This is a great website. You can actually access records of Senate and House debates and in this case could research what Congress was thinking when it passed the Fourteenth Amendment.
[quote]pushharder wrote:
jsbrook wrote:
pushharder wrote:
jsbrook wrote:
pushharder wrote:
DrSkeptix wrote:
Loose Tool wrote:
SteelyD wrote:
Loose Tool wrote:
On December 4, 2008, the court ruled against the SAF and the NRA on the issue of incorporation holding that regardless of the Supreme Court’s ruling in Heller, the court was bound by existing precedent that the Second Amendment does not apply to state and local governments.
The existing precedent is [/i]Quilici v. Morton Grove[/i], a 1982 US Court of Appeals case upholding the Morton Grove handgun ban. This is Quilici:
http://www.law.umkc.edu/faculty/projects/ftrials/conlaw/quilici.html
Interesting. The first thing that I did was lookup the Illinois Constitution:
SECTION 22. RIGHT TO ARMS
Subject only to the police power, the right of the
individual citizen to keep and bear arms shall not be
infringed.
(Source: Illinois Constitution.)
“Local” governments (towns, cities, counties) are creatures of the state. At minimum, they are bound by their state constitution.
Note: As of this post I haven’t read the precedent case listed. Doing that next…
I think the “Subject only to the police power…” is a exception wide enough to drive a semi through. And the Illinois Constitution provides for Home Rule:
http://www.ilga.gov/commission/lrb/con7.htm
And with Home Rule comes police powers.
Maybe. And maybe not.
It seems Illinois has a history a’repeatin’ (Presser v. Illinois).
Here is one pushharder would like: the 14th Amendment comes to the rescue of the 2nd, despite the 10th:
My opinion is the 2nd needs no help from the 14th. I hate that incorporation clause argument anyway. I think the original intent of the 14th was NOT to incorporate the B of R. I could be wrong and I’ll bet their is a legal mind out there that may be able to whip me on that. I dunno.
Anyway, back to the 14th “helping” the 2nd. The 2nd should not need help because the 2nd is not a direct limit on just Congress. I believe the enumerated rights in the Bill state where and when the limits apply to the federal government. For instance, look at the 1st, “Congress shall make no law…” Others such as the 2nd don’t include language that addresses Congress therefore their coverage should be much broader, i.e., the states and municipalities.
Savvy?
So, what about those amendments that do, by their terms, only apply limits to the federal government? Like the First Amendment. What would stop states legislatures from infringing on free speech if the amendment wasn’t read to apply to them to via incorporation?
State constitutions.
So, then you are fine if the state constiution does not address these issues? What if a state constitution makes private ownership of guns illegal?
But if you follow my explanation, the 2nd Amendment applies universally; the states can’t legislate against it.
However, a reminder, our original confederation, union, was one of strong sovereign states with a limited, relatively weak federal government.[/quote]
Yeah, but under your explanation, all of the amendments would apply universally except in instances where they are restricted to Congress by their terms, such as the First Amendment. I am not so sure that jibes with the original intent of the framers when they drafted the constitution. I don’t think they intended any of these amendments to restrict the states at that point.
[quote]pushharder wrote:
jsbrook wrote:
pushharder wrote:
jsbrook wrote:
pushharder wrote:
jsbrook wrote:
pushharder wrote:
DrSkeptix wrote:
Loose Tool wrote:
SteelyD wrote:
Loose Tool wrote:
On December 4, 2008, the court ruled against the SAF and the NRA on the issue of incorporation holding that regardless of the Supreme Court’s ruling in Heller, the court was bound by existing precedent that the Second Amendment does not apply to state and local governments.
The existing precedent is [/i]Quilici v. Morton Grove[/i], a 1982 US Court of Appeals case upholding the Morton Grove handgun ban. This is Quilici:
http://www.law.umkc.edu/faculty/projects/ftrials/conlaw/quilici.html
Interesting. The first thing that I did was lookup the Illinois Constitution:
SECTION 22. RIGHT TO ARMS
Subject only to the police power, the right of the
individual citizen to keep and bear arms shall not be
infringed.
(Source: Illinois Constitution.)
“Local” governments (towns, cities, counties) are creatures of the state. At minimum, they are bound by their state constitution.
Note: As of this post I haven’t read the precedent case listed. Doing that next…
I think the “Subject only to the police power…” is a exception wide enough to drive a semi through. And the Illinois Constitution provides for Home Rule:
http://www.ilga.gov/commission/lrb/con7.htm
And with Home Rule comes police powers.
