Supreme Court Rules on 2nd Amendment

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Gun owners should be estatic with the Court's ruling today:

http://www.supremecourt.gov/opinions/09pdf/08-1521.pdf

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BcDct
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Comments

Here's my quick take.

(1) states may not prohibit firearm ownership for home protection;
(2) states may regulate and prohibit firearm possession
--by the mentally ill and felons
--in sensitive public places (schools, government buildings, etc.)
--for purposes of commercial sale.

The court is silent on whether concealed carry in public may be regulated or prohibited by states. If there is a clear self-defense purpose for concealed carry, that might also be protected under McDonald.

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BcDct
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A ray of hope.

slabmaster
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Apr. 1, 2010 11:12 am

I think it's unproductive to even engage in arguments abut the 2nd amendment. Gun law proponents cannot win this controversy. Unnecessary gun deaths are simply a price Americans are going to have to pay for the system's coddling of the "freedoms" of our gun yayhoos.

It will just require greater vigilance and judgment. Do you want your kid to attend a drunken frat party where some of the kids are armed? Do you feel comfortable at a sports bar watching a hockey match knowing that some of the people around you are armed? Wouldn't you just rather avoid situations where passions and tempers tend to be immoderate? How do you feel about being anywhere close to that red-neck down the street who tends to not get along very well with his neighbors? If you are visiting Mississippi, do you intend to scrape that Obama/Biden sticker off your bumper?

It will just take a little more caution in how we choose to live our lives.

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Art
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Jul. 31, 2007 4:01 pm

I can't say you're wrong, but SCOTUS can and did.

I don't want my kid at a drunken frat party whether the pledges are armed or not. I certainly do not have Obama stickers on my vehicles! As a redneck myself, I recommend that nobody brefriends me!!!

I'm not thrilled at the prospect of a new "wild, wild west." The police can't even avoid shooting innocent bystanders in shoot-outs, much less untrained, armed civilians.

If I have the right to carry concealled weapons, however, I will certainly avail myself of the privilege.

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BcDct
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Every round is sacred, every round is great, if a round gets wasted, God gets quite irate. From Monty Python (sort of). I'm not against gun ownership as a general rule. Just like many other activities humans engage in, it needs to be PROPERLY regulated.

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chuckypoo
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Jun. 27, 2010 9:20 pm

SCOTUS being fair and balanced did not prevent the owning and wearing of teflon vests, even in public areas, I am not sure about churches.

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douglaslee
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Jul. 31, 2007 4:01 pm

I don't see what difference this decision makes anyway. I just read an article that said 30,000 people were killed last year in gun related incidences in the US.

The cynical side of me thinks it may just be a rather primitive form of population control...

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meljomur
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Quote meljomur:

I don't see what difference this decision makes anyway. I just read an article that said 30,000 people were killed last year in gun related incidences in the US.

The cynical side of me thinks it may just be a rather primitive form of population control...

It is a huge case. For 230 years, the 2nd amendment did not apply to states. Yesterday, the Supreme Court overturned 230 years of precedent. You don't see that happening very often.

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BcDct
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Quote BcDct:

It is a huge case. For 230 years, the 2nd amendment did not apply to states. Yesterday, the Supreme Court overturned 230 years of precedent. You don't see that happening very often.


Hogwash,
A three-judge panel that included Sotomayor issued an unsigned decision saying that the Second Amendment does not apply to states, therefore states can regulate and ban weapons.

I would never have thought to see someone claiming the Bill of rights is Subjective to location. Slavery should have been left up to the States along with Segregation, Right to Trial, Due Process freedom of speech, freedom of press.. etc etc…

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Quote Innocent:
Quote BcDct:

It is a huge case. For 230 years, the 2nd amendment did not apply to states. Yesterday, the Supreme Court overturned 230 years of precedent. You don't see that happening very often.

Hogwash, A three-judge panel that included Sotomayor issued an unsigned decision saying that the Second Amendment does not apply to states, therefore states can regulate and ban weapons. I would never have thought to see someone claiming the Bill of rights is Subjective to location. Slavery should have been left up to the States along with Segregation, Right to Trial, Due Process freedom of speech, freedom of press.. etc etc…

There is a bit of confusion here, I think.

You are wrong and I am quite right about the signficance of yesterday's ruling. Have you read it?

The decision of a Circuit Court is not the law of the land; only wirtten opinions in which a majority (or occasionally a plurality) of U.S. Supreme Court justices concur are the law of the land.

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BcDct
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I still don't think its that big of a deal. So its now easier to buy, own and carry guns freely EVERYWHERE.

So I suppose that means next year the tally of gun related deaths will be 50,000 or perhaps 60,000.

Its sad, but just another reason I am glad I am not raising my son in that country.

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meljomur
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Quote BcDct:

There is a bit of confusion here, I think.

You are wrong and I am quite right about the signficance of yesterday's ruling. Have you read it?

The decision of a Circuit Court is not the law of the land; only wirtten opinions in which a majority (or occasionally a plurality) of U.S. Supreme Court justices concur are the law of the land.


Confusion, Sure.
Significant... certainly.
I see nothing but a confused, scared Supreme court that has final come around to the intent on the Bill of Rights. I cannot believe that the Founder in their infinite wisdom were so infinitely stupid to go to the trouble of making the Bill of Right and not to mean …. These are rights guarded under the privileges and immunities clause. What would be the point of having a militia if all the states outlawed militias. What would be the point of Freedom of Speech if all the States could outlaw free Speech? Why have due process if states could just hang you without trial. I see a court that has selectively picked and choose which rights are protected and ruling in the narrowest terms possible to avoid answering the larger issues. Will Kelo v City of New London be overturn by the supreme court, I hope so.

Yet I acknowledge that we live in a flawed and ever changing system in which psuedo-intellectual make wrong decision all the time. What the court was thinking in 1875 after the Colfax massacre is beyond me. That being the first case to address the 2nd amendment directly and the start of your legal precedence.

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Innocent
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The Framers were divided over whether a Bill of Rights should apply to the states as well as Congress. The admendments as ratified did not apply to states. The Supreme Court never applied the Bill of Rights to states until 1925 (Gitlow v. New York), with only one possible exception.

