Who Should Protect Our Rights...Federal or State Government - Page 5

Who Should Protect Our Rights...Federal or State Government

This is a discussion on Who Should Protect Our Rights...Federal or State Government within the The Second Amendment & Gun Legislation Discussion forums, part of the Related Topics category; Originally Posted by Hopyard In a sense it really has been overturned. If you took it literally, there would be and have been a wide ...

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Thread: Who Should Protect Our Rights...Federal or State Government

  1. #61
    Restricted Member Array SelfDefense's Avatar
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    Quote Originally Posted by Hopyard View Post
    In a sense it really has been overturned. If you took it literally, there would be and have been a wide range of BOR violations which are now prohibited to the states. Everything from school board prescribed prayers to beating confessions out of unrepresented little thugs.
    Why would you condone beating confessions at of little thugs? Why do you want to prevent free expression of religion?

    In no sense has Cruikshank een overturned. In fact, it was just affirmed in the Heller opinion!

    [QUOTE}I think the reason Cruishank has not been overturned with respect to 2A has to do with courts and their mindset. Most of the time they are dealing with criminal matters, and judges get into an anti-mentality after seeing case after case after case of rampant gun crime.[/QUOTE]

    Sounds like you are falling back on your feelings rather than the facts. I thought you held these judges in the highest esteem. Except when you want to promote your own agenda.

    Then they search for excuses to rule in particular ways which they think will enhance society's safety.
    You mean like the Constitution and the ideals and principles on which this nation was founded?

    I don't think the entire question (series of issues and questions) have really been addressed in a comprehensive way. It has been piecemeal. And 2A is the piece still hanging out there. None of this is logically neat or clean or nice. What we have is one mess piled onto of another mess on top of yet a third mess; and everyone is thinking "the law" (especially the constitution) must be a thing of beauty; it is not.
    The only 'mess' is the idea we should have a national government, directly conflicting with the intent of the Founders.

    The issue has been addressed. Read the Adamson opinion. Adamson has not been 'overturned' either. The liberal, activist Warren Court has brought us down this road to destroying the sovereignty of the states.


  2. #62
    Member Array XDFender's Avatar
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    Quote Originally Posted by SelfDefense View Post
    The states never ceded power nor rights to the Federal government. The Fourteenth Amendment was solely aimed at providing citizenship for the newly freed slaves. It has nothing to do with the Bill of Rights.
    Directly refuted by the very terms of the 14th Amendment itself:

    "No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws."

    By ratifying the 14th Amendment, the States very explicitly ceded a portion of their sovereignty to the extent that they agreed to be restricted under federal law (i.e., the Constitution) from "mak[ing] or enforc[ing] any law which shall abridge the privileges or immunities of citizens of the United States; [or] depriv[ing] any person of life, liberty, or property, without due process of law; [or ] deny[ing] to any person within its jurisdiction the equal protection of the laws."

  3. #63
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    Quote Originally Posted by SelfDefense View Post
    In no sense has Cruikshank een overturned. In fact, it was just affirmed in the Heller opinion!
    Not with regard to incorporation, which is the issue at hand here--the only references to Cruikshank in which SCOTUS did not question its continuing validity are where SCOTUS discusses the "collective" versus "individual" rights issue (and the Court concluded that Cruikshank did not weigh in against the RKBA being an individual right). The only discussion in the Court's opinion regarding Cruikshank's continuing validity on incorporation (indeed, the only discussion of incorporation in the entire opinion) consists of a footnote in which the Court strongly suggests that Cruikshank's position on the 14th Amendment is no longer valid:

    "23 With respect to Cruikshank’s continuing validity on incorporation, a question not presented by this case, we note that Cruikshank also said that the First Amendment did not apply against the States and did not engage in the sort of Fourteenth Amendment inquiry required byour later cases."

    A whole slew of subsequent cases have gone directly against Cruikshank on the 1st Amendment and on other BOR provisions.

  4. #64
    Member Array XDFender's Avatar
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    Quote Originally Posted by BAC View Post
    Then let me be clearer: what happens if/when the Court reverses its opinion on incorporation? Why should the protection of rights be contingent on a court decision that can be overturned? Why should it not be reliant upon the decision of the citizens of the states? You realize that we citizens of the states have been doing this for the last 80 years without any incorporation of the Second Amendment, right?


    -B
    We have?! Hmmm... I guess I must be confused, because last time I checked, there were at least 2 or 3 thread on this very forum (maybe a couple more than that ) discussing exactly how various states and municipalities have been trampling all over the RKBA.

    A clear statement by SCOTUS that the RKBA is (1) an individual right (we got that in Heller); and (2) applies vis-a-vis the federal government via the 2nd Amendment and vis-a-vis the states via incorporation through the 14th Amendment would go a heck of a long way towards protecting the RKBA from such abuse by the states and their subdivisions. The remaining fight then would be to establish the scope of the "arms" covered by the RKBA--which is a "whole 'nuther issue."

