We can't have it both ways, guys.

[Spot77]

I didn't read all of the answers. I cheated and skipped to my reply.

I'm not a legal scholar (although I'm fast becoming one due to some unfortunate circumstances), but I think I have a grasp on why some of us feel like hypocrits.

I don't like Federalism any more than anyone else. I firmly believe in states' rights.......as long as they're following the Constitution.

Since MD is so oppressive to its citizens, and so unwilling to change its draconian, antiquated ways, many of us welcome the improvements in gun rights that the federal government has been bringing about lately. Especially since we've seen no relief legislatively with our own state representatives.
With gun rights being my top priority, I admit that I'm far more lax in defending the "states' rights" argument at this time.

I know there are many flaws in giving the federal government more power. We're essentially looking to trade one freedom (giving away our state's "independance") for another (Increased gun rights.)

If you follow the mantra of "Live free, or die" you'll have to decide how much longer you can live without your full carry rights., which are currently so restricted that we really can't consider ourselves, "free" anyway.......

You have to stay alive to fight for your freedom.

 

[Spot77]

Is anyone else having a good time here?

Yes, I actually am enjoying this.

 

[yellowfin]

Not only do you have to stay alive to fight for your freedom, but you have to have a proper equal standing with the government to be able to demand it. If you have no individual sovereignty over defending your life and property, exactly who do you think is going to respect any demands for any further liberty? If you can't make them play by the basic rules in the Bill of Rights, exactly what other rules can you reasonably expect them to follow? There are reportedly 356,000 pages of federal laws and I don't even begin to know how many pages of NY and MD state laws there are--how in the world can we get ANYWHERE if they can't obey items 1-10 on page 1????

 

[Patrick]

I didn't read all of the answers. I cheated and skipped to my reply.

I'm not a legal scholar (although I'm fast becoming one due to some unfortunate circumstances), but I think I have a grasp on why some of us feel like hypocrits.

I don't like Federalism any more than anyone else. I firmly believe in states' rights.......as long as they're following the Constitution.

Since MD is so oppressive to its citizens, and so unwilling to change its draconian, antiquated ways, many of us welcome the improvements in gun rights that the federal government has been bringing about lately. Especially since we've seen no relief legislatively with our own state representatives.
With gun rights being my top priority, I admit that I'm far more lax in defending the "states' rights" argument at this time.

I know there are many flaws in giving the federal government more power. We're essentially looking to trade one freedom (giving away our state's "independance") for another (Increased gun rights.)

If you follow the mantra of "Live free, or die" you'll have to decide how much longer you can live without your full carry rights., which are currently so restricted that we really can't consider ourselves, "free" anyway.......

You have to stay alive to fight for your freedom.

Again, a misunderstanding of the question. You don't need to feel like a hypocrite.

The 2A issue is one of individual rights. Trying to figure out which government is better able to infringe them is a crazy thought process. It does not matter if the state is the "correct" oppressor. An oppressor is an oppressor.

Fundamental rights exist above and apart from government. Neither side of the federalist system is the 'better' party to infringe them. The whole notion that your rights require the acquiescence of the state (or the federal) is nuts.

So this question here, specifically revolving aournd reciprocity and guns, is completely upside down. If you absolutely must phrase this in federalist terms, the question should be "Which side of the federalist coin should protect my fundamental rights?"

The right answer: both of them.

But if one fails, we must lean on the other. When they both fail, we lean on ourselves.

The idea that states "have rights" is impossible. States are not living things. They are governments. In our system, governments have "power", not rights. Feudalistic and totalitarian systems consider the state the bearer of rights. We don't think that way. At least, we should not think that way.

Feeling angst because any government cannot infringe your individual rights is...odd. Sometimes the federal will help us protect our rights, sometimes the state will. In neither case should anyone feel bad that the "right" of one of those governments is being abridged by the other.

There are serious cases of federal and state excess. We are not talking about those. We are talking about our rights. Nobody else's.

Don't feel like a hypocrite. Feel good you are an individual with rights instead of the subject of a state or federal government.

 

[Patrick]

There is a knee-jerk reaction to all actions federal. I get it. Federal overreach is real and dangerous.

But even broken clock is...blah, blah, blah.

If Maryland passed a law banning your church, would you blindly accept it? If they banned this forum for being obnoxiously overbearing (vice just banning me)?

In each of those cases you would run to the federal. Probably starting with the judicial, but you might find the legislative or executive on your side. All three of those branches are co-equal...meaning at a minimum they are all the "federal government".

