The 2nd Amendment is Your Gun Permit? I Think Not!

[Redhorse]

And when the twenty-eighth Amendment to the Constitution of the United States bans all firearms, curios, relics, functioning and non-functioning replicas of firearms, and demands summary execution of anyone found to possess any items which could constructively be used to assemble an illegal firearm via uncontrolled and unrestrained search-and-seizure emergency procedure to explicitly search for firearms, then we're simply to roll over and accept that as Constitutional, everyone. After all, it's in the Constitution, isn't it?

It is not just the letter of the law that matters, Bill - it is the spirit of the law. We repealed the eighteenth Amendment and supplanted it with the twenty-first Amendment precisely because we felt that the former was un-Constitutional in its spirit. It was, after all, already in the document, so it was absolutely Constitutional by the letter of what was written. But because the people eventually agreed that it was un-Constitutional in its prohibition, it was repealed and rescinded. If I bake an apple pie and use wholly rotten apples, is it still an apple pie? Technically yes, in form, but it is not so much an apple pie in what an apple pie is supposed to and intended to be. Similarly, as you yourself noted, Bill:



- which would wholly supplant and rescind any power to issue sweeping commands to the several States, wouldn't it? Or would it? I'm of the mind that an author chooses words with deliberation and deliberately, if not wholly accurately, then at least with specific intent.

Just my respectful thoughts on the matter. I'm sure your reasoned opinion and that of most others will probably differ, but that's why I don't think of incorporation as a legitimate course of action, even though it is written into our founding document: I believe by its nature it tends to violate the precepts and principles of the rest of the document as a whole and being so in violation of its own principles, is un-Constitutional as a matter of course and spirit.

In order to add an amendment to the constitution 3/4 of the states have to ratify it. Also in order for said 28th amendment to be added the 2nd has to be repealed which can only be done by ratifying an amendment to do so. There'll never be enough states that support such an action, not in our lifetime at least. Also, over 300 million guns are expected to be in the United States. Removing them a logistical nightmare.

 

[HeadlessRoland]

In order to add an amendment to the constitution 3/4 of the states have to ratify it. Also in order for said 28th amendment to be added the 2nd has to be repealed which can only be done by ratifying an amendment to do so. There'll never be enough states that support such an action, not in our lifetime at least. Also, over 300 million guns are expected to be in the United States. Removing them a logistical nightmare.

That wasn't at all my point. At all.

 

[Redhorse]

And when the twenty-eighth Amendment to the Constitution of the United States bans all firearms, curios, relics, functioning and non-functioning replicas of firearms, and demands summary execution of anyone found to possess any items which could constructively be used to assemble an illegal firearm via uncontrolled and unrestrained search-and-seizure emergency procedure to explicitly search for firearms, then we're simply to roll over and accept that as Constitutional, everyone. After all, it's in the Constitution, isn't it?

It is not just the letter of the law that matters, Bill - it is the spirit of the law. We repealed the eighteenth Amendment and supplanted it with the twenty-first Amendment precisely because we felt that the former was un-Constitutional in its spirit. It was, after all, already in the document, so it was absolutely Constitutional by the letter of what was written. But because the people eventually agreed that it was un-Constitutional in its prohibition, it was repealed and rescinded. If I bake an apple pie and use wholly rotten apples, is it still an apple pie? Technically yes, in form, but it is not so much an apple pie in what an apple pie is supposed to and intended to be. Similarly, as you yourself noted, Bill:



- which would wholly supplant and rescind any power to issue sweeping commands to the several States, wouldn't it? Or would it? I'm of the mind that an author chooses words with deliberation and deliberately, if not wholly accurately, then at least with specific intent.

Just my respectful thoughts on the matter. I'm sure your reasoned opinion and that of most others will probably differ, but that's why I don't think of incorporation as a legitimate course of action, even though it is written into our founding document: I believe by its nature it tends to violate the precepts and principles of the rest of the document as a whole and being so in violation of its own principles, is un-Constitutional as a matter of course and spirit.

