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Old May 6, 2009, 04:56 PM   #31
Al Norris
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Join Date: June 29, 2000
Location: Rupert, Idaho
Posts: 9,303
Instead of of the dubious talk of secession, which would take this thread completely off topic and closure...

Or even the discussion over how the feds will not allow this Montana law to stand....

How about discussing how Montana might respond to the question over the validity of its laws?

Amendments to the COTUS do what, exactly?

We all know the reasons for the Bill of Rights, but what exactly do they do? How do the BOR affect the COTUS? There are some valid arguments that they affect something. But what and to what degree?

The Congress has pretty much plenary power over interstate commerce. Does the prohibition within the 2A have any affect over that power? It was placed into effect after the commerce clause, therefore is there an argument that the 2A prohibits acts of Congress that rely on the Commerce Clause and the Necessary and Proper Clause, if those clauses interfere (infringe) upon the right(s) articulated?

If so, could this be a (or even, the) means for States to revive the long dead 10th Amendment?

The Bill of Rights stated purpose was to further restrict the Federal Government, as well as to make certain declaratory statements. We know this, as the preamble to the BoR says just that.

And while a preamble is not law, it is used to determine (interpret) what the restrictions or declaratory statements are to mean, as regards the rest of the body of the Constitution. Just as the Supreme Court has often used the preamble to the Constitution itself, to guide and interpret how far Federal Power may reach, in fulfilling the purpose (stated goals of the preamble) of the Constitution.

Unfortunately, there is a conflict in the commerce clause and the 2nd amendment.

The Congress has used the commerce clause to regulate arms between the states. Such regulation includes the outright banning of civilian ownership of certain weapons that it deems have no usefullness to the citizenry. The cosmetic semi-automatic rifle ban of 1994 is just such an example.

Yet, the 2nd amendment says that the right to keep (own; possess) and bear (shoulder; wear; use) arms (defined at the time of the writings as any small arm an infantryman would use in combat) shall not be infringed. Clearly, the ban on certain weapons, weapons that bear a similar likeness to the weapons used by the Army, is an infringement. That particular law has ended, so it is now a moot point. But it is an usefull illustration of how the Congress, and the Courts (because the Courts had consistently upheld this law) have infringed this right.

The 2nd amendment, without explicitly saying so, modifies the commerce clause to comform to the language of the 2nd. Any interpretation that would say otherwise, completely voids the restrictions of that amendment.

I will go one further. Each and every power of the Federal Government is modified by the 2nd amendment, if said power would infringe the right. That is what amendments to the Constitution do. They modify (restrict, when dealing with the BoR) the main document.

Article V of the Constitution states that Amendments to the Constitution "shall be valid to all Intents and Purposes, as part of this Constitution..." This is one part of the Constitution that has remained intact and without modification since it was ratified. Therefore, according to Article V, the BoR does not have a separate existence, but they do modify each, every, and any clause that would diminish the restrictions placed upon federal power by the very enactment and ratification of those broadly termed amendments.

The Bill of Rights, whether by design and purpose or by accident, are overly broad. For the Congress to restrict them, is a violation of its authority. For the Courts to interpret them as being less than they are, is to ignore the constitutional process of amendment.
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