[locosway]

So, I was reading a law book and, I'm going to paraphrase, but it says

A state can not take away any rights outlined in the US constitution, however, it can give more liberties that the US constitution does not.

So, if this is true, why are we in the gun control fight we're in right here in CA, and why are the Feds trying to remove medical marijuana from CA?

[PolishMike]

Its a lot more complicated than that. The marijuana thing is because federal law supersedes state law. The bill of rights did not initially limit what states could do. It was not until the 14th amendment that a state could not take away your right to free speech, and even then it has to be decided through court cases. The gun control fight is going on because we have not had a SCOTUS decision on the issue yet as it pertains to states.

[GaryV]

Originally Posted by locosway

So, I was reading a law book and, I'm going to paraphrase, but it says

A state can not take away any rights outlined in the US constitution, however, it can give more liberties that the US constitution does not.

So, if this is true, why are we in the gun control fight we're in right here in CA, and why are the Feds trying to remove medical marijuana from CA?

Because it (what it says in your law book) is not true. Until the selective incorporation of parts of the Bill of Rights during the course of 20th Century, the states were not bound to respect any rights protected by the US Constitution, unless some provision of their own state constitutions also protected those rights. Since some of the Bill of Rights has still not been incorporated against the states (including the 2nd Amendment right to keep and bear arms), there are still some rights protected at the federal level but not within the states.

Several of the state constitutions are older than the US Constitution, so how could their provisions have been limited by something that didn't even exist when they were written? Unless your law book was written between the passage of the 14th Amendment (1868) and the Slaughterhouse Cases decision (1873), any statement such as the one you paraphrased would be false under existing Supreme Court case law. However, with any luck, that will change next year.

[HondaMasterTech]

It's easy. The state of California has determined that they don't give a F---. I mean, what's the Federal Government going to do? Go up against the Tormentator?

[locosway]

My book was written recently and by a lawyer. Let me get it out so I can quote it correctly.

A state cannot limit any rights granted to individuals by the US constitution or federal law, but they are free to expand those rights. States have the power to act in the best interests of their citizens, so long as the rights granted do not conflict with the US constitution or a federal statue.

The body of the US constitution contains no protections for individual rights. The task is left to the Bill of Rights. Similarly, the original Bill of Rights did not protect the individuals from infringement of those rights by the states. That protections was created in the Fourteenth Amendment. When we speak of rights "guaranteed by the constitution," we are speaking of a body of law that is constantly evolving.

[kf6tac]

Originally Posted by locosway

My book was written recently and by a lawyer. Let me get it out so I can quote it correctly.

The second quote you gave is the crux of the problem. The "protection created in the Fourteenth Amendment" of which the author speaks has not yet been interpreted to encompass our Second Amendment rights -- that is the question to be addressed by the Supreme Court in McDonald v. Chicago this term.

[locosway]

Originally Posted by kf6tac

The second quote you gave is the crux of the problem. The "protection created in the Fourteenth Amendment" of which the author speaks has not yet been interpreted to encompass our Second Amendment rights -- that is the question to be addressed by the Supreme Court in McDonald v. Chicago this term.

So, how can all rights apply to the states except for one?

Why do we need a decision to apply a right that would otherwise be incorporated if it had a different number?

[kf6tac]

Originally Posted by locosway

So, how can all rights apply to the states except for one?

Why do we need a decision to apply a right that would otherwise be incorporated if it had a different number?

Under incorporation doctrine as it exists right now, each right in the Bill of Rights has to be specifically incorporated on its own; the Fourteenth Amendment did not incorporate the Bill of Rights "wholesale." In addition to the Second Amendment, the Eighth Amendment protection against excess bail and the Seventh Amendment guarantee of jury trial in civil cases have never been incorporated.

[TaxAnnihilator]

Boo selective incorporation! Although, incorporating the full thing would cause California fits if they had to Grand Jury every felony charge...

Originally Posted by kf6tac

The second quote you gave is the crux of the problem. The "protection created in the Fourteenth Amendment" of which the author speaks has not yet been interpreted to encompass our Second Amendment rights -- that is the question to be addressed by the Supreme Court in McDonald v. Chicago this term.

