Does the 2nd apply to the states

[Hugh Damright]

Some states did not want to abide by the Constitution's limitations and its protection for all men's rights, including blacks (slaves) and decided they wanted to leave the Union and exempt themselves from the limits in the Constitution.

Quite the contrary, the US Constitution did not create a central government empowered to "protect our rights", it was however created to protect the States' right to slavery ... one region seemed to be exempting itself from the limits of the US Constitution by trying to interfere with the States' right to slavery, so another region had to secede in hopes of preserving free and constitutional government. Slavery was not unconstitutional.

 

[Hugh Damright]

I think the word "right" has many meanings, and there are many kinds of rights ... the way I tend to look at it, the word "right" generally regards something that is proper/right according to some given system e.g. a natural right is something right by nature, a divine right is something right by religion ... I tend to see bills of rights as primarily regarding political rights i.e. principles that are right according to the system of government framed by the associated constitution ... Madison referred to these as "dogmatic maxims", and he went on to say that regardless of what type of right is declared by a bill of rights, that the intent and purpose is to limit the government framed by the attached constitution ... here is part of what Madison said about it when proposing a US Bill of Rights to Congress:

"In some instances they [the existing (State) bills of rights] assert those rights which are exercised by the people in forming and establishing a plan of government. In other instances, they specify those rights which are retained when particular powers are given up to be exercised by the legislature. In other instances, they specify positive rights, which may seem to result from the nature of the compact. Trial by jury cannot be considered as a natural right, but a right resulting from the social compact which regulates the action of the community, but is as essential to secure the liberty of the people as any one of the pre-existent rights of nature. In other instances they lay down dogmatic maxims with respect to the construction of the government ... But whatever may be form which the several states have adopted in making declarations in favor of particular rights, the great object in view is to limit and qualify the powers of government"

I don't know why y'all are saying that the Framers never imagined that a State could infringe upon a right when most States had bills of rights to guard against that very thing.

I also don't follow this assertion that the US Constitution is written in plain English, while at the same time we construe the 14th Amendment such that the word "privileges" means "inalienable natural rights" ... I think the plain english meaning is that an inalienable natural right belongs to everyone while a privilege belongs to a select/privileged group.

 

[Glenn E. Meyer]

We are not doing a discussion of slavery and the merits of the Confederacy as champions of liberty or whatever.

Please don't go there.

Glenn

 

[Al Norris]

Hugh, you continue to get this wrong.

I also don't follow this assertion that the US Constitution is written in plain English, while at the same time we construe the 14th Amendment such that the word "privileges" means "inalienable natural rights" ... I think the plain english meaning is that an inalienable natural right belongs to everyone while a privilege belongs to a select/privileged group.

Privileges are those political rights (like Madisons mention of Trial by Jury) that are accorded to citizens of the social compact.

Immunities are those rights that were considered natural to all men.

The phrase, taken together, means all the natural rights and the political rights that are accorded to Citizens. Aliens (those not citizens) within the US, are accorded the immunities and protected by due process. The Equal justice clause, accords aliens some privileges, but not all.

 

[BGutzman]

I don't know why y'all are saying that the Framers never imagined that a State could infringe upon a right when most States had bills of rights to guard against that very thing.

Certainly you have a point here, but I would be willing to bet they would be very troubled to see where where are today concerning the second ammendment.

I do think the constitution was intended to be plain english and the concepts well within the grasp and understanding of any common person of the era even if they couldnt read it directly.

I have stong feelings concerning this and I know others, including some staff members may strongly disagree. Im a constitutionalist on the left / right scale....

We all have our points I find it hard to believe otherwise but I am open to everyones thoughts.

 

[Tom Servo]

Thus, they sent it back down to the lower court for an evidence hearing to find out if a sawed off shotgun with a barrel of less than 18" could be an effective tool for militia duties.

Slightly off topic, but there's a stinging irony in the Miller decision in that sawed-off shotguns were used for military purposes in World War I. They made excellent trench-clearing weapons and were often used by guards in POW camps.

