and to the security of a free United States,..."? That would have made it clear and without question that the amendment referred to the political unit definition of "state". I don't think they forgot about the security of the United States, do you?

I think they covered the security of the United States, and the several states, by casting a wide blanket with the "condition" definition of "state". Again, I'll remind you that the Second Amendment talks of A militia, and not THE militia. So, by not addressing THE militia, how could it be addressing a STATE, a specific political unit, when it talks of A militia, which is non-specific? The only correct grammatical context is for "state" to mean "condition" in the Second Amendment.


The concrete that has been cast as the foundation for this is the fact that the Second Amendment addresses a RIGHT of the PEOPLE . Security of the state be damned! This is about the security of the PEOPLE! We live in a free state(condition), not the state! Only something alive can be free. A state is a political construct, bound in servitude by the Constitution. It can't lift up its skirt and tip-toe through the tulips! We can - if we so desire to wear skirts - But, I digress. The point is, it's about us and how we live, how we maintain our freedom, and how we restricted those in government.

There has been a question raised about the capitalization of the word "state" in the Second Amendment, that it would indicate the use of the word to indicate the political unit. Well, if you scan the Constitution, you'll find that the Founding Fathers capitalized all nouns instead of todays practice of only capitalizing proper nouns. Both the political unit definition of "state" and the condition definition of "state" are nouns. It's a name for a political unit and a name for a condition. Ergo, capitalized by our Founding Fathers.

Woody

The foregoing is reason and grammatical explication enough for anyone to come to the conclusion that the Second Amendment's prohibitions upon government are universal. In all of this, one must remember: It's about us, our freedom, rights, opportunities for success and happiness; and freedom from oppression, suppression, equation, and servitude - and the power to keep it that way.

Woody

Look at your rights and freedoms as what would be required to survive and be free as if there were no government. Governments come and go, but your rights live on. If you wish to survive government, you must protect with jealous resolve all the powers that come with your rights - especially with the Right to Keep and Bear Arms. Without the power of those arms, you will perish with that government - or at its hand. B.E. Wood

"The Second Amendment is absolute. Learn it, live it, love it and be armed in the defense of freedom, our rights, and our sovereignty. If we refuse infringement to our Right to Keep and Bear Arms, as protected by the Second Amendment, we will never be burdened by tyranny, dictatorship, or subjugation - other than to bury those who attempt it. B.E.Wood

 

[gc70]

The Constitution - Construction

Since this topic is complex, I offer the following (first) instalment of thoughts on the Constitution, Bill of Rights, and related topics.

=========================

The Constitution - Construction

The Constitution of the United States was written at the Constitutional Convention in Philadelphia in the summer of 1787. James Madision was the primary author of the Virginia Plan which largely became the basis for the Constitution. Madison was also the Recorder for the Constitutional Convention. The original Constitution was written at one point in time and by a single group of men, which led to a high degree of consistency in its structure and use of language. That consistency is valuable in reading and understanding the Constitution.

The Constitution of the United States is a very structured document, divided into Articles, Sections, and Clauses that group similar concepts. The Constitution is divided into a Preamble and seven Articles: (1) the Legislative Branch; (2) the Executive Branch; (3) the Judicial Branch; (4) the States; (5) Amendment; (6) Debts, Supremacy, and Oaths, and; (7) Ratification. The first four Articles contain multiple Sections, and most of the Sections contain multiple Clauses. For instance, Article 1, Section 8 contains Clauses related to the Powers of Congress, while Article 1, Section 9 contains Clauses related to Limits on Congress. That structure is also valuable in reading and understanding the Constitution.

The first thing to remember when reading any constitution is that its text generally refers to the government it creates. Thus, the text of the Constitution of the United States generally refers to the government of the United States. An example of the general rule of construction is Article 1, Section 7, Clause 1: "All Bills for raising Revenue shall originate in the House of Representatives;" Taken out of context, those 12 words could potentially have many meanings. For instance, they might mean that all revenue bills of federal, state, county, and municipal governments had to originate in the US House of Representatives. Or they might mean that all revenue bills at different levels of government had to originate in the House of Representatives of the respective levels of government (which would present a distinct problem for the State of New York, which has a State Assembly rather than a House of Representatives). Because Article 1, Section 7, Clause 1 is part of the Constitution of the United States which created the United States government, the general rule of construction make the text crystal clear: "All Bills for raising Revenue (for the United States government) shall originate in the House of Representatives (of the United States);"

One exception to the general rule occurs when the text refers to a government other than the government created by the constitution; references to other governments specifically identify the other government(s) the text refers to. Thus, when the text of the Constitution of the United States does not refer to the government of the United States, it specifically says "State" or "States" to identify the other government. An example of the exception to the general rule of construction is Article 1, Section 10 which contains Clauses related to powers prohibited to the States. Each of the three Clauses in Article 1, Section 10 begin with "No State shall" to specifically identify the text as applying to a specific government (of the States) rather than the government of the United States. This practice prevents ambiguity as to what government the text refers to.

