Second Amendment Applies to States

[nhhillbilly]

NH State Constitution stated is 2-A (The Bearing of Arms.) All persons have the right to keep and bear arms in defense of themselves, their families, their property and the state.

 

[ilbob]

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

Dred Scott was before the Civil War, and slavery was constitutional at that time. It would have been very difficult to interpret the constitution in any rational way where that decision came out different.

Back then, federal courts were reluctant to mess with states powers because they actually believed in the tenth amendment. The Civil War just about eliminated the tenth.

 

[Robert Hairless]

Could it be that we're talking at cross purposes, Prof. A. W.?

My original statement in reference to the Second Amendment was that "individuals currently do not have the right to keep and bear arms in New York State." Judge Mordue in Bach v. Pataki said exactly that: "the Second Amendment is not a source of individual rights."

I've read the decision and am reasonably familiar with the case and its particulars. The judge's statement seems an obstacle to arguments that the Second Amendment is a source of individual rights in New York, which is the subject of this thread.

For that reason it doesn't surprise me that "In short, this case left a bad taste in the mouth of every law abiding gun owner in New York State" or that "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')."

 

[gc70]

Wouldn't you want to protect your rights too?

If I had been a state legislator during the pre-BOR period, I would have most certainly protected my rights. My rights, however I defined them, were already recognized and protected to the extent I thought necessary by my sovereign state's constitution and laws.

• I would have ensured that the new federal government was prohibited from fooling with my existing, state-recognized and -protected rights.
• I would NOT have insisted that the new federal government tell me how to run things in my state.

 

[Prof. A. Wickwire]

Robert,

As far as the New York State Judicial interpretation of the Second Amendment of the Bill of Rights, you are correct. They came to the conclusion that "the People" does not mean the people.

All I meant was that New York State Civil Rights Law (which has been completely ignored by the judiciary) mentions the existence of the same right that the Second Amendment does.

Sorry I did not make my statement more clearly.

Sincerely,

Prof. A. Wickwire

 

[shield20]

My rights, however I defined them, were already recognized and protected to the extent I thought necessary by my sovereign state's constitution and laws.

Except in cases where they weren't, as even Madison pointed out. Seems he wanted to cover such state defects with the BoR.

It may be said, indeed it has been said, that a bill of rights is not necessary, because the establishment of this Government has not repealed those declarations of rights which are added to the several State constitutions; that those rights of the people, which had been established by the most solemn act, could not be annihilated by a subsequent act of that people, who meant, and declared at the head of the instrument, that they ordained and established a new system, for the express purpose of securing to themselves and posterity the liberties they had gained by an arduous conflict.

I admit the force of this observation, but I do not look upon it to be conclusive. In the first place, it is too uncertain ground to leave this provision upon, if a provision is at all necessary to secure rights so important as many of those I have mentioned are conceived to be, by the public in general, as well as those in particular who opposed the adoption of this Constitution. Besides, some States have no bills of rights, there are others provided with very defective ones, and there are others whose bills of rights are not only defective, but absolutely improper; instead of securing some in the full extent which republican principles would require, they limit them too much to agree with the common ideas of liberty.

It is tough trying to find anything substantial to back up either "intent". (other then the actual wording in the Constitution). I am trying to find out more about why Ames wanted what became the 1st to say "Congress shall pass no law..." as I think the..."uniqueness" of that may shed some light, but no joy on anything substantial so far to help out in our discussion.

Cheers!

 

[Robert Hairless]

No problem, Prof. A.W. It took me a while to suspect that we might be looking at different aspects of the same elephant.

This kind of confusion is made possible by the folks who bring you the collective reading of the Second Amendment. Accept no substitutes.

