The way I see it, everything not specifically enumerated to the Government, is retained by the People. It should be more correctly called "The Bill of Limitations" not the BOR. IMHO. The power of government was intended to be limited to a few specific areas, not the intrusion into our affairs we see now.
Does the 2nd apply to the states
- Thread starter Some_Dude
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The way I see it, everything not specifically enumerated to the Government, is retained by the People. It should be more correctly called "The Bill of Limitations" not the BOR. IMHO. The power of government was intended to be limited to a few specific areas, not the intrusion into our affairs we see now.
pnac...
go to foavc.org (Friends of Article Five Convention) OR mikechurch.com. You can read up on the process of an Amendment convention. I too was a little uneasy about a con-con with the current congress. Once you understand how it works, I think it is a better option than letting Pelosi and her ILK run wild in D.C. on our dime.
go to foavc.org (Friends of Article Five Convention) OR mikechurch.com. You can read up on the process of an Amendment convention. I too was a little uneasy about a con-con with the current congress. Once you understand how it works, I think it is a better option than letting Pelosi and her ILK run wild in D.C. on our dime.
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!
Where in Amendment II does it say the states shall regulate ARMS? A well regulated Militia, being necessary to the security of a free state, the RIGHT OF THE PEOPLE to keep and bear arms, shall not be infringed.
Do you see a trend here? In Amendments I, II, IV, IX, X, XV, XIX, XXIV and XXVI all speak of the rights of the people so when did WE THE PEOPLE relinquish our rights to the states or the federal government?
So we have three separate groups here, the US Government, the State Government and the people and we wrongly presume that just because we are a citizen of the state in which we reside that ANY Government, be it State, County, Federal, NPS, BLM, City, Township can take our God given rights away from us!
Our RIGHTS are God given, not given us by man representing ANY FORM OF GOVERNMENT! "We hold these truths to be self- evident, that all men are created equal, that they are endowed by there Creator with certain unalienable Rights . . ." Webster describes inalienable as "unable to be taken away from or given away by the possessor". Government cannot take them away from us and I'll stick by what the Founder stated in plain kings English than that of all the liberal socialist judges our governments care to interpret.
"That whatever any Form of Government becomes destructive of these ends, it is the RIGHT OF THE PEOPLE to alter or to abolish it . . . "
Do you see the trend, maybe the time has come to abolish this corrupt government and reinstate the Constitution our Forefathers intended. "The strongest reason for THE PEOPLE to retain the right to keep and bear arms is, as a last resort, to protect themselves against tyranny in government.
Thomas Jefferson"
"The said constitution shall never be construed to authorize Congress to prevent the people of the United States who are peaceable citizens from keeping their own arms." Samuel Adams
Our founding Fathers knew this would happen and they tried to protect us but . . . As the old saying goes, stupid is as stupid does. If WE THE PEOPLE allow the states, or any form of government, to regulate OUR gun rights we will have just slipped the manacle of slavery over our wrist.
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!
Where in Amendment II does it say the states shall regulate ARMS? A well regulated Militia, being necessary to the security of a free state, the RIGHT OF THE PEOPLE to keep and bear arms, shall not be infringed.
Do you see a trend here? In Amendments I, II, IV, IX, X, XV, XIX, XXIV and XXVI all speak of the rights of the people so when did WE THE PEOPLE relinquish our rights to the states or the federal government?
So we have three separate groups here, the US Government, the State Government and the people and we wrongly presume that just because we are a citizen of the state in which we reside that ANY Government, be it State, County, Federal, NPS, BLM, City, Township can take our God given rights away from us!
Our RIGHTS are God given, not given us by man representing ANY FORM OF GOVERNMENT! "We hold these truths to be self- evident, that all men are created equal, that they are endowed by there Creator with certain unalienable Rights . . ." Webster describes inalienable as "unable to be taken away from or given away by the possessor". Government cannot take them away from us and I'll stick by what the Founder stated in plain kings English than that of all the liberal socialist judges our governments care to interpret.
