Says that the 2nd does not bind the State, and we do not have a 'Right' to keep and bear arms post 'Heller'.

http://mdcourts.gov/opinions/cosa/2009/1999s08.pdf

To begin, we note that there is no Maryland corollary of the federal constitutional
right codified in the Second Amendment.4 Furthermore, we have held previously that the
Second Amendment is not applicable to the states.

In Maryland, the militia is “well regulated” by Article 65 of the
Code . . . The General Assembly thus has made the manifestly
reasonable judgment that the needs of the militia can be met
with State-owned firearms held in secure locations. No tenable
argument can be made that the needs of the State militia can
only be met by affording private citizens access to the kinds of
firearms that would be restricted under House Bill 1283.
79 OAG 206 (1994).

They also reiterated that the Heller decision upheld Cruishanks:

the fact that the Heller Court reaffirmed the holding in United States v.
Cruikshank, 92 U.S. 542 (1875), that “[t]he [S]econd [A]mendment . . . means no more than
that it shall not be infringed by Congress.”

They also state, even if the 'Right' as described in the 'Heller' decision were to be incorporated by the Supreme Court, it still would not over rule Marylands law that only allows a handgun to be carried in very narrow circumstances:

CL § 4-203 provides that a person may not “wear, carry, or transport a handgun,
whether concealed or open, on or about the person” or “in a vehicle traveling on a road or
parking lot generally used by the public, highway, waterway, or airway of the State.” .... even if the right articulated in Heller, namely
the right to keep and bear arms in the home for the purpose of immediate self-defense, were
to apply to the citizens of Maryland, this statute does not infringe upon that right.

So they are going to thumb their noses at our Rights, even if it is incorporated into the states. I see more legal challenges being needed if the SCoTUS incorporates the 2nd, and Maryland is saying for the record now that they will still trample our Rights no matter what decisions are made.

Well, I guess that means that the states can ignore free speech, etc as well. :shrug:

Ahh, let them make their little symbolic decrees. They are just taking one last opportunity to make an ideological statement, and express their 'feelings' on the subject.

Soon they, and the rest of the Maryland state courts, will begin to be left out of this particular conversation - and they know it. So, prattle on Maryland Court of Special Appeals, prattle on. With any luck, pretty soon nobody will have to listen.

Well, I guess that means that the states can ignore free speech, etc as well. :shrug:

I was gonna say that. I woulda used way more words to do it but, that woulda been my point! :lol:

Well, I guess that means that the states can ignore free speech, etc as well. :shrug:

I was gonna say that. I woulda used way more words to do it but, that woulda been my point! :lol:

This is a totally different situation. The First Amendment has clearly been incorporated against the states. In fact, freedom of speech, in specific, was one of the earliest guarantees to be incorporated against the states. With regard to the Second Amendment not applying to the states yet, the COSA was probably right. At the very least, one can't argue that it was clearly wrong.

What I disagree with is the assertion that Maryland Code § 4-203, as is, would not be in violation of the Constitution, according to Heller, if and when the Second Amendment is incorporated against the states. There is certainly much room for debate on that issue, though.

The good news is, if McDonald v Chicago goes the way I think it will, we will eventually get that debate - and an answer one way or the other.

This is a totally different situation. The First Amendment has clearly been incorporated against the states. In fact, freedom of speech, in specific, was one of the earliest guarantees to be incorporated against the states. With regard to the Second Amendment not applying to the states yet, the COSA was probably right. At the very least, one can't argue that it was clearly wrong.

What I disagree with is the assertion that Maryland Code § 4-203, as is, would not be in violation of the Constitution, according to Heller, if and when the Second Amendment is incorporated against the states. There is certainly much room for debate on that issue, though.

The good news is, if McDonald v Chicago goes the way I think it will, we will eventually get that debate - and an answer one way or the other.
Article 2 of the MD Constitution:
The Constitution of the United States, and the Laws made, or which shall be made, in pursuance thereof, and all Treaties made, or which shall be made, under the authority of the United States, are, and shall be the Supreme Law of the State; and the Judges of this State, and all the People of this State, are, and shall be bound thereby; anything in the Constitution or Law of this State to the contrary notwithstanding.

In other words, it doesn't matter what the MD Constitution or law says or doesn't say...the US Constitution is the supreme law. If the US Constitution gives a right, we have it no matter what the MD Constitution says. The MD Constitution could specifically say that the people cannot own firearms and it wouldn't matter.