  5. #65
    BAC
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    Quote Originally Posted by XDFender View Post
    Its premise has been thoroughly repudiated by case after case where the courts have applied provisions of the BOR against the states via the 14th Amendment. The only reason that Cruikshank has not been directly overturned is because SCOTUS has not yet ruled directly on the issue. If and when it does, unless it departs completely from standard 14th Amendment jurisprudence, it will overturn Cruikshank.
    And yet, the case has not been overturned, and its opinion reversed as Scalia so succinctly put it when remarking on such in the Heller decision. The Courts have admitted this before, that they had been operating under the methodology of "incorporation" without ever overturning/reversing the Cruikshank decision. I am not as confident as you that the 14th Amendment will be the end of Article 1, Section 8 of my state's constitution, since no single other enumerated right has appeared in the Supreme Court to affirm it's place as a guard against federal infringement than has the Second Amendment

    Quote Originally Posted by XDFender View Post
    We have?! Hmmm... I guess I must be confused, because last time I checked, there were at least 2 or 3 thread on this very forum (maybe a couple more than that ) discussing exactly how various states and municipalities have been trampling all over the RKBA.
    Is that right? I was under the impression that a bill did not have the force of law, and that the state gun laws have been steadily favoring firearms and firearms owners throughout the country with only few exceptions, regardless of what bills are presented (heck, we're seeing this in ILLINOIS of all places!); or that the threads on this very forum were often attributed to wrongful action by local and state courts. I can be swayed if you have more evidence for your position, though.


    -B
    RIP, Jeff Dorr: 1964 - July 17, 2009. You will be missed.


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  6. #66
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    BAC wrote: "The Courts have admitted this before, that they had been operating under the methodology of "incorporation" without ever overturning/reversing the Cruikshank decision. I am not as confident as you that the 14th Amendment will be the end of Article 1, Section 8 of my state's constitution, since no single other enumerated right has appeared in the Supreme Court to affirm it's place as a guard against federal infringement than has the Second Amendment"
    ___________________________________

    Sorry, but somehow I am completely missing your point. I am assuming that what you are referring to in your own state constitution is a rkba. If so, how would recognition of a Federal rkba applicable to the states damage your state's constitution? Wouldn't it at worst just be redundant?

    I am either missing something here or I just don't see your point. No harm comes to FL if 2A, interpreted as an individual right, is the law of the land. And even if it later were decided that 2A was only a collective right, there still would be no harm to FL if it has its own rkba clause-- except of course in the second case Uncle could muscle the imposition of its way onto FL, but Uncle can do that right now without any further decisions. See how far FL would get if it tried to make ownership of machine guns and short shoties legal and began to import them from outside the US.

  7. #67
    BAC
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    There is already a federal recognition of the right to keep and bear arms to keep the federal government from infringing upon my right to keep and bear arms (they're doing a bad job of it, by the way). In Florida, there is also a state recognized right to keep and bear arms to keep the state in check. My bases are covered, because that's how Floridians voted it should be. I find California's anti-gun nature deplorable, but I don't live in California and truly believe that their destiny is theirs to choose and not the rest of the country's to decide.

    I'm surprised that I have to spell it out, but my point is that this has very little to do with the Second Amendment specifically and that the bigger picture keeps being missed. This has to do with our own philosophical positions of how our nation should be arranged.

    "...the United States of America, and to the republic for which it stands..."

    Do you believe in the sovereignty of the states? If not, and it sounds like you don't, fine. Just say it and we can both admit that we have fundamentally-different views on the subject and that until one of us changes our philosophical position on the matter we'll probably never agree on this. My position aligns with the belief that the one-size-fits all model of legislation is not appropriate for our republic of many states, and that the states maintain (and ought to always maintain) their sovereignty so that they can best represent their citizens. I absolutely want my state to represent me, even if it doesn't represent the majority of Californians or New Yorkers or Texans, just like I absolutely want California, New York, and Texas to represent their respective populations even if they don't represent me or each other. I hope this clarifies my position.


    -B
    RIP, Jeff Dorr: 1964 - July 17, 2009. You will be missed.


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  8. #68
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    Ah, now we clearly articulate the heart of the matter

    Quote Originally Posted by BAC View Post
    I'm surprised that I have to spell it out, but my point is that this has very little to do with the Second Amendment specifically and that the bigger picture keeps being missed. This has to do with our own philosophical positions of how our nation should be arranged.

    -B
    Yes, it is about how our nation should be arranged. But as a practical matter it is about what kinds of restrictions some states are permitted to keep on the rkba.

    I want to deal with the practical issue. I want to see gun rights extended to NY and IL, CA, and NJ, WI and Iowa, MD, and DC --which continues to thumb its nose at the supremes.

  9. #69
    BAC
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    Me too, but not because me in Florida tells them they ought to. They ought to want to. If they want it enough, they will change. There is nothing impractical about that, is there?


    -B
    RIP, Jeff Dorr: 1964 - July 17, 2009. You will be missed.


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  10. #70
    VIP Member Array mlr1m's Avatar
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    Quote Originally Posted by Hopyard View Post
    Yes, it is about how our nation should be arranged. But as a practical matter it is about what kinds of restrictions some states are permitted to keep on the rkba.

