Judge rules state's gun laws prevail - Page 2

Judge rules state's gun laws prevail

This is a discussion on Judge rules state's gun laws prevail within the The Second Amendment & Gun Legislation Discussion forums, part of the Related Topics category; Originally Posted by Hopyard It is my understanding that the logic above is indeed what most observers expected following Heller. Nonetheless, I find it incomprehensible ...

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  1. #16
    Restricted Member Array SelfDefense's Avatar
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    Quote Originally Posted by Hopyard View Post
    It is my understanding that the logic above is indeed what most observers expected following Heller. Nonetheless, I find it incomprehensible and beyond weird.
    The only thing strange was his comment that the state constitution grants rights. The rights are God given. The state constitutions protect those rights if the people so chose.

    What the judge is really saying is the The Bill of Rights does not apply to citizens of NY on this issue.
    That is exactly correct. The Constitution and Bill of Rights applies only to the Federal government.

    Funny, it applies on speach and religion. It applies on search and seizure. It applies on Miranda rights.
    No, it doesn't. Sure some activist judges have distorted the meaning and intent of the Founders with a bogu claim of incorporation, but the fact is there is no language in the Constitution that supports the view that the Bill of Rights must be forced on the states. What you are saying is equivalent to believing only men in the militia can keep and bear arms.

    It can only be a perverse interpretation of the Constitution, and one which I think many judges will use in order to keep the status quo on gun possession laws, to hold the position this judge and so many others take.
    It is perverse to twist the Founders' intent to suit a particular political idealogy.

    It is as if words don't have meaning---and the legal world is Alice in Wonderland.
    The words do indeed have meaning. And we should make certain we do not distort that meaning all because we like a certain outcome.

    Good evening, Hopyard!


  2. #17
    Senior Member Array 2edgesword's Avatar
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    One of the purposes for the NRA case filed in San Fran, CA is to start the legal process of working towards incorporation. Unfortunately this is probably going to be a long, drawn out process that may very well end up being decided by the Supreme Court.

  3. #18
    VIP Member Array cphilip's Avatar
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    Quote Originally Posted by digitalexplr View Post
    "Walsh wrote that the ability of New York residents to keep and bear arms is a privilege granted by statute. The state's constitution contains no such guarantee, he added."
    The point should be that it didn't have to contain such a right spelled out. It is a Right. Not a privilege. So as a Right it does not have to be spelled out anywhere. In fact the framers of the Constitution argued that very fact. And the argument was made that the "right to bare arms" did not have to be spelled out in the Constitution as clearly no sane person would even question it. Thankfully, the side that wanted it included won out.. And the Supreme Court reviewed it an found it was a Right. And not just a right of certain states or certain people. It is a Right of all people. No matter their citizenship or statehood. It is simply a Right that cannot be infringed. There is no state hood argument left when that finding has been made. It is a right of all.

  4. #19
    Senior Member Array 2edgesword's Avatar
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    cphilip

    "It is a Right. Not a privilege."

    Excellent point and one that all too often seems to allude many judges in NY, who view the State as the Sovereign that has endowed us with these rights and has come to view them as privileges.

  5. #20
    VIP Member Array cphilip's Avatar
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    And further it matters not who violates a Right nor where that violation occurs, no matter which state, it is a Violation of a right and subject to grievance and relief. In any state. A state does not have to declare it a right. It just simply "is" and it cannot be infringed. I don't know where these "state rights" people are coming from. If one of them decided to reinstate slavery of deny the right of assembly they would still be violating a Right. And be taken to court over it. Heller took DC to court. Heller, had he lived in NY, would have taken NY to court. It matters not if NY recognizes a right or not. They are a part of the Constitutional federation of States. They would have to remove them selves from the Union to then argue they can ignore "rights".

  6. #21
    Restricted Member Array SelfDefense's Avatar
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    Quote Originally Posted by cphilip View Post
    And further it matters not who violates a Right nor where that violation occurs, no matter which state, it is a Violation of a right and subject to grievance and relief. In any state. A state does not have to declare it a right. It just simply "is" and it cannot be infringed.
    Where do you get the idea that a Right (whatever that means to you) cannot be infringed? My 'Rights' are infringed all the time. My 'Right' to drive as fast as want has been infringed. My 'Right' to kill my neighbors cat when it walks into my space has been infringed. Some 'Rights' are God given and SHOULD not be infringed. That does not mean that it is against the law to prohibit certain behaviors even if you think it is your 'Right.' That is why the states have constitutions that serve as a guideline of the legislative branch.

