We can't have it both ways, guys.

BurtonRW · Jul 19, 2011

I'm going to keep this short because the underlying philosophical discussion would warrant a small book, or at least a pamphlet.

We were excited about Heller, and everything that has followed. We are excited about the prospects (however dim) of some sort of national reciprocity. Some of us want a national concealed carry permit system. Some of us want the 2d Amendment to be fully incorporated as we understand it (an expansion of Heller).

THESE ARE ALL BAD THINGS.

[Insert lengthy discussion of federalism here.]

How can we demand recognition of the 9th and 10th amendments on the one hand and then beg for federal intervention into the affairs of the Several States when it suits us? A bit hypocritical, is it not?

Most of the problems we discuss concerning the far reaching, overwhelming power of the federal government in our daily lives arise from bad, unconstitutional, agenda-driven judicial precedent. Why are we so desperate for more of it?

We should be living in a nation of 50 independent states, not dependent and subservient provinces.

The free market, in politics, as in economics, provides all the solution we need. If you don't like it where you are, you have the freedom to move. Many of us have. Many of us stay for other reasons. In the meantime, for those of us trapped here, it is incumbent upon us to try to change the way things are to suit us better.

Resorting to the evil of intrusive and dictatorial federal power is not the way to go and is contrary to everything else most of us would preach on any other issue.

Sorry for this sloppy rant. I haven't had my coffee yet this morning, but reading about how great things would be if only we could pull off this or that federal intervention makes me sick sometimes.

I'm going to go put on my flame suit now.

-Rob

JOBU · Jul 19, 2011

You know that there was a Civil War, right?

Safetech · Jul 19, 2011

No flame suit needed for me.

I was actually thinking along the same lines, last night.

Yes, it sucks to be in Maryland. But do we really want the federal government making policy/laws for states.

You are right. (IMVHO) Somewhat hypocritical.

BurtonRW · Jul 19, 2011

JOBU said:
You know that there was a Civil War, right?

Yes, but you're only making my point.

If we give up on the concept of federalism because a lawless president ignored the Constitution, invaded and conquered a foreign nation, and declared, virtually by fiat, that nobody has the right to secede - ever - then what's the point of fighting for the Constitution anyway?

The federal government has declared that the 9th and 10th amendments are non-enforceable and non-binding. They've declared that the Interstate Commerce Clause refers to indirect commerce as well as direct, and that indirect commerce can extend to anything they say it does. They've declared that you have only the rights that they say you do.

You have heard of the New Deal and the Great Society, haven't you? You are familiar with the Supreme Court of the United States, which makes no errors, haven't you?

You seem to suggest that there's no point in attempting to correct wrongs because a guy named Lincoln said we weren't allowed to more than a century and a half ago.

I don't get the argument, but I'm a little disturbed because the only other place I hear it thrown around (usually when someone mentions the S word) is RINO conventions or on NPR.

-Rob

yellowfin · Jul 19, 2011

I completely agree EXCEPT that looking the other way at state governments abusing liberty is NOT liberty accomplished. Federalism does NOT mean 100% lassiez faire-- it is supposed to create a presumption of individual liberty by a parallel system of government protecting the individual's rights from both sides. Freedom for governments to do as they wish with no constraints upon them under the auspices of freedom of people to get the government they want is what Steven Breyer argues for IN PLACE OF individual freedom (except to do anything that's objectionable to conservative cultural preferences). I doubt very seriously that you agree with him on much of anything and REALLY hope you don't agree with his objectives.

squirrels · Jul 19, 2011

Tenth Amendment – Powers of States and people.
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.

The 2nd states that the right of the people to keep and bear arms shall not be infringed.

This constitutes a Constitutional prohibition of power to the states to infringe upon the rights of the American people. This has been upheld by the Heller decision and incorporated under the Due Process clause of the 14th Amendment with the McDonald ruling:

AMENDMENT XIV
Passed by Congress June 13, 1866. Ratified July 9, 1868.

Note: Article I, section 2, of the Constitution was modified by section 2 of the 14th amendment.

Section 1.
All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

That means that a state passing a law that violates the 2nd Amendment consitutes an overstepping of their authority as enumerated by the 10th Amendment.

