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Old June 6, 2010, 12:47 PM   #26
Bartholomew Roberts
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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.
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.

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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."
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.

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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.
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.
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Old June 7, 2010, 04:15 AM   #27
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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.
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Old June 7, 2010, 05:04 AM   #28
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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.
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.
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Old June 7, 2010, 07:18 AM   #29
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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.



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.
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Old June 7, 2010, 08:51 AM   #30
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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:
Quote:
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.
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.
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Old June 7, 2010, 09:07 AM   #31
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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.
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.

Quote:
Article 1, Section 7, Clause 1
All Bills for raising Revenue shall originate in the House of Representatives
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.
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Old June 7, 2010, 09:45 AM   #32
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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.
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Old June 7, 2010, 10:55 AM   #33
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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)
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.
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Old June 7, 2010, 11:00 AM   #34
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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.
I completely agree with what you stated. and your comments above that and Im stuck on it too.
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Old June 7, 2010, 11:19 AM   #35
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BGutzman:

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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.
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.
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Old June 7, 2010, 11:26 AM   #36
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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.
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.
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Old June 7, 2010, 11:29 AM   #37
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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?
The govt. cannot Rightfully do so.
This is a self evident truth.

It is also a self evident truth that the above is my opinion even though I didn't say "imo", since there are obviously people who would disagree...

They just happen to be wrong.
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Old June 7, 2010, 11:49 AM   #38
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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..
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Old June 7, 2010, 11:49 AM   #39
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Tom Servo:

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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.
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.
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Old June 7, 2010, 12:00 PM   #40
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BGutzman:

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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).
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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Old June 7, 2010, 12:33 PM   #41
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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.
Quite the contrary, the US Constitution did not create a central government empowered to "protect our rights", it was however created to protect the States' right to slavery ... one region seemed to be exempting itself from the limits of the US Constitution by trying to interfere with the States' right to slavery, so another region had to secede in hopes of preserving free and constitutional government. Slavery was not unconstitutional.
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Old June 7, 2010, 12:38 PM   #42
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I think the word "right" has many meanings, and there are many kinds of rights ... the way I tend to look at it, the word "right" generally regards something that is proper/right according to some given system e.g. a natural right is something right by nature, a divine right is something right by religion ... I tend to see bills of rights as primarily regarding political rights i.e. principles that are right according to the system of government framed by the associated constitution ... Madison referred to these as "dogmatic maxims", and he went on to say that regardless of what type of right is declared by a bill of rights, that the intent and purpose is to limit the government framed by the attached constitution ... here is part of what Madison said about it when proposing a US Bill of Rights to Congress:

"In some instances they [the existing (State) bills of rights] assert those rights which are exercised by the people in forming and establishing a plan of government. In other instances, they specify those rights which are retained when particular powers are given up to be exercised by the legislature. In other instances, they specify positive rights, which may seem to result from the nature of the compact. Trial by jury cannot be considered as a natural right, but a right resulting from the social compact which regulates the action of the community, but is as essential to secure the liberty of the people as any one of the pre-existent rights of nature. In other instances they lay down dogmatic maxims with respect to the construction of the government ... But whatever may be form which the several states have adopted in making declarations in favor of particular rights, the great object in view is to limit and qualify the powers of government"

I don't know why y'all are saying that the Framers never imagined that a State could infringe upon a right when most States had bills of rights to guard against that very thing.

I also don't follow this assertion that the US Constitution is written in plain English, while at the same time we construe the 14th Amendment such that the word "privileges" means "inalienable natural rights" ... I think the plain english meaning is that an inalienable natural right belongs to everyone while a privilege belongs to a select/privileged group.

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Old June 7, 2010, 01:14 PM   #43
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We are not doing a discussion of slavery and the merits of the Confederacy as champions of liberty or whatever.

Please don't go there.

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Old June 7, 2010, 01:49 PM   #44
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Hugh, you continue to get this wrong.
Quote:
Originally Posted by Hugh
I also don't follow this assertion that the US Constitution is written in plain English, while at the same time we construe the 14th Amendment such that the word "privileges" means "inalienable natural rights" ... I think the plain english meaning is that an inalienable natural right belongs to everyone while a privilege belongs to a select/privileged group.
Privileges are those political rights (like Madisons mention of Trial by Jury) that are accorded to citizens of the social compact.

Immunities are those rights that were considered natural to all men.

