Parker v. DC Update

[hoffmang]

There was supposed to be oral argument in the Second Amendment case Parker v. DC this morning in Washington. I've just found out that DC's council came down with appendicitis on Friday and after an emergency motion to postpone from both sides, the oral argument has been rescheduled for Thursday, December 7, 2006 at 9:30 AM EST.

Here are the filings for those interested:
http://www.gurapossessky.com/parker.htm

-Gene

[shark92651]

I came accross this transcript of the oral arguments from Dec 7th. Makes for an interesting read...

http://k-romulus.blogspot.com/2006/12/parker-v-dc-oral-argument-transcript.html

[Fate]

Thanks for the link.

[Scarecrow Repair]

http://opencarry.mywowbb.com/forum4/961-1.html

Taken from the comments to the transcript page.

[Wulf]

I've always been confused by the issue of standing. It seems like unless you've been prosecuted under the law you dont have standing.....a person who obeys the law despite the inconvenience doesnt seem like the have standing. That just doesnt seem right.

[aileron]

I dont know about the rest of you, but Im on pins and needles waiting for this decision.

Well it ever come???????

Its making me nervous that they are taking so long, I wonder if they are widdling their way through this saying "nope, you no member of militia, and we aint got no militia, therefore you dont needum them guns."

Or more hopeful they are going through the past, reading the original intent, putting it on paper, and knocking it to DC. God I hope thats the case.

Just commenting because this is a big one and im dying over here waiting on the ruling.

[hoffmang]

This is about the time we should be hearing from the Federal Circuit Court of Appeals. They are usually pretty prompt. I'd say...


Two weeks.


I had to...

As to standing - one can get standing by having a law of general applicability that violates a constitutional right doesn't require you to become a criminal to prove its unconstitutional.

-Gene

[Blackwater OPS]

A few VERY scary qoutes from the Dec. transcript:

Todd Kim Lawyer for the Federal Government(DC):

all rights [are] subject to regulation[by the government]

And when asked by a Justice, "what is “the people?”"

Todd Kim Lawyer for the Federal Government(DC):

the collective

[kap]

"the collective" ?

Too much Star Trek for Todd.

Where is Warf and his "Assult Phaser" when you need him.

[blacklisted]

What the hell is 'the collective'? Is the Attorney somehow implying that we are Borg?

[DarthSean]

"It is true that liberty is precious - so precious that it must be rationed."

"A system of licensing and registration is the perfect device to deny gun ownership to the bourgeoisie."

-Vladimir Lenin

[hoffmang]

1. Be careful as that transcript is a pro gun guy's paraphrase.

2. However, there were some hilariously bad questions for DC. One of the 3 judge panel asked DC to "show me anyone who supports your interpretation prior to 1900."

-Gene

[Charliegone]

What the hell is 'the collective'? Is the Attorney somehow implying that we are Borg?

Resistance is Futile!

http://static.flickr.com/32/44913231_06be2b84af.jpg
:eek:
Please feel free to puke now.

[Blackwater OPS]

1. Be careful as that transcript is a pro gun guy's paraphrase.

-Gene

Good point, but if he really said that....:eek: I mean we are the collective?!? Is he serious? And people call me crazy when I quote Jefferson...



Where is Warf and his "Assult Phaser" when you need him.

Naw, I'll just take Picard's Tommy gun and go to work...;)

[hoffmang]

I think he probably used the term collective. Somehow the theory goes that there is this concept of a collective right. Sounds positively Stalinistic, but that's the best argument the anti-gunners can come up with...

-Gene

[Blackwater OPS]

I think he probably used the term collective. Somehow the theory goes that there is this concept of a collective right. Sounds positively Stalinistic, but that's the best argument the anti-gunners can come up with...

-Gene

But they way he said it, it seems like DC's position is that all rights belong to the "collective". That IS Stalinistic, and it makes him and any other government official who holds that position an enemy of the US constitution.

[xenophobe]

It's true though... "the people" are considered the collective group of individuals which compromise each state. The Constitution and Bill of Rights addresses states' rights. Individual rights are addressed by the state constitution of any given individuals' citizenship. However, since the District of Columbia is not a state, "the people" in the US Constitution has a different applicable meaning applying specifically to individual rights.

Don't get me wrong now... The Constiution and BOR were written specifically to protect individual rights, but not in the straightfoward manner of outlining and restricting what each person can or can't do, but limiting what the government can and cannot do to affect the collective groups of people.

IOW, it was written so that we have freedom to do any particular thing that is not specifically outlawed instead of being restricted until a government entity grants us the privilege of doing whatever it deems to be acceptable.

[Blackwater OPS]

Right, but what he is really saying is those rights don't exist at all, and the constitution is just some paper with writing on it.

[xenophobe]

I know.... I'm just providing color commentary to people who might be reading that don't really understand how the government was designed to work.

The way that I was taught world history, American history and how the government was designed to work isn't taught the same these days.

[Blackwater OPS]

I know.... I'm just providing color commentary to people who might be reading that don't really understand how the government was designed to work.

The way that I was taught world history, American history and how the government was designed to work isn't taught the same these days.

Fair enough, in fact I am going to post your comment in this (http://www.calguns.net/calgunforum/showthread.php?t=51188)thread, to help clarify my point.

