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; As a citizen of the United States, with all of the "privileges and immunities" incumbent to that position--including those enumerated in the BOR--why should I ...

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

  1. #76
    Member Array XDFender's Avatar
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    As a citizen of the United States, with all of the "privileges and immunities" incumbent to that position--including those enumerated in the BOR--why should I accept being subjected to varying degrees of infringement of my RKBA based on which state I happen to be traveling to or through? The 2A states very clearly that the RKBA "shall not be infringed." We are making progress at the federal level (e.g., Heller) in getting the proper and full extent of that protection recognized, and given the current (and foreseeable future) makeup of SCOTUS, I believe we will continue to make such progress. Therefore, I would like to see the protection established by the 2A against infringement of the RKBA applied vis-a-vis the states, so when I travel from my home in Kansas to visit my family in Minnesota, I do not have to double-check the laws of Missouri, Nebraska, and Iowa to ensure that I am not putting myself at risk of being jailed because I am exercising my RKBA while traveling through those jurisdictions.

    The hodge-podge of laws we currently have in the United States is ridiculous and unreasonable. There should be one standard--that is, the RKBA is not subject to governmental infringement--as set forth in the 2A and as made applicable to the states via the 14A, as was the states' own wish as reflected in their ratification of the 14A, which was understood--even declared by its author--to extend the BOR vis-a-vis the states.

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  3. #77
    Senior Member Array dldeuce's Avatar
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    Quote Originally Posted by BAC View Post
    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
    Your flaw comes in when state infringes upon its citizens most fundamental rights to the point where it affects the sovereignty of the United States, hence the passage of the fourteenth amendment.

  4. #78
    Senior Member Array dldeuce's Avatar
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    Quote Originally Posted by XDFender View Post
    As a citizen of the United States, with all of the "privileges and immunities" incumbent to that position--including those enumerated in the BOR--why should I accept being subjected to varying degrees of infringement of my RKBA based on which state I happen to be traveling to or through? The 2A states very clearly that the RKBA "shall not be infringed." We are making progress at the federal level (e.g., Heller) in getting the proper and full extent of that protection recognized, and given the current (and foreseeable future) makeup of SCOTUS, I believe we will continue to make such progress. Therefore, I would like to see the protection established by the 2A against infringement of the RKBA applied vis-a-vis the states, so when I travel from my home in Kansas to visit my family in Minnesota, I do not have to double-check the laws of Missouri, Nebraska, and Iowa to ensure that I am not putting myself at risk of being jailed because I am exercising my RKBA while traveling through those jurisdictions.

    The hodge-podge of laws we currently have in the United States is ridiculous and unreasonable. There should be one standard--that is, the RKBA is not subject to governmental infringement--as set forth in the 2A and as made applicable to the states via the 14A, as was the states' own wish as reflected in their ratification of the 14A, which was understood--even declared by its author--to extend the BOR vis-a-vis the states.
    Which is of course why the amendment was passed in the first place. It wasn't just the blacks that were being denied their rights. It was the white republicans and abolitionists that traveled to the southern states to lobby for black rights and found that they too were subject to losing the most basic freedoms. For example, I think it was in South Carolina that they found it was a death penalty offense to speak out against slavery.

    I'm not sure how BAC and Self Defense felt that was good for our country even if by far the majority of citizens of that state thought it was just dandy.

  5. #79
    Restricted Member Array SelfDefense'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.
    Your statement is telling. You think the naion should be arranged in a different manner than the Founders originally designed. Do you want to discard the entire Constitution or just those parts with which you disagree?

    No one has yet answered the question, What do the words 'Congress shall make no law' mean? How should they be 'interpreted?'

    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.
    The 'supremes' (the singing group?) has no jurisdiction over the states in this area. I also want to deal with the practical issue. The state laws and/or their constitutions need to be changed by the people of the state.

  6. #80
    New Member Array Tackleberry's Avatar
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    Neither!

    I'm sorry, but, I have to say neither. I think it is up to us as private American citizens because (as of late) none of the state or federal government seem to have a clue as to what the American people need or want or what is best for us. To me, they are TOTALLY disconnected and seem to have their own agenda. When are we going to stop talking and complaining about it and finally do what IS our right by our forefathers as is written in the constitution and TAKE THE POWER BACK and install a new government because this one is FUBAR!!

  7. #81
    Restricted Member Array SelfDefense's Avatar
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    Quote Originally Posted by dldeuce View Post
    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.
    Texas has some of the finest gun laws and justifiable self defense laws in the nation. If you don't like the laws in your state, change them!

