Spats McGee’s Federal Constitutional Primer

[Spats McGee]

Spats McGee’s Federal Constitutional Primer

In the last few months, we’ve had a great many newcomers around here, both at The Firing Line, and in the firearms community in general. In relation to the latter, I have said in other threads that the gun community needs as many ambassadors as it can muster. We have to be prepared to assist new shooters in learning the basics of gun handling, helping them find training, parts and supplies, and in learning the laws relative to firearms.

In that vein, I have prepared this post. This post is intended to be a basic primer on the United States Constitution and law. It is intended to give those unfamiliar with the workings of our Constitution and our government, both newcomers to the world of firearms law and our gun-owning friends from foreign lands, a quick overview of our constitutional law. It will not cover everything, nor should it. As far as I know, every State in the Union has its own constitution, and I simply have neither the time nor the requisite knowledge necessary to cover all of them adequately.

With that said, let’s take a look:

The United States Constitution:

First of all, it’s important to understand that the U.S. Constitution isn’t just “a law.” It’s The Supreme Law of The Land:

Originally Posted by Founding Fathers

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. U.S. Const. art. VI, cl. 2.

The above-quoted clause is more commonly known as The Supremacy Clause. Note the use of the word “shall.” That doesn’t say that the U.S. Constitution could be the law of the land, nor that it should be the law of the land. It says that it “shall be the supreme Law of the Land, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.” Id. The Supremacy of the U.S. Constitution is simply not up for debate. Any law passed by a governmental body at any level that is found to be in violation of the U.S. Constitution is declared unconstitutional, and invalid. Accordingly, the U.S. Constitution provides a framework for our country’s laws, at every level of governance, federal, state, and on down. As long as governmental entities pass laws inside that framework, such laws will be upheld by the courts.

Second, it’s important to understand what makes a law unconstitutional. When a law is invalidated as being unconstitutional, it means that a court has said that the law violates the constitution. That is, the law in question goes outside of the boundaries set by the Constitution. However, just because a state law or a state constitution isn’t exactly the same as the U.S. Constitution does not necessarily mean that it is unconstitutional. It may do things differently, so long as it does not conflict with federal constitutional or statutory law.

For example, the Fourth Amendment to the United States Constitution reads as follows:

Originally Posted by Founding Fathers

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized. U.S. Const., Amend. IV

By way of comparison, the Arkansas Constitution has a similar provision, but its provision reads as follows:

Originally Posted by Arkansas Constitution

The right of the people of this State to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated; and no warrant shall issue, except upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the person or thing to be seized. Ark. Const. art. II, § 15

Arkansas’ search and seizure provision is very, very similar to the federal provision. Nonetheless, the Arkansas Supreme Court has held that:

Originally Posted by Arkansas Supreme Court

. . . . [W]hile we lack authority to extend the protections of the Fourth Amendment beyond the holdings of the United States Supreme Court, we do have the authority to impose greater restrictions on police activities in our state based upon our own state law than those the Supreme Court holds to be necessary based upon federal constitutional standards. . . . Griffin v. State, 347 Ark. 788, 67 S.W.3d 582 (2002)

In other words, it would be a violation of the U.S. Constitution for Arkansas law to provide less protection for individuals than the Fourth Amendment requires. It is not a violation for Arkansas law to provide more protection, however, because doing so would leave Arkansas law "inside the framework" established by the U.S. Constitution. The Fourth Amendment tells us what the minimum protections that everyone covered by the U.S. Constitution enjoys. States are free to provide more protections than the Fourth Amendment requires, but may not provide less. Now that’s just an example, but that’s the basic idea. As long as government stays inside the framework established by the U.S. Constitution, laws will be upheld. Once they cross the boundaries of the framework, they’re unconstitutional.

But who decides if a law is unconstitutional? The short answer is: a court. Any federal court could declare a statute unconstitutional, but for purposes of dealing with the Second Amendment to the U.S. Constitution, the only one we’re really concerned about is the Supreme Court of the United States, SCOTUS. Why? Because that’s the one with precedential authority over all other courts. The Seventh Circuit Court of Appeals, for example, recently found an Illinois statute unconstitutional. What does that mean for residents of Missouri? Not much. A federal court in Missouri certainly may look at the Seventh’s decision, and consider it as persuasive authority. It is not binding, though. Missouri is in the Eighth Circuit, so it is not bound to follow the Seventh’s decisions. A decision by SCOTUS, though is binding. All of the state courts, all of the federal courts and all of the federal courts of appeal are required to follow SCOTUS’ decisions on federal law.

Getting to SCOTUS isn't as easy as just "takin' it all the way to the Supreme Court," though. You have to get there by the right path, under the right laws. More on that is covered under "Incorporation and Litigation Matters," below.