"That whatever any Form of Government becomes destructive of these ends, it is the RIGHT OF THE PEOPLE to alter or to abolish it . . . "
Do you see the trend, maybe the time has come to abolish this corrupt government and reinstate the Constitution our Forefathers intended. "The strongest reason for THE PEOPLE to retain the right to keep and bear arms is, as a last resort, to protect themselves against tyranny in government.
Thomas Jefferson"
"The said constitution shall never be construed to authorize Congress to prevent the people of the United States who are peaceable citizens from keeping their own arms." Samuel Adams
Our founding Fathers knew this would happen and they tried to protect us but . . . As the old saying goes, stupid is as stupid does. If WE THE PEOPLE allow the states, or any form of government, to regulate OUR gun rights we will have just slipped the manacle of slavery over our wrist.
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The relevant part of Art. V reads: The Congress ... on the Application of the Legislatures of two thirds of the several States, shall call a Convention for proposing Amendments, which, in either Case, shall be valid to all Intents and Purposes, as part of this Constitution, when ratified by the Legislatures of three fourths of the several States, or by Conventions in three fourths thereof, as the one or the other Mode of Ratification may be proposed by the Congress;
The above says that the Congress will call the convention and that the Congress will set the manner of ratification. It further says that this convention will be called to propose amendments to the Constitution.
That would seem to be the start and end of mischief. Afterall, Constitutionally speaking, the convention can do nothing else. ...
The big "however" in this thing is that there has only been one other convention ever called. In that convention, it was the delegates themselves that threw out the Article of Confederation and set the manner of ratification. All in a contrary manner to that which they were called to do.
Do we seriously think that it would be any different?
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SD, your explanation of original intent is a false premise. The question of original intent, is not predicated upon your being alive to give us the proper interpretation. In order to determine that intent, we would necessarily have to sift through your writings on the subject. That is what would be open to interpretation, 'cause you wouldn't be around to tell us explicitly.
That was the whole point of Justice Scalias dialog in the Heller case (I should also say that I don't agree 100% with that interpretation, but the Court is empowered to rule on these matters, not you and I).
So we have to go by what was discussed, not only in Congress (about the 14th amendment), but also what the people thought they were voting on. That's called original public meaning.
We have some very good examples of what the Privileges and Immunities clause (Art. IV, section 2, clause 1) of the Constitution meant. This then becomes an implicit meaning as used by the 14th.
The nature of all this, will be decided by the Court, shortly.
Oh, I should say that I also like a good debate. Reasoned discourse may not change any minds, but it is a lot better than yelling at each other because we disagree.
The above says that the Congress will call the convention and that the Congress will set the manner of ratification. It further says that this convention will be called to propose amendments to the Constitution.
That would seem to be the start and end of mischief. Afterall, Constitutionally speaking, the convention can do nothing else. ...
The big "however" in this thing is that there has only been one other convention ever called. In that convention, it was the delegates themselves that threw out the Article of Confederation and set the manner of ratification. All in a contrary manner to that which they were called to do.
Do we seriously think that it would be any different?
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SD, your explanation of original intent is a false premise. The question of original intent, is not predicated upon your being alive to give us the proper interpretation. In order to determine that intent, we would necessarily have to sift through your writings on the subject. That is what would be open to interpretation, 'cause you wouldn't be around to tell us explicitly.
That was the whole point of Justice Scalias dialog in the Heller case (I should also say that I don't agree 100% with that interpretation, but the Court is empowered to rule on these matters, not you and I).
So we have to go by what was discussed, not only in Congress (about the 14th amendment), but also what the people thought they were voting on. That's called original public meaning.
We have some very good examples of what the Privileges and Immunities clause (Art. IV, section 2, clause 1) of the Constitution meant. This then becomes an implicit meaning as used by the 14th.
The nature of all this, will be decided by the Court, shortly.
Oh, I should say that I also like a good debate. Reasoned discourse may not change any minds, but it is a lot better than yelling at each other because we disagree.
Bartholomew Roberts
Moderator
No, original intent is used to attempt to interpret amendments or legislation according to the "original intent" of the drafters of those documents. In this case, the quote you referred to refers to the original intent of the drafters of the 14th Amendment (though if you want to discuss whether that was their original intent, we've had that debate at length too and a separate thread would probably be best).
