US Bill of Rights

[carmen510]

This will mainly be a discussion of the Bill of rights.

Amendment I: Probably the most important. It states that Congress shall make no law prohibiting or abridging freedom of religion, press, assembly, or petition. However, it only says Congress, and not the state legislatures. This would mean that a state could prohibit free speech, and it would be constitutional. Should we make an amendment for that? Also, Congress has interfered with religion, in the case of Engel v. Vitale Supreme Court case, of 1962, in which schools were prohibited to use any prayers, including those nonsectarian. Certainly, this is unconstitutional by the First amendment, so why hasn't it been declared that? Also, in 2003, Judge Roy Moore, Alabama's Supreme Court chief justice, was suspended for refusing a federal court order to take down the Ten Commandments. However, this would also be unconstitutional, mainly because it would be Alabama's choice, and not the federal government.

Amendment II: Perhaps the most controversial is the right to bear arms. Anti-gun protesters (And I'm anti-gun, don't get me wrong) debate that since it says militia, it would mean only the states, not individuals, would be able to bear arms. However, if that was the case, then it would say state's rights, instead of peoples rights. Therefore, it IS legal for individual ownership of guns. What do you think?

Amendment IX: Even if the Second Amendment meant only the states could bear arms, the Ninth Amendment allows individual ownership as well. The Ninth Amendment states any rights not mentioned in the Constitution doesn't mean it isn't a right. therefore, gun ownership by individuals is completely legal.

Amendment X: Any powers not authorized by the Constitution to the federal government, belongs in the hands of the states. If people followed this rule, there would be no federal Social Security, it would be left in hands of the state. Also, this means states would have control over Native americans, and not the other way around. And pretty much all other 'powers' of the federal government would be in the hands of the state. This includes what the NSA is doing, among lots of other stuff. This is why noone mentions this amendment in Washington.

I think this will be a good discussion topic for now.

 

[Bugfatty300]

Amendment II: Perhaps the most controversial is the right to bear arms. Anti-gun protesters (And I'm anti-gun, don't get me wrong) debate that since it says militia, it would mean only the states, not individuals, would be able to bear arms. However, if that was the case, then it would say state's rights, instead of peoples rights. Therefore, it IS legal for individual ownership of guns. What do you think?

I think people who say that need to look at what "militia" was 220 years ago. There was no such thing as the National Guard or military reserves. Even today, the United States "militia" is defined as all males 17 to 45 years of age and members of the national guard and reserves.

And as Hurricane Katrina has shown us, unorganized citizen's militia still has its place in American society.

BTW, its nice to see a self-described anti-gun person look at the 2nd amendment in such a neutral light.

 

[carmen510]

Also, into states' rights, the South had a right to secede from the Union, mainly because it was a reserved right, and there was no rule against it. (Virginia, Massachusetts, and I believe Pennsylvania all reserved the right to secede from the Union, because each state had its own needs, and they were all suspicious of eachother.)

Also, the executive branch has been power-hungry this past half century. It all starts with Truman interfering with the Greek Civil War, without consulting Congress. Then, it goes on to Korea and Vietnam. I'm not sure about the Iraq War, I forgot about it. Therefore, the executive branch has stolen rights clarly outlined in the Constitution. However, the Iraq War is a bit unique. The president himself CANNOT declare war, but he can MAKE war. (By making war, I mean the defense of the country) If we conclude that 9/11 WAS an attack by Iraq, then the Iraq war is at least partially justified. That still doesn't mean I'm not against it though.

Therefore, states' rights have been neglected by the federal government, and has stolen the states' rights, of which the Framers would be horrified.

 

[Naskra]

Please! there was never any "right to secede", reserved or otherwise. The Articles of Confederation stated the "union is perpetual"; the "more perfect
union" of the 1789 constitution is a direct reference to this. There is no lost
Federalist Paper arguing that "you have nothing to lose because you can always secede". Everyone who signed the contract understood this. The claim of right to secede was a later factitious invention.

