Which is more important? U.S. Constitution or...


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lanternlad1
January 12, 2009, 07:12 PM
Which is more important? U.S. Constitution or...<Your State> Constitution.

I only ask because I hear so many refer to the Second Amendment of The U.S. Constitution, but very few tend to recall their own State's Constitution where gun rights are concerned.

In my case: The Texas Constitution Bill of Rights regarding guns goes as follows:

Sec. 23. RIGHT TO KEEP AND BEAR ARMS. Every citizen shall have the right to keep and bear arms in the lawful defense of himself or the State; but the Legislature shall have power, by law, to regulate the wearing of arms, with a view to prevent crime.

Given that many states invoke State's Rights when unwilling to bend to the Fed. mandates, (as Vermont and Montana did when choosing not to enforce the Patriot Act) which laws hold jurisdiction?

California, New York, and Massachusetts don't seem to have any RKBA clauses in their State Constitutions, so does the Second Amendment automatically trump local laws in that case? Or can those states use their State's Rights to try to trump the U.S. Constitution?

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CoRoMo
January 12, 2009, 07:14 PM
Sort of depends on which one, my state or the feds, are the ones currently infringing upon my right.

MikePGS
January 12, 2009, 07:34 PM
I could be wrong, but I was under the impression that the supremacy clause trumps state rights in the sense that states can't make amendments that are unconstitutional (ie california can't make a law denying women or minorities the right to vote).

moooose102
January 12, 2009, 07:35 PM
IMO, THE Uninted States of America's Constitution is THE most important document there ever has been. if you dont like your state constitution, you can move!

a2fireball
January 12, 2009, 07:43 PM
A very good question. I am a strong supporter of states rights. I think it comes down to: States can make any law they want, as long as it does not violate the U.S. Constitution.

:)

JWF III
January 12, 2009, 07:53 PM
A very good question. I am a strong supporter of states rights. I think it comes down to: States can make any law they want, as long as it does not violate the U.S. Constitution.



+1 But ever since the Civil War the Federal Government doesn't see it that way. That is the main reason for the War of Northern Aggression. The Southern States wanted the right to govern as they saw fit. But the Federal government wanted to always hold the trump card.

The Founding Fathers wanted the states to have the final say so, as long as they didn't violate the BOR. Remember there was no Constitution other than the BOR then. They wanted a minimal Federal Government, not the massive government that we have today.

If we could only get back to that, but I digress.

Wyman

dave_pro2a
January 13, 2009, 01:19 AM
Neither, both are just an expression of philosophical truths that trancend the works in which they are expressed.

Burn them all, the philisophical ideas and truths are still valid: natural laws, natural rights, classical liberalism.

WTBguns10kOK
January 13, 2009, 01:41 AM
I agree with the above. Just know your own right to have guns, because everything else will probably be taken away eventually.

Guns and more
January 13, 2009, 05:13 AM
All rights not spelled out in the US Constitution are reserved for the states. Seems pretty clear The US Constitution trumps state law.

LKB3rd
January 13, 2009, 06:29 AM
All rights not spelled out in the US Constitution are reserved for the states.
OR THE PEOPLE!... er.. Or the people I mean. :)

carlrodd
January 13, 2009, 08:09 AM
i have to agree with the idea that the principles that inspired and helped form the bill of rights are what is important. we've too many examples of the constitution being seen as a living document that can be twisted to serve whatever dubious political agenda. ultimately, the document will mean nothing, as it resembles the original intent less and less. people really need to start thinking about this more, because that document is about to be dealt it's death blow, and the principles that inspired it are already under constant assault.

subknave
January 13, 2009, 08:44 AM
Anyway back to the original question. In our current society the federal constitution trumps the state but in many issues, including firearms, the states get away with restrictions on rights that are codified in the US constitution. There are a wide variety of systems in place from state to state and all politicians try to manipulate them to their personal advantage.

TimRB
January 13, 2009, 11:05 AM
As it stands right now, the Second Amendment does not apply to the states, so if your state constitution doesn't have a RKBA clause, then only the Federal government is bound by the 2A. In other words, the 2A has not been incorporated yet. This is why the NRA (and others, I suppose) have filed lawsuits at various locations around the country in the wake of Heller.

