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Thread: was the intent of the 2A to apply to the states?

  1. #1
    Regular Member hammer6's Avatar
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    Question was the intent of the 2A to apply to the states?

    just wanted to get your opinion on whether you think the second amendment was written to restrict the federal government or the states. i'd make a poll, but that would be to restricting. i want an open ended answer

  2. #2
    Regular Member Freedom1Man's Avatar
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    It was a part of the bill of rights that was put there by the states in the first place.

    They were rights that the people at the time were tired of the King stomping all over.

    All the amendments are to hold all levels of government under control.
    Provision for free medical attendance and nursing, for clothing, for food, for housing, for the education of children, and a hundred other matters, might with equal propriety be proposed as tending to relieve the employee of mental strain and worry. --- These matters obviously lie outside the orbit of congressional power. (Railroad Retirement Board v Alton Railroad)

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    Regular Member hermannr's Avatar
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    There was doubt that the national constitutions bill of rights applied to the states, but, that was removed with the passage of the 14th amendment.

    As originally written, I believe the National constitution applied only to the national government. That changed when the 14th amendment passed.

    Why do I say that? At the time the national constitution was ratified, MA, and MD both had (different) "state" sponsored churches, and neither state wanted the other states "church" to end up a "national" state church. NY has never had an equivalent of the national 2A in their constitution, and there were several other differences between the individual states constitutions.

    The "bill of rights" restricted what the National Government could do, in the beginning, not what the State could do.

  4. #4
    Regular Member Fallschirmjäger's Avatar
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    I would give an emphatic, "Yes" and note the differences between Amendment 1 and Amendment 2:
    The First Amendment says, "Congress shall make no law..." which left free the States to have a state religion (as at least two states did have official religions iirc).
    The Second Amendment says, "... shall not be infringed" that would seem to be without limitation, neither Congress nor the States, nor any municipality or subsection thereof.

    Of course, that seems to be almost diametrically opposite to the way they've been interpreted, doesn't it?

  5. #5
    Regular Member Freedom1Man's Avatar
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    Quote Originally Posted by Fallschirmjäger View Post
    I would give an emphatic, "Yes" and note the differences between Amendment 1 and Amendment 2:
    The First Amendment says, "Congress shall make no law..." which left free the States to have a state religion (as at least two states did have official religions iirc).
    The Second Amendment says, "... shall not be infringed" that would seem to be without limitation, neither Congress nor the States, nor any municipality or subsection thereof.

    Of course, that seems to be almost diametrically opposite to the way they've been interpreted, doesn't it?
    That is what I like to point out to people too.

    Otherwise the 5th Amendment would have no application, nor the 4th Amendment, 9th, 10th, etc.
    Provision for free medical attendance and nursing, for clothing, for food, for housing, for the education of children, and a hundred other matters, might with equal propriety be proposed as tending to relieve the employee of mental strain and worry. --- These matters obviously lie outside the orbit of congressional power. (Railroad Retirement Board v Alton Railroad)

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    Regular Member 1245A Defender's Avatar
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    wel,,,

    I am not a really smart guy, but
    I have been shocked, that the supreme court needed to rule that the 2nd amendement applied to the states!
    I always thought that it must apply to ALL the states.

    It is the CONSTITUTION of the UNITED STATES!
    Not the constitution of the federal government...
    EMNofSeattle wrote: Your idea of freedom terrifies me. So you are actually right. I am perfectly happy with what you call tyranny.....

    “If ever a time should come, when vain and aspiring men shall possess the highest seats in Government, our country will stand in need of its experienced patriots to prevent its ruin.”

    Stand up for your Rights,, They have no authority on their own...

    All power is inherent in the people,
    it is their right and duty to be at all times ARMED!

  7. #7
    Campaign Veteran skidmark's Avatar
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    I continue to be amazed at the number of people who do not/will not understand the difference between the federal government and the governments of the various States. And add to that the number of folks who do not know the progression of the federal government from that which was created during the Great Rebellion (if (f)GB had been the winner, that's what it would still be called) to the current state of affairs.

