Are US Gun Laws Un-constitutional?

[hugh damright]

I don't see the point of everyone making up their own personal theory. Under constitutional law, the Second Amendment was not intended to limit the States, and that makes great sense to me. "Shall not be infringed" means by the feds.

Further, repealing the Second Amendment would not be a reasonable and valid approach to pass gun laws, quite the contrary, it is an approach based upon the false assumption that the federal government has a power unless it is specifically prohibited. Repealing the Second Amendment would not empower the federal government with gun control powers, nor would it change the current limitations upon the States (i.e the States' own bills of rights, the federal militia power, etc).

 

[MD_Willington]

some C***S*** liberals

wow...

I know quite a few liberals that love their AR's...

 

[WuzYoungOnceToo]

I don't see the point of everyone making up their own personal theory. Under constitutional law, the Second Amendment was not intended to limit the States, and that makes great sense to me. "Shall not be infringed" means by the feds.

You couldn't possibly be more mistaken. The purpose of the Bill of Rights is to be an enumeration of rights that are guaranteed to all U.S. residents. They are the law of the land. Federal law trumps state and local law. They limit the states. "shall not be infringed" means by anyone.

Do you think that a state can limit your other rights that are guaranteed by the Constitution as well? What amendments are they free to ignore? Could Virginia reinstate slavery if it wanted to?

 

[WuzYoungOnceToo]

i dont think i can agree with this, unless you were to name one that is constitutional.

First, we'd have to establish what you think "constitutional" means with regard to an interpretation of the 2nd. Are you one of (apparently several) those here who seem to think "right to keep and bear arms shall not be infringed" = "right to make, sell, possess and/or carry any kind of weapon you feel like"? If so, then further discussion will be pointless. If, however, you have a more reasonable interpretation of the clause then tell me what it is and I'll cite you some law that is compatible with it.

Yes but from what I read so is income tax.

That continues to be the silliest, most baseless claim regarding the Constitution I've read. Try reading some legal scholars, and stay away from the crackpot websites. Next you'll be telling us how the moon landing was faked.

IMO, federal gun laws are generally unconstitutional, while State gun laws are generally constitutional.

Because...?

Look at the wording--the parts of the constitution that say "Congress shall make no laws concerning..."

Which, by the way, does not appear in the 2nd. Nor is there anything that says that phrase applies to everything in the Constitution. You're generalizing without justification.

The states individually could make laws requiring school prayer and not be unconsitutional

ABSOLUTELY wrong. That logic implies that state and local police aren't subject to the 4th, and as a result don't need warrants, probable cause, etc. unless their state & local laws require it. Do you suppose that's legally true?

The lack of familiarity with even basic constitutional and other legal concepts being displayed here is appalling. I blame the public education system.

 

[Jax]

WuzYoungOnceToo,

There's an old saw about folks who live in glass houses and throwing stones, maybe you've heard of it?...

The Bill of Rights (supposedly) places limits on the powers of the Federal Government - not the several States. That's the whole point of the Tenth Amendment after all.

Until the BoR was applied to the States via the "incorporation clause" of the Fourteenth Amendment, State and Local governments were *not* limited by the Fourth.

There is significant debate whether the 14th incorporates all of the BoR and whether the 2nd, in particular, is included. (ps - this answers your "Because...?" question.)

MudPuppy,

I gotta go with hugh_damright on this one. Respectfully, I disagree with your statement that he is wrong. It comes back to the 14th as stated above.

Jax

 

[REOIV]

I'd say that most if not all gun control laws are unconstitutional.

The only laws that I am fine with deal specifically with the usage of your firearms. Like you cannot discharge your firearms in the city unless your life is in danger or you can only hunt with your firearms on these dates or only these firearms may be used for hunting etc.

Everything else seems to violate the Right to Keep an Bear.

 

[Robert J McElwain]

The anti-gunners are scared to death that the Washington, DC case, which is on appeal, may just nullify all, most or many of today's gun laws. I'm sure some of them are wondering why they are even taking the risk of appealing this decision to SCOTUS.

Bob

 

[WuzYoungOnceToo]

There's an old saw about folks who live in glass houses and throwing stones, maybe you've heard of it?...

