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Old June 4, 2010, 11:34 PM   #1
Some_Dude
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Does the 2nd apply to the states

I just visited this website and I clicked on "Does the 2nd apply to the states?" on the home page. I was dumbfounded when I read that "Yes, the second amendment was intended to be applied to the states through the fourteenth amendment though the courts have refused to acknowledge or apply original intent."

My 1st problem is this- the 2nd amendment was passed on 15 Dec 1791, the fourteenth was passed on 9 July 1868. So what was the status of gun rights for the interim 77 years?

Second problem. The U.S. Constitution is a "contract" between the States to create or "constitute" a federal government. The Constitution spells out what the Federal Government CAN or CANNOT do. Additionally, as a condition of ratification, the Bill of Rights (amendments 1-10) provided further limitations to the FEDERAL government.

3rd problem. By saying that the 2nd amendment - by way of the 14th amendment - applies to the states, you are advocating the Incorporation Doctorine. This is exactly how the gun grabbers at the Federal level intend to trample states rights. If the federal government- by way of the 2nd thru the 14th amendment - can reach into a state and influence or even regulate gun rights, what else can they regulate? EVERYTHING. You have just opened Pandora's Box.

Here is the bare knuckle truth... The 2nd ONLY applies to the FEDERAL government. Because of the 9th and 10th amendments, your state MAY completely outlaw guns- it depends on your STATE constitution. How else can you explain the various gun laws each state has?

With all due respect, someone at this site needs to do some more homework. If you are going into battle against the big boys (i.e. Eric Holder and the Supreme Court) you should go in fully armed with the proper information.

I learned all this from two different people, which doesn't make it indesputable, but it makes more sense to me. Go to mikechurch.com and kevingutzman.com and find out for yourself.

I am all for gun rights. I feel that if I can afford it I should be able to park an Abrams tank in my barn. The founders were abundantly clear, the Federal Government should have absolutely no say in gun laws. What part of "... shall not be infringed..." don't they understand? The states however are limited only by their own constitutions, and the voters in each state.

I realize by making this arguement, I might become Public Enemy #1 on this site, that is not my intent. I am just trying to help.

"The truth shall set you free, but first it will make you miserable." -James A. Garfield

Some_Dude

the material I wrote about can be found at www.guncite.com/2ndfou.html

Last edited by Some_Dude; June 4, 2010 at 11:51 PM.
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Old June 5, 2010, 12:40 AM   #2
maestro pistolero
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I wish I had the energy to untangle this twisted ball of yarn you have spun here, but I am tired, and can't find the energy for a comprehensive, point-by-point response.

You seem genuinely confused about the basis and history of the 14th amendment.

May I respectfully suggest that you come back when you have read and completely understand Heller vs. DC, and the briefs for McDonald vs Chicago, in which the U.S. Supreme Court is widely expected to apply the 2nd amendment to bind the states through one or both clauses of the 14th amendment in mere days or weeks.

When you have fully absorbed the text of both of these cases, you'll be ready to have the debate.
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Old June 5, 2010, 03:15 AM   #3
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Simple answer
in the 2nd … "right of the people", Nowhere in the Constitution is this phrase used to denote a power of the States

As an individual right, it can be guaranteed to the people by the Federal Govt above the objections of the States.

Inalienable rights of the people supersede all govt. authorities (including the States) bound to operate under the Constitution.


Why sweat it … This country hasn’t operated strictly according to its Constitution since before the Civil War... and hasn’t even tried to ... since Roosevelt stacked the Supreme Court.
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Old June 5, 2010, 06:02 AM   #4
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Personally, I think it works pretty well myself and certainly better than what we had before (not that I had first hand experience). The constitution isn't exactly a contract between the states and the federal government so much as it is a charter, if you will, that establishes the form of the federal government. Lots of countries have federal countries, like Mexico, Germany and Switzerland. They only became noteworthy, for want of a better word, when the nation was recongized as being greater than the sum of the separate states. Of course, not everyone sees it that way.

Frankly, however, countries that don't have a federal system don't seem to be any worse than the ones that do. The Confederacy was of course a federal system in which the states seems to have more importance than the nation itself, or so some thought. One even threatened to succeed!

