The Second Amendent and its application to the states

J

John/az2

New member
I have for as long as I can remember operated under the idea that the 2nd Amendment applied to each individual state. In that no state could constitutionally pass a law that infringed upon the ownership and bearing of arms.

However, I am inclined now to change my position upon this issue. Here is why:

<UL TYPE=SQUARE>
<LI>The Consitution was written to define and control the powers of Federal government.

This brings up the 10th Amendment which states:
<BLOCKQUOTE><font size="1" face="Verdana, Arial">quote:</font><HR>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.[/quote]

Thus giving the state the right to dictate law concerning the right to keep and bear arms through the popular voice of those delegated to define such laws within the state.

<LI>If I remember correctly there are 3 states that do not have within their own constitutions the provision to keep and bear arms. California being one of them.

If this is true, then the California legislator is perfectly within its consitutional limits when it passes a ban on any feature, ammo type, capacity, or firearm.
</UL>

Does this then mean that Washington D.C. is in the most direct violation per this interpretation of all territories of the USA, as it is not a state, but a federal district? And that all federally mandated bans and limitations are in direct conflict with consitutional restrictions, as well as a possible national CCL, but state bans and limitations would no be, unless restrained by their own constituton?

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I apologize for the half-baked structure of this post...

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John/az

"The middle of the road between the extremes of good and evil, is evil. When freedom is at stake, your silence is not golden, it's yellow..." RKBA!
 
John,
I think the Bill of Rights limits all governments at all levels. If that wasn't the case, the Feds, the ACLU or others wouldn't be able to sue state and local governments for laws that violate the Bill of Rights.

What comes immediately to mind is the ACLU filing suit against local governments during the holidays over religious symbols on public property or prayer in school or posting of the 10 Commandments on the wall in schools and courthouses. The courts all the way up to the US Supreme Court have ruled that the First Amendment applies to state and local government.

Jeff
 
John,
The Language of the Amendment
The inalienable right to defend life and liberty as set forht in Article 1, Section 1
of the California Constitution includes the fundamental right of each person to keep and bear arms for the defense of self,family and the home. This right shall not be infringed.
1. All state government action regulating the right of law-abiding persons to acquire and possess arms for the defense of self, family and home, shall be subject to strict scrutiny, in the same respect as the freedoms of speech and the press. All county, city and local government action on this subject is preempted by state law and this Amendment.
2. This Amendment does not limit the State from regulating the aquistion and possession of arms by: felons, minors, the mentally incompetent, and any person subject to restraining orders based upon their own violent conduct.

Yeah John, we got one. It's just turning into sh-t since the socialist moved in.
 
Whoa, hold on there! First, the Bill of Rights enumerates what Madison, et al, believed to be pre-existing "god given" rights. It does not grant rights. Secondly, the Supreme Court has ruled that the 14th Amendment extends the Constitution to cover the states.

Extreme Machine, you're quoting a proposed amendment that is just now starting the signature process. Check out http://www.vetothegovernor.com/
 
Correct , the 14th Amendment extends the protections of the Bill of Rights to the States. In other words. States may not pass laws that are contrary to the US Constitution. That is the justification for forcing States to get rid of the Jim Crow laws.
 
Since you're citing law, let's discuss the United States Code. In particular, Title 10 Chapter 13 Sections 311 and 312. Most people who are members of this forum are probably in the militia. My state statutes (Wyoming Title 19 Chapter 2) are an almost verbatim quote of the US Code. I'm a member of both the federal and my state militia. Oh, my gosh, not the M-word...

So once again, what part of infringed don't they understand?

Finally, the intent of the law must be understood. Do we really need to repeat whom the founders intended the militia to be?

Does the Respublik Kaliforniya have any references to a state militia in its statutes?

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Hoka-hey
 
"I have for as long as I can remember operated under the idea that the 2nd Amendment applied to each individual state. In that no state could constitutionally pass a law that infringed upon the ownership and bearing of arms."

It limits the federal gov't. State gov'ts are covered under the 14th amendment. Some states have constitutions indicating variances on the 2nd Constitutional amendment, and some don't.
 
I've always read the phrase "THE STATE" to refer to the gov't itself...all inclusive..I felt if they actually were talking about the individual states the word would have been plural ..with that in my head..it seems that the 10 th covers the rest...however the 10th doesnt negate the second because to me the 2nd doesnt say "make up your own mind" the second clearly states "shall not be infringed".That makes the second the law of the land, because it is specifically "prohibited by it" as worded in the 10th. I hope that made sense to someone besides me..
 
