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Title: Ninth Circuit: Right to Bear Arms Includes Right to Acquire Arms
Source:
Breitbart
URL Source: http://www.breitbart.com/california ... s-includes-right-acquire-arms/
Published: May 16, 2016
Author: Awr Hawkins
Post Date: 2016-05-16 22:55:10 by cranky
Keywords: None
Views: 52337
Comments: 164
Teixeira revolves around Alameda County zoning rules for incorporated areas that not only require a gun store owner to obtain requisite local, state, and federal permits for the business, but also make sure “the proposed location of the business is not within five hundred feet of a ‘[r]esidentially zoned district; elementary, middle or high school; pre-school or day care center; other firearms sales business; or liquor stores or establishments in which liquor is served.'” Teixeira revolves around Alameda County zoning rules for incorporated areas that not only require a gun store owner to obtain requisite local, state, and federal permits for the business, but also make sure “the proposed location of the business is not within five hundred feet of a ‘[r]esidentially zoned district; elementary, middle or high school; pre-school or day care center; other firearms sales business; or liquor stores or establishments in which liquor is served.'” After being denied the requisite county permits to open “Valley Guns and Ammo” — due to complaints of persons within 500 feet of the proposed business — Plaintiff John Teixeira contended that the “500-foot rule” was tantamount to a backdoor ban on gun stores. And while there was some question over the exact distance between the proposed store and some of those who complained, the issue for Teixeira turned on the right of due process and other rights protected by the Second Amendment. Teixeira challenged Alameda County’s decision in the United States District Court for the Northern District of California and lost. He then appealed the case to the 9th Circuit Court, where the ruling has remanded the case to the lower court. In summarizing the latest ruling, the court pointed to the Ninth Circuit’s position that Alameda County “had offered nothing to undermine the panel’s conclusion that the right to purchase and to sell firearms is part and parcel of the historically recognized right to keep and to bear arms.” Writing in the Majority Opinion, 9th Circuit Judge Diarmuid O’Scannlain emphasized, “Our forefathers recognized that the prohibition of commerce in firearms worked to undermine the right to keep and to bear arms.” O’Scannlain also pointed to the recognition of the importance of buying and selling firearms from the time of the English Bill of Rights (1689) to founding of the United States. Regarding the era in which the United States was founded, O’Scannlain explained that the states which ratified that Second Amendment did so believing they were not simply protecting a right to keep and bear arms but to buy and sell them as well. He wrote: The historical record indicates that Americans continued to believe that such right included the freedom to purchase and to sell weapons. In 1793, Thomas Jefferson noted that “[o]ur citizens have always been free to make, vend, and export arms. It is the constant occupation and livelihood of some of them.”
The U.S. Court of Appeals for the Ninth Circuit ruled Monday that the right to bear arms has historically included the right to acquire them, and remanded the case of Teixeira v. County of Alameda to the lower court.
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#3. To: cranky (#0)
So much for original intent.
How so? Do you disagree with what Judge O’Scannlain said, below? Or do you think it doesn't apply if the prohibition of commerce in firearms is disguised as a zoning rule? 'Writing in the Majority Opinion, 9th Circuit Judge Diarmuid O’Scannlain emphasized, “Our forefathers recognized that the prohibition of commerce in firearms worked to undermine the right to keep and to bear arms.” 'O’Scannlain also pointed to the recognition of the importance of buying and selling firearms from the time of the English Bill of Rights (1689) to founding of the United States. 'Regarding the era in which the United States was founded, O’Scannlain explained that the states which ratified that Second Amendment did so believing they were not simply protecting a right to keep and bear arms but to buy and sell them as well. He wrote: '"The historical record indicates that Americans continued to believe that such right included the freedom to purchase and to sell weapons. In 1793, Thomas Jefferson noted that “[o]ur citizens have always been free to make, vend, and export arms. It is the constant occupation and livelihood of some of them.”'
Your ignorance is appalling.
Your evasions are appalling.
Quote one Framer contending that the intent of the 2nd Amendment was to control county zoning laws, ignoramus.
The 14th Amendment did not exist in the times of the Framers. In their time the entire BoR only applied to the Federal Government. See MacDonald v. Chicago, 561 U.S. 742 (2010), Syllabus at 2: See MacDonald, Syllabus at 3: County zoning laws which unduly infringe upon 2nd Amendment rights are unconstitutional.
Really? The clause "the right of the people to keep and bear arms" originally referred only to Federal officials, employees, appointees, etc?
Cranky --- Really? Nolu Chan responds, repeating himself, with yet another opinion: --- This type of opinion is currently being used in California to infringe on our right to bear arms. Why Nolu continues to support these State infringements, based on anti-gun opinions, is beyond rationality. Does he really believe that our republican form of government is best served by further prohibitions on individual freedoms?
Does he really believe that our republican form of government is best served by further prohibitions on individual freedoms? Hey, it's like a scene from Remember the Titans. tpaine, you must be Dean Martin and cranky, you must be Jerry. I'm your daddy. Now, both of y'all, just get on the bus. See tpaine shill for his favorite Libertarian constitutional scholar: http://libertysflame.com/cgi-bin/readart.cgi?ArtNum=45874 Title: Our Republican Constitution http://libertysflame.com/cgi-bin/readart.cgi?ArtNum=46251 Title: Our Republican Constitution: Securing the Liberty and Sovereignty of We the People Not only did Randy Barnett publish the 296-page book for the general public above, but he previously published a real, full-blasted 1,348-page legal casebook which i just happen to own, and from which I quoted at my #29. Yes, I used tpaine's own preferred constitutional expert (among others) to certify that tpaine is full of shit and has no clue what he is talking about. It is an historical fact that when the Bill of Rights was passed in 1791 as part of the organic law defining the powers of the Federal government, the amendments did not restrict the powers then held by the state governments. Constitutional Law, Cases in Context, Randy E. Barnett, Aspen Publishers, 2008, page 148:
What really puzzles me is why any rational person would WANT to give States the power to ignore our individual rights. Why Nolu continues to support these State infringements, based on anti-gun opinions, is beyond rationality. Does he really believe that our republican form of government is best served by further prohibitions on individual freedoms? In reply, (actually, - putting foot in mouth) nolu posts: --- Title: Our Republican Constitution: Securing the Liberty and Sovereignty of We the People Source: [None] URL Source: [None] Published: May 15, 2016 Author: Randy E. Barnett Anyone can read Barnetts book, which establishes the FACT that there has always been argument about whether the States were bound by amendments to the constitution. -- Natually, the slave States disagreed. -- Nolu still does... So nolu claims, unsupported by the clear words of our Constitution, which specifies the opposite in several places, which I have previously pointed out. The following, by Barnett, supports my argument: -- Constitutional Law, Cases in Context, Randy E. Barnett, Aspen Publishers, 2008, page 148: "Today, most people take for granted that state governments must respect the rights contained in the Bill of Rights, but this is a relatively modern development that took place only after the adoption of the Fourteenth Amendment. In Barron v. Baltimore, Chief Justice Marshall describes what came to be the settled view of how and why the Bill of Rights did not apply to the states." Operative words: -- "what came to be". --- GRANTED, - the SCOTUS and the slave States (and later the southern democrats) have INSISTED that this is the 'settled view'. It is not... And has been in contention ever since.
