The Firing Line Forums

Go Back   The Firing Line Forums > The Conference Center > Law and Civil Rights

Closed Thread
 
Thread Tools
Old June 30, 2010, 10:03 PM   #101
mack59
Senior Member
 
Join Date: July 14, 2004
Posts: 409
Government can always be corrupt and the corrupt will always use any and all means available to further their ends.

The 2nd amendment is a right of the people not a right or power of the government - it restricts the government - as stated in Heller and then McDonald - the right is the right of the people and the amendment protects that right against federal, state, and local government.

A federal gun ban attempt would not use the second amendment as a justification for the power grab anyway - hard to turn a restriction into a grant of government power. They would simply use the commerce clause as they have time and again.
mack59 is offline  
Old June 30, 2010, 10:44 PM   #102
Hugh Damright
Senior Member
 
Join Date: June 5, 2004
Posts: 609
Quote:
It's just too bad the 2nd amendment had to be Incorporated to accomplish this.
I don't think it did. They said in Presser v Illinois that regardless of the Second Amendment no State can ban guns, so all they had to do was go a little further and say that regardless of the Second Amendment Chicago cannot ban handguns. But what they hope to accomplish is incorporation, that's the agenda that McDonald is part of.


Quote:
What case do you think will be cited to justify the right of the Federal Govt to reach into a state and enforce the law in this example?

That's right, McDonald v. Chicago.
I don't see that happening, but I do have concerns that incorporation might be construed so as to level the governments, not so that no level of government has gun control powers, but so that every level of government has gun control powers.
Hugh Damright is offline  
Old July 1, 2010, 12:06 AM   #103
Webleymkv
Senior Member
 
Join Date: July 20, 2005
Location: Indiana
Posts: 9,766
Quote:
What if Nancy Pelosi (or someone else) decides they want to outlaw any caliber of bullet greater than a .38? If a bill gets thru congress ( like maybe a lame duck congress that got whipped in an election - see Nov 2010 ) and signed by a President, it then becomes law. Someone files suit and it ends up in the Supreme Court. What case do you think will be cited to justify the right of the Federal Govt to reach into a state and enforce the law in this example?

That's right, McDonald v. Chicago.
I think you're misunderstanding exactly what incorporation means. McDonald doesn't give the Feds the right to override state laws as, to a certain extent, they already had the power to do so. All that McDonald really says is that state laws regarding 2A are now subject to the same level of constitutional scrutiny that federal laws are under Heller.

The only way that McDonald can interfere with state laws is if they are so restrictive that they run afoul of 2A. Assuming that the caliber ban you cite would be found constitutional in the first place, McDonald would make no difference whatsoever. Where McDonald would come into play would be if such a caliber ban were found unconstitutional for the feds, then an individual state such as California or Massachusetts would not be able to enact such a law either.

Basically, all McDonald says is that if the feds can't do it, neither can the states or cities.
__________________
Smith, and Wesson, and Me. -H. Callahan
Well waddaya know, one buwwet weft! -E. Fudd
All bad precedents begin as justifiable measures. -J. Caesar
Webleymkv is offline  
Old July 1, 2010, 12:37 AM   #104
Hugh Damright
Senior Member
 
Join Date: June 5, 2004
Posts: 609
Quote:
Basically, all McDonald says is that if the feds can't do it, neither can the states or cities.
I am not aware that McDonald says anything of that nature ... I think the rule remains that federal gun laws are generally unconstitutional because the feds are not delegated gun control powers, while state gun laws are generally constitutional because police powers are reserved to the states ... McDonald means that that the Fourteenth Amendment limits the States' gun control powers, but I am not aware that it reduces them to the same level as federal gun control powers ... and if incorporation were to bind the States the way the federal government is bound, it seems as though the States would be bound to tight to maintain a society and culture.
Hugh Damright is offline  
Old July 1, 2010, 04:27 AM   #105
RDak
Senior Member
 
Join Date: October 17, 2004
Location: Michigan
Posts: 734
So Some Dude and Pnac, you would have been happier if Heller wasn't incorporated against the States?

IMHO, some rights are so fundamental that the States should be prohibited from infringing upon them.

I see Heller and McDonald as absolutely HUGE wins for 2A proponents.
RDak is offline  
Old July 1, 2010, 06:12 AM   #106
BlueTrain
Senior Member
 
Join Date: September 26, 2005
Location: Northern Virginia
Posts: 5,809
To the honorable Mr. peetzakilla from the great state of New York, I'd like to suggest that when the powerful, educated and influential were in control of the government, whether or not they did their best to serve the interests of the people at large is a highly debatable point. I will concede, however, that there hasn't been a lot of that happening in, say, the last 20 or 30 years.

