Does the 2nd apply to the states

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Government can always be corrupt and the corrupt will always use any and all means available to further their ends.

The 2nd amendment is a right of the people not a right or power of the government - it restricts the government - as stated in Heller and then McDonald - the right is the right of the people and the amendment protects that right against federal, state, and local government.

A federal gun ban attempt would not use the second amendment as a justification for the power grab anyway - hard to turn a restriction into a grant of government power. They would simply use the commerce clause as they have time and again.
 
It's just too bad the 2nd amendment had to be Incorporated to accomplish this.
I don't think it did. They said in Presser v Illinois that regardless of the Second Amendment no State can ban guns, so all they had to do was go a little further and say that regardless of the Second Amendment Chicago cannot ban handguns. But what they hope to accomplish is incorporation, that's the agenda that McDonald is part of.


What case do you think will be cited to justify the right of the Federal Govt to reach into a state and enforce the law in this example?

That's right, McDonald v. Chicago.
I don't see that happening, but I do have concerns that incorporation might be construed so as to level the governments, not so that no level of government has gun control powers, but so that every level of government has gun control powers.
 
What if Nancy Pelosi (or someone else) decides they want to outlaw any caliber of bullet greater than a .38? If a bill gets thru congress ( like maybe a lame duck congress that got whipped in an election - see Nov 2010 ) and signed by a President, it then becomes law. Someone files suit and it ends up in the Supreme Court. What case do you think will be cited to justify the right of the Federal Govt to reach into a state and enforce the law in this example?

That's right, McDonald v. Chicago.

I think you're misunderstanding exactly what incorporation means. McDonald doesn't give the Feds the right to override state laws as, to a certain extent, they already had the power to do so. All that McDonald really says is that state laws regarding 2A are now subject to the same level of constitutional scrutiny that federal laws are under Heller.

The only way that McDonald can interfere with state laws is if they are so restrictive that they run afoul of 2A. Assuming that the caliber ban you cite would be found constitutional in the first place, McDonald would make no difference whatsoever. Where McDonald would come into play would be if such a caliber ban were found unconstitutional for the feds, then an individual state such as California or Massachusetts would not be able to enact such a law either.

Basically, all McDonald says is that if the feds can't do it, neither can the states or cities.
 
Basically, all McDonald says is that if the feds can't do it, neither can the states or cities.
I am not aware that McDonald says anything of that nature ... I think the rule remains that federal gun laws are generally unconstitutional because the feds are not delegated gun control powers, while state gun laws are generally constitutional because police powers are reserved to the states ... McDonald means that that the Fourteenth Amendment limits the States' gun control powers, but I am not aware that it reduces them to the same level as federal gun control powers ... and if incorporation were to bind the States the way the federal government is bound, it seems as though the States would be bound to tight to maintain a society and culture.
 
So Some Dude and Pnac, you would have been happier if Heller wasn't incorporated against the States?

IMHO, some rights are so fundamental that the States should be prohibited from infringing upon them.

I see Heller and McDonald as absolutely HUGE wins for 2A proponents.
 
To the honorable Mr. peetzakilla from the great state of New York, I'd like to suggest that when the powerful, educated and influential were in control of the government, whether or not they did their best to serve the interests of the people at large is a highly debatable point. I will concede, however, that there hasn't been a lot of that happening in, say, the last 20 or 30 years.

Part of the problem is that the best interests of the country, the best interests of the individual and the best interests of the population at large are hardly always the same. It is rarely in the best interests of anyone to be drafted (which we don't have at the moment), yet there have been times when such was necessary. Sometimes, though, it sure seems like the chief benefit of a strong military is corporate interests. At other times, it seems to be to a given state over another state.

It should be noted in passing that things evolved the way they did, right from the start, partly, perhaps mostly, because of the recent experiences of those who sat down and actually worked out what the constitution was going to say. They had been through a long war and had already had a form of national government that was unworkable. I've not heard anyone say they'd like to go back to that form of constitution but one does get that impression now and then. Other forms of government recently suggested by those who should know better but apparently get paid to say otherwise, include anarchy and government by asassination. Remember, one of the first things Washington had to do was to put down a tax revolt, which he did.

