Re: OT: 2nd Amendment case


"Hawke" <desmithers@xxxxxxxxxxxxxx> wrote in message
news:13u9chc5lsq2ib5@xxxxxxxxxxxxxxxxxxxxx

I don't want to keep playing this tune, but this is part of why I
commented
on your time travel abilities. d8-) You're saying, I believe, that the
supremacy of the federal government wasn't recognized, that it was always
there but it wasn't acknowledged.

Yep, that's about the size of it. The federal government was going to go
the
way Hamilton and his supporters always wanted it to. It was only a matter
of
time before it went that way due to the way the constitution was written
and
the way it organized the government. Once the constitution was adopted it
was a fait acompli that the federal government would take over from the
states. The states have been resisting ever since but we all know how this
turns out.

This is not true, and the historical record makes it clear. You keep making
these assertions off the top of your head, Hawke, with no documentation to
support them. That's no way to make an argument, and I find it tiresome to
have to keep going to the record to correct what you're saying, but I'll do
it one more time.

The issue of whether the Amendments should impose restrictions on the states
was taken up in the debates, but the final decision was that the federal
("general") government would not attempt to do so. The record is sketchy
because the debates were indifferently recorded, but we have this exchange
on the books:

===========================================
Article I, Section 10 between the first and second paragraph, insert 'No
state shall infringe the equal rights of conscience, nor the freedom of
speech or of the press, nor of the right of trial by jury in criminal
cases.'

Mr. TUCKER [South Carolina] this is offered, I presume, as an amendment to
the constitution of the United States, but it goes only to the alteration of
constitutions of particular states. It will be much better, I apprehend, to
leave the state governments to themselves, and not to interfere with them
more than we already do; and that is thought by many to be rather too much.
I therefore move, Sir, to strike out these words.

Mr. MADISON [Virginia] conceives this to be the most valuable amendment in
the whole list. If there were any reason to restrain the government of the
United States from infringing upon these essential rights, it was equally
necessary that they should be secured against the state governments. He
thought that if they provided against one, it was as necessary to provide
against the other, and it was satisfied that it would be equally grateful to
the people.

===========================================

From here, the record is unclear -- Madison's suggestion was voted to be
kept, but then it was later rejected, because we know how it came out. The
references to what states may not do was struck out. That's what was passed,
and what was generally understood, as the Supreme Court said a few decades
later, to be the relationship between the federal government and the states.
The states, said Chief Justice Marshall, had not voted to restrict their own
authority. In fact, Congress had not suggested that they do so in the
proposed Amendments.

So the federalists lost this point, and the federal government's powers were
circumscribed. It took a civil war to change this position. If you have
something that contradicts the substance of this, please let us know.

There are two things going on here that are making this unnecessarily
complicated, Hawke. First, you're projecting backwards to what people
thought at the time the Constitution was written, but, as the record shows,
you keep getting that wrong. Second, you're making historicist assumptions
about what was coming, playing Monday-morning quarterback.

*Events* precipitated changes, and the federal government started assuming
greater powers after the middle of the 19th century. But the issue here is
original understanding, the basis on which the 2nd Amendment had meaning and
how it was understood. What people understood in the late 19th or 20th
centuries has no bearing on that question. What matters is what people
thought they were doing in 1791. Thanks to much improved scholarship on the
issue over the past three decades, we have a pretty clear idea of what that
was. And it included the idea that the federal government could not
interfere with the states in regard to the Bill of Rights. Those were
restrictions on the federal government, not on the states.

Even without the ability to travel in
time, we can read the contemporaneous accounts and see that the federal
supremacy idea, promoted by Hamilton and the hard-core federalists, was
soundly rejected.

By some. Others thought just like him. Some even wanted a king instead of
a
president. They would be happy with the guy we have now, I think.

But those ideas were struck down or voted out. There were many ideas
proposed at the conventions, and in the press, that turned out to be
minority positions and they were rejected. That's what democracy is all
about.


The people didn't even think of themselves as Americans
for quite a while after the Constitution was signed. They were
Virginians,
or South Carolinians, or New Yorkers. The idea of being an "American"
grew
with time. The Civil War provoked a crisis in the way people conceived
their
nationality, and it really marked the final turning point in this
conversion.

True, but the people were illiterate and ignorant at the time and they are
always behind the curve anyway.

That doesn't matter. They had the final say, by voting their representatives
in or out, based on what they (the people) wanted done.


And the whole background and history of the Bill of Rights is based on
the
anti-federalists' demands for some guarantees that there were rights
reserved "to the states respectively, or to the people," with which the
federal government would not interfere. The federal government as it was
conceived had strictly limited powers, and only those expressly granted
to
it. As the majority said in Barron (and those Justices were alive at the
time the Constitution was ratified), it is absurd to think that the
states
were ratifying a set of restrictions on their own authority when they
ratified the Bill of Rights. The BoR was all about limiting the *federal*
government. That's what the states demanded as a condition for ratifying
the
Constitution, and what they thought they were getting. That's what they
*did* get, as Barron affirmed.

The problem is that the people at the time didn't know what they had
gotten
themselves into. They thought they had bought some kind of super Articles
of
Confederation but in reality they got one of the most powerful central
governments in the world. Another good example of buying a pig in a poke
and
not seeing the handwriting on the wall, to mix metaphors.

You're time-traveling again, and not very accurately. It's clear that the
propositions for federal supremacy over the states were soundly rejected.
That, in fact, is what the 9th and 10th Amendments were about.



