Southern Avenger

Nuts. After reading "gunning down the constitution" I now have to read all your stuff. You are apparently on the right track. In the cited article however, you did miss a salient point. The only place in the Constitution that uses the word "necessary" is in the second amendment. Citizens were expected to keap and bear arms because they were expected to be a part of the legal state militia. When that body was illegally federalized in the early 20th century, we got into this stupid contest about who posesses gun rights. The STATE has the right to defend itself, as it did at Lexington, Concord and Charleston. Of course the only means to do this is the State Militia, which was made up of the county Militia, the city militias and the local militias made up of every able bodied man in each area - and they were REQUIRED to keep and bear arms, much like Switzerland today. These well ordered militiamen were subject to the elected leadership of the local sheriff, who has absolute power within his jurisdiction. How far we have come to "Homeland Security" which was always the job of the Militia.

Ed B
UpCountry SC

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Rights are unalienable in that they come from a higher power than Government. Thus there is no right to free health care or a living wage. The Bible says If you don't work, you don't eat. That's what the Bradford Colony in MA decided in 1622 after nearly starving to death trying to be the utopia that their English sponsors suggested. Socialism has never worked satisfactorily.

The Bill of Rights were written together because the concern at the time was the rights of the people were not established in the Constitution. Only that the government had enumerated powers and none other. That wasn't good enough because people were afraid that the governent would steal whatever power they could under the "general welfare" clause. They were right. That's exactly what the government has done for 150 years. As a result, the Bill of rights is not simply 10 random Amendments, they were written together, passed together and adopted together to try and limit the role of the central government. All of the 10, as restrictions on the "General Government" are thus left to the states or the people, along with all other freedoms not defined in the enumerated powers.

As the final Arbiter, the Supreme Court can issue it's opinion, but that does not mean that the Executive Branch must enforce their opinion or that the congress must appropriate funds to carry out their wishes. They are a co-equal branch of government. So who says they are the final arbiter? Well of course, they do! For exaple, if the Congress or the Executive refused to fund or enforce abortion laws, they would be completely moot. The problem since Wilson is that the Court was packed with a point of view that increasingly politicised the court and decisions were handed down that the Congress or the Executive wanted but were unable to pass on their own. This system has been turned on its head.

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"The Bible says If you don't work, you don't eat."

Chapter and verse, please.

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I often find gun rights advocacy a little crazy. The right to bear arms doesn’t necessarily mean “Any type of gun(s) imaginable.” Chicago wants a “Hand Gun” ban. You can still walk down the street in Chicago with your AR15 or AK47 or any other “Long” gun; you just can’t have a pistol. Chicago has not violated the right to bear arms; just pistols. Most folks would be better off with a long gun like a 12ga. for self defense, because they just don’t get enough practice with a pistol and usually end up shooting something or someone other than their target. Some gun control, like the ability to hit one’s target is a good thing, but that’s another topic.

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"The right of the people to keep and bear arms shall not be infringed, and this without any qualification as to their condition or degree, as is the case in the British government."

- St. George Tucker,
Blackstone's Commentaries on the Laws of England, (1803)
Lawyer, Legal Scholar, U.S. District Court judge, (appointed by James Maidson in 1813)
**********
"The defence of one’s self, justly called the primary law of nature, is not, nor can it be abrogated by any regulation of municipal law. This principle of defence is not confined merely to the person; it extends to the liberty and the property of a man: it is not confined merely to his own person; it extends to the persons of all those, to whom he bears a peculiar relation -- of his wife, of his parent, of his child, of his master, of his servant: nay, it extends to the person of every one, who is in danger; perhaps, to the liberty of every one, whose liberty is unjustly and forcibly attacked. It becomes humanity as well as justice."
- By James Wilson, 'Of the Natural Rights of Individuals', (Signed the Declaration of Indepedence, Congressman, Delegate to the Constitutional Convention and Supreme Court Justice). 1790-1792

One only has to read their writings to know their intent...

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If, by recent, you mean 1982, I guess Chicago's handgun ban is recent.

PROOFREAD? FACTCHECK? ANYONE???

