Ron Paul and the Dred Scott Decision.

Referring back to Ken's post of last week on the odd fellows who surround the media's newly discovered darling Ron Paul, the original artist may have a follow-up post on the topic. What I have to say is in no way intended to steal Ken's thunder.

One of the things that makes Paul such a delightful eccentric on the political stage is that he interprets the Constitution strictly and literally. One consequence of such an interpretation is a federal government of vastly diminished powers, arrived at by way of the 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.") So for instance, if the Constitution doesn't explicitly give the federal government power to donate food to the starving children of India, those children must starve, assuming that Sally Struthers can't make up the difference. The BATF, CIA, DEA, EPA, FBI, FDA, IRS, NSA, all of those agencies regulating or policing things not provided for in Article I? Unconstitutional.

Now it's generally accepted among judges and lawyers, and by "generally accepted" I mean "unanimously except for the John Galt Professor of Constitutional Law at Al's Not-Necessarily-Certified College of Law of Alpine County" that the federal government has authority to legislate in a number of fields not specifically named in the Constitution, as part of its authority to regulate "Commerce" among the States and to pass laws "Necessary and Proper" to the administration of its specifically enumerated powers. Thus we have our nominally federal system, a marriage of equals between the United States and its constituent states where the feds, like a husband on Lifetime Television for Women, decide what to watch on tv, what the states can wear, who the states can see, while the states are allowed to clean the floors and cook dinner, and you better not burn it this time Mississippi!

Ron Paul, to twist that metaphor further, is like a special effeminate man-friend to the states. He believes they should be the empowered partners in the relationship, and maybe they should have a relaxing facial at a spa away from the kids, because that's the way a strictly literal interpretation of the Constitution says it should be. But like all special effeminate man-friends, Paul and his sort are ineffectual and limp-wristed. They've been getting a beating from those who support a relatively powerful federal government, which is everybody else, since the 1930s.

"But Paul is principled!" the libertarians with and without capitals cry. "We may not want to abolish Federal highways, but he's honest and he's probably right, historically speaking." It is true that the framers probably didn't intend to enshrine the right to a federally subsidized abortion in the Constitution. It's also true that much of Paul's appeal to libertarians, as opposed to the media who are all about Iraq, is that he's perceived as an uncompromising champion against those who believe that Congress, a federal judge, or some alphabet-soup bureaucrat should have the final say on whether your children brush with fluoridated toothpaste or celebrate Kwanzaa in school.

Except there's this little problem. Paul has introduced legislation to require all of the states to respect the concealed-carry firearms permits of other States, and he wants that enforced in federal court. In Pauline America, I, as a concealed carry permit holder of North Carolina, would be able to pack heat in Massachusetts, New York, or any other state where the citizens have decided for themselves that no one should do so. This would be a breathtaking expansion of federal power, even from a Pauline perspective. It would give virtually anyone the right to challenge state gun convictions in Federal court, and would grant virtually anyone the right to carry a pistol anywhere. All it would take for a convicted felon to acquire a concealed-carry license good anywhere in America is one state with lax residency laws and minimal permitting requirements. If a Las Vegas wedding is valid in South Carolina, why shouldn't a Texas concealed-carry license be valid in Vermont? In Pauline America, it would be, because Congress says so.

Dr. Paul is a champion of local government, except perhaps when it comes to what many of his followers view as the one legitimate function of government: keeping people from killing one another. Paul recognizes that different approaches may suit different localities, but if someone wants carry a concealed firearm, the least restrictive state makes the rules for everyone else. But if the federal government has the power to prevent states from enforcing their gun ownership laws within their borders, surely it has the power to interfere in other areas. Why should a citizen of Delaware, which has no sales tax, be required to pay a sales tax when he travels to another state? If Paul believes that the federal government has the power to intervene in local lawmaking on the gun question, it must on every question. And where does it stop? What if Wisconsin decides to issue drunk-driving permits to stimulate the beer industry? If Paul is correct that Roe v. Wade was wrongly decided, does that mean that Massachusetts can give its citizens abortion permits which must be respected in Texas?

