Judge rules state's gun laws prevail - Page 3

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; I think the Federal versus States rights argument has to be divided with respect to those rights that are fundamental versus rights, privileges, practices, etc., ...

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  1. #31
    Senior Member Array 2edgesword's Avatar
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    I think the Federal versus States rights argument has to be divided with respect to those rights that are fundamental versus rights, privileges, practices, etc., etc. that are open to a wide latitude of opinion and practical application.

    The right to life, self-defense, freedom of speech/religion are fundamental rights that should only be limited except in extreme cases and should be honor regardless of which side of the state border you happen to live in.

    As far as certain aspect of commerce, state income tax rates, methods for funding education, non-critical treatment of prisoners (do they get MTV or just CNN) and a host of other issues they states (citizens via state legislatures and courts) should have the latitude to determine these issues.

    The problem is Congress, made up primarily of lawyers feel the need to torture the language of the Constitution, have extended the power of the Federal government far beyond the concept of just protecting the fundamental rights of all citizens regardless of which state you live in. They have done this to the point where the federal governments control touchs almost every aspect of life.

    Again, limiting fundamental rights, by either the federal or state government, has to be grounded in facts, logic and reason. It should not be the result of arguments that result in six or sixty degrees of separation with respect to the Constitution/Bill or Rights.


  2. #32
    New Member Array GaryV's Avatar
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    Quote Originally Posted by 2edgesword View Post
    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.
    Your argument about whether right A interferes with someone else's right B, or that right B is more "fundamental" than right A, is irrelevant. A right is a right - or it's not. There are no two ways about it. Just because the free exercise of one right interferes with the free exercise of another doesn't downgrade right A to the status of a "privilege" rather than a right. Even if right A has to give some ground to right B, it's still a right. And these decisions are virtually never made on "statistical evidence". They're made based on political ideology, because most people don't want them made based on evidence unless the numbers favor their political views. The "evidence" for most of the laws limiting our rights is extremely weak or non-existent. But people support them because they agree with them based on political ideology.

    Quote Originally Posted by 2edgesword View Post
    "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).
    Wrong. Nothing to say but, dead wrong. Go back and read your constitutional history. While this has come to be the way most people take it, it is precisely what the Founders feared the most when trying to decide whether to even include a Bill of Rights, which many of them desperately did not want, for this exact reason. The rights that were listed were merely the ones that they had most recently had to defend against a powerful central government, and so were the ones they most feared might be infringed again by another central government (i.e., not the states). But they absolutely did NOT hold them to be more important or "fundamental", which is precisely why they included the 9th Amendment.

    Quote Originally Posted by 2edgesword View Post
    "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.
    Again, absolutely wrong. And again, go back and actually read the history instead of pulling opinions out of thin air. The amendment put forward by Madison wasn't in any way an incorporation clause. Instead, it was a specific amendment that actually enumerated certain rights that would be protected from state action as well as federal action - and the framers specifically voted against it. They then did in fact go home and do such things as start state religions. This is historical fact. The Declaration of Independence is not a legal document, and, while some of them might have liked the noble language, when push came to shove, many of them didn't want to be held to that standard - and when they made the actual law, they made sure they weren't. You're certainly entitled to believe whatever you want, but if you think that the Founders intended the US Constitution to limit the states, then you believe something that runs exactly opposite to the writings and actions of the Founders themselves, and every legal scholar in this country since its inception. Yes, the 14th Amendment was meant to keep some states from denying basic rights to Blacks, but not because there was any belief that the Bill of Rights was meant to apply to the states. It was simply a legal action that was deemed necessary to put an end to what others saw as an injustice that needed addressing, and there was no existing way to do that at the time. If they actually believed that the Bill of Rights applied to the states before the 14th Amendment, all they would have needed was a Supreme Court decision saying so. They passed the 14th Amendment precisely because they knew that the opposite was true, and that only a new Amendment could give them the legal power to apply the Bill of Rights to the states. The principle of the Bill of Rights not applying to the states has always been, and still is upheld by every court in this country, because it is historical legal fact, not merely opinion.

