Jefferson and the Consitution: Is a rewrite in the future?

Factual Questions
21

[[I have not read Cecil’s proclamation on the subject, but, if he in fact said that all you had to do was repeal the Second Amendment, then you could legal control guns, then he should do some more research. While superficially, that might appear true, scholars would definitely argue the point.]]
I really rather doubt that, as a general principle. While government actions affecting guns and gun owners would still be subject to checks such as due process and equal protection, such a repeal would completely eviscerate any plausible argument that guns could not be banned outright for private citizens. However, I will try to keep an open mind about the subject.

[[If you read the history of the Constitution ratification debate, you’ll discover there were two important schools of thought on the utility of the Bill of Rights. One school was steadfastly opposed to adopting the Bill of Rights because of the exact concern raised by the position attributed to Cecil. They were concerned that the Bill of Rights would be looked at as a rights limiting device.

Let me 'splain. If you look at the political thought prevailing at the time and that which most of the founders endorsed in one form or another, it was rooted in Natural Rights. We could have a whole 'nother thread dedicated to what Natural Rights means, but, in general it is taken by most to mean that Human Beings have inherent Rights that arise from simply being, No government imparts those rights, rather, they simply exist and belong to everybody. That is where the phrase “endowed by their creator with certain inalienable rights” arises from. Lets gloss over Natural Rights vs. Inalienable Rights and treat them as more or less the same.

Government was viewed as usurping those rights from time immemorial with a monarch parceling out rights as he/she chose. The Magna Carta started the ball rolling, and the new Republic would approach rights differently. The new Constitution was viewed as something of a social contract. People (actually States, but lets keep this short) gave up certain limited rights in exchange for the benefits of a common government. Thus, “We the People”. We the People were highly suspicious of the new government so they also sought to “secure the blessings of liberty for ourselves and our posterity”. You can see right from the Pre-amble that the Constitution was meant to be a government limiting instrument. The powers given over by the people were viewed as very limited in scope.]]

So far you ain’t giving me much confidence.

[[The other school of thought was that the Bill of Rights was necessary because they wanted all the rights to be explicit.]]
Something like that.
[[ They thought of each right in the bill in very expansive terms and gave them additional assurance that the new government would trample those rights. That makes the whole argument about right to bear arms only in the context of militia almost hilarious if it were not so dangerous.]]

Soemthing like that – I mean, it’s not like it’s a core legal principle to try to read a document so that all the parts have meaning (note: sarcasm involved here). However, I do believe that the 2d Amendment grants rights beyond simply those related to state militias.
[[If you look at things the way they were designed, it becomes obvious that the only way to legally control guns is to amend the constitution to allow it.]]
Absolutely wrong – both in principle and, moreover, in terms of settled legal doctrine.
[[ We would probably repeal the 2nd Amendment for clarity’s sake and replace it with whatever non-sense the misguided gun nazis want.]]
Yup, honest people who are appalled by gun violence are just a bunch of Nazis.

22

[[Don’t get me wrong. I’m talking about sound law not reality. In reality, most of the laws on the books are unconstitutional, but we have allowed it because of our collective ignorance. ]]
Say what? Most? Including state laws?

23

Sorry Big Iron. You are dealing with a libertarian here. You see, I disagree with the Supreme Court. I understand very well that “settled legal principals” are contrary to the viewpoint of the founders.

I might add that I purposely was avoiding dotting all the legal 'i’s - this is the Straight Dope not Law Review. Feel free to explain it better in a managable post. I’ll bet you and I are the only ones who read it :wink:

I was using a little sarcasm myself with gun nazis. I know some quasi-libertarians that are pro-contol because of basic concerns. I do think the big players in the debate are more interested in control than solving the problem, however.

Back to the subject: I think that settled legal principals ran off the rails back in the early days of Judicial activisim. A bunch of boobs in black robes have decided that they decide what our rights are. Regulation of Commerce has been used to justify just about anything the government might seek to do. They were wrong then and now.

