Constitutional Law, Union and State.

[Reservoir Dog]

Keep in mind that no where in the Constitution does it say that SCOTUS gets to decided what is or isn't constitutional, that is a power they made up for themselves.

I don't know what Constitution you are reading, but Article 3, Section 1, clearly states that the "judicial power of the United States, shall be vested in one Supreme Court,..."

The definition of "judicial power" is the ability to interpret, enforce, and void laws based on their scope and constitutionality. So, SCOTUS didn't make that up for themselves.

Edited February 17, 2011 by Reservoir Dog

[RobertNashville]

Robert,

When did the addition of can 'regulate the wearing of arms' come about... It wasn't in the original TN Constitution, look into the process of how the current Consitution was drafted and passed and notice that it might not have conformed to the legal process of amending the TN constitution in place at that time.

Also, note who was or wasn't allowed to take part in the drafting or voting on the current constitution.

The spoon feed history we were given in school, glosses over all these issues, that shortcuts were even taken, let alone holding them up to the light of legality.

So?

I was merely trying to answer the question and I think the answer is sound. As I understand it (I wasn't here at the time), this is Tennessee's third constitution and the constitution we have is the constitution we live under and that constitution says that the state has the power to regulate the wearing of arms. The state will retain that power until this constitution is either replaced with a fourth version or this one amended.

[Tim Nunan]

This was just recently explained to me...I'll try to pass along that explanation.

In the Constitution of the State of Tennessee, the people of Tennessee gave the State the power to regulate the "wearing of arms" but with the limitation of "with a view to prevent crime". In other words, the purpose of such regulations regarding bearing (wearing) arms should have to pass though the filter of "does this regulation help to reduce crime" (special note, these are not exact quotes of the TN Constitution but I think they are close)? If it does not then the regulation is not proper. However, as time progressed, a "view to prevent crime" morphed into "this sounds like a good idea" and so, among other things, we have the HCP process.

"That the citizens of the State have a right to keep and to bear arms for the common defense, but the Legislature shall have power, by law, to regulate the wearing of arms with a view to prevent crime." - Tennessee Constitution, Article 1 - Declaration of Rights, Section 26

[DaveTN]

Keep in mind that no where in the Constitution does it say that SCOTUS gets to decided what is or isn't constitutional, that is a power they made up for themselves.

Really? If the SCOTUS isn’t interpreting the Constitution…. who is?

The 10th Amendment clearly states that other powers are granted to the states or the people, and the 2nd Amendment is a right of the People, not of the states.

Lets pretend you are right. How are you going to enforce it?

[RobertNashville]

"That the citizens of the State have a right to keep and to bear arms for the common defense, but the Legislature shall have power, by law, to regulate the wearing of arms with a view to prevent crime." - Tennessee Constitution, Article 1 - Declaration of Rights, Section 26

Thanks for posting the exact wording...I as a little too lazy to look it up last night.

[JayC]

I don't know what Constitution you are reading, but Article 3, Section 1, clearly states that the "judicial power of the United States, shall be vested in one Supreme Court,..."

The definition of "judicial power" is the ability to interpret, enforce, and void laws based on their scope and constitutionality. So, SCOTUS didn't make that up for themselves.

The current definition of 'judicial power' is completely different than the one held 250 years ago.

Marbury v. Madison - Wikipedia, the free encyclopedia

You'll note that there is little or no mention of the court having the power to over rule the President or the Congress in any of the federalist papers, or any of the discussions I've read from the state legislature when ratifying the constitution or the bill or rights. And at the time English common law did not support the practice either...

Again, what we were taught in school, is unfortunately much like a hollywood movie version, where the hero is painted as a wise man, and there is no mention of him being a child molester in real life. It's fun to watch, but it's not real history.

[JayC]

So?

I was merely trying to answer the question and I think the answer is sound. As I understand it (I wasn't here at the time), this is Tennessee's third constitution and the constitution we have is the constitution we live under and that constitution says that the state has the power to regulate the wearing of arms. The state will retain that power until this constitution is either replaced with a fourth version or this one amended.