The BoR only delineates those items on which the gov't may never infringe. They recognise "God-given" rights.

Let's say I don't believe in God & we didn't have a Constitution w/BoRs included.

Every living thing's strongest drive is procreation & defense of one's life to be able to procreate.

Would not I require to tools to defend my life?

I can go along with being deprived of weapons (not just firearms) ONLY after having been adjudicated as a BG through due process and LEGAL laws. Most all the gun laws are contrary to the simple fact that I'm alive and not a BG.
 
Your right when you say that the bill of rights is just a reminder to our governments that these rights are natural god given rights and they shall not be infringed. As to the states being subject to the bill of rights (2nd also):

Cong. Globe, 39th Cong., 1st Sess. 2764-66 (May 23, 1866) Senator Jacob M. Howard introduced H.R. No. 127, which become the Fourteenth Amendment. In his introductory speech Senator Howard said of section 1 “the personal rights guaranteed and secured by the first eight amendments of the Constitution; such as freedom of speech and of the press; ... THE RIGHT TO KEEP AND BEAR ARMS [Senator Howard listed all of the first eight amendments]....... the great object of the first section of this amendment is, therefore, to restrain the power of the States and compel them at all times to respect these great fundamental guarantees."

Yes, the states are subject to the first 8 amendments by the 14th. Hope this helps.



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Richard

The debate is not about guns,
but rather who has the ultimate power to rule,
the People or Government.
RKBA!
 
John,

I humbly submit that your opinion is incorrect. If your line of thinking were accurate, then the state governments could quarter troops in your home involuntarily, compel you to testify against yourself in state court, search your home without a warrant for a state law violation, and a whole host of other items of that nature which clearly violate your rights under the Bill of Rights.

Also, there was a case early in this nation's history in which the Supreme Court held that all of the restrictions placed upon the federal government by the Constitution also applied to the state governments. I'll try to look that one up and post a reference here.
 
So how does all this relate to the subject of concealed carry...where you can and cannot carry. If the 2nd ammendment says you can keep and BEAR arms...(bear... meaning carry?)and the 14th says the states can't make any law that infringes on the other ammendments..then are'nt concealed carry laws in and of themselves illegal??(unconstitutional?)Does this apply to open carry of a firearm? Do states have laws for or against open carry?What constitutes open carry..(ie in a holster that is in plain view)Inquiring minds want to know??
 
MrX: Could it be that any and all laws which seek to limit the right to keep and bear arms are UNCONSTITUTIONAL???

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Better days to be,

Ed
 
I recall reading from a court case in, I believe Georgia. It had a quote to the effect of (paraphrase): "The states cannot, even leaving the consitutional question out of view, prohibit the people from keeping and bearing arms, and thus deprive the federal government of this resourse."

My words were not exact, but the gist was that the state could not disarm the people, because then the Federal government would not have the use of a militia, should that prove necessary.
 
While I think everyone here knows this already...

The US Consrtitution, and the included Bill of Rights, does indeed define, and place limits, and authorities upon the Federal Government ONLY.

The construct of the documents mentions three separate entities,
<UL TYPE=SQUARE>

<LI> People

<LI> States

<LI> Federal,

</UL>

these are fairly easily seen, and understood as references to the Person, State, and Federal, even by todays more relaxed manner of speech.

When in an arguement, or "debate" I get involved in comes up, I ALWAYS reference the 10th to set perspective to my colleage in debate.

Of course, I usually get the response that I'm not correct in my assertions. I then march to the terminal, and pull up this address

http://www.nara.gov/exhall/charters/billrights/billmain.html

This site is the National Archives and Records Administration, and usually works in quiting fears of foulplay.

Back to the post!!

Take a close look at the Preamble on this site, it has language that mentions fear of abuse by the very government the founders were creating.

Well, well, well. Imagine that they'd have fears that their own creation might become evil, and tyrannical without imposed restrictions.

Now, my friends, take a real close look at the Fifth Amendment, I'll take the Liberty to include it here;

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

Notice the section I've highlighted, it defines Militia as separate from LAND, or NAVAL forces. Who would that be then, I ask you?

For, at that time we hadn't Marines, or the Air Force, nor the National Guard. It was you and I, and everyone capable of carrying their own firearms to the end necessary to preserve the Constitution, and Bill of Rights. Wheww!!!

Now, how can any Law Student (read-politician) NOT have covered this matter in obtaining their title of Barrister?

Best Regards,
Don


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The enemy of my enemy, is my friend.
 
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