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View Full Version : I have no idea WTF the Constitution is good for.



logroller
06-16-2012, 01:39 AM
After reading the Cruikshank (http://scholar.google.com/scholar_case?case=9699370891451726349&hl=en&as_sdt=2,5&as_vis=1) and Presser (http://scholar.google.com/scholar_case?case=4596878248056996108&hl=en&as_sdt=2&as_vis=1&oi=scholarr) decisions, I have come to the conclusion the Constitutional Amendments apply only to the Feds and the States can piss the bill of rights.

Kathianne
06-16-2012, 01:52 AM
After reading the Cruikshank (http://scholar.google.com/scholar_case?case=9699370891451726349&hl=en&as_sdt=2,5&as_vis=1) and Presser (http://scholar.google.com/scholar_case?case=4596878248056996108&hl=en&as_sdt=2&as_vis=1&oi=scholarr) decisions, I have come to the conclusion the Constitutional Amendments apply only to the Feds and the States can piss the bill of rights.

You might like to read this, (I'm meaning the links):

http://www.aleksandreia.com/2009/05/27/second-amendment-cruikshank-and-presser/


Second Amendment, Cruikshank and Presser (http://www.aleksandreia.com/2009/05/27/second-amendment-cruikshank-and-presser/) May 27th, 2009 by steve2

(http://www.aleksandreia.com/author/steve2/)


While reading through Sotomayor’s record on SCOTUSBLOG (http://www.scotusblog.com/wp/) (a good read), I became interested in her Second Amendment ruling. The state of New York has a law prohibiting carrying nunchucks (two sticks joined by a short piece of chain). This is being appealed as a second amendment issue. Sotomayor’s court upheld that state’s decision claiming that Presser has never been overturned.


In Presser vs Illinois, good review here on the Second Amendment Project site (http://www.davekopel.com/2A/Mags/Presser-versus-Illinois.htm), the Supreme Court ruled that the Second Amendment applied to Congress. States maintained the right to regulate arms for their own particular needs. As pointed out in the Second Amendment Project site, the Court held that the people still have a basic right to arms. There is no absolute ban. Presser simply supports the idea that the state may make reasonable, moderate laws about firearms ownership and usage.


Presser rests heavily upon the United States vs Cruikshank. I will just cite Wikipedia here (http://en.wikipedia.org/wiki/United_States_v._Cruikshank) as it seems to have as good a review as any of several I have read.( It is also shorter.) In this case, there was violence surrounding an election. Three white people were killed and about 200 blacks were killed. Some of the whites were charged under the Enforcement Act. They were charged with conspiring to deprive others of their Constitutional rights. The Supreme Court ruled..


“The Supreme Court ruled on a range of issues and found the indictment faulty. It overturned the convictions of two defendants in the case. The Court did not incorporate the Bill of Rights to the states and found that the First Amendment right to assembly “was not intended to limit the powers of the State governments in respect to their own citizens” and that the Second Amendment “has no other effect than to restrict the powers of the national government.”


Cruikshank was decided in 1875. Presser in 1886. Presser builds on Cruikshank. Many aspects of Cruikshank have been overturned, but Presser has not. So, if a court follows precedent, how could they overturn the New York decision? I believe the answer lies in how one interprets the part of Presser which states that citizens have right to bear arms, while the state has the right to some regulation. The courts need to decide if New York has overstepped its bounds in regulating.


My real question here, taking over 300 words to get here, is why doesn’t Congress pass a law clarifying this issue? Making law is the purview of Congress. The Constitution is a bit vague. If they had just written an amendment that said people have the right to bear arms and who would regulate that right, or stipulated no regulation, we would not be in this situation. Heller, while helpful, did not take place in a state, so the issue of state’s rights remains on the table.


A Supreme Court ruling on the New York case may help to clarify, but it is by far a second best choice. Since it does not involve forearms, it will probably need to be tried again. These older precedents still seem tinged by the ethos of the time. They offered refuge to whites against the racial problems of the time. Was theirs a pure interpretation of the law? Were they biased?


What am I missing here? Wouldn’t it be cleaner and more Constitutionally correct to address this through a pertinent law rather than court rulings?


Steve

logroller
06-16-2012, 02:59 AM
You might like to read this, (I'm meaning the links):

http://www.aleksandreia.com/2009/05/27/second-amendment-cruikshank-and-presser/

What I found more troubling was in regards to the 1st amendment's interpretation of peaceable assembly to pertain solely intentioned toward redress of grievances. Maybe I'm way off, but that's how I read it.

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 553*553these 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.

sounds to me like a state could make a law saying you can't peaceably assemble to petition for a referendum of a state law, and that would be a-ok from a federal standpoint. Please tell me that clause's interpretation was overruled?

ConHog
06-16-2012, 10:29 PM
What I found more troubling was in regards to the 1st amendment's interpretation of peaceable assembly to pertain solely intentioned toward redress of grievances. Maybe I'm way off, but that's how I read it.


sounds to me like a state could make a law saying you can't peaceably assemble to petition for a referendum of a state law, and that would be a-ok from a federal standpoint. Please tell me that clause's interpretation was overruled?

IMHO incorporation is a load of shit. That was NEVER the intent of the FF's. They SOLELY meant for the original amendments to apply to the USG ONLY.

Ex: Many of the original colonies were founded by communities of certain religions and that is how they wanted their colonies (later to become states) ran. The Amendment was meant to keep the feds in check in regards to what each state did.

Now, it is fair to say that in certain regards the founders expected each of the states to include certain things in their state constitutions before they were admitted as states; but they NEVER intended for the BoR itself to be incorporated.