tpaine cites no page for his argument that Barnett asserted there has been argument. It is a fact that there has been argument whether abortion should be legal or illegal. Citation to purported argument changes nothing. What Barnett actually writes at page 108 of Our Republican Constitution (2016), speaking of the post-war amendments: There were arguments. The arguments had failed. The U.S. Supreme Court had been crystal clear that the Bill of Rights did not apply to the States. That was why the 14th Amendment was required. So nolu claims, unsupported by the clear words of our Constitution, which specifies the opposite in several places, which I have previously pointed out. Dean Arseface and partner Jerry claim the 2nd Amendment created the right to keep and bear arms. These shitheads overlook that the colonists declared independence in 1776, had a government and union for years under the Articles of Confederation, and formed a new union and government in 1789 under the Constitution. They then claim that the right to keep and bear arms was created by amendment in 1791. If one believes shithead law and history, nowhere in the 15 years between 1776 and 1791 did the people assert the right to keep and bear arms. In reality, the people asserted the right to keep and bear arms as colonists, and as revolutionaries, and they brought that existing right with them into an American union. Just how stupid can you get? Barron v. Baltimore, 32 U.S. 243, 247-48 (1833) Opinion of the Court, Chief Justice Marshall (7-0) If these propositions be correct, the fifth amendment must be understood as restraining the power of the General Government, not as applicable to the States. In their several Constitutions, they have imposed such restrictions on their respective governments, as their own wisdom suggested, such as they deemed most proper for themselves. It is a subject on which they judge exclusively, and with which others interfere no further than they are supposed to have a common interest. American Constitutional Law 1, Sources of Power and Restraint, Otis H. Stephens, jr. and John M. Sheb II, 5th Ed., 2012, at 321: Constitutional Law, 17th Ed., Kathleen M. Sullivan and Gerald Gunther, Foundation Press, 2000, Page 348: Constitutional Law, 3rd Edition, Erwin Chermerinsky, Aspen Publishers, 2009, page 525-26: BARRON v. MAYOR & CITY COUNCIL OF BLATIMORE, 32 U.S. (7 Pet.) 243 (1833) [case quote omitted] From a late twentieth century perspective, it is troubling that state and local governments were free to violate basic constitutional rights. Yet, at the time of its decision, Barron made sense because of faith in state constitutions and because of the shared understanding that the Bill of Rights was meant to apply only to the federal government. As Professor John Hart Ely noted: "In terms of the original understanding, Barron was almost certainly decided correctly." Cases and Materials on Federal Constitutional Law, Volume V, The Fourteenth Amendment, Lee J. Strang, Lexis-Nexis 2013, page 61: The Incorporation Doctrine is a key function of the Due Process Clause. The Doctrine holds that (most of) the Bill of Rights applies to the states. The Incorporation Doctrine was at the heart of intense controversy from the 1920s to the 1960s. The controversy had a number of facets: first, whether the Bill of Rights applied to the states; second, whether the Due Process Clause was the vehicle to make that happen; third, whether the Due Process Clause incorporated some or all of the Bill of Rights; fourth, if the Due Process Clause incorporated only some of the Bill of Rights, what test should the Supreme Court utilize to make that determination; and, fifth, are the rights incorporated against the states identical to the rights as applied to the federal government? The background to the Incorporation Doctrine has two major components. The first is the Supreme Court case of Barron v. Baltimore, 32 U.S. (7 Pet.) 243 (1833), reprinted below, where the Supreme Court ruled that the Bill of Rights only restricted the federal government. The second component is the goal of the Reconstruction Republicans, inherited from the antebellum abolitionist movement, to apply federal constitutional restrictions to the states to prohibit slavery and protect newly freed black Americans. American Constitutional Law, Second Edition, Lawrence H. Tribe, The Foundation Press, Inc., 1988, page 772: (some citations omitted) In 1938, in United States v. Carolene Products Co., the Supreme Court suggested that "[t]here may be narrower scope for operation of the presumption of constitutionality when legislation appears on its face to be within a specific prohibition of the Constitution, such as those of the first ten Amendments, which are deemed equally specific when held to be embraced within the Fourteenth." Nine years later, the Court came within one vote of holding that the fourteenth amendment guaranteed that "no state could deprive its citizens of the privileges and protections of the Bill of Rights. 2 Such a holding could have taken either of two forms: most plausibly, it could have emerged as an elaboration of the privileges or immunities of national citizenship; or it could have emerged as a translation of fourteenth amendment "liberty" into the freedoms secured by the Bill of Rights, with the understanding that depriving someone of such liberty "without due process of law" means doing so "where the federal government could not." In neither form has the full incorporation of the Bill of Rights into the fourteenth amendment ever commanded a majority on the Court, but in giving content to the due process clause "the Court has looked increasingly to the Bill of Rights for guidance [to the point where] many of the rights guaranteed by the first eight Amendments'" have been "selectively" absorbed into the fourteenth. 