Bill of Rights Originalist?

[Chromedhearts]

I've recently heard argued that the Bill of Rights, including the 2nd Amendment that we hold in such high regard, applies only to the Federal Government. That it is only a limitation on Federal Authority, and powers not delegated to the Feds remain with the States. Specific arguments were about the:
5th Amendment, concerning the taking of property for public use.
2nd Amendment, concerning State Reciprocity on CCW permits.
My questions are, shouldn't the same standard be applied to the entire Constitution? If thats the position these people take, then can Texas, ban privatly owned newspapers,hmmm, or how 'bout New York establishing an official Religion? How 'bout we in Alabama not recognizing the 4th Amendment.
So should the U.S Constitution apply to the States as well or not?
I'd like to see some civil discourse about this, I'd like to have a solid base for my arguments that the 2nd Amendment should be recognized nation wide.
Thanks

 

[Dennis The B]

There are those who've argued that state laws do trump the U.S. Constitution in some areas.

In the case of the First Amendment, in theory, a state could establish an official religion for that state. The language in the First Amendment clearly states that "Congress shall pass no law...". However, the reality is that Congress holds purse strings, and they're not hesitant in using them to keep religion out of the affairs of the several states. Remember also, that an Alabama judge was removed from office for having the Ten Commandments posted. Now, a state-elected judge is very far removed from the Federal judiciary. How he was removed is still beyond my understanding.

The Second and Fourth Amendments are very clear in that they refer to "the people". That's very powerful language, and it's been held in the courts, that especially the Fourth Amendment, is very much an individual right. Courts have broadened its meaning to the term privacy, so they could keep abortion legal.

In the original arguments for the Bill of Rights, it was argued that an enumeration of rights might well be a limiter of individual rights. However, the Ninth Amendment does act as a catch all for other non-enumerated rights.

There was also the argument that the several states' constitutions protected individual rights in greater detail than did the original unamended U.S. Constititution.

The passage (allegedly) of the Fourteenth Amendment overshadows a great deal of the literal language of the Bill of Rights, and Federal courts are very liberal in its interpretation and support of Federal power.

 

[The Rabbi]

Yes the BoR only applied to the Federal gov't when it was adopted. Many state governments had constitutions that guaranteed the same, or similar rights. So TN has a right to keep and bear arms provision, as does California.
But the court ruled on the principle of incorporation for many of the amendments, so the original argument is moot (yes the constitution evolves). Whether that incorporation includes the 2A is the subject of hot debate and will be decided in the next 5 years probably.
But gun rights won't come from the supreme court. They will come from the legislatures, and especially the state legislatures.

 

[HKSmith]

There are those who've argued that state laws do trump the U.S. Constitution in some areas.

In the case of the First Amendment, in theory, a state could establish an official religion for that state. The language in the First Amendment clearly states that "Congress shall pass no law...". However, the reality is that Congress holds purse strings, and they're not hesitant in using them to keep religion out of the affairs of the several states. Remember also, that an Alabama judge was removed from office for having the Ten Commandments posted. Now, a state-elected judge is very far removed from the Federal judiciary. How he was removed is still beyond my understanding.

The Second and Fourth Amendments are very clear in that they refer to "the people". That's very powerful language, and it's been held in the courts, that especially the Fourth Amendment, is very much an individual right. Courts have broadened its meaning to the term privacy, so they could keep abortion legal.

In the original arguments for the Bill of Rights, it was argued that an enumeration of rights might well be a limiter of individual rights. However, the Ninth Amendment does act as a catch all for other non-enumerated rights.

There was also the argument that the several states' constitutions protected individual rights in greater detail than did the original unamended U.S. Constititution.

The passage (allegedly) of the Fourteenth Amendment overshadows a great deal of the literal language of the Bill of Rights, and Federal courts are very liberal in its interpretation and support of Federal power.

Actually, the interpretation of the Constitution to include a right to privacy predates the abortion debate by 8 years. It was first used in the 1965 decision of Griswold vs. Connecticut, in which the states 1879 law banning the sale or distribution of birth control devices was overthrown. The decision was 7-2 and cited parts of the BOR and the 14th amendment. This was used as precedent in the 1973 Roe vs. Wade decision.

 

[bk43]

I've recently heard argued that the Bill of Rights, including the 2nd Amendment that we hold in such high regard, applies only to the Federal Government. That it is only a limitation on Federal Authority, and powers not delegated to the Feds remain with the States.

The 14th Amendment says "No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States;....". Ratified in 1868.

The "powers remaining with the States" has been increasingly weakened several times by the courts. Since Congress has remained silent, power has shifted to the Federal Government that the Founding Fathers never envisioned it should have. The first case was Wickard v Filburn, Supreme Court 1942.

Bob

 

[LoboGunLeather]

During the Reconstruction period, following the US Civil War, several states actively engaged in legislating against civil liberties for "freedmen" (those citizens recently emancipated from slavery). Several laws were enacted denying freedmen the commonly accepted civil liberties, particularly the right to keep and bear arms.

The 14th Amendment to the US Constitution was passed with the specific intent of prohibiting any state from enacting or enforcing any legislation which denied any citizen those liberties enumerated in the US Constitution and Bill of Rights. Historical records of the proceedings exist, including compelling arguments in favor of the rights of citizens to self-defense and possession of firearms for that purpose.

The historical record of the 14th Amendment contains much information of interest to those who would preserve and protect the 2nd Amendment.

 

[Dennis The B]

During the Reconstruction period, following the US Civil War, several states actively engaged in legislating against civil liberties for "freedmen" (those citizens recently emancipated from slavery). Several laws were enacted denying freedmen the commonly accepted civil liberties, particularly the right to keep and bear arms.

The 14th Amendment to the US Constitution was passed with the specific intent of prohibiting any state from enacting or enforcing any legislation which denied any citizen those liberties enumerated in the US Constitution and Bill of Rights. Historical records of the proceedings exist, including compelling arguments in favor of the rights of citizens to self-defense and possession of firearms for that purpose.

The historical record of the 14th Amendment contains much information of interest to those who would preserve and protect the 2nd Amendment.

There's also an interesting take on the ratification process of the Fourteenth Amendment.

In his book, "A Politically Incorrect Guide to American History", Thomas E. Woods, Jr., Ph.D., demonstrates that the Fourteenth Amendment may not have been ratified properly.

The Congress accepted the Southern states' ratification of the Thirteenth Amendment, abolishing slavery. However, when Section 2 of the amendment was objected to by the Southern states, the Congress suddenly found that their legislatures were not legal, and that those states needed to reapply for admission to the union.

Further, the Northern states-dominated Congress required that Southern states accept the Fourteenth Amendment as a requisite for re-admission.

Now, the question becomes, how does a state without a recognized legislature, approve an amendment to the U.S. Constitution?

 

[Pisgah]

Yes, the debate over the BoR and whether it applies to the states was pretty much quashed with the 14th Amendment. And, yes, there was tricky manuevering to get it ratified. However, as skullduggerous as those proceedings were, they have all long since been affirmed; thus they were legal, if darned underhanded.

 

[willy]

What are you all talking about ?
RIGHTS??
What are these things you refer to as RIGHTS?
They are privileges granted by our government.
It doesn't matter if they come from the Federal or State government.
They can be taken away legally whenever a court decides to.