It was not a long established precedent, since the federal government had never tried to regulate independent expenditures before.
It was not even a precedent at all.
And in regards to something you said earlier in the thread, the purpose of a Constitution is to lay out the structure and powers of a government, and in the case of a Bill of Rights, to remove certain subjects from the will of majorities.
Nothing about our Constitution implies “guidance”, anymore or any less than Davis-Bacon provides guidance about how much to pay workers on a federal project.
As for flexibility, the Constitution is already flexible in that it allows for a fairly powerful federal government, and acknowledges that more rights exist than those stated in the Bill of Rights. However, within the boundaries the Constitution actually sets, the only way to change it is with an amendment. For example, Congress can regulate interstate commerce. It cannot regulate that which is not commerce, as established by three Supreme Court decisions going back to 1996 that set boundaries to the commerce power. To allow Congress to regulate guns in school zones, domestic violence, or force people to buy health insurance on penalty of imprisonment, then it would need a general police power. A general police power is something the federal government is prohibited from exercising, absent a constitutional amendment. You would need judges who were willing to just throw out the Constitution entirely to interpret such a power into existence.
Just a few merry Christmas thoughts:
The primary purpose of the Constitution was to give the federal government taxation powers. This allowed members of Congress, greatly represented among members of the Constitutional Convention, to get greater and more regular pay. The Bill of Rights was thrown in to get hold-out states to ratify the rest of it.
They might have to soft-pedal some of the sweeping parchment platitudes in the Bill of Rights that can’t be taken literally anyway. But they still could follow specifics, such as the presidential system and separation of powers which make us subject to governmental paralysis.
Ok, that’s enough. I’ve got to toss you a warning for that one deltasigma. Such phrases don’t belong in Great Debates and you should know that.
I think you’re missing something. All of the Bill of Rights only originally applied to the federal government. It was only later incorporated into the states after the fourteenth amendment.
So, yes, it is limiting what the federal government does towards individuals. But it was not limiting what the states did towards individuals.
As for claims about the grammar of the second amendment–that’s precisely the problem. It isn’t grammatical. The main clause appears to have two subjects, both “a well regulated militia” and “the right of the people.” It reads like a sentence fragment followed by a comma splice. Take out the dependent clause, which, by definition, you should be able to do, and you are left with “A well regulated Militia the right of the people to keep and bear Arms, shall not be infringed.” That’s not a sentence.
Not that it gets much better if we fix it and make it say “As a well regulated Militia is necessary to the security of a free State, the right of the people to keep and bear Arms shall not be infringed.” Does the law depend on the necessity of a militia? If not, then why mention it at all? Why bother explaining why you are implementing a law unless the validity of that reason factors into whether it should be enforced?
But, if it does factor in, how does it do so? Is the point to have an optional militia you can call up, made up of private citizens? Or is the point to make sure that the private citizens can defend against that militia should they go rogue? And is either one a good reason for not abridging the right to bare arms?
Those are good points. The reason the 2nd amendment continues to be upheld as an individual right though, is because a) the 14th amendment incorporated the Bill of Rights against the states, and b) effectively repealing a Bill of Rights amendment on the reasoning that it’s purpose is obsolete would open a Pandora’s box that would endanger not just other rights, but older laws too.
Yes, the security of the state was to depend on the militia, not the regular army.
The regular army was kept at just 600 men strong!
That’s the historcal context the 2nd needs to be placed in. They were realy, realy scared of the regular army being used as an instrument of Tyranny.
N.B.: The point of the militia is not to fight the Army but to fight instead of the Army.
Where do you get this from?
Not to fight instead of the Army, necessarily. They could also fight alongside the Army, on American soil. The Constitutions permits Congress:
Yes, but the original point of the militia system appears to be to avoid the necessity of a large peacetime standing army, such being perceived, or misperceived, as a threat to liberty.
Agreed, I didn’t realize that’s what you meant by “fight instead of the Army”.
That perception was accurate circa 1787, given the recent experiences of the colonial Americans.
Yes, the point of a militia system was so you wouldn’t have to use a large (and expensive) standing army, since your citizens could be armed (often with their own weapons and equipment). In the US it was thought to be preferable to having a large peacetime professional military for a variety of reasons, money being one, but also the perception (which was quite valid at the time) that large standing armies were a threat to liberty, since every example of such an army at their time reinforced the perception…i.e. the large standing armies in Europe were instruments used by the various princes to keep the people in line and properly oppressed and to strengthen the establishment. This didn’t change (in Europe or elsewhere) until much later…and in fact, it’s still not universally changed, since there are certainly places on Earth today where a large standing army is used to oppress the population and prop up dictators.
*Heller *overturned Miller. Even if they couldn’t make themselves admit it.
Article VI, Section 2: “This Constitution, and the Laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every state shall be bound thereby, anything in the constitution or laws of any state to the contrary notwithstanding.”
IOW, yes. States have no rights against the will of the feds. Never did.
That’s a bit too broad. States do retain some rights:
Only where the feds are restricted from doing anything. States cannot do anything in opposition to anything the feds can do.
Anyway, that was in response to **adaher’**s claim that states are sovereign. Not since ratification, they aren’t. There was a challenge to that principle once, but it was definitively settled in the landmark case Grant v. Lee.
Fair enough, and you’re right in the above. It is worth pointing out that they do have rights, though, they are just narrow and few.
Sovereign states combined in a union makes no sense anyway. By the nature of entering into a union, sovereignty is lost.
Which is pretty much the difference between the old Articles of Confederation and the newer Constitution. The Confederation had little existence beyond the voluntary consensus of the states; the new Federal government was an independent entity with sovereign power over the states.
I’ve seen it described as “parallel sovereignty.” The states are sovereign except as against the U.S. Constitution and laws enacted thereunder, etc.
One important difference: The federal government has only “enumerated powers,” while state governments have “plenary sovereignty” or a “plenary police power” – internally, state legislatures/governments can do anything the U.S. Constitution, laws thereunder, etc., and their own state constitution do not expressly forbid.
I’ve been following along this interesting (to me) discussion and wanted to say that this is one of the more sane debates regarding the 2nd Amendment I’ve read; little (if any) diatribes or frothing at the mouth. Bravo.