Federal Republic

[Koda94]

disclaimer, so I might be opening up and exposing my own ignorance here, but I'm just a regular guy and no legal eagle trying to wrap my head around the ever increasing gun politics happening. I don't know how to say it, and don't have the hours, perhaps weeks free right not to try to wrap my head around all the legalese, so I'm just gonna say it with prose. If I'm wrong, feel free to correct me... in layman's terms of course


What does it mean to be a Federal Republic? I hear all the time that were a Democracy. In a Democracy the majority rules, and if the majority votes to take away your property they can.

But the United States is a Federal Republic, not a democracy. We elect our officials by a democratic process only, and our republic is governed by our constitution which our Bill of Rights does not grant rights, it preserves and guarantees pre-existing individual rights such as the Second Amendment as well as other rights retained by the people.


So then why is it that most people over here have the right to own AR15s, while a few over there do not?

Massachusetts recently ruled their ban on AR15s constitutional.
Some states its illegal to bear arms, but others are "shall issue" or open carry...
Deerfield Illinois just outlawed AR15s....
Oregon is working on putting a complete statewide prohibition, registration and surrender of AR15s.

Its worth noting that Oregon's own state constitution preserves the people a right to bear arms....

So how is it that these local laws and initiatives can be upheld in courts as legal? And what part of "infringed" is not clear to our courts?

 

[BWM]

The 2nd say it all and the 1st you need to study all of them this will help you. good reading !!!

 

[Frank Ettin]

...how is it that these local laws and initiatives can be upheld in courts as legal?...

I. The Relationship Between State and Federal Law

• Our's is a federal system. States are sovereign, political entities. At the time of the founding of our nation each State or Commonwealth effectively ceded some measure of sovereignty to join with the others to become the United States. How much sovereignty each would cede was a central issue in hashing out the Constitution. Our nation would not have come into existence had the States/Commonwealths not retained an acceptable degree of sovereignty.
  
  
• A fundamental attribute of government is what's known as police power:
  

  The inherent authority of a government to impose restrictions on private rights for the sake of public welfare, order, and security.

  
  
• The police powers of States are broad and general.
  
  
• However, as our federal government has been established under the Constitution the federal government has no general police powers. Instead, its powers are specifically described in the Constitution. So, for example, Congress only has the power to pass laws consistent with the specific powers granted to it under Section 8 of Article I of the Constitution (subject to certain limitations set out in Section 9 of Article I).
  
  
• That arrangement is acknowledged by the Tenth Amendment to the United States Constitution:

  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.

  
  
• Deciding whether a law or other act of the federal government is within its power.
  
  
  1. The first issue will be whether a law or act of the federal government is within a power granted to it by the Constitution. So for example, the scope of the power of Congress under the Commerce Clause to pass laws regulating marijuana has been defined and confirmed under a number of Supreme Court decisions, most recently Gonzales v. Raich, 545 U.S. 1 (2005).
     
     
  2. A second issue will be whether a particular federal law impairs rights protected under the Bill of Rights. However, the courts have ruled that some regulation of rights protected by the Bill of Rights is permissible.
     
     
  3. The Founding Fathers assigned to the federal courts the authority to decide what the Constitution means and how it applies to matters in controversy (Constitution, Article III, Sections 1 and 2):

     Section 1.
     
     

     The judicial power of the United States, shall be vested in one Supreme Court, and in such inferior courts as the Congress may from time to time ordain and establish. ...​

     
     Section 2.
     
     

     The judicial power shall extend to all cases, in law and equity, arising under this Constitution,...​

  
  
• Deciding whether a law or other act of a state government is within its power.
  
  
  1. While the police powers of a State are general and broad, each State/Commonwealth has its own constitution. A State's constitution may circumscribe powers of the State government and provide explicit protection of some rights.
     
     
  2. Since in the United States each State or Commonwealth has its own government in the form of a representative democracy, the people in each have the opportunity to influence what laws are adopted and how they are implemented.
     