Article 2 of the MD Constitution:
The Constitution of the United States, and the Laws made, or which shall be made, in pursuance thereof, and all Treaties made, or which shall be made, under the authority of the United States, are, and shall be the Supreme Law of the State; and the Judges of this State, and all the People of this State, are, and shall be bound thereby; anything in the Constitution or Law of this State to the contrary notwithstanding.

In other words, it doesn't matter what the MD Constitution or law says or doesn't say...the US Constitution is the supreme law. If the US Constitution gives a right, we have it no matter what the MD Constitution says. The MD Constitution could specifically say that the people cannot own firearms and it wouldn't matter.

And, if and when the Constitution of the United States says (red added):

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 (by state and local governments).

then, the state of Maryland will be bound by the Second Amendment.

However, as it stands now, the Constitution says (red added per Supreme Court interpretation):

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 (by the Congress or the federal government).

That has been the interpretation of the Supreme Court. So, yes, the state of Maryland is bound by what the U.S. Constitution says. However, the U.S. Constitution does not say that states can not infringe the right to keep and bear arms - that is, or course, according to the U.S. Supreme Court, which is the body which ultimately gets to decide what the Constitution says. It says what they say it says.

Amendments 1-8 of the Bill of Rights did not originally apply to the states - they only applied to the federal government. They were not intended to protect us from state actions, and that is what the Supreme Court found in Barron v Baltimore (1833). It is only because the Supreme Court has subsequently found that some parts of it do apply to the states, that those parts do. It is very likely that the Court will find as such for the Second Amendment in McDonald v Chicago, later on in this term.

As things stand now, the COSA was just following Supreme Court precedent (meaning it was following the U.S. Constitution).

Ok...I wonder what moron argued that case. It seems pretty clear to me that the Bill of Rights lists those unalienable rights endowed by our Creator (to paraphrase)...

"A bill of rights is what the people are entitled to against every government on earth, general or particular; and what no just government should refuse, or rest on inferences." --Thomas Jefferson to James Madison, 1787. ME 6:388, Papers 12:440

I rest my case. :peace:

Article 2 of the MD Constitution:
The Constitution of the United States, and the Laws made, or which shall be made, in pursuance thereof, and all Treaties made, or which shall be made, under the authority of the United States, are, and shall be the Supreme Law of the State; and the Judges of this State, and all the People of this State, are, and shall be bound thereby; anything in the Constitution or Law of this State to the contrary notwithstanding.

In other words, it doesn't matter what the MD Constitution or law says or doesn't say...the US Constitution is the supreme law. If the US Constitution gives a right, we have it no matter what the MD Constitution says. The MD Constitution could specifically say that the people cannot own firearms and it wouldn't matter.

You have the concept basically correct (IMO). But there is more. The language of Article 2 incorporates by direct reference ALL Federal law. That eliminates any argument concerning incorporation of one U.S. Constitutional amendment with any other because this Maryland article does it as a matter of Maryland Law. In other words, the Slaughterhouse decisions have a completely different meaning in MD.

What else did anyone expect from O'Malley and his punk assed democrat Judges and Politicians.

We need to oust some Democrats and get some patriots in there.

Okay, here’s where you are losing me.

… the state of Maryland is bound by what the U.S. Constitution says.

However, the U.S. Constitution does not say that states can not infringe the right to keep and bear arms.

How can a state be bound to a right that they may also infringe upon?

The constitution says it is the right of the people to keep and bear arms and that right is not to be infringed. It doesn’t say "shall not be infringed by state and local government”. It does not say “shall not be infringe by the Congress or the federal government”. It simply says infringed. I interpret that as anyone or any government entity. Unlike in the 1st it specifically states that "Congress shall make no law respecting an establishment of religion..."

What is your definition of the word “bound”?

Ok...I wonder what moron argued that case. It seems pretty clear to me that the Bill of Rights lists those unalienable rights endowed by our Creator (to paraphrase)...

"A bill of rights is what the people are entitled to against every government on earth, general or particular; and what no just government should refuse, or rest on inferences." --Thomas Jefferson to James Madison, 1787. ME 6:388, Papers 12:440

I rest my case. :peace:

You have to understand that, at the time, the people of the U.S. had a totally different attitude about, and perspective on, the federal government and its role. They didn't see it as their main government - they saw the state government as their main government. The federal government was just an association of those states (kinda like the European Union). They were not concerned with the federal government protecting their rights, they had their states - which they trusted much more - to do that. Most of the states had their own rights provisions and protections.