    Up until the Civil War of Northern Aggression to Free the Slaves and Cotton Markets there was little regard by the general population about the federal government - most folks were most concerned about their particular county and then the State. The aforementioned fraccas did in fact test the notion that the Union might or might not be broken, with both sides mightily disappointed with the intermediate and final outcomes.

    But there was never a question as to whether or not the Constitution of the United States of America applied only to the federal government. As has been mentioned before, it took ramming the 14th Amendment down the throats of 12 out of the 13 seccessionist states (can anybody tell us why Texas was not included?) to make some parts of the federal constitution apply against the States and their governance. The ink was barely dry on the First Amendment when New Yawk was told it applied against them and all the rest of the former colonies whether they liked it or not. It was only a few years ago that SCOTUS said that the Second Amendment applied against the States, and then that whole "shall not be infringed" part not only had fringe hung all over it, but bows and ribbons, too.

    For all the marbles, who will be the first to list all of the amendments that do not apply against the States, even after passage of the 14th Amendment? Bonus marbles to anyone who can list those amendments that only partially apply - but you must list which parts do apply and which parts do not apply.

    stay safe.
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  8. #8
    Regular Member Fallschirmjäger's Avatar
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    Pretty sure the Third hasn't been incorporated, or at least I can't think of any Supreme Court decisions on it.
    Seventh hasn't been incorporated.
    Eighth is partially incorporated... iirc.

    How many did I miss?
    Last edited by Fallschirmjäger; 07-06-2012 at 05:34 PM.

  9. #9
    Regular Member sudden valley gunner's Avatar
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    Quote Originally Posted by 1245A Defender View Post
    I am not a really smart guy, but
    I have been shocked, that the supreme court needed to rule that the 2nd amendement applied to the states!
    I always thought that it must apply to ALL the states.

    It is the CONSTITUTION of the UNITED STATES!
    Not the constitution of the federal government...
    Bob you are by no means dumb. One thing to remember something our politicians have long forgotten is that "rule of law" means our government is ruled by law we were to be as unrestricted as possible. The constitution of the U.S. was a law restricting the federal government. Although I feel the 2nd amendment was worded the way it was to recognize all our RKBR, how are we to restrict the Federal gov. if the people can't have guns at a state level? And that also the Declaration of Independence recognizes our right to over throw our government even at a state level.

    Quote Originally Posted by skidmark View Post
    I continue to be amazed at the number of people who do not/will not understand the difference between the federal government and the governments of the various States. And add to that the number of folks who do not know the progression of the federal government from that which was created during the Great Rebellion (if (f)GB had been the winner, that's what it would still be called) to the current state of affairs.

    Up until the Civil War of Northern Aggression to Free the Slaves and Cotton Markets there was little regard by the general population about the federal government - most folks were most concerned about their particular county and then the State. The aforementioned fraccas did in fact test the notion that the Union might or might not be broken, with both sides mightily disappointed with the intermediate and final outcomes.

    But there was never a question as to whether or not the Constitution of the United States of America applied only to the federal government. As has been mentioned before, it took ramming the 14th Amendment down the throats of 12 out of the 13 seccessionist states (can anybody tell us why Texas was not included?) to make some parts of the federal constitution apply against the States and their governance. The ink was barely dry on the First Amendment when New Yawk was told it applied against them and all the rest of the former colonies whether they liked it or not. It was only a few years ago that SCOTUS said that the Second Amendment applied against the States, and then that whole "shall not be infringed" part not only had fringe hung all over it, but bows and ribbons, too.

    For all the marbles, who will be the first to list all of the amendments that do not apply against the States, even after passage of the 14th Amendment? Bonus marbles to anyone who can list those amendments that only partially apply - but you must list which parts do apply and which parts do not apply.

    stay safe.
    Don't be to hard on us Skid, years and years of Union (nationalist) propaganda takes some time to get over. How about the fact the 14th amendment isn't even a duly ratified amendment? How can a non state ratify something, to be allowed to be a state, yet somehow at the same time the argument is put forth they never left the union? They really wanted to have their cake and eat it too. I guess I shouldn't put that in past tense.
    Last edited by sudden valley gunner; 07-06-2012 at 09:30 PM.
    I am not anti Cop I am just pro Citizen.

