SelfDefense

Indeed. his has been a topic of debate and extremely devisive for almost 150 years. I find Fairman's argument compelling so I espouse that view. I am also a staunch state's rights advocate. I respect the other opinion, as well. Bingham certainly said on a number of occassions that he intended the Amendment to encompass the Bill of Rights. However, the language of the Amendment does not support that view. Also, the way it was presented to the states is inconsistent with that interpretation. What state would vote to have their own sovereign laws overturned? The Fourtenth Amendment is to extend due process to the newly freed slaves. That's it.

Professor Fairman is criticized by some but that does not detract from his work. Supreme Court Justice Frankfurter completely agreed with Fairman and atypical of retired Justices, he often spoke about the Fourteenth in his later years.

The one thing most everyone agrees on is that the Founders never intended the Bill of Rights to be enforced on the states. And I will always defer Constitutional questions to the intent of the Founders.

I do agree that the states should pass laws that prohibit state's governments from infringing on our God given rights. But they are not compelled to do so.

Hopyard

Then, how in the world would Miranda apply to the states? And it clearly does, even though that was (if memory serves), an Arizona case.

While I appreciate the intellectually interesting--though I think quite over the top 'conservative' viewpoint on these issues, something has to be wrong with the argument; otherwise Miranda would have applied only to Arizona. Brown only to the school district involved, and many many more.

So again, where in the world are people coming from when they claim this Heller 2A ruling does not apply everywhere?

Again, I think the answer has much less to do with law and much more to do with a "belief" or hope on the part of many officials that they can defy this one and get away with it because local judges will find "excuses" and rationalizations such as we are reading here to fail to apply the law.

I do think I read that NRA's suit against SF is based on the 14th; but, I remain amazed that it is necessary.

"Everyone" is acting as if the SC's ruling was just a minor nuisance and not a statement of what the law in the US is. And, that ain't the way it is supposed to work; per my perhaps naive tiny little bit of understanding.

SelfDefense

It applies only because the state's deferred to the opinion. The Court cannot enforce anything. They do not have that power.

I assume you read my post that explained Brown v BOE was a 'class action' case that was a composite of at least three states.

It is interesting that you think the views of Madison, Hamilton and Jay are 'conservative'. You are correct! They never intended the Bill of Rights to apply to the states, which is why people think the 14th 'incorporates' the Bill of Rights on the states. Otherwise, there would not even be a discussion. Even Senator Howard, a strong proponent of Bingham's concept, acknowledged that irrefutable fact. It is disturbing that so manywant to make the Constitution a 'living document.' which is exactly what the incorporation nonsense is all about. It is the height of arrogance and judicial activism to undermine the intent of the Founders.

Why do you think states have their own constitutions?

It applies to the specific case, as does every other Court opinion. Others are choosing to bring different suits in other jurisdictions. They are different cases with different sets of facts.

The Court does not make the law. It does not apply the law. It does not enforce the law. It simply renders an opinion.

In the name of state sovereignty, I hope California wins. The Federal government provides quite enough intrusion into our lives, thank you.


It is not a minor nuisance. If enforced, it will allow DC residents to have handguns in their homes.

Hopyard

I think you are reasoning from an unsound if not wishful viewpoint concerning state's right; one which has long been fairly well discredited and certainly totally ignored.

The law is ultimately what the SC says it is, and law abiding officials should be obeying it---or possibly face sanctions in the form of damages for rights violations or in the extreme, Federalization of their National Guard.

There is a right to keep (and possibly?) bear arms. The court has been explicit on that. The right extends to all--through the 14th if you prefer it that way-- but merely because now that the court has spoken, that is the way it is.

Except-- somehow, that isn't the way it is in this instance. Commentators on TV and radio, local officials, all seem to feel they can ignore what the court decided.

Following Miranda wasn't voluntary; believe me there was stiff opposition in many police departments. It was followed because it was "the law" and officials feared the penalty for the rights violations which would accrue if they ignored it.

That fear, seems nowhere in the gun case we are discussing. The issue is not one of law, but of psychology. For some reason, folks are acting as if this one doesn't count; and we even get extreme conservatives like yourself SD, who think hell should freeze before it does.

The alleged originalist view that the Bill of Rights doesn't apply to the states has long gone. That is why there is often litigation about the conduct by local police of one form or a search or another. If the 4th didn't apply to the states, those cases would never reach the SC.

And the First clearly applies to the states or there would not have been "flag burning" cases reaching the SC.

The reactions to Heller are strange stuff. That is all I can say. Strange stuff.

SelfDefense

No, the reasoning is certainly not unsound thoughyou might be correct that it is wishful thinking we could revert bact to our roots as a nation. And the view has never been discredited though it has been virtually ignored.

I find it ironic that so many complain about the 'heavy hand' of the Federal government but have no problem when the actions of the Federal government agree with their politics.