When a state decides to join the union, it agrees to the terms in the US Constitution and accepts them as the highest law of the land. "State's Rights" don't mean the right of a State to do whatever the heller it wants. What if Maryland started printing their own currency or raising a private army? The 10th guarantees the states the final say on anything that ISN'T expressly written out in the Constitution...but RKBA IS expressly written out in the Constitution, so the 10th doesn't apply here.

We tried having 13 separate states with the Articles of the Confederation...it didn't work. It fell apart.

I'm all for states' rights. But the states don't have a right to violate the Constitution as it stands any more than the Feddies do. And that means they don't have a right to infringe upon my right to keep and bear arms.

Thus any Federal law that protects US citizens from the illegal activities of any of its states...is a "good thing".

If we weren't talking about a Constitutional issue here, I could see your point.

kohburn · Jul 19, 2011

end discussion

futureseabee · Jul 19, 2011

Well i personally think that the states should have a very limited role in how they govern themselves. I mean, who makes up state governments for the most part? not the Lawyers that make up the REAL government. the people that are serving in the federal government are usually made up from the best and brightest of the state governments. who wants second hand politicians making any major policies? I think the experience of the US gov't has to be taken into account. the constitution was written a long time ago. things have changed. the US needs to have centralized power. who wants abunch of states running around doing what they please? Not me! what if some states dont like eachother? then what? huh? then the people of the state are going to suffer. not if the federal government comes in and tells the states to get along! after all, didn't abe lincoln say a house divided against its self shall not stand?
I really hope that someone see's this white part and appreciates the work i put into creating a sarcastic rant this well put together. and yes, this is pretty much what is taught in public school today.

Inigoes · Jul 19, 2011

futureseabee said:
I really hope that someone see's this white part and appreciates the work i put into creating a sarcastic rant this well put together. and yes, this is pretty much what is taught in public school today.

futureseabee · Jul 19, 2011

Inigoes said:

when did you realize that was a giant pile of bs?
:innocent0

Inigoes · Jul 19, 2011

futureseabee said:
when did you realize that was a giant pile of bs?

When I was about to tell you, to take remedial Social Studies

BurtonRW · Jul 19, 2011

Squirrels,

With all due respect, your grasp of the Constitution (the original intent, not the flavor-of-the-month SCOTUS interpretation) is poor.

You'll see in my original post - maybe I wasn't clear enough - that the incorporation doctrine is part of the problem. It's history is the story of an ugly, 3-way power struggle between the States, the legislative branch, and the judicial branch. The incorporation doctrine is one of those things that needs to be revisited in toto.

For your benefit, here's the text of the tenth Amendment, with emphasis:

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.

I highlighted the bit that pertains to the States. I hope this makes it clear. The Constitution, as a document, pertains to the federal government, not the states. The tenth amendment (like the rest) specifically limits federal authority, not State authority.

Reading the incorporation doctrine into the Bill of Rights, ironically, intrudes on the very protection of states' rights the 10A codifies.

As for your question about printing money - another favorite example of big government types - I would suggest you research McCulloch v. Maryland. John Marshall had wet dreams about the kind of expansion of federal power (particularly that of the judiciary) that FDR would accomplish over 100 years later. He was no friend of the Constitution.

Finally, you raise the Articles of Confederation as an example of what will go wrong if the States are left to govern themselves. Not relevant. Nobody is talking about the Articles of Confederation. We have our present Constitution for the very reason you cite.

----------

And FutureSeaBee, you scared the hell out of me.

-Rob

Robert · Jul 19, 2011

futureseabee said:
SNIP TROLL WORK
I really hope that someone see's this white part and appreciates the work i put into creating a sarcastic rant this well put together. and yes, this is pretty much what is taught in public school today.

That's just wrong on so many levels.. :rolleyes:

I was just about to pounce...

Patrick · Jul 19, 2011

Legal text is something people can argue all day. So let's cut right to the bottom line. Answer the following philosophical questions so we can understand your views:

- Who wins in a collision between the individual freedoms afforded man by God and creator, and those "rights" claimed by a governmental entity?

Don't dodge the question. Give a real simple one-word answer for the slow-thinking guys like me: the state or the individual. I don't want to hear your theories of incorporation, or what the meaning of "privileges" means. I want you to tell us all who wins that contest: the individual or the state. Tell us. Please.

Are you a man, or a subject?

- Is the Second Amendment an individual or a collective right?