Part of the problem is that the best interests of the country, the best interests of the individual and the best interests of the population at large are hardly always the same. It is rarely in the best interests of anyone to be drafted (which we don't have at the moment), yet there have been times when such was necessary. Sometimes, though, it sure seems like the chief benefit of a strong military is corporate interests. At other times, it seems to be to a given state over another state.

It should be noted in passing that things evolved the way they did, right from the start, partly, perhaps mostly, because of the recent experiences of those who sat down and actually worked out what the constitution was going to say. They had been through a long war and had already had a form of national government that was unworkable. I've not heard anyone say they'd like to go back to that form of constitution but one does get that impression now and then. Other forms of government recently suggested by those who should know better but apparently get paid to say otherwise, include anarchy and government by asassination. Remember, one of the first things Washington had to do was to put down a tax revolt, which he did.

I wonder if it was the original intent of the framers of the constitution that women be allowed to carry concealed weapons?
__________________
Shoot low, sheriff. They're riding Shetlands!
Underneath the starry flag, civilize 'em with a Krag,
and return us to our own beloved homes!
Buy War Bonds.
BlueTrain is offline  
Old July 1, 2010, 09:25 AM   #107
mack59
Senior Member
 
Join Date: July 14, 2004
Posts: 409
Uh, the court did state and rule in McDonald that the states are held to the same standard that the federal government is in regards to the right to keep and bear arms. The court stated that if it is not permitted to the federal government it is also not permitted to the states.

Now, whether or not one believes that this is constitutional or that it should be the case - that is another debate. But the text of the McDonald decision does in fact state that the amendment applies equally to both the federal government and the states.

In fact the city of Chicago argued that the right should not apply to the states to the same extent it does to the federal government and that argument was specifically rejected by the court.
mack59 is offline  
Old July 1, 2010, 10:13 AM   #108
Hugh Damright
Senior Member
 
Join Date: June 5, 2004
Posts: 609
Quote:
the court did state and rule in McDonald that the states are held to the same standard that the federal government is in regards to the right to keep and bear arms. The court stated that if it is not permitted to the federal government it is also not permitted to the states.
I would appreciate a quote, because I find it very hard to believe that even the SCOTUS would say something so absurd.
Hugh Damright is offline  
Old July 1, 2010, 11:57 AM   #109
rwilson452
Senior Member
 
Join Date: June 10, 2004
Location: Tioga co. PA
Posts: 2,342
Hugh, read it and believe.

http://www.supremecourt.gov/opinions/09pdf/08-1521.pdf
__________________
USNRET '61-'81
rwilson452 is offline  
Old July 1, 2010, 12:10 PM   #110
mack59
Senior Member
 
Join Date: July 14, 2004
Posts: 409
From the decision the following quotes:

We have previously held that most of the provisions of the Bill of Rights apply with full force to both the Federal Government and the States. Applying the standard that is well established in our case law, we hold that the Second Amendment right is fully applicable to the States.

Finally, the Court abandoned “the notion that the Fourteenth Amendment applies to the States only a watered-down, subjective version of the individual guarantees of the Bill of Rights,” stating that it would be “incongruous” to apply different standards “depending on whether the claim was asserted in a state or federal court.”
Instead, the Court decisively held that incorporated Bill of Rights protections “are all to be enforced against the States under the Fourteenth Amendment according to the same standards that protect those personal rights against federal encroachment.”

There is nothing new in the argument that, in order to respect federalism and allow useful state experimentation, a federal constitutional right should not be fully binding on the States. This argument was made repeatedly and eloquently by Members of this Court who rejected the concept of incorporation and urged retention of the two track approach to incorporation. Throughout the era of “selective incorporation,” Justice Harlan in particular, invoking the values of federalism and state experimentation, fought a determined rearguard action to preserve the two-track approach. Time and again, however, those pleas failed. Unless we turn back the clock or adopt a special incorporation test applicable only to the Second Amendment, municipal respondents’ argument must be rejected. Under our precedents, if a Bill of Rights guarantee is fundamental from an American perspective, then, unless stare decisis counsels otherwise,30 that guarantee is fully binding on the States and thus limits (but by no means eliminates) their ability to devise solutions to social problems that suit local needs and values.

Municipal respondents assert that, although most state constitutions protect firearms rights, state courts have held that these rights are subject to “interest-balancing” and have sustained a variety of restrictions. Brief for Municipal Respondents 23–31. In Heller, however, we expressly rejected the argument that the scope of the Second Amendment right should be determined by judicial interest balancing, 554 U. S., at ___–___ (slip op., at 62–63), and this Court decades ago abandoned “the notion that the Fourteenth Amendment applies to the States only a watered-down, subjective version of the individual guarantees of the Bill of Rights,”


Third, JUSTICE BREYER is correct that incorporation of the Second Amendment right will to some extent limit the legislative freedom of the States, but this is always true when a Bill of Rights provision is incorporated. Incorporation always restricts experimentation and local variations, but that has not stopped the Court from incorporating virtually every other provision of the Bill of Rights. “[T]he enshrinement of constitutional rights necessarily takes certain policy choices off the table.” Heller, 554 U. S., at __ (slip op., at 64). This conclusion is no more remarkable with respect to the Second Amendment than it is with respect to all the other limitations on state power found in the Constitution.