The first decision by a court that I can think of which asserted federal power to the extent that Paul seeks, by implication, over state law is Dred Scott v. Sandford. In that case, by holding the right to own one specific type of property sacred, Chief Justice Taney, surely as good a libertarian as Ron Paul, ended up paving the way for a massive expansion of national government and the abolition of the property he sought to protect.

Fortunately for gun owners, Paul isn't likely to become Chief Justice any time soon.

Last 5 posts by Patrick Non-White


  1. Ken says

    Well, great. Now, in addition to pissing off the Paulians, you've pissed off the Lifetime TV fans AND gays who don't understand irony. Not to mention the gay Paulians, a group I hesitate to even contemplate.

  2. Patrick says

    In the interest of harmony, I've deleted all references to a certain group, in favor of "special effeminate man-friends." I doubt that Richard Simmons and Christopher Lowell will be too offended.

  3. badmedia says

    Hi, States have their own constitutions, and it is the federal governments job to protect the rights listed in the amendments. The preamble to the constitution defines the purpose of the constitution, and part of that purpose is the general welfare. There are 2 places that mention the general welfare, the preamble, and the articles. And of course, the general welfare clause is what everyone uses to distort that, when the preamble says the constitution defines them. Because they are the amendments themselves. So, in order for congress to take on new powers, they need to add amendments, pretty simply, and the general welfare clause gives them to power to enforce them. Because when you add amendments, by default it is applied to everyone equally.

    Go ahead, add healthcare – everyone gets it equally. Add education – everyone gets it equally. Plenty of reasons why those are a bad idea at the federal level(1 program at federal level, everyone gets screwed, hard to try new things, vs 50 programs working and trying things out and being more flexible, etc).

    You read the constitution as a document of limited rights. You read it as if the only rights the citizens of this country have are those specifically listed, and that is exactly opposite of how it was setup.

    The 10th amendment passes that down to the states. But make the false claim that it would be giving the states free control. Because the states themselves also have their own constitutions, pretty similiar, and the laws the states do not pick up, as outlined by the 10th amendment are given to the citizens, for individual liberty.

    Journalism isn't just about getting on the keyboard and slinging names, and not worrying about if you are slandering a person or not. And if you are posting only an opinion, well this is a good example for what they say about opinions, because it stinks.

  4. badmedia says

    oh, and yes I know you were talking about the commerce clause, but that one is a bit more complicated, and I was just showing how the democratic republic our founding fathers gave us is actually supposed to work.

  5. jmklein says

    There is also a constitutional provision known as the Second Amendment, that read literally, would seam to give a "right to keep and bear arms" to "the people". Not that states.

    The second amendment read literally secures a national right that states should not be allowed to interfere with, and should be readily standardizing registration for.

  6. Ken says

    So then, jmklein, I assume you would also apply the Fourth Amendment to the states? After all, it also has language about "the people" and does not mention Congress:

    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.

  7. Ken says

    Also, jmklein, let me ask you this: was your comment meant to defend and explain Paul's general position? If so, maybe you could explain this.

    The Fifth Amendment contains no language constraining its scope to the federal government:

    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.

    Right there, there's that reference to a right "of the people," just like you pointed out in the Second Amendment.

    Yet Paul explicitly argues that the Fifth Amendment does not apply to the states:

    If anything, the Supreme Court should have refused to hear the Kelo case on the grounds that the 5th amendment does not apply to states. If constitutional purists hope to maintain credibility, we must reject the phony incorporation doctrine in all cases – not only when it serves our interests.

    If the right given by the Second Amendment may be enforced against the states because the Amendment gives it to "the people," why isn't the same true of the Fifth Amendment?

  8. Patrick says

    badmedia, Dr. Paul believe that the Commerce Clause doesn't give the federal government power to prohibit possession within X distance of a school. How then can the feds, under the same Commerce Clause, compel states to permit gun possession, to a select class of persons (those holding foreign concealed-carry permits) anywhere within their borders?

    Surely if the first, relatively minor exercise of power is prohibited to the feds, the second sweeping exercise of power is likewise denied? Please explain.

    Or does Dr. Paul believe that the Second Amendment, which arguably grants an individual right to bear arms, is incorporated into the requirement that states guarantee due process under the Fourteenth Amendment? He doesn't believe that to be the case for the First, Second, or Fifth Amendments which protect equally important rights, so this would appear to be an incredible about-face on Dr. Paul's part.

