SCOTUS erred incorporating 2nd?

[88GT]

So says this guy?

2nd Amendment Victory? An Opposing View – Tenth Amendment Center

The recent Supreme Court case, McDonald v. City of Chicago, has gun rights advocates celebrating. The National Rifle Association and the true champion of gun rights, Gun Owners of America, are hailing this as a landmark decision. As an avid gun enthusiast, collector, NRA Member and Pistol Instructor and life time member of GOA, I am deeply troubled. Let me explain why.

The Bill of Rights, including the 2nd Amendment, were never intended as a check on the powers of the States. They are intended as a check on the Federal government ONLY. The Preamble of the Bill of Rights opens with: “THE Conventions of a number of the States, having at the time of their adopting the Constitution, expressed a desire, in order to prevent misconstruction or abuse of its powers, that further declaratory and restrictive clauses should be added: And as extending the ground of public confidence in the Government, will best ensure the beneficent ends of its institution”. Prevent misconstruction or abuse of power from what? The Federal government of course!


In the Supreme Court case Barron v. Baltimore 32 U.S. 243 (1833), Chief Justice Marshall stated: “But it is universally understood, it is a part of the history of the day, that the great revolution which established the Constitution of the United States was not effected without immense opposition. Serious fears were extensively entertained that those powers which the patriot statesmen who then watched over the interests of our country deemed essential to union, and to the attainment of those invaluable objects for which union was sought, might be exercised in a manner dangerous to liberty. In almost every convention by which the Constitution was adopted, amendments to guard against the abuse of power were recommended. These amendments demanded security against the apprehended encroachments of the General Government — not against those of the local governments. In compliance with a sentiment thus generally expressed, to quiet fears thus extensively entertained, amendments were proposed by the required majority in Congress and adopted by the States. These amendments contain no expression indicating an intention to apply them to the State governments. This court cannot so apply them”.


Can’t be much clearer. The Bill of Rights, including the 2nd Amendment, are restrictions against the Federal government NOT the States.


Why then has supposedly Conservative Justices voted to expand the power of the Federal government by interfering in a clearly State matter? How did they come to their conclusions? Well, they would argue and have argued that the Fourteenth Amendment changed everything and made the Bill of Rights enforceable on the States. But does it? So many Supreme Court Justices, lawyers and supposed Constitutional Scholars agree that it does, so therefore, it does! But are they correct? Lets take a look. Here is the first section of the Fourteenth Amendment:


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.


Why was this Amendment passed? Well, it was ratified July 9, 1868 a few years after a bloody war. Some of the Southern States were trying to find ways to basically undue the 13th Amendment which freed the slaves. Laws were being passed that kept Black’s from enjoying their newly won freedom. The Fourteenth Amendment was passed to protect the rights of a recently enslaved people who were not considered citizens. This Amendment bestowed United States citizenship (different from State citizenship) on them. The Fifteenth Amendment, ratified nearly two years later, then bestowed upon them the right to vote.


Don’t take my word for it, here is Justice Henry Billings Brown in his majority Plessy v. Ferguson (1896) opinion:


“…but it was said generally that its main purpose (the 14th Amendment)was to establish the citizenship of the negro, to give definitions of citizenship of the United States and of the States, and to protect from the hostile legislation of the States the privileges and immunities of citizens of the United States, as distinguished from those of citizens of the States.” He goes on…“The object of the amendment was undoubtedly to enforce the absolute equality of the two races before the law, but, in the nature of things, it could not have been intended to abolish distinctions based upon color, or to enforce social, as distinguished from political, equality, or a commingling of the two races upon terms unsatisfactory to either.”


Now, just hold on all of you who are going to argue about this horrible, racist decision that upheld separate but equal laws. I add this because it shows a Supreme Court Justice’s understanding of what the 14th Amendment meant.


Next, another Supreme Court decision that lets us know what the true intent of the Fourteenth Amendment was:


The Slaughter House Cases (1873)
Justice Samuel Freeman Miller who was appointed by none other than Abraham Lincoln wrote extensively on the meaning of the 14th Amendment, particularly the “Privileges and immunities” clause. In his Slaughterhouse opinion he writes: “…We think this distinction and its explicit recognition in this amendment (14th) of great weight in this argument, because the next paragraph of this same section (1st paragraph, section 2), which is the one mainly relied on by the plaintiffs in error, speaks only of privileges and immunities of citizens of the United States, and does not speak of those of citizens of the several States. The argument, however, in favor of the plaintiffs rests wholly on the assumption that the citizenship is the same, and the privileges and immunities guaranteed by the clause are the same.



