Does the 2nd apply to the states

[maestro pistolero]

What the amendment does say is that the right of the people shall not be infringed. That is, under no circumstances can the powers granted the federal government be construed to have granted the power to disarm the people, and thereby disarm the militia.

I would add that since infringe means anything from 'interfere with', to encroach, to invalidate, or eliminate, that original intent would seem to mean that any limits placed on the right would violate the amendment. Disarming, as opposed to regulating would be at the far end of an egregious violation of the amendment.

'Shall not be infringed' is pretty strong language. But it seems to be overlooked far too often. Let's hope the McDonald/Chicago decision doesn't suffer that oversight.

[brickeyee]

The U.S. Constitution is a "contract" between the States to create or "constitute" a federal government.

How did you determine that?

Read the document.

We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, 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.

[Hugh Damright]

The U.S. Constitution is a "contract" between the States ...

That is my understanding too, that a federal system is a contract or compact between sovereign States. Daniel Webster used this as an example in his 1828 dictionary:

COMPACT, n. An agreement; a contract between parties; a word that may be applied, in a general sense, to any covenant or contract between individuals; but it is more generally applied to agreements between nations and states, as treaties and confederacies. So the constitution of the United States is a political contract between the States; a national compact. Or the word is applied to the agreement of the individuals of a community.

Of course, when we say a contract between the States, we mean a contract between the people of Virginia, the people of New York, and so on. That is how the Preamble began, saying "We the People of the States of New Hampshire, Massachusetts, Rhode Island," and so on, listing all of the States, but I have read that it was changed because it wasn't clear that every State would join, so they changed it to say "We the People of the United States".

[edit]And there is Madison's report on the Virginia Resolution:

"The other position involved in this branch of the resolution, namely, "that the states are parties to the Constitution," or compact, is, in the judgment of the committee, equally free from objection. It is indeed true that the term "states" is sometimes used in a vague sense, and sometimes in different senses, according to the subject to which it is applied. Thus it sometimes means the separate sections of territory occupied by the political societies within each; sometimes the particular governments established by those societies; sometimes those societies as organized into those particular governments; and lastly, it means the people composing those political societies, in their highest sovereign capacity. Although it might be wished that the perfection of language admitted less diversity in the signification of the same words, yet little inconvenience is produced by it, where the true sense can be collected with certainty from the different applications. In the present instance, whatever different construction of the term "states," in the resolution, may have been entertained, all will at least concur in that last mentioned; because in that sense the Constitution was submitted to the "states;" in that sense the "states" ratified it; and in that sense of the term "states," they are consequently parties to the compact from which the powers of the federal government result."

[BlueTrain]

Mr. peetzakilla believes the states currently represent power and influence, as if there was a time when it was different. However, I take it that he actually means that the states do not represent him, in a nutshell, irregardless of who else they may represent. The truth is, you have a representive in the state house who actually represents you, whether or not you voted for him. HE is the representative, not the state anyway. I live in a county of supposedly around 1.3 million people and even here to get elected, the candidate still has to go around and knock on doors. I even met (before the election) the one that won and had an interesting conversation with him.

It is a bit like prayer. Your prayers will be answered but the answer will not always be yes.

It is most unfortunate that some people belong to groups that seem to have more influence than others. It is even more unfortunate when a candidate wins who is supported by groups more powerful than the groups you belong to but that's pretty much the way it works these days, you no doubt realize.

Twice in this thread there have been references to definitions appearing in dictionaries published 40 years after the ratification of the constitution. I fail to see the relevance as regards the original meanings or understandings as used by the constitution.

[Hugh Damright]

Twice in this thread there have been references to definitions appearing in dictionaries published 40 years after the ratification of the constitution. I fail to see the relevance as regards the original meanings or understandings as used by the constitution.

I once read in the Congressional record an assertion that the Framers used the Johnson's and the Bailey's Dictionaries. Webster's 1828 is more readily accessible, and I think it is well accepted that a dictionary published within 40 years of the period in question is relevant.

[Brian Pfleuger]

Originally Posted by BlueTrain

Mr. peetzakilla believes the states currently represent power and influence, as if there was a time when it was different. However, I take it that he actually means that the states do not represent him, in a nutshell, irregardless of who else they may represent. The truth is, you have a representive in the state house who actually represents you, whether or not you voted for him. HE is the representative, not the state anyway. I live in a county of supposedly around 1.3 million people and even here to get elected, the candidate still has to go around and knock on doors. I even met (before the election) the one that won and had an interesting conversation with him.

