Open Carry Bans Unconstitutional? - Page 3

Hopyard · July 3rd, 2008, 11:48 PM

Quote:

Originally Posted by SelfDefense

Exactly what are you asking? The Heller decision was specific to a single case: Heller. It was specific to the handgun ban in Washington DC, a Federal jurisdiction. It has nothing to do with individual states. The fact is that the enumerated rights should be the values of the states, and in most, the right to keep and bear arms is preserved and protected. All Court decisions are singular in nature. They have no power to make law. Their effect is indirect. No one wants to waste resources when the Court precedent will certainly trump local decisions. Heller provides no such precedent until the Court usurps states' rights and 'incorporates' [read: forces] their opinion down the throats of the states.

I do not understand why Heller is viewed as dealing with a DC issue and nothing more; whereas for example in Brown V BOE was equally dealing with a --was it a Virginia case? Don't recollect.

Of course in both instances the litigants are the plaintiff and the local authorities who violated the plaintiff's rights.

So, why did (as an example only, and I disagree with SD on the effect of Brown V BOE and lots of other stuff too) the school board case propagate into the law of the land where as now everyone says Heller isn't the law of the land?

I don't think in the school case that the authorities just got up one day and said "we've seen the light" anymore than authorities in gun unfriendly states have gotten up to say they have seen the light.
Yet, I don't recall any serious debate arguing that the decision wasn't binding on all states and school boards. Maybe what I am missing is that it took about 5 years before the law was enforced by The Feds, and there doesn't seem any inclination to enforce it in this instance.

Al Lowe · July 4th, 2008, 07:41 AM

But in a sense, doesn't the 2nd Amendment, if taken as intended, already trump States' rights?

SelfDefense · July 4th, 2008, 09:41 AM

Quote:

Originally Posted by Hopyard

I do not understand why Heller is viewed as dealing with a DC issue and nothing more; whereas for example in Brown V BOE was equally dealing with a --was it a Virginia case? Don't recollect.

Of course in both instances the litigants are the plaintiff and the local authorities who violated the plaintiff's rights.

So, why did (as an example only, and I disagree with SD on the effect of Brown V BOE and lots of other stuff too) the school board case propagate into the law of the land where as now everyone says Heller isn't the law of the land?

I don't think in the school case that the authorities just got up one day and said "we've seen the light" anymore than authorities in gun unfriendly states have gotten up to say they have seen the light.
Yet, I don't recall any serious debate arguing that the decision wasn't binding on all states and school boards. Maybe what I am missing is that it took about 5 years before the law was enforced by The Feds, and there doesn't seem any inclination to enforce it in this instance.

Brown v. BOE was a combined law suit based on (at least) three states, Kansas, Delware and Virginia. Brown was the Platiff from Kansas. That is why it was deemed a national decision.

As to the politics, I think it was a good opinion. The entire point was that the black sudents could not attend the schools in their neighboorhood. Subsequently, they were bussed to a black school. That is wrong based on the 14th Amendment. (The actual intent of the 14th.)

My problem is with the forced integration, which caused children to be PROHIBTITED from attending their neighborhood school. That has no basis in any rational reading of the law and certainly no Constitutional basis.

SelfDefense · July 4th, 2008, 07:37 PM

Quote:

Originally Posted by Al Lowe

But in a sense, doesn't the 2nd Amendment, if taken as intended, already trump States' rights?

No. The Constitution is a Federal document. It applies only to the Federal government unless the states are specifically mentioned such as in Article 1 Section 10

Quote:

Section 10 - Powers prohibited of States

No State shall enter into any Treaty, Alliance, or Confederation; grant Letters of Marque and Reprisal; coin Money; emit Bills of Credit; make any Thing but gold and silver Coin a Tender in Payment of Debts; pass any Bill of Attainder, ex post facto Law, or Law impairing the Obligation of Contracts, or grant any Title of Nobility.

No State shall, without the Consent of the Congress, lay any Imposts or Duties on Imports or Exports, except what may be absolutely necessary for executing it's inspection Laws: and the net Produce of all Duties and Imposts, laid by any State on Imports or Exports, shall be for the Use of the Treasury of the United States; and all such Laws shall be subject to the Revision and Controul of the Congress.

No State shall, without the Consent of Congress, lay any duty of Tonnage, keep Troops, or Ships of War in time of Peace, enter into any Agreement or Compact with another State, or with a foreign Power, or engage in War, unless actually invaded, or in such imminent Danger as will not admit of delay.