     
  3. While the Supreme Court ruled in 1833 that the Bill of Rights did not apply to the States (Barron v. Baltimore, 32 U.S. (7 Pet.) 243 (1833)), some years following the adoption of the Fourteenth Amendment the doctrine evolved of applying some, but not all, of the rights enumerated in the Bill of Rights to the States on a piecemeal basis, using the Due Process Clause of the Fourteenth Amendment. Thus those enumerated rights found applicable to the State have also become limiting factor on the exercise by States of their police power.
     
     
  4. To the extent that the question of the validity of a state law raises an issue under the United States Constitution, the meaning and application of the Constitution is finally a matter to be decided by the federal courts.
  
  
• What about when there's federal law and state law on the same subject?
  
  
  1. The whole area of choice of law (where the laws of multiple jurisdictions could be applicable) is a huge, complex, and pretty much non-intuitive subject.
     
     
  2. In general federal law will supercede state law. See The Constitution of the United States, Article VI, Clause 2:

     This Constitution, and the laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every state shall be bound thereby, anything in the Constitution or laws of any State to the contrary notwithstanding.

     
     
  3. If the particular issue addressed by the state law is also addressed by the federal law, there's the question of whether the particular federal law was intended to "occupy the field", i. e., be the final word on the subject. In that case the federal law preempts the state law and applies instead of the state law.
     
     
  4. On the other hand, if a court decides that the federal law did not reflect an intent to occupy the field, in order to decide if federal law or state law applies a court will need to decide if the state law is consistent a federal policy concern or would, on the other hand, frustrate the federal policy furthered by the law. Or a federal law could be found to preempt state law if either expressly or by inference the federal law was intended to promote national uniformity with regard to a particular issue.
     
     
  5. Sometimes federal law will be explicit about how a conflict between federal law and state law is to be resolved. An example which comes immediately to mind involves the confidentiality of medical information regulation under HIPAA. Those regulations expressly provide that they don't supersede state laws to the extent providing greater protection of an individual's confidentiality interests. For another example, with regard to firearms regulation, federal law (the Gun Control Act of 1968) expressly doesn't preempt state laws. See 18 USC 927:

     No provision of this chapter shall be construed as indicating an intent on the part of the Congress to occupy the field in which such provision operates to the exclusion of the law of any State on the same subject matter, unless there is a direct and positive conflict between such provision and the law of the State so that the two cannot be reconciled or consistently stand together.

     
     
  6. Sometimes there's no conflict between federal and state laws. If something is a crime under federal law but not state law, the crime would be prosecuted by the federal government, and visa versa. An act that is both a federal and state crime can be prosecuted by either, or both, the state and federal governments.

II. Regulation of Constitutionally Protected Rights.

• The Supreme Court applied the Second Amendment to the States in McDonald v. Chicago, 561 U.S. 742 (2010). Therefore the citizens of every State are entitled to enjoy the RKBA to the extent required by the Constitution, and any regulation by a State of the RKBA must be limited in a manner which will pass constitutional muster. The uncertainty here is that Second Amendment jurisprudence is at its formative stage, and therefore the constitutional limits to the regulation of the RKBA are not at present well defined.
  
  
• Even though the Second Amendment now (since McDonald) is a limit on a State's power to exercise its police powers with respect to the regulation of the RKBA, it's well settled law that under certain circumstance and to some extent a constitutionally protected right may be regulated. What those circumstance might be and the nature and extent of permissible regulation will be worked out by the courts. To do so, a court will consider, among other things, the nature of the right, the nature of the regulation, and the governmental purpose intended to be served.
  
  
• For the purposes of illustration, let's consider the regulation of rights protected by the First Amendment. While the First Amendment protects freedom of speech, assembly and religion against laws that abridge those rights we know there has been a history of certain regulation of speech, assembly and religion. A few examples are:
  
  
  1. Various laws (both state and federal) prohibiting such things as false advertising, fraud or misrepresentation. There are also state and federal laws requiring certain disclosures in connection with various transactions, which are valid and routinely enforced even though such laws do impinge on the freedom of speech.
     
     
  2. If you are offering securities or certain other types of investments to the public, your written solicitation materials will have to first be approved prior to use by one or more regulatory agencies. If you are selling medicines in interstate commerce, your labeling will have to be approved in advance by the FDA, and you will have to have demonstrated, through hard, scientific data, that any claims or representations made are true. These are also laws that abridge freedom of speech, and yet they are regularly enforced.
     
