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19th (?) Amendment and gun control - ?
- Thread starter madison46
- Start date
Nothing "protects" alcohol. Both state gov'ts AND the federal government are (and always have been) free to regulate anywhere along the contiuum of regulation, from no regulation at all, all the way to a complete ban. The states MAY go further in regulating than the feds, but the states may not allow LESS regulation than the feds (nor ANY reg in specific areas where the feds have been deemed to "intend to occupy" the area of regulation).
So the Bill of Rights (BOR) ONLY acts as a restraint, or bar on gov't regulation - it does not grant any specific authority. Therefore, when alcohol Prohibition originally passed as a Const. amendment, it replaced "nothing" in the Const.; in other words, the Const. had been silent - it did NOT previously say that everyone has an unabridgable RIGHT to alcohol. But the Congress and states acting together passed the amendment imposing a nationwide ban on alcohol. Back then, a const. amendment WAS actually necessary to impose an ordinary "police power" type regulation (morality and safety in this case) on a NATIONWIDE scale, because the "commerce clause" power of the fed Congress at that time was in actuality restricted (as the FFs intended) to commerce! Today, with the extremely broad interpretation of Congress's powers (from the Brennan et al court of the 60s - and before), complete nationwide prohibition of alcohol would NOT require a Const'al amendment, only an ordinary federal act. So there simply was no protection ever to the RIGHT TO DRINK/POSSESS/SELL ALCOHOL. In sharp contrast, of course, the RKBA pre-dated the Const., and was specifically codified in the Const. It was originally a prohibition on the FEDERAL gov't ability to abridge the RKBA ONLY, until the 14th Amendment was passed in 1868. Before then, states COULD in fact abridge the RKBA, so if'n you didn't like your state, you could move... But the passage of the 14th Amendment in 1868 (as later interpreted from then though the late 1910s/early 1920s), the FUNDAMENTAL rights contained in the BOR were ALL "incorporated" through the due process clause of the 14th Am, to apply to the STATES' ability to abridge those rights as well. This is the "Incorporation Doctrine", and it has been applied to the 1st, 4th, 5th, 6th, 8th amendments (maybe others), but never (yet) specifically to the second (unfortunately). However, the test for the incorporation doctrine is whether the right is fundamental, and the history shows pretty clearly that the RKBA was fundamental, so if this issue is correctly decided by the Supremes in the future, the 2nd Am WILL be held to prevent any state abridgment of the RKBA (this will strike hundreds of state laws in one fell swoop). Clear as mud?
[This message has been edited by Futo Inu (edited September 15, 2000).]
So the Bill of Rights (BOR) ONLY acts as a restraint, or bar on gov't regulation - it does not grant any specific authority. Therefore, when alcohol Prohibition originally passed as a Const. amendment, it replaced "nothing" in the Const.; in other words, the Const. had been silent - it did NOT previously say that everyone has an unabridgable RIGHT to alcohol. But the Congress and states acting together passed the amendment imposing a nationwide ban on alcohol. Back then, a const. amendment WAS actually necessary to impose an ordinary "police power" type regulation (morality and safety in this case) on a NATIONWIDE scale, because the "commerce clause" power of the fed Congress at that time was in actuality restricted (as the FFs intended) to commerce! Today, with the extremely broad interpretation of Congress's powers (from the Brennan et al court of the 60s - and before), complete nationwide prohibition of alcohol would NOT require a Const'al amendment, only an ordinary federal act. So there simply was no protection ever to the RIGHT TO DRINK/POSSESS/SELL ALCOHOL. In sharp contrast, of course, the RKBA pre-dated the Const., and was specifically codified in the Const. It was originally a prohibition on the FEDERAL gov't ability to abridge the RKBA ONLY, until the 14th Amendment was passed in 1868. Before then, states COULD in fact abridge the RKBA, so if'n you didn't like your state, you could move... But the passage of the 14th Amendment in 1868 (as later interpreted from then though the late 1910s/early 1920s), the FUNDAMENTAL rights contained in the BOR were ALL "incorporated" through the due process clause of the 14th Am, to apply to the STATES' ability to abridge those rights as well. This is the "Incorporation Doctrine", and it has been applied to the 1st, 4th, 5th, 6th, 8th amendments (maybe others), but never (yet) specifically to the second (unfortunately). However, the test for the incorporation doctrine is whether the right is fundamental, and the history shows pretty clearly that the RKBA was fundamental, so if this issue is correctly decided by the Supremes in the future, the 2nd Am WILL be held to prevent any state abridgment of the RKBA (this will strike hundreds of state laws in one fell swoop). Clear as mud?
[This message has been edited by Futo Inu (edited September 15, 2000).]
Good explaination Futo, but I have even a better one.... Sense the new deal in the 30's our government don't give a crap about the constitution. It's that plain and simple.
------------------
Richard
The debate is not about guns,
but rather who has the ultimate power to rule,
the People or Government.
RKBA!
------------------
Richard
The debate is not about guns,
but rather who has the ultimate power to rule,
the People or Government.
RKBA!
Futo Inu,
I believe the Senator that introduced the 14th Amendment read off the first 8 Amendments as to what was protected. Seems pretty clear to me, but even Renquihst (sp?) doesn't seem to think so.
I just think the fact an Amendment was needed to ban a non-protected 'item', that it is pretty dramatic when compared with the fact that they don't have to now.
Oh well, it is spilt milk.
thanks,
madison
I believe the Senator that introduced the 14th Amendment read off the first 8 Amendments as to what was protected. Seems pretty clear to me, but even Renquihst (sp?) doesn't seem to think so.
I just think the fact an Amendment was needed to ban a non-protected 'item', that it is pretty dramatic when compared with the fact that they don't have to now.
Oh well, it is spilt milk.
thanks,
madison