Second Amendment Applies to States

[anygunanywhere]

While reading up on the Heller case I have read several times where the Second Amendment does not apply to the individual states, only the federal government.

How can some of the BOR apply to the states but not others?

Are the states bound only by the state's constitution?

Can some of the sharp legal minds on this forum please explain this to me?

Anygunanywhere

 

[yinyangdc]

Pandora's box, can-o-worms, oh boy.
To some people (myself included), the Bill of Rights is really a bill of government limits, things that government cannot do.
Amendments that specify "Congress shall make no law...." would apply only to the fedgov. The rest would apply to all governments (federal, state, local).

 

[Titan6]

How can some of the BOR apply to the states but not others?

Well the 10th ammendment applies to the states but you wouldn't know based upon the crazed ISCC rulings. The 2A does not say; "the right of a state to keep and bear arms shall not be infringed". But will be up to the court to decide.

Are the states bound only by the state's constitution?

Not sure I understand the question...

Can some of the sharp legal minds on this forum please explain this to me?

While reading up on the Heller case I have read several times where the Second Amendment does not apply to the individual states, only the federal government.

Probably depends upon where you read it. Just because something wrote a piece in the Houston Chronicle does not make it true.

 

[El Tejon]

"Selective Incorporation"

Prior to the Civil War and the Fourteenth Amendment the Supreme Court held that the Bill of Rights applied only against the feds and not the states. Barron v. Mayor of Baltimore, 32 U.S. (7 Pet.) 243 (1833).

After the Civil War the Supreme Court was extremely hesitant to grant African-Americans their rights. Well into the 20th century the Supreme Court continued this resistance and used an a la carte model. It was not until the 1930s when the Supreme Court stated that a test existed as to whether a provision of the BoR would be applied to the states, "a scheme of ordered liberty". Palko v. Connecticut, 302 U.S. 319, 325 (1937).

What is remarkable about Parker is not only was it a victory for the Second but also the 14th. As such it is the nuclear weapon which may blow away federal, state and local gun control just as the First Amendment cases of the 1920s blew away federal, state and local speech controls.

 

[anygunanywhere]

Are the states bound only by the state's constitution?

If the 2A does not apply to the individual (free) states then are states only bound by their constitution with regards to RKBA.

Not all states' constitutions mirror the federal constitution and BOR with regards to RKBA. Texas is a prime example and Illinois specifically mentions police powers.

The constitution and certain articles of the BOR specifically spell out what the government can and cannot do. "The government shall make no law...."

How can some of the documents apply to federal and not states?

Anygun

 

[shield20]

They SHOULD apply to all govts - they are part of the Constitution - the Supreme law of the land, "and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding" [except where "Congress shall pass no law..." makes it specific to the feds, which makes sense because some states did have state-mandated religions at this time] AND..."The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States" - some of those immunities are enumerated and protected in the BoR.

 

[Maximum1]

Many State Constitutions specfically call out the Right to Bear Arms....Others don't.

 

[Jim March]

Start here:

http://www.equalccw.com/practicalrace.html

 

[Tyris]

Many states regularly ignore their own constitutional RKBA clauses too, they dont have much bite either.

I do like South Dakota's laws which prevent the state from passing restrictions worse than the federal level. Forward thinking at its best.

-T

 

[hugh damright]

If the 2A does not apply to the individual (free) states then are states only bound by their constitution with regards to RKBA.

In Presser v Illinois, the SCOTUS said that the 2nd doesn't bind the States, yet there are federal limits on the States' gun control powers:

"the states cannot, even laying the constitutional provision in question [Second Amendment] out of view, prohibit the people from keeping and bearing arms, so as to deprive the United States of their rightful resource for maintaining the public security, and disable the people from performing their duty to the general government."

The constitution and certain articles of the BOR specifically spell out what the government can and cannot do. "The government shall make no law...."