    Or is this some sweeping redefinition of the Privileges and Immunities Clause that's utterly inconsistent with the plain text of the Constitution, requiring the states to recognize privileges and immunities of foreign citizens within their borders that they don't extend to their own citizens? Do enlighten me.

  9. Mark Gibb says

    I really enjoy this detailed discussion of actual Constitutional issues.

    I am a Ron Paul supporter, but I agree that his support of concealed carry permit reciprocity is incorrect. I also disagree with him on a number of other issues, but still whole-heartedly support him.

    What's at issue here is the "settled" legal doctrine of "incorporation", whereby limitations on Federal Power as listed in the Bill of Rights are applied to the States. I happen to believe that incorporation is wrong, but the vague wording of the 14th Amendment makes it a difficult issue.

    The one thing I have a hard time understanding is the somewhat dismissive tone toward the idea of interpreting the Constitution "strictly and literally". Isn't that how laws should be read? If not, then we have lawlessness. The problem is that the Commerce, General Welfare and Necessary and Proper clauses have been stretched so wide by the liberal interpretations of the Federal judiciary that there are very few checks on Federal government left. I don't think this is what the Founders intended, and I think it's time to start pulling back a little.

  10. Patrick says

    The post wasn't intended to dismiss the idea of strict legal interpretation Mark, and I apologize if that impression is conveyed. As a lowercase libertarian myself, I sympathize with the notion that lawmakers should be held to what they say and no further.

    But as a lawyer I recognize that the war was fought and lost in the 1930s, and fought again and lost for good reason in the 1960s. Victory isn't an option. We're left with rollback and containment.

    As for Dr. Paul, while I appreciate many of his ideas and stances, I find his hypocrisy and inconsistency on this issue and a few others galling. I begin to find the man more worrisome now that certain statements of Paul's concerning race are coming to light that weren't known when he was considered just some crank from Texas. And I find his unwillingness to denounce the George Lincoln Rockwell types (not to be confused with the Lew Rockwell types) around his campaign most troubling. I believe that Paul is a poor standard bearer for libertarians, and question whether he in fact is one. I do regret that nothing better presents itself.

    Thank you for stopping by, and please feel free to continue the discussion.

  11. Mike says

    This article is ridiculous.
    Ron Paul's bill regarding the concealed-carry license is simply to enforce a law that's already in place: the 2nd amendment. So all your other examples of drunk-driving and abortion permits carry no weight. The 2nd amendment guarantees the right to bear arms to all Americans, so strictly speaking, his bill should be unnecessary (in a world where the Constitution is followed), but unfortunately we can't get Congressmen or presidents who actually live up to the oaths they take ("to uphold, protect, and defend the Constitution").

  12. Patrick says

    Mike, you're quite wrong if you think that even in the earliest days of the republic anyone believed that there was a right to carry concealed weapons.

    See for instance, the firearm guaranties of the Kentucky consitution (1792), the Mississippi constitution (1817), the Missouri constitution (1821), and for those who think that only 1789 matters, the North Carolina constitution. All can be found here.

    If Dr. Paul believes that states didn't have the power to prohibit concealed weapons within their borders at the time of the adoption of the Constitution, he is mistaken.

  13. Mark Gibb says


    Sadly, I agree with you that the war to restrain the Federal government is lost, but I would add "restoration" to your "rollback and containment". It really hasn't been that long that we have had a lawless Federal government, and I think some concept of the Constitution limiting Federal power can be restored.

    I guess we'll have to agree to disagree on RP. Just because a person may not have every issue right doesn't mean they are wrong on the balance. I revere Jefferson the most out of all the founding fathers. He had a massively positive influence in the course of human liberty. He also took part the utterly abhorrent practice of human slavery. It doesn't mean he was wrong on liberty, he just couldn't get his 18th century mind to apply it to all human beings.

