The goal of the Framers, in writing the Constitution, was to create a central government that did not infringe upon the inalienable rights of the individual or intrude into the soveriegnty of the individual states. The only conduct that the Framers intended to abate, was conduct that put individual states in conflict with each other. (i.e. trade and commerce)
As for your examples citing the “establishment clause” of the First Amendment, why was it that prayer in schools was an accepted practice for almost two centuries after the Constitution was enacted? Then, all of a sudden, the judiciary recognized the “unconstitutionality” of prayer in school? (rhetorical question)
The Framers intended the local communities and the states to determine those issues. (congress shall make no law).
While we are on the First Amendment, do you think that the First Amendment does not prevent the states from infringing on the individual’s right to “freedom of speech”? You seem to think that the Second Amendment does not preclude the states from infringing on the individual’s “right to keep and bear arms”. Why the discrepancy?
Take a look at the Tenth Amendment. One thing that silence does mean is, if it ain’t in the Constitution, it ain’t none of the FedGov’s business. It is then a matter of the states or the people.
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I do believe that you are starting to catch on. You are right, the Second Amendment does not create the right, the right existed prior to the Amendment. The Amendment forbids the the infringement on that right. Since the right is recognized by the Constitution, the States are also forbidden to infringe upon that right via the Fourteenth Amendment.
So, from your “interpretation”, I can only conclude that the First Amendment does not protect the individual from actions by the state which may violate the right of “freedom of speech”. Nah, I don’t think so.
Right. See, the right of the people to keep and bear arms existed prior to the forming of any militias. The militias are dependent on that right, not vice versa.
Well, I could have called it “bass-ackwards”, because that is what it is. See, according to your “interpretation”, the Second Amendment would be the only Amendment within the Bill of Rights that would authorize any “regulation” of the people. This is contradictory to the purpose of the Bill of Rights.
First Amendment: The state is forbidden to make a law establishing on official religion or prohibiting freedom of speech.
Third Amendment: The state is forbidden to quarter soldiers in the homes of private citizens.
Fourth Amendment: The state is forbidden to conduct unreasonable searches and seizures.
Fifth Amendment: The state is forbidden to hold someone to answer for a capitol crime without indictment or compel one to be a witness against himself.
Sixth Amendment: The state is forbidden to refuse one accused of a crime from having a trial.
Seventh Amendment: The state is forbidden from refusing the accused of having a jury trial.
Eighth Amendment: The state is forbidden from imposing cruel and unusual punishment.
Ninth and Tenth Amendments: Reserve powers to the states or to the people.
Second Amendment: The state is permitted to restrict the right to keep and bear arms.
That is true but we are talking about “individual rights”. The Tenth Amendment does not create any new “individual rights”. It only states what is not delegated to the Federal government is retained by the states but this does not mean it is a an individual “right”. This is the key distinction. Silence does not create “rights” nor does it reflect an intent or desire of the Framers to create “rights”.
This is partly true. Reading the First, Third, Fourth, and Fifth amendments each prohibits certain conduct with the intention of abating the occurrence of certain conduct. Finally the Framers intended for the states to have the power to regulate the conduct of its citizens.
I think you are missing my point in using the Establishment clause as an example. The point I was making was the necessity of interpretation as opposed to begin a discussion on Establishment Clause jurisprudence. The point I was making in using this example was the amendments do not specifically touch upon particular factual situations and an interpretation is necessary to determine if the amendment(s) us relevant in offering protection for the conduct. My point was to demonstrate how both of us are interpreting the Second Amendment and just because something is not “expressly” mentioned in the amendment does not mean it is protected. An interpretation of the amendment is necessary to ascertain whether or not there is protection.
I have already provided this answer in my post. The Second Amendment, very clearly, protects the states from the federal government. The Second Amendment deals with the states as states and protects them from the Federal government. The Second Amendment states as its purpose the goal of ensuring a free state from an all to powerful central Federal government. To achieve this goal a well regulated militia is necessary and the ability of those in the militia to bear arms is also necessary, once again to the preservation of a free state. So the Second Amendment is protecting the States from the federal government whereas the rest of the Amendments you mention protects the “individual” from the state. This is the important distinction.
