Reading through the US Constitution -

[CGSteve8718]

Thanks for that gc70. I've read those before, but have forgotten it was that limited.

So I guess that brings us now to the 14 Amendment which is supposed to incorporate the BoR, if not for the controversial (seems to be in this thread) selective incorporation.

With that in mind, I guess whenever we see our fellow gun owners cite a state law as being unconstitutional regarding firearms laws, it really isn't? CA, NY, are the prime examples. And even more alarming, 1st, and 4th Amendment violations can't be deemed unconstitutional (without the 14th) either?

This is upsetting to me. As mentioned, I knew about the reluctance of the founding generation to adopt the USC without the bill of rights, but I've always understood the laws to be heirarchical, as in local laws<state law<federal law/USC. I would say that natural law trumps all of the afromentioned, but have a feeling you'd be laughed out of court today for saying that.

I am for having the states retain as much rights as possible and having as small a federal govt. as possible, with the exception of prohibitions on violations of individual liberties a la the BoR, but I guess I misunderstood the 10th Amendment.

 

[gc70]

The 14th Amendment has a messy history. Here is my grossly abbreviated version of the 14th (gosh knows I'll be flamed for this).

The Northern states were upset at the Southern states' post-Civil War treatment of former slaves and shoved the 14th Amendment through, even to the extent of making adoption of the 14th a condition for some Southern states' readmission to the Union. The 14th was apparently intended to bind the states to recognize at least the types of civil rights found in the BOR. For some reason, the Supreme Court decided to apply the 14th so narrowly as to gut that aspect of the Amendment. Later, the Supreme Court forced the states to recognize specific rights on an individual basis. So, today, parts of the BOR bind the states and other parts do not.

With that in mind, I guess whenever we see our fellow gun owners cite a state law as being unconstitutional regarding firearms laws, it really isn't?

If you are in a federal court and pose the question whether a state firearms law is unconstitutional under the Second Amendment to the US Constitution, the current answer will be 'no.'

 

[Garand Illusion]

DC district court doesn't cover any states, but there is actually one other district court that found the 2nd to be an individual right, but didn't overturn the law in question (I believe it was the machine gun prohibition, and current SCOTUS chief justice Roberts was involved in the decision).

So it's not quite true that no Federal court will answer that the 2nd amendment limits state law ... but I don't know how you'd get a case against a state into the DC circuit.

As I think your statement indicated ... hopefully Heller will change that. We'll know in about 2 months or less.

 

[gc70]

So it's not quite true that no Federal court will answer that the 2nd amendment limits state law

Both the Firth Circuit's decision in Emerson and the DC Circuit's decision in Heller recognize the Second Amendment as an individual right. Emerson only dealt with the federal law regarding firearms disabilities and Heller only dealt with the federally-derived laws in DC (e.g. DC not being a state, it's laws are established under delegated federal authority from Congress). Neither Emerson or Heller addressed incorporation against the states.

 

[Hugh Damright]

[Without the 14th] there would then just be despotic state govts. rather than the dreaded despotic national govt. I see no difference in small tyranny and large tyranny.

Then please allow me to point out a distinction between small and large government.

The United States are founded upon the idea that the US is too big to be under one large national government. So the first distinction is that a large national government can only result in despotism. Or at least that is what men I respect such as Madison, Jefferson, and Robert E. Lee said. In contrast, Hamilton said that the States must be annihilated!

As I study the history of our government, I find there to be an obvious regional difference regarding this view of whether we should have large or small government. I will give it to you straight from the shoulder ... the yankee view is that we need one big government because they want to control that one big government and thus control us all because yankees are imperialists. And the Southern view is that we want small government because it is hard for yankees to take over fifty State governments and so that design is more "yankee proof". Here is a quote from Jefferson warning about how yankees desire to subvert our constituted frame of government into one large government which they might then control:

"should the whole body of New England continue in opposition to these principles of government, either knowingly or through delusion, our government will be a very uneasy one. It can never be harmonious & solid, while so respectable a portion of it's citizens support principles which go directly to a change of the federal constitution, to sink the state governments, consolidate them into one, and to monarchize that. Our country is too large to have all its affairs directed by a single government ... I do verily believe, that if the principle were to prevail, of a common law being in force in the U S, (which principle possesses the general government at once of all the powers of the state governments, and reduces us to a single consolidated government,) it would become the most corrupt government on the earth." -Thomas Jefferson, 1800)

So I guess that brings us now to the 14 Amendment which is supposed to incorporate the BoR

The 14th says nothing about incorporating the USBOR, that seems to be judicial activisim that started in the 1930's.

