Conservative. Idaho. Software engineer. Historian. Trying to prevent Idiocracy from becoming a documentary.
Email complaints/requests about copyright infringement to clayton @ claytoncramer.com. Reminder: the last copyright troll that bothered me went bankrupt.
"And we know that all things work together for good to them that love God, to them who are the called according to his purpose." -- Rom. 8:28
While I would love to have national CCW reciprocity, or even better, national constitutional carry, I do have a concern here.
The right wing, of which I am a longtime member, has long been in favor of states' rights and constitutional originalism. In order for national CCW to work, states rights would have to be abridged.
Now, I recognize that the very folks who use states' rights to ban CCW in their states are the ones otherwise against states' rights.
But, it is still a concern. How do we get around the 10th Amendment? Use the often abused interpretation of the 14th the all federal constitutional rights must be enforced by the states? Use the widely abused interstate commerce clause?
The 14th Amendment applied the Bill of Rights to the states; hence McDonald v. Chicago, and a lot of other decisions with less legal basis such as Roe v. Wade. If the left insists on forcing states to recognize rights that appear nowhere in the text, they better be ready for rights that are in there.
I agree that the left are hypocritical, and I know that they abuses anything they touch.
But, as far as I can tell, the 14th was not intended to limit state governments via the Bill of Rights. I know it has been used that way for a long time.
So, I find it concerning when we use the 14th incorrectly, even when it has been used that way for many decades. That said, I am no scholar in the issue.
On the other hand, I suppose unilaterally giving up that interpretation strips us of what we need to fight those who use that same wrong interpretation against us. If we didn't accept it, Heller would not apply, for example (McDonald is more complex).
Is that what you meant by "they better be ready...?" Or do you interpret the 14th to fully apply Amendments 1-8 to the states?
Actually the 14th was intended to limit the states, to protect freedmen and Republicans from Southern state governments. See https://papers.ssrn.com/sol3/papers.cfm?abstract_id=1585461, which was cited in McDonald.
I think you misunderstood my comment. Of course the 14th was meant to limit the states - that was it's purpose - to keep the former slave states from oppressing former slaves and Republicans.
My question is how it limits the state. I have read articles in the past - not in academia but in serious conservative journals (National Review I think) stating that the 14th only applied parts of the BOR to the states, and certainly that not all of the BOR had, at that time, been applied via the 14th.
You have more of a background in this than me, but the article you co-authored and cited appears to be about interpreting the 2nd Amendment in light of the 14th, rather than interpreting the 14th. It does assert that the 14th extends the BOR, and I assume thus that this is correct, but from where does that come?
FWIW, I just stumbled onto the following: http://tenthamendmentcenter.com/2012/03/12/the-14th-amendment-and-the-bill-of-rights/
Excerpt (from Frankfurter in 1959): "We have held from the beginning and uniformly that the Due Process Clause of the Fourteenth Amendment does not apply to the States any of the provisions of the first eight amendments as such. The relevant historical materials have been canvassed by this Court and by legal scholars. These materials demonstrate conclusively that Congress and the members of the legislatures of the ratifying States did not contemplate that the Fourteenth Amendment was a short-hand incorporation of the first eight amendments making them applicable as explicit restrictions upon the States."
Note also that you don't need to incorporate the BOR in order to achieve the goal of the framers of the 14th - equal treatment under the law.
Frankfurter claimed that, but the statements of the authors of the 14th Am. are clear that they intended the BoR to be imposed on the states. Yes, for many years, the Supreme Court did "selective incorporation" as the mood struck them, usually to protect one right that they favored (free speech, double jeopardy) but not others (RKBA in U.S. v. Cruikshank [1873]).
While I would love to have national CCW reciprocity, or even better, national constitutional carry, I do have a concern here.
ReplyDeleteThe right wing, of which I am a longtime member, has long been in favor of states' rights and constitutional originalism. In order for national CCW to work, states rights would have to be abridged.
Now, I recognize that the very folks who use states' rights to ban CCW in their states are the ones otherwise against states' rights.
But, it is still a concern. How do we get around the 10th Amendment? Use the often abused interpretation of the 14th the all federal constitutional rights must be enforced by the states? Use the widely abused interstate commerce clause?
I am interested in your thoughts on the matter.
The 14th Amendment applied the Bill of Rights to the states; hence McDonald v. Chicago, and a lot of other decisions with less legal basis such as Roe v. Wade. If the left insists on forcing states to recognize rights that appear nowhere in the text, they better be ready for rights that are in there.
ReplyDelete
ReplyDeleteI agree that the left are hypocritical, and I know that they abuses anything they touch.
But, as far as I can tell, the 14th was not intended to limit state governments via the Bill of Rights. I know it has been used that way for a long time.
So, I find it concerning when we use the 14th incorrectly, even when it has been used that way for many decades. That said, I am no scholar in the issue.
On the other hand, I suppose unilaterally giving up that interpretation strips us of what we need to fight those who use that same wrong interpretation against us. If we didn't accept it, Heller would not apply, for example (McDonald is more complex).
Is that what you meant by "they better be ready...?" Or do you interpret the 14th to fully apply Amendments 1-8 to the states?
Actually the 14th was intended to limit the states, to protect freedmen and Republicans from Southern state governments. See https://papers.ssrn.com/sol3/papers.cfm?abstract_id=1585461, which was cited in McDonald.
ReplyDeleteI think you misunderstood my comment. Of course the 14th was meant to limit the states - that was it's purpose - to keep the former slave states from oppressing former slaves and Republicans.
ReplyDeleteMy question is how it limits the state. I have read articles in the past - not in academia but in serious conservative journals (National Review I think) stating that the 14th only applied parts of the BOR to the states, and certainly that not all of the BOR had, at that time, been applied via the 14th.
You have more of a background in this than me, but the article you co-authored and cited appears to be about interpreting the 2nd Amendment in light of the 14th, rather than interpreting the 14th. It does assert that the 14th extends the BOR, and I assume thus that this is correct, but from where does that come?
FWIW, I just stumbled onto the following: http://tenthamendmentcenter.com/2012/03/12/the-14th-amendment-and-the-bill-of-rights/
ReplyDeleteExcerpt (from Frankfurter in 1959): "We have held from the beginning and uniformly that the Due Process Clause of the Fourteenth Amendment does not apply to the States any of the provisions of the first eight amendments as such. The relevant historical materials have been canvassed by this Court and by legal scholars. These materials demonstrate conclusively that Congress and the members of the legislatures of the ratifying States did not contemplate that the Fourteenth Amendment was a short-hand incorporation of the first eight amendments making them applicable as explicit restrictions upon the States."
Note also that you don't need to incorporate the BOR in order to achieve the goal of the framers of the 14th - equal treatment under the law.
Frankfurter claimed that, but the statements of the authors of the 14th Am. are clear that they intended the BoR to be imposed on the states. Yes, for many years, the Supreme Court did "selective incorporation" as the mood struck them, usually to protect one right that they favored (free speech, double jeopardy) but not others (RKBA in U.S. v. Cruikshank [1873]).
ReplyDelete