It does not permit Congress to restrict rights /legislatively/, only to
create jurisdictions in which it can be done /judicially/, for private
disputes. The Constitution delegates only limited powers to Congress and
other federal officials and their agents. All constitutional rights are
/immunities/ -- rights against the exercise of powers by government
officials that are not delegated to them. Powers and immunities are
complementary, partitioning the space of public action between them,
leaving only a gray area of administrative functions that consume no
resources and don't impact anyone. The Tenth Amendment, restated, says
that we have a right not to have have Congress enact legislation that is
unconstitutional, thereby establishing a judicial jurisdiction to enable
anyone to petition a court to declare an act of Congress unconstitutional.
Where the issue can arise is when Congress exercises a delegated power
that incidentally burdens the exercise of a right, creating what is
called an "undue burden" on it. In a complex Universe almost any
exercise of power has impacts on the exercise of almost all rights,
positive, negative, and lateral, in at least some small ways. The
constitutional requirement is that it never be done deliberately and
when found to do it inadvertently, minimized.
Consider the speech right. What the First Amendment is saying, to start
with, is that Congress can create a jurisdiction in which one person may
sue another for civil libel, but not enact a statute making it a crime
to libel someone. (See the debates on the 1798 Sedition Act
http://www.constitution.org/rf/vr.htm .) Similarly, for the right to
keep and bear arms, Congress may create a jurisdiction in which a person
(in one state) can sue a person (in another state) for recklessly
discharging a firearm in his direction, seeking a disablement of his
right to discharge firearms in a way that might cause such a danger
(such as by requiring him to use a backstop for rounds fired in that
direction). It can also issue militia regulations in which militiamen
are to bear only unloaded firearms in parades or for ceremonial
occasions. It may not make it a crime to possess a weapon if one has
been convicted of a crime by a state court and the sentence did not
explicitly include a disablement of the right to keep and bear arms. See
http://www.constitution.org/col/psrboa.htm , because, contrary to
/Wickard v. Filburn/ and other wrongly decided cases, the power to
regulate (commerce) does not infer the power to impose criminal
penalties, either directly or through the Necessary and Proper Clause.
Greg Jacobs wrote:
=================
At 04:28 PM 4/27/2008, Jon Roland wrote:
A right not being absolute doesn't mean the government has the power
to restrict it legislatively. Constitutional rights are immunities
against actions by government officials, not rules for adjudicating
conflicts of rights among private parties. Legislators can enact
judicial jurisdictions and statutes within which courts may, by due
process, disable the exercise of any right, upon proof that if not
disabled some violation of another persons rights would be likely to
occur, or as a penalty or compensation for having violated someone's
rights. But that does not imply the power to enable law enforcement
officers to arrest someone for violating a statute that seeks to
prevent some future injury, especially if the theory of causation
involved is unsound.
If "Congress shall make no law" is not absolute, then "shall not be
infringed" ought to be similarly non-absolute, thereby permitting
Congress to reasonably restrict the right in question. I believe that
to be the case but I am certainly open to being disabused of that
notion by hard evidence to the contrary.
--
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