Jim, at the time that the university ban was crafted, it was understood that the second amendment restricted only the federal government. As ReelinRod said "The 2nd Amendment had no force upon state or local gun laws." Which "necessarily means," as you put it, that the Second Amendment was absolute vis a vis the federal government, not for the States. Therefor Jefferson and Madison would not have objected to the university ban, but they would have objected to a federal government ban. That is a huge difference. What is being called for by present day gun controllers are federal bans.

Since Madison's and Jefferson's time, the federal government has snuck its foot into state territory and is now having some say in the matter. That's why I avoided the States Rights issue and explained the matter in terms of Constitutional congruity. But I see now, as is your wont to do, when you refuse to accept something, that's the end of the discussion for you.

So what the two of you seem to be saying, is that at the time the Bill Of Rights was crafted, it only limited what the feds could do? The United States Constitution did not apply to the states? States were free to violate the constitution as they saw fit? I majored in math, not history, but that doesn't sound right at all. You're saying a state could pass a law banning Christianity, and the United States Constitution would not have trumped that state law?

"when you refuse to accept something, that's the end of the discussion for you"

Not so. I asked a question for the specific purpose of continuing the conversation. The supremacy clause is in the original draft of the constitution, I think, Article 6. It says pretty clearly that the US Constitution is the law of the land, "and that "the judges in every state shall be bound thereby, any thing in the laws or constitutions of any state notwithstanding."

That suggests to me, that the state of VA was prohibited from passing any laws which didn't comply with the Constitution. The fathers thereby agreed that the campus ban, was not a violation of that amendment.

We don't need to argue over the second amendment as a litmus test for the constitutionality of limits on protected freedoms. The freedom of speech does not include threatening or child pornography. There are therefore limits to the freedoms guaranteed in the Bill Of Rights, which are not unconstitutional. That's all I am saying.

Jim, hahahahahaha...
Posted from my iPhone/Mobile device

Freedom of speech did not refer to all speech in every place. Certainly, speech which threatened or restricted others rights would have been contrary to all founding principles, especially the Declaration of Independence which is a legally referred to document re constitutional questions. The right to life and liberty are not to be denied or threatened by words or guns. So, yeah, as I mentioned in the previous responses to you, in which I also cover child porn, the Constitution cannot contradict itself. There is a congruence in which all "rights" work together. And yeah, there is that internal limitation on rights. You have often said that your rights end at my nose or something like that. But federal government rights do not stop at your nose--so long as they are within constitutional limits.

BTW, if the Supremacy Clause meant what you think it does, then the Constitution, the "supreme law of the land" would be very short and of no need for articles and clauses and amendments. It could say something like "There shall be elections to determine the rulers of the land who have the supreme power to subject the citizens to any law they see fit." There would be no room for State laws, nor any need for the states to exist.

Correct, the Bill of Rights did not have any weight on state law. This fact is what made the 14th Amendment necessary. After the Civil War, the Southern States enacted and enforced with brutality the Black Codes which forbade Blacks from owning arms. The "official" state militias were the enforcers of these laws and violated the rights of Freemen to the point that the 39th Congress disbanded the militias of several states. Of course, the violence continued; the militia members just put on hoods and continued harassing and killing Freemen.

The intent of the 14th Amendment was to finally enforce the federal amendments on the states and the right to arms was a primary reason.

Of course this was frustrated by the Supreme Court in 1873 where it gutted the "privileges or immunities" clause of the 14th Amendment. This only left "due process" and "equal protection" as the mechanism to enforce the Bill of Rights on the states.

This begat the "Selective Incorporation" doctrine because each claim of rights injury had to be painstakingly examined and the resulting decisions narrowly applied certain clauses of the 1st or the 4th or the 5th Amendments over many decades . . . The 2nd Amendment was not applied to the states -- "incorporated" against state law -- until 2010.

What's that saying? Justice delayed is justice denied. . .


The doctrines of supremacy and preemption cover conflicts in claims of power.

The right to arms has exactly the same kinds of "restrictions" . . . One can't brandish or threaten the use of a weapon, one can't shoot at someone without justification, one can not kill another person without justification.

