Should the 2nd Am. Be Incorporated Under the Due Process Clause of the 14th Am.

[Aguila Blanca]

I won't vote. This pole has no choice for the fact that the Second Amendment stands alone and is applicable across the board. All government is prohibited to infringe upon the right. There is precedent in the Federalist Papers indicating the authors of the Second Amendment intended the prohibition in the Amendment to apply to the several states as well as the Union.

There is a boat load of logic that supports that as well.

I agree with CC. I get there by a somewhat different route, relying more on the language of the entire BOR and less on the writings of The Federalist Papers, but we get to the same place.

Courts and liberal judges notwithstanding, most sane people will acknowledge that the men who authored the BOR were intelligent men, among the brightest and best educated of their time; that they spent a certain amount of time and effort in writing the several amendments comprising the BOR; and that they generally knew how to write down what they intended to say.

Thus, in the 1st Amendment, in discussing what we have come to refer to as "freedom of religion," they wrote that "Congress" shall enact no law ...

"Congress." The Federal government. That's who the 1st Amendment restricted. It was VERY clear ... to anyone who is willing to read the words on the paper. The intention in the 1st Amendment was to limit the power of the Federal government to meddle in the states' affairs regarding religion. Remember, many of the original colonies began as religious colonies, started by people trying to escape religious persecution in their countries of origin. They not only did NOT want to risk creating the same mess they had just escaped, they also wanted to be sure their own religious leanings would not be invalidated by the new Fedral government. Far from wanting to ensure that everyone in every state could practice Zoroastrianism to their heart's content, what was really on their minds was the full knowledge that the founders of colonies such as Rhode Island, Connecticut and Massachusetts had very well-developed ideas of what they thought religion should be, and they didn't want the new government to muck it up.

But in the 2nd Amendment, there is no reference to "Congress" shall not infringe the RKBA. Nope ... no mention of Congress whatsoever. It says flat out that the RKBA "... shall not be infringed." That means not by anyone.

I have read, right here on the High Road, numerous posts stating that because the 1st Amendment limited the Congress, "of course" or "naturally" the 2nd Amendment also was intended to limit only the Congress. To that argument I reply, "Balderdash." The men who wrote the BOR were MUCH more intelligent than that. I respectfully submit that, had that been their intention, they would have done what any half-decent lawyer does to avoid repeating himself: They would have said, in the 1st, something to the effect of "Anywhere else in this document we express a limitation, it means that only Congress shall be so limited."

They didn't do that. The 2nd Amendment is all-encompassing, and despite the courts' pandering to modern hysteria, there is NOTHING in the 2nd Amendment that leaves the door open even a crack to "reasonable regulation." Regulation = restriction = infringement. "The right of the People to keep and bear arms shall not be infringed." I must be stupid, because I just cannot figure out what's so bloody difficult to understand in that one, simple sentence.

 

[hugh damright]

I am saying that the 14th was not intended to make the USBOR binding upon the States.

The statement above is definitely a patent falsehood.

Hardly. It is my learned opinion. I have spent many hours reading the congressional debates over the reconstruction amendments, and my impression is that Bingham's view was a radical minority view. I am quite aware of Bingham's comments, but I think they represent his personal view, and are in no way indicative of the consensus view.

The idea that John Bingham alone determined the meaning of the 14th "Amendment" seems very peculiar to me. I don't understand it to be an assertion that his view represented the view of the Reconstruction Committee, or that his view represented the House, or the Congress, or the States ... the idea seems to be that Bingham's personal view is all that matters.

From what I can tell, the consensus view was that the intent and purpose of the 14th was to make the Civil Rights Act part of the US Constitution. I have also read books on this subject and this seems to be a common conclusion. In fact, the more I learn about it, the more incredible I find the belief that the 14th was intended to make the USBOR binding up on the States.

I have a good book here called "The Bill of Rights: Original Meaning and Current Understanding" (Hickok) which says that "The legislative history of the Fourteenth Amendment demonstrates that the application by the Supreme Court of the Bill of Rights to the states [is] an unconstitutional assumption of powers by courts of the United States which no lapse of time or respectable array of opinion should make us hesitate to correct". It says that there is a mountain of evidence that the 14th was not intended to incorporate the USBOR, and a few stones and pebbles that make up the theory that the 14th incorporated the USBOR (actually I think that comes from Fairman's work on the subject).