Maybe. And maybe not.
It seems Illinois has a history a’repeatin’ (Presser v. Illinois).
Here is one pushharder would like: the 14th Amendment comes to the rescue of the 2nd, despite the 10th:
My opinion is the 2nd needs no help from the 14th. I hate that incorporation clause argument anyway. I think the original intent of the 14th was NOT to incorporate the B of R. I could be wrong and I’ll bet their is a legal mind out there that may be able to whip me on that. I dunno.
Anyway, back to the 14th “helping” the 2nd. The 2nd should not need help because the 2nd is not a direct limit on just Congress. I believe the enumerated rights in the Bill state where and when the limits apply to the federal government. For instance, look at the 1st, “Congress shall make no law…” Others such as the 2nd don’t include language that addresses Congress therefore their coverage should be much broader, i.e., the states and municipalities.
Savvy?
So, what about those amendments that do, by their terms, only apply limits to the federal government? Like the First Amendment. What would stop states legislatures from infringing on free speech if the amendment wasn’t read to apply to them to via incorporation?
State constitutions.
So, then you are fine if the state constiution does not address these issues? What if a state constitution makes private ownership of guns illegal?
But if you follow my explanation, the 2nd Amendment applies universally; the states can’t legislate against it.
However, a reminder, our original confederation, union, was one of strong sovereign states with a limited, relatively weak federal government.
Yeah, but under your explanation, all of the amendments would apply universally except in instances where they are restricted to Congress by their terms, such as the First Amendment. I am not so sure that jibes with the original intent of the framers when they drafted the constitution. I don’t think they intended any of these amendments to restrict the states at that point.
If you examine the B of R you’ll find that only the 1st addresses Congress. I believe that’s because the entire Constitution (excluding the amendments) states the powers to which the federal government is entitled. The 9th and 10th clarify and put it all in perspective.
[/quote]
Well…yeah, I guess. But they don’t clarify very well. Otherwise there wouldn’t be the whole protracted debate about the proper relationship between the state and federal government both before and after the enactment of the Constiution.
[quote]pushharder wrote:
jsbrook wrote:
…I am not so sure that jibes with the original intent of the framers when they drafted the constitution. I don’t think they intended any of these amendments to restrict the states at that point.
How can you say that? The 2nd - 8th for the most part specifically or implicitly address the states.
[/quote]
Not really. Take the second. “A well-regulated milita, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.” But infringed by WHO? The Feds. Let the states form it. Do what they want. The Feds should not interfere. Many of the other amendments don’t expressly address the states at all.
Why do you read in an implicit prohibition against the States infringing against these rights of the people? That was not the primary concern of the Founders. The primary motivation behind the Bill of Rights was to prevent the Federal government from abusing authority and infringing on the people’s rights.
Few were worried about similar abuses by the states. Madison was. He was one of the few that wanted to place similar prohibitions on the states. But most did not.
Now, I am a fan of incorporation. Because I think there is just as much if not more concern about the States infringing on the fundamental rights of people as the Feds. And that if the drafters of the Fourteenth did not intend to extend incorporation beyond slavery issues, they very well should have. But after a quick cursory review into the topic, I think they did.
[quote]jsbrook wrote:
Why do you read in an implicit prohibition against the States infringing against these rights of the people? That was not the primary concern of the Founders. The primary motivation behind the Bill of Rights was to prevent the Federal government from abusing authority and infringing on the people’s rights. [/quote]
I’m always astounded that liberal constitutional “scholars” find a prohibition against the states infringing on a woman’s right to chose in the “penumbras” of the Bill of Rights, but no prohibition against the states infringing on the right to keep and bear arms.
[quote]Loose Tool wrote:
jsbrook wrote:
Why do you read in an implicit prohibition against the States infringing against these rights of the people? That was not the primary concern of the Founders. The primary motivation behind the Bill of Rights was to prevent the Federal government from abusing authority and infringing on the people’s rights.
I’m always astounded that liberal constitutional “scholars” find a prohibition against the states infringing on a woman’s right to chose in the “penumbras” of the Bill of Rights, but no prohibition against the states infringing on the right to keep and bear arms.
[/quote]
Me too. Damn those liberal constitutional scholars.
[quote]Loose Tool wrote:
jsbrook wrote:
Why do you read in an implicit prohibition against the States infringing against these rights of the people? That was not the primary concern of the Founders. The primary motivation behind the Bill of Rights was to prevent the Federal government from abusing authority and infringing on the people’s rights.