Gun controllers are arguing for a much different "restriction" schedule to be pressed for guns . . . Broad proscriptions on simple ownership, registration with the government to exercise a right including licensing. Enacting bans on certain types of commonly owned arms and endorsing absolute bans on all operable guns based on geography.

Your equivalency fails, to put the kind of restrictions you want for guns on any other right would be laughed off as prior restraint.

making my hair hurt

which means what? "the right of THE PEOPLE to keep and bear arms shall not be infringed" ....is somehow affected or diluted by that?

for this to be a valid comparison you'd have to take away the vocal cords and cameras....get it?

Scott, the supremacy clause, very clearly limits what states can do. States may not pass a law which violates the US Constitution.

I get what detbuch is saying about a list of enumerated powers to the feds, and all else goes to the states. I'm not disputing that.

All I am saying, is that there are limits to the freedoms in the Bill Of Rights, which are not unconstitutional.

"The right to arms has exactly the same kinds of "restrictions" . . . One can't brandish or threaten the use of a weapon, one can't shoot at someone without justification, one can not kill another person without justification."

I don't think that's exactly true. Again, when some of the founding fathers were on the board of governors at the University Of Virginia, they passed a rule saying no guns were allowed on campus. They didn't say you could have a gun as long as you weren't threatening someone...they said you could not possess a gun on campus at all. The founding fathers apparently did not believe that such a ban was a violation of the second amendment.

I'm not someone who thinks the constitution is a living, evolving document. I prefer to think of what they meant, at the time it was crafted. The evidence seems compelling to me (we can disagree obviously), that they felt that certain restrictions in the name of public safety, are well within the intent of the second amendment.

It places the right in context of the purpose.

You don't seem to know the purpose. Nor its context.

The Founders didn't restrict the states by the 2nd Amendment. States had their own constitutions which applied to and were supported by their citizens. So, whatever gun control the states wanted to apply would have to be decided by permission of their citizens. So, if the board of governors of the university wanted to disallow guns on campus, Jefferson and Madison would have thought they had the right to do so, any objections they might have had notwithstanding. If you think that meant that Madison and Jefferson also meant the federal government could also control private ownership of guns, you are wrong. Such a notion is not, as you put it, well within the intent of the 2nd Amendment.

If one could construe that any state action would somehow be evidence that the federal government had the same power, and that the federal government was supreme in its own powers, then there would be no such thing as state sovereignty. There would be no need for state constitutions or criminal statutes or civil codes. There would, in effect, be no need of separate states. And we would have long ago dissolved them and become one State, with unlimited power.

That, BTW, is the Progressive ideal.

Well, you are free to hold a wrong conclusion based on a mistaken assumption. The correct legal situation has been explained to you multiple times; I'm not bothering with it again.

If you want to conform your thinking to the framers then you will be wrong again. It isn't the 2nd Amendment that restrains government, it is the fact that no power exists to write those restrictions. The 2nd Amendment doesn't "do" anything but redundantly forbid the federal government to exercise powers it was never granted.

IOW, there is no, "2nd Amendment right" to point to . . .

The Supreme Court has been boringly consistent for over 140 years stating that the right to arms is not granted by the 2nd Amendment thus the right to arms is not in any manner dependent upon the Constitution for its existence.

If the right is violated by a law or regulation it is a simple example of the legislature overstepping its authority and generally, the government exceeding the powers granted to it in the Constitution. That's the definition of an unconstitutional law.

Actually you have stumbled over the truth but not in the way you intended . . .

SCOTUS has filtered the right to arms through the "object" of the 2nd Amendment -- the "why" the framers secured the right from government interference. That is of course to preserve the general militia concept, the political philosophy that the mass of private citizens having their personal, military useful arms in their hands, without regulation of law or permission of authorities, stands as a barrier to domestic tyrants and foreign invaders.

That intent has informed the Court on what types of arms are protected for possession and use by private citizen.

US v Miller articulated those protection criteria (or tests) that the Supreme Court uses to determine if an arm is beyond the reach of government. The arm must be shown to be of the type:

• In common use at the time and/or
• that constitute the ordinary military equipment / are usually employed in civilized warfare and/or
• that can be employed advantageously in the common defense of the citizens.

If the type of arm meets any one of these criteria the right to keep and bear that weapon must be preserved and the authority claimed by government to restrict its possession must be repelled or invalidated.

