You apparently live in a fantasy world and have nothing meaningful to contribute to a serious discussion of what the law actually is and how things actually work in the real world.
The reality is that the Founding Fathers assigned to the federal courts the authority to exercise the judicial power of the United States to decide disagreements about what the Constitution means and how it applies (Article III, Sections 1 and 2):
The exercise of judicial power and the deciding of cases arising under the Constitution necessarily involves interpreting and applying the Constitution to the circumstances of the matter in controversy in order to decide the dispute. Many of the Founding Fathers were lawyers and well understood what the exercise of judicial power meant and entailed.
Thus if there is disagreement about whether a statute enacted by Congress applies to decide a controversy or the application of the statute is barred by the Constitution, the matter is one within the province of the federal courts to decide. As the Supreme Court ruled back in 1803 (
Marbury v. Madison, 5 U.S. 137, 2 L. Ed. 60, 1 Cranch 137 (1803), 1 Cranch at 177 -- 178):
And so --
- In its ruling in Marbury the Supreme Court was merely exercising its explicit authority given it in the Constitution to exercise judicial power to decide cases arising under the Constitution. In doing so and reaching its decision in Marbury it was applying established Common Law principles -- just as courts were, and are, expected to do.
- And as Marshall pointed out, to decide the matter in Marbury the Court had to either sustain an act of Congress or conclude that the act of Congress was contrary to the Constitution, and thus sustain the Constitution. Either the act of Congress was valid, yielding one result, or it was invalid as conflicting with the Constitution, yielding a different result.
- In other words, the Court could not, in Marbury, decide the case without choosing either a law enacted by Congress or the Constitution.
- And without judicial review under the Constitution of acts of Congress or other actions of public officials, what would be the remedy for such a law or action that one believed was repugnant under the Constitution? Do we have a civil war over every disagreement about the constitutionality of a law? Does each person get to decide for himself whether a law is constitutional and therefore whether to abide by it?
The courts give deference to legislative acts and presume statutes valid and enforceable, until unconstitutionality is determined. As the Supreme Court said in
Brown v. State of Maryland, 25 U.S. 419 (1827), at 437:
And much more recently in
U.S. v Morrison, 529 U.S. 598 (2000):
So in the real world a statute is valid and enforceable unless and until it is found invalid by a court having appropriate jurisdiction. You might think the law is unconstitutional, and therefore invalid, but no one cares. Your belief in the unconstitutionality or invalid of a law keeps no one out of jail, nor does it have any effect on the lives and property of real people in the real world.
As Second Amendment jurisprudence matures post
Heller/
McDonald the Supreme Court will ultimately find certain regulation of the rights protected by the Second Amendment unconstitutional and others no doubt constitutionally permissible. In either case, its ruling will be based on precedent and established legal principles. And some people will complain that those rulings were flawed and erroneous, just as folks have complained about
Brown v. Board of Education,
Roe v. Wade,
Heller,
McDonald, and pretty much every Supreme Court decision of consequence.
So if one wishes to effectively and meaningfully argue about a regulation of the rights protected by the Second Amendment should be found unconstitutional, his arguments will need to be founded on the same types of bases, i. e., precedent and established legal principles. Arguments based on what might wish for or hope or want or like, or arguments based on a belief in unicorns, won't get anyone anywhere.
Since you alluded to the First Amendment, let's consider the regulation of rights protected by the First Amendment. While the First Amendment protects freedom of speech, assembly and religion, we know there has been a history of certain regulation of speech, assembly and religion. A few examples are:
- Laws prohibiting such things as false advertising, fraud or misrepresentation, as well as laws requiring certain disclosures in connection with various transactions, would absolutely survive a challenge to their validity on Constitutional grounds even though such laws do impinge on the freedom of speech. Among other things, such laws serve compelling state interests related to promoting honest business and helping to preserve the integrity of commercial transactions. They tend to be only as broad as necessary to serve that function.
- If you are offering securities or certain other types of investments to the public, your written solicitation materials will have to first be approved prior to use by one or more regulatory agencies. If you are selling medicines in interstate commerce, your labeling will have to be approved in advance by the FDA, and you will have to have demonstrated, through hard, scientific data, that any claims or representations made are true. These are also laws that abridge freedom of speech, and yet they are regularly enforced.
- Laws respecting the time, place and manner of speech or assembly have also survived Constitutional challenges. Thus a municipality may require that organizers obtain a permit in order to hold an assembly or a parade and may prohibit such activities during, for example, the very early morning hours. Such regulations would be permitted only to the extent necessary to serve the compelling state interest of protecting public health and safety. Any such regulations, to be constitutionally permissible, could not consider the content of the speech or assembly; and they would need to be applied in an even handed manner based on set guidelines and not subject to the discretion of a public official. See, for example:
- Hill v Colorado, 530 U.S. 703, 120 S.Ct. 2480, 147 L.Ed.2d 597 (2000), in which the Court, in upholding a Colorado law restricting protesting, educational or counseling activities within 100 feet of the entrance to a health facility, noted:
- Santa Monica Food Not Bombs v. Santa Monica, 450 F.3d 1022 (9th Cir., 2006) in which the court upheld a Santa Monica ordinance requiring a permit for public assemblies. In fact in Santa Monica Food Not Bombs the court specifically acknowledges that the ordinance may burden the protected right, noting, at pg 1038:
- In the leading case on prior restraint (Near v. State of Minnesota Olson, 283 U.S. 697, 51 S.Ct. 625, 75 L.Ed. 1357 (1931)) the Court in striking down a Minnesota statute allowing for the abatement, as a public nuisance, of malicious, scandalous and defamatory news analyzed in considerable detail and depth the scope and extent of the infringement of the freedom of press, the interests served and the availability of other and narrower remedies. And the Court then reached the conclusion that the statute went too far to be a permissible regulation.
But nonetheless the Court also noted that certain interests, under certain circumstances would justify even prior restraint (Near, 283 U. S. 657, at 715 - 716):
- In the past, laws prohibiting polygamy have been upheld against challenges that they violate the right to free exercise of religion (Davis v. Beason, 133 U.S. 333, 10 S.Ct. 299, 33 L.Ed. 637 (1890)).
- And let's consider the question of a tax on newspapers.
- For example, in Minneapolis Star and Tribune Company v. Minnesota Commissioner of Revenue, 460 U.S. 575, 103 S.Ct. 1365, 75 L.Ed.2d 295 (1983) the Supreme Court struck down on First Amendment grounds a Minnesota tax that affected only a few of the large newspaper publishers. And a major factor in the Court's decision was the differential nature of the tax.
- For example, the Court points out (Minneapolis Star and Tribune, 460 U. S. 575, at 581):
- But in Minneapolis Star and Tribune (at 581):
- However, the Court also admitted the possibility of a permissible regulatory tax (at 582):
So in fact the reality is that rights protected by the Constitution may nonetheless be subject to some limited regulation. The foregoing discussion of First Amendment jurisprudence serves the limited purpose of demonstrating that the courts do permit limited regulation of a constitutionally protected right. There are numerous examples of laws sustained by the courts which abridge freedom of speech, freedom of assembly, freedom of association, and freedom of religion. And First Amendment jurisprudence also offers some clues as to how such regulations will be evaluated by the courts.
We can not expect, nor will we see, perfect correspondence between the regulation of rights protected by the First Amendment and the regulation of rights protected by the Second Amendment. First Amendment jurisprudence is quite mature at this point, but Second Amendment jurisprudence, in the wake of
Heller, is in its infancy. However, we can expect some regulation of Second Amendment rights to be upheld by the courts.
