Assembly Permits AG to File Brief in Key 2nd Amendment Case
Wisconsin Attorney General J.B. Van Hollen released the following statement on today’s Wisconsin State Assembly action as it relates to Assembly Resolution 15 which grants the Attorney General authority to appear as amicus curiae in Otis McDonald, et al. v. City of Chicago, Illinois, which is currently pending before the United States Supreme Court.
“The McDonald case will determine whether the Second Amendment right to bear arms under the Federal Constitution limits the ability of states and local governments to regulate firearms. Today, at my request, the State Assembly took prompt action to pass a resolution that authorizes me to file a brief with the Supreme Court to advocate for a broad reading of the Second Amendment that will guarantee the right to keep and bear arms and prevent states and/or local governments from unwarranted intrusion into these rights. The United States Supreme Court announced on September 30, 2009, it would hear the McDonald case.”
This is going to be a very interesting case. Beyond the natural excitement of a gun case, the court has asked for briefing on the issue of to what extent and by what method is the bill of fights applicable to the states. Currently we have the doctrine of incorporation (i.e. that the court determines on a case by case basis what rights are so fundamental as to fall into the 14th amendments due process clause) but many scholars have long argued that this methodology is not just poorly carried out but is just plain wrong and that the proper analysis begins with the 14th amendments privileges and immunities clause. This case has the potential work a sea change in constitutional law.
Posted by .(JavaScript must be enabled to view this email address) on November 04, 2009 at 0755 hrs
The fact that there is even a discussion or a need to discuss incorporation demonstrates the failure of americans to understand and be educated on what freedom really is.
Our founding fathers didn’t define such a limited role of the federal government and a robust statement of the human rights we enjoy as living beings only to have another form of government (state government) turn around and walk all over our rights.
We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness. That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed,
Posted by .(JavaScript must be enabled to view this email address) on November 04, 2009 at 1057 hrs
Joe is right. The rights that have been incorporated were done so by the due process clause of the 14th amendment, which is not that clause’s purpose. It’s the privileges and immunities clause which was clearly supposed to completely incorporate the bill of rights, if it hadn’t been ruined by one early court ruling (too lazy to fine the case). This could get interesting, although I’m not sure the P&I clause will enter the discussion at this point. To my knowledge, it hasn’t been brought up in ages.
XXXPilot, that line isn’t from a legal document. It important not to draw our legal principles from it, as it is full of useless, extra verbage (see “by their creator”). But you’re basically right.
Posted by .(JavaScript must be enabled to view this email address) on November 04, 2009 at 1347 hrs
Or course not, its from the Dec, but I think it is a fine document to draw our governing principles from. And I don’t have a problem with “by their creator” even though I’m agnostic.
You exist. Something created you. The big bang is a ‘creator’. “god” has a different meaning for many people, and “creator” doesn’t equal “god”.
(though those who would wish to leverage the government to advance their religion consistently tell us it does)
As (perhaps unfortunately so) the supreme court and its political nature, has become the arbiter or what is or isn’t constitutional, rather than them trying to wade around in the limited phraseology of the document itself, if they would understand the philosophy by which it was created, the ‘test’ of constitutionality becomes CRYSTAL clear.
As for drawing “legal principles” from other documents.
I believe we should draw our legal principles from legal documents of course. But what happens when you come to the end of the line when it comes to legal documents (the constitution) to interpret that document, what principles shall we use? I vote for the principles of freedom which our founding fathers laid out a plethora of other documents and information to illustrate and support.
Has the constitution been inaccurately interpreted. I say hell yes it has. And I think its because justices and judges have ignored the philosophy of freedom clearly spelled out behind it (often deliberately) put blinders on and played word games with only what exists inside the document.
I don’t believe the constitution will survive on its own. The proclivity of people to twist the meaning of words necessitates that we look beyond the very limited contents of the document itself to the expanse of other information to support it. Starting with the declaration of independence. Its all perfectly clear when you look at everything.
Posted by .(JavaScript must be enabled to view this email address) on November 04, 2009 at 1632 hrs
xxpilot - (in other than regilous matters) you and have consistently agreed around here, but you have the prupose of the consitution and the bill of rights exactly backwords. It was never intended to have anything to do with what power the states did or did not have. Your reading of it will kill the concept of federalism (and the seperation of power between the parties) that was the very principle the consitution was built around.
Posted by .(JavaScript must be enabled to view this email address) on November 04, 2009 at 1818 hrs
I believe the founding fathers laid out a clear and concise philosophy of government and rights in the constitution, bill of rights, amongst many other documents and writings.