What's odd is that there's a divergence in Norman Mordue's own background that makes me think it's unlikely that he could hold that opinion. He's unquestionably patriotic: awarded a Bronze Star and DSC in Vietnam, I believe. There he would have had many opportunities to see ordinary people die because they could not defend themselves against superior force. Mordue is also unquestionably a Clinton appointment to the federal judiciary and obviously not inclined to support the right of ordinary people to have the means to defend themselves or to own firearms. Sometimes I've wondered what goes on in his head to reconcile those polar positions. I know that other people do it too but I've never been able to reconstruct the internal dialogue in any way that satisfies me.

 

[gc70]

Except in cases where they weren't, as even Madison pointed out. Seems he wanted to cover such state defects with the BoR.

What would you expect from a Federalist elitist? Madison was against the Bill of Rights until political expediency forced him to pledge his support to win election to Congress. Madison does deserves credit for being an astute politician; he could not stop the Bill of Rights, but taking control of the pen allowed him to frame the debate to his advantage.

 

[Jim March]

For the record:

The Dred Scott case established that America had always been a racist nation (true at the time), that US founders had supported racist laws (sadly, also true) and that therefore racist laws were legal as of 1856 (legally correct, morally tragic).

The Cruikshank case allowed state and local government officials and citizens to commit murder, rape and arson against blacks with no Federal oversight allowed. It allowed any state to strip blacks of every possible civil right including the right to simply exist, with NO legal basis behind the decision. Apparently upset that the Federal legislature had overturned Dred Scott via the 14th Amendment, the court illegally pretended the 14th didn't exist. In doing so it triggered thousands of lynchings and generations of civil rights violations.

Cruikshank was worse than Dred Scott as a practical matter, and as a sick "bonus" Cruikshank was completely unsupportable legally (unlike Dred Scott).

Read the text of both cases before making a decision as to which was worse.

 

[k_dawg]

To me, it is simple: *ANY* Government who denies basic human rights from its citizens is repugnant to the social contract.

 

[MrTuffPaws]

The concept of incorporation:

http://en.wikipedia.org/wiki/Incorporation_(Bill_of_Rights)

Read it. It will answer all of your questions

 

[Shureshot]

This is a no-brainer. State Law can never supercede the Constitution. If a State were to pass more draconian laws, then your rights as a US citizen would be infringed. Therefore, a State cannot pass more restrictive laws than the Constitution allows for.

Example: The First Amendment: 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.

If it did not also apply to the states, then a state could forbid Catholic Churches in their state, or Jews. This is clearly not the case, nor was it the intent of the Founders. The Constitution applies to all the states as well as the Federal Government. The states only have lattitude in powers that ...are not delegated to the United States by the Constitution, nor prohibited by it to the states.

Semper Fi!

 

[Titan6]

He's unquestionably patriotic: awarded a Bronze Star and DSC in Vietnam, I believe. There he would have had many opportunities to see ordinary people die because they could not defend themselves against superior force. Mordue is also unquestionably a Clinton appointment to the federal judiciary and obviously not inclined to support the right of ordinary people to have the means to defend themselves or to own firearms. Sometimes I've wondered what goes on in his head to reconcile those polar positions. I know that other people do it too but I've never been able to reconstruct the internal dialogue in any way that satisfies me.

Normally this is not a logical thought process but an emotional one without a strong basis in reason. Resistance is futile.

 

[jimmyraythomason]

Quote:
"For example, individuals currently do not have the right to keep and bear arms in New York State." Correction,they DO have the RIGHT,they do not have the freedom to do so.

 

[gc70]

Example: The First Amendment: 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.

If it did not also apply to the states, then a state could forbid Catholic Churches in their state, or Jews. This is clearly not the case, nor was it the intent of the Founders.

Some of the Founders did not agree with that interpretation.

Encyclopædia Britannica

The Puritan Congregational Church remained the established church (of Massachusetts) until an amendment to the state constitution was passed in 1833.

Massachusetts Constitution of 1780 - Article III

... the legislature shall from time to time authorize and require, the several towns, parishes, precincts, and other bodies politic, or religious societies, to make suitable provision, at their own expense, for the institution of the public worship of God, and for the support and maintenance of public Protestant teachers of piety, religion, and morality, in all cases where such provision shall not be made voluntarily.

