Constitutionality of State/Local Gun Laws.

[dk-corriveau]

I am sure that this has probably been covered, but what types of challenges have there been against state/local gun laws at the Supreme Court level. I am sure that it is naive of me to think this way, but it seems like there really is a basis for a constitutional challenge.

To make the argument that states can determine what are or aren’t appropriate arms, in my opinion, is tantamount to states deciding what is or isn’t appropriate free speech. Arms is a pretty broad term, but so is Free Speech. Would a state be allowed to limit the free discussion of evolution vs. creation or abortion or any other hot button issue? I doubt it. Yet states can say 10 rounds are ok, but 15 rounds are not. Unreal.

Furthermore, cities or counties saying that its residents can not keep or bear arms is the most black and white violation of the constitution that I have ever heard of. It says right in the Constitution, the right of the people to keep and bear Arms, shall not be infringed. :banghead:

Anyway, I just needed to rant a bit. These issues get me really worked up, but I remain unsurprised at the sad state of things in this country. To see the rights of law abiding citizens trampled on just drives me mad. Living in Virginia, I personally have more than enough access to guns to satisfy my needs/desires, if only my finances could keep up. But to listen to the challenges that so many of you go through is just unreal.

 

[The Real Hawkeye]

It's a complicated question, because it is multi faceted. Firstly, there is the states rights position, which is based on the Tenth Amendment, under which, the state is at liberty to restrict just about anything, because it is presumed that states represent the will of the people, and the people are responsible for preserving their liberties via their state elections. Then there's the view that the Fourteenth Amendment causes all Constitutionally recognized rights, one of which is the right to keep and bear arms, to be forced on state governments.

 

[Control Group]

TRH summed up the principles well, but it's worth mentioning the current situation, too.

As he said, under the 10th Amendment, it's a states' rights issue, and states can legislate gun control as much as they want (depending on the state constitutions, of course). Under the 14th Amendment, however, states are required to abide by the limitations on government written into the Amendments.

In practical terms, what has actually happened is that the Supreme Court has applied individual amendments to the states on a one-by-one basis. The doctrine is "selective incorporation," and until the SCOTUS has ruled that an amendment is incorporated under the 14th, the states do not need to abide by that amendment. Obviously, the 2nd hasn't been incorporated under the 14th.

Equally obviously, this doctrine is, at very best, on shaky Constitutional ground (some of us would call it completely bogus, in fact). Either the 14th means what it says, or it doesn't. In the former case, no state has the legal right to pass gun control laws any more than it has the right to have an official state religion. In the latter case, the states can restrict guns all they want, and they can also make it legal to own slaves again.

So far, since Miller, the SCOTUS has been...ah, reluctant, let's say, to hear any cases which would force them to make a definitive ruling on the 2nd. One might conclude from this that they like gun control, but are very aware that there is no legitimate way to justify it within the bounds of the Constitution.

The dilemma for Constitution-minded gun owners is that under the intent of the framers, states absolutely have the authority to regulate guns. On the other hand, while the 14th is clearly in contravention to the original intent of the Constitution, incorporation of the 2nd under the 14th would be the single best thing to happen to gun rights in this country since the 2nd was written.

That being said, repeal of the 14th is less likely than the states calling a Constitutional Convention, so as a practical matter, the best we can really hope for is incorporation of the 2nd. I consider that a somewhat forlorn hope, but at least it's not beyond the realm of possibility.

 

[Graystar]

I am sure that this has probably been covered, but what types of challenges have there been against state/local gun laws at the Supreme Court level.

None. They never get that far.

 

[Bruce H]

When a state is admitted to the union they agree to abide by the constitution and bill of rights, right. If this is true then all forms of state and federal gun control are unconstitutional. The 2nd says so. Is plain english so hard to understand?

 

[Otherguy Overby]

Riddle me this?

