Constitution doesn't apply to States, according to Sotomayor

[Navy1960]

The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people. 10th Amend.

The principle of the supremacy of federal powers over those powers held by the states is based on the Supremacy Clause of the U.S. Constitution. In McCulloch v. Maryland, Chief Justice John Marshall asserted that the laws adopted by the federal government, when exercising its constitutional powers, are generally paramount over any conflicting laws adopted by state governments. After McCulloch, the primary legal issues in this area concerned the scope of the Congress' constitutional powers, and whether the states possess certain powers to the exclusion of the federal government, even if the Constitution does not explicitly limit them to the States.

Resolved, that the several States composing the United States of America, are not united on the principle of unlimited submission to their general government; but that by compact under the style and title of a Constitution for the United States and of amendments thereto, they constituted a general government for special purposes, delegated to that government certain definite powers, reserving each State to itself, the residuary mass of right to their own self-government; and that whensoever the general government assumes undelegated powers, its acts are unauthoritative, void, and of no force: That to this compact each State acceded as a State, and is an integral party, its co-States forming, as to itself, the other party....each party has an equal right to judge for itself, as well of infractions as of the mode and measure of redress.

Enough said!! regardless of the progressive nature of the latest proposed appointee to the SCOTUS.

 

[Citizen]

Have been slow to voice an opinion re. Sotomayor selection/appointment, and that hasn't changed quite yet. Still weighing the pros and cons. So, when I came upon this piece from her resume, I decided that I need some input. It would be greatly appreciated.

Sotomayor has decided that the Bill of Rights does not apply to the states
by Vincent Gioia

If you thought the Bill of Rights gives you constitutional protection for freedom of speech, of religion and a free press; you are wrong according to Obama Supreme Court nominee Judge Sonia Sotomayor. The likely newest member of the high Court decided that all these rights guaranteed by the first Ten Amendments which make up the Bill of Rights can now all be taken away from us at the whim of our state legislatures - who would have imagined.

(snipped)

Sotomayor was on a panel of the Court of Appeals for the 2nd Circuit which issued an unsigned opinion dismissing a challenge to a New York law that banned a martial arts weapon despite the earlier Supreme Court ruling in Heller v District of Columbia which struck down a ban on handguns and said individuals have the right to keep arms at home for self defense.

But the panel on which Sotomayor served said in the case of Maloney v. Cuomo that it was clear from the Supreme Court precedent that the Second Amendment could be applied only to the federal government, or in a federal enclave such as Washington. It said the Supreme Court has "the prerogative of overruling its own decisions."

The issue raises the question of whether the Bill of Rights applies to state and local governments. Lawyers challenging gun restrictions and legal scholars contend that they do, through the due-process clause of the 14th Amendment. And that was the finding of the U.S. Court of Appeals for the 9th Circuit earlier this year. The Supreme Court's 5 to 4 decision last year in the Heller case decided for the first time that the Second Amendment provided an individual right to bear arms.

If the 2nd can be said to not apply to the states and local governments, then why should the other rights spelled out in the Bill of Rights apply?
Great American Journal: Sotomayor has decided that the Bill of Rights does not apply to the states


Damned good question. Anyone have as good an answer?

A couple of questions first, before figuring out how to answer your question...

How can each state, constitutionally limit the types of guns their citizens can own without infringing on the 2nd amendment?

As Example, you can not own a bunch of missals or nukes or automatic machine guns etc?

So, is the 2nd amendment being "bent" already by limiting different types of arms?

Is being required to be registered, if you own a gun, also a 2nd amendment infringement?

Care

be back later to read answer...heading outside now!

Although the quesrion was not addressed to me, I would like to answer it.

We have the right to be armed with any firearm that might be used by an individual soldier, not those that might be used as a squad, company, or command weapon.

At the time our Constitution was adopted, the average frontiersman was better armed than the average soldier, although today the average soldier is better armed than the average citizen, it has been recognized that the second amendment allows citizens to keep and bear any firearm that is any part of the ordinary military equipment, or that its use could contribute to the common defense.

The signification attributed to the term Militia, as it appears from the debates in the Convention, the history and legislation of Colonies and States, and the writings of approved commentators, clearly show that the Militia was comprised all males physically capable of acting in concert for the common defense, and when called for service these men were expected to appear bearing arms supplied by themselves and of the kind in common use at the time.