I’m always astounded that liberal constitutional “scholars” find a prohibition against the states infringing on a woman’s right to chose in the “penumbras” of the Bill of Rights, but no prohibition against the states infringing on the right to keep and bear arms.
[/quote]
In truth, I will tell you that most Constitutional scholars, whatever their political persuasion, recognize this ‘penumbra/implied right of privacy’ argument is really bullshit that was fashioned by the Supreme Court and has less grounding in the Constiution than most any other interpretation in the history of this country. But they like the outcome, so they will continue to endorse it as a proper interpretation. At this point, it’s been so built upon, anyhow, that the cat can’t be put back in the bag. It would require a massive overhaul of Constitutional jurisprudence of the last 50 years, something Supreme Court Justices of all political perusasions have been notoriously reluctant to do.
[quote]jsbrook wrote:
Loose Tool wrote:
jsbrook wrote:
Why do you read in an implicit prohibition against the States infringing against these rights of the people? That was not the primary concern of the Founders. The primary motivation behind the Bill of Rights was to prevent the Federal government from abusing authority and infringing on the people’s rights.
I’m always astounded that liberal constitutional “scholars” find a prohibition against the states infringing on a woman’s right to chose in the “penumbras” of the Bill of Rights, but no prohibition against the states infringing on the right to keep and bear arms.
In truth, I will tell you that most Constitutional scholars, whatever their political persuasion, recognize this ‘penumbra/implied right of privacy’ argument is really bullshit that was fashioned by the Supreme Court and has less grounding in the Constiution than most any other interpretation in the history of this country.
[/quote]
I don’t disagree that commentators of all stripes think the “penumbras” is a bullshit foundation on which to find rights. One one hand, conservative commentators are willing to call bullshit publicly. On the other hand liberal commentators won’t go on record. It’s the intellectual dishonesty of the liberal scholars that, in my mind, undermines whatever commentary they may have about the Second Amendment and incorporation.
[quote]Loose Tool wrote:
jsbrook wrote:
Loose Tool wrote:
jsbrook wrote:
Why do you read in an implicit prohibition against the States infringing against these rights of the people? That was not the primary concern of the Founders. The primary motivation behind the Bill of Rights was to prevent the Federal government from abusing authority and infringing on the people’s rights.
I’m always astounded that liberal constitutional “scholars” find a prohibition against the states infringing on a woman’s right to chose in the “penumbras” of the Bill of Rights, but no prohibition against the states infringing on the right to keep and bear arms.
In truth, I will tell you that most Constitutional scholars, whatever their political persuasion, recognize this ‘penumbra/implied right of privacy’ argument is really bullshit that was fashioned by the Supreme Court and has less grounding in the Constiution than most any other interpretation in the history of this country.
I don’t disagree that commentators of all stripes think the “penumbras” is a bullshit foundation on which to find rights. One one hand, conservative commentators are willing to call bullshit publicly. On the other hand liberal commentators won’t go on record. It’s the intellectual dishonesty of the liberal scholars that, in my mind, undermines whatever commentary they may have about the Second Amendment and incorporation.
[/quote]
Eh, they all are driven by what they view as a desireable outcome. Take a look at Scalia opinions. His supposed originalist pretensions completely disappear when necessary to get the result he wants. I really think you will be hard-pressed to find internal consistency among most Constitutional scholars and for that matter most Justices. The Conservatives are no better. They are simply full of shit on different issues. The academics are probably a bit better than the Judges because they don’t have to rule on anything and can simply just shut up and not talk about an issue if it will call the judicial philosphy they promote into question.
[quote]pushharder wrote:
jsbrook wrote:
…Take a look at Scalia opinions. His supposed originalist pretensions completely disappear when necessary to get the result he wants…
Can you cite an example?[/quote]
There are many. Gonzales v. Raich. He upheld the federal governemnt’s power in a clearly non-originalist opinion. (upheld the government’s prohibition on medical use of marijuana even where such use is limited to intrastate, noncommerical use. Justice Scalia justified the federal government’s intrusion though the ‘necessary and proper’ clause of all things) Then there’s one Takings Clause case (I forget the name) where he ADMITS to departing from originalism. He says that though regulatory takings were NOT what our founders had in mind, they should now be considered part of our “constitutional culture.” Didn’t bother to consider the what the Framers or ratifiers would have thought in Bush v. Gore. In many cases on affirmative action programs, land use regulations, campaign finance reform and restrictions on commercial speech, Scalia has departed from an originalist approach.