My point is that while we're living under it... We often gloss over how it came into being, how it was changed, and the stink of illegal means that were used to force it on the people of TN. People hold up our state constitution as being the "will of the people", but fail to mention how it really came to pass.

A lot of stuff that happened in this state between 1855 and 1875 would make a lot of people take a step back and question if the current constitution should stand or if we should revert to the 1834 one.

[JayC]

Lets pretend you are right. How are you going to enforce it?

That is the real question isn't it... I believe in the four boxes of liberty... And my hope is we can return to true liberty before having to resort to the final box.

[RobertNashville]

My point is that while we're living under it... We often gloss over how it came into being, how it was changed, and the stink of illegal means that were used to force it on the people of TN. People hold up our state constitution as being the "will of the people", but fail to mention how it really came to pass.

A lot of stuff that happened in this state between 1855 and 1875 would make a lot of people take a step back and question if the current constitution should stand or if we should revert to the 1834 one.

No glossing over was going on; it's simply that how the current constitution came into being or how it was changed was not what was being discussed nor was such details germane to the question/answer.

How the present constitution came into being, etc., etc. may be worth discussion at the theoretical/philosophical level but in day to day reality, is rather meaningless. The constitution we have is what we have unless or until someone does more than "discuss".

Edited February 17, 2011 by RobertNashville

[Reservoir Dog]

The current definition of 'judicial power' is completely different than the one held 250 years ago.

You'll note that there is little or no mention of the court having the power to over rule the President or the Congress in any of the federalist papers, or any of the discussions I've read from the state legislature when ratifying the constitution or the bill or rights.

So, what was the definition of "judicial power" 250 years ago?

Although it is not explicitly defined in the Constitution, I believe the Founding Fathers intended "judicial power" to include judicial review of legislative acts. Marbury v. Madison merely formalized that. The three branches of our government are designed to be checks and balances over one another. Why create a Judiciary with no power void laws that are contrary to the Constitution.

Alexander Hamilton seemed to sum it up nicely in Federalist #78:

It is far more rational to suppose, that the courts were designed to be an intermediate body between the people and the legislature, in order, among other things, to keep the latter within the limits assigned to their authority. The interpretation of the laws is the proper and peculiar province of the courts. A constitution is, in fact, and must be regarded by the judges, as a fundamental law. It, therefore, belongs to them to ascertain its meaning, as well as the meaning of any particular act proceeding from the legislative body. If there should happen to be an irreconcilable variance between the two, that which has the superior obligation and validity ought, of course, to be preferred; or, in other words, the Constitution ought to be preferred to the statute, the intention of the people to the intention of their agents.

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[shortround]

Hamilton was a tool.

No one will ever convince me that the majority of the founding fathers, who were greatly concerned with maintaining state sovereignty, thought it was a good idea for disputes between the federal government and the states to be decided by... the federal government. How completely and utterly absurd. You would have better luck convincing me that 1+1=3, or black is white and up is down. I don't believe they were all complete idiots. I'll just leave it at that.

[sigmtnman]

Hamilton may have been a tool, but he was smart enough to opine the following in Federalist #84

Bill of Rights: Alexander Hamilton, Federalist, no. 84, 575--81

"I go further, and affirm that bills of rights, in the sense and in the extent in which they are contended for, are not only unnecessary in the proposed constitution, but would even be dangerous. They would contain various exceptions to powers which are not granted; and on this very account, would afford a colourable pretext to claim more than were granted. For why declare that things shall not be done which there is no power to do? Why for instance, should it be said, that the liberty of the press shall not be restrained, when no power is given by which restrictions may be imposed? I will not contend that such a provision would confer a regulating power; but it is evident that it would furnish, to men disposed to usurp, a plausible pretence for claiming that power. They might urge with a semblance of reason, that the constitution ought not to be charged with the absurdity of providing against the abuse of an authority, which was not given, and that the provision against restraining the liberty of the press afforded a clear implication, that a power to prescribe proper regulations concerning it, was intended to be vested in the national government. This may serve as a specimen of the numerous handles which would be given to the doctrine of constructive powers, by the indulgence of an injudicious zeal for bills of rights."