No. There was a time when the powerful, educated and influential were in control of the government and did their best to serve the interests of the people at large. For the most part, at least. It was, after all, the very reason our nation was created. Freedom, for the common man. Brought about by (mostly) educated, influential and powerful men. Benevolent men.

Not anymore. Now, the powerful, educated and influential yield the power of the government for the purpose of assisting the powerful, educated and influential.

Our current political system and the politicians within it is a sham. It is a hollow shell of what our nation was supposed to be. We were created by the people, for the people. Today, our nation and states are for the rich and powerful, by the rich and powerful from the rich and powerful. The people are short-sighted, naive and forgetful. The politicians are not.

[Aguila Blanca]

Originally Posted by maestro pistolero

'Shall not be infringed' is pretty strong language. But it seems to be overlooked far too often. Let's hope the McDonald/Chicago decision doesn't suffer that oversight.

It doesn't have to. The SCOTUS already ruled in Heller that the RKBA, although an individual right, is subject to "reasonable" regulation. Of course, you can't get that from the words "shall not be infringed," but they managed to contort their way into it anyway, so it's the law of the land.

I am incredibly [angry] still at Scalia for writing that, but I suspect it was necessary to get the fifth vote.

[BGutzman]

I am incredibly [angry] still at Scalia for writing that, but I suspect it was necessary to get the fifth vote.

I agree, but it was still contrary to the constitution IMHO. George Washington didn't mince words on it, unfortunately SCOTUS seemed to care little about that and probably less so today. IMHO

[BlueTrain]

To Mr. Peetzakilla, I generally agree with the spirit of what you are saying, though it isn't a simple matter, for there are things left out.

For one thing, which you all probably realize, being rich and famous does not make you powerful and you can be highly influential without being rich or powerful and not necessarily even famous. When the subject comes up at home, and it often does, I like to point out how bothered I am that it seems like presidents and other political office holders are still being chosen in smoke-filled back rooms somewhere upstate.

Still, I wouldn't go so far as to say our system is a hollow shell or a sham. It is incredibly stable, which says something, and there is still something of an American spirit and "the American Way" that goes beyond the power plays at the capital in Washington and across the country. It doesn't always seem that way and sometimes it unfortunately has taken on an ugly aspect but mostly it is heartwarming. We as a country are far from being pure in any sense of the word, however much some descendents of early settlers, as I am, may wish. People are here from every corner of the world and have been coming ever since they could afford the ticket and sometimes even before. It's a rich mixture.

The country was founded by two kinds of people. The first came here to try to get rich. (Isn't that where we came in?) They were commercial ventures and they didn't all make it. The others came because they could have things their own way without having to obey laws they didn't care for. They were hardly democratic at all. It is a wonder what happened less than 170 years later but then, 170 years is a long time.

So you can have a govenment that favors the rich or a government that favors the common (don't call me common!) and besides, the latter sounds so socialist, doesn't it. But neither will necessarily be the government that favors the whole country. What is good for General Motors may or may not be good for the U.S.A. and what is good for the rich is not necessarily good for the country either.

Oh, I don't know. Let's have a drink.

[Brian Pfleuger]

Originally Posted by BlueTrain

So you can have a govenment that favors the rich or a government that favors the common (don't call me common!) and besides, the latter sounds so socialist, doesn't it. But neither will necessarily be the government that favors the whole country. What is good for General Motors may or may not be good for the U.S.A. and what is good for the rich is not necessarily good for the country either.

That's my whole point though.... The government shouldn't favor ANYONE. We are supposed to have FREEDOM. Freedom to do, relatively, as we please. Boundaries, protections, restrictions, yes, these are the role of government. To provide protection for our "life", assure that no one takes our "liberty" while we "pursue happiness".

THAT was the purpose of the federal government. The ONLY purpose (in a nut shell), besides negotiating on a world wide level for the states en masse.

They are supposed to leave us the hell alone! The states make the rules..... "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."

Which leaves me at my original point. The amendments are not meant (originally) to be applied to the states. First, the states were supposed to be under control of the people. It was unthinkable that they (the states) would turn against us (the people). Second, the COTUS all but says so. Every reference is made to powers, responsibilities and restrictions of the FEDERAL government, not the states.