The Court has no power to enforce their opinions. That's all they are: opinions. The Court cannot sanction the states nor impose any penalty. They must rely on the Executive or Legislative branch for lawmaking or enforcement. The recent opinion allowing the enemy in a time of war access to civilian courts is particularly disturbing. Worse, President Bush decided to toss away the lenient and effective procedures and go along with the Court's despicable opinion. Bush was under no obligation to kowtow to the Court and it significantly weakens the power of the Executive to allow our national security to be so compromised.

This could not be more wrong. It doesn't matter what the Court says. The right is God given and enjoyed by all men. The Consitution prohibits the Federal government from infringing on those rights. The right does extend to all. But the states are under no obligation to abdicate their sovereignty.

Commentators in the media are of no consequence. The Court's decision concerned Heller and the law in Washington DC. It has no further direct effect. We have seen other juristictions change their policies because it is the right thing to do. If the Court made them understand the error of their ways then the Court's opinion was valuable. But the Court has no power to make laws.

It is voluntary. The consequence is that guilty criminal will be released. There is no penalty to be feared.

It does count. In the Federal jurisiction of Washington DC, the Federal government has a Constitutional prohibition from infringing on the right to keep and bear arms. Scalia was very thorough in parsing the language that a third ader could recognize (thogh four men in robes couldn't figure it out.) Wouldn't it be ironic if DC was the only place where it was not illegal to carry machine guns without registration as the clause 'shall not be infringed' might represent to some?

Sounds like the living Constitution view. Perhaps we should progress from the Founders to world opinion or perhaps allow the UN to dictate American laws. In any event, I'm sure you agree that the original intent of the Constitution no longer applies, yes?

Al Lowe

What I see as having been virtually ignored is that as stated numerous times, (in numerous places) the 2nd Amendment does not give us the right to keep and bear arms, any more than any state law or state constitution does. The 2nd amendment merely protects that right. Whether or not any state law or constitution says so, we still have the right to self-defense, and as an extension, the tools necessary to exercise those rights.

We still have the right to keep and bear arms, even without the 2nd Amendment. Just as we also have the right to free speech, freedom of religion, trial by a jury of our peers, the right to not testify against ourselves.

But it seems that government isn't the only entity that has forgotten those rights. Many of us, have forgotten them also. And this is in spite of all the amendments and the Constitution.

How many of us have run into US law enforcement officers, under the mistaken impression that if there isn't a law saying we can do something, then it must be illegal? Where do they get this idea? Where does anyone get the idea that a right not granted by law, doesn't exist?

It still exists, but if we don't properly exercise our rights, we will lose them, by ignorance, as well as by legislation. If for no other reason than this, we must press on for open carry, and eliminate any bans that exist.

States rights should not usurp the rights of the individual citizen. The idea of free, elected governments is to serve the citizens, not rule them. If we are ruled, then we are not free. If we are not free, we are not citizens, we are slaves.

__________________
Al Lowe
Coordinator, Michigan Pink Pistols
http://www.pinkpistols.us
Member Board of Directors for
Shooters' Alliance for Firearm Rights
(a REAL Grassroots organization)

kazzaerexys

Actually, the other sentences are correct, too. I said what has happened in the history of Supreme Court decisions. More rights have been held to be incorporated as time goes on.

I never mentioned the Fourteenth Amendment.

__________________
“What is a moderate interpretation of [the Constitution]? Halfway between what it says and [...] what you want it to say?”

—Justice Antonin Scalia

tinkerinWstuff

I'm glad this thread has been allowed to continue. Based on the debate continueing here, I'm going to have to review my own opinion on the Bill of Rights and how that reflects on States Rights. Another reason which I didn't see mentioned in the 4 pages of this thread:

Scalia himself cites several state's constitutions (or bill or rights) in his decision as having given their citizens the right to bear arms so how could the Federal 2A be the right of a state run militia and not that of the people?

BAC

We might not see eye-to-eye on national security measures, but I can find no fault with this statement. Well said.

To respond to the original post, open carry bans are perfectly constitutional if the state provides it. Presser raises some interesting questions, but so far it's been held by the US Supreme Court (Aymette v. The State, 21 Tenn) that the states decide what modes of carry (concealed v. open) are permissable. Federal gov't can't say one way or another; it lacks the authority to say one way or another.


-B

Al Lowe

Actually, Justice Scalia cites that the 2nd Amendment as well as several state constitutions "protect" the right to keep and bear arms. The right to keep and bear arms is generally recognized as one of the natural, or "God given" rights.

This is what we must always keep in mind. The reason being, any right "given" by law, can be taken away by law. What is not given by government, cannot be taken away. Not without a fight anyway.

Some may argue that our rights have already been taken away. In some states, this is likely to be correct. But that's mostly because, "We, the people" let the government do this. To a degree, I think this is what the Open Carry movement is all about, taking back those rights.

Whether you think OC is a good idea or not, doesn't matter. It is our right, and we need to see that it continues to be protected.

__________________
Al Lowe
Coordinator, Michigan Pink Pistols
http://www.pinkpistols.us
Member Board of Directors for
Shooters' Alliance for Firearm Rights
(a REAL Grassroots organization)