Among Justice McReynolds' personal flaws was a vein of laziness. He was stuck authoring the opinion, and he did so with no excess of effort or research.

Quite the contrary, the US Constitution did not create a central government empowered to "protect our rights", it was however created to protect the States' right to slavery

I'm really gonna need to see a citation backing this up. Last time I checked, states don't have rights; they have powers. People have rights.

 

[gc70]

US. vs Miller (1939) seemed to indicate that firearms and weapons suitable for militia or military use, would be protected. They weren't sure a sawed off shotgun was useful for militia duties (military use) so they couldn't reach a decision as to whether the 2nd A. protected the individual possession of such a weapon. Thus, they sent it back down to the lower court for an evidence hearing to find out if a sawed off shotgun with a barrel of less than 18" could be an effective tool for militia duties. That's as far as it ever got, because Miller had died and his partner never bothered to show up in court.

A few tidbits about how strange Miller actually was:

• Jack Miller and Frank Layton were indicted for violating NFA34 and Judge Ragon refused to accept their guilty pleas;
• Ragon issued a 5-sentence decision quashing Miller and Layton's indictments and declaring NFA34 unconstitutional;
• The decision was appealed to SCOTUS and Miller and Layton's public defender did not file a brief or make oral arguments;
• SCOTUS reversed Ragon's conclusion about NFA34 and remanded to reinstate Miller and Layton's indictments;
• Miller had been killed in the interim and Layton pleaded guilty, so there was never really a District Court trial, as such.

Slightly off topic, but there's a stinging irony in the Miller decision in that sawed-off shotguns were used for military purposes in World War I. They made excellent trench-clearing weapons and were often used by guards in POW camps.

Justice McReynolds was considered lazy, but in Miller he only said that no arguments had been presented that sawed-off shotguns were military weapons, which was not surprising since only the government presented arguments in Miller.

 

[Bartholomew Roberts]

And of course Ragon (the District Court Judge in Miller) had been a huge supporter of gun control in the past, including measures much more severe than the NFA. Almost like he picked a nice, weak case to send to SCOTUS.

 

[apr1775]

It may be helpful to view the 14th amendment in its historical context. The 13th, 14th, and 15th amendments were all ratified one right after the next. The 13th abolished slavery. This created a problem of having a bunch of free people with no citizenship. The states, north or south, did not see the recently freed slaves as citizens. This issue was addressed by the 14th amendment. The 14th created a class of citizenship for these people. They basically became citizens of the Federal government. The 15th told the states that they must allow these citizens to vote. The incorporation doctrine would lawfully apply to the federal government protecting the rights of its 14th amendment citizens against state actions. Odd thing is that the freed slaves have passed on, but the government still operates as if it has 14th amendment citizens.

As long as we are going to live under the incorporation doctrine, I'd prefer the 2nd amendment to be included. I'd prefer even more to not be practicing it at all.

Here's a good essay on the 14th amendment.
http://originalintent.org/edu/14thamend.php

I'd like to see an amendment to repeal the 14th and place it with one to state that the qualifications for natural born citizenship apply to people equally, no matter where their ancestors are from.

 

[Brian Pfleuger]

As long as we are going to live under the incorporation doctrine, I'd prefer the 2nd amendment to be included. I'd prefer even more to not be practicing it at all.

Well said.


I don't think that the 2nd (or any other amendment) was intended to apply to the states for the simple reason that I don't think that the founders envisioned the people losing control of the state governments. The states are supposed to be close to the people, under our control. I don't think that we have control of TOWN governments the way that we are supposed to have control of STATE governments.

The only reason that "incorporation" is even a word that applies to constitutional law, IMO, is because we have lost control of state governments.

 

[Old Grump]

Here is the bare knuckle truth... The 2nd ONLY applies to the FEDERAL government. Because of the 9th and 10th amendments, your state MAY completely outlaw guns- it depends on your STATE constitution. How else can you explain the various gun laws each state has?

