The Conservative Cave
Current Events => Breaking News => Topic started by: Ralph Wiggum on June 28, 2010, 09:13:08 AM
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The Supreme Court struck down Chicago's ban on hand guns today and extended the reach of the 2nd Amendment as a nationwide protection against laws that infringe the "right to keep and bear arms."
The 5-4 decision voids the 1982 ordinance, one of the nation's strictest, which barred city residents from having handguns for their own use, even at home. The ruling has both local and national implications.
Two years ago, the high court ruled in a case from Washington, D.C. that the 2nd Amendment protects the rights of individuals to have a gun for self-defense. Since the District is a federal city and not a state, the court did not decide then whether the 2nd Amendment could be used to challenge other municipal ordinances or state laws.
In today's decision, the court said the constitutional protection of the 2nd Amendment extends to city and state laws, not just federal measures.
Much more at LINK (http://www.chicagobreakingnews.com/2010/06/united-states-supreme-court-scotus-gun-control-rifle-ban-chicago-police-mayor-richard-daley-nra-second-2nd-amendment.html)
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Suck it Chicago. Suck it long. And suck it hard.
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:II:
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And I wonder how the DUmmies are going to react.
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Mayor Daley is already planning to put a new ban in place. It'll take years for it to reach the SCOTUS again, but who knows what the court will look like at that point.
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Mayor Daley is already planning to put a new ban in place. It'll take years for it to reach the SCOTUS again, but who knows what the court will look like at that point.
If he does, then he will be violating people's civil rights as determined by today's decision. Any court would be obligated to throw out any charges arising from any new type of "ban", IMO.
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Finally it won't be just the criminals that are armed.
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Mayor Daley is already planning to put a new ban in place. It'll take years for it to reach the SCOTUS again, but who knows what the court will look like at that point.
Smoke `em if ya got `em...
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And I wonder how the DUmmies are going to react.
Hairs on fires, heads `esplodin'...
delicious...
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And I wonder how the DUmmies are going to react.
I've seen some of the posts at the DU concerning gun control. Surprisingly enough, there are a LOT of DUers that are very PRO 2nd Amendment. There may be a few vocal ones that are rabidly anti-gun, but on the whole, I wouldn't expect to read a lot about too many heads exploding, etc.
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I've seen some of the posts at the DU concerning gun control. Surprisingly enough, there are a LOT of DUers that are very PRO 2nd Amendment. There may be a few vocal ones that are rabidly anti-gun, but on the whole, I wouldn't expect to read a lot about too many heads exploding, etc.
Found one thread. Seemed 50/50 at that point. I'll bring it over.
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I can't wait to see how the media and the White House will try and spin this.
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Found one thread. Seemed 50/50 at that point. I'll bring it over.
That's fairly typical of them on gun issues...of those that post on the threads, it seems fairly even. I expect their opinion as a whole heavily favors gun control, but for whatever reason (Mainly not the average DU poster's particular pet rock I expect), only a certain percentage of them actively post on the gun threads, and that percentage seems to be roughly even on each side.
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The part I don't like is:
But because the court sent the case back to a lower court, Chicago's handgun ban remains in effect for now.
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The part I don't like is:
I'm definitely not a lawyer, but I thought that was pretty standard. SC rules on something and then sends it back to the lower court and says "This is how you're going to rule" and lets the lower court wrap it up.
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I look for a flurry of new lawsuits concerning gun laws in cities and states all over the country.
As I understand it, this ruling in effect and finally "incorporates" the 2nd Amendment. Something us gun rights advocates have been working toward for decades.
I also look for a lot of cities that may currently ban firearms to begin mandating firearm registration and owner licensing as a way to get around this ruling.
The fallout of this ruling is going to be massive IMO.
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Another 5-4 decision for constitutional rights. :censored: One more Obama judge and we're (http://e.deviantart.net/emoticons/a/analprobe.gif)
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A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.
shall not be infringed.
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Another 5-4 decision for constitutional rights. :censored: One more Obama judge and we're (http://e.deviantart.net/emoticons/a/analprobe.gif)
Not very likely. Since outgoing John Paul Stevens voted for the minority and Kagan, if she's confirmed, would likely also vote within the liberal wing (and thus remain in the minority), it's basically a wash.
Arthur Kennedy becoming the new swing voter?
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Not very likely. Since outgoing John Paul Stevens voted for the minority and Kagan, if she's confirmed, would likely also vote within the liberal wing (and thus remain in the minority), it's basically a wash.
Arthur Kennedy becoming the new swing voter?
Hi,
I think the most disturbing thing for me was the fact the vote was 5-4. To me is really says four of the justices do not give a damn about the Constitution and just how close we are to some real problems. If the court does swing the other direction then it is likely all over for our republic.
regards,
5412
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Hi,
I think the most disturbing thing for me was the fact the vote was 5-4. To me is really says four of the justices do not give a damn about the Constitution and just how close we are to some real problems. If the court does swing the other direction then it is likely all over for our republic.
regards,
5412
Breyer's dissent was patterned, in part, after the whole idea of "letting the individual states and municipalities decide their own application, rather than having a federal interpretation of the law."
That tells me that he's trying to put the state's right spin on his dissent, rather than looking at gun ownership as being a universal right.
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Well, someone I know up that way isn't violating the municipal statute anymore... :uhsure:
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Breyer's dissent was patterned, in part, after the whole idea of "letting the individual states and municipalities decide their own application, rather than having a federal interpretation of the law."
That tells me that he's trying to put the state's right spin on his dissent, rather than looking at gun ownership as being a universal right.
And that's pretty consistent with the tack the Court took on it from the first National Firearms Act (NFA) cases 'way back in gangster days, however the entire rationale they used was based on a horribly tortured misreading of the Second Amendment. The most powerful and most obvious thing about the Second is that First and Third thru Eighth Amendments are clearly intended to enshrine individual rights against government encroachment, if the Second was NOT intended to protect an individual right, why is it in there instead of being a subordinate clause in the Tenth, which cover rights retained by the States (Which would be the place to put it consistent with the Court's original NFA analysis)?