A good deal of that philosophy involves not just what the federal government should do but what any government should do.
It would be contradictory to talk about inalienable rights but then lend that philosophy impotent by limiting it to only the role of the federal government. In the eyes of the federal government, we have free speech, but a state government we don’t have those rights? blech… (of course I understand that has been “incorporated”) (how nice of the courts to grant us our human rights) (puke again)
State and even local government now DWARF what the federal government use to be in 1776. It makes no sense that State and Local government should be left to a different philosophy when it comes to our rights.
If our federal government has found a way to expand the power of the federal government infringing on our rights in a way that flies in the face of the philosophy of the founding fathers, then I don’t see the danger of a federal government expanding its power to PROTECT our rights in parallel with the philosophy of freedom and individual rights of our founding fathers.
Posted by .(JavaScript must be enabled to view this email address) on November 05, 2009 at 1137 hrs
and to add. If there IS a danger of using the federal government to protect rights, then I’m all ears (and that is not said with sarcasm) But I absolutely believe a philosophy of ALL government has been laid out by the founding fathers and our country will prosper socially and economically if we abide by it.
Posted by .(JavaScript must be enabled to view this email address) on November 05, 2009 at 1221 hrs
xx - I dont’ disagree with you that the founders had a governing philosophy that looked to maximize individual liberty. But they also had a philosophy that said the 13 states were independent nations and they drafted the federal constitution and the bill of rights with that philosophy firmly in mind and in the text. Until the 14th amendment was passed, there was no legal basis for applying the bill of rights to the states; not because those rights should not be available and unhindered at the state level but simply because the federal gov’t was not authorized to speak as to what the states could or could not do. It has no role in the conversation. It is a limited federal gov’t. Its power was intentionally muted.
As for why it is a bad idea to give the federal gov’t the power to say what a state can or can’t do should be obvious. Do you really think the federal gov’t can be trusted to do this job? Do you think the federal courts, congress and the President do a good job of not trampling our rights? I don’t. And there are certainly many freedoms that would not have been recognized (or at least were delayed) if the federal government was the sole authority on rights. Blacks enjoyed freedom in certain states prior to the end of slavery because of federalism. Pre-civil war if the federal gov’t would have been the only standard setter with regard to slavery it would have been legal everywhere. Women gained their right to vote in state elections (primarily in the West) long before their suffrage was recognized at the federal level. Again, if a uniform answer had been required women would have been denied the right vote for even longer.
So, saying that the bill of rights is not applicable to the states does not mean that those rights are not available to the citizens at the state level. It just means that that document is not the text at issue. Indeed, the bill of rights is a list of prohibitions not a list of rights and it says who is prohibited – Congress. The fact that the magna carta or the declaration of the rights of man are not applicable to me does not mean that I don’t have those rights. Those rights exist outside of the context of any written document.
Posted by .(JavaScript must be enabled to view this email address) on November 05, 2009 at 1310 hrs
Fair enough. You’re right. As evidenced by history, the federal government has shown its lack of efficacy.
If I have to fight for my right to: free speech, protect myself and my family, have accountability for how my tax dollars are spent, etc, etc, I’d sure rather do it in Madison than DC.
I’m a little ashamed to admit that besides article 1 section 25, I’ve never read the Wisconsin State constitution, and as a result I’m a little scared that it may have even less explicit text compared to the bill of rights (which despite its intent seems TO have brainwashed people that a right must be enumerated to exist)
sigh…
Thanks for your informative response(s)
Posted by .(JavaScript must be enabled to view this email address) on November 05, 2009 at 1427 hrs
No problem XX. You should give it a read. It is not that bad - bunch of stuff that really doesn’t seem to belong but some good stuff too!
Posted by .(JavaScript must be enabled to view this email address) on November 05, 2009 at 2204 hrs
I’ll do that. I will say at least the RKBA is written much clearer and more precise in our state constitution than the 2nd Amendment. Then again, in a couple hundred years, the meaning of words will have evolved and people will probably dispute its intent then too.
Posted by .(JavaScript must be enabled to view this email address) on November 06, 2009 at 0009 hrs
Total Entries: 19628
Total Comments: 129572
Most Recent Entry: 02/03/2012 09:53 pm
Most Recent Comment on: 02/04/2012 04:57 am
Total Members: 9751
Total Logged in members: 0
Total guests: 96
Total anonymous users: 0
Most Recent Visitor on: 02/04/2012 05:40 am
The most visitors ever was 538 on 12/01/2007 02:11 pm
Protected and licensed under a Creative Commons License (some rights reserved).