    Quote Originally Posted by 2edgesword View Post
    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.
    Again, dead wrong. Go and actually read the Heller decision. Right at the bottom of page 48, Justice Scalia addresses this issue in a footnote. As he points out, the Supreme Court has upheld the principle that the 2nd Amendment does NOT apply to the states, several times, in multiple cases, even SINCE the passage of the 14th Amendment, and he goes further to point out that the Heller decision does not address this question, because it wasn't brought up by either party in the suit. He does at least hint that if and when the question is ever brought to the court, they probably would rule in favor of incorporation, but they didn't do it in Heller. In other words, the states would actually be violating the current standing Supreme Court precedent on whether the 2nd Amendment applies to state and local laws if they were to rule that it did. Until a federal court rules that it is incorporated, the standing legal standard for now is that it doesn't.

    I appreciate that you are arguing ideas that make logical sense (which is why I included my initial disclaimer), and I would even agree with you that, ideally, many of these things SHOULD be the way you claim. But if you actually look at the legal and historical reality, instead of basing your arguments on idealistic fantasy, you'll have a much better understanding of why the laws are currently the way they are, and why the courts rule the way they do.

  3. #33
    Senior Member Array 2edgesword's Avatar
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    GaryV

    "Your argument about whether right A interferes with someone else's right B, or that right B is more "fundamental" than right A, is irrelevant. A right is a right - or it's not."

    There are "Rights" and there are "rights". The Rights including in the Bill of Rights are those fundamental rights that the Founders understood to be part of Natural Law, most vital and not open to limitations except under extreme circumstances.

    "Go back and read your constitutional history. While this has come to be the way most people take it, it is precisely what the Founders feared the most when trying to decide whether to even include a Bill of Rights, which many of them desperately did not want, for this exact reason."

    We could debate Constitutional history all day long with each countering one point by citing historical references that suit our argument. The bottomline is those Rights were included in the Bill of Rights, if not the Constitution may very well may not have been ratified. I don't think ratification of the Constitution would have been in peril had the debate been over your right to ride your horse at 15 mph versus 25 mph.

    "The amendment put forward by Madison wasn't in any way an incorporation clause."

    I think part of the problem with this argument is that it doesn't take into consideration what the Founders and population at the time considered "self-evident". Many of the aspects of the rights and freedoms they viewed as being self-evident have become vague and a huge gray area in our society (in some cases the opposite is true).

    I can't envision based on my reading of history that the Founders would have viewed the wholesale usurption of these fundamental rights by any states as being outside its authority to influence and in very greivious situations to correct. The 14th amendment codifies this sentiment but I don't think the sentiment was lost on the Founders.

    "The Declaration of Independence is not a legal document..."

    While the Declaration of Independence is probably seldom cited during legal arguments it does outline the fundamental freedoms and rights (Natural Law) which were to be protected via a government constructed based on Constitutional guidelines. Actually I did read somewhere that the Declaration of Independence is cataloged as a legal document of the United States.

    "Yes, the 14th Amendment was meant to keep some states from denying basic rights to Blacks, but not because there was any belief that the Bill of Rights was meant to apply to the states."

    An amendment intended to force the states to recognize the fundament rights of Blacks is absolutely meant to apply to the states.

    "Again, dead wrong. Go and actually read the Heller decision. Right at the bottom of page 48, Justice Scalia addresses this issue in a footnote. As he points out, the Supreme Court has upheld the principle that the 2nd Amendment does NOT apply to the states..."

    I think you need to go back and read the footnote in the context in which it was used. Scalia is not arguing that the 2nd Amendment doesn't apply to the states but "We described the right
    protected by the Second Amendment as “ ‘bearing arms for
    a lawful purpose’ ”22 and said that “the people [must] look for their protection against any violation by their fellowcitizens
    of the rights it recognizes” to the States’ police
    power."
    , he is simply stating that at least initial that the recourse to address greevances regarding the infringement of those rights starts with the state.

    "I appreciate that you are arguing ideas that make logical sense (which is why I included my initial disclaimer), and I would even agree with you that, ideally, many of these things SHOULD be the way you claim."

    The Constitution is a wonderful document. It was intended to provide guidance for creating a government that protected the fundamental rights and freedoms of individuals while recognizing the need for some limitations when those individual live in a civilized society. Unfortunately the twisting, turning and torturing of the language of the Constitution has result in an irrational and illogical reconstruction of those guidelines that is crushing personal freedom without any reasonable (in my opinion) factual, logical or rational basis.

  4. #34
    Restricted Member Array SelfDefense'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.
    I know GaryV has addressed many of these points. Perhaps I can provide a slightly different approach to the same truth.

    It is not an assumption that the states infringed on some of the rights enumerated in the Constitution. Some had established religions some did not have the Grand Jury process, both now pat of the Constitution by way of amendment.