When it came to the federal government, they just wanted to know that IT wasn't going to infringe their rights. Many people were reluctant to form a federal government, and give it any meaningful powerful, because they were afraid of what IT might do. So, they wanted guarantees that IT wouldn't abridge some of their rights. As for the states abridging their rights, they took care of that concern through the states. For the first century of the Republic, the states were seen as the protectors of rights - and the notion that the federal government would fill that role was quite foreign.

Jefferson was absolutely right in what he said, and accordingly, states had rules limiting what they could do to citizens and the federal government had rules limiting what it could do to citizens. The federal government had a Bill of Rights limiting it, and Jefferson's state (Virginia) had a Declaration of Rights limiting it. There would have been no reason to believe that the federal government was more trustworthy with regard to protecting rights against state governments, than the state governments were - and turning that role over to the federal government would just mean allowing people who weren't your neighbors, who weren't your brethren, to have control over your life. That was the point, people in North Carolina didn't want people in Rhode Island making decisions for them - and vice versa.

It wasn't until well after the Fourteenth Amendment was adopted, when we started seeing the 'incorporation doctrine' come into effect, that the federal government started taking on the general role of protecting people's rights (other than from the federal government itself). As it stands now, the federal government serves most of that role, while the states are subject to it. Our Republic looks very different than it used to in that regard, and very different than early Americans wanted it to look. The decision in Barron v Baltimore was no doubt correct - it was the correct interpretation of the will behind the Constitutional mandates, and a correct interpretation of the drafting purpose of the Bill of Rights. That is hard for us to internalize today, because our perspective about the roles of the governments have changed. Most people think of themselves as Americans, and then Marylanders. In 1833, people thought of themselves as Marylanders, and then Americans. The Bill of Rights was just to make people feel comfortable handing over a small amount of power from the states to the federal government. It told them, 'everything will be okay, we'll make sure this federal government doesn't do bad things to you or exercise too much control over your daily life, by placing clear limits on what it can do'.

Okay, here’s where you are losing me.



How can a state be bound to a right that they may also infringe upon?

The constitution says it is the right of the people to keep and bear arms and that right is not to be infringed. It doesn’t say "shall not be infringed by state and local government”. It does not say “shall not be infringe by the Congress or the federal government”. It simply says infringed. I interpret that as anyone or any government entity. Unlike in the 1st it specifically states that "Congress shall make no law respecting an establishment of religion..."

What is your definition of the word “bound”?

A state is bound by what the U.S. Constitution says - but the U.S. Constitution doesn't say that a state can't infringe the right to keep and bear arms. Think of it like this:

The Maryland constitution says that Maryland has to obey the U.S. Constitution.

The U.S. Constitution says that Maryland, and Margaret and Marylou can't do Y and Z. It goes on to say that Marylou can't do X.

Now, does the Maryland constitution say that Maryland can't do X, by saying that Maryland has to obey the U.S. Constitution? No, because the U.S. Constitution doesn't say anything whatsoever about Maryland not doing X.

What is often lost on the modern American, is that the Bill of Rights was not originally a list of protections against state governments - it was a list of protections against the federal government. Those provisions told the federal government what it could not do.

That was its purpose, and that is why it was drafted, and that is what people thought it meant. That is what the Supreme Court said that it meant, both in general and with specific regard to various amendments. On multiple occasions, the Supreme Court specifically said that the Second Amendment did not prohibit states from infringing the right to keep and bear arms - that that Amendment only served to prevent Congress or the national government from infringing the right to keep and bear arms. And, it is the Supreme Court that ultimately gets to say what the Constitution means. Furthermore, in this case, it wasn't some crazy activist interpretation. It was a straight forward interpretation based on what the Constitution was originally intended to mean.

Now, we are long past the time when that interpretation should have changed - pursuant to the Fourteenth Amendment and the incorporation doctrine - and it likely will soon. But, it was only the Fourteenth Amendment that (eventually) dictated that most of the rest of the Bill of Rights referenced protections against state governments (in addition to the federal government).

You have the concept basically correct (IMO). But there is more. The language of Article 2 incorporates by direct reference ALL Federal law. That eliminates any argument concerning incorporation of one U.S. Constitutional amendment with any other because this Maryland article does it as a matter of Maryland Law. In other words, the Slaughterhouse decisions have a completely different meaning in MD.