The Bill of Rights was never intended to (and they do not) apply to the states, they are prohibitions against actions by the Federal government. Of course, the rights enumerated are an excellent blueprint that many states have incorporated into their respective constitutions. But the Bill of Rights and the Second Amendment does not apply to the states, no matter how many misinterpret the Fourteenth Amendment to imply the wishful notion of incorporation or the recent Heller opinion.

falcon1 · July 5th, 2008, 12:07 AM

Quote:

Originally Posted by SelfDefense

But the Bill of Rights and the Second Amendment does not apply to the states, no matter how many misinterpret the Fourteenth Amendment to imply the wishful notion of incorporation or the recent Heller opinion.

Quote:

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. [emphasis added]

Sorry. I'm not buying that the Fourteenth Amendment does not bind States. It is right there in the plain text. Just like the Second Amendment does not say states, but people; the Fourteenth Amendment says States. One can argue, I suppose, about just which "privileges or immunities of citizens" are covered, but the text is clear. When the Bill of Rights says people, it does not mean states. And when the Fourteenth Amendment says States, it does not mean the national government.

SelfDefense · July 5th, 2008, 12:35 AM

Quote:

Originally Posted by falcon1

Sorry. I'm not buying that the Fourteenth Amendment does not bind States. It is right there in the plain text.

The plain text says nothing about the Federal government forcing the states to adopt the Bill of Rights.

Charles Fairman was entirely correct and we had a long discussion concerning this a few months ago. I will find the link to the thread momentarily. When you come up to speed on the discussion and the background argument, I'm certain you will understand that the Fourteenth Amendment has nothing to do with forcing the states to abdicate their sovereignty and everything to do with providing due process to the newly freed slaves.

Here is the link to the thread. If you have something to add I'm sure the moderators could be persuaded to reopen it. Enjoy...

Does the 2A apply only to the Congress?

Quote:

In an excellent and exhaustive law review article by Charles Fairman entitled Does the Fourteenth Amendment Incorporate the Bill of Rights?– The Original Understanding,[5]* Professor Fairman made a very compelling case for the proposition that those who voted to adopt the 14th Amendment (adopted in 1868) only intended to ensure that the recently freed slave had the same rights as everyone else did where he or she resided.* They did not intend to generally circumvent traditional notions of federalism outside of this context.* They did not intend to reverse the landmark U.S. Supreme Court case of Barron v. Baltimore discussed earlier. They did not intend to nationalize all rights but simply wanted to make sure that whatever rights were recognized in the various states, applied to all people equally within those states regardless of race.

*

Hopyard · July 5th, 2008, 10:44 AM

Quote:

Originally Posted by SelfDefense

The plain text says nothing about the Federal government forcing the states to adopt the Bill of Rights.

*

The plain text of the 14th says: "No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States"

Since the Bill of Rights in all its glory grants privileges or immunities to the citizens of the United States, it is certainly hard to see how your position can be correct---unless you want to argue the the privileges
envisioned in the 14th are UNRELATED to the RIGHTS in the first 10,
and that this was deliberate wording to draw the distinction.

I don't think that is the way it has been generally interpreted.

So, back to the the original issue, why isn't it understood that Heller applies to the states; that the "privileges and immunities" (rights) enshrined in 2A are not widespread per the 14th?

I think I know the answer and I don't like it.

The answer is, large majorities of politicians, police departments, DAs offices, are going to do whatever they can to thwart the implementation of the Heller decision --and The Constitution be damned, will be their attitude. THe positions will be that we will continue to arrest, and continue to litigate till the cows come home.

This is nothing but lawlessness on a grand scale.

Al Lowe · July 5th, 2008, 12:43 PM

Amendment IX

The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

Amendment X

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 to the people.

SelfDefense · July 5th, 2008, 12:52 PM

Quote:

Originally Posted by Hopyard

The plain text of the 14th says: "No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States"

Since the Bill of Rights in all its glory grants privileges or immunities to the citizens of the United States, it is certainly hard to see how your position can be correct---unless you want to argue the the privileges envisioned in the 14th are UNRELATED to the RIGHTS in the first 10, and that this was deliberate wording to draw the distinction.

The Bill of Rights does not provide privileges or immunities. It is an enumeration of restrictions on the Federal government. Privileges and immunities generally refers to contracts as it does in the full faith and credit clause.

I take it you have not yet read Fairman's work or even the previous thread in which this subject was thoroughly investigated.