The dilemma for Constitution-minded gun owners is that under the intent of the framers, states absolutely have the authority to regulate guns. On the other hand, while the 14th is clearly in contravention to the original intent of the Constitution, incorporation of the 2nd under the 14th would be the single best thing to happen to gun rights in this country since the 2nd was written.

The right of the people...

It does NOT say: The right of the people, except those people residing in the several states...

IOW, what you are saying is: the only people the 2nd should apply to are in DC. Of course, we now know how that's worked.

Please also notice it says "people" not citizens, or voters, or non-felons either.

'Tiz all a legal construct to keep the rif-raf from weapons.

 

[The Real Hawkeye]

When a state is admitted to the union they agree to abide by the constitution and bill of rights, right. If this is true then all forms of state and federal gun control are unconstitutional. The 2nd says so. Is plain english so hard to understand?

A State agreeing to abide by the US Constitution, by itself, doesn't transfer all restrictions placed constitutionally on the Federal Government to the State Governments. That would toss the whole concept of Federalism out the window. The point of the Constitution was to delegate certain limited powers to the new Federal Government, while retaining all non-delegated powers at the State level. Instead, allegiance to the Constitution by the States merely implies that States are bound to the Constitution only where the Constitution addresses State powers, and limits thereto.

 

[Control Group]

It does NOT say: The right of the people, except those people residing in the several states...

No, the 2nd itself does not, but the preamble to the BoR makes it quite clear that the BoR is a set of restrictions on the fed.gov:

The conventions of a number of the States having at the time of their adopting the Constitution, expressed a desire, in order to prevent misconstruction or abuse of its powers, that further declaratory and restrictive clauses should be added: And as extending the ground of public confidence in the Government, will best insure the beneficent ends of its institution.

Moreover, if the states are required to abide by the amendments to the Constitution, then why was the 14th even written?

IOW, what you are saying is: the only people the 2nd should apply to are in DC. Of course, we now know how that's worked.

Oh, please. That's not even close to what I said, and you and I both know it. The 2nd Amendment, like every other Amendment in the BoR, applies to the federal government. The 2nd doesn't read "the people have the right to keep and bear arms," it reads "the right of the people to keep and bear arms shall not be infringed." See the difference? The former formulation applies to the citizens, the latter applies to the government.

The idea that it applies to every level of authority is patently ridiculous, even if you ignore the preamble. Taken the way you want to read it, it's not legal for you to tell your five year old son he can't buy a pistol! It only applies to the federal government because it's included in a document which only applies to the federal government.

If you still don't buy into the fact that the 2nd was intended to apply only to the fed.gov, then why do you suppose so many states explicitly stated it in their constitutions? If they didn't have the authority to pass laws in contravention in the first place, why bother specifying that they couldn't?

 

[The Real Hawkeye]

The right of the people...

It does NOT say: The right of the people, except those people residing in the several states...

Yes, the Second Amendment certainly recognizes the preexistence of the right of every individual to keep and bear arms, but the Constitution does not delegate to the Federal Government the power to tell states what they can do internally with regard to this right. The Second Amendment restricts only what the Federal Government can do with regard to infringing on our right to keep and bear arms, i.e., it can do NOTHING. States, however, are free to limit this right, if this is what the majority of the people of that state wish, as much as I disagree with gun regulation by any level of government.

IOW, what you are saying is: the only people the 2nd should apply to are in DC. Of course, we now know how that's worked.

Actually, the Second Amendment does in fact apply exclusively to the Federal Government, and all agents thereof, even if it pertains to the people's right to keep and bear arms.

Please also notice it says "people" not citizens, or voters, or non-felons either.

Noted, but this is who it pertains to, not who it applies to.

'Tiz all a legal construct to keep the rif-raf from weapons.

 

[Control Group]

When a state is admitted to the union they agree to abide by the constitution and bill of rights, right

No, not right. The Constitution is very clear about what parts apply to what bodies. Article I applies to the legislature, and defines what authority it has. Article II applies to the Presidency, Article III to the Judiciary, Article IV to the states, Article V to the amendment process, Article VI to the Constitution itself, and Article VII to the ratification thereof.