Where does the U.S. Constitution or federal law say that Maryland (or another state) can't infringe the right to keep and bear arms? As I've said, the Second Amendment did not originally say or mean that, according to the U.S. Supreme Court, which is the entity that gets to decide what the U.S. Constiution says and means.

Yes, the U.S. Constitution, and federal law, is the Supreme law of the land - and this is true in Maryland regardless of what the Maryland constitution says. It is true for every state in the U.S., per Article VI of the U.S. Constitution. But, the question is, what does the U.S. Constitution say and mean? Even though it has supremacy over Maryland law and the Maryland constitution, if it doesn't say or mean something, then Maryland isn't controlled by that thing that it doesn't say or mean.

And, all Slaughterhouse did was render the PoIC largely mute - a legal condition which is just as meaningful in Maryland as anywhere else. There are few grounds on which someone can successfully use the PoIC to federally challenge alleged rights violations by states. That remains true today, and will remain true unless and until the Supreme Court reverses Slaughterhouse.

Where does the U.S. Constitution or federal law say that Maryland (or another state) can't infringe the right to keep and bear arms? As I've said, the Second Amendment did not originally say or mean that, according to the U.S. Supreme Court, which is the entity that gets to decide what the U.S. Constiution says and means.



It doesn't.

But the Maryland Constitution does.

MARYLAND CONSTITUTION
DECLARATION OF RIGHTS

Article 2. Constitution, laws and treaties of United States to be supreme law of State.

The Constitution of the United States, and the Laws made, or which shall be made, in pursuance thereof, and all Treaties made, or which shall be made, under the authority of the United States, are, and shall be the Supreme Law of the State; and the Judges of this State, and all the People of this State, are, and shall be bound thereby; anything in the Constitution or Law of this State to the contrary notwithstanding.


Article 2 of the Maryland Declaration of rights incorporates ALL Federal Law by reference as State Law. Therefore, all the amendments to the U.S. Constitution are incorporated within the bounds of Maryland regardless of whether or not they are incorporated anywhere else in the U.S.

Given this, the US Constitution IN ITS ENTIRETY becomes completely incorporated WITHOUT CONDITION as Maryland Law. That would include the individual's right to keep and bear arms.

It doesn't. But the Maryland Constitution does. Article 2 of the Maryland declaration of rights incorporates by reference all laws and treaties of the Federal Government as the supreme law in Maryland. Thus the 2nd amendment DOES apply here, and the rights therein pass to individuals accordingly.

Article 2 of the Maryland Declaration of rights also incorporates ALL Federal Law by reference as State Law. Therefore, all the amendments to the U.S. Constitution are incorporated within the bounds of Maryland regardless of whether or not they are incorporated anywhere else in the U.S.

In short, the 2nd Amendment to the U.S. Constitution is adopted as Maryland Law by Article 2 of the Maryland Declaration of Rights. As is the 5th and 14th Amendments which together form a pretty strong defense of individual's rights to keep and bear arms.

There is a point of logic here that is being missed. Article 2 of the MDOR does not say, 'Whatever limitations are placed on the federal government in the Bill of Rights are hereby placed on the state of Maryland.' If it did, then you would be correct in your assertion. What that article does say, is that the U.S. Constitution and U.S. laws are the supreme law of the land, and that Maryland is subject to them and bound by them. However, those laws don't say that Maryland can't infringe the right to keep and bear arms. If they did, then you would also be correct in your assertion. You are reading the words of article 2 of the MDOR and attaching to them a different meaning than they have, an additional meaning along the lines of the hypothetical italicized quote I made - and that is a different meaning than the courts have attached to them (or should have attached to them). In effect, in this specific regard, article 2 of the MDOR reiterates that the federal government may not infringe the right to keep and bear arms.

If the argument you make is the least bit correct - then why wasn't it made in the case referred to by the OP? Why has the Second Amendment continually been found not to prevent the state of Maryland from infringing the right to keep and bear arms? It is because such an argument would be a non-starter. It misses the meaning of the language. On this point, it is not I that you disagree with, but the Supreme Court and all the courts with proper jurisdiction. This isn't a point of law that is at all in dispute.

The reason this is hard for people to understand is because we have all internalized the modern impression that the Bill of Rights was speaking to or about all governments. However, it was not - it was speaking to or about the federal government only. It is a list of things that it can't do. If Maryland says its laws are bound by what is contained there, then that means Maryland law is bound by the federal government being limited in certain regards. In other regards, it means that Maryland law is bound by the federal government and Maryland being limited in certain regards - those regards being the ones in which the Supreme Court has said that the words of the Constitution now mean that some rights are protected against state actions.