So if you can lean on the fedeal to protect the speech on this forum from state overreach, why the angst when they help protect another fundamental right.

This whole argument - that the states have dominion over our exercise of the second amendment - is rooted in decades of government entanglement in a fundamental right. This argument is "Battered Gun Owner Syndrome" defined. It is so endemic that a bunch of pro-2A people are willing to trade their individual rights for the "rights" of a government (which cannot have rights, at all. Only power.).

Sit back and seriously contemplate the direction of your thought process. Are you seriously ready to let the government - any government at any level - deny you an individual right just because they want to do it?

When individual rights intersect governmental desire, who should win?

If your answer is that you feel states should have feudalistic powers to deny rights to their subjects at will, I will respect it and be thankful your view is not the one shared by most. But I honestly suspect that many here are reflexively recoiling at the idea of the federal doing anything.

All I suggest is that you sit back and put this in the correct context: your freedom.

 

[BurtonRW]

For the record, I never said, nor did I suggest that State's have the right to deny an individual's right to keep and bear arms - only that the 2A, from a strict constructionist point of view (which I happen to hold) does not, or should not, apply to the states.

If a State attempts to limit my access to firearms, I'm all for fighting. If a State attempts to disarm me, I'm all for revolt. The right to self-defense is a God-given one and I make to qualifications to that statement.

-Rob

 

[Inigoes]

Rob,

Using your strict constitutionalist argument: you're not for free speech, because it doesn't/shouldn't apply to the states either.

 

[BurtonRW]

Rob,

Using your strict constitutionalist argument: you're not for free speech, because it doesn't/shouldn't apply to the states either.

Okay, now I'm going to get condescending.

http://www.choiceliteracy.com/public/144.cfm

^^^ That's condescending, but also appropriate.

I thought I had been very clear in my immediately preceding post, that I did not believe we, as individuals, do not have these God-given rights, but rather, that I did not believe that the Bill of Rights, as originally added to the Constitution, as originally written, applied to State action.

Maybe this will blow your mind too, but I don't believe that you do or should have most of these rights on private property. (Probably a good debate for a new thread.)

-Rob

 

[Storm40]

For the record, I never said, nor did I suggest that State's have the right to deny an individual's right to keep and bear arms - only that the 2A, from a strict constructionist point of view (which I happen to hold) does not, or should not, apply to the states.
-Rob

The problem is, the 2A enumerated a Citizen's right to keep and bear arms. I, as a Citizen of these United States of America, am guaranteed the right to keep and bear arms regardless of my State of residence. The 2A absolutely applies to every (legal) Citizen within its borders and with the borders of the United States. I have no Consitutional qualms with the Federal Gov't enjoining the various States from infringing on that which shall not be. I do have issues with needing to have plain text Constitutional guarantees "applied" to the States via another amendment. Tyranny succeeded the moment the 14A was needed.

 

[Inigoes]

Rob,

Yes, we do have God given rights.

Since the government went atheist: If it's not written done somewhere, .gov (any level) will not recognize that right, unless it is to their own political interest.

 

[BurtonRW]

The problem is, the 2A enumerated a Citizen's right to keep and bear arms. I, as a Citizen of these United States of America, am guaranteed the right to keep and bear arms regardless of my State of residence. The 2A absolutely applies to every (legal) Citizen within its borders and with the borders of the United States. I have no Consitutional qualms with the Federal Gov't enjoining the various States from infringing on that which shall not be. I do have issues with needing to have plain text Constitutional guarantees "applied" to the States via another amendment. Tyranny succeeded the moment the 14A was needed.

Now we're getting close to agreement - at least on the last part of your statement.

The problem again, is that the BoR, as originally written and read in the context of the Constitution, had as much bearing on the States as, say, France. That's all. It's a construction issue.

Again - the Constitution, as originally written and read, did not govern the states except to the extent that it restricted their authority over very specific enumerated powers which were ceded to the new federal government. The Constitution created a new federal government. Not state governments.

It's silly to even have this debate about original intent when there are so many contemporaneous documents available for review.

The 14A and subsequent incorporation doctrine caused all of this mess to begin with.

Let's strike 14A and replace it with a new one "The first eight amendments to the Constitution shall apply to the Several States as they apply to the Federal Government."

I'm perfectly happy with that, if it's necessary. We'd need to call an Article V convention.

-Rob

 

[knownalien]

Since MD is so oppressive to its citizens, and so unwilling to change its draconian, antiquated ways, many of us welcome the improvements in gun rights that the federal government has been bringing about lately. Especially since we've seen no relief legislatively with our own state representatives.
With gun rights being my top priority, I admit that I'm far more lax in defending the "states' rights" argument at this time.

