Supreme Court Gun Ban Ruling: Good/Bad? Constitutional or not?

[malkusm]

So it is implying that some other body can make a law that limits the freedom of speech since Congress can not? I doubt that is the case.

If a certain state made a law prohibiting the freedom of speech, wouldn't that be unconstitutional?

Theoretically, it would imply that the state Constitutions would deal with free speech and expression on their own terms. The Supreme Court has ruled otherwise, of course.

I don't take that position; but if you're following the Constitution word for word, you can come to that conclusion.

 

[malkusm]

In what way malkusm?

I just meant that the Constitution explicitly states that the Constitution is the Supreme Law of the Land, and it also explicitly states that "Congress shall make no law" concerning freedom of speech/expression/the press. Which means that the Supreme Law of the Land, as read literally, is that Congress is prevented from making such a law; the Constitution says nothing about a state which makes such a law, however.

 

[GunnyFreedom]

So it is implying that some other body can make a law that limits the freedom of speech since Congress can not? I doubt that is the case.

If a certain state made a law prohibiting the freedom of speech, wouldn't that be unconstitutional?

Unfortunately no. It SHOULD, no question about it. The amendment was poorly written to specify Congress when it should have been written without the specification like the 2ndA was.

If we are the sort to say "it means exactly what it says, damnit!" (and I am) then it would be hypocrisy to ignore the specification on the 1stA just because it disagrees with what we think the Founders meant.

I am assuming that all of the existing states at the time guaranteed free speech, and therefore they felt they did not need a State restriction here, only a Congressional one.

Clearly an oversight.

1stA reads: "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances."

I support a Constitutional Amendment to strike the phrase "Congress shall make no" and replace it with "No governing body shall make any"

 

[John Taylor]

Unfortunately no. It SHOULD, no question about it. The amendment was poorly written to specify Congress when it should have been written without the specification like the 2ndA was.

If we are the sort to say "it means exactly what it says, damnit!" (and I am) then it would be hypocrisy to ignore the specification on the 1stA just because it disagrees with what we think the Founders meant.

I am assuming that all of the existing states at the time guaranteed free speech, and therefore they felt they did not need a State restriction here, only a Congressional one.

Clearly an oversight.

1stA reads: "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances."

I support a Constitutional Amendment to strike the phrase "Congress shall make no" and replace it with "No governing body shall make any"

That's a very Rhenquist-ite take on the matter... so what was the 14th Amendment designed to do? Protect the individual ability of private people to earn a living? To incorporate the rights in the Bill of Rights? Nothing but incorporate the limited benefits of federal citizenship?

(Not that I disagree with you, I am not a fan of incorporation, it's a slippery slope straight to hell.)

 

[malkusm]

I am assuming that all of the existing states at the time guaranteed free speech, and therefore they felt they did not need a State restriction here, only a Congressional one.

Clearly an oversight.

This is the case if one reads the later anti-Federalist papers (81-84). They didn't argue the point that rights are God-given and should not be protected at all levels; rather, they scoffed at the notion that any State would ever allow such a law to be passed. Their argument for a Bill of Rights was largely that "every State has protections on these rights, and so should this powerful Federal government we are creating."

One area where I think they should have been a little more forward-looking, for sure.

 

[GunnyFreedom]

That's a very Rhenquist-ite take on the matter... so what was the 14th Amendment designed to do? Protect the individual ability of private people to earn a living? To incorporate the rights in the Bill of Rights? Nothing but incorporate the limited benefits of federal citizenship?

(Not that I disagree with you, I am not a fan of incorporation, it's a slippery slope straight to hell.)

Well right off I'll tell you I do not like the 14thA. The way I see it it was an attempt to pander to a certain populist sentiment and it has the clearly undesirable effect of homogenizing STATE law regarding the powers reserved to the States.

While an argument could be made that "No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States;" means that any privilege or immunity a person has as a US Citizen (per the 14th also) such as free speech must apply also in all States, it is a weak argument and necessarily violates many of the fundamental principles of decentralization embodied by the US Constitution.

As a literalistic Constitutionalist, I am forced to acknowledge the 14thA as law, but I recognize it as deeply flawed, and abrogative of original intent and many of the fundamental principles that are supposed to make America America, and you end up on the horns of a dilemma.

The 14thA introduces a vast array of textural contradictions in the Constitution where you have to pick one or the other since different conclusions can be drawn depending on which contradiction you choose to follow.

Were I an associate justice, I would ONLY choose the 14thA whenever it was not already directly contradicted by other sections of the Constitution --- which is not very often.

This is why I HATE the 14thA -- by introducing co much contradiction it becomes impossible to be a literalist and forces you to choose which contradiction to abide by. If I had to make a ruling, I would universally choose the one not given by the 14th unless it were a rare case where the 14th did not introduce a contradiction.

 

[LibForestPaul]

So, a state can no more take away your right to freedom of speech than they can your right to bear arms.

I fail to see how this is a states rights issue.

Furthermore,
If the Supreme court did not take this case, what recourse does an individual have against a state that IS stripping a natural right?

If tomorrow, Texas made a law stating no Latinos may run for state office, or speak of immigration reform, and it was upheld by the highest court (Appellate?) what actions should be taken by those citizens who's natural rights are being stolen?

Did not vote, waiting for response.

 

[payme_rick]

Article VI also says:

The Senators and Representatives before mentioned, and the Members of the several State Legislatures, and all executive and judicial Officers, both of the United States and of the several States, shall be bound by Oath or Affirmation, to support this Constitution...