     
  3. Laws respecting the time, place and manner of speech or assembly have also survived Constitutional challenges. Thus a municipality may require that organizers obtain a permit in order to hold an assembly or a parade and may prohibit such activities during, for example, the very early morning hours. Such regulations would be permitted only to the extent necessary to serve the compelling state interest of protecting public health and safety. Any such regulations, to be constitutionally permissible, could not consider the content of the speech or assembly; and they would need to be applied in an even handed manner based on set guidelines and not subject to the discretion of a public official. See, for example:
     
     
     • Hill v Colorado, 530 U.S. 703, 120 S.Ct. 2480, 147 L.Ed.2d 597 (2000), in which the Court, in upholding a Colorado law restricting protesting, educational or counseling activities within 100 feet of the entrance to a health facility, noted:

       ...We are likewise persuaded that the statute is "narrowly tailored" to serve those interests and that it leaves open ample alternative channels for communication. As we have emphasized on more than one occasion, when a content-neutral regulation does not entirely foreclose any means of communication, it may satisfy the tailoring requirement...

       
       
       • Cf. McCullen v. Coakley (U. S. Supreme Court, No. 12–1168, 2014)
         
         
         
       • In McCullen the Court struck down a new Massachusetts "buffer zone" law. As noted in the opinion the Court had previously sustained a different sort of buffer zone law in Colorado, and nothing in McCullen casts any doubt on the continued validity of the Colorado law (McCullen, slip opinion at 2):

         ….The statute [the prior Massachusetts law] was modeled on a similar Colorado law that this Court had upheld in Hill v. Colorado, 530 U. S. 703 (2000). Relying on Hill, the United States Court of Appeals for the First Circuit sustained the Massachusetts statute against a First Amendment challenge. McGuire v. Reilly, 386 F. 3d 45 (2004) (McGuire II), cert. denied, 544 U. S. 974 (2005); McGuire v. Reilly, 260 F. 3d 36 (2001) (McGuire I).
         
         By 2007, some Massachusetts legislators and law enforcement officials had come to regard the 2000 statute as inadequate.....

       
       
     • Santa Monica Food Not Bombs v. Santa Monica, 450 F.3d 1022 (9th Cir., 2006) in which the court upheld a Santa Monica ordinance requiring a permit for public assemblies. In fact in Santa Monica Food Not Bombs the court specifically acknowledges that the ordinance may burden the protected right, noting, at pg 1038:

       ...A narrowly-tailored permitting regulation need not be the least restrictive means of furthering a locality's asserted interests. The regulation may not, however, burden substantially more speech than necessary to achieve a scheme's important goals. See United States v. Baugh, 187 F.3d 1037, 1043 (9th Cir.1999). "[T]he requirement of narrow tailoring is satisfied `so long as the . . . regulation promotes a substantial government interest that would be achieved less effectively absent the regulation.'" Ward, 491 U.S. at 799, 109 S.Ct. 2746 (quoting United States v. Albertini, 472 U.S. 675, 689, 105 S.Ct. 2897, 86 L.Ed.2d 536 (1985))...

     
     
  4. In the leading case on prior restraint (Near v. State of Minnesota, Olson, 283 U.S. 697, 51 S.Ct. 625, 75 L.Ed. 1357 (1931)) the Court in striking down a Minnesota statute allowing for the abatement, as a public nuisance, of malicious, scandalous and defamatory news analyzed in considerable detail and depth the scope and extent of the infringement of the freedom of press, the interests served and the availability of other and narrower remedies. And the Court then reached the conclusion that the statute went too far to be a permissible regulation.
     