Now let’s take a look at our basic constitutional structure. The U.S. Constitution is divided into two parts. The first part consists of the Articles, and the second part is made up of the Amendments. I’ll take each in turn.

Articles:
There are seven Articles to the U.S. Constitution. I have no intention of examining each and every one in depth, but taking a look at the first three is useful. These provide the grants of power to each of our three branches of government: Congress, the Presidency, and the Judiciary:

Originally Posted by Founding Fathers

All legislative Powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives. U.S. Const. art. I, § 1

Originally Posted by Founding Fathers

The executive Power shall be vested in a President of the United States of America. He shall hold his Office during the Term of four Years, and, together with the Vice President, chosen for the same Term, be elected, as follows: . . . . U.S. Const. art. II, § 1, cl. 1

Originally Posted by Founding Fathers

The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish. The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behaviour, and shall, at stated Times, receive for their Services, a Compensation, which shall not be diminished during their Continuance in Office. U.S. Const. art. III, § 1

Take a look at the language of all three sections. Legislative powers “shall be vested” in a Congress. The executive power “shall be vested” in the president. The judicial power “shall be vested” in one supreme court, and Congress “may” establish lower courts from time to time. Each one is phrased in such a way as to be a positive grant of power to a branch of government.

In phrasing the Articles in this way, the Founding Fathers stated what the branches of government would be, and what powers they were to have. As noted above, the Founding Fathers also made it very clear that any laws passed by the federal government were to be superior to state laws.
(As an interesting aside, I believe that there was some debate at the constitutional convention as to whether to begin the document with “We the States,” or “We the People.”)

Amendments:
Article V of the U.S. Constitution provides for amendments:

Originally Posted by Founding Fathers

The Congress, whenever two thirds of both Houses shall deem it necessary, shall propose Amendments to this Constitution, or on the Application of the Legislatures of two thirds of the several States, shall call a Convention for proposing Amendments, which, in either Case, shall be valid to all Intents and Purposes, as Part of this Constitution, when ratified by the Legislatures of three fourths of the several States, or by Conventions in three fourths thereof, as the one or the other Mode of Ratification may be proposed by the Congress; Provided that no Amendment which may be made prior to the Year One thousand eight hundred and eight shall in any Manner affect the first and fourth Clauses in the Ninth Section of the first Article; and that no State, without its Consent, shall be deprived of its equal Suffrage in the Senate. U.S. Const. art. V

And amend it they did. I’m not going to get off into all of the Amendments. However, a quick look at the first ten Amendments is instructive. The first ten Amendments are known as The Bill of Rights. The Bill of Rights is phrased in a restrictive fashion, telling us the limits of what the government is allowed to do:

Originally Posted by Founding Fathers

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances. U.S. Const, Amend. I

Originally Posted by Founding Fathers

A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed. U.S. Const, Amend. II

Originally Posted by Founding Fathers

No Soldier shall, in time of peace be quartered in any house, without the consent of the Owner, nor in time of war, but in a manner to be prescribed by law. U.S. Const., Amend III

Originally Posted by Founding Fathers

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized. U.S. Const., Amend. IV

Note the difference between the Articles and the Amendments. The Articles are filled with “somebody shall have the power to do X,” while the Amendments are full of “the government shall not do Y.” The Articles grant power; the Bill of Rights restricts it.

I don’t want to go down through all of the Amendments, or even all ten of the BoR, but there is one later Amendment that has to be mentioned in this: the Fourteenth Amendnent. In particular, the Due Process Clause of the Fourteenth Amendment.

Originally Posted by Founding Fathers

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. U.S. Const., Amend. XIV, § 1

Why is this clause important? Because it is the method by which federal constitutional provisions are extended down to the states. Just because the U.S. Constitution says something does not automatically mean it applies to the states. Some provisions have been held to apply only to the federal government. The process by which federal constitutional provisions are extended to the states is called incorporation, but not every clause of the U.S. Constitution has been incorporated to the States.

For example, the Fifth Amendment says:

Originally Posted by Founding Fathers

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. U.S. Const., Amend V

The grand jury clause, above, has not been incorporated to the States. That means that a criminal defendant may be indicted on state charges, even for murder or an “infamous crime,” without a grand jury. Many states charge murders and other infamous crimes by way of a document called an "information," filed by the prosecuting authority. On the other hand, the federal government is required to use a grand jury to indict someone for an infamous crime.

The self-incrimination clause, on the other hand, has been incorporated to the states. “We hold today that the Fifth Amendment's exception from compulsory self-incrimination is also protected by the Fourteenth Amendment against abridgment by the States.” Malloy v. Hogan, 378 U.S. 1, 6, 84 S. Ct. 1489, 1492, 12 L. Ed. 2d 653 (1964).