I wonder if it was the original intent of the framers of the constitution that women be allowed to carry concealed weapons?
 
Uh, the court did state and rule in McDonald that the states are held to the same standard that the federal government is in regards to the right to keep and bear arms. The court stated that if it is not permitted to the federal government it is also not permitted to the states.

Now, whether or not one believes that this is constitutional or that it should be the case - that is another debate. But the text of the McDonald decision does in fact state that the amendment applies equally to both the federal government and the states.

In fact the city of Chicago argued that the right should not apply to the states to the same extent it does to the federal government and that argument was specifically rejected by the court.
 
the court did state and rule in McDonald that the states are held to the same standard that the federal government is in regards to the right to keep and bear arms. The court stated that if it is not permitted to the federal government it is also not permitted to the states.

I would appreciate a quote, because I find it very hard to believe that even the SCOTUS would say something so absurd.
 
From the decision the following quotes:

We have previously held that most of the provisions of the Bill of Rights apply with full force to both the Federal Government and the States. Applying the standard that is well established in our case law, we hold that the Second Amendment right is fully applicable to the States.

Finally, the Court abandoned “the notion that the Fourteenth Amendment applies to the States only a watered-down, subjective version of the individual guarantees of the Bill of Rights,” stating that it would be “incongruous” to apply different standards “depending on whether the claim was asserted in a state or federal court.”
Instead, the Court decisively held that incorporated Bill of Rights protections “are all to be enforced against the States under the Fourteenth Amendment according to the same standards that protect those personal rights against federal encroachment.”

There is nothing new in the argument that, in order to respect federalism and allow useful state experimentation, a federal constitutional right should not be fully binding on the States. This argument was made repeatedly and eloquently by Members of this Court who rejected the concept of incorporation and urged retention of the two track approach to incorporation. Throughout the era of “selective incorporation,” Justice Harlan in particular, invoking the values of federalism and state experimentation, fought a determined rearguard action to preserve the two-track approach. Time and again, however, those pleas failed. Unless we turn back the clock or adopt a special incorporation test applicable only to the Second Amendment, municipal respondents’ argument must be rejected. Under our precedents, if a Bill of Rights guarantee is fundamental from an American perspective, then, unless stare decisis counsels otherwise,30 that guarantee is fully binding on the States and thus limits (but by no means eliminates) their ability to devise solutions to social problems that suit local needs and values.

Municipal respondents assert that, although most state constitutions protect firearms rights, state courts have held that these rights are subject to “interest-balancing” and have sustained a variety of restrictions. Brief for Municipal Respondents 23–31. In Heller, however, we expressly rejected the argument that the scope of the Second Amendment right should be determined by judicial interest balancing, 554 U. S., at ___–___ (slip op., at 62–63), and this Court decades ago abandoned “the notion that the Fourteenth Amendment applies to the States only a watered-down, subjective version of the individual guarantees of the Bill of Rights,”


Third, JUSTICE BREYER is correct that incorporation of the Second Amendment right will to some extent limit the legislative freedom of the States, but this is always true when a Bill of Rights provision is incorporated. Incorporation always restricts experimentation and local variations, but that has not stopped the Court from incorporating virtually every other provision of the Bill of Rights. “[T]he enshrinement of constitutional rights necessarily takes certain policy choices off the table.” Heller, 554 U. S., at __ (slip op., at 64). This conclusion is no more remarkable with respect to the Second Amendment than it is with respect to all the other limitations on state power found in the Constitution.


Unless considerations of stare decisis counsel otherwise, a provision of the Bill of Rights that protects a right that is fundamental from an American perspective applies equally to the Federal Government and the States.
 
the court did state and rule in McDonald that the states are held to the same standard that the federal government is in regards to the right to keep and bear arms. The court stated that if it is not permitted to the federal government it is also not permitted to the states.