[Builder]

U.S. Supreme Court in UNITED STATES v. VERDUGO-URQUIDEZ, 494 U.S. 259 (1990) believes that "the people" are individuals and not the state.
"the people" seems to have been a term of art employed in select parts of the Constitution. The Preamble declares that the Constitution is ordained and established by "the people of the United States." The Second Amendment protects "the right of the people to keep and bear Arms," and the Ninth and Tenth Amendments provide that certain rights and powers are retained by and reserved to "the people." See also U.S. Const., Amdt. 1 ("Congress shall make no law . . . abridging . . . the right of the people peaceably to assemble") (emphasis added); Art. I, 2, cl. 1 ("The House of Representatives shall be composed of Members chosen every second Year by the people of the several States") (emphasis added). While this textual exegesis is by no means conclusive, it suggests that "the people" protected by the Fourth Amendment, and by the First and Second Amendments, and to whom rights and powers are reserved in the Ninth and Tenth Amendments, refers to a class of persons who are part of a national community or who have otherwise developed sufficient connection with this country to be considered part of that community."
http://caselaw.lp.findlaw.com/cgi-bin/getcase.pl?court=us&vol=494&invol=259

[otalps]

If the Bill of Rights only concerned the states why would the language of the 10th state, 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.?

Would seem rather redundant would it not?

[xenophobe]

U.S. Supreme Court in UNITED STATES v. VERDUGO-URQUIDEZ, 494 U.S. 259 (1990) believes that "the people" are individuals and not the state.

Yes, but when you look at the intent at the time, one colony did not want their collective rights infringed by the wishes of another. The BOR was drafted so that a majority of the states could not provide mandate for the federal government to restrict the rights of those dissenting states. Back then, each State was ruled by a group of landowners, merchants, friends and family, each of whom had great distrust of an unchecked government. They reluctantly vested power to the federal government with the caveat that the government would be restricted from infringing upon state's rights.

Read the Constitution and the Bill of Rights in the context that the states were filled with people paranoid of the potential power of other states, and especially with the federal government. The Constitution does not provide for the individual, but for the powers delegated by the states and what the states were to expect in return.

The federal government was originally formed for many of the same reasons as NATO or the European Union, to level the playing field between states, provide for continuity in trade and currency and for a common defense.

The people were all individuals of the combined states which joined the union. Joining the union did not dissolve the states...

[xenophobe]

If the Bill of Rights only concerned the states why would the language of the 10th state, 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.?

Would seem rather redundant would it not?

No, because the 10th Amendment basically states that the federal government only has power or jurisdiction over the states where the states have allowed, and where it hasn't the power is retained by the states, and in the cases where it hasn't been given to the state by the people, the individuals of that state shall retain the power.

It basically keeps the (federal and state) government from taking power where it has not been authorized, and if it has not been authorized, it is kept by the people.

[otalps]

No, because the 10th Amendment basically states that the federal government only has power or jurisdiction over the states where the states have allowed, and where it hasn't the power is retained by the states, and in the cases where it hasn't been given to the state by the people, the individuals of that state shall retain the power.

It basically keeps the (federal and state) government from taking power where it has not been authorized, and if it has not been authorized, it is kept by the people.

Kind of like the right of the People to keep and bear arms, shall not be infringed. Or the individual rights named in the 1st, 3rd, 4th, 5th, 6th and the 9th. Rights delegated to the states are in the Constitution itself, Why would a State have to be concerned with self incrimination or excessive bail?

[adamsreeftank]

I always thought the constitution and the bill of rights was an expression of the rights of individuals as being equal and empowered in contrast to the British monarchy that was just defeated. While the concept of "the people" has expanded from white land owners to cover just about everyone, "the people" is still "the people".

[Wulf]

That prosecutors statements make me think that we need a law or amendment to the constitution that would disbar from government service any prosecutor or legislator that writes a law or pursues a case that is unconstitutional as its a violation of their oath of office..

[xenophobe]

Kind of like the right of the People to keep and bear arms, shall not be infringed. Or the individual rights named in the 1st, 3rd, 4th, 5th, 6th and the 9th. Rights delegated to the states are in the Constitution itself, Why would a State have to be concerned with self incrimination or excessive bail?

If they were individual rights, why were the states free to ignore these rights until the 14th Amendment? And these aren't specifically individual rights that are granted to you, these are boundaries that the federal government may not encroach, but the states were always free to without due process, until the 14th Amendment forced the states to abide by the BOR.

[stag1500]

I thought that the "Supremacy Clause" in the U.S. Constitution already forced the States to abide by the Bill of Rights.

[xenophobe]

I thought that the "Supremacy Clause" in the U.S. Constitution already forced the States to abide by the Bill of Rights.

I could type it out, but this article provides more insight and lists references so you can look into it as far as you would like:

http://www.constitution.org/col/intent_14th.htm

Oh, and I do stress that I generally hate posting links to anything and prefer to write what I have personally been taught and have learned, but in this case, this provides you with much more information and insight than I have learned on the subject.

EDIT: I hold all the opinions I do from all the studying that my 7th grade US history teacher made us do. One month was dedicated to reading and discussing both the Federalist and Anti-Federalist views, and every section of the Constitution and Bill of Rights were actually looked at from both perspectives, and my teacher Mr Hollinger, left us to decide what the Framers actually meant when creating our government.... He was one of the greatest teachers that I've ever had. I could go on and on about this guy.... He was also my math teacher, and he was absolutely brilliant. I learned more from him in one period class in 7th Grade than I learned in my entire first two years of HS.

[otalps]

If they were individual rights, why were the states free to ignore these rights until the 14th Amendment? And these aren't specifically individual rights that are granted to you, these are boundaries that the federal government may not encroach, but the states were always free to without due process, until the 14th Amendment forced the states to abide by the BOR.

The states were free to ignore them because of the bad decision of Dred Scott. I can't think of another case that came to light before that of the states ignoring the BoR. The 1st amendment specifically defines the limits of Congress, meaning the federal government, the other amendments don't. The entire Constitution is filled with language of what is in the realm of the federal government the states and the people. The founding fathers weren't just suspicious of the federal government but of all governments including those of the states.

ETA: This state's rights collective argument for the BoR is the same argument the anti's use for the 2nd.

[hoffmang]

Here I have to agree with xeno. Before the 14th, states could for example have a state religion.

[otalps]

Here I have to agree with xeno. Before the 14th, states could for example have a state religion.