But it doesn’t matter anyway Iron. Nobody cares.

Does anybody have any good tips on New Zealand real estate?

The Trustworthy Troglodyte

24

Oops. I forgot. The 2nd Amendment doesn’t “grant” rights. It prevents the federales from violating those rights.

The Trustworthy Troglodyte

25

[[Sorry Big Iron. You are dealing with a libertarian here.]]plank
Don’t get me started on most of you guys, wolves in sheeps’ clothing.
[[ You see, I disagree with the Supreme Court.]]
That’s certainly your prerogative, so for now we’ll just get jiggy.
[[ I understand very well that “settled legal principals” are contrary to the viewpoint of the founders. ]]

Some are, some aren’t, and it is arguable how much we should care about the framers’ intent (or was it the ratifiers’ intent?) – especially following the Civil War amendments.
[[I might add that I purposely was avoiding dotting all the legal 'i’s - this is the Straight Dope not Law Review.]]
And you think this makes sloppiness permissable absent a good laugh?
[[ Feel free to explain it better in a managable post. I’ll bet you and I are the only ones who read it ;-)]]

Ya never know.
[[I was using a little sarcasm myself with gun nazis. I know some quasi-libertarians that are pro-contol because of basic concerns. I do think the big players in the debate are more interested in control than solving the problem, however.]]

LIke the death penalty and affirmative action and school prayer, gun control is an issue that a lot of politicians prefer to have as an issue than as a reality.
[[Back to the subject: I think that settled legal principals ran off the rails back in the early days of Judicial activisim. A bunch of boobs in black robes have decided that they decide what our rights are.]]
Within limits, of course – are you suggesting that judicial review itself in illegitimate?
[[ Regulation of Commerce has been used to justify just about anything the government might seek to do. They were wrong then and now.]]

That’s a reasonable view – but a little besides the point in many ways, too.

26

[[Oops. I forgot. The 2nd Amendment doesn’t “grant” rights. It prevents the federales from violating those rights.]]
Yeah, I know what you mean, but that’s slicing it mighty thin. After all, what are rights without remedies?

27

Given that the United States were formed by armed revolt, and given that this revolt was made possible in part by an armed public…it stands to reason that the framers of the Constitution (being part of this armed public, and wary that such an action might be necessary in the future) would want the public to continue to be both well-informed and well-armed.

Is gun control bad? In theory, no. Will I allow the government to take away a tool I use to protect myself? Over my cold, dead body. The right to keep and bear arms shall not be infringed…does not say anything about keeping tabs on who has what.

As to state laws being unconstitutional: Were it not for a single ruling according a single sentance in the 14th (or 16th, don’t remember which offhand) amendment, the Supreme Court would continue to have nothing to say about whether state rulings are unconstitutional. The Constitution originally was a document whereby the People and States limited the National Government. Now, it’s used by the National Government to limit the People and States (not always, but increasingly so).

Does the government have the right to do this? It’s been happening for several decades…and until enough people stand up and say no, then it will continue happening, because by silence in the matter, you cast a silent yes vote.

Naggy

“I am an Anarchist. The reason I don’t promote Anarchy is because I don’t trust you idiots.” -anon

28

Iron, I’m eager to hear you correct my “sloppiness”. Feel free to invalidate my points with superior reasoning and analysis. Your comebacks are clever, but where is the beef?

The Trustworthy Troglodyte

29

Tplank did say: “I was using a little sarcasm myself with gun nazis.”

Well then stop doing it. It is deeply insulting. I know the Rush Limbaugh crowd think they’re being clever–anyone who disagrees is automatically labeled “a nazi”, but all you are doing is alienating the people you are supposedly trying to get to agree with you.

My mother grew up in Germany, in a strictly anti-Nazi family, and they barely got out alive in 1938. She is also pro-gun control. You may call her a “nazi”–even claim it is only in jest–at your own risk.