 

[Bugfatty300]

Please! there was never any "right to secede", reserved or otherwise. The Articles of Confederation stated the "union is perpetual"; the "more perfect union" of the 1789 constitution is a direct reference to this. There is no lost Federalist Paper arguing that "you have nothing to lose because you can always secede". Everyone who signed the contract understood this. The claim of right to secede was a later factitious invention.

The US was viewed as an experimental union that could peacefully dissolve at any time. It was made clear by several state reps and (reaffirmed by many others) that that the states reserved the right to secede before signing the 1789 document so apparently they knew the union was not permanent. There were considerations of dissolving the US as early as 1814.

There was nothing cited by Lincoln and the Republicans that stated secession was illegal other than there own sheer will and wishes, nor has there ever been an amendment or court precedent that says secession is illegal.

 

[Naskra]

I am still considering dissolving the damn thing, but that has no legal weight.

 

[sydhe]

I think you can make a case that only the first 13 states could secede. The rest required a congressional decision to become states and would need another congressional decision to secede.

Restrictions on state religion comes from the fourteenth amendment as applied to the first.

 

[Adler17]

From a German law student's point of view:

1. THe US are a secular state without a national church. It has to tolerate all religions. But on the other hand keep out of religious debates themself and staying stricly neutral. That's why forbidding prayers might be justified as on this way pupils are pressed into one religious direction. Also this might be missionating and so the religious neutrality is in danger. (In Germany we have resp. had the discussions if a crucifix in a classroom is a danger as well as headscarves for muslim teacher).

2. The right to wear arms has to be controlled in a much better way. The criminal background here is too big in the US. Thus the right to have arms has to be restricted dramatically. You're not living in the Wild West, do you? However this does not mean gun ownership should become completely illegal.

3. A more structural problem here are the amendments. IMO it would be better to rewrite the constitution directly. Otherwise you have the danger once having articles of the constitution fighting with amendments. The German constitution was altered about 60 times since 1949. Also you should make a core that is unchangable.

4. The right of secession is not existing in a federal state. Only if a member state is attacked in the basic rights fundamentally a separation might be justified. (even that is highly problematic). So generally once member ever member.

5. Even if new things happen, which are usually part of the legislation of the member states, it might be possible that if the federal government can deal with these problems much better the federal government gets the power acting so. But that has to be an exception.

Adler

 

[onejayhawk]

From a German law student's point of view:

1. THe US are a secular state without a national church. It has to tolerate all religions. But on the other hand keep out of religious debates themself and staying stricly neutral. That's why forbidding prayers might be justified as on this way pupils are pressed into one religious direction. Also this might be missionating and so the religious neutrality is in danger. (In Germany we have resp. had the discussions if a crucifix in a classroom is a danger as well as headscarves for muslim teacher).

2. The right to wear arms has to be controlled in a much better way. The criminal background here is too big in the US. Thus the right to have arms has to be restricted dramatically. You're not living in the Wild West, do you? However this does not mean gun ownership should become completely illegal.

3. A more structural problem here are the amendments. IMO it would be better to rewrite the constitution directly. Otherwise you have the danger once having articles of the constitution fighting with amendments. The German constitution was altered about 60 times since 1949. Also you should make a core that is unchangable.

4. The right of secession is not existing in a federal state. Only if a member state is attacked in the basic rights fundamentally a separation might be justified. (even that is highly problematic). So generally once member ever member.

5. Even if new things happen, which are usually part of the legislation of the member states, it might be possible that if the federal government can deal with these problems much better the federal government gets the power acting so. But that has to be an exception.

Adler

1) I find your argument about prayer unpersuasive, since there is no implied freedom FROM religion. Moreover, every religious sect with which I am familiar recognizes prayer in silence.

2) You would have difficulty with the language of the ammendment, which states that right to keep and bear arms will not be "infringed." Therefore it is validly argued, from the black letter, that "to be restricted dramatically" is forbidden.

