View Poll Results: See OP for 2-pat question

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  • The court will hear the case (or one like it)

    11 50.00%
  • The court will NOT hear the case (or one like it)

    1 4.55%
  • The court will incorporate the 2nd against the states

    8 36.36%
  • The court will NOT incorporate the 2nd against the states

    4 18.18%
  • Other

    2 9.09%
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Thread: Will the SCotUS incorporate the 2nd amendement against the states?

  1. #91
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    Re: Will the SCotUS incorporate the 2nd amendement against the states?

    Quote Originally Posted by Smash23 View Post
    UNITED STATES v. MILLER, 307 U.S. 174 (1939)

    In other words, the Court was asserting that the 2nd Amendment must be interpreted to apply only to militias, within the purview of Article 1 Section 8 of the United States Constitution.
    And, since the Amendments supercede the original articles of the Constitution, the Supreme court was wrong. It's not like the Supreme Court hasn't been wrong before.

    The USSC ruled that "separate but equal" was a Constitutionally valid concept. Hmmmm....the USSC ruled that "separate but equal" was not a Constitutionally valid concept.

    Gee. That means the USSC was wrong on one of those rulings. Which do you choose was wrong?

    No matter, Miller was wrong on several counts, not the least of which was the claim that shotguns weren't useful in a military sense, because they were, as the war fought immediately preceeding the Miller decision demonstrated.

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    Re: Will the SCotUS incorporate the 2nd amendement against the states?

    Quote Originally Posted by RightinNYC View Post
    I agree that it's an individual right, but it's an individual right as against the federal government, not the states.
    Did ya ever notice that the states don't have the authority to abridge or even infringe on the rights of the citizens guaranteed by the Constitution?

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    Re: Will the SCotUS incorporate the 2nd amendement against the states?

    Quote Originally Posted by RightinNYC View Post
    I'm not arguing for that conclusion in that post, I'm pointing out what the law is. As it was drafted and as it is currently applied, it applies against the federal government only.



    You said:



    Unless I'm misreading this, you're arguing that the 2nd Amendment is different from other amendments, because the fact that it uses "the people" means that it applies of its own force against the states and not just the federal government. I don't think that's the case, nor do I think anyone's even arguing that.



    And none of them were, until the Court explicitly declared so. That's my point.
    The Bill of Rights specifically applies to "the people", except where "the states" are specifically mentioned, as in the Tenth Amendment.

    Otherwise they don't make any sense.

    Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.
    or the right of the people to assemble shall not be limited by the federal government but each state can put whatever collars they want on the people as they choose.

    That's what you're arguing.

    (But, funny enough, it's not how the amendment is worded)

    A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.
    the right of the people to keep and bear arms shall not be infringed by the federal government, but each state can choose to steal all the guns it wants.

    That's what you're arguing.

    (But, funny enough, it's not how the amendment is worded)

    The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
    The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures by the federal government is inviolate, not to mention the fact that at the time this Amendment is being ratified the federal government is 150 years away from having it's own FBI, but what the heck, we'll let the states do any damn thing their government wants to do to the people.

    That's what you're arguing.

    (But, funny enough, it's not how the amendment is worded)


    No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.
    No person shall be held to answer in a federal court, but the states can do anything they want.


    That's what you're arguing.

    (But, funny enough, it's not how the amendment is worded)

    In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence.
    In all criminal prosecutions in federal court, the accused shall enjoy etc etc, but the state courts can do as their states wish.


    That's what you're arguing.

    (But, funny enough, it's not how the amendment is worded)

    The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.
    The rights of the people are many, but only under federal law, and state law can do as it pleases

    That's what you're arguing.

    (But, funny enough, it's not how the amendment is worded)

    The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.
    OH! LOOK! This amendment lists both STATES and THE PEOPLE at the same time!

    Wonder what that means.

    It means that when the Constitution says "the people", it means "the people", as individuals, and when it says "the states" it means "the states" as in those politically defined geographical locations that are of limited sovereignity and subject to federal law as defined in the Constitution, which grants THE PEOPLE in those states certain absolute freedoms the individual states are not allowed to intrude upon.
    Last edited by Scarecrow Akhbar; 06-07-09 at 02:10 AM.

