So how about REPEALING the 2nd Amendment?
- Thread starter MuzzleBlast
- Start date
Hugh Damright
New member
I believe that that the federal government is intended to be limited to delegated powers. If the federal government can pass gun laws, such as an assault weapons ban, then they can exercise undelegated powers, and our system of government is lost.
I think the best defense against federal gun laws is the Tenth Amendment: the principle that the federal government is limited to delegated powers. It seems to me that both the "gun free school zone" and the "Brady background check" were struck down by the SCOTUS on Tenth Amendment grounds. It shold be up to each State to decide if they want gun free school zones, or to decide if they want to do a background check or not.
Another example is the federal gun law we call "Lautenberg" which tries to deny people the RKBA for certain violations. I believe instead that each State is the best judge of which of their Citizens are dangerous and might need some restrictions. These principles are described in H.R. 276, the "States' Rights and Second and Tenth Amendment Restoration Act of 2003", which can be viewed at http://www.theorator.com/bills108/hr276.html
I think the best defense against federal gun laws is the Tenth Amendment: the principle that the federal government is limited to delegated powers. It seems to me that both the "gun free school zone" and the "Brady background check" were struck down by the SCOTUS on Tenth Amendment grounds. It shold be up to each State to decide if they want gun free school zones, or to decide if they want to do a background check or not.
Another example is the federal gun law we call "Lautenberg" which tries to deny people the RKBA for certain violations. I believe instead that each State is the best judge of which of their Citizens are dangerous and might need some restrictions. These principles are described in H.R. 276, the "States' Rights and Second and Tenth Amendment Restoration Act of 2003", which can be viewed at http://www.theorator.com/bills108/hr276.html
Hugh Damright
New member
To quote the late great President Reagan:
Hugh,
RE:[LAK]"To say that the BORs is not binding on the states implies that any state without a specific constitutional codification of it's own can jail people without trial, prevent them from possessing arms and a long list of other things. I don't buy that concept."
[HUGH]"I understand. I used to say what you say. We are raised to think that such important things cannot be left up to each State. But there was a time when we were raised to think that such important things must be left up to each State."
........ Nope. There are some things written in stone. Read the Declaration of Independence. The three individual rights mentioned there were deemed obvious enough that they were left out of the US Constitution. But the Declaration clearly refers to those as just some of, not all of, the unalienable rights. To wit ....
".... We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable rights, that among these are life, liberty and the pursuit of happiness. That to secure these rights, governments are instituted among men, deriving their just powers from the consent of the governed ..."
[LAK]"If such were the case, the SCOTUS would not be able to hear any cases concerning the BORs in citizen vs state etc in any exclusive state jurisdiction."
[HUGH]"That is a good point! Now hold on to your hat and read Article III, section 2, of the Constitution, and see if the SCOTUS was created with jurisdiction over "citizen vs state etc in any exclusive state jurisdiction". It says something like this:
"The judicial Power shall extend ... to controversies between two or more States; between a State and Citizens of another State; between Citizens of different States."
......... It is a good point. Because that says nothing of a citizen vs state over an issue of one of the BORs. Like the 1st and 4th Amendment for example - which you claim are not binding on the states
[LAK]"The Tenth Amendment is written in plain english, as is the 2nd. The word "delegate", "delegation" or any other substitute does not appear in the 10th. There are no wasted words in the BORs, and everything is specific."
[HUGH]Now you lost me. The word "delegate" doesn't appear in the 10th?
"The powers not delegated to the US by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people."
....... Beg your pardon; I refer to the issue of states and the people; "the powers not delegated to ... are reserved to the states respectively, or to the people." The 2nd Amendment refers exclusively to "the right of the people".
And finally, you believe that the federal government prevents any state from disarming it's people? Based on what part of the Constitution? If you refer to any part of the United States Code (Like Title 10 Section 311), it could not be enfored in any exclusive state jurisdiction. What SCOTUS case are you referring to? There is only one reference to such an issue in the Constitution ...
The 2nd Amendment. Which refers exclusively to "the people". And which you have claimed is not binding on the states.