That protection criteria, based solely on how effective an arm is in killing people, demands that those types of arms known as "assault weapons" be recognized as fitting the protection criteria better than any other type of arm.

So, thanks for trying so hard to link the right to arms to a militia intent, it is the left's unending pressure to that end, that will preserve those weapons in private hands.


.

...in what way is your right to free speech restricted?...this where I think you have it backwards....your right to free speech only becomes "restricted" as you like to put it in a perpetually flawed example...when you fail to use it responsibly(which is why I pointed this out to you previously rights/responsibilities)....you can say whatever you like, you are guaranteed the right to do so....at whatever point your speech infringes on the rights of another...then that speech may in some cases be punished through the courts but I think there needs to be physical harm or financial damage shown....you can apply this to other rights...except abortion...that one gets a pass

you seem to want to limit(federally) the rights of those that have yet to infringe on the rights of others through your arbitrary "restricting rights in the name of public safety"....and we can apply that to a whole host of things going forward and make the progressives really happy

OK, I agree with you that the supremacy clause limits the areas in which federal law trumps state law, to those powers enumerated in the constitution. But it would seem that gun rights and restrictions fall into that category, as some state gun restrictions have been struck down as being unconstitutional, as prescribed in the US constitution.

In this well-known case, the DC gun ban was determined by a federal judge, to be contrary to the US Constitution, and therefore invalid. Therefore, when states enact gun restrictions, those restrictions must pass constitutional muster.

http://www.foxnews.com/politics/2014...itutional.html

So if states want to ban things like bump stocks or high capacity magazines, that's not necessarily unconstitutional for states to do that...just as it wasn't unconstitutional for VA to declare that guns weren't allowed on campus. That's all I'm saying, all I am doing is responding to those who say that any restrictions on guns, are unconstitutional.

"in what way is your right to free speech restricted?..."

It's a crime for me to threaten somebody.

"you seem to want to limit(federally) the rights of those that have yet to infringe on the rights of others through your arbitrary "restricting rights in the name of public safety"...."

Not exactly. I'm saying that some restrictions on firearms (let's assume they are state restrictions, not federal), in the interest of public safety, would appear to be constitutionally allowed. For example, the VA ban of firearms on campus, enacted by some of the founding fathers. They didn't say you could have guns as long as you don't threaten anyone. They said you could not posses guns on campus. So all I am saying, is this...if that state restriction (which prohibits the mere possession of firearms in certain situations) was considered constitutional by the founding fathers, then perhaps other proactive state restrictions would also be constitutional. At a minimum, clearly the founding fathers were OK with some proactive restrictions on the possession of firearms, even before said firearms were used to threaten anyone.

Jim...what is the difference between yelling fire in a crowded theater and yelling fire in an empty theater?

this is becoming comical

OK. We seem to be getting somewhere. There's farther to go and I'm too tired to go there at this moment. I think ScottW is getting there with his posts. You and he might arrive at the sweet spot in the debate. But, at the least, if you're shifting away from the federal government's attempt at gun control, then we're getting somewhere. Now you can campaign for Connecticut gun control, and quit jumping on the bandwagon for federal control.

Oh well, I did write this reply to the above post before I saw the exchange between you and Scott. I'll go ahead and post it.

I just noticed this post by you. As an addendum to the above lengthier posts, especially the succinct ones by ReelinRod, I'd like to clear up what appears to me to be a misunderstanding about the Supremacy clause.

The Supremacy clause also, and more so, limits the federal government's supreme power to remaining within the few granted parameters which the Constitution prescribes.

The notion that the clause's limiting effect on states due to the relatively small scope of power given to the central government somehow means that there is a general notion of limitation on freedoms in the Bill of Rights, or to any of the vast residuum of other rights, ergo that the federal government can use that notion to abridge rights outside of its scope of constitutional power is nonsense.

The Supremacy Clause does not give the federal government a general power to create laws that abridge freedoms neither in the Bill of Rights, nor among all the inherent rights not listed in The Bill. You are missing that point. You seem to be saying that the Clause's limitations on states from trespassing federal power creates an aura of fallibility in the idea of unalienable rights which then gives the federal government a claim on creating laws that the Constitution forbids it to do. That is exactly the type of constitutional construction Progressives depend on to vitiate the Constitution.