To put it another way, if the Constitution provides a means that it can be amended and the constitution is amended on 1871, then how can the "original intent" of the people who drafted the Constitution in 1791 be used to determine what the meaning of the 1871 change is? It cannot. We must use the original intent of the people who drafted the 1871 change. So your assertion that original intent ended in 1791 is incorrect.
Your right to self-defense is an inherent right of nature. The state cannot justly eliminate it under any form of government. The Second Amendment is closely linked to this right and should apply to the states. If you think otherwise, then we have a fundamental disagreement on this point and you are unlikely to change my mind.
On the contrary, the doctrine of stare decisis predates 1920 considerably. Not to mention, it is just plain common sense. Despite what you may think, in many cases the original intent of the founders is debateable. Like any politicians, they had different views and made compromises to achieve results. Depending on which politician you look at, you can reach different results on a wide variety of subjects. "Case law" is based on both the law and the Constitution and what courts in the past have ruled on those matters. The idea that every time someone new gets in power they should be able to use their vision of "original intent" to make new law is basically no different than what progressives advocate now. If the Court decision you rely on to conduct a multimillion dollar business can change every time there is a new judicial appointment, that is going to empower lawyers and legislators over regular people and make business prohibitively expensive. So there is plenty of reason to be respectful of past case law even when you may not agree with the reasoning or interpretation.
Yes the 2nd applies to the states and always has, see The United States Constitution, Article 6, P2 below;
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.
Why anyone would bring up any other reference is odd. It says very clearly the Constitution is the SUPREME law of the land and that it applies to the States. It has been there since day one.
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.
Why anyone would bring up any other reference is odd. It says very clearly the Constitution is the SUPREME law of the land and that it applies to the States. It has been there since day one.
bigrebnc1861
New member
If the second amendment applies only to the states and the U.S. Constitution as been the SUPREME law of the land from day one why does each individual state have it's own form of government and it's very own Constitution? Just asking.
knight0334
New member
Because the Constitution guaranties and commands each state to have a republican type government. See Article IV Section 4.
Also, the Constitution doesn't give the federal government complete authority to deal with all matters - it limits it to a list of certain things in Article I Section 8.
I'm sorry 3 gun, but your interpretation of the Supremacy Clause is simply wrong.
The preamble to the Bill of Rights makes it abundantly clear what the amendments were for:
In the 1833 case, Barron v. Mayor & City Council of Baltimore, the Supreme Court came to the same conclusion. The BOR affected only the Federal Government.
It was the 14th amendment that was designed to apply the BOR against the States.
The preamble to the Bill of Rights makes it abundantly clear what the amendments were for:
In the 1833 case, Barron v. Mayor & City Council of Baltimore, the Supreme Court came to the same conclusion. The BOR affected only the Federal Government.
It was the 14th amendment that was designed to apply the BOR against the States.
The supremacy clause only declares that the Constitution and federal law takes precedence over state and local laws when there is a conflict between the laws.
You must also consider the scope and application of sections of the Constitution.
The scope of A1,S7,C1 is clearly the US Congress. It obviously does not apply to "All Bills for raising Revenue" at all levels of government.
For whatever its worth whenever we get into the rights talk most people seem to forget that the "Rights" as spelled out were considered to be natural rights that were granted from divinity.
Thus the Constitution and the Bill of Rights only spell out rights that were thought to have always existed. The subtext to me (disagree as you like) is these rights although subject to some level of common consensus were considered to be a right that no one could deny. (government or individual)
It seems to me the courts and others forget these founding beliefs when making decisions, but even cursory research shows these beliefs were widely held amoung the founders of our country.
The Constitution and the Bill of Rights created nothing new in the way of rights as the founding fathers saw but rather spelled out only some of the rights that were felt to exist from the beginning of creation.
This seems to be a forgotten part of our history. Although a few such as BRoberts above do have this wealth of knowledge.
