Southern Avenger

Nuff said. Unimpeachable argument, IMO.

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"Retarded people, insane people, blind people, felons, children, and various others will not be allowed to possess weapons."

So a blind person cannot have a gun collection?

A gun collection might be kept for sentimental reasons or as an investment in rare collectibles. Blindness does not preclude one from enjoying a collection, whether it's coins, cars or guns.

Children can most certainly possess weapons. I was a licensed, legal hunter and gun owner at the age of thirteen in my home state of North Dakota. (1970's)

OK. You meant that a blind person shouldn't operate a firearm.

Your lack of precision in using and interpreting language is the problem.

The founders were very precise in the use of language when writing our Constitution.

This argument that the Bill of Rights was written to protect the states from the federal government is completely false. The Bill of Rights was written and included in the Constitution to protect individuals from government tyranny, period. The federal government's powers are enumerated in the Constitution. All other powers devolve to the states, with the exception of those INDIVIDUAL (God Given) rights enumerated in the Bill of Rights.

Look at my other posts in "Gunning down the Constitution" regarding the specific language used by the founding fathers. It is quite clear that the first eight amendments are addressed to all INDIVIDUALS, and not any state government.

Attempting to transform the "Bill of Rights" into the "States Bill of Rights" is a nasty bit of political perversion.

Yes, it all makes sense, now.

"We hold these truths to be self evident, that all states are created equal, and are endowed by their creator with certain unalienable rights........" Gosh, that makes sense, doesn't it.

States get their rights from God, and then the states pass those rights along to individual men. That must have been the founder's intent.

How foolish of me to think that because my rights come from God, they can never be taken away. Let's make the state God. It will provide for our rights (like health care, or food) and never take them away. Sounds very progressive, don't you think?

Jack, having a foolish "learned, constitutional scholar" in agreement with you does not make either of you correct.

You need to think this through, buddy.

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Does it really need to be said? Apparently so: Kevin Gutzman's opinion is held only by a small minority of constitutional scholars. I'm gonna go with what they said.

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Great points, all. Yet, they run up against the fact that Founder John Marshall in _Barron v. Baltimore_ (1833) said that it was common knowledge that the Bill of Rights was intended to limit only the Federal Government.

In fact, the states have never been required to provide grand jury protection to the criminally accused, as the Fifth Amendment requires the Federal Government to do. They've never been required to preserve the common-law right of trial by jury in civil cases as the Seventh Amendment requires, but have been free to modify it (as, for example, when states provide juries of fewer than twelve people in some cases). Etc.

Sark makes a fallacious point: constitutional scholars commonly support Incorporation. What does this prove? The sole qualification for a post as a law professor is a good record in law school -- introductory courses in Torts, Contracts, Civil Procedure, Criminal Law, and Constitutional Law, plus courses in Tax Law, Bankruptcy Law, Family Law, etc. After that, one must be hired by an overwhelmingly Warren Court-oriented professoriate. In other words, the process is mainly political. Does any of that prove that a "constitutional scholar" has any actual constitutional expertise? This is the classic logical fallacy called an Appeal to Authority, and it is particularly misplaced in this case. Cite evidence, don't just tell us what other people conclude.

As to Mr. Yuengling's argument: you abided by the regulations of your state. Period. Some states allow kids to have guns, some don't. Perhaps my formulation in regard to the blind was infelicitous, but what you've said doesn't disprove my general point. The issue in _Heller_ wasn't whether one could keep arms stored in a gun cabinet for display, disabled, but in what circumstances he could have them at hand for use. Again, the question is who gets to decide that issue.

The idea that John Marshall's opinion in _Barron_ was "political perversion" is absurd: Marshall didn't hold against a claim of federal authority in any other significant constitutional case. The reason he held against application of the Bill of Rights to the states was that everyone knew at the time that the Bill of Rights, like the American Revolution, had been about preserving powers of the states, not about empowering federal judges to veto state laws. Marshall should have known, since he was a prominent player in the Virginia Ratification Convention of 1788. That state, like several others, joined a call for constitutional amendments to its ratification, and not one of those proposed amendments said "Please restrict the powers of our state government." Gee, I wonder why....


Guy is right about the amendments after the 12th: several did say "Congress shall have power to...." Note that this language, or any other language granting power, was absent from the Bill of Rights. The Preamble to the Bill of Rights, which I referenced before, says why.

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If qualifications don't matter, why does Mr. Hunter go into such detail describing those of the man he agrees with?

I'm not an expert on constitutional law (and a lot of other things). However, unlike some people I don't pretend that I am. On subjects where I don't have expertise, I am usually willing to defer to a consensus of experts.