Heller has said that the 2A protects the people's right to keep and bear arms from attack by the Feds. If the 2A is incorporated as a result of one of the new suits (likely) then it will apply to the states, too.

Edit: Sheesh. Do people think I'm making this up?

http://en.wikipedia.org/wiki/Incorporation_(Bill_of_Rights)

From that article:

"Even years after the ratification of the Fourteenth Amendment the Supreme Court in United States v. Cruikshank, still held that the First and Second Amendment did not apply to state governments."

Tim

Art Eatman
January 13, 2009, 11:29 AM
Folks seem to have lost sight of the questions in the OP.

Just a reminder...

:D:D:D

subknave
January 13, 2009, 11:44 AM
Most state constitutions have some sort of right to keep and bear arms provision.

Illinois:
SECTION 22. RIGHT TO ARMS
Subject only to the police power, the right of the
individual citizen to keep and bear arms shall not be
infringed.

Wisconsin:
Right to keep and bear arms. SECTION 25. [As created
Nov. 1998] The people have the right to keep and bear arms for
security, defense, hunting, recreation or any other lawful purpose.

Califronia:
CALIFORNIA CONSTITUTION
ARTICLE 1 DECLARATION OF RIGHTS
SEC. 7.5. Only marriage between a man and a woman is valid or
recognized in California.

No right to keep and bear arms in Cali, New Jersy or New York that I could find. Most states are similar to ILL and Wisconsin.

MAKster
January 13, 2009, 11:44 AM
The U.S. Constitution is the supreme law of our nation and trumps everything. That includes federal statutes, state statutes, state constitutions, treaties, executive orders, you name it.

Kleanbore
January 13, 2009, 11:46 AM
Does the Second Amendment automatically trump local laws in that case? Or can those states use their State's Rights to try to trump the U.S. Constitution?

From Article VI of the Constitution of the United States of America:

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, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.


Emphasis added.

And from the Fourteenth Amendment:

No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.



Not to sound critical, but I had to pass a test on the subject in eighth grade. I guess that's no longer in the required curricula.

deacon8
January 13, 2009, 01:07 PM
I believe the Constitution of the United States is the most important for two reasons. First, as alluded to earlier, one can always move to another state. Second, people always forget that the "Bill of Rights" was collaborated by the Founding Fathers, who deemed them "inalienable rights." Inalienable rights are rights that cannot be given, or taken, by man. They can be amended (difficult process), but they cannot be given or taken by corrupt politicians (even though they are obviously tampering with the most important one).

legaleagle_45
January 13, 2009, 10:18 PM
Not to sound critical, but I had to pass a test on the subject in eighth grade. I guess that's no longer in the required curricula.

Dang, I wish your eighth grade teacher would have a chat with my Con Law Prof in Law School. I had to learn all sorts of fancy things, such as "selective incorporation", "federalism", preemption, "dormant commerce clause"....

Your methodology is much simplier...:rolleyes:

Duke of Doubt
January 13, 2009, 10:32 PM
I am the nation's leading scholar of Third Amendment jurisprudence. Everyone gets so excited about the First and Second. But the Third Amendment is third for a reason, too. Nobody knows more than I do about the Third Amendment.

50caliber123
January 13, 2009, 10:38 PM
yeah. I think the 3rd is way under-rated. I mean, who wants to have to quarter soldiers or police in their homes? I think that the 3rd is a silent safeguard now that we may have to battle for in the future, depending on how world events play out.

Cuda
January 13, 2009, 10:55 PM
The US Constitution. It sets the framework for our Government and most importantly places limits on their power. IE: Shall not infringe

Which of course they completely ignore.

States rights, those not enumerated in the US Constitution, unless the state law breaks the Federal level.


C

fireman 9731
January 13, 2009, 11:21 PM
I would have to say the the US constitution does kinda have the final say in things....

I have however wondered about Kentucky's constitution....

All men are, by nature, free and equal, and have certain inherent and inalienable rights, among which may be reckoned:

First: The right of enjoying and defending their lives and liberties.

Second: The right of worshipping Almighty God according to the dictates of their consciences.

Third: The right of seeking and pursuing their safety and happiness.