    Are you sure you understand what bearing arms means?

  8. #82
    VIP Member Array mlr1m's Avatar
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    Quote Originally Posted by SelfDefense View Post
    No one has yet answered the question, What do the words 'Congress shall make no law' mean? How should they be 'interpreted?'
    I believe it means exactly what it says. The constitution seems to me to be a very easy to understand document. Remember it needed the support of all the people to be radified. They needed it to be easily understood.

    It does not take a law degree to comprehend it. It only takes a law degree to be able to twist it into meaning something other than what was intended.

    Only a lawyer could be confused by the meaning of "shall pass no law" or "not be infringed" . Ask anyone with a 6th grade education and it will look perfectly clear to them.

    Michael

  9. #83
    Restricted Member Array SelfDefense's Avatar
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    Quote Originally Posted by dldeuce View Post
    Your flaw comes in when state infringes upon its citizens most fundamental rights to the point where it affects the sovereignty of the United States, hence the passage of the fourteenth amendment.
    This is a new one. How does a state passing laws that you think infringes on fundamental rights affect the sovereignty of the United States?

    The Fourteenth Amendment has nothing to do with the Bill of Rights.

    It appears it is time to review the text:

    Section 1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside. 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.

    Nowhere is the Bill of Rights mentioned or even implied. We can certainly investigate what the phrase 'privileges and immunities' means, but it is not helpful to your idea that this Amendment 'incorporates' anything.

    Also interesting is to take Section 1 in context with the rest of the Amendment:

    Section 2. Representatives shall be apportioned among the several states according to their respective numbers, counting the whole number of persons in each state, excluding Indians not taxed. But when the right to vote at any election for the choice of electors for President and Vice President of the United States, Representatives in Congress, the executive and judicial officers of a state, or the members of the legislature thereof, is denied to any of the male inhabitants of such state, being twenty-one years of age, and citizens of the United States, or in any way abridged, except for participation in rebellion, or other crime, the basis of representation therein shall be reduced in the proportion which the number of such male citizens shall bear to the whole number of male citizens twenty-one years of age in such state.

    Section 3. No person shall be a Senator or Representative in Congress, or elector of President and Vice President, or hold any office, civil or military, under the United States, or under any state, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any state legislature, or as an executive or judicial officer of any state, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. But Congress may by a vote of two-thirds of each House, remove such disability.

    Section 4. The validity of the public debt of the United States, authorized by law, including debts incurred for payment of pensions and bounties for services in suppressing insurrection or rebellion, shall not be questioned. But neither the United States nor any state shall assume or pay any debt or obligation incurred in aid of insurrection or rebellion against the United States, or any claim for the loss or emancipation of any slave; but all such debts, obligations and claims shall be held illegal and void.
    ===========================================

    It is very clear that this Amendment was to extend rights to the newly freed slaves and prevent those involved with the insurrection from polluting our government in both person and frivolous claims.

  10. #84
    Restricted Member Array SelfDefense's Avatar
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    Quote Originally Posted by mlr1m View Post
    I believe it means exactly what it says. The constitution seems to me to be a very easy to understand document. Remember it needed the support of all the people to be radified. They needed it to be easily understood.

    It does not take a law degree to comprehend it. It only takes a law degree to be able to twist it into meaning something other than what was intended.

    Only a lawyer could be confused by the meaning of "shall pass no law" or "not be infringed" . Ask anyone with a 6th grade education and it will look perfectly clear to them.
    It is not only lawyers that have a problem with simple words and concepts. Even some lawyers understand. Justice Frankfurter was our best proponent, being a Supreme Court Justice and all.

    People are easily swayed when they think the end justifies the means. Entire societies have crumbled on that misguided premise.

  11. #85
    BAC
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    Quote Originally Posted by dldeuce View Post
    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.
    The phrase in question is this:

    "...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."

    This implies that there is obviously a significant number of attempts. Your sample of one doesn't impress me much. Yes, I understand that you feel strongly about the injustices in the State of Texas, but you can't argue with a straight face that the State of Texas is unfriendly to gun owners and gun ownership, nor that it hasn't been growing more so (especially with the more recent 'castle doctrines').

    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.
    Come again? If the states individually decide that the right to keep and bear arms is one they will recognize and protect, then it is protected from infringement of the state (and/or municipalities, such as it may be). The Second Amendment of the US Constitution is to make sure that no matter what the states do, the federal government shall not infringe upon the rights of the people to keep and bear arms. Two different levels of law protecting against two different levels of government infringement.