    U.S. v. Minker, 350 US 179, at page 187
    "Because of what appears to be a lawful command on the surface, many citizens, because
    of their respect for what only appears to be a law, are cunningly coerced into waiving their
    rights, due to ignorance." (Paraphrased)

  10. #10
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    Generally, pre-14th amendment, the Bill of Rights generally only applied to the federal government. The reason for the Bill of Rights was to define some certain limits to federal power and that federal power was by its nature limited to what is expressly written in the Constitution. There was widespread concern that the new Constitution gave the federal government way too much power, so the Federalists promised a Bill of Rights in order to secure its ratification. It was just generally understand to apply to the federal government only.

    Of course, some argued it should apply to state governments as well. James Madison actually referenced the 1st amendment in arguing against a proposed Virginia law that would have been a state-endorsement of religion. Some challenged various state laws in federal courts arguing that the Bill of Rights protected them against state laws, but SCOTUS argued that it was only ever intended to protect against the federal government. If SCOTUS would have ever ruled on the 2nd amendment applying to the states pre-Civil War, it would likely have found that it was limited to the federal government.

    As to whether or not it should apply, it clearly ought to post-14th. Before then, it probably should have as well. A plain reading of the 2nd doesn't say it shall not be infringed by anyone in particular, implying it shouldn't be infringed by anyone. Also, everyone has the same rights all the time, it doesn't matter where you live or where you're born. If the federal government can be used to enforce these universal rights against state governments, it should be.
    Last edited by WhatTimeIsIt?; 07-06-2012 at 10:42 PM.

  11. #11
    Regular Member WalkingWolf's Avatar
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    When I read the bill of rights it IMO is written to the people, to protect them from abuses by government. Now it could well be that those abuses were only meant to be protected from the federal government. But almost all the citizens lived in the states that the constitution did not protect the states so much as the citizens of each state. Before the Civil War each state was a country, so it is understandable that each state made their own laws and had their own constitution. But Lincoln changed all of that, either the federal government should give the freedom back to the states, or if the states are no longer a state, all rights apply as they are/were written to all citizens. They need to make up their mind, either overturn all arms laws and infringements or return states rights. This includes throwing out the patriot act, and any other law that violates the constitution.

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    Regular Member Maine Expat's Avatar
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    Well, in the most simple terms possible, one can consider the US Constitution as a contract between the Federal Govt. and the States within the Union.

    The Constitution limits what the Fed Govt can do and empowers the States to basically operate as they see fit providing they stay within the "contract terms". This all got botched and muddled as Big Bro grabbed more and more power from the States until today most have forgotten that its the STATES that are supposed to be the stronger partner. And we also forgot that the States are supposed to be fairly independent while still working within the framework of our contract that is the US Constitution.

    The United States is supposed to be a collection of independent States United in a common cause and bond by a contract that our modern fed gummit constantly stomps on. If the State Governors ever woke up (or grew a pair) they'd remember that they could actually nullify (through the State's Legislators) a multitude of crappy Fed directives and put big bro in his place.

    So when an amendment states that a certain right shall not be infringed the States as members of the partnership may not legally infringe on that right in their own State. Most State Constitutions echo the US, but there are some exceptions as noted in earlier posts here.
    Last edited by Maine Expat; 07-07-2012 at 01:46 PM.
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    Regular Member sudden valley gunner's Avatar
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    [QUOTE=Maine Expat;1783940]Well, in the most simple terms possible, one can consider the US Constitution as a contract between the Federal Govt. and the States within the Union.

    The Constitution limits what the Fed Govt can do and empowers the States to basically operate as they see fit providing they stay within the "contract terms". This all got botched and muddled as Big Bro grabbed more and more power from the States until today most have forgotten that its the STATES that are supposed to be the stronger partner. And we also forgot that the States are supposed to be fairly independent while still working within the framework of our contract that is the US Constitution.