Fourth: The right of freely communicating their thoughts and opinions.

Fifth: The right of acquiring and protecting property.

Sixth: The right of assembling together in a peaceable manner for their common good, and of applying to those invested with the power of government for redress of grievances or other proper purposes, by petition, address or remonstrance.

Seventh: The right to bear arms in defense of themselves and of the State, subject to the power of the General Assembly to enact laws to prevent persons from carrying concealed weapons.

Text as Ratified on: August 3, 1891, and revised September 28, 1891.
History: Not yet amended.

Is it just me or does the seventh section kind of seem to infringe upon the first, third, and fifth sections by preventing the carrying of concealed weapons? and why were they worried about the carrying of concealed weapons in 1891?

Duke of Doubt
January 13, 2009, 11:50 PM
fireman: "... why were they worried about the carrying of concealed weapons in 1891?"

The crime rate was much higher in the 1870s than it is now. Most concealed weapon laws derive from that period.

Chukpike
January 14, 2009, 12:07 AM
At least in California the Constitution and Federal law take precedence over state law.

California Constitution
Article 1. Declaration of Rights
Sec. 31
(h) This section shall be self-executing. If any part or parts of
this section are found to be in conflict with federal law or the
United States Constitution, the section shall be implemented to the
maximum extent that federal law and the United States Constitution
permit. Any provision held invalid shall be severable from the
remaining portions of this section.

Whether California follows this is open to interpretation.

Titan6
January 14, 2009, 10:25 AM
State's rights do not trump the constitution as was so pointed out during desegregation. In theory the constitution limits federal power and all other powers except what are in the federal constitution fall upon the state. In practice 210+ years of incrementalism have chipped away states rights to almost nothing.

Kleanbore
January 14, 2009, 10:33 AM
why were they worried about the carrying of concealed weapons in 1891?

Many, if not most, former slave states enacted laws against carrying concealed weapons, and in some cases carrying pistols in any manner, during that general era.

The purpose was to prevent freedmen from carrying.

ConstitutionCowboy
January 14, 2009, 11:05 AM
If you abide both, it doesn't matter which is "more powerful" or "more important". They are made to work in harmony.

Any powers usurped by those in the federal government does harm the several states when the several states don't stand up for themselves. That is where the next big court battle should rage, not necessarily the little bits and pieces brought up to the court by us poor little peons(though those little bits and pieces should never be conceded).

That said, the federal government has certain powers that it should exercise against the several states to protect our rights...The protection of our Second Amendment right chief among them.

Woody

Duke of Doubt
January 14, 2009, 01:41 PM
State constitutions come into play under the Tenth Amendment to the U.S. Constitution, which reserves all powers not delegated to the federal government to the people or to the states.

ConstitutionCowboy
January 14, 2009, 07:46 PM
State constitutions come into play under the Tenth Amendment to the U.S. Constitution, which reserves all powers not delegated to the federal government to the people or to the states.

The Tenth Amendment is probably the most violated amendment.

Woody

ServiceSoon
January 15, 2009, 12:43 PM
Based on how closely the 10th amendment isnít followed, I think the majority of state legislatures would lay down for the federal government.

eye5600
January 15, 2009, 02:15 PM
The US Constitution takes precedence if it applies. The 2nd Amendment could be could be interpreted to mean that the Federal Govt can not abridge RKBA, or it could mean that neither the Federal Govt, nor any State, no any lower level can do so. It depends on whether the 2nd Amendment is considered to be "incorporated." As best I understand from the Volokh Conspiracy (a law profs blog), there has not been a definitive ruling on this from the Supreme Court, so there are some unsettled aspects to the question. The recent Heller decision (DC Handguns) suggests the current court leans toward incorporation.

In Connecticut where I live, there is both a RKBA in the state constitution, and an AWB, so go figure.

Someone in DC has the text of some proposed new AWB that basically bans all semi-automatic rifles, and it's been suggested that some people want to ban all semi-autos of all types. I doubt that anything like either would pass Congress soon, but I also doubt that the current Supreme Court would tolerate a law that says "yes, you can have a gun, but it has to be an old-fashioned gun". The actual language in Heller was along the lines of "you can't ban the kind of arm that the majority of citizens want to have in exercising their 2A right."