The text of of article 2 of the MDOR is essentially an exact copy of Article VI, Section 2 of the U.S. Constitution (the wording is only slightly changed to reflect the timing of its writing and the party writing it). It is a re-iteration and doesn't have any practical import, because what it says would be true no matter what - even if it was not contained the in MDOR. What it says applies to every state in the nation, because what it says is said in the U.S. Constitution. There is no question that the U.S. Constitution and the laws of the United States are the supreme law of the land - that's true in every state just as much as it is in Maryland. The question is, what does the U.S. Constitution say and what are the laws of the U.S. And, to that point, according to the U.S. Supreme Court, the U.S. Constitution doesn't say that a state can't infringe the right to keep and bear arms. If what you are suggesting was true, then it would be true of every state in the nation. The words of article 2 of the MDOR have no different effect on Maryland than the words of Article VI, Section 2 of the U.S. Constitution have on every other state in the Union.


To illustrate, and resolve more clearly, the logical piece being left out of the argument, think about this for a moment:

Mom is the MD constitution, Dad is the U.S. Constitution, Johnny is Maryland (its laws, courts and people), and Billy is the federal government.

Let's say Mom tells Johnny, 'You have to obey your Dad.' Johnny goes to Dad and Dad says, 'Billy has to be in bed by 10 o'clock.' At 11 o'clock, Mom says, 'Why aren't you in bed Johnny - you have disobeyed me.' Johnny says, 'No I haven't, you told me to obey Dad and Dad said that Billy had to be in bed at 10, he didn't say that I had to be in bed by 10.' Or, suppose Dad had said to Johnny, 'He has to be in bed by 10.' Same thing happens - Mom says that Johnny disobeyed her because he is still up at 11. Johnny says, 'No I didn't, Dad said 'he' has to be in bed by 10, he didn't say I had to be in bed by 10, he was talking about Billy.' Well, the issue is what did Dad mean when he said 'He ...'. How do you know what he meant? You ask Dad, not Mom - Dad is the one that said it. Dad says, ''He' meant Billy - Billy has to be in bed by 10, I didn't tell Johnny to be in bed by 10.' In this latter case, Dad is the Supreme Court - it is what tells us what the U.S. Constitution means - it is the living entity that speaks for the U.S. Constitution and the voice box through which the U.S. Constitution speaks.

It is important to note, Mom never said to Johnny, 'You have to do whatever Dad says Billy has to do.' All Mom said was, 'You have to obey your Dad.' There is a huge difference between those things - and therein lies the logical fault in your argument. If Dad didn't say that Johnny has to be in bed by 10, then Mom's general endorsement of Dad's rule doesn't mean anything about Johnny having to be in bed by 10. I know that is a round about way of explaining the situation - but it is correct - it is how the situation is viewed legally. If you disagree with that, then it is not me that you are disagreeing with - but many, many, many other people, those people being the ones whose interpretations matter.

It is the Supreme Court that gets to decide what the U.S. Constitution says and means, legally speaking. If the Maryland constitution incorporates the words of that Constitution (as they are written and interpreted, not as it rewrites them, mind you) within itself, that is fine - but those words still mean what the Supreme Court says they mean, nothing more and nothing less. If the MDOR had wanted to accomplish what you suggest, then it would have said, 'Whatever limits are placed on the federal government by the U.S. Constitution are likewise placed on Maryland.' That is a far cry from what it actually does say. Those words would have had a tremendously different effect, and rightfully so. As it is, the MDOR just reiterates what is already true, as per Article VI, Section 2 of the U.S. Constitution.


If you still disagree, then it is an argument you need to take up with the courts, most notably the U.S. Supreme Court. However, with specific regard to the Second Amendment, it is an argument that will likely soon be unneeded.

We fundamentally disagree.

When the founders used the word "people" it did not mean "states" or "governments". It simply meant individual persons. The authors were clearly reaching down and making sure that individual state governments would not, or could not restrict individual rights or liberties expressly granted in the constitution.