In the Constitution of the United States, another exception occurs in the first Clause of each Article with multiple Sections; instead of inferring which government the Article refers to, the government is specifically identified. Four of the five Articles with multiple Clauses follow this structure: Article 1 - "All legislative Powers herein granted shall be vested in a Congress of the United States..." ; Article 2 - "The executive Power shall be vested in a President of the United States of America." ; Article 3 - "The judicial Power of the United States..." and; Article 4 - "Full Faith and Credit shall be given in each State..." (The single Clauses in Articles 5 and 7 and the three Clauses in Article 6 each contain a specific identification of the government to which the text refers.) Even though this practice is redundant to the general rule, it prevents ambiguity as to what government the Article's text generally refers to.

Observing the structure (Articles, Sections, and Clauses) and rules of construction make the Constitution of the United States much easier to read and understand.

[next: Drafting the Bill of Rights]

 

[sailortoo]

ConstitutionCowboy -
Thank you for a succinct and clear discription of "a free state". I feel as though I have been muttering to myself in the wilderness, and you have it all wrapped up nice and neat. I feel the 2A is all encompassing, due to the way it is written, to restrict federal, state, and local government from "infringing", as otherwise, the 2A is toothless and unenforceable. As it is, the real meaning has all but been trampled and buried - our job is to keep hammering away to recover what has been lost. A good thread!
sailortoo

 

[Ergosphere]

I disagree. Chief Justice Marshall presented a cogent and compelling rationale (better and more succinct than I have presented in my posts above) for the unanimous decision in Barron v. Baltimore.

And yet, Barron does not even mention the supremacy clause; it ignores the actual text and instead discusses the philosophy of the creation of the document. I simply cannot agree with the decision in Barron, which is entirely reasoned by this excerpt:

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.

Marshall makes an argument based on the prohibitions on bills of attainder ex post facto laws in Article 1 sections 9 and 10 (where the prohibition is repeated, once against the federal government and later against the states). In this, he makes the same mistake you make here:

The Constitution contains lists in which the first item makes reference to the US government and subsequent items infer that reference. See Article 1, Section 9, Clause 1 of the Constitution which includes "...shall not be prohibited by the Congress..." Clauses 2 through 7 do not specifically state, but rather infer, that they refer to the US government. Want proof? Clause 7 begins "No Money shall be drawn from the Treasury..." So which "Treasury" would that be if not the US Treasury?

It is not at all surprising that sections of Article 1 would refer to Congress, since that is what Article 1 is all about. If you say:
Article 1: (defines Congress)
... Article 1, Section 9: No ex post facto laws, etc...
The organization here makes it clear that Section 9 is meant to limit Congress. But the Bill of Rights is not structured in this way. The 2nd amendment is not a subsection of the 1st, nor of any other part of the constitution.

Marshall also says:

Had congress engaged in the extraordinary occupation of improving the constitutions of the several states, by affording the people additional protection from the exercise of power by their own governments, in matters which concerned themselves alone, they would have declared this purpose in plain and intelligible language.

But such "plain and intelligible language" does exist, in Article 6 clause 2: "the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding."

BTW, Chief Justice Marshall was a Federalist ally of James Madison at the Virginia ratifying convention, so he had direct personal knowledge of the genesis of the Bill of Rights.

That is interesting, but again circumstantial. Note this paragraph from Barron:

But it is universally understood, it is a part of the history of the day, that the great revolution which established the constitution of the United States, was not effected without immense opposition. Serious fears were extensively entertained, that those powers which the patriot statesmen, who then watched over the interests of our country, deemed essential to union, and to the attainment of those unvaluable objects for which union was sought, might be exercised in a manner dangerous to liberty. In almost every convention by which the constitution was adopted, amendments to guard against the abuse of power were recommended. These amendments demanded security against the apprehended encroachments of the general government-not against those of the local governments. In compliance with a sentiment thus generally expressed, to quiet fears thus extensively entertained, amendments were proposed by the required majority in congress, and adopted by the states. These amendments contain no expression indicating an intention to apply them to the state governments. This court cannot so apply them.

(Emphasis added.) Strangely he suggests looking at the actual text to determine if the states are limited, but again there is no mention of the supremacy clause. Was it even presented in argument?

ETA: This line of reasoning actually holds together quite well. Madison's proposed changes were intended to modify the body of the Constitution. As such, the 1st amendment protections were repeated, binding the federal and state governments in separate provisions. This makes sense given the structure of the document, e.g. consider the repeated provisions against ex post facto laws and bills of attainder in Article 1 sections 9 and 10. However, the Bill of Rights was adopted instead as amendments, outside the main structure of the Constitution. And if the Bill of Rights was really intended to only limit the federal government (supremacy clause notwithstanding), then why the addition of "Congress shall make no law..." to the 1st amendment? It wouldn't have been necessary at all; removing the second clause which explicitly limited the states would have been sufficient.

 

[gc70]

Ergoshpere:
And if the Bill of Rights was really intended to only limit the federal government (supremacy clause notwithstanding), then why the addition of "Congress shall make no law..." to the 1st amendment?