With all due respect this is the introductory statement to your argument. I understand you're presenting an example of something that would be constitionual under this given amendment. I merely pointed out the unlikelyhood of it. Unfourtnatly the states are tied to what's in the constitution due to the surpremcy clause and because they ratified it knowing full well that said clause was in it. The Articles of Confederation (which gave the states a considerable amount of more power than the central governemnt) proved to be too problematic in running the country. That's where a lot of all of this stems down to. Now if I'm still missing you're point I apologize.

 

[Bill of Rights]

I'm disappointed, Roland. You know full well that I wasn't saying it didn't infringe. Just because something is Constitutional does not make it right, as exemplified by the 3/5 compromise and the exclusion, prior to the 19th Amendment, of women from the polls. I was saying that the several states had all had opportunity to examine
the amendment and chose to ratify it. If we want it to not be Constitutional, we would have to introduce and pass another amendment, just as was done in your example of the 18th and 21st Amendments. BTW, the 18th was never unConstitutional. I won't detail the procedure to amend the Constitution, as I'm sure you know it; the 18th was repealed, making it "non-Constitutional"... It's a subtle but important difference that I'm sure you recognize as easily as everyone else.

There is nothing in the Constitution that either allows or forbids me from wearing a red shirt. If I wear that shirt, is it unConstitutional for me to do so? Of course not; it's simply not addressed. Likewise, the 18th Amendment was repealed, and thus, the Constitution does not address the issue of consumption of alcoholic beverages.

Getting back to the issue at hand, if the 28th Amendment you propose is introduced, as has been said, it will not be ratified... the votes simply are not there to do so, which is why we often use the answer to the anti-gun people that if they stand so strongly, they need to introduce an amendment to repeal the 2A. We can say that with confidence, knowing that the votes to do so simply are not there.

No, the supremacy of the Constitution was there as a basic framework, telling government, specifically the newly-created federal government in the post-Articles of Confederation era, what it could not do. The Constitution was intended to direct our national leaders and give them a rulebook to follow. Unfortunately, just as we see in the microcosm that is INGO, when a rule is made, people instantly start looking for ways around it: "must have 50 quality posts" instantly leads to people making posts of "1", "2", "3", and so forth. They aren't quality, but the posters doing that know it and count on a mod not catching it before they get their post into the Classifieds and make their deal.

You are welcome to your opinion, and I respect both it and your right to disagree with me. As it stands now, incorporation is the law of the land, which is what allows for the Constitution to be applied, for good or ill, against the states as well as the fed. I like that Heller was decided in our favor. I would have liked more to see the Constitutional demand that the states recognize the acts and so forth of each other, used to achieve the same goal. This would, IMHO, have been the more liberty-conscious means of addressing that problem.

As I said, I like your posts, and you hit the nail on the head often. I just disagree with you that incorporation is without derived authority.

Blessings,
Bill

Well there we have it, incorporation is totally legitimate and everyone should stop whining about it infringing upon the rights of the several States.

And when the twenty-eighth Amendment to the Constitution of the United States bans all firearms, curios, relics, functioning and non-functioning replicas of firearms, and demands summary execution of anyone found to possess any items which could constructively be used to assemble an illegal firearm via uncontrolled and unrestrained search-and-seizure emergency procedure to explicitly search for firearms, then we're simply to roll over and accept that as Constitutional, everyone. After all, it's in the Constitution, isn't it?

It is not just the letter of the law that matters, Bill - it is the spirit of the law. We repealed the eighteenth Amendment and supplanted it with the twenty-first Amendment precisely because we felt that the former was un-Constitutional in its spirit. It was, after all, already in the document, so it was absolutely Constitutional by the letter of what was written. But because the people eventually agreed that it was un-Constitutional in its prohibition, it was repealed and rescinded. If I bake an apple pie and use wholly rotten apples, is it still an apple pie? Technically yes, in form, but it is not so much an apple pie in what an apple pie is supposed to and intended to be. Similarly, as you yourself noted, Bill:



- which would wholly supplant and rescind any power to issue sweeping commands to the several States, wouldn't it? Or would it? I'm of the mind that an author chooses words with deliberation and deliberately, if not wholly accurately, then at least with specific intent.

