[Luca Rescigno]

Originally Posted by Kerrigan 

How is the ban of TEC-9s or Uzis a racial policy?

I don't really know. Seems fishy to make that assertion. IMO, it's only incidentally a racial policy. The assault weapons ban laid out a set of (reasonably) specific characteristics for weapons to be classified as assault weapons. It was put in place probably to combat gang violence - just look at the year it was passed, 1994. The fact that gangs have a disproportionate number of blacks relative to the overall population is incidental.

It was pretty easy to get around the AWB anyway, though. Just remove threading or bayonet mounts from the barrel and many weapons would no longer be considered assault weapons.

If you want to see a racist policy, look at the sentencing guidelines for powder vs. crack cocaine possession. That was a big news item a few months ago. They're equally destructive drugs, but one is a "white man's drug," while the other is more common among blacks. And there was a HUGE disparity in sentencing - as in the same sentence being handed down for possession of 100x more powder cocaine vs. crack. I don't know if the drugs are equal in potency so if crack is more powerful per gram, then perhaps some difference is justified. But that was the real racist policy. Banning assault weapons pretty much equally affects everyone, and the only people it "discriminates against" are gang members and citizens who want to own one of these weapons.

[vmarks]

Originally Posted by Kerrigan 

How is the ban of TEC-9s or Uzis a racial policy?

neither of these weapons have ever been inexpensive 'saturday night specials' as far as I know.

EDIT: see Luca's answer above.

Of course, it's not the government's business to determine how much firepower I can or cannot have - it's my right.

[paul w]

Not wanting to impose conditions and regulations on something as dangerous as firearms has always struck me as absurd. We don't live in the 18th century anymore, the context is completely different.

And I'm not even against gun ownership in principle.

[vmarks]

Well, are individuals free to make judgements for themselves, or do we all look to a nanny state to tell us what's best for us? Freedom has risks, but the value of freedom outweighs the danger of the risk.

[Luca Rescigno]

Yeah, vmarks, that's another thing. I'm against many gun control laws, but not all of them. I mean, there are plenty of laws that quite obviously infringe on our freedom of speech. The old "fire in a crowded theater" example comes to mind. You don't have absolutely unlimited license to say and express everything you want - there are conditions.

I don't see how the 2nd Amendment is different from the 1st in this regard. Yes, you can own weapons. But where do you draw the line? It's been drawn pretty clearly in the case of the 1st Amendment, and it didn't take an extra amendment to do it.

There is always the "slippery slope" argument as well. Take away one freedom, and they'll try to take another, and another, and it'll never end. That's currently happening with the 4th Amendment with the warrantless wiretapping issue, but the slippery slope can go either way. You can give too much freedom of speech and allow people to incite riots and cause general chaos and panic. You can take too much away and lead to a system of thought police. Same goes with guns. Too little freedom and you're giving the advantage to criminals, too much and you suddenly make it easy for anyone to obtain incredibly destructive weapons.

[OreoCookie]

Originally Posted by vmarks 

There is no express right to drive (although there is a discerned right of freedom to travel, which is discovered from the First Amendment's freedom of association. You can't assemble to petition government if you can't travel to assemble.)

You've quoted my reply yourself: cars are a very important mode of transportation these days. Although not expressly stated in the Constitution, your right to go by car may not be infringed upon because the government feels like grounding you on Mondays. Putting arbitrary limits on the ability to travel from A to B by car is a way to violate your First Amendment rights. The states may suspend or revoke your license based on your behavior just like you may be forbidden to own a gun after committing a felony, for example. You have to be responsible while driving (which includes proper maintenance). And you have to have certain training to drive a car by yourself.

I think this perfectly parallels with responsible ownership of arms.

Originally Posted by vmarks 

There is no express right to handle explosives (unless you want to consider them arms, in which case, there is.)

Explosives are arguably weapons, arms, if you will (of course, there are civil uses as well). Why don't they fall under the same category as guns? Why do you need a license to handle most kinds of explosives? Exactly, it's arbitrary where you draw the line between `admissible arms' and arms that `the public shouldn't have'.

