What is the purpose of the Bill of Rights?

[hugh damright]

It might make certain principles more obvious to imagine that there was only California and Texas ... Californians might say "let's put the federal government in charge of gun laws so that Texans can lift us up" ... while Texans might say "let's leave gun laws a State affair so that Californians cannot pull us down" ... it doesn't mean that Texans want less rights, not at all.

 

[Frank Ettin]

And those statements suggest to me a basic and vital function of the Bill of Rights and Section 1 of the 14th Amendment: To prevent a tyranny of the majority.

That only substitutes the tyranny of one majority for that of a different majority.

Only by being misleading by quoting me incompletely. What I wrote in full was:

And those statements suggest to me a basic and vital function of the Bill of Rights and Section 1 of the 14th Amendment: To prevent a tyranny of the majority.

So at some point it matters not that a majority of the body politic in the country or a State or a town believe that those books should be banned, or since honest folks have nothing to hide police should be free to snoop on a whim, or since confession is good for the soul there's nothing wrong with a little pressure to help it along, etc. And thus certain rights will be protected even if those rights are, at a particular time and in a particular place, cherished only by a minority.

 

[hugh damright]

the 5th Amendment says essentially the same thing

And that is one of the arguments against incorporation ... if the 14th was intended to incorporate the 5th Amendment, then why did it need a declaration saying that government cannot deprive us of life/liberty/property except by due process of law?

But I miss your point ... would you agree that the 14th regards procedural due process and that the SCOTUS is crooked as a mountain road to construe it to make the USBOR binding upon the States? It makes no sense to me that it would say that a State cannot do "x" except by due process of law, if they meant to say that a State cannot do "x" even by due process of law. And with all the reading I have done of the debates over the reconstruction amendments, I don't recall one bit of evidence that the intent was substantive due process.

 

[Frank Ettin]

...It makes no sense to me that it would say that a State cannot do "x" except by due process of law, if they meant to say that a State cannot do "x" even by due process of law...

My point is that due process applicable to the States under the 14th Amendment mirrors due process as applied by the Founding Fathers to the federal government.

...would you agree that the 14th regards procedural due process and that the SCOTUS is crooked as a mountain road to construe it to make the USBOR binding upon the States?...

Irrelevant. Incorporation is now well established.

 

[hugh damright]

Irrelevant. Incorporation is now well established.

Well ... I suppose that a constitutional lawyer would not get very far if he clung to the original intent, and that he must at least pretend to respect the SCOTUS decisions. But I have no such affliction, and the original intent is not irrelevant to me. Not at all. Nor do I find it irrelevant that the SCOTUS would do such a thing as to take the 14th's due process clause and construe it to mean that the USBOR is binding against the States ... what a bunch of stuff!

It seems to me that if the original intent is irrelevant, if it doesn't matter what was actually consented to, then consentual government and rule of law are irrelevant, that we accept rule by federal judiciary, and all that matters is what the all mighty SCOTUS says. It makes me want to ask ... does tyranny matter?

 

[Frank Ettin]

... I suppose that a constitutional lawyer would not get very far if he clung to the original intent, and that he must at least pretend to respect the SCOTUS decisions. But I have no such affliction, and the original intent is not irrelevant to me....

Your opinion is just your opinion and really has no bearing on what is happening in the real world. The opinions of SCOTUS do, however, have a bearing on what is happening in the real world, and that's why they trump yours.

...It seems to me that if the original intent is irrelevant, if it doesn't matter what was actually consented to, then consentual government and rule of law are irrelevant, that we accept rule by federal judiciary, and all that matters is what the all mighty SCOTUS says. It makes me want to ask ... does tyranny matter?

Ah yes, the world is not constituted as you believe it ought be, and so the sky is falling. Of course while you're all wrapped up in that notion, things are being done, business is being conducted, folks are trying to make their ways in the world. SCOTUS has decided Heller and McDonald, and our RKBA advocacy groups are trying to take things to the next level.