Unless considerations of stare decisis counsel otherwise, a provision of the Bill of Rights that protects a right that is fundamental from an American perspective applies equally to the Federal Government and the States.
mack59 is offline  
Old July 1, 2010, 12:13 PM   #111
natman
Senior Member
 
Join Date: June 24, 2008
Posts: 1,252
Quote:
the court did state and rule in McDonald that the states are held to the same standard that the federal government is in regards to the right to keep and bear arms. The court stated that if it is not permitted to the federal government it is also not permitted to the states.
Quote:
I would appreciate a quote, because I find it very hard to believe that even the SCOTUS would say something so absurd.

Quote:
Two years ago, in District of Columbia v. Heller, 554
U. S. ___ (2008), we held that the Second Amendment protects the right to keep and bear arms for the purpose of self-defense, and we struck down a District of Columbia law that banned the possession of handguns in the home.The city of Chicago (City) and the village of Oak Park, a Chicago suburb, have laws that are similar to the District of Columbia’s, but Chicago and Oak Park argue that their laws are constitutional because the Second Amendment has no application to the States. We have previously held that most of the provisions of the Bill of Rights apply with full force to both the Federal Government and the States. Applying the standard that is well established in our case law, we hold that the Second Amendment right is fully applicable to the States.
[emphasis added]

SCOTUS, Opinion of the Court, page 2, MCDONALD v. CHICAGO 2010
natman is offline  
Old July 1, 2010, 12:56 PM   #112
Hugh Damright
Senior Member
 
Join Date: June 5, 2004
Posts: 609
Quote:
the Court decisively held that incorporated Bill of Rights protections “are all to be enforced against the States under the Fourteenth Amendment according to the same standards that protect those personal rights against federal encroachment.”
I find there are two ways to read this .. in one construction, if the Second Amendment prevents the US from banning handguns in a federal district like DC, then it also prevents a city/state from banning handguns like in Chicago ... this construction makes some sense to me and seems to fit the Heller/McDonald cases ... in the other construction, if the US has no general gun control powers over Virginia, no jurisdiction over CCW for example, then Virginia also has no general gun control powers over Virginia, such as jurisdiction over CCW ... this construction seems nonsensical to me.


Quote:
this Court decades ago abandoned “the notion that the Fourteenth Amendment applies to the States only a watered-down, subjective version of the individual guarantees of the Bill of Rights,”
I don't see how that is the issue ... police powers were reserved to the States, and these include gun control powers ... if the federal government is not empowered with jurisdiction over gun laws in Virginia, e.g. they cannot require a CCW permit, and Virginia requires a permit to CCW, that is not a watered-down right ... the US might prohibit CCW in a federal district such as DC, and Virginia might prohibit CCW, but y'all seem to construe it to mean that if the US cannot prohibit CCW in Virginia then Virginia cannot prohibit CCW in Virginia.
Hugh Damright is offline  
Old July 1, 2010, 03:24 PM   #113
mack59
Senior Member
 
Join Date: July 14, 2004
Posts: 409
No, I don't get where you get what you are trying to claim others are claiming here. People are merely saying that the right to keep and bears arms is as legally binding on the states as it is on the federal government - like the first amendment and the right to free speech or the right to worship.

The point being that the minority opinions wanted to water down the second amendment if it was applied to the states (so that states could ban handguns or assualt rifles or high capacity magazines) - though they didn't want it applied at all - since they really disagreed with it even being or protecting an individual right to keep and bear arms.

Regarding the bearing of arms - the court seems inclined from the information they include in their decision to allow states to individually define how, where, or under what circumstances the carrying or bearing of arms would occur within the limitations of the right - so long as it does not violate the fundamental right protected - i.e. a state could require open carry or ccw - or it could require open carry in some circumstances and ccw in others - so long as people could exercise their RKBA. One state might ban carry in sensitive places such as schools or governement buildings another state might not. One state might have a shall issue license (so long as it did not unduly burden or interfer with the free exercise of the right), another state might have no license. But all such laws would have to exist within the defined right of individuals to keep and bear arms. Thus no state could ban handguns, no state could ban the bearing or carrying of arms, no state could impose draconian restrictions on keeping or bearing arms.

