What is the purpose of the Bill of Rights?

[snubbies]

Bill of Rights

Many answers and opinions here. I wonder if any of the responders are Constitutional Lawyers or Professors of Constitutional Law?? It would lend some credence to the opinion.

 

[Iramo94]

It has long been settled law that constitutionally protected rights are subject to limited regulation by government.

That's not the way it was taught in my government class...Congress has exactly two powers:
One, to follow the orders of article 1, section 8 of the constitution.
Two, to create "implied" powers so they can efficiently run the country.
Where is regulation of pieces of metal enumerated in the Constitution? (other than across state lines, etc.)
Similarly, if you try to take advantage of the Constitution's Clause 1-8-18 (Necessary and Proper), what is the enumerated power that NFA protects?

Which part of the constitution do you believe makes federal gun regulation unconstitutional but not state gun regulation?

The federal government is well within its rightful powers to regulate interstate commerce in arms.

First question: Amendment number ten, the ultimate state's rights argument. If it isn't enumerated, and it doesn't protect an enumerated power, it can't be done. On your second sentence: Notice you said interstate commerce. (Clause 1-8-3) That means the feds should only control my machine guns if I sell them through an FFL. Machine guns sold to someone residing in my state are "un-regulate-able." Or is that "un-regulate-ible?"

 

[azmjs]

Was the machine gun built in your state of out materials that all originated and were processed in your state, using machines that were made in your state out of materials that were all made in your state, and so on?

You would be hard pressed to find a machine gun for sale anywhere, or to build one, which was not part of interstate commerce.

 

[Iramo94]

If a court rules that NFA applies to only out of state machine guns, that would make a HUGE new market for gun manufacturers. One per state, in fact. But that's only in the states that have iron and aluminum deposits. I could see a nice market for automatic AR's that are unregistered, selling for a few grand each.

 

[azmjs]

I wouldn't hold my breath.

Best outcome we can expect is, in my opinion, the 86 MG ban being overturned.

I'd be perfectly happy with that.

Wouldn't be surprised if the NFA was amended by congress afterward though. Perhaps to inflation-adjust the tax stamp price.

 

[Iramo94]

I'd be okay with that too. On another thread here, someone accounted for inflation and found it to be about two grand, IIRC. If the auto-rifle prices drop back down to the 1980 prices (about ten percent more than their semi-auto variants), we could get AR's for $3000, including the stamp. Awesome.

 

[Frank Ettin]

ANY federal gun legislation is unconstitutional

It has long been settled law that constitutionally protected rights are subject to limited regulation by government.

I think we need to make a distinction between constitutionally protected rights being subject to regulation by the federal government and being subject to regulation by the States. The way I understand it, federal gun regulation e.g. CCW permits would seem to be unconstitutional, while the same regulation might be within the reserved powers of the States.

Ah, no. That's not correct.

[1] Of course, until the the end of the 19th Century, the Bill of Rights didn't apply to the States at all. In 1833 the Supreme Court ruled that the Bill of Rights applied only to the federal government (Barron v. Mayor of Baltimore, 32 U.S. (7 Pet.) 243 (1833)). Then, beginning at the end of the 19th century, well after the adoption of the 14th Amendment, the Supreme Court began to 'incorporate" piecemeal the rights enumerated in the Bill of Rights into the 14th Amendment, thus applying those rights to the States.

We also have, more specifically, United States v. Cruikshank, 92 U.S. 542 (1876) and Presser v. Illinois, 116 U.S. 252 (1886) in which SCOTUS held more specifically that the 2nd Amendment (and the 1st Amendment, in Cruikshank)
did not apply to the States.

So it wasn't until McDonald v. Chicago, 561 U.S. 3025, 130 S.Ct. 3020 (2010), that the Second Amendment even applied to the States.

[2] And to the extent that the Bill of Rights has been applied to the States, federal courts have applied the same tests I outlined in post 48 to decide if state laws purporting to regulate rights enumerated in the Bill of Rights are valid.

...I wonder if any of the responders are Constitutional Lawyers or Professors of Constitutional Law?? It would lend some credence to the opinion.

I am a lawyer, although Constitutional Law has not been my specialty. However, in my career spanning more than 30 years, I have had occasion to look professionally at Constitutional Law issues.

Furthermore, in the world of Constitutional Law, the things we're looking at here are pretty basic. This isn't "advanced" material, and a law student might be held responsible on a bar examination for properly responding to the questions raised.

It has long been settled law that constitutionally protected rights are subject to limited regulation by government.

That's not the way it was taught in my government class...

Well, it looks like your government class missed some things. In law school one learns that constitutionally protected rights are subject to limited regulation by government, and one reads the cases that demonstrate that concept. You might want to spend some time reading some federal court decisions to get a better idea how things really work.

...If a court rules that NFA applies to only out of state machine guns, that would make a HUGE new market for gun manufacturers. One per state, in fact. But that's only in the states that have iron and aluminum deposits...

You might want to start your readings of Supreme Court decisions with cases involving the Commerce Clause. You would find it helpful to improve your understanding of the scope, breadth and reach of the Commerce Clause, as it has been applied by the courts going back many years.