 

[gc70]

Only by being misleading by quoting me incompletely.

There is nothing misleading about a truism. Pick any level of society - neighborhood, city, county, state, or nation - and explain why the majority of a larger group is more protective of individual rights than the majority of a smaller group. (If you can provide such a convincing explanation, you can also explain why we should not bow to the will of the U.N. with regard to human rights. ) Otherwise, it is an arbitrary decision (or an exercise in raw power) regarding which particular majority is empowered to be the tyrant.

 

[Frank Ettin]

...Pick any level of society - neighborhood, city, county, state, or nation - and explain why the majority of a larger group is more protective of individual rights than the majority of a smaller group....

But that's not what we have. We have a baseline. A set of rights which even a majority may not strip from the individual. It is not a theoretical matter of whether one majority or another is more protective. It is a reality that no majority can reduce individual rights below a certain level. That level was set for the federal government by the Bill of Rights, and it was later set for the States by the 14th Amendment and the doctrine of incorporation.

Without the Bill of Right made applicable to a State, a State in theory, if the fervent wish of a majority, allow searches of an individual and his private property without his consent, without warrant and without probable cause. Is it then tyranny for that possibility to be foreclosed by the Bill of Rights being made applicable to the States?

Or looking at things from a different perspective, I dare say you find elements of tyranny in provisions of the Gun Control Act of 1968. Are the onerous restrictions placed on the private keeping and bearing of arms by the States of New York, New Jersey, Illinois, etc., less tyrannical because those restrictions have the support of each State's body politic?

It's one thing to argue about whether Parent A (one majority) or Parent B (another majority) will be more protective of an individual's rights. It's another to say that no matter what one majority or another may want, an individual's rights shall not be reduced below a certain level.

 

[gc70]

...Pick any level of society - neighborhood, city, county, state, or nation - and explain why the majority of a larger group is more protective of individual rights than the majority of a smaller group....

But that's not what we have. We have a baseline. A set of rights which even a majority may not strip from the individual. It is not a theoretical matter of whether one majority or another is more protective. It is a reality that no majority can reduce individual rights below a certain level. That level was set for the federal government by the Bill of Rights, and it was later set for the States by the 14th Amendment and the doctrine of incorporation.

That is precisely what we have. The Bill of Rights and 14th Amendment are not magical, nor were they divinely ordained. They simply reflect the will of the majority of the people of the nation (subject to debate with respect to the 14th Amendment's manner of ratification) at the respective times of their adoption. There is nothing, other than raw power, that makes federally-protected rights inherently "better" than state-protected rights. And the "baseline" reflected by the Bill of Rights and 14th Amendment is not even immutable. The reality of our current system is that a majority CAN reduce individual rights.

It's one thing to argue about whether Parent A (one majority) or Parent B (another majority) will be more protective of an individual's rights. It's another to say that no matter what one majority or another may want, an individual's rights shall not be reduced below a certain level.

That is not the case, given Article V of the Constitution.

 

[azmjs]

I don't recall anyone saying that they would prefer fewer rights ... I think the idea is that some people still believe in the founding principle that we will have fewer rights if we put them in the hands of the federal government.

Besides, all this incorporation stuff is intellectually dishonest ... the 14th says that no State shall deprive any person of life, liberty, or property without due process of law, which obviously means that they can do these things by due process of law. The intent is that States abide by their laws, not abide by the whim of the SCOTUS. In other words, the 14th regards procedural due process not substantive due process.

Assuming for the sake of argument that that ever was a "founding principle," history has proven it wrong.

The federal government has served, since the civil war, to protect and expand the rights of Americans against being trampled by the states.

The simple and plain fact of the matter is, Americans have more freedom since the federal government has started protecting it with the incorporation of constitutional rights.