The Illinois constitution has a right to keep and bear arms in it, but it also has the added phrase, as subject to police powers. The Illinois courts have ruled that because of that all and any gun control laws are legal in Illinois. Because of McDonald that will no longer be the case - police powers will no longer trump the fundamental individual right to keep and bear arms and will be subject to standards of scrutiny as identified by the federal courts.
mack59 is offline  
Old July 1, 2010, 09:17 PM   #114
gc70
Senior Member
 
Join Date: May 24, 2005
Location: North Carolina
Posts: 2,442
Quote:
Originally Posted by RDak
IMHO, some rights are so fundamental that the States should be prohibited from infringing upon them.
The same logic would suggest that nations should be prohibited from infringing upon fundamental rights and we would all benefit from the collective benevolence of the U.N.
gc70 is offline  
Old July 1, 2010, 10:35 PM   #115
Hugh Damright
Senior Member
 
Join Date: June 5, 2004
Posts: 609
Quote:
People are merely saying that the right to keep and bears arms is as legally binding on the states as it is on the federal government
It's like saying that the the feds have gun control powers equal to the States ... I suppose it's true if we're talking about federal gun control powers within federal districts like DC ... but the assertion seems to easily bear another construction.

Quote:
IMHO, some rights are so fundamental that the States should be prohibited from infringing upon them.
I think the Framers' Constitution is based upon the principle that some rights are so fundamental that the central government should be powerless with regards to them. I have never understood this idea that the rights of Virginians are not safe in the hands of Virginians, and that we need to put them in the hands of the federal government. Well, I think it's civil war propaganda, this idea that the States are the boogeyman and the federal government is our saviour.
Hugh Damright is offline  
Old July 2, 2010, 03:02 AM   #116
Some_Dude
Junior Member
 
Join Date: June 4, 2010
Posts: 13
Webleymkv...

You said (in post #103) "All that McDonald really says is that state laws regarding 2A are now subject to the same level of constitutional scrutiny that federal laws are under Heller."

You also stated "Basically, all McDonald says is that if the feds can't do it neither can the states or cities."

Allow me to build my case. Read Art. I Sec. 8, then Art.I Sec.9, then the 2nd Amendment, then 9A and 10A, then read the two quotes above.

My assertion is the Chicago gun ban is an issue to be addressed by the citizens of Chicago at the city and/or county level directly, and the citizens of Illinois outside of Chicago at the state level. The people who live there vote for their elected government. If gun grabbers keep getting elected - who's fault is it?!

Now SCOTUS has set legal precident for Federal Gov't to decide a STATE issue, as it pertains to state gun laws. How does the Illinois state Constitution address gun laws? That should be the alpha and omega of this whole kerfluffle, as long as the Illinois state Constitution is not in conflict with the US Constitution. Maybe the good people of Illinois should amend their state constitution? Maybe they should quit electing gun grabbers OR maybe they should MOVE out of Chi-town or even out of Illinois!

In my opinion, this ruling while good for citizens of Chicago short term, is a full frontal assault on the 9 and 10A. Which is essential if one wants to "progress" from a Federal gov't to a National Gov't. Alexander Hamilton would be SO proud.

You stated: "Basically, all McDonald says is that if the feds can't do it neither can the states or cities." Where does the Federal gov't find their Constitutional authority to impose an Un-Enumerated power over states or cities? Those who emphasize case law over original intent, that's where they will find it. And what case law will be used by the Feds to disregard states rights as it pertains to gun laws... wait for it... McDonald v. Chicago.

You can't imagine how much I hope I am wrong.
Later,
Some_Dude
Some_Dude is offline  
Old July 2, 2010, 03:27 AM   #117
maestro pistolero
Senior Member
 
Join Date: August 16, 2007
Posts: 2,047
Quote:
Where does the Federal gov't find their Constitutional authority to impose an Un-Enumerated power over states or cities?
NOT un-numerated. Clearly enumerated in the 14th Amendment. It was ratified, you know. Attempts to undermine it have succeeded only for a time.

Thomas with Gura's help may have resurrected the POR clause and breathed life back into it somewhat. Regardless, all this hand-wringing over the loss of pure federalism is over 100 years late.
maestro pistolero is offline  
Old July 2, 2010, 08:37 AM   #118
Al Norris
Staff
 
Join Date: June 29, 2000
Location: Rupert, Idaho
Posts: 9,276
Quote:
Originally Posted by Hugh
I have never understood this idea that the rights of Virginians are not safe in the hands of Virginians, and that we need to put them in the hands of the federal government.
So a majority of Virginians can vote to deny fundamental rights to other Virginians, just because they are the majority?

Quote:
Originally Posted by Hugh
Well, I think it's civil war propaganda, this idea that the States are the boogeyman and the federal government is our saviour.
Really?

Then explain how and why all those black codes (Jim Crow Laws) came into effect. You know, those various State laws that denied the Freedmen just about every right a Free Man is entitled to.

Explain why the State never prosecuted the perpetrators of the Colfax Massacre?

Quote:
Originally Posted by Some Dude
Where does the Federal gov't find their Constitutional authority to impose an Un-Enumerated power over states or cities?
Amendment 14, section 5: The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.