2 Adamson v. California, 332 U.S. 46, 74-75 (1947) (Black, J., dissenting, joined on this issue by Douglas, Mruphy, and Rutledge, JJ.) Constitutional Law, Sixth Edition, Jerome A. Barron and C. Thomas Dienes, Black letter Series, West Group, 2003, page 164: One of the acts of the first Congress was to initiate the enactment of ten amendments to the Constitution, popularly called the Bill of Rights. These amendments were designed to protect the individual from various infringements on freedom which might emanate from the newly created federal government. The provisions of the Bill of Rights do not directly limit state action. Barron v. The Mayor and City Council of Baltimore (1833). Most of the guarantees of the Bill of Rights apply to the states as part of the liberty protected by The Fourteenth Amendment Due Process Clause. https://www.law.cornell.edu/wex/incorporation_doctrine The incorporation doctrine is a constitutional doctrine through which selected provisions of the Bill of Rights are made applicable to the states through the Due Process clause of the Fourteenth Amendment. This means that state governments are held to the same standards as the Federal Government regarding certain constitutional rights. The Supreme Court could have used the Privileges and Immunities Clause of the Fourteenth Amendment to apply the Bill of Rights to the states. However, in the Slaughter-House Cases 83 US 36, the Supreme Court held that the Privileges and Immunities clause of the Fourteenth Amendment placed no restriction on the police powers of the state and it was intended to apply only to privileges and immunities of citizens of the United States and not the privileges and immunities of citizens of the individual states. This decision effectively put state laws beyond the review of the Supreme Court. To circumvent this, the Supreme Court began a process called “selective incorporation” by gradually applying selected provisions of the Bill of Rights to the states through the Fourteenth Amendment Due Process clause. For Arsefaces who believe the whole Bill of Rights applies to the States today, they must explain the Fifth Amendment requirement for a Grand Jury. No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury, except in cases arising in the land or naval forces, or in the militia, when in actual service in time of war or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation. As everyone but Arseface knows, the vast majority of State cases are instituted without a Grand Jury, relying on an information submitted to the court. Black's Law Dictionary, 6th Edition While Fifth Amendment of U.S. Constitution requires federal government to prosecute infamous crimes only upon presentment of grand jury indictment, in most states the information may be used in place of grand jury indictment to bring a person to trial. As regards federal crimes, see Fed.RCrim.P. 7. See also Arraignment; Indictment; Preliminary hearing. As to joinder of informations, see Joinder. The Grand Jury provision of the Fifth Amendment has not been incorporated against the States. That has been the state of things from 1791 to 2016. Arseface.
The following, by Barnett, supports my argument: -- Constitutional Law, Cases in Context, Randy E. Barnett, Aspen Publishers, 2008, page 148: "Today, most people take for granted that state governments must respect the rights contained in the Bill of Rights, but this is a relatively modern development that took place only after the adoption of the Fourteenth Amendment. In Barron v. Baltimore, Chief Justice Marshall describes what came to be the settled view of how and why the Bill of Rights did not apply to the states." Operative words: -- "what came to be". --- GRANTED, - the SCOTUS and the slave States (and later the southern democrats, and now the progressive prohibitionists) have INSISTED that this is the 'settled view'. It is not... And has been in contention ever since. Round you go, in your circular denials, dispute your admission that there were arguments, --- and of course they 'failed', in YOUR eyes,and those of the SCOTUS. And as I've also said before, the 14th was indeed needed to clarify the issue, after the civil war. As usual, the rest of your post is repetitive opinion, that proves nothing other than you persist in trying to bafflegab the real issue. -- States are bound to honor our Constitution and its amendments, as specified in the document itself, and they always have been.
As you (falsely) claim that the whole Bill of Rights applies, and has always applied, to the States, please explain why the States are free to try and execute people without complying with the 5th Amendment requirement for an indictment issued by a grand jury. No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury, except in cases arising in the land or naval forces, or in the militia, when in actual service in time of war or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation. Why are States free to ignore that requirement every day?
States are bound to honor our Constitution and its amendments, as specified in the document itself, and they always have been. As usual, you fail to read and understand. ---- Note "as specified in the document itself". ---- There are specific exceptions, in the document. Read below: --- "on a presentment or indictment". Amendment V No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury, except in cases arising in the land or naval forces, or in the militia, when in actual service in time of war or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation. States don't ignore it; -- they are empowered to use their own version of 'a presentment'. Perhaps you should take a remedial course in reading comprehension?
States are bound to honor our Constitution and its amendments, as specified in the document itself, and they always have been. As usual, you fail to read and understand. ---- Note "as specified in the document itself". ---- There are specific exceptions, within the document. -- You claim the 5th amendment is such an exception. According to you, it doesn't. -- Which does NOT MEAN that a State like California can ignore the 2nd Amendment. Why do you think it can?