SCOTUS decided this in Heller, but I'd hate to make anyone trust the "flavor of the month" from that group of jokers. So tell us all...do the rights afforded man in the Bill of Rights belong to individuals, or rather to groups of individuals that are pre-approved or formed by the state? Again...no dodging. Simple answer: individual or collective right.

Now I went ahead and underlined my opinions on the matter. For the record, my answer to both question is the individual. Period.

I need quote no law nor claim the backing of any court decision. I will state surely and succinctly that the Second Amendment describes a right that I have as an individual. I will also state succinctly and surely that this right - being mine - is not subject to override by the state or the federal.

States do not get "rights". Rights are reserved for people. States get "powers" from the people. When the powers of the state collide with the rights of the people, the people should win every fracking time. History doesn't always play nice, but that is how it should be.

So let's skip the distractions and get those answers from everyone who responds to this thread. No opinion matters until we know where you are coming from. Because it sounds an awful lot to me like you think the state can trump your fundamental rights anytime it wants. If that is your belief, good for you. You will love your time in Maryland.

Brychan · Jul 19, 2011

The bill of rights is for all Americans no matter which state you live in. Can Iowa do away with the 1st, no free speech, or Maine say you can't take the 5th.

MDFF2008 · Jul 19, 2011

I'm tired of the "freedom to move" argument. It's not easy and it's not something everyone can do. What about people who have good jobs, or family members to take care of, or just enjoy living somewhere, do they have to trade their basic rights for that? There is a bill of rights guaranteeing my basic rights as an American. I should have my basic rights everywhere I go in the United States. What point is a bill of rights if the states can piss on it however they wish?

50 Independent States? That sounds more like going back to the Articles of Confederation.

I think the government is way to far up the states asses, but you gotta have some basic standards or they really can and will piss all over the bill of rights. We complain about immigrants coming to America and not adopting our culture, yet we have no problems with a state that wants to become as communist as possible and that's no big deal because it's the states right? (Note that I didn't say become communist, that would be a prohibited action, but by the logic here Maryland could ban the bill of rights and people would be ok with it. Gotta have some basic standards or the country fragments and civil wars begin.

My civil rights don't get checked at the state line. The state is free to give me more rights than the federal government does, but it should not be allowed to give any less.

BurtonRW · Jul 19, 2011

I realize that this discussion may seem esoteric to non-lawyers, non-philosophers, or non-scholars, but an unfortunate reality is that the framework of any society will be based in the legal, the philosophical, and the scholarly, so anyone not following along will have to get over it or do a little reading and get back into the debate later.

My OP was discussing, very specifically, the relationship between the federal and state governments. The way things are now, the power structure looks like this:

Feds > State > People

What is was supposed to look like is this:

People > State; State > Feds

You'll note in the "what it's supposed to look like", there is no direct relationship between the federal government and the people. That's my whole point. See Federalist No. 84 for explanation - not that I'm advocating the Federalist Papers as a guide to understanding the Constitution, but Hamilton nailed it on that count.

As Hamilton argued, the Bill of Rights is unnecessary on the whole, because the Constitution is a document creating a federal government of enumerated and limited power. The people gave up nothing when it was ratified.

What we have now is a situation where far too often, we play mother-may-I with the feds, rather than demanding of them the source of their authority. On the occasions where they have sought to expand their power, they have generally turned to the courts.

What we're asking for, because it seems to suit us now, is a further expansion of extra-constitutional federal authority - and now we're the ones turning to the courts for it rather than calling for an Article V convention or other Constitutional means of modifying the authority or scope of the federal government.

Put simply, we're not giving them an inch. We're begging them to take it and assuming, for God knows what reason, that we can keep them from taking the mile.

And if you don't want to, or can't, for lack of knowledge, discuss incorporation, then your opinion in this debate is about as valid as mine on terraforming the moon. You can say "I have rights X, Y & Z because SCOTUS said so, and screw you if you think otherwise," but if my contention is that you may have those rights, but SCOTUS is wrong per a strict construction of the Constitution, and you're not interested in discussion or debate, then this is just a shouting match. I would hope for something a little more academic from this group. We're not supposed to be the sheep, remember?

-Rob

MDFF2008 · Jul 19, 2011

If there was an award for condescending post of the day, we might have a winner.

BurtonRW · Jul 19, 2011

And the hits keep coming.

You are all making my point for me.