But the 1st amendment restricts Congress from establishing a state religion, not the states. Before the 14th could a state board soldiers in a house without the owners permission?

[Blackwater OPS]

But the 1st amendment restricts Congress from establishing a state religion, not the states. Before the 14th could a state board soldiers in a house without the owners permission?

They could and still can.

[otalps]

Then they would be doing so against their constitutional authority and as the owner you would have a means of redress.

ETA: How could they do it now the states have no troops?

[otalps]

From a speech to the Citizens of New York to ratify the Constitution.

The powers, rights, and authority, granted to
the general government by this constitution, are as complete, with respect
to every object to which they extend, as that of any state government

This system, if it is possible for the people of
America to accede to it, will be an original compact: and being the last,
will, in the nature of things, vacate every former agreement inconsistent
with it.


It is therefore not only necessarily implied thereby, but positively
expressed. that the different state constitutions are repealed and entirely
done away. so far as they are inconsistent with this, with the laws which
shall be made in pursuance thereof, or with treaties made.or which shall be
made, under the authority of the United States; of what avail will the
constitutions of the respective states be to preserve the rights of its
citizens? should they be plead, the answer would be. the constitution of the
United States, and the laws made in pursuance thereof, is the supreme law,
and all legislatures and judicial officers, whether of the general or state
governments, are bound by oath to support it. No priviledge, reserved by the
bills of rights, or secured by the state government, can limit the power
granted by this, or restrain any laws made in pursuance of it. It stands
therefore on its own bottom, and must receive a construction by itself
without any reference to any other -- And hence it was of the highest
importance, that the most precise and express declarations and reservations of rights should have been made.


This will appear the more necessary, when it is considered, that not only
the constitution and laws made in pursuance thereof, but all treaties made,
or which shall be made, under the authority of the United States, are the
supreme law of the land, and supersede the constitutions of all the states.


Where is similar evidence of the BoR not applying to the People but to the states?

[xenophobe]

Until the 14th Amendment, there was no power vested to the federal government to actually enforce the Supremacy Clause.

14th Amendment Section 5. The Congress shall have the power to enforce, by appropriate legislation, the provisions of this article.

The states were free to ignore them because of the bad decision of Dred Scott. I can't think of another case that came to light before that of the states ignoring the BoR. The 1st amendment specifically defines the limits of Congress, meaning the federal government, the other amendments don't. The entire Constitution is filled with language of what is in the realm of the federal government the states and the people. The founding fathers weren't just suspicious of the federal government but of all governments including those of the states.

ETA: This state's rights collective argument for the BoR is the same argument the anti's use for the 2nd.

There are MANY examples of where you are completely wrong.

The 1st Amendment is limited. Yelling "Fire" in a movie theater, for example.
The 2nd Amendment, the federal government does not limit your RKBA, you can own machine guns, mortars, grenades, short barrelled firearms, pen guns, etc... but the states may restrict these. CA AWB, NJ AWB, NY Handgun Ban, and so on.
The 5th Amendment says you need to be indicted by a grand jury but the US Supreme Court has held that states are not required to do so.

You want me to keep going?


But for the record, I think anyone who wants a handgun, rifle, Machine Gun or SBR/SBS or whatever should be able to go into a store, pass an instant background check if they cannot prove they already own a firearm and leave with it the same day.

[otalps]

Until the 14th Amendment, there was no power vested to the federal government to actually enforce the Supremacy Clause.

14th Amendment Section 5. The Congress shall have the power to enforce, by appropriate legislation, the provisions of this article.



There are MANY examples of where you are completely wrong.

The 1st Amendment is limited. Yelling "Fire" in a movie theater, for example.
The 2nd Amendment, the federal government does not limit your RKBA, you can own machine guns, mortars, grenades, short barrelled firearms, pen guns, etc... but the states may restrict these. CA AWB, NJ AWB, NY Handgun Ban, and so on.
The 5th Amendment says you need to be indicted by a grand jury but the US Supreme Court has held that states are not required to do so.

You want me to keep going?


This proves what? That there are laws in direct violation of the Constitution? There are just as many Federal Laws that violate the BoR. McCain Feingold infringes upon the 1st. NFA laws, the AWB, do you really need me to post all the Federal laws that infringe upon the 2nd or any other amendments? None of that has to do with what the founders intended for the Bill of Rights. You haven't shown one example of why I'm wrong. I've shown plenty of why you are though.

None of what you have posted does anything to prove your argument that the Bill of Rights applies only to the states and not to individuals.

Why can a state not create it's own army? According to your interpretation they are guaranteed that right by the BoR. How does this:

We the people of the United States, in order to form a more perfect union, establish justice, insure domestic tranquility, provide for the common defense, promote the general welfare, and secure the blessings of liberty to ourselves and our posterity, do ordain and establish this Constitution for the United States of America.

Make any sense in any grammatical variation whatsoever if they are not referring to the people? Where is a letter or any other document from any of the founding fathers that says what they meant was for the States to have the power to make any law they please just not the Feds?

The Supremacy clause in your view is just more mumbo jumbo written down in the Constitution and the words people, individual, person and state are all interchangeable? That makes perfect sense. And here I thought the founding fathers were learned men.

[xenophobe]

This proves what?

Excuse me, I misread your previous statement about cases which infringed on the BOR, not as in cases=court but as in cases=examples.


None of what you have posted does anything to prove your argument that the Bill of Rights applies only to the states and not to individuals.Make any sense in any grammatical variation whatsoever if they are not referring to the people? Where is a letter or any other document from any of the founding fathers that says what they meant was for the States to have the power to make any law they please just not the Feds?

And you are taking what I have said out of context and are exaggerating on it for argument's sake. Let me cut and paste from another thread :rolleyes:

It's true though... "the people" are considered the collective group of individuals which compromise each state. The Constitution and Bill of Rights addresses states' rights. Individual rights are addressed by the state constitution of any given individuals' citizenship. However, since the District of Columbia is not a state, "the people" in the US Constitution has a different applicable meaning applying specifically to individual rights.

