Different Drummer
.44 mag
I agree, the second amendment does not Grant us anything.
It is my opinion however that it preserves or protects what we already have.
The 2A, the Framer's intent and SCOTUS rulings discussion.
- Thread starter ArmedCorgi
- Start date
It is my opinion however that it preserves or protects what we already have.
Yes and the BOR's only said that the Federal Government can't infringe! The BOR's was never intended to apply to the States as they had there own Constitutions and Bill of Rights.
Each State was self governed (as 13 small Countries) that join in a union, There was only so much power they were going to give up to the new Federal Government. So with that said they drafted the Bill of Rights. Most of what the federal BOR's says were in the State's Constitutions or bill of Rights too.
United States Bill of Rights - Wikipedia
Although Madison's proposed amendments included a provision to extend the protection of some of the Bill of Rights to the states, the amendments that were finally submitted for ratification applied only to the federal government. The door for their application upon state governments was opened in the 1860s, following ratification of the Fourteenth Amendment. Since the early 20th century both federal and state courts have used the Fourteenth Amendment to apply portions of the Bill of Rights to state and local governments. The process is known as incorporation.[3]
Truebeliever
6.5 Creedmoor
Article six says that treaties become the surpreme law of the land too. There was an attempt for gun control by signing the treaty but two thirds of the senate would not ratify it. But the attempt was made.
The fact that you didn’t know that article six also makes treaties the “supreme law of the land” too should tell you that you might not understand as much as you think about constitutional law.
You can’t cherry pick parts without understanding how the fit in with the other pieces.
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https://tenthamendmentcenter.com/2017/09/09/the-supremacy-clause-and-the-bill-of-rights/
The Supremacy Clause and the Bill of Rights
By: Mike Maharrey|Published on: Sep 9, 2017|Categories: 14th Amendment, Bill of Rights, Constitution, Incorporation Doctrine, Supremacy Clause
Many Americans believe the Bill of Rights apply to state and local governments. Most who hold this position rely on the 14th Amendment and the “incorporation doctrine” to support their position. But some proponents of using federal power to restrict state and local actions through the Bill of Rights use tortured legal reasoning to argue the Bill of Rights were always intended to apply to the states, specifically the Second Amendment.
One such exercise in legal gymnastics leans on the Supremacy Clause to apply the Bill of Rights to the states. Here’s an example of this reasoning.
“As I understand the Supremacy Clause, it appears that the state governments are also prohibited from ‘infringing’ on our individual right to ‘keep and bear Arms.’ The Supremacy Claus States that, ‘This Constitution, and the Laws of the United States, which shall be made in Pursuance thereof … Shall be the Supreme Law of the Land; … Laws of any State to the Contrary, notwithstanding.’
“All amendments to the Constitution, once ratified, became ‘part of’ the US Constitution, and therefor are the ‘supreme Law of the Land.'”
This assertion seems plausible on the surface. But the error in this logic lies in using the Supremacy Clause to reinterpret the Bill of Rights instead of simply applying the original meaning and intent of the amendments as the “supreme law of the land.”
As part of the Constitution, the Bill of Rights clearly stands as the supreme law of the land. But this fact tells us nothing about what the specific amendments mean, or how they apply. It only tells us that whatever they mean, and however they apply, they are the supreme law of the land.
It is clear from the preamble to the Bill of Rights, the drafting process and debates in Congress, and from the ratification debates in the states, that the Bill of Rights was intended to serve as a restriction on federal power only – not state power. Zero evidence exists that anybody in the founding era thought the Bill of Rights would apply to the states. In fact, when Madison introduced the Amendments that would eventually become the Bill of Rights, he proposed that some restrictions should apply to state governments. Those proposals were rejected during the drafting process in Congress.
Clearly the original intent was that the Bill of Rights would serve as restrictions on federal power only.