I have Berger's "Government by Judiciary" and Bradford's "Original Intentions", which explain that Bingham was a "muddled thinker", "out to sea", and "no barometer of the House".

It seems to me that the great body of evidence and the serious works on the subject indicate that the 14th was not intended to make the USBOR binding upon the States. And after many hours of study, I have come to share this view. I continue to read and learn about the subject, but to just write my opinion off as "definitely a patent falsehood" would be a mistake.

 

[Tyris]

When states like CA, MA, NJ, NY start doing stupid things like banning guns, then the feds need to step in, squash their pathetic "states rights" and stick a foot in their rear.

I dont care how stupid the inhabitants of those states are to elect their bone headed masters, they need to be beaten into submission via the 14th.

-T

 

[RealGun]

You do know that if failed, don't you? - hugh damright

But then the South also failed.

You really have a talent for controlling this topic. No one will really follow you unless they are aware of the reference to Confederate in your profile.

 

[TAB]

When states like CA, MA, NJ, NY start doing stupid things like banning guns, then the feds need to step in, squash their pathetic "states rights" and stick a foot in their rear.

I dont care how stupid the inhabitants of those states are to elect their bone headed masters, they need to be beaten into submission via the 14th.

-T

Yes, lets break one part of the US cons to "protect" another.

 

[ArmedBear]

My view is that state-level violations of the Bill Of Rights in general (let alone gun rights) need to be controlled by Fed authority. His view is that it makes the Feds too powerful.

It's hard for me to come up with a reason why the State governments should be allowed to violate anything in the Bill of Rights.

Should, for example, the government of Utah be allowed to make LDS the state religion, ban all other religions, censor the press, imprison people for their speech, imprison people indefinitely without cause or trial, or take property for public use without compensation?

I doubt anyone will say, "yes" to these. So, why should California or New York be allowed to deny the right to keep and bear arms?

What's the difference?

The states have agreed to the Constitution. What's wrong with enforcing the aspect of that agreement that says that they can't violate the contents of the Bill of Rights, in particular any that do not restrict Congress? The 2nd Amendment says nothing about Congress.

Yes, lets break one part of the US cons to "protect" another.

What part would be broken? Are you suggesting that states didn't ratify some restrictions on their own power when they ratified the Constitution (and the 14th)?

Also, from a strictly pragmatic perspective, I can see no "upside" to allowing the states to restrict individual freedom. Any restrictions that limit government power over citizens are a good thing, to me. Of all the problems with our government, I hardly see excessive guarantees of personal freedom as something to be fought. Is that something that people really want to fight for? The right of state governments to take away individual freedoms while remaining part of the United States?

Oh wait... But that was a long time ago, right?

Not for some, I guess.

 

[El Tejon]

The South was defeated and the lesson taught to it is that the States cannot violate the rights of its citizens no matter how many people vote for this violation.

The idea that John Bingham alone determined the meaning of the 14th "Amendment" seems very peculiar to me.

No, it is not peculiar. The Supreme Court looks to the words and original intent of the Framers to determine what the Fourteenth Amendment was to do. What Bingham is extremely relevant. The revisionist history of Lost Causers is not relevant.

If do not want to read what the Framers said then you can look to his fellows in the House like Clarke or the Senator like Howard. All decried Southern violation of Black civil rights, including specifically the right to keep and bear arms.

From what I can tell, the consensus view was that the intent and purpose of the 14th was to make the Civil Rights Act part of the US Constitution

You would be incorrect.

I have also read books on this subject and this seems to be a common conclusion. In fact, the more I learn about it, the more incredible I find the belief that the 14th was intended to make the USBOR binding up on the States.

You are perhaps twenty five years behind legal scholarship. The notion that the 14th Amendment protected some rights but not others began to dissolve in the 1980s. It started with Michael Kent Curtis's No State Shall Abridge: The Fourteenth Amendment and the Bill of Rights (1986).

The Congressional Record is replete with calls for total incorporation of the Bill of Rights. The resistance to total incorporation came from Lost Causers who hoped to maintain their control over Blacks by denying them their rights and keeping them as second class citizens.

Stephen Halbrook did amazing work in his lodestar work That Every Man Be Armed at 107-53 (highlighting Congressional concern on stopping States from infringing the right of Blacks to keep and bear arms). The scholarship done by Lost Causers has been laughable and disingenious to say the least.