Don't get me wrong now... The Constiution and BOR were written specifically to protect individual rights, but not in the straightfoward manner of outlining and restricting what each person can or can't do, but limiting what the government can and cannot do to affect the collective groups of people.

IOW, it was written so that we have freedom to do any particular thing that is not specifically outlawed instead of being restricted until a government entity grants us the privilege of doing whatever it deems to be acceptable.

And I didn't respond to this comment you made earlier:
The founding fathers weren't just suspicious of the federal government but of all governments including those of the states.

Because you're just paraphrasing what I said earlier in the thread. *shrug* And to correct you, the Founding Fathers of any given state were more suspicious of Federal Government and states than their own. Most people of any given state were fairly confident of their state government, and were more worried about other states dominating over others in the union. And because of this, before the Constitution was ratified, there was very intense debate on the process of how the government would determine how many representatives would be elected to represent each state in the House of Representatives.

None of what you have posted does anything to prove your argument that the Bill of Rights applies only to the states and not to individuals.

Any of the rights in the Bill of Rights can be legislated away by any State who so wishes. Your right to peaceably assemble (by making you pay for permits and get permission), your RKBA by banning, restricting and forcing you to register, and other rights violations I listed above. In most cases they are held CONSTITUTIONAL. Why? Because the 14th Amendment which forces the states to comply with the BOR also give a process for those states who so desire the ability to remove your rights through the vague term 'due process' which in this case would be having an elected state representative write and pass legislation which is signed by the governor. When this happens, your rights have been infringed upon, and it is up to the federal government to force the state to comply through federal legislation or Supreme Court review. Before the 14th Amendment, the federal government did not have the power to enforce the Supremacy Clause.

Is this too adult a puzzle for you?

The Supremacy clause in your view is just more mumbo jumbo written down in the Constitution and the words people, individual, person and state are all interchangeable? That makes perfect sense. And here I thought the founding fathers were learned men.

And as to your lack of understanding of the 14th Amendment...


What would become the Fourteenth Amendment was debated in the House on May 8 through 10. Stevens remarked that its provisions "are all asserted, in some form or another, in our DECLARATION or organic law. But the Constitution limits only the action of Congress, and is not a limitation on the States. This Amendment supplies that defect, and allows Congress to correct the unjust legislation of the States."[102] Representative Thayer stated that the proposed amendment "simply brings into the Constitution what is found in the bill of rights of every State," and that "it is but incorporating in the Constitution of the United States the principle of the civil rights bill which has lately become a law."[103]

Bingham averred that the amendment would protect "the privileges and immunities of all the citizens of the Republic and the inborn rights of every person within its jurisdiction."[104] He added that it would furnish a remedy against state injustices, such as infliction of cruel and unusual punishment.[105] By stating that Eighth Amendment violations would be prohibited, Bingham implied that the Fourteenth Amendment would prohibit deprivations of any rights recognized in the Bill of Rights.[106]

The proposed Fourteenth Amendment passed the House on May 10.[107] The New York Evening Post remarked: "The first section merely reasserts the Civil Rights Act."[108] That act had been perceived by the Post as protecting "public assemblies" and "keeping firearms,"[109] that is, First and Second Amendment rights.

On May 22, Representative Eliot, on behalf of the Select Committee on Freedmen's Affairs, reported the second Freedmen's Bureau Bill,[110] which would become H.R. 613. As before the new bill recognized "the constitutional right to bear arms."[111] Bingham, author of § 1 of the Fourteenth Amendment, was a member of the select committee that had drafted this bill.

The need to protect the right to bear arms persisted. That same day (May 22) the president transmitted a report on Southern state laws concerning freedmen to the House. The report included black code provisions that prohibited the possession of firearms by freedmen. South Carolina made it unlawful for "persons of color to keep a firearm, sword, or other military weapon," without a license, except a farm owner could keep a shotgun or rifle "ordinarily used in hunting."[112] Florida made it unlawful for a black to enter a white railroad car and to possess "any bowie-knife, dirk, sword, fire-arms, or ammunition of any kind" without a license.[113] Although these state laws were well known, it is significant that they were received again in Congress on May 23, the first day that the Senate considered H.R. 127, which would become the Fourteenth Amendment.

Howard introduced the proposed amendment in the Senate on behalf of the Joint Committee, explaining "the views and motives which influenced that Committee."[114] After acknowledging the important role of the testimony before the Joint Committee, Howard referred to "the personal rights guaranteed and secured by the first eight amendments of the Constitution; such as freedom of speech and of the press;. .. the right to keep and bear arms"[115] (emphasis added). Howard averred: "The great object of the first section of this amendment is, therefore, to restrain the power of the States and compel them at all times to respect these great fundamental guarantees"[116] (emphasis added).

In the ensuing debate, no one questioned Howard's premise that the Amendment made the first eight amendments applicable to the states.[117] Howard explained that Congress could enforce the Bill of Rights through the Enforcement Clause, "a direct affirmative delegation of power to Congress to carry out all the principles of all these guarantees."[118] Howard added: "It [the amendment] will, if adopted by the States, forever disable every one of them from passing laws trenching upon those fundamental rights and privileges which pertain to citizens of the United States, and to all persons who happen to be within their jurisdiction."[119]

Howard's explanation that the Fourteenth Amendment would protect "the personal rights guaranteed by the first eight amendments of the United States Constitution such as ... the right to keep and bear arms" appeared on the front page of the New York Times[120] and New York Herald[121] and were printed in the National Intelligencer[122] and Philadelphia Inquirer.[123] The New York Times found his speech "clear and cogent,"[124] while the Chicago Tribune found that it was "very forcible and well put, and commanded the close attention of the Senate."[125] "It will be observed," summarized the Baltimore Gazette, "that the first section is a general prohibition upon all of the States of abridging the privileges and immunities of the citizens of the United States, and secures for all the equal advantages and protection of the laws."[126] Other newspapers were impressed with the length or detail of Howard's explanation.[127]

The 14th Amendment was to force states to comply to the Bill of Rights and to give the federal government the teeth to enforce their compliance.