Therefore, per the Second Amendment, the federal government cannot infringe on the right to keep and bear arms. As drafted and ratified, this amendment was understood to place no restrictions on the states. This stands as the supreme law of the land. An application of the amendment to the states cannot be the supreme law of the land because that was never intended. No legal rule of construction exists that allows you to go back after the fact and reinterpret the words of the Bill of Rights in light of the supremacy clause in order to change its meaning into something that was never intended.
This fallacious reading of the supremacy clause and the Bill of Rights roots itself in a deeper misunderstanding. Most Americans think the United States operate under a nationalist political system with the states subservient to the central authority. In fact, the states remain independent and sovereign. The general government possesses limited authority subject to powers delegated to it by the states. In fact, the states and the central authority generally operate in totally separate spheres. The Bill of Rights was ratified to clarify the limits on federal authority and has nothing to do with state governments. They operate under state constitutions with their own restrictions.
Although Chief Justice John Marshall was an unapologetic advocate for national power, he explained how constitutions apply in different spheres, and the limits of the Bill of Rights beautifully in his opinion in Barron v. Baltimore.
“The constitution was ordained and established by the people of the United States for themselves, for their own government, and not for the government of the individual states. Each state established a constitution for itself, and in that constitution, provided such limitations and restrictions on the powers of its particular government, as its judgment dictated. The people of the United States framed such a government for the United States as they supposed best adapted to their situation and best calculated to promote their interests. The powers they conferred on this government were to be exercised by itself; and the limitations on power, if expressed in general terms, are naturally, and, we think, necessarily, applicable to the government created by the instrument. They are limitations of power granted in the instrument itself; not of distinct governments, framed by different persons and for different purposes.
“If these propositions be correct, the fifth amendment must be understood as restraining the power of the general government, not as applicable to the states. In their several constitutions, they have imposed such restrictions on their respective governments, as their own wisdom suggested; such as they deemed most proper for themselves. It is a subject on which they judge exclusively, and with which others interfere no further than they are supposed to have a common interest”
Tags: bill-of-rights, Incorporation Doctrine, Supremacy Clause
Would be awfully foolish for the State's to ratify the BOR's that was only to apply to the new Federal Government and then have Article 6 turn it on them!
Remember these Founders were smart men!
The Supremacy Clause and the Bill of Rights
By: Mike Maharrey|Published on: Sep 9, 2017|Categories: 14th Amendment, Bill of Rights, Constitution, Incorporation Doctrine, Supremacy Clause
Many Americans believe the Bill of Rights apply to state and local governments. Most who hold this position rely on the 14th Amendment and the “incorporation doctrine” to support their position. But some proponents of using federal power to restrict state and local actions through the Bill of Rights use tortured legal reasoning to argue the Bill of Rights were always intended to apply to the states, specifically the Second Amendment.
One such exercise in legal gymnastics leans on the Supremacy Clause to apply the Bill of Rights to the states. Here’s an example of this reasoning.
“As I understand the Supremacy Clause, it appears that the state governments are also prohibited from ‘infringing’ on our individual right to ‘keep and bear Arms.’ The Supremacy Claus States that, ‘This Constitution, and the Laws of the United States, which shall be made in Pursuance thereof … Shall be the Supreme Law of the Land; … Laws of any State to the Contrary, notwithstanding.’
“All amendments to the Constitution, once ratified, became ‘part of’ the US Constitution, and therefor are the ‘supreme Law of the Land.'”
This assertion seems plausible on the surface. But the error in this logic lies in using the Supremacy Clause to reinterpret the Bill of Rights instead of simply applying the original meaning and intent of the amendments as the “supreme law of the land.”
As part of the Constitution, the Bill of Rights clearly stands as the supreme law of the land. But this fact tells us nothing about what the specific amendments mean, or how they apply. It only tells us that whatever they mean, and however they apply, they are the supreme law of the land.