It seems to me that the great body of evidence and the serious works on the subject indicate that the 14th was not intended to make the USBOR binding upon the States.

It is the inverse. The great body of study holds that the Framers intended the Fourteenth Amendment to apply the BoR to the States. To say otherwise is to merely repeat the precatory thinking of the Lost Causers.

Yes, lets break one part of the US cons to "protect" another.

Break? Where? States that violate the United States Constitution must be brought into line. That is why the Fourteenth Amendment exists to stop State privation of private rights.

 

[hugh damright]

You are perhaps twenty five years behind legal scholarship. The notion that the 14th Amendment protected some rights but not others began to dissolve in the 1980s. It started with Michael Kent Curtis's No State Shall Abridge:

I don't think so. Berger was aware of activists like Curtis. I have the Second Edition of his book which was printed in 1997, hardly twenty five years old ... it says:

"The current activist icon, Michael Kent Curtis, who set out to supply an historical footing for "incorporation", admitted that his "theseis is intensely controversial", and stated that his goal was to find the "probable Republican understanding of a question to which they had paid little direct attention". He reasoned that the key to construction of the 1866 debates is furnished by "certain unorthodox constitutional ideas held by a numer of Republicans" - never mind that the greatly preponderant Republican view was to the contrary."

By the way, to all the people who keep repeating over and over that the Framers of the 14th intended something, can you please name the Framers of the 14th?

 

[hugh damright]

What's wrong with enforcing the aspect of [the Constitution] that says that they can't violate the contents of the Bill of Rights?

First off, there is no such aspect.

Secondly, a limited federal government cannot have such a broad and general power as "protector of rights".

 

[El Tejon]

By the way, to all the people who keep repeating over and over that the Framers of the 14th intended something, can you please name the Framers of the 14th?

Since you've done the study of the history of the Fourteenth Amendment, then you should know about Bingham, Howard, inter alia. In fact Supreme Court Justices have called Bingham the "Madison" of the Fourteenth.

What's wrong with enforcing the aspect of [the Constitution] that says that they can't violate the contents of the Bill of Rights?

First off, there is no such aspect.

Secondly, a limited federal government cannot have such a broad and general power as "protector of rights".

1. There most certainly is and it is found in the Fourteenth Amendment. Really, now, the precatory thinking of the Lost Causers must stop. You cannot saw that because you do not want it to exist therefore means that it does not exist.

2. The only purpose of government is to enforce our rights. When states become tyrannical, such as the South after the Civil War, then it is the function of the federal government to ensure a republican government and protect the rights of citizens.

 

[Jim March]

You are perhaps twenty five years behind legal scholarship. The notion that the 14th Amendment protected some rights but not others began to dissolve in the 1980s. It started with Michael Kent Curtis's No State Shall Abridge: The Fourteenth Amendment and the Bill of Rights (1986).

The Congressional Record is replete with calls for total incorporation of the Bill of Rights. The resistance to total incorporation came from Lost Causers who hoped to maintain their control over Blacks by denying them their rights and keeping them as second class citizens.

Stephen Halbrook did amazing work in his lodestar work That Every Man Be Armed at 107-53 (highlighting Congressional concern on stopping States from infringing the right of Blacks to keep and bear arms). The scholarship done by Lost Causers has been laughable and disingenious to say the least.

Let me add here that Yale law professor (and noted Liberal) discovered the same Bingham-and-company quotes as to the 14th allowing self defense for blacks that Halbrook had found earlier. In Amar's 1998 book "The Bill Of Rights" he seems disturbed and upset to find that "the gun nuts are right" - he wasn't so crass as to phrase it that way but that's what comes through .

ALL of the scholarship on the 14th protecting the whole BoR goes our way and has for 25+ years.

Another major issue: the main US Supreme Court case declaring specifically that the 2nd doesn't apply to state actions is US v. Cruikshank (decision handed out in 1876, oral argument in 1875 based on events of 1873, the Colfax (Louisiana) Massacre).

There are other later cases that say the same thing, but they just re-hash Cruikshank (and refer to it specifically) without doing any new analysis. So if Cruikshank officially "falls", so do Presser v. Illinois and Texas v. Miller (both late 19th Century).

Cruikshank has been cited for this barrier to 2nd Amendment Federal oversight as recently as 2003 - the 1992 9th Circuit case of Fresno Rifle and Pistol v. Van De Camp cited directly to Cruikshank and this was noted with approval by the 9th in Nordyke.