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Well, someone I know up that way isn't violating the municipal statute anymore... :uhsure:
Tut tut... Not so fast. The SCOTUS referred it back to the lower court, so the Chicago ban remains in effect for now.
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And that's pretty consistent with the tack the Court took on it from the first National Firearms Act (NFA) cases 'way back in gangster days, however the entire rationale they used was based on a horribly tortured misreading of the Second Amendment. The most powerful and most obvious thing about the Second is that First and Third thru Eighth Amendments are clearly intended to enshrine individual rights against government encroachment, if the Second was NOT intended to protect an individual right, why is it in there instead of being a subordinate clause in the Tenth, which cover rights retained by the States (Which would be the place to put it consistent with the Court's original NFA analysis)?
I'm sure that explains why Breyer's writing for the minority.
This time.
The bastards will be back, of that I have no doubt.
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Two very important points for this case.
1 - the ruling was 5-4.
2 - it's completely hypocritical.
Libs: states have no right to determine laws for abortion, et al... but state's rights should apply for guns.
Conservatives: states have the right to determine laws for abortion, et al... but have no rights when it comes to guns.
IMHO - great win, bad ruling.
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Two very important points for this case.
1 - the ruling was 5-4.
2 - it's completely hypocritical.
Libs: states have no right to determine laws for abortion, et al... but state's rights should apply for guns.
Conservatives: states have the right to determine laws for abortion, et al... but have no rights when it comes to guns.
IMHO - great win, bad ruling.
Unfortunately a really bad analogy........there is a specifically enumerated right in the Constitution regarding bearing arms.......there is no such enumerated right to an abortion, it was made up of "whole cloth" in Roe........
I would say that most conservatives Constitutional position on abortion (religious considerations aside) would be that Roe was a seriously flawed decision to start with, and since there is no specifically enumerated right in the Constitution vis-a-vis abortion, it should be left up to the states (and the voters) to decide.
Nothing hypocritical about it.......this would be the "origionalist" position on the Constitutionality of either issue.
doc
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And I wonder how the DUmmies are going to react.
They are divided on this issue I believe.
I don't like guns, nor do I own a gun, but I am glad to have the option out there if I ever feel the need to buy one. It is our right.
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The fact the SCOTUS decision was NOT 9-0 is appalling. Damn man, just damn!
The BATF (Bureau of Alcohol, Tobacco and Firearms) should be a convenience store, not a federal agency.
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Unfortunately a really bad analogy........there is a specifically enumerated right in the Constitution regarding bearing arms.......there is no such enumerated right to an abortion, it was made up of "whole cloth" in Roe........
Completely agree, which is what (IMHO) makes it even more interesting.
I would say that most conservatives Constitutional position on abortion (religious considerations aside) would be that Roe was a seriously flawed decision to start with, and since there is no specifically enumerated right in the Constitution vis-a-vis abortion, it should be left up to the states (and the voters) to decide.
Nothing hypocritical about it.......this would be the "origionalist" position on the Constitutionality of either issue.
doc
Except that the 2nd applies to Congress... Technically not the states. The COTUS' job was to ensure the other two branches of the fed gov't were in check, not the states.
Still think it's a win, just think it "technically" may be argued as a bad ruling.
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Completely agree, which is what (IMHO) makes it even more interesting.
Except that the 2nd applies to Congress... Technically not the states. The COTUS' job was to ensure the other two branches of the fed gov't were in check, not the states.
Still think it's a win, just think it "technically" may be argued as a bad ruling.
I don`t follow on that one.
A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.
Now unless you are going off the wording of the first amendment...
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.
...to suggest that the entire Bill of Rights is an open issue for each state to disregard I see nothing from the text to indicate that a state would have inherent rights to ignore the Constitution.
http://www.archives.gov/exhibits/charters/bill_of_rights_transcript.html
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I don`t follow on that one.
Now unless you are going off the wording of the first amendment...
...to suggest that the entire Bill of Rights is an open issue for each state to disregard I see nothing from the text to indicate that a state would have inherent rights to ignore the Constitution.
http://www.archives.gov/exhibits/charters/bill_of_rights_transcript.html
The entire COTUS applies to the feds... States were free to do as they seemed fit. That was teh original design/intent.
The ruling is still a win.
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The entire COTUS applies to the feds... States were free to do as they seemed fit. That was teh original design/intent.
The ruling is still a win.
Uhm...no.
The Constitution spelled out what the federal government could do and what it couldn`t do,the Bill of Rights and other amendments.
What wasn`t explicitly stated one way or the other was regarded as a states right.
That is why the abortion issue was acted upon by an activist court citing a "penumbra" finding a right of privacy.
They were wrong but had to force it
If what you assert was correct then a state such as mine or yours would have the right to say all conservative speech is forbidden as the right to free speech only applies to federal property.
That is a bizarre and dangerous interpretation of the Constitution.
It would lead to what amounts to a 50 country version of the EU.
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Uhm...no.
The Constitution spelled out what the federal government could do and what it couldn`t do,the Bill of Rights and other amendments.
What wasn`t explicitly stated one way or the other was regarded as a states right.
That is why the abortion issue was acted upon by an activist court citing a "penumbra" finding a right of privacy.
They were wrong but had to force it
If what you assert was correct then a state such as mine or yours would have the right to say all conservative speech is forbidden as the right to free speech only applies to federal property.
That is a bizarre and dangerous interpretation of the Constitution.
It would lead to what amounts to a 50 country version of the EU.
I'm not the only person who has this view... The COTUS was put in place to keep the feds in check... amendments to that document don't (necessarily) change the focus of the document. Take a look at the 1st - "Congress shall.... " says nothing about the states, by your own point in the prevoius post.
Technically, the EU is a (form of a) republic, correct?
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I'm not the only person who has this view... The COTUS was put in place to keep the feds in check... amendments to that document don't (necessarily) change the focus of the document. Take a look at the 1st - "Congress shall.... " says nothing about the states, by your own point in the prevoius post.