There still is controversy about what was really intended with the 14th,
just as there has been with the 2nd, but the history of incorporation has
been a slow, step-by-step process of extending those rights directly from
the federal government to the people, over the heads of the states. As
you
say, the process is nearly complete. But not quite. In each case, it is
not
law until a definitive Supreme Court case declares that it is. The
process
on the 1st Amendment took most of a century, and several steps, before it
was complete.

That's what happens when you have resistance along the way. It's in the
cards and has been from the beginning how this thing is going to end. Most
didn't see it coming. I did.

When did you see it? In 1791, or are you not quite that old? <g>

Hawke, you're now sounding pretty idiotic. You ought to edit these postings
a bit before you commit yourself to permanent clownhood.

That's my case. I saw that the country was
headed where we are now from the seeds that were planted early in our
history.

You should have told Jefferson and Madison. They would have appreciated your
advice. d8-)

I see what direction the 2nd amendment is going too. I mean you
really have to want to see there is only a right to militias and not to
people to argue the case DC has done. I still say any objective reading of
the amendment is not hard to understand for an average person and I think
that's what the founders thought too when they wrote it. They would be
shocked to hear the argument the DC lawyers were making. They'd wonder how
anyone could be so stupid.

They might as well wonder how they could have been so stupid as to write it
as a nominative absolute sentence, which was known at the time, as it is
known now, to have explicit meaning only in context. What they forgot is
that they had the context in their heads and never put it on paper, leaving
us to paw through antique documents to try to figure out how to interpret
what they said.

As I said to Doug, you can't figure out a nominative absolute unless you
know the context. It's only recently that we've had a good idea of the real
context. The stuff you're suggesting was nothing but myths and legands, most
of it created in recent times by partisans whose idea of history was
something created in their imaginations, and which is pretty well
represented by your lack of knowledge about the actual history of the Bill
of Rights.


One of the odd things about the Emerson case (5th Circuit Court of
Appeals,
US v Emerson; the first case in modern times that declared the 2nd
Amendment
was about an individual right) is that it appears to have simultaneously
declared the right and incorporated it. It's a little ambiguous, because
it's a Circuit Court and not the Supreme Court, but it was deciding about
a
state law at the time. If that case had been heard on appeal, I think the
S.C. Justices would have raised hell over that point. Since the 5th
Circuit
had 100% of its appealed cases overturned that year or the next, there's
good reason to believe they wouldn't have gotten away with it. d8-) But
nobody appealed.

Again, I have said that this position is the correct one. The 5th circuit
had it right.

I seriously doubt if you've ever read the opinion, or that you have any idea
what you're talking about. It runs to around 105 pages.

But previously no one thought the 2nd amendment didn't apply
to them specifically. When the country was less populated local
governments
wouldn't believe they had a right to take people's weapons from them. It
was
kind of like the idea of taking a man's horse in the wild west days. You
just didn't do that. You didn't take a man's guns either unless he did
something massively wrong. With values like that no government would try
to
disarm Americans, plus they believed the 2nd amendment said what I say it
does. But in the modern world lots of urban folks have the belief that
Americans in cities shouldn't be allowed to have guns at all. When these
folks get power they try to implement their preferences. That is what DC
did. It's a disgrace that we are even arguing this case because it should
be
treated like any frivilous suit. The point being any idiot knows what the
amendment means. Nowadays that isn't the case, which shows our
deterioration
as a country.

And there are plenty of idiots to give us their opinions. Very few people
who get excercised over this Amendment have ever made a real effort to
understand the history of it, what level of government it applied to, or why
it was worded the way it was. In other words, like you, it's all a product
of their imaginations, aided years of watching TV versions of The Battle of
Trenton and Davy Crockett. Most people probably think that George Washington
was at the Alamo.


It's possible that the Court will decide for an individual right and then
declare it incorporated at the same time, but it doesn't seem likely. It
would violate at least two long-standing principles of Supreme Court
jurisprudence if they did, and they aren't likely to open themselves up
that
obviously to claims of judicial activism. That's especially true because
the
Heller case does not require that they make that declaration. But they'll
certainly be receptive to a case that would require a decision on
incorporation, and they'll probably have no trouble deciding in its favor
if
they're presented with an appropriate case.

You saw in the Gore case that the court isn't afraid to jump in and be
activist if they think it's necessary. They should do that here and end
the
debate once and for all. But as I said they are going to be more concerned
with the fallout from making such a decision than they are about what is
legally correct. They know that my view is logically right and it's
constitutionally right too but that doesn't hold much water with them.

Perhaps they'll ask you for your advice and clear this whole thing up.

What
matters to them is how is it going to play in Peoria. If they make a bold
decision and it nullifies a lot of gun laws and makes it legal for us to
own
just about any weapon that is going to stop them in their tracks. That's
why
I expect some sort of halfway measure. They will recognize the right but
in
a way that it still gives the local governments nearly the same power over
us that they have now. I wish I was wrong about this but as I have told
you
before, I'm usually right about these things (for some reason you never
believe me).

That's partly because you keep changing your positions as it's demonstrated
to you how foolish they are. d8-)

If it turns out different you have my permission to nail me for
being wrong. But I'll think my chances of being right are pretty high.


Thanks for your permission. Does this apply to your earlier statements as
well, in which you said they wouldn't find for an individual right at all?

--

Ed Huntress


.

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