Little-Acorn
Well-Known Member
This question is a spinoff from another thread, which deserves a separate thread of its own.
One of the most important results of the recent Supreme Court decision McDonald vs. Chicago (the gun-ban case), is the Court's statement that the 2nd amendment applies to city and state governments ACROSS THE COUNTRY, as well as the Federal govt.
This whole idea that "The 2nd amendment originally was meant to restrict only the Fed govt, not the states or cities", and which this USSC decision has finally changed, has always baffled me. The amendments themselves, have always specified which government(s) they are supposed to apply to. And where they don't name specific governments, that means the Framers meant them to apply to ALL governments in the country: Federal, state, and local.
The amendments (at least in the Bill of Rights) are, of course, restrictions on GOVERNMENT, not restrictions on people. Government isn't allowed to restrict this, or that right cannot be infringed BY GOVERNMENT, etc.
But look at the first two amendments. The first one starts by saying, "Congress shall make no law...." restricting or mandating religion, restricting freedom of speech, and several other things. That clearly says that it was originally a restriction on ONLY THE FEDERAL government - that's what it's plain language explicitly says. And a look at history shows that the Framers had good reasons to confine the 1st amendment's restrictions to only the Fed. In fact, when the Constitution and BOR were written and ratified, most states had official, state-sponsored religions! Often a different one for different states. And the 1st amendment was carefully written to NOT mess with that! It was designed to prevent the FED from mandating an official religion for the entire country, and to prevent it from restricting or banning any particular religion anywhere in the country. The States were to have the ability to do those things, but not the Fed. Same deal for the freedom of speech, freedom of the press, etc.
The 2nd amendment, however, is not like that. It is a flat ban on government restrictions on ordinary people's right to own and carry personal guns, swords, etc. (and it even provdes an explanation of why)... and it does NOT confine that ban to any particular government like the 1st does. And since it doesn't say which government(s) in the U.S. it applies to, that means it applies to ALL of them: Federal, state, city, etc. (Does anyone think it was supposed to apply to NO governments? Then what was the point in writing it at all?). That was the clear intention of the people who wrote and ratified it. Most of them were lawyers, and were keenly aware of the importance of such wording in a legal document. Specifying on "Congress" in the 1st, and not specifying any target govt in the 2nd, was no accident.
The Framers abhorred a powerful central government controlling large parts of societies. Their philosophy was that if something had to be controlled by government, it should be done on the smallest, most local level possible. Hence the design of the Constitution, which provided for a central government whose powers were limited to those listed, while state and local government's powers were NOT limited, except for a few things specifically listed in the Constitution.
The Framers weren't blind to the idea that SOME things should be universally banned throughout a country, whether the states liked it or not, and the Bill of Rights was designed to do this. Indeed, most amendments in the BOR named things govt was restricted from doing in criminal trials... and it was the State and local govts who conducted the vast majority of criminal trials. Those amendments do not say what govt they are supposed to restrict... but clearly they were intended to restrict state and local governments, as well as the Fed.
Does anyone think that the Framers intended to say that Federal courts could not put people in jeopardy twice for the same crime, but state and local courts COULD??? Of course not - they meant that NO govt (Fed, state, local) could impose double jeopardy in a criminal trial. Especially since nearly all criminal trials at the time, were conducted by state and local governments. But the 5th amendment contains no language specifying "all governments" - the Framers considered it obvious that that's what it meant, and so it does.
Or do you think that the Framers wanted criminal suspects to be provided with lawyers, only for trials in Federal courts, but people could be DENIED a laywer when being tried in state or local criminal courts? Of course not - the 6th amendment means that a suspect must have a lawyer provided whether his trial is in Fed, state, or local courts. Yet the 6th includes no language saying so - it merely says that the trial must be held in the area where the crime was committed. But it was clearly intended to apply to ALL courts, not just the Fed courts. Does anyone disagree?
Do suspects in significant crimes get jury trials only in Federal courts, but they can be denied jury trials in state or local courts? Again, of course not - but the 7th amendment doesn't say it includes state and local govt courts. The framers simply and clearly intended this amendment to apply to states and local govts, as well as the Fed, and we have always taken it that way... correctly.
