MudPuppy said:
...But who decides what's too far...
As to whether a law is constitutional or not, it's the federal courts -- ultimately the United States Supreme Court. The Constitution provides (Article III):
Section 1. 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.....
Section 2. The Judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution,....
It's been well settled in the law that constitutionally protected rights are subject to limited regulation by government. Any such regulation will be looked at closely by the courts applying certain standards. There has been considerable litigation on rights protected by the First Amendment, and on other constitutionally protected rights, clarifying the permissible scope of regulation and the standards that apply to reviewing if the regulation is permissible.
However, since the Second Amendment has only recently been ruled by the Supreme Court (1) to describe an individual right; and (2) to apply to state government as well as the federal government, the permissible scope of regulation of the rights protected by the Second Amendment and the standards for review, is still uncertain. So there are more than 70 lawsuits in various stages of litigation in federal courts around the country intending to begin to test and define such matters.
On the other hand, while the voters can't decide the question of the constitutionality of a law, they have political power if enough of them decide that a law is bad public policy or otherwise unacceptable. Voters can elect representatives who will change or repeal such laws. Or on a state level, in some States, voters can change laws by initiative.
MudPuppy said:
...And Hugh, I don't think that's correct. The 1st explicitly says congress is limited--the 2nd, clearly DOES NOT mention congress, but simply says "shall not be infringed".
I think that's crucial wording. (as written, california could say NO BAPTIST churches, but would not be entitled to say NO FULL AUTO. But again, the final say on what the constitution means is supreme court rulings.)
(at least, that's my attempt at open minded and rational understanding--if i'm incorrect factually or historically, please share)...
Sorry, MudPuppy. You got the first part right but went off the track here.
In 1833 the Supreme Court of the United States decided that the Bill of Rights did not apply to the States (
Barron v. Mayor of Baltimore, 32 U.S. (7 Pet.) 243 (1833)). But beginning in the latter part of the 19th Century, the Supreme Court began to apply the Bill of Rights in a piecemeal fashion to the States through the 14th Amendment under a legal doctrine known as incorporation.
Much of the Bill of Rights has now been ruled to apply to the States. However, a number of rights enumerated in the Bill of Rights have not been incorporated against the States or have been ruled not to apply against the States:
- Third Amendment: The right not to be compelled to quarter soldiers has been specifically incorporated only in the Second Circuit. It appears that the has been no other ruling on that question.
- Fifth Amendment: The right to indictment by a grand jury has been specifically not incorporated (Hurtado v. California, 110 U.S. 516 (1884)).
- Sixth Amendment: The right in a criminal trial to a jury selected from residents of the state and district where the crime occurred has not been incorporated (Caudill v. Scott, 857 F.2d 344 (6th Cir. 1988); Cook v. Morrill, 783 F.2d 593 (5th Cir. 1986); Zicarelli v. Dietz, 633 F.2d 312 (3d Cir. 1980)).
- Seventh Amendment: The right to a jury trial in a civil case has been held not incorporated against the States (Minneapolis & St. Louis R. Co. v. Bombolis, 241 U.S. 211 (1916)).
- Eighth Amendment: The question of the incorporation of the right to protection against excessive fines has not been addressed.
It wasn't until
McDonald v. Chicago, 561 US 3025 (2010) that the Supreme Court finally applied the Second Amendment against the States.
