Help me with the law!

[xjchief]

I'd appreciate someone with an actual law degree (gotta be a few here) going over my understanding of the US Constitution.

The Constitution is the law of the land. For instance, the 1st amendment protects free speech, the 2nd the right to bear arms, and ect.

So, can a State further restrict Constitutionally protected rights or does the Constitution also protect the people from the States? Can a State pass a law that bans free speech and is in direct conflict with the 1st? Can a State ban arms or does the Constitution trump all State laws?

I had always understood that the US Constitution protects all of us from the Feds and the States. If so, how can so many complex gun laws from States to counties to cities exist?

I'm confusimicated! Someone please straighten me out.

 

[newbie4help]

Hi. I have one more year, but this is easy question.

Generally, yes. The Bill of Rights has been "incorporated" by the 14th amendment to the states. This is called the "Incorporation Doctrine" - it was a long process that occurred after the 14th was passed in the wake of the Civil War. NOT EVERYTHING IN THE BILL OF RIGHTS HAS BEEN INCORPORATED - the 2d amendment for instance has thus far not been construed to apply against the states. It sort of actually makes sense when you think about it since the whole point of the 2d was to allow the states to prevent military intrusions by the federal gov't.

But the state cannot do something that Congress would be forbidden to do under the 1st amendment or much of the 5th amendment for instance. The thing to remember is that several of the Bill of Rights are multi-part, and the Court has only incorporated certain parts for some of the Amendments.

Google Incorporation Doctrine and read the Wikipedia article it's a decent summary.

 

[xjchief]

I shall check it out. Thank you for the explanation!

I feel ashamed to not have a better understanding of such an important topic.

 

[WayneConrad]

The second amendment has not been incorporated. That is, it has not yet been applied to the states through due process clause of the 14th amendment.

Plus: Any federal infringements of the 2nd that do occur are authorized by congress, backed up the courts, and administered by the executive. And since they all agree they're not infringing upon the 2nd, they're not.

 

[Tribal]

newbie4help laid it out well. I'd just summarize it as saying that the US Constitution extends certain rights to all Americans; each state is free to expand the protection given but they may not decrease it between the minimum established by the US Constitution.

That said, "reasonable" restrictions to a general right have often been upheld. For instance, all citizens have the right to vote but no state allows anyone younger than 18 to do so (although they could allow those over 16 or whatever to vote if they wanted to).

WayneConrad also brings up another good point: generally, if you're looking to apply the Bill of Rights to a state government you need to have judicial precedent (prior decided Supreme Court cases) for that use. This has happened for most of the Bill of Rights, but not all (including, at least as of April 7th, 2008, the Second Amendment). I wouldn't be surprised if in future litigation in Chicago Alan Gura and the ILJ push for it to be incorporated.

 

[gbran]

Assuming SCOTUS rules in our favor with regard to Heller, we can then test what is or isn't an infringement. Laws won't automatically be repealed. And the big hurdle is not always wether or not one law is an infringement, but wether or not the totality of many laws are an infringement.

 

[Jimmy Dean]

I have a similiar quistion, could a governing body, lets say, a public university write policy against a state constitutionally protected activity, such as, free speech? Could my school say no more free speech, no more protests, religious or political discussions, blah blah blah etc etc etc?

 

[Tribal]

Jimmy Dean,

Probably, although different banned activities would likely get different levels of scrutiny (the college being considered to have received a delegation of authority from the state, much like a city or county). The RKBA seems to only merit "rational basis" scrutiny, meaning that the college only needs to show that it has some conceivably reasonable basis for doing what it's done. "Reasonable restrictions" on speech, protests, etc. get upheld all the time; so long as there's no outright ban then they're probably going to be upheld.

 

[xjchief]

I'm now completely lost. According to United States v. Cruikshank the 1st Amendment doesn't apply to the states nor does the 2nd.

"The Supreme Court ruled on a range of issues and found the indictment faulty. It overturned the convictions of two defendants in the case. The Court did not incorporate the Bill of Rights to the states and found that the 1st Amendment right to assembly "was not intended to limit the powers of the State governments in respect to their own citizens" and (neither directly supported nor directly contradicted by modern Supreme Court rulings) that the 2nd Amendment "has no other effect than to restrict the powers of the national government."

In Presser v. Illinois, the Supreme Court stated:

We think it clear that the sections under consideration, which only forbid bodies of men to associate together as military organizations, or to drill or parade with arms in cities and towns unless authorized by law, do not infringe the right of the people to keep and bear arms. But a conclusive answer to the contention that this amendment prohibits the legislation in question lies in the fact that the amendment is a limitation only upon the power of congress and the national government, and not upon that of the state.

So I guess I'm left with this understanding, basic as it may be.

The US Constitution only keeps the Fed.gov in check (well, theoretically at least)

The state constitutions are you're only protection from the State. (again theoretically)

So basically, if the BATF shows up I envoke the 2nd against them and then drag a copy of my state's constitution out to keep the locals at bay.

I know, I'm dreaming. Between the two of them I wouldn't have a prayer.

I wonder what it would be like to live in a truly free country?

 

[Tribal]

ATF can only legally work on federal issues...which, as you may surmise, is a broad mandate. Did you buy the gun from a manufacturer not in your home state? That's interstate commerce. Did you buy it from an in-state manufacturer who does substantial business out-of-state or drive on an interstate highway to get to the store? Probably still under the Commerce Clause. Did you build it yourself with parts substantially from out-of-state sources? Probably still under the Commerce Clause.

In the Prosser case, it wasn't an outright ban on militia-style drilling: just one in urban areas. This is going to be seen by most courts as "reasonable." (The key to probably most rules of law is whether or not something is "reasonable.")

