RE: 2nd Amd. vs. States rights

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kdstrick

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Now, I'm not a lawyer... but I did stay at a Holiday Inn Express once. It seems that some states are claiming that they have the right to limit the 2nd Amendment via the 10th Amendment. Am I understanding this correctly?

More importantly, If a State can selectively restrict the 2nd Amendment, what prevents them from selectively restricting other rights guaranteed to us by our Constitution. Could the 1st Amendment be restricted, or any other by a State?


I welcome all input, but PLEASE let's keep this thread a legitimate discussion of the issue in question. Thanks!
 
The Tenthth Amendment also says "... nor prohibited by it to the states, ..."

As far as I'm concerned, the Second Amendment prohibits infringement upon the RKBA across the board. Others believe the Second Amendment needs to be "incorporated" to prohibit the states by the Fourteenth Amendment. Regardless, the Tenth Amendment does not grant power to the states or to the people. It limits the federal government to only those powers granted to it in the Constitution and reserves all other powers to the several states or to the people.

Woody
 
P.S. ...

A state constitution would have to have a clause in it to grant power to that state to regulate/govern the keeping and bearing of arms even if the Second Amendment didn't apply to the several states. Check your state's constitution.

Woody
 
Thanks CC.

Still... I don't understand why the Supremacy Clause does not apply for the 2nd Amendment.

"No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States."


Why didn't Heller settle this?

I'm trying to understand the legal argument being used by the States that appear to ignore the 2nd Amendment.
 
Heller didn't address whether the 2nd amendment applies to the states.

The Supreme Court held in the 1833 that the bill of rights did not apply to the states. This does make some sense, given the language: "Congress shall make no law ..." Also some of the states at the time of the adoption of the bill of rights had state churches, which would not be kosher if the bill of rights bound the states.

The Congress after the Civil War passed the 14th amendment which provides that "No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States." Most scholars agree that this was intended to apply the bill of rights to the states. The guy who wrote the 14th amendment thought that it did. In fact, the Heller opinion discusses how one of the primary purposes of the 14th amendment was to prevent the states from denying freed slaves the right to assemble and bear arms. However, the Supreme Court held in 1875 that the "privileges or immunities" clause of the 14th amendment was intended to something else, or maybe nothing much at all. The court essentially erased that part of the 14th amendment. The case is US v. Cruikshank, and it is still good law.

The Supreme Court in the 1930s started to apply the bill or rights to the states, but only those rights it wanted to. The due process clause of the 14th amendment apparently includes a provision, invisible to everyone but Supreme Court Justices, that allows the justices to pick and choose which rights bind the states. It is right there next to the abortion clause, which is also in invisible ink. Anyway, since the 1930s most of the bill of rights (but not all) have been applied to the states. The judges will let us know next year whether the second amendment qualifies.
 
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Thanks for explaining that, Griz. It is fascinating to me that the First Amendment can be held high and universally exalted by all... but the Second Amendment :confused:... well... it doesn't really mean what it says. :scrutiny:

It just seems so intellectually dishonest.

What would happen if Illinois decided that all news content should be approved by the State prior to publication... in order to protect the citizenry from untruths and distortions.

What is the difference between that scenario and their treatment of the Second Amendment?
 
My impression is that a vision of the USBOR binding the States is a vision of national government (as opposed to federal government). Regarding the First Amendment, Jefferson explained it this way in his draft of the Kentucky Resolutions:

"That it is true as a general principle, and is also expressly declared by one of the amendments to the Constitution, that "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;" and that no power over the freedom of religion, freedom of speech, or freedom of the press being delegated to the United States by the Constitution, nor prohibited by it to the States, all lawful powers respecting the same did of right remain, and were reserved to the States or the people: that thus was manifested their determination to retain to themselves the right of judging how far the licentiousness of speech and of the press may be abridged without lessening their useful freedom, and how far those abuses which cannot be separated from their use should be tolerated, rather than the use be destroyed."

[edit] I will add that freedom of speech regards freedom of political speech, and the federal government banned political speech near elections, to thwart the NRA and us, and thus throw elections ... the very thing the amendment was intended to guard against. I don't think any State has ever done that. The federal government is not our saviour.
 
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More importantly, If a State can selectively restrict the 2nd Amendment, what prevents them from selectively restricting other rights guaranteed to us by our Constitution. Could the 1st Amendment be restricted, or any other by a State?

YES, at one time a State could (and many did) restrict your 1st Amendment Rights


remember, originally states COULD restrict all your basic rights.

The COTUS's Bill of Rights was simply a promise that the Federal Government would never restrict those rights.

There have been rulings in the past where SCOTUS upheld a state's right to do things the Feds could not (Barron v. Baltimore...a state can ignore you 5th amendment rights to protection against having items taken without just compenstion, like taking land for a road without paying you for it. United States v. Cruikshank found that the First Amendment right to assembly "was not intended to limit the powers of the State governments in respect to their own citizens")

This is where the 14th amendment comes in

"No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws."