 

[azmjs]

Well ... I suppose that a constitutional lawyer would not get very far if he clung to the original intent, and that he must at least pretend to respect the SCOTUS decisions. But I have no such affliction, and the original intent is not irrelevant to me. Not at all. Nor do I find it irrelevant that the SCOTUS would do such a thing as to take the 14th's due process clause and construe it to mean that the USBOR is binding against the States ... what a bunch of stuff!

It seems to me that if the original intent is irrelevant, if it doesn't matter what was actually consented to, then consentual government and rule of law are irrelevant, that we accept rule by federal judiciary, and all that matters is what the all mighty SCOTUS says. It makes me want to ask ... does tyranny matter?

You can't be a "constitutional scholar" or have any respect for the "original intent" of the constitution without taking it part and parcel with all the supreme court decisions over the years.

The supreme court cannot be separated from the constitution. Its function is to do what it does. If you overthrew the supreme court, you'd overthrow the constitution. If you ignored the supreme court, you'd be ignoring the constitution.

 

[gc70]

The federal government has served, since the civil war, to protect and expand the rights of Americans against being trampled by the states.

I am sure members of this board appreciate NFA34 and GCA68 for protecting their 2nd Amendment rights from being trampled by the states.

 

[Birch Knoll]

Nobody said the Feds won't trample your rights directly.

 

[Frank Ettin]

...the "baseline" reflected by the Bill of Rights and 14th Amendment is not even immutable. The reality of our current system is that a majority CAN reduce individual rights...

...given Article V of the Constitution.

No system of governance can be perfect. It is impossible to devise a system that is idiot proof.

Our saving graces have been first that we were lucky enough to start out with a well crafted system, a division of power with checks and balances, all described in an excellent document -- the Constitution of the United States. And second, while that document, and thus the system, can be changed, it is a cumbersome process. It is such a cumbersome process that it has been done only 17 times in the over 200 years since the core document (the Constitution with the first 10 Amendments) was adopted. Of those 17 Amendments, only two, authorization of income tax (the 16th) and authorization of Prohibition (the 18th) might be viewed as a diminution of personal liberty, and Prohibition was subsequently repealed (the 21st).

...The federal government has served, since the civil war, to protect and expand the rights of Americans against being trampled by the states.

The simple and plain fact of the matter is, Americans have more freedom since the federal government has started protecting it with the incorporation of constitutional rights.

And overall, that is a fair observation. And while those of us who like freedom and chafe at restrictions on our personal conduct may have much to complain about, from motorcycle helmet laws to zoning ordinances to restrictions on the RKBA, we remain an astonishingly free country compared with the rest of the world.

Perhaps no system can be idiot proof. But we've done remarkably well when one considers the assorted scoundrels, perverts, liars, and those with various other integrity impairments who have held positions of leadership and responsibility in our government (at all levels).

...The supreme court cannot be separated from the constitution. Its function is to do what it does. If you overthrew the supreme court, you'd overthrow the constitution. If you ignored the supreme court, you'd be ignoring the constitution.

Another fair observation.

And the Supreme Court never satisfies everyone. There will always be those who disagree with, object to and disparage every decision of SCOTUS. There were folks who didn't like Brown v. Board of Education, those who didn't like Roe v. Wade, and those who didn't like Heller/McDonald. Nonetheless, the exercise of the judicial function serves the same need today as it served going back in the history of the Common Law (the foundation of our legal system) and as it was no doubt envisioned by the Founding Fathers when they conferred in the Constitution judicial power, "...in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish..."(Article III, Section I) and gave those courts jurisdiction in, "...all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States,..."(Article III, Section II).

 

[gc70]

No system of governance can be perfect. It is impossible to devise a system that is idiot proof.

Agreed. Benjamin Franklin's speech at the conclusion of the constitutional convention contained the following thoughts:

In these sentiments, Sir, I agree to this Constitution with all its faults, if they are such; because I think a general Government necessary for us, and there is no form of Government but what may be a blessing to the people if well administered, and believe farther that this is likely to be well administered for a course of years, and can only end in Despotism, as other forms have done before it, when the people shall become so corrupted as to need despotic Government, being incapable of any other.