He knew exactly what would happen.

[JayC]

He was arguing we didn't need a bill of rights for the Constitution... as bad as it is today, just imagine how bad it would be without the first 10 amendments.

His argument was wrong if anything they didn't put enough safe guards in to protect us from the tyranny we face today.

Hamilton may have been a tool, but he was smart enough to opine the following in Federalist #84

Bill of Rights: Alexander Hamilton, Federalist, no. 84, 575--81

"I go further, and affirm that bills of rights, in the sense and in the extent in which they are contended for, are not only unnecessary in the proposed constitution, but would even be dangerous. They would contain various exceptions to powers which are not granted; and on this very account, would afford a colourable pretext to claim more than were granted. For why declare that things shall not be done which there is no power to do? Why for instance, should it be said, that the liberty of the press shall not be restrained, when no power is given by which restrictions may be imposed? I will not contend that such a provision would confer a regulating power; but it is evident that it would furnish, to men disposed to usurp, a plausible pretence for claiming that power. They might urge with a semblance of reason, that the constitution ought not to be charged with the absurdity of providing against the abuse of an authority, which was not given, and that the provision against restraining the liberty of the press afforded a clear implication, that a power to prescribe proper regulations concerning it, was intended to be vested in the national government. This may serve as a specimen of the numerous handles which would be given to the doctrine of constructive powers, by the indulgence of an injudicious zeal for bills of rights."

He knew exactly what would happen.

[Worriedman]

Hamilton was a "Big Government" proponent. Even Jefferson at first was opposed to a "Bill of Rights", Madison as well, both supposing that the founders intent of "Natural" Rights would stand inviolate forever. Had it not been for George Mason and Patrick Henry, we might be the death of one Conservative Supreme Court Justice away from losing all "Rights", more especially those related to firearms, were it not for those who insisted on including some specific Rights written against the intentions of powerful men who want things a certain way, then or now.

In retort to Hamilton's views, Henry said:

"Is it necessary for your liberty that you should abandon those great rights by the adoption of this system? (The Constitution sans any amendments) Is the relinquishment of the trial by jury and the liberty of the press necessary for your liberty? Will the abandonment of your most sacred rights tend to the security of your liberty? Liberty, the greatest of all earthly blessings—give us that precious jewel, and you may take every thing else!"

[sigmtnman]

The Constitution is a restriction of government, not a grant of rights.

Every time I hear about losing one of my rights, it is the Bill of Rights that is referred to, not the original articles of the Constitution.

[Worriedman]

The Constitution is a restriction of government, not a grant of rights.

Every time I hear about losing one of my rights, it is the Bill of Rights that is referred to, not the original articles of the Constitution.

I agree with your statement, mostly. The Federal Constitution IS a list of restrictions placed on the Government. The Bill of Rights being the first 10 Amendments, at least the first 10 that all the States would ratify, they proposed 12 originally, but only 10 were accepted.

The Constitution as written just did not put enough "chains" on the Federal Government, Hamilton and his group did not want to list ANY expressed Rights, as they did not want to have to list ALL. Simple sloth, or a hidden agenda to retain control in the hands of a "Ruling Elite"?

Jefferson came to the realization that SOME Rights needed to be forever protected, "Half a loaf is better than no bread. If we cannot secure all our rights, let us secure what we can."

[sigmtnman]

The only thing that came from the Bill of Rights were more words for the lawyers to bend.

The enumeration of powers does not give the government the ability to restrict god given rights of individuals.

[DaveTN]

The only thing that came from the Bill of Rights were more words for the lawyers to bend.

The enumeration of powers does not give the government the ability to restrict god given rights of individuals.

No one…. including the government, recognizes God given rights. As soon as they do we don’t need to argue the 2nd to be able to carry.

But the heathens get upset when we even talk about “Godâ€. They don’t fully understand the separation of church and state and feel we shouldn’t even acknowledge “God given rightsâ€.

[sigmtnman]

Thanks for catching that, I meant "God".

[Worriedman]

No one…. including the government, recognizes God given rights. As soon as they do we don’t need to argue the 2nd to be able to carry.

