A Brief Review of 2nd and 10th Amendments

| November 19, 2018 | 62 Comments

The Bill of Rights

That small firecracker storm stirred up by yesterday’s posting of an article about a newly-minted Congress critter from California showed that this incipient Congress critter is ignorant of both Federal and state laws about everything.

Here’s my attempt to clear up that ignorance as simply as possible.

First of all, the US Constitution has Amendments that specify such things as what authority is delegated to the Federal government, and what is delegated to the states and to the people of the United States.

The specific Amendment regarding this comes out of the Articles of Confederation, which was the original document meant to provide for a national and expanding, federal government. When the Articles of Confederation were dumped, the resulting Amendment designating states’ rights was created during the drafting of the US Constitution.

The 10th Amendment was included in the Bill of Rights to create a class of powers, known as reserved powers, exclusive to state governments. The amendment specifically reads as follows: “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.”

Now, that’s quite clear language, in my view. It is plain English, unlike some of the bills passed by either or both Houses of Congress, bills in which gobbledygook is meant to cover the cracks in the system that come from quarrelsome parties in Congress. https://courses.lumenlearning.com/amgovernment/chapter/state-power-and-delegation/

I will repeat it. Tenth Amendment: “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.”

The U.S. Constitution is silent on the dispersion of power between states and localities within each state. This means that because local jurisdictions are not mentioned specifically, then local power lies within the purvey of the states themselves.

The other Amendment which is brought up here so frequently is the Second Amendment, which is as follows:  A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.

That’s pretty clear, too. At the federal level, your right to own guns is inviolate. The most recent example of a localized attempt to overstep the US Constitution as well as state law occurred  when the Mayor of Deerfield, IL, not only passed an ordinance banning guns in Deerfield, but also included a search-and-seizure procedure with no notice to homeowners, which was tested in court, and was found to not only violate Illinois state laws by not providing due process or warrants, but also violated the US Constitution. She lost, and lost badly.

That was the first test of this kind of thing. I believe more will follow. Prepare yourselves mentally for that, and if necessary, get to be friendss with an attorney who knows both state and US Constitutional laws.

It was this bout of illegal activity by one person that prompted the County of Effingham downstate to offer itself as a sanctuary county for gun owners. That ‘sanctuary county’ program continues in Illinois,  as I indicated a few weeks ago, with many counties following suit and more with the sanctuary proposal on their legislative books.

Try to speculate on what will happen if state legislatures decide to go full potato about it, and declare themselves sanctuary states for gun owners.? We’d probably have another test of both state and federal laws. That would be my guess. That’s how you do things in this country. It is “We, the People”, not ‘The Government’.

The newly-elected and very arrogant individual Swallwell from California voiced threats toward anyone who fails to obey a federal gun ban, including dropping a nuke on you. I’d like to see him try that.

He is not only ignorant of the US Constitution, he is also colossally ignorant of laws in general.

The US Constitution’s 2nd Amendment is a federal law, whether he likes it or not. It is backed up by the 10th Amendment. His authority is a lot more limited than he can possibly imagine by the language of the 10th Amendment:  “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.”

Bear that last phrase in mind: “or to the people”, and review the Deerfield debacle. This Amendment has withstood the test of time and the court system.

The 10th  Amencment is quite clear. It is within the rights of each and every state government to create legislation regarding owning guns. It is, in fact, reserved to the states to create such laws as they see fit, which has resulted in the State of Illinois passing rather stringent but valid FOID and CCW laws, both of which meet legal requirements and state laws, and constitutional terms at the federal level. This is what tripped up the Mayor of Deerfield.

I want to remind everybody reading this that Prohibition, a Constitutional amendment passed by Congress and ratified by the states, did not work and was repealed within a few years. Among other things, it provided room for the rise of organized crime, which started with Al Capone.

It is extremely necessary on the part of all of us to be aware of these vultures and give them as much room as possible to expose themselves for what they really are.

Without awareness of them and their agenda, we lose the very things we value most.

Category: "The Floggings Will Continue Until Morale Improves", Gun Grabbing Fascists, Guns, Historical, Liberals suck

Comments (62)

Trackback URL | Comments RSS Feed

  1. Jay says:

    Yep. They’re gonna keep poking, prodding, and testing the lines to see EXACTLY what they can get away with.