THERE IS NO GENERAL LIMITATION ON CONSTITUTIONALLY PROTECTED RIGHTS. Whatever limitations there might be would specifically reside in the power of the states and their citizens. This power cannot by analogy be transferred to the federal government. The Supremacy Clause, the Constitution, do not permit that. If it did, the whole Constitution would be null and void. If it did, it would mean that the federal government could assume all power, unlimited power, because there would be an assumed limit to rights, and it could, as you say, under some notion such as public safety or any other concoction claim the necessity of passing laws because rights, after all, have limitations.

Again, your notion is the perfect excuse for Progressives to pretend they are abiding by the Constitution while they are actually destroying it.

DC is not a state. The city council owes its charter to and exercises power with the blessing of Congress thus DC is entirely bound by the US Constitution; it is not afforded any protections or exceptions that autonomous state governments are.

Heller v DC struck down DC's handgun ban in 2008; this recent case (that your link discusses) was challenging DC's standards for issuing carry permits. DC lost at the district level in 2014, lost again at the circuit level and earlier this month (Oct) has chosen not to challenge the ruling to SCOTUS (as it did with Heller, much to the consternation of the left). DC has been served with the court's mandate and now must issue a carry permit to any law-abiding citizen of the USA.

As for state laws being struck by the Supreme Court as federally unconstitutional, the Supreme Court struck down Chicago's handgun ban in 2010, two years after Heller. That case was McDonald v Chicago. and the Court enforced the 2nd by incorporating it under the 14th Amendment.

McDonald was the very first time that a state / local gun law was invalidated as a violation of the right secured by the 2nd Amendment. Again, for like the 5th time, until 2010 the 2nd Amendment had zero effect or impact on state or local law.

The effect of McDonald has been stalled for the time being; there are a few cases challenging state assault weapon bans in the pipeline, it might be a year or more before the Court accepts one of those cases.

Your equivalency is still incorrect; the reason why a 2017 state law on bump stocks might pass federal constitutional muster has nothing to do with why the 1830's Univ. of Virginia gun prohibition did not violate the federal right to keep and bear arms.


But you are not making a legal argument, you are making an emotional one that is divorced from any legal reasoning or legal precedent. That's fine to do, but stop couching your theory in constitutional law.

.

I guess I assume some understanding of limits of federal power and States rights...and you guys were doing a fine job trying to e'splain....I'm bothered by the characterization of individual Rights/Freedoms as something that can be preemptively limited by or lost to government whim for higher purposes

Connecticut has a lot of "restrictions" already

That matters why?

The founding fathers passed a state ban of all possession of firearms on campus. They presumed that was constitutional.

I'm not missing that point. I am saying that the ability of states to limit gun rights, is clearly subject to the supremacy clause. I cited a recent case where a federal judge struck down a gun ban in DC...if the feds had no authority to subject such state laws to the supremacy clause, the judge would have refused to hear the case. The feds didn't create a law, they struck down a state law that violated the US constitution. You said the feds have no authority to regulate gun restrictions. The court case I posted, seems to indicate otherwise.

The federal judge that struck down the DC, referred to the jurisdiction as a state.

You can be bothered by it, of course. The founding fathers apparently were not, or they would not have banned possession of firearms on the VA campus. Some of the same guys who wrote the Constitution, implemented that ban. Tells me that they were OK with the constitutionality of that ban.

if you write that one more time I am going to punch you...and that's a threat! :lm:

I said: "The Supremacy Clause does not give the federal government a general power to create laws that abridge freedoms neither in the Bill of Rights, nor among all the inherent rights not listed in The Bill."

The DC law was not struck down by a law created by the federal government. The federal government did not write the Constitution. The federal government did not write the Supremacy Clause. The several States did. The DC law was struck down on the basis of a law that the states wrote--the Constitution. ReelinRod explained very well why the DC law was struck down.

BTW, not that it matters in terms of what is being discussed, do you have some documentation that says Madison or Jefferson actually had a hand in drafting the Univ. of VA ban? What little I've read merely says they attended the meeting. One source specifically said that there is nothing actually linking Madison or Jefferson to the writing of the draft.