...And every denomination of Christians, demeaning themselves peaceably and as good subjects of the commonwealth, shall be equally under the protection of the law: and no subordination of any one sect or denomination to another shall ever be established by law.

 

[jimmyraythomason]

Note the date of the Massachusetts Constitution 1780 a full 12 years BEFORE the ratification of the United States Constitution ,1792. The USC including the BOR trumps ANY and ALL state constitutions regardless of their ratification.

 

[shield20]

If it did not also apply to the states, then a state could forbid Catholic Churches in their state, or Jews. This is clearly not the case, nor was it the intent of the Founders. The Constitution applies to all the states as well as the Federal Government.

As gc says, "Congress shall make no law..." explicitly limits THIS amendment to Congress only, because some States had mandated religions. [Madison lost his attempt here to bind the States as well - see below]

It was the Senate - the Upper house, the representatives of the States, that combined the 3rd and 4th Articles proposed by the lower House into one specifically yet more broadly limiting the new Congress only:

ARTICLE THE THIRD.
Congress shall make no law establishing religion or prohibiting the free exercise thereof, nor shall the rights of Conscience be infringed.

ARTICLE THE FOURTH.
The Freedom of Speech, and of the Press, and the right of the People peaceably to assemble, and consult for their common good, and to apply to the Government for a redress of grievances, shall not be infringed.

became:

ARTICLE THE THIRD.
Congress shall make no law establishing articles of faith, or a mode of worship, or prohibiting the free exercise of religion, or abridging the freedom of speech, or of the press, or the right of the people peaceably to assemble, and to petition to the government for a redress of grievances.

AND, the Senate, the State representatives, also did away with this one:

ARTICLE THE FOURTEENTH.
No State shall infringe the right of trial by Jury in criminal cases, nor the rights of conscience, nor the freedom of speech, or of the press

Now why would they, the State reps, do such a thing?...explicitly protecting some State powers I would think.

 

[shield20]

Jimmy, check your dates again.

 

[gc70]

jimmyraythomason: Massachusetts continued to have an established state religion for 42 years AFTER the adoption of the Bill of Rights.

This unanimous Supreme Court ruling clearly describes the original application of the Bill of Rights:

The first amendment to the Constitution prohibits Congress from abridging 'the right of the people to assemble and to petition the government for a redress of grievances.' This, like the other amendments proposed and adopted at the same time, was not intended to limit the powers of the State governments in respect to their own citizens, but to operate upon the National government alone. Barron v. The City of Baltimore, 7 Pet. 250; Lessee of Livingston v. Moore, id. 551; Fox v. Ohio, 5 How. 434; Smith v. Maryland, 18 id. 76; Withers v. Buckley, 20 id. 90; Pervear v. The Commonwealth, 5 Wall. 479; Twitchell v. The Commonwealth, 7 id. 321; Edwards v. Elliott, 21 id. 557.

 

[shield20]

Nice read gc! Check out the Barron v. The City of Baltimore case - it goes into alot of detail on this subject. Then check out Roland's commentary.

http://www.constitution.org/ussc/032-243a.htm

http://www.constitution.org/ussc/032-243jr.htm


Back to the OP,

Also keep in mind that if the 2nd does NOT apply to the States, they still can not, through infringment, take actions limiting the people's right that would deny the federal govt the (effective) Militia it needs to keep its Constitutional guarantees. Any infringemnt would still be unconstitutional. This seems to be one of those areas where the two govts are supposed to jealously guard each other - for the people's benefit.

 

[gc70]

shield20 again gives sound references. Although Roland provides interesting commentary and opinions, Barron remains established precedent and settled law.

This seems to be one of those areas where the two govts are supposed to jealously guard each other - for the people's benefit.

I think state jealousy became studied disregard about the time the national government began footing the bill for the "militia" (AKA national guard).