    The reason you do not see a downside to incorporation is because you do not believe we ought to have sovereign states, and that the US Constitution applies to just the United States government. I certainly see a downside with a handful of judges making a determination that overrides every citizen in every state that doesn't agree with those few men. The United States of America is a republic of sovereign states, not a nation of 50 districts lorded over by an oligarchy for their protection.

    Only we know the states have never respected our fundamental rights.
    Quite a broad statement, that. Should I take you to task on it or will you rescind such a stupid remark?

    Quote Originally Posted by dldeuce View Post
    Your flaw comes in when state infringes upon its citizens most fundamental rights to the point where it affects the sovereignty of the United States, hence the passage of the fourteenth amendment.
    Okay, I'll bite: how does a state's infringing upon the rights of its citizens effect the sovereignty of the United States?


    -B
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  12. #86
    VIP Member Array mlr1m's Avatar
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    Would be refreshing to have a Supreme Court Justice that hasn't been corrupted by law schools. Just read what the constitution, read all the papers the original founders wrote. What more is necessary?

    Michael

  13. #87
    New Member Array GR8GIFT's Avatar
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    I say neither, the Bill of Rights Second Amendment gaurantees the right. Neither Federal or States can take it away or guarantee it.
    Personally I feel every gun law and or restriction on the books violates our right.

    Both should protect the right. As far as the 14th Amendment it didn't carry much weight when the Supreme Court decided that imminent domain allowed city governments to steal property under the guise of commen good for the city.

  14. #88
    Senior Member Array Rob P.'s Avatar
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    This is a new one. How does a state passing laws that you think infringes on fundamental rights affect the sovereignty of the United States?

    The Fourteenth Amendment has nothing to do with the Bill of Rights.
    I find your viewpoint simplistic and full of flaws. Unfortunately the simplistic view is often the one that is found in small pamphlets handed out by proseletizers trying to push an agenda. IMO this appears to be where you get your information for the most part because it's lacks substance and depth.

    It appears it is time to review the text:

    Section 1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside. 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.
    This is from your own post above. The bold words as the ones to pay attention to here.

    NO STATE can pass laws which are subject to federal guarantees or regulation. This means that if the feds have passed a law on the subject then it's NOT available for states to regulate anymore. Like immigration. Like the environmental protection act. Like the ability to make international treaties. Etc.

    "Incorporation" is a quick and dirty way to say that the various amendments in the BOR have been determined to be within the "privileges or immunities of citizens of the United States" portion of the Section 1.

    All of the preceeding amendments have been "incorporated" into the 14th amendment except the 2d. This means that NO STATE can write legislation which removes, limits, or abridges a persons ability to freely assemble or to ask for redress from the government. Or to worship as he/she chooses. Or to be subject to unreasonable search and seizure. Or to not have a right against self incrimination. Etc.

    Under your view state A could write laws restricting sales of handguns UNLESS they were transported and sold in pink plastic boxes. Meanwhile all of the surrounding states (B, C, D, and E) could write the same law only they say guns can only be sold AND TRANSPORTED in blue cardboard boxes and that pink boxes are outlawed even if just in transit across the state. If states B, C, D, and E prohibit the transportation of handguns in pink plastic boxes then state A could NEVER get handguns into the state. This effectively limits, removes, or abridges the ability of the citizens of state A to purchase handguns.

    Please tell me how States B, C, D, and E are allowed to regulate the commerce of state A? How about how they are allowed to determine what rights the citizens of state A have in regard to the ability to purchase handguns?

    What if this wasn't handguns but cars? Or clothes? Or building materials? Or truck tires? Each of these things has been sought to be regulated by individual states and has been determined to be unlawful because the laws are able to go beyond the state boundaries. And that is the purpose of the Federal government.

    You also make wild claims about how we're in the position we're in because of activist judges.

    The liberal, activist Warren Court has brought us down this road to destroying the sovereignty of the states.
    Yet you don't even understand that the concept of Federalism was established in Marbury v. Madison well before the Warren court. Marbury established that the STATES cannot be allowed to tax the federal government because that puts the states in a position of power over the federal government. Which is inconceivable when you consider the purpose the federal government was originally established to hold. The federal government was created as a check on power held by the individual states.

    You continue to try to advance some theory about how it's the province of the individual states to legislate state level gun control laws. A position which is, as was discovered in Marbury, one that allows the individual states to tell the federal government what to do and, by extension, ALL of the other states as well.

    As I said, your position sounds meaningful but it lacks depth and critical thinking. It is too simplistic and misses or omits several key factors which are crucial to the discussion.