[kf6tac]

Originally Posted by TaxAnnihilator

Boo selective incorporation! Although, incorporating the full thing would cause California fits if they had to Grand Jury every felony charge...

I'm hoping the Supreme Court throws out the Slaughter House cases just so I can watch California suffer from said fits

[locosway]

Originally Posted by kf6tac

Under incorporation doctrine as it exists right now, each right in the Bill of Rights has to be specifically incorporated on its own; the Fourteenth Amendment did not incorporate the Bill of Rights "wholesale." In addition to the Second Amendment, the Eighth Amendment protection against excess bail and the Seventh Amendment guarantee of jury trial in civil cases have never been incorporated.

So, what exactly did the 14th do?

[kf6tac]

Originally Posted by locosway

So, what exactly did the 14th do?

The highlights of the 14th:

1) Added the Equal Protection Clause

2) Added the Due Process Clause, which is the constitutional basis for the selective incorporation and substantive due process doctrines.

3) Added the Privileges or Immunities Clause, which was promptly eviscerated by the Supreme Court in the Slaughter House Cases; the petitioners in McDonald v. Chicago are pursuing the Privileges or Immunities Clause as one possible way of wholesale incorporation of the entire Bill of Rights.

[TaxAnnihilator]

Originally Posted by kf6tac

I'm hoping the Supreme Court throws out the Slaughter House cases just so I can watch California suffer from said fits

[a1c]

Originally Posted by locosway

... and why are the Feds trying to remove medical marijuana from CA?

They're not. The DEA has mostly gone after people they suspected of illegal trafficking and using medical marijuana as a cover. The IRS has also gone after some pot clubs that were more commercial operations run by traffickers than medical dispensaries.

[locosway]

Originally Posted by kf6tac

The highlights of the 14th:

1) Added the Equal Protection Clause

2) Added the Due Process Clause, which is the constitutional basis for the selective incorporation and substantive due process doctrines.

3) Added the Privileges or Immunities Clause, which was promptly eviscerated by the Supreme Court in the Slaughter House Cases; the petitioners in McDonald v. Chicago are pursuing the Privileges or Immunities Clause as one possible way of wholesale incorporation of the entire Bill of Rights.

So, the 14th did nothing?

[TaxAnnihilator]

Well sir, sarcasm aside (I am a fan of it), it left the courts to pick and choose the meaning of due process, equal protection, and privileges and immunities as it applies to the states.

Originally Posted by locosway

So, the 14th did nothing?

[kf6tac]

Originally Posted by locosway

So, the 14th did nothing?

With respect to Second Amendment rights, nothing so far.

But since the Bill of Rights, standing alone, did not apply to the states, without the Fourteenth Amendment, there would be nothing in the Constitution to prevent the states from engaging in racial discrimination, infringing on free speech, infringing on religious freedom, engaging in warrantless searches and seizures, imposing cruel and unusual punishments, compelling criminal defendants to testify against themselves, denying legal representation to criminal defendants, denying due process of law, etc.

[Cokebottle]

Also, there is a difference between Constitutional rights and laws.
Pot and other drugs are considered an illegal substance per federal law. There is no Constitutional right to the recreational use of any drug, be it a narcotic, weed, or alcohol.
Except for provisions related to manufacture and transportation, alcohol is mostly unregulated on the federal level when it comes to consumption.
States are more restrictive, with various age limits (I believe all 50 are up to 21 by now, but this was not the case in 1980), limits on the acceptable levels of alcohol (Utah's famous 3% beer), and hours and even days of sale (some states are still "dry" on Sunday).
On the other hand, the states cannot allow a private citizen to distill spirits, or manufacture alcoholic beverages for resale.

[snobord99]

Originally Posted by locosway

So, the 14th did nothing?

If that were true, we wouldn't even be having this discussion.

[locosway]

Originally Posted by kf6tac

With respect to Second Amendment rights, nothing so far.