Thus the Constitution and the Bill of Rights only spell out rights that were thought to have always existed. The subtext to me (disagree as you like) is these rights although subject to some level of common consensus were considered to be a right that no one could deny. (government or individual)
It seems to me the courts and others forget these founding beliefs when making decisions, but even cursory research shows these beliefs were widely held amoung the founders of our country.
The Constitution and the Bill of Rights created nothing new in the way of rights as the founding fathers saw but rather spelled out only some of the rights that were felt to exist from the beginning of creation.
This seems to be a forgotten part of our history. Although a few such as BRoberts above do have this wealth of knowledge.
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One of the beliefs of the founders was that government units closer to the people would have more incentives to guard the rights of the people. They probably could not have imagined that a state, at the time, or a city, would have any desires to infringe on the people's right to keep and bear arms, as well as other natural or God given rights. That would have been a foreign concept to their way of thinking.
However, when talking about a central government, they were very concerned with power and the abuse of such power. Thus, they included many items in the Constitution which specifically spelled out areas where the newly formed central government could not use or abuse it's powers. The powers were to flow uphill from the people, to the states, to the federal government. Some of those powers were forbidden to be given up to government power, including the rights of "the people". Those were considered to be "inalienable", meaning they could not be ceded to government, as they existed outside of government. Those rights exist within the individual.
Governments were formed to protect, secure, and guard those rights. That is written in the Declaration of Independence. I believe that means all levels of government.
Thus, if we use a logical flow of thinking, how can any level of government infringe upon a natural right which that government has been given the duty to protect?
I believe while the constitution SPECIFICALLY put limits on the federal government power, it ASSUMED that there were rights which would always belong to the people and no government entity, operating under the Constitution, the Supreme Law of the Land, could trample upon those "inalienable" rights.
In my opinion, this line of thinking was recognized by our federal government at the time they penned and passed the 14th amendment. They were trying to state the fact more specifically in the Constitution that states and local governments could not have power over the peoples natural, God given rights, as power over those rights could not be ceded to governments of any form or at any level.
I'm no constitutional scholar, by any means. However, much of the Constitution was written so it could be understood by all Americans, provided they could read. It's not full of lawyerly legalese. That's my opinion and I'm stuck on it.
BGutzman:
Bingo, my friend. You are spot on here. It drives me nuts when we see people on our own side make statements such as "The second amendment grants individuals the right to keep and bear arms" or any such similar language. The Second Amendment grants NOTHING! It GUARDS, PROTECTS AND SECURES the right which already existed, before any government entity was formed.
This was the radical new thinking of the founders as they created a nation based on the philosophy that certain rights were provided to individuals by their creator. These rights were inalienable, meaning they could not be taken away from the individual. Governments were formed to secure these rights. How could someone who has these beliefs write a constitution, which was to be the supreme law of the land, which would allow lower forms of government entities, such as the states, to take these rights away or infringe upon them? That runs counter to logic and their written beliefs from the time when they penned the Bill of Rights. Read the writings of the founders and some of the Federalist papers. Those documents spell out the beliefs which the founders had regarding our inalienable rights and governments' duties to protect them. I'm convinced this meant any government entity at any level. The 14th A. is an attempt to spell that out, though they could have admittedly done a much better job with the wording.
Here's how I would have written the 14th Amendment:
"All rights of the People are inalienable. All inalienable rights specifically enumerated in the Constitution, plus all other rights as referred to in the 9th Amendment, are always retained by the People and cannot be removed or infringed upon by any level of government, including federal, state, and local governments of these United States. Also, the powers of the individual, as related to his/her inalienable rights, can never be ceded or granted to a government entity at any level within these United States."
I'm guessing some folks may find problems with my amendment. I'm open to suggestions on refinement or correcting issues I may not have taken into account.
Bingo, my friend. You are spot on here. It drives me nuts when we see people on our own side make statements such as "The second amendment grants individuals the right to keep and bear arms" or any such similar language. The Second Amendment grants NOTHING! It GUARDS, PROTECTS AND SECURES the right which already existed, before any government entity was formed.