30

[[As to state laws being unconstitutional: Were it not for a single ruling according a single sentance in the 14th (or 16th, don’t remember which offhand) amendment, the Supreme Court would continue to have nothing to say about whether state rulings are unconstitutional.]] Naggy
It’s the 14th, and there are a couple of potential sources of “incorporation.” Moreover, one cannot overstate the significance of the Civil War amendments (13-15)on the relationship between the federal and state government.

[[ The Constitution originally was a document whereby the People and States limited the National Government. Now, it’s used by the National Government to limit the People and States (not always, but increasingly so). ]]
Thaty’s because of those pesky Civil War amendments, of course, which made the “original” intent pretty meaningless in that regard. Oh, and it protects people, it doesn’t “limit” them in any way.
[[Does the government have the right to do this? It’s been happening for several decades…and until enough people stand up and say no, then it will continue happening, because by silence in the matter, you cast a silent yes vote.]]
According to the Supreme Court, of course, yes it does. Moreover, this is how most Americans want it. If the Supreme Court was to reverse itself and declare that the Bill of Rights doesn’t apply to the states, the constitution would be amended pronto to make sure that it does.

31

[[Iron, I’m eager to hear you correct my “sloppiness”. Feel free to invalidate my points with superior reasoning and analysis. Your comebacks are clever, but where is the beef?]]
I’ve been doing that, Plankster, but, as they say, you can’t make chicken salad out of chickenshit. Make a specific assertion (not an overwrought general lamentation) and I’ll provide a specific response. For now, I feel very comfortable with my responses to what few legitimate points you have raised. Or don’t you feel that the Civil War had a profound effect on the relationship between the states and the federal government?

32

Matter of looking at them. I agree, they do force the States to play by the same rules as the National government, which means they can’t restrict free speech either (or the rest of the Bill of Rights). On the other hand, I’d say that a lot of legal wrangling that has rested on the 14th Amendments wording has actually restricted People/States.

The Civil War amendments radically changed the function of the Constitution. My personal opinion favors the original function of the Constitution (States defining powers of National government) to the current one (Constitution defining powers of both National and State government).

Again, agreed. Realistically, State constitutions should define the relationship between the States and People, wherease the U.S. Constitution should define the relationship between the Nation and the States/People. It makes the State governments more flexible and more tailored to how the locals want it.

Thus the argument from an Anarchist, who agrees with the principle that the best government is one that governs least. This argument can go around in circles forever…I think it boils down to we prefer different things.

Naggy

“I am an Anarchist. The reason I don’t promote Anarchy is because I don’t trust you idiots.” -anon

33

RE: flag desecration

I’m a vet. I’m not a member of ANY veteran’s organizaton. As far as I’m concerned the flag is just a piece of cloth. I don’t worship objects, tho I’m awful fond of my custom built Martin.

Ranger Jeff
The Idol of American Youth

That would be the easy way, but it wouldn’t be …

  • The Cowboy Way *
34

[[Thus the argument from an Anarchist, who agrees with the principle that the best government is one that governs least. ]]

Ypu’re an anarchist, eh? I cherish doubts.

35

About the second amendment…

“…the right of the people to keep and bear arms, shall not be infringed.”

Arm(ärm) n. 1. A weapon, especially a firearm: troops bearing arms; ICBMs, bombs, and other nuclear arms. Armed arms v. intr. 1. To supply or equip oneself with weaponry.

Aren’t we already infringing on citizens’ second amendment rights by not allowing ownership of gernades, bazookas, etc?

36

Naggy, that’s an absurdly narrow point of view. The United States was not “formed by armed revolt”, and it foully demeans our national history and character to put it so.

The United States of America was founded by the confluence of the strong desire of the colonists to create a nation unto themselves and a powerful legislative decree. It was not merely a rejection, but an affirmation. Armed conflict played no role, per se, in the founding of the nation.