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    Re: Will the SCotUS incorporate the 2nd amendement against the states?

    Quote Originally Posted by RightinNYC View Post
    Honestly? Policy reasons. The right to be free of handgun bans doesn't carry the same cachet as the right to free speech or the right to practice religion.

    That being said, I have no idea how they will come out.
    It's not a right to be free of gun bans, it's a right to carry guns.

    That supersedes the wishes of the mob intent on destroying that right, and is the right that protects the other rights.

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    Re: Will the SCotUS incorporate the 2nd amendement against the states?

    Quote Originally Posted by Voidwar View Post
    You brought polygamy up here . . .

    And this was my response . . .

    Neither of the citizens you describe are doing anything the government needs to stop or can stop. As I explained, None of the government's business.
    Regulating drugs/offering marriage benefits/tax breaks are not within the scope of the government?

    That's not what the founders thought.

    Quote Originally Posted by Voidwar View Post
    Simply false. Paying the same taxes as anyone else does not prohibit free exercise. It quite simply has nothing to do with religion at all. Taxes are about money for upkeep of the state. Trying to pretend that your religion exempts you from taxes, is simple fraud. Plenty of other religions out there, and their congregations pay taxes and exercise freely so bugger off
    I'm not talking about exemptions from taxes, I'm talking about extra taxes. See the difference?

    You typed it, so its your logic. Or are you trying to strawman me ?
    I'm asking if you support it. Your logic seems to lead to that conclusion. If it doesn't, please explain.

    What about it ? I think the first amendment is pretty clear here. If you pick one religion and waste everyone's time on it, then you are, in that school district, attempting to establish the one you picked as that school district's state religion.
    lol, oh, well so long as you've figured that out for us. What about not teaching it, but merely saying a single prayer? What if it's voluntary? What if it's non denominational? What if it's only at school events?

    Are you starting to see why things might be a little more complex than you thought?

    More specificity would be appreciated here, but my first instinct is, None of government's business.
    You don't just get to replace the constitution with your political views.


    Quote Originally Posted by Scarecrow Akhbar View Post
    Did ya ever notice that the states don't have the authority to abridge or even infringe on the rights of the citizens guaranteed by the Constitution?
    Did you ever notice that there's a difference between an individual right against the fed gov. and an individual right against the state? Guess not.

    Quote Originally Posted by Scarecrow Akhbar View Post
    The Bill of Rights specifically applies to "the people", except where "the states" are specifically mentioned, as in the Tenth Amendment.

    Otherwise they don't make any sense.
    I'm not going to argue with you about this because it's absolutely indisputable by anyone with any knowledge of history or the law that the Bill of Rights did not bind the states in any way.

    Quote Originally Posted by Scarecrow Akhbar View Post
    It's not a right to be free of gun bans, it's a right to carry guns.

    That supersedes the wishes of the mob intent on destroying that right, and is the right that protects the other rights.
    I was explaining a practical reason for why I thought the court might come out that way, not my own beliefs.

    It's possible to understand something and not believe it, believe it or not.
    People sleep peaceably in their beds at night only because rough men stand ready to do violence on their behalf.

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    Re: Will the SCotUS incorporate the 2nd amendement against the states?

    Quote Originally Posted by Harshaw View Post
    OK, fine. However, you use the term contextually as to imply that the language was poorly written, which is was not, or that it wasn't written in plain language, which it was.

    It's general where it needs to be general, because no, they did not seek to anticipate every possible contingency that every might arise.

    But it is NOT written in such a way that the very plain language is up for complete reinterpretation whenever the reader sees fit. Words have meanings. That's the point of writing them down.
    Now you are just putting words in my mouth. I never said nor stipulated that the language of the Framers was poorly written. I said that it was vague, on purpose.
    Complete reinterpretation from what? In order to ‘reinterpret’ anything there has to be a previously held interpretation or at the very least some enduring common law. Original intent constitutes neither of these, so it wouldn’t be considered a reinterpretation, but interpretation.

    No, that is NOT what it says. It says that for a weapon -- not the person, but the weapon -- to be within the scope of the right protected by the Amendment, it (the weapon) must bear a reasonable relationship for use in a militia.