So what does all of that mean for us at The Firing Line? Clearly, we’re most concerned with the Second Amendment. That one is currently in what I would call a “formative phase,” in that it is only recently that the U.S. Supreme Court has declared that:

Originally Posted by SCOTUS

We therefore hold that the Due Process Clause of the Fourteenth Amendment incorporates the Second Amendment right recognized in Heller.

McDonald v. City of Chicago, Ill., 130 S. Ct. 3020, 3050, 177 L. Ed. 2d 894 (2010).

The “incorporation” mentioned above means that the 2A is now applicable to the States, which SCOTUS had never before held.

(Cont'd in next post.)

[Spats McGee]

(Cont'd from previous.)

Incorporation & Litigation Matters:
For those of you that may wonder how it is that America came to have such a complex patchwork of firearms laws, well, it’s because incorporation doesn’t happen all at once. We have 1 Federal Constitution, 50 State Constitutions and the District of Columbia, which is an odd beast all its own. Each State is considered to be a sovereign all its own. Each State has its own judicial system, and its own highest appellate court. That highest appellate court in each state is considered to be the final authority on what state law means, as long as that state law doesn’t conflict with federal law or the U.S. Constitution. Before the Second Amendment was held to apply to the States, there was no real possibility of conflict with the federal 2A, because the federal 2A didn’t apply to a state law! Accordingly, each and every state was pretty much free to craft its own firearms law as it saw fit, as long as the law in question complied with the appropriate state constitution. In 2010, SCOTUS changed that by incorporating the 2A, and now we're in the process of figuring out exactly what that means for the 50 States. For 219 years, the States did not have to worry about what the 2A meant, because it didn't apply to them.

Up until the 2A was held to be incorporated to the States in McDonald, it would have been extremely difficult, if not impossible, to challenge State law in the federal courts. What, then, could be challenged? Well, U.S. v. Miller, 59 S.Ct. 816 (1939), was a challenge to the NFA. So you could challenge the NFA. You could challenge any of federal firearms laws under federal question jurisdiction, but that was about it. Most firearms laws are state laws. Remember that I said that every State has its own highest court? Well, that highest court in each state is the final arbiter of what that state's laws mean, as long as they don't run afoul of federal law. If the State's highest court interpreted a law in a way that didn't conflict with federal law, then there was no reason for a federal court (being courts of limited jurisdiction, as explained below), even SCOTUS, to hear a purely state-law case. And since the 2A didn't even apply to state laws, there was never any reason for the States' highest courts to even consider whether one of their firearms laws might have violated the 2A.

What’s more, federal courts are courts of limited jurisdiction. There are a couple of different kinds of courts, but the ones we’ve been concerned about in 2A litigation are “Article III courts.” They’re formed under Article III of the U.S. Constitution, and they only have jurisdiction in a limited set of circumstances:

Originally Posted by Founding Fathers

The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority;--to all Cases affecting Ambassadors, other public Ministers and Consuls;--to all Cases of admiralty and maritime Jurisdiction;--to Controversies to which the United States shall be a Party;--to Controversies between two or more States;--between a State and Citizens of another State;--between Citizens of different States;--between Citizens of the same State claiming Lands under Grants of different States, and between a State, or the Citizens thereof, and foreign States, Citizens or Subjects. U.S. Const. art. III, § 2, cl. 1

Again, I’m not going to “get down on the gnat’s eye” as far as the details of this particular Article go. There’s too much there that just isn’t relevant to an overview of ConLaw and 2A litigation. Suffice it to say that that a few principles apply, two of which are particularly important to us.

1) There must be a “case or controversy.” Our courts do not issue advisory opinions. If there’s not an actual dispute, the case will be dismissed.
2) If there’s a question of federal law, a federal court may take jurisdiction. This is called “federal question.” There are several bases for a federal court to take jurisdiction, but this is the one we really need for 2A litigation.

Now that the 2A has been incorporated, state laws may be challenged on 2A grounds. Wahoo! As I mentioned above, SCOTUS is the “big dog” on the federal constitution, and its decisions are the ones that really count. So how does one get to SCOTUS?

In civil litigation, there are basically two paths:
1) Start a challenge in state court, run it all the way up to the highest appellate court in the state, then try to take an appeal to SCOTUS. SCOTUS still has to have a basis for accepting the appeal, though.
2) Start a challenge in federal court, appeal up through the Circuit Courts of Appeal, and then up to SCOTUS.

Technically, & I may be wrong here, I think you can get to SCOTUS by either appeal or writ of certiorari. I have not studied this part of the law enough to speak definitively on the intricacies. What I do know is that SCOTUS is not required to grant either. Regardless of which path is taken, SCOTUS can simply decline to hear the case effectively affirming a lower court’s decision.
I realize that this primer really doesn’t tell the reader much about the specifics of gun laws. However, it is my hope that those newcomers that I mentioned at the beginning have a slightly better understanding of our constitution and our Constitution and the interaction between federal constitutional law and our state laws.