Thin Black Line
January 16, 2009, 08:23 AM
California, New York, and Massachusetts don't seem to have any RKBA clauses in their State Constitutions, so does the Second Amendment automatically trump local laws in that case? Or can those states use their State's Rights to try to trump the U.S. Constitution?

Some great questions and while logical people who pay attention to the rule
of law would say that the US Con would trump the state cons, many states
have ignored the US Con while making their own laws progressively more
restrictive within their own states.

If someone has the audicity to challenge a restrictive law at the local or
state level, then they can see how far up they can take this process. Can
a State Supreme Court actually reverse a more restrictive gun law because
they feel it went against the US Con (2A)? Has that recently happened? I
don't think so. (Please, if I'm wrong, cite a case). I haven't seen CA stop
any of its progressively more restrictive laws over the years. I see some
states that have continued the Semi-Auto Rifle and magazine bans in their
own states which did not exist a generation ago.

BTW, how'd that whole "we won a major victory against the DC gun
registration in SCOTUS" thing actually play out? I've heard DC continues
to thumb its nose at the SCOTUS decision and nothing has really changed
in practice in the meantime. (Again, correct me if I'm wrong). I didn't
see a Federal Agency going down the street to kick down any doors as
a smaller government violated 2A civil rights all those years anyway ;)

We've entered a time in history again where people say there are rules, but
it's just a "legal smorgasboard" where the government officials, agency heads,
judges, prosecutors, etc just pick and choose what laws they want to follow,
which ones they're going to enforce, and which they will ignore. This leaves
things at their whim rather than the rule of law and when you have a big
enough group in gov't seize power who don't like guns, then buh-bye.

Don't like something in the US/State Constitution? Then just ignore it. Are
you the little guy who gets hurt as a result? Sure, but who cares. I'm
sorry to be blunt about this, but US Citizens with a vote don't matter. You'd
better be a global citizen with a big bankroll and political access to the "right
people".

Now since there are enough people waking up to this fact about our goverment,
there is now a movement just to change the pieces of paper (constitutions)
in order to make them match up to the current thinking within the halls of
goverment (this is a return to top-down governance and not We The People
reprentation, of course).

We've had 40+ years of anti-gun propaganda which has been followed by
years of socialist thinking against individual citizens and their private property
rights (your gun is your private property until the State takes it away), which
has recently been followed by another wave of desire to hold a Constitutional
Convention.

Gungnir
January 16, 2009, 11:35 AM
My $0.02

Power corrupts.

If you consider when the US Constitution was written, it was at a time when standing armies were viewed with suspicion, after all a standing army had been used for years to repress and oppress the "colonials" who ultimately formed the US.

Because of this there were safeguards built in to the legislation of this new country, the Constitution, and later the BoR primarily to limit government intrusion into peoples lives, and assign rights that all of the people in the US hold. If I remember correctly there was an Bill needed to form a standing permanent army for the US back in the day.

Now I'm a foreign Legal Permanent resident and have applied for citizenship (and I'm pressuring my State representatives to repeal WA States stupid AFL regulations see other thread on this), and I find myself VERY protective of the Constitution and BoR since I come from the UK where these don't exist (in real terms, since there's really only the Magna Carta and common law).

Unfortunately I see a lot of people (Federal, state, and even citizens) more than happy to reinterpret or disregard a lot of these rights. Federal, and State I can at least sympathize with after all these documents were primarily written to limit their powers, and the only thing that someone in power wants beyond re-election (or a return to that power) is more power, and both the Constitution and BoR limit this. I have no sympathy for the citizens who allow this however, stupid is as stupid does, and sheep are bred for slaughter.

Now the wording of the BoR on the states is
10th Amendment
"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"

AND

Article 4 of the USC
"The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States."

AND
Article 6 clause 2 of the USC
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, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.

AND
14th Amendemt
All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

So by that definition If it's not covered by federal law, its covered by State law (or not at all), BUT state law cannot impinge on the Rights and Privileges assigned by the USC, BoR or other Federal constitutional Amendments as ratified (which is another ball of wax, since the 14th implies ratification). You can also see from the definitions how much this is actually acted on too.