    The Court did not discuss Miller's membership in a militia. If the ruling turned on that, they simply would have dismissed for lack of standing on Miller's part, because he as an individual would have had no claim to the Amendment's protection.

    Instead, they remanded back to the lower court for determination as to whether or not the sawed-off shotgun in question is such a weapon reasonably related to militia use.

    So, Miller turns on the type of weapon, not the individual or collective character of the right. Saying that it says the right is a collective right is simply pulling something out of thin air.

    Thus, it is not "reasoning"; it is simply lying.
    Yes that is what it says. It does say that a weapon cannot be 18 inches or longer in length in order for it to constitute a “reasonable relationship to the preservation or efficiency of a well regulated militia.”
    However, it also says:
    The Constitution as originally adopted granted to the Congress power- 'To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions; To provide for organizing, arming, and disciplining, the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress.' U.S.C.A.Const. art. 1, 8. With obvious purpose to assure the continuation and render possible the effectiveness of such forces the declaration and guarantee of the Second Amendment were made. It must be interpreted and applied with that end in view.
    In other words, the Second Amendment must be viewed through the eyes of Article 1 Section 8, which only discusses the militia. It says that the Second Amendment was made with the purpose of ensuring the effectiveness of the militia.

    And you’ve conveniently ignored the other cases that Stevens cited.

    Because courts find ways to do what they want to do despite any of this. Lately, heck, they've been looking to foreign law when domestic law doesn't give them what they want.

    Like I said, you can quote theory all day long. Judicial practice is something entirely different.
    “There is perhaps a misunderstanding that when you refer to a decision of [foreign courts] that you are using those as binding precedent,” Mrs. Ginsberg said. “Why shouldn’t we look to the wisdom of a judge from abroad with at least as much ease as we would read a law review article from a professor?”
    Mrs. Ginsberg argued the Supreme Court has lost standing in the international community by failing to integrate foreign decisions into its constitutional rulings. The court’s only female jurist noted the Canadian Supreme Court is “probably cited more widely abroad than the U.S. Supreme Court” because “you will not be listened to if you don’t listen to others.”
    “The notion that it is improper to look beyond the borders of the United States in grappling with hard questions has a close kinship to the view of the U.S. Constitution as a document essentially frozen in time as of the date of its ratification,” Mrs. Ginsberg said in a speech four years ago.

    It’s not theory. I’ve given you actual examples of how these restrictions are applied. So please show me how they are not practical and don’t work.

    I didn't say you should read them because they have weight as precedent. I said you should read them because they're excellent sources for understanding the shenanigans majorities can pull to get the ruling they want, despite the "restrictions" which are nominally in place.
    Majorities? Dissents are dissents for a reason, because the dissenter doesn’t hold the majority opinion. Are you saying that because not all judges on a panel agree on a decision, that they must be making stuff up?

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    Arrow Re: Will the SCotUS incorporate the 2nd amendement against the states?

    Quote Originally Posted by RightinNYC View Post
    Regulating drugs/offering marriage benefits/tax breaks are not within the scope of the government?
    What do you think I mean when I say "None of the government's business" ?

    Quote Originally Posted by RightinNYC View Post
    That's not what the founders thought.
    Based on what ? What marriage benefits or drug regulations are in the Constitution and Bill of Rights ?

    Quote Originally Posted by RightinNYC View Post
    I'm not talking about exemptions from taxes,
    Actually, you were, when you mentioned the Amish and Quakers . . .

    Quote Originally Posted by RightinNYC View Post
    How do you define this? What about people who don't believe in Social Security (Amish)? People who don't believe in supporting war with their taxes (quakers)?
    Quote Originally Posted by RightinNYC View Post
    I'm talking about extra taxes. See the difference?
    Why don't you decribe the actual bill you are talking about, and how it would ever get passed into law. Define these "extra taxes" or give me an example in American history.

    Quote Originally Posted by RightinNYC View Post
    I'm asking if you support it.
    I don't think that is what you are doing, but no, I do not.

    Quote Originally Posted by RightinNYC View Post
    Your logic seems to lead to that conclusion. If it doesn't, please explain.
    YOUR logic lead you to extrapolate there. I am not responsible for your "freestylin".