It is clear from the preamble to the Bill of Rights, the drafting process and debates in Congress, and from the ratification debates in the states, that the Bill of Rights was intended to serve as a restriction on federal power only – not state power. Zero evidence exists that anybody in the founding era thought the Bill of Rights would apply to the states. In fact, when Madison introduced the Amendments that would eventually become the Bill of Rights, he proposed that some restrictions should apply to state governments. Those proposals were rejected during the drafting process in Congress.
Clearly the original intent was that the Bill of Rights would serve as restrictions on federal power only.
Therefore, per the Second Amendment, the federal government cannot infringe on the right to keep and bear arms. As drafted and ratified, this amendment was understood to place no restrictions on the states. This stands as the supreme law of the land. An application of the amendment to the states cannot be the supreme law of the land because that was never intended. No legal rule of construction exists that allows you to go back after the fact and reinterpret the words of the Bill of Rights in light of the supremacy clause in order to change its meaning into something that was never intended.
This fallacious reading of the supremacy clause and the Bill of Rights roots itself in a deeper misunderstanding. Most Americans think the United States operate under a nationalist political system with the states subservient to the central authority. In fact, the states remain independent and sovereign. The general government possesses limited authority subject to powers delegated to it by the states. In fact, the states and the central authority generally operate in totally separate spheres. The Bill of Rights was ratified to clarify the limits on federal authority and has nothing to do with state governments. They operate under state constitutions with their own restrictions.
Although Chief Justice John Marshall was an unapologetic advocate for national power, he explained how constitutions apply in different spheres, and the limits of the Bill of Rights beautifully in his opinion in Barron v. Baltimore.
“The constitution was ordained and established by the people of the United States for themselves, for their own government, and not for the government of the individual states. Each state established a constitution for itself, and in that constitution, provided such limitations and restrictions on the powers of its particular government, as its judgment dictated. The people of the United States framed such a government for the United States as they supposed best adapted to their situation and best calculated to promote their interests. The powers they conferred on this government were to be exercised by itself; and the limitations on power, if expressed in general terms, are naturally, and, we think, necessarily, applicable to the government created by the instrument. They are limitations of power granted in the instrument itself; not of distinct governments, framed by different persons and for different purposes.
“If these propositions be correct, the fifth amendment must be understood as restraining the power of the general government, not as applicable to the states. In their several constitutions, they have imposed such restrictions on their respective governments, as their own wisdom suggested; such as they deemed most proper for themselves. It is a subject on which they judge exclusively, and with which others interfere no further than they are supposed to have a common interest”
Tags: bill-of-rights, Incorporation Doctrine, Supremacy Clause
Would be awfully foolish for the State's to ratify the BOR's that was only to apply to the new Federal Government and then have Article 6 turn it on them!
Remember these Founders were smart men!
@thewheels
.308 Win
The 14th was a fix that shouldn't have been required if Article 6 had been understood and applied properly by the courts.
@thewheels
.308 Win
Nope, it was in 1868 with the ratification of the 14th.
@thewheels
.308 Win
Any signed accord or treaty that is inconsistent with the Constitution is void whether it's ratified by the senate or not.
Marine Cpl
.577 Tyrannosaur.
Who said that I didn’t know that? I’m well aware of the process for a treaty overriding the constitution. It has to pass muster. The Founder’s spelled out a process for it. That isn’t the argument that’s being fought here. The argument being fought here is that the Bill of Rights in the US Constitution was not applicable to the States. I’m saying that it always was and is now. Never once did I say anything about a Treaty now for the 2nd time already.
No they are not. There are rules in the Constitution that , when followed, are consistent.
Marine Cpl
.577 Tyrannosaur.
Who said anything about states not having their own Constitution? I sure as hell didn’t? And what does a state having their own Constitution have to do with anything? They can have their own as long as it doesn’t contradict the US Constitution. Article 6 spells that out for you but you don’t want to seem to acknowledge Article 6 for some reason.Wow New York, Maryland and New Jersey don't have a State Constitutional right to keep and bear arms! And yet we do!
