crebralfix
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I've been reading Gun Control & Gun Rights by Andrew McClurg, David Kopel, and Brannon Denning. In Chapter 4, "The Right to Arms in the Second Amendment and State Constitutions", I came across an interesting passage (p156):
What follows in the book is Presser v. Illinois, 116 U.S. 252 (1886).
Quick summary: Presser argued that Illinois' law was a violation of Article 1, Section 8 of the Constitution. The Court decided that this forbidding of gathering did not violate the right of individuals to keep and bear arms. Another case, US v. Cruikshank, said that the right of the people to keep and bear arms is NOT a right granted by the Constitution. The Second Amendment cannot be infringed upon by Congress.
Thus far, it appears that our opinions on the right to keep and bear arms are in conflict with the rulings of SCOTUS. According to what I've just read, the states can limit the RKBA in any way they see fit. The existing differences in laws among the various states seem to support this ruling.
[NOTE: there's more to it than this, but it seems to be the heart of the matter in how gun laws have evolved over time in various states].
The earliest Supreme Court cases concerning the Second Amendment dealt not with the substantive meaning of the amendment but with the issue of whether or not the amendment applied to actions taken by the states. The Bill of Rights (the first ten amendments to the U.S. Constitution, including the Second Amendment) was adopted four years after the Constitution to alleviate the fears of some states concerning the powers of the newly created federal government. In 1833, in Barron v. Baltimore, 32 U.S. 243 (1833), the U.S. Supreme Court held that the rights contained in the Bill of Rights operated only as restrictions on federal action and did not apply to actions taken by the states. It is difficult to overstate the importance of this issue: to rule that the Bill of Rights did not apply to the states meant that states were not prohibited from abridging freedom of speech or religion, the right to jury trial, freedom from self-incrimination, the right to bear arms, and any other federal constitutional liberties. Most scholars, although not all, agree that the Court correctly interpreted the intent of the Founding Fathers in deciding the Bill of Rights did not limit state action (See Michael Kent Curtis, No State Shall Abridge: The Fourteenth Amendment and the Bill of Rights I [Durham: Duke University Press, 1986].)
In 1868, however, the Fourteenth Amendment was ratified. It provides, in pertinent part: "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." Questions arose as to whether the Fourteenth Amendment was intended to make the Bill of Rights applicable to state action, through either the "privileges or immunities clause" or the "due process clause."
The Supreme Court never accepted that the privileges or immunities clause was intended to prevent states from violating the Bill of Rights (although Curtis, supra, makes a compelling argument to the contrary in his excellent book). In the hundred years following ratification of the Fourteenth Amendment, however, the Court did hold that most liberties contained in the Bill of Rights apply to state action through the due process clause. The fragmented and often-torturous process by which this was accomplished is too complicated to explain in detail here. The approach finally settled on by the Court is known as "selective incorporation," a process by which the Court held, on a case-by-case basis (that is, selectively), that various freedoms in the Bill of Rights either were or were not sufficiently "fundamental" that they constituted part of due process of law. Once the Court made a determination that a particular liberty was part of due process of law under the Fourteenth Amendment, it absorbed or "incorporated" that right into the due process clause and made it binding on the states.
What follows in the book is Presser v. Illinois, 116 U.S. 252 (1886).
"Presser was indicted and convicted for violating a state statute that prohibited any body of men whatever, other than the regular organized volunteer militia of this state and the troops of the United States, to associate themselves together as a military company or organization or to drill or parade with arms in any city or town of the state of Illinois, without the license fo the governor thereof. Justice Woods delivered the opinion of the Court."
Quick summary: Presser argued that Illinois' law was a violation of Article 1, Section 8 of the Constitution. The Court decided that this forbidding of gathering did not violate the right of individuals to keep and bear arms. Another case, US v. Cruikshank, said that the right of the people to keep and bear arms is NOT a right granted by the Constitution. The Second Amendment cannot be infringed upon by Congress.
Thus far, it appears that our opinions on the right to keep and bear arms are in conflict with the rulings of SCOTUS. According to what I've just read, the states can limit the RKBA in any way they see fit. The existing differences in laws among the various states seem to support this ruling.
[NOTE: there's more to it than this, but it seems to be the heart of the matter in how gun laws have evolved over time in various states].