Question on Constitutional Law

U

USP45usp

Moderator
Okay,

I understand that the federal government doesn't have any lawful standing (as in the Constitution, we all know how that goes now) to infringe on the Right to Keep and Bear Arms.

Which then goes to the States. Do the States have any "right" to regulate Keeping and Bearing Arms, especially if the state doesn't have anything in it's constitutions to follow the federal amendment?

Then it comes to the People. If the state doesn't have the "right" to regulate, do the people of that state? If 51% wants to ban guns, and 49% don't, which is the rule, State or Federal?

Wayne
 
It depends. The way the federal system was set up, the national gov't was given certain powers over particular aspects of the national "identity" in order to protect and affirm that identity (i.e. controlling of monetary production so as to have a consistent type, regulating interstate commerce to prevent one state from barring trade with another, and controlling international affairs so states couldn't make their own treaties). Everything else was left to the states and the people. The idea was that the individual states would effectively be experiments in governmental and societal development. The people of the states could choose how they would live.

That changed after the 13th and 14th Amendment were past after Civil War. Okay, it actually changed long before but these were among the first changes to the Constitution itself. The amendments banned slavery and assured the uniform application of civil rights to everyone. Two schools of thought have developed: lselective incorporation (the state is bound by the national Constitution only as to those rights specifically found to be covered by the 14th Amendment) or "universal" incorporation (all guarantees under the Bill of Rights apply to the states, regardless of their constitutions).

Under the former, a court can say that the 2nd Amendment hasn't been incorporated or shouldn't be, and thus a state is allowed to do as it chooses within the limits of its constitution. Under the latter, the 2nd Amendment applies.
 
Ask the residents of Madison, Wisconsin. Chicago residents too. San Francisco had a gun ban on the table recently. The legal issue is one of local option. Federal authority is currently limited to NFA 34 and GCA 68 as the AWB is moot. Regulation is a state and local power.
 
If I am understanding correctly:

Feds = 1934, 1968, and 1986 but the States have the "right" of restriction on all else?

So, if I'm reading this right, the states, in effect, can cancel out, the 2nd amendment at it's leisure? It can make any law that it wants to but cannot conflict with the fed laws above?

Wayne
 
The Constitution does a couple of things. It lists the rights that all Americans are considered to possess. It then lists the powers granted the federal government and powers granted state governments. The state governments are (supposedly) given all powers not specifically given to the federal government and not prohibited to the states by the Constitution.

As such, the Second Amendment both prohibits the federal government and the state governments from restricting the ownership of firearms. Neither states nor the federal government can pass laws that violate the Constitution.
 
FOPA 86 is one I failed to note. Thank you for pointing out my error. The laws in many states could be considered as ANTI-2nd. FOID cards, restrictions on models, testing, spent casing requirements and even outright bans on sales in some regions. We are not having our 2A rights wiped out wholesale but, slowly eroded.
 
False analysis

"The Constitution does a couple of things. It lists the rights that all Americans are considered to possess. "

First the Constitution does more than "a couple of things." And it does NOT do what you claim it does; "...lists the rights that all Americans are considered to possess."

Think for a nanosecond. IF it specifically listed "ALL the rights" of citizens, how could there be a reservation of all other rights in the Ninth Amendment?

Note also that incorporation of rights via the Fourteenth Amendment has never included the Second Amendment.
 
Under constitutional law, the 2nd Amendment has not been incorporated by the 14th. Gun control powers come under the police powers reserved to each State. Yet there are federal limits, and the SCOTUS has ruled that no State can disarm its people because it would deprive the US of a source of militia.

I think we have to distinguish between civil rights and political rights. I believe that a political right is a principle of free government. For instance, an armed people are necessary to the security of a free government because they have a collective right to check their government i.e. to keep and bear arms against their own government (to alter or to abolish it). But I believe that a civil right is an aspect of society and culture and is properly left to each State. For instance, CCW is not necessary for our form of government, it is not a political right but a civil right, and therefore it is properly up to each State.

And I think we have to distinguish between intrastate and interstate affairs. For example, if Californian banned guns, would that affect my State of Virginia? I think it might, because if the US was invaded, and Californians were unarmed, then (as the SCOTUS said) it would deprive the many States of a source of militia. But if California banned CCW, or banned 50 caliber rifles, or something of that nature, then I think that would be their own intrastate affair.
 
Of course it does not list ALL of the rights of the people, just as it doesn't list ALL of the rights of the states. It DOES list SOME of the rights that neither the federal nor the state government shall be able to deny the citizens.