I would appreciate a quote, because I find it very hard to believe that even the SCOTUS would say something so absurd.


Two years ago, in District of Columbia v. Heller, 554
U. S. ___ (2008), we held that the Second Amendment protects the right to keep and bear arms for the purpose of self-defense, and we struck down a District of Columbia law that banned the possession of handguns in the home.The city of Chicago (City) and the village of Oak Park, a Chicago suburb, have laws that are similar to the District of Columbia’s, but Chicago and Oak Park argue that their laws are constitutional because the Second Amendment has no application to the States. We have previously held that most of the provisions of the Bill of Rights apply with full force to both the Federal Government and the States. Applying the standard that is well established in our case law, we hold that the Second Amendment right is fully applicable to the States.
[emphasis added]

SCOTUS, Opinion of the Court, page 2, MCDONALD v. CHICAGO 2010
 
the Court decisively held that incorporated Bill of Rights protections “are all to be enforced against the States under the Fourteenth Amendment according to the same standards that protect those personal rights against federal encroachment.”
I find there are two ways to read this .. in one construction, if the Second Amendment prevents the US from banning handguns in a federal district like DC, then it also prevents a city/state from banning handguns like in Chicago ... this construction makes some sense to me and seems to fit the Heller/McDonald cases ... in the other construction, if the US has no general gun control powers over Virginia, no jurisdiction over CCW for example, then Virginia also has no general gun control powers over Virginia, such as jurisdiction over CCW ... this construction seems nonsensical to me.


this Court decades ago abandoned “the notion that the Fourteenth Amendment applies to the States only a watered-down, subjective version of the individual guarantees of the Bill of Rights,”
I don't see how that is the issue ... police powers were reserved to the States, and these include gun control powers ... if the federal government is not empowered with jurisdiction over gun laws in Virginia, e.g. they cannot require a CCW permit, and Virginia requires a permit to CCW, that is not a watered-down right ... the US might prohibit CCW in a federal district such as DC, and Virginia might prohibit CCW, but y'all seem to construe it to mean that if the US cannot prohibit CCW in Virginia then Virginia cannot prohibit CCW in Virginia.
 
No, I don't get where you get what you are trying to claim others are claiming here. People are merely saying that the right to keep and bears arms is as legally binding on the states as it is on the federal government - like the first amendment and the right to free speech or the right to worship.

The point being that the minority opinions wanted to water down the second amendment if it was applied to the states (so that states could ban handguns or assualt rifles or high capacity magazines) - though they didn't want it applied at all - since they really disagreed with it even being or protecting an individual right to keep and bear arms.

Regarding the bearing of arms - the court seems inclined from the information they include in their decision to allow states to individually define how, where, or under what circumstances the carrying or bearing of arms would occur within the limitations of the right - so long as it does not violate the fundamental right protected - i.e. a state could require open carry or ccw - or it could require open carry in some circumstances and ccw in others - so long as people could exercise their RKBA. One state might ban carry in sensitive places such as schools or governement buildings another state might not. One state might have a shall issue license (so long as it did not unduly burden or interfer with the free exercise of the right), another state might have no license. But all such laws would have to exist within the defined right of individuals to keep and bear arms. Thus no state could ban handguns, no state could ban the bearing or carrying of arms, no state could impose draconian restrictions on keeping or bearing arms.

The Illinois constitution has a right to keep and bear arms in it, but it also has the added phrase, as subject to police powers. The Illinois courts have ruled that because of that all and any gun control laws are legal in Illinois. Because of McDonald that will no longer be the case - police powers will no longer trump the fundamental individual right to keep and bear arms and will be subject to standards of scrutiny as identified by the federal courts.
 
RDak said:
IMHO, some rights are so fundamental that the States should be prohibited from infringing upon them.

The same logic would suggest that nations should be prohibited from infringing upon fundamental rights and we would all benefit from the collective benevolence of the U.N.
 