Technically, the EU is a (form of a) republic, correct?
So you would be cool with Minnesota saying you have committed an illegal act posting here as in our state you do not have a right to free speech?
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So you would be cool with Minnesota saying you have committed an illegal act posting here as in our state you do not have a right to free speech?
In all cases having to do with religion and government bodies, the USSC and other courts have always applied the 1st amendment, so that means to me that the COTUS applies to all government agencies with respect to rights.
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In all cases having to do with religion and government bodies, the USSC and other courts have always applied the 1st amendment, so that means to me that the COTUS applies to all government agencies with respect to rights.
Exactly or otherwise you have a worthless document,and no union but rather 50 independent countries.
On edit...
Or in other words what the Articles of Confederation were.
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So you would be cool with Minnesota saying you have committed an illegal act posting here as in our state you do not have a right to free speech?
Don't mistake the perspective with agreement with any gov't body limiting god given rights.
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Oh my good shoes. This was enjoyable. I told you lewrockwell will rot your brain.
Amendment 2 - Right to Bear Arms. Ratified 12/15/1791. Note
A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.
Amendment 10 - Powers of the States and People. Ratified 12/15/1791. Note
The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.
I think that sums it up.
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Don't mistake the perspective with agreement with any gov't body limiting god given rights.
I am going to hit the hay but you have just said that it is wrong yet they have the right.(a state declaring sovereignty from the Constitution).
What then will prevent them if a liberal state government decides to act as a tyrant and has no respect for an overall system of basic federal law.
That isn`t calling for an all powerful central government either but one that at leasts binds the country together as a whole.
You are on very shaky and not well thought out ground imo.
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Oh my good shoes. This was enjoyable. I told you lewrockwell will rot your brain.
I think that sums it up.
Thanks for proving my point.
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Thanks for proving my point.
It doesn't though does it?
Justice Samuel A. Alito, Jr., in the Court’s main opinion, did make one thing unmistakably clear to lower court judges: the right to have a gun for self-defense in the home is a “fundamental†constitutional right. That one-word label carries enormous import. Ordinarily, if a right is deemed to be fundamental, any law that seeks to limit it will be judged by the stiffest constitutional test there is: it must satisfy “strict scrutiny,†meaning that it will be struck down if the government’s need for it is not “compelling†and if the approach it takes is not the narrowest possible way to get at the problem. Some laws can survive “strict scrutiny,†but not a great many do.
http://www.scotusblog.com/2010/06/analysis-gun-rights-go-national/
Neither Congress, or state/local government have authority to supercede that right.
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It doesn't though does it?
http://www.scotusblog.com/2010/06/analysis-gun-rights-go-national/
Neither Congress, or state/local government have authority to supercede that right.
It does. What amendment came first? There's this thing called cronology.. the 10th happened after the 2nd... When the 2nd was passed, it applied to the feds...
Make sense yet?
And Alito's opinion is just that - an opinion. I still call it a huge win for the individual, just a bad judgement for the strict constitutionalist.
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It does. What amendment came first? There's this thing called cronology.. the 10th happened after the 2nd... When the 2nd was passed, it applied to the feds...
Make sense yet?
And Alito's opinion is just that - an opinion. I still call it a huge win for the individual, just a bad judgement for the strict constitutionalist.
Then again, absolutely no.
They were ratified on the same day.
Congress is mentioned in many amendments, not the 2nd however.
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Then again, absolutely no.
They were ratified on the same day.
Congress is mentioned in many amendments, not the 2nd however.
I'll concede that is a good point.
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It does. What amendment came first? There's this thing called cronology.. the 10th happened after the 2nd... When the 2nd was passed, it applied to the feds...
Make sense yet?
And Alito's opinion is just that - an opinion. I still call it a huge win for the individual, just a bad judgement for the strict constitutionalist.
You are way out in a remote field on this one BKG...now you assert that the order of amendments matter,I can`t imagine how that could be used to interpret anything other then if one amendment specifically negates a previous one...the prohibition one.
Never ever has it been held that a state can arbitrarily,unilaterally pass a law that supersedes or undoes any part of the Constitution.
To suggest otherwise literally rips the pages to shreds.
Do you actually believe that a state can pass a law denying free speech,denying a right to vote,assemble peacefully and it is okay to do so?
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You are way out in a remote field on this one BKG...now you assert that the order of amendments matter,I can`t imagine how that could be used to interpret anything other then if one amendment specifically negates a previous one...the prohibition one.
Never ever has it been held that a state can arbitrarily,unilaterally pass a law that supersedes or undoes any part of the Constitution.
To suggest otherwise literally rips the pages to shreds.
Do you actually believe that a state can pass a law denying free speech,denying a right to vote,assemble peacefully and it is okay to do so?
Of course the order matters. It speaks right to the heart of those who voted for them.
Read the 1st again - addressed right at congress. Don't confuse the topic of conversation with desired outcome - they are different. One can either discuss the different perspectives or ignore them. I'm more than willing to admit I'm wrong, but at least engage the conversation.
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Of course the order matters. It speaks right to the heart of those who voted for them.
Read the 1st again - addressed right at congress. Don't confuse the topic of conversation with desired outcome - they are different. One can either discuss the different perspectives or ignore them. I'm more than willing to admit I'm wrong, but at least engage the conversation.
I have no idea what you are trying to say with what in my opinion is an obtuse statement.
Are you saying flat out that since the word Congress was used in the first amendment it means that states are free to make laws that do not follow the Bill of Rights,my examples being used.
It is a yes or no question.
What use is the Constitution at that point for anything or the value of ratifying it and entering into the Union?
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I have no idea what you are trying to say with what in my opinion is an obtuse statement.
Are you saying flat out that since the word Congress was used in the first amendment it means that states are free to make laws that do not follow the Bill of Rights,my examples being used.
It is a yes or no question.
Yes.
What use is the Constitution at that point for anything or the value of ratifying it and entering into the Union?
COTUS was designed to keep the Fed gov't in check. That was the EXACT reason for entering into the union - the guarantee (well, in theory) of freedom for the states.