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mat catastrophe: it's 2 Thessalonians 3:10

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Jack you make a powerful and convincing argument. I think you are far from just being the ordinary citizen you modestly claim. On this issue Judge Napolitano has a slightly different interpretation. His understanding of such rights is that they are 'natural right' and as such if the Federal Government is forbidden from interfering in them then so is the State Government. To be honest I can see the merit in both arguments. I can also see the dangers. I understand your point that this ruling opens the way for further interference with states rights. On the other hand if these are not 'natural right' then say the state government would be at liberty to limit free speech provided the Federal Government did not.

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Jason: Oh, that's right. The one that Lenin adopted as a Communist motto. I guess that Mr./Mrs. bettered is a Communist! Wow! The Apostle Paul was a Commie and a Tea Bagger! What a small world!

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READ the bill of rights.

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

How does one interpret this to mean "the federal government can't do these things but the state can?"

Aren't we protecting the right of the "people" (as individuals) to peaceably assemble? If the federal government can't make a gathering illegal, but the state government can, are your (God given) rights protected?

"A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed."

Notice that it doesn't say: "The right of the state to keep and bear arms shall not be infringed". It specifically states that the right belongs to "the people" (a person, an individual, a man, endowed by his creator with certain inalienable rights).

No Soldier shall, in time of peace be quartered in any house, without the consent of the Owner, nor in time of war, but in a manner to be prescribed by law.

Are houses owned by the STATE? (Not yet) Of course not. This amendment protects individual homeowners from having to board soldiers who might be either federal (Army, Navy, etc..) or state, or local militia members.

"The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized."

"People" and "persons" here again refers to the rights of an individual.

The first eight amendments are clearly written to protect the (God given) rights of the individual. These rights cannot be abridged by EITHER the federal government or the state government. To become a member of the "United States", a state must conform to the individual protections outlined in the bill of rights.

"The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people."

Again, protecting the rights of the individual. The founding fathers could not conceive of medical technology that would permit living organ donors or surrogate mothers. An individual's right to sell a kidney or provide surrogate child bearing service for a fee should be protected by this amendment.

Here's the really important one:

"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."

Which "state" powers are not delegated to the United States, but are prohibited by the Constitution? If you said, "The Bill of Rights", you win the best prize of all. Freedom.

What the tenth amendment says is that the federal government's powers are limited and enumerated. Any powers not given to the federal government devolve to the states, or the people, with the exception of those individual rights expressly outlined in the Constitution. So, what individual rights are clearly outlined in the Constitution? Where in the Constitution does one find language protecting the rights of the individual?

Try the first ten amendments - the Bill of INDIVIDUAL'S Rights.

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"The Bill of Rights was never intended to be a list of individual rights, but a list of things the federal government could not do to the states."

If the bill of rights was never intended to be a list of individual rights, then why did the founding fathers use the following language?

"or the right of the people"

"the right of the people to keep and bear Arms"

"without the consent of the Owner"

"right of the people to be secure in their persons"

"the persons or things to be seized"

"No person shall be held"

"to be a witness against himself"

"nor shall private property be taken for public use"

"the accused shall enjoy the right"

"to be confronted with the witnesses against him"

"witnesses in his favor"

"his defence"

"retained by the people"

PEOPLE. OWNER. PERSONS. HIMSELF. PRIVATE PROPERTY. ACCUSED. HIM. HIS.

Did the founding fathers choose this language to represent states rights?

Your contention that the "Bill of Rights" was never intended to be a list of individual rights is laughable.

The founding fathers sought to escape the tyranny of oppressive government by investing ultimate power in the people. Do you, or the state, have a greater interest in protecting your individual liberty.

If the federal government can't take away your rights, but the state can, are you really free?

The "bill of rights" was written to protect the individual from state tyranny. It mandates that the federal government must protect you from any state's attempt to deprive you of your god given rights. Should a state make a law that denies you your individual liberty, the federal government, via the supreme court, must strike down that law as "unconstitutional".

You're going a bit wobbly on us, Jack.

Next time, be sure to put brain in gear before engaging fingers to keyboard.