Bare knuckle truth is that the 2nd amendment applies to the individual and only ...

The rest of a very long post has been deleted because I don't like to........lets just say it's better deleted.

 

[gc70]

I don't think that the 2nd (or any other amendment) was intended to apply to the states for the simple reason that I don't think that the founders envisioned the people losing control of the state governments. The states are supposed to be close to the people, under our control. I don't think that we have control of TOWN governments the way that we are supposed to have control of STATE governments.

A great observation. When the United States was formed, the entire nation's population was less than 4 million, or slightly less than the current population of the Atlanta metro area. The most populace state was Virginia, which had a population less than the current population of the city of Indianapolis.

 

[Aguila Blanca]

Being of a somewhat literal bent, and not being a lawyer, I tend to take a more rational (to me) view of the whole mess. Irrespective of what the courts have claimed the 2nd Amendment does or does not say or regulate or to whom it does or does not apply, I believe to arrive at an understanding of the original intent one needs only to read the Bill of Rights.

The chaps who drafted that document were generally learned men. They knew how to speak and to write English. They certainly knew who and what the Federal government and the Congress were. In the 1st Amendment, where they intended to limit the Federal Congress, they specifically said "The Congress" shall make no law ...

But in the 2nd Amendment, there is no mention of the Congress. There is only a blanket prohibition: The RKBA shall not be infringed.

Of course, I also take note of the fact that it IS a blanket prohibition. There is no toehold in the 2nd Amendment for "reasonable" regulation. Regulation IS infringement, and the 2A does NOT say the RKBA shall not be "unreasonably" infringed.

But ... nobody has asked for my opinion, so I reckon the blackrobes will make do on their own.

 

[Tom Servo]

But ... nobody has asked for my opinion, so I reckon the blackrobes will make do on their own.

No, you're right on. Whether the black robes agree is another matter. A week from Monday, we'll know.

 

[Brian Pfleuger]

Of course, I also take note of the fact that it IS a blanket prohibition. There is no toehold in the 2nd Amendment for "reasonable" regulation. Regulation IS infringement, and the 2A does NOT say the RKBA shall not be "unreasonably" infringed.

Ah! But we must apply a reasonable standard of common sense. Is any right EVER absolute, inviolable? I don't think so.

Life?
Liberty?
Pursuit of happiness?
Free Speech?
Religion?

None of those are absolute, and none of them should be. The RTKBA is no exception. Should Bill Gates be able to own nuclear weapons? I think not. You'll note that the amendment does not clarify "arms". It doesn't say "rifles", "pistols", "cannons" or "bombs", it says "arms".

It a world of "absolute" freedoms, what we would have is anarchy, not freedom.

 

[Gary L. Griffiths]

There is no toehold in the 2nd Amendment for "reasonable" regulation. Regulation IS infringement, and the 2A does NOT say the RKBA shall not be "unreasonably" infringed.

Sorry, I'm with Peetza on this one. If the 2nd Amendment is absolute, then how can we deny a convicted murderer on death row the right to keep and bear arms?

Does anyone believe that the Founding Fathers intended criminals in prison to have the right to keep and bear arms? Thought not. Then the 2nd Amendment isn't, and never was intended to be, absolute.

The real interesting show is about to begin, as we eke out the definition of the word "reasonable" in court decisions over the next few years.

 

[RDak]

As usual, great discussion here on the 2A.

I'm getting so excited about the soon to be released McDonald decision that I can hardly contain myself.

Hopefully, ALOT of our questions will be answered?

Hurry up SCOTUS!!!

 

[BGutzman]

The 2nd Ammendment "MUST" apply to the states if we are to remain in within what the framers of the C onstitution (& Bill of Rights) intended. Remember the protections in the constitution are not new rights but rather rights that were agreed to be natural and inherent in all peoples. Any state that would not recognize these rights would almost certainly be considered tyranny if you are to look at a broad range of statements from the framers of the constitution.