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Yes.
COTUS was designed to keep the Fed gov't in check. That was the EXACT reason for entering into the union - the guarantee (well, in theory) of freedom for the states.
You do realize the ramifications of that opinion if it were widely held and acted upon don`t you?
What redress would one have for an oppressive state law that declared you did not have the right to free speech,you could not protest in any manner anything the state government decreed unacceptable,that any person could be held as a slave in a given state.
Those are extremes but serve as illustrations of what you are saying is correct and legal.
Think man...think.
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You do realize the ramifications of that opinion if it were widely held and acted upon don`t you?
What redress would one have for an oppressive state law that declared you did not have the right to free speech,you could not protest in any manner anything the state government decreed unacceptable,that any person could be held as a slave in a given state.
Easy - people would leave that state and move to another. That's the beauty of the Republic. Mobility, in theory, keeps the states in check. Happening today with tax policy.
Those are extremes but serve as illustrations of what you are saying is correct.
Think man...think.
I understand your point. But ask yourself: why did the framers specifically call out Congress WRT the 1st?
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I understand your point. But ask yourself: why did the framers specifically call out Congress WRT the 1st?
??
Wait a minute -- the states wrote the amendments. It was the only way the states would ratify the Constitution. Madison wrote chose them based on what he received from the states at the Convention.
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??
Wait a minute -- the states wrote the amendments. It was the only way the states would ratify the Constitution. Madison wrote chose them based on what he received from the states at the Convention.
Which again further supports my point. Why did the states specifically call out "congress" in the 1st amendment? It wasn't to limit their autonomy, it was to limit the fed's power.
You have to separate yourslef from your personal bias (I'm biased towards free speech, period, regardless of COTUS), step back and look at it logically. Hard as hell to do when SCOTUS rules in your favor, but important or we ALL end up twisting COTUS for our own desires.
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Federalist tactics succeeded. When the First Congress assembled in 1789, the winners, in keeping with promises made during the ratification process, set about adding a bill of rights to the Constitution. As leader in the House of Representatives, Madison initiated the legislation as specified by Article V, and by September Congress had approved a set of twelve amendments and sent them to the states for ratification. Ten survived the process, and the Bill of Rights was added to the Constitution on 15 December 1791. Most defined specific liberties, such as freedom of religion, speech, press, and other traditional Anglo-American concepts widely discussed in the eighteenth century, including a prohibition on quartering troops in private homes (Third Amendment).
Only the Second Amendment contained any substantial statement relating to military power. Its reference was quite specific: "A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed." Eighteenth-century Americans understood the precise meaning of those few words and tied them directly to the basic militia clause in Article I of the Constitution. Creating a "well regulated" militia-that is, one with adequate organization, weapons, and training, uniform across the nation-ensured that, when mobilized, the militiamen could effectively carry out combat functions.This point had been fully articulated during the drafting of Article I. Mason and other advocates of the Second Amendment knew that during the last years of the Revolution many militia units had virtually disintegrated because they lacked sufficient arms. The amendment reinforced the original militia clause by stating this fact explicitly.
http://www.history.army.mil/books/RevWar/ss/ch4.htm
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Easy - people would leave that state and move to another. That's the beauty of the Republic. Mobility, in theory, keeps the states in check. Happening today with tax policy.
I understand your point. But ask yourself: why did the framers specifically call out Congress WRT the 1st?
What if that state said "no,you don`t have the right to move...we need your tax dollars"?
On the second question ...because they were writing a federal Constitution and expected the states to follow and respect that.
They were undoing the Articles of Confederation which was a failure for the exact reasons you say the Constitution allows or mandates.
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Which again further supports my point. Why did the states specifically call out "congress" in the 1st amendment? It wasn't to limit their autonomy, it was to limit the fed's power.
You have to separate yourslef from your personal bias (I'm biased towards free speech, period, regardless of COTUS), step back and look at it logically. Hard as hell to do when SCOTUS rules in your favor, but important or we ALL end up twisting COTUS for our own desires.
They call out Congress in many amendments -- the second is a fundamental right. If it were addressing Congress they would have wrote A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.... by Congress.
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What if that state said "no,you don`t have the right to move...we need your tax dollars"?
On the second question ...because they were writing a federal Constitution and expected the states to follow and respect that.
They were undoing the Articles of Confederation which was a failure for the exact reasons you say the Constitution allows or mandates.
And now you've asked an interesting question - what happens if the state attempts to prevent your freedom of movement? Good question. But let's stay to a single amendment for a while and address that. You've switched topics - does that mean you agree with me or are you just pointing out additional flaws in my argument?
Bear in mind, the framers and early leaders wanted gov't as close to the people as possible - not far away in DC. They knew what that would lead to.
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They call out Congress in many amendments -- the second is a fundamental right. If it were addressing Congress they would have wrote A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.... by Congress.
So are you willing to admit then, based on THIS post, that the 1st appliest to Congress?
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Which again further supports my point. Why did the states specifically call out "congress" in the 1st amendment? It wasn't to limit their autonomy, it was to limit the fed's power.
You have to separate yourslef from your personal bias (I'm biased towards free speech, period, regardless of COTUS), step back and look at it logically. Hard as hell to do when SCOTUS rules in your favor, but important or we ALL end up twisting COTUS for our own desires.
Perhaps because they realized a all powerful central was as bad as a tyrannical monarch but that also does not suggest that they considered themselves to be supreme in law making.
Hell,if that was the case then why would they have ratified the thing given the power granted to the SCOTUS?
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Perhaps because they realized a all powerful central was as bad as a tyrannical monarch but that also does not suggest that they considered themselves to be supreme in law making.
Which is EXACTLY my point.
Hell,if that was the case then why would they have ratified the thing given the power granted to the SCOTUS?
Interesting question. Also an interesting question - why did (early) SCOTUS interpret it as they did when there is no mention of the states in the 1st??
Interpretaion of the amendments as trumping state's is an interesting one in that it (effecitvely) presumes supremecy.... Which is exactly what people didn't want.