[BGutzman]

When SCOTUS changed the meaning of simple words of clear meaning and it was allowed to stand that way we changed to something less (IMHO) than the origional intent.

Part of the problem is the judges are all political appointees and tend to be of the same beliefs as whoever put them on the bench. What I think it should have been centered on was those who most clearly stood to defend the intent of the constitution as written; unfortunately thats a impossibility in todays environment.

The other part of the problem as I see it is you can clearly see IMHO that the judges worked to fit the rulings to the issues of the times instead of serving origional intent. Too many agendas to preserve the origional meaning of the constitution and the bill of rights.

It is these and other mechanisms that have allowed our country to drift so far from what was intended to be plain and simple to understand.

The whole system has now be come so polluted and twisted as to be unrecognizable. Our system of lawyers and judges have all the incentive in the world to pass laws that increase the amount of lawsuits, and thus profit the ones who mostly write the law. Tort reform cannot be trusted to lawyers as a group, it is the fox guarding the hen house.

The checks and balances of our system of government are broken and we have the responsibility to repair them lawfully to there rightful state.


The system must be reformed lawfully from within or at some point no matter how far into the future the union will fall (IMHO).

[USAFNoDak]

Which leaves me at my original point. The amendments are not meant (originally) to be applied to the states. First, the states were supposed to be under control of the people. It was unthinkable that they (the states) would turn against us (the people). Second, the COTUS all but says so. Every reference is made to powers, responsibilities and restrictions of the FEDERAL government, not the states.

I don't disagree. However, the 10th 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."

"nor prohibited by it to the states" means "powers which were not prohibited to the states by the constitution". This seems to say that the constitution DID prohibit the states from having certain powers. Notice it says "powers", and not "rights".

Would that include the power to infringe on the right to keep and bear arms? I'm not really sure. I do believe the founders never believed that any state during their time would even consider such a thing. However, we've gone a long way down some of the wrong roads, sometimes with the blessings of a Supreme Court which seems to be more interested at times in politics than upholding the Constitution and the rule of law. Regardless, I'm hoping the Supreme Court decides that the Second Amendment protects our individual rights (which they decided in Heller) AND the states do not have the power to infringe upon that right any more than the federal government does. I guess we'll find out shortly.

[pnac]

Question.
What remedy is there if the SC and Congress support the Executive Branch against the Constitution? Since the 17th A was ratified, the individual states have lost the ability to recall Senators that vote contrary to the states wishes. Representatives seem to ignore their constituents in favor of voting with "their party", even when it's in violation of the Constitution.

The Executive Branch seems to hold the Constitution in contempt. The SC is supposed to determine if a law or Executive Order is Constitutional and that doesn't seem to be working out. The States and the People seem to have lost control of our government, IMHO. What's left?

[Brian Pfleuger]

Originally Posted by USAFNoDak

"nor prohibited by it to the states" means "powers which were not prohibited to the states by the constitution". This seems to say that the constitution DID prohibit the states from having certain powers. Notice it says "powers", and not "rights".

The COTUS does provide certain restrictions against the states but every one of them is spelled out in no uncertain terms. Individual states may not enter into treaties with foreign nations. The federal government will control inter-state commerce.

In the instance where the COTUS is referencing/restricting/empowering the states, it is spelled out clearly. This is further evidence that other portions of the COTUS are NOT directed at the states... Why would it be so clear and succinct in one place but vague and ambiguous in another?

[Aguila Blanca]

How about an even simpler solution....simply advance the notion that local legislators in every state deal with all matters of government except national defense, foreign relations, and restraints on interstate trade.

But that is basically what the Constitution says. The problem is that, as a predictable result of "creeping incrementalism," the politicians in Washington along with overly activist judges have managed to bring virtually every aspect of life under the umbrella of interstate commerce, anf thus under Federal oversight. To the ridiculous extreme that marijuana grown, harvested, and consumed entirely within the borders of California has been ruled subject to Federal law under the interstate commerce principle on the grounds that IF it had not been grown and harvested and distributed in California, the users would have obtained it from another state. So, because growing it in California interfered with buying it from [Oregon], it therefore affected interstate commerce (by NOT engendering any interstate commerce) and therefore falls under the Federal umbrella.

You really can't make up stuff like this. It takes people with law degrees to think like that.