I'm not trying to make a point, yet, but very curious as to what the definition of "support" means here... Support as in "hey, this is a good thing, I support that", or support as in "I must do as it says"...

I believe I've asked this before, but do not remember getting an answer back...

 

[GunnyFreedom]

Furthermore,
If the Supreme court did not take this case, what recourse does an individual have against a state that IS stripping a natural right?

If tomorrow, Texas made a law stating no Latinos may run for state office, or speak of immigration reform, and it was upheld by the highest court (Appellate?) what actions should be taken by those citizens who's natural rights are being stolen?

Did not vote, waiting for response.

And THAT (a Texas law stating no Latinos may run for state office) would be one of those rare cases where the 14thA did not contradict other sections of the US Constitution, and therefore would be an appropriate application -- although to me it'd be like fingernails on a chalkboard to invoke it. I would rather see a new Amendment that specifies "No candidate may be barred from any public office based on race or gender" than to continue to validate the 14th, but if the 14th were the only recourse I'd invoke it (only if I must)

The Free Speech question is one of choosing which contradiction to abide. I would have no choice but to lean on the (also flawed) 1stA's "CONGRESS shall make no law..." but push heavily for a Constitutional Amendment to correct the obvious injustice.

 

[phill4paul]

I just meant that the Constitution explicitly states that the Constitution is the Supreme Law of the Land, and it also explicitly states that "Congress shall make no law" concerning freedom of speech/expression/the press. Which means that the Supreme Law of the Land, as read literally, is that Congress is prevented from making such a law; the Constitution says nothing about a state which makes such a law, however.

Amendment IX

The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

Not states. the People. Not states. the Individual.

Otherwise I believe it would have been written....

"....shall not be construed to deny or disparage others retained by the people or their respective states."

 

[GunnyFreedom]

Article VI also says:

The Senators and Representatives before mentioned, and the Members of the several State Legislatures, and all executive and judicial Officers, both of the United States and of the several States, shall be bound by Oath or Affirmation, to support this Constitution...

I'm not trying to make a point, yet, but very curious as to what the definition of "support" means here... Support as in "hey, this is a good thing, I support that", or support as in "I must do as it says"...

I believe I've asked this before, but do not remember getting an answer back...

"To support this Constitution" would mean to support it as written. If it is written that a certain thing applied to the Fed and not to the States, then applying it to the States would be an abrogation, no?

 

[damiengwa]

I am sick of all these pussy whipped suppos'd bleevahs in RAHTs... Either they let you carry a gat every whereas y;ou wanna go or else the socialists win. Plain an simple. I don't understand why in THIS day and age my neighbors still look at me strange when I gots an AR-15 Strap to my back as I walk out in my undies to pick up the paper. Do we believe in the 2nd Amendment or NOT?!?!?

GET ON IT PEEPLE>>> THIS IS YOUR LEADER SPEAKING!!!!

 

[payme_rick]

"To support this Constitution" would mean to support it as written. If it is written that a certain thing applied to the Fed and not to the States, then applying it to the States would be an abrogation, no?

Agreed...

so as written, the 2nd amendment would apply to the states ... sucks about the 1st amendment though, which clearly says "congress"...

 

[GunnyFreedom]

Agreed...

so as written, the 2nd amendment would apply to the states ... sucks about the 1st amendment though, which clearly says "congress"...

The Constitution is certainly not perfect, but it can be amended. This is one amendment I would be pushing HARD if not for the fact that they are already ignoring Constitutional writ to incorporate the 1stA into the States anyway. It's still an amendment that we need, it's just not as urgent as it would otherwise be if it was actually being taken literally. It will not become urgent until the Constitution starts to be taken literally as it is supposed to be. Therefore we can include the Amendment of the 1stA within any amendment package which forces literal obedience, and be golden.

 

[payme_rick]

The Constitution is certainly not perfect, but it can be amended. This is one amendment I would be pushing HARD if not for the fact that they are already ignoring Constitutional writ to incorporate the 1stA into the States anyway. It's still an amendment that we need, it's just not as urgent as it would otherwise be if it was actually being taken literally. It will not become urgent until the Constitution starts to be taken literally as it is supposed to be. Therefore we can include the Amendment of the 1stA within any amendment package which forces literal obedience, and be golden.

Very interesting... thanks...

 

[damiengwa]

I never signed the constitution, did you? My rights are my own, the exist because i am human and have nothing to do with the constitutions...

 

[Pericles]

How do you reconcile this with the fact that the 1st Amendment states explicitly "Congress shall make no law...." ?

(I agree with what you are saying, though.)

This is where the Marshall court got it wrong in Barron v. Baltimore - assuming the language of the 1A was true for all of the BoR and because the rest of the BoR did not have the phrase No state shall. If the BoR did have that language as Marshall wanted, then the BoR would not apply to the Fed Gov.

Thomas got it right in his concurring opinion, where he even takes on the Barron decision as being overturned by the 14A.

 

[damiengwa]

constitution is a null and void agreement... all the parties who signed it, witnessed it signed and who were part of it are all dead and gone. what's the point even of debating such and old and insignificant document.?

 

[payme_rick]

I agree damiengwa, let's just toss out the constitution and let someone set up a monarchy or something...

 

[GunnyFreedom]

I agree damiengwa, let's just toss out the constitution and let someone set up a monarchy or something...

lol yep, he who has the biggest guns and the most money makes the rules. Kinda like in old England where the nobles of Scotland were required to be allowed by families to deflower the brides...