According to the several posters above me (and a couple more above them), it seems as though we've all just rolled over on the idea that there is no such thing as state sovereignty.

Fine. If that's the way you want it to be, then lets abolish State Constitutions. Since the federal Constitution embodies and protects all of our individual rights, individually, the State Constitutions must be infringing on federal authority somehow, right?

How is it that nobody in the room realizes that the EXACT argument you're making here is the basis for the feds stepping all over AZ's right to defend their own borders?

How can you all miss the fact that your relationship to the state mirrors the State's relationship to the feds? Can you not alter or amend your state constitution? Does your state constitution not contain guarantees against infringements of certain rights?

Has anyone here actually READ the Maryland State Constitution?

And as for anyone who is tired of the "you can move if you don't like it" argument - isn't that what we're all about as rugged individualists? Life is tough. Get over it. I'm stuck here for my own reasons, but I'm not bitching about my circumstances in life. Life isn't fair.

Please tell me that no one here is actually suggesting that States should be considered mere political subdivisions. If so, what does the 10A mean, anyway?

-Rob

Patrick · Jul 19, 2011

BurtonRW said:
I realize that this discussion may seem esoteric to non-lawyers, non-philosophers, or non-scholars, but an unfortunate reality is that the framework of any society will be based in the legal, the philosophical, and the scholarly, so anyone not following along will have to get over it or do a little reading and get back into the debate later.

My OP was discussing, very specifically, the relationship between the federal and state governments. The way things are now, the power structure looks like this:

Feds > State > People

What is was supposed to look like is this:

People > State; State > Feds

You'll note in the "what it's supposed to look like", there is no direct relationship between the federal government and the people. That's my whole point. See Federalist No. 84 for explanation - not that I'm advocating the Federalist Papers as a guide to understanding the Constitution, but Hamilton nailed it on that count.

As Hamilton argued, the Bill of Rights is unnecessary on the whole, because the Constitution is a document creating a federal government of enumerated and limited power. The people gave up nothing when it was ratified.

What we have now is a situation where far too often, we play mother-may-I with the feds, rather than demanding of them the source of their authority. On the occasions where they have sought to expand their power, they have generally turned to the courts.

What we're asking for, because it seems to suit us now, is a further expansion of extra-constitutional federal authority - and now we're the ones turning to the courts for it rather than calling for an Article V convention or other Constitutional means of modifying the authority or scope of the federal government.

Put simply, we're not giving them an inch. We're begging them to take it and assuming, for God knows what reason, that we can keep them from taking the mile.

And if you don't want to, or can't, for lack of knowledge, discuss incorporation, then your opinion in this debate is about as valid as mine on terraforming the moon. You can say "I have rights X, Y & Z because SCOTUS said so, and screw you if you think otherwise," but if my contention is that you may have those rights, but SCOTUS is wrong per a strict construction of the Constitution, and you're not interested in discussion or debate, then this is just a shouting match. I would hope for something a little more academic from this group. We're not supposed to be the sheep, remember?

-Rob

No, you opened the thread talking about Heller and our 2A rights and how any federal action to assert protection of those rights somehow violated the "rights" of a functional entity that neither lives, breathes , nor exists in any corporeal form (ie: a state government). How a non-living entity "has rights" is another matter for another day. But right here and right now I have stated succinctly and surely my answers to the philosophical questions above. We can get into the laws and the text, but those questions are key to the entire foundation of our government. Substitute any individual right and the question remains the same: does the government "give" you rights or are they yours for their taking?

I will ask them again, as I note the dodge over the philosophical debate you wish to have.

Who wins in a collision between the individual freedoms afforded man by God and creator, and those "rights" claimed by a governmental entity? [Individual | State]
Is the Second Amendment an Individual or Collective Right? [Individual | Collective]

This argument is tiring and useless without people stating where the come from on those key issues. I can easily argue my point of view on the specific laws proposed or passed, but the answer is always going to depend upon which party is guarding my rights from those who are trying to take them. One day it will be the state as my champion, another it will be the federal. I don't care which one guards, as long as one does. And if they both fail to guard me...well, that's why many think we have rights like the First and Second Amendments - even if you think they are secondary to some nebulous state government. That's fine by me...I just want to know to which side of the line you fall.

Again. No dodging. Are you an independent man or a state subject?

We can't have it both ways, guys.

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