Exactly what that means is of course open to debate. As time passes, SCOTUS has ruled again and again that when a protection is listed in the bill of rights, it is a 'liberty' they cannot be denied.

This function has been termed 'incorporation'

It has been done bit by bit so far, either on an amendment by amendment basis, or sometimes by part-of-amendment by part-of-amendment

Example:

First Amendment

Guarantee against establishment of religion = Everson v. Board of Education

Guarantee of free exercise of religion = Cantwell v. Connecticut

Guarantee of freedom of speech = Gitlow v. New York

Guarantee of freedom of the press = Near v. Minnesota

Guarantee of freedom of assembly = DeJonge v. Oregon

Right to petition for redress of grievances & Guarantee of freedom of expressive association have not been specifically incorporated, but have been mentioned in passing in important cases and treated as if they were incorporated

So basically eventually the whole of the First Amendment has been Incorporated, and State Governments must obey it.



Swinging back a little...

United States v. Cruikshank found that the First Amendment right to assembly "was not intended to limit the powers of the State governments in respect to their own citizens" and that the Second Amendment "has no other effect than to restrict the powers of the national government."

This has often been cited as legal precident in allowing states to ban guns.

However this ruling was made AFTER the 14th amendment was in place. You will note that in Cruikshank SCOTUS says 'First Amendment to assemble is NOT enforcable on the state, even with the 14th Amendment' but in DeJonge v. Oregon SCOTUS overturns that half of Cruikshank.

So the question becomes, if A and B are deemed acceptable by SCOTUS for reason X...but then SCOTUS later says, regarding A only, that Reason X is flawed...where does that leave B?

It seems to me that even though DeJonge v. Oregon only addressed Free Assembly, the fact that they found US v Cruikshank to be wrong on it's reasoning means that it is wrong on whatever other aspects of law are arrived at by that same reasoning.

Scotomayor, our newest SCOTUS Justice thinks just the opposite, that only half of Cruikshank has been struck down, and hence state gun bans are totally Constitutional, even in light of the 14th and 2nd Amendments.

However, in the recent Heller ruling the following was said

"With respect to Cruikshank's continuing validity on incorporation, a question not presented by this case, we note that Cruikshank also said that the First Amendment did not apply against the States and did not engage in the sort of Fourteenth Amendment inquiry required by our later cases"

This is believed by some to be a 'trail of crumbs' left by Scallia explaining how we should go about incorporating the 2nd. We should argue that the Cruikshank case reached it's conclusion about the 1st and 2nd amendment using the same legal reasoning. Thanks to a later case showing that reasoning to be wrong, ALL of Cruikshank falls down...not just half.
 
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Thankfully my state fully supports the second amendment. Our governor just reaffirmed Hunter's rights as well.

Bobby Jindal 2012!!!!
 
Thanks taking the time to explain that Akodo.

It makes me wonder now... What other Amendments do judges (like Sotomayor) feel are not "incorporated"? Is the Second Amendment the only one is question?

Thanks
 
It makes me wonder now... What other Amendments do judges (like Sotomayor) feel are not "incorporated"? Is the Second Amendment the only one is question?

7th is not incorporated. Certain clauses in the other amendments have also not been incorporated.

The 2nd is the only one of our major fundamental freedoms that is not incorporated. Speech, religion, press, unreasonable searches and seizures, not be a witness against yourself, cruel and unusual punihsment, etc. have all been incorporated. Only RKBA really remains.
 
because settling this stuff would make way to much sense.

It wasn't the question presented. The case involved a plaintiff from DC. Had he been from VA, MD, or another state in the area, it would have been a different case.
 
The racism chicken came home to roost and everyone suffers.

When I read the Heller decision, Scalia seemed to be begging for someone to bring the issue of incorporation to the court.
 
The NRA seems pretty confident, bringing this to the court at this time.

If the 2nd Amendment is incorporated, will it be a 'death-blow' to prohibitive gun laws in places like California and New York?

I wonder if they will be able to still require registration of firearms?

Even if the 2nd Amendment is incorporated, could they go after ammo?
 
Scalia seemed to be begging for someone to bring the issue of incorporation to the court.
And bring it someone will.

If the 2nd Amendment is incorporated, will it be a 'death-blow' to prohibitive gun laws in places like California and New York?
Over time...probably. At the very least, the handgun bans in Chicago and NY would be immediately challenged and eventually overturned under Heller once another case incorporates the right. Then, the door is open for Alan Gura to get rid of a lot of the stupid laws.
 
Akodo - In appreciation

Thanks taking the time to explain that Akodo.

+1

You obviously put some time, organization and editing for clarity in your post.

Many things came clear for me for the first time today and for that I am very, very greatful.

Many thanks -- NoAlibi
 
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