    As far as the guilt by association game that has been going on with RP, I just reject that. The campaign has said that they are not going to be sifting through donations looking for "bad guys". And out of the 10s of thousands of donations, only ONE, that I'm aware of, has come from a "white nationalist" guy. One other thing – this guilt-by-association story hasn't really hit the MSM yet. I think the reason that Paul has not denounced these groups is that is would be a really dumb move politically. It would be like a politician just saying, out of the blue, "I don't beat my wife!". If RP makes an announcement about this non-story, it would look really odd to the people that don't follow this stuff like we do. So, ignore all the noise in the blogosphere and let your record speak for itself.

  14. Mike says


    It doesn't matter what people believe or believed.
    The Constitution, plain and simple, gives me the right to bear arms, in any way, shape, or form. If you somehow doubt those clear words, go back and read the individual writings of the founding fathers, and their intents. (Federalist Papers, etc).

  15. Patrick says

    Mark, fair enough, we'll disagree about Dr. Paul and I'll concede that it's refreshing to hear the name of a man who believes that National Public Radio should be abolished mentioned on All Things Considered.

    Regarding, "I don't beat my wife," when I'm giving a witness my deposition preparation spiel, and I'm explaining the sort of question to which he should respond that he doesn't understand, and the asking attorney should rephrase it, "Have you stopped beating your wife?" is always the first example I use.

    Again, thanks for stopping by.

  16. Ken says

    Mike, I'll ask you the same question I asked jmklein: if the "people" language in the Second Amendment means that we have rights enforceable against the states, why doesn't the language of the fourth and fifth amendment mean the same thing? How can Paul consistently believe that the federal government oversteps when it protects Fourth and Fifth amendment rights from state encroachment, but errs when it fails to protect Second Amendment rights from state encroachment?

  17. Patrick says

    Mike, I've read the Federalist Papers, yet I'm unable to recall the Federalist in which Madison, Hamilton, or Jay addressed the right to carry a concealed firearm. Historically, the carrying of concealed weapons was prohibited in the colonies from which this nation originated, as well as at English common law, which informs our understanding of the law as it existed in 1789. Can you point me to the relevant Federalist?

    I'll echo Ken's question about the Fourth and Fifth Amendments, and ask as well that you point me to a Federalist which explains why the rights to be free from warrantless searches and seizures, from compelled self-incrimination, and to property apply to the federal government but not the states.

    I recognize that you may disagree with Dr. Paul as to incorporation of the Fourth and Fifth Amendments. If that's the case, just let me know, but if not do explain why the right to bear arms which adheres in the People is different from the right to be secure in one's home which also adheres in the People, as well as the right to keep private property, which adheres to "person"s (surely the same as the People).

  18. Ezra says

    Wait, so the 2nd amendment let's anyone bear arms in "any way, shape or form?" Do people honestly argue that the 2nd amendment supports a right to bear concealed arms anywhere? Yikes!

    At least the Paulies have stopped threatening to bring the wrath of the internet down upon us…

  19. Britton says

    I laughed out loud while reading your article. Great sense of humor.

    You have successfully nitpicked and blown out of proportion a minor and easily debunked shortcoming in the philosophy of liberty. Good for you.

    I'll be impressed when you can tell me which candidate is better than RP and the reasons why.

    Vote Ron Paul!

  20. Patrick says

    Britton, I've nitpicked and blown out of proportion (I agree) a minor and easily debunked presidential candidate. Or do you believe that Ron Paul is the philosopher of liberty?

    As for candidate endorsements, it's too early to say. This blog traditionally awards its endorsements on the same schedule as the New York Times.

  21. John Howard says

    If you believe in equality, you believe that everyone has the same right to bear arms anywhere that the cops do. No one really believes that society should be rid of guns. What the gun controllers want is a society ruled by government gunslingers – guns everywhere, but only in the hands of the ruling class (cops).

    Why is OK with such people for an armed cop to visit a kindergarten, but not an armed parent?

    Gun controllers are merely totalitarians, disarming their victims with anti-gun rhetoric.

  22. badmedia says

    The limit of the 2nd amendment is easy. You only need to look at property rights. If a weapon you have – such as a big bomb, would infringe on the property rights of others, then it isn't ok. But guns and such, even fully automatic are legal.