It's a bit of a mind twister...
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So are you willing to admit then, based on THIS post, that the 1st appliest to Congress?
Nah -- I am just poorly and hastily pointing out the flaw in your argument while I am trying to type up a nomination document that I have been putting off for a month now and is due tomorrow..... should not be on this site at all right now.
Congress is mentioned in many amendments. The inclusion of that language simply because it was the language sent to Madison to present to Congress for approval. They were written by the states. While they did not want a powerful government, that did agree on basic fundamental rights of the Republic. The Bill of Rights is just that.
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And now you've asked an interesting question - what happens if the state attempts to prevent your freedom of movement? Good question. But let's stay to a single amendment for a while and address that. You've switched topics - does that mean you agree with me or are you just pointing out additional flaws in my argument?
Bear in mind, the framers and early leaders wanted gov't as close to the people as possible - not far away in DC. They knew what that would lead to.
You have been boxed in by your own words and are trying to wiggle away..I have not switched topics but pointing out the overall ramifications of what you have asserted.
You are attempting a diversion,am well aware of that tactic and am not going to entertain it.
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Which is EXACTLY my point.
Interesting question. Also an interesting question - why did (early) SCOTUS interpret it as they did when there is no mention of the states in the 1st??
Interpretaion of the amendments as trumping state's is an interesting one in that it (effecitvely) presumes supremecy.... Which is exactly what people didn't want.
It's a bit of a mind twister...
I think you are hyper-focused on the intent of each individual amendment, as opposed to the intent of the amendments as a whole.
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Nah -- I am just poorly and hastily pointing out the flaw in your argument while I am trying to type up a nomination document that I have been putting off for a month now and is due tomorrow..... should not be on this site at all right now.
Congress is mentioned in many amendments. The inclusion of that language simply because it was the language sent to Madison to present to Congress for approval. They were written by the states. While they did not want a powerful government, that did agree on basic fundamental rights of the Republic. The Bill of Rights is just that.
You need to make up your mind. Either they (the states) called out Congress specifically or they did not. You're arguing both sides, and poorly at that. You state that if they meant it for Congress, they called out congress specifically... but then say that if they call out Congress specifcally, it doesn't matter?
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You have been boxed in by your own words and are trying to wiggle away..I have not switched topics but pointing out the overall ramifications of what you have asserted.
You are attempting a diversion,am well aware of that tactic and am not going to entertain it.
Not attempting to divert at all. We were talking about the 1st, so I wanted to stay on that due to the specific wording of the 1st vs others. I've acknowledged your points.
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I think you are hyper-focused on the intent of each individual amendment, as opposed to the intent of the amendments as a whole.
Well... no shit... Of course I am. I'll be the first to admit that. You MUST take them individually as written! Your model of "the intent" of all of them as a whole ignores the specific verbiage and allows for interpretations that ignore the specifics... If you don't take them individually, then you almost need to throw out each individual challenge that SCOTUS has heard as not challenging the COTUS as a whole...
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You need to make up your mind. Either they (the states) called out Congress specifically or they did not. You're arguing both sides, and poorly at that. You state that if they meant it for Congress, they called out congress specifically... but then say that if they call out Congress specifcally, it doesn't matter?
No -- it was a really poor example on my part. Just written too quickly. My point was to show that using the Congress language argument, the 2nd does not contain that so it clearly is a fundamental right. That said, it doesn't matter if it is or not.
Take the 9th -- the intent here was prompted by the fear that if a right of the individual is not expressly written, it is not protected:
Amendment 9 - Construction of Constitution. Ratified 12/15/1791.
The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.
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Which is EXACTLY my point.
Interesting question. Also an interesting question - why did (early) SCOTUS interpret it as they did when there is no mention of the states in the 1st??
Interpretaion of the amendments as trumping state's is an interesting one in that it (effecitvely) presumes supremecy.... Which is exactly what people didn't want.
It's a bit of a mind twister...
Perhaps since it is an imperfect world?
Also the fact that amendments were needed show that imperfect people need to think things out farther.
If my recollection of history is correct the issue of the SCOTUS being the final authority on issues.
It was accepted that it was and of course our history also contains the Civil war issues of states rights and federal authority (not getting into that here).
It isn`t easy or pretty but hasn`t hurt us mortally yet either...I think your view easily could.
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Well... no shit... Of course I am. I'll be the first to admit that. You MUST take them individually as written! Your model of "the intent" of all of them as a whole ignores the specific verbiage and allows for interpretations that ignore the specifics... If you don't take them individually, then you almost need to throw out each individual challenge that SCOTUS has heard as not challenging the COTUS as a whole...
Uh no -- not for this argument you are making. Of course each amendment should be looked at individually as they would apply. However, to suggest these basic tenets agreed upon by the states at the Constitutional Convention is strictly written to limit the authority of Congress and only Congress is incorrect.
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I have to check out for the night -- I cannot give this my full attention so I don't want to post anymore on it tonight.
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Uh no -- not for this argument you are making. Of course each amendment should be looked at individually as they would apply. However, to suggest these basic tenets agreed upon by the states at the Constitutional Convention is strictly written to limit the authority of Congress and only Congress is incorrect.
Which again, I'm willing to accept. But the argument that you've made thus far is that unless Congress is specifically mentioned, it applies to the states.
IMHO, our forefathers were smart enough to be specific when needed.
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Not attempting to divert at all. We were talking about the 1st, so I wanted to stay on that due to the specific wording of the 1st vs others. I've acknowledged your points.
The entire discussion was started by your statement that the 2nd amendment only applied to Congress which is why I asked why and threw out the wording of the 1st as your justification of that.
You have said yes,it does mean that states are not obligated to follow the Bill of Rights or vis a vie any part of the Constitution if they see fit not to (can`t single out one part and then apply another).
We are discussing an ideology at this point that is tantamount to anarchy as what binds any individual to respect a law?
Does a town have the right to enact a local law that supersedes a state or federal one?
Does an individual claim a right to not be bound by any he/she doesn`t agree with?
Where do you take it to?