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We do not live in the 1780s. We do not live in the 1780s. We do not live in the 1780s. We do not live in the 1780s. We do not live in the 1780s. We do not live in the 1780s. We do not live in the 1780s. We do not live in the 1780s. We do not live in the 1780s. We do not live in the 1780s. We do not live in the 1780s. We do not live in the 1780s. We do not live in the 1780s. We do not live in the 1780s. We do not live in the 1780s. We do not live in the 1780s. We do not live in the 1780s. We do not live in the 1780s. We do not live in the 1780s.

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it is pretty much settled historical fact that the bill of rights, pre 14th amendment only applied to the federal government. this is settled. no ifs ands or buts from any one with any real credibility on this issue. if you disagree with this, you just simply havent dont your homework in his area.

the issue then becomes does the 14th amendment apply the entire bill of rights to the states? a strict interpretation says no. it gives free slaves the rights to due process of law and the right to own property, etc. even after the passage of the 14th amendment we had various black codes forbidding firearms ownership, etc etc. if the amendment really made the bill of rights apply to the states and protected everyone, these laws just simply wouldnt of been.

a liberal interpretation of the 14th says yes, it applies the BOR to the states. there can be a possibility of good coming from a liberal interpretation of the incorporation doctrine, however it brings up a few other problems ASIDE from the discovery of a myriad of rights not even listed in the bill of rights and using this amendment to support nearly every judicial overreach they have engaged in over 100 years.

if you support the national government protecting freedom, why dont you support a world government 'protecting' freedom? the great fear of the founders was centralization.

lets remember that the natural rights theory of the founders, rightly or wrongly, never was a strict minarchist stance of only punishing mala in se. we have thomas jefferson supporting the death penalty for polygamy. we have patrick henry supporting a tax funded state church in virginia.

i dont agree with mr gutzman's view on gun control that we need all these different laws regulating various inanimate objects at the state or local level. kids owning guns could easily be addressed by parental control, for instance. i also tend to come inline with a strict libertarian stance on crime and justice. not to be confused with the founding fathers classical liberalism and political decentralization which was not as PURE as libertarianism is today.

in my you only punish those who have committed a crime. you dont punish those who MIGHT commit a crime. but i agree with mr gutzman 100% that CONSTITUTIONALLY (and with original intent) these matters were to be debated on the state and local level and not the federal level.

i dont think any serious constitutional scholar on 'our' side would disagree with this.

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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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Look, the bottom line is that the Bill of Rights was created with the intended outcome of limiting the Federal Government. The idea of a limited federal government was one upon which all the states could agree for fear of going "from the pan to the fire". However, the attitude of the people shifted as the need for a solidified Republic became apparent in the nineteenth century, as is evidenced by the Constitutional amendments and court decisions from that era.
The need for state sovereignty has slowly died in our country. States rely upon the federal government for money, infrastructure, and security. If Montana decided to secede from the union tomorrow do you really think they would survive?
I know Dr. Gutzman has, but has anyone else ever heard of the Palmetto Republic? In December of 1860 it was a small country that remained sovereign for about a month and was comprised entirely of the good people of South Carolina. We all know how that ended.

p.s.
I am a history student at Western Connecticut State University and have had the misfortune of taking a class with Dr. Gutzman. His abilities as a teacher are on par with his abilities as a constitutional scholar...

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All of the above posts address descriptive arguments, i.e. facts about the world, the constitution etc. Assuming we could come to an agreement (which is doubtful) the facts about the world would do nothing to address the moral concerns which drive the gun control debate: what ought we as citizens and participants in our government endorse? This goes right to the heart of mat's point. We don't live in the 1780's and at best documents written then can serve as sign posts. That's what I assume you all mean when you talk about the "intentions" of founding fathers. However, sign posts can point to roads no longer existant, outdated and poorly maintained; you can even twist them to point us in the wrong direction.

I'm not about to let a bunch of well-intentioned dead men govern my moral life and I suggest we adopt this position as a matter of policy. The difference between the brightest minds of the 1780's and 2010 is that one group is older and we have foolishly erected idols to their ideas which do not attach to their usefulness (recognizing this potential folly, those at the constitutional convention were smart enough to allow amendments) . We abandon their outdated ideas in the social realm so why are we afraid to do so where our government is concerned?

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Logic Avenger...yes, the founders were smart enough to allow constitutional amendments. So why don't we use them? Our lives today are ruled by all sorts of unconstitutional laws and court rulings because our leaders have no patience for the amendment process. But is this the fault of the founders?

If an unconstitutional idea can't generate enough popular support to make it through the amendment process, does it really deserve to be passed into law?