Also try not to be so disingenuous the carrying of dangerous and unusual weapons, says nothing about military grade anything!
https://www.thetruthaboutguns.com/six-states-without-constitutional-right-keep-bear-arms/
The Six States With No Constitutional Right to Keep and Bear Arms
BY DEAN WEINGARTEN |
NOV 02, 2014 |
96 COMMENTS
There are six states with constitutions that don’t explicitly protect the right of the people to keep and bear arms. The last state to add such a protection was Wisconsin, in 1998. The last stage of the process to amend the Badger State’s founding document was via a referendum and it passed with an overwhelming 74% of the vote. The sorry six that still lack enshrinement of the RKBA are listed below. And it won’t surprise you that these states are some of the least supportive of gun ownership and Second Amendment rights . . .
New York: Dominated by New York City politics, New York has often taken the lead in introducing and passing egregiously restrictive gun laws. The first significant one was in 1911, the infamous Sullivan Act, ostensibly designed to fight organized crime. The latest is the so called “SAFE Act” passed with out debate in the middle of the night. New York is ranked 50th by Guns & Ammo and gets an A- on the most recent Brady Campaign scorecard.
New Jersey: Garden State gun laws start with the premise that everything to do with guns is illegal. The state then tells you under what very restrictive conditions you may own, shoot, transport, or — for a tiny group, mostly judges and retired police officers — carry a gun. New Jersey is ranked 49th by G&A, A- on the Brady scorecard.
California: California has a long and distinguished history of legislation designed to keep minorities disarmed. The Golden State is the only state in recent years to (mostly) ban the open carry of firearms and is ranked 47th by G&A with another A- by the Brady Center.
Maryland: One of the few remaining “may issue” states, Maryland’s gun laws are some of the most restrictive in the nation thanks largely to the efforts of Governor Martin O’Malley. Maryland is ranked 43rd by G&A, A- by the Bradys.
Minnesota: Despite the oversight in its constitution, Minnesota’s gun law could be far worse, keeping it out of the bottom 10 on Guns & Ammo’s listing. The state has a well-organized state-level Second Amendment supporter movement. Minnesota is ranked 39th by G&A and gets an average C on the Brady scorecard.
Iowa: While Iowa is a middle-of-the-road state on firearms restrictions, it was one of the last to pass “shall issue” legislation. Iowa is ranked 38th by G&A, and received a C- by the Bradys.
It’s clear that state constitutions offer some protection for your rights. Several ballot measures this year are meant to strengthen a states constitutional protections. The most recent of these passed in Missouri. Alabama’s Amendment 3 will be on the ballot in a few days. Kinda makes you wonder how the vote would go if support for the RKBA would be put to a vote in the Empire State. But that’s just kooky talk.
©2014 by Dean Weingarten: Permission to share is granted when this notice is included.
Gun Watch
@thewheels
.308 Win
Where is there a provision in the constitution for unconstitutional signed accords to have force of law? It's the same as if a federal law was passed that was unconstitutional.
Not sure what you mean about unconstitutional accords.....
The Constitution provides that the president "shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two-thirds of the Senators present concur" (Article II, section 2). ... The Senate does not ratify treaties—the Senate approves or rejects a resolution of ratification.
So you think that the Bill of Right's that was put to the State's to ratify as only applying to the Federal Government, Then it got turned around on the States because of Article 6. The founders would have been pretty foolish to let that happen!
Marine Cpl
.577 Tyrannosaur.
@nortatoga . Question for you. Please answer it. Ive provided Article 6 for you and for some reason, you don’t want to seem to acknowledge it. Lets get past that for a minute and assume I’m dead wrong.
We all know that it has since been corrected and now it’s indisputable that the Bill of Rights applies to the state governments as well. Indisputable.
So the question. Why do you become a man on a mission when it comes to question if it didn’t previously?