    I don't know where these "state rights" people are coming from.
    I realize that most here are not state's rights advocates. They prefer a national government that controls all aspects of our lives. They want national law to override state law. But, we live in a Constitutional republic with fifty (or is it 57?) sovereign states loosely united by a Federal government.

    I am glad I live in Arizona and that we have different laws than Illinois. I'll wager some enjoy living in Texas, where their laws are different than Michigan. The people of America make a difference on the local level. Your city and your state are the basis of government. You can make a difference in your own area but you cannot and should not affect the laws of people thousands of miles from you with a different set of values.

    While some here bow down to the Bill of Rights, they tend to ignore the Tenth Amendment, which states:

    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 the people.

    If one of them decided to reinstate slavery of deny the right of assembly they would still be violating a Right. And be taken to court over it. Heller took DC to court. Heller, had he lived in NY, would have taken NY to court. It matters not if NY recognizes a right or not. They are a part of the Constitutional federation of States. They would have to remove them selves from the Union to then argue they can ignore "rights".
    There is no Constitutional federation of States.

    You can take whoever you want to court for any matter. The court will provide their opinion. That is not law. If a state wants to pass slavery laws, there is something in the Constitution to prevent that. It is called the 13-15th Amendments and directly addresses that concern. If a state wants to institute a state religion there is no reason in the world the people could not enact that law.

    I really had no idea that a libertarian leaning web site such as this would have its membership focus on more liberal ideals when it comes to government. Or is it only gun control laws...

  7. #22
    VIP Member Array cphilip's Avatar
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    Oh I am mostly a state rights guy so don't get me wrong...

    The "right" to Drive is not in the constitution. The "right" to destroy someone elses property is not in the constitution either. I don't know where you seem to lose track of a "Right" or not there... those are not "rights" at all. And its trivializing and seriously errant to call them "a right" to try and use them as examples of infringements of your "Rights"

    There is something in the constitution to prevent abridging and violating basic rights. And those were taken from the states themselves who ratified it. By reprentatives of each state. So it is recongnized that all states that ratified this believed it was things they all agreed were "rights" and so rights that they themselves adheared to. We fought a civil war over that fact when we disagreed on those rights. There is a limit to what states can and cannot do, and one thing they cannot do is take away rights without recourse of the other states in the Union finding that unaceptable. At some point they cease to be in agreement anymore with the Constitution they wished applied upon "the people" (i.e. all People) not "the people of certain states".

    And example your using is that they can establish a state religion is a good one. However they could indeed do so but then they could not outlaw all other religions because they agreed that this was important and included it. And they ratified it as well. They can establish a law that recognizes something but not one that denies a basic right in the process. Allowing one to be recognized does not abolish another. Were they to do that they would be. We are indeed a Representative Federal government so we are not exactly "The Federal government" and a separate "State Government" as clear and separate entities. We are the Federal Government. All of us States are. Thats why the federal government is made up of State Representatives and Senators elected by those states to run the Federal government. Thats why we have an Electoral College. To keep it "the states running the Federal government". And the States electing a President of that Government. You cannot completely separate the two as different worlds or different countries. They are one and the same.

    And what the Supreme court said was that this right was so basic and so fundamental that it precedes even State constitutions and is a basic right to self defense. That defies all efforts to categorize it into state vs federal "authority". It simply takes it out of ALL authority to infringe.

    Of course, that will have to be settled by case law. So let the fun begin. However, my reading of it, does not simply delegate the ability to the states to willy nilly what they wish to do. It simply states it is a Right not to be infringed. That does not pass the buck to the states. it in fact takes it away from anyone but the individual. There will be a very narrow allowance of infringement that people will tolerate. And that will likely be Criminals and mentally unstable. However that will be by tolerance of a law for common good.

    I don't think there is a way for a State to separate itself from something it tagged onto and ratified and felt so strongly about that they wanted to see it in print and establish it as a right recognized by all as rights and by all states as rights. It would be illogical to think a state ratified that constitution so that it could then take away those rights themselves. Thats not what "state rights" is about at all. Those items were untouchable by the states. They all agreed to that. Heck... they wrote it!