But since the Bill of Rights, standing alone, did not apply to the states, without the Fourteenth Amendment, there would be nothing in the Constitution to prevent the states from engaging in racial discrimination, infringing on free speech, infringing on religious freedom, engaging in warrantless searches and seizures, imposing cruel and unusual punishments, compelling criminal defendants to testify against themselves, denying legal representation to criminal defendants, denying due process of law, etc.

I see, I guess then the 14th just wasn't clear enough, or well enough written at the time?

I mean, to leave an amendment's definition to be determined by a judge later on seems silly.

[hoffmang]

Originally Posted by locosway

I see, I guess then the 14th just wasn't clear enough, or well enough written at the time?

I mean, to leave an amendment's definition to be determined by a judge later on seems silly.

The Fourteenth Amendment was gutted by the Supreme Court shortly after it was adopted for largely racist reasons.

See:
http://en.wikipedia.org/wiki/The_slaughterhouse_cases
and
http://en.wikipedia.org/wiki/Colfax_massacre

There is no way to write a law that executes itself. Judges are required to interpret them.

-Gene

[locosway]

Originally Posted by hoffmang

There is no way to write a law that executes itself. Judges are required to interpret them.

-Gene

All laws, or some laws? It seems the CA laws are well enough written that judges will not interpret them.

[snobord99]

Originally Posted by locosway

All laws, or some laws? It seems the CA laws are well enough written that judges will not interpret them.

All laws. "It is emphatically the province and duty of the Judicial Department to say what the law is." (Marbury v. Madison) I'd recommend reading Marbury v. Madison.

Judges are always interpreting the law. Your thought of "well enough written that judges will not interpret them" is still judges interpreting the law. I think what you're actually referring to is just how many different interpretations there can be.

[GaryV]

Originally Posted by Cokebottle

There is no Constitutional right to the recreational use of any drug, be it a narcotic, weed, or alcohol.

While this is considered true according to the way in which the law works today (because the fears of the Federalists about what would happen if we added a Bill of Rights - that only those rights would be protected - has come true), that's not what any of the Founding Fathers believed. If you read the debates between the Federalists and the Anti-Federalists, it's explicitly stated over and over again that there is indeed such a right, because there is no explicit grant of power in the Constitution to allow the government to regulate the use of any drug of any kind.

Originally Posted by Cokebottle

Except for provisions related to manufacture and transportation, alcohol is mostly unregulated on the federal level when it comes to consumption.

And that's largely because this is all the federal government is constitutionally empowered to regulate in terms of alcohol (or any other drug, for that matter). That's why it required a constitutional amendment to institute prohibition. They've just gotten creative in their interpretation of the Interstate Commerce power, and the courts have allowed them to get away with it. But they still have to maintain the fiction that they are only operating within their explicitly granted constitutional powers, as the federal school zone law showed.

Since it was the view of the Founding Fathers that anything the government was not given explicit powers over within the Constitution was, by definition, a reserved right of the people, and all such rights, whether listed in the Bill of Rights or not, were equally sacrosanct, your right to drink, smoke pot, drop acid, smoke crack, etc., was intended to be just as out of the government's power to regulate as your right to speech or religion.

[coolusername2007]

The States should not have the power to trump the Constitution. They get around it because the Supreme Court bastardized the Constitution in Barron v. Mayor of Baltimore, 32 U.S. (7 Pet.) 243 (1833). This court unanimously decided the Bill of Rights did not apply to the States. Later this was upheld by United States v. Cruikshank, 92 U.S. 542 (1875). See http://en.wikipedia.org/wiki/Barron_v._Baltimore

I personally believe this was a massive miscarriage of justice and believe the people of the day should have risen up and revolted over such a horrible set of decisions.

The Constitution is explicitly clear in Article VI which states in part...

"This Constitution, and the Laws of the United States which shall be made in Pursuance thereof...shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding."