 

[hugh damright]

The supreme court cannot be separated from the constitution ... If you ignored the supreme court, you'd be ignoring the constitution.

I find that sometimes I have to make a choice between respecting a SCOTUS decision and respecting the US Constitution.

Your opinion is just your opinion and really has no bearing on what is happening in the real world. The opinions of SCOTUS do, however, have a bearing on what is happening in the real world, and that's why they trump yours.

But you seemed to say that the SCOTUS opinions trump, not my opinion, but the original intent. You said that the original intent is irrelevant and all that matters in the real world is what the SCOTUS says. I reckon I live in the real world, I just see judicial activism i.e. legislation from the bench for what it is.

Ah yes, the world is not constituted as you believe it ought be, and so the sky is falling. Of course while you're all wrapped up in that notion, things are being done, business is being conducted, folks are trying to make their ways in the world. SCOTUS has decided Heller and McDonald, and our RKBA advocacy groups are trying to take things to the next level.

You appear to be talking down to me because I try to respect the original intent. As I tried to explain, the original intent is what was consented to, and without that we don't have consentual government. But I suppose some people think that consentual government is irrelevant, and they are all wrapped up in a world of judicial activism, trying to take things to the next level. I think they are the problem, not the solution.

 

[Frank Ettin]

...But you seemed to say that the SCOTUS opinions trump, not my opinion, but the original intent. You said that the original intent is irrelevant and all that matters in the real world is what the SCOTUS says....

...You appear to be talking down to me because I try to respect the original intent...

No, what I'm saying that is you have not been graced with the exclusive knowledge of what the original intent was. You have an opinion about what the original intent was, but that doesn't mean you are correct, nor does your having an opinion mean that there can't be disagreement about the intent or application of the Constitution.

Disputes regarding the meaning and application of laws are resolved in court. That is what judicial power is about; and the Founding Fathers vested the judicial power of the United States, "...in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish..."(Article III, Section I, and they extended that judicial power to, "...all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States,..."(Article III, Section II).

 

[hugh damright]

No, what I'm saying that is you have not been graced with the exclusive knowledge of what the original intent was.

It's not a question of being graced with exclusive knowledge. I think we both know that the 14th Amendment's due process clause was not intended to make the USBOR binding against the States. But for some reason, rather than admit it, you say that the original intent is irrelevant.

I am reminded of Katzenbach v. McClung, when the US wanted to force a restaurant to serve negroes, so they said that it was an interstate commerce issue. Am I really expected to believe that if that restaurant didn't serve negroes it impacted interstate commerce of beef? Again, I am not graced with exclusive knowledge, but I'm pretty sure that negroes could have gotten a steak somewhere else, or gone home and cooked a steak on a grill. Isn't it painfully obvious that the SCOTUS was legislating from the bench? And once these clauses are stretched beyond recognition there are consequences, such as the interstate commerce clause being used to justify federal gun laws.

And Lawrence v Texas, where they said the 14th Amendment (and global values IIRC) meant that State sodomy laws were unconstitutional ... Rehnquist, Scalia, and Thomas dissented ... were they graced with exclusive knowledge, or were they merely conservative?

I don't think it is a question of exclusive knowledge, I think it is a matter of common knowledge that we have a problem with judicial activism i.e. legislation from the bench. Or at least I think it's a problem, I suppose some people want to take it to the next level.

 

[ConstitutionCowboy]

I like a fodder rich discussion. It makes me hungry for a steak.

The Constitution establishes the courts.

The Constitution established only the Supreme Court. The Constitution granter power to ordain and establish the inferior courts to Congress.

Whose job do you think it is to interpret and apply the Constitution if not the courts?