  8. #23
    Restricted Member Array SelfDefense's Avatar
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    Quote Originally Posted by cphilip View Post
    Oh I am mostly a state rights guy so don't get me wrong...
    That is hard to reconcile with your following opinions.

    The "right" to Drive is not in the constitution. The "right" to destroy someone elses property is not in the constitution either. I don't know where you seem to lose track of a "Right" or not there... those are not "rights" at all. And its trivializing and seriously errant to call them "a right" to try and use them as examples of infringements of your "Rights"
    Most people tend to use the excuse of the Ninth Amendment, that there are other rights not enumerated, to deal with your argument. However, your idea of rights and mine are probably different. In any event, the rights enumerated in the Constitution provide for prohibitions on the Federal government. Period.

    There is something in the constitution to prevent abridging and violating basic rights.
    By the Federal government.

    And those were taken from the states themselves who ratified it. By reprentatives of each state. So it is recongnized that all states that ratified this believed it was things they all agreed were "rights" and so rights that they themselves adheared to.
    This is false. The states ratified the Constitution knowing it pertained to the Federal government. The states themselves had their own constitutions as they do to this day. Some protect the rights of their people to the extent of the Federal government, others do not.

    Even Senator Howard, during Bingham's discussion of the Fourteenth Amendment recognized the Founders (and those who ratified the Constitution) intent. The Constitution was never meant to apply to the states.

    We fought a civil war over that fact when we disagreed on those rights. There is a limit to what states can and cannot do, and one thing they cannot do is take away rights without recourse of the other states in the Union finding that unaceptable.
    That is also false. One state has no jurisdiction whatsoever over another state. Each state is sovereign. Many argue the Civil War was a basic infringement of the agreement the states had with the Federal government. But just because we won the war does not mean states' rights were dissolved.

    At some point they cease to be in agreement anymore with the Constitution they wished applied upon "the people" (i.e. all People) not "the people of certain states".
    Again, you are confusing the prohibition of the Federal government wuth those of the states.

    And example your using is that they can establish a state religion is a good one. However they could indeed do so but then they could not outlaw all other religions because they agreed that this was important and included it.
    They? Again, the Constitution prevents the Federal government from estabishing a national religion. It does not prevent the states from estanlishing a state religion. In fact, in the Eighteenth century many states did have state religions.

    We are indeed a Representative Federal government so we are not exactly "The Federal government" and a separate "State Government" as clear and separate entities.
    Yes, the Federal government is a distinct and separate entity from the state governments.

    We are the Federal Government. All of us States are. Thats why the federal government is made up of State Representatives and Senators elected by those states to run the Federal government. Thats why we have an Electoral College. To keep it "the states running the Federal government". And the States electing a President of that Government. You cannot completely separate the two as different worlds or different countries. They are one and the same.
    Everything you describe is outlined in the Constitution. It has nothing to do with state governments.

    And what the Supreme court said was that this right was so basic and so fundamental that it precedes even State constitutions and is a basic right to self defense.
    No, the Court certainly did not say their opinion su[ercedes state law.

    That defies all efforts to categorize it into state vs federal "authority". It simply takes it out of ALL authority to infringe.
    No such opinion was put forward.

    Of course, that will have to be settled by case law. So let the fun begin. However, my reading of it, does not simply delegate the ability to the states to willy nilly what they wish to do. It simply states it is a Right not to be infringed. That does not pass the buck to the states. it in fact takes it away from anyone but the individual. There will be a very narrow allowance of infringement that people will tolerate. And that will likely be Criminals and mentally unstable. However that will be by tolerance of a law for common good.
    Again, the Court rules on the case in front of it. And that was Heller from the Federal jurisdiction of the the District. The Court rarely takes cases that are not in its jurisdiction. Even then, all they can do is render an opinion.

    [QUOTE}I don't think there is a way for a State to separate itself from something it tagged onto and ratified and felt so strongly about that they wanted to see it in print and establish it as a right recognized by all as rights and by all states as rights.[/QUOTE]

    You keep coming back to that argument. The states ratified the Constitution that provided for powers of the Federal government and prohibitions on the Federal government or the states where so specified. They felt strogly the Federal government should be limited. Even the Constitution recognizes that the powers not provided for the Federal government are delegated to the states.