 

[xjchief]

I understand that, but the Presser case clearly states that:

"But a conclusive answer to the contention that this amendment prohibits the legislation in question lies in the fact that the amendment is a limitation only upon the power of congress and the national government, and not upon that of the state"

Apples and oranges isn't it?

 

[armedandsafe]

I feel ashamed to not have a better understanding of such an important topic.

Be proud that you are willing to undertake the study in public. The difference between stupidity and ignorance is that ignorance is curable. You just proved that you are not stupid.

Pops

 

[Jim March]

Put simply, the US Supreme Court between 1872 and 1900 hated the 14th Amendment, and utterly destroyed it in that period. Both Cruikshank and Presser are part of that legacy along with Plessy v. Fergusen (the "separate but equal" case), Williams v. Mississippi (even worse than Plessy) and more.

The Supremes re-built the 14th in the 20th Century in "warped fashion" via a doctrine they invented called "selective incorporation". One civil right at a time, as cases came up, they "selectively incorporated" elements of the Bill Of Rights against the states. Individual justices often spoke out against this insanity and argued for full incorporation...see also Hugo Black's dissent in Adamson:

http://en.wikisource.org/wiki/Adamson_v._California/Dissent_Black

Cruikshank was likely the most evil of the pre-1900 anti-14th cases.

The murderous lunatics on trial in the Cruikshank case had FIRST stripped blacks of their right to arms under the 2nd Amendment, followed by their first amendment right to peaceful assembly and their 15th Amendment right to vote. They killed at least 103 blacks for daring to vote.

According to the US Supreme Court in Cruikshank, NONE of these civil rights violations by a mix of state agents and private citizens could be controlled by the Federal government.

Got that? It wasn't just about the 2nd. It was about whether or not the 14th Amendment applied ANY protections to US citizens by the Federal government against state and local gov't actions.

Presser just re-states Cruikshank and can otherwise be ignored...except that Presser condemns itself via it's reference to Barron.

At this point I'll refer back to what I've already written on the subject:

http://www.thehighroad.org/showthread.php?t=328612&highlight=presser&page=3

Start with my post there, and go through at east the exchange between Jon and I. I also added some commentary in a new post based on what we heard at the Heller oral arguments.

You'll also find a link to the Williams case. It's a must-read showing of how screwed up the US Supremes were on equal protection prior to 1900.

 

[yinyangdc]

IANAL but, I think a simple reading of the amendments with an application of logic will provide what should be the answer. The protections in the 1A begin with "Congress shall make no law" (If only they had stopped there), and the second says "shall not be infringed", with no reference to Congress. So, ignoring the 14th for the moment, as they were written the 1st applies to Fedgov (that "no shouting FIRE in a crowded theater" business was never a law by the US Congress, so it does not violate the 1st) while the 2nd SHOULD apply at every governmental level. (For this thread, let's not debate the private business thing.)
Let the games begin.

 

[xjchief]

Well I've been doing a lot of reading and here are some more questions regarding Heller v DC:

DC is not a state so I would think the second amendment is directly applicable to the residents of DC. In fact, wouldn't a DC resident be provided with "raw" protection under the constitution while those of us who reside in states are left with a double set of constitutions?

Does/can this case even address the indoctrination issue of the second amendment with regard to the states?

Further I'm wondering if SCOTUS rulings can affect state supreme courts. For instance, the State of Hawaii's constitution has the exact same language as the US constitution. If the SCOTUS rules that the 2nd is an individual right would a state's constitution with the exact same wording be tied to the SCOTUS's ruling?

 

[ShunZu]

And keep in mind that with the wave of a pen in the Oval Office, everything discussed above can be thrown away.

Executive Orders are a slippery slope. Especially #13286, which federalizes everything. More info on it here, if you're curious.

http://www.libertygunrights.com/CritiqueEO 13286.html

 

[BB62]

...It sort of actually makes sense when you think about it since the whole point of the 2d was to allow the states to prevent military intrusions by the federal gov't...

newbie4help,

Not in MY book.

You ought to study your history a great deal more.

 

[rainbowbob]

...the whole point of the 2d was to allow the states to prevent military intrusions by the federal gov't....

That may have been A point - but not the WHOLE point.

I appreciate the legal scholars among us wrangling with this issue, as it is something I have also wondered about.

On the one hand, it seems that the II-A restricts the Fed Gov from dictating to the individual states any infringement of firearm rights. but does it prevent the states from infringing their citizens rights? If so, we must look to our state constitutions to protect - or deny - our gun rights.

On the other hand, the II-A could (and IMO, should) be interpreted to provide protection from ANY infringement.

 

[El Tejon]

xj, Google "incorporation + Bill of Rights". This should help.

 

[xjchief]

Yes sir, I have.

I received an answer on another forum to my 3rd question regarding the application of a SCOTUS ruling on the 2nd and an identically written section of Hawaii's constitution. A supreme court ruling, according to the guy who answered, would preempt a state supreme court from any other interpretation- that is according to him.

 

[sailortoo]

As a small part of the question on the 2-A: a part of the "Presser v. Illinois" seems to me to undercut the States potential to restrict their people from keeping and bearing arms. Exerpt from Presser - "... as well as of its general powers, the states cannot, even laying this constitutional provision in question out of view, prohibit the people from keeping and bearing arms, so as to deprive the United States of their rightful resource for maintaining the public security, and disable the people from performing their duty to the general government." In plain language, if a/the states could disarm "the people", then the feds would not have a militia to call up, nullifying the whole purpose of the 2-A. At least, that is how I read it. And, as posted earlier, "Shall Not Be Infringed" is not qualified in any way, as to states or feds "Infringing", leaving only one way to interpret the meaning - "Shall Not Be Infringed" - period. Just my take on this, because I can't in good concious read it any other way.
sailortoo