    Quote Originally Posted by RightinNYC View Post
    lol, oh, well so long as you've figured that out for us. What about not teaching it, but merely saying a single prayer?
    That is teaching it.

    Quote Originally Posted by RightinNYC View Post
    What if it's voluntary?
    No-one can stop a kid from closing his eyes and praying before a test, and no one needs any law or policy regarding it.

    Quote Originally Posted by RightinNYC View Post
    What if it's non denominational?
    Then its not hindu, and its certainly not atheistic, and its certainly not Judaic, but most importantly, it is not worth wasting one minute of school time on.

    Quote Originally Posted by RightinNYC View Post
    You don't just get to replace the constitution with your political views.
    I guess I don't get this comment. You asked :

    Quote Originally Posted by RightinNYC View Post
    What about funding for sectarian institutions?
    and I replied :
    Quote Originally Posted by Voidwar View Post
    More specificity would be appreciated here, but my first instinct is, None of government's business.
    Your comment did not provide the specificity I was seeking, and seems to be a non-sequitur. It is not my political views at issue, but the fact that there isn't a word about funding for sectarian institutions in the Constitution or the Bill of Rights. So, the founders delineated the jobs of the government, or its "business", and the funding you mention was not on their list, so, as I stated earlier, it is None of the government's business.

    Quote Originally Posted by RightinNYC View Post
    Did you ever notice that there's a difference between an individual right against the fed gov. and an individual right against the state? Guess not.
    While I realize this was not addressed to me, I would like to point out . . .

    AMENDMENT XIV
    Passed by Congress June 13, 1866. Ratified July 9, 1868.

    Note: Article I, section 2, of the Constitution was modified by section 2 of the 14th amendment.

    Section 1.
    All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
    I'm not certain if you were talking about a point in history prior to the fourteenth, but after it, states are barred from violating any of the same rights the fed is.

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    Re: Will the SCotUS incorporate the 2nd amendement against the states?

    Quote Originally Posted by Scarecrow Akhbar View Post
    And, since the Amendments supercede the original articles of the Constitution, the Supreme court was wrong. It's not like the Supreme Court hasn't been wrong before.

    The USSC ruled that "separate but equal" was a Constitutionally valid concept. Hmmmm....the USSC ruled that "separate but equal" was not a Constitutionally valid concept.

    Gee. That means the USSC was wrong on one of those rulings. Which do you choose was wrong?

    No matter, Miller was wrong on several counts, not the least of which was the claim that shotguns weren't useful in a military sense, because they were, as the war fought immediately preceeding the Miller decision demonstrated.
    Amendments only supersede those parts of the Constitution that they change, if they change part of the original at all. But what does that have to do with anything?
    Please don't comment on a conversation if you haven't read it in its entirety. This is not a discussion about whether or not the Supreme Court was correct in it's decision.

    Of course the Supreme Court can err in its judgment:
    “We are not final because we are infallible, but we are infallible only because
    we are final.”
    -Justice Robert H. Jackson

    The Court did not say that all shotguns in general were not useful in a military sense, just shotguns with a barrel length of 18 inches or longer.

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    Re: Will the SCotUS incorporate the 2nd amendement against the states?

    Quote Originally Posted by Scarecrow Akhbar View Post
    Did ya ever notice that the states don't have the authority to abridge or even infringe on the rights of the citizens guaranteed by the Constitution?
    But the second amendment has not currently been incorporated, which means it does not currently apply to the states (except for in the 9th circuit). The Bill of Rights did not originally apply to the states, just the federal government. Which is why most of those 10 amendments have been incorporated. The 2nd amendment probably will be incorporated, but it does not currently apply to the states (with the exception I already mentioned).

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    Re: Will the SCotUS incorporate the 2nd amendement against the states?

    Quote Originally Posted by Voidwar View Post
    I'm not certain if you were talking about a point in history prior to the fourteenth, but after it, states are barred from violating any of the same rights the fed is.
    That is not necessarily so.

    There are privileges and immunities that neither state nor federal government may touch. However, there are impedances upon federal power that do not apply to state power.

    Your argument would equate federal and state power, and that is not the case, neither before nor after the passage of the Fourteenth Amendment.

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