    [QUOTE}It would be illogical to think a state ratified that constitution so that it could then take away those rights themselves.[/QUOTE]


    On the contrary, it would be illogical for a state to ratify an agreemnt that would make their current laws inoperable!

    Thats not what "state rights" is about at all. Those items were untouchable by the states. They all agreed to that. Heck... they wrote it!
    That is exactly what states' rights are all about.

    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 the people.

    Unless you can find specific prohibitions by the Constitution to the states, your argument has no merit.

  9. #24
    VIP Member Array cphilip's Avatar
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    I completely disagree with your assumption that a State would apply a restriction to its Federal counterpart simply so it could infringe and denigrate those same basic principles itself. It simply makes no sense that states could universally agree on this wording without believing it themselves.

    The Constitution would be simple a compilation of ideals that all states were able to agree upon. They debated very long and hard on what to include and what not to include. They all had to agree. To assume they simply did not agree with them as States and the purpose of the document was only that they wished to then establish their own "rights" state by state assumes they just made them up without much thought. They all finally distilled the "rights" to those they agreed with. Based on English laws and the Bill of Rights. The Bill of Rights was applicable to them all if you will reason that they assumed that there would be no argument that they applied to the States that wished to join this "union" of States. They all agreed with those basic principles and so they, worried about something growing out of hand, applied them to the Federal government as well. They also crafted a Federal Government they could control collectively. They simply set up a set of ground rules they all agreed with and then also kept control of the business end of the Federal Government. They never relinquished that.

    A few States have, in the recent future, changed a few of them. Those beg to be challenged and they beg to be struck down. Because they, themselves, agreed to the rules then and perhaps are in violation of that agreement. But not many of them have nor do many of them differ significantly from their Federal counterparts. Very few of them have written into their constitution a direct ability to infringe on this Right. Many of them clearly spell it out even better than the language that was agreed upon to apply to the Federal Governments version.

    It simply is not so that the Federal Government is a clear and separate entity or they would simply not be able to apply the constitution nor make it answer to it. They knew they wanted to keep their hand into it and they made sure they were "represented" and in control of it. They are the Federal Government. Every State is.

    There are no Powers really delegated in the constitution. There are restrictions placed upon the Federal Government and then there is representation of each state to enact any powers that need be enacted and to enact any general laws that all states wish to be applied to all states. The Constitution does not instill "power". In fact it limits power and controls that power.

    Who says we won the Civil war? LOL... I kid... I kid...

    Ok... Infringement. We all know Infringement has occurred and will occur. In fact many of us will tolerate a certain level of infringement. Not that it does not constitute infringement just because we tolerate it. What the SCOTUS did was NOT decide what level of infringement will be acceptable to the People. That will all have to be established. We may be willing to look away at infringement when it comes to mentally unstable people. We will still have to admit that it could be infringement. But it might also be argued that it is not, because those people have lost their rights. We already tolerate the fact that Felons have lost some of their rights. We would still be infringing but if "the people" wish to tolerate it then the challenge will be lost. We know that in the past that infringement went on while we watched and tolerated it. Blacks and Hispanics were, indirectly, refused Gun ownership. By clever use of Tax laws. But guess what? They couldn't vote then nor did "rights" apply to them then. They had no rights. That doesn't make it right. They later gained those rights that they were denied. But it was infringement none the less. And we all watched and allowed it to happen.


    I think it would be entirely hypocritical of a State to try and argue that it never agreed with the very terms it wished to apply to its Federal Government and didn't agree that those rights that it wrote and applied were somehow not applicable to itself. They are not powers. They are rights.

    by the way Selfdefense, I am enjoying this debate. What a great country we live in!

  10. #25
    Senior Member Array 2edgesword's Avatar
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    SelfDefense

    The framers of the Constitution understood something they called Natural Law which includes a "right" to life, a "right" to defend yourself, property "rights", a right to worship or not worship according to your conscience, etc. These are fundamental rights. You do trivalize these rights when you speak of a right to drive your car as fast as you want.

    Yes, those fundamental rights have limits. The limitation of my rights comes into play when in the exercise of my rights I begin to violate the rights of another. As a law abiding citizen the mere fact that I carry a concealed firearm anywhere, anytime does not infringe on the rights of others. In fact there is NO evidence that my freedom to carry (as a law abiding citizen) increases the chances that anothers right to life is compromised.