As you can see, there are already restrictions in place what arms/weapons you can (i) purchase and (ii) carry with or (iii) carry without a license. AFAIK private citizens may not own automatic weapons and weapons of certain caliber. They may not drive tanks or handle explosives (unless they have a proper license, of course).

How do you reconcile this simple fact with your attitude towards gun registration/licensing?

Originally Posted by vmarks 

I just posted how these policies stem from racist policies preceding and following the Civil War.

That doesn't make these kinds of law tinted, because African Americans were once singled out. These laws were unconstitutional and immoral, because they have selectively applied to a group on people based on the skin color.

Originally Posted by vmarks 

Currently, and unconstitutionally I believe, registration is left to the states.

Alright, so I take it you're against gun registration.

Originally Posted by vmarks 

What I think is that registration is unnecessary, and presents huge problems when exercising two Constitutional rights at the same time - carrying a firearm and traveling across state lines. This is a problem that hasn't been properly addressed and resolved. States that I may travel through will recognize my state's laws on driver training/licensing, my state's practices for ID card issuance, my state's policy on licensing my marriage - but they will not accept my state's policy on firearm ownership, a Constitutional right.

That one is quite easy: the law of the country/state you're in applies. If your state does not recognize same-sex couples that have been legally married in California, for example, too bad. You have to abide by the local laws, including laws concerning guns. I don't see any open issues here. (I'm talking about valid local laws, of course.)

[OreoCookie]

Originally Posted by Luca Rescigno 

I mean, there are plenty of laws that quite obviously infringe on our freedom of speech. The old "fire in a crowded theater" example comes to mind. You don't have absolutely unlimited license to say and express everything you want - there are conditions.

This is illegal, because you are endangering others and you have to use your rights responsibly, i. e. you're responsible for the consequences as well. Using your rights to harm others is illegal, because you're infringing someone else's rights.

Originally Posted by Luca Rescigno 

I don't see how the 2nd Amendment is different from the 1st in this regard. Yes, you can own weapons. But where do you draw the line? It's been drawn pretty clearly in the case of the 1st Amendment, and it didn't take an extra amendment to do it.

IMO it's the same as above: you need to take responsibility for your actions. And if you endanger others, because you don't store certain weapons properly (explosives, for example), the state may limit one right in favor of another (here: the Right to Bear Arms vs. the well-being of someone else).

Originally Posted by Luca Rescigno 

There is always the "slippery slope" argument as well. Take away one freedom, and they'll try to take another, and another, and it'll never end.

It's not just about slippery slope, it's also balancing one freedom for another. E. g. are you allowed to shoot down a passenger jet hurling towards a building or a nuclear power plant (taking a few hundred lives in favor of a thousand = infringing upon the rights of the people in the plane or the ones outside)? Where you put the balance is the difficult question.

[vmarks]

As I say, expect to see more lawsuits, which will determine what sorts of registration and prohibition laws will stand, and which will be unconstitutional.

I don't expect the court to make a decisive ruling in any event. I expect them to make a ruling which on its face seems declarative, but leaves backdoors open as this ruling did.

The court makes mistakes. Sometimes it even has the opportunity to correct its mistakes, as it (mostly) has done here.

[OreoCookie]

I want to know your opinion and not what you expect will happen (because I agree with the latter). Specifically, how do you reconcile existing limits on possession of weapons/arms (see list above, feel free to add other examples from this thread), including mandatory licenses for some, with your statement that the state cannot and should not infringe upon the Right to Bear Arms?

Do you think that there are no limits to the right to bear arms? What about the case when your Second Amendment rights collide with rights of other people?

[vmarks]

Your second amendment rights do not collide with the rights of other people. Your actions while exercising those rights may, and you are responsible for the consequences of those actions.

Existing limits which I believe are unconstitutional should be repealed. I imagine you would say the same for any law which you believed to be unconstitutional.

If the state or federal government was authorized to infringe upon the right, then the amendment would not say "shall not be infringed." If you wish for laws that do infringe on the right, then you need to amend the Constitution in order to allow for that infringement.

[OreoCookie]

Originally Posted by vmarks 

Your second amendment rights do not collide with the rights of other people. Your actions while exercising those rights may, and you are responsible for the consequences of those actions.