    The United States is supposed to be a collection of independent States United in a common cause and bond by a contract that our modern fed gummit constantly stomps on. If the State Governors ever woke up (or grew a pair) they'd remember that they could actually nullify (through the State's Legislators) a multitude of crappy Fed directives and put big bro in his place.

    So when an amendment states that a certain right shall not be infringed the States as members of the partnership may not legally infringe on that right in their own State. Most State Constitutions echo the US, but there are some exceptions as noted in earlier posts here.[/QUOTE

    That is why after the war for independence the treaty with King George was signed and acknowledged to be with 13 individual countries (or states).
    I am not anti Cop I am just pro Citizen.

    U.S. v. Minker, 350 US 179, at page 187
    "Because of what appears to be a lawful command on the surface, many citizens, because
    of their respect for what only appears to be a law, are cunningly coerced into waiving their
    rights, due to ignorance." (Paraphrased)

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    Campaign Veteran MAC702's Avatar
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    "The right of the PEOPLE to keep and bear arms...."

    You know, there are very few American people who are not residents of one of the states.
    "It's not important how many people I've killed. What's important is how I get along with the people who are still alive" - Jimmy the Tulip

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    Campaign Veteran since9's Avatar
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    Quote Originally Posted by MAC702 View Post
    "The right of the PEOPLE to keep and bear arms...."

    You know, there are very few American people who are not residents of one of the states.
    Sometimes, the simplest points are the most profound.
    The First protects the Second, and the Second protects the First. Together, they protect the rest of our Bill of Rights and our United States Constitution, and help We the People protect ourselves in the spirit of our Declaration of Independence.

  16. #16
    Regular Member sudden valley gunner's Avatar
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    Quote Originally Posted by MAC702 View Post
    "The right of the PEOPLE to keep and bear arms...."

    You know, there are very few American people who are not residents of one of the states.
    One reason they used people was they were not sure which states would ratify the constitution and which would remain independent.
    I am not anti Cop I am just pro Citizen.

    U.S. v. Minker, 350 US 179, at page 187
    "Because of what appears to be a lawful command on the surface, many citizens, because
    of their respect for what only appears to be a law, are cunningly coerced into waiving their
    rights, due to ignorance." (Paraphrased)

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    I urge all the 'Constitutional Scholars' on this thread to do a quick study of American history. Perhaps pick up a Kevin Gutzman or Tom Woods book on this subject.
    You'll find that the federal Constitution is a FEDERAL document. Until passage of the 14th amendment (and even some of the people who wrote/voted for that amendment didn't believe it incorporated the BOR as fully as it is interpreted today) the BOR was simply a restriction on the federal government.

    One of the arguments Jefferson and Madison made against the dreaded Alien and Sedition acts which criminalized free speech criticizing the federal government, was that only the STATES had the power to pass laws abridging free speech, if their state constitution so allowed it. Therefore it was a violation of not only the 1st amendment because it was a federal law, but a violation of the 10th amendment.
    As previously pointed out, many states had State Churches funded through taxation, which is an obvious violation of the 1st amendment if the FEDERAL government did so. Even the anti-federalist Patrick Henry argued AGAINST a national establishment of religion, but argued for a VIRGINIA state establishment of religion.

    We must get rid of the nationalist view of the US to understand pre 14th amendment america. The Constitution, even being the totally ineffective document it has been at limiting federal power, was a document that only allowed 18 powers to be carried about by congress. All other governing was left to the states. Most of the people we consider 'patriots' from the founding era, considered themselves citizens of the states they inhabited, not AMERICAN citizens. The United States was referred to in the plural as 'these united States.'

    If the 2A really applied to the states as well as federal government from the beginning, federal courts would of been striking down the first laws passed by the states abridging arms ownership. Period.

    But this is a useless discussion.
    The constitution has failed abysmally in protecting ones liberty. People still clinging to the notion that the 2A protects their right to bear arms, in light of the over 20K laws infringing on your right to bear arms are just in total denial.