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Which again, I'm willing to accept. But the argument that you've made thus far is that unless Congress is specifically mentioned, it applies to the states.
IMHO, our forefathers were smart enough to be specific when needed.
I really don't understand where you are coming from now, and I explained already my comments on the mention of Congress.
You know believe that 2nd amendment, because our forefathers did not specifically mention Congress, applies to the states?
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8 Madison began as a doubter, writing Jefferson that while ‘‘[m]y own opinion has always been in favor of a bill of rights,’’ still ‘‘I have never thought the omission a material defect, nor been anxious to supply it even by subsequent amendment. . . .’’ 5 THE WRITINGS OF JAMES MADISON 269 (G. Hunt ed., 1904). His reasons were four.
(1) The Federal Government was not granted the powers to do what a bill of rights would proscribe. (2) There was reason ‘‘to fear that a positive declaration of some of the most essential rights could not be obtained in the requisite latitude. I am sure that the rights of conscience in particular, if submitted to public definition would be narrowed much more than they are likely ever to be by an assumed power.’’ (3) A greater security was afforded by the jealousy of the States of the national government. (4) ‘‘[E]xperience proves the inefficacy of a bill of rights on those occasions when its controul is most needed. Repeated violations of these parchment barriers have been committed by overbearing majorities in every State. . . . Wherever the real power in a Government lies, there is the danger of oppression. In our Governments the real power lies in the majority of the Community, and the invasion of private rights is chiefly to be apprehended, not from acts of Government contrary to the sense of its constituents, but from acts in which the Government is the mere instrument
of the major number of the Constituents. . . . Wherever there is a interest and power to do wrong, wrong will generally be done, and not less readily by a powerful & interested party than by a powerful and interested prince.’’ Id. at 272–73. Jefferson’s response acknowledged the potency of Madison’s reservations and attempted to answer them, in the course of which he called Madison’s attention to an argument in favor not considered by Madison ‘‘which has great weight with me, the legal check which it puts into the hands of the judiciary. This is a body, which if rendered independent, and kept strictly to their own department merits great confidence for their learning and integrity.’’ 14 THE PAPERS OF THOMAS JEFFERSON 659 (J. Boyd ed., 1958). Madison was to assert this point when he introduced his proposals for a bill of rights in the House of Representatives. 1 ANNALS OF CONGRESS 439 (June
8, 1789).
In any event, following ratification, Madison in his successful campaign for a seat in the House firmly endorsed the proposal of a bill of rights. ‘‘t is my sincere opinion that the Constitution ought to be revised, and that the first Congress meeting under it ought to prepare and recommend to the States for ratification, the most satisfactory provisions for all essential rights, particularly the rights of Conscience in the fullest latitude, the freedom of the press, trials by jury, security against general warrants & c.’’ 5 THE WRITINGS OF JAMES MADISON 319 (G. Hunt ed., 1904).
Interesting notation --
Bill of Rights and the States.—One of the amendments which the Senate refused to accept—declared by Madison to be ‘‘the most valuable of the whole list’’ 12 —read: ‘‘The equal rights of conscience, the freedom of speech or of the press, and the right of trial by jury in criminal cases shall not be infringed by any State.’’ 13 In spite of this rejection, the contention that the Bill of Rights—or at least the first eight—was applicable to the States was repeatedly
pressed upon the Supreme Court. By a long series of decisions, beginning with the opinion of Chief Justice Marshall in Barron v. Baltimore, 14 the argument was consistently rejected. Nevertheless, the enduring vitality of natural law concepts encouraged renewed appeals for judicial protection through application of the Bill of Rights. 15
http://www.gpoaccess.gov/constitution/pdf2002/018.pdf
Madison's intent quite clear. Very interesting -- when I have time this evening I will read the decision of Barron v Baltimore to get some feeling on this further. That said, this document goes on to state that the 14th amendment extends this to the states.
Lots more to read.
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It does. What amendment came first? There's this thing called cronology.. the 10th happened after the 2nd... When the 2nd was passed, it applied to the feds...
Make sense yet?
And Alito's opinion is just that - an opinion. I still call it a huge win for the individual, just a bad judgement for the strict constitutionalist.
Dear bkg,
The Constitution and Bill of Rights was ratified by the states as a whole, not piecemeal as with the 11th and subsequent amendments.
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I really don't understand where you are coming from now, and I explained already my comments on the mention of Congress.
You know believe that 2nd amendment, because our forefathers did not specifically mention Congress, applies to the states?
Never said that. I pointed out early on when we switched to talking about the 1st that it specifically addresses congress. They were very deliberate about that. Hence my point that it doesn't address or limit any state activity.
The second amendment names no specific entity. You're argument is that because it doesn't address a specific entity, then it applies to the states. But then you've also asserted that the 1st applies to the states even though it specifically addresses congress. Just pointing out that you can't argue both.
I still think it was a very important decision that helps shift the power to the citizen, which is critical. I still assert that there was some mis application. I've also stated planely that many decisions are incorrect coming out of SCOTUS. This is the most recent and therefore a good one to disect.
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Interesting notation --
http://www.gpoaccess.gov/constitution/pdf2002/018.pdf
Madison's intent quite clear. Very interesting -- when I have time this evening I will read the decision of Barron v Baltimore to get some feeling on this further. That said, this document goes on to state that the 14th amendment extends this to the states.
Lots more to read.
Bill of Rights and the States.—One of the amendments which the Senate refused to accept—declared by Madison to be ‘‘the most valuable of the whole list’’ 12 —read: ‘‘The equal rights of conscience, the freedom of speech or of the press, and the right of trial by jury in criminal cases shall not be infringed by any State.’’ 13 In spite of this rejection, the contention that the Bill of Rights—or at least the first eight—was applicable to the States was repeatedly
pressed upon the Supreme Court. By a long series of decisions, beginning with the opinion of Chief Justice Marshall in Barron v. Baltimore, 14 the argument was consistently rejected. Nevertheless, the enduring vitality of natural law concepts encouraged renewed appeals for judicial protection through application of the Bill of Rights. 15
Very interesting indeed. This seems to support my assertion that clarity of language is key, and the founders knew that. The question is if the above was rejected because it limited states power?