In my opinion the Founders made the Bill of Rights "Amendments" for two reasons; 1. they where following the Constitutional process for implementing changes because it was already in effect (1789, the BoRs didn't get "ratified" until 1791). and 2. because they intended the BoRs to be wholly part of the Constitution, not some bastardized red-headed step child to the Constitution. Again, the Bill of Rights are not "laws", they are "amendments" to the Constitution. The only thing that can change that is another amendment. (A good example is the 18th Amendment, Prohibition. It could only be repealed by another amendment...which is was...the 21st Amendment.)

In short, the 14th Amendment was passed by Congress because they felt the same as you probably do...that SCOTUS botched the job and flat out decided wrongly. Unfortunately, as others have already posted here, SCOTUS then turned around and gutted parts of the 14th. Which by the way, in my very limited understanding of the system SCOTUS does NOT have the power to gut amendments to the Constitution, because by definition the Constitution has provisions for changes (they're called amendments) that require a super majority vote which is wholly Constitutional according to it. In a nutshell, something cannot be "unconstitutional" if it is in fact "constitutional". See this is the kind of crap that happens when you let lawyers (and judges) lead. (By the way I'm sure the legal eagles in this forum will completely disagree with me on those last statements.)

The Founders weren't dumb, they knew this would probably happen which is why the 2nd Amendment is there to begin with, in fact they where very clear...unfortunately the "powers that be" don't heed our form of government and the People haven't risen up against them, as is our duty.

James Wilson is a great example. (The following is taken from "The Second Amendment" by David Barton (www.wallbuilders.com)) James Wilson was one of only six who signed the Declaration of Independence and the Constitution. He was also one of the most outspoken (spoke 168 times on the floor of the Convention) and was an original Justice to the Supreme Court. He taught his students that the protections in our form of government were not new, but rather old rights granted to us by our Creator. He said...

"...to acquire a new security for the possession or the recovery of those rights to...which we were previously entitled by the immediate gift or by the unerring law of our all-wise and all-beneficent Creator."

Wilson also asserted that...

"...every government which has not this in view as its principal object is not a government of the legitimate kind."

John Adams agreed, declaring that:

Rights [are] antecedent to all earthly government; Rights...cannot be repealed or restrained by human laws; Rights [are] derived from the great Legislator of the universe.

And to put the final points on this entirely too long of a post...

“Our safety, our liberty, depends upon preserving the Constitution of the United States as our Fathers made it inviolate. The people of the United States are the rightful masters of both Congress and the Courts, not to overthrow the Constitution, but to overthrow the men who pervert the Constitution." -- Abraham Lincoln

And so in a nutshell, the 14th was ratified to insure the Bill of Rights applied to the States once again, but was quickly undone in part, which is where we are today...we are left with the entirely lame and stupid "incorporation doctrine" because the Supreme Court does NOT like to overturn itself. So instead they started "incorporating" each of the Bill of Rights individually to the states and they aren't done yet (and may never will be). So here we are today hoping and praying the 2nd gets "incorporated" so we can kind of go back to where we started from 200+ years ago.

[locosway]

I appreciate the long response, and it was a good read. It also clears up a lot of my questions. Thanks!

[hoffmang]

Originally Posted by coolusername2007

In my opinion the Founders made the Bill of Rights "Amendments" for two reasons; 1. they where following the Constitutional process for implementing changes because it was already in effect (1789, the BoRs didn't get "ratified" until 1791). and 2. because they intended the BoRs to be wholly part of the Constitution, not some bastardized red-headed step child to the Constitution. Again, the Bill of Rights are not "laws", they are "amendments" to the Constitution. The only thing that can change that is another amendment. (A good example is the 18th Amendment, Prohibition. It could only be repealed by another amendment...which is was...the 21st Amendment.)

...

The Founders weren't dumb, they knew this would probably happen which is why the 2nd Amendment is there to begin with, in fact they where very clear...unfortunately the "powers that be" don't heed our form of government and the People haven't risen up against them, as is our duty.