Of course they do, I've given you several examples when they do.
E. g. it doesn't matter if somebody in the theater got hurt after you've yelled fire, but the damage of health and property would make it worse.

[vmarks]

Originally Posted by OreoCookie 

Of course they do, I've given you several examples when they do.
E. g. it doesn't matter if somebody in the theater got hurt after you've yelled fire, but the damage of health and property would make it worse.

No, you didn't exactly.

You gave me examples where there are bad, regrettable results from the exercise of free speech, and my answer is, people are responsible for the consequences of their actions. Yell fire in a theater. Do it. Freely. But know that if someone gets hurt, you're responsible, and will be held responsible.

Shoot down the plane to prevent greater deaths on the ground - and expect to be made to answer it.

You have to have the freedom to make bad decisions. You have to be held responsible for the results of those bad decisions. Prior restraint has been rejected. Hold a person responsible when there's a victim.

[OreoCookie]

I've given you the example of explosives and other weapons that are illegal for civillians to own.

And you're not just responsible if you're in the theater, yell fire and nobody gets hurt, you are also accountable if nothing happens (you've endangered other people). A victim or a tragedy isn't necessary for you to be legally held accountable for negligence or so.

[vmarks]

Originally Posted by OreoCookie 

I've given you the example of explosives and other weapons that are illegal for civillians to own.

And you're not just responsible if you're in the theater, yell fire and nobody gets hurt, you are also accountable if nothing happens (you've endangered other people). A victim or a tragedy isn't necessary for you to be legally held accountable for negligence or so.

So you're in favor of prosecuting people where there is no victim?

[BRussell]

Originally Posted by vmarks 

So you're in favor of prosecuting people where there is no victim?

Well what if you try to shoot and kill someone, but you miss?

[OreoCookie]

Originally Posted by vmarks 

So you're in favor of prosecuting people where there is no victim?

It's done all the time and is nothing out of the ordinary.
When you run a red light and nobody gets hurt, you're still responsible. Even if you don't run anyone over, you'll still be held accountable.
When you endanger people by (gross) negligence (say you own a factory and don't comply with certain safety precautions), you can be held accountable even if nobody gets hurt. Firing bullets straight up is AFAIK illegal in most states. Even if nobody gets hit or hurt.

This is normal and common sense. You should avoid behavior that even potentially puts other people and their liberties at risk.

[paul w]

Originally Posted by vmarks 

Well, are individuals free to make judgements for themselves, or do we all look to a nanny state to tell us what's best for us? Freedom has risks, but the value of freedom outweighs the danger of the risk.

Then why do we need police, courts, laws etc?

[subego]

Originally Posted by paul w 

Then why do we need police, courts, laws etc?

To pick up the pieces afterwards.

[finboy]

Originally Posted by OreoCookie 

IMO the Second Amendment has become historically moot, it made sense at the time.

I agree. The First Amendment has probably outlived its usefulness as well. And then maybe #4 and #5, they're too restrictive on govt. operations. Too expensive, let's just knock them out too. I mean, they made sense at the time, but anyone can see that they're just not relevant anymore.

[subego]

Originally Posted by OreoCookie 

E. g. it doesn't matter if somebody in the theater got hurt after you've yelled fire, but the damage of health and property would make it worse.

I'm not sure I follow your analogy. Who's disputing you should be penalized for improper use of arms? This isn't even a constitutional question, the amendment doesn't address use at all.

How does possessing a weapon (which is what the amendment covers) infringe on someone else's rights?

Don't you have to do something with the weapon to infringe?

Are you infringing on peoples' rights by the act of yelling "fire" or by your possession of the ability to do so?

[subego]

Originally Posted by OreoCookie 

IMO the Second Amendment has become historically moot, it made sense at the time.

If I am to believe your claims of the numerous mechanisms by which the amendment can be constrained, it sounds to me like it was moot before the ink touched the page.

[subego]

Pseudo-random thought:

I could see a plausible argument being made that some arms' likelihood of causing "collateral damage" is high enough to call into question whether their lawful use would be infringing upon the rights of others.