Again, I'm making a disctinction between the intent and the interpetation by SCOTUS... I think a originalist interpretation would be different than how SCOTUS has elected to.... enforce.
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Dear bkg,
The Constitution and Bill of Rights was ratified by the states as a whole, not piecemeal as with the 11th and subsequent amendments.
Understand that and your point further supports my position. Pull the 11th and later out - for the sake of discussion - and tell me what the intention was of the fully radified COTUS. At that time, which is why I keyed in on the order of passage as important, the 14th didn't exist, and the meaning different. Only after you apply the following amendments does the meaning and/or application of the previous amendments change. And it begs one question - if they really wanted the 1st to apply to the states, why not amend the 1st to include the states AND congress?
At the end of the day, it's an interesting exercise. And frankly an important one. Both the left and the right twist COTUS to mean what they want when it benefits them. The question is if anyone - anyone at all - could be happy with the most strict interpretation. I'm not sure I would. Then again, I'm a bit of a purist and think I would find an uber strict interpretation easier to live under - would be more predictable.
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Very interesting indeed. This seems to support my assertion that clarity of language is key, and the founders knew that. The question is if the above was rejected because it limited states power?
Again, I'm making a disctinction between the intent and the interpetation by SCOTUS... I think a originalist interpretation would be different than how SCOTUS has elected to.... enforce.
It does support your assertion. I want to read the SCOTUS case mentioned before commenting further though.
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Never said that. I pointed out early on when we switched to talking about the 1st that it specifically addresses congress. They were very deliberate about that. Hence my point that it doesn't address or limit any state activity.
The second amendment names no specific entity. You're argument is that because it doesn't address a specific entity, then it applies to the states. But then you've also asserted that the 1st applies to the states even though it specifically addresses congress. Just pointing out that you can't argue both.
I still think it was a very important decision that helps shift the power to the citizen, which is critical. I still assert that there was some mis application. I've also stated planely that many decisions are incorrect coming out of SCOTUS. This is the most recent and therefore a good one to disect.
You are all over the board here and I am now even more confused as to where you stand.
Except that the 2nd applies to Congress... Technically not the states. The COTUS' job was to ensure the other two branches of the fed gov't were in check, not the states.
Still think it's a win, just think it "technically" may be argued as a bad ruling.
http://www.conservativecave.com/index.php/topic,45773.msg502865.html#msg502865
My question in response..
http://www.conservativecave.com/index.php/topic,45773.msg502886.html#msg502886
With your reply.
The entire COTUS applies to the feds... States were free to do as they seemed fit. That was teh original design/intent.
The ruling is still a win.
http://www.conservativecave.com/index.php/topic,45773.msg502947.html#msg502947
A later question.
I have no idea what you are trying to say with what in my opinion is an obtuse statement.
Are you saying flat out that since the word Congress was used in the first amendment it means that states are free to make laws that do not follow the Bill of Rights,my examples being used.
It is a yes or no question.
What use is the Constitution at that point for anything or the value of ratifying it and entering into the Union?
I have no idea what you are trying to say with what in my opinion is an obtuse statement.
Are you saying flat out that since the word Congress was used in the first amendment it means that states are free to make laws that do not follow the Bill of Rights,my examples being used.
It is a yes or no question.
What use is the Constitution at that point for anything or the value of ratifying it and entering into the Union?
.
Your answer.
Yes.
What use is the Constitution at that point for anything or the value of ratifying it and entering into the Union?
COTUS was designed to keep the Fed gov't in check. That was the EXACT reason for entering into the union - the guarantee (well, in theory) of freedom for the states.
http://www.conservativecave.com/index.php/topic,45773.msg503430.html#msg503430
The first amendment was brought up by me as a question as to why you said originally the second only applies to Congress.
Just trying to figure out where we are at here.
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Understand that and your point further supports my position. Pull the 11th and later out - for the sake of discussion - and tell me what the intention was of the fully radified COTUS. At that time, which is why I keyed in on the order of passage as important, the 14th didn't exist, and the meaning different. Only after you apply the following amendments does the meaning and/or application of the previous amendments change. And it begs one question - if they really wanted the 1st to apply to the states, why not amend the 1st to include the states AND congress?
At the end of the day, it's an interesting exercise. And frankly an important one. Both the left and the right twist COTUS to mean what they want when it benefits them. The question is if anyone - anyone at all - could be happy with the most strict interpretation. I'm not sure I would. Then again, I'm a bit of a purist and think I would find an uber strict interpretation easier to live under - would be more predictable.
In the lead up to the Civil War the government viewed secesion to be illegal but was not sure how to stop it.
Lincoln took the view that it was illegal and the power granted the executive was needed to stop it...war ensued.
As most amendments after the Bill of Rights the 14th was one of several to address an issue that perhaps was assumed but not clarified.
The entire population should have great respect for the writers of the Constitution given the time it was constructed and an interesting discussion could be had as to how they would word it today if brought back and could view the 200+ years of existence.
I honestly don`t believe they would greatly alter it however they likely would word it differently.
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The Supreme Court struck down Chicago's ban on hand guns today and extended the reach of the 2nd Amendment as a nationwide protection against laws that infringe the "right to keep and bear arms."
The 5-4 decision voids the 1982 ordinance, one of the nation's strictest, which barred city residents from having handguns for their own use, even at home. The ruling has both local and national implications.
Two years ago, the high court ruled in a case from Washington, D.C. that the 2nd Amendment protects the rights of individuals to have a gun for self-defense. Since the District is a federal city and not a state, the court did not decide then whether the 2nd Amendment could be used to challenge other municipal ordinances or state laws.
In today's decision, the court said the constitutional protection of the 2nd Amendment extends to city and state laws, not just federal measures.