Your implication that Article 2 is superfluous language makes no sense. All language in the constitution(s) has both general and specific application. The Appeals Courts in Maryland seem to agree:

ABRAMS v. LAMONE, 398 Md. 146 (2007)

[fn2] It should be noted that Article 2 of the Maryland
Declaration of Rights mandates that federal law "shall be the
Supreme Law of the State. . . ." Consequently, "federal law" is
"Maryland law." See R.A. Ponte Architects, Ltd. v.
Investors' Alert, 382 Md. 689, 698-701, 857 A.2d 1, 6-8
(2004), and cases there cited.

COSA and COA both have published nearly identical statements in numerous cases over the years.

I can't explain why it hasn't been argued in a 2nd Amendment case, but I would hold that it should be.

Either the constitutions of our country say what they mean and mean what they say, or all is lost and there is no freedom.

You have to understand that, at the time, the people of the U.S. had a totally different attitude about, and perspective on, the federal government and its role. They didn't see it as their main government - they saw the state government as their main government. The federal government was just an association of those states (kinda like the European Union). They were not concerned with the federal government protecting their rights, they had their states - which they trusted much more - to do that. Most of the states had their own rights provisions and protections.

When it came to the federal government, they just wanted to know that IT wasn't going to infringe their rights. Many people were reluctant to form a federal government, and give it any meaningful powerful, because they were afraid of what IT might do. So, they wanted guarantees that IT wouldn't abridge some of their rights. As for the states abridging their rights, they took care of that concern through the states. For the first century of the Republic, the states were seen as the protectors of rights - and the notion that the federal government would fill that role was quite foreign.

Jefferson was absolutely right in what he said, and accordingly, states had rules limiting what they could do to citizens and the federal government had rules limiting what it could do to citizens. The federal government had a Bill of Rights limiting it, and Jefferson's state (Virginia) had a Declaration of Rights limiting it. There would have been no reason to believe that the federal government was more trustworthy with regard to protecting rights against state governments, than the state governments were - and turning that role over to the federal government would just mean allowing people who weren't your neighbors, who weren't your brethren, to have control over your life. That was the point, people in North Carolina didn't want people in Rhode Island making decisions for them - and vice versa.

It wasn't until well after the Fourteenth Amendment was adopted, when we started seeing the 'incorporation doctrine' come into effect, that the federal government started taking on the general role of protecting people's rights (other than from the federal government itself). As it stands now, the federal government serves most of that role, while the states are subject to it. Our Republic looks very different than it used to in that regard, and very different than early Americans wanted it to look. The decision in Barron v Baltimore was no doubt correct - it was the correct interpretation of the will behind the Constitutional mandates, and a correct interpretation of the drafting purpose of the Bill of Rights. That is hard for us to internalize today, because our perspective about the roles of the governments have changed. Most people think of themselves as Americans, and then Marylanders. In 1833, people thought of themselves as Marylanders, and then Americans. The Bill of Rights was just to make people feel comfortable handing over a small amount of power from the states to the federal government. It told them, 'everything will be okay, we'll make sure this federal government doesn't do bad things to you or exercise too much control over your daily life, by placing clear limits on what it can do'.

Gotta love Lincoln!

Tilted, your Mom, Dad, Billy and Johnny example is good, but i don't quite think it fits the scenerio you are argueing. The Second Ammendment doesn't give a narrow focus of whose Rights are to not be infringed, but a very broad 'the people'. In your scenerio, Dad would have said 'everyone' will be in bed by ten, and even though he didn't name Johnny specifically, he is included in the everyone.

I know that the courts have never seen it that way. I have read many of the minutes, letters, notes and arguments that were presented by the delegates during the crafting of the BOR, and at one point it was suggested that a passage be added that bound the states along with the fed, but it didn't pass (I can't remember who presented it right now, but if you are interested in the exact wording or who it was, I will get that information for you). The reasoning was that the states are made up of the body of the people, and the people would never trample their own rights, and that these inherent rights were not at the mercy of any governments whim. I guess the majority was lacking in foresite in that regard.

So, yes, you are correct that the BOR was meant to apply only to the Fed government, because our founders never thought a State would ever tendency to infringe on an inherent right.

This is a conundrum for me.

On one hand I believe that states rights trump all else except the contract they entered into with the other states (The Constitution), whos laws they have to abide by while a member of that compact. So if a state wanted to limit free speach, have segregated schools and ignore the Right to Keep and Bear Arms, then they should have that ability (if not forbidden by their state consitutions). In a truely free society, people would either vote out any bureaucrate that introduced or suppoted such a travesty, or vote with their feet and move to a State that your rights are not infringed upon. Like a free market system, that State would cease to function until they changed their tyrannical ways.