As usual, you fail to read and understand. ---- Note "as specified in the document itself". ---- There are specific exceptions, within the document. -- You claim the 5th amendment is such an exception. As shown below, I contended the entire Bill of Rights applied only to the Federal government and not to the States when ratified in 1791. Pursuant to the 14th Amendment, parts of the Bill of Rights have been selectively incorporated to apply to the States. The Second Amendment has recently been fully incorporated by McDonald v Chicago, 561 US 742 (2010). The Grand Jury provision of the 5th Amendment has never been incorporated and has never applied to the States, not in 1791, not now, and not in between. No part of the Bill of Rights applies to the States, or has ever applied to the States, except those which have specifically been incorporated by the U.S. Supreme Court. Your repeated claim that "This SCOTUS opinion is not definitive, and does not change the clear words of our Constitution, which has always applied to the States, except where specifically noted," is bullshit and has been bullshit for over two centuries. As I have clearly stated, no part of the Bill of Rights has ever applied to the States until it was incorporated by the Supreme Court. Incorporation started in the 20th century. The Bill of Rights still has portions that have not been incorporated. The Great State of California has, with no grand jury presentment or indictment, prosecuted a man for first degree murder, sentenced him to death, and had that upheld by the U.S. Supreme Court. You may try to dodge, duck and divert but it isn't going to work. I will return yo to your bullshit and destroy it. You are only documenting your ignorance of the law, as with your ignorance of what a presentment is, and your ignorance of the rule of incorporation. When ratified, the Bill of Rights hade no application to the States. According to you, it doesn't. -- Which does NOT MEAN that a State like California can ignore the 2nd Amendment. Why do you think it can? The 2nd Amendment was fully incorporated in 2010 against the states., all of them, including California. As I said at my #19: "County zoning laws which unduly infringe upon 2nd Amendment rights are unconstitutional." The 5th Amendment has never been fully incorporated and the Grand Jury provision has never applied to the States. To help you remember: The 14th Amendment did not exist in the times of the Framers. In their time the entire BoR only applied to the Federal Government. See MacDonald v. Chicago, 561 U.S. 742 (2010), Syllabus at 2: See MacDonald, Syllabus at 3: County zoning laws which unduly infringe upon 2nd Amendment rights are unconstitutional. This SCOTUS opinion is not definitive, and does not change the clear words of our Constitution, which has always applied to the States, except where specifically noted. Correct.
According to you, it doesn't. -- Which does NOT MEAN that a State like California can ignore the 2nd Amendment. Why do you think it can? Good to see that on that point, we agree. Other than that, you really should try to find another hobby. - - Constitutional law certainly seems to be causing you to become overwrought.
According to you, it doesn't. No, acccording to all law books and the U.S. Supreme Court. You make the bullshit claim that the whole Bill of Rights has always applied to the States. Cornered liike a trappede rat, you can only bluster and try more bullshit. What is obvious, and wich you only make more obvious, is that you have no idea of what you are talking about. Part of the 5th Amendment not applying does not mean that the 2nd Amendment does not apply. Only a shithead, such as yourself, would make that claim. Good to see that on that point, we agree. The 2nd Amendment was fully incorporated in 2010 by McDonald. In 1791, it did not apply at all to States. Good to see that on that point, we agree. Oh noes. I wouldn't think of it. You are not good for much but slapping around for amusement. Keep providing amusement, you are doing a fine impression of a hit me doll. Unfortunately, you do not know shit about the law and it is painfully obvious. I will try to make it as painfully obvious as posssible. IF, AS YOU MAINTAIN, THE BILL OF RIGHTS APPLIES, AND HAS ALWAYS APPLIED TO THE STATES, WHY HAVE THE STATES ALWAYS BEEN FREE TO IGNORE THE GRAND JURY REQUIREMENT OF THE FIFTH AMENDMENT? No answer, huh?
Good to see that on that point, we agree. The 2nd has always applied to the States, -- the 'incorporation' bull has just been used by statists to avoid compliance. - They, (and you) are losing. Other than that, you really should try to find another hobby. - - Constitutional law certainly seems to be causing you to become overwrought. Why? --- I can only speculate, but I'd say this minor point was conceded to the statism freaks by wise constitutionalists. Compromise is a necessary evil in our republican form of govt.
But you admit that part of the 5th Amendment has never applied and has been ignored by the States since 1791, and you are unable to explain why your bullshit theory of the constitution has been ignored for 215 years and counting. You and your bullshit are a winner, as described by Oliver Wendell Holmes, tpaine #40, imaginary constitutional law. Only an idiot, such as tpaine, could find an amendment to the Constitution to be unconstitutional. As for the whole Bill of Rights, Barron v. Baltimore, 32 U.S. 243, 247-48 (1833) Opinion of the Court, Chief Justice Marshall (7-0) If these propositions be correct, the fifth amendment must be understood as restraining the power of the General Government, not as applicable to the States. In their several Constitutions, they have imposed such restrictions on their respective governments, as their own wisdom suggested, such as they deemed most proper for themselves. It is a subject on which they judge exclusively, and with which others interfere no further than they are supposed to have a common interest. American Constitutional Law 1, Sources of Power and Restraint, Otis H. Stephens, jr. and John M. Sheb II, 5th Ed., 2012, at 321: Constitutional Law, 17th Ed., Kathleen M. Sullivan and Gerald Gunther, Foundation Press, 2000, Page 348: Constitutional Law, 3rd Edition, Erwin Chermerinsky, Aspen Publishers, 2009, page 525-26: BARRON v. MAYOR & CITY COUNCIL OF BLATIMORE, 32 U.S. (7 Pet.) 243 (1833) [case quote omitted] From a late twentieth century perspective, it is troubling that state and local governments were free to violate basic constitutional rights. Yet, at the time of its decision, Barron made sense because of faith in state constitutions and because of the shared understanding that the Bill of Rights was meant to apply only to the federal government. As Professor John Hart Ely noted: "In terms of the original understanding, Barron was almost certainly decided correctly." Cases and Materials on Federal Constitutional Law, Volume V, The Fourteenth Amendment, Lee J. Strang, Lexis-Nexis 2013, page 61: The Incorporation Doctrine is a key function of the Due Process Clause. The Doctrine holds that (most of) the Bill of Rights applies to the states. The Incorporation Doctrine was at the heart of intense controversy from the 1920s to the 1960s. The controversy had a number of facets: first, whether the Bill of Rights applied to the states; second, whether the Due Process Clause was the vehicle to make that happen; third, whether the Due Process Clause incorporated some or all of the Bill of Rights; fourth, if the Due Process Clause incorporated only some of the Bill of Rights, what test should the Supreme Court utilize to make that determination; and, fifth, are the rights incorporated against the states identical to the rights as applied to the federal government? The background to the Incorporation Doctrine has two major components. The first is the Supreme Court case of Barron v. Baltimore, 32 U.S. (7 Pet.) 243 (1833), reprinted below, where the Supreme Court ruled that the Bill of Rights only restricted the federal government. The second component is the goal of the Reconstruction Republicans, inherited from the antebellum abolitionist movement, to apply federal constitutional restrictions to the states to prohibit slavery and protect newly freed black Americans. American Constitutional Law, Second Edition, Lawrence H. Tribe, The Foundation Press, Inc., 1988, page 772: (some citations omitted) In 1938, in United States v. Carolene Products Co., the Supreme Court suggested that "[t]here may be narrower scope for operation of the presumption of constitutionality when legislation appears on its face to be within a specific prohibition of the Constitution, such as those of the first ten Amendments, which are deemed equally specific when held to be embraced within the Fourteenth." Nine years later, the Court came within one vote of holding that the fourteenth amendment guaranteed that "no state could deprive its citizens of the privileges and protections of the Bill of Rights. 