  2. 26Limabeans says:

    “It is extremely necessary on the part of all of us to be aware of these vultures”

    The NRA is quite adept at pointing out all the little things that are going on. Love them or hate them they are our watchdogs while we sleep. I send them money. I read their magazines. I pay attention to what the ILA reports. (Institute for legislative action) and
    I provide for their future in my will.
    They are hated by the left and that is good enough for me.

  3. gitarcarver says:

    The US Constitution’s 2nd Amendment is a federal law,…….

    With all due respect, the 2nd Amendment is not a “law,” Federal or otherwise.

  4. Jus Bill says:

    Then there are the so-called “Red Flag Laws” in a few states that in effect assume you are guilty until proven innocent and provide for “temporary” confiscation of your property (i.e., firearms and ammunition). That resulted in a death in MD not too long ago.

  5. HMCS(FMF) ret says:

    Ex-PH2… well written.

    Something to be stated – Woodrow Wilson and FDR (two of the libcucks biggest heroes) had no problems trying to take away the rights of people during the World Wars.

  6. Wilted Willy says:

    As usual Ex, you are right on the money!

  7. Cthulhu says:

    While I am pro-gun rights your argument is pretty selective with history.

    For more than the first hundred years of US history state and local jurisdiction were free to ban guns within their jurisdiction BECAUSE of how separation of powers under the 10th Amendment was interpreted. Namely that the 10th Amendment and the constitution only applied to limiting federal powers.

    And thus the Bill of Rights and federal law could not protect citizens for gun bans and seizures by state jurisdictions.

    Careful what you wish for.

    • luddite4change says:

      Well, good on the Republican’s for passing the 14th Amendment, to end such quibbling.

    • SFC D says:

      I’m thinking the reason state and local jurisdictions were historically able to get away with such bans was because the people affected by the bans were largely ignorant of the law and constitution. No, I can’t prove that, it’s strictly my opinion and I’m open to enlightenment. I just have a good understanding of how law and order worked in the wild wild west, and a local Sheriff or town Marshall wielded a hell of a lot of authority, some of it probably very questionable constitutionally.

      • 11B-Mailclerk says:

        Also, because the bans largely fell on the various outcasts and bottom-tier folks.

        The Jim Crow laws, aka black code.

        Funny how the same party keeps going back to that hate-filled Jim Crow well, time and again. Same Jackasses, again and again.

      • Ex-PH2 says:

        There is a huge difference between mid-19th century America, after the Civil War when there were 36 states, and now, with 50 states.
        Things have changed enormously in the last 150 years, including but not limited to states rights versus federal rights.

  8. David says:

    Most of the matters which you call ‘authority’ are better described as fundamental RIGHTS which can not be taken away or defined by federal or state law, usually described as Divine Rights. Life (implying also self defense in support of it) is first, for very good reason.

  9. Cthulhu says:

    Now that the SCOTUS is more conservative leanings than it has been in a century we are going to see a flip in the national political divide.

    Libs will be increasingly promoting their agenda through state legislation and referendums and them arguing states rights to defend them from SCOTUS decisions.

    So we will be seeing dems become the greater advocates for state rights and republicans increasingly arguing against them when it comes to adjudicating issues like this.

    In that future your argument will not age well.

  10. 2/17 Air Cav says:

    If the language of the Constitution is so straightforward, why do we need a Supreme Court to say what it means and to declare when a law or executive action is contrary to it? For 200 years the 10th Amendment was regarded as a reiteration of the entire design of the Constitution’s Framers. That is, the Constitution itself sets forth the powers of the Federal gov’t. If the power isn’t expressly vested in the Congress, the Chief Executive, or the Judiciary, it is a power that does not belong to the Federal gov’t. But not everyone was so sure things would always be seen that way, so the 10th A was included in the Bill of Rights. Accordingly, it was long regarded as a truism and nothing more. The Interstate Commerce Clause is the killer. Thanks to the Supreme Court, the ICC has been used effectively to get Federal tentacles into things one would think would be purely state matters. So, what happens when the 10th A and the ICC run into one another? It happened in the 1992 of New York v. United States, a case in which the Feds dictated to states what they must do with radioactive waste. The Supreme Court, in its Solomon-like wisdom, cut the baby in half. When it comes to Con Law, many people know a little and a few know a lot. And even among the few, there is great disagreement, and that’s why few Supreme Court decisions are unanimous.