On the other hand, we have the system we have now where special interest groups and lobbyist influence much of the politcal decision making. As much as I would hate to see the Fed.Gov telling the states how they should act and what they can and can't do, and since precidence has been set with the incorporation, then I agree that the 2nd needs to be incorporated also. When I come to this conclusion though, I feel like we are giving away a bit of our freedoms to the Fed, and opening up a can of worms on a slippery slope (I know this was opened a long time ago and we are already speeding down that slope!)

Tilted, your Mom, Dad, Billy and Johnny example is good, but i don't quite think it fits the scenerio you are argueing. The Second Ammendment doesn't give a narrow focus of whose Rights are to not be infringed, but a very broad 'the people'. In your scenerio, Dad would have said 'everyone' will be in bed by ten, and even though he didn't name Johnny specifically, he is included in the everyone. Except that 'the people' is referring to whose rights are not to be infringed, not who is not to infringe those rights. In my example Johnny and Billy are the who that might infringe the rights, not the who whose rights are not to be infringed. In order to include both of them, the Amendment could have said 'shall not be infringed by anyone.' 'The people' part would be unchanged - if it wasn't already clear that it referred to most all Americans, Heller made it so.

Obviously the question here is 'infringed by who?' The language of some of the amendments doesn't specify that. However, surely it doesn't mean that the right is not to be infringed by anyone. I clearly have the right to infringe someone's right to keep or bear arms in my house (in most cases). But, the individual people aren't specifically excluded as not being allowed to infringe the right.

Although the language doesn't specifically exclude the states, as with all lists - all rules - they only matter to the extent that we know who they are directed at or talking about. Clearly the Bill of Rights doesn't mean that Mexico can't infringe the people's rights - as this isn't a list of limitations on Mexico - even though Mexico isn't in the language. If you have a list of rules for players on the Washington Redskins, the language of each of those rules may not specifically say that the rule doesn't apply to Dallas Cowboy players - but we would know that it doesn't.

The key is, what were the amendments placing limitations on? Although someone might be able to argue that point, on balance, the totality of the conversation that was going on at the time, and the things that were written, make it pretty clear to me and most, if not all, of the legal commentary I've read. The Bill of Rights told the federal government some things that it could not do. For more insight into this discussion, I would recommend that anyone read Barron v Baltimore. It should be noted that, that was a unanimous decision, and I think it is fair to say that it represented the general sentiment of the nation - at least at the time the Bill of Rights was adopted. Public sentiment has changed a great deal since then - as is evidenced by Justice Miller's comments which I quoted in the other thread. In any event, as relates to the larger conversation here, it really doesn't matter - regardless of whether or not the Court's interpretation was right, there isn't much dispute as to what that interpretation was.

I know that the courts have never seen it that way. I have read many of the minutes, letters, notes and arguments that were presented by the delegates during the crafting of the BOR, and at one point it was suggested that a passage be added that bound the states along with the fed, but it didn't pass (I can't remember who presented it right now, but if you are interested in the exact wording or who it was, I will get that information for you). The reasoning was that the states are made up of the body of the people, and the people would never trample their own rights, and that these inherent rights were not at the mercy of any governments whim. I guess the majority was lacking in foresite in that regard. You are probably referring to Madison - I know for certain that he did propose such language.

So, yes, you are correct that the BOR was meant to apply only to the Fed government, because our founders never thought a State would ever tendency to infringe on an inherent right.

This is a conundrum for me.

On one hand I believe that states rights trump all else except the contract they entered into with the other states (The Constitution), whos laws they have to abide by while a member of that compact. So if a state wanted to limit free speach, have segregated schools and ignore the Right to Keep and Bear Arms, then they should have that ability (if not forbidden by their state consitutions). In a truely free society, people would either vote out any bureaucrate that introduced or suppoted such a travesty, or vote with their feet and move to a State that your rights are not infringed upon. Like a free market system, that State would cease to function until they changed their tyrannical ways.

On the other hand, we have the system we have now where special interest groups and lobbyist influence much of the politcal decision making. As much as I would hate to see the Fed.Gov telling the states how they should act and what they can and can't do, and since precidence has been set with the incorporation, then I agree that the 2nd needs to be incorporated also. When I come to this conclusion though, I feel like we are giving away a bit of our freedoms to the Fed, and opening up a can of worms on a slippery slope (I know this was opened a long time ago and we are already speeding down that slope!)