Just my respectful thoughts on the matter. I'm sure your reasoned opinion and that of most others will probably differ, but that's why I don't think of incorporation as a legitimate course of action, even though it is written into our founding document: I believe by its nature it tends to violate the precepts and principles of the rest of the document as a whole and being so in violation of its own principles, is un-Constitutional as a matter of course and spirit.

 

[HeadlessRoland]

I'm disappointed, Roland. You know full well that I wasn't saying it didn't infringe. Just because something is Constitutional does not make it right, as exemplified by the 3/5 compromise and the exclusion, prior to the 19th Amendment, of women from the polls. I was saying that the several states had all had opportunity to examine
the amendment and chose to ratify it. If we want it to not be Constitutional, we would have to introduce and pass another amendment, just as was done in your example of the 18th and 21st Amendments. BTW, the 18th was never unConstitutional. I won't detail the procedure to amend the Constitution, as I'm sure you know it; the 18th was repealed, making it "non-Constitutional"... It's a subtle but important difference that I'm sure you recognize as easily as everyone else.

There is nothing in the Constitution that either allows or forbids me from wearing a red shirt. If I wear that shirt, is it unConstitutional for me to do so? Of course not; it's simply not addressed. Likewise, the 18th Amendment was repealed, and thus, the Constitution does not address the issue of consumption of alcoholic beverages.

Getting back to the issue at hand, if the 28th Amendment you propose is introduced, as has been said, it will not be ratified... the votes simply are not there to do so, which is why we often use the answer to the anti-gun people that if they stand so strongly, they need to introduce an amendment to repeal the 2A. We can say that with confidence, knowing that the votes to do so simply are not there.

No, the supremacy of the Constitution was there as a basic framework, telling government, specifically the newly-created federal government in the post-Articles of Confederation era, what it could not do. The Constitution was intended to direct our national leaders and give them a rulebook to follow. Unfortunately, just as we see in the microcosm that is INGO, when a rule is made, people instantly start looking for ways around it: "must have 50 quality posts" instantly leads to people making posts of "1", "2", "3", and so forth. They aren't quality, but the posters doing that know it and count on a mod not catching it before they get their post into the Classifieds and make their deal.

You are welcome to your opinion, and I respect both it and your right to disagree with me. As it stands now, incorporation is the law of the land, which is what allows for the Constitution to be applied, for good or ill, against the states as well as the fed. I like that Heller was decided in our favor. I would have liked more to see the Constitutional demand that the states recognize the acts and so forth of each other, used to achieve the same goal. This would, IMHO, have been the more liberty-conscious means of addressing that problem.

As I said, I like your posts, and you hit the nail on the head often. I just disagree with you that incorporation is without derived authority.

Blessings,
Bill

Not sure why everyone is so hung up on ratification, as that's obviously included in the the example hypothetical twenty-eighth Amendment I posed, and doesn't change its un-Constitutionality and illegitimacy. Moreover, I don't find ex-nihilo distinction of non-Constitutional from un-Constitutional to be persuasive. The Constitution addresses every aspect of governance - even if something is not explicitly mentioned, anything either falls within or without of the established enumeration of government powers and abilities. The mere absence of explicit mention in the Constitution does not make anything 'non-Constitutional,' it simply makes it not explicitly mentioned, but rather, implicitly mentioned elsewhere. It's a very thorough and encompassing document.

As to explicit mentions, nowhere in Article I Section 8 does it establish a procedure for government granting itself more powers. Only a few powers, specifically, are explicitly granted to the national government. Even the stretched 'necessary and proper' clause only refers to the creation of laws in furtherance of the foregoing powers, not that the national government shall create laws that further expand its own powers. An author chooses words with intent, and the intent was clearly not that government shall make (and ratify) every un-Constitutional usurpation of power that it can conceive and that those usurpations shall thus qualify as Constitutional simply because proper procedure has been followed. Surely not.

 

[Bill of Rights]

Simply put, ratification of an amendment is what makes something in that amendment Constitutional. Incorporation of portions of the Constitution w/r/t the states was something the 14A allowed.