As for the 14th Amendment, it is the only Amendment forced on the states, essentially at gunpoint, and the only "Amendment" that has never been ratified by a 3/4 majority vote of the states, technically making it void. It is the Amendment that gives the federal government its dictatorial powers over the states and killed the original government set up by the founding fathers.
 
The fact that the constitution is NOT an enumeration of right is a very important point often missed.
Another erroneous view often heard is that the constitution 'grants' rights.
The constitution does not grant anything, but limits the power of the federal government to infringe the enumerated rights, and reserves all other rights to the states and the people.
 
I agree that the 14th is nothing but despotism. It is monarchy. Federalizing civil rights is monarchy. And amending the Constitution by force is despotism and monarchy. But somehow, through it all, the 2nd has not been incorporated.
 
From what I have seen it usually works this way. There is federal law. States can make more restrictive laws, but cannot implement lesser laws. Counties, Municipalities, and townships follow the same model.
 
Let's start this discussion at the top ::

My Friend, it is GOD Who gave us the right to be armed, to maintain arms, and to walk around armed (Showing Or Not). Our Founding Fathers thought this was so very important that it is the SECOND amendmment. NO man, NO entity, NO State, NO County, NO city, NO Parish, pope, preacher or demi-god/demagog politian can change that now. There are certain reasonable restrictions (we all know what that are), but NO ban. When weapons, outright and wholesale, are attempted to be banned by some cockamamie law or any executive part of the establishment, we need to remember how our Founding Fathers said "We are 9i$$ed-off, and we'reNOT gonna take any more of your ship (or like that) anymore. So, "We hold these Truths to be self-evident, that all Men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the Pursuit of Happiness -- That to secure these Rights, Governments are instituted among Men, deriving their just Powers from the Consent of the Governed, that whenever any Form of Government becomes destructive to these Ends, it is the Right of the People to alter or to abolish it, and to institute new Government ///note: NEW Government, NOT anarchy \\\ laying its Foundation on such Principles and organizing its Powers in such Form, as to them shall seem most likely to effect their Safety and Happiness. Prudence, indeed, will dictate that Governments long established should not be changed for light and transient Causes; and accordingly all Experience hath shown that Mankind are more disposed to suffer, while Evils are sufferable, than to right themselves by abolishing the Forms to which they are accustomed. But when a long Train of Abuses and Usurpations, pursuing invariably the same Object, evinces a Design to reduce them under absolute Despotism, it is their Right, it is their Duty, to throw off such Government, and to provide new Guards for their future Security. " So it is OUR right ((read: OBLIGATION)) of the people ((d'ya hear that, people??)) to alter or abolish it and to establish NEW government based upon the rights God gave us...((et cetera)) My biased paraphrase of the preamble to our Constitution. One of the best organizations I know of for defending our rights is /// attention Webmaster, this is a plug \\\ The Second Amendment Foundation. Search the one with "Gottlieb" as Pres. These folks do not believe in sitting on the socialist log and floating happily downstream !! When is the last time you spent 25-cents on a post-card to your congressman? Don't send a letter; anthrax, y'know. When a thousand speak with ONE voice,we'll be heard. Keep your magazines topped off.
 
OoooRah for Texas !!

Listen up, all who do not really believe that the 2d amendment is an individual right. www.mcsm.org/indivright.html Received August 11, 1999
Federal Judge Sam Cummings of the Northern District of Texas recently dismissed an indictment against Timothy Joe Emerson for possession of a firearm while having a temporary restraining order against him. The judge cited violations of Emerson's Second and Fifth Amendment rights, and rejected the Government lawyer's claim that it was "well-settled" that the Second Amendment was only a collective right. This marks the first time in over 60 years that a federal judge has correctly interpreted the Second Amendment as a crucial individual right.

"This is one of the strongest rulings I have read regarding any of the Bill of Rights," proclaimed SAF founder Alan Gottlieb. "The overwhelming evidence proving the founding father's intent is very meticulously researched and coherently laid out for all to see." 1. Textual Analysis. The subordinate "Militia" clause, does not negate or limit the independent "the right of the people" clause. Furthermore, the U.S. Supreme Court has determined that "the people" should be interpreted similarly in the First, Second, Fourth, Fifth, and Ninth Amendments.