The possible exception? Thom's favorite case, Santa Clara County v. Southern Pacific Railroad, which did not explicitly state that the "equal protection" clause of the 14th or 5th amendments protected corporations against arbitrary state action.

http://www.oyez.org/cases/1851-1900/1885/0

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BcDct
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Yes, I understand the general conception of Incorporation of the Bill of Rights and it’s timeline. However all the commentary from the Founders and from the Time period really suggested “right of the People to keep and bear arms shall not be infringed” doesn’t say anything about States or local governments getting to infringe on this right. In Fact it is preposterous to suggest that at the Time they wanted a well regulated militia with the right to bear arms and somehow didn’t have the foresight to think that the States themselves could disarm that which was put in place to protect from Government tyranny. Militia’s themselves are a local and state jurisdictions. This would allow the Federal Government to circumvent the Bill of rights by getting friendly states to pass gun control as a way to pacify the populace. IT says, “The Right of the People” It doesn’t say the Right of some people”. I'm sure this is one of those things that has been taken for granted till someone tries to take it away from you. It boggles the mind to think that all the right expressly written out in the Bill of Rights for all citizens in the United States somehow become null and void if a state tyranny arises.

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Innocent
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Nonetheless, that the way it was. I hasten to add that, before the 20th century, many states routinely jailed political dissidents (remember Henry David Thoreau?). Some states had official state religions, supported by taxpayers. And the 6th amendment guaranteed individuals a "fair trial" only if they were lucky enough to be tried in federal court. Some states failed to give people fair trials and--especially if you were a person of color--most states simply dispensed with trials altogether. Hardly anybody was ever convicted of lynching in the United States.

Several Framers, including Alexander Hamilton--Thom's hero--believed that a Bill of Rights was unnecessary and potentially dangerous. He wasn't alone.

The Bill of Rights was drafted by a House committee chaired by James Madison, Virginia. The House draft, which went to the U.S. Senate, was as follows:

Amendments Passed by
the House of Representatives
August 24, 1789

ARTICLE THE FIRST.

After the first enumeration, required by the first Article of the Constitution, there shall be one Representative for every thirty thousand, until the number shall amount to one hundred, after which the proportion shall be so regulated by Congress, that there shall be not less than one hundred Representatives, nor less than one Representative for every forty thousand persons, until the number of Representatives shall amount to two hundred, after which the proportion shall be so regulated by Congress, that there shall not be less than two hundred Representatives, nor less than one Representative for every fifty thousand persons.

ARTICLE THE SECOND.

No law varying the compensation to the members of Congress, shall take effect, until an election of Representatives shall have intervened.

ARTICLE THE THIRD.

Congress shall make no law establishing religion or prohibiting the free exercise thereof, nor shall the rights of Conscience be infringed.

ARTICLE THE FOURTH.

The Freedom of Speech, and of the Press, and the right of the People peaceably to assemble, and consult for their common good, and to apply to the Government for a redress of grievances, shall not be infringed.

ARTICLE THE FIFTH.

A well regulated militia, composed of the body of the People, being the best security of a free State, the right of the People to keep and bear arms, shall not be infringed, but no one religiously scrupulous of bearing arms, shall be compelled to render military service in person.

ARTICLE THE SIXTH.

No soldier shall, in time of peace, be quartered in any house without the consent of the owner, nor in time of war, but in a manner to be prescribed by law.

ARTICLE THE SEVENTH.

The right of the People to be secure in their persons, houses, papers and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

ARTICLE THE EIGHTH.

No person shall be subject, except in case of impeachment, to more than one trial, or one punishment for the same offence,* nor shall be compelled in any criminal case, to be a witness against himself, nor be deprived of life, liberty or property, without due process of law; nor shall private property be taken for public use without just compensation.

ARTICLE THE NINTH.

In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, to be informed of the nature and cause of the accusation, to be confronted with the witnesses against him, to have compulsory process for obtaining witnesses in his favor, and to have the assistance of counsel for his defence.

ARTICLE THE TENTH.

The trial of all crimes (except in cases of impeachment, and in cases arising in the land or naval forces, or in the militia when in actual service in time of War or public danger) shall be by an Impartial Jury of the Vicinage, with the requisite of unanimity for conviction, the right of challenge, and other accostomed [sic] requisites; and no person shall be held to answer for a capital, or otherways [sic] infamous crime, unless on a presentment or indictment by a Grand Jury; but if a crime be committed in a place in the possession of an enemy, or in which an insurrection may prevail, the indictment and trial may by law be authorised in some other place within the same State.

ARTICLE THE ELEVENTH.

No appeal to the Supreme Court of the United States, shall be allowed, where the value in controversy shall not amount to one thousand dollars, nor shall any fact, triable by a Jury according to the course of the common law, be otherwise re-examinable, than according to the rules of common law.

ARTICLE THE TWELFTH.

In suits at common law, the right of trial by Jury shall be preserved.

ARTICLE THE THIRTEENTH.

Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.

ARTICLE THE FOURTEENTH.

No State shall infringe the right of trial by Jury in criminal cases, nor the rights of conscience, nor the freedom of speech, or of the press.

ARTICLE THE FIFTEENTH.

The enumeration in the Constitution of certain rights, shall not be construed to deny or disparage others retained by the people.

ARTICLE THE SIXTEENTH.

The powers delegated by the Constitution to the government of the United States, shall be exercised as therein appropriated, so that the Legislative shall never exercise the powers vested in the Executive or Judicial; nor the Executive the powers vested in the Legislative or Judicial; nor the Judicial the powers vested in the Legislative or Executive.

ARTICLE THE SEVENTEENTH.

The powers not delegated by the Constitution, nor prohibited by it, to the States, are reserved to the States respectively.

--------------------------------------------------------------------------------

* This word in the Archives copy is spelled "offense."

Note that there were seventeen amendments, not ten. Note especially the original 14th amendment, which placed restrictions on state governments.

The Senate rewrote the House version, dropping altogether the original 14th. We may presume that, as the direct representatives of state governments, the Senators were exercising their power to protect the interests of states.

Hence it was conclusively understood by Congress and the States that the original ten amendments limited the powers of the National government, not that of States.

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BcDct
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Quote BcDct:

Hence it was conclusively understood by Congress and the States that the original ten amendments limited the powers of the National government, not that of States.