The First Amendment says that Congress shall make no law, and the original amendments are understood to have been intended to limit the federal government. That seems to be how constitutionalism works - a constitution frames a government, and a BOR declares principles of, or limits upon, the government being framed. If the State Governments were framed by the US Constitution, then the USBOR would be binding upon the States ... here is what the SCOTUS said in Barron v Baltimore:

"The question thus presented is, we think, of great importance, but not of much difficulty. The constitution was ordained and established by the people of the United States for themselves, for their own government, and not for the government of the individual states. Each state established a constitution for itself, and in that constitution, provided such limitations and restrictions on the powers of its particular government, as its judgment dictated. The people of the United States framed such a government for the United States as they supposed best adapted to their situation and best calculated to promote their interests. The powers they conferred on this government were to be exercised by itself; and the limitations on power, if expressed in general terms, are naturally, and, we think, necessarily, applicable to the government created by the instrument. They are limitations of power granted in the instrument itself; not of distinct governments, framed by different persons and for different purposes."

How can some of the documents apply to federal and not states?

Because they did not originally apply to the States, and an attempt to reconstruct the USBOR into something other than what was intended has not been 100% successful.

 

[Aguila Blanca]

IANAL, so my opinion doesn't count. Nonetheless, here's how I see it:

The 1st Amendment clearly says that "The Congress" shall enact no law abridging the freedom of speech, etc. Everything about the 1st Amendment, if it is read strictly, seems aimed at limiting the Federal government.

By contrast, the 2nd Amendment is a blanket prohibition. "The right of the People to keep and bear arms shall not be infringed." Period. It doesn't say "... shall not be infringed by the Congress," and it does not say "... shall not be infringed by the Federal government." It says "... shall not be infringed."

Since I accept it as a matter of faith that the gentlemen who wrote the BOR knew what words meant and how to put them together, I accordingly have to assume that, just as they meant "the people" where they wrote "the people," they were likewise smart enough to write "the Congress" where the intent was solely to limit "the Congress." Where they did NOT specify that the limitation applied to the Congress, IMHO it's a reasonable position to argue that the limitation is a blanket limitation, applying to all branches and all levels of government.

 

[Mr Kablammo]

This is a bit of a tangent... But let us suppose that the 2nd Am only applies to the states. Then what about the 14th Am (if that is the one that bans slavery)? If only the states can "own guns/militias" then are only states forbidden from owning slaves?

Clearly, every bit of historical documentation on the subject shows that the 2nd applies to individuals and for self-defense against predatory governments.

 

[Jim March]

Presser only restates Cruikshank. And Cruikshank is quite possibly the most racist US Supreme Court decision ever.

More reading:

http://www.americanminutemen.org/reinhardt.htm

 

[Robert Hairless]

Perhaps if the Second Amendment applies only to the federal government it might simply be prohibited under the Constitution's Commerce Cause from using federal funds to enable or support any state or local actions that infringe the right to keep and bear arms.

So the states might be able to have extremely restrictive laws without any interference by the federal government but the federal government might not be able to supply any funding that furthers the enforcement of those laws. For example, individuals currently do not have the right to keep and bear arms in New York State. New York probably could continue that position but, of course, the federal government might be prohibited from allowing the state or any of its municipalities to do NICS checks, use FBI training or other services, obtain government funding for police equipment that might be used to enforce its restrictive laws, and perhaps even be unable to have its police use federally funded highways to travel on the way to arrest offenders, to incarcerate them in jails or prisons built or maintained with federal funds, or try them in buildings built with federal money.

For example, the federal government has no right to impose speed limits for drivers in any state. And of course the federal government would not even think it had such a right because that would be wrong. So in 1974 President Nixon and the Congress used the Commerce Clause of the United States Constitution to require a 55 mph speed limit as a condition for any state to receive federal highway funds. For some reason or other, all states immediately imposed a 55 mph speed limit. The federal government did not impose that speed limit. The states did.

In the situation that concerns us here--Heller v. DC--that kind of action might not originate automatically with the federal government. It might require law suits against the federal government, but that's no big deal. All of the people who don't support the NRA because "it doesn't go far enough" (or whatever their individual reasons might be) will have the opportunity to bring those suits in their own states and cities at their own expense, to demonstrate the purity of their principles, and there's no doubt that they will do it.

 

[Prof. A. Wickwire]

For example, individuals currently do not have the right to keep and bear arms in New York State.

Robert,

This statement is not quite accurate. While the New York State Constitution does not mention the right to keep and bear arms, New York State Civil Rights Law Article 2, Section 4 states: "A well regulated militia being necessary to the security of a free state, the right of the people to keep and bear arms cannot be infringed." Note the minor change in phrasing.