 

[ConstitutionCowboy]

You might want to start your readings of Supreme Court decisions with cases involving the Commerce Clause. You would find it helpful to improve your understanding of the scope, breadth and reach of the Commerce Clause, as it has been applied by the courts going back many years.

Don't you mean "MISapplied? Let's be truthful here.

Woody

 

[Frank Ettin]

You might want to start your readings of Supreme Court decisions with cases involving the Commerce Clause. You would find it helpful to improve your understanding of the scope, breadth and reach of the Commerce Clause, as it has been applied by the courts going back many years.

Don't you mean "MISapplied? Let's be truthful here.

In your opinion perhaps, and I suspect others share your opinion. But AFAIK, Woody, the Supreme Court has not been in the habit of paying attention to your opinions.

In any case, there will always be people who will argue with this decision or that decision of the Supreme Court (or any court). There are folks who think SCOTUS was wrong in Heller and McDonald.

Nonetheless, decisions stand and will be applied in other cases, at least unless SCOTUS reverses itself, even if you think they were wrong.

 

[hugh damright]

In law school one learns that constitutionally protected rights are subject to limited regulation by government

Let me get this straight ... in law school one learns that the US Congress is delegated a power to pass national legislation to regulate protected rights, e.g. the RKBA, such that the feds have gun control powers just as the States do, and the US can require a national CCW permit just as a State can require a State CCW permit? I am finding this hard to believe.

Of course constitutionally protected rights are not absolute and are subject to limited regulation by the STATE governments. And incorporation creates a US judicial power to rule that a State regulation exceeds the limits. But I don't think that incorporation levels the governments e.g. incorporation of the 2nd Amendment doesn't create a federal power to require a national CCW permit.

 

[Frank Ettin]

... in law school one learns that the US Congress is delegated a power to pass national legislation to regulate protected rights, e.g. the RKBA, such that the feds have gun control powers just as the States do, and the US can require a national CCW permit just as a State can require a State CCW permit? I am finding this hard to believe...

No, there are two separate issues.

[1] Rights enumerated in the Bill of Rights may be subject to limited regulation. Any such regulation will be tested for validity under one of three tests (mentioned in post 48).

[2] Any federal regulation must be within the scope of Congressional power.

[3] So, for example, the Gun Control Act of 1968 might be challenged constitutionally on two separate bases -- the Commerce Clause and the Second Amendment.

[4] The GCA was fashioned to pass muster under the Commerce Clause. Challenges based on an assertion that the GCA was outside the scope of constitutionally delegate power are likely to fail.

[5] The various provisions of the GCA infringe in various ways on the RKBA and are therefore subject to challenge as violating the Second Amendment. And I believe that various provision of the GCA are currently under attack in the courts on Second Amendment grounds. Whether or not such provision survive will depend on whether or not the government can convince a court that the provision satisfies the applicable test.

[6] And whether the federal government could fashion a national CCW law that might survive a challenge is an open question. It would have to be sustainable both under the Commerce Clause and the Second Amendment. But the question is also academic since it's doubtful that any such legislation is politically viable.

[7] And incorporation has nothing whatsoever to do with the federal government.

 

[Loosedhorse]

Many answers and opinions here. I wonder if any of the responders are Constitutional Lawyers or Professors of Constitutional Law?? It would lend some credence to the opinion.

Why?

Such an "authority" would only be good at telling you about what is, what the SCOTUS has already decided the BOR or Commerce Clause means, and what still might be adjudicable in a future case.

fiddletown has been doing the lonely job of telling us what is. Most of the responses have revolved around what SCOTUS should have decided, or what I'd prefer they had decided. No study of or expertise in case law or the drafting of the Constitution is required for those: a cursory reading of the Constitution will do!

And perhaps some are arguing what will be. I'm still not sure a professor of law buys you much there; a professor of Constitutional Prognostication is who I'd want as an authority on that topic.

 

[azmjs]

I'd be okay with that too. On another thread here, someone accounted for inflation and found it to be about two grand, IIRC. If the auto-rifle prices drop back down to the 1980 prices (about ten percent more than their semi-auto variants), we could get AR's for $3000, including the stamp. Awesome.

I'd buy one

 

[azmjs]

Why?

Such an "authority" would only be good at telling you about what is, what the SCOTUS has already decided the BOR or Commerce Clause means, and what still might be adjudicable in a future case.

fiddletown has been doing the lonely job of telling us what is. Most of the responses have revolved around what SCOTUS should have decided, or what I'd prefer they had decided. No study of or expertise in case law or the drafting of the Constitution is required for those: a cursory reading of the Constitution will do!

And perhaps some are arguing what will be. I'm still not sure a professor of law buys you much there; a professor of Constitutional Prognostication is who I'd want as an authority on that topic.

And creativity, and uncompromising belief in one's own infallibility, and spurs

 

[gc70]

fiddletown has been doing the lonely job of telling us what is. Most of the responses have revolved around what SCOTUS should have decided, or what I'd prefer they had decided. No study of or expertise in case law or the drafting of the Constitution is required for those: a cursory reading of the Constitution will do!