None other than no one, and everyone at the same time. As far as "interpreting" the Constitution, if by "interpret" you mean read and understand it, that's everyone's job. In Marbury v.Madison, when you read it in its full context, you will find that the Court understood its power in relation to the Constitution was to read and obey it. That's all any of us are supposed to do. Read and obey it. I dislike the use of the word "interpret" in discussions involving the Constitution - or any other body of law for that matter - because "interpret" has too many definitions to be useful around anything as clear and precise as the Constitution.

Cowboys

Thanks for the vote of confidence, but I respectfully decline. Anyone can learn to read and understand the Constitution.

Woody, enjoy your alternate universe. Whether you accept the premise or not is irrelevant.

I'd rather you exercise your knowledge and understanding of the Constitution to show me just where you find in the Constitution where ANYTHING in the Constitution can be ignored unless and until the Court decides to incorporate it. What is disturbing to me is that you accept the premise.

Is that all that matters?

I guess you don't care about freedom of speech or the press. I guess you don't care about free exercise of religion or the right of assembly or the right to petition government for the redress of grievances. Perhaps the right to confront your accuser in court doesn't matter to you. How about the right to remain silent?

What do you mean, "Is that all that matters?" This is a gun board, after all. Regardless, discussing one right covered by the "Bill of Rights" in this context IS discussing all of them

Your opinion is just your opinion and really has no bearing on what is happening in the real world. The opinions of SCOTUS do, however, have a bearing on what is happening in the real world, and that's why they trump yours.

The only time the opinion of the Court trumps anyone else's opinion is when the Court can get enforcement personnel to throw you in jail, take your money and possessions, or execute you.

But that's not what we have. We have a baseline. A set of rights which even a majority may not strip from the individual. It is not a theoretical matter of whether one majority or another is more protective. It is a reality that no majority can reduce individual rights below a certain level. That level was set for the federal government by the Bill of Rights, and it was later set for the States by the 14th Amendment and the doctrine of incorporation.

Here you are mostly correct, make sense and for the most part, contradict your acquiescence to the whims of the Supreme Court. You are still wrong, however, in your acceptance of the "incorporation doctrine" as it was created by the Court and thusly doled out at their whim. Everything in the Fourteenth Amendment was incorporated the very day it was ratified just like every other amendment to the Constitution.

Without the Bill of Right made applicable to a State, a State in theory, if the fervent wish of a majority, allow searches of an individual and his private property without his consent, without warrant and without probable cause. Is it then tyranny for that possibility to be foreclosed by the Bill of Rights being made applicable to the States?

If I understand your grammatically incongruent statement correctly, the answer to your question is, "No." That state joined the Union, and in doing so agreed to abide the Constitution, and had the opportunity to vote on the amendment if it was a member of the Union at the time the amendment was presented for ratification..

It's one thing to argue about whether Parent A (one majority) or Parent B (another majority) will be more protective of an individual's rights. It's another to say that no matter what one majority or another may want, an individual's rights shall not be reduced below a certain level.

Regardless of what any court may say.

Perhaps no system can be idiot proof. But we've done remarkably well when one considers the assorted scoundrels, perverts, liars, and those with various other integrity impairments who have held positions of leadership and responsibility in our government (at all levels).

I agree with that, but I'll not sit and be silent when those assorted scoundrels, perverts, liars, and those with various other integrity impairments who have held positions of leadership and responsibility in our government have taken us where we should not be. "That's the way it is, so sit down and shut up", doesn't cut it in my book. Just because we've done well in spite of the transgressions doesn't mean that's the best we could have, can, and should do.

No, what I'm saying that is you have not been graced with the exclusive knowledge of what the original intent was.

No one has exclusive knowledge of what the original intent was but knowledge of the original intent is available. Anyone can read all about it in the Federalist Papers. One can form an opinion whether the original intent was good or bad, but what it actually is is clearly spelled out. Even ignoring the Federalist Papers, one can read the Constitution following the rules of grammar and ascertain the intent from the Constitution itself.