People are merely saying that the right to keep and bears arms is as legally binding on the states as it is on the federal government
It's like saying that the the feds have gun control powers equal to the States ... I suppose it's true if we're talking about federal gun control powers within federal districts like DC ... but the assertion seems to easily bear another construction.

IMHO, some rights are so fundamental that the States should be prohibited from infringing upon them.
I think the Framers' Constitution is based upon the principle that some rights are so fundamental that the central government should be powerless with regards to them. I have never understood this idea that the rights of Virginians are not safe in the hands of Virginians, and that we need to put them in the hands of the federal government. Well, I think it's civil war propaganda, this idea that the States are the boogeyman and the federal government is our saviour.
 
Webleymkv...

You said (in post #103) "All that McDonald really says is that state laws regarding 2A are now subject to the same level of constitutional scrutiny that federal laws are under Heller."

You also stated "Basically, all McDonald says is that if the feds can't do it neither can the states or cities."

Allow me to build my case. Read Art. I Sec. 8, then Art.I Sec.9, then the 2nd Amendment, then 9A and 10A, then read the two quotes above.

My assertion is the Chicago gun ban is an issue to be addressed by the citizens of Chicago at the city and/or county level directly, and the citizens of Illinois outside of Chicago at the state level. The people who live there vote for their elected government. If gun grabbers keep getting elected - who's fault is it?!

Now SCOTUS has set legal precident for Federal Gov't to decide a STATE issue, as it pertains to state gun laws. How does the Illinois state Constitution address gun laws? That should be the alpha and omega of this whole kerfluffle, as long as the Illinois state Constitution is not in conflict with the US Constitution. Maybe the good people of Illinois should amend their state constitution? Maybe they should quit electing gun grabbers OR maybe they should MOVE out of Chi-town or even out of Illinois!

In my opinion, this ruling while good for citizens of Chicago short term, is a full frontal assault on the 9 and 10A. Which is essential if one wants to "progress" from a Federal gov't to a National Gov't. Alexander Hamilton would be SO proud.

You stated: "Basically, all McDonald says is that if the feds can't do it neither can the states or cities." Where does the Federal gov't find their Constitutional authority to impose an Un-Enumerated power over states or cities? Those who emphasize case law over original intent, that's where they will find it. And what case law will be used by the Feds to disregard states rights as it pertains to gun laws... wait for it... McDonald v. Chicago.

You can't imagine how much I hope I am wrong.
Later,
Some_Dude
 
Where does the Federal gov't find their Constitutional authority to impose an Un-Enumerated power over states or cities?
NOT un-numerated. Clearly enumerated in the 14th Amendment. It was ratified, you know. Attempts to undermine it have succeeded only for a time.

Thomas with Gura's help may have resurrected the POR clause and breathed life back into it somewhat. Regardless, all this hand-wringing over the loss of pure federalism is over 100 years late.
 
Hugh said:
I have never understood this idea that the rights of Virginians are not safe in the hands of Virginians, and that we need to put them in the hands of the federal government.

So a majority of Virginians can vote to deny fundamental rights to other Virginians, just because they are the majority?

Hugh said:
Well, I think it's civil war propaganda, this idea that the States are the boogeyman and the federal government is our saviour.
Really?

Then explain how and why all those black codes (Jim Crow Laws) came into effect. You know, those various State laws that denied the Freedmen just about every right a Free Man is entitled to.

Explain why the State never prosecuted the perpetrators of the Colfax Massacre?

Some Dude said:
Where does the Federal gov't find their Constitutional authority to impose an Un-Enumerated power over states or cities?

Amendment 14, section 5: The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.

Where the Congress can fail, by not passing appropriate legislation, the Court can, through judicial review, force the issue.
 
Many states have had a henious history of abridging the basic civil and human rights of their citizens -slavery, jim crow, the civil rights movement. States are no more moral or sacred or sacrosant or infallible than any other form of government.