An important part to remember is that they were expected to appear bearing arms supplied by themselves and of the kind in common use at the time.

 

[MaggieMae]

Boy our dear President sure knows how to pick 'em, guess he couldn't find another tax cheat to appoint and had to go to the crackpot barrel for this one.

But on the other hand she has such a WONDERFUL personal story....

I know, I was sobbing uncontrollably over Sam Alito's too.

 

[MaggieMae]

Boy our dear President sure knows how to pick 'em, guess he couldn't find another tax cheat to appoint and had to go to the crackpot barrel for this one.

But on the other hand she has such a WONDERFUL personal story....

I know, I was sobbing uncontrollably over Sam Alito's too.

Oh, and let's not forget Clarence Thomas's bootstrap story.

 

[MaggieMae]

actually, she has over 300 published decisions, three of which were reversed by the supreme court. she was number 2 in her class at princeton and valdictorian of her high school class.

That's a WONDERFUL personal story, it's too bad she apparently doesn't understand the U.S. Constitution and it's intent very well as it's a fairly important factor for a SCOTUS appointee.

i think maybe you're the crackpot... in fact i know you are... like everyone else on this board who's ever used the word "liberty" or "patriot" in their nic

Sorry forgot to drink the kool-aid they were passing out in collectivist utopia, glad to see you apparently got a double dose though, cheers.

Of course most grownups are willing to wait for the hearings on her confirmation before crucifying her entirely.

 

[Navy1960]

* Patrick Henry: "The great objective is that every man be armed. . . . Everyone who is able may have a gun."

* Samuel Adams: "The Constitution shall never be construed . . . to prevent the people of the United States who are peaceable citizens from keeping their own arms."

* Alexander Hamilton: "The best we can hope for concerning the people at large is that they be properly armed."

Chief Justice William Rehnquist, writing for the majority in U.S. v. Verdugo-Urquidez (1990), stated that the term "the people" has the same meaning in the First, Second, Fourth, Ninth and Tenth Amendments. All those five amendments in the Bill of Rights use the term "the people" to guarantee a right for individual citizens, not just some collective right of the state as a whole. There is no reason to believe that the Second Amendment uses the term "the people" differently from the other four amendments. source- findlaw.com

As I said, it's clear what the Constitution say's regardless of how progressive judges wish to re-engineer it.

John Adams, lead defense attorney for the British soldiers on trial for the Boston Massacre, stated at the trial: "Here every private person is authorized to arm himself, and on the strength of this authority, I do not deny the inhabitants had a right to arm themselves at that time, for their defense, not for offence…"

Thomas B. McAffee and Michael J. Quinlan stated "… Madison did not invent the right to keep and bear arms when he drafted the Second Amendment—the right was pre-existing at both common law and in the early state constitutions."

Second Amendment to the United States Constitution - Wikipedia, the free encyclopedia

 

[editec]

If the 2nd can be said to not apply to the states and local governments, then why should the other rights spelled out in the Bill of Rights apply?

Excellent question.

But it could just as easily be asked the other way.

If the the other amendments to the constitution can be said to apply to the states and local governments, then why should the 2nd amendment spelled out in the Bill of Rights apply?

How do you justify that? If the others apply then so to does the 2nd. Pretty simple concept. Either the Constitution in its total does not apply or in total it DOES apply.

Listen up, retard, I'm not justifying anything.

You see, describing a state of affairs isn't the same as advocating for that state of affairs.

Now the above is also a pretty simple concept, but one which apparently you're too fucking dense to understand.

You're dismissed.

 

[MaggieMae]

Granted, originally the Constitution did not apply to the states, as each state has its own Constitution, but the 14th Amendment to the US Constitution changed all that making the US Constitution apply to the states as well as the federal government.

The US Constitution remains the supreme law of the land, in cases where conflict between state constitutions and the US Constitution are litigious (Article VI).

 

[editec]

Have been slow to voice an opinion re. Sotomayor selection/appointment, and that hasn't changed quite yet. Still weighing the pros and cons. So, when I came upon this piece from her resume, I decided that I need some input. It would be greatly appreciated.