2 Such a holding could have taken either of two forms: most plausibly, it could have emerged as an elaboration of the privileges or immunities of national citizenship; or it could have emerged as a translation of fourteenth amendment "liberty" into the freedoms secured by the Bill of Rights, with the understanding that depriving someone of such liberty "without due process of law" means doing so "where the federal government could not." In neither form has the full incorporation of the Bill of Rights into the fourteenth amendment ever commanded a majority on the Court, but in giving content to the due process clause "the Court has looked increasingly to the Bill of Rights for guidance [to the point where] many of the rights guaranteed by the first eight Amendments'" have been "selectively" absorbed into the fourteenth. 2 Adamson v. California, 332 U.S. 46, 74-75 (1947) (Black, J., dissenting, joined on this issue by Douglas, Mruphy, and Rutledge, JJ.) Constitutional Law, Sixth Edition, Jerome A. Barron and C. Thomas Dienes, Black letter Series, West Group, 2003, page 164: One of the acts of the first Congress was to initiate the enactment of ten amendments to the Constitution, popularly called the Bill of Rights. These amendments were designed to protect the individual from various infringements on freedom which might emanate from the newly created federal government. The provisions of the Bill of Rights do not directly limit state action. Barron v. The Mayor and City Council of Baltimore (1833). Most of the guarantees of the Bill of Rights apply to the states as part of the liberty protected by The Fourteenth Amendment Due Process Clause.
The 2nd has always applied to the States, -- the 'incorporation' bull has just been used by statists to avoid compliance. - They, (and you) are losing. Other than that, you really should try to find another hobby. - - Constitutional law certainly seems to be causing you to become overwrought. Why? --- I can only speculate, but I'd say this minor point was conceded to the statism freaks by wise constitutionalists. Compromise is a necessary evil in our republican form of govt. I've explained that to you numerous times before, on this thread, and others. --- You don't like my answer and you never will admit it. -- Tough. During a discussion with Nolu Chan, he asserted that an amendment repealing the 2nd could be ratified, and become a valid part of our Constitution. I contend such an amendment would be unconstitutional. Do you really think that calling me a name resolves the issue: -- can we 'amend away' our inalienable rights? Constitutionally? --- Logically, of course NOT. -- Why would you WANT to argue that we can? Damned if I know, or care.. You then go on: --- Posting the same long list of opinions you've posted many times before. -- Opinions do not prove your point that: --
You are full of shit. Lesson #1001 follows. https://supreme.justia.com/cases/federal/us/92/542/case.html United States v. Cruikshank, 92 U.S. 542, 553 (1875) Syllabus at 542: Opinion of the Court at 552-53: The right of the people peaceably to assemble for the purpose of petitioning Congress for a redress of grievances, or for any thing else connected with the powers or the duties of the national government, is an attribute of national citizenship, and, as such, under the protection of, and guaranteed by, the United States. The very idea of a government republican in form implies a right on the part of its citizens to meet peaceably for consultation in respect to public affairs and to petition for a redress of grievances. If it had been alleged in Page 92 U. S. 553 these counts that the object of the defendants was to prevent a meeting for such a purpose, the case would have been within the statute, and within the scope of the sovereignty of the United States. Such, however, is not the case. The offence, as stated in the indictment, will be made out, if it be shown that the object of the conspiracy was to prevent a meeting for any lawful purpose whatever. The second and tenth counts are equally defective. The right there specified is that of "bearing arms for a lawful purpose." This is not a right granted by the Constitution. Neither is it in any manner dependent upon that instrument for its existence. The second amendment declares that it shall not be infringed, but this, as has been seen, means no more than that it shall not be infringed by Congress. This is one of the amendments that has no other effect than to restrict the powers of the national government, leaving the people to look for their protection against any violation by their fellow citizens of the rights it recognizes, to what is called, in The City of New York v. Miln, 11 Pet. 139, the "powers which relate to merely municipal legislation, or what was, perhaps, more properly called internal police," "not surrendered or restrained" by the Constitution of the United States.
The Cruikshank OPINION above, claims that local police are not "restrained by the Constitution of the United States."? And you actually believe this? Get help...
And you actually believe this? Get help... Typical asshole quote out of context. The tpaine Court of the Demented™ needs help. Help is on the way and will just keep on coming. http://loc.heinonline.org/loc/Page?handle=hein.usreports/usrep36&id=147#147 NYC v. Miln, 36 U.S. 102, 139 (1837) But we do not place our opinion on this ground. We choose rather to plant ourselves on what we consider impregnable positions. They are these: That a state has the same undeniable and unlimited jurisdiction over all persons and things within its territorial limits as any foreign nation where that jurisdiction is not surrendered or restrained by the Constitution of the United States. That, by virtue of this, it is not only the right but the bounden and solemn duty of a state to advance the safety, happiness, and prosperity of its people and to provide for its general welfare by any and every act of legislation which it may deem to be conducive to these ends where the power over the particular subject or the manner of its exercise is not surrendered or restrained in the manner just stated. That all those powers which relate to merely municipal legislation, or what may perhaps more properly be called internal police, are not thus surrendered or restrained, and that consequently, in relation to these, the authority of a state is complete, unqualified, and exclusive. We are aware that it is at all times difficult to define any subject with proper precision and accuracy; if this be so in general, it is emphatically so in relation to a subject so diversified and multifarious as the one which we are now considering. If we were to attempt it, we should say that every law came within this description which concerned the welfare of the whole people of a state or any individual within it, whether it related to their rights or their duties; whether it respected them as men, or as citizens of the state; whether in their public or private relations; whether it related to the rights of persons or of property, of the whole people of a state or of any individual within it, and whose operation was within the territorial limits of the state and upon the persons and things within its jurisdiction.