I know there are many flaws in giving the federal government more power. We're essentially looking to trade one freedom (giving away our state's "independance") for another (Increased gun rights.)

If you follow the mantra of "Live free, or die" you'll have to decide how much longer you can live without your full carry rights., which are currently so restricted that we really can't consider ourselves, "free" anyway.......

You have to stay alive to fight for your freedom.

bingo!!! sadly, the precedent set by other states helps us. people who think like us are powerless in this state.

 

[Storm40]

The problem again, is that the BoR, as originally written and read in the context of the Constitution, had as much bearing on the States as, say, France. That's all. It's a construction issue.

[snip]

Let's strike 14A and replace it with a new one "The first eight amendments to the Constitution shall apply to the Several States as they apply to the Federal Government."

-Rob

See, my issue is that the 2A specifically says "the people," clearly meaning the people of the United States - it's Citizens. It bypasses the States completely and guarantees (NOT GRANTS) an individual right to keep and bear arms. period. it doesn't say, "...shall not be infringed unless you are a Citizen of one of the several states which are free to tyrannize as they so choose." The 4A never said, "unless you're in New Hampshire, you are protected against unreasonable searches." Somewhere along the line, the flawed line of logic and bad, bad case law began that culminated in the 14a - that enumerated rights as plainly written and guaranteed to individuals somehow stop at states' borders. There never needed to be a 14A. I think the Founders envisoned a world in which all Citizens, from any State held the same basic rights as the Constitution codified. Else, why would it have been ratified?

Rights, as the Founders understood them, came from God ("the Creator) and they could not have envisioned a system in which Maryland believed it could infact alienate the unalienable.

 

[jonnyl]

The BoR is part of the constitution
The constitution is the supreme law of the land
The 2A says my rights "shall not be infringed"

It seems clear to me (admittedly a simplistic view), that the Feds have the justification to "reduce the infringement I'm experiencing by the state". However, I would not agree that they therefore have the ability to infringe on the right themselves.

I understand the slippery slope argument, but that's a different argument. I don't feel like a hypocrite at all.

I'd think this argument would be better made with the 1A where it's explicitly stated that "Congress shall pass no law..."

 

[Patrick]

See, my issue is that the 2A specifically says "the people," clearly meaning the people of the United States - it's Citizens. It bypasses the States completely and guarantees (NOT GRANTS) an individual right to keep and bear arms. period. it doesn't say, "...shall not be infringed unless you are a Citizen of one of the several states which are free to tyrannize as they so choose." The 4A never said, "unless you're in New Hampshire, you are protected against unreasonable searches." Somewhere along the line, the flawed line of logic and bad, bad case law began that culminated in the 14a - that enumerated rights as plainly written and guaranteed to individuals somehow stop at states' borders. There never needed to be a 14A. I think the Founders envisoned a world in which all Citizens, from any State held the same basic rights as the Constitution codified. Else, why would it have been ratified?

Rights, as the Founders understood them, came from God ("the Creator) and they could not have envisioned a system in which Maryland believed it could infact alienate the unalienable.

Barron v Baltimore in 1835

Don't you just love how this shit goes full circle and lands right back in our flipping back yard?

I'd suggest some kind of tea party thing in the Baltimore harbor, but frankly I am afraid of what might climb out of that mess.

The 14th today is viewed as the embodiment of the first 8 amendments. Incorporation may be a dirty word, but it kinda sorta did the job in an ugly way. Due process is a mess, but courts found a way around Slaughterhouse by using it.

Sometimes history sucks. But you take what you get and run with it.

Anyone here have any doubts whatsoever that the Bill of Rights does not apply to you, despite the state you live in?

Could we have done better? Damn straight. A better job would have meant the arguments we are making today would have been settled 170 years ago.

But...post civil war reconstruction saw gun control rear it's head as a response to freeing the slaves. Think this over and ponder the following: would the second amendment have survived intact if during reconstruction it was clearly the case the states could not stop freedmen from bearing arms?

I think the answer is a definitive "no". They would have changed the constitution, and I cannot imagine it would have been for the better.

Just random thoughts, so please don't be to harsh on them. On the other hand...fire away. It is just the internet and I am among friends.

 

[knownalien]

it's unfortunate that many times our rights have to be argued for "our" sake, but the person the judges see if often times scum. you can't help but think that that influences their thought process. They are supposed to look at the defendant as being us . .. like you and I. But it is often not the case.