Gov't may have introduced the 14A, but it was the people who agreed to it. That's a grant of power by the people, not by the gov't, to the gov't, by itsef.

Again, I'm not saying incorporation is right. I'm only saying that being IN the Constitution is what makes something Constitutional, by definition.

The Interstate Commerce clause is the most abused part of the Constitution, and it wasn't in an amendment at all.... it is being used and abused in a patently wrong way, destructive of liberty, but it IS Constitutional, by definition.



Blessings,
Bill

Not sure why everyone is so hung up on ratification, as that's obviously included in the the example hypothetical twenty-eighth Amendment I posed, and doesn't change its un-Constitutionality and illegitimacy. Moreover, I don't find ex-nihilo distinction of non-Constitutional from un-Constitutional to be persuasive. The Constitution addresses every aspect of governance - even if something is not explicitly mentioned, anything either falls within or without of the established enumeration of government powers and abilities. The mere absence of explicit mention in the Constitution does not make anything 'non-Constitutional,' it simply makes it not explicitly mentioned, but rather, implicitly mentioned elsewhere. It's a very thorough and encompassing document.

As to explicit mentions, nowhere in Article I Section 8 does it establish a procedure for government granting itself more powers. Only a few powers, specifically, are explicitly granted to the national government. Even the stretched 'necessary and proper' clause only refers to the creation of laws in furtherance of the foregoing powers, not that the national government shall create laws that further expand its own powers. An author chooses words with intent, and the intent was clearly not that government shall make (and ratify) every un-Constitutional usurpation of power that it can conceive and that those usurpations shall thus qualify as Constitutional simply because proper procedure has been followed. Surely not.

 

[HeadlessRoland]

So the Twenty-Eighth Amendment, included, ratified, and present in our hypothetical future Constitution is totally legitimate. Let the executions commence! Robespierre is surely smiling up at us. Nevermind that such an Amendment is clearly against the spirit and intent of the document as originally written and contravenes both human decency and over two hundred thirty years of prior law, turn them in, Mr. and Mrs. American, or face death. Dianne Feinstein's dream has come true, simply because 50% plus one of three-quarters of the several States have agreed with the majority of the cloistered coven of vampires on Capitol Hill that it is fine and now Constitutional to deprive their fellow countrymen of the right of self-defense on pain of death. No. The Constitution is structured as a bulwark against populism, against the prevailing tyranny and terror of the day. Never was it intended to lend legitimacy to illegitimate usurpation of powers not expressly delegated to the national government. If so, it would have been much simpler to just establish democracy and to sit back while the fledgling country self-imploded. All hail the new age where whatever gets popular support and tacked onto the end of the document receives just as much cover of legitimacy as the original document itself, despite the latter being completely in contravention of what came before it, just by virtue of sharing the same parchment. Your old society, your old order, is dead. All hail, the new world order. Anything goes, all Amendments 1-27 are struck down and rescinded, you have no innate rights, government grants you whatever it sees fit, and by God, you'll like it or perish.

I think not, Bill, with all due respect. Substance is just as important and determinative as inclusion. But that's just my view on it. Again, what is an apple pie made of wholly rotten apples? A pie? Something you would want to eat? Or a false premise of what an apple pie should be? Does form follow function? Regardless, it is a pie I would not eat, nor is it something I would have anyone else eat - or be forced to live under. We're now a nation awash in bad apples and over-reaching, un-Constitutional laws. I do not find the solution to be falsely lending color of legitimacy to those apples and laws to make them more palatable. Rather, we should be removing the rotten and restoring the Republic and restraining government back within its allotted powers. Not granting authority to its excesses and illegitimate seizures of power.