     But nonetheless the Court also noted that certain interests, under certain circumstances would justify even prior restraint (Near, 283 U. S. 657, at 715 - 716):

     ...The objection has also been made that the principle as to immunity from previous restraint is stated too broadly, if every such restraint is deemed to be prohibited. That is undoubtedly true; the protection even as to previous restraint is not absolutely unlimited. But the limitation has been recognized only in exceptional cases. 'When a nation is at war many things that might be said in time of peace are such a hindrance to its error that their utterance will not be endured so long as men fight and that no Court could regard them as protected by any constitutional right.' Schenck v. United States, 249 U. S. 47, 52, 39 S. Ct. 247, 249, 63 L. Ed. 470. No one would question but that a government might prevent actual obstruction to its recruiting service or the publication of the sailing dates of transports or the number and location of troops.6 On similar grounds, the primary requirements of decency may be enforced against obscene publications. The security of the community life may be protected against incitements to acts of violence and the overthrow by force of orderly government. The constitutional guaranty of free speech does not 'protect a man from an injunction against uttering words that may have all the effect of force. Gompers v. Buck's Stove & Range Co., 221 U. S. 418, 139, 31 S. Ct. 492, 55 L. Ed. 797, 34 L. R. A. (N. S.) 874.' Schenck v. United States, supra. These limitations are not applicable here. Nor are we now concerned with questions as to the extent of authority to prevent publications in order to protect private rights according to the principles governing the exercise of the jurisdiction of courts of equity...

     
     
  5. In the past, laws prohibiting polygamy have been upheld against challenges that they violate the right to free exercise of religion (Davis v. Beason, 133 U.S. 333, 10 S.Ct. 299, 33 L.Ed. 637 (1890)).
  
  
• So in fact the reality is that rights protected by the Constitution may nonetheless be subject to some limited regulation. The foregoing discussion of First Amendment jurisprudence serves the limited purpose of demonstrating that the courts do permit limited regulation of a constitutionally protected right. There are numerous examples of laws sustained by the courts which abridge freedom of speech, freedom of assembly, freedom of association, and freedom of religion. And First Amendment jurisprudence also offers some clues as to how such regulations will be evaluated by the courts.
  
  
• We can not expect, nor will we see, perfect correspondence between the regulation of rights protected by the First Amendment and the regulation of rights protected by the Second Amendment. First Amendment jurisprudence is quite mature at this point, but Second Amendment jurisprudence, in the wake of Heller, is in its infancy. However, we can expect some regulation of Second Amendment rights to be upheld by the courts.

 

[Koda94]

Frank, thank you... thats a lot to read but I will take my time to soak it all in. I'm still contemplating how all that fits in with the "shall not infringe" part though.

 

[Aguila Blanca]

Massachusetts recently ruled their ban on AR15s constitutional.

Massachusetts did not rule that their AR-15 ban is constitutional. The Massachusetts law was appealed to federal court, and it was a federal judge who ruled that the law is constitutional.

I'm still contemplating how all that fits in with the "shall not infringe" part though.

It doesn't. Federal judges don't understand what "infringe" means, so they happily rule that all sorts of infringements aren't infringements.

 

[Koda94]

thank you for clarifying the Massachusetts ruling Aguila... but that makes it worse in my opinion. A federal judge should uphold the constitution which says "shall not infringe"

 

[Koda94]

another thing I don't understand has to do with the 9th Amendment. If the constitution cannot be used to deny other rights granted by the people, then how can these local laws infringe on their rights to bear arms when literally millions of people in the US can still own AR15s (et al, whatever else is on the list)?

In other words its one thing to say we have the right to "regulate" (prohibit) AR15s, but another to say these people do, but you do not...

 

[turkeestalker]

Yes, thank you.

This quote from your post is why I have said that for me, the only issue in 2016 was the Supreme Court and who would be appointing future justices.

The uncertainty here is that Second Amendment jurisprudence is at its formative stage, and therefore the constitutional limits to the regulation of the RKBA are not at present well defined.

I do sincerely believe that we will see a climate more supportive of the 2nd Amendment in our country in the near future.

 

[Glenn E. Meyer]

Just curious, why do you think that? The current moral panic seems a powerful movement.

It might be the case that owning rather 'calm' or 'relatively' nonthreatening guns might be supported by a majority of citizens. So something like an SW Model 10 or a Double Barreled Biden special would be ok but will the country continue to support owning weapons of war or weapons of mass destruction?

That will be the battle of the next few years. Even with the recent SCOTUS decisions, buying a handgun in some states is heavily regulated and not guaranteed. Certainly, carry is not seen as constitutionally protected. IMHO, carry and owning the higher capacity firearms are challenge.

