The irony of the 1st and 2nd Amendents

[KenpoProfessor]

Amendment I
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.


Amendment II
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.

If you truly took the 1st into exact wording and letter of the law, what is preventing the states from curtailing our freedom of speech? There is nothing that prevents them from doing so yet so many people think it's a national right.

The 2nd amend. however clearly says the Right of the People to KBA SHALL NOT BE INFRINGED, and the letter of the law, you would think, is no one is allowed to infringe, state or federal.

What are your thoughts on this?

Have a great Kenpo day

Clyde

[luvtolean]

If you truly took the 1st into exact wording and letter of the law, what is preventing the states from curtailing our freedom of speech? There is nothing that prevents them from doing so yet so many people think it's a national right.

There sure the hell is something preventing the states from passing a law.

State law is subordinate to federal law. A state law cannot take away a freedom expressly given by fed law, especially the Constitution/Bill of Rights.

The problem for the second amendment has always been twofold.

1) The interpretation of the word "militia"
2) The fact SCOTUS has refused certiari everytime a second amendment case to define the substantive meaning of the Second has been brought up. **

First amendment cases have been debated/juged by SCOTUS ad naseum, and we understand quite well what it means.

**From part of a footnote in the St George Tucker paper posted by hoffmang:

"Our most recent treatment of the Second Amendment occured in United States v. Miller...The court did not, however, attempt to define, or otherwise construe, the substative right protected by the Second Amendment". Printz v United States. Only in recent years has the Second Amendment been accorded detailed scrutiny by the federal courts of appeals. Compare United States v Emerson, (Second Amendment "protects the rights of individuals, including those not then actually a member of any militia..., to privately possess and bear their own firearms") cert denied, with Silvera v Lockyer (adopting the collective rights model, [which] asserts that the Second Amendment right to 'bear arms' guarantees the right of the people to maintain an effective state militias, but does not provide any type of additional right to own or possess weapons.") pet. for reh. denied (9th circuit) cert denied

[ohsmily]

Because the First Amendment has been incorporated under the 14th Amendment whereas the 2nd has NOT....yet.

Anything else you want to know?

[The Soup Nazi]

They keep saying that the militia refers to the national guard, except the National Guard was started up in 1916/17 which is of course way after the time when the 2nd Amendment was on paper. Even on the stupid "militia" definition of anti gunners, as able bodied male 17-45 year olds, though we aren't granted RKBA as individuals, we would still be granted RKBA as being part of the unorganized militia. So essentialy the antis would be discriminating against younger teenagers, seniors, and women.

[Tzvia]

There sure the hell is something preventing the states from passing a law.

State law is subordinate to federal law. A state law cannot take away a freedom expressly given by fed law, especially the Constitution/Bill of Rights.

The problem for the second amendment has always been twofold.

1) The interpretation of the word "militia"
2) The fact SCOTUS has refused certiari everytime a second amendment case to define the substantive meaning of the Second has been brought up. **

First amendment cases have been debated/juged by SCOTUS ad naseum, and we understand quite well what it means.

**From part of a footnote in the St George Tucker paper posted by hoffmang:


Close. A State is not supposed to take away a freedom recognized by fed Constitution.

We aren't given anything here. We just have these rights and it does not matter if it is in the Bill of rights or the Constitution. They are self evident. But tell that to the lawmakers.

As for Militia, it is not a factor in the right recognized in the Second Amendment, looking at it as a sentence in english. It's just necessary for the security of a free state-nowhere does it state the militia has rights. The Right, is the right "of the people to keep and bear arms", not of the militia. The point is that the People can BECOME a "well regulated militia" when needed because they have access to arms and know how to use them. That it the meaning of the sentence.
"A clean blue sky being necessary for health of our western states, the right of the people to keep and drive hybrid cars shal not be infringed."- The people who go on and on about the militia would never argue that the sky has the right to hybrid cars in the sentence above. Same sentence structure.

[BerkeleyHK]

Because the First Amendment has been incorporated under the 14th Amendment

I believe it was Near v Minnesota (1931)

It is no longer open to doubt that the liberty of the press, and of speech, is within the liberty safeguarded by the due process clause of the Fourteenth Amendment from invasion by state action.

[luvtolean]

Tzvia, I'm pretty sure I'm more than close. I'm spot, dead nuts on.

The Aspen "supplements" used by law students has a great, brief summary in the problem ending the 3 pages devoted in over 1100 to the Second (yet another example of how little SCOTUS has judged the Second):

Ultimately, the Supreme Court will revisit the meaning of the Second Amendment. When this occurs, the debate, in large part, will be over the method of constitutional interpretation.