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Celt
.338 Win Mag
Hes not on here all the time, but itdoesnt hurt to try.
Marine Cpl
.577 Tyrannosaur.
I’m waiting @nortatoga . Please answer the question above. Don’t wait for it to get buried and later claim that you didn’t see it.
@thewheels
.308 Win
The 2/3 majority approval of the senate is the means but it's not necessarily constitutional.
I'm referring to the gun control treaty scheming mentioned above.
I may be missing something, happens sometimes.
Are you referring to a specific treaty?
@thewheels
.308 Win
So the states weren't bound by the BOR.
Regardless of their own constitutions and what they may have included or excluded in them, they were free to mandate a state religion. Or remove all arms. Or ban particular speech from being printed.
Is that the gist of the argument?
Marine Cpl
.577 Tyrannosaur.
I found this. It’s yet to ever be challenged.
An international accord that is inconsistent with the U.S. Constitution is void under domestic U.S. law, the same as any other federal law in conflict with the Constitution. This principle was most clearly established in the case of Reid v. Covert.[8] The Supreme Court could rule an Article II treaty provision to be unconstitutional and void under domestic law, although it has not yet done so.
Now @Truebeliever , this is the first time I’ve mentioned treaties at all.
Marine Cpl
.577 Tyrannosaur.
It would be a yes according to his arguments regardless if it made sense or not or regardless if it went against the Founder’s principles.
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@thewheels
.308 Win
I will have to get back to this as I am on my way to work.
Truebeliever
6.5 Creedmoor
No, you are mistaken. The 1st says “congress shall make no law”. It only applies to the federal government. Remember the article six was written before the admendments. The 4th Admendment against search and seizure didn’t apply to the states until Mapp v Ohio in 1961.
The founding fathers were alive and operating the government. Why was Mapp the first case to rule so in all those years after they past on?
Article six meaning at the time was to say treaties and the expressed powers of the federal government were the law of the land to overcome the problems of the articles of confederation.
Also the 10 admendment was passed in part to counteract the article six
GOYABEAN
.950 JDJ
Marine Cpl
.577 Tyrannosaur.
That’s not entirely true. If you read the 10th Amendment, it 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.
It’s saying that the powers not given to the federal government by the constitution and also the powers not prohibiting the states by the constitution is given to the states or to the people.
So whatever is not in the constitution, the states have the power over and not the federal government.
It didn’t invalidate Article 6. Article 6 states that the Constitution is the Supreme Law of the Land. The 10th Amendment says that whatever isn’t in the Constitution falls to the states. That’s why when the Federal Government has tried to force states to adopt regulations not specified in the Constitution, the Supreme Court has voted against the government. Thats why the government offers budgetary incentives to the States when it wants them to adopt those regulations.
You don’t want to implement a maximum speed limit in your roads, well you wont get X amount of dollars for the farming subsidy you asked for.
If you read the decisions where the 10th was ruled in favor of the states, it will say exactly what I’m saying. The 10th didn’t invalidate Article 6 at all.
Acer-m14
20×102mm Vulcan
NY's 2a was moved to the Civil Right document of the State last i knew ..
Marine Cpl
.577 Tyrannosaur.
Yep. The whole Bill of Rights was moved to the Civil Rights Law here in NY. Those that say we don’t have a right to keep and bear arms here in NY even if the Federal Bill of Rights didn’t apply to the states is dead wrong.
Truebeliever
6.5 Creedmoor
“Counteract “ was not to say “invalidate”.
But to limit the federal powers.
As to “incentives”, sometimes the power of the federal government is that money but sometimes it’s the commerce clause.
The school gun free zones law was crafted to fit under that law.. And it was upheld after Congress made those changes.
And the admendments and the Bill of Rights still didn’t apply to the states until incorporated by the 14th.
That’s why McDonald case was important and heard by SCOTUS after Heller. It incorporates the 2nd to the states via the 14th.
McDonald v. City of Chicago - Wikipedia
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