The Bill of Rights was proposed as modifications to the actual text of the Constitution and the meaning of the changes was partially derived from their location in the text of the Constitution. When the Bill of Rights was converted to a supplement to the Constitution, it lost those specific reference points.

As a supplement to the Constitution, the Bill of Rights follows the general rule of constitutional construction and refers to the government of the United States, unless specifically stated otherwise. The first amendment in the Bill of Rights also names the government ("Congress shall make no law...") to which the Bill of Rights refers - exactly as is done in the first Clauses of the multi-clause Articles of the Constitution.

 

[gc70]

Ergosphere:
The organization here makes it clear that Section 9 is meant to limit Congress. But the Bill of Rights is not structured in this way. The 2nd amendment is not a subsection of the 1st, nor of any other part of the constitution.

Article 1, Section 9 contains a list (Clauses) of eight limits on Congress. But the word "Congress" only appears in Clauses 1 and 8.

The Bill of Rights contains a list (Amendments) of eight limits on Congress. But the word "Congress" only appears in the 1st Amendment.

The 9th and 10th Amendments explicitly name the government(s) to which they apply.

The same structure and rules of construction were used for both the Constitution and Bill of Rights.

 

[SCPigpen]

ConstitutionCowboy -
Thank you for a succinct and clear discription of "a free state". I feel as though I have been muttering to myself in the wilderness, and you have it all wrapped up nice and neat.



That is what I have thought & tried to convey to people for many years. However my lack of eloquency got in the way.

Constitution Cowbot, don't be made if I steal your words and use them in them future while debating anti's. Thanx.

 

[hugh damright]

So, we're talking about a free state. Is it talking about a free political unit or a free condition?

The only correct grammatical context is for "state" to mean "condition" in the Second Amendment.

The term "free State" refers to a State with free government. In fact, Maryland's Constitution says that militia is needed to secure free government.

Webster's 1828 dictionary refers to the term "free State" in a couple of instances that I am aware of ... under "free", it says:

"In government, not enslaved; not in a state of vassalage or dependence; subject only to fixed laws, made by consent, and to a regular administration of such laws; not subject to the arbitrary will of a sovereign or lord; as a free state, nation or people."

And also under "commonwealth" that dictionary says:

"An established form of government, or civil polity; or more generally, a state; a body politic, consisting of a certain portion of men united by compact or tacit agreement, under one form of government and system of laws. This term is applied to the government of Great Britain, which is of a mixed character, and to other governments which are considered as free or popular, but rarely or improperly, to an absolute government. A commonwealth is properly a free state; a popular or representative government; a republic; as the commonwealth of Massachusetts. The word signifies strictly, the common good or happiness; and hence, the form of government supposed best to secure the public good."

Here's a bit of something I wrote about this previously:

The term "free State" refers to free government or self-government. It is to be contrasted with a monarchial State, which is governed by an individual, or an oligarchical State, which is governed by a small group. A free State is a body of people who govern themselves.

A free State has many requirements for its security. It requires that government powers be divided amongst separate branches of government. It requires a written Constitution with a Bill of Rights. And it requires a government elected, by the people, for limited terms. The resulting form of government, a Constituted Republic, is intended to ensure that the government and the people remain inseparable.

A free State requires that the military also remain inseparable from the people. In the Framers' day, it was believed that the proper defense of a free State was the people themselves, trained to arms. Today the military power is more distinct from the people, but if it becomes too distinct, then free government is threatened.

Nothing then, according to these principles, ought to be more guarded against in a free state, than making the military power, when such a one is necessary to be kept on foot, a body too distinct from the people - Blackstone, Commentaries on the Laws of England (1765)

 

[hugh damright]

the court states in plain language (exerpt) "... the states cannot, ... prohibit the people from keeping and bearing arms

IIRC, the court states in plain english that the Second Amendment does not bind the States, but that regardless of that fact, the States cannot ban firearms because it would interfere with federal powers ... I don't see how we can conclude that the Second Amendment binds the States ... it seems to me that when you say "the Second Amendment" that you are not talking about the amendment but rather you are talking about the RKBA ... I agree that the States cannot disarm the general population for various reasons, I agree that the Second Amendment declares a principle of a free government which applies to the States, but it is a different matter to say that the Second Amendment binds the States.

How do you see the 2nd as binding the States? Do you see it as empowering the federal government with jurisdiction over state gun laws?

The way some people here view the USBOR, the idea seems to be that the federal courts shall have original jurisdiction over all matters concerning privileges, immunities, and rights. Or better yet, just go with what Hamilton wanted - a federal court in every State with veto power! I mean ... why would we want to let a State pass a law, and then have that law impact people, forcing the people to bring the law to federal court so that it could then be struck down ... wouldn't it be a lot more efficient to just put a federal court in every State and let them review all State legislation as it is passed and either veto it or let it stand?

[edit]And beyond that, if the federal courts are to have jurisdiction over our State laws, then why would we pick our own legislators, only to have them pass laws which the feds don't like and strike down ... wouldn't it be more efficient to just have the federal government appoint our legislators, so that they will pass laws which the federal government likes?