[stupendousman]

Originally Posted by subego 

Pseudo-random thought:

I could see a plausible argument being made that some arms' likelihood of causing "collateral damage" is high enough to call into question whether their lawful use would be infringing upon the rights of others.

I'm pro gun rights and I agree with this logic. It's no different than the "yelling fire" standard. Right now, you can still get things like explosives and automatic weapons, you just have to jump through a few hoops to show that you know what you are doing (to reduce any "collateral damage") and will not be using the arms for illegal means. That doesn't seem to be an unrealistic standard that both respects the 2nd amendment for intent, and ensures that communities are safe from misuse of ultra-dangerous arms.

[Luca Rescigno]

Originally Posted by stupendousman 

I'm pro gun rights and I agree with this logic. It's no different than the "yelling fire" standard. Right now, you can still get things like explosives and automatic weapons, you just have to jump through a few hoops to show that you know what you are doing (to reduce any "collateral damage") and will not be using the arms for illegal means. That doesn't seem to be an unrealistic standard that both respects the 2nd amendment for intent, and ensures that communities are safe from misuse of ultra-dangerous arms.

Very, very good point. You nailed the analogy there.

And I'd say our current licensing/permit system for people to obtain restricted weapons works pretty damn well. There have been almost no murders committed with legally owned fully automatic weapons. It's almost always someone using them illegally, either stolen or purchased on the black market.

But if you allowed just any old idiot to go buy a fully automatic weapon, I think you'd see a rise in accidental injuries and deaths. It's hard enough to handle a normal gun. They're things to be treated with respect and fear. Now imagine some random guy with little firearms training getting his hands on a submachine gun or (god forbid) an automatic rifle. Someone like that would be more likely to hit innocent bystanders or himself rather than his target if he was faced with a dangerous situation and panicked. So it's a case of public safety just as the prohibition of inciting a panic or a riot is.

I think the dissenting justices basically used that interpretation when they cast their opinions as well. They just took it to a much greater level and said that the mere presence of guns in someone's home is a safety hazard because they could be stolen and used for crimes, unless those guns were disassembled and locked up.

[subego]

Originally Posted by BRussell 

I'm just pointing out that legislating from the bench and judicial activism are concepts that, though allegedly central to conservative judicial philosophy, are in actuality just names that people use to complain about decisions they don't like.

I almost let this slide by because it's correct in a tautological sense (I am against judicial activism therefore I do not like judicially active decisions) but there are certainly decisions made by the SC where I like the result, but I still have to be against the decision due to me being against judicial activism.

The reason being against judicial activism trumps all is that judicially active decisions weaken the entire system.

Whatever I gain in having the result I like is lost twice over by the heretofore nonexistent holes in the system opened up by the decision.

What if that hole is later used to cause a result I don't like?

[Shaddim]

Originally Posted by subego 

Pseudo-random thought:

I could see a plausible argument being made that some arms' likelihood of causing "collateral damage" is high enough to call into question whether their lawful use would be infringing upon the rights of others.

A shotgun is more likely to cause that type of damage, but few have mentioned wanting to ban those.

[subego]

Originally Posted by Shaddim 

A shotgun is more likely to cause that type of damage, but few have mentioned wanting to ban those.

Depends on the circumstances. A shotgun won't overpenetrate like a rifle will, or like a light, high-velocity pistol round. Shotguns are often cited as the ideal home-defense weapon precisely because of how they minimize collateral damage in that situation.

Either way, I'd say that all three are well below the threshold.

Now with an automatic weapon, the entire purpose behind using it on full-auto (i.e. it's lawful purpose) is indiscriminate fire, you are by definition not caring about collateral damage.

I think a similar argument can be made for high-explosives.

[Luca Rescigno]

The other thing with explosives is that merely owning them and storing them in your house puts everyone living around you at risk if something goes wrong.

[subego]

Depends on the explosive. Some are very stable and will only detonate under a precise set of circumstances.

Bigger explosion, but far less likely to go than the can of gasoline Cletus has in the barn.

Or the candles that the Missus seems to love for that matter. At least I wouldn't leave C4 burning on the back of the toilet.

[stupendousman]

Originally Posted by subego 

Depends on the explosive. Some are very stable and will only detonate under a precise set of circumstances.