Judge Cummings found that an examination of (a) English History, (b) Colonial Right to Bear Arms, (c) The Ratification Debates, and (d) Drafting of the Second Amendment all show clearly that the right was meant as an individual protection. The Judge repeatedly cited relevant English and Colonial laws, quoted from numerous founding fathers, and provided a crucial history lesson on how, "Without that individual right [to bear arms], the colonists never could have won the Revolutionary War."

The structure of the Second Amendment within the Bill of Rights proves that the right to bear arms is an individual right, rather than a collective one. Of the first ten amendments to the Constitution, only the Tenth concerns itself with the rights of the states, and refers to such rights in addition to, not instead of, individual rights.

The courts have been divided on this issue, and the U.S. Supreme Court has not had a true Second Amendment case since 1939.

Judge Cummings also admonished people who are trying to eliminate the right to keep and bear arms just because that right is outdated, unpopular, or costly. Such "cost-benefit" analysis merely proves that the founding fathers were right in including it in the Bill of Rights.

( Read it and weep, Sarah Brady.)
 
I understand that the federal government doesn't have any lawful standing (as in the Constitution, we all know how that goes now) to infringe on the Right to Keep and Bear Arms.
Click to expand...

Says who? :D

WildahyestheperpetualdebateAlaska
 
I can see this is gonna go downhill from here....
Click to expand...

It usually does when you try to distill 200 plus years of constituional jurisprudence on message boards where slogansrather than case law frequently rules :)

"keep your magazines topped off" :rolleyes:

WildpsithinkitsanindividualrightbythewayAlaska
 
21CFA My Friend, it is GOD Who gave us the right to be armed, to maintain arms, and to walk around armed (Showing Or Not). Our Founding Fathers thought this was so very important that it is the SECOND amendmment. NO man, NO entity, NO State, NO County, NO city, NO Parish, pope, preacher or demi-god/demagog politian can change that now. There are certain reasonable restrictions (we all know what that are), but NO ban. When weapons, outright and wholesale, are attempted to be banned by some cockamamie law or any executive part of the establishment, we need to remember how our Founding Fathers said "We are 9i$$ed-off, and we'reNOT gonna take any more of your ship (or like that) anymore. So, "We hold these Truths to be self-evident, that all Men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the Pursuit of Happiness -- That to secure these Rights, Governments are instituted among Men, deriving their just Powers from the Consent of the Governed, that whenever any Form of Government becomes destructive to these Ends, it is the Right of the People to alter or to abolish it, and to institute new Government ///note: NEW Government, NOT anarchy \\\ laying its Foundation on such Principles and organizing its Powers in such Form, as to them shall seem most likely to effect their Safety and Happiness. etc etc etc. (editited for lentgh)
Click to expand...

I do not dispute anything you put here, and I hold it to the highest regard. The facts are these... My State has no ruling on the carrying of firearms. My County says I can carry open, or concealed if I don't brandish, my city says if I carry in any fashion I will be arrested. There it is. I don't agree with it, and yet there is not a lawyer in this town that will challenge the city on these constituional rulings. I have to have a job, and work to provide form my family. I can't afford to be in jail, and not feeding them. Now say if 10,000 of the well meaning people in this forum wish to come on down here, strp on their weapons, and march upto the court house I'll lead the pack. But it is much more comforting to sit behind our computers, and say we should do something rather than take the risk of actually doing it. Any takers. Let me know, and I'll start organizing it. The invitation stands to the beloved NRA themselves as well.
Oh and while I am ranting on them too, anyone care to figure out how many members of the NRA there are, what they pay in dues, and explain exactly what that money has accomplished so far!.

Ok rant mode off, I'll shut up now.
 
This is not a plug, but . . . . . .

.....there are more than two Constitutional attorneys listed in ShotGunNews from time to time. The Supreme Court has been heard to remark, "It isn't law until we say it is law." The Supreme Court needs to look back and see what that same attitude got King George !! I do not suggest an armed and angry "million-man-march" on statehouses, yet. But it might have an impact if we had a few major organization behind us. (I am soured on Wayne La Pierre's group, but there are dozens more.) "The People" are the law, NOT some band of black-robed bliss-ninnies. One of us, or some of us, may have to stand up for our individual right under the 2d, make a big sacrifice, and hope the rest of us will help him to bear it through. Then there will be case law on the topic. Do a GOOG-search on "2d amendment rights" and sort out one which you can support. Then let us know. Figuratively, we must refuse to "sit in the back of the bus" any longer. Our cause is even more crucial than Rosa's, because if we lose on the 2d, we are dead. First they'll try to ban our guns, and then they will try to butcher our guns, and then the remainder of our rights. And then us.
 
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