RE:[LAK]"To say that the BORs is not binding on the states implies that any state without a specific constitutional codification of it's own can jail people without trial, prevent them from possessing arms and a long list of other things. I don't buy that concept."
[HUGH]"I understand. I used to say what you say. We are raised to think that such important things cannot be left up to each State. But there was a time when we were raised to think that such important things must be left up to each State."
........ Nope. There are some things written in stone. Read the Declaration of Independence. The three individual rights mentioned there were deemed obvious enough that they were left out of the US Constitution. But the Declaration clearly refers to those as just some of, not all of, the unalienable rights. To wit ....
".... We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable rights, that among these are life, liberty and the pursuit of happiness. That to secure these rights, governments are instituted among men, deriving their just powers from the consent of the governed ..."
[LAK]"If such were the case, the SCOTUS would not be able to hear any cases concerning the BORs in citizen vs state etc in any exclusive state jurisdiction."
[HUGH]"That is a good point! Now hold on to your hat and read Article III, section 2, of the Constitution, and see if the SCOTUS was created with jurisdiction over "citizen vs state etc in any exclusive state jurisdiction". It says something like this:
"The judicial Power shall extend ... to controversies between two or more States; between a State and Citizens of another State; between Citizens of different States."
......... It is a good point. Because that says nothing of a citizen vs state over an issue of one of the BORs. Like the 1st and 4th Amendment for example - which you claim are not binding on the states
[LAK]"The Tenth Amendment is written in plain english, as is the 2nd. The word "delegate", "delegation" or any other substitute does not appear in the 10th. There are no wasted words in the BORs, and everything is specific."
[HUGH]Now you lost me. The word "delegate" doesn't appear in the 10th?
"The powers not delegated to the US by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people."
....... Beg your pardon; I refer to the issue of states and the people; "the powers not delegated to ... are reserved to the states respectively, or to the people." The 2nd Amendment refers exclusively to "the right of the people".
And finally, you believe that the federal government prevents any state from disarming it's people? Based on what part of the Constitution? If you refer to any part of the United States Code (Like Title 10 Section 311), it could not be enfored in any exclusive state jurisdiction. What SCOTUS case are you referring to? There is only one reference to such an issue in the Constitution ...
The 2nd Amendment. Which refers exclusively to "the people". And which you have claimed is not binding on the states.
Hugh Damright
New member
The Declaration was quoted, but I think the Declaration makes my point - it was not "America" but rather each Colony that declared itself to be a free State. And Jefferson, who drafted the Declaration, believed that "civil rights" should be left the domain of the States. In contrast, I believe that the positition you are defending says that the US is one free State and that the US has jurisdiction over "rights".
Regarding the US judicial power, here is Article III, Section II in its entirety. I do not believe it can be fairly construed to give the federal judicial power jurisdiction over controversies between a Citizen and his State:
I have read a SCOTUS case in which it was said that, regardless of the Second Amendment, no State can disarm its Citizens because that would deprive the many States of a source of Militia. I do not remember which case, but I might hunt for it if it's important. I recall the reference to be regarding general Constitutional principles, the idea that for a State to disarm it's people would impact the many States by depriving them of a source of Militia, and therefore it was not an intrastate matter but a US matter.
Regarding the US judicial power, here is Article III, Section II in its entirety. I do not believe it can be fairly construed to give the federal judicial power jurisdiction over controversies between a Citizen and his State:
I have read a SCOTUS case in which it was said that, regardless of the Second Amendment, no State can disarm its Citizens because that would deprive the many States of a source of Militia. I do not remember which case, but I might hunt for it if it's important. I recall the reference to be regarding general Constitutional principles, the idea that for a State to disarm it's people would impact the many States by depriving them of a source of Militia, and therefore it was not an intrastate matter but a US matter.
Hugh Damright
New member
I think it helps to imagine a simplified model of the US which, instead of fifty States, has only three. Let's say that this simplified US consists of our most populated State, the least populated State, and one right in the middle: California, Wyoming, and Kentucky. And let's pretend that we live in this three State US and we live in Kentucky or Wyoming.