Yes. But thankfully, I live in a house of brick and mortar.

The Bill of Rights (supposedly) places limits on the powers of the Federal Government - not the several States. That's the whole point of the Tenth Amendment after all.

You need to edit that statement so that the tense is in the past. We're speaking about what IS constitutional, not what USED TO BE constitutional.

Until the BoR was applied to the States via the "incorporation clause" of the Fourteenth Amendment, State and Local governments were *not* limited by the Fourth.

But the 14th was passed, and IS in effect. What the situation was prior to 1868 is not in question. It's the current state of affairs that is being asked about.

There is significant debate whether the 14th incorporates all of the BoR and whether the 2nd, in particular, is included. (ps - this answers your "Because...?" question.)

That significant debate is primarily among historians and other scholars. The SCOTUS is less conflicted. Starting with Adamson v. California (332 U.S. 46 [1947]), the Court (albeit in dissenting opinon) began to contend that full incorporation of the BoR was the intent of the 14th. The 2nd (and a few other parts of the BoR) have not been explicitely included via the selective incorporation doctrine because no case has yet been presented to the court that would trigger such a ruling. That does NOT mean that the states are free to infringe rights as they see fit, and that attempts by them to do so are inherenly constitutional.

I do admit, however, that I missed the "was not intended" clause in hugh's statement, which makes my previous response partially incorrect.

 

[MudPuppy]

Well, I can at least read (and I learned that at home at age 4, thank you)

Amendment I

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.

Now, I read that as "congress shall make no law". Does "congress shall make no law" mean "congress, states, and local governments"?

We all want it to mean NO laws and that's pretty much how we interpret it. But, tell me, what does it actually SAY?

Now, compare that to the second:
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.


The first specifically says congress can make no law and the second simple says shall not. The first could have been written to say "No law...etc and so on"--but it wasn't.

 

[WuzYoungOnceToo]

Mudpuppy...

Are you familiar with impact of the 14th Amendment on the text that you cite?

 

[Jax]

WuxYoungOnceToo,

Please check out this website: http://www.law.umkc.edu/faculty/projects/ftrials/conlaw/incorp.htm

It states the Slaughterhouse Case came first.

It also states there have not been any SCOTUS decisions on the incorporation of the 2nd by the 14th with the exception of one case in 1876 - which was rejected.

If a right, enumerated or otherwise, has not been incorporated to the states then they *are* free of infringement limitations. The States may pass constitutional laws infringing on basic rights. Of course, subsequent Fed Constitutional Amendments or SCOTUS decisions may overturn those laws in the future - but they are certainly presumed constitutional when enacted.

As a founding principle of our form of government, *every* duly passed law is presumed constitutional until/unless sucessfully challenged in court. Kinda like innocent until proven guilty, y'know.

Peace,

Jax

 

[Carl N. Brown]

A pro-RKBA decision on the DC case (Parker or is it now called Heller
since Heller's claim had more standing) would not undermine laws
aimed at misuse or criminal use of firearms, or possession of guns
by criminals to further criminal enterprises.

A pro-RKBA decision on the DC case would undermine all these
laws aimed at preventing the lawabiding from owning guns for
peaceable, lawful uses. THAT is what the antis are so upset over:
they are mostly social engineers who see private ownership of guns
as doubleplusungood and wish to eliminate private ownership of
guns whether crime is affected or not: antis from Carl Bakal (1950s)
to Rebecca Peters (2000s) has seen private ownership of guns as
a social evil because it contradicts the Hobbesian State ruling
through a monopoly of force.

 

[WuzYoungOnceToo]

Please check out this website: http://www.law.umkc.edu/faculty/proj...law/incorp.htm

I've already read it.

It states the Slaughterhouse Case came first.

And...?

It also states there have not been any SCOTUS decisions on the incorporation of the 2nd by the 14th with the exception of one case in 1876 - which was rejected.

I'm aware of that (U.S. v. Cruikshank). Are you aware that significant portions of Cruikshank have been overturned by subsequent courts? Not specifically the ruling on incorporation of the 2nd, but with regard to much of the fundamentals of the decision. The courts (since 1876) have not yet had an opportunity to address that portion.