 

[Bill of Rights]

So the Twenty-Eighth Amendment, included, ratified, and present in our hypothetical future Constitution is totally legitimate. Let the executions commence! Robespierre is surely smiling up at us. Nevermind that such an Amendment is clearly against the spirit and intent of the document as originally written and contravenes both human decency and over two hundred thirty years of prior law, turn them in, Mr. and Mrs. American, or face death. Dianne Feinstein's dream has come true, simply because 50% plus one of three-quarters of the several States have agreed with the majority of the cloistered coven of vampires on Capitol Hill that it is fine and now Constitutional to deprive their fellow countrymen of the right of self-defense on pain of death. No. The Constitution is structured as a bulwark against populism, against the prevailing tyranny and terror of the day. Never was it intended to lend legitimacy to illegitimate usurpation of powers not expressly delegated to the national government. If so, it would have been much simpler to just establish democracy and to sit back while the fledgling country self-imploded. All hail the new age where whatever gets popular support and tacked onto the end of the document receives just as much cover of legitimacy as the original document itself, despite the latter being completely in contravention of what came before it, just by virtue of sharing the same parchment. Your old society, your old order, is dead. All hail, the new world order. Anything goes, all Amendments 1-27 are struck down and rescinded, you have no innate rights, government grants you whatever it sees fit, and by God, you'll like it or perish.

I think not, Bill, with all due respect. Substance is just as important and determinative as inclusion. But that's just my view on it. Again, what is an apple pie made of wholly rotten apples? A pie? Something you would want to eat? Or a false premise of what an apple pie should be? Does form follow function? Regardless, it is a pie I would not eat, nor is it something I would have anyone else eat - or be forced to live under. We're now a nation awash in bad apples and over-reaching, un-Constitutional laws. I do not find the solution to be falsely lending color of legitimacy to those apples and laws to make them more palatable. Rather, we should be removing the rotten and restoring the Republic and restraining government back within its allotted powers. Not granting authority to its excesses and illegitimate seizures of power.

There is a story about the shortest military message ever sent... I forget the actual players and I'm going to be lazy and not look it up right now. I *think* it was Sparta and some other invasion force, who told the Spartans, "If we invade your coast, we will pillage your businesses, rape your women, enslave you... (and various other horrors)" as an entreaty to them to surrender and avoid that fate.

The response: "If."

Roland, you're proposing the hypothetical 28A and then taking it to the extreme conclusion, reductio ad absurdum, and forgetting the fact that while it is theoretically possible that 38 of our 50 states could ratify such an amendment, that possibility is more remote than me winning the powerball jackpot 10 times in a row. We can hardly get an amendment (ANY amendment!) proposed, let alone agreed to by a supermajority of Congress prior to going to a public referendum. I submit that if we get to the point where that amendment is even introduced, let alone brought to the Houses of Congress for discussion preceding a vote, we have far larger problems than worrying about house to house confiscation raids.

The very point you make, that substance is as (and I would say more so) important as inclusion, is what will keep that amendment from even being put on paper by anyone in power.

As to your pie question, yes, it would be an apple pie, but it would be a pie I would choose to decline to eat, which is to say, I would vote against it just as you would. The primary point is simply that something IN the Constitution is by definition Constitutional. You want to say that this, that, or whatever law is unConstitutional, we can talk, and I'll probably agree with you. The other, though, to take your example, is to try to define those apples as not being apples, or not being grown on trees, solely because they were rotten when the pie was made. I'll agree they're no longer suitable to be called human food, but I won't agree they aren't apples.

Fair enough?

Blessings,
Bill

 

[HeadlessRoland]

There is a story about the shortest military message ever sent... I forget the actual players and I'm going to be lazy and not look it up right now. I *think* it was Sparta and some other invasion force, who told the Spartans, "If we invade your coast, we will pillage your businesses, rape your women, enslave you... (and various other horrors)" as an entreaty to them to surrender and avoid that fate.

The response: "If."

Roland, you're proposing the hypothetical 28A and then taking it to the extreme conclusion, reductio ad absurdum, and forgetting the fact that while it is theoretically possible that 38 of our 50 states could ratify such an amendment, that possibility is more remote than me winning the powerball jackpot 10 times in a row. We can hardly get an amendment (ANY amendment!) proposed, let alone agreed to by a supermajority of Congress prior to going to a public referendum. I submit that if we get to the point where that amendment is even introduced, let alone brought to the Houses of Congress for discussion preceding a vote, we have far larger problems than worrying about house to house confiscation raids.

The very point you make, that substance is as (and I would say more so) important as inclusion, is what will keep that amendment from even being put on paper by anyone in power.