The good news is that the Heller court called the Cruikshank case into question as valid law - twice. They note that it also allowed states to violation the 1st Amendment (which is obviously not a valid concept) but more importantly, they cite the 2008 book by C. Lane, "The Day Freedom Died". That book blows the lid off the racist intent inherent in Cruikshank. The 2nd Amendment violations allowed by the Supremes in Cruikshank weren't just "gun control" - it was disarmament specifically for the purpose of launching an orgy of assault, rape, murder and arson that led to over 100 deaths. The Cruikshank decision allowed generations of civil rights abuses including over 4,000 lynchings.

When the Heller court cited the Lane book, they were publicly admitting their own institution's racist past for what I strongly believe to be the first time, at least in this much detail.

These two criticisms of Cruikshank in Heller can and should be read as a warning to lower courts not to rely on Cruikshank as authority. Some aren't going to listen.

For MUCH more on this subject, see also my attachment at:

http://www.thehighroad.org/showpost.php?p=4674758&postcount=68

To "Hugh Damright" and others like him: do you believe states should have the right to commit murder? If a state does commit murder (such as happened at Colfax in 1873), should the Federal government step in to stop it?

If you argue in public that civil rights violations by states should be allowed, you make our whole movement look like human scum. You are severely hurting our cause and if I had my way, you'd be banned from this forum.

 

[hugh damright]

Since you've done the study of the history of the Fourteenth Amendment, then you should know about Bingham, Howard, inter alia. In fact Supreme Court Justices have called Bingham the "Madison" of the Fourteenth.

My impression is that y'all quote a radical or two and somehow conclude that it is the intent of "the Framers" ... and the implication is that the Framers determine the meaning of the amendment ... I don't think you can quote one or two radicals and prove the intent of 2/3 of both houses and 3/4 of the States. I find the idea to be preposterous.

If y'all are going to keep repeating over and over and over that the Framers intended a thing, then is it too much to ask for a list of the Framers? I don't know what y'all are talking about, and I wonder if y'all know what y'all are talking about. Please list the Framers. How many were there, and what were their names?

The Madison of the 14th! ROFL! Let's see, Berger had something to say about that:

"In the eyes of Justice black, "Bingham may, without extravagance be called the Madison of the first section of the Fourteenth Amendment". Shades of Madison! Bingham was a muddled thinker, given to florid, windy rhetoric of a stump orator, liberally interspersed with invocations to the Diety, not to the careful articulation of a lawyer who addresses himself to great issues."

you do not want it to exist therefore means that it does not exist.

I find it hard to believe that the amendment says "the USBOR shall be binding upon the States" and I cannot see it because of my political bias. I used to proofread for a living, so I don't think I'd miss something like that. No ... I think it says no such thing, and you read it there when it isn't there, because of your bias. That's what you want it to say, but it says no such thing. I do not accept that either "due process" or "privileges and immunities" is some kind of obscure way of saying "the USBOR".

The only purpose of government is to enforce our rights.

The central government was not created with such a purpose.

 

[3 gun]

The 2nd needs no incorporation. The BoR and the Constitution were voted on and became the law of the land for the states when they joined the United States.

Any state that has a law that violates any amendment has an unconstitutional law on their books weather it was law before or after they joined. What has been lacking is the pursuit and punishment for having said laws on the books.

Unless I see a crime against another's person or property I will never ask, "do you have papers for that" when it comes to firearms, or a printing press, or a radio, or bible, or....Get the idea?

 

[Solo Flyer]

The 2nd needs no incorporation.The BoR and the Constitution were voted on and became the law of the land for the states when they joined the United States.

I agree with 3 gun,Aquila Blanca,mp510,230RN,CC and clean97GTI.
But as Fiddletown perhaps said it best:

But not a single court decision.

What the courts do trumps all our blather in cyberspace. The application of the law and Constitution by the courts affects the lives and property, and rights and responsibilities, of real people in real life. That's what counts.

The Constitution is not a poem or story meant to be interpreted and understood in a vacuum. It is law, and like all law is intended to be a tool to resolve real world questions and disputes. Its meaning is derived from its application by courts for that purpose.