3) One of the reasons for the success of this particular Constitution has been the difficulty in ammending it.

4) The 10th Ammendment states, "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." After the seccession war, this particular issue was said to have been decided "by the hostilities."

5) There was a substantial following for your view at the writing. In practice, the Federal Powers, particularly of commerce, have been exstended far beyond their original bounds.

J

 

[The Yankee]

An interesting aside regarding the role of religion in the United States, though the federal government never established a national religion, several states (maybe all of them had it, I do not recall) did have state religions in the early decades of the United States.

link

At the time of the passage of the Bill of Rights, many states acted in ways that would now be held unconstitutional. For example, in 1854 the State supreme court of Maine declared that the local school board had the right to expel a 15-year-old girl for refusing to read aloud a portion of the King James translation of the Bible to her class due to her family's religion requiring her to read only the Douay Catholic translation.[18] All of the early official state churches were disestablished by 1833 (Massachusetts), including the Congregationalist establishment in Connecticut. It is commonly accepted that, under the doctrine of Incorporation - which uses the Due Process clause of the Fourteenth Amendment to hold the Bill of Rights applicable to the states - these state churches could not be reestablished today.

 

[carmen510]

Well, it was constitutional, mainly because it said Congress, and not the state. It was legalized by the First and Tenth amendments.

 

[Theryman]

4) The 10th Ammendment states, "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." After the seccession war, this particular issue was said to have been decided "by the hostilities."
J

And THAT is the key point right there. Might makes right sometimes. The Civil War basically decided the question of state's rights, not by anything political, but by kicking the crap out of the biggest complainers.

 

[warpus]

The 2nd amendment is outdated, is all I have to say.

 

[Naskra]

The 2nd amendment has always been problematic. We should bear in mind that the US constitution and the bill of rights were written by practicing politicians, not marble Solons. At the time, everyone remembered that the trigger event for hostilities in the American Revolution was the British attempt at seizure of a "militia" arms cache at Lexington. There were regiments of the colonial army that refused to surrender their weapons at mustering out. Trust in the new government formed by a clique of oligarchs did not run deep. The implicit guarantee of the amendment is that though armed rebellion can never be legal, it shall always be possible. Hence the ambiguous wording.
Calling the 2nd amendment outdated is not an argument against it; it is an appeal that law be subject to fashion.

 

[Bugfatty300]

The 2nd amendment is outdated, is all I have to say.

As long as governments still oppress people the spirit and reasoning of the 2nd amendment will never be outdated.

 

[Amin001]

Guns are important for the preservation of liberty, whether it be an invasion from a foreign army or a tyranny made right at home.

Hurricane Katrina is also a other good example, you cant always trust the government to protect you in such extreme times.

 

[warpus]

As long as governments still oppress people the spirit and reasoning of the 2nd amendment will never be outdated.

Since a militia has no chance of standing up against the U.S. government, the 2nd amendment is outdated.

 

[Bugfatty300]

Since a militia has no chance of standing up against the U.S. government, the 2nd amendment is outdated.

I used to believe that. Then came the war in Iraq....

 

[onejayhawk]

And THAT is the key point right there. Might makes right sometimes. The Civil War basically decided the question of state's rights, not by anything political, but by kicking the crap out of the biggest complainers.

It's an actual legal principle. If you look at the law concerning treatment of natives in the US, you will see the phrase "right of conquest" used repeatedly.

J

 

[Lonkut]

If the 2nd ammendment is outdated then the bill of rights is outdated. Next thing you know martial law comes knocking on your door and if guns are illegal you don't own a gun you won't be able protect yourself from such acts. Criminals can always get guns illegaly and I personaly like to be armed if a criminal decides to rob me in my own house. If a crazy man who decides one day to go to hishigh school or college with the intention of a massacre he will get the guns by any means necessary. I personaly like that congress shall make no law that changes the bill of rights and I'd like to keep it that way. It is not nice to live in a country with an oppressive government. I should know. Don't blame guns blame the crazed maniacs that wield em.