#57. To: nolu chan (#55)
The Cruikshank OPINION above, claims that local police are not "restrained by the Constitution of the United States."? And you actually believe this? Get help... You posted the whole of the 'opinion', and I noted the part most offensive to our Constitutional principles, -- a part that is NOT out of context except in YOUR 'asshole' opinion. Here tis, again: Obviously, as stated in your own quote, there are indeed some state powers that are --- "restrained by the Constitution of the United States" --- Why in hell you choose to argue this point is beyond rationality. Really, get help..
Top • Page Up • Full Thread • Page Down • Bottom/LatestTeixeira revolves around Alameda County zoning rules
#6. To: Roscoe (#3)
So much for original intent.
#12. To: ConservingFreedom (#6)
How so?
#14. To: Roscoe (#12)
#15. To: ConservingFreedom (#14)
#19. To: Roscoe, ConservingFreedom (#15)
Quote one Framer contending that the intent of the 2nd Amendment was to control county zoning laws, ignoramus.
(b) The Bill of Rights, including the Second Amendment, originally applied only to the Federal Government, not to the States, see, e.g., Barron ex rel. Tiernan v. Mayor of Baltimore, 7 Pet. 243, 247, but the constitutional Amendments adopted in the Civil War’s aftermathfundamentally altered the federal system.
(d) The Fourteenth Amendment makes the Second Amendment right to keep and bear arms fully applicable to the States. Pp. 19–33.
#28. To: nolu chan (#19)
In their time the entire BoR only applied to the Federal Government.
#30. To: cranky, Y'ALL, Nolu Chan, (#28)
nolu chan --- In their time the entire BoR only applied to the Federal Government.
The Second Amendment refers to a preesisting right of the people. It did not create any right for anybody. As with the entire Bill of Rights, it did not apply to the States. It was a restriction of authority of the Federal government, only.
#33. To: tpaine, cranky (#30)
Why Nolu continues to support these State infringements, based on anti-gun opinions, is beyond rationality.
U.S. Constitution
See other U.S. Constitution Articles
Source: Amazon
URL Source: [None]
Published: Apr 21, 2016
Author: Randy Barnett
Post Date: 2016-04-21 18:54:18 by tpaine U.S. Constitution
See other U.S. Constitution Articles
Source: [None]
URL Source: [None]
Published: May 15, 2016
Author: Randy E. Barnett
Post Date: 2016-05-15 00:25:26 by tpaineToday, most people take for granted that state governments must respect the rights contained in the Bill of Rights, but this is a relatively modern development that took place only after the adoption of the Fourteenth Amendment. In Barron v. Baltimore, Chief Justice Marshall describes what came to be the settled view of how and why the Bill of Rights did not apply to the states. Reading Barron in its entirety is essential to grasping the objectives of the Repubicans in the Thirty-ninth Congress who drafted the Fourteenth Amendment, portions of which were meant to reverse Barron. Barron is to the Fourteenth Amendment what Chisholm v. Georgia is to the Eleventh. The reasoning of Barron is also crucial to appreciating both the need for, and the controversy surrounding, the so-called incorporation doctrine, developed in the twentieth century, by which selected portions of the Bill of Rights were "incorporated" into the Fourteenth Amendment and applied to the states.
#34. To: nolu chan, puts foot in mouth, again, Y'ALL (#33)
Not only did Randy Barnett publish the 296-page book for the general public above, but he previously published a real, full- blasted 1,348-page legal casebook which i just happen to own, and from which I quoted at my #29. Yes, I used tpaine's own preferred constitutional expert (among others) to certify that tpaine is full of shit and has no clue what he is talking about.
[this is not in Barnetts book] It is an historical fact that when the Bill of Rights was passed in 1791 as part of the organic law defining the powers of the Federal government, the amendments did not restrict the powers then held by the state governments.
#35. To: tpaine (#34)
Anyone can read Barnetts book, [except tpaine] which establishes the FACT that there has always been argument about whether the States were bound by amendments to the constitution. -- Natually, the slave States disagreed. -- Nolu still does...
Why then add the Privileges and Immunities Clause to the Constitution if these rights were already included in Article IV and in the first eight amendments? Because, Howard expalined, the courts had ruled that "these immunities, privileges, rights, thus guaranteed by the Constitution or recognized by it . . . do not operate in the slightest degree as a restraint or prohibition upon State legislation."
[this is not in Barnetts book] It is an historical fact that when the Bill of Rights was passed in 1791 as part of the organic law defining the powers of the Federal government, the amendments did not restrict the powers then held by the state governments.
The Constitution was ordained and established by the people of the United States for themselves, for their own government, and not for the government of the individual States. Each State established a constitution for itself, and in that constitution provided such limitations and restrictions on the powers of its particular government as its judgment dictated. The people of the United States framed such a government for the United States as they supposed best adapted to their situation and best calculated to promote their interests. The powers they conferred on this government were to be exercised by itself, and the limitations on power, if expressed in general terms, are naturally, and we think necessarily, applicable to the government created by the instrument. They are limitations of power granted in the instrument itself, not of distinct governments framed by different persons and for different purposes.
Incorporation of the Bill of Rights. Originally, the protections of the Bill of Rights applied only to infringements of liberty by the federal government (see Barron v. Baltimore [1833]) (discussed and reprinted in Volume II, chapter 1). However, the Fourteenth Amendment created a constitutional basis for the application of the Bill of Rights to state action.
The Bill of Rights originally guaranteed individual liberties only against the federal government. The proposal of the Bill of Rights was part of a political compromise designed to enlist support for ratification from Anti-Federalists who did not trust the enumeration of powers in the federal Constitution to serve as a sufficient check on the new national autority. Express checks on arbitrary exercises of authority were meant to add an external check to government of enumerated and thus limited powers. While Article I, § 10 imposed a handful of express prohibitions on state action, nothing in the first eight Amendments expressly constrained the states, and the 10th Amendment expressly reiterated that powers not delegated to the United States were reserved to the States.