This was the radical new thinking of the founders as they created a nation based on the philosophy that certain rights were provided to individuals by their creator. These rights were inalienable, meaning they could not be taken away from the individual. Governments were formed to secure these rights. How could someone who has these beliefs write a constitution, which was to be the supreme law of the land, which would allow lower forms of government entities, such as the states, to take these rights away or infringe upon them? That runs counter to logic and their written beliefs from the time when they penned the Bill of Rights. Read the writings of the founders and some of the Federalist papers. Those documents spell out the beliefs which the founders had regarding our inalienable rights and governments' duties to protect them. I'm convinced this meant any government entity at any level. The 14th A. is an attempt to spell that out, though they could have admittedly done a much better job with the wording.
Here's how I would have written the 14th Amendment:
"All rights of the People are inalienable. All inalienable rights specifically enumerated in the Constitution, plus all other rights as referred to in the 9th Amendment, are always retained by the People and cannot be removed or infringed upon by any level of government, including federal, state, and local governments of these United States. Also, the powers of the individual, as related to his/her inalienable rights, can never be ceded or granted to a government entity at any level within these United States."
I'm guessing some folks may find problems with my amendment. I'm open to suggestions on refinement or correcting issues I may not have taken into account.
Precisely. It was expected that the BoR would establish a baseline of protections, with every expectation that the states would be even more protective of individual rights.
Some states weren't, and we had a bit of a war over it. The Reconstruction Amendments were drafted and ratified to fix that situation. In a way, the 14th Amendment was a means of enforcing original intent.
I like your version of the ammendment. If you ever run for office youv'e got my vote. 
As far as the radical thinking of the founding fathers I suspect we see it in the same or a similar way but I see it this way.
The founders were radical in that they put these ideas to a paper(s) forming the founding principles of a government and not as a agreement with a existing government (Magna Carta ect).
The principles and thoughts about these rights I believe had existed for centuries and they really weren't new ideas but rather new only in that they were being spelled out on paper in the founding documents as limitations on government. (rather than being assumed or implied to exist and expecting everyone to honor them)
These rights were a part of the founders lives as much as manners or common courtesy and were alive in their day to day usage. Or in other words these rights were as normal and natural as breathing to them.
I also think you hit it on the head with the founding fathers never though the day would or could come with the right to bear arms would be so questioned let alone outlawed, but thankfully they did highlight it as a founding principal.
So many miss that these rights exist and have existed long before this nation or even England existed. (time immorial)
For myself I agree these right will always exist and must exist for a free nation to exist and these rights are natural and inherent in all peoples. If they do not exist then we are no longer free and natural law will be violated.
The right to bear arms and to protect oneself cannot be outlawed in a system that is free nor can the other rights..
As far as the radical thinking of the founding fathers I suspect we see it in the same or a similar way but I see it this way.
The founders were radical in that they put these ideas to a paper(s) forming the founding principles of a government and not as a agreement with a existing government (Magna Carta ect).
The principles and thoughts about these rights I believe had existed for centuries and they really weren't new ideas but rather new only in that they were being spelled out on paper in the founding documents as limitations on government. (rather than being assumed or implied to exist and expecting everyone to honor them)
These rights were a part of the founders lives as much as manners or common courtesy and were alive in their day to day usage. Or in other words these rights were as normal and natural as breathing to them.
I also think you hit it on the head with the founding fathers never though the day would or could come with the right to bear arms would be so questioned let alone outlawed, but thankfully they did highlight it as a founding principal.
So many miss that these rights exist and have existed long before this nation or even England existed. (time immorial)
For myself I agree these right will always exist and must exist for a free nation to exist and these rights are natural and inherent in all peoples. If they do not exist then we are no longer free and natural law will be violated.
The right to bear arms and to protect oneself cannot be outlawed in a system that is free nor can the other rights..
Tom Servo:
Correct. Some states did not want to abide by the Constitution's limitations and its protection for all men's rights, including blacks (slaves) and decided they wanted to leave the Union and exempt themselves from the limits in the Constitution. Now, whether they had the power to leave the union is another matter all together and we'd never get that started without getting it locked down eventually. However, as it is today, all of the 50 states in the United States are bound by the constitution as a requirement of their being members of the United States and being entitled to the protections of same. Thus, any state which would ban invididual ownership of firearms is operating outside of the constitution and should be slapped down by the USSC for doing so. Same with any cities. Chicago may be about to be a recipient of such a slap down in the McDonald vs. Chicago case.