Where the Congress can fail, by not passing appropriate legislation, the Court can, through judicial review, force the issue.
__________________
National listings of the Current 2A Cases.
Al Norris is offline  
Old July 2, 2010, 09:54 AM   #119
mack59
Senior Member
 
Join Date: July 14, 2004
Posts: 409
Many states have had a henious history of abridging the basic civil and human rights of their citizens -slavery, jim crow, the civil rights movement. States are no more moral or sacred or sacrosant or infallible than any other form of government.

It was suggested that Illinois voters should vote out the politicians - pretty hard to do when the dead vote, when illegals vote, when precints in Chicago report more than 100 percent voter turn out, when ballot boxes disappear or are mysteriously found. But then they should just move - abandon family land and family, surrender their state, culture, and communties to corrupt politicians - runaway with their tails between their legs. Some choose to fight - some fought by going to the courts and asking that a basic and fundamental individual right be enforced by the federal government as it has enforced other such basic rights contained in the bill of rights.

But then again the people who are against this are also against any federal enforcement of freedom of speech, or the freedom to worship, etc...

The civil war resulted in the 14th amendment - and that amendment has since been held to allow the federal government to apply the larger portion of the protections of individuals fundamental liberties contained in the Bill of Rights to the States.

As government power grabs go - I am much more concerned about the misuse of the commerce clause than the possible misuse by the federal government of the freedom of speech, or of worship, or the RKBA.

This whole debate reminds me of a conversation I had with an Illinios state senator about 15 or 17 years ago over state wide legislation for a shall issue concealed carry bill. The senator, a republican, said that he couldn't support the bill because it violated the rights of local cities (called home rule in Illinois - which is why for a statewide ccw bill to pass it must have a supermajority). I was stunned at his reasoning that somehow cities have rights and that those rights are more important than the fundamental liberties of individuals. If one were to whole heartedly subscribe to this line of thinking then I guess in order to exercise a fundamental liberty like the freedom of speech - one should with proper deference first get permission from the federal government, then get permission from one's state govt., then get permission from one's county govt., and then get permission from one's town or city govt.


Editted to add: Hugh I would certainly pay to see you debate Justice Thomas.

Last edited by mack59; July 2, 2010 at 09:59 AM.
mack59 is offline  
Old July 2, 2010, 11:06 AM   #120
USAFNoDak
Senior Member
 
Join Date: August 21, 2000
Location: Minnesota, Twin Cities
Posts: 1,039
Rights vs. Powers.

My take on this is that we have not given the federal government more power via McDonald. All we have done is tell the states that they must also protect FUNDAMENTAL, INDIVIDUAL, RIGHTS, in accordance with the constitution. The states should NOT have the POWER to trample our RIGHTS, any more than the federal government does. That's what I'm getting out of Heller, McDonald, and the 2nd, 9th, 10th, and 14th amendments in the BOR.

Does a state have the POWER to force ALL of the citizens to belong to one specific religion which is chosen by that state? If the USSC says "NO", does this mean that the federal government is given more power over the states to regulate religious activities? I don't believe it does.

If a specific state said that all churches must pay an annual duty of 10% of their collections as a tithe to the state, would the USSC let that ride? If the USSC said this was in violation of the first amendment, does that mean the federal government now has more power over the states rights? I'm not sure it does.

What if a state said that they no longer believed in Miranda rights being given until the actual day of the trial for the suspect? Would the USSC let that pass? If not, would it be the feds trumping states rights?

What if a certain state said that only one newspaper, state approved, was legal to print and distribute within that state? Should that be left up to the state's "rights"? I believe most americans would look to the BOR to resolve that issue.

I say that states do not have the "power" or the "rights" to trump FUNDAMENTAL, INDIVIDUAL, RIGHTS". The USSC telling them so is not necessarily a power grab by the federal government. It's a lecture telling the states to abide by the United States Constitution when you pass laws, or the USSC will be likely to strike down such laws which seem to run afoul of the Constitution.

Here's two examples I can see happening.

1. The state of Illinois passes a law which effectively states that in order to carry a concealed handgun in public, one must have a permit to do so, which will involve training and a test, plus a processing fee. I seriously doubt the USSC would strike that down as it may not directly violate the 2nd A. It doesn't say you can't keep and bear arms, it says that if you want to bear arms in a concealed manner, the state has reason to check out why you want to do so. Provided they don't put undue burdens in your way, such as a fee of $10,000.00, it may pass Constitutional muster as the USSC sees it.

2. The City of Chicago says that no one can possess any handguns at all within the city limits, even in their own home. This is clearly in violation of the 2nd A. and the USSC should and likely would strike it down, as they just did.