    What seems to be lost is that the states ratified a Constitution for the Federal government, not their state governments. It was how for how the Federal government was to operate with specific designated powers and prohibitions.

    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.
    This is simply wrong. The debate was solely on how the Federal government was to be structured. The states did not want the Federal government to infringe on the rights of the states. It was not they wanted to conform to the same standards they were imposing on the Federal government. And, no, they all did not need to agree. In fact, the Constitution was ratified in 1788, long before the Bill of Rights was proposed as amendments. Only nine states were required to ratify the Constitution. Only the promise of a Bill of Rights, limiting the Federal government's power was necessary to convince the states like New York and Virginia to ratify the Constitution. Of course,those states were not necessary since nine was sufficient, but the Founders realized they needed the bigger states to give credibility to the new government.

    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.
    The states never controlled the Federal government.

    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.
    Again, that is completely wrong. The states are sovereign, each independent of the other. The states do not control the Federal government nor are they controlled by the Federal government. On the contrary, the states provide representatives so each state can have a voice in how the Federal government operates.

    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.
    Again, this is completely wrong.

    Article I Section 8

    Section 8 - Powers of Congress

    The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States; but all Duties, Imposts and Excises shall be uniform throughout the United States;

    To borrow money on the credit of the United States;

    To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes;

    To establish an uniform Rule of Naturalization, and uniform Laws on the subject of Bankruptcies throughout the United States;

    To coin Money, regulate the Value thereof, and of foreign Coin, and fix the Standard of Weights and Measures;

    To provide for the Punishment of counterfeiting the Securities and current Coin of the United States;

    To establish Post Offices and Post Roads;

    To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries;

    To constitute Tribunals inferior to the supreme Court
    ...
    Many here think the Constitution is the Bill of Rights. In fact, the Bill of Rights is completely unnecessary because the powers are enumerated in the text of the Constitution. Simply stated, the Federal government has no power to do anything but that which is specifically enumerated. Thus, there is no need for the First Amendment because the Congress has no power to limit speech or establish a national religion. Similarly, there is no need for the Second Amendment as the Congress has no enumerated power to disarm the people. And so it goes. The anti-Federalists were so wrong demanding the inclusion of superfluous amendments.

    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.
    You keep coming back to this erroneous argument. The argument is better stated as if you voted to have healthy snacks consumed by management at work but preferred to have potato chips and candy in your own home. You are confusing the states sovereignty with what they wanted from the Federal government.

  5. #35
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    The Bill of Rights is Unnecessary?

    Quote Originally Posted by SelfDefense View Post
    ...
    Many here think the Constitution is the Bill of Rights. In fact, the Bill of Rights is completely unnecessary

    Good Grief. The Constitution is THE WHOLE ENCHILADA. Including ALL 27 Amendments and ALL SC rulings not subsequently overturned.

    The idea that the first ten are somehow an option which states may ignore is beyond silly.

  6. #36
    Restricted Member Array SelfDefense's Avatar
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    Quote Originally Posted by Hopyard View Post
    Good Grief. The Constitution is THE WHOLE ENCHILADA. Including ALL 27 Amendments and ALL SC rulings not subsequently overturned.

    The idea that the first ten are somehow an option which states may ignore is beyond silly.
    I didn't say the amendments were optional. They are absolutely part of the Constitution.

    What I did say is that the first eight Amendments are completely superfluous. They do not add anything to the Constitution. They were included only to placate some individuals whose fears were assuaged by words that did not effect the substance of the Constitution.

    The prohibitions the Bill of Rights declares are unnecessary because the Constitution does not provide those powers of infringement! The powers of Congress are clear and they are enumerated. Congress has no power outside those bounds. Since Congress has no power to disarm the people, the Second Amendment contributes absolutely nothing to the Constitution.

  7. #37
    Senior Member Array 2edgesword's Avatar
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    SelfDefense

    "What I did say is that the first eight Amendments are completely superfluous. They do not add anything to the Constitution. They were included only to placate some individuals whose fears were assuaged by words that did not effect the substance of the Constitution."

    The first eight Amendments are far from superfluous. They are there precisely because the propensity of those in power is to parse and redefine words in an attempt to increase their power and authority. The Amendments were an attempt to clearly express certain fundamental principles in such a way that they would be crystal clear to the population at large and very difficult to twist and turn their meaning so that "legal" justification could be constructed to infringe on those rights and principles.

