State v. Federal Constitution

M

MGB

New member
The Utah State Constitution states: "The individual right of the people to bear arms for security and defense of self, family, others, property or the state, as well as for other lawful purposes shall not be infringed; but nothing herein shall prevent the legislature from defining the lawful use of arms."

Can any of the legal scholars on the board explain the relationship between state and federal constitutional provisions? Does a more permissive state provision trump the 2nd A?

I have done some preliminary research and thought I would put it out for discussion.

[This message has been edited by MGB (edited May 05, 1999).]
 
Off hand, I'd say that a state constitution isn't going to mean diddly to the federal government, but will be binding on the state. Theoretically, off course, the federal government, lacking general police authority anyway, couldn't violate our right to keep and bear arms even if there WEREN'T a Second amendment... That was Madison's argument against having a Bill of Rights.
 
Let me give a specific scenario. What if the US Supreme Court decides the 2nd A is a state right and not an individual right. Then Congress impliments a handgun ban. Do I, as a Utah resident, have the right under the Utah State Constitution to still own a handgun?

[This message has been edited by MGB (edited May 05, 1999).]
 
MGB..
We'll have to address these concepts de jure and de facto

de jure: According to law; as the law states or is written.

de facto: Actually reality or fact; Actually exercising power

Basically these are the 2 concepts of law...how it is written, what it states and then how it is in reality practiced or implemented

In theory then, if the Sup Court interpreted the 2ndA as a state's rights issue and your state allows you to have guns, then theoretically the Congress can not pass a Fed law against gun ownership...they could pass such a law only in terms of Federal property and areas of Fed jurisdiction. The 9th & 10th Amendments state:

"The enumeration in the Constitution, of certain rights, shall not be construed to deny
or disparage others retained by the people.

"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."

Looks good on paper (de jure)....however, as practised (de facto) there are zillions of Federal laws that are plainly unconstitutional, but were done under the guise of expanding the powers of Federal regulation originally defined in Article I, sections 8, 9 and 10 of the Constitution. In order to overturn these laws, they either have to be overturned by Congress or heard before the Sup Court.

Again, theoretically the Fed. Gov't could have instituted gun control through the clause of regulating interstate commerce; by disallowing the sale of guns across state borders...thus in order to have guns, every state would have to have a gun manufacturer within its borders.

Therefore...in your original question....de jure you could have a gun if your state says yes, but de facto practice by the Feds, who knows


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"Quis custodiet ipsos custodes"
 
Jason..
In his scenario, there was no conflict...

In essence he is asking if the Feds could, after the fact, make a law that conflicts with State's current constitution. I don't think they can, which is why the Feds take the regulatory approach.

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"Quis custodiet ipsos custodes"
 
DC,

Using MGB's example with the Utah state constitution. If the 2nd ammendment to the federal constitution did not exist and congress banned guns for the general welfare of the population.

a1.Section 8.
The Congress shall have power
1 To lay and collect taxes, duties, imposts and excises, to pay the debts and provide for the common defence and general welfare of the United States;

and the authority is granted in the next section to make and enforce a law doing so:

18 To make all laws which shall be necessary and proper for carrying into execution the foregoing powers, and all other powers vested by this Constitution in the government of the United States

Then it would not matter what the state consitution said the federal consitution would overrule it.

Another example would be if the Mississippi state consitution allowed slavery today and someone said well the state constitution allows it I don't care what the federal constitution says. The federal government would be justified in sending in lots of deputy marshalls to explain otherwise, and if the situtaion got even more out of hand the US Military to put down what essentualy would be and insirection.

Jason
ps please excuse the spelling errors.
 
Jason...

If it were that easy they'd just ban guns and be done with it. It ain't that easy and I'd like you to show me where a relatively recent(ca. 60 yrs) Federal law has overturned pre-existant State Constitutions. Please include bill numbers and the particular State Constitutional reference.

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"Quis custodiet ipsos custodes"
 
DC,

I don't under stand why you are asking this? All state constitutions have been brought into line with the federal constitution. If a federal law was overruling something in a state constitution today it would more than likely be violating the federal constitution and thus not binding due to being unconstitutional anyway.

DC, you have kind of lost me with your response. My example in the other post assumed that there was no 2nd ammendment and that congress was within its authority to be regulating guns. The situation as presented assumed that there was no second ammendment to the federal constitution and asked if the state constitution said it was protected [RKABA] would it protect a person against a federal handgun ban. I don't think that it would because whenever there is a conflict between state and federal laws, the federal law takes precident. From an abstract on the oyez web site. From 14 U.S. 304 (1816)

Martin v. Hunter's Lessee
"The Court rejected the claim that Virginia and the national government were equal sovereigns. Reasoning from the Constitution, Justice Story affirmed the Court's power to override state courts to secure a uniform system of law and to fulfill the mandate of the Supremacy Clause"(http://oyez.nwu.edu/cases/cases.cgi?case_id=225&command=show)


Again trying a non firearms example. If the Mississippi state constitution of today allowed slavery a person could not own slaves due to the federal constitution. However it there was no mention of slavery or equal rights in the federal constitution and the Mississippi state constitution said it was ok, then it would be ok, or if it said it was not ok then in the state of mississippi it would not be ok due to the state constitution.

Is this any clearer? Or am I completely missing what you are saying?
Jason


[This message has been edited by Jason Kitta (edited May 06, 1999).]

[This message has been edited by Jason Kitta (edited May 06, 1999).]
 
Kitta: Well, as a THEORETICAL MATTER, (See the above explaination of de juror vs de facto.) federal laws only over-ride state laws WHERE THE FEDERAL GOVERNMENT HAS JURISDICTION. Under this good faith reading of the Constitution, the federal government could, conceivable, (And ignoring the Second amendment.) prohibit interstate trade in firearms, but could not actually BAN guns. As an example of this, look at the way machine guns were subjected to a $200 transfer tax, at a time when they cost, what? $50? But leave this theory aside, because the federal government hasn't been required to substantially comply with the Constitution since FDR established the tradition of appointing yes men to the judiciary back in the 1930's. So for practical purposes, we don't actually HAVE a Constitution.
 
My example in the other post assumed that there was no 2nd ammendment and that congress was within its authority to be regulating guns.

This was a qualifier for the example. DC posted a very good article about the 10th ammendment also.

Jason
 
Gentlemen... you must consisder that since the War Powers Act was passed , signed into law , and activated: we have been operating under an admiralty court and a congress that exists at the pleasure of the president. With it he also gained the power to create law via the Executive Order, of which Mr Clinton has written more than all of his predicessors combined, and is poised to sweep FEMA into acting as his enforcement arm of his own dictatorship... or if not him for any other president who follows him. ( these EO's are ongoing from admin to admin ) You don't believe?... go read about the WPA of '34.

The questions is gentlemen , when are we going to say enough is enough? Remembers Churchills speech? I say we are beyond the point of no return, and in need of some hard core action ! Ask any politition if he or she is in favor of enforcement of the Bill of Rights ?

Title 18, part 1, chptr 13 sec 241... conspiracy against rights. Thats where our dollars should be going ... to sue HCI and the lawyers involved in the firearms suits.

My cold dead fingers.......

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What part of "INFRINGED" don't they understand?
 
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