Feel free to read more about WHY it was actually passed. Seems like I've been having to correct a NUMBER of people on this one lately. And before you babble about the Supremacy Clause any more, read this in it's entirety: :rolleyes:
http://www.constitution.org/col/intent_14th.htm


Now, I have a question for you... If the Bill of Rights specifically addresses individual rights, why do states incorporated into the union AFTER the ratification of the US Constitution and Bill of Rights even have State Constitutions and Bills of Rights?

By your very case, they would be unnecessary at the least, and unlawful and meaningless at worst.

[hoffmang]

States after ratification still had constitutions because they could choose to hold even wider rights to the people. To support that the 14th applies BOR to the people I present you the original lack of RKBA in the California Constitution.

States can not use "due process" to deny non felons a right secured in the incorporated BOR.

-Gene

[otalps]

And you are taking what I have said out of context and are exaggerating on it for argument's sake. Let me cut and paste from another thread :rolleyes:
It is not my intention to exaggerate your your comments. But you seem to be arguing the case of DC in the same manner as they. So by your interpretation they are correct, yes? Where are the documents or quotes from any of the founding fathers or from any of the debates in ratifying the Constitution and the Bill of Rights to support this?


It's true though... "the people" are considered the collective group of individuals which compromise each state. The Constitution and Bill of Rights addresses states' rights. Individual rights are addressed by the state constitution of any given individuals' citizenship. However, since the District of Columbia is not a state, "the people" in the US Constitution has a different applicable meaning applying specifically to individual rights.


The People can be thought of perhaps as a collective group, the people referred to though are both citizens of individual States and of the United States at the same time. The language in the 5th however, is not a group of anybody by any stretch of the imagination. The Constitution is filled with people, person and state the terms are not interchangeable.

From Houston vs. Moore the same case used as evidence by the lawyers for Parker and a case that predates the 14th amendment:
But even supposing this power not to be exclusively vested in Congress, and admitting it to be concurrent between the United States' government, and the respective State governments; as Congress have legislated on the subject matter, to the extent of the authority given, State legislation, which is subordinate, is necessarily excluded. Even where the grant of a certain power to the government of the Union is not, in express terms, exclusive, yet if the exercise of it by that government be practically inconsistent with the exercise of the same power by the States, their laws must yield to the supremacy of the laws of the United States.
Doesn't seem to follow the view that states had the ability to write laws in defiance of the Constitution. I wonder why.


Don't get me wrong now... The Constiution and BOR were written specifically to protect individual rights, but not in the straightfoward manner of outlining and restricting what each person can or can't do, but limiting what the government can and cannot do to affect the collective groups of people.

IOW, it was written so that we have freedom to do any particular thing that is not specifically outlawed instead of being restricted until a government entity grants us the privilege of doing whatever it deems to be acceptable.


That is my point. It limits the power of government, all government. What was the reasoning behind the decision in Dred Scott? That if he was a citizen he would be entitled to all the freedoms and privileges of citizenship of the United States, including the right to bear arms. The natural rights of Man predate any government including the states.


Because you're just paraphrasing what I said earlier in the thread. *shrug* And to correct you, the Founding Fathers of any given state were more suspicious of Federal Government and states than their own. Most people of any given state were fairly confident of their state government, and were more worried about other states dominating over others in the union. And because of this, before the Constitution was ratified, there was very intense debate on the process of how the government would determine how many representatives would be elected to represent each state in the House of Representatives.


There was debate about a lot of issues having to do with ratification not only on how many representatives should be from each state. The Bill of Rights came about because of these debates. Where is the confidence in their own state governments? There are plenty of quotes from the founders that contradict that.


Any of the rights in the Bill of Rights can be legislated away by any State who so wishes. Your right to peaceably assemble (by making you pay for permits and get permission), your RKBA by banning, restricting and forcing you to register, and other rights violations I listed above. In most cases they are held CONSTITUTIONAL. Why? Because the 14th Amendment which forces the states to comply with the BOR also give a process for those states who so desire the ability to remove your rights through the vague term 'due process' which in this case would be having an elected state representative write and pass legislation which is signed by the governor. When this happens, your rights have been infringed upon, and it is up to the federal government to force the state to comply through federal legislation or Supreme Court review. Before the 14th Amendment, the federal government did not have the power to enforce the Supremacy Clause.

The first amendment specifically restricts Congress not the States. The original amendment as written by Madison which was rejected by the Senate included state governments. I never disagreed that they do such things. The case I just showed you above is the Supreme Court enforcing the Supremacy Clause before the ratification of the 14th. When were any of these even issues before the ratification of the 14th? Due process existed before the ratification of the 14th.


Is this too adult a puzzle for you?

Perhaps if I had had 1 period of 7th grade to teach me all this, I could have avoided all the hassle as an undergrad:rolleyes:


And as to your lack of understanding of the 14th Amendment...

See due process above.


The 14th Amendment was to force states to comply to the Bill of Rights and to give the federal government the teeth to enforce their compliance.

Feel free to read more about WHY it was actually passed. Seems like I've been having to correct a NUMBER of people on this one lately. And before you babble about the Supremacy Clause any more, read this in it's entirety: :rolleyes:
http://www.constitution.org/col/intent_14th.htm

I know why it was passed. The 14th amendment also changed that rights were granted to all people within a juristiction not only citizens. But none of that changes the founders intent behind the original Bill of Rights which was what I was arguing with you about in the first place.