In union there is strength. But there remains the problem of the 2nd admendment (as well as all the rest, plus the basic constituation). Some folks even think the first part of the 2nd admendment contradicts the second part. It is amusing to me how so many of those who hold the 2nd admendment so high want the federal government out of the state's affairs, and their own, while they're at it.
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Old June 5, 2010, 07:16 AM   #5
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The problem with the latest "Firearms Freedom declarations"

by various states and their politicians is 'we' are assuming the specific state will keep the state more gun friendly.... just ain't so.

I wonder how far a state would get declaring a freedom of speech / voting rights declaration and they are going to make their own rules for who can vote? I think some states did that for a number of years and then a short while back the Feds kind of nipped that one...
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Old June 5, 2010, 07:18 AM   #6
Bartholomew Roberts
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Quote:
My 1st problem is this- the 2nd amendment was passed on 15 Dec 1791, the fourteenth was passed on 9 July 1868. So what was the status of gun rights for the interim 77 years?
From Barron vs. Baltimore until the 14th Amendment, the Second was a restriction only on the federal government. After the 14th Amendment but before the doctrine of incorporation through substantive due process was created, the Second was still held to only apply to the Federal government in Presser vs. Illinois and United States vs. Cruikshank. That is the same status it holds today.

Quote:
Second problem. The U.S. Constitution is a "contract" between the States to create or "constitute" a federal government. The Constitution spells out what the Federal Government CAN or CANNOT do. Additionally, as a condition of ratification, the Bill of Rights (amendments 1-10) provided further limitations to the FEDERAL government.
That is one interpretation. Whether or not it is the correct one is made moot by the 14th Amendment.

Quote:
3rd problem. By saying that the 2nd amendment - by way of the 14th amendment - applies to the states, you are advocating the Incorporation Doctorine. This is exactly how the gun grabbers at the Federal level intend to trample states rights. If the federal government- by way of the 2nd thru the 14th amendment - can reach into a state and influence or even regulate gun rights, what else can they regulate? EVERYTHING. You have just opened Pandora's
This is nonsensical. The Second Amendment is a prohibition. It does not grant power to the federal government to regulate, it says only that the government (state or federal via the 14th Amendment) may not infringe on that right.

Here are soe good threads for better educating yourself on the issue:
http://thefiringline.com/forums/show...14th+amendment
http://thefiringline.com/forums/show...14th+amendment

And from another forum, here is a previous discussion on the exact same argument you make in Point #3. You might want to give that a read as well.
http://www.thehighroad.org/showthrea...14th+Amendment

Quote:
the material I wrote about can be found at www.guncite.com/2ndfou.html
That material is 100% absolutely correct. The author of that website is dead on in his legal assessments on both the 14th Amendment and a number of other issues.

Last edited by Bartholomew Roberts; June 5, 2010 at 07:26 AM.
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Old June 5, 2010, 08:59 AM   #7
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Quote:
3rd problem. By saying that the 2nd amendment - by way of the 14th amendment - applies to the states, you are advocating the Incorporation Doctorine.
Not necessarily. Had the Court correctly read the Privileges or Immunities clause in the first place, later Justices would not have found it imperative to cobble together the incorporation doctrine.

In fact, if the current Court rules that PorI means what it says (and some folks are holding out hope for that), then incorporation will become something of an anachronism.

Quote:
This is exactly how the gun grabbers at the Federal level intend to trample states rights.
Please explain when and how they've done that through the incorporation doctrine. I was under the impression that most Federal restrictions were justified under the Commerce Clause, which is a completely different animal.

Quote:
If the federal government- by way of the 2nd thru the 14th amendment - can reach into a state and influence or even regulate gun rights, what else can they regulate? EVERYTHING. You have just opened Pandora's
Actually, Madison's original intent was for the Bill of Rights to enjoin state governments as well.

We had a very long thread on this not too long ago in which many of your concerns were addressed. It should still be on the front page of the L&CR forum. Regarding the Pandora's box analogy, give this article a read.

I'm well aware that some among the 10th Amendment revival movement are opposed to the idea of incorporating the Bill of Rights. Usually, these are the guys still using the phrase "states' rights." There's a certain blind political bias at work in their arguments.