As to your pie question, yes, it would be an apple pie, but it would be a pie I would choose to decline to eat, which is to say, I would vote against it just as you would. The primary point is simply that something IN the Constitution is by definition Constitutional. You want to say that this, that, or whatever law is unConstitutional, we can talk, and I'll probably agree with you. The other, though, to take your example, is to try to define those apples as not being apples, or not being grown on trees, solely because they were rotten when the pie was made. I'll agree they're no longer suitable to be called human food, but I won't agree they aren't apples.

Fair enough?

Blessings,
Bill

Interesting assessment of my rotten apple analogy. I think that's a fairly fair assessment.

 

[ShootnCut]

After invading Greece and receiving the submission of other key city-states, Philip II of Macedon sent a message to Sparta: "If I win this war, you will be slaves forever." In another version, he warned: "You are advised to submit without further delay, for if I bring my army into your land, I will destroy your farms, slay your people, and raze your city." According to both accounts, the Spartan ephors replied with one word: "If" Subsequently neither Philip nor Alexander attempted to capture the city.

 

[sb0]

Okay, am I missing something here? Because this is nonsense.

The 2nd, 4th, 5th, etc. apply universally to both the fed gov and the states.

That was the whole point.

No state government can violate these basic rights, and if they do, the feds can step in.

 

[Bill of Rights]

They do? Because as I understand it, there is a provision in the 6A (I think, may be the 7A, and I can't check just now) that has to do with Grand Jury reviewing the evidence in trials, and the states are not held to that provision. If one of our Legal Eagles will fill in the details, I'd appreciate it.

The BoR was not held to apply to the several states until the 14A, although most had similar provisions in their own Constitutions.

I understand why you'd think what you wrote, as that's been most of our experience, most of our lives, but if it were true, we would not have needed the Heller and McDonald cases to incorporate the 2A against the states.

Blessings,
Bill

Okay, am I missing something here? Because this is nonsense.

The 2nd, 4th, 5th, etc. apply universally to both the fed gov and the states.

That was the whole point.

No state government can violate these basic rights, and if they do, the feds can step in.

 

[Redhorse]

They do? Because as I understand it, there is a provision in the 6A (I think, may be the 7A, and I can't check just now) that has to do with Grand Jury reviewing the evidence in trials, and the states are not held to that provision. If one of our Legal Eagles will fill in the details, I'd appreciate it.

The BoR was not held to apply to the several states until the 14A, although most had similar provisions in their own Constitutions.

I understand why you'd think what you wrote, as that's been most of our experience, most of our lives, but if it were true, we would not have needed the Heller and McDonald cases to incorporate the 2A against the states.

Blessings,
Bill

Bill, it is my understanding that the bill of rights have always applied to the stares because of the supremacy clause. Although some would argue that the tenth amendment nullifies the bill of rights on the states, the fact of the matter is it actually does not. The tenth amendment merely says "if it isn't in here, it doesn't affect you (the states) and the power is yours." Recall that the Miranda rights were a direct result of this because the 4th, 5th, and 6th amendments apply straight across the board to all citizens, not just on a federal standard. The same applies to the 2nd amendment as well. I will admit I don't have a law degree but I have taken plenty of classes and conducted personal research into such things. As far as I know, this is how it is. Now if I'm wrong and someone wants to correct me, please do.

 

[Bill of Rights]

Miranda was 1969, as I recall. The 14A was about a hundred years earlier, give or take a few. I dropped a PM to the esteemed Mr. Freeman, requesting him to take a peek in here and look at these questions. I don't know if he'll have time to do that, but I hope he will. Other attorneys who wish to clarify are welcome to do so as well, as is any member welcome to comment, but as the applicability of the 14th does predate Miranda, I don't think the example you used illustrates your point as well as you would have liked.

The Constitution was written to constrain the fed. If it was meant to constrain the states as well, in toto, the states would not need their own Constitutions to constrain their own governments. Were that the case, Nebraska would, like every other state, have a bicameral legislature, for one example. It does not define governors' jobs, nor the extent of their power, for another. I'll wait for the response from one of our member attorneys, but I think it will bear out my comments.