He goes on….”Of the privileges and immunities of the citizen of the United States, and of the privileges and immunities of the citizen of the State, and what they respectively are, we will presently consider; but we wish to state here that it is only the former which are placed by this clause under the protection of the Federal Constitution, and that the latter, whatever they may be, are not intended to have any additional protection by this paragraph of the amendment.”

An Abraham Lincoln appointee none the less!


So, what does this all mean? We have been hoodwinked by the Federal government and its minions in the Supreme Court. The Federal Frankenstein Monster continues to usurp power at the expense of the State governments and supposed Conservatives are marching in tune. They have drank the Kool-Aid and now believe in National Socialism.


We don’t want or need a Federal government interfering in a States right to regulate firearms. Remember, if Obama gets to pick a few more Justices a 5-4 majority could switch the other way and the Supreme Court could rule that the Federal government has the right to ban all firearms. Then what? The States were and should be the defenders of your individual freedoms. They did long before the current Constitution was in force. Here are some State Constitutions:


Virginia (1776)
SEC. 13. That a well-regulated militia, composed of the body of the people, trained to arms, is the proper, natural, and safe defence of a free State; that standing armies, in time of peace, should be avoided, as dangerous to liberty; and that in all cases the military should be under strict subordination to, and governed by, the civil power.


New York (1777)
XL. And whereas it is of the utmost importance to the safety of every State that it should always be in a condition of defence; and it is the duty of every man who enjoys the protection of society to be prepared and willing to defend it; this convention therefore, in the name and by the authority of the good people of this State, doth ordain, determine, and declare that the militia of this State, at all times hereafter, as well in peace as in war, shall be armed and disciplined, and in readiness for service. That all such of the inhabitants of this State being of the people called Quakers as, from scruples of conscience, may be averse to the bearing of arms, be therefrom excused by the legislature; and do pay to the State such sums of money, in lieu of their personal service, as the same; may, in the judgment of the legislature, be worth. And that a proper magazine of warlike stores, proportionate to the number of inhabitants, be, forever hereafter, at the expense of this State, and by acts of the legislature, established, maintained, and continued in every county in this State.


Massachusetts (1780)
Art. XVII. The people have a right to keep and to bear arms for the common defense. And as, in time of peace, armies are dangerous to liberty, they ought not to be maintained without the consent of the legislature; and the military power shall always be held in an exact subordination to the civil authority and be governed by it.


Connecticut:
SEC. 15. Every citizen has a right to bear arms in defense of himself and the state.

We are supposed to live in a Federal Republic where certain enumerated rights were DELEGATED to the Federal government. If you depend on the Federal government, like the NRA and GOA are doing now, you seek the help of the Devil. The States are where sovereignty resides. If the people of Chicago elect anti-gun politicians who will take away your right to defend yourself. So be it.

If the citizens of the Peoples Republic of New York allow their elected officials to trample our rights. Shame on us for not trying to defeat them. But if the people of Vermont and Alaska, Montana and Tennessee want to allow their citizens to own machine guns and carry firearms openly, thank God! Who is the Federal government to tell them they can’t? The Supreme Court decision in Mc Donald v. Chicago is just plain wrong and all Conservatives and Gun lovers who support this should rethink it.



If the States can’t make their own laws concerning Firearms then where does it end? The Federal government will and does dictate every aspect of your lives. The air you breathe, the food you eat, the company you keep and so on and so on. Let’s not be allured by the siren song of the Supreme Court and their supposed defense of our right to keep and bear arms. It’s none of their business. They are leading us right to the rocks and destruction.

I'm disturbed because I think he's right. But that would mean giving up some hard-fought "victories" (at least in theory). And in light of our current political reality, the sovereignty of the states is a distant and fading memory. It seems the only protection we have is in the form of incorporating federal limitations on the states.

ETA: bolding is author's.

[E5RANGER375]

He's not right. the constitutional laws overide state laws in the areas covered by it.

[jbombelli]

Some people would rather have their state take away their rights than have the feds affirm and protect them. They are idiots in my opinion.

[88GT]

Originally Posted by E5RANGER375

He's not right. the constitutional laws overide state laws in the areas covered by it.

That's what some people argue that the 14th amendment says. But his argument is that the 14th does NOT say this.

It's true that the BoR was intended as a limitation only on federal government. And the 14th was passed specifically because states were attempting to circumvent the 13th amendment by using state legislation to keep blacks from enjoying the "privileges and immunities" of (federal) citizenship. So the argument is that the "privileges and immunities" are limited somehow.