Yes, fiddletown has been describing the application of the Constitution as it currently stands or has evolved. But that may or may not address the OP's question about the purpose of the Bill of Rights. The purpose may be as intended (much of the discussion in this thread) or as applied (fiddletown's typically excellent explanations).

 

[danez71]

The Preamble states the purpose.

We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America

PS. Thanks fiddletown for your input.

 

[ConstitutionCowboy]

Many answers and opinions here. I wonder if any of the responders are Constitutional Lawyers or Professors of Constitutional Law?? It would lend some credence to the opinion.

All the credence needed is to be one of We the People. We the People wrote the Constitution and there is nothing esoteric about it. All that is required is the ability to read and understand the English language.

Woody

 

[ConstitutionCowboy]

The federal government is well within its rightful powers to regulate interstate commerce in arms.

Congress has power to regulate commerce but not commerce in arms. The Second Amendment prohibits government from infringing upon that right of the people. Just because Congress does it doesn't mean they are allowed to. They do it with power stolen from We the people. It's a sad state of affairs when the people we elect to power turn out to be thieves. It's the usurpation thingie that Congress, the Court, and the Executive all too often engage in.

Woody

 

[hugh damright]

Many answers and opinions here. I wonder if any of the responders are Constitutional Lawyers or Professors of Constitutional Law?? It would lend some credence to the opinion.

I think it is a fact, under constitutional law, that the USBOR was not intended to bind the States. I don't think there is one SCOTUS case in our entire US judicial history which says that the USBOR bound the States prior to incorporation. So, while there may be a lot of opinions here, any opinion that the USBOR was intended to bind the States is not based upon constitutional law or US judicial history.

 

[brickeyee]

any opinion that the USBOR was intended to bind the States is not based upon constitutional law or US judicial history.

Please see amendment number 14.

While not a part of the Bill of Rights (the first ten amendments) it is part of the Constitution.

 

[hugh damright]

Please see amendment number 14.

While people find ways to construe the 14th Amendment to mean that the USBOR is binding upon the States, that does not change the fact that the USBOR was not originally intended to bind the States. The USBOR was created with the purpose of binding the federal government, not the States.

 

[Frank Ettin]

any opinion that the USBOR was intended to bind the States is not based upon constitutional law or US judicial history.

Please see amendment number 14.

While not a part of the Bill of Rights (the first ten amendments) it is part of the Constitution.

Please see amendment number 14.

While people find ways to construe the 14th Amendment to mean that the USBOR is binding upon the States, that does not change the fact that the USBOR was not originally intended to bind the States. The USBOR was created with the purpose of binding the federal government, not the States.

I have to go along with Hugh on this.

[1] The Supreme Court expressly ruled in 1833 that the Bill of Rights did not apply to the States.

[2] The 14th Amendment came (in 1868) along well after the original work of the Founding Fathers.

[3] The 14th Amendment wasn't used to apply rights enumerated in the Bill of Rights to the States until, at the earliest, 1897 (Chicago, Burlington & Quincy Railroad Co. v. City of Chicago, 166 U.S. 226 (1897) incorporating the "taking" clause of the 5th Amendment through the due process clause of the 14th Amendment). And some commentators place the genesis of the doctrine of incorporation even later, in 1925 (Gitlow v. New York, 268 U.S. 652 (1925)).

[4] The rights enumerated in the Bill of Rights have been applied to the States in a piecemeal fashion. Some such rights have either not yet been applied, or specifically ruled inapplicable, to the States, e. g., the 5th Amendment right to indictment by grand jury and the 7th Amendment right to a jury trial in a civil case.

 

[Owen Sparks]

The Interstate Commerce clause has been the most stretched and absurdly interpreted portion of the Constitution, particularly since the New Deal. Its original purpose was simply to keep the states from charging tarriifs and hampering free trade. It has been misused by statists to justify a radical expansion of the power of the central government over practically anything that any portion of which crossed a state line. For example, home grown produce that was sold at road side fruit stands is subject to federal regulations under the Interstate Commerce clause even though it was produced and sold right there on the farm. How can this be? Because some component used to grow it crossed a state line at some point. Maybe it was fertilizer, the tractor or plow or even the gasoline that the tractor used.

See how it works?

 

[hugh damright]

You would find it helpful to improve your understanding of the scope, breadth and reach of the Commerce Clause, as it has been applied by the courts going back many years.

I think there is a point to be made that when the US takes something like the commerce clause and stretches it beyond recognition in order to achieve whatever they fancy ... such that our limited federal government becomes an all powerful national government ... isn't that what the USBOR was intended to guard against?

 

[azmjs]

Congress has power to regulate commerce but not commerce in arms. The Second Amendment prohibits government from infringing upon that right of the people. Just because Congress does it doesn't mean they are allowed to. They do it with power stolen from We the people. It's a sad state of affairs when the people we elect to power turn out to be thieves. It's the usurpation thingie that Congress, the Court, and the Executive all too often engage in.

Woody

Not true.