The way I understand it, one of the problems which the 14th was intended to address was that some States such as Illinois had laws which prohibited negroes from moving into the State. If the slaves were freed, and every State excluded them, then where were they to turn? And so there was an intent to declare that the freed slaves could move to any State, buy property there, have due process of the laws there, and so on. I believe that these were the type of privileges and immunities that were the object. They were already protected for white folks, it was the original design that a person could move to another State and reside there, and the 14th extended such things to black folks.

But at some level, I think the radical intent of the 14th was simply to subvert our frame of government into one large government which yankees could then control. That is why it was rejected. I just read in a book today that when Virginia voted on the 14th that the vote was 74 to 0 in the House and 20 to 0 in the Senate! In reading the congressional debates on the amendment, I noticed that Rep. Rogers from NJ had this to say about the 14th:

"It saps the foundation of the Government; it destroys the elementary principles of the States; it consolidates everything into one imperial despotism; it annihilates all the rights which lie at the foundation of the Union of the States, and which have characterized the Government and made it prosperous and great during the long period of its existence."

If I am not mistaken, they kicked Rep. Rogers from NJ out of Congress before taking their vote on the 14th.

 

[Garand Illusion]

The United States are founded upon the idea that the US is too big to be under one large national government. So the first distinction is that a large national government can only result in despotism. Or at least that is what men I respect such as Madison, Jefferson, and Robert E. Lee said. In contrast, Hamilton said that the States must be annihilated!

As I study the history of our government, I find there to be an obvious regional difference regarding this view of whether we should have large or small government. I will give it to you straight from the shoulder ... the yankee view is that we need one big government because they want to control that one big government and thus control us all because yankees are imperialists. And the Southern view is that we want small government because it is hard for yankees to take over fifty State governments and so that design is more "yankee proof". Here is a quote from Jefferson warning about how yankees desire to subvert our constituted frame of government into one large government which they might then control:

Interesting view of history ... I suspect it's pretty accurate ... but it doesn't make a bit of difference.

The 14th amendment, not to mention the seemingly accepted definition of the commerce clause to mean "anything congress wants it to," ensured a strong Federal government. Right or wrong, it's here.

If the southern states don't like it they can secede again, or push for a new amendment to alter/change the COTUS, and we'll see where that goes. But for the moment ...

• We do have a strong federal government.
• The 14th amendment is part of law
• The 14th has been used to apply the BOR (so far minus 2 amendments) to the state and local government.
• The concept of incorporation was created by the courts, as one reading the 14th would read it to include all of the constitutional protections
• Talking about historical trivia and political manipulations from 150 years ago changes none of the above.

Rather than side tracking every conversation and forcing someone to take the time to explain your position to people who might think it is correct, maybe you could start every post about your view of the US, the constitution, the 2nd amendment, etc., with:

"That may be true, but in my view we've made a grave mistake in this country by strengthening the Federal government, and if we hadn't allowed this to happen the following would be true ..."

Just a thought.

As an edit: I am for limited government. Defining that is difficult, but I do believe that the BOR should be applied to all rulings for federal and local laws, so I am glad for the 14th amendment. Now we just need to get it applied to the 2nd ...

 

[CGSteve8718]

Hugh, thanks for that. I just finished watching a Civil War documentary and while it ended with Lincoln's assasination and didn't get into Reconstruction, I better understand where you are coming from, and the "view" of the South regarding the 14th.

I'm not sure if you can tell, but I am also not in favor of a large national govt. The same men you listed as beings the ones you respect, I also have great respect for.

However, mandating that the BoR be applied to the States is a good thing. I am of the belief that natural rights/law trump all laws of man. And it has been said that many of the individual rights contained in the BoR are natural rights.

If these rights are not applicable to everyone, then what basis is our nation founded upon? Hypocrisy, and nothing more. Other than those simple charges, states should retain all their rights, and the federal govt. should be as small as possible.

This is why I had a misinterpretation of the 10A (to what I wanted it to mean).

 

[mvpel]

With that in mind, I guess whenever we see our fellow gun owners cite a state law as being unconstitutional regarding firearms laws, it really isn't? CA, NY, are the prime examples. And even more alarming, 1st, and 4th Amendment violations can't be deemed unconstitutional (without the 14th) either?

Gun bans in California violate Article I, Section 1, the inalienable right to defend life, liberty, and property, and the right to pursue and obtain safety.

Recognizing those rights without recognizing the right to arms is like saying you have the right to free speech, but no right to own a printing press; the right to freedom of religion, but no right to own bibles; the right to fish on public waters, but no right to own a fishing pole.

Of course, try convincing a dyed-in-the-wool anti-gun California judge of that argument, eh?

 

[publius42]

In contrast, Hamilton said that the States must be annihilated!