I encourage you to read some of the amicus curiae briefs for the McDonald case, particularly those from the Calguns Foundation, the Second Amendment Foundation and the Institute for Justice, all of which can be found here.
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Old June 5, 2010, 09:10 AM   #8
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The US Constitution is a charter formed by the People, not the States, to make a more perfect union - the Federal Government.

Quote:
Preamble:

We the people of the United States, in order to form a more perfect union, establish justice, insure domestic tranquility, provide for the common defense, promote the general welfare, and secure the blessings of liberty to ourselves and our posterity, do ordain and establish this Constitution for the United States of America.


We, the People, reserved the right to keep and bear arms to ourselves. The Second Amendment is self-incorporating. Had We wanted the states to be able to limit said right we would have included the States into the 2A. The States of the Constitutional United States of America DID NOT exist until ratification of the US Constitution, and once each state ratified the USC or entered there after ratification, they were bound to the terms of the Constitution.

Incorporation via the 14th Amendment is an abomination of the Constitution. When we, the People, reserved said rights and powers to ourselves it limits all levels of government.
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Old June 5, 2010, 10:17 AM   #9
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Quote:
If the federal government- by way of the 2nd thru the 14th amendment - can reach into a state and influence or even regulate gun rights, what else can they regulate? EVERYTHING. You have just opened Pandora's Box.
I think a lot of people are aware that incorporation is subversion ... some people like subversion ... some people don't like subversion but figure that Pandora's Box is already open and our best bet is to try to subvert the US government in a pro-RKBA manner ...personally, I tend to oppose incorporation on the grounds that it is subversive and also because it is judicial activism ... the 14th Amendment says nothing about incorporating the USBOR ... my impression is that the 39th Congress intended the 14th Amendment to create a federal power over discriminatory gun laws, not a federal power over gun laws in general.
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Old June 5, 2010, 10:47 AM   #10
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Heck of a first post, almost troll like. Whatever your arguments are, lay them aside, SCOTUS will answer on June 28th, no matter what your opinions are. Have a nice day!
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Old June 5, 2010, 11:06 AM   #11
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Quote:
my impression is that the 39th Congress intended the 14th Amendment to create a federal power over discriminatory gun laws, not a federal power over gun laws in general.
Where do you see the distinction?
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Old June 5, 2010, 01:45 PM   #12
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We tend to focus on gun laws and rights, but look for a moment at the bigger picture, and the era where each of the Amendments was written.

We were British colonies. Each colony had a charter of some kind based on British law. We, THE PEOPLE (or enough of us, anyway ) revolted against the crown, and became independent colonies, looking for a better form of governance. The Articles of Confederation were not ...satisfactory, and we wound up adopting the Constitution. At that point we became a nation of united states, (no longer Confederated Colonies), and each state created their own version of the Constitution. Most are virtual copies of the Federal Constitution, but the wording differs slightly (and perhaps significantly) in some of them.

States rights were the issue that brought on the Civil War. We didn't fight a civil war over slavery. We fought over the issue of some states not believing the Federal Govt (or other states) had the right to tell them what to do.

Slavery was just the big issue (and there were others) that it was over, not what it was about. A subtle distinction, to be sure, and one missed by much of "modern" education.

Look at the time the 14th Amendment was passed. Shortly after the Civil War. It seems clear to me that the intent of it was to ensure we never repeated what brought us to civil war, again.

While I haven't personally checked all 50 state constitutions, all the ones I have looked at contain language essentially similar to the federal 2nd Amendment. Citizens have the right to arms, and to bear them at need. Some states use language about bearing arms in defense of self and the state.

If the Fed govt has been forced to remember (via Heller vs. DC) what our founders knew, then the same language must mean the same when used in the individual state constitutions. "The right of the people" means the rights of the individual, everywhere that phrase is used, not just where it is convenient for those who would do social engineering.

Where it gets a bit trickier is the "shall not be infringed" part. How much, or how little is infringement, should, rightly, be a state decision.
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Old June 5, 2010, 03:46 PM   #13
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Dudes and Uber babes... Maybe we could iron this out at the shooting range, over a cold beverage. I will bring my doublestar AR, my mossberg 500, and my sig p6, and we can plink some targets throughout our discussion. Then you will see I am on your side of the fence on gun rights. I may have a different opinion but a troll I am not.