I don't see this as the feds imposing new laws on, or new powers over, the states. I see it as the feds making sure that our fundamental, individual, rights are protected against state, as well as federal, violations.
__________________
"If you love wealth better than liberty, the tranquility of servitude better than the animating contest of freedom, go home from us in peace. We ask not your counsels or arms. Crouch down and lick the hands which feed you. May your chains set lightly upon you and may posterity forget that ye were our countrymen." Samuel Adams.
USAFNoDak is offline  
Old July 2, 2010, 02:37 PM   #121
Hugh Damright
Senior Member
 
Join Date: June 5, 2004
Posts: 609
Quote:
The States are the Boogieman ... Slavery, Jim Crow, the Colfax Massacre, and the Civil Rights Movement
It is my understanding that some southern states, at least South Carolina, had more slaves than citizens, while states in other regions were typically something like 99.9% white ... it makes sense to me that a State that was 99.9% white would be more likely to end slavery, end Jim Crow laws, prosecute the Colfax Massacre, and have a Civil Rights Movement ... and it seems to follow that if such things were nationalized i.e. left up to the many States that the results would benefit negroes ... maybe the States have been the boogieman of negroes because of the fact that negroes have been concentrated in one region ... maybe the federal government is the saviour of negroes ... but from my perspective, the States are the bulwark of liberty, and the federal government is way too big for its britches.


Quote:
It was suggested that Illinois voters should vote out the politicians - pretty hard to do when the dead vote, when illegals vote, when precincts in Chicago report more than 100 percent voter turn out, when ballot boxes disappear or are mysteriously found.
I find it hard to believe that the people of Chicago or Illinois are fed up with their gun laws, voting for representatives who will change their gun laws, only the elections are rigged and they get anti-gun representatives anyway. But if it's true, then that might be a case for federal intervention.


Quote:
But then they should just move - abandon family land and family, surrender their state, culture, and communties to corrupt politicians - runaway with their tails between their legs. Some choose to fight - some fought by going to the courts and asking that a basic and fundamental individual right be enforced by the federal government as it has enforced other such basic rights contained in the bill of rights.
I could respect that if not for the agenda to incorporate ... they might have gone with Pressser, which said that regardless of the Second Amendment no State could ban guns, and got them to expand on that and say that regardless of the Second Amendment Chicago cannot ban handguns. I think the incorporation approach is part of an agenda, and I think the agenda is to further subvert our federal/state relationship.
Hugh Damright is offline  
Old July 2, 2010, 05:50 PM   #122
Webleymkv
Senior Member
 
Join Date: July 20, 2005
Location: Indiana
Posts: 9,766
Originally posted by Hugh Damright
Quote:
Quote:
Basically, all McDonald says is that if the feds can't do it, neither can the states or cities.

I am not aware that McDonald says anything of that nature ... I think the rule remains that federal gun laws are generally unconstitutional because the feds are not delegated gun control powers, while state gun laws are generally constitutional because police powers are reserved to the states ... McDonald means that that the Fourteenth Amendment limits the States' gun control powers, but I am not aware that it reduces them to the same level as federal gun control powers ... and if incorporation were to bind the States the way the federal government is bound, it seems as though the States would be bound to tight to maintain a society and culture.
First, please don't misunderstand. McDonald does not mean that the states must automatically conform to the exact same gun laws as the feds. What it does say is that any gun law which would be unconstitutional at the federal level is also unconstitutional at the state level. It is not unconcievable that the federal government could pass new gun control laws which would be found constitutional like microstamping, a new AWB, or registration. SCOTUS has never ruled on such measures so we really don't know if they would be found constitutional or not.

Where the federal government's power is most limited over that of the states is that it must draw much larger and diverse support for any measure that it wishes to pass. While very restrictive gun laws may be relatively easy to pass in New York, they are not so easy to pass in Texas. Texas has no say over what laws New York passes, but Texas and all the rest of the states do have a say in what laws the federal government passes.

Quote:
Quote:
the Court decisively held that incorporated Bill of Rights protections “are all to be enforced against the States under the Fourteenth Amendment according to the same standards that protect those personal rights against federal encroachment.”

I find there are two ways to read this .. in one construction, if the Second Amendment prevents the US from banning handguns in a federal district like DC, then it also prevents a city/state from banning handguns like in Chicago ... this construction makes some sense to me and seems to fit the Heller/McDonald cases ... in the other construction, if the US has no general gun control powers over Virginia, no jurisdiction over CCW for example, then Virginia also has no general gun control powers over Virginia, such as jurisdiction over CCW ... this construction seems nonsensical to me.
The reason that the second construction is nonsensical is because it is inaccurate. The Federal Government does have some gun control powers over Virginia and the rest of the states. For example, federal laws states that no one, regardless of their state of residence, may own a firearm if they have been convicted of a felony or deemed mentally unstable. SCOTUS pretty explicitly stated in both the Heller and McDonald cases that such a restricition is constitutional. The problem with your second construction is that it's an all or nothing proposition: either the gov't has unlimited power to regulate guns or they have no power at all.