I have never heard that before. Context?

 

[gc70]

If these rights are not applicable to everyone, then what basis is our nation founded upon? Hypocrisy, and nothing more.

Our nation was created in 1787 for the relatively mundane purpose of promoting the efficient cooperation of sovereign States. The high moral ground was taken in 1776 when the people cast aside a meddling, remote monarch and chose local self-government in the form of States.

The Constitution was not a broad mandate for a national government to protect people's rights, but a limited framework for the States to act in joint endeavors (i.e. common defense, coining money, making treaties). The history of the Bill of Rights is not of an effort to secure rights for people, but to prohibit a new national government from meddling with the existing rights of people within their respective States.

 

[Hugh Damright]

I have never heard that before. Context?

It was at the Constitutional Convention, on June 19th, 1787, when Hamilton said:

"we must establish a general and national government, completely sovereign, and annihilate the State distinctions and State operations; and unless we do this, no good purpose can be answered."

The next day he tried to take it back, but he seemed to end up again saying that the rights of the States ought to be extinguished:

"I did not intend yesterday a total extinguishment of State governments; but my meaning was, that a national government ought to be able to support itself without the aid or interference of the State governments, and that therefore it was necessary to have full sovereignty. Even with corporate rights the States will be dangerous to the national government, and ought to be extinguished, new modified, or reduced to a smaller scale."

http://www.yale.edu/lawweb/avalon/const/yates.htm

 

[Hugh Damright]

If these rights are not applicable to everyone, then what basis is our nation founded upon? Hypocrisy, and nothing more.

The States came first. They made a compact, the US Constitution, which delegates enumerated powers to a central government, and they did not delegate jurisdiction over our very rights! Where is the hypocrisy in that?

mandating that the BoR be applied to the States is a good thing

A lot of people have a vision of the USBOR which seems to defy the 9th and 10th Amendments.

The Ninth Amendment was intended to address a concern that a USBOR was inappropriate. Some thought that the central government did not need to be limited by a BOR because it was already limited to enumerated powers. A USBOR might make it seem like the US had jurisdiction over unenumerated rights, and so the Ninth was intended to declare that the federal government has no jurisdiction over either the enumerated rights or unenumerated rights.

The Tenth Amendment was intended to address a concern that the US Constitution lacked an article such as the Second Article of Confederation which declared that each State retained its sovereignty and jurisdiction with regard to its internal affairs.

When people say that they want the USBOR to apply to the States, aren't they really saying "let's trample the 9th and 10th Amendments, and then reconstruct the first eight amendments so that rather than deny federal jurisdiction they become a delegation of federal jurisdiction"? I don't think it's a vision of the USBOR at all, I think it is a view that the USBOR was intended to prevent. I think it is a vision that is designed to turn the USBOR against itself.

Other than those simple charges, states should retain all their rights, and the federal govt. should be as small as possible.

I think it's given that we cannot have a small central government which has jurisdiction over rights, privileges, and immunities. Clearly there is no end to such jurisdiction. The federal goverment cannot even handle the interstate commerce power without construing it to make themselves all powerful.

 

[CGSteve8718]

Our nation was created in 1787 for the relatively mundane purpose of promoting the efficient cooperation of sovereign States. The high moral ground was taken in 1776 when the people cast aside a meddling, remote monarch and chose local self-government in the form of States.

The Constitution was not a broad mandate for a national government to protect people's rights, but a limited framework for the States to act in joint endeavors (i.e. common defense, coining money, making treaties). The history of the Bill of Rights is not of an effort to secure rights for people, but to prohibit a new national government from meddling with the existing rights of people within their respective States.

I understand that, and I have mentioned earlier that many of those rights were already inherent in nature, and they were reluctant in adopting the USC without the BoR. I didn't mean to give the impression that I felt the USC or BoR is responsible for securing oir guaranteeing people's rights (I understand that it isn't). All I'm saying is that no government, state or national should have the authority to violate rights that are deemed "natural rights".

This is where the contention of the thread topic comes in, whether the 14th Amendment effectively binds the states to adhere to the BoR. And in practice, it does for all but two as others have noted in earlier replies.

I brought up hyporcrisy because of the "all men are created equal" bit. Not just white land owning men, not with the exclusion of women, or Jews, or Catholics...

 

[gc70]

All I'm saying is that no government, state or national should have the authority to violate rights that are deemed "natural rights".

You pose a difficult moral question. Who decides what rights are "natural rights" and whether they are being violated? What distant group should have the power to impose their views about rights on a local group? Should the county trump the city or town, or the state trump the county, or the nation trump the state, or the world trump the nation?

Should the UN dictate to us if the UN perceives some "natural rights" that we do not?