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Neither the Bible nor the Declaration of Independence hold legal standing in the United States. The Bible clearly states that you shouldn't do anything but worship on Sundays. The Bible clearly states that women are to remain in the "red tent" during menses, and then have a formal cleansing upon its passing. The Bible forbids any religion besides Christianity (well the New Testament, anyhow). The Declaration did its part when it was needed, and provides some philosophical guidance to legal scholars.

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I generally sympathize and agree with you on the subject of what you (I think inappropriately) refer to as "States' Rights": I prefer to think of this as the importance of restricting Federal Powers to those actually granted by the Constitution. Only PEOPLE have rights: States have powers only as granted to them by the governed for the protection of their rights.

Where you say that ""The Bill of Rights was never intended to be a list of individual rights but a list of things the Federal Government could not do to the states." ...I strongly disagree. The Second Amendment speaks of "the right OF THE PEOPLE to keep and bear arms." The term "THE PEOPLE" (or person(s)") is also employed in the first amendment, (the third speaks of "houses" which are owned by people) and the fourth, and the fifth, and, where "the accused" would be a person, the sixth, seventh and eighth would apply to persons, the ninth speaks of people and - lest you should suggest that "people" should be "assumed" to mean "states", the tenth amendment refers to "...the states OR to the people" ...implying two distinct entities.

Where the Tenth Amendment provides that “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 fact is that a power “to organize, ARM and discipline the militia…” HAS been “delegated to the United States” by the text of the sixteenth clause of Article I, Section 8. Of course, that power was granted to Congress with the understanding that Congress also had a RESPONSIBILITY to see that the militia WAS so “organized, armed and disciplined.” Had the states passed laws prohibiting the people from possessing weapons - particularly those sorts of weapons prescribed for use in the militia by Congress - this would CLEARLY have amounted to an intrusion by the state governments into the rightful jurisdiction of the Federal Government.

Your concerns regarding people who can not be expected to responsibly manage or exercise their right to keep and bear arms are well taken. But, in all honesty, I don’t see where that jurisdiction is clearly resolved by the Constitution or Bill of Rights. Hard cases make for bad law. All the same, I’m confident that could be resolved without much controversy even if it took a constitutional amendment to resolve it. Again: all rights (and powers) come with responsibilities.

(Please note: I'm NOT saying that Gura is arguing my point of view. He is not. In this case, as in Heller, Gura seeks to divorce the protection promised to the right to keep and bear arms from the militia clause entirely. I agree that the right is not DEPENDENT on participation in the militia (quite the contrary ...the continued existence of a militia was perceived as depending on the people continuing to be armed) ...but I think Gura has made a mistake - perhaps a fatal mistake - in failing to recognize that the militia clause should be much more of an asset to those who support the right to keep and bear arms than those who oppose it. But the fact remains that the Bill of Rights and Second Amendment did NOT repeal the powers granted to the Federal Government to organize, arm and discipline the militia and, as such, any power the state governments may have had to restrict the right to keep and bear arms certainly could not compromise the authority of the Federal Government to see that the militia WAS armed.)

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Please consider...
Where Congress under the Articles of Confederation had been a unicameral body whose members were appointed by the STATES, the CENTRAL argument in the Convention that drafted the Constitution was an argument over whether each state should continue to have the "equal" representation of one vote per state or whether there should be proportional representation whereby those states with larger populations would enjoy more representation.
There was also the question of WHO would elect or appoint the representatives and who, then, could truly be said to be 'represented'.
The outcome provided for a bi-cameral legislature composed of a House of Representatives and a Senate.
The membership that the people of each state were to enjoy in the House of Representatives was, however imperfectly ("3/5ths") based on the number of inhabitants (PEOPLE) in each state and the members were to be elected by the people and, so, to represent the people.
The membership of the Senate was to be composed of no more and no less than two Senators from each state who were to be appointed by the state legislatures and, therefore, to represent the state governments.
Therefore: to suggest that where the Bill of Rights was ONLY supposed to protect the states DESPITE the fact that the words "the people" and/or "person" or "persons" was consistently used throughout the amendments in the Bill of rights is, simply, absurd.

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