If that was so 'conclusively understood', then, how did the proposal of the original Fourteenth Amendment get in there to begin with? This new interpretation of what all the Framers meant when they wrote the Constitution based on 'prioritizing states rights' seems oddly anachronistic to me--and more intent on debasing 'individual rights' than endorsing them. Just like what some states did before the Civil War with blacks and the slaves--claim that 'states rights were the priority over individual rights'. And, then, the present Fourteenth Amendment 'corrected' that in Section 1 as I've written elsewhere--specifically, "...No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws."

While Supreme Court decisions during the First Gilded Age (after the Civil War and after the passage of the present Fourteenth Amendment) appeared to include corporations in the mix of having such 'undeniable rights as persons against all state action', the present surge of 'Constitutionalists' in reverting back to 'states rights priorities' to me seems to be a concerted and coordinated effort of countering the recent upheaval (as Thom Hartmann's book, Unequal Protection, so adequately describes) against corporations getting 'personhood rights' to begin with. It's almost like if corporations can't retain their preeminence in 'personhood rights against the states', then, it would be better to just go back to 'prioritizing states rights' and, then, through the monetary power vested in corporations, have states 'fight it out' on what corporations get after that--just like (as Thom Hartmann describes in that book) the 'chartermongering between the states' that corporations gain advantages on in their charters now. Something just seems peculiarly anachronistic (and disingenuous) in the way that the 'states rights advocates' of today keep claiming 'that's what the Constitution and all the Framers always meant'....

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Kerry
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The authors of the 14th amendment intended it to make the Bill of Rights apply to states, but the U.S. Supreme Court rejected that interpretation in the Slaughterhouse Cases (1873).

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BcDct
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But, then, didn't many of the decisions of the Warren Supreme Court endorse that very interpretation through its decisions on school integration (Brown vs. Board of Education), interracial marriages (Loving vs. Virginia) and abortion (Roe vs. Wade)?

Which part in history (and Supreme Court interpretations) are you pointing to when you now claim that 'it's all about states rights in the Constitution' as 'the original Framers meant it'? It appears to me that all parts of American history has seen the contentions between 'the rights of persons, state and federal government'.....which gets back to my point, it depends upon how you 'prioritize them'.....I'm for prioritizing individual rights as I believe was the intention of the Declaration of Independence and against giving corporations any rights as I think at least part of the American revolution against the British East India Company intended....

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Kerry
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Another thing that seems somewhat disingenuous today is this claim against the Supreme Court as an 'activist court' when it decides issues specifically directed to endorse individual rights (as much of the Warren Supreme Court did) without, at the same time, explaining why it wasn't an 'activist court' when the Supreme Court introduced 'corporate personhood' into the mix in the First Gilded Age....and, by the way, a Supreme Court that was against 'states rights' (and condoning the 'personhood of corporations') when states started passing laws regulating contracts between corporations and workers that included things like minimum wage, working conditions, and maximum hours, at that time. Why isn't that Supreme Court considered an 'activist court' to the 'states righters' today? You here nothing about that from them, do you?

So, once again, this surge on 'states rights priorities' as 'what the Framers of the Constitution meant' seems peculiarly anachronistic and disingenuous....

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Kerry
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Between 1925 and 1961, most of the rights "incorporated" by the Supreme Court were those in the 1st amendment. There was also an important 6th amendment case (fair trials) during that period. After 1961, the Warren Court incorporated most of the criminal defense rights (reasonable search and seizure, right to counsel, right to speedy trials, protection against self-incrimination, etc.). The Warren Court rulings were especially controversial because of complaints by law enforcement.

There were three "mega-events" in the 20th century that expanded national power at the expense of states: (1) two world wars and the Cold War; (2) the Great Depression; and (3) civil rights. Each of these "events" created problems that were well beyond the competence of states to address. States resisted the encroachment of federal power but were unable to stop it, in part because of the huge revenue streams developed by Congress and the attachment of "conditions" to federal grants by the national government. Congress, in effect, "purchased" the acquiescence of states to national priorties, instead of simply imposing upon them.

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BcDct
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Quote BcDct:

Several Framers, including Alexander Hamilton--Thom's hero--believed that a Bill of Rights was unnecessary and potentially dangerous. He wasn't alone.


Of course Hamilton was against the Bill of Rights, he was a federalist Whore who's nearly first act in Government was to violate the Constitution with the 1st National Bank. Unlike Madison who didn’t think the Bill of Right was necessary because the Government simply didn’t have the power to infringe on people’s rights. Hamilton and like the Nazis could find the necessary power to do anything they wanted in innocuous terms “General Welfare” and “and”

The Bill of Rights was drafted by a House committee chaired by James Madison, Virginia. The House draft, which went to the U.S. Senate, was as follows: August 24, 1789

ARTICLE THE FOURTEENTH.
No State shall infringe the right of trial by Jury in criminal cases, nor the rights of conscience, nor the freedom of speech, or of the press.


That is a very disappointing read. God I hate federalist.
Hence it was conclusively understood by Congress and the States that the original ten amendments limited the powers of the National government, not that of States.

Well played, I concede. But at least I learned something today and confirmed I do in fact hate Federalist.

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Innocent
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Jun. 23, 2010 12:42 pm

Well, perhaps you are a bit harsh on the Federalists, although I have never understood Thom's fascination with Hamilton. My family were Jeffersonians in Virginia and Jackson Democrats in Tennessee after that. I can't say my folks were always on the right side of history, but they despised Federalists/Whigs/Republicans. I definitely inherited most of those political leanings (not the slaveholding/Jim Crow stuff, though!).

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BcDct
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Quote BcDct:

Congress, in effect, "purchased" the acquiescence of states to national priorties, instead of simply imposing upon them.

Maybe so with things like 'Brown vs. Board of Education'--but, was that actually the case with 'Loving vs. Virginia' and 'Roe vs. Wade'? Your description as to how Congress 'influences' the states still doesn't seem to address how the courts influence the interpretation of 'individual rights' using that right as the priority over even 'states rights' or 'federal rights'--even against 'the states' desires to prevent things like abortion and interracial marriages--or even the more recent decision of Lawrence vs. Texas (going against its previous decision of Bowers vs. Hardwick).