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Jason,

Any answer to your question that I offered would be purely speculative. I do think it's harmful to the integrity of our government that we have gravitated towards measures which circumvent the amendment process, and I in no way blame this on the framers of the Constitution. With my caveat regarding speculation, I think we have gotten away from the amendment process both because we have deified the Constitution and those who created it, and have moved collectively towards seeing an amendment as a sort of patriotic sacrilege, and the fact that those in power have more expedient ways of bringing about policy changes, e.g. laws, the courts, or battles of public opinion waged on cable news.

I think the faults of our government lie firmly upon the shoulders of people like Jack Hunter, Nancy Pelosi, Joe Biden, George Bush, and all other public figures who consistently engage in non-contemplative activities of persuasion without regard to truth, but rather with the utmost interest in pursuing whatever their stated goal happens to be.

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Logic Avenger,

Where you have written...
"I'm not about to let a bunch of well-intentioned dead men govern my moral life and I suggest we adopt this position as a matter of policy."
Well, fine...
Then let's just not HAVE a federal government at all. We might also do away with many of the state governments.
Let me ask you this...
Regardless of the time when it was written or who it was written by, do you agree with the idea that all just powers of government are derived from the consent of the governed? Consent, after all, is all that distinguishes love-making from rape. I submit to you that a government which governs by the consent of the governed is ALSO the distinction between a free society and one which lives under tyranny.
Having been ratified by covnentions composed of delegates elected by the people of each of the separate states some 220 years ago, the existing Constitution represents the foundation for a Federal Government which was derived from the consent of the governed. To the extent that we do not rise up to overthrow that government, it is presumed that we consent to it. Remove our right to keep and bear arms and that last proposition will be all the more doubtful. When the government is armed and we have all been disarmed, our silence in the face of any oppression it may offer will clearly represent our fear more than any genuine measure of consent.
As I think you'll have to agree, ...however silly they may have been otherwise, the men who drafted our Constitution WERE wise enough to appreciate that they could not foresee everything that would happen and, for that reason, they included a provision in the Constitution prescribing the manner in which it could be amended. By doing so, they hoped to help us avoid violent revolutions every time the Constitution and our form of government might need to be altered.
So - if you think the Constitution is "outdated" then do what you need to do to amend it.
Otherwise: if you think the WHOLE THING is silly ...fine ...let's just get rid of it. But if there is no constitution, then there is no legitimate basis whatsoever for the Federal Government itself. So, if there is no constitution, then there is no Congress to pass ANY laws that might infringe the right to keep and bear arms at all.
Of course, if we get rid of the Constitution and the Federal Government ...that will also save me a bundle in taxes this year ...and the year after that ...and the year after that (etc.,)!

James H.

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Since we all know and acknowledge that the Constitution is a restrictive document that specifically limits the power and authority of the federal govt and that any power or authority not specifically granted to the federal govt is reserved to the states or the people then please show me where the power is granted by the Constitution to the judiciary to interpret the very document that limits its and the other coequal branches of govt ? You cant because it doesnt exist and nowhere in the Constitution will you find anything that even implies that authority.
SCOTUS is specifically tasked with ruling on the Constitutionality of laws created under the Constitution.. meaning that they are also under the Constitution and must use the Constitution as a ruler to measure the compliance of laws with the restrictions placed on them by the Constitution.
The whole concept of interpreting the Constitution by SCOTUS is legalese BS and doublespeak by lawyers. It doesnt exist but rather is a usurpation by govt to grab power it is restricted from having.
Imagine the founders creating a document to limit govts authority and power for the good of all and then giving the authority to redefine by interpretation that very document ! Ludicrous.
The concept you propose that the Bill of Rights are restrictions of govt power is correct and reinforced by the preamble..
"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: And as extending the ground of public confidence in the Government, will best insure the beneficent ends of its institution"
..however by removing their authority to interfere with them they are acknowledged as Rights by default and as such must be God Given since they exist naturally.
You cant have it both ways.

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What does the supremacy clause mean? Article Six of the Constitution states that federal law trumps state law if the federal law is Constitutional. The Second Amendment is obviously Constitutional. The States ratified it and in doing so relinquished their right to regulate arms.

That said, the Courts have obfuscated the issue by not using this argument in their decisions. The use of the "incorporation doctorine" is a way for the federal courts to overrule state legislation while at the same time reserving some federal power to "infringe" on our Second Amendment rights. What part of "shall not be infringed" don't they understand? Why are people so willing to revoke the rights of others to protect themselves from some theoretical future event?

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Gun control means having a steady hand.

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