comparing 2nd with 18th

humor me on this one-

i was in a discussion about another topic (gay marriage), and i came across this thought: how does the 18th amendment (prohibition) compare with the 2nd amendment?

let me explain my thoughts:

the 18th amendment made it illegal to buy, make or sell alcohol. (not necessarily consume, but we'll include that for argument's sake.) now, this applied to all the states AND territories of the USA. this amendment superseded all state laws that also provided for prohibition. with the 21st amendment, that repealed the 18th amendment, and thus made the prohibition amendment unconstitutional. however, in the 21st amendment, it didn't have any extra wording in it except to repeal the 18th amendment. and now i've been to towns that are "dry", and i've heard about cities where it's illegal to even consume alcohol. i can understand this, because there was no power written in the constitution prior to the 18th amendment or after the 21st amendment that said alcohol couldn't be prohibited. why is it that the 2nd amendment clearly states it can't be infringed, yet many of the 50 states violate it? the 18th amendment was a federal law that effected all of the USA, and each state was allowed to enforce it. the 2nd amendment has the "shall not be infringed" that the states all violate. is it simply because the 2nd doesn't specifically state that each state must honor this? is it really that easy?

help me out

It's because evil, greedy, power hungry people can and will rationalize anything they want so long as it meets their ends.

The Second Amendment is part of the Bill of Rights whereas the Eighteenth Amendment amends the Constitution. At first glance, this doesn't seem to make any sense but please stay with me on this one.

The Bill of Rights is the product of two Founders who managed to convince a third Founder to their position that a Bill of Rights was an absolute necessity for our Constitution and they so believed this, they refused to ratify the Constitution until a Bill of Rights was attached. George Mason and Patrick Henry were these two men and James Madison was the man they prodded and convinced to carry this out. And furthermore not only these men but several others of our Founders also believed that the Bill of Rights was so fundamental to a free people that it was not amendable... ever.

The Constitution only does two things. It lays out the design of a form of government and then goes about describing how that government is to operate. The Bill of Rights recognizes certain fundamental rights reserved to the People which the federal government may not infringe upon nor usurp. Unfortunately over the years, we have see just that. Through the concept of interpretation, laws have been passed which have done all manner of ill because interpretation almost never occurs under the mantra of the Original Intent but rather that of contemporary vernacular.

SouthernBoy said:

The Second Amendment is part of the Bill of Rights whereas the Eighteenth Amendment amends the Constitution. At first glance, this doesn't seem to make any sense but please stay with me on this one.

The Bill of Rights is the product of two Founders who managed to convince a third Founder to their position that a Bill of Rights was an absolute necessity for our Constitution and they so believed this, they refused to ratify the Constitution until a Bill of Rights was attached. George Mason and Patrick Henry were these two men and James Madison was the man they prodded and convinced to carry this out. And furthermore not only these men but several others of our Founders also believed that the Bill of Rights was so fundamental to a free people that it was not amendable... ever.

The Constitution only does two things. It lays out the design of a form of government and they goes about describing how that government is to operate. The Bill of Rights recognizes certain fundamental rights reserved to the People which the federal government may not infringe upon nor usurp. Unfortunately over the years, we have see just that. Through the concept of interpretation, laws have been passed which have done just that because interpretation almost never occurs under the mantra of the Original Intent but rather that of contemporary vernacular.

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My gosh that is a great post. Can I use this? You see unlike our President I am not a Constitutional scholar (joke intended) and can use all the help I can get.

SouthernBoy said:

The Second Amendment is part of the Bill of Rights whereas the Eighteenth Amendment amends the Constitution. At first glance, this doesn't seem to make any sense but please stay with me on this one.

The Bill of Rights is the product of two Founders who managed to convince a third Founder to their position that a Bill of Rights was an absolute necessity for our Constitution and they so believed this, they refused to ratify the Constitution until a Bill of Rights was attached. George Mason and Patrick Henry were these two men and James Madison was the man they prodded and convinced to carry this out. And furthermore not only these men but several others of our Founders also believed that the Bill of Rights was so fundamental to a free people that it was not amendable... ever.

The Constitution only does two things. It lays out the design of a form of government and they goes about describing how that government is to operate. The Bill of Rights recognizes certain fundamental rights reserved to the People which the federal government may not infringe upon nor usurp. Unfortunately over the years, we have see just that. Through the concept of interpretation, laws have been passed which have done just that because interpretation almost never occurs under the mantra of the Original Intent but rather that of contemporary vernacular.

Click to expand...

i'm right there with you on your point- but let's dig deeper....why is it that the 18th amendment applied to the several states, but the 2nd amendment doesn't? now that the 18th has been repealed by the 21st, states and localities ARE able to prohibit alcohol. but with the 2nd amendment still going strong (debatable), why is it that states can regulate?

gunns said:

My gosh that is a great post. Can I use this? You see unlike our President I am not a Constitutional scholar (joke intended) and can use all the help I can get.

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of course

SouthernBoy said:

The Second Amendment is part of the Bill of Rights whereas the Eighteenth Amendment amends the Constitution. At first glance, this doesn't seem to make any sense but please stay with me on this one.