    On the other hand there is very hard evidence that speeding in an automobile does compromise the right to life of others so your analogy not only trivializes the issue but doesn't make any rational sense.

  11. #26
    New Member Array GaryV's Avatar
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    I know this isn't going to be a popular post with everyone here, but keep in mind that I'm not saying that this information is "right" in a moral or logical sense. Instead, it is "right" as in factually correct based on Constitutional Law.

    For the most part, SelfDefense is correct. While you might not like his example of driving as a right, it's spot-on. Being able to travel from point A to point B is hardly a trivial right, since it's pretty much necessary for almost everyone in order to make a living, buy groceries, etc., and the speed at which you do it obviously affects things like time that could be spent making money. It doesn't matter that it isn't specifically mentioned in the Bill of Rights, or anywhere else in the Constitution. Read the whole Bill of Rights, and specifically the 9th Amendment, "The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people." In other words, just because a right is not included in the Bill of Rights doesn't mean that it isn't a right of the people. If you combine that with the 10th Amendment, it basically means that anything not mentioned in the Constitution as a power of the federal government to regulate IS a right, whether mentioned or not. The Federalists wanted this amendment specifically because they were afraid people would interpret the Bill of Rights as many people here are (and as the Founding Fathers absolutely refuted), which is that the rights enumerated in the Bill of Rights were somehow "special" or more protected than other rights, or even worse, the only rights we have.

    However, they also specifically did NOT intend the Bill of Rights to apply to the states. It was always intended as a limit only on Congress. While they didn't want the federal government, which might come under the control of people from other states with other views, to tell them what they could do within their own individual states, they, being the political leaders within their own states, wanted very much to be able to infringe on certain rights of the citizens of their states. Many of them did just that, restricting religious freedoms, freedoms of speech and trial, etc., within their own states. When James Madison tried to include an amendment to make some of the limits within the Bill of Rights apply to the individual states as well as Congress, it was voted down. The non-applicability of the Bill of Rights to the states is an extremely well understood and supported component of Constitutional law, and has been upheld by practically every court in the US, at least until after the Civil War.

    All this changed, at least theoretically, after the Civil War with the passage of the 13th, 14th, and 15th Amendments, which were passed to stop the individual states from violating any and every right of their citizens as they saw fit. They were, of course, primarily intended to protect the rights of former slaves. The 14th Amendment was originally intended to extend the entire Bill of Rights to the states, to ensure that all American citizens would have the same rights, no matter where they live. But the Supreme Court very quickly realized that this "total" incorporation interpretation would cause some problems for the status quo in many states, where some people made a lot of money off practices that would become illegal under total incorporation. So they came up with the idea of "selective" incorporation, which has been accepted by the courts since then as the way it would work.

    Under selective incorporation, the federal courts decide what rights are protected at state and local level by the Constitution. The 10 amendments of the Bill of Rights still do not apply to the states. Instead, specific rights that can be pulled from the Bill of Rights, or are not even listed anywhere in the Constitution, can be incorporated under the 14th Amendment, making them universally protected from all levels of government. Some examples of this are the rights listed in the 1st Amendment. The Amendment itself is not incorporated. In other words, you don't actually have 1st Amendment rights at the state level. The rights listed in the 1st Amendment were each separately incorporated over a series of 5-6 separate court rulings, over several years. Also, your right to privacy, which is not listed in the Bill of Rights, was incorporated as the result of a Supreme Court case that said we have one anyway (Roe v. Wade, actually). In fact, none of your Constitutional rights was incorporated until the 20th Century, most of them after WWII, and many of them in the '60s as a result of the Civil Rights Movement. Until then your state could violate them as they saw fit, unless your state constitution forbade it.

    So, the judge in the case that this thread started with was legally correct - the 2nd Amendment has never been incorporated by any federal court - and the Supreme Court specifically said it wasn't incorporated in several earlier decisions, which the court recognized in the Heller decision (see the footnote on page 48 of the majority decision). His decision also doesn't hurt us at all, because almost every court, including the US Supreme Court have already made the same ruling regarding the 2nd Amendment up till now. As one poster already mentioned, the NRA is currently working on making this the next issue to be decided, in a case they brought in San Francisco, and 4 cases they've filed in Illinois. Until the federal courts rule on incorporation, state and local governments (except in states that have preemption laws) can still do whatever they want in regard to guns, up to and including complete bans and confiscation, as long as the state constitution doesn't forbid it.