ETA: As Frank Ettin noted when I posted this on The Firing Line, one point that I forgot was: the scope of the US Constitution is limited to regulating governmental relationships, such as between the federal government and the States, or as between the government and the governed. The Constitution does not, in and of itself, regulate conduct as between non-governmental entities or persons:

Originally Posted by Frank Ettin

The Constitution regulates the conduct of government, not that of private persons or entities. Nothing the corner store, your [non-governmental] landlord or your [non-governmental] employer might do (even if illegal for other reasons) can be unconstitutional, because their conduct is not subject to the Constitution.

[legaleagle_45]

Originally Posted by Frank Ettin
The Constitution regulates the conduct of government, not that of private persons or entities. Nothing the corner store, your [non-governmental] landlord or your [non-governmental] employer might do (even if illegal for other reasons) can be unconstitutional, because their conduct is not subject to the Constitution.

Because I do not believe in absolutes such as "nothing" or "never" even when applied to Constitutional Law, I will merely point to the 13th Amendment which states:

Section 1. Neither slavery nor involuntary servitude, except as a
punishment for crime whereof the party shall have been duly convicted,
shall exist within the United States, or any place subject to their
jurisdiction.
Section 2. Congress shall have power to enforce this article by
appropriate legislation.

Note that while Congress has supplementary authority to enforce the prohibition by appropriate legislation the private action of an individual which subjects another to involuntary servitude is, in itself, unconstitutional.

[Frank Ettin]

Originally Posted by legaleagle_45

Because I do not believe in absolutes such as "nothing" or "never" even when applied to Constitutional Law, I will merely point to the 13th Amendment which states:

Note that while Congress has supplementary authority to enforce the prohibition by appropriate legislation the private action of an individual which subjects another to involuntary servitude is, in itself, unconstitutional...

The Thirteenth Amendment appears to be the only at least theoretical exception. As the Supreme Court noted in Edmonson v. Leesville Concrete Company, Inc, 500 U.S. 614, 1 (U. S. Supreme Court, 1991), emphasis added:

"....The Constitution structures the National Government, confines its actions, and, in regard to certain individual liberties and other specified matters, confines the actions of the States. With a few exceptions, such as the provisions of the Thirteenth Amendment, constitutional guarantees of individual liberty and equal protection do not apply to the actions of private entities. Tarkanian, supra, 488 U.S., at 191, 109 S.Ct., at 461; Flagg Bros, Inc. v. Brooks, 436 U.S. 149, 156, 98 S.Ct. 1729, 1733, 56 L.Ed.2d 185 (1978). This fundamental limitation on the scope of constitutional guarantees "preserves an area of individual freedom by limiting the reach of federal law" and "avoids imposing on the State, its agencies or officials, responsibility for conduct for which they cannot fairly be blamed." Lugar v. Edmondson Oil Co., 457 U.S. 922, 936-937, 102 S.Ct. 2744, 2753, 73 L.Ed.2d 482 (1982). One great object of the Constitution is to permit citizens to structure their private relations as they choose subject only to the constraints of statutory or decisional law....

Some might argue that the Eighteenth Amendment was also a regulation of non-governmental conduct, but since it's been repealed the point is moot.

In any case, I'm not aware of any direct use of either the Thirteenth Amendment or the Eighteenth Amendment against private conduct. Are you? It would seem that any enforcement of the Thirteenth Amendment, as was enforcement of the Eighteenth Amendment, has been by way of any legislation enacted pursuant those Amendments.

[legaleagle_45]

Originally Posted by Frank Ettin
In any case, I'm not aware of any direct use of either the Thirteenth Amendment or the Eighteenth Amendment against private conduct. Are you? It would seem that any enforcement of the Thirteenth Amendment, as was enforcement of the Eighteenth Amendment, has been by way of any legislation enacted pursuant those Amendments.

Interesting sidebar on the 13th... the language of same was drawn almost verbatim from a 1787 statute which prohibited slavery in the Northwest Territories (NOT oregon territory, but Ohio, Michigan, etc..), said statute was passed under the Articles of Confederation and subsequently ratified by Congress acting under the Constitution.

This Amendment . . . is undoubtedly self-executing without any ancillary legislation, so far as its terms are applicable to any existing state of circumstances. By its own unaided force and effect it abolished slavery, and established universal freedom. Civil Rights Cases, 109 U.S. 3, 20 (1883).

However, and as far as I am aware, the self-executing effect of the 13th has never been applied as against individuals, but rather as against state and local governmental action by striking down laws that tended to promote a system of peonage.