Nor, does that actually address how the Supreme Court in the First Gilded Age did go against 'states rights' in the interest of the 'corporate personhood' of contracts with workers when states tried to pass laws regulating working conditions, endorse minimum wage, and endorse maximum hours. Why aren't the 'states righters' speaking against those actions of the Supreme Court as being an 'activist court' against 'states rights priorities' as you claim the Constitution intended?

Quote Innocent:

Well played, I concede. But at least I learned something today and confirmed I do in fact hate Federalist.

What, are you a student of Dr. Buckley's here to butter up to him?....8^).....

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Kerry
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Quote Kerry:
Quote BcDct:

Congress, in effect, "purchased" the acquiescence of states to national priorties, instead of simply imposing upon them.

Maybe so with things like 'Brown vs. Board of Education'--but, was that actually the case with 'Loving vs. Virginia' and 'Roe vs. Wade'? Your description as to how Congress 'influences' the states still doesn't seem to address how the courts influence the interpretation of 'individual rights' using that right as the priority over even 'states rights' or 'federal rights'--even against 'the states' desires to prevent things like abortion and interracial marriages--or even the more recent decision of Lawrence vs. Texas (going against its previous decision of Bowers vs. Hardwick).

Nor, does that actually address how the Supreme Court in the First Gilded Age did go against 'states rights' in the interest of the 'corporate personhood' of contracts with workers when states tried to pass laws regulating working conditions, endorse minimum wage, and endorse maximum hours. Why aren't the 'states righters' speaking against those actions of the Supreme Court as being an 'activist court' against 'states rights priorities' as you claim the Constitution intended?

As I have argued elsewhere, the courts are political institutions and respond to political influences. In cases where the plaintiff had political power (Lochner v. New York, http://www.oyez.org/cases/1901-1939/1904/1904_292 ), the plaintiff won; where the plaintiff had no power (Plessy v. Ferguson, http://www.oyez.org/cases/1851-1900/1895/1895_210/ ), the state won.

Quote Innocent:

Well played, I concede. But at least I learned something today and confirmed I do in fact hate Federalist.

What, are you a student of Dr. Buckley's here to butter up to him?....8^).....

In my dreams!

I do not accept gratuities from students.....[Beat].....anymore.

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BcDct
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Quote BcDct:

As I have argued elsewhere, the courts are political institutions and respond to political influences.

Just because it's political? That's your answer?

I was asking why 'states righters' don't seem to address the point that the Supreme Court during the First Gilded Age isn't called down as being an 'acitivist court' when it decided against states having the right to legislate working conditions, working hours, and working benefits, and for the contracts of 'corporate personhood'. IF the Constitution meant for it to be the 'states rights' priority (instead of 'individual rights' or 'federal government rights'..), why don't they say something about this? Maybe they don't know their history as well as they assume by claiming what 'the Framers intended'.....ya think?

And, of course, I do believe that one thing our Framers did warn about--ignorance will kill democracy.....

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Kerry
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The problem I see with "states rights" is that they don't work well at all. The idea that "gay marriage" ought to be decided in different states makes a lot of "rights" questionable if a couple moves for work or family reasons to a state where it is not in the law. There is a reason for "civil rights" to be national and not optional in each state.

Local needs and issues do vary, but not the human issues of fairness and "liberty and justice for all." Those need the federal blanket of inclusiveness and are needed most where the culture would violate our Pledge.

Having to have national rules for civility and civil equality as Americans is not the same as the imposition of dictatorial federalism. What has been done to our Constitution in the name of "economic freedom" is an entirely different matter. Here, the Corporation has been given a super-citizen set of rights at the expense of real people. The tyranny is economic, not about having to dispense with "White Only" privilege in today's America.

In order to take our government back from Corporate Dominance, we need to avoid killing government to save it.

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DRC
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Madison makes a good argument for federalism in the Federalist Papers. His notion of the "extended republic" revolutionized people's understanding of "democracy," or republicanism, if you prefer.

Before Madison, most political philosophers believed that democracy was only possible in a small state or city, like Athens. Madison argues that, quite to the contrary, democracy is only possible in a large state. The larger the citizenry, he argued, the less likely it is that any one group will have so much power that it can oppress all the rest all of the time. This insight became the basis for modern theories of "pluralism."

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BcDct
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Quote Kerry:

What, are you a student of Dr. Buckley's here to butter up to him?....8^).....


Must be a foreign concept for someone to admit they were wrong around here. That was me admiting I was wrong in suggesting that Bill of Rights was written for every Citizen, which is what I believed it was orginally written for. The early draft of the Bill of Rights proved me wrong. Period.

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Much of the debate would be easier were we to concede that the Founders were starting an experiment in "democracy" with what may be a fine pate instead of mere sausage but is still a political compromise rather than a principled and systematic document of political theory.

I don't think they thought they were creating anything sacred in more than the ordinary sense of doing something important and profound in their time. We inherit a good legacy in principle and vision, but a lot less in the institutions of government, much less the history of the experiment.

Here we need to do some modern assessing. We have the most massive standing army in the history of the world, and the Founders opposed having one. How the hell does the 2nd Amendment mean anything when the standing army is here? The militia was obviously intended as an instrument of national self-defense instead of the standing army. The idea that the Constitution establishes a rebellion is nonsense.

It obviously has nothing to do with "self-defense" in the urban sense. People living on or near the wildlands often hunted for food and had reason to protect their livestock and crops from predators. The gun as a tool to do work or as a toy to enjoy is not a human right unlimited by social context. The Court has the most hypocritical judicial activists ever over there in the Right. Once again, they assert their power over legislatures we elect, but not to insure civility and equality where their role is clear. Here they just make NRA ideology into Constitutional law. Total batcrap.

I have made my support for legitimate gun ownership and have no problem with those who are well trained and have a professional respect for law enforcement. I do not want any vigilante drawing down to protect me or my loved ones. And the idea that a properly locked away gun will protect you from an armed invasion in your home makes no sense. If your gun is where you can get it in an emergency, it is where any kids in your house can find it pretty quickly too.

People who shoot burglars also face serious legal issues. The death penalty is not a right to decide for others just because you have a right to own a gun. This myth needs some serious truth therapy.