    There's also another issue that the Heller decision didn't settle - the one of the level of scrutiny that laws restricting the right must meet. Despite the "shall not be infringed" phrase, all rights are subject to government regulation. The level of scrutiny sets the standard for when this can be done. Unfortunately Scalia made it sound as if the court thought that the 2nd Amendment should have a lower level of scrutiny than the other rights in the Bill of Rights, so even if we get incorporation (which we probably will), states will probably still be able to pass pretty restrictive laws.

  12. #27
    Senior Member Array 2edgesword's Avatar
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    GaryV

    "For the most part, SelfDefense is correct. While you might not like his example of driving as a right, it's spot-on. Being able to travel from point A to point B is hardly a trivial right, since it's pretty much necessary for almost everyone in order to make a living, buy groceries, etc., and the speed at which you do it obviously affects things like time that could be spent making money."

    The idea that the "right" to travel for point A to point B at a speed that has been demonstrated to violate a more fundamental right (a right to life) is on part with the fundamental right specifically mentioned in the Bill of Rights is not spot on in my opinion. The issue isn't traveling but rather traveling at a speed that has been shown to violate the more fundamental right to life of others.

    Again, there is no evidence that my ability to carry concealed by definition (proven via statistic evidence) violates another individuals right to life.

    "It doesn't matter that it isn't specifically mentioned in the Bill of Rights..."

    It does matter. The rights specifically mentioned in the Bill of Rights are those rights viewed as being most basic, fundamental and generally agreed on. The other rights (everything under the sun that might be included under the 9th amendment) are subservient to these rights, especially the so-called right to recklessness (driving as fast as I want).

    "However, they also specifically did NOT intend the Bill of Rights to apply to the states."

    While the Framers of the Constitution may not have included an incorporation clause (14th amendment) I think it is irrational to believe that in general they did not believe that the FUNDAMENTAL RIGHTS expressed in the Bill of Rights could be usurped by the states. Some of these rights are viewed as universal and part of Natural Law. Actually this was part of their appeal in writing the Declaration of Independence (our nations founding document but that argument can be left for another thread). The 14th amendment clarifies this principle because after the Civil War some states were selectively honoring these rights by denying them to Blacks.

    In the same way post Heller some states will have to be forced kicking and screaming to honor the 2nd amendment rights of their citizens if/when the Supreme Court rules that it is a fundamental right that must be incorporated.

  13. #28
    Member Array Dihappy's Avatar
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    Quote Originally Posted by cphilip View Post
    I completely disagree with your assumption that a State would apply a restriction to its Federal counterpart simply so it could infringe and denigrate those same basic principles itself. It simply makes no sense that states could universally agree on this wording without believing it themselves.

    The Constitution would be simple a compilation of ideals that all states were able to agree upon. They debated very long and hard on what to include and what not to include. They all had to agree. To assume they simply did not agree with them as States and the purpose of the document was only that they wished to then establish their own "rights" state by state assumes they just made them up without much thought. They all finally distilled the "rights" to those they agreed with. Based on English laws and the Bill of Rights. The Bill of Rights was applicable to them all if you will reason that they assumed that there would be no argument that they applied to the States that wished to join this "union" of States. They all agreed with those basic principles and so they, worried about something growing out of hand, applied them to the Federal government as well. They also crafted a Federal Government they could control collectively. They simply set up a set of ground rules they all agreed with and then also kept control of the business end of the Federal Government. They never relinquished that.

    A few States have, in the recent future, changed a few of them. Those beg to be challenged and they beg to be struck down. Because they, themselves, agreed to the rules then and perhaps are in violation of that agreement. But not many of them have nor do many of them differ significantly from their Federal counterparts. Very few of them have written into their constitution a direct ability to infringe on this Right. Many of them clearly spell it out even better than the language that was agreed upon to apply to the Federal Governments version.

    It simply is not so that the Federal Government is a clear and separate entity or they would simply not be able to apply the constitution nor make it answer to it. They knew they wanted to keep their hand into it and they made sure they were "represented" and in control of it. They are the Federal Government. Every State is.

    There are no Powers really delegated in the constitution. There are restrictions placed upon the Federal Government and then there is representation of each state to enact any powers that need be enacted and to enact any general laws that all states wish to be applied to all states. The Constitution does not instill "power". In fact it limits power and controls that power.