I've just re-read the 14th and I'm changing my mind (again). I think he's wrong too. I don't know how anybody can infer that there is a limit on which privileges and immunities are intended. Nor do I understand how one can separate the citizenship of an individual between the country and the state. We are citizens of the USA, but we are residents of a state.

[Archaic_Entity]

Originally Posted by 88GT

That's what some people argue that the 14th amendment says. But his argument is that the 14th does NOT say this.

It's true that the BoR was intended as a limitation only on federal government. And the 14th was passed specifically because states were attempting to circumvent the 13th amendment by using state legislation to keep blacks from enjoying the "privileges and immunities" of (federal) citizenship. So the argument is that the "privileges and immunities" are limited somehow.

I've just re-read the 14th and I'm changing my mind (again). I think he's wrong too. I don't know how anybody can infer that there is a limit on which privileges and immunities are intended. Nor do I understand how one can separate the citizenship of an individual between the country and the state. We are citizens of the USA, but we are residents of a state.

There's also Article VI of the Constitution in consideration, the Supremacy Clause:

"This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding."

Which, if I read it correctly, states that the Laws of the US supersede State laws. Granted I'm not a Constitutional scholar by any means. But it would definitely state the the Constitution overrides all laws as the supreme law, and thus the BoR falls under this distinction as well.

Some one feel free to contradict me if I'm wrong.

[Fargo]

Originally Posted by 88GT

I've just re-read the 14th and I'm changing my mind (again). I think he's wrong too. I don't know how anybody can infer that there is a limit on which privileges and immunities are intended. Nor do I understand how one can separate the citizenship of an individual between the country and the state. We are citizens of the USA, but we are residents of a state.

He is not wrong. Trace the Due Process and Privileges and Immunities clauses back to their common law roots and you will see that they are terms of art with very specific meanings; not terms of ordinary English.

If those clauses mean what you seem to think they mean, why was it not until the 1920's, nearly 60 years after their ratification and after their framers were long dead, that it was "discovered" that they incorporated select parts of the bill of rights? Remember, selective incorporation is still the rule, rights like the right to a grand jury are specifically excluded by the SCOTUS.

Pragmatically, we are so far down the road of federal supremacy and subordination of state sovriegnty that it makes little sense not to incorporate the 2nd amendment. However, legally it is not the correct thing to do. Rather, we the people should demand that its mirror language in the Indiana constitution be given effect:

Section 32. Arms--Right to bear

Section 32. The people shall have a right to bear arms, for the defense of themselves and the State.

Anyone who thinks the feds are going to provide you with any real "protection" of your rights is living a dream and begging for even more federal meddling outside of the enumerated powers.

Joe

[Fargo]

Originally Posted by Archaic_Entity

There's also Article VI of the Constitution in consideration, the Supremacy Clause:

"This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding."

Which, if I read it correctly, states that the Laws of the US supersede State laws. Granted I'm not a Constitutional scholar by any means. But it would definitely state the the Constitution overrides all laws as the supreme law, and thus the BoR falls under this distinction as well.

Some one feel free to contradict me if I'm wrong.

Reread the first line of the BoR and then go read Barron v. Baltimore 32 U.S. (7 Pet.) 243 (1833). The supremacy clause has nothing to do with the question because the BoR explicitly applies to the federal legislative power.

Best,


Joe

[E5RANGER375]

i do believe the states are more sovereign than the federal government though. Fargo, your right. things are too far gone to uderstand or even attempt to understand or rather, enforce things the way some was meant to be. one thing i do think is that the federal government was intended by our founders to be small. only large enough to protect the collective states from foreign invasion. its a shame where our country is at today.

[Archaic_Entity]

Originally Posted by Fargo

Reread the first line of the BoR and then go read Barron v. Baltimore 32 U.S. (7 Pet.) 243 (1833). The supremacy clause has nothing to do with the question because the BoR explicitly applies to the federal legislative power.

Best,


Joe

You know, it's hard to find the Preamble to the BoR, which is why I forgot about that line.

Furthermore, I can definitely see the ruling outcome of the Barron v Baltimore case clearly stating exactly what you're saying.

But let me throw this at you. This is through another forum I read, and was kind of curious where this goes. Bear in mind, it's kind of long.

Did the 2nd Amendment originally apply to only the Fed govt? Or state and local too?
This question is a spinoff from another thread, which deserves a separate thread of its own.