The Bill of Rights, as stated in the preamble, applies to the federal government. It does not apply to the states. Or, rather, it didn't, until the 14th was passed, the purpose of which was specifically to make the states subject to the restrictions specified by the amendments. This was necessary because it had not previously been the case. To date, the 14th has not been held to apply universally to all amendments.

 

[Otherguy Overby]

2nd

What you lot are telling me is that the 2nd ammendment should have said, though didn't, "the right of the people" really only means congress shall make no law(s).

So, the states can:

Restrict, regulate and prohibit free speach. Religion and assembly of citizens.

Restrict, regulate and prohibit arms.

Expediantly allow the quartering of troups (though possibly not federal troops) in one's residence.

Restrict, regulate and prohibit any right to security in one's papers, ownership of property....
(I must assume you reason Kelo is constitutional)

Restrict, regulate and/or prohibit the people's right to self incrimination and trial by jury.

This reasoning might also imply that "Miranda" is a violation of states rights...

Sorry, but Occam's razor is kinda sharp.

And here I'd been led to believe certain rights were inalienable...

 

[Bruce H]

What good is the bill of rights as in the ammendments if states don't have to abide by them? The ammemdments are designed to encompass all the states. This is one area where they all have to have the same rules. There was plenty left for the states to act on.

 

[Control Group]

Restrict, regulate and prohibit free speach. Religion and assembly of citizens.

Yep, sure can. In fact, I'm fairly sure several states specifically had state religions for a while after the ratification of the Constitution.

Restrict, regulate and prohibit arms.

Yep, sure can, except as prohibited by state constitutions. Mine says that they can't, of course, but I don't know if all states included that clause.

Expediantly allow the quartering of troups (though possibly not federal troops) in one's residence.

Yep, sure can.

Restrict, regulate and prohibit any right to security in one's papers, ownership of property....

Yep, sure can.

(I must assume you reason Kelo is constitutional)

You assume correctly. The federal government has no business telling a state what to do with its land. The people of the state, of course, have every reason to tell their government to get bent, and unelect the jackasses who would grant eminent domain powers to private industry.

Restrict, regulate and/or prohibit the people's right to self incrimination and trial by jury.

Yep, sure can.

This reasoning might also imply that "Miranda" is a violation of states rights...

It certainly is. Just like Wickard.

Sorry, but Occam's razor is kinda sharp.

Don't apologize for correctly reading the Constitution.

And here I'd been led to believe certain rights were inalienable...

If you can show me where in the Constitution any reference is made to inalienable rights, I'll be very, very impressed. The Declaration Of Independence is a moving and historically important document, but it isn't now and never has been legally binding.

Remember, the founders didn't intend this to be a "nation" in the modern sense, they intended it to be a collection of essentially sovereign states, which states empowered a central government to deal with certain things that needed to be dealt with at that level. If you doubt my interpretation of the Constitution, I refer you to the Federalist Papers, where all this is made perfectly clear in the words of the founders: what they intended for the Constitution to accomplish.

Now, the 14th was intended to change all that, and place upon the states the restrictions on the fed.gov enumerated in the Amendments to the Constitution. You can therefore make a solid case that, currently, the 2nd applies to all states through the 14th. The Supreme Court has, so far, not taken that step. The 14th itself, of course, is on Constitutionally shaky ground, but, as I said earlier, the chances of it being repealed are utterly nonexistent.

 

[Control Group]

What good is the bill of rights as in the ammendments if states don't have to abide by them? The ammemdments are designed to encompass all the states. This is one area where they all have to have the same rules. There was plenty left for the states to act on.

It prevents the federal government from abridging the enumerated rights. Read the preamble to the Bill Of Rights (I posted it above); it's very clear what the BoR is intended to do. It is up to you, as a citizen of a state, to make sure your state government doesn't trample on your rights.