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DRC
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The 2nd amendment had nothing to do with the British or Lexington/Concord. Here's what happened:

Gen. Washington asked the Continental Congress to place all state militia under his command. The Congress balked, in part because not everybody in Congress had all that much confidence in Washington's soldiering (he had to bring in Germans to train his own troops!).

When the Constitution was proposed, it was evident to everybody that Washington would be the first president. The states feared he would try again to nationalize the state militias. Hence, the 2nd amendment.

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BcDct
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May. 28, 2010 3:27 pm

Thom, you had a right-winger argue with you today about the original intent of the 2nd amendment. You said it was to prevent standing armies in times of peace, he said it was to ward off tyranical government.

As a liberal I wanted to research this and find out the truth. A simple Google search for "history of the second amendment" brought me many links. This one seemed to be very informative on the issue. It describes the history of the creation of militia in England, how each of the colonies adopted a right to bear arms in their various constitutions, and how the Federal Government formed the 2nd amendment. The author definitely leans right personally, but his article seemed farily neutral.

Here's the link: http://www.guncite.com/journals/vandhist.html

In case you are too busy to read it, here's the conclusion in the final paragraph...

"English history made two things clear to the American revolutionaries: force of arms was the only effective check on government, and standing armies threatened liberty. Recognition of these premises meant that the force of arms necessary to check government had to be placed in the hands of citizens. The English theorists Blackstone and Harrington advocated these tenants. Because the public purpose of the right to keep arms was to check government, the right necessarily belonged to the individual and, as a matter of theory, was thought to be absolute in that it could not be abrogated by the prevailing rulers."

So it seems that you were BOTH right.

Dillinger's picture
Dillinger
Joined:
May. 25, 2010 11:33 am

State militia elected their own officers. This offended "professional" soldiers like Washington, who believed that the offiers' corps should be reserved to "men of station" and not the "rabble." State militias were one of the earliest forms of democracy in colonial America.

BcDct's picture
BcDct
Joined:
May. 28, 2010 3:27 pm
Quote BcDct:

Gun owners should be estatic with the Court's ruling today:

http://www.supremecourt.gov/opinions/09pdf/08-1521.pdf

Hooray!

I'm gonna get drunk and shoot some cans.

brother's picture
brother
Joined:
Jul. 31, 2007 4:01 pm
Quote brother:
Quote BcDct:

Gun owners should be estatic with the Court's ruling today:

http://www.supremecourt.gov/opinions/09pdf/08-1521.pdf

Hooray!

I'm gonna get drunk and shoot some cans.

Trees are my preferred targets. They're the only things that stand still long enough for me to aim and shoot.

BcDct's picture
BcDct
Joined:
May. 28, 2010 3:27 pm

Gun confiscation laws are interesting.

A different viewpoint not shared by the Chuck Schumers of the world.

http://www.guncite.com/journals/cd-reg.html

slabmaster
Joined:
Apr. 1, 2010 11:12 am
Quote DRC:

And the idea that a properly locked away gun will protect you from an armed invasion in your home makes no sense. If your gun is where you can get it in an emergency, it is where any kids in your house can find it pretty quickly too.

You cling to a liberal talking point of yesteryear. Incidently, My kids have access to guns in my world. They shoot regularly and are safe and competant. (My son is at the high end of that judgement as he now shoots professionally with the Marines).

I have 4 of these in my house. They work amazingly well. The unwanted can't get into it with an ax and it takes me approx 1.5 seconds to open. I really put them in to thwart a random breakin theft of my "tools", cash, and jewelry. The balance of rifles and pistols are kept in three 1,500 lb fireproof safes that are slow to open. http://cgi.ebay.com/WALL-SAFE-VAULT-BIOMETRIC-SECURLOGIC-/120509162850?cmd=ViewItem&pt=LH_DefaultDomain_0&hash=item1c0ee7e562

slabmaster
Joined:
Apr. 1, 2010 11:12 am

A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.

This is the text of the second amendment.

Keeping in context, the law should be simple. Anyone should be able to keep and bear arms as long as they are a member of the state sponsored militia.

I would go so far as to say if a person is trained and ceritified by the state malitia or federal government through the military they may keep and bear arms.

spankycrissy's picture
spankycrissy
Joined:
Jul. 31, 2007 4:01 pm

My opinion only. The 2nd amendment as worded makes itself incoherent. It guarantees the right to own arms, but it only guarantees the right to use that weapon when used within the operations of a well-regulated militia. All other uses are subject to legislation. I don't believe that the Constitution even guarantees the right to use arms in the protection of self or property. In practice, the mere ownership of a gun guarantees the probability of all kinds of uses, regardless of their legality.

Art's picture
Art
Joined:
Jul. 31, 2007 4:01 pm

The constitution is written in a very specific way.

There is always a very clear indication at the beginning of the sentence of what or whom the provision controls IE...

All legislative powers...

The house of representitives shall...

The senate of the United States shall...

The times places and manner...

There is a clear pattern of intent in the structure of each sentence.

The amendments are written in the same manner so that their intent would not be misconstrued.

Congress shall make no law...

A well regulated militia...

No soldier shall,...

The right of the people....

No person shall....

The intent is clear from the beginning in each statement.

It is clear that the context of the 2nd amendment is restricted to "A well regulated militia" all following statements are valid only in that context.

The fascist 5 are undertaking a carefully crafted redefinition of the intent of the constitution and it's amendments.

It would not surprise me if they were to state that indentured servitude was a contractual agreement between two parties and not a form of slavery.

Or that the children of a person were responsible for the debts of their parents after their death.

What the fascist 5 have done is to erase the first half of the 2nd amendment. It is a clear over reaching of their authority in my opinion.

In their redefinition the line reads;

The right of the people to keep and bear arms shall not be infringed.

A clear statement yes. Not the statement that was intended by the writers.

Try this one on for size. A corporation files a suite against a person for attempting to go bankrupt on their debt to said corporation.

The corporation claims that the person is attempting to defraud the corporation. The court agrees and sentences the individual to serve the corporation for a period of time untill his debt is repaid with interest of course.

The supreme court hears the appeal and decides that under amendment 13 section 1 the person was "duly convicted" of the crime and that the punishment for the crime is consistent with the intent of the constitutions intent.