Read your own link. Notice what it says about the dissenting opinion in Hurtado v. California and what does that dissenting opinion do to your view on the issue?


Now, I have a question for you... If the Bill of Rights specifically addresses individual rights, why do states incorporated into the union AFTER the ratification of the US Constitution and Bill of Rights even have State Constitutions and Bills of Rights?

By your very case, they would be unnecessary at the least, and unlawful and meaningless at worst.

Because in order for a state to be admitted to the Union they have to meet the requirements set about in Article IV section 2 of the US Constitution.

They would not be meaningless because the Bill of Rights does not list all rights, only a select few. It is up to the states to protect individual rights those can be listed in a state's constitution. Government is not made to give rights only protect them. Where is any proof of a different view by any of the founders? The founders intended to protect individual liberty not state liberty.

[hoffmang]

otalps,

Your argument about Dred Scott is actually a pretty persuasive argument in your favor and against both Xeno's and my point.

However, on Parker v. DC the 14th interpretation issues are moot. The District is the Federal government and we three would agree that the Federal government has to be bound by the BOR.

-Gene

[Blackwater OPS]

The funny thing is Dred Scott was decided in FAVOR or Scott by the state supreme court, it was the FEDERAL court that said he was a non-citizen. If the Fed would have just stayed out of the whole damn thing the 14th would have been unneccesary.

[hoffmang]

The Civil War was coming one way or another...

-Gene

[otalps]

Gene,

Thanks. I was just reading throught the link you had posted and found it rather interesting the way they argued against the BC and the VPC interpretation but true it is a moot point.

Do you have a direct link to the question you posted earlier by the judge asking if anyone agreed with their view prior to 1900?

[hoffmang]

Here is the quote from the bench:
http://www.foxnews.com/wires/2006Dec07/0,4670,GunBan,00.html

Also, here is the "meta" transcript:
http://k-romulus.blogspot.com/2006/12/parker-v-dc-oral-argument-transcript.html

-Gene

[otalps]

Cool, thanks.

[otalps]

Gene,

Good stuff in that second link of the transcript:

JSI: Wasn’t the DC position unknown in the 19th Century? Isn’t this something from the past 50 years? Dredd Scott said that Blacks could not be citizens under the Constitution because they would enjoy the privileges and immunities of US Citizenship including bearing arms where they went; the collective position is not in Miller

:)

[DedEye]

The Civil War was coming one way or another...

-Gene

Very true. It wasn't related to slavery or blacks. The Civil War was a war of economics between north and south, but that's a topic for another thread.

[Builder]

Yes, but when you look at the intent at the time, one colony did not want their collective rights infringed by the wishes of another.That's why the 2nd, is about the individual and not the states. I covers all citizens no matter which state they reside in.
The Constitution does not provide for the individual, but for the powers delegated by the states and what the states were to expect in return.Umm, the the 1st isn't about a state's freedom of speech. It is about the individual's right. Same for 2nd, etc as discussed in the Ver.-Urq. SCOTUS decision I referenced earlier.
The people were all individuals of the combined states which joined the union. Joining the union did not dissolve the states...Nor did it disolve the individual's personal rights no matter which state they were in.
Thanks,
Builder

[xenophobe]

It is not my intention to exaggerate your your comments. But you seem to be arguing the case of DC in the same manner as they. So by your interpretation they are correct, yes? Where are the documents or quotes from any of the founding fathers or from any of the debates in ratifying the Constitution and the Bill of Rights to support this?

Please post references to validate your opinion. I can play that game as well.

The People can be thought of perhaps as a collective group, the people referred to though are both citizens of individual States and of the United States at the same time. The language in the 5th however, is not a group of anybody by any stretch of the imagination. The Constitution is filled with people, person and state the terms are not interchangeable.

From Houston vs. Moore the same case used as evidence by the lawyers for Parker and a case that predates the 14th amendment:

Doesn't seem to follow the view that states had the ability to write laws in defiance of the Constitution. I wonder why.

Interesting. If that is indeed the case, then why is the basic premise of the 14th Amendment to protecting individuals' rights at the state level and also to give the federal government official power to enforce recognized rights?


That is my point. It limits the power of government, all government. What was the reasoning behind the decision in Dred Scott? That if he was a citizen he would be entitled to all the freedoms and privileges of citizenship of the United States, including the right to bear arms. The natural rights of Man predate any government including the states.

There was debate about a lot of issues having to do with ratification not only on how many representatives should be from each state. The Bill of Rights came about because of these debates. Where is the confidence in their own state governments? There are plenty of quotes from the founders that contradict that.

I did say fairly confident. In forming the federal government, state citizens were more fearful of a federal government becoming a monarchy, theocracy or dictatorship. The true intent was dual federalism in any case where specific powers not vested to the federal government are retained by the states, which is an idea that has pretty much been written out of the history books and popular teaching...


The first amendment specifically restricts Congress not the States. The original amendment as written by Madison which was rejected by the Senate included state governments. I never disagreed that they do such things. The case I just showed you above is the Supreme Court enforcing the Supremacy Clause before the ratification of the 14th. When were any of these even issues before the ratification of the 14th? Due process existed before the ratification of the 14th.

That's interesting. Yes, I know due process existed before the 14th. Have you not paid attention to what I have actually said? I never actually have been able to find any Supreme Court cases that invoked the Supremacy Clause. I'll look into it, thanks. Certainly they are very rare, would you not agree?


Perhaps if I had had 1 period of 7th grade to teach me all this, I could have avoided all the hassle as an undergrad:rolleyes:

My views and opinions predate the world wide web. I have done a LOT of reading on the matter, moreso than most people, but perhaps not as much as you. I'm sorry that makes me a lesser being... How elitist... please post your thesis or dissertation, or at least the topics you've covered as well as where you studied.