    Lysander Spooner had it right:
    "But whether the Constitution really be one thing, or another, this much is certain - that it has either authorized such a government as we have had, or has been powerless to prevent it. In either case, it is unfit to exist."
    Last edited by brutus1776; 07-08-2012 at 09:50 AM.

  18. #18
    Regular Member sudden valley gunner's Avatar
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    +1 A post that mentions, Woods, Gutzman and my favorite anarchist Spooner....
    I am not anti Cop I am just pro Citizen.

    U.S. v. Minker, 350 US 179, at page 187
    "Because of what appears to be a lawful command on the surface, many citizens, because
    of their respect for what only appears to be a law, are cunningly coerced into waiving their
    rights, due to ignorance." (Paraphrased)

  19. #19
    Regular Member Fallschirmjäger's Avatar
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    Quote Originally Posted by MAC702 View Post
    "The right of the PEOPLE to keep and bear arms...."
    You know, there are very few American people who are not residents of one of the states.

  20. #20
    Regular Member rodbender's Avatar
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    Quote Originally Posted by brutus1776 View Post
    I urge all the 'Constitutional Scholars' on this thread to do a quick study of American history. Perhaps pick up a Kevin Gutzman or Tom Woods book on this subject.
    You'll find that the federal Constitution is a FEDERAL document. Until passage of the 14th amendment (and even some of the people who wrote/voted for that amendment didn't believe it incorporated the BOR as fully as it is interpreted today) the BOR was simply a restriction on the federal government.

    One of the arguments Jefferson and Madison made against the dreaded Alien and Sedition acts which criminalized free speech criticizing the federal government, was that only the STATES had the power to pass laws abridging free speech, if their state constitution so allowed it. Therefore it was a violation of not only the 1st amendment because it was a federal law, but a violation of the 10th amendment.
    As previously pointed out, many states had State Churches funded through taxation, which is an obvious violation of the 1st amendment if the FEDERAL government did so. Even the anti-federalist Patrick Henry argued AGAINST a national establishment of religion, but argued for a VIRGINIA state establishment of religion.

    We must get rid of the nationalist view of the US to understand pre 14th amendment america. The Constitution, even being the totally ineffective document it has been at limiting federal power, was a document that only allowed 18 powers to be carried about by congress. All other governing was left to the states. Most of the people we consider 'patriots' from the founding era, considered themselves citizens of the states they inhabited, not AMERICAN citizens. The United States was referred to in the plural as 'these united States.'

    If the 2A really applied to the states as well as federal government from the beginning, federal courts would of been striking down the first laws passed by the states abridging arms ownership. Period.

    But this is a useless discussion.
    The constitution has failed abysmally in protecting ones liberty. People still clinging to the notion that the 2A protects their right to bear arms, in light of the over 20K laws infringing on your right to bear arms are just in total denial.

    Lysander Spooner had it right:
    "But whether the Constitution really be one thing, or another, this much is certain - that it has either authorized such a government as we have had, or has been powerless to prevent it. In either case, it is unfit to exist."
    We have a winner!!!!!!!

    Especially the part about the "useless discussion".
    The thing about common sense is....it ain't too common.
    Will Rogers

  21. #21
    Campaign Veteran since9's Avatar
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    Quote Originally Posted by brutus1776 View Post
    But this is a useless discussion.
    Not at all - it's very enlightening. Let's stipulate for a moment that your statement is correct: Do you usually spend half an hour participating in "useless" discussions?

    The constitution has failed abysmally in protecting ones liberty.
    It's not the Constitution that protects our liberty. That's our job, from each and every citizen, progressively up through higher and higher levels of sworn oath-keepers. The Constitution merely codifies our liberties, and it's done an exception job of doing just that. If our liberties haven't been well protected, it's because some people have let down their guard, while others have intentionally usurped their freedoms.
    Last edited by since9; 07-10-2012 at 03:49 AM.
    The First protects the Second, and the Second protects the First. Together, they protect the rest of our Bill of Rights and our United States Constitution, and help We the People protect ourselves in the spirit of our Declaration of Independence.

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