True, but I think it's within the rights of the government to ensure that the person possessing the explosives know those precise set of circumstances and are responsible enough to ensure the precautions needed are implemented.

[subego]

Originally Posted by stupendousman 

True, but I think it's within the rights of the government to ensure that the person possessing the explosives know those precise set of circumstances and are responsible enough to ensure the precautions needed where implemented.

Of course.

I don't even think you even have to get to that point to justify it.

If it's to be used as a weapon (which it must be if you're seeking 2nd Amendment protections to possess it) explosives are the type of weapon that their lawful use as such involves a lack of discrimination over whom it affects.

[OreoCookie]

Originally Posted by subego 

How does possessing a weapon (which is what the amendment covers) infringe on someone else's rights?

You've answered the question yourself:

Originally Posted by subego 

I could see a plausible argument being made that some arms' likelihood of causing "collateral damage" is high enough to call into question whether their lawful use would be infringing upon the rights of others.

You don't have to do anything with the weapons in question, possession can be and is enough by today's laws.

Originally Posted by Luca Rescigno 

The other thing with explosives is that merely owning them and storing them in your house puts everyone living around you at risk if something goes wrong.

Exactly.
Even if we neglect the issue of proper training in handling explosives, assume we just insist on proper storage (say, in a bunker with proper security measures in place). Then this alone would exclude many people from owning explosives. Even if handled correctly, something can go wrong here. The analogy is similar for other types of weapons.

Interestingly enough, the legal tradition has reinterpreted the Second Amendment as a right to self-protection against criminals while it was initially supposed to protect against the government and foreign powers trying to take over America. But nowadays, civillians may not even own most military weapons (e. g. assault rifles).

That's what I mean when I say that the Second Amendment has become moot: its initial purpose, to protect the young American Democracy with arms if necessary (a militia instead of an army), is not an issue today. It has been reinterpreted by the SCOTUS and lawmakers as a right to `defend yourself and your property' against criminals. I don't see that intention in the original text. (Back then, some of the Founders believed that a federal army cannot possibly be a match for a well-armed militia. I don't think we have to argue that this is no longer accurate.)

I'm no expert on constitutional law, but doesn't the phrase well-regulated mean that that the Second Amendment explicitly allows for some regulation, just like freedom of speech and assembly requires some regulation (e. g. getting permits for demonstrations)? I don't see how the two are different.

Originally Posted by stupendousman 

True, but I think it's within the rights of the government to ensure that the person possessing the explosives know those precise set of circumstances and are responsible enough to ensure the precautions needed are implemented.

That's exactly the situation we have now: you need to be licensed to handle explosives and you need to show that you can store explosives properly without risk of injury or to the lives of others.

Arguably, you can repeat the argument for many other types of weapons, e. g. assault rifles and such. Where you draw the line is a matter of opinion, but not a matter of constitutionality.

[zachbass]

Originally Posted by BRussell 

So the activist conservative judges overturned local law and legal precedent? Shocking.

States cannot make laws that reduce or infringe upon the rights enumerated by the constitution. The constitution reigns supreme over all state law.

The conservative justices simply applied the constitution, which liberal judges apparently disdain, and seek to rewrite at every opportunity.

The second amendment doesn't grant us this right, it simply states that the right is inherent, endowed by our creator, the constitution simply affirms the right. There's similar wording in the right to free speech, and the right to pursue life, liberty and happiness.

It is beyond disgusting, arrogant, and an affront to all freedom loving people that any judge would think they have the power to remove any of our rights.

-zach

[vmarks]

Originally Posted by OreoCookie 

You've answered the question yourself:

I'm no expert on constitutional law, but doesn't the phrase well-regulated mean that that the Second Amendment explicitly allows for some regulation, just like freedom of speech and assembly requires some regulation (e. g. getting permits for demonstrations)? I don't see how the two are different.

Incorrect. well-regulated means that the equipment is in proper working order.

The following are taken from the Oxford English Dictionary, before and after the writing of the 2nd amendment:

1709: "If a liberal Education has formed in us well-regulated Appetites and worthy Inclinations."

1714: "The practice of all well-regulated courts of justice in the world."