If a right, enumerated or otherwise, has not been incorporated to the states then they *are* free of infringement limitations. The States may pass constitutional laws infringing on basic rights. Of course, subsequent Fed Constitutional Amendments or SCOTUS decisions may overturn those laws in the future - but they are certainly presumed constitutional when enacted.

Every law is "presumed" constitutional when enacted. That does not mean that they *are* constitutional (which, of course, is ultimately determined by federal court ruling.)

As a founding principle of our form of government, *every* duly passed law is presumed constitutional until/unless sucessfully challenged in court. Kinda like innocent until proven guilty, y'know.

The original question wasn't "What gun control laws have been struck down as unconstitutional by the SCOTUS?" It was, "Are gun control laws unconstutitional?" The clear intent of the questioner is to stir debate regarding whether or not such laws are inherently consistent with the U.S. Constitution, not whether or not a ruling has been handed down on the matter, or about presumption in the absence of such rulings.

 

[Never No More]

The more people they make not be able to have firearms, means the more criminals that will have firearms

 

[MudPuppy]

Are you familiar with impact of the 14th Amendment on the text that you cite?

Well, sure. But my point is to the written word--not the inferences and interpretations. I guess I'm not making my point clear. I'm not arguing for how things actually are or how they should be--I'm simply saying how the constitution is actually written.

You do have a good point that according to our constitution and system, any law is considered constitutional until ruled unconstitutional by the courts. Even if the courts rule that the 2nd means only the National Guard is entitled to any firearm.

But I stand my original contention that the 1st, as written, does not, nor was intended to prevent state or local laws concerning religion.

 

[WuzYoungOnceToo]

Well, sure. But my point is to the written word--not the inferences and interpretations. I guess I'm not making my point clear. I'm not arguing for how things actually are or how they should be--I'm simply saying how the constitution is actually written.

I didn't say anything about inferences and interpretations. I'm also talking about how the Constitution is actually written. But guess what? The 14th is a part of the Constitution, and supersedes any previous conflicting portions thereof. All amendments are intended to either clarify or modify the meaning of the document. As such, an examination of the text of previous amendments in a vacuum (ie, not considering the impact of the 14th) in order to determine the constitutionality of something is pointless.

But I stand my original contention that the 1st, as written, does not, nor was intended to prevent state or local laws concerning religion.

Perhaps. But currently, that no longer matters.

 

[MudPuppy]

Thanks for clearing that up.

 

[czbegenner]

Yes and like someone said so is income tax,the vote to admend them after World War 2 was not done,but no one said anything about it so they just allowed it to happen.How many of the laws are being used today.Here in Louisiana we still have the Old laws that need to be changed,but no one has ever tired.I feel we as people of the United states of America need to understand that is is for the people,By the people.These laws are passed because of who we allow to hold these offices,We need to do more research
on the people who we allow to sponser us in washington.But we feel well we cant do nothing about it.Example.... Voting people say well it dosen't matter
it's the electorial college that counts.... well if more people vote that state will have more electorial votes.Now how is that "it dosen't matter"????
We need to stop being Lazy and having others do the work for us.We Need to write the people we put into office more,check up on them. See which way are they voting on these issues.

 

[WuzYoungOnceToo]

Yes and like someone said so is income tax,the vote to admend them after World War 2 was not done,but no one said anything about it so they just allowed it to happen.

Oh, for the love of.....

What color is the sky in your world?

well if more people vote that state will have more electorial votes.

Uh, no...they won't.

:::shakes head:::

 

[ConstitutionCowboy]

However anyone wishes to "interpret" the Second Amendment to the Constitution, it cannot be denied that the Founding Fathers intended the people to be armed and well regulated for instant use in the defense of the country from invasion, insurrection, and to enforce the laws of the Union. Article I, Section 8, Clauses 15 and 16, make that quite clear.

The lack of any grant of power to the Congress to disarm the people - especially in the light of the need for the grant of power to provide for arming the people - is all the proof necessary to show there is no need to prohibit the Congress from infringing the right of the people to keep and bear arms.

The inconsistencies between the several state constitution's protections of the right of the people to keep and bear arms, and the lack of that protection in some of the state's constitutions, prompted the need for the universal protection of the right in the Constitution for the United States, ergo, the Second Amendment. Unarmed people are useless to the security of themselves; their family; state; and in this land, the union of those states.