You have to remember that the federal government was never supposed to be the governing authority over citizens. The states did that. The federal government was intended to have effectively zero impact on your life. Since the Civil War, the intended positions of authority between federal and state have reversed, and now the federal government is seen as the primary authority in the lives of citizens. This is not the way the system was designed. It is the way the Civil War and the 14th have made it.

 

[tyme]

Most states have their own RKBA guarantees. I think the founders didn't propose a 14th amendment because they expected the citizens of each state to protect, by way of a State BoR, any rights they cared about.

Of course, the population of the entire U.S. in 1790 was less than 4 million. The population of greater NYC is much larger than that, so maybe the NYC charter needs a bill of rights. Maybe ever city over some population limit (100k?) needs a bill of rights in its charter.

 

[Smurfslayer]

hmmm... Williamsburg...

Some of them ARE unconstitutional, but acts of the General Assembly, Congress, etc. are given the presumption of constitutionality...

There are those of us who feel that some of the encroachments are too far...
This is of particular interest since you are showing a Virginia location.

http://www.virginia1774.org/Virginia1774ConstitutionalChallenge.html

On the 1774 main page, there are links to various state court decisions. Believe it or not, many states have ruled that their state constitutions DO protect a right to keep and bear arms.
http://www.virginia1774.org/Page7.html

Historical state case law...

The thing is that often times a "bear arms" defense comes up with an "unsympathetic" defendant, or quite frankly, " a loser case ". When a lawyer and defendant in a loser case falls to this defense, the courts are loathe to strike down a law, or erect a protection where there was none before.

 

[richyoung]

The 14th itself, of course, is on Constitutionally shaky ground

Nothing shaky about it - passed and ratified, it is PART of the Constitution, so by definition it CAN'T be unconstitutional - in fact, any conflict between it and previous language in the Constitution must be resolved in the 14ths favor - as an amendment certainly has the authority and power to modify the Constitution. What IS shaky is the "selective incorporation" doctrine, which I fear was nothing more than an attempt to do an end-run around the PURPOSE of the 14th...to prevent newly freed slaves from being armed!

 

[tyme]

richyoung, it's on shaky ground because the north forced the southern states to ratify it as a condition of re-joining the union, despite the fact that they didn't really have the option of not-rejoining the union.

 

[Otherguy Overby]

Original intent

You have to remember that the federal government was never supposed to be the governing authority over citizens. The states did that. The federal government was intended to have effectively zero impact on your life. Since the Civil War, the intended positions of authority between federal and state have reversed, and now the federal government is seen as the primary authority in the lives of citizens. This is not the way the system was designed. It is the way the Civil War and the 14th have made it.

OIC, the Bill of Rights was never really intended to apply to the "people."

 

[Control Group]

OIC, the Bill of Rights was never really intended to apply to the "people."

We have a winner!

That's it exactly. The Bill of Rights is about the people, but it applies to the fed.gov, much like TRH said earlier.

Up until the 14th, anyway. And I'm still waiting for your opinion on why they bothered writing the 14th if the amendments already applied to the states.

I'm also still waiting on why many states bothered putting a protection of RKBA in their constitutions if they weren't able to pass laws in contravention anyway.

 

[Control Group]

Nothing shaky about it - passed and ratified, it is PART of the Constitution, so by definition it CAN'T be unconstitutional - in fact, any conflict between it and previous language in the Constitution must be resolved in the 14ths favor - as an amendment certainly has the authority and power to modify the Constitution. What IS shaky is the "selective incorporation" doctrine, which I fear was nothing more than an attempt to do an end-run around the PURPOSE of the 14th...to prevent newly freed slaves from being armed!

You are, in a sense, right. Tyme already explained what makes the 14th shaky, but, as it is now in the Constitution, I'll grant you that it is, by definition, Constitutional.

But one has to be careful with the line of thought that, if it exists, it's Constitutional. The SCOTUS worked in accordance with their delegated powers in Wickard; by the strictest definition, therefore, Wickard is Constitutional, but I still refer to it as not. Similarly, acts of Congress are presumed Constitutional until specifically struck down, so, in the strictest sense, the entire body of existing law is Constitutional, including every federal violation of the 2nd.