1812: "The equation of time ... is the adjustment of the difference of time as shown by a well-regulated clock and a true sun dial."

1848: "A remissness for which I am sure every well-regulated person will blame the Mayor."

1862: "It appeared to her well-regulated mind, like a clandestine proceeding."

1894: "The newspaper, a never wanting adjunct to every well-regulated American embryo city."

The phrase "well-regulated" was in common use long before 1789, and remained so for a century thereafter.

[BRussell]

Originally Posted by zachbass 

States cannot make laws that reduce or infringe upon the rights enumerated by the constitution. The constitution reigns supreme over all state law.

It's not quite as simple as that, and it's not currently true with respect to the second amendment, even after this Heller decision, which concerned DC, an arm of the federal government.

The US Constitution was originally intended only to limit the powers of the federal government, not the states - in fact, it's a conservative principle that moving away from this has been a bad thing. Obviously, that changed when we had a little problem with states in the middle of the 19th century. But it didn't change wholesale, it changed piecemeal, and it still hasn't changed - even with Heller - for the Second Amendment.

[subego]

Originally Posted by OreoCookie 

Back then, some of the Founders believed that a federal army cannot possibly be a match for a well-armed militia. I don't think we have to argue that this is no longer accurate.

Sure we do.

Exhibit one: Iraq.

[vmarks]

Originally Posted by BRussell 

It's not quite as simple as that, and it's not currently true with respect to the second amendment, even after this Heller decision, which concerned DC, an arm of the federal government.

The US Constitution was originally intended only to limit the powers of the federal government, not the states - in fact, it's a conservative principle that moving away from this has been a bad thing. Obviously, that changed when we had a little problem with states in the middle of the 19th century. But it didn't change wholesale, it changed piecemeal, and it still hasn't changed - even with Heller - for the Second Amendment.

Not so. That you would say this makes me wonder how well you understand Conservative positions and principles.

It's a Conservative principle that the Constitution is the highest law in the land, and that the 10th Amendment is what assigns powers to the states.
The Constitution obliges all states to follow the Constitution, because all states are signatories to it. So, in no way can a state reject or abridge a right that is protected from infringement by the Constitution.


The Civil War (which you refer to as a 'little problem' - shame on you) was not about states attempting to abridge the Constitution as they pleased and remain in the Union (this has NEVER been a Conservative position)- it was about states having the right to withdraw their signature and break the contract they signed when ratifying the Constitution - they freely joined the Constitution, and like any contract, must be able to freely sever it when the agreement is no longer agreeable to both parties.

Thomas Jefferson supported the right of secession In his 1801 First Inaugural Address. "If there be any among us who wish to dissolve the Union or to change its republican form," the author of the Declaration of Independence said, "let them stand undisturbed, as monuments of the safety with which error of opinion may be tolerated where reason is left free to combat it."

That is, he may not have agreed with those who may wish to secede, but he supported the right.

Jefferson and James Madison were the authors of the Virginia and Kentucky Resolutions of 1798 which held that "where powers were assumed by the national government which had not been granted by the states, nullification is the rightful remedy," and that every state has a right to "nullify of its own authority all assumptions of power by others. . ."

That is, where a Federal government assumes powers that it has no right to assume, the states are within their rights to nullify that Federal usurpation. We still see a hint of this behavior today when we talk about states that wish to authorize medical marijuana or euthanasia. Please note that we needed an Amendment to prohibit alcohol, but we have none for prohibiting some drugs and authorizing a DEA to enforce, and we certainly have no Amendment that grants Congress the ability to make a law concerning euthanasia. These things rightfully belong to the States under the 10th Amendment.

10th Amendment
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.

[BRussell]

vmarks, after reading your post, I'm not sure where you disagree with what I stated. As far as I know the following are factually true and not a matter of opinion:

Do you disagree that the US Constitution was originally written only as a limit on the federal government's power, and not the states?

Do you disagree that this began to change only in the past 100 years or so, and that it has changed gradually?

Do you disagree that the second amendment has never been incorporated, and that even Heller didn't do it because it was about DC?