He was actually teaching college level history in 7th grade and as 1 period I meant throughout the whole school year. My high school US history class was a joke in comparison. And please accept my apologies for having opinions on a such a single sided issue such as Constitutional law. :rolleyes:

Anyways, I guess you ARE so much superior. (bite something)


See due process above.

I understand due process somewhat. It is a vague term that can be applied to a vastly wide range of uses.


I know why it was passed. The 14th amendment also changed that rights were granted to all people within a juristiction not only citizens. But none of that changes the founders intent behind the original Bill of Rights which was what I was arguing with you about in the first place.

Read your own link. Notice what it says about the dissenting opinion in Hurtado v. California and what does that dissenting opinion do to your view on the issue?

Again, I'll look into it. However I don't really care much for court cases. For example, I think US v. Miller was a crock of stinky brown stuff when it comes to the government's ability to regulate and ban certain firearms. Original intent is more important to me, though don't get me wrong, SCOTUS rulings are very important to the interpretation of the law, and are the final arbiter of the law of the land, but they're not always spot-on, IMO.



Because in order for a state to be admitted to the Union they have to meet the requirements set about in Article IV section 2 of the US Constitution.

Okay, joining the union the state would be approving the US Constitution and the BOR as applicable to their citizens, and would be 'agreeing to the terms' so to speak. And my question still stands... Article 4 section 2 does not require a state to have a constitution or bill of rights, only that the citizens of the states have the same rights as citizens of other states (which also furthers my point, that citizen's rights are addressed and protected at the state level, and state's rights are protected at the federal level).

So please, answer my question.


They would not be meaningless because the Bill of Rights does not list all rights, only a select few. It is up to the states to protect individual rights those can be listed in a state's constitution. Government is not made to give rights only protect them. Where is any proof of a different view by any of the founders? The founders intended to protect individual liberty not state liberty.

Yes, I know this. It is up to states to protect individual rights, not the federal government, and I still contend that the 14th Amendment section 1 and 5 were enacted so that the federal government had the authority to enforce the Constitution and BOR so that states can be forced to adhere to these privileges.


I just found this, I don't know who wrote it nor do I know about the validity of his reputation, but... This is written a bit better than I can convey, though it captures my belief very well:


The Federal Constitution was written as a "Limitation and Restriction" upon the federal government. It was a delegation of power by the sovereign States of a portion of their sovereign power that had been previously delegated by the People. It did not grant anything to the People (state Citizens); it only restricted the government from infringing upon certain sovereign powers that the People wanted to keep for themselves.

http://www.supremelaw.org/authors/mcdonald/vol1-9.htm

[Pvt. Cowboy]

UPDATE:

DC Circuit strikes down DC gun law

http://www.calguns.net/calgunforum/showthread.php?t=51461

[xenophobe]

Yes, that is absolutely amazing news! It still doesn't change my position though. lol

It'll be interesting to see how this filters down through the states...

[Paratus et Vigilans]

Well, I'm certainly no Con Law scholar, but here's what I learned in my first year of law school - it may prove to be of some guidance in your debate:

Section 1 of the 14th Amendment says, among other things, that: No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; . . . When you talk about "privileges" in the law, you're not necessarily talking about the Bill of Rights. You've got the attorney-client privilege, the priest-penitent privilege, the doctor-patient privilege, etc., all of which are limited privileges, meaning that when there is some overriding social need for the priviliged information, then its divulgance can be compelled by a court of law of comptent jurisdiction. Also, as Xeno pointed out, even among the rights ennumerated in the Bill of Rights, there are limitations on them, such as the "clear and present" danger exception to the right of freedom of speech, i.e., shouting fire in a crowded theater for your own sick amusement.

The "due process" clause of Section 1 of the 14th Amendment invloves two kinds of "due process, substantive and procedural. Procedural due process gets you notice and an opportunity for a fair hearing on your rights before you can be deprived of life, liberty or property by the federal or state authorities. Substantive due process is the concept by which the Bill of Rights has been selectively interpreted to act as a restriction on state government's impositions upon the lives and property of U.S. Citizens. There has NOT been a wholesale incorporation of the Bill of Rights into the 14th Amendment. It has happened on a case by case basis over the years since the 14th Amendment was ratified.

Con Law cases are a hodgepodge of rulings, some theoretical, some practical, nearly all of them difficult to reconcile with one another. Looking for an overriding theme within them will get you a headache and not much more.

The courts approach the issue of limitations upon and invasions of rights and privileges on a case by case basis, guided by precedent and, hopefully, some common sense for the benefit of the greater good of American society. After all, the Constitution, including the Bill of Rights and other Amendments, and the federal and state statutory law under which we all live, are in essence a social contract. The benefits of living together in this nation as "Americans," such as having borders secure against foreign aggression, a criminal justice system to arrest, try and punish those who wrong other members of the society, a civil justice system to settle disputes and compensate for non-criminal wrongs without the need for the citizens to engage in "self-help" and go beat the snot out of those who have wronged them, a safety-net minimum level of care for the aged, the infirm, the poor and the unsound of mind, armed forces to defend the society against enemies foreign and domestic, and the like . . . all these benefits come also with certain burdens that are a quid pro quo for those benefits. No one can do just anything they want anytime or anyplace they feel like doing it. There exists in this society a level of personal freedom unknown anywhere in the world in all its history prior to the existence of the United States of America. There also exists a price to be paid for that high but not unlimited level of freedom, which is conformity to the social contract that makes it possible.

I know from the posts of some of our number that they are among those living here in the USA who disdain the social contract that has given rise to our federal and state governments and who believe that the "natural law" or "common law" are all that can or should govern this society. They have, in essence, not consented to be a part of that social contract. As a practical matter, by living within the bounds of the territory held and defended by those who are members of that social contract, they are subject to its rules and regulations, benefits and burdens, whether they like it or not. Majority rule and minority rights, that's how it works. Ultimately, it is economic power and strength of amrs that enforces the social contract here, that and peer pressure. While the world may seem a lot more civilized now than it was, say, a thousand years ago, the basic formula really hasn't changed that much. You stake out some land, you hold it against all comers, and while you are able to do so, you can live within the borders of that patch of ground by the rules established through the social contract between and among the leaders and the led who, for the time being, hold that patch of ground.