If not, I'll have some crow to eat.

Blessings,
Bill

Bill, it is my understanding that the bill of rights have always applied to the stares because of the supremacy clause. Although some would argue that the tenth amendment nullifies the bill of rights on the states, the fact of the matter is it actually does not. The tenth amendment merely says "if it isn't in here, it doesn't affect you (the states) and the power is yours." Recall that the Miranda rights were a direct result of this because the 4th, 5th, and 6th amendments apply straight across the board to all citizens, not just on a federal standard. The same applies to the 2nd amendment as well. I will admit I don't have a law degree but I have taken plenty of classes and conducted personal research into such things. As far as I know, this is how it is. Now if I'm wrong and someone wants to correct me, please do.

 

[GodFearinGunTotin]

It is my understanding that the 14th amendment's incorporation doctrine, such as it has become to be embraced was not applied until sometime in the 20th century. Instead, it is my understanding it was originally intended to force the states to treat everybody in their state, equally under their laws.

 

[Kirk Freeman]

They do? Because as I understand it, there is a provision in the 6A (I think, may be the 7A, and I can't check just now) that has to do with Grand Jury reviewing the evidence in trials, and the states are not held to that provision. If one of our Legal Eagles will fill in the details, I'd appreciate it.

Correct, the right to grand jury (Fifth Amendment, Bill) remains unincorporated. See Huratdo (1880s IIRC).

If anyone wants to know more about how the Bill of Rights applies to the states, I would have them read:

Incorporation of the Bill of Rights - Wikipedia, the free encyclopedia

http://www.supremecourt.gov/opinions/09pdf/08-1521.pdf11

 

[Kirk Freeman]

Instead, it is my understanding it was originally intended to force the states to treat everybody in their state, equally under their laws.

Kinda sorta. The Framers wanted the 14th Amendment to extend the Bill of Rights to the states, the Congressional Record is crystal clear.

 

[Kirk Freeman]

Bill, it is my understanding that the bill of rights have always applied to the stares because of the supremacy clause.

No. Many considered some of the provisions of the Bill of Rights (e.g. the Second Amendment) were thought to apply to the states which is why state Supreme Courts were striking down gun laws based on the Second Amendment in the antebellum South.

I know of no historical argument that the Bill of Rights applies to the states via the Supremacy Clause, not even the Framers of the 14th Amendment made this argument (Supremacy Clause came BEFORE the Bill of Rights).

The 14th Amendment was passed to combat the state-sponsored terrorism in the South.

 

[Kirk Freeman]

The Constitution was written to constrain the fed. If it was meant to constrain the states as well, in toto, the states would not need their own Constitutions to constrain their own governments. Were that the case, Nebraska would, like every other state, have a bicameral legislature, for one example. It does not define governors' jobs, nor the extent of their power, for another. I'll wait for the response from one of our member attorneys, but I think it will bear out my comments.

The Constitution was written to constrain the states as well. There are certain things that the states must do (Republican form of government, Article IV, §4) and there are certain things that the states cannot do (e.g. coin money, Article I, §8). However, your general point that the states can run themselves within limits is correct.

 

[sb0]

They do? Because as I understand it, there is a provision in the 6A (I think, may be the 7A, and I can't check just now) that has to do with Grand Jury reviewing the evidence in trials, and the states are not held to that provision. If one of our Legal Eagles will fill in the details, I'd appreciate it.

The BoR was not held to apply to the several states until the 14A, although most had similar provisions in their own Constitutions.

I understand why you'd think what you wrote, as that's been most of our experience, most of our lives, but if it were true, we would not have needed the Heller and McDonald cases to incorporate the 2A against the states.

Blessings,
Bill

Not sure about the grand jury thing, but I would think that most of the 6a (speedy trial etc) would apply to the states.

I always thought Heller and McDonald weren't about validating the idea that the 2a applied to the states, that presumption was already there, they were about declaring that specific policies in those jurisdictions violated the 2a itself.

I'm slightly out of my league here, I'm not exactly a lawyer, just a guy who's done a little reading on this.