[vmarks]

Originally Posted by BRussell 

vmarks, after reading your post, I'm not sure where you disagree with what I stated. As far as I know the following are factually true and not a matter of opinion:

Well, I apologize. I must not be communicating very well. You haven't properly understood conservative positions and principles, and I did not succeed in enlightening you any. Yet. I don't expect you'll agree with conservative principles, but I would like you to at least understand them correctly.

Do you disagree that the US Constitution was originally written only as a limit on the federal government's power, and not the states?

Incorrect.

The states signed the Constitution, granting it power over them. Why did they argue about the rights and restrictions enshrined in it prior to ratification, if it did not limit their power?

It says what Congress has the power to do, and what Congress shall make no law about. It also says that a certain 2nd Amendment right "shall not be infringed." Period. Not by Congress. Not by States. Period.

In 1857 (Dred Scott v Sandford) when Chief Justice Taney wrote that he did not want to grant blacks freedom because it would mean freed blacks had the right to possess and carry arms, he knew that the right applied to the all government.

States possess all rights not specifically assigned to Congress, but states cannot infringe upon rights that are clearly delineated. Where in history has a state decided that the first amendment didn't really apply to it, that it could modify it to their liking? Where has a state ever decided that the 5th amendment was inconvenient, and they'd like to require folks to incriminate themselves? (I'll grant you, governments federal and local so far successfully routed around the takings clause by creating civil forfeiture, where property commits the crime so the owner of the property lacks standing to seek recompense. I consider this to be unconstitutional, but so far the government is too busy profiting from it to repeal it. The US Forestry service wants to seize land it desires and police departments do like those cars and big screen tvs they seize.)

Do you disagree that this began to change only in the past 100 years or so, and that it has changed gradually?

The worst changes began in the 30s, during FDR's term, where it was decided that instead of the 10th amendment meaning ALL rights belong the states and people, period, they decided that it means 'all rights unless they haven't been legislated by states yet, in which case congress can claim them, and rule on them.' - it's under that attitude and a misreading of section 1 article 8's two words 'general welfare' that we get the huge unconstitutional expansion of federal government.

Do you disagree that the second amendment has never been incorporated, and that even Heller didn't do it because it was about DC?

I don't know what you mean by incorporated. It's the first use of the word in this thread, and I'm very sorry, but you're going to have to be more clear. The Constitution covers all Americans, and when last I checked DC residents who are American citizens possess the right to bear arms.

[subego]

Originally Posted by vmarks 

I don't know what you mean by incorporated. It's the first use of the word in this thread, and I'm very sorry, but you're going to have to be more clear. The Constitution covers all Americans, and when last I checked DC residents who are American citizens possess the right to bear arms.

Incorporation means the SC has made a decision regarding a case that sets the precedent a particular amendment in the Constitution also applies to the states.

This is usually justified through due process in the 14th.

Incorporation (Bill of Rights) - Wikipedia, the free encyclopedia

[vmarks]

Originally Posted by subego 

Incorporation means the SC has made a decision regarding a case that sets the precedent a particular amendment in the Constitution also applies to the states.

This is usually justified through due process in the 14th.

Incorporation (Bill of Rights) - Wikipedia, the free encyclopedia

Thank you.

I'll come back and answer BRussell's question in a bit.

[Big Mac]

It's actually an interesting legal technicality to think about. This ruling may not automatically apply to states because the case was against D.C. It may take another ruling that cites this precedent against a municipality in a state to get this applied to the states.

I love the hypocrisy of Stevens (and the left) to complain about this ruling on the grounds that the Court is, according to him, reading a right to self defense into the amendment, whereas his side created a right to abortions out of whole cloth. First they relied on a right to privacy that the courts had made up, and then they took that right to privacy and created a right to abortions. Laughable.

[BRussell]

Originally Posted by Big Mac 

I love the hypocrisy of Stevens (and the left) to complain about this ruling on the grounds that the Court is, according to him, reading a right to self defense into the amendment, whereas his side created a right to abortions out of whole cloth. First they relied on a right to privacy that the courts had made up, and then they took that right to privacy and created a right to abortions. Laughable.

I agree, it is hypocritical to believe in a broad interpretation of rights in some cases and a narrow interpretation in other cases.

[Big Mac]

Very glad we agree on that point.