The quote I referred to - "Yes, the 2nd amendment was intended to be applied to the states through the 14th amendment though the courts have refused to acknowledge or apply original intent." - Doesn't even make sense to me. Original Intent includes everything involved in the process leading up to the ratification of the Constitution, and the Bill of Rights. Simply put, original intent ENDED on 15 Dec 1791, not 9 July 1868, or on 7 May 1992 when the 27th amendment was ratified.

As for the 2nd amendment itself, it is a limit on the Federal Gov't. The FEDERAL government cannot infringe on "the right of the people". So far we all agree, right? This is where "our" problems start.

The tenth amendment says "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."

So if we agree that the Federal Gov't has no say in gun regulation, then it must fall to the States. If the States don't address the issue then it falls to "the people".

As for those who want to use "case law" to make a point, you are falling into a trap laid for you during the "Progressive Era". Circa 1920 Harvard started emphasing case law as opposed to original intent because the Constitution kept getting in the way of the policies they were trying to implement. My point being who's word would you take on a Constitutional arguement, a judge, or one of the signers of the Constitution himself? If you build your arguement on case law, you also have to assume that in EVERY case, EVERY judge correctly interpreted the Constitution as per original intent. One judge with an axe to grind can set precident, that another judge can use to advance their chosen agenda. Its called Judicial Activism, and it has infested the system.

"As for James Madison, he was the most inconsistent among George Washington, Thomas Jefferson, John Adams, Alexander Hamilton and Benjamin Franklin ( sometimes referred to as the BIG SIX). He was not the father of the Constitution and he argued for state's rights." It says on page 141 of "The Politically Incorrect Guide to the Founding Fathers".

I apologize for the length of this post, I was trying to make my case to the replies here. The Constitution is a for better or for worse document. It's not perfect, and the writers knew it. That's why there is an amendment process included. Did you know that the Constitution can be amended WITHOUT congress' input? See article five...

I tried to be respectful in my reply, nobody listens when everyone is shouting. I will post when I can, probably only on weekends.

Later,
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Old June 5, 2010, 05:02 PM   #14
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Quote:
Did you know that the Constitution can be amended WITHOUT congress' input? See article five...
And that is the reason a lot of us oppose a Constitutional Convention. The Constitution could be essentially changed or even completely gutted very quickly. What are we, one vote (state) shy of a Con-Con?
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Old June 5, 2010, 05:11 PM   #15
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SD, Welcome to the Firing Line.

I read your post last night, shortly after you logged in and posted. The URL you added in (http://www.guncite.com/2ndfou.html) goes nowhere. Did you mean http://www.guncite.com/gc2ndfou.html? If so, that seems to contradict what you have written.

Others, have given you some good answers along with some good reading material. Please take advantage of this opportunity, whether or not you agree.

Quote:
Originally Posted by Some_Dude
Here is the bare knuckle truth... The 2nd ONLY applies to the FEDERAL government. Because of the 9th and 10th amendments, your state MAY completely outlaw guns- it depends on your STATE constitution. How else can you explain the various gun laws each state has?
I believe you have it a bit wrong, with the above. The 9th amendment was a catch-all amendment. It merely states that all rights were not included within the framework of the (previously) enumerated rights.

The 10th amendment states quite clearly, that any power not enumerated (in the original constitution), belongs not to the central government, but to the States and if not given to those States (via their own constitutions), then they (the powers) are retained by the people, themselves.

Quote:
Original Intent includes everything involved in the process leading up to the ratification of the Constitution, and the Bill of Rights. Simply put, original intent ENDED on 15 Dec 1791, not 9 July 1868, or on 7 May 1992 when the 27th amendment was ratified.
Not quite.

Original Intent is a term of art, used to describe quite a few things, as far as the Constitution is concerned.

There is the original intent of the meaning of the Constitution itself. Then there is the original intent of the meaning of the Bill of Rights. That's 2 separate dates and two separate meanings. From there, we can use "original intent" to get at the meanings of each and every amendment after that.