    Gun control is just dumb. It assumes that by making them illegal, it stops the action. When the truth is, that making them illegal only keeps the guns out of law abiding citizens. If I could rid the world of guns tommorow, and nobody would have any, nor could they make or invent one, I'd certainly get rid of all guns. But I am smart enough to realize that isn't possible, criminals don't care about the law, and you are just giving the criminals more power over people, and taking away the law abiding citizens means to protect themselves. Such laws are made with the intent of taking guns away from bad people, but that just isn't really who loses them, as only a law abiding citizen would give them up.

    The constitution is the LAW for the government to follow, as set forth by the people. The constituton does NOT tell the government what it CAN'T DO, it tells the government what it's job is and what it MUST DO. This is laid out in the 10th amendment, which is what I was responding to before, and why I mentioned the general welfare clause(As it is warped, yet actually defined).

  23. Patrick says

    badmedia all of that is very nice. I'll add that I've heard it all. Some of it those arguments I find convincing and some of them I don't, but they're not germane to the topic under discussion.

    None of what you write answers the questions posed to you above. In fact it's entirely nonresponsive. Would you care to answer now?

  24. says

    Ron Paul is a nice guy and all, but if you want a real candidate with real values, then you want Hillary Clinton. We need some change in America and we need it now.

    I like to think of America as a suffering patient, where Hillary is an experienced doctor. What we need here is some good medicine.

  25. Patrick says

    I understand that there are people who actually enjoy receiving an enema, but I'm not one of them,

  26. Ezra says

    Bad media, by the logic you use to prove that gun control is dumb, aren't most laws dumb? Speed laws, shoplifting, 2nd degree murder?

    You know, I am still a little surprised that Ron Paul is not being recognized for what he really is, the Dennis Kucinich of the Republican Party. I mean they both are ardently anti-Iraq, they both have nutty ideas (a cabinet level Department of Peace, and abolishing the IRS) and neither has a snowballs chance of winning. That being said, I bet Kucinich is bummed he never thought of Dr. Paul's cool idea of a handwritten fundraising letter (

  27. Mike says

    > aren’t most laws dumb? Speed laws, shoplifting,
    > 2nd degree murder?

    Not a good analogy. Making those things illegal doesn't
    take away our right as guaranteed by the Constitution.

  28. Patrick says

    Mike, we could have a much more productive discussion if you would simply answer the questions that Ken and I posed above. I'll pose them again.

    How does one reconcile Dr. Paul's apparent belief that the second amendment right to bear arms adheres in "the people," to such a degree that it applies to the states as well as to the federal government, with his belief that the rights to be free from unreasonable search and seizure, to due process, and to property are not protected from state encroachment even though the Constitution also refers to "the people" in the Fourth and Fifth amendments?

    Where do you and Dr. Paul find authority for the proposition that the Second Amendment grants a right to carry concealed firearms when all of the historical evidence, such as state constitutions adopted by the founding fathers at the dawn of the republic, as well as the colonial and English law which defined the right to bear arms as it was understood in those days, indicates that the framers did not intend the right to include carrying of concealed firearms?

    Also, citations to specific Federalists addressing the right to carry concealed weapons would be appreciated, since you've informed me that the Federalist papers provide the key to this question.

    On that note, I'll add that reference to constitutional plain text isn't especially helpful. To understand what is meant by "the right to bear arms" we need to know what that right was understood to be by the authors of the amendment. Otherwise we share the faults of those who claim that the Constitution is a "living document," where any facially plausible modern definition of ancient language can be used to reinterpret its meaning into something far from what its authors intended for purposes of political expediency.

    If you're unwilling to answer these questions or to address these points, if you're just going to tell me that your assertions are self-evident, I'm going to have to conclude that you don't know what you're talking about.

  29. Mike says

    Patrick, I ignored your question because it makes no sense to me. I cannot understand your lawyer-speak. You wrote: "How does one reconcile Dr. Paul's apparent belief that the second amendment right to bear arms adheres in "the people," to such a degree that it applies to the states as well as to the federal government, with his belief that the rights to be free from unreasonable search and seizure, to due process, and to property are not protected from state encroachment even though the Constitution also refers to "the people" in the Fourth and Fifth amendments?"