Amendment XIII

Section 1.
Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction.

We are close to this with orders to pay restitution. It is a fine line to Indenturment.

spankycrissy's picture
spankycrissy
Joined:
Jul. 31, 2007 4:01 pm

Well considering that most gun related accidents and deaths occur with people who actually own guns, how on earth do they make you safer?

Ahh, the gun issue, doesn't it make you feel just so patriotic?

meljomur's picture
meljomur
Joined:
Jul. 31, 2007 4:01 pm

I want to get back to BcDct's claim that all the Framers of the Constitution intended on it being a 'states rights priority' (vs. 'individual rights' or 'federal government rights' priority) at its inception--along with how it has been interpreted by the Supreme Court throughout the ages. This does seem to be a 'Tea Party' stand but, once again, I believe the present interpretation of the 'states righters' to be out of place with the history of the United States since its inception and the development of rights (both in the legislative and judicial bodies) throughout that history.

First off, centering the priority of the U.S. Constitution as being 'all about states rights' as their primary purpose disregards the premise in the Declaration of Independence (put forth as the very reason for the American Revolution)--and that being that 'all men are created equal' and 'endowed with certain unalienable rights' which the purpose of good government is 'to secure', and not destroy, such rights. This is my basis for the preeminence of 'individual rights' being the priority of good government.

The rest of American history can be seen as a means of grappling with the rights of government to restrict or secure such individual rights (and, following the text of the Declaration of Independence, all 'rights to government' are artificial in the sense that such 'rights' to government--as all rightful authority in any representative democracy--is 'granted' by the governed only under the condition that such a government secure the rights that man are to 'naturally' have). The best explanation of that I found with the SMU professor Joseph Kobylka in his Teaching Company lectures 'Cycles of American Political Thought' that puts forth the point that American government has always been based on liberalism with liberalism primarily meaning 'priority of the individual' and defined as two basic types: one, 'minimal state liberalism' of the laissez-faire (government should stay out of it as much as possible) type; and, two, 'active-state liberalism' of the type where government plays an active part in affecting social structures in a manner that broadens 'individual opportunity' and 'individual choice' (to represent 'individual freedom') to more of the population which would include in many people's minds things like educational opportunities and, in some people's minds, health care.

That the 'states righters' leave out a lot of the contentions of American history's grappling with 'good government securing individual rights' is, to me, either not knowing American history--or ignoring it for what benefits they claim 'states rights priorities' claim. However, as American history points out, that claim has not always been in the favor of 'individual rights' as is obvious with how Southern States used their 'states rights priorities' to remove all 'individual rights' to an entire race and class of people--the black slaves--in which the Fourteenth Amendment (again, going back to 'individual rights' priorities) placed in the hands of the federal government to be able to supervene.

Where this went awry is when, as Thom Hartmann so aptly describes in his book, Unequal Protection, men of sophistry and means to apply it claimed corporations as 'persons' getting those same 'individual rights'. This is the Supreme Courts point in siding with 'corporate personhood' in going against all the state legislatures attempts to adjust working conditions, worker benefits, and working hours, during the First Gilded Age since 'freedom of contract' is one of the specified guarantees in the U.S. Constitution--contracts to be carried out unhindered by government interference--however, I will contend that such a meaning was meant to be between individuals and not extended to 'personhood rights of corporations'. The Tea Party adherents don't seem to be making such a distinction--nor does BcDct when claiming 'states rights priorities' in that Constitution.

Quote BcDct:

As I have argued elsewhere, the courts are political institutions and respond to political influences. In cases where the plaintiff had political power (Lochner v. New York, http://www.oyez.org/cases/1901-1939/1904/1904_292 ), the plaintiff won; where the plaintiff had no power (Plessy v. Ferguson, http://www.oyez.org/cases/1851-1900/1895/1895_210/ ), the state won.

The point of the issue of Lochner v. New York is the fact that the State of New York did not win the case. If the priority of the U.S. Constitution was to be 'states rights issues', then the Supreme Court present at the time didn't see it that way--and used the Fourteenth Amendment to do so--as well as this 'freedom of contract' clause in the U.S. Constitution. The 'states righters' didn't win that case--so, if BcDct is correct that the U.S. Constitution is all about 'states rights', why no comment here concerning its 'overturning'?

Then, BcDct mentions Plessy v. Ferguson as just being proof that its 'people of power' that get to determine how the 'politically intuned courts' interpret the Constitution that, apparently, according to BcDct, if you go back to the 'original intent of the Framers', it was all about 'states rights power'. The state of Louisiana did win that case--and it did provide the precedent of the 'separate but equal' management by the states of discriminatory practices that kept the blacks from 'commingling' with the whites. However, that doesn't address the fact that the later Warren Supreme Court overturned such a 'separate but equal' clause with the Brown v. Board of Education decision as well as the Warren's court of removing 'state influence' in introjecting state authorized racial discrimination in such a personal matter as marriage in Loving v. Virginia--all, I believe, centering on the 'priority of individual rights' in being secured by 'good government'....

Quote Innocent:

Must be a foreign concept for someone to admit they were wrong around here. That was me admiting I was wrong in suggesting that Bill of Rights was written for every Citizen, which is what I believed it was orginally written for. The early draft of the Bill of Rights proved me wrong. Period.

Why do you conclude that from BcDct's post about it? You don't give any credence to my point that if 'individual rights' wasn't considered as a primary component of 'good government' (vs. 'states rights' being THE priority as present Tea Party advocates claim), then why was there even considered the original Fourteenth Amendment of BcDct's?--"No State shall infringe the right of trial by Jury in criminal cases, nor the rights of conscience, nor the freedom of speech, or of the press."--all geared against any government interfering with 'individual rights'. Had it done as it originally planned, perhaps the 'states righters' wouldn't have been used such a 'priority' to exclude individual rights to entire race in the Southern states (as in the Dred Scott decision)--an act that at least in part helped cause the Civil War and certainly supplied the 'virtue over life' (like 'give me liberty or give me death') moral incentive for it--with the acts of John Brown used as Union fight songs.