Sotomayor has decided that the Bill of Rights does not apply to the states
by Vincent Gioia

If you thought the Bill of Rights gives you constitutional protection for freedom of speech, of religion and a free press; you are wrong according to Obama Supreme Court nominee Judge Sonia Sotomayor. The likely newest member of the high Court decided that all these rights guaranteed by the first Ten Amendments which make up the Bill of Rights can now all be taken away from us at the whim of our state legislatures - who would have imagined.

(snipped)

Sotomayor was on a panel of the Court of Appeals for the 2nd Circuit which issued an unsigned opinion dismissing a challenge to a New York law that banned a martial arts weapon despite the earlier Supreme Court ruling in Heller v District of Columbia which struck down a ban on handguns and said individuals have the right to keep arms at home for self defense.

Yes, that does seem to be the current intrepration, up to a point. Of course soldiers are often armed with fully automatic weapons which citizens are not allowed to have.

But for the benefit of those of you who like to think you're advocates of a "strict interpretation" of the consitution, there is no language which justifies that interpretation, either.

Frankly, as it pertains to guns and gun control, there isn't any interpretation which CAN make sense, since the 2nd amendment was written so vaguely that no "strict" interpretation makes sense.


Every citizen has the right to bear arms because of state militias?

What the hell is that supposed to mean to us today?

It made sense in 1789, I suppose, but now?

Do we even have state militias, anymore?

And if we do, do the members of it bring their own shootin irons or does the government provide them?

That amendment needs a serious rewrite.

If you're of the opinion that every citizen has the right to bear arms?

Fine!

Then the language of the 2nd amendment should reflect that sentiment.

Dragging in a justification for allowing citizens to bear arms based on the structure of the minutemen militias that no longer even exist today is goofy to the extreme.

 

[William Joyce]

The debate we're having is about "incorporation," meaning, do the Bill of Rights apply as against states the same way they apply as against the federal government? If so, they are "incorporated" through the 14th Amendment, which does indeed apply to states.

It's not a totally closed debate.

I have always thought, contra some conservatives, that total incorporation made sense.

I mean, just look at the Bill of Rights. Look at the 7th Amendment... it talks about "suits at common law." What federal court were THOSE being tried in in the 1700's? Or even the 4th and 6th... there WAS NO FBI back then...

So incorporation makes sense to me. Some righties didn't like it because it was being employed by libbies in the 60's... but now the shoe is on the other foot. Sauce for the goose is sauce for the gander, eh?

The 2nd Amendment applies to the feds, the states, the cities and even the dogcatcher.

 

[Citizen]

Have been slow to voice an opinion re. Sotomayor selection/appointment, and that hasn't changed quite yet. Still weighing the pros and cons. So, when I came upon this piece from her resume, I decided that I need some input. It would be greatly appreciated.

Sotomayor has decided that the Bill of Rights does not apply to the states
by Vincent Gioia

If you thought the Bill of Rights gives you constitutional protection for freedom of speech, of religion and a free press; you are wrong according to Obama Supreme Court nominee Judge Sonia Sotomayor. The likely newest member of the high Court decided that all these rights guaranteed by the first Ten Amendments which make up the Bill of Rights can now all be taken away from us at the whim of our state legislatures - who would have imagined.

(snipped)



Yes, that does seem to be the current intrepration, up to a point. Of course soldiers are often armed with fully automatic weapons which citizens are not allowed to have.

But for the benefit of those of you who like to think you're advocates of a "strict interpretation" of the consitution, there is no language which justifies that interpretation, either.

Frankly, as it pertains to guns and gun control, there isn't any interpretation which CAN make sense, since the 2nd amendment was written so vaguely that no "strict" interpretation makes sense.


Every citizen has the right to bear arms because of state militias?

What the hell is that supposed to mean to us today?

It made sense in 1789, I suppose, but now?

Do we even have state militias, anymore?

And if we do, do the members of it bring their own shootin irons or does the government provide them?

That amendment needs a serious rewrite.

If you're of the opinion that every citizen has the right to bear arms?

Fine!

Then the language of the 2nd amendment should reflect that sentiment.