    I want to deal with the practical issue. I want to see gun rights extended to NY and IL, CA, and NJ, WI and Iowa, MD, and DC --which continues to thumb its nose at the supremes.
    Although I would agree that in principle, I see it as a double edged sword. Remember those states you listed want to do the same thing you do. They want to force other states to conform to their way of thinking. Not only on the gun issue but many others as well.

    On federal issues these states you listed have the power in their votes to influence the results much more than most.

    Michael

  11. #71
    BAC
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    Quote Originally Posted by mlr1m View Post
    Although I would agree that in principle, I see it as a double edged sword. Remember those states you listed want to do the same thing you do. They want to force other states to conform to their way of thinking. Not only on the gun issue but many others as well.
    Exactly correct.


    -B
    RIP, Jeff Dorr: 1964 - July 17, 2009. You will be missed.


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  12. #72
    Senior Member Array dldeuce's Avatar
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    Quote Originally Posted by BAC View Post
    Then let me be clearer: what happens if/when the Court reverses its opinion on incorporation? Why should the protection of rights be contingent on a court decision that can be overturned?
    -B
    I suppose what happens is the same things the states do when they amend their constitutions, re-write their laws, and overturn their own case law. Texas did it in 1868 by amending our keep and bear right to allow the legislature to regulate it at their whim and continued to do it in case law even after we corrected our constitution in 1876. Your rights are no longer protected.

    Let's assume the 2nd amendment is incorporated and federal case law establishes a strict scrutiny standard. Let's also assume the states respect the same standard under their own laws, constitution and state case law. Now the federal government changes its mind and weakens that right. That doesn't weaken the state rights. Each state is still refrained under their own rules of law.

    On the other hand, without incorporation, each state is able change their mind and infringe our rights at the whim of the majority. I don't see how that's good for our country as a whole. I don't see the down side of incorporation.

    Why should it not be reliant upon the decision of the citizens of the states? You realize that we citizens of the states have been doing this for the last 80 years without any incorporation of the Second Amendment, right?
    As long as the citizens of each state are willing to restrain their government from infringing on our fundamental rights, there's no need for incorporation under the 14th. It would add nothing, nor take anything away. Only we know the states have never respected our fundamental rights. I still fail to see the downside of a minority interest in any state from seeking protection of their fundamental rights from the federal government of from any other source.

    Texans couldn't restrain Santa Anna from disarming our citizens, and they obtained assistance from patriots of the United States. We became a free republic and later a state of the union. I don't see the downside.

    Commandancy of the Alamo
    Bexar, Fby. 24th, 1836

    To the People of Texas &
    all Americans in the world
    Fellow Citizens & Compatriots

    I am besieged by a thousand
    or more of the Mexicans under
    Santa Anna. I have sustained a
    continual bombardment &
    cannonade for 24 hours & have
    not lost a man. The enemy
    has demanded a surrender at
    discretion, otherwise the garrison
    are to be put to the sword if
    the fort is taken. I have answered
    the demand with a cannon
    shot, and our flag still waves
    proudly from the walls. I
    shall never surrender nor retreat.

    Then, I call on you in the
    name of Liberty, of patriotism, &
    of everything dear to the American
    character, to come to our aid with all dispatch. The enemy is
    receiving reinforcements daily &
    will no doubt increase to three or
    four thousand in four or five days.
    If this call is neglected, I am deter-
    mined to sustain myself as long as
    possible & die like a soldier
    who never forgets what is due to
    his own honor & that of his
    country.

    Victory or Death
    William Barret Travis
    Lt. Col. Comdt.

    Remember the Alamo!

  13. #73
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    The people should protect their own rights. The government should be of the people, for the people and by the people. Ideally, none of this is necessary.

    That being said...in a spat between the two, States' rights historically are more closely aligned with the will of the people because we can vote with our feet by moving to another state without leaving our beloved country.
    Free Firearms Classifieds http://www.armslist.com

  14. #74
    Senior Member Array dldeuce's Avatar
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    Quote Originally Posted by BAC View Post
    Is that right? I was under the impression that a bill did not have the force of law, and that the state gun laws have been steadily favoring firearms and firearms owners throughout the country with only few exceptions, regardless of what bills are presented (heck, we're seeing this in ILLINOIS of all places!); or that the threads on this very forum were often attributed to wrongful action by local and state courts. I can be swayed if you have more evidence for your position, though.
    -B
    Yes, that's exactly right. Texas still to this day prohibits the public possession of handguns to almost all of it's citizens. This despite that all important protection from the 1876 amendment to our constitution. The one where the citizens made their wishes clear that the government be allowed only to regulate the wearing of arms, not the prohibition of bearing arms.

  15. #75
    Senior Member Array dldeuce's Avatar
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    Quote Originally Posted by Jon1911 View Post
    The people should protect their own rights. The government should be of the people, for the people and by the people. Ideally, none of this is necessary.

    That being said...in a spat between the two, States' rights historically are more closely aligned with the will of the people because we can vote with our feet by moving to another state without leaving our beloved country.
    I support all citizens and their power to restrain their own state governments. As a US citizen, I will support any minority in any state in their efforts to restrain their state government.

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