How the State legislature was able to convince the people that Civil Rights Law does not apply to the people is another matter.

Sincerely,

Prof. A. Wickwire

 

[gc70]

Regardless of how people may wish to interpret the Constitution, the Second Amendment is not applied to the states by the federal government.

 

[Hutch]

And Cruikshank is quite possibly the most racist US Supreme Court decision ever.

Jim Cruikshank could be, worst, second. Remember Dred Scott?

 

[shield20]

The states had proposed more than two hundred amendments during the ratification process. After repetitious amedments are eliminated, over one hundred separate proposals can be identified. Most sought to change the structure of the federal government or the balance of power between it and the states, while others focused on protecting individual rights.

I find it harder and harder to believe that those sent to the states for ratification which did focus on securing INDIVIDUAL RIGHTS, including rights considered inherent and inalienable, should be meant to limit only the federal govt. Securing personal rights in a document that explicitly says it is the law of the land are intended to do just that - from ALL infringment (except where only "Congress shall not..." is stated)

 

[gc70]

I find it harder and harder to believe that those sent to the states for ratification

Do you find it easier to believe that states voted to give up their existing powers and practices?

 

[shield20]

Yes, because "the states" are actually "the people" who were elected to their legislatures, and so "the people" would NOT so easily allow themselves to be open to the deprivation of their own inalienable rights; they would make sure their individual rights were secured from all infringment - which was the whole purpose of wanting amendments enumerating and securing rights in the 1st place. Wouldn't you want to protect your rights too?

 

[romma]

What cracks me up are the government mouth-pieces that acknowledge the
2nd for what is is supposed to be, yet pull out the "reasonable restrictions" statement...

It's like they get the first half of the ammendment, but ignore the shall not be infringed part... It is baffling!

 

[shield20]

Yep - and who want to determine and enforce what "reasonable" is on a right that is absolute. If it wasn't absolute, Madison never would have proposed it.

 

[Robert Hairless]

Prof. A. Wickwire:

Quote:
For example, individuals currently do not have the right to keep and bear arms in New York State.

Robert,

This statement is not quite accurate. While the New York State Constitution does not mention the right to keep and bear arms, New York State Civil Rights Law Article 2, Section 4 states: "A well regulated militia being necessary to the security of a free state, the right of the people to keep and bear arms cannot be infringed." Note the minor change in phrasing.

How the State legislature was able to convince the people that Civil Rights Law does not apply to the people is another matter.

Sincerely,

Prof. A. Wickwire

I was thinking of Bach v. Pataki, in which Northern District Judge Norman A. Mordue held that Bach could not allege a constitutional right to bear arms because the "Second Amendment is not a source of individual rights."

Judge Mordue's decision was issued in September 2003. It's possible that I've misunderstood or that my brief statement distorted its significance. I hope so.

 

[Cosmoline]

At the founding the BOR was intended to apply only to the Federal government and act as a limit on its fearsome power. The drafters didn't have nearly as much concern over the powers of individual states. Over time the states adopted similar provisions of their own, but the 14th Amendment is the instrument which applied the bulk of the BOR to the states directly. The folks who drafted the 14th placed special importance on protecting freedmen and others against the violence of states hostile to their existence, so a ruling that decided the 2nd applies only to the feds would be pretty ironic. And as we all know the first wave of anti-gun legislation in the US came as part of Jim Crow to disarm those same freedmen.

 

[Prof. A. Wickwire]

Robert,

In Bach v Pataki, the case was regarding a non-resident of the state applying for a license available only to residents and having no recognition of other states' licenses (much as I personally disagree with this practice).

Also note that the court based most of its reasoning on the second part of the case (Second Amendment: Individual or Collective Right?) on United States v Miller which has been misused since the ruling was given.

The reasoning in the third section (Right to Travel) seems somewhat disingenuous and all but accuses other state governments of not exercising due diligence in issuing licenses.

The fourth section (Equal Protection) is based on the same erroneous reading of United States v Miller as the second section.

There was no mention of New York State Civil Rights Law because Mr Bach was not a New York State resident.

The entire case was a foregone conclusion based on long standing New York State legal positioning on private ownership of firearms. (I.e. The "Sullivan Law").

In short, this case left a bad taste in the mouth of every law abiding gun owner in New York State.

Sincerely,

Prof. A. Wickwire