It really doesn't get any more basic than that.

[1911su16b870]

Excellent news for the law abiding citizens of DC!

Not good news for the scum bags who prey on citizens of DC.

[otalps]

Please post references to validate your opinion. I can play that game as well.

Read the amicus brief from the VPC and the Brady Bunch in the link posted by Gene at the beginning of this thread. They argue the state's rights position.

From the amicus brief in defense of Parker:
If anyone entertained [the states’ right concept] in the period during which theConstitution and Bill of Rights were debated and ratified, it remains one of the most closely guarded secrets of the eighteenth century, for no known writing surviving from the period between 1787 and 1791 states [that concept].13
The “states’ right” view remained unknown to Americans for at least another century.


Interesting. If that is indeed the case, then why is the basic premise of the 14th Amendment to protecting individuals' rights at the state level and also to give the federal government official power to enforce recognized rights?

The biggest thing in the 14th amendment is nor deny to any person within its jurisdiction the equal protection of the laws.
Specifically to give the Federal government power over the southern states in regards to their treatment over the ex-slaves and who weren't recognized as citizens.

Notwithstanding sections 3 and 4 aimed directly at the southern states that lost the war.


I did say fairly confident. In forming the federal government, state citizens were more fearful of a federal government becoming a monarchy, theocracy or dictatorship. The true intent was dual federalism in any case where specific powers not vested to the federal government are retained by the states and the People, which is an idea that has pretty much been written out of the history books and popular teaching...Because it's wrong.

Not vested to the federal government are retained by the states and the People. States have no rights, People have rights. Government, any government only has the power given to it by the People. It's the philosophical underpinning of what drove the Founders.


That's interesting. Yes, I know due process existed before the 14th. Have you not paid attention to what I have actually said? I never actually have been able to find any Supreme Court cases that invoked the Supremacy Clause. I'll look into it, thanks. Certainly they are very rare, would you not agree?

I would agree. Mainly because I don't think anything in the Constitution was ever an issue until well after the Civil War and the issues of slavery. Everybody owned a gun so the idea of gun control except for keeping them from slaves was never an issue until the 20th century. That Houston vs. Moore case I referenced dealt with whether or not a state could prosecute a man for refusing to serve.


My views and opinions predate the world wide web. I have done a LOT of reading on the matter, moreso than most people, but perhaps not as much as you. I'm sorry that makes me a lesser being... How elitist... please post your thesis or dissertation, or at least the topics you've covered as well as where you studied.

He was actually teaching college level history in 7th grade and as 1 period I meant throughout the whole school year. My high school US history class was a joke in comparison. And please accept my apologies for having opinions on a such a single sided issue such as Constitutional law. :rolleyes:

Anyways, I guess you ARE so much superior. (bite something)


If this

Is this too adult a puzzle for you?

isn't implying a superior stance, then I'm not sure what would.

Your implication of my disagreement with your view being juvenial, and you bringing up that your opinion was formed by a 7th grade history class was the reason for my undergrad statement. Personally, I don't believe my going to college has any bearing on the subject at hand. It was simply a rebuttle to your statement. You're entitled to whatever view you want on the subject. I just don't accept your view and don't believe there is any historical evidence to back it up, but hey, believe what you want.


Anyways, I guess you ARE so much superior. (bite something)

This was funny though.


I understand due process somewhat. It is a vague term that can be applied to a vastly wide range of uses.

It does have specific meaning though. The 14th just makes it so that all people regardless of citizenship within a juristiction are afforded the same rights and privileges of citizens.


Again, I'll look into it. However I don't really care much for court cases. For example, I think US v. Miller was a crock of stinky brown stuff when it comes to the government's ability to regulate and ban certain firearms. Original intent is more important to me, though don't get me wrong, SCOTUS rulings are very important to the interpretation of the law, and are the final arbiter of the law of the land, but they're not always spot-on, IMO.

While I agree with you about court cases there is a lot of good information to be found in them, even in Miller. If you look at the decision of Miller and if the CA state legislature followed that ruling we would have no AWB here.



Okay, joining the union the state would be approving the US Constitution and the BOR as applicable to their citizens, and would be 'agreeing to the terms' so to speak. And my question still stands... Article 4 section 2 does not require a state to have a constitution or bill of rights, only that the citizens of the states have the same rights as citizens of other states (which also furthers my point, that citizen's rights are addressed and protected at the state level, and state's rights are protected at the federal level).

So please, answer my question.

It also guarantees a Republican form of government. From the founders point of view we the people have Natural Rights or God given Rights and no government has the authority to take those. The BoR just mentions a few of what those are, other are in the Constitution itself. State governments have the duty to protect those rights. The easiest way and only way I can think of, to do so is with a constitution.


Yes, I know this. It is up to states to protect individual rights, not the federal government, and I still contend that the 14th Amendment section 1 and 5 were enacted so that the federal government had the authority to enforce the Constitution and BOR so that states can be forced to adhere to these privileges.

I think you're missing the most important part of section 1 as I posted above.


I just found this, I don't know who wrote it nor do I know about the validity of his reputation, but... This is written a bit better than I can convey, though it captures my belief very well:


I have no disagreement with this quote. I don't believe the Bill of Rights grants us anything either. We already have those rights, they were endowed by our Creator. I do believe they prevent any government, state or federal from infringing upon them. The states agreed to that when they signed onto becomming a part of the Union.

[aklover_91]

Excellent news for the law abiding citizens of DC!

Not good news for the scum bags who prey on citizens of DC.

the scum bags arm themselves whether it's legal or not. This is good stuff through and through.