I hope it turns around and that good messaging is developed to portray the importance of gun rights.

 

[44 AMP]

There are a significant number of mis-informed and under-informed people, and then there are true believer zealots who think that as long as we have the ability to have a gun (single shot, muzzleloader preferred) that our right to arms is not being infringed. Some of these people are in Congress, and some sit on judges's benches. The rest are scattered throughout society but tend to be most prevalent in certain socio-economic strata.

Ones of those is the "Ivory tower" mentality. They have their ideas, and the rest of the world is (to them) simply, wrong...

the other side of the coin are those who feel that any kind of regulation, at all, is an infringement. Neither side is entirely correct. No rights are unlimited, and all rights have restrictions, otherwise society can not function. WE voluntarily adhere to certain restrictions on our rights in many and diverse ways every single day, most of us, without even realizing it.

One of the reasons our system of government has worked as well as it has, with that it was set up with an understanding of the communication technology of the times.

For a lot of our nations history, news (real or false) could only travel as fast and as far as a ship or a horse could carry it. Telegraph and steam locomotives increased that rate and range, but still required a degree of time for the news to get around.

This meant that there was a good chance that mob rule (tyranny of the masses) was difficult, because the amount of time needed for information to get to the public, and their response to get back to those doing the governing allowed for logic and reason to have a chance to prevail, and for hotheads to cool off before passing laws or making public policy changes.

Didn't always work, but often did.

Today, we have a much different situation, and both our system of government and our society is having a difficult time dealing with it. Today, millions upon millions of people can both get the news, and send their opinions to the government (and the rest of the world at large) essentially instantly.

In other words, the mob gets its angry strident voice heard in the halls of power within minutes of any issue reaching the public stage. There is no time lag to allow reason a chance to combat "moral panic".

Our system is based on the will of the people, but was created with the understanding that the will of the people would be tempered over time, before it was presented to the representatives. writing letters to politicians takes more effort and time than texting, tweeting, and sending your opinions (on any subject) world wide with the press of a button.

Which brings up the other point, which is, IS the current anti-gun movement actually as powerful as it seems to be???

After all, its the same people selling us the "news". Do you think that there might, possibly, be some bias there???

Despite the fact that its a running joke, there are people who operate on the level of "It must be true, I read it on the Internet". And, their vote counts just as much as yours does.

Many of those people claiming how powerful the current anti-gun frenzy is and how much it will accomplish also claimed with certainly that Hillary would handily win election to the Presidency.

When that didn't happen, they were stunned.

They could be just as wrong about the "inevitable" success of their gun control campaign. I certainly hope so. Though I think we are certain to lose ground in those places politically controlled by urban numbers. Not entirely because of left/right (or up/down or sideways) political leanings but simply because of the numbers of people who know nearly nothing about guns and even the rest of our rights, save what the media tells them on various screens 24/7.

The truth never sells as well as a slickly packaged lie, and that's just part of what we're up against today.

 

[turkeestalker]

Just curious, why do you think that? The current moral panic seems a powerful movement.

It is a powerful movement. Yet it is a movement by an overtly vocal minority that holds the favor of the bulk of social and news media outlets.
That makes it seem more powerful than it really is.

I have nothing to back up my certainty that before our current President leaves office, he will appoint a total of three SCOTUS justices including his first appointment of Gorsuch to replace Scalia.
I am certain, but that doesn't mean anyone has to believe me, though it's not any kind of a stretch to imagine it to be a real possibility.
I am also certain that the next two appointments will be replacements for current justices who tend to believe that our constitution is a living document, which we know it is not.

Only time is going to prove me right or prove me a fool, claiming me either now accomplishes nothing but you're obviously free to do so, no worries.

If I am right, what would be the likelihood that the SCOTUS would finally begin to define what limits are and are not constitutional in regulating the RKBA?
A SCOTUS holding a majority of constitutionally minded justices.

I realize that most everyone believes that we as gun owners are in a minority. Hogwash.
I realize as well that everyone believes the this vocal group that is our opposition is the majority. Hogwash.