Your “armed revolt” was a secondary – and deeply regrettable – trauma that everyone would have much preferred to avoid. If the British had simply accepted American independence (admittedly an unlikely event), armed conflict would have been completely unnecessary.

What you call armed revolt would more accurately be called national defense. Thus your comments, over-emphasizing as they do the military aspects of protecting our independence, are founded on a badly distorted view of history.

If the redcoats had stayed home, we probably (well, hopefully) wouldn’t have anything like the second amendment and this would be a much safer and saner place to live today.

37

Geetsbone: You’re absolutely right, and I for one would be very happy if such precedents could be used to extend the government’s authority to restrict gun ownership in the interest of public safety even further.

Unfortunately (in my opinion), it’s pretty clear that there’s no evading the Second Amendment short of lawfully repealing it. Someday we as a nation might be wise enough to do just that, but I don’t see it happening in any of our lifetimes…

38

The most likely cause of a new constitutional convention would be over the balanced budget amendment. Only [bold]one[/bold] more state needs to pass a call for convention to create a constitutional convention in order to consider a balanced budget amendment, and, constitutionally, one would have to be called. But there’s nothing in the constitution that says, once a convention is called to focus on one amendment, that the convention won’t just run amok and start passing all kinds of amendments. Remember the Articles of Confederation? The Constitutional Convention was supposed to just tweak those, not throw out the whole form of government!

39

Drifting away from the second amendment a little, but staying with the original topic, I think the danger is always that Congress will pass some silly and impractical amendment - like the flag burning thing - in order to score points with their constituencies while all the time expecting it to fail in the state legislatures. The trouble is, the states may not cooperate. I half suspect that this is how we got Prohibition.

It seems clear that our representatives have few compunctions about passing laws that a child can see are unconstitutional; the expectation is that they will be either vetoed or struck down. But by then the representative will have the vote on their record. They get the best of both worlds: The vote pleases some demographic, but few others are pissed off because it failed to ever take effect. I’m speaking generally here, I’m sure you can all come up with your own examples of this happening.

The trouble with constitutional amendments is that they can’t be struck down by a supreme court that is (more-or-less) insulated from the political winds of the moment. And then we have to live with them, no matter how ridiculous. I don’t think the Founders anticipated just how irresponsible and opportunistic Congress could become.

40

APB9999 (Cecil in sheep’s clothing?) said:

It seems clear that our representatives have few compunctions about passing laws that a child can see are unconstitutional; the expectation is that they will be either vetoed or struck down.

And this is a real problem here. The founders created a lot of fine ethical principles in the Constitution, but didn’t create a very clear way for them to enforce themselves. So the constitution says “Congress shall make no law… abridging the freedom of speech…”, but it doesn’t say what to do if Congress makes a law that does just that. Judicial review was later created for thet purpose, but politicians seem to have taken it too far. Though every member of Congress and the President have to vow to defend the Constitution, many still act like it’s the Supreme Court’s job, not theirs. If there were a significant change to the Constitution, I would hold individual members of Congress responsible for voting for laws which violate the constitution. If the Supreme Court holds that the law is unconstitutional, the law’s drafter is impeached. How ya like them apples?

As for tplank’s argument about the Bill of Rights being a limiting device, I agree completely, but come on! Don’t underestimate the lust for more power among those who have a taste. The current state of our government is clearly run on the principle that the Federal government can regulate anything it wants, so long as the Supreme Court doesn’t strike down its power due to a specific part of the Bill of Rights. (Yes, this is in violation of the 10th amendment.) I don’t see a drug war, environmental concerns, or income redistribution listed as ennumerated powers, but that doesn’t convince Washington that these are not in their purvue.

So, in finally shutting up, I’ll say we have a constitution based on a minimal federal gov, and a voting populace who are unfortunately quite permissive of a maximal federal gov. Until that’s resolved, we’ll continue to have these struggles in congress between defending the Constituion, and getting reelected.

-Quadell