And also, you expect a panel of Judges who get paid by the Fed Govt to be impartial. That, to me, is a slippery slope . . . .esp. as it is the executive branch that places judges in the highest positions.

 

[MDFF2008]

it's unfortunate that many times our rights have to be argued for "our" sake, but the person the judges see if often times scum. you can't help but think that that influences their thought process. They are supposed to look at the defendant as being us . .. like you and I. But it is often not the case.

And also, you expect a panel of Judges who get paid by the Fed Govt to be impartial. That, to me, is a slippery slope . . . .esp. as it is the executive branch that places judges in the highest positions.

Very true. That is why SAF spent so long finding Dick Heller. That is why SAF chose Otis McDonald, why SAF chose Mr. Wollard, etc. They pick the best of the best.

I don't expect them to be unbiased, but until we can break the MSM's circle jerk with the anti-gun crowd, I don't have a lot of faith in a popular vote.

 

[press1280]

Fair enough (although I thought it was clear).

1) I do not like the incorporation doctrine. I do not believe that it was intended by those who ratified the 14th amendment.

2) As a corollary to position one, I think that the 14th amendment was written with haste and is sloppily worded.

3) I do not engage in the debate over whether it was properly incorporated. That ship has sailed.

4) I believe that if incorporation was to be exercised, it should have been done mechanically (per Justice Black), rather than selectively. That would have made sense and Congress or the States would have been free to correct SCOTUS on their very broad interpretation.

Bottom line is, there were better ways to accomplish civil rights. Not enough lawyers were involved in drafting 14A!

Although this raises another interesting point - why in the hell do we accept SCOTUS decisions as the word of God written in stone tablets? They do not have that kind of authority.

-Rob

My Answers:
1) I believe it's clear the 14th was intended to incorporate (at least Amendments 1-8). The 14th Amendment debates referenced the RKBA many times. "Privileges or Immunities" was the term used in the infamous Dred Scott decision only a decade before. If we take the Slaughterhouse view of what P or I meant, we would be saying that the framers of the 14th Amendment were only concerned with freed slaves' rights to visit the US mint or get diplomatic protection or travel from state to state. Newspapers from the time reflected public understanding that freed slaves would now have the RKBA, keeping in mind numerous states at the time didn't have RKBA amendments yet.
2) Sloppily worded-in today's terms, yes, only because we need 1,000 pages to describe anything these days. Back then you didn't need that.
3 & 4) I agree in Justice Black's incorporation theory. Amendments 1-8 were pretty clearly what the framers wanted. Some of the other stuff, like right to contract, exc., was a little fuzzier and may perhaps open the "Pandora's Box". I actually wish Gura had gone with this theory for P or I in McDonald, even though I know he was trying to garner liberal votes by arguing a wider P or I than just Amendments 1-8.

 

[gtodave]

Excellent thread


That's about all my brains and wit have to offer.

 

[yellowfin]

3 & 4) I agree in Justice Black's incorporation theory. Amendments 1-8 were pretty clearly what the framers wanted. Some of the other stuff, like right to contract, exc., was a little fuzzier and may perhaps open the "Pandora's Box". I actually wish Gura had gone with this theory for P or I in McDonald, even though I know he was trying to garner liberal votes by arguing a wider P or I than just Amendments 1-8.

The interesting thing about PorI is that it's effectively incorporation of the 9th Amendment and enforcing a presumption of liberty. Slaughterhouse itself pertained EXACTLY what PorI was supposed to handle, what is referred to in a general sense as economic rights and property rights. We've called it out for what it is on the issue of CCW's and identified the real root as being nothing other than this, yet CCW is only one example of the much, much larger problem. The SCOTUS of the time knew then as they do now that governments of Boston, NYC, Chicago, etc. thrive on corruption, insider favors, selective treatment, and arbitrary laws to be able to "pick the winners." The judges were playing inside baseball, so to speak, being careful to kill off a major enemy of political establishment. The Slaughterhouse decision is their blank check for virtual unlimited discretion to be as oppressive, manipulating, dominant, and unfair as they want to be. One need look no further than Chicago's zoning ordinance: ALL uses of land and buildings are PROHIBITED unless THEY specifically give permission. New York's Sullivan Law: ALL pistol ownership purchase, possession, and use is PROHIBITED UNLESS AND UNTIL they give specific permission, and ONLY those specified uses and items, and only as a resident of that specific county.

THAT'S the Pandora's Box, and it NEEDS to be opened. Big city politics and iron fist laws ALL need to be put to death.