Dragging in a justification for allowing citizens to bear arms based on the structure of the minutemen militias that no longer even exist today is goofy to the extreme.

Actually we do still have militias, two different types to be exact. We have the organized Militia, which is the National Guard, and the unorganized Militia, which is the rest of us.

Militia Defination
The National Guard Act (1903):
"[T]he militia shall consist of every able-bodied male citizen of the respective States, territories, and the District of Columbia, and every able-bodied male of foreign birth who has declared his intention to become a citizen, who is more than eighteen and less than forty-five years of age, and shall be divided into two classes -- the organized militia, to be know as the National Guard of the State, Territory, or District of Columbia, or by such other designations as may be given them by the laws of the respective States or Territories, and the remainder to be know as the Reserve Militia." [from "An Act To promote the efficiency of the militia, and for other purposes", January 21, 1903]


--------------------------------------------------------------------------------
10 USC Sec. 311:
"(a) The militia of the United States consists of all able-bodied males at least 17 year of age and, except as provided in section 313 of title 32 [32 USC sec. 313], under 45 years of age who are, or who have made a declaration of intention to become, citizens of the United States and of female citizens of the United States who are commissioned officers of the National Guard.
(b) The classes of the militia are --

the organized militia, which consists of the National Guard and the Naval Militia; and
the unorganized militia, which consists of the members of the militia who are not members of the National Guard or the Naval Militia."

Supreme Court, U.S. vs. Miller (1939):
"The signification attributed to the term Militia appear from the debates in the Convention, the history and legislation of Colonies and States, and the writings of approved commentators. These show plainly enough that the Militia comprised all males physically capable of acting in concert for the common defense..."
Militia Defination

 

[Citizen]

Boy our dear President sure knows how to pick 'em, guess he couldn't find another tax cheat to appoint and had to go to the crackpot barrel for this one.

But on the other hand she has such a WONDERFUL personal story....

actually, she has over 300 published decisions, three of which were reversed by the supreme court. she was number 2 in her class at princeton and valdictorian of her high school class.

i think maybe you're the crackpot... in fact i know you are... like everyone else on this board who's ever used the word "liberty" or "patriot" in their nic

Personally, I believe that the most important aspect in chosing a Supreme Court Justice would be one with an understand of the Constitution and its original meaning, not what someone wants it to mean today.

"On every question of construction (of The Constitution), let us carry ourselves back to the time when The Constitution was adopted, recollect the spirit manifested in the debates, and instead of trying what meaning may be squeezed out of the text, or invented against it, conform to the probable one in which it was passed." - Thomas Jefferson

As a lawyer, I would expect that you fully understand that the 14th amendment guarantees that all the rights and privileges of the citizens under the US Constituion apply to everyone, and no state shall make any law to the contrary.

 

[STAND4LIBERTY]

I know, I was sobbing uncontrollably over Sam Alito's too.

That's nice, any other completely irrelevant trivia you'd like to share?

 

[DamnYankee]

Keep reading it, All.

Eventually it will make sense.

IF I re-worded it....

Yeah, okay.

My point is that we are not consistent when it comes to the bill of rights.

Why not?

Because of the NRA, mostly.

Or perhaps you could say its because of the NAACP.

But it is obvious that in some cases we allow the Bill of rights to supercede the states, and in other cases we do not.

WE don't allow shit, unless WE ALLOW the supreme court justice selections. I don't recall getting a vote on that, do you? Hell, I don't get a vote on the district court justices, do you? So how is it that WE allow the Bill of Rights to be superceded ANYWHERE? Oh wait.... WE allow the idiots IN WASHINGTON to keep their Congressional seats until they're worn and thin from their owner's asses being on them for so long. WE allow THEM to make these choices FOR US. And damn, don't THEY do a FINE JOB of bringing home the PORK? Screw the Constitution! Just get us back some of our MONEY!

 

[DamnYankee]

Boy our dear President sure knows how to pick 'em, guess he couldn't find another tax cheat to appoint and had to go to the crackpot barrel for this one.

But on the other hand she has such a WONDERFUL personal story....

Not real helpful in answering the question....

 

[DamnYankee]

Granted, originally the Constitution did not apply to the states, as each state has its own Constitution, but the 14th Amendment to the US Constitution changed all that making the US Constitution apply to the states as well as the federal government.