Quote:
Quote:
this Court decades ago abandoned “the notion that the Fourteenth Amendment applies to the States only a watered-down, subjective version of the individual guarantees of the Bill of Rights,”

I don't see how that is the issue ... police powers were reserved to the States, and these include gun control powers ... if the federal government is not empowered with jurisdiction over gun laws in Virginia, e.g. they cannot require a CCW permit, and Virginia requires a permit to CCW, that is not a watered-down right ... the US might prohibit CCW in a federal district such as DC, and Virginia might prohibit CCW, but y'all seem to construe it to mean that if the US cannot prohibit CCW in Virginia then Virginia cannot prohibit CCW in Virginia.
Again, you're looking at this in an "all or nothing" sense. The Federal government does indeed have some jurisdiction over the gun laws of the states, just not unlimited jurisdiction. I have yet to see anything that would suggest that nationwide CCW standards would necessarily be unconstitutional.

Originally posted by Some Dude
Quote:
You said (in post #103) "All that McDonald really says is that state laws regarding 2A are now subject to the same level of constitutional scrutiny that federal laws are under Heller."

You also stated "Basically, all McDonald says is that if the feds can't do it neither can the states or cities."

Allow me to build my case. Read Art. I Sec. 8, then Art.I Sec.9, then the 2nd Amendment, then 9A and 10A, then read the two quotes above.

My assertion is the Chicago gun ban is an issue to be addressed by the citizens of Chicago at the city and/or county level directly, and the citizens of Illinois outside of Chicago at the state level. The people who live there vote for their elected government. If gun grabbers keep getting elected - who's fault is it?!
I think you're missing the point of my post. My point was that the federal government has no more power to enact stricter gun control laws that it did before McDonald. Any gun control law enacted at the federal level (such as the hypothetical caliber ban you mentioned earlier) would still be subject to 2A scrutiny under Heller.

Also, I think you may fail to understand the politics of both the city of Chicago and the state of Illinois. Because of its large population, Chicago holds a dispraportionate sway over the politics of the rest of the state of Illinois. People not familiar with the state are often suprised to learn that most of the state is actually quite conservative as opposed to the very liberal city of Chicago (I've seen this firsthand as I grew up in central Illinois and still visit fairly frequently as I still have family there).

Chicago is a notoriously corrupt city and its corruption and failing policies are often spread to the rest of the state due to its political sway. However, because IL politics are so lopsided, non-Chicago IL residents are effected by Chicago's corruption yet are largely powerless to do anything about it.

This type of situation is precisely why the 14th Amendment was ratified. The southern states at the time were violating the rights of blacks in rather flagrant ways. However, because the political power of blacks was unfairly removed through both Jim Crow laws, intimidation, and retribution they were basically powerless to do anything about the violation of their rights. As violations of fundemental civil rights became more and more flagrant, it became apparent that some restriction needed to be placed on the states. Because the federal government did not, at the time, have sufficient power to do so, the power was granted to it through a constitutional amendment.

Now, if you want to debate the merits and drawbacks of the 14th Amendment, you're welcome to do so. However, incorporation through the 14th Amendment is most certainly constitutional as the 14th is just as much a part of the constitution as the 1st, 2nd, 9th, 10th, or any of the other Amendments are. It seems as though you are trying to champion States' Rights over the power of the Federal Government, but the rights of the states has been waning since the Civil War
__________________
Smith, and Wesson, and Me. -H. Callahan
Well waddaya know, one buwwet weft! -E. Fudd
All bad precedents begin as justifiable measures. -J. Caesar

Last edited by Webleymkv; July 3, 2010 at 06:26 AM.
Webleymkv is offline  
Old July 2, 2010, 06:09 PM   #123
Some_Dude
Junior Member
 
Join Date: June 4, 2010
Posts: 13
Maestro

Was the 14th amendment REALLY ratified? I'm not being a smart aleck here, that is a serious question. I know the powers that be say it was ratified, but Dr. Kevin R.C. Gutzman would argue with you over that.

http://mises.org/daily/2657

The website for the article in total. The pertinent paragraphs quoted below:

"One final example of Gutzman's constitutional iconoclasm must here suffice. The Supreme Court has used the due process clause of the Fourteenth Amendment as its principal instrument to eviscerate state sovereignty. Various decisions of the Court have held, e.g., that the Amendment applies the restrictions of the Bill of Rights to the states.

Gutzman rejects this view in the most radical way possible. He holds that the Fourteenth Amendment was never legally adopted. Congress required the Southern states to ratify the Amendment as a condition for readmission to the Union. But this is blatantly illegal: if the legislatures who "ratified" under duress were not already valid representatives of existing state governments, their votes had no legal effect. Our author concludes: "Thus, the Fourteenth Amendment was never constitutionally proposed to the states by Congress and never constitutionally ratified by the states, and yet today it stands (after the Constitution's structural provisions) as the most significant part of the American legal system" (p. 133)."