  8. #38
    VIP Member Array sgtD's Avatar
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    Quote Originally Posted by SelfDefense View Post
    The prohibitions the Bill of Rights declares are unnecessary because the Constitution does not provide those powers of infringement! The powers of Congress are clear and they are enumerated. Congress has no power outside those bounds. Since Congress has no power to disarm the people, the Second Amendment contributes absolutely nothing to the Constitution.
    You are obviously very knowledgable on Constitutional history and in a historical context your arguments are valid on most points. However we live in the here and now, and our law is mostly dictated by 200 years of Supreme Court precedent, whether we like it or not.

    The Supreme court declared itself the supreme and final arbiter of the constitution in Marbury v. Madison. Marshall wrote "[i]t is emphatically the province and duty of the judicial department to say what the law is", and the Supreme Court has excercised that power since 1803.

    In Martin v. Hunter's Lesee the Supreme Court ruled that States must follow the Supreme Court's decisions on matters of Federal law including constitutional issues.

    Much later in Cooper v. Aaron, the Warren Court, in a unanimous decision, asserted that it was constitutionally impermissible under the Equal Protection Clause for states to deprive citizens of their equal rights under color of state law. The court also declared that Supreme Court decisions on constitutional issues are the supreme law of the land and binding on states. (incorporation was used, as has been discussed in other posts.)

    Thus the Supreme Court is the final arbiter of the constitutionality of state law when the constitutional rights of citizens are being infringed. When a state law runs afoul of the constitution, the Supreme Court has appelate jurisdiction to decide the case on constitutional grounds.

    Therefore, state laws that infringe on constitutional rights are not enforceable unless some type of balancing argument is adopted, which balances the needs of the state to use it's police powers against the amount of infringement on citizens rights.

    In the Heller decision, Scalia seems to indicate that a total prohibition on handguns and laws requiring guns to be locked or disassembled, and thus not readily available for defensive purposes, goes beyond a reasonable restriction and will not be upheld under a balancing test if one is applied to a state law in the future.

    It will be interesting to see in future cases, how the antis try to justify the supposed public safety needs of restricting guns v. the individual rights of citizens to defend themselves. They may be required to show that some overall public safety benefit is derived from restrictive gun laws in order to justify restrictions. May they have good luck with that one. lol.

    Whether this is what the ratifiers of the Constitution intended or not, the reality is that the Supreme Court has become responsible for protecting the Constitutional Rights of citizens when they are being infringed upon by federal and state law. This constitutional scrutiny has most famously been applied to both state and federal laws in the context of the 1st, 4th, and 5th amendments, less famously with others, and even against individual citizens under the 13th amendment. It should also apply to the states in regard to the 2nd amendment, because it is a constitutionally guaranteed right; however it will take another case to answer the question of whether or not it will be applied.
    Last edited by sgtD; July 17th, 2008 at 03:15 AM.
    When you've got 'em by the balls, their hearts & minds will follow. Semper Fi.

  9. #39
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    Quote Originally Posted by SelfDefense View Post
    The prohibitions the Bill of Rights declares are unnecessary because the Constitution does not provide those powers of infringement! The powers of Congress are clear and they are enumerated. Congress has no power outside those bounds. Since Congress has no power to disarm the people, the Second Amendment contributes absolutely nothing to the Constitution.
    I agree, and for the reasons you described. A list of amendments is fine, but a Bill of Rights determining what rights we have seems a bit tempting to me. Without it, the gov't could only do what the Constitution said it could. With it, all of a sudden there's a list of what's off-limits, implying the rest of them are fair game and all rights would have to be fought for instead of implied to already possess.

    Think of it this way:

    1) Does congress have the authority to make 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?

    2) Does the federal government have the authority to infringe upon the right of the people to keep and bear arms, given that a well regulated militia is necessary to the security of a free state?

    3) Does the federal government have the authority to, in time of peace, quarter a soldier in any house, without the consent of the owner, or in time of war, except in a manner to be prescribed by law?

    4) Does the federal government have the authority to, without probable cause supported by oath or affirmation, issue warrants for searches and seizures of persons, their houses, papers, and effects, or to conduct these same acts without warrants?

    5) Does the federal government have the authority to hold a person to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury, except in cases arising in the land or naval forces, or in the militia, when in actual service in time of war or public danger? Do they have the authority to subject a person for the same offense to be twice put in jeopardy of life or limb? Do they have the authority to compel a person in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law? Do they have the authority to take private property for public use, without just compensation?