The phrase, taken together, means all the natural rights and the political rights that are accorded to Citizens. Aliens (those not citizens) within the US, are accorded the immunities and protected by due process. The Equal justice clause, accords aliens some privileges, but not all.
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Old June 7, 2010, 07:27 PM   #45
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I don't know why y'all are saying that the Framers never imagined that a State could infringe upon a right when most States had bills of rights to guard against that very thing.
Certainly you have a point here, but I would be willing to bet they would be very troubled to see where where are today concerning the second ammendment.

I do think the constitution was intended to be plain english and the concepts well within the grasp and understanding of any common person of the era even if they couldnt read it directly.

I have stong feelings concerning this and I know others, including some staff members may strongly disagree. Im a constitutionalist on the left / right scale....

We all have our points I find it hard to believe otherwise but I am open to everyones thoughts.
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Old June 7, 2010, 08:56 PM   #46
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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.
Slightly off topic, but there's a stinging irony in the Miller decision in that sawed-off shotguns were used for military purposes in World War I. They made excellent trench-clearing weapons and were often used by guards in POW camps.

Among Justice McReynolds' personal flaws was a vein of laziness. He was stuck authoring the opinion, and he did so with no excess of effort or research.

Quote:
Quite the contrary, the US Constitution did not create a central government empowered to "protect our rights", it was however created to protect the States' right to slavery
I'm really gonna need to see a citation backing this up. Last time I checked, states don't have rights; they have powers. People have rights.
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Old June 7, 2010, 10:28 PM   #47
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Originally Posted by USAFNoDak
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.
A few tidbits about how strange Miller actually was:
  • Jack Miller and Frank Layton were indicted for violating NFA34 and Judge Ragon refused to accept their guilty pleas;
  • Ragon issued a 5-sentence decision quashing Miller and Layton's indictments and declaring NFA34 unconstitutional;
  • The decision was appealed to SCOTUS and Miller and Layton's public defender did not file a brief or make oral arguments;
  • SCOTUS reversed Ragon's conclusion about NFA34 and remanded to reinstate Miller and Layton's indictments;
  • Miller had been killed in the interim and Layton pleaded guilty, so there was never really a District Court trial, as such.

Quote:
Originally Posted by Tom Servo
Slightly off topic, but there's a stinging irony in the Miller decision in that sawed-off shotguns were used for military purposes in World War I. They made excellent trench-clearing weapons and were often used by guards in POW camps.
Justice McReynolds was considered lazy, but in Miller he only said that no arguments had been presented that sawed-off shotguns were military weapons, which was not surprising since only the government presented arguments in Miller.
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Old June 8, 2010, 06:32 AM   #48
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And of course Ragon (the District Court Judge in Miller) had been a huge supporter of gun control in the past, including measures much more severe than the NFA. Almost like he picked a nice, weak case to send to SCOTUS.
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Old June 15, 2010, 09:20 AM   #49
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It may be helpful to view the 14th amendment in its historical context. The 13th, 14th, and 15th amendments were all ratified one right after the next. The 13th abolished slavery. This created a problem of having a bunch of free people with no citizenship. The states, north or south, did not see the recently freed slaves as citizens. This issue was addressed by the 14th amendment. The 14th created a class of citizenship for these people. They basically became citizens of the Federal government. The 15th told the states that they must allow these citizens to vote. The incorporation doctrine would lawfully apply to the federal government protecting the rights of its 14th amendment citizens against state actions. Odd thing is that the freed slaves have passed on, but the government still operates as if it has 14th amendment citizens.

As long as we are going to live under the incorporation doctrine, I'd prefer the 2nd amendment to be included. I'd prefer even more to not be practicing it at all.

Here's a good essay on the 14th amendment.
http://originalintent.org/edu/14thamend.php

I'd like to see an amendment to repeal the 14th and place it with one to state that the qualifications for natural born citizenship apply to people equally, no matter where their ancestors are from.
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Old June 15, 2010, 09:28 AM   #50
Brian Pfleuger
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Quote:
Originally Posted by apr1775
As long as we are going to live under the incorporation doctrine, I'd prefer the 2nd amendment to be included. I'd prefer even more to not be practicing it at all.
Well said.


I don't think that the 2nd (or any other amendment) was intended to apply to the states for the simple reason that I don't think that the founders envisioned the people losing control of the state governments. The states are supposed to be close to the people, under our control. I don't think that we have control of TOWN governments the way that we are supposed to have control of STATE governments.

The only reason that "incorporation" is even a word that applies to constitutional law, IMO, is because we have lost control of state governments.
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