[Al Norris]

Aguila Blanca, while I detest the Raich decision (which reaches even further than you describe), it really goes back to the original argument used in Wickard.

That was the first time such an argument was used and the Court agreed with the government back then. It has been stretched (ever so slowly, but continuously) since that decision.

[USAFNoDak]

That was the first time such an argument was used and the Court agreed with the government back then. It has been stretched (ever so slowly, but continuously) since that decision.

In my opinion, this was a key opportunity for "the people" to get out the virtual torches and pitchforks and to have demanded impeachment of every justice who voted for the government's position. Any politician who didn't agree could have and should have been voted against to clean house.

Once that didn't happen, the judges and the politicians in Washington realized that the people weren't energized enough to fight against power usurpations by the federal government using the commerce clause as their primary weapon. Thus, the judges and pols in Wash. decided that the commerce clause would become their political taffy and that they could stretch and pull it to their hearts content. They've done exactly that. What has been the response of "the people"? Some have complained publicly and on internet forums. For the most part they've grabbed another beer, opened a new bag of pretzels, and changed the channel via their remote. So, we have landed in a place our founders would not recognize today.

To keep this firearms related, I'm cheering the states who are passing laws saying that any firearms forged and assembled within the state, are outside the reach of the federal government and its commerce clause light saber. I'm anxious to see what becomes of those laws, if anything.

[poptime]

In my opinion, this was a key opportunity for "the people" to get out the virtual torches and pitchforks and to have demanded impeachment of every justice who voted for the government's position.

Is it possible that "the people" were just a little bit distracted at the time?

[Brian Pfleuger]

Originally Posted by poptime

Is it possible that "the people" were just a little bit distracted at the time?

The people are always distracted. That's pretty much the problem in a nutshell.

Maybe today there's enough of us awake. Maybe not. We shall see.

[poptime]

Still, I can't think of a time in living memory when the people had more reason to be distracted.

[USAFNoDak]

Is it possible that "the people" were just a little bit distracted at the time?

Sure it's possible, and maybe even likely. Still, that doesn't change what happened. The people still seem distracted today. Ever watch Jay Leno go out on the street and ask people questions which should be, somewhat at least, common knowledge? Ever listened to Sean Hannity's show when he has some of his people out on the street asking people common questions about our government? It's sad. It's somewhat pathetic how little some people really know and understand about our history and our current government. That's a recipe for abuse of power by those in charge. I believe many of our politicians understand how uninformed or misinformed "the people" really are and do everything in their power to take advantage of it, to further entrench their own power and careers. How am I wrong about that?

Yes, the people may have been distracted back when this all started. I don't disagree with you. However, whatever the cause, the politicians and judges in Washington, D.C. saw this distraction and decided to take advantage of it going forward.

[Some_Dude]

Its me again, sorry I haven't posted in a while, but it is busy time in the Midwest farm country.

It's a good day for the people of Chicago, for now. It's just too bad the 2nd amendment had to be Incorporated to accomplish this. The issue never should have had to leave the state of Illinois. Now that the 2nd has been incorporated, the federal gov't now has new powers - thanks to the precident of this case. The federal govt has no place deciding a state issue. Now an acitivist Federal judge can weigh in on state gun laws. And how anybody expects Leviathon to show restraint when it comes to the 2nd amendment is beyond me.

For Example:

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.

It may happen soon, or it may not happen in our lifetime, but this precident will result in the biggest gun grab in history. Just let the record show, I saw it coming.

Short term, the ruling on McDonald v. Chicago is a good thing.
Long term, it may bite us in the a** worse than the 17th amendment has.

I wish I could celebrate with those of you who think this is a great thing.
But I just can't. I see trouble coming

Later,
Some_Dude

[pnac]

Short term, the ruling on McDonald v. Chicago is a good thing.
Long term, it may bite us in the a** worse than the 17th amendment has.

I wish I could celebrate with those of you who think this is a great thing.
But I just can't. I see trouble coming

I agree, Some_Dude. States rights seem to have taken a big hit in McDonald. Maybe it's a good trade-off, but I can't see it.

[Gary L. Griffiths]

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.

It may happen soon, or it may not happen in our lifetime, but this precident will result in the biggest gun grab in history. Just let the record show, I saw it coming.

Boy, talk about the glass always being half empty!

[Some_Dude]

When it comes to the Federal Gov't the glass is always 1/16 full.