2nd Amendment ---- and other superfluous provisions

[elwoodblues]

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Deleting something from the amendment likely would change the meaning. My point is that the meaning doesn't really matter because the amendment, as long as it is there in principle, will likely never be invoked.

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You might be right. However, that goes beyond what I was trying to get at with this thread.

[elwoodblues]

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So... let's say Congress decides to "regulate" the sale of Coca-Cola by charging $100000 a can to carry it over state lines. You wouldn't consider this too broad an interpretation?

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Okay, let's change it to $.00001/can. Is that a "regulation"? Do "regulations" only fall somewhere between the two extremes?

The framers of the Constitution were well aware of how to limit power using a "reasonableness" standard (as evidenced by the fact that there is a clause forbidding unreasonable searches and seizures) yet that wasn't done here. Why you are choosing to read into the plain meaning of the word "regulate" something that isn't there (but clearly could have been) is beyond me.

[slickpoppa]

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The entire Bill of Rights

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Absent the Bill of rights, please explain how the Constitution would interpret the following:

An accused's right to a speedy trial;
The right to Grand jury indictment
The government's power to quarter troops in your home
Search Warrants
Right to a jury trial in civil cases
Cruel/unusual punishment

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Yeah, I pointed out the flaw in my post before you did. [img]/images/graemlins/smile.gif[/img]

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Actually, there was no mistake in your original post according to pre-14th amendment interpretation of the Bill of Rights. Prior to the 14th Amendment and incorporation, even the amendments that did not specifically mention the federal government were always interpeted to apply only to the federal government.

There was virtually no debate about this proposition because back then everyone understood the Constution to only apply to the federal government except in the few instances in which it explcitly mentions the states (such as Article I, section 10: "No state shall enter into any treaty, alliance, or confederation; grant letters of marque and reprisal; coin money; emit bills of credit; make anything but gold and silver coin a tender in payment of debts; pass any bill of attainder, ex post facto law, or law impairing the obligation of contracts, or grant any title of nobility.") This interpretation was reinforced not only be the general idea that the US Constitution only applied to the federal goverment, but also by the fact that there are separate clauses which prohibit the same things. For example Article I, section 9 says: "No bill of attainder or ex post facto Law shall be passed." That clause speaks in general terms and does not limit itself to the federal government, but the framers still though it was necessary to explicitly prohibit the states from doing the same thing in a different section (the previously quoted Article I, section 10). So even several of the amendments in the Bill of Rights spoke in general terms, they were never applied to the states because they did not specifically mention the states.

It was not until the 20th century that the Supereme Court held that the rights against search and seizre, self-incrimination, etc. were protected from state violation through the US Constitution. Prior to that, those rights were only protected against violation by the states by similar provisions in state constitutions. Back then if someone claimed that they were victims of an illegal search and seizure by a state government, the Supreme Court would not even hear the case.

And even today, the right to a trial by jury in civil cases does not apply to the states, even though the jury clause makes no mention of the federal government. The grand jury clause of the 5th amendment also does not apply to the states. Many states do not have a right to jury trial in civil cases and do not have grand juries for many types of criminal cases.

[Skidoo]

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Second Amendment:
A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.

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Many think that "A well regulated Militia, being necessary to the security of a free State" could be deleted and nothing would change with the meaning of the Constitution (I am not one of those people)

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Of course deleting that phrase changes the meaning of the amendment. Without it, the possibility would exist that a well regulated militia is not necessary to the security of a free state. However, such a deletion does not change the meaning of the phrase about the right of the people to keep and bear arms, because there is no relationship of contingency represented.

[elwoodblues]

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Actually, there was no mistake in your original post according to pre-14th amendment interpretation of the Bill of Rights. Prior to the 14th Amendment and incorporation, even the amendments that did not specifically mention the federal government were always interpeted to apply only to the federal government.

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Perhaps you misunderstand the point...it has nothing to do with limiting the states.

Absent the bill of rights, could the FEDERAL government under its powers in the Federal Constitution (even pre-14th Amendment) do the following:

Impose torture as a sentence to a minor federal crime?
Indict someone for a felony without a Grand Jury?
Deny an accused a trial by jury?


Even beyond those obvious examples, the Bill of Rights allows for lines to be drawn in close cases --- for example where power to regulate interstate commerce might conflict with the notion of a free press or free speach. Where those conflicts arise (with the presence of the bill of rights) courts weigh the general power to regulate interstate commerce with the specific rights enumerated in the Constitution.

[slickpoppa]

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Actually, there was no mistake in your original post according to pre-14th amendment interpretation of the Bill of Rights. Prior to the 14th Amendment and incorporation, even the amendments that did not specifically mention the federal government were always interpeted to apply only to the federal government.

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Perhaps you misunderstand the point...it has nothing to do with limiting the states.

Absent the bill of rights, could the FEDERAL government under its powers in the Federal Constitution (even pre-14th Amendment) do the following:

Impose torture as a sentence to a minor federal crime?
Indict someone for a felony without a Grand Jury?
Deny an accused a trial by jury?


Even beyond those obvious examples, the Bill of Rights allows for lines to be drawn in close cases --- for example where power to regulate interstate commerce might conflict with the notion of a free press or free speach. Where those conflicts arise (with the presence of the bill of rights) courts weigh the general power to regulate interstate commerce with the specific rights enumerated in the Constitution.

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Elwood, my previous post was in response to Alex's claim that the original Bill of Rights applies to the states:

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Thinking about it, my post was actually not entirely accurate as much of it restricts the states, requiring trial by jury, etc.. Some parts which only limit Congress though, like the First Amendment, are clearly redundant.


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Whether or not the Bill of RIghts was necessary to restrict the federal government with limited powers is a separate issue.

[andyfox]

"such a deletion does not change the meaning of the phrase about the right of the people to keep and bear arms, because there is no relationship of contingency represented."

But there is. The right to keep and bear arms was used, in the language of the time, to refer to a military/militia context. Besides, if no relationship between the two clauses were implied, they wouldn't have been in the same sentence. And the amendment was written with the intention of being inserted in the Constitution in the section that dealt with militias.

[andyfox]

Note that when Thomas Jefferson wanted to insure an individual right to possess personal weapons in Virgina (a proposal that was rejected), he wrote the proposed law as:

"No free man shall be debarred the use of arms."

The "right to bear arms" was known to refer to militia activity.

[Skidoo]

A more complete version of that Jefferson quote: "No free man shall ever be debarred the use of arms. The strongest reason for the people to retain their right to keep and bear arms is as a last resort to protect themselves against tyranny in government."

[John Kilduff]

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"such a deletion does not change the meaning of the phrase about the right of the people to keep and bear arms, because there is no relationship of contingency represented."

But there is. The right to keep and bear arms was used, in the language of the time, to refer to a military/militia context. Besides, if no relationship between the two clauses were implied, they wouldn't have been in the same sentence. And the amendment was written with the intention of being inserted in the Constitution in the section that dealt with militias.

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context /= contingency

and

relationship /= contingency