The USSC slapped down the collective rights theory for the Federal govt. in Heller. McDonald is the next domino which is very likely to fall. There are other issues to decide such as which types of weapons are protected by the Second A. US. vs Miller (1939) seemed to indicate that firearms and weapons suitable for militia or military use, would be protected. They weren't sure a sawed off shotgun was useful for militia duties (military use) so they couldn't reach a decision as to whether the 2nd A. protected the individual possession of such a weapon. Thus, they sent it back down to the lower court for an evidence hearing to find out if a sawed off shotgun with a barrel of less than 18" could be an effective tool for militia duties. That's as far as it ever got, because Miller had died and his partner never bothered to show up in court.
This finding was used for many years by the anti gunners and gun control advocates to state that the USSC had declared that the 2nd A. only protected the rights of people who were in the active militia or national guard. The Heller case finally put a stop to that argument. McDonald will likely put a stop to the argument that the 2nd only applies to the federal government. We have to wait and see however, as that case has not been decided. Strange things happen with our courts at times. Nothing is for certain when the 9 robed scholars put their minds to an issue.
Correct. Some states did not want to abide by the Constitution's limitations and its protection for all men's rights, including blacks (slaves) and decided they wanted to leave the Union and exempt themselves from the limits in the Constitution. Now, whether they had the power to leave the union is another matter all together and we'd never get that started without getting it locked down eventually. However, as it is today, all of the 50 states in the United States are bound by the constitution as a requirement of their being members of the United States and being entitled to the protections of same. Thus, any state which would ban invididual ownership of firearms is operating outside of the constitution and should be slapped down by the USSC for doing so. Same with any cities. Chicago may be about to be a recipient of such a slap down in the McDonald vs. Chicago case.
The USSC slapped down the collective rights theory for the Federal govt. in Heller. McDonald is the next domino which is very likely to fall. There are other issues to decide such as which types of weapons are protected by the Second A. US. vs Miller (1939) seemed to indicate that firearms and weapons suitable for militia or military use, would be protected. They weren't sure a sawed off shotgun was useful for militia duties (military use) so they couldn't reach a decision as to whether the 2nd A. protected the individual possession of such a weapon. Thus, they sent it back down to the lower court for an evidence hearing to find out if a sawed off shotgun with a barrel of less than 18" could be an effective tool for militia duties. That's as far as it ever got, because Miller had died and his partner never bothered to show up in court.
This finding was used for many years by the anti gunners and gun control advocates to state that the USSC had declared that the 2nd A. only protected the rights of people who were in the active militia or national guard. The Heller case finally put a stop to that argument. McDonald will likely put a stop to the argument that the 2nd only applies to the federal government. We have to wait and see however, as that case has not been decided. Strange things happen with our courts at times. Nothing is for certain when the 9 robed scholars put their minds to an issue.
BGutzman:
I agree. Also, it was a radical idea amongst the world leaders at the time, that "The People" and not the "elites" owned the power over their own lives.
I too believe there were many people in the world who believed as the founders did, that the individual had the power to determine his own destiny and to defend his self interests with the best means possible, determined by himself, not some ruling elitists or monarch. As you state, such beliefs had never been put to paper with a pen, and our founders risked their very lives to do so. That's what is radical in my thinking. Good posts, BGutzman. I think you and I are on the very same page but with a nice, complementary way of expressing it.
I agree. Also, it was a radical idea amongst the world leaders at the time, that "The People" and not the "elites" owned the power over their own lives.
I too believe there were many people in the world who believed as the founders did, that the individual had the power to determine his own destiny and to defend his self interests with the best means possible, determined by himself, not some ruling elitists or monarch. As you state, such beliefs had never been put to paper with a pen, and our founders risked their very lives to do so. That's what is radical in my thinking. Good posts, BGutzman. I think you and I are on the very same page but with a nice, complementary way of expressing it.
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