No you are not applying my reasoning correctly but twisting my reasoning to reach absurd results. The First Amendment very clearly, by its plain words, protects the individual from state action. The Second Amendment is designed to protect the states from the federal government. The Second Amendment is designed to secure a free state from a tyrannical federal government. Hence, the Second Amendment, by its plain wording, is seeking to protect the free state from a tyrannical power consuming central Federal Government. So you are correct when you say “You don’t think so,” because my reasoning would also say the same thing but for different reason, correct reasons. The First Amendment protects the individual, the Second amendment protects the existence of a free state. This is the difference.
You are making the same argument without replying to my objections. I have noted why this bit of reasoning is flawed before. Just because the people had the ability to bear arms before the existence of the Second Amendment does not mean the Second Amendment is therefore protecting this right. As I noted before by use of analogy, before the First Amendment existed the use of public funds to create Christian private schools was a commonly accepted practice. According to your reasoning, since this practice existed before the First Amendment was framed, then the First Amendment Free Exercise of Religion clause protects this practice.
This is not necessarily true because some of the practices and occurrences that existed before the formation of the U.S. Constitution the Framers did not intend to receive constitutional protection or the Framers intended for the U.S. Constitution to prohibit the practice.
People had the ability to smoke and drink at any age before the formation of the U.S. Constitution and nothing in the U.S. Constitution protects this conduct and therefore, the states may regulate it.
Now the Second Amendment does not expressly protect an individual right to bear arms unrelated to the militia. You just assume it does but the reality of the matter is it may not as a result of its wording, the arrangement of the phrases, and Federalist number 29. All of this leads to the conclusion the Framers did not want to protect an individual right to bear arms unrelated to the militia because if they did then they could have easily said the following, “The right of the people to bear arms, although they do not serve in the militia, shall not be infringed by the state or federal government.”
But this is not what the Second Amendment says. The entire Second Amendment is one long sentence and the right to bear arms appears to be related to serving in a state militia and this is just relying on the Amendment itself. Reading Federalist number 29 only affirms this conclusion. So it does not appear to me the Framers were necessarily seeking to protect an individual right to bear arms unrelated to the militia but qualified this individual right to be in relation to the militia via the Second Amendment. They then left regulation to the states, but denied it to the federal government, just as they left to the states the ability to regulate the use of alcohol and tobacco.
So once again just because it was done before the formation of the U.S. Constitution does not mean it is protected by the U.S. Constitution especially the Framers expressly take it away by some wording in the U.S. Constitution, it is implied to be denied by some reasonable interpretation of the Constitution, or the Framers decided to have the states regulate the conduct by not reserving it for protection by the Constitution.
I am happy you conceded this because it aids my argument in the following way. The formation of militias in the Second Amendment is necessary to the security of a free state. In order for this to have any real substance the people who serve in the militia must be armed because an unarmed militia will do very little in securing a free state. Hence, both are seen as necessities to the end of a free state. This is all the Second Amendment seems to be stating. An armed militia is necessary to the security of a free state so by necessary implication people serving in the state militia must be capable of bearing arms to protect the existence of a free state. Consequently, this does not speak to the issue of whether or not an individual has a right to bear arms unrelated to the militia. The Second Amendment is silent on this issue. The Framer, as I have already argued, is only addressing the necessity of members of the militia belonging to the states to be capale of bearing arms and nothing more.
I never said the Second Amendment “authorizes” anything. Rather I said the Second Amendment would “permit” the states to do something. For example, the Fourth Amendment does not authorize the federal government to make reasonable search and seizures but they are permitted to do so since the Fourth amendment only prohibits unreasonable search and seizure. Any search not precluded by the Fourth Amendment is permitted because the Amendments only operate as mandates on what the state cannot do permitting them to do what is not forbidden by the amendment. Similarly speaking the Second Amendment does not authorize anything but permits some state action by the fact the Second Amendment has not expressly precluded or prohibited this state action.
Are you talking about your own interpretation? You must be because first of all the Framers never intended for amendments 1-8 to be binding against the state government. The Framers construed and intended amendments 1-8 to be restrictions and prohibitions against actions taken by the Federal government only. Consequently, the Amendments did not prohibit the states from regulating people. Hence, my interpretation thus far is consistent with the intention and purpose of the Bill of Rights as envisioned by the Framers.
Now since the U.S. Supreme Court has not incorporated the Second Amendment onto the states, then it only operates as a prohibition against, drum roll please, the Federal government as the first 8 amendments originally did so. Hence, the states may regulate gun ownership and possession because the Second Amendment is not binding on them through the Due Process clause of the 14th amendment.