The issue arose early in American history as to whether the Bill of Rights applies to state and local governments. The Supreme Court definitively answered that question in the following case.
C. THE INCORPORATION DOCTRINE
§ 11-2. Selective Incorporation of Bill of Rights Safeguards as a Partial Answer
B. BILL OF RIGHTS
Incorporation Doctrine
Amendment V
Information. An accusation exhibited against a person for some criminal offense, without an indictment. An accusation in the nature of an indictment, from which it differs only in being presented by a competent public officer on his oath of office, instead of a grand jury on their oath. A written accusation made by a public prosecutor, without the intervention of a grand jury. Salvail v. Sharkey, 108 RI. 63, 271 A.2d 814, 817. Function of an "information" is to inform defendant of the nature of the charge made against him and the act constituting such charge so that he can prepare for trial and to prevent him from being tried again for the same offense. People v. Cooper, 35 Misc.2d 90, 229 N.Y.S.2d 287, 288.
#36. To: nolu chan (#35)
There were arguments. The arguments had failed. The U.S. Supreme Court had been crystal clear that the Bill of Rights did not apply to the States. That was why the 14th Amendment was required.
#38. To: tpaine (#36)
States are bound to honor our Constitution and its amendments, as specified in the document itself, and they always have been.
Amendment V
#39. To: nolu chan (#38)
As you (falsely) claim that the whole Bill of Rights applies, and has always applied, to the States,
- please explain why the States are free to try and execute people without complying with the 5th Amendment requirement for an indictment issued by a grand jury.
Why are States free to ignore that requirement every day?
#41. To: All (#39)
As you (falsely) claim that the whole Bill of Rights applies, and has always applied, to the States,
For a major Federal crime, a grand jury is mandatory per the 5th Amendment. For a State prosecution is is not, depending on State law. Most states use an information, with no grand jury presentment or indictment involved, as no grand jury is involved. --- How can that be if the 5th Amendment applies to the States?
#44. To: tpaine (#41)
States are bound to honor our Constitution and its amendments, as specified in the document itself, and they always have been.
As you (falsely) claim that the whole Bill of Rights applies, and has always applied, to the States,
For a major Federal crime, a grand jury is mandatory per the 5th Amendment. For a State prosecution is is not, depending on State law. Most states use an information, with no grand jury presentment or indictment involved, as no grand jury is involved. --- How can that be if the 5th Amendment applies to the States?
#19. To: Roscoe, ConservingFreedom (#15)
Quote one Framer contending that the intent of the 2nd Amendment was to control county zoning laws, ignoramus.
(b) The Bill of Rights, including the Second Amendment, originally applied only to the Federal Government, not to the States, see, e.g., Barron ex rel. Tiernan v. Mayor of Baltimore, 7 Pet. 243, 247, but the constitutional Amendments adopted in the Civil War’s aftermathfundamentally altered the federal system.
(d) The Fourteenth Amendment makes the Second Amendment right to keep and bear arms fully applicable to the States. Pp. 19–33.
Roscoe --- Quote one Framer contending that the intent of the 2nd Amendment was to control county zoning laws, ignoramus.
Nolu Chan. ---- The 14th Amendment did not exist in the times of the Framers. In their time the entire BoR only applied to the Federal Government.
See MacDonald v. Chicago, 561 U.S. 742 (2010), Syllabus at 2: --- (b) The Bill of Rights, including the Second Amendment, originally applied only to the Federal Government, not to the States, see, e.g., Barron ex rel. Tiernan v. Mayor of Baltimore, 7 Pet. 243, 247, but the constitutional Amendments adopted in the Civil War’s aftermath fundamentally altered the federal system.
County zoning laws which unduly infringe upon 2nd Amendment rights are unconstitutional.
#45. To: nolu chan (#44)
Most states use an information, with no grand jury presentment or indictment involved, as no grand jury is involved. --- How can that be if the 5th Amendment applies to the States?
As I said at my #19: "County zoning laws which unduly infringe upon 2nd Amendment rights are unconstitutional."
#47. To: tpaine (#45)
Most states use an information, with no grand jury presentment or indictment involved, as no grand jury is involved. --- How can that be if the 5th Amendment applies to the States?
-- Which does NOT MEAN that a State like California can ignore the 2nd Amendment.
As I said at my #19: "County zoning laws which unduly infringe upon 2nd Amendment rights are unconstitutional."
Other than that, you really should try to find another hobby. - - Constitutional law certainly seems to be causing you to become overwrought.
#49. To: nolu chan (#47)
As I said at my #19: "County zoning laws which unduly infringe upon 2nd Amendment rights are unconstitutional."
The 2nd Amendment was fully incorporated in 2010 by McDonald. In 1791, it did not apply at all to States. Good to see that on that point, we agree.
Oh noes. I wouldn't think of it. You are not good for much but slapping around for amusement. Keep providing amusement, you are doing a fine impression of a hit me doll. Unfortunately, you do not know shit about the law and it is painfully obvious. I will try to make it as painfully obvious as posssible. ---- IF, AS YOU MAINTAIN, THE BILL OF RIGHTS APPLIES, AND HAS ALWAYS APPLIED TO THE STATES, WHY HAVE THE STATES ALWAYS BEEN FREE TO IGNORE THE GRAND JURY REQUIREMENT OF THE FIFTH AMENDMENT.
#50. To: tpaine (#49)
The 2nd has always applied to the States, -- the 'incorporation' bull has just been used by statists to avoid compliance. - They, (and you) are losing.
It is not enough for the knight of romance that you agree that his lady is a very nice girl—if you do not admit that she is the best that God ever made or will make, you must fight. There is in all men a demand for the superlative, so much so that the poor devil who has no other way of reaching it attains it by getting drunk. It seems to me that this demand is at the bottom of the philosopher’s effort to prove that truth is absolute and of the jurist’s search for criteria of universal validity which he collects under the head of natural law.