Can anyone claim that state and local courts CAN impose cruel and unusual punishments, and that only the Fed is forbidden to do so? Again, of course not. Fed, state, and local governments are ALL forbidden by the 8th amendment from doing that... though the 8th doesn't explicitly say that it applies to state and local.
The 2nd amendment is no different. Like the 4th, 5th, 6th, 7th, and 8th amendments, it does not explicitly say which govt(s) it applies to. But jumping to the conclusion that it does NOT apply to the state and local govts while all the others DO apply, is farfetched to the point of being silly.
So where do people get the notion that the 2nd amendment didn't apply to state and local governments? Sure, it's "generally accepted". Just as "black people are inferior" was generally accepted, or "Only landowners can vote". Does "general acceptance" make it true, or even a good idea?
Certainly not.
Supreme Court Justice Sam Alito wrote into his Opinion in the recent case McDonald vs. Chicago, that "The 2nd amendment originally applied only to the Federal government,", before going on to state that the 14th amendment now changed that. But he never offered any citation or other support for his idea of the 2nd's original jurisdiction... because there is none, aside from "other people said so", with an equal lack of justification or backing.
In fact, the 2nd amendment has always been a ban on ANY government in the U.S. restricting the right to own and carry personal weapons. To consider it anything else, flies in the face of the clear meaning of nearly every other amendment in the BOR. In fact, only amendments that specifically declare particular government(s), are the ones that don't apply to ALL governments. And there is only one such amendment in the BOR: the 1st, which explicitly says "CONGRESS shall make no law....".
The 1st amendment's restriction to only "Congress", does not extend to the 2nd, any more than it extends to the 4th, 5th, 6th, 7th, or 8th amendments. The 2nd amendment has ALWAYS forbidden state and local governments from infringing on the right to keep and bear arms, as well as the Federal government.
This fact has been important (and ignored) for hundreds of years... until yesterday, June 28, 2010. On that date, the Supreme Court finally acknowledged that the 2nd applies to State and Local governments too. I guess all's well that ends well, even if the Supremes arrived at the right conclusion by the wrong route. They have finally gotten it right... that's the important part.
One of the most important results of the recent Supreme Court decision McDonald vs. Chicago (the gun-ban case), is the Court's statement that the 2nd amendment applies to city and state governments ACROSS THE COUNTRY, as well as the Federal govt.
This whole idea that "The 2nd amendment originally was meant to restrict only the Fed govt, not the states or cities", and which this USSC decision has finally changed, has always baffled me. The amendments themselves, have always specified which government(s) they are supposed to apply to. And where they don't name specific governments, that means the Framers meant them to apply to ALL governments in the country: Federal, state, and local.
The amendments (at least in the Bill of Rights) are, of course, restrictions on GOVERNMENT, not restrictions on people. Government isn't allowed to restrict this, or that right cannot be infringed BY GOVERNMENT, etc.
But look at the first two amendments. The first one starts by saying, "Congress shall make no law...." restricting or mandating religion, restricting freedom of speech, and several other things. That clearly says that it was originally a restriction on ONLY THE FEDERAL government - that's what it's plain language explicitly says. And a look at history shows that the Framers had good reasons to confine the 1st amendment's restrictions to only the Fed. In fact, when the Constitution and BOR were written and ratified, most states had official, state-sponsored religions! Often a different one for different states. And the 1st amendment was carefully written to NOT mess with that! It was designed to prevent the FED from mandating an official religion for the entire country, and to prevent it from restricting or banning any particular religion anywhere in the country. The States were to have the ability to do those things, but not the Fed. Same deal for the freedom of speech, freedom of the press, etc.
The 2nd amendment, however, is not like that. It is a flat ban on government restrictions on ordinary people's right to own and carry personal guns, swords, etc. (and it even provdes an explanation of why)... and it does NOT confine that ban to any particular government like the 1st does. And since it doesn't say which government(s) in the U.S. it applies to, that means it applies to ALL of them: Federal, state, city, etc. (Does anyone think it was supposed to apply to NO governments? Then what was the point in writing it at all?). That was the clear intention of the people who wrote and ratified it. Most of them were lawyers, and were keenly aware of the importance of such wording in a legal document. Specifying on "Congress" in the 1st, and not specifying any target govt in the 2nd, was no accident.