All very true. Unfortunately, the ship has already sailed, and the notion of a Republic, as opposed to an Empire, has long since been destroyed or forgotten. As it is, I absolutely think that the Second should be incorporated, as should the other provisions of the Bill of Rights which have yet to be.

You make a great point about being able to leave a state if its notions of right and wrong, if the collective sensibilities of its people, don't resonate well with your own. That is one of the beauties of the Republic. It is easier to relocate from one state to another, than it is to relocate from one country to another - at least, it was then. Also, it is an undeniable reality that, left unrestrained, a franchised majority will exercise tyranny over the minority. When you have larger political bodies, the tyranny of the majority is generally more likely and easier to effectuate. There is less personal accountability, and the oppression is more anonymous.

I think the underlying guiding principle of a Republic is this - 'No room should be so large that voices within it get lost in the crowd, nor so small that any one voice within it can drown out all others.' At its core, that is what a Republic is. It is layers of political bodies, where the number of sovereigns (individual political entities) in each layer is relatively small, and thus in which there is mutual accountability and personal recognition. These bodies then come together to form another political body, which is layered over the other, and in which the number of sovereigns still remains relatively small - because it isn't made up of all the individuals in the layer below, but rather of each of those political bodies as a whole. Ideally, you have multiple layers of Republic acting this way. The federal government is made up of states, the states of counties, the counties of small communities, the small communities of individual people. Within each layer, each political sovereign matters more, because there are a limited number of them. Each voice is heard, each voice must be considered and weighed - there is accountability among the small number of political sovereigns (to each other and from the political body, as a whole, to each individual). Individual sovereigns have more actual political power. The same goes in the next layer up - each voice is heard, though now it is the collective voice of the group layered below.

Of course, for that to work, inclusion in the political bodies has to be voluntary, not compulsory. That's part of what separates a Republic from an Empire. Unfortunately, that particular battle was lost in 1865 - inclusion in the larger political body became compulsory, and thus the ground work was laid for the loss of the Republic.

But, all of that having been said, we are where we are. And, in light of that, let's hope the Second gets incorporated. That way, we'll at least have another avenue through which to seek relief from oppression with specific regard to the right to keep and bear arms. As it is, the only avenue we have available to us doesn't lead anywhere good - surely the other one can't be worse.

Gotta love Lincoln!

True words. True words.

Pushrod, I meant to add, the language which Madison proposed, which obviously was not accepted, was:

No state shall violate the equal rights of conscience, or the freedom of the press, or trial by jury in criminal cases.


I'm not sure whether or not that is what you were referring to.

Of course, for that to work, inclusion in the political bodies has to be voluntary, not compulsory. That's part of what separates a Republic from an Empire. Unfortunately, that particular battle was lost in 1865 - inclusion in the larger political body became compulsory, and thus the ground work was laid for the loss of the Republic.

Sadly, very true. I see no way of recovering what was lost then.

But, all of that having been said, we are where we are. And, in light of that, let's hope the Second gets incorporated. That way, we'll at least have another avenue through which to seek relief from oppression with specific regard to the right to keep and bear arms. As it is, the only avenue we have available to us doesn't lead anywhere good - surely the other one can't be worse.
:buddies:
Again I absolutely agree, even though in my heart I know that we tread down the wrong path than that our forfathers mapped out for us, it is the better of the two paths of the new fork before us.

At least with our arms, we can hopefully keep it from degenerating any further. Jefferson was correct when he stated:

"God forbid we should ever be twenty years without such a rebellion.
The people cannot be all, and always, well informed. The part which is
wrong will be discontented, in proportion to the importance of the facts
they misconceive. If they remain quiet under such misconceptions,
it is lethargy, the forerunner of death to the public liberty. ...
And what country can preserve its liberties, if its rulers are not
warned from time to time, that this people preserve the spirit of
resistance? Let them take arms. The remedy is to set them right as
to the facts, pardon and pacify them. What signify a few lives lost
in a century or two? The tree of liberty must be refreshed from
time to time, with the blood of patriots and tyrants.
It is its natural manure."

Pushrod, I meant to add, the language which Madison proposed, which obviously was not accepted, was:



I'm not sure whether or not that is what you were referring to.

Yes, that is one that I was refering to. I'll check tonight in some of my tomes to see if there were others.

True words. True words.

Wonder how many realize the difference between what the Founding Fathers wanted and what Lincoln enabled?