Woody

 

[azmjs]

I am sure members of this board appreciate NFA34 and GCA68 for protecting their 2nd Amendment rights from being trampled by the states.

Neither the GCA nor the NFA violate the second amendment, in the first place.

More importantly, even if they did, they would be small and petty compared to all the good that's been done by the federal government in expanding and securing the rights of Americans.

 

[azmjs]

I find that sometimes I have to make a choice between respecting a SCOTUS decision and respecting the US Constitution.


But you seemed to say that the SCOTUS opinions trump, not my opinion, but the original intent. You said that the original intent is irrelevant and all that matters in the real world is what the SCOTUS says. I reckon I live in the real world, I just see judicial activism i.e. legislation from the bench for what it is.


You appear to be talking down to me because I try to respect the original intent. As I tried to explain, the original intent is what was consented to, and without that we don't have consentual government. But I suppose some people think that consentual government is irrelevant, and they are all wrapped up in a world of judicial activism, trying to take things to the next level. I think they are the problem, not the solution.

That's a profound sign that there's some serious mistake you're making in how you look at or understand the constitution.

The people who wrote the constitution are not kings whose will, if it were even possible to ascertain it, rules us from thrones in the grave in perpetuity.

The constitution was written so that a supreme judiciary would have the final say on questions of law. Hence, the supreme court and its function.

If you want to overthrow our constitution and establish a new one without a judiciary, then maybe you could eliminate the influence of the supreme court.

 

[gc70]

More importantly, even if they did, they would be small and petty compared to all the good that's been done by the federal government in expanding and securing the rights of Americans.

So you don't care whether the federal government promotes or tramples rights in specific situations, as long as they average out at least slightly on the 'protect' side of the ledger?

 

[Birch Knoll]

Whose job do you think it is to interpret and apply the Constitution if not the courts?

None other than no one, and everyone at the same time. As far as "interpreting" the Constitution, if by "interpret" you mean read and understand it, that's everyone's job. In Marbury v.Madison, when you read it in its full context, you will find that the Court understood its power in relation to the Constitution was to read and obey it. That's all any of us are supposed to do. Read and obey it. I dislike the use of the word "interpret" in discussions involving the Constitution - or any other body of law for that matter - because "interpret" has too many definitions to be useful around anything as clear and precise as the Constitution.

Ah, no one's and everyone's. Now, how does that work in Real Life(tm)? Let's say Congress passes a law; we'll call it, say, ObamaCare. Let's say some people like this new law, but others dislike it very much. Those that like it believe that it is wholly Constitutional, but those that dislike it believe that it is clearly Unconstitutional.

Who decides? No one and everyone?

 

[azmjs]

So you don't care whether the federal government promotes or tramples rights in specific situations, as long as they average out at least slightly on the 'protect' side of the ledger?

Surely I didn't write anything about not caring, did I?

At any rate, anyone who valued freedom or rights would prefer an outcome with more and better protected rights to one with less, even if in some hypothetical situation the difference was small.

More to the point, the fact of the matter is, throughout our nation's history the federal government has again and again protected Americans across the country from state and local authorities.

The bill of rights and other parts of the constitution are a baseline for every American. Because of the power of the federal government, no state government may go below what is guaranteed. Every state is free to grant or recognize rights beyond those in the constitution, of course.

For example, many states now allow gay people to get married, even though the supreme court has not yet decided that that right is protected by the constitution.

 

[gc70]

At any rate, anyone who valued freedom or rights would prefer an outcome with more and better protected rights to one with less, even if in some hypothetical situation the difference was small.

NFA34 and GCA68 are not hypothetical and they do not increase or better protect our Second Amendment rights.

More to the point, the fact of the matter is, throughout our nation's history the federal government has again and again protected Americans across the country from state and local authorities.

There is no basis for the nearly-religious conviction that many seem to have that the position of the federal government is automatically better than that of state and local authorities.