    6) Does the federal government have the authority to, in all criminal prosecutions, conduct slow and private trials, my partial juries not of the state and district wherein the crime might have been committed, whose district will have been previously ascertained by law, and to not inform the accused of the nature and cause of the accusation? Do they have the authority to not permit the accused to be confronted with the witnesses against him, and to have not have a compulsory process for obtaining witnesses in his favor? Do they have the authority to bar the assistance of counsel for his defense?

    7) Does the federal government have the authority to, in suits of common law, where the value in controversy shall exceed twenty dollars, obstruct the participants' rights of trial by jury?

    8) Does the federal government have the authority to make excessive bail, impose excessive fines, or inflict cruel and unusual punishments?


    Before the Bill of Rights, how many of those things did the federal government have the constitutional authority and power to do? Just food for thought.


    -B

  10. #40
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    Very well stated Sgt D

    Quote Originally Posted by sgtD View Post
    You are obviously very knowledgable on Constitutional history and in a historical context your arguments are valid on most points. However we live in the here and now, and our law is mostly dictated by 200 years of Supreme Court precedent, whether we like it or not.

    The Supreme court declared itself the supreme and final arbiter of the constitution in Marbury v. Madison. Marshall wrote "[i]t is emphatically the province and duty of the judicial department to say what the law is", and the Supreme Court has excercised that power since 1803.

    In Martin v. Hunter's Lesee the Supreme Court ruled that States must follow the Supreme Court's decisions on matters of Federal law including constitutional issues.

    Much later in Cooper v. Aaron, the Warren Court, in a unanimous decision, asserted that it was constitutionally impermissible under the Equal Protection Clause for states to deprive citizens of their equal rights under color of state law. The court also declared that Supreme Court decisions on constitutional issues are the supreme law of the land and binding on states. (incorporation was used, as has been discussed in other posts.)

    Thus the Supreme Court is the final arbiter of the constitutionality of state law when the constitutional rights of citizens are being infringed.
    Very well put. ANd for precisely this reason, the states should be scrambling to bring their laws into compliance with Heller, and local judges should be bending over backward to make their decisions consistent with Heller.

    Instead, the lawlessness continues. Everyone does the twist, because too many refuse to want to accept the fundamental rightness (to say nothing of legally binding authority) of the SC on this issue.

    Extreme outmoded state's rights rationalizations of the type some post here don't cut it as an explanation for why Heller has such limited immediate effect. The answer to that question lies in the psyche of legislators and judges. The issue really is a civil rights issue now, in the full sense of the word; though different in scope from things like voting rights or imputed privacy rights.

  11. #41
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    This is a very astute view I think

    However I keep also going back to the contention that Powers were instilled to the Congress, not something we wish to identify as a separate entity called "Federal Government" and all those limited powers are controlled by representatives of each state. Elected by the People from whom all powers are granted. Any powers are specifically given to Congress.... a group of state representatives. Not to "the Federal Government".

    It is simply erroneous to keep concluding that the Federal government is not run by the States. It is completely. It was carefully crafted to be so. And it is run by them.

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    Gentlemen, I tip my hat to all of you. Thank you!
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  13. #43
    Senior Member Array 2edgesword's Avatar
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    "Before the Bill of Rights, how many of those things did the federal government have the constitutional authority and power to do?"

    Through the extreme reach it exercises via the commerce clause most if not all of them :).

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    Our founders added superflous ammendments, sure :_

    Quote Originally Posted by SelfDefense View Post
    I didn't say the amendments were optional. They are absolutely part of the Constitution.

    What I did say is that the first eight Amendments are completely superfluous. They do not add anything to the Constitution.
    Let's give the great guys who started this all some credit. Maybe even the deity some credit. Whatever they did, what ever their reasoning, it wasn't, " hey, let's add some superfluous stuff for the heck of it."

    There is nothing superfluous about The Bill of Rights. Without it, the dang document would: a) never have been ratified; b) never have stood the test of time.

    Every word is there for a reason, and given the brilliance of the dudes who wrote it, every word was meant to convey an exact meaning which was fully understood in their day.

    Yes, you could have a US Government set up as ours is, with three branches and coordinate state government, but our way of life would be drastically different were it not for the Bill of Rights.