Ever looked at an electoral map of the 2016 election by precinct?

https://www.nbcnews.com/politics/2016-election/these-detailed-election-maps-can-show-your-neighborhood-s-vote-n740616

If you compare it to 2012 and then 2008, it's only grown more red.
I don't believe that is a trend that is going to change anytime soon.

Color me crazy, but what if I'm right and there is a very positive change on the horizon?

 

[LogicMan]

It might be the case that owning rather 'calm' or 'relatively' nonthreatening guns might be supported by a majority of citizens. So something like an SW Model 10 or a Double Barreled Biden special would be ok but will the country continue to support owning weapons of war or weapons of mass destruction?

IMO, you mean what the gun control proponents tell them are "weapons of mass destruction" and "weapons of war," which ultimately means any and all guns in some manner as all guns either originated as military weapons, are functionally identical to military guns, or use military-originated components, and/or ammunition.

 

[44 AMP]

I suppose you can take some comfort in the fact that, the majority of the time, things are not as bad as they look, nor as good as they seem.....



Even the major gun control activists fell essentially silent for quite a while after Sept 11, 2001. Some even went so far as to abandon the crusade against privately owned weapons, saying "what was I thinking???"

Enough time has passed now, and in relative safety, that the "usual suspects" or their generational ideological replacements have forgotten how a couple THOUSAND people were killed and the Twin Towers brought down by terrorists who didn't use a single gun to do it.

Guns, and especially military looking guns are their target de jour, but that's not really what they're after in the long run, as I see it.

 

[L2R]

18 months ago, there was an election that looked to reverse all these trends of both anti gun laws and public viewpoints but it never happened, in fact, it looks more like a springboard for limiting our rights and losing positive public opinion.

The last election along with control of house and senate couldn't slow this down and that is why I am truly concerned.

And someone please tell me what the term is for the 'feeling we have to do something" that has obsessed those in the news.

 

[Aguila Blanca]

The last election along with control of house and senate couldn't slow this down and that is why I am truly concerned.

This is the crux of the matter. The Republicans nominally control both the House and the Senate, yet so many nominal Republicans are so busy hating the President that they won't support anything here's for ... which means they won't support the things we elected Mr. Trump to accomplish, such as national carry reciprocity.

And now that we have the teen-age demonstrators running the anti-gun narrative, politicians of both parties are paralyzed. They don't dare do anything these loud-mouthed children oppose, because CHILDREN!

 

[Evan Thomas]

And someone please tell me what the term is for the 'feeling we have to do something" that has obsessed those in the news.

This is the precise definition of "moral panic."

 

[turkeestalker]

The Republicans nominally control both the House and the Senate

... which translates to control in name only, nothing more.

So what is the solution?
We're going to find out in seven more months.

 

[Glenn E. Meyer]

Are gun owners in the minority? That's an empirical question and number of households that have guns is supposedly below 50%. Can we trust polling?

Second, are gun owners dedicated to the RKBA as a major issue? That's a different story. We have seen 'gun owners' of the type derogatorily labeled as 'Fudds' come out against the ARs, higher capacity guns, etc. Some proclaim they are gun owners, veterans, etc.

Not hard to find. I've said this a thousand times, it seems, and it causes some folks to write gigantic spews of prose that miss the point. The progun 'side' has not come up with good messaging or a legislative strategy. One can make excuses why if you want.

However, this is a thread drift and I contributed to it. We should get back to the initial topic and let our standard debate go.

 

[L2R]

Thank you Frank for your time and thorough explanation. I knew quite a bit from a high level but you explained it very well.

The OPs other question, how is it we have conflicting laws with lack of resolution.

Maybe someone here with better knowledge could explain how judges have latitude to interpret law and that it often reflects their own politics. No different really to all of us witnessing a shooting but coming away with opposing thoughts on how to minimize it. So too, judges opinions vary widely.

Someone here also noted that Lincoln passed the Emancipation Proclamation in 1863 but took over 100 years to really take hold.

A silver lining that goes largely unnoticed is that our POTUS is assigning conservative judges at various levels that may level the field in the future.

Hoping someone here can say it better or more accurately but I think that helps explain why our constituation isn't simple and the answers may not be resolved in our life times.