  15. #89
    Restricted Member Array SelfDefense's Avatar
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    Quote Originally Posted by Rob P. View Post
    I find your viewpoint simplistic and full of flaws. Unfortunately the simplistic view is often the one that is found in small pamphlets handed out by proseletizers trying to push an agenda. IMO this appears to be where you get your information for the most part because it's simplistic and uninformed in substance and depth.
    Amusing that you did not answer the question. Can you point us to the pamphlets you suggest? The Federalist Papers perhaps?

    Want to try again?

    How does a state passing laws that you think infringes on fundamental rights affect the sovereignty of the United States?

    This is from your own post above. The bold words as the ones to pay attention to here.
    Thanks for highlighting the words.

    NO STATE can pass laws which are subject to federal guarantees or regulation.
    Yet, after reading the words you make stuff up! Did you get that from a pamphlet?


    "Incorporation" is a quick and dirty way to say that the various amendments in the BOR have been determined to be within the "privileges or immunities of citizens of the United States" portion of the Section 1.
    Again, your knowledge of the subject is lacking the Supreme Court opinions of Adamson and Cruikshank. Do you know where the phrase 'privileges and immunities' originates?

    All of the preceeding amendments have been "incorporated" into the 14th amendment except the 2d.
    All the preceeding Amendments? Preceeding what? The Fourteenth Amendment has nothing to do with the Bill of Rights. It has everything to do with the newly freed slaves.

    This means that NO STATE can write legislation which removes, limits, or abridges a persons ability to freely assemble or to ask for redress from the government. Or to worship as he/she chooses. Or to be subject to unreasonable search and seizure. Or to not have a right against self incrimination. Etc.
    Maybe you can answer. What do the words, 'Congress shall make no law' mean? Since states are not subjects of the Federal government then can enact any laws the people choose unless specifically prohibited by the Constitution. Have you ever read the Tenth Amendment?

    You make wild claims about how we're in the position we're in because of activist judges.
    Wild claims? I'll let you in on a Constitutional secret. The Judicial Branch has no power to make laws!

    Yet you don't even understand that the concept of Federalism was established in Marbury v. Madison well before the Warren court. Marbury established that the STATES cannot be allowed to tax the federal government because that puts the states in a position of power over the federal government. Which is inconceivable when you consider the purpose the federal government was originally established to hold.
    It appears that you are not well versed on the subject of Marbury v Madison, either. The concept of Federalism was established in the Constitution. I don't have the time this evening to educate you on the background of Marshall's power grab. I will provide you an appetizer. Marshall was attempting to solidify Federalist power since Jefferson was attempting a huge power usurpation. Unfortunately, Marshall's plan backfired completely. It is amusing that some people think that the Court can determine the power of the Court.

    Yet you continue to try to advance some theory about how it's the province of the individual states to legislate state level gun control laws.
    It is not a theory. It is the way things are.

    A position which is, as was discovered in Marbury, one that allows the individual states to tell the federal government what to do and, by extension, ALL of the other states as well.
    Your comment makes no sense at alland has nothing to do with Marbury. Even a internet search will help you better understand the issues in Marbury v Madison. Try google.

    As I said, your position sounds meaningful but it lacks depth and critical thinking. It is too simplistic and misses or omits several key factors which are crucial to the discussion.
    Get back to us after you read Cruikshank and Adamson. Don't forget Charles Fairman's article. I am sure you are familiar with it, no?

    By the way, are you going to provide depth and critical thinking to the discussion?

  16. #90
    Senior Member Array Rob P.'s Avatar
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    Last post because I refuse to continue a conversation with someone who cannot think.

    Your position is without merit because your "sources" you seem to think are some sort of authority have NOTHING to do with your position.

    You say that the 14th amendment has nothing to do with the BOR yet the 14th amendment IS IN THE BOR! A thing inside a thing IS the thing. As the words in a book ARE the book. They don't have to mention the book at all.

    You say that the concept of Federalism was established by the Constitution yet the Constitution does NOT SAY THIS.

    You weasel, waffle, and duck and dodge to try to salvage your position on the basis of the Federalist Papers, yet the Federalist Papers are NOT THE LAW and are NOT THE CONSTITUTION. They have no legal weight at all.

    You keep mentioning Cruickshank as if it is some sort of Constitutional talisman yet Cruickshank has been thoroughly discredited.

    You spout alot about how no court has the ability to "make laws" yet, again, you seem to think that Cruickshank is some sort of "law" that the Federal Government has to abide by.

    IOW, your thinking is so muddled I don't believe that EVEN YOU know what the heck you're talking about.

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