The Second Amendment does not need the Fourteenth Amendment for it to be applicable to the several states. This was also understood by the states prior to the Fourteenth Amendment. To wit:

"It is contended, that this article of the code, is in violation of the constitution of the United States, and of this state. The clause in the constitution of the United States, that it is said to be in violation of, is the 2d article of the amendments: "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." O. & W. Dig. 7. The clause in the constitution of this state, which it is said to violate, is the 13th section of the bill of rights: "Every citizen shall have the right to keep and bear arms, in the lawful defense of himself or the state." O. & W. Dig. 14.

The object of the clause first cited, has reference to the perpetuation of free government, and is based on the idea, that the people cannot be effectually oppressed and enslaved, who are not first disarmed. The clause cited in our bill of rights, has the same broad object in relation to the government, and in addition thereto, secures a personal right to the citizen. The right of a citizen to bear arms, in the lawful defense of himself or the state, is absolute. He does not derive it from the state government, but directly from the sovereign convention of the people that framed the state government. It is one of the "high powers" delegated directly to the citizen, and "is excepted out of the general powers of government." A law cannot be passed (p.402)to infringe upon or impair it, because it is above the law, and independent of the law-making power." - Texas Supreme Court Decision, Cockrum vs State of Texas, ---- 1859

Woody

"We the People are the government of this land. We decide who writes our laws, we decide who leads us, and we decide who will judge us; for as long as We the People have the guns to keep it that way." B.E.Wood

 

[Robert Hairless]

The Soviets had a wonderful, freedom embracing constitution too--it meant about as much as ours does now.

Whenever a gun owner makes such an absurd statement Sarah Brady throws her arms around her husband and gives him a big kiss.

Have some pity on the poor man.

 

[ctdonath]

[ramble]

Note that there are several types of laws.

Moral: you're not allowed to steal, kill, etc.

Organizational: elections are on first Tuesday of November, passports look like this, etc.

Safety: drive on the right side, stop at stop signs/lights, no pointing guns at people without good reason, no shooting across roads, products should not dangerously malfunction under normal use, etc.

Commerce: a dollar is worth this much, product category X is defined as ..., etc.

Control: Y is prohibited because it facilitates revolution, you can be detained for 72 hours without cause, etc.

[/ramble]

 

[coat4gun]

The Second Amendment does not need the Fourteenth Amendment for it to be applicable to the several states. This was also understood by the states prior to the Fourteenth Amendment.

Agreed, and I believe that the 10th amendment emphasizes this by the line "nor prohibited by it to the states" Tell me if I am wrong, but to me this reads that Since the right to keep and bear arms is already "reserved" by the people and written in the 2nd, the States are "prohibited by it(the 2nd)" from infringing.

The States gave up the Power to create gun control when they wrote the 2nd into the BOR.

Amendment X
The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people.

 

[mike101]

"The right of the People to keep and bear arms shall not be INFRINGED".

Period.

There is nothing here that is ambiguous, or debatable. It says what it says. The anti's want you to think it's debatable.

 

[MudPuppy]

Whenever a gun owner makes such an absurd statement Sarah Brady throws her arms around her husband and gives him a big kiss.

Have some pity on the poor man.

Ya' lost me on that. I was simply stating that a constitution promising freedom means nothing if not respected, honored, and held as the absolute standard. Comprising by making laws in conflict with the constitution or SCOTUS rulings that invalidate the original intent based on the current political winds destroys the entire integrity of our basic freedom.

The soviets promised freedoms through their constitution, but didn't allow firearm ownership, siezed property through imminent domain, conducted searchs without warrants etc--you see how I can draw a parallel to the current US situation? This morning they're talking about installing milage tracking devices on vehicles for taxation purposes. We can chant "Land of the Free" all day long, but it's fooling less and less people.

PS Not saying that we're not a much better place (so far) than 99.9% of any other place on earth. But I don't judge our situation based on the very low bar of other countries, I base it on what we can be, what we should be, and what our constitution provides.


Anyhow, Mike said it much better and in fewer words.

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