Much more at LINK (http://www.chicagobreakingnews.com/2010/06/united-states-supreme-court-scotus-gun-control-rifle-ban-chicago-police-mayor-richard-daley-nra-second-2nd-amendment.html)
This is the greatest news to come out of the high court in a long time. Let's hope they don't go right back on it in a few years.
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BKG...
Let's see if I have your assertions correct.
You think that the entire BoR as originally written applies only to the federal government and that the state governments can do whatever the hell they want regardless of the COTUS?
They, the states, can for instance establish a mandated state religion?
Oh, and for the record your argument that the number of the amemdment sets some sort of priority is utter bullshit.
Allow me to provide an example:
Article the first [Not Ratified]
After the first enumeration required by the first article of the Constitution, there shall be one Representative for every thirty thousand, until the number shall amount to one hundred, after which the proportion shall be so regulated by Congress, that there shall be not less than one hundred Representatives, nor less than one Representative for every forty thousand persons, until the number of Representatives shall amount to two hundred; after which the proportion shall be so regulated by Congress, that there shall not be less than two hundred Representatives, nor more than one Representative for every fifty thousand persons.
Article the second [Amendment XXVII - Ratified 1992]
No law, varying the compensation for the services of the Senators and Representatives, shall take effect, until an election of Representatives shall have intervened.
Note how the 1st article of the BoR as originally penned has never been ratified and that the 2nd article wasn't ratified until 1992?
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In the lead up to the Civil War the government viewed secesion to be illegal but was not sure how to stop it.
Lincoln took the view that it was illegal and the power granted the executive was needed to stop it...war ensued.
As most amendments after the Bill of Rights the 14th was one of several to address an issue that perhaps was assumed but not clarified.
The entire population should have great respect for the writers of the Constitution given the time it was constructed and an interesting discussion could be had as to how they would word it today if brought back and could view the 200+ years of existence.
I honestly don`t believe they would greatly alter it however they likely would word it differently.
Agreed.
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Carl -- the Barron v Baltimore case is a perfect example as to why the 14th Amendment was necessary. It is a case the libertarians would lose their utopian minds over:
We are of opinion that the provision in the Fifth Amendment to the Constitution declaring that private property shall not be taken for public use without just compensation is intended solely as a limitation on the exercise of power by the [p251] Government of the United States, and is not applicable to the legislation of the States. We are therefore of opinion that there is no repugnancy between the several acts of the general assembly of Maryland, given in evidence by the defendants at the trial of this cause, in the court of that State, and the Constitution of the United States. This court, therefore, has no jurisdiction of the cause, and it is dismissed.
http://www.law.cornell.edu/supct/html/historics/USSC_CR_0032_0243_ZO.html
The feds can't take your commercial property, but the state can and if you don't like it then move.
Thanks for playing kids, enjoy the buffet........... :)
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BKG...
Let's see if I have your assertions correct.
You think that the entire BoR as originally written applies only to the federal government and that the state governments can do whatever the hell they want regardless of the COTUS?
You're putting words in my mouth with the second 1/2 of that statement. Yes, as originally written, COTUS applied to the Fed gov't.
They, the states, can for instance establish a mandated state religion?
What does the 1st say? It says "CONGRESS"... makes no reference to the states. My question has been - why is that? My assertion has been that the original goal of the amendments was to keep the federal gov't in check and provide freedom to the states. Yes, I said that.
In the position that I am chosing to take, the strict interpretation of the 1st would allow the states to set a religion - yes. Yes, I just said that.
That was the beauty of a Republic!
Oh, and for the record your argument that the number of the amemdment sets some sort of priority is utter bullshit.
You're taking it completely out of context. There is no logical ability to state that prior to the 14th, the COTUS assumed the existence of the 14th. So the amendments that were, modified, if you will, by later amendments could NOT have assumed the later amendment. For anyone to say otherwise would be intellectually dishonest.
Your example once again supports my point.
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In the lead up to the Civil War the government viewed secesion to be illegal but was not sure how to stop it.
Lincoln took the view that it was illegal and the power granted the executive was needed to stop it...war ensued.
As most amendments after the Bill of Rights the 14th was one of several to address an issue that perhaps was assumed but not clarified.
This is similar to my point.
The entire population should have great respect for the writers of the Constitution given the time it was constructed and an interesting discussion could be had as to how they would word it today if brought back and could view the 200+ years of existence.
I honestly don`t believe they would greatly alter it however they likely would word it differently.
They definitely would have worded it stronger... h
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Carl -- the Barron v Baltimore case is a perfect example as to why the 14th Amendment was necessary. It is a case the libertarians would lose their utopian minds over:
http://www.law.cornell.edu/supct/html/historics/USSC_CR_0032_0243_ZO.html
The feds can't take your commercial property, but the state can and if you don't like it then move.
Thanks for playing kids, enjoy the buffet........... :)
Startling but must be taken in the context of the time which also considered slavery to be legitimate.
In moving or growing past those feelings those that revered the document changed it as it was spelled out in its words,that is and always has been the correct way.
A court by decree finding a hidden right to privacy that only extends to abortion is not,an amendment to the Constitution declaring that the right to life is not applied to the unborn would have been the proper way and by its wording would have likely doomed it to failure.
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This is similar to my point.
They definitely would have worded it stronger... h
Once it is changed by the process spelled out it is changed for good unless a subsequent amendment rescinds it,again as in prohibition.
You have seemingly contradicted yourself a couple of times here as per the posts I linked to so is difficult to know what viewpoint I am addressing.
Lets for the sake of it assume that the states were terrified of a tyrannical federal government so demanded the Bill of Rights to protect themselves.
Can it be logically assumed that they wished as Rich said to be able to establish a religion on their own?
No one can know other then by writings of the time but think it wasn`t likely that is the reason for the amendment.
Good faith and dealing with the issues of the day in the late 1700s did leave some vagueness and as was pointed out the Civil War was eventually the result.
Not going to re fight that as doing so is one of the most pointless exercises I can imagine but following the rejoined union addressed the things that led to it.
That doesn`t make it the liberals notion of a living document that can say whatever one wants it to on a given day but a flexible one that can adapt and change within a strict construct and process.