Next the plain wording of the Second Amendment, along with Federalist number 29, indicates there is no individual right to bear arms unrelated to serving in the militia. Additionally, the plain wording of the Second Amendment is to protect the existence of free states from a tyrannical federal government. The Second Amendment does not protect the individual but the states. So the only interpretation here that is dubious is your own.
The phrase the state is not mentioned at all in any of those amendments. None of the amendments has in it the phrase “the state”. Only one amendment makes reference to a legislature and that is the First Amendment.
The other 6 amendments make no reference to any “State”. The other six amendments do not have the phrase “the state” in them anywhere.
So what doesn’t make sense is your inclusion of the phrase “the state” in those seven amendments when they do not use such language.
Nothing in the Bill of Rights, as originally written, restricted the states in any way. Not at all.
The Bill of Rights were written as a guarantee of protection from the federal government. For well over one hundred years it was generally accepted that nothing in the Bill of Rights protected you from state government’s abridiging your freedom of speech, or assembly, or guaranteed you an attorney, etc. They would protect you from the federal government, but from the state government or local government, the Bill of Rights was just plain not applicable. This was the accepted view since 1803.
It wasn’t until a series of court cases beginning in 1930’s started to hold that certain rights in the Bill of Rights were so “fundamental to ordered liberty” and our “American system of justice” that they were considered to be incorporated into the Due Process clause of the 14th Amendment. Since that time the Supreme Court has found that some, but not all, rights in the Bill of Rights are applicable to the states.
Rights that have been found by the Supreme Court to be “incorporated” and thus applicable to the states:
All of the 1st Amendment protections of religion (1940), speech (1925), press (1931), assembly (1937), petition (1939);
4th Amendment regulation of search and seizure (1949, 1961);
5th Amendment, except for the right to indictment by a grand jury (1964, 1965, 1969);
6th Amendment rights of the accused in a criminal trial (series of cases between 1948-1968);
8th Amendment prohibition against cruel and unusual punishment (1947) and excessive bail (1971).
Rights that have not been expicitly found by the Supreme Court to be incorporated into the Due Process clause of the 14th Amendment, and are thus inapplicable to state governments:
2nd Amendment (series of cases spanning 1875-1982);
3rd Amendment (no SCOTUS case in history, although one case in the 2nd Circuit did find that it was incorporated);
5th Amendment right to a grand jury indictment (1884);
7th Amendment right to a jury trial in civil cases (1916);
8th Amendment prohibition on excessive fines (no case in SCOTUS history).
So, what is the point that you are trying to make? Is it that because the words, “the state” are not mentioned, the state can then infringe on those rights listed in the Bill of Rights?
I was mentioning “the state” for the simple reason that the states are forbidden from infringing on those rights listed in the Bill of Rights. So, silence does say something afterall.
Nor does the Bill of Rights “create” any rights. Those rights existed prior to the Bill of Rights. The Bill of Rights puts infringement of those rights out of the purview of the FedGov.
As for the wording of the Second Amendment, the explicit restriction on the government is, “…the right of the people to keep and bear arms, shall not be infringed.”
“A well regulated militia; being necessary to the security of the free State;” only recognizes state militias.
If the preservation of state militias was the sole intent of the Amendment, there is no reason to mention the peoples “right” to keep and bear arms. All that would be necessary is the mentioning of a state’s right to armed militias. But, this was not done because the people have a right to keep and bear arms. If the people were dependent on state permission to keep and bear arms, then it wouldn’t be a “right”, would it?
I would say the “Equal Protection” clause.
More evidence of the Supreme Court’s willingness to prostitutie itself for what is expenient rather than making a judicious ruling.
The Second Amendment explicitly mentions the right of the people. But the Court “interprets” this as not really meaning what it plainly says. I mean, we can’t allow the people to have the right to protect themselves from criminals that the courts refuse to lock up. Nevermind the innocents that die at the hands of armed criminals.
In today’s society, we now have the crime of “home invasion”, where law-abiding citizens are at the mercy of armed criminal intruders, because “robed dictators” have ruled that it is unlawful for law-abiding citizens to arm themselves for their own protection against the criminal element. What kind of insanity is that? It’s that liberal insanity.
You know what the only crime a gun is responsible for?
It is to make a previously law-abiding citizen a criminal, with the passage of a law that makes it illegal to possess a gun.