 

[hugh damright]

We might all agree that if the US was a wholly national government i.e. if the US was one big State then the USBOR would naturally be binding nationally. But if the US is a system of dual sovereignties, then is it so hard to conceive that each sovereign government could be framed by its own constitution and limited by its own bill of rights? I suspect that the assumption/desire that the USBOR binds the States is an assumption/desire that we have a national government as opposed to a limited federal government.

And why would States, over concern that the proposed Constitution created a too powerful central government, request amendments to increase the central government's jurisdiction by a thousand fold?

It occurs to me that the Ninth Amendment was drafted by Madison with the intent of declaring that the enumeration of a right shall not be construed so as to increase federal jurisdiction. And yet that seems to be exactly what some people intend.

 

[ConstitutionCowboy]

I am perplexed ,Woody.Before I put out this poll I was considering asking your advice on the phrasing.
What is your answer?
Is this an imponderable Catch-22 in your mind?

The poll is a forced choice that does not include all the avenues. In the first place, I don't believe the Second Amendment needs "incorporation" as the First Amendment did.

Congress has already used the power granted to it in Section 5 of the Fourteenth Amendment to enforce prohibitions upon those law suits that have been plaguing the arms industry, and did this without "permission" from the Court. Section 5 of the Fourteenth Amendment is as plain as day: Congress has power to enforce the provisions in the Fourteenth Amendment.

The Court need not make a special ruling that "incorporates" the Second Amendment against the several states. All it needs to do is rule according to the Second Amendment. As for the Second Amendment needing "incorporation", let us ponder Section 1 of the Fourteenth Amendment:

It establishes that all citizens of the United States are also citizens of the state wherein they reside. Next it says that no state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States. Hmmm. They used that word "abridge". Not "infringe", not "restrict", not "violate", not "jeopardize", but "abridge". Abridge" means, "to shorten by using fewer words but keeping the substance" in the literary sense, but in this sense it means "to deprive of". The people who are the citizens of the United States are citizens of the state wherein they reside, and shall not be deprived of the protections and immunities by the several states same as they won't be deprived by the United States.​

No state shall make or enforce any law that would deprive the people of the right to keep and bear arms. The Second Amendment being the protection of the Right of the People to Keep and Bear Arms from infringement.

It's the same for the other protections of our rights and immunities.

As far as the Fourteenth Amendment goes, if the United States can't do it, neither can the several states.

The Fourteenth Amendment is incorporation of the First Amendment, and it is power granted to Congress to enforce protection of all the rest of our rights upon the several states. I've always been of the mind that the Bill of Rights was as binding on the several states as upon the United States (except for the First Amendment since it addressed Congress specifically) and the Fourteenth gave the Bill of Rights some teeth..

I agree with CC. I get there by a somewhat different route, relying more on the language of the entire BOR and less on the writings of The Federalist Papers, but we get to the same place.

Yup. That's that boat load of logic I was talking about.

But not a single court decision.

What the courts do trumps all our blather in cyberspace. The application of the law and Constitution by the courts affects the lives and property, and rights and responsibilities, of real people in real life. That's what counts.

So? That doesn't make it right. What will count is the replacement of errant Justices with honorable Justices who will abide the Constitution and rule according to the Constitution, not what they wish to make of it.

The Constitution is not a poem or story meant to be interpreted and understood in a vacuum. It is law, and like all law is intended to be a tool to resolve real world questions and disputes. Its meaning is derived from its application by courts for that purpose.

Bollocks. Balderdash. The Constitution is not a tool to be used to resolve questions and disputes. It is a blueprint and a grant of some specific powers - tempered with some prohibitions and limitations - to establish a union of states. No judiciary established by that very document can construe that document into anything other than what that document is. The Judiciary is subordinate to the document same as any other branch of government established by that document. The only entity with power over the Constitution is We the People who ordained and established this Constitution. Even that power is limited to the process in Article V, short of us throwing the Constitution out altogether.

Woody

 

[Frank Ettin]

Congress has already used the power granted to it in Section 5 of the Fourteenth Amendment to enforce prohibitions upon those law suits that have been plaguing the arms industry,...

Nonsense. The validity of that law derives from the Commerce Clause.

The Court need not make a special ruling that "incorporates" the Second Amendment against the several states. All it needs to do is rule according to the Second Amendment....

We'll see when they rule, but I doubt it. All rights enumerated in the Bill of Rights that have been applied to the states have been thus applied through the 14th Amendment.

So? That doesn't make it right....