Using the real populations of these three States, the people of our simplified US would be 85% Californians. Now if it was me, and I lived in Kentucky or Wyoming, I think I would want the RKBA to be defined by my own State, by my own elected Representatives who we could vote out if we wanted, rather than having my RKBA defined by a SCOTUS appointed by a federal government which is controlled by Californians.
I do not see the Ten Amendments as being God-given and cast in stone. I don't think that is how constitutionalism works. I believe that a Constitution creates a government and a Bill of Rights limits that government.
The US Bill of Rights has a Preamble which, by definition, defines the intent. I do not think it can be fairly construed to say that the intent was to limit the States, because it says very plainly that the intent was to limit the powers created by the US Constitution and these are federal powers:
Using the real populations of these three States, the people of our simplified US would be 85% Californians. Now if it was me, and I lived in Kentucky or Wyoming, I think I would want the RKBA to be defined by my own State, by my own elected Representatives who we could vote out if we wanted, rather than having my RKBA defined by a SCOTUS appointed by a federal government which is controlled by Californians.
I do not see the Ten Amendments as being God-given and cast in stone. I don't think that is how constitutionalism works. I believe that a Constitution creates a government and a Bill of Rights limits that government.
The US Bill of Rights has a Preamble which, by definition, defines the intent. I do not think it can be fairly construed to say that the intent was to limit the States, because it says very plainly that the intent was to limit the powers created by the US Constitution and these are federal powers:
[HUGH]"The Declaration was quoted, but I think the Declaration makes my point - it was not "America" but rather each Colony that declared itself to be a free State. And Jefferson, who drafted the Declaration, believed that "civil rights" should be left the domain of the States. In contrast, I believe that the positition you are defending says that the US is one free State and that the US has jurisdiction over "rights"..."
.... It certainly was America as a whole. The first word is "We". And Jefferson refers to "certain unalienable rights", and among them are three which he specifies.
".... We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable rights, that among these are life, liberty and the pursuit of happiness. That to secure these rights, governments are instituted among men, deriving their just powers from the consent of the governed ..."
[HUGH]"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."
..... Now this does possibly indicate that the BORs were a restriction on the Federal government only. However if that were accepted, the SCOTUS would not be able to hear any case arising out of a citizen vs state case over any matter of the 1st, 2nd, 3rd, 4th, 5th Amendment, etc.
"In Suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise re-examined in any Court of the United States, than according to the rules of the common law."
In the 7th Amendment (above) the subject is "common law". There is no provision for issues of common law within the federal court system - and it is something that has it basis in state laws. If there was any interface between common law in this country and the federal government and federal law it has been buried a long time ago.
.... It certainly was America as a whole. The first word is "We". And Jefferson refers to "certain unalienable rights", and among them are three which he specifies.
".... We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable rights, that among these are life, liberty and the pursuit of happiness. That to secure these rights, governments are instituted among men, deriving their just powers from the consent of the governed ..."
[HUGH]"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."
..... Now this does possibly indicate that the BORs were a restriction on the Federal government only. However if that were accepted, the SCOTUS would not be able to hear any case arising out of a citizen vs state case over any matter of the 1st, 2nd, 3rd, 4th, 5th Amendment, etc.
"In Suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise re-examined in any Court of the United States, than according to the rules of the common law."
In the 7th Amendment (above) the subject is "common law". There is no provision for issues of common law within the federal court system - and it is something that has it basis in state laws. If there was any interface between common law in this country and the federal government and federal law it has been buried a long time ago.