The rights were built as limitations to government not as limitations to people.

George Washington himself wanted citizens to have sufficient arms and ammuniton to protect themselves from anyone who might seek to violate there freedoms (especially government). My interpertation of the words as he spoke them (not given in exact form here) is that you didn't need a judge or legal system to back you oppinion that something was tyranny but that you were able to come to this decision for yourself and thus empowered to protect yourself.

I would contend that in part the 2nd Ammendment wasnt just about allowing a person to protect themselves from harm due to BG's but it was directly intended to allow a person to fight back against government when the government decends to the level of tyranny. It was part of the vigilance that all men (and women) owed as a duty.

 

[Brian Pfleuger]

The rights were built as limitations to government not as limitations to people.

The COTUS was built as a limit to the FEDERAL government. The states were supposed to me under control of the people.

"Congress shall make no law establishing a state religion."

Do you realize that Massachusetts, I think one or two more states, had official state religions for YEARS after the constitution?

Why? How? Well, for one thing, the states are not "congress". For another, that amendment, and all the others, doesn't apply to the states.

Back in the days of the constitution, the people had FAR more allegiance to their own states than the did to the "United States". Who was the civil war general from Virginia that joined the confederacy only because Virginia did? The states were where they were involved, the states were under control of the people.

See, in those days, it was assumed that the states WERE the people. The actions of the state governments in modern times would have been unthinkable. It wasn't necessary for the COTUS to apply to the states. They wouldn't have removed the rights of the people. (As "people" was defined at the time, that's another discussion.) They WERE the people. The people wrote their OWN constitutions, and they included protections for their God-given rights.

The single biggest problem that we have today, the source of most of our other problems, is that we have long since lost control of the STATE governments. They are no longer of the people, for the people. They are of the bureaucrats, for the powerful and connected.

If we regained control of our state and local governments we would, by default, regain control of the Federal government.

 

[knight0334]

The COTUS was built as a limit to the FEDERAL government. The states were supposed to me under control of the people.

"Congress shall make no law establishing a state religion."

Do you realize that Massachusetts, I think one or two more states, had official state religions for YEARS after the constitution?

Why? How? Well, for one thing, the states are not "congress". For another, that amendment, and all the others, doesn't apply to the states.

Back in the days of the constitution, the people had FAR more allegiance to their own states than the did to the "United States". Who was the civil war general from Virginia that joined the confederacy only because Virginia did? The states were where they were involved, the states were under control of the people.

See, in those days, it was assumed that the states WERE the people. The actions of the state governments in modern times would have been unthinkable. It wasn't necessary for the COTUS to apply to the states. They wouldn't have removed the rights of the people. (As "people" was defined at the time, that's another discussion.) They WERE the people. The people wrote their OWN constitutions, and they included protections for their God-given rights.

The single biggest problem that we have today, the source of most of our other problems, is that we have long since lost control of the STATE governments. They are no longer of the people, for the people. They are of the bureaucrats, for the powerful and connected.

If we regained control of our state and local governments we would, by default, regain control of the Federal government.

That is not the case. The 10th Amendment is proof enough that there is a separation between the "states" and "the people" as two different entities.

The People wrote the US Constitution forming a central government. That constitution then created a means to form states, which also guaranteed each new state a republican form of government. The people then wrote each state's constitution either prior to or post constitutional ratification. As states entered the newly formed union under the constitution they were bound to the terms of the people's constitution as supreme law of the land, also any amends to the constitution there after. The people specifically reserved the RTKA to themselves in an amendment, which the states must honor as if it were part of the original constitution.

Legally, these present states did not exist prior to the US Constitution's ratification. They were states, colonies, territories, republics, of other charters, nations, etc. The US Constitution doesn't just set parameters of the central government, it also sets restrictions on the states in other Articles thus furthering the proof that the Constitution applies to the states as well.

Had the Founding Fathers wanted to share the Right to Keep and Bear Arms between the states and the people, they would have written the 2nd Amendment as they did the 10th Amendment.