It makes what the courts do real. It's real life in the real world. The lives and property, the rights and responsibilities, of actual, living people are affected by what the courts do. You may think your dorm room bull session rhetoric is right. But how would you know? All your rhetoric affects nothing in the real world. No person's interests are furthered by anything you have written.

...What will count is the replacement of errant Justices with honorable Justices who will abide the Constitution and rule according to the Constitution,....

And exactly how do you propose to accomplish that? Exactly what are you doing to bring that turn of events about?

Bollocks. Balderdash. The Constitution is not a tool to be used to resolve questions and disputes. It is a blueprint and a grant of some specific powers...

What gibberish. What do you think a blueprint is? It is a tool to resolve question about how something is to be made and operated. And what questions is the Constitution used to resolve but questions about the extent of the power granted by it.

...No judiciary established by that very document can construe that document into anything other than what that document is...

And that is what the judiciary indeed does and is empowered to do by the Constitution. The fact that they apparently don't agree with your reading of the Constitution doesn't change that. Their reading trumps yours, because they affect real life.

So Woody, while you , with your obviously very limited understanding of the law and the legal system, are pontificating about what you think the Constitution says, the courts, completely oblivious to your opinions, are conducting business in real life and making decision that are affecting real people. You may think that you know better, but the reality is that what you may think isn't doing anything for anyone.

 

[ConstitutionCowboy]

And that is what the judiciary indeed does and is empowered to do by the Constitution.

Show me where that power is granted to the Court in the Constitution.

And exactly how do you propose to accomplish that? Exactly what are you doing to bring that turn of events about?

By voting for people who will accomplish that into positions that have the relevant power in government.

You can do it too, unless you are happy with the status quo or apathetic.

Congress has already used the power granted to it in Section 5 of the Fourteenth Amendment to enforce prohibitions upon those law suits that have been plaguing the arms industry,...

Nonsense. The validity of that law derives from the Commerce Clause.

From the Protection of Lawful Commerce in Arms Act

(b) Purposes- The purposes of this Act are as follows:

(1) To prohibit causes of action against manufacturers, distributors, dealers, and importers of firearms or ammunition products, and their trade associations, for the harm solely caused by the criminal or unlawful misuse of firearm products or ammunition products by others when the product functioned as designed and intended.

(2) To preserve a citizen's access to a supply of firearms and ammunition for all lawful purposes, including hunting, self-defense, collecting, and competitive or recreational shooting.

(3) To guarantee a citizen's rights, privileges, and immunities, as applied to the States, under the Fourteenth Amendment to the United States Constitution, pursuant to section 5 of that Amendment.

(4) To prevent the use of such lawsuits to impose unreasonable burdens on interstate and foreign commerce.

(5) To protect the right, under the First Amendment to the Constitution, of manufacturers, distributors, dealers, and importers of firearms or ammunition products, and trade associations, to speak freely, to assemble peaceably, and to petition the Government for a redress of their grievances.

(6) To preserve and protect the Separation of Powers doctrine and important principles of federalism, State sovereignty and comity between sister States.

(7) To exercise congressional power under article IV, section 1 (the Full Faith and Credit Clause) of the United States Constitution.​

See that part I put in bold? Are you saying Congress got it wrong?

Woody

 

[Master Blaster]

In a perfect world the 14th amendment would have been unnecessary, because all of the states would have respected and revered individual liberties which all men possess at birth. In a Perfect world there would be no need for a bill of rights to protect men from the power of the Federal Government because elected officials respected and revered individual liberties which all men possess at birth..

We dont live in a perfect world, so becaus of that simple fact we have the 14th amendment.

Yes it does, and it should apply to the states, yes the 2nd applied to all of the states, and unfortunately the power of the 14th amendment must be used to make them respect the 2nd.

 

[El Tejon]

If y'all are going to keep repeating over and over and over that the Framers intended a thing, then is it too much to ask for a list of the Framers? I don't know what y'all are talking about,

You have been provided a list of the Framers and the Supreme Court makes reference to them among others.

The Madison of the 14th! ROFL! Let's see, Berger had something to say about that:

Yes, that is what Justice Black called him. If you do not like it, please provide a citation to a Supreme Court justice (other than Taney) who would hold him in disregard.

That's what you want it to say, but it says no such thing. I do not accept that either "due process" or "privileges and immunities" is some kind of obscure way of saying "the USBOR".