The Bill of Rights is the product of two Founders who managed to convince a third Founder to their position that a Bill of Rights was an absolute necessity for our Constitution and they so believed this, they refused to ratify the Constitution until a Bill of Rights was attached. George Mason and Patrick Henry were these two men and James Madison was the man they prodded and convinced to carry this out. And furthermore not only these men but several others of our Founders also believed that the Bill of Rights was so fundamental to a free people that it was not amendable... ever.

The Constitution only does two things. It lays out the design of a form of government and they goes about describing how that government is to operate. The Bill of Rights recognizes certain fundamental rights reserved to the People which the federal government may not infringe upon nor usurp. Unfortunately over the years, we have see just that. Through the concept of interpretation, laws have been passed which have done just that because interpretation almost never occurs under the mantra of the Original Intent but rather that of contemporary vernacular.

Click to expand...

Thank you Southernboy! This is a tidbit of information that I will carry with me forever.

gunns said:

My gosh that is a great post. Can I use this? You see unlike our President I am not a Constitutional scholar (joke intended) and can use all the help I can get.

Click to expand...

Sure, just let me fix the typos.

hammer6 said:

i'm right there with you on your point- but let's dig deeper....why is it that the 18th amendment applied to the several states, but the 2nd amendment doesn't? now that the 18th has been repealed by the 21st, states and localities ARE able to prohibit alcohol. but with the 2nd amendment still going strong (debatable), why is it that states can regulate?

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You ask a very good question and to back up your question, one may also consider the "establishment" clause in the First Amendment. It speaks of congress, not a state legislature, so one might think that a state could do as they see fit with religious matters, free speech, or the other parts of this amendment. I'm going to venture a guess that the reason we see amendments to the Constitution and not the Bill of Rights is two-fold.

One, as I mentioned several of our Founders strongly believed that the Bill of Rights was unamendable. And two, I believe most all of the states have these same guarantees in their own constitutions. Amendments 11 through 27 only amend the Constitution; they do not amend the Bill of Rights.

Perhaps someone more knowledgeable than I can chime in on this one.

Up to thos point all is well and good. But now we need to take a look at this Bill of Rights thing and whether or not it can be amended. OK, we've looked. The answer is "Yes, it can be amended."

While enshrined in our collective psyche as a single entity, the Bill of Rights are merely the first 10 amendments to the Constitution. The same reasons given for how and why they came into being are, generally speaking, why all the other amendments were introduced and ratified.

Now, getting back to the OP's question:

why is it that the 2nd amendment clearly states it can't be infringed, yet many of the 50 states violate it? the 18th amendment was a federal law that effected all of the USA, and each state was allowed to enforce it. the 2nd amendment has the "shall not be infringed" that the states all violate. is it simply because the 2nd doesn't specifically state that each state must honor this? is it really that easy?

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Without meaning to sound like a Civics 101 lecture, we must start with the notion that the Supreme Court is the body that decides what is unconstitutional. (No, it does not care about what is Constitutional.)

Then we move to the history of the 2A in front of the Supreme Court - all three (if you believe the mainstream media) cases: Miller, Heller, and McDonald. Even Wikipedia http://en.wikipedia.org/wiki/Firearm_case_law_in_the_United_States only expands that by two more. But there are in reality six other cases that SCOTUS has ruled on, as well as about 20 that never went beyond the Circuit Court of Appeals level. Generally speaking, in each case SCOTUS ruled that whatever restriction, limitation, or other action that was being complained about was not an infringement on the right declared to exist. Most of the time they used a concept called "reasonable restriction", such as when agreeing that convicted felons, the mentally ill, traitors, and (most recently) illegal aliens ought, for various and sundry reasons that the worthy justices considered both reasonable and not infringing, do not share in the right enjoyed by the rest of The People. Even in the landmark Heller decision that settled (until the next time) that the right to keep and bear arms was individual and has nothing to do with the militia/National Guard SCOTUS said that for a variety of reasons (chief among them being the mass confusion the changes would create) reasonable restrictions are both reasonable and not unconsitutional.

So, in a word, the answer to the OP's question is what I like to call the "BISS Doctrine" - the same one parents have relied on since they started having children. It's any easy doctrine to understand - Because I Said So.

Now, to answer the question that the OP has not yet had an opportunity to ask: how do we change that? The easy answer is to support the efforts of the several organizations that brought us Heller and McDonald. Having essentially dealt with The Federal Government and The States, they are now taking on The Localities, which is generally where those reasonable restrictions came from. Those reasonable restrictions did not just suddenly appear, and they are not going to suddenly disappear. They are what scholars and pundits like to refer to as "creeping incrementalism" and will be eliminated in the same way - slowly and one by one.

stay safe.

skidmark said:

Up to thos point all is well and good. But now we need to take a look at this Bill of Rights thing and whether or not it can be amended. OK, we've looked. The answer is "Yes, it can be amended."

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Please note, I never stated that it could not be amended... only that several of the Founders believed this to be the case. For us, it really is too bad that they didn't enshrine their thoughts on this into our Founding documents so that future courts could not muddle, distort, and in the extreme, remove any of the articles in the Bill of Rights. Leaving this door open as we "evolve" is a dangerous move which invites insidious people to do very bad things as we have seen time and time again.