It was suggested that Illinois voters should vote out the politicians - pretty hard to do when the dead vote, when illegals vote, when precints in Chicago report more than 100 percent voter turn out, when ballot boxes disappear or are mysteriously found. But then they should just move - abandon family land and family, surrender their state, culture, and communties to corrupt politicians - runaway with their tails between their legs. Some choose to fight - some fought by going to the courts and asking that a basic and fundamental individual right be enforced by the federal government as it has enforced other such basic rights contained in the bill of rights.

But then again the people who are against this are also against any federal enforcement of freedom of speech, or the freedom to worship, etc...

The civil war resulted in the 14th amendment - and that amendment has since been held to allow the federal government to apply the larger portion of the protections of individuals fundamental liberties contained in the Bill of Rights to the States.

As government power grabs go - I am much more concerned about the misuse of the commerce clause than the possible misuse by the federal government of the freedom of speech, or of worship, or the RKBA.

This whole debate reminds me of a conversation I had with an Illinios state senator about 15 or 17 years ago over state wide legislation for a shall issue concealed carry bill. The senator, a republican, said that he couldn't support the bill because it violated the rights of local cities (called home rule in Illinois - which is why for a statewide ccw bill to pass it must have a supermajority). I was stunned at his reasoning that somehow cities have rights and that those rights are more important than the fundamental liberties of individuals. If one were to whole heartedly subscribe to this line of thinking then I guess in order to exercise a fundamental liberty like the freedom of speech - one should with proper deference first get permission from the federal government, then get permission from one's state govt., then get permission from one's county govt., and then get permission from one's town or city govt.


Editted to add: Hugh I would certainly pay to see you debate Justice Thomas.
 
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Rights vs. Powers.

My take on this is that we have not given the federal government more power via McDonald. All we have done is tell the states that they must also protect FUNDAMENTAL, INDIVIDUAL, RIGHTS, in accordance with the constitution. The states should NOT have the POWER to trample our RIGHTS, any more than the federal government does. That's what I'm getting out of Heller, McDonald, and the 2nd, 9th, 10th, and 14th amendments in the BOR.

Does a state have the POWER to force ALL of the citizens to belong to one specific religion which is chosen by that state? If the USSC says "NO", does this mean that the federal government is given more power over the states to regulate religious activities? I don't believe it does.

If a specific state said that all churches must pay an annual duty of 10% of their collections as a tithe to the state, would the USSC let that ride? If the USSC said this was in violation of the first amendment, does that mean the federal government now has more power over the states rights? I'm not sure it does.

What if a state said that they no longer believed in Miranda rights being given until the actual day of the trial for the suspect? Would the USSC let that pass? If not, would it be the feds trumping states rights?

What if a certain state said that only one newspaper, state approved, was legal to print and distribute within that state? Should that be left up to the state's "rights"? I believe most americans would look to the BOR to resolve that issue.

I say that states do not have the "power" or the "rights" to trump FUNDAMENTAL, INDIVIDUAL, RIGHTS". The USSC telling them so is not necessarily a power grab by the federal government. It's a lecture telling the states to abide by the United States Constitution when you pass laws, or the USSC will be likely to strike down such laws which seem to run afoul of the Constitution.

Here's two examples I can see happening.

1. The state of Illinois passes a law which effectively states that in order to carry a concealed handgun in public, one must have a permit to do so, which will involve training and a test, plus a processing fee. I seriously doubt the USSC would strike that down as it may not directly violate the 2nd A. It doesn't say you can't keep and bear arms, it says that if you want to bear arms in a concealed manner, the state has reason to check out why you want to do so. Provided they don't put undue burdens in your way, such as a fee of $10,000.00, it may pass Constitutional muster as the USSC sees it.

2. The City of Chicago says that no one can possess any handguns at all within the city limits, even in their own home. This is clearly in violation of the 2nd A. and the USSC should and likely would strike it down, as they just did.

I don't see this as the feds imposing new laws on, or new powers over, the states. I see it as the feds making sure that our fundamental, individual, rights are protected against state, as well as federal, violations.
 
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