You can choose to be blind and shut your eyes, hands over your eyes and stamp your feet all day but the Congressional Record is replete with references to total incorporation. It is not an obscure way; it is a term of art.

The only purpose of government is to enforce our rights.

The central government was not created with such a purpose.

Most certainly it was. The Framers of the Constitution and the Fourteenth Amendment made repeated reference to this republican/Whig ideal.

And why would States, over concern that the proposed Constitution created a too powerful central government, request amendments to increase the central government's jurisdiction by a thousand fold?

Because of the barbarity of the South. Southern governments were murdering, robbing, committing arson and rape against Blacks. The Framers of the Fourteenth were outraged by this behavior and sought to extend of the Bill or Rights to the states so Blacks could act on their rights against the Southern states.

 

[ilbob]

Because of the barbarity of the South. Southern governments were murdering, robbing, committing arson and rape against Blacks. The Framers of the Fourteenth were outraged by this behavior and sought to extend of the Bill or Rights to the states so Blacks could act on their rights against the Southern states.

Is it absolutely necessary to bring this up repeatedly? This kind of thing was also common in northern states, although less institutionalized.

 

[El Tejon]

Is it absolutely necessary to bring this up repeatedly?

Yes, as people forget. It is important in this historical context: the references that the Framers made were as to the Southern States, thus the motive of the States was to combat state-sponsored Southern terrorism.

 

[Frank Ettin]

Show me where that power is granted to the Court in the Constitution.

Article III, Section 1-

"The judicial power of the United States, shall be vested in one Supreme Court, and in such inferior courts as the Congress may from time to time ordain and establish...."

Article III, Section 2 --

"The judicial power shall extend to all cases, in law and equity, arising under this Constitution, the laws of the United States, and treaties made, or which shall be made, under their authority;--to all cases affecting ambassadors, other public ministers and consuls;--to all cases of admiralty and maritime jurisdiction;--to controversies to which the United States shall be a party;--to controversies between two or more states;--between a state and citizens of another state;--between citizens of different states;--between citizens of the same state claiming lands under grants of different states, and between a state, or the citizens thereof, and foreign states, citizens or subjects."(empahsis added)

As to the Constitution being "law", note that Article IV provides, in pertinent part that,

"This Constitution, and the laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land;..."

Thus the Framers understood the Constitution to be part of the law, and as such would be applied, as is law in general, by courts in the resolution of cases and controversies.

By voting for people who will accomplish that into positions that have the relevant power in government....

First, let's remind everyone what we're talking about. From your post #41, above, you are proposing to replace, "...errant Justices with honorable Justices who will abide the Constitution and rule according to the Constitution,..."

Since under Article III, Section 1, federal judges, "... shall hold their offices during good behaviour,...", the only way to remove and thus replace them is, "... impeachment for, and conviction of, treason, bribery, or other high crimes and misdemeanors......" (Article II, Section 4) Impeachment requires a simple majority vote of the House of Representatives. Conviction requires a two-thirds majority vote of the Senate following a trial in the Senate.

So in order to carry out your plan, we all would need to elect at least 50% of the members of the House and 67% of the members of the Senate who would be disposed to agree that a federal judge's failure to interpret the Constitution your way constitutes an impeachable "high crime or misdemeanor." Doing so would be a pretty neat trick, aside from the fact that it is debatable whether impeaching judges because you disagree with their application of the law is sound public policy.

As to the Protection of Lawful Commerce in Arms Act, Congress tends to put all sorts of things into a law's "purpose" clause. But if the constitutionality of that law is challenged, specifically Congress' power to enact it, I believe that it is most likely that a court would find that Congress indeed had the power to enact it under the Commerce Clause -- thus upholding the constitutionality of the Act. Note paragraph (4) of the "purpose" clause invoking the Commerce Clause.

 

[ilbob]

Yes, as people forget. It is important in this historical context: the references that the Framers made were as to the Southern States, thus the motive of the States was to combat state-sponsored Southern terrorism.

So it is Ok that it went on in the North?

 

[El Tejon]

And the Framers said what about Northern States?

This is a historical question. Why did the Fourteenth Amendment pass? Answer: Because of Southern barbarity (murder, rape, arson, theft, inter alia), not because someone was denied a hotel room in Indiana (the 1st lawsuit under the CRA of 1866), or denied being seated in a theater in New York City or thrown out of a restaurant in Philly.