When the new Constitution was being promoted in the press, many newspaper articles had a problem with how government could infringe on individual rights--I don't remember it being so endured to 'states rights' in the press. In fact, I believe that it was Madison and Hamilton in their Federalist papers that believed a 'Bill of Rights' not to be necessary and itemizing such rights might make it proned to have such individual rights limited to what was put in the Bill of Rights--which they claimed was something that they didn't want government to do with the 'unalienable rights' that were supposed to have been 'granted by the Creator'--one reason why the real Amendment 9 did get placed into the U.S. Constitution--"The enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people."

As I've said, this new interest in prioritizing 'states rights' to me seems to have an agenda in it that has nothing to do with the Constitution or American history--and I am suspicious that its intent is as a response to the backlash starting against 'corporate personhood'--which was supported by the federal Supreme Court during the First Gilded Age. Now, with people like Thom Hartmann exposing how that has been used against real people with real 'individual rights', and going on the idea that 'the best defense is a good offense', it appears that an anachronistic view of the Constitution making 'states rights' the priority will give corporations the power to 'negotiate between each state' what 'rights' they have--which, as the chartermongering of states has shown, it may not be in the interest of the rights of real persons, their livelihood, or their safety....but, just like the history of America's battle with government intervention and 'individual rights' in both the legislative and judicial branches of government, that doesn't seem to be being addressed by the present 'states rights' prioritizers of the U.S. Constitution....and I think that's a problem.

Kerry's picture
Kerry
Joined:
Jul. 31, 2007 4:01 pm
Why do you conclude that from BcDct's post about it?

My beef was with BcDct and my misunderstanding of original intent of the Bill of Right. He posted the house version of the Bill of Rights that applied at least most of the stated rights to the states. This means one of two things. They didn’t want the Bill of Rights applied to State governing, (which seems ridiculous to me) or they felt it simply wasn’t needed. I have no proof of the later so the former is more plausible. They clearly rectified this problem with the Fourteenth Amendment. My understanding of the Bill of Rights were that the Rights listed were applied to all citizens regardless of what state they were in by virtue that the Federal Government is the umbrella of the States.

To me it seems utterly ludicrous that the Freedom of speech that the US Bill of Rights is to Protect can be outlawed by individual states within the US. So when I called BcDct accretion “hogwash”, I was wrong.

In fact, I believe that it was Madison and Hamilton in their Federalist papers that believed a 'Bill of Rights' not to be necessary and itemizing such rights might make it proned to have such individual rights limited to what was put in the Bill of Rights--

Don’t lump Hamilton in with Madison. Hamilton didn’t want to be constrained; Madison didn’t want to be limited.

I understand the “states Rights” issues put forth by the Tea Party. Nowhere in any founding documents did the founders envision a large, all powerful federal government providing cradle to grave oversight of the citizens. The constitution is geared to a small, limited structure that handles the priorities that are larger than any one state. Everything else was to be left to state governing. The excesses of federal government are unsustainable

Innocent's picture
Innocent
Joined:
Jun. 23, 2010 12:42 pm

You are correct, innocent, that some people--including Hamilton--believed that a Bill of Rights was unnecessary. The argument was that the national government only had those rights that were explicitly delegated to it. Hamilton argued that Congress could not restrict religion because the Constitution did not give that power to Congress in the first place. Hamilton's argument remains a potent one today for those who feel the U.S. government has unconstitutionally exceeded its powers.

Jefferson was nonetheless worried about the "necessary and proper" clause of Article I, Section 8 of the original Constitution. He and others demanded an amendment that became the 10th amendment. This amendment is being revived today by states that fear federal encroachment, especiallly Obamacare. Jefferson was convinced that state governments--much more accountable to voters than Congress--would not threaten the liberty of state citizens. Rather, he saw the greatest threat to individual freedom coming from a much less accountable federal government. Thus, Jefferson thought a Bill of Rights need only limit the power of the national governments, not state and local governments.

BcDct's picture
BcDct
Joined:
May. 28, 2010 3:27 pm

I'm not sure how any of this is very meaningful in view of the supremacy clause of the 6th amendment. The Constitution leaves to the states only those matters that are not addressed by the Federal.

Art's picture
Art
Joined:
Jul. 31, 2007 4:01 pm

If it were only that simple.

The Supremacy Clause only gives precedence to the Constitution, treaties made under the Constitution, and acts of Congress that are pursuant to the Constitution. So, who decides if a treaty or an act of Congress is not "pursuant" to the Constitution? The document doesn't say.

If you argue that the Supreme Court gets to decide, then I will ask you to show me the words in the Constitution that establish that. The Constitution doesn't say that State may decide if acts of Congress are constitutional, but it doesn't say that the Supreme Court can do it, either. That's were the rub comes in.

Another problem is that the first words in the original Constitution seem to contradict the last words in the document. The preamble suggests that "We the People" established the Constitution; Article VI, however, states quite explicitly that the conventions of nine states shall be sufficient to establish the Constitution. So. who created the United States? "We the People" or state governments? This ambiguity resulted in the U.S. Civil War.

BcDct's picture
BcDct
Joined:
May. 28, 2010 3:27 pm
Quote BcDct:

You are correct, innocent, that some people--including Hamilton--believed that a Bill of Rights was unnecessary.

And, you're rewriting history if you don't think that some of the reasons (by Madison and Hamilton) offered against enumerating those 'Bill of Rights' didn't directly have to do with the explanation that enumerating those 'rights' tended to limit such 'individual rights' to those so enumerated--which was not the intention of any constitution considered to be based on 'good government securing individual rights' as even these founding fathers expressed. To claim now that this all has to do with 'states rights' is, again, to miscue American history's constant grappling with 'state and federal government's role' in securing and maintaining those 'individual rights'. In my opinion, it's a disingenuous attempt to misdirect government rule into mobs and factions under the guise of 'states rights'--the very things that our founding fathers feared would ruin what they had started.

Quote BcDct:

Thus, Jefferson thought a Bill of Rights need only limit the power of the national governments, not state and local governments.