    • 5th/77th FA says:

      Boom! Knew I could count on your A/C or Claw, maybe Hondo bringing in the big gun. Ex did a fine job bringing this one in and hit some fine points. Main thing we the people have to do is know and understand that congress critters become some of the lowest most nefarious critters on Earth. They may not start out that way, but they become that way. The biggest thing SCOTUS has to do now, it seems, is declare so many of their tricky tricks to be Unconstitutional. A lot of Presidents and innumerable congress critters have tried their best to end run their way around the Constitution FOR THEIR OWN BENEFIT. Wow what a surprise. The late unpleasantness of 1861-1865 did establish that the feds can force the states to do what they want them to do. Old Abe did do a large amount of “bending” the laws, and in some cases did actually break a few. Suspension of the writ of habeas corpus ring a bell? And yes, a lot of this does go back to the Whiskey Rebellion. And what was the basis for that? Taxes! As always follow the money. From before the beginning of this great Republic, the fights have been about unfair/over burdening taxes. That 1861-1865 deal was more about the whole tariff thing in the beginning. The political football made it to become, historically, over the slavery issue. Preserving the Union and keeping the tariffs for the Feds was Abe primary concern. As posted above, Wilson and FDR, went a long way towards putting more federal control over our lives. It is the duty of we the people to maintain Eternal Vigilance to keep us free. And the only way to ensure that is to maintain the 2nd A.

    • rgr769 says:

      As I have said here before, my Con Law professor was Justice Kennedy (when he was a judge on the 9th Circus). I have been highly disappointed with some of his rulings in the past ten years because they are at odds with what he taught us the Constitution meant and how it should be interpreted by the courts, based upon existing precedents.

      • 2/17 Air Cav says:

        I have always found it amusing that the Supreme Court assumed the power to declare an act by another branch to be unconstitutional when, as you well know, that power cannot be found in the Constitution.

        • 11B-Mailclerk says:

          I am waiting for Trump to “discover” that as the co-equal of SCOTUS, he can find lesser court rulings unconstitutional.

          When everyone flips their collective wigs over that, he says, “OK, then -only- the Supreme Court, my co-equal, can address my actions as President, as -only- Congress can via impeachment.”

          Popcorn?

          • 2/17 Air Cav says:

            It is one of the greatest mysteries, miracles, and miseries of our Republic that the small, unelected group of lawyers can make rulings that are enforced by nothing other than their say-so. The group says that abortion is okay. It’s suddenly okay. The group says that mandatory health care is a tax. Okay, it’s a tax. The group says that marriage bewteen people of the same sex is a fundamental right. Okay, it’s a fundamental right. The group says that the Bill of Rights applies to the states only when they say so. Okay. If all of that isn’t enough, that group of lawyers may be (and often is) as few as five in making such determinations. But that’s because they don’t all use the same crystal ball.

            • desert says:

              OK, with all this in mind, doesn’t it behoove people to go back to the original laws and the original “law giver”, Almighty God? Read the Bible people and see what Jesus said about it, THEN YOU WILL KNOW THE TRUTH AND THE TRUTH SHALL SET YOUR FREE!

  11. CDR_D says:

    Minor quibble… Mushroom Cloud Eric (Swalwell) has been in Congress for a while now, having ousted the execrable Fartney (Pete) Stork a few years back. He was re-elected, true, but not newly minted.

  12. ArmyATC says:

    “The 10th Amencment is quite clear. It is within the rights of each and every state government to create legislation regarding owning guns. It is, in fact, reserved to the states to create such laws as they see fit…”

    Someone correct me if I’m wrong, but didn’t the SCOTUS incorporate the 2nd Amendment – the last amendment to receive such treatment – with the Heller or McDonald decisions, thereby extending 2nd Amendment protections to state citizens and making the states have to acknowledge the individual right to keep and bear arms and follow the same restrictions as the federal government?

    • Ex-PH2 says:

      Yes, in McDonald v. Chicago (see below), but my point was that the 10th Amendment backs up the 2nd Amendment, and the 14th amendment supports the 2nd Amendment, as well.

      • 2/17 Air Cav says:

        “[T]he 14th amendment supports the 2nd Amendment, as well.” The DP clause of the 14th A is not support for the 2nd A: it is the mechanism by which the 2nd A is applied to the states. As for the 10th A supporting the 2nd A, I have no idea what that means.