Nonetheless, I take your point.

And you are, of course, entirely right about selective incorporation. "Shaky" is the politest word I could come up with for it. Other words that leap to mind are "bunk," "crap," "idiotic," and a variety of other terms that would have me bent over Art's Grammaw's knee.

 

[richyoung]

richyoung, it's on shaky ground because the north forced the southern states to ratify it as a condition of re-joining the union, despite the fact that they didn't really have the option of not-rejoining the union.

Interesting - I thought the whole premise of the North was that the Southern states didn't have the right to leave the Union - if so, then they never really left, and there should have been no need to be "re-admitted"...of course, this isn't the ONLY non-sequiter involving the War of Northern Aggression....who would have authority at this late date to "de-certify" the 14th?

 

[richyoung]

...and can we get then to decerity the 16th? Please?

 

[The Real Hawkeye]

What you lot are telling me is that the 2nd ammendment should have said, though didn't, "the right of the people" really only means congress shall make no law(s).

Not really. The significance of the Second Amendment is that the Federal Government, through it, acknowldedges that 1) everyone has an individual right to keep and bear arms, and that 2) it is legally bound not to infringe upon that right. It does more than restrain Congress, in this respect. It also acknowledge a right held by every American. But the acknowledgment of this right is not the same as an empowerment to control what states can do in this regard. At most, you could argue that states must also acknowledge this right, but that is not to say that states are also bound by the Federal Second Amendment not to infringe upon this right, as the Federal Government is, since the Bill of Right is only a legal restraint of the Federal Government.

So, the states can:

Restrict, regulate and prohibit free speach. Religion and assembly of citizens.

Restrict, regulate and prohibit arms.

Expediantly allow the quartering of troups (though possibly not federal troops) in one's residence.

Restrict, regulate and prohibit any right to security in one's papers, ownership of property....
(I must assume you reason Kelo is constitutional)

Restrict, regulate and/or prohibit the people's right to self incrimination and trial by jury.

This reasoning might also imply that "Miranda" is a violation of states rights...

Sorry, but Occam's razor is kinda sharp.

And here I'd been led to believe certain rights were inalienable...

Be careful not to confuse the inalienability of rights with the powers of government. Government is perfectly capable of violating your inalienable rights, and that doesn't make them any less inalienable. It is up to you to see to it that your State's government makes no law which violates your inalienable rights.

The Founders, for example, had the inalienable right to form a new government, even though the government which ruled them, that of England, did not recognize that fact. Inalienable rights are inalienable, not because governments cannot violate them, but because governments cannot take the rights away from you.

 

[Refirignis]

Nothing shaky about it - passed and ratified, it is PART of the Constitution, so by definition it CAN'T be unconstitutional

I beg to differ. The 14th Amendment is the most illegal amendment. It was ratified by military puppet legislatures that Congress replaced the South's actual legislatures with. That's just one of the many illegal parts about it. It's entirely invalid.

1833 - Supreme Court says the Bill of Rights is not binding on the States.
1868 - 14th Amendment "ratified" (not), States begin incorporating the Bill of Rights in whatever form they see fit in their State Constitution--or choose not to, in the case of many states, such as PRNJ. They can change our rights to whatever they want, or make them privileges, which is what they have done.

I already went over what the 14th Amendment actually did here and here.

Here's an additive I hadn't found last time.

The truth is that the Court is not binding the states by the Bill of Rights but is using the "selective" incorporation doctrine to give the people "rights" which are similar to but which do not mirror those of the Bill of Rights and only as extensive of "rights" as the Court deems fit. What this means is that although the people read the Bill of Rights and have their understanding from the Bill of Rights, the rights enumerated in the Bill of Rights ae binding ONLY on the federal government. Those rights "granted" in the Civil Rights Act of 1965 are not "rights" but are privileges granted by the government. These "privilege rights" are just as easily removed when the government deems it necessary.