    Who cares what [you contend] he "believes". The Constitution is there to read. It's black and white. You have an inalienable right to carry arms. You have an inalienable right against unreasonable search and seizures, etc. These are not freedoms given to us by the governement (federal, state, or otherwise). They are endowed to us "by our creator" at birth. The Constitution, the supreme law of the land, simply enumerates these rights, and reiterates that the job of the federal governement is to guarantee is these rights. I've read both version of your question half a dozen times, and I still don't have a clue what you're talking about.

    Patrick, you continuously ignore the valid points made by many posters here while asking the same nonsensical questions over and over, thereby changing the subject.

    I don't have the Federalist papers references on hand, and/or whatever other writings from Jefferson and others that I'd read in the past, but it was quite clear that the intent of the 2nd amendment was for the general populace to be free to arm themselves to that a revolution is possible if the government becomes tyrannical. In between working and raising my 5-month-old child, I'll see if I can find references. None of what I read supports what you contend. And unfortunately I don't have as much time as you to reply to every single post. Hopefully people can see that he who posts the most isn't necessarily correct.

    Finally, I'm free to post whatever I want here. I am free to pick and choose what I reply to, and in doing so that doesn't invalidate any of my viewpoints. By the same token, you replying to valid points made by others with questions that change the subject doesn't invalidate those viewpoints.

  30. Patrick says

    Mike, I appreciate that you're not a lawyer and that deconstructing run-on sentences isn't fun. That said, I don't believe my questions are that hard to understand, and I'm not going to rephrase them.

    As for what Dr. Paul believes, I care about it. The topic of this post is one of Dr. Paul's beliefs and its inconsistency with his avowed principles of federalism and commitment to local government, in favor of the exercise of federal power on a pet issue.

    Your references to inalienable rights with which we're endowed by our creator come from the Declaration of Independence, a wonderful document which has no force of law and no place in a discussion of amendments to the Constitution.

    As for the valid points I ignore, I'm not sure how I've done that. I tried to address Mark Gibb's points because I believe he was making points. But from badmedia and you, I've heard that the second amendment gives me an inalienable right to carry a concealed weapon anywhere, and that this is self-evident from its text. I don't find that to be self-evident, and I'm quite familiar with the text, its history, and its interpretations by courts. I could use lawyer-speak here, but that wouldn't be productive. It would be bullying condescension, and I don't want to go down that road. Do be assured that the questions that I have asked, concerning Dr. Paul and the history and meaning of the second amendment, are meant to show that I'm not ignoring points. The questions in fact address these points, with which I don't entirely agree. I'm asking for confirmation or evidence to ground the assertions you and badmedia make.

    As for other points I ignore, John Howard compared me to a totalitarian, so guilty as charged. I ignored him. Britton accused me of nitpicking but said nothing of substance, so he got a non-substantive reply. Vote For Hillary is a spambot, so I hope you'll understand why I didn't give her a meaningful reply.

    As for your penultimate point, you're not free to post whatever you want here. I could make you go away by pressing a button. Rest assured I wouldn't do that, but as a libertarian and a supporter of private property and gun rights you must appreciate that this is a private website. I would be well within my rights to "shoot" anyone who misbehaves here.

    Thank you for a more substantive reply, and do please feel free to continue this discussion.

  31. Mike says

    Oh, I see.
    I didn't realize what kind of site I was on.
    This is your site (and or Ken's) and so yes, you have every right to delete my posts if you so choose.

    I'm not likely to change your mind, and you're certainly not going to change mine. I prefer a libertarian world where I own myself and my property, versus a authoritarian or totalitarian one where the government owns and runs everything. So we'll have to agree to disagree and leave it at that. I see no sense in continuing this any further, especially since I don't have the time to properly research and rebut your various statement (even those that completely fly in the face of logic, in my opinion). Enjoy.


  32. Ezra says

    Is this really a binary proposition? Either totalitarian or libertarian? Both seem like somewhat grandiose over-exaggerations to me. Even if Pope Ron Paul is elected (and again, he has a Kucinich's chance..) the US will not become some Randian libertarian paradise where ExxonMobil presents Yosemite Park. If Hilary is elected (and Obama is starting to pick up some momentum, so it's not a fait accompli) we won't all be forced to wear headbands and power suits.