So, there is an "original intent," as to the meaning of the 14th amendment. And that is what McDonald is about.
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Old June 5, 2010, 06:51 PM   #16
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And that is the reason a lot of us oppose a Constitutional Convention. The Constitution could be essentially changed or even completely gutted very quickly. What are we, one vote (state) shy of a Con-Con?

pnac... When you read Article V you would realize what a challenge it would be to get "...the Application of the Legislatures of two thirds of the several States..." (34 states) to agree to a Con-con? And then "... when ratified by the Legislatures of three fourths of the several States, or by Conventions in three fourths thereof..." (38 states) to actually agree on a constitutional amendment? When is the last time 34 states agreed on anything? Let alone 38 to ratify?

If you are worried about Nancy Pelosi hijacking a Con-con, - don't. She's already hijacking the Constitution on a daily basis. Any amendment would have to be so straight foreword, direct, and unambiguous to get 38 states to ratify it, a fifth grader could read and understand it as written. 38 states just don't agree on much of anything.

Thanks for taking the time to reply to my post.
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Old June 5, 2010, 07:01 PM   #17
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Quote:
If you are worried about Nancy Pelosi hijacking a Con-con, - don't.
Most of the calls for a 2nd Constitutional Convention seem to come from people who see themselves as conservatives. There's a certain short-sighted selfishness to the idea that really frightens me.
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Old June 5, 2010, 07:15 PM   #18
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Antipitas

The 9th amendment... "The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage OTHERS retained by the people." [Emphasis mine]

What the 9th amendment says (at least the way I read it) is... there are so many rights retained by the people that if we tried to name them all, we would forget to mention some. And the ones we forget to enumerate to the people, may be interpreted to be a power retained by the United States (gov't).

You also say that original intent is subjective (a term of art) is how you put it. I ask this question... If I write a love letter to my wife, I know (for a fact because I wrote it) what my original intent was. If you intercept the letter you can read it any way you want, but my original intent is unmistakable to ME. Your interpretation may or may not be correct. But I wrote the letter, and I know EXACTLY what it was I was trying to accomplish.

Everything you need to know about the Constitution was written before 1824. In my opinion (which around here ain't too popular lol) I welcome a friendly debate, thank you.

Later,
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Old June 5, 2010, 07:32 PM   #19
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Quote:
pnac... When you read Article V you would realize what a challenge it would be to get "...the Application of the Legislatures of two thirds of the several States..." (34 states) to agree to a Con-con? And then "... when ratified by the Legislatures of three fourths of the several States, or by Conventions in three fourths thereof..." (38 states) to actually agree on a constitutional amendment? When is the last time 34 states agreed on anything? Let alone 38 to ratify?
I think 32 states have voted for a Con-Con, it was sold as a "Balanced Budget"
Amendment. Ohio almost voted for it last year, or would have if someone had not caught it. Much mischief afoot.

http://stoptheconcon.wordpress.com/

http://www.youtube.com/watch?v=NoD0g...layer_embedded
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Old June 5, 2010, 07:45 PM   #20
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Tom Servo...

Thanks for the reply. Federalist 10 warned about "factions". I am an American. Any title someone wants to hang around my neck is immaterial. Playing both ends against the middle is the oldest trick in the book, and the Federal gov't does it well. Now you see the product... Leviathon. The fact that we are here and talking (typing lol) is proof that we are trying to figure this out as humans and Americans. You can take charge of your life, or it can take charge of you. I choose the former as opposed to the latter.

Libertas, numquam ex more ( Liberty never goes out of style)
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Old June 5, 2010, 07:48 PM   #21
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Quote:
What the 9th amendment says (at least the way I read it) is... there are so many rights retained by the people that if we tried to name them all, we would forget to mention some. And the ones we forget to enumerate to the people, may be interpreted to be a power retained by the United States (gov't).
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.
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Old June 5, 2010, 08:12 PM   #22
Some_Dude
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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.
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Old June 5, 2010, 08:44 PM   #23
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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.

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Old June 5, 2010, 08:54 PM   #24
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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.
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Old June 6, 2010, 03:23 AM   #25
raimius
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Join Date: January 27, 2008
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Quote:
As for the 2nd amendment itself, it is a limit on the Federal Gov't.
As originally intended, probably.
However, what good is a "Right" if the local government can deny it? That was supposed to be addressed by the 14th. We will see if the SCOTUS agrees...
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