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To my rationale, the Bill of Rights does not apply to ANY level of government other than to restrict that governments ability to restrict the PEOPLES freedoms. The Constitution and the Bill of Rights applies to the People. The People being the citizens of this country. No branch of government has the power to amend or restrict the rights granted to us. That includes the courts. No justice has the power to interpret the Bill of Rights to their own ends. "Right of the People' means exactly what it says. Is that to simple a concept for politicians and judges to understand? Courts can rule in whatever manner they see fit, but I will not give up ANY of my rights because some judge has a problem with understanding simple English. "The right of THE PEOPLE, to keep and bear arms, shall not be infringed". This refers to the same people that all the other amendments do.
No activism required. Just rule according to what the Constitution says... for a change.
"Judicial activism" usually refers to judges handing down rulings that violate the Constitution.
Aah, but violation is in the eye of the beholder... obviously there is a lot of dissent on this issue... so I would think the conservative view would be to honor the tradition of stare decisis and to be happy that the individual states get to make their own rules.
"With respect to Cruikshank's continuing validity on incorporation, a question not presented by this case, we note that Cruikshank also said that the First Amendment did not apply against the States and did not engage in the sort of Fourteenth Amendment inquiry required by our later cases."
However the court couldn't rule on incorporation in Heller because it was a federal matter not a state case.
That's a correct observation... Easterbrook also seemed to intimate that the SC would eventually incorporate the 2nd amendment onto the states... really fascinating stuff (if you're into this kind of thing).
As far as I know, the federal Constitution was never meant to apply to the states. It's a fairly recent (last 100 years - one of the late-teen amendments) that "incorporation" began to be applied by the courts. "Incorporation" means that certain parts of the Constitution have been interpreted as applying to the states.
The Second Amendment has not been "incorporated" yet. Therefore, it would take an activist court to make that interpretation. It would be a change from the original intent.
Conservatives are absolutely the most activist judges.
But today's 7th Circuit ruling is a clear violation of the 2nd's ban on gun restrictions.
Actually, it was not. And the 7th circuit was very critical of the 9th circuit's contrary ruling. Basically the NRA took one in the shorts.
While I agree with the legal reasoning of the verdict, I disagree with the effect of the results. And it is true that it would take judicial activism for the circuits to rule any differently. We shall have to wait and see what SCOTUS says.
I thought so as well. I don't understand how they got under the 14th Amendment on this one. You say there have been other appellate cases? Do you have citations?
In fact one of the targets of both the amendment and the acts were the disarming of Blacks by Southern gun control during Reconstruction. Specifically mentioned in Congress as a reason was the Second Amendment rights of the freed slaves. Blacks were disarmed and rendered defenseless against vigilantes.
The understandings of it that the framers of the 2nd Amendment would have had remain murky, this from the derivation of the wording itself, from less than conclusive contemporary writings, and from a history of the issue that was well known then but is hardly known at all now. The understandings of the 2nd Amendment that were held by the framers of the 14th Amendment are by contrast perfectly clear. They absolutely found an individual right to bear arms, and assuring that right to free and emancipated blacks was not just one objective, but one of the primary objectives of their endeavors. In some senses at least, it was very unfortunate for the nation that subsequent court decisions were taken as they were.
To my rationale, the Bill of Rights does not apply to ANY level of government other than to restrict that governments ability to restrict the PEOPLES freedoms. The Constitution and the Bill of Rights applies to the People. The People being the citizens of this country.
The Constitution establishes the powers of the federal government. The Federalists at least assumed that no Bill of Rights would be necessary within it as they were confident that no power had been created that could be wielded to compromise the rights of the people. The Anti-Federalists were not so sure, fearing that demagogues might arise in the future who could manipulate the system so as to use powers to abridge rights. They insisted upon a Bill of Rights. Federalists warned -- and rightly so, as often as such arguments are seen even today -- that an enumeration of certain rights would invite and work to the disparagement of other rights not enumerated. In the end the Constitution was adopted on its own, but with a commitment to add a Bill of Rights via amendment (there were originally twelve) at an early time. The Constitution does not, meanwhile, restrict its applications to those who are citizens, and that word is in any case not provided with any fixed definition at all within the original document.
Quote:
Originally Posted by NVplumber
No branch of government has the power to amend or restrict the rights granted to us. That includes the courts. No justice has the power to interpret the Bill of Rights to their own ends.
Of necessity, the Constitution does not endeavor to provide instruction as to how its terms should be applied under every conceivable circumstance. That task has ultimately fallen to the federal courts. Justices must, and therefore can and do, determine which side of some line a particular set of circumstances falls on. In this, they do expand and restrict the scope of rights, typically by expanding and restricting the scope of powers. The system is supposed to work this way. There is no guaranty that you will agree with every outcome.
Quote:
Originally Posted by NVplumber
"Right of the People' means exactly what it says. Is that to simple a concept for politicians and judges to understand? Courts can rule in whatever manner they see fit, but I will not give up ANY of my rights because some judge has a problem with understanding simple English. "The right of THE PEOPLE, to keep and bear arms, shall not be infringed". This refers to the same people that all the other amendments do.
One may not construe the Constitution or other product of the legislature so as to give its words no meaning. While you didn't include them, the words "A well regulated Militia, being necessary to the security of a free State" appear in the 2nd Amendment prior to the words you did include. Most people seem to see these words as being somehow limiting or restrictive, but however you approach them, you must account for them and give them meaning.
Federalists warned -- and rightly so, as often as such arguments are seen even today -- that an enumeration of certain rights would invite and work to the disparagement of other rights not enumerated. In the end the Constitution was adopted on its own, but with a commitment to add a Bill of Rights via amendment (there were originally twelve) at an early time.
The reason for the 9th and 10th Amendments. Which have mostly been ignored by the courts...
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