I agree 100% with this statement, but, until the Government does recognize them, I for one am glad we have at least some of the basics penned in perpetuity, it will take them longer to breach and destroy them.

[JayC]

I agree 100% with this statement, but, until the Government does recognize them, I for one am glad we have at least some of the basics penned in perpetuity, it will take them longer to breach and destroy them.

I disagree, none of our God given rights haven't already been breached and destroyed. We don't have free speech, and for sure little freedom of the press left... the 2nd, 4th, and 5th Amendments have been for all practical purposes removed... What rights are still fully there?

[sigmtnman]

I sure feel free with my permits and licenses. Free range American.

Which reminds me, did everyone pay their rent?

[DaveTN]

I disagree, none of our God given rights haven't already been breached and destroyed. We don't have free speech, and for sure little freedom of the press left... the 2nd, 4th, and 5th Amendments have been for all practical purposes removed... What rights are still fully there?

You have freedom of speech, you are protected against unreasonable search and the last time I checked you still had the right to trial, and protection against double jeopardy and self-incrimination….. All pretty much still the way our founding Fathers had intended.

Oh and by the way….. The right to vote is still fully there and unobstructed. A lot of what we perceive as problems is what the majority of the people want. Don’t ever forget the majority of the people voted for Obama.

[JayC]

Ok, lets get started... Freedom of speech... Hmmm, lets see, free speech zones anybody? Not only do they violate your freedom of speech, but they also violate your ability to seek redress against the government. So, no my freedom of speech can and will be limited as the government sees fit... But I'll grant you that the freedom of speech is one of the least destroyed natural rights.

As for right to trial, I believe it's a right to a jury trial, and the government has figured out a lot of ways to abuse that right... Try getting a jury trial during a reckless driving hearing... The government has made up 'administrative' offenses which tend to bypass a lot of requires placed on criminal courts.

Lets talk about double jeopardy for a minute.. we have the 'separate sovereign' exception, as well as the hung jury exception.... So no that right is not completely intact.

Self-incrimination, maybe... SCOTUS has had some questionable rulings on that one here recently... for sure wiretapping is a clear violation IMHO.

Now the huge one which you brought up... unreasonable searches... We've lost that entire right, and you know it...

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

Lets see all the ways that god given right has been violated... first lets start with RAS/PC police can search your person, your home, your car, your cellphone without a warrant. Patriot Act gives the right for FBI agents to write their own warrants on a napkin, with no judicial oversight. Your computer can be searched without a warrant when entering the country. No our rights protected by the 4th amendment have been completely trashed - probably one of the worse examples.

Rights are absolutes which stand above what the majority wants at any given point in time... We have a process for taking away rights, which is a jury of your peers unanimously voting to convict you of a crime, otherwise your rights can't be touched.

Majority rule is 2 wolves and a sheep voting on whats for dinner... I didn't sign up for that, and neither did our founding fathers. The form of government they created was a necessary evil 230 years ago, now that it has been allowed to grow out of control for the last 160 years, it's a monster that we must stop. My fear is that the only way to stop it at this point is going to result in bloodshed.

You have freedom of speech, you are protected against unreasonable search and the last time I checked you still had the right to trial, and protection against double jeopardy and self-incrimination….. All pretty much still the way our founding Fathers had intended.

Oh and by the way….. The right to vote is still fully there and unobstructed. A lot of what we perceive as problems is what the majority of the people want. Don’t ever forget the majority of the people voted for Obama.

[Reservoir Dog]

Self-incrimination, maybe... SCOTUS has had some questionable rulings on that one here recently... for sure wiretapping is a clear violation IMHO.

Wiretapping is not a violation of self-incrimination. Not even remotely close.

The 5th Amendment reads:

...nor shall be compelled in any criminal case to be a witness against himself,...

The key word is "compelled" (by the government). If you are planning your crime over the phone, or blabbing to your cronies about all the banks you've robbed, you are doing that voluntarily. No one is forcing you to do that. Wiretapping is a 4th Amendment issue, not a 5th. Edited March 2, 2011 by Reservoir Dog