But really, you should read “Scalia’s Infidelity: A Departure From Faint-Hearted Originalism.” There are MANY, many examples. More than I can remember or do justice to here.
The LA Times, not known to be Second Amendment friendly, comes out in favor of incorporation.
Their rationale:
"We were disappointed last year when the Supreme Court ruled that the right to keep and bear arms was an individual right, giving short shrift to the first part of the amendment, which refers to “a well-regulated militia.” But we also believe the court has been right to use the doctrine of incorporation to bind states to the most important protections of the Bill of Rights. If those vital provisions are to be incorporated in the 14th Amendment, so should the right to keep and bear arms.
[quote]pushharder wrote:
jsbrook wrote:
pushharder wrote:
jsbrook wrote:
…Take a look at Scalia opinions. His supposed originalist pretensions completely disappear when necessary to get the result he wants…
Can you cite an example?
There are many. Gonzales v. Raich. He upheld the federal governemnt’s power in a clearly non-originalist opinion. (upheld the government’s prohibition on medical use of marijuana even where such use is limited to intrastate, noncommerical use. Justice Scalia justified the federal government’s intrusion though the ‘necessary and proper’ clause of all things) Then there’s one Takings Clause case (I forget the name) where he ADMITS to departing from originalism. He says that though regulatory takings were NOT what our founders had in mind, they should now be considered part of our “constitutional culture.” Didn’t bother to consider the what the Framers or ratifiers would have thought in Bush v. Gore. In many cases on affirmative action programs, land use regulations, campaign finance reform and restrictions on commercial speech, Scalia has departed from an originalist approach.
But really, you should read “Scalia’s Infidelity: A Departure From Faint-Hearted Originalism.” There are MANY, many examples. More than I can remember or do justice to here.
Thanks for pointing that out. While I realize that Scalia probably has political views akin to mine I can’t be hypocritical if he has departed from an originalist approach. Goose and gander.
I’ll have to take your word for it for now as I did not read up on it.[/quote]
Sounds good.
[quote]jsbrook wrote:
pushharder wrote:
jsbrook wrote:
pushharder wrote:
jsbrook wrote:
…Take a look at Scalia opinions. His supposed originalist pretensions completely disappear when necessary to get the result he wants…
Can you cite an example?
There are many. Gonzales v. Raich. He upheld the federal governemnt’s power in a clearly non-originalist opinion. (upheld the government’s prohibition on medical use of marijuana even where such use is limited to intrastate, noncommerical use. Justice Scalia justified the federal government’s intrusion though the ‘necessary and proper’ clause of all things) Then there’s one Takings Clause case (I forget the name) where he ADMITS to departing from originalism. He says that though regulatory takings were NOT what our founders had in mind, they should now be considered part of our “constitutional culture.” Didn’t bother to consider the what the Framers or ratifiers would have thought in Bush v. Gore. In many cases on affirmative action programs, land use regulations, campaign finance reform and restrictions on commercial speech, Scalia has departed from an originalist approach.
But really, you should read “Scalia’s Infidelity: A Departure From Faint-Hearted Originalism.” There are MANY, many examples. More than I can remember or do justice to here.
Thanks for pointing that out. While I realize that Scalia probably has political views akin to mine I can’t be hypocritical if he has departed from an originalist approach. Goose and gander.
I’ll have to take your word for it for now as I did not read up on it.
Sounds good. [/quote]
I thought it would be best to have at least looked at Gonzalez v. Raich before commenting on Scalia’s opinion. Two things I note is (1) Scalia didn’t even write the majority opinion, he wrote a concurring opinion, and (2) the court employed the lowest level on constitutional scrutiny (rational basis) to uphold Congresses power under the commerce clause.
After having read the majority opinion, Scalia’s concurring opinion, O’Connor’s dissent, and Thomas’s separate dissent, I think Thomas was the only one to hit the nail on the head. Who would have guessed he would uphold California’s right to permit the growing of medical marijuana.
Thirty-three states attorney generals submitted an amicus brief requesting that SCOTUS grant certiorari to the NRA vs Chicago case and rule that the 2nd Amendment is incorporated into the Due Process and Privileges or Immunities Clause of the 14th Amendment thereby invalidating Chicago’s ordinances prohibiting handguns. In the introduction, the brief states:
“The right to keep and bear arms under the Second Amendment is not just a ‘fundamental’ liberty interest. In the Anglo-American tradition, it is among the most fundamental of rights because it is essential to securing all our other liberties.”
The NH attorney general just submitted her resignation to run for senate. Thankfully she signed on before she left office.