One of the most important results of the recent Supreme Court decision McDonald vs. Chicago (the gun-ban case), is the Court's statement that the 2nd amendment applies to city and state governments ACROSS THE COUNTRY, as well as the Federal govt.

This whole idea that "The 2nd amendment originally was meant to restrict only the Fed govt, not the states or cities", and which this USSC decision has finally changed, has always baffled me. The amendments themselves, have always specified which government(s) they are supposed to apply to. And where they don't name specific governments, that means the Framers meant them to apply to ALL governments in the country: Federal, state, and local.

The amendments (at least in the Bill of Rights) are, of course, restrictions on GOVERNMENT, not restrictions on people. Government isn't allowed to restrict this, or that right cannot be infringed BY GOVERNMENT, etc.

But look at the first two amendments. The first one starts by saying, "Congress shall make no law...." restricting or mandating religion, restricting freedom of speech, and several other things. That clearly says that it was originally a restriction on ONLY THE FEDERAL government - that's what it's plain language explicitly says. And a look at history shows that the Framers had good reasons to confine the 1st amendment's restrictions to only the Fed. In fact, when the Constitution and BOR were written and ratified, most states had official, state-sponsored religions! Often a different one for different states. And the 1st amendment was carefully written to NOT mess with that! It was designed to prevent the FED from mandating an official religion for the entire country, and to prevent it from restricting or banning any particular religion anywhere in the country. The States were to have the ability to do those things, but not the Fed. Same deal for the freedom of speech, freedom of the press, etc.

The 2nd amendment, however, is not like that. It is a flat ban on government restrictions on ordinary people's right to own and carry personal guns, swords, etc. (and it even provdes an explanation of why)... and it does NOT confine that ban to any particular government like the 1st does. And since it doesn't say which government(s) in the U.S. it applies to, that means it applies to ALL of them: Federal, state, city, etc. (Does anyone think it was supposed to apply to NO governments? Then what was the point in writing it at all?). That was the clear intention of the people who wrote and ratified it. Most of them were lawyers, and were keenly aware of the importance of such wording in a legal document. Specifying on "Congress" in the 1st, and not specifying any target govt in the 2nd, was no accident.

The Framers abhorred a powerful central government controlling large parts of societies. Their philosophy was that if something had to be controlled by government, it should be done on the smallest, most local level possible. Hence the design of the Constitution, which provided for a central government whose powers were limited to those listed, while state and local government's powers were NOT limited, except for a few things specifically listed in the Constitution.

The Framers weren't blind to the idea that SOME things should be universally banned throughout a country, whether the states liked it or not, and the Bill of Rights was designed to do this. Indeed, most amendments in the BOR named things govt was restricted from doing in criminal trials... and it was the State and local govts who conducted the vast majority of criminal trials. Those amendments do not say what govt they are supposed to restrict... but clearly they were intended to restrict state and local governments, as well as the Fed.

Does anyone think that the Framers intended to say that Federal courts could not put people in jeopardy twice for the same crime, but state and local courts COULD??? Of course not - they meant that NO govt (Fed, state, local) could impose double jeopardy in a criminal trial. Especially since nearly all criminal trials at the time, were conducted by state and local governments. But the 5th amendment contains no language specifying "all governments" - the Framers considered it obvious that that's what it meant, and so it does.

Or do you think that the Framers wanted criminal suspects to be provided with lawyers, only for trials in Federal courts, but people could be DENIED a laywer when being tried in state or local criminal courts? Of course not - the 6th amendment means that a suspect must have a lawyer provided whether his trial is in Fed, state, or local courts. Yet the 6th includes no language saying so - it merely says that the trial must be held in the area where the crime was committed. But it was clearly intended to apply to ALL courts, not just the Fed courts. Does anyone disagree?

Do suspects in significant crimes get jury trials only in Federal courts, but they can be denied jury trials in state or local courts? Again, of course not - but the 7th amendment doesn't say it includes state and local govt courts. The framers simply and clearly intended this amendment to apply to states and local govts, as well as the Fed, and we have always taken it that way... correctly.

Can anyone claim that state and local courts CAN impose cruel and unusual punishments, and that only the Fed is forbidden to do so? Again, of course not. Fed, state, and local governments are ALL forbidden by the 8th amendment from doing that... though the 8th doesn't explicitly say that it applies to state and local.

The 2nd amendment is no different. Like the 4th, 5th, 6th, 7th, and 8th amendments, it does not explicitly say which govt(s) it applies to. But jumping to the conclusion that it does NOT apply to the state and local govts while all the others DO apply, is farfetched to the point of being silly.