    Who says we won the Civil war? LOL... I kid... I kid...

    Ok... Infringement. We all know Infringement has occurred and will occur. In fact many of us will tolerate a certain level of infringement. Not that it does not constitute infringement just because we tolerate it. What the SCOTUS did was NOT decide what level of infringement will be acceptable to the People. That will all have to be established. We may be willing to look away at infringement when it comes to mentally unstable people. We will still have to admit that it could be infringement. But it might also be argued that it is not, because those people have lost their rights. We already tolerate the fact that Felons have lost some of their rights. We would still be infringing but if "the people" wish to tolerate it then the challenge will be lost. We know that in the past that infringement went on while we watched and tolerated it. Blacks and Hispanics were, indirectly, refused Gun ownership. By clever use of Tax laws. But guess what? They couldn't vote then nor did "rights" apply to them then. They had no rights. That doesn't make it right. They later gained those rights that they were denied. But it was infringement none the less. And we all watched and allowed it to happen.


    I think it would be entirely hypocritical of a State to try and argue that it never agreed with the very terms it wished to apply to its Federal Government and didn't agree that those rights that it wrote and applied were somehow not applicable to itself. They are not powers. They are rights.

    by the way Selfdefense, I am enjoying this debate. What a great country we live in!
    Philip, you are spot on.

    I dont know where Self is coming from. Self, you are WAYY out there man.
    "...trying to get a long gun into play while someone is all over you like a monkey eating a cupcake is not very conducive to good survival techniques." ~Bark'n

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    If you use the word "infringe" to mean any limitation of rights then most rights to some degree have to be infringed since we live in a society with others who also have rights. That infringement must be tied to facts, logic and reason. My right to travel from point A to point B on the highway at any speed is limited because there is hard statistical evidence that as speeds increase the number of accidents and the damage caused during the accidents increases.

    My freedom of speech is limited so that I can't yell in a crowd theatre "FIRE, FIRE" because of the very real potential that this exercise of my freedom of speech will cause harm.

    In many situations this is NOT the case with respect to the limitations imposed on firearms ownership and concealed carry. Many of these laws are not based in facts, logic and reason. They are an infringement on a fundamental, individual right with no sound basis for establishing those limitation.

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    Some more thoughts on this and SD's viewpoint

    Quote Originally Posted by Dihappy View Post
    Philip, you are spot on.

    I dont know where Self is coming from. Self, you are WAYY out there man.
    I'm going to try to slightly defend SD, though I agree he is way out there.

    He is arguing a sturdy state's rights position. One which has eroded substantially during the past 150 years and one which might actually need some boosting.

    Neither the Congress nor the States get it right 100% of the time.

    Presently, there are innumerable instances in which the Federal Government forces stuff upon the states (usually by twisting the commerce clause) which cause some considerable damage to states and to ordinary citizens and consumers.

    ERISA has a pretty name as legislation goes, and was well intended I think, but is now making it very very hard on ordinary employees to get justice when their health insurance companies screw them over.

    The Federal ERISA pre-emptions create some awful injustice; some just recently ratified at the end of this past court session.

    The tension is deliberately built into "the system."

    So, from that point of view, SD isn't off the wall.

    OTOH, I think if you went out and took a poll of college educated people, almost to a person, few would hold the view that SD holds (even if he might actually be technically right in a narrow legal way).

    The public (us and even the anti-s), have grown accustomed to expect The Bill of Rights to mean certain things, to have substance, to protect us in our daily lives, and EVEN if this is not what the framers wanted, it sure as heck is what modern American citizens expect.

    IT is shameful to watch legislatures and courts do the twist to avoid upholding and extending ALL of the Bill of Rights to ALL of the people.

    And, I think modern jurisprudence really does not support the extreme State's rights stuff SD espouses, or the ruling by the NY Judge. (Just consider ERISA as an example.)

    Ultimately, these views are lawless, as they prevent ordinary people from exercising rather clearly defined and Supreme Court affirmed rights.

    But what else would you expect from a group that reads the eminent domain provisions and concludes that it is OK to take private property from one person and give it to another person so the other person can make more money and pay bigger taxes--the governmental purpose.

    We have big problems in our system, and is very very sad.

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