Here is an excerpt for a Stanford law review of Rhenquist:

Quote:

In the fall of 1946, Fairman was developing views on the 14th Amendment that would prove influential among conservatives of the day, though Fairman himself did not identify with the political right. The amendment, adopted in 1868, provides: "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." Fairman argued that the framers of the amendment had not intended to apply the Bill of Rights to the states. The "privileges and immunities" of citizens the amendment protected were limited to such matters as the making of contracts and service on juries, he said. The federal government’s powers to fight discrimination or other abuses by the states would, accordingly, be limited. "This is not merely an academic question," Fairman wrote in a seminal 1949 Stanford Law Review article. "It presents itself insistently today because Justices of the Supreme Court are prepared to make decisions turn upon their reading of the historical record." Indeed, he wrote in direct rebuttal of Justice Hugo Black, who was taking the opposite view of history in his opinions at the court.

******As an assistant attorney general in the Nixon administration, and later as a justice, Rehnquist disagreed with the liberal Warren Court based on his view of the 14th Amendment.

Fairman’s narrow interpretation of the 14th Amendment likely came through in lectures to undergraduates such as Rehnquist. "He clearly taught that the 14th Amendment did not apply the Bill of Rights to the states," Davies recalls.
Throughout his career, Rehnquist has espoused a view of the 14th Amendment that emphasizes the rights of states to deal with issues ranging from capital punishment to various forms of discrimination, free of federal interference. As a law clerk for Justice Jackson, he told his boss in a memo that Plessy v. Ferguson, the 1896 decision that had upheld "separate but equal," should be affirmed. (When questioned about the memo during a Senate Judiciary Committee hearing about his nomination to the court in 1971, Rehnquist said this was a restatement of Jackson's views and did not reflect his own.)

Quote:

So, back to the the original issue, why isn't it understood that Heller applies to the states; that the "privileges and immunities" (rights) enshrined in 2A are not widespread per the 14th?

Because the 14th doesn't grant any suc prohibition on the states.

Quote:

I think I know the answer and I don't like it.

The answer is, large majorities of politicians, police departments, DAs offices, are going to do whatever they can to thwart the implementation of the Heller decision --and The Constitution be damned, will be their attitude. THe positions will be that we will continue to arrest, and continue to litigate till the cows come home.

The Bill of Rights does not apply to the states. That is what the Founders intended. Even Howard recognized that fact during the Fourteenth Amendment debate.

Just curious, but what do you think the following means:

Quote:

The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States.

falcon1 · July 5th, 2008, 01:32 PM

Evidently, not everyone gives total credence to Professor Fairman:

ON MISREADING JOHN BINGHAM

I have no idea who this author is, or if his "street cred" is as great as Professor Fairman's. My very cursory look at this (I'll need to read it fully later) does indicate that Professor Fairman is not the only person with an opinion on this issue, and perhaps not the only one that matters?

July 4th, 2008, 07:41 AM	#22
Al Lowe Member Join Date: Apr 2005 Location: Lansing, MI, USA Posts: 433	But in a sense, doesn't the 2nd Amendment, if taken as intended, already trump States' rights? __________________ Al Lowe Coordinator, Michigan Pink Pistols http://www.pinkpistols.us Member Board of Directors for Shooters' Alliance for Firearm Rights (a REAL Grassroots organization)

July 5th, 2008, 12:43 PM	#28
Al Lowe Member Join Date: Apr 2005 Location: Lansing, MI, USA Posts: 433	Amendment IX The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people. Amendment X 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 to the people. __________________ Al Lowe Coordinator, Michigan Pink Pistols http://www.pinkpistols.us Member Board of Directors for Shooters' Alliance for Firearm Rights (a REAL Grassroots organization)

July 5th, 2008, 01:32 PM	#30
falcon1 VIP Member Join Date: Jan 2006 Location: Tennessee Posts: 4,432	Evidently, not everyone gives total credence to Professor Fairman: ON MISREADING JOHN BINGHAM I have no idea who this author is, or if his "street cred" is as great as Professor Fairman's. My very cursory look at this (I'll need to read it fully later) does indicate that Professor Fairman is not the only person with an opinion on this issue, and perhaps not the only one that matters? __________________ If the public are bound to yield obedience to laws to which they cannot give their approbation, they are slaves to those who make such laws and enforce them.--Candidus (in the Boston Gazette, 20 January 1772)

Thread Tools
Show Printable Version Email this Page
Display Modes
Linear Mode Switch to Hybrid Mode Switch to Threaded Mode