The Fourteenth Amendment doesn't really matter at this point because we don't know what in the hell the Second means (legally). For that matter, the Fourteenth wasn't really given fangs until the 50's in Brown v Board of Education. And that matter was over race discrimination, therefore it had "special" protections.

From Aspen:

For instance, the Supreme Court has declared that it is extremely suspicious of race discrimination and therefore the government may use racial classifications only if it proves that they are necessary to acheive a compelling government purpose. This is known as "strict scrutiny".

It is VERY unlikely the Supreme Court will afford the Second Amendment strict scrutiny in my opinion.

Of course, everyone here thinks they know what it means, and I probably agree with you, but from an Supreme Court standpoint, it is far from decided.

There have been two competing federal district court rulings, the Fifth called it an individual right, and the Ninth, in Silveira v (our buddy) Lockyer ruled it to be a state's right. And legally, that is where it sits.

[hoffmang]

The next step will be the DC Court of Appeals and Parker v. DC.

That case, being in a Federal territory, will likely drive the interpretation of the Second Amendment. Once that plays its course, it will be a subsequent suit (probably here in California or in Maryland) that will use the history of Ante-Bellum passage of the 14th to argue that it was clear that the point of the 14th was to allow southern freed slaves to keep and bear arms.

-Gene

[leelaw]

If you truly took the 1st into exact wording and letter of the law, what is preventing the states from curtailing our freedom of speech?

I dunno.. maybe the 14th Amendment?

[luvtolean]

The next step will be the DC Court of Appeals and Parker v. DC.

That case, being in a Federal territory, will likely drive the interpretation of the Second Amendment. Once that plays its course, it will be a subsequent suit (probably here in California or in Maryland) that will use the history of Ante-Bellum passage of the 14th to argue that it was clear that the point of the 14th was to allow southern freed slaves to keep and bear arms.

-Gene

Yes. I think the inclusion of evidence showing gun control often is racially motivated, is a very good move.

Parker is a really big deal...can't wait to see what happens.

[KenpoProfessor]

I know this, I was just looking to provoke some thoughts.

Have a great Kenpo day

Clyde

[jerryg1776]

Lets not forget - In times past, it was the second ammendnment (RKBA) that protected our first ammendment rights.

Now days we look to the courts to protect our rights and to tell us what rights we have. To me this is completely bassackwards. Our courts and government should protect our rights period, not interpret and reinterpret them as it suits their political agenda!

We allow this crap - This is why we have differing opinions in US court districts. I believe that if there are two differing opinions in US court districts, SCOTUS should be obligated to step in and make a single determination. This would force SCOTUS to look at cases that they do not want to hear.

[Outlaw Josey Wales]

Our courts and government should protect our rights period, not interpret and reinterpret them as it suits their political agenda!



The State Vs. The People
by Claire Wolfe and Aaron Zelman

The increase in government power is like a political arms buildup against the citizenry -- a vast expansion of the pretexts that the governing class has to attack the governed. A massive military buildup by one government can often subdue its foreign enemies without a fight. Similarly, contemporary statute books convey sufficient punitive power that citizens surrender without a fight in most potential conflicts with the government.

Americans should heed Wolfe and Zelman when they urge people to practice "living resistance" -- which means "committing your life to making sure that you never, through choice or inertia, help lay the bricks that build the police state."

People must summon the will and resolution to drive politicians out of their own lives. What is needed now is the same passion and outrage over political and bureaucratic aggrandizement that existed towards chattel slavery 140 years ago. We must recognize that possession of government office does not confer ownership rights over human beings....

If contemporary Americans can cease idolizing the State, a rebirth of the spirit of freedom will begin and the threat of America becoming a Police State will become far less foreboding.

-- From the Introduction by James Bovard

[Dr. Peter Venkman]

What I have been taughtis that state law can indeed violate federal, as long as the legislation passed is not by our elected representatives, only the voters. An example of this would be "medical mary jane". Completely illegal according to Federal Law, but is law in California because voters said yes. Our politicians would not have been able to do that (pass that into law that is). The problem with this is of course apparent, especially with the bull******** that has been able to limit the 2nd for years. State law is always going to trample rights until it reaches federal. CA gun laws are never going to be challenged until a case is taken to federal, and of course, no judge here in this blue state is going let it get that high.

[luvtolean]

The Fourteenth Amendment says the states can't take away rights, but it doesn't limit giving rights.