    I realize the internet is for rhetoric like Virginia is for lovers, but still…

  33. says

    Patrick, I must take issue with you on one thing first before I go into my comments on the concealed carry law. The people, via the states and ratification, delegated power to the government, not the other way around. Thus, in its protection of rights, the Constitution secures, not grants (see your wording in #9) the rights. In this context, the 9th and 10th Amendments take on quite a meaning.

    I know you may feel you're repudiated this line of thinking, but you've repudiated only the Declaration of Independence reference, not the operational demonstration shown by the concept of constitution and the means required to get it altered–approval of so many that it really does fall in, unless by fraud of amendment process (alleged in both 14th and 16th Amendment ratifications, and perhaps also applicable against the 17th Amendment), to being the people allowing government, not the other way around.

    You've asserted that no one accepted carrying of concealed weapons in 179x. I've seen considerable debate about this, with rather savvy historians arguing against one another, one stating as you do, and others citing examples and proofs of the opposite. I don't remember the arguments, but I remember thinking, "this ain't HALF settled."

    And honestly, given that many in the early government didn't even grasp that the documents they'd signed flatly outlawed slavery (something Jefferson knew, by the way, and tried to make happen, against much resistance), I don't necessarily think even the founding generation is the absolute authority on what the Constitution said.

    The Alien and Sedition Acts are yet another proof of this. Many, many pieces of terrible, illegal legislation were passed, poor judicial opinions were announced, and many other things that make "history of interpretation" a bit of a crock.

    To me, the text of the amendment is suffcient: "…shall not be infringed." It's intensely strong language, and it passed. It discussed bearing of arms, which was part of what should not be infringed. Infringed means "contained," "given to limits." That's really all I need, along with what you point up, which is that it adheres to the people.

    I am unaware of Ron Paul's taking a position that the 4th and 5th Amendments don't apply against the states. Makes no sense to me. I don't see you documenting that anywhere, though.

    If, howerver, he thinks as I do, that the incorporation doctrine has been used extensively as a means to deny rights (if they don't incorporate a right, it essentially ceases to exist, is how it's been working, and certainly it can't be construed against the states), then I agree completely with him. The protections asserted in the 14th Amendment should have been unnecessary, as the abuses they claimed to try to stop were illegal under the Constitution from the get-go.

    By the same token, however, I think that the law he proposes is also just such a cure for a disease that is impossible if our legislative and judicial branches were up to snuff. So, he should be elected President, and have his A.G. actively attack such laws as violate the Amendment by direct constitutional challenge. This, to me, is honoring the oath of President, and as A.G.

    I think your example about "drunk driving permits" is rather a red herring. Carrying a firearm is not an inherently negligent act. As to the "abortion permit," it too is a red herring, but on the grounds that it's a one-time, at-a-time thing. I happen, by the way, to disagree with Ron Paul's willingness to use law to put a stop to abortion.

    From my perspective, no permit should be required to carry a concealed weapon. Perhaps restricted areas–courtrooms, etc., but not just blanket restrictions by fed, state, county or local policy.

    I'll go even further out on a limb: convicts, if they're walking free, should be free to carry too. Hell, we let 'em vote. That's even more dangerous.

    A lot of people are terrified by this. But life is our first right. That does not change for the convict. If he robs or kills, and can't be trusted to be in public, then we have life terms and death penalties (sometimes administered by defenders) for such.

  34. Ken says

    kldimond, the links to Paul's essays rejecting the incorporation doctrine in other contexts are in my posts earlier in this thread.

  35. Mike says

    kldimond, thanks for an excellent and accurate post, one which I wish I had the time and expertise to have composed.

  36. Patrick says

    kldimond, thank you for an interesting post. To address a couple of your points, first as to whether the bill of rights grants or secures rights, my choice of words wasn't thought out. I agree that the question of whether rights are granted by a sovereign (or God) or secured (by the people to themselves) is a fascinating philosophical one, but it's a bit beyond the scope of a blog entry on the inconsistency of a minor presidential candidate. So take my choice of words in comment #9 as mere dictum.