That statement implies that Jefferson had no problem with how state and local governments supposedly 'properly elected by the majority' imposed upon individual rights and that's just not true. Jefferson had a problem with any government doing so and implying here that Jefferson did not is just another form of 'states rights' anachronism inappropriately restricting how 'the Framers intended our Constitution'. If the Declaration of Independence, itself, doesn't convince you, just a brief look at some of Jefferson's other writings should, such as (from the booklet, 'Jefferson, The Man, In His Own Words'):

I know of no safe depository of the ultimate powers of the society but the people themselves; and if we think them not enlightened enough to exercise their control with a wholesome discretion, the remedy is not (to) take it from them, but to inform them of their discretion.--Letter to William Charles Jarvis, September 28, 1820

All, too, will bear in mind this sacred principle, that though the will of the majority is in all cases to prevail, that will, to be rightful, must be reasonable; that the minority possess their equal rights, which equal laws must protect, and to violate which would be oppression.--First Inaugural Address, March 4, 1801

The care of human life and happiness, and not their destruction, is the first and only legitimate object of good government.--Letter to the Republican Citizens of Washington County, Maryland, August 4, 1811

BcDct goes to a great extent to emphasize 'states rights' issues with the U.S. Constitution while ignoring 'individual rights'--claiming that our forefathers intended on it all being about 'state and local government' with little intervention or oversight by the 'federal government'. But, as I said, our forefathers were concerned about two things that would ruin representative democracy (or 'republic' for that matter)--mob rule and factions. In fact, James Madison did an entire write-up on this very topic of 'local vs. general government control' in Federalist #10 with part of it here titled "The Utility of the Union as a Safeguard Against Domestic Faction and Insurrection":

http://www.constitution.org/fed/federa10.htm

Kerry's picture
Kerry
Joined:
Jul. 31, 2007 4:01 pm

Parts I thought pertinent to Madison's argument for a broader government to prevent factions were this (emphases will be mine):

Quote excerpts from Federalist #10:

By a faction, I understand a number of citizens, whether amounting to a majority or a minority of the whole, who are united and actuated by some common impulse of passion, or of interest, adversed to the rights of other citizens, or to the permanent and aggregate interests of the community.

.........................................

If a faction consists of less than a majority, relief is supplied by the republican principle, which enables the majority to defeat its sinister views by regular vote. It may clog the administration, it may convulse the society; but it will be unable to execute and mask its violence under the forms of the Constitution. When a majority is included in a faction, the form of popular government, on the other hand, enables it to sacrifice to its ruling passion or interest both the public good and the rights of other citizens. To secure the public good and private rights against the danger of such a faction, and at the same time to preserve the spirit and the form of popular government, is then the great object to which our inquiries are directed. Let me add that it is the great desideratum by which this form of government can be rescued from the opprobrium under which it has so long labored, and be recommended to the esteem and adoption of mankind

............................................

.....Men of factious tempers, of local prejudices, or of sinister designs, may, by intrigue, by corruption, or by other means, first obtain the suffrages, and then betray the interests, of the people. The question resulting is, whether small or extensive republics are more favorable to the election of proper guardians of the public weal; and it is clearly decided in favor of the latter.....

...................................................

The other point of difference is, the greater number of citizens and extent of territory which may be brought within the compass of republican than of democratic government; and it is this circumstance principally which renders factious combinations less to be dreaded in the former than in the latter. The smaller the society, the fewer probably will be the distinct parties and interests composing it; the fewer the distinct parties and interests, the more frequently will a majority be found of the same party; and the smaller the number of individuals composing a majority, and the smaller the compass within which they are placed, the more easily will they concert and execute their plans of oppression. Extend the sphere, and you take in a greater variety of parties and interests; you make it less probable that a majority of the whole will have a common motive to invade the rights of other citizens; or if such a common motive exists, it will be more difficult for all who feel it to discover their own strength, and to act in unison with each other. Besides other impediments, it may be remarked that, where there is a consciousness of unjust or dishonorable purposes, communication is always checked by distrust in proportion to the number whose concurrence is necessary.

Hence, it clearly appears, that the same advantage which a republic has over a democracy, in controlling the effects of faction, is enjoyed by a large over a small republic, -- is enjoyed by the Union over the States composing it.....

BcDct does not do the American process justice in this continued and, as far as I'm concerned, misapplied insistance that all the Framers intended on 'states rights' as being 'the priority of the U.S. Constitution'. I think that our Founding Fathers were smarter than that.......and 'good government securing individual rights' was always their priority.....

Kerry's picture
Kerry
Joined:
Jul. 31, 2007 4:01 pm

Kerry, why are you wasting your breath with those known Neocons???
What do you hope to accomplish?
I just say good riddance to good garbage.

quaestorchickpea's picture
quaestorchickpea
Joined:
May. 12, 2010 7:02 pm

I have always been fascinated by the whole Founding Father's original intention argument.

Think about it, the Bill of Right and the original Constitution was written over 230 years ago. Do you think any of these men intended for what was written to stay in its EXACT form over the centuries?

Do you think any of them could imagine a world where women and black men could vote?

How will we ever know, as they are all dead. And I if we stayed with the original wording of the Constitution, how would we ever progress as a nation?

meljomur's picture
meljomur
Joined:
Jul. 31, 2007 4:01 pm
Quote meljomur:

I have always been fascinated by the whole Founding Father's original intention argument.

Think about it, the Bill of Right and the original Constitution was written over 230 years ago. Do you think any of these men intended for what was written to stay in its EXACT form over the centuries?

Do you think any of them could imagine a world where women and black men could vote?

How will we ever know, as they are all dead. And I if we stayed with the original wording of the Constitution, how would we ever progress as a nation?

It's a good topic to explore. Not just limited to the 2nd amendment by any means.

I think we really dont "know" exactly what some of the context is in some of the writings. We can be pretty confident in some or most, but some are left to interpretation as things evolve, hence, the amendments. There are principles written rather than specifics, but people have a way of always trying to twist principles to support their specific agenda.

I say, good for the supremes for passing a judgement based on freedom rather than further confiscation and imposed limits on a free nation. It's a step in the right direction.

slabmaster
Joined:
Apr. 1, 2010 11:12 am

Currently Chatting

Get. Money. Out.

Last week, the United States Senate actually considered a constitutional amendment on campaign finance. Last Monday, the Senate advanced Tom Udall's proposed amendment, which would allow Congress to regulate money in politics. Seventy-nine senators voted to allow debate on the measure.

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