I'm going to disagree with you for accuracy, not a policy disagreement. The Federal Government was originally of limited powers. The Federalists thought the Bill of Rights was kind of an amusing and useless add on because the Federal Government didn't have amongst it's enumerated powers the ability to mess with any of the stuff in the Bill of Rights. The Anti-Federalists jumped up and down about a missing BoR mainly as a political leverage point to try to weaken parts of the Federal Government substantively. However, the AF's didn't have anywhere near enough control of the Federal Government from a voting perspective to do anything real. However, the People latched on to the lack of a BoR and forced the (non) issue on the Federalists. By that point the AF's clearly didn't have enough power to create substantive change via the BoR so most of Congress just shrugged and created a BoR that would cause no push back from either side politically and would easily pass both Congress and the States. Importantly, later Supreme Court cases turned the islands of federal government power in a sea of liberty into a set of islands of liberty in a sea of government power...

As such, the BoR was supposed to encompass "motherhood and apple pie" concepts. However, Barron v. Baltimore may have been right as a matter of Federal Constitutional interpretation and wrong as a matter of natural rights/common law. We did fight a war over a version of that interpretation set from SCOTUS though. The case was Scott v. Sanford and the war was the Civil War.

The 14th Amendment was drafted and ratified to overturn both Scott and Barron but Slaughterhouse Cases read most of the amendment out of the Constitution.

-Gene

[snobord99]

Originally Posted by hoffmang

I'm going to disagree with you for accuracy, not a policy disagreement. The Federal Government was originally of limited powers. The Federalists thought the Bill of Rights was kind of an amusing and useless add on because the Federal Government didn't have amongst it's enumerated powers the ability to mess with any of the stuff in the Bill of Rights. The Anti-Federalists jumped up and down about a missing BoR mainly as a political leverage point to try to weaken parts of the Federal Government substantively. However, the AF's didn't have anywhere near enough control of the Federal Government from a voting perspective to do anything real. However, the People latched on to the lack of a BoR and forced the (non) issue on the Federalists. By that point the AF's clearly didn't have enough power to create substantive change via the BoR so most of Congress just shrugged and created a BoR that would cause no push back from either side politically and would easily pass both Congress and the States. Importantly, later Supreme Court cases turned the islands of federal government power in a sea of liberty into a set of islands of liberty in a sea of government power...

As such, the BoR was supposed to encompass "motherhood and apple pie" concepts. However, Barron v. Baltimore may have been right as a matter of Federal Constitutional interpretation and wrong as a matter of natural rights/common law. We did fight a war over a version of that interpretation set from SCOTUS though. The case was Scott v. Sanford and the war was the Civil War.

The 14th Amendment was drafted and ratified to overturn both Scott and Barron but Slaughterhouse Cases read most of the amendment out of the Constitution.

-Gene

+1

You pretty much said everything I was thinking after reading that post.

[coolusername2007]

Thanks for the clarification Gene. I was trying not to get too long winded so I didn't get into the Federalist v Anti-Federalist arguments surrounding the Bill of Rights itself. But was trying to put perspective around the fact that (IMO) the Bill of Rights was very much intended to apply to the States. Many places today you will hear generally that the Bill of Rights was not intended to apply to the States, and I believe it was. I know some will disagree with this assertment though. Great history lesson thread though.

[Dragonaught]

If this is truly a Government OF THE PEOPLE, BY THE PEOPLE & FOR THE PEOPLE; how can we possibly bestow and/or remove inherent rights and/or privileges on ourselves?

We can only make sure that they can't be taken away by an entity that has no legal right to do so.

[Capt. Speirs]

With Obama’s blatant contempt for the US Constitution, we will be fortunate if he doesn't get it abolished.

[TaxAnnihilator]

Orly? Just like that huh. Not a fan BHO, but this statement is of the kind of FUD I thought this site sought to dispel. I mean, how credible are we if when someone asks the difference between the state and federal constitutions and "won't matter for long because it's going away" is the answer?

Not to pick on you specifically, but there seems to be a lot of fear mongering here.

Or maybe your post could be supplemented to add context as to what rights your believe are being eroded on BHO's watch.

Originally Posted by Capt. Speirs

With Obama’s blatant contempt for the US Constitution, we will be fortunate if he doesn't get it abolished.

