Supreme Court extends gun rights to all 50 states

[bkg]

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?

[formerlurker]

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.  

[bkg]

??

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.

[formerlurker]

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

[Carl]

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.

[formerlurker]

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.

[bkg]

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.

[bkg]

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?

[Carl]

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?

[bkg]

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...

[formerlurker]

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.  


  

[Carl]

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.

[formerlurker]

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.  

[bkg]

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?

[bkg]

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.

[bkg]

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...

[formerlurker]

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.

[Carl]

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.

[formerlurker]

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.  

[formerlurker]

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. 

[bkg]

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.

[Carl]

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?

[formerlurker]

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?     

[formerlurker]

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.

[NHSparky]

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.