    You do raise a number of interesting points about the direction in which Constitutional interpretation could have gone at the dawn of the republic, but in the legal (and I contend political) realm that direction is now settled, and will remain so in 2009 and beyond.

    As to whether I feel I've repudiated "this line of thinking," I don't feel that, nor have I set out to repudiate the line of thinking that the federal government is one whose powers are as strictly defined in Article I and no more. That line of thinking was decisively repudiated by historical events, in 1865, in 1937, in 1948, and in 1964. To return to an anemic federal government carrying out only the duties spelled in the Constitution, as opposed to one with broad power limited only by amendments and their penumbrae and the requirement that Congress making finding about commerce in whatever bill is under discussion, would require not the election of Ron Paul, but a second (or third, depending on whether failures are counted) American revolution. Even Scalia was willing to go along with the feds in Raiche.

    Also, you miss the emphasis of where the current Second Amendment battle before the Supreme Court is going to be fought in your focus on the phrase, "shall not be infringed." The emphasis is on what the "right to bear arms" is. While I'd like to see the eminent historians who believe that the right historically included concealed weapons, the question of what infringement means presupposes that one knows what the right is.

    Hopefully that will be clarified in a few months.

  37. Patrick says

    Also, kldimond, if you'd like to keep this going let's leave aside discussion about whether various amendments were legitimately enacted. There isn't a court in the land, from the Supreme Court to the Chico County Small Claims Court, that doesn't accept the 14th, 16th, and 17th amendments. Legal arguments assuming their illegitimacy belong in the realm of "What if Robert E. Lee had an Abrams tank?" alternative history rather than in discussion of current (non tax-protest, non militia movement) politics.

  38. Jim says

    Patrick, it seems to me that your lawyerly tendency to boil everything down to court decisions is too limiting.

    If a poor decision is made in some court and then upheld by a thousand other courts, it is still a poor decision.

    The Constitution is the supreme law of the land, and the writings of the founding fathers clarify what the "translation" or proper "interpretation" might be. There have been numerous court decisions, as you've pointed out, which (for example) no longer limit the size and scope of the federal government as dictated in Article I of the Constitution, and probably upheld since then. But those court decisions don't make it right.

    So in effect, you and some others here are arguing different things. You're arguing from a strictly lawerly view, and others are arguing from the point of view of where things are supposed to be (as set forth by the founding fathers).

  39. Patrick says

    Jim, I agree, but I'd add that I'm also thinking of things as they are, rather than as they're supposed to be. If arguing "from a lawyerly point of view" means accepting the law as it's interpreted by courts and working from there, guilty as charged.

    Again, to maintain a 1788 view of the law where all things are possible, ignoring over 200 years of actual history, is best confined to a discussion of fantasy and alternative history. I like Harry Turtledove too!

  40. Jim says

    I guess where you and many others differ is that just because something becomes law, it doesn't mean it should have. There are many, many bad laws. And to a certain degree, we all sometimes ignore bad laws. (Ever crossed a solid line on the road, or driven 56 in a 55mph zone?)

    "No one is bound to obey an unconstitutional law and no courts are bound
    to enforce it." — 16 Am. Jur. Sec. 177 late 2d, Sec 256

  41. Patrick says

    You guess wrong Jim. Like "many others" (are there any others?), I do believe that we have numerous bad laws, laws that should be repealed. Let's discuss drug policy sometime.

    But I do accept those laws and advise my clients to do the same, not just for philosophical reasons but out of pragmatism. It might be a great act of political theater to blaze up a spliff in a police station, but the end result will not be theatrical. If you file a 1040 claiming the Moorish Science tax credit, you'll find out that the constitutional and statutory legitimacy of the IRS is accepted by federal judges, who don't accept your arguments about Lincoln's last will and testament.

    Accepting the legitimacy of a law which has been upheld thousands of times by courts of course is not the same as agreeing that the law is a good one. If you wish to change these laws, voting for Dr. Paul may be your best option, and I'm glad we have the option to do so.

  42. says

    "That's the way it is, so suck it up!"

    Then, why am I here? Bad law is bad law; bad interpretation is bad interpretation, and legal careers are made and broken on breaking through the precedent and "settled" (read: established) law.