Spats McGee’s Federal Constitutional Primer
In the last few months, we’ve had a great many newcomers around here, 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:
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.Founding Fathers said:
Second, it's important to note that the U.S. Constitution regulates governmental action. As Frank Ettin noted when I posted this on The Firing Line: 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. What is done by the corner store, your [non-governmental] landlord or your [non-governmental] employer might be illegal, but it's not unconstitutional, because their conduct is not subject to the Constitution.
Third, 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:
By way of comparison, the Arkansas Constitution has a similar provision, but its provision reads as follows:Founding Fathers said:
Arkansas’ search and seizure provision is very, very similar to the federal provision. Nonetheless, the Arkansas Supreme Court has held that:Arkansas Constitution said:
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.Arkansas Supreme Court said:
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:
Founding Fathers said:
Founding Fathers said:
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.Founding Fathers said:
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:
Founding Fathers said:
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:
Founding Fathers said:
Founding Fathers said:
Founding Fathers said:
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.Founding Fathers said:
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.
Founding Fathers said:
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:
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.Founding Fathers said:
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:
McDonald v. City of Chicago, Ill., 130 S. Ct. 3020, 3050, 177 L. Ed. 2d 894 (2010).SCOTUS said:
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.)
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