 

[CGSteve8718]

We don't need to go outside the boundaries of this country to for this one. So no, the UN nor any other nation should have any say as to the governance of our affairs.

But back to the morality, the rights already enumerated in the BoR seem to be a pretty good basis on what "natural rights" are, and the founding generation seemed to have understood that and came to a common agreeance on them.

Regarding who "trumps" whom, there should be an equal standard so long as we are talking about these natural rights. Anything outside of that spectrum, is up to whatever county, or state to do with what they see fit for all I care, and if it goes against the federal standing, more power to them.

 

[gc70]

But back to the morality, the rights already enumerated in the BoR seem to be a pretty good basis on what "natural rights" are, and the founding generation seemed to have understood that and came to a common agreeance on them.

The Founders did reach common agreement on "natural rights" and the BOR was adopted to strictly prohibit the national government from interfering with those rights (however they were dealt with by the States).

We don't need to go outside the boundaries of this country to for this one.

The Founders entrusted the protection of "natural rights" to States. Since "natural rights" transcend governments, there is no greater logical or moral basis for going outside the boundaries of States than for going outside the boundaries of countries.

 

[CGSteve8718]

The Founders entrusted the protection of "natural rights" to States. Since "natural rights" transcend governments, there is no greater logical or moral basis for going outside the boundaries of States than for going outside the boundaries of countries.

This makes sense and I can agree with that. I know that is why the State's each have their own Constitutions, but I'm not sure if all or any of them contain anything quite like the BoR.

 

[Hugh Damright]

I brought up hypocrisy because of the "all men are created equal" bit. Not just white land owning men, not with the exclusion of women, or Jews, or Catholics....

More reconstruction! The term "all men are created equal" was a denouncement of monarchy. It was not a declaration of race or gender equality or anything of that nature. It was just a way of saying "there is no royal family that is created with a divine right to rule".

the rights already enumerated in the BoR seem to be a pretty good basis on what "natural rights" are

I think this is yet more reconstruction values. If I tried to list vital natural rights, I think I would include things like the right to life and liberty, the right to own property, to get married and have children ... the USBOR is not of this nature.

I have come to see bills of rights as regarding "political rights" i.e. principles which are proper according to a given system of government. Take for example the First Amendment's "freedom of speech" ... we might say that we can speak freely in a state of nature and that it is a natural right to speak freely ... but if we go back to the Articles of Confederation we see that the object is a principle of the legislature of a free government:

"Freedom of speech and debate in Congress shall not be impeached or questioned in any court or place out of Congress, and the members of Congress shall be protected in their persons from arrests or imprisonments, during the time of their going to and from, and attendence on Congress, except for treason, felony, or breach of the peace."

 

[CGSteve8718]

It was in the vein of denouncing monarchy sure, but I don't think one would find it unreasonable to say that if there should be a seperation of races, or religions, or certain classes, then that would be the equivalent of the divide between the nobility and the commoners under a monarchy. So in essence, one form of monarchy under a king would be exchanged for another form of monarchy.

It didn't turn out to be that way in practice in the early days of this nation, but it would be reaching to say that this interpretation on the principle of equality didn't come about until after the Civil War.

So aside from what the BoR can be used for, you wouldn't agree that freedom of speech, religion, privacy, defense, etc. are natural rights?

That quote you have on the bottom seems only to address when Congress is in session, concerning officials; whereas the 1st Amendment in the BoR references the people.

 

[gc70]

The Founders were perfectly comfortable with different treatments of "rights" in different locations.

Delaware Declaration of Rights - 1776 - Sect. 3. That all persons professing the Christian religion ought forever to enjoy equal rights and privileges in this state, unless, under colour of religion, any man disturb the peace, the happiness or safety of society.

Pennsylvania Declaration of Rights - 1776 - II. That all men have a natural and unalienable right to worship Almighty God according to the dictates of their own consciences and understanding.

Massachusetts Declaration if Rights - 1780 - III.-- ...the legislature shall, from time to time, authorize and require, the several towns, parishes, precincts, and other bodies-politic, or religious societies, to make suitable provision, at their own expense, for the institution of the public worship of GOD, and for the support and maintenance of public protestant teachers of piety, religion and morality, in all cases where such provision shall not be made voluntarily.

Samuel Adams had some pithy thoughts on how government could meet the different needs of different groups of people.

And can this National Legislature be competent to make Laws for the free internal Government of one People, living in Climates so remote and whose "Habits & particular Interests" are and probably always will be so different. Is it to be expected that General Laws can be adapted to the Feelings of the more Eastern and the more Southern Parts of so extensive a Nation? It appears to me difficult if practicable.