Hugh Damright
New member
Re: That 4th of July
I believe that the Declaration of Independence created, not one, but thirteen new Countries/Nations/States with names like "Virginia" and "New York":
When the American Revolution was over, even the King had to concede and respect that each Colony was now a free and independent Country/Nation/State - here is the First Article of the Paris Peace Treaty:
I believe that the States came first. I believe that they soon created an alliance called "The United States of America" under the Articles of Confederation, the Second Article stating:
Later, when the Constitution was proposed to the States, they feared that it created a too powerful central government. We are taught that the States requested a US Bill of Rights, but I have come to question this. I have tried to read what each State requested, and to my surprise I found the primary request was that the Constitution be rewritten to include an Article such as the Second Article of Confederation. This became our Tenth Amendment:
I believe that the Declaration of Independence created, not one, but thirteen new Countries/Nations/States with names like "Virginia" and "New York":
When the American Revolution was over, even the King had to concede and respect that each Colony was now a free and independent Country/Nation/State - here is the First Article of the Paris Peace Treaty:
I believe that the States came first. I believe that they soon created an alliance called "The United States of America" under the Articles of Confederation, the Second Article stating:
Later, when the Constitution was proposed to the States, they feared that it created a too powerful central government. We are taught that the States requested a US Bill of Rights, but I have come to question this. I have tried to read what each State requested, and to my surprise I found the primary request was that the Constitution be rewritten to include an Article such as the Second Article of Confederation. This became our Tenth Amendment:
Hugh Damright
New member
re: US Bill of Rights
I believe that the Constitution creates a specific type of government. My intent is to describe this intended form of government. But we have strayed from it, and yes the 14th "Amendment" has been used to make much of the Bill of Rights binding upon the States today - I believe this is one of the ways we have strayed.
However, I believe it is a principle of constitutional law that the Second Amendment has never been "incorporated" under the 14th "Amendment".
Here is the SCOTUS from US v Cruikshank:
I believe that the Constitution creates a specific type of government. My intent is to describe this intended form of government. But we have strayed from it, and yes the 14th "Amendment" has been used to make much of the Bill of Rights binding upon the States today - I believe this is one of the ways we have strayed.
However, I believe it is a principle of constitutional law that the Second Amendment has never been "incorporated" under the 14th "Amendment".
Here is the SCOTUS from US v Cruikshank:
Hugh Damright
New member
Interesting ...
The First Article, Section Ten, of the Constitution declares limits on the States. It says that no State shall pass any Bill of Attainder, which I believe means that there will be no executions without trial. So I think this was addressed without a Bill of Rights.
I don't believe that the scenario of a censored State press was addressed ... I think I'm too tired to reply better just now.
A Bill of Attainder is legislation allowing punishment of a person or group of persons without trial.
Hugh,
I understand some of your points - and I agree that the original States were sovereign individual States. I also recognize that much of what we have presently is the result of a coup d'tat which pretty much had it's start under Lincoln. There is another complication - that of jurisdiction. While the States started out with almost exclusive jurisdiction within their borders, there is now a "nationwide" web of areas of conditional, partial, concurrent and exclusive Federal jurisdiction. As if that were not enough you have those concoctions like extra-territorial jurisdiction claimed by the Federal government to "fight the drug war" etc.
The quoted opinion expressed in US vs. Cruikshank is interesting. The 10th Amendment (or rather it's content) might have been the primary concern of the States when they convened over the BORs. The others were possibly the secondary thoughts of some of those present.
But there is no getting away from the fact that the "We" used in the opener of the Declaration is the collective context and that the rights spoken of were in the explicit context of individual persons. Also that the phrase "among these ... " clearly holds that the three are just a start.
What would be interesting would be a summary of "rights" clearly expressed by each State in the State Constitutions on one sheet of paper for comparison.
Hugh,
I understand some of your points - and I agree that the original States were sovereign individual States. I also recognize that much of what we have presently is the result of a coup d'tat which pretty much had it's start under Lincoln. There is another complication - that of jurisdiction. While the States started out with almost exclusive jurisdiction within their borders, there is now a "nationwide" web of areas of conditional, partial, concurrent and exclusive Federal jurisdiction. As if that were not enough you have those concoctions like extra-territorial jurisdiction claimed by the Federal government to "fight the drug war" etc.
The quoted opinion expressed in US vs. Cruikshank is interesting. The 10th Amendment (or rather it's content) might have been the primary concern of the States when they convened over the BORs. The others were possibly the secondary thoughts of some of those present.
But there is no getting away from the fact that the "We" used in the opener of the Declaration is the collective context and that the rights spoken of were in the explicit context of individual persons. Also that the phrase "among these ... " clearly holds that the three are just a start.
What would be interesting would be a summary of "rights" clearly expressed by each State in the State Constitutions on one sheet of paper for comparison.