[locosway]

I've never taken a college level government course, but in HS I did take History. Home come this was never talked about? It seems that if these ideas of what really was, instead of what people think it was, were to be pushed, we would have less problems than we do.

Another reason I'm glad my kids are home schooled...

[Foulball]

The most interesting part of the BOR (to me at least) is the preamble, which clearly notes that the BOR was for the states themselves.

"The conventions of a number of the States having at the time of their adopting the Constitution, expressed a desire, in order to prevent misconstruction or abuse of its powers, that further declaratory and restrictive clauses should be added."

[TaxAnnihilator]

I got this in HS and College... sorry you did not. Put attending School Board Curriculum Setting Meetings on the To Do list when I become a parent.

Originally Posted by locosway

I've never taken a college level government course, but in HS I did take History. Home come this was never talked about? It seems that if these ideas of what really was, instead of what people think it was, were to be pushed, we would have less problems than we do.

Another reason I'm glad my kids are home schooled...

[TaxAnnihilator]

Oh, and you should look into showing your kids how California's constitution can be amended on the whim of only a small percentage of citizens. 8% of Voters in the past Gubernatorial election to get it on the ballot, then a majority of voters approving it! Then its there! There is a distinction for making major changes, thankfully.

The initiative and referendum process in California is ridiculously easy and detrimental to the fiscal health of the state, in my opinion.

[kf6tac]

Originally Posted by locosway

I've never taken a college level government course, but in HS I did take History. Home come this was never talked about? It seems that if these ideas of what really was, instead of what people think it was, were to be pushed, we would have less problems than we do.

Another reason I'm glad my kids are home schooled...

Aside from the fact that teaching civics isn't really a high point on the public school agenda these days, stuff like this really does have many layers of complexity and is never as simple as one might expect. To really get a good grasp of it one has to read a lot of the source material from that era, starting with at least the Federalist and Anti-Federalist Papers -- and for the most part that's going to go right over the heads of anyone without at least a high school level education these days. I read some of the Federalist Papers late in high school and got the general gist of it, but it wasn't until law school that I really grasped it (and even then, only after I took two courses with a professor who was an avid legal historian).

[locosway]

See, in school it was always the constitution and the BoR was set for the people. A clear list of their rights. Well, grown up and seeing that's not the case, it's disappointing to see that I was lied to in school. This view that people are limited in their rights is wrong, and is exactly how we got into the mess we're in today.

[Cokebottle]

Originally Posted by locosway

A clear list of their rights. Well, grown up and seeing that's not the case, it's disappointing to see that I was lied to in school.

Not exactly. The Constitution and the BoR are not so much a list of our rights, as they are a list of restrictions on the government.

This view that people are limited in their rights is wrong, and is exactly how we got into the mess we're in today.

Bingo... and this is in part because people are taught (by government-run schools) that the BoR is in fact a list of our rights and are the only rights that we have.

"The Bill of Rights gives you this, anything else is a gift from the government"

Wrong. The Bill of Rights guarantees us this. Anything else is something that the government has not yet taken away.

And that is the whole crux of the separation of Church and State issue.
The BoR was not written to prevent us from worshipping as we please, it was written to prevent the government from establishing an official state religion such as the Church of England.

[locosway]

Originally Posted by Cokebottle

Not exactly. The Constitution and the BoR are not so much a list of our rights, as they are a list of restrictions on the government.

Bingo... and this is in part because people are taught (by government-run schools) that the BoR is in fact a list of our rights and are the only rights that we have.

"The Bill of Rights gives you this, anything else is a gift from the government"

Wrong. The Bill of Rights guarantees us this. Anything else is something that the government has not yet taken away.

And that is the whole crux of the separation of Church and State issue.
The BoR was not written to prevent us from worshipping as we please, it was written to prevent the government from establishing an official state religion such as the Church of England.

That's what I was saying...

In school I was taught that the BoR was my list of rights, and often you'd hear the argument "Show me where in the BoR's does it say you can do that".

There needs to be a fundamental change in how we're taught what our rights are, and how we got those rights. The ideas taught in schools (at least where I am) are wrong.