        • NEC338x says:

          Not meaning to step on Ex-PH2’s response here. Regarding the applicability of the 10A to the 2A, it is supportive because of its declarative nature establishing that the People shall not have their possession of arms restricted. The Preamble to the BoR makes it clear that the intent was to have them fully enrolled in the Constitution.

          “The Conventions of a number of the States having at the time of their adopting the Constitution, expressed a desire, in order to prevent misconstruction or abuse of its powers, that further declaratory and restrictive clauses should be added: And as extending the ground of public confidence in the Government, will best insure the beneficent ends of its institution.”

  13. 2/17 Air Cav says:

    Samuel A. Alito, Jr. (Author)
    John G. Roberts, Jr.
    Antonin Scalia
    Anthony M. Kennedy
    Clarence Thomas

    McDonald v. Chicago 561 U.S. 742 (2010) And those are the five justices who said in that case that, indeed, the 2nd A is incorporated as applicable to the states c/o the 14th A.

    • rgr769 says:

      That was one of his rulings I found consistent with what he taught us in class. But in many other cases, he tends to vote with the liberal justices, the most notable example being the gay (same sex) “marriage” case.

      • 5th/77th FA says:

        So it is decided that the three of us will just go ahead and propose the formation of the new, for the people, by the people, of the people gubmint. rgr769 will take over the Judicial, 2/17AirCav will handle Executive, and ExPH2 will handle Legislative Branch. I’ll be her Chief of Tasting of the State Dinners Menus. Commissioner Wretched will handle the press, AW1Ed SecDef, Graybeard SecEd, Hondo Homeland Security, Skyjumper Chairman JCoS, Dave Hardin Sec State (he has experience colluding with Soviets), TSO as NSA, Monkey Code Hippie Chick CIA, and on down the list of TAHellion Deployable Deplorables. Subject to the vote of LEGAL American Citizens. Hell, we couldn’t do any worse than some of the crap we all have seen, and who knows, within a week, maybe 10 days we’d have most the bigger problems solved. After all, we do the difficult immediately, the impossible might take just a tad longer.

        • 2/17 Air Cav says:

          Um. If I am to be chief exec, I want absolute power. I don’t play well with others. Also, I’m not averse to free and fair elections, but I’ll want voters who are citizens, at least 21 if not in the military or are HD Veterans, can pass a basic citizenship test, and can speak English, among a few other things. (And with this daydream in mind, I’m gonna hit the hay.)

          • rgr769 says:

            What’s an HD Veteran? Those with a Harley?

          • Ex-PH2 says:

            I want (demand!) to see a requirement to pass both state and US Constitution tests restored and/or emplaced in all school curricula. And if you can’t pass either or them, you have to go back to the 6th grade and start over.

            And no more SJW crap curricula in schools. English, at least 2 foreign languages which may include Latin, real math, real science, real history, home ec and shop, and art.

            • 2/17 Air Cav says:

              You’re legislative. Get the bill to my desk and I’ll sign it. Pronto.

            • 5th/77th FA says:

              We have the basis for our troika; use of that term will placate the socialist temporarily. I’m sure that President 2/17 Air Cav will have no problem appointing Sister Mary Grace as Sec Ed. Remember we can always bribe…err convince the other 2 branches and cabinets to see things out way by using gravy…and biscuits…sausage wrapped in bacon…and stout. 26Limabeans has the bottle opener. charles w is in the basement. Careful, he has a stapler and is not afraid or too drunk to use it.

  14. NEC338x says:

    Pleased to report that after the election earlier this month, IL is up to 38 counties. Local newspaper that covers deep blue St. Clair county ran this 4 days ago, bemoaning the increase as well as the lack of additional gun “safety” legislation.

    https://www.bnd.com/news/local/article221411790.html

  15. Docduracoat says:

    I think we should call a constitutional convention and rewrite the second amendment without the first clause.
    “The right of the people to bear arms shall not be infringed “
    No need to mention a well regulated militia.
    I would also re-word the amendment to be more clear as follows:
    The right of the people to bear weapons of war equal to those borne by the army and police shall not be infringed.
    That should stop all those pesky bump stock and assault rifle bans

Leave a Reply

Your email address will not be published. Required fields are marked *