If you want to argue with Dr. Gutzman go ahead. Most of my argument on this subject comes from his literature that I have studied.

And in case you want to challenge his credibility you can do that to. Here it is...

"Kevin R. C. Gutzman is an American historian, Constitutional scholar, and New York Times bestselling author of three books, Who Killed the Constitution? The Politically Incorrect Guide to the Constitution (co-authored with Tom Woods) and Virginia's American Revolution: from Dominion to Republic, 1776-1840. An associate professor of history at Western Connecticut State University, Gutzman holds a bachelor's degree, a master of public affairs degree, and a law degree from the University of Texas at Austin, as well as an MA and a PhD in American history from the University of Virginia. (Source: KevinGutzman.com)"

After all has been said Dr. Gutzman is human and is capable of making a mistake. But a mistake as bold, and as out in the open as this, is highly unlikely. One last thought on the subject...

http://www.charlestoncitypaper.com/S...utzman-defends

"The Incorporation Doctrine is a bogus left-wing invention that has been used for almost uniformly pernicious purposes since it saw the light of day 7 decades ago. Under the Incorporation Doctrine (the idea that federal courts can use twisted readings of their favorite Bill of Rights provisions against the states), federal courts have made flag burning a right, banned capital punishment in general, banned capital punishment of child rapists, banned school prayer, excluded certain evidence against criminal defendants, banned Nativity Scenes from public places, et cetera. And now you want them to apply this same unconstitutional doctrine to a new area of law."

Now you know why I question the assertion that the 14th A. incorporates the BOR to the states, when the BOR in fact limits the Federal Gov't.

Later,
Some_Dude
Some_Dude is offline  
Old July 2, 2010, 07:12 PM   #124
Hugh Damright
Senior Member
 
Join Date: June 5, 2004
Posts: 609
Quote:
any gun law which would be unconstitutional at the federal level is also unconstitutional at the state level.
I disagree. I think we all disagree.


Quote:
Where the federal government's power is most limited over that of the states is that it must draw much larger and diverse support for any measure that it wishes to pass. While very restrictive gun laws may be relatively easy to pass in New York, they are not so easy to pass in Texas. Texas has no say over what laws New York passes, but Texas and all the rest of the states do have a say in what laws the federal government passes.
The federal government's power is most limited by the separation of state and federal powers, not by having a larger and more diverse constituency.

Sure, New York might think that they need their gun laws decided by a Congress with Texas, but why would Texans consent to having their gun laws decided by a Congress with New York? I don't think the States have ever consented to what you describe i.e. the federal government having general national gun control powers equal to the States gun control powers.

Men whose opinions I respect, such as James Madison, Thomas Jefferson, and Robert E. Lee, said that this vision of consolidation can only end in despotism ... if we leave it up to the US to pass national gun laws, then they will not be good gun laws because of the large and diverse constituency, they will be despotic because the US is too vast an area to be under a consolidated government ... you may as well say that we should leave gun control up to world government, then we'd really have a large and diverse constituency.


Quote:
The Federal Government does have some gun control powers over Virginia and the rest of the states. For example, federal laws states that no one, regardless of their state of residence, may own a firearm if they have been convicted of a felony or deemed mentally unstable.
I don't think US gun laws are evidence of delegated powers, but more often evidence of exercising undelegated powers. They typically try to say that the interstate commerce clause empowers them to pass gun control laws. I think we know better.
Hugh Damright is offline  
Old July 2, 2010, 10:10 PM   #125
gc70
Senior Member
 
Join Date: May 24, 2005
Location: North Carolina
Posts: 2,442
Quote:
Originally Posted by Antipitas
So a majority of Virginians can vote to deny fundamental rights to other Virginians, just because they are the majority?
Why not? That is precisely what a sufficient majority of Americans can do under Article V of the Constitution. The only thing that precludes that end is obtaining a sufficient majority of people whose moral compasses have shifted far enough from what prevails today.
gc70 is offline  
Closed Thread

Thread Tools

Posting Rules
You may not post new threads
You may not post replies
You may not post attachments
You may not edit your posts

BB code is On
Smilies are On
[IMG] code is On
HTML code is Off

Forum Jump


All times are GMT -5. The time now is 01:39 AM.


Powered by vBulletin® Version 3.8.7
Copyright ©2000 - 2014, vBulletin Solutions, Inc.
This site and contents, including all posts, Copyright © 1998-2013 S.W.A.T. Magazine
Copyright Complaints: Please direct DMCA Takedown Notices to the registered agent: thefiringline.com
Contact Us
Page generated in 0.16966 seconds with 7 queries