So where do people get the notion that the 2nd amendment didn't apply to state and local governments? Sure, it's "generally accepted". Just as "black people are inferior" was generally accepted, or "Only landowners can vote". Does "general acceptance" make it true, or even a good idea?

Certainly not.

Supreme Court Justice Sam Alito wrote into his Opinion in the recent case McDonald vs. Chicago, that "The 2nd amendment originally applied only to the Federal government,", before going on to state that the 14th amendment now changed that. But he never offered any citation or other support for his idea of the 2nd's original jurisdiction... because there is none, aside from "other people said so", with an equal lack of justification or backing.

In fact, the 2nd amendment has always been a ban on ANY government in the U.S. restricting the right to own and carry personal weapons. To consider it anything else, flies in the face of the clear meaning of nearly every other amendment in the BOR. In fact, only amendments that specifically declare particular government(s), are the ones that don't apply to ALL governments. And there is only one such amendment in the BOR: the 1st, which explicitly says "CONGRESS shall make no law....".

The 1st amendment's restriction to only "Congress", does not extend to the 2nd, any more than it extends to the 4th, 5th, 6th, 7th, or 8th amendments. The 2nd amendment has ALWAYS forbidden state and local governments from infringing on the right to keep and bear arms, as well as the Federal government.

This fact has been important (and ignored) for hundreds of years... until yesterday, June 28, 2010. On that date, the Supreme Court finally acknowledged that the 2nd applies to State and Local governments too. I guess all's well that ends well, even if the Supremes arrived at the right conclusion by the wrong route. They have finally gotten it right... that's the important part.

[88GT]

Originally Posted by Fargo

He is not wrong. Trace the Due Process and Privileges and Immunities clauses back to their common law roots and you will see that they are terms of art with very specific meanings; not terms of ordinary English.

If those clauses mean what you seem to think they mean, why was it not until the 1920's, nearly 60 years after their ratification and after their framers were long dead, that it was "discovered" that they incorporated select parts of the bill of rights? Remember, selective incorporation is still the rule, rights like the right to a grand jury are specifically excluded by the SCOTUS.

I'm assuming you meant 1820s.

Perhaps, in answer to your question, there was never a need to "discover" incorporation until this point. Perhaps states had previously been operating under the premise that no government has the power or authority to take what God has given man. Inalienable and inherent means just that. Why would a state be allowed to do what a federal government could not? Government, regardless of the scope, is still government. And I cannot imagine that the framers considered state governments to be wholly different in scope and nature from the federal government.

Any student of history will recognize that governments only grow in power. The fact that there was a need for incorporation at all only proves that states were moving in that direction. Perhaps it was the only legal way to prevent tyranny on a state level. I don't know. Just throwing out ideas.

What I do know is this: just because something is done a particular way doesn't make it right or even legal. States have no more authority to trample on the rights of its residents than the federal government does. Or else inalienable doesn't mean what we think it means.

Moreover, selective incorporation is a judicial farce. The very idea that that incorporation can be applied in a pick-and-choose fashion ignores, once again, the inalienable nature of our rights. It either applies to all of them or none of them. That the courts saw fit to piecemeal the process does not make it right. It only made it precedent.

I reject the premise that "the way it's done is the way it should be." It is NOT the standard by which I judge issues.

Pragmatically, we are so far down the road of federal supremacy and subordination of state sovriegnty that it makes little sense not to incorporate the 2nd amendment. However, legally it is not the correct thing to do. Rather, we the people should demand that its mirror language in the Indiana constitution be given effect:

I agree with you on the first part about the sovereignty of the states being subordinated almost out of existence. However, to take the side of the author in the article necessarily requires accepting as satisfactory the premise that a portion of the population can infringe on the liberties of their neighbors through the power and authority of the legislator. Tyranny is tyranny. That it is wielded through the proper legal channels doesn't make it acceptable or right.

The hang-ups on the legalistic arguments of this debate ignore the most basic issue of what it means to be free.

Anyone who thinks the feds are going to provide you with any real "protection" of your rights is living a dream and begging for even more federal meddling outside of the enumerated powers.

I agree with this as well. However, since recent times has shown little evidence of respect by the population, state legislatures, or Congress, of any of the judiciary on ANY level for the sovereignty and supremacy of the INDIVIDUAL, what would suggest we do?

I'm not being snarky. It's a thought that consumes me at times because it's a snowball's chance in hell that rule of law can be used to restore this country to its intended purpose(s). The alternatives are unsettling, to say the least.