As I said my $0.02

TimRB
January 16, 2009, 02:07 PM
"...and I find myself VERY protective of the Constitution and BoR since I come from the UK where these don't exist...)

Invariably naturalized American citizens are the most protective of our rights, probably because they have seen the other side of the coin firsthand. I have many Vietnamese friends who feel the same way.

Tim

eye5600
January 16, 2009, 02:28 PM
Government, i.e. Law Enforcement has always been concerned about concealed weapons. The current boom in super-duper pistols is very troubling to, say, bank guards and police officers. I see short-barreled guns with large capacity magazines as one area in which further restriction are likely.

abbyful
January 17, 2009, 05:33 PM
I wonder how many "average citizens" even know their state has a Constitution.

Kansas:
4. Bear arms; armies. The people have the right to bear arms for their defense and security; but standing armies, in time of peace, are dangerous to liberty, and shall not be tolerated, and the military shall be in strict subordination to the civil power.

Thin Black Line
January 18, 2009, 08:50 AM
Invariably naturalized American citizens are the most protective of our rights, probably because they have seen the other side of the coin firsthand. I have many Vietnamese friends who feel the same way.

The new citizen also reads the Constitution and sees it with eyes that haven't
been adulterated by years of domestic propaganda which have twisted the
very meanings of the words themselves.

"shall not be infringed" --how much clearer can that be made?

infringe: Break in or encroach on something

I've seen plenty of "encroaching" in my relatively short lifetime.

encroach: Advance gradually beyond due limits.

Like in 1934, 1968, 1986, 1989... at the federal level?

Anyone from CA like to chime in on the infringing and encroaching year by
year in their state?

How's the water feel, frogs?

The next generation of tadpoles are born into that warmer water and won't
even know something different existed before them :evil:

solareclipse
January 18, 2009, 08:31 PM
Federal overwrites state.

In matters where there is no federal law, i trust my state more than i would if the feds were to step in and write laws to fill the voids.

So obviously the US constitution is more important as it delegates down and determines the state constitutions to a large extent

hugh damright
January 20, 2009, 02:47 PM
It seems like there is a point to be made that the State constitutions frame goverments with broad/general/unenumerable powers which are limited by their BOR, while the US Constitution frames a government of enumerated powers ... so if we took all the bills of rights away, the US government should remain the same, but the State governments would be absolute.

Duke of Doubt
January 20, 2009, 02:57 PM
solareclipse: "Federal overwrites state."

Negative. The states delegated certain limited powers to the federal government. All non-delegated powers are retained by the states and the people. Tenth Amendment.

It's gotten messy in the wake of FDR's New Deal. Commerce Clause jurisprudence got laughably bad, allowing federal regulation of bedtime on the theory that uncounted sheep may cross state lines. But Constitutionally, the states are superior, not inferior, to the federal government. It's just that powers delegated may not be taken back, short of Constitutional Amendment.

We REALLY need to Amend the Commerce Clause.

MT GUNNY
January 20, 2009, 03:47 PM
If Dc vs Heller Went the Other Way it would have been a Breach of Contract in Montana's Statehood, also other States.
http://www.progunleaders.org/Heller/johnson.html
http://www.progunleaders.org/Heller/argument.html

Here is another Example of what a state Can do to Circumvent a Federal Law:

We all Know about the "Federal Gun Free School Zone Act"
Here is Montana's Answer to that Problem :

Exemption from Federal Gun Free School Zones Act

45-8-360. Establishment of individual licensure. In consideration that the right to keep and bear arms is protected and reserved to the people in Article II, section 12, of the Montana constitution, a person who has not been convicted of a violent, felony crime and who is lawfully able to own or to possess a firearm under the Montana constitution is considered to be individually licensed and verified by the state of Montana within the meaning of the provisions regarding individual licensure and verification in the federal Gun-Free School Zones Act.

Davionmaximus
January 20, 2009, 03:57 PM
United States constitution is the most important. I did not care for California's state constitution... so I moved to the much friendlier state of Texas

rabidgoldfish
January 20, 2009, 07:30 PM
The 14th amendment barrs the states from infringing on your rights either. That means the 2nd and 1st are not just limitations on the Federal power.

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