Thanks for the welcome and the compliments. I'm new here but I'm no newbie.
Hugh Damright wrote:
I am not aware that any States had to rewrite their Constitutions to conform to the Second Amendment, but rather they had to end discriminatory gun laws.
Tom Servo wrote:
2) That's a good question. Do you know which states still have "free white men" in their Constitutions?
I'd think that, in this day and age, the continued existence of such wording is probably an oversight, and one easily fixed by local action. Still, as long as the phrase was not used as grounds to discriminate, I wouldn't see it being a 14th Amendment issue.
Section 5 of the First Reconstruction Act (March 2, 1867) made the removal of such language a condition for re-admittance to the Union (together with ratification of the 14th Amendment):
"That when the people of any one of said rebel States shall have formed a constitution of government in conformity with the Constitution of the United States in all respects, . . . and when such constitution shall provide that the elective franchise shall be enjoyed by all persons as have the qualifications herein stated for electors of delegates, . . . and when said State, . . . shall have adopted the amendment to the Constitution of the United States, proposed by the Thirty-ninth Congress, and known as article fourteen and when said article shall have become a part of the Constitution of the United States said State shall be declared entitled to representation in Congress, . . . "
Ten rebel states held constitutional conventions between 1867-68 that produced constitutions in alignment with the US Constitution. Tennessee did not do so until 1870. Arkansas, Florida and Tennessee had the "free white men" qualifier prior to 1867; all were rewritten, removing the discriminatory language:
Arkansas:
"That the free white men of this State shall have a right to keep and to bear arms for their common defence." Art. II, § 21. (1836)
"The citizens of this State shall have the right to keep and bear arms for their common defense. Art. II, § 5 (1868, art. I, § 5).
Florida:
"That the free white men of this State shall have a right to keep and to bear arms for their common defence." Art. I, § 21. (1838)
"The people shall have the right to bear arms in defence of themselves and of the lawful authority of the State." Art. I, § 22. (1868)
Tennessee:
"That the free white men of this State have a right to keep and to bear arms for their common defence." Art. I, § 26. (1834)
"That the citizens of this State have a right to keep and to bear arms for their common defense; but the Legislature shall have power, by law, to regulate the wearing of arms with a view to prevent crime." Art. I, § 26 (1870)
I do not see how it is possible to argue that the states did not understand that the 14th made the entire federal Constitution (including the BoR and 2ndA specifically) binding upon them.
Tom Servo wrote:
3) Presser was as much about dispersing an armed parade as it was anything else, and it's quite problematic. Its eventual conclusion was to reassert the "states' rights" ideas of Cruikshank.
I find Presser intriguing for a couple of reasons.
I find very interesting Justice Wood's altering of the
Cruikshank holding from quoting the indictment, "bearing arms for lawful purpose" to "the right of the people to keep and bear arms."
"It was so held by this court in the case of U. S. v. Cruikshank, 92 U.S. 542 , 553, in which the chief justice, in delivering the judgment of the court, said that the right of the people to keep and bear arms 'is not a right granted by the constitution. Neither is it in any manner dependent upon that instrument for its existence. . . . "
That precise quote from the 2nd Amendment absolutely solidifies that the specific right protected by the 2nd does not flow from the 2nd, a premise that could only be surmised from Cruikshank's use of the indictment's characterization.
After re-affirming that the 2nd Amendment protected right to arms is not granted by the Amendment or dependent upon it in in any manner, the Court arrives at the unavoidable dilemma that the 2nd Amendment does not apply to the states (cites to
Barron, Fox, Twitchell, Cruikshank, etc).
Here's where it gets interesting for me.
Presser then seeks to discover if there is
any federally protection for the right to arms
held by the citizens of the states existing without reference to the 2nd Amendment. That is a very interesting tack to take IMO.
The Court first finds that the general militia concept is a fundamental component of this nation
as well as the states:
"It is undoubtedly true that all citizens capable of bearing arms constitute the reserved military force or reserve militia of the United States as well as of the states, . . . "
What does that fundamental tenet demand?
". . . and, in view of this prerogative of the general government, as well as of its general powers, the states cannot, even laying the constitutional provision in question out of view, prohibit the people from keeping and bearing arms, . . . "
There is then a federal protection interest in the
state citizen's right to arms and that protection exists on two planes.
It exists in the "general powers" (those laid out specifically in the Constitution) and in the "prerogative of the general government." I believe that word, prerogative, is describing an inferred power that exists as fundamental principle of our Constitutional Republic.
Again, because the Constitution promises to the states to forever provide a republican form of government (Article IV, § 4, "general power") a power is thus granted by inference to
keep that promise (prerogative); to secure the continuance of our
all of the founding principles.
The Court then addresses specifically the mechanism behind this federal power that binds state action. The states can not prohibit the people from keeping and bearing arms because that action would:
". . . deprive the United States of their rightful resource for maintaining the public security, and disable the people from performing their duty to the general government."
This is most definitely
not an affirmation of "state's rights." This explains a mingled dependence; the states are barred from disarming
their citizens because those armed citizens are also the resource upon which the security of the federal government depends.
The principle works both ways; the federal government can not act to disarm state citizens because the states rely on those people for
their security.
Which is a reason the 2nd Amendment exists of course.
Thanks again for the welcome!
.