    In fact, we just might not be holding conversations openly here were it not for the big ten.

    (Man, I've heard all sorts of political and legal argument in my life, but I sure as heck have never ever heard someone argue for disowning The Bill of Rights before. Yikes.)

  15. #45
    Restricted Member Array SelfDefense's Avatar
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    Quote Originally Posted by sgtD View Post
    You are obviously very knowledgable on Constitutional history and in a historical context your arguments are valid on most points. However we live in the here and now, and our law is mostly dictated by 200 years of Supreme Court precedent, whether we like it or not.
    I pretty much agree with this. But all because a wrong has continued for two hundred years does not mean it cannot be corrected. And it certainly does not change the plain wording of the Constitution. Slavery was the norm for well over two hundred years and even affirmed by the vaunted Court in the dreadful Dred Scott opinion. The people of the United States did what needed to be done then. We can do it again.

    The Supreme court declared itself the supreme and final arbiter of the constitution in Marbury v. Madison. Marshall wrote "[i]t is emphatically the province and duty of the judicial department to say what the law is", and the Supreme Court has excercised that power since 1803.
    They can declare themselves anything they want. It has no force of law. President Bush can declare himself king and ruler of all branches of government. It doesn't make it so. Judicial review is an unmitigated power grab and its implementation spits in the face of the American people.

    In Martin v. Hunter's Lesee the Supreme Court ruled that States must follow the Supreme Court's decisions on matters of Federal law including constitutional issues.
    And they were completely wrong. From the lower court, which was absolutely correct:

    The Court is unanimously of opinion that the appellate power of the Supreme Court of the United States does not [p306] extend to this Court under a sound construction of the Constitution of the United States; that so much of the 25th section of the act of Congress, to establish the judicial courts of the United States as extends the appellate jurisdiction of the Supreme Court to this Court is not in pursuance of the Constitution of the United States. That the writ of error in this cause was improvidently allowed under the authority of that act; that the proceedings thereon in the Supreme Court were coram non judice in relation to this Court, and that obedience to its mandate be declined by the Court.

    Thus the Supreme Court is the final arbiter of the constitutionality of state law when the constitutional rights of citizens are being infringed. When a state law runs afoul of the constitution, the Supreme Court has appelate jurisdiction to decide the case on constitutional grounds.
    You do realize the circular argument you just presented. The Supreme Court declares it has power therefore you conclude that the Supreme Court has power.

    Therefore, state laws that infringe on constitutional rights are not enforceable unless some type of balancing argument is adopted, which balances the needs of the state to use it's police powers against the amount of infringement on citizens rights.
    The balancing argument is laughable. It is exactly this argument for which Breyer was ridiculed in his dissent of Heller. Since the Constitution does not apply to the states (except where specifically mentioned) no force of Federal law is applicable to the sovereign states.

    In the Heller decision, Scalia seems to indicate that a total prohibition on handguns and laws requiring guns to be locked or disassembled, and thus not readily available for defensive purposes, goes beyond a reasonable restriction and will not be upheld under a balancing test if one is applied to a state law in the future.
    t doesn;t matter who wrote it, the balancing argument s not supported by anything in the Constitution. I assume I must have missed that part. Can you direct me to the Article and Section? Or perhaps the Amendment that addresses this Constitutional blancing?

    It will be interesting to see in future cases, how the antis try to justify the supposed public safety needs of restricting guns v. the individual rights of citizens to defend themselves. They may be required to show that some overall public safety benefit is derived from restrictive gun laws in order to justify restrictions. May they have good luck with that one. lol.
    Considering the Heller decision was 5-4, and it seems concessions by Scalia were required to sway the final authority of the United States, Anthony Kennedy, and that the Constitution does not apply to the states as Stevens acknowledged in dissent (and I would assume any strict constructionist would agree,) no case that reaches the Supreme Court will result in the extra constitutional idealogy of incorporation.

    I know that will disappoint the people here but the ONLY way to change the gun laws at the state level is to legislate them. That is the foundation of our nation.

    Whether this is what the ratifiers of the Constitution intended or not, the reality is that the Supreme Court has become responsible for protecting the Constitutional Rights of citizens when they are being infringed upon by federal and state law.
    Like Kelo?

    It is also very telling that you prefaced your comment with, "Whether this is what the ratifiers of the Constitution intended or not."

    So you subscribe to the living Constitution theory, regardless the intent of the Founders or the sacrifices they made to create the Constitution.

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