Since medical marijuana isn't the taking away of a right (well, it is of the poor unfortunates of those that live next to the people growing it) it doesn't violate the Contitution.

[RANGER295]

If the anti gunners are right and “the people” mentioned in the second amendment are only the national guard and state organized militia, then I guess “the people” mentioned in the first amendment and all of the rest of the constitution only refer to the government… right? Isn’t irony sweet? In a way their argument also takes away what they hold sacred.:D

[Dr. Peter Venkman]

The Fourteenth Amendment says the states can't take away rights, but it doesn't limit giving rights.

Since medical marijuana isn't the taking away of a right (well, it is of the poor unfortunates of those that live next to the people growing it) it doesn't violate the Contitution.

It doesn't violate the constitution but it still violates federal law.

[Mesa Tactical]

I wish gun owners would STFU about the 2nd Amendment. Invoking the 2nd Amendment is no argument at all, it's like invoking God: "God said it, so that's the end of the argument." No one is convinced.

Fact is, the 2nd Amendment was eviscerated in the 1930s with the National Firearms Act and the Miller Supreme Court decision. For all practical purposes, the 2nd Amendment is dead and has been for 70 years.

If we gun owners could just shut up about this dead horse and continue to discuss gun rights based on the facts alone, we might get somewhere.

BTW, regarding the Militia, what's the big mystery? It's right there in the US Code:

TITLE 10 > Subtitle A > PART I > CHAPTER 13 > § 311. Militia: composition and classes

(a) The militia of the United States consists of all able-bodied males at least 17 years of age and, except as provided in section 313 of title 32, under 45 years of age who are, or who have made a declaration of intention to become, citizens of the United States and of female citizens of the United States who are members of the National Guard.

(b) The classes of the militia are—

(1) the organized militia, which consists of the National Guard and the Naval Militia; and

(2) the unorganized militia, which consists of the members of the militia who are not members of the National Guard or the Naval Militia.

[luvtolean]

That's crap Mesa.

Blacks, and really people of all color, watched their rights get destroyed in the Dred Scott decision, itself a mockery of the Constitution. It took over 100 years for that wrong to be righted.

The beauty of our system is that we can sue again to get our rights properly restored.

There is nothing more important to gun owners than the Second Amendment. If you walk away from that, you have trouble.

[Mesa Tactical]

There is nothing more important to gun owners than the Second Amendment. If you walk away from that, you have trouble.

Baloney.

The arguments in favor of gun rights are overwhelming. We don't need the 2nd Amendment. We haven't had it in any case anyway for 70 years. The only way you can breathe life back into the 2nd Amendment is by the repeal of the NFA. Do you think that is likely in your lifetime or your children's lifetime?

I know the 2nd Amendment is a religion with a lot of you, but you can't use your own religion to change the attitudes of people with a different religion.

I, personally, have used polite, persistent argument to change the minds of originally anti-gun people. You will change no one's mind - not a single person - by whining about the 2nd Amendment. And changing people's minds is the ONLY way we will protect and expand our gun rights.

In any case, the current Administration has proven it has no regard at all for the 4th and 5th Amendments, or Article I, Section 7, and no one even cares. Putting all your eggs in the Bill of Rights won't help you when you need it. Just ask the Japanese-Americans of WWII.

[luvtolean]

Just because there hasn't been a case in 70 years doesn't mean it's dead.

Of course there are plenty of other arguments in favor of citizens owning guns.

But the Second is another arm in the armory.

[Glasshat]

The US Constitution only says Congress will not infringe (ha ha).

The California State Constitution Article 1 describes First Amendment and other rights in detail but says nothing about RKBA, meaning infringment is possible.

I think we're spinning our wheels until the state constitution is amended to include a detailed RKBA.

[hoffmang]

Glasshat,

The Rhode Island constitution dates to the late 1850's and says only:
"The right of the people to keep and bear arms shall not be infringed."

However, last year the RI supreme court said, "yeah, its an individual right, but bear means carry in the military so phbbbbbbbt."

Of course that's wrong, but don't dare assume that CA Courts would interpret CA constitutions the right way.

-Gene

[Glasshat]

The RI case would be duplicated in CA in spades!

I have no doubt that if a California 2A/RKBA amendment were put in place there would be a stack of ACLU type lawyers suing to repeal it, and another stack of ACLU type judges itching to agree with them.

[luvtolean]

I'd count on Brady, and the AG, if Brown gets elected, much more than the ACLU.

But this is the 9th circuit, and if it made it there, we already know how they would rule.