Which was pointed out in the story. So then, what was Sotomayer's rationale? Setting a new precedent? Making a name for herself?

 

[Missourian]

How can each state, constitutionally limit the types of guns their citizens can own without infringing on the 2nd amendment?

Technically, the Supreme Court has not extended the 2nd amendment to cover the states, so as idiotic and counter intuitive as it may sound, Sotomayor was correct in her ruling.

But no one doubts that as this case, or a case with a similar lower court ruling reaches the Supreme Court, the 2nd amendment will be construed by the court to apply to the states.

As Example, you can not own a bunch of missals or nukes or automatic machine guns etc?

So, is the 2nd amendment being "bent" already by limiting different types of arms?

Well, yes...and no.

The private ownership of missiles and nukes, or grenades, mortars, tanks, artillery pieces, warplanes and the like are not protected by the Second Amendment. The 2nd Amendment, as it has been historically interpreted, only protects the private ownership of personal (one man) firearms and lesser weapons.

A successful argument could be mounted claiming that the denial of unimpeded ownership fully automatic weapons is unconstitutional, but a challenge would need no be initiated. At present, no one seems inclined to make that challenge due to popular (and IMO well founded) public support to maintain the status quo.

Contrary to popular belief, ownership of a fully automatic weapon or a suppressor (commonly referred to as a silencer) is not illegal. You can purchase a Class III firearm license, submit to an FBI background check, and agree to abide by the special regulation addressing storage and transport, and legally purchase and personally own fully automatic weapons, suppressors and parts to manufacture both.

Is being required to be registered, if you own a gun, also a 2nd amendment infringement?

It is the potential abuse of registration that gives us pro-2nd folks pause. It does nothing to prevent crime. So what is it's purpose? It seems as though it is nothing but a precursor to confiscation.

If you were never permitted to express your right to free speech, or freedom of religion without first registering with the government, would you consider those rights infringed?

 

[DamnYankee]

What is worse is Jillian keeps reminding us she is a Lawyer.

ROFLMAO! It's amazing how many self appointed "Internet Attorney's" there are, between them and the jail house variety it's a wonder that those with actual law degrees can get a job anymore.

Maybe the President should appoint her to the Supreme Court, hell it's not like he has any actual standards for the job or anything......

ummm, moron, you've been here 2 seconds. i've been an attorney for almost two decades.

wanna try that again, nutter?

do tell us your credentials. i'll wait.

Not for nothin', Jillian, but I've had many an attorney leave my office in frustration. It seems that unless they stick to their areas of expertise, they're pretty much useless.

 

[MaggieMae]

Boy our dear President sure knows how to pick 'em, guess he couldn't find another tax cheat to appoint and had to go to the crackpot barrel for this one.

But on the other hand she has such a WONDERFUL personal story....

actually, she has over 300 published decisions, three of which were reversed by the supreme court. she was number 2 in her class at princeton and valdictorian of her high school class.

i think maybe you're the crackpot... in fact i know you are... like everyone else on this board who's ever used the word "liberty" or "patriot" in their nic

Personally, I believe that the most important aspect in chosing a Supreme Court Justice would be one with an understand of the Constitution and its original meaning, not what someone wants it to mean today.

"On every question of construction (of The Constitution), let us carry ourselves back to the time when The Constitution was adopted, recollect the spirit manifested in the debates, and instead of trying what meaning may be squeezed out of the text, or invented against it, conform to the probable one in which it was passed." - Thomas Jefferson

As a lawyer, I would expect that you fully understand that the 14th amendment guarantees that all the rights and privileges of the citizens under the US Constituion apply to everyone, and no state shall make any law to the contrary.

Nope, the REASON we even have a USSC is to interpret the INTENT of the original Constitution, which was written almost intentionally in ambiguous terms in order to remain a LIVING DOCTRINE. The framers weren't stupid enough to believe the way they lived would be the same 200+ years later.

 

[MaggieMae]

I know, I was sobbing uncontrollably over Sam Alito's too.

That's nice, any other completely irrelevant trivia you'd like to share?

I match irrelevant shit to irrelevant shit. Case closed.