[subego]

Originally Posted by vmarks 

The states signed the Constitution, granting it power over them.

At least for what we're arguing, I see the fact that state churches existed throughout the 19th century as pretty incontrovertible evidence that this was not the case.

[vmarks]

On incorporation and conservatism, this one's for you, BRussell:

The conservative principle is one of maximal freedom. This is why so many of us are so concerned about decreasing the rights of states and individuals.

This is also closely related to why we think that the powers of the Federal government are to be very very limited, so that the power is concentrated locally, where it can be held more responsible to the individual.

At the same time, here's the concern with incorporation: Ideally, states can have very different laws and people could relocate to whichever state was most advantageous, most free, etc. Before incorporation as a concept caught on, the states had maximal freedom and could seemingly legislate regardless of the Constitution. After all, "Congress shall make no law" cannot be addressing a state legislature.

It really does seem difficult to believe that the Constitution was meant to enshrine a freedom of religion, something that this country was founded upon, and yet permit the states to run roughshod over that freedom.

So, which is maximal freedom? Having the Constitution force states to not infringe upon rights, or having states have the freedom to infringe (where an amendment has not been incorporated) ?

Conservatives do wish for states and people to be the final word on subjects for which the Constitution is silent. This is amendment 10.

The question is, what happens on subjects where the Constitution is not silent? That's what led to incorporation.

Incorporation is a badly implemented policy. It hasn't required whole amendments, it's picked and chosen from pieces of amendments.

Madison actually desired to have the bill of rights apply to the states as well, saying in one instance "No State shall violate the equal rights of conscience, or the freedom of the press, or the trial by jury in criminal cases."

But that didn't make it in.

Apparently the 14th amendment was intended to incorporate all of the amendments 1 through 8, but it hasn't been read that way.

The founders didn't see incorporation as necessary, because it was clear to them that the states had bills of rights which protected the individual even further than the individual rights of the Federal Bill of Rights.

Sadly, what has happened is that the federal government has acted outside its authority, and the states have consistently moved further away from aggressively protecting freedom more stringently than in the Bill of Rights. The founding fathers didn't anticipate this.

We need another amendment to incorporate amendments 1-8 in whole. I base this on the notion that binding the states in that way ensures greater freedom of the individual rather than the lesser freedom of the states being able to infringe on these rights that are so important that a bill of rights was required in the first place.

Hopefully, this answer has helped you understand the conservative basis for the position I'm taking. I do not know any conservatives who reject incorporation altogether, on the basis that maximal freedom is that of the states being able to legislate as they please on all topics. Admittedly, I haven't polled anyone, either.

[subego]

Originally Posted by vmarks 

I do not know any conservatives who reject incorporation altogether

I don't see how they could.

It would be one thing if the idea of incorporation was being pushed without a 14th Amendment, but what that amendment was supposed to do (among other things) was to create a constitutional mechanism to allow incorporation... two of them, AFAICT.

The response to a conservative (or anyone) who rejects this is to tell them to make and pass a new amendment.

[Big Mac]

No serious conservative rejects 14th amendment incorporation of Constitutional rights upon the States. Southerners who wish they could fight the Civil War over again may, but that's about it. . . .

Slightly more on topic, anyone care to seriously argue on behalf of the ridiculous and now vanquished collective right reading of the 2nd Amendment? It was untenable before this ruling, and now it is an officially defective and rejected reading according to the USSC. But I'll read through any post that wishes to defend it. Now if one wishes to read a collective right, it is my contention that one also has to read all of the other first 10 amendments as collective and not pertaining to individuals. Do realize that they were ratified as a package called the Bill of Rights, which the States and the people demanded as a check against the new Federal government. Secondly, please explain how one can read a government right in a clause that says "the right of the people."

[finboy]

Originally Posted by Shaddim 

A shotgun is more likely to cause that type of damage, but few have mentioned wanting to ban those.

I think Obama is on record as being against semi-automatic shotguns. Or ones that look "menacing" or something. Once Kennedy gets better he'll make sure Obama knows what the candidate's position must be.

[Shaddim]

I prefer a pump action, there's nothing that puts fear into the heart of a thief like the sound of cocking one of those in the dark.