During a discussion with Nolu Chan, he asserted that an amendment repealing the 2nd could be ratified, and become a valid part of our Constitution. I contend such an amendment would be unconstitutional.
The Constitution was ordained and established by the people of the United States for themselves, for their own government, and not for the government of the individual States. Each State established a constitution for itself, and in that constitution provided such limitations and restrictions on the powers of its particular government as its judgment dictated. The people of the United States framed such a government for the United States as they supposed best adapted to their situation and best calculated to promote their interests. The powers they conferred on this government were to be exercised by itself, and the limitations on power, if expressed in general terms, are naturally, and we think necessarily, applicable to the government created by the instrument. They are limitations of power granted in the instrument itself, not of distinct governments framed by different persons and for different purposes.
Incorporation of the Bill of Rights. Originally, the protections of the Bill of Rights applied only to infringements of liberty by the federal government (see Barron v. Baltimore [1833]) (discussed and reprinted in Volume II, chapter 1). However, the Fourteenth Amendment created a constitutional basis for the application of the Bill of Rights to state action.
The Bill of Rights originally guaranteed individual liberties only against the federal government. The proposal of the Bill of Rights was part of a political compromise designed to enlist support for ratification from Anti-Federalists who did not trust the enumeration of powers in the federal Constitution to serve as a sufficient check on the new national autority. Express checks on arbitrary exercises of authority were meant to add an external check to government of enumerated and thus limited powers. While Article I, § 10 imposed a handful of express prohibitions on state action, nothing in the first eight Amendments expressly constrained the states, and the 10th Amendment expressly reiterated that powers not delegated to the United States were reserved to the States.
The issue arose early in American history as to whether the Bill of Rights applies to state and local governments. The Supreme Court definitively answered that question in the following case.
C. THE INCORPORATION DOCTRINE
§ 11-2. Selective Incorporation of Bill of Rights Safeguards as a Partial Answer
B. BILL OF RIGHTS
#52. To: nolu chan (#50)
The 2nd Amendment was fully incorporated in 2010 by McDonald. In 1791, it did not apply at all to States. Good to see that on that point, we agree.
Oh noes. I wouldn't think of it. You are not good for much but slapping around for amusement. Keep providing amusement, you are doing a fine impression of a hit me doll. Unfortunately, you do not know shit about the law and it is painfully obvious. I will try to make it as painfully obvious as posssible. ---- IF, AS YOU MAINTAIN, THE BILL OF RIGHTS APPLIES, AND HAS ALWAYS APPLIED TO THE STATES, WHY HAVE THE STATES ALWAYS BEEN FREE TO IGNORE THE GRAND JURY REQUIREMENT OF THE FIFTH AMENDMENT.
But ------- you are unable to explain why your bullshit theory of the constitution has been ignored for 215 years and counting.
tpaine #40, imaginary constitutional law.
Only an idiot, such as tpaine, could find an amendment to the Constitution to be unconstitutional.
As for the whole Bill of Rights, ---
The 2nd Amendment was fully incorporated in 2010 by McDonald. In 1791, it did not apply at all to States.
The 2nd has always applied to the States, -- the 'incorporation' bull has just been used by statists to avoid compliance. - They, (and you) are losing.
#53. To: tpaine (#52)
The 2nd has always applied to the States, -- the 'incorporation' bull has just been used by statists to avoid compliance. - They, (and you) are losing.
4. The right of the people peaceably to assemble for lawful purposes, with the obligation on the part of the States to afford it protection, existed long before the adoption of the Constitution. The First Amendment to the Constitution, prohibiting Congress from abridging the right to assemble and petition, was not intended to limit the action of the State governments in respect to their own citizens, but to operate upon the National Government alone. It left the authority of the States unimpaired, added nothing to the already existing powers of the United States, and guaranteed the continuance of the right only against Congressional interference. The people, for their protection in the enjoyment of it, must therefore look to the States, where the power for that purpose was originally placed.
The particular amendment now under consideration assumes the existence of the right of the people to assemble for lawful purposes, and protects it against encroachment by Congress. The right was not created by the amendment; neither was its continuance guaranteed, except as against congressional interference. For their protection in its enjoyment, therefore, the people must look to the States. The power for that purpose was originally placed there, and it has never been surrendered to the United States.
#54. To: nolu chan (#53)
The second amendment declares that it shall not be infringed, but this, as has been seen, means no more than that it shall not be infringed by Congress. This is one of the amendments that has no other effect than to restrict the powers of the national government, leaving the people to look for their protection against any violation by their fellow citizens of the rights it recognizes, to what is called, in The City of New York v. Miln, 11 Pet. 139, the "powers which relate to merely municipal legislation, or what was, perhaps, more properly called internal police," "not surrendered or restrained" by the Constitution of the United States.
#55. To: tpaine (#54)
The Cruikshank OPINION above, claims that local police are not "restrained by the Constitution of the United States."?
The second amendment declares that it shall not be infringed, but this, as has been seen, means no more than that it shall not be infringed by Congress. This is one of the amendments that has no other effect than to restrict the powers of the national government, leaving the people to look for their protection against any violation by their fellow citizens of the rights it recognizes, to what is called, in The City of New York v. Miln, 11 Pet. 139, the "powers which relate to merely municipal legislation, or what was, perhaps, more properly called internal police," "not surrendered or restrained" by the Constitution of the United States.
There is then no collision between the law in question and the acts of Congress just commented on, and therefore, if the state law were to be considered as partaking of the nature of a commercial regulation, it would stand the test of the most rigid scrutiny if tried by the standard laid down in the reasoning of the Court quoted from the case of Gibbons v. Ogden.
Replies to Comment # 55. Typical asshole quote out of context.
That a state has the same undeniable and unlimited jurisdiction over all persons and things within its territorial limits as any foreign nation where that jurisdiction is not surrendered or restrained by the Constitution of the United States. ----- That all those powers which relate to merely municipal legislation, or what may perhaps more properly be called internal police, are not thus surrendered or restrained, and that consequently, in relation to these, the authority of a state is complete, unqualified, and exclusive.
End Trace Mode for Comment # 55.
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