The Framers abhorred a powerful central government controlling large parts of societies. Their philosophy was that if something had to be controlled by government, it should be done on the smallest, most local level possible. Hence the design of the Constitution, which provided for a central government whose powers were limited to those listed, while state and local government's powers were NOT limited, except for a few things specifically listed in the Constitution.
The Framers weren't blind to the idea that SOME things should be universally banned throughout a country, whether the states liked it or not, and the Bill of Rights was designed to do this. Indeed, most amendments in the BOR named things govt was restricted from doing in criminal trials... and it was the State and local govts who conducted the vast majority of criminal trials. Those amendments do not say what govt they are supposed to restrict... but clearly they were intended to restrict state and local governments, as well as the Fed.
Does anyone think that the Framers intended to say that Federal courts could not put people in jeopardy twice for the same crime, but state and local courts COULD??? Of course not - they meant that NO govt (Fed, state, local) could impose double jeopardy in a criminal trial. Especially since nearly all criminal trials at the time, were conducted by state and local governments. But the 5th amendment contains no language specifying "all governments" - the Framers considered it obvious that that's what it meant, and so it does.
Or do you think that the Framers wanted criminal suspects to be provided with lawyers, only for trials in Federal courts, but people could be DENIED a laywer when being tried in state or local criminal courts? Of course not - the 6th amendment means that a suspect must have a lawyer provided whether his trial is in Fed, state, or local courts. Yet the 6th includes no language saying so - it merely says that the trial must be held in the area where the crime was committed. But it was clearly intended to apply to ALL courts, not just the Fed courts. Does anyone disagree?
Do suspects in significant crimes get jury trials only in Federal courts, but they can be denied jury trials in state or local courts? Again, of course not - but the 7th amendment doesn't say it includes state and local govt courts. The framers simply and clearly intended this amendment to apply to states and local govts, as well as the Fed, and we have always taken it that way... correctly.
Can anyone claim that state and local courts CAN impose cruel and unusual punishments, and that only the Fed is forbidden to do so? Again, of course not. Fed, state, and local governments are ALL forbidden by the 8th amendment from doing that... though the 8th doesn't explicitly say that it applies to state and local.
The 2nd amendment is no different. Like the 4th, 5th, 6th, 7th, and 8th amendments, it does not explicitly say which govt(s) it applies to. But jumping to the conclusion that it does NOT apply to the state and local govts while all the others DO apply, is farfetched to the point of being silly.
So where do people get the notion that the 2nd amendment didn't apply to state and local governments? Sure, it's "generally accepted". Just as "black people are inferior" was generally accepted, or "Only landowners can vote". Does "general acceptance" make it true, or even a good idea?
Certainly not.
Supreme Court Justice Sam Alito wrote into his Opinion in the recent case McDonald vs. Chicago, that "The 2nd amendment originally applied only to the Federal government,", before going on to state that the 14th amendment now changed that. But he never offered any citation or other support for his idea of the 2nd's original jurisdiction... because there is none, aside from "other people said so", with an equal lack of justification or backing.
In fact, the 2nd amendment has always been a ban on ANY government in the U.S. restricting the right to own and carry personal weapons. To consider it anything else, flies in the face of the clear meaning of nearly every other amendment in the BOR. In fact, only amendments that specifically declare particular government(s), are the ones that don't apply to ALL governments. And there is only one such amendment in the BOR: the 1st, which explicitly says "CONGRESS shall make no law....".
The 1st amendment's restriction to only "Congress", does not extend to the 2nd, any more than it extends to the 4th, 5th, 6th, 7th, or 8th amendments. The 2nd amendment has ALWAYS forbidden state and local governments from infringing on the right to keep and bear arms, as well as the Federal government.
This fact has been important (and ignored) for hundreds of years... until yesterday, June 28, 2010. On that date, the Supreme Court finally acknowledged that the 2nd applies to State and Local governments too. I guess all's well that ends well, even if the Supremes arrived at the right conclusion by the wrong route. They have finally gotten it right... that's the important part.
