Shouldn't someone make a law protecting gun owner rights?

[45223]

Apparently the second amendment wasn't clear enough when it said "Shall not be infringed" so I have an idea to propose making a law that specifically prevents new restrictive gun laws from emerging. Similar to the FOPA section that bans the government from keeping a gun registry. This would ensure that even if the future of the country becomes extremely liberal and the mass majority of people wanted to vote away the gun rights of the minority that they would not be able to. I'm not an expert in politics so maybe it's wishful thinking but I think now is the time since there is still a bit of momentum within the gun community with lots of states laxing their gun laws, so to protect these laws with a law.

I mean what's really stopping New York or any other leftist state from saying you can't have a magazine that holds over 5 rounds, or 3, or even just limiting it to 1 round? They'll say they're not infringing on anyones rights because you can still own a gun, just a single shot one.

So who thinks this idea is possible? The likelihood it will be taken seriously and put into a bill? If it's a good idea I'll email it to my state representative. I'd just need to make it sound more professional.

 

[Frank Ettin]

....I have an idea to propose making a law that specifically prevents new restrictive gun laws from emerging...

Won't happen and pretty much a lost cause. There is a fundamental legal principle that one legislature may not pass a law binding a future legislature. As the Supreme Court noted (U.S. v. Winstar Corp., 518 U.S. 839 (1996)):

... In his Commentaries, Blackstone stated the centuries-old concept that one legislature may not bind the legislative authority of its successors:

"Acts of parliament derogatory from the power of subsequent parliaments bind not. . . . Because the legislature, being in truth the sovereign power, is always of equal, always of absolute authority: it acknowledges no superior upon earth, which the prior legislature must have been, if it's [sic] ordinances could bind the present parliament." 1 W. Blackstone, Commentaries on the Laws of England 90 (1765)....

...Similar to the FOPA section that bans the government from keeping a gun registry....

Yes, but that can't prevent a future Congress from changing the law to implement a registry.

...Apparently the second amendment wasn't clear enough...

Our real protection will come from continued, well thought out, well planned, and well executed litigation to, we can hope, build on the foundation of Heller and McDonald further solid RKBA court decisions.

...So who thinks this idea is possible?...

As noted it's not really possible.

 

[JSH1]

As Frank said, your idea won't work. Anything this Congress can pass, a future Congress can repeal.

 

[CoalTrain49]

Gun owners will be lucky to keep their seats in the back of the bus.

In a few more years we may all be walking.

 

[Tirod]

MO has passed laws intending to do exactly that, and after the fact there rose up questions about unintended consequences.

The highly improbable but not impossible situation of the local county sherriff detaining Federal agents attempting to enforce Federal law was a key part of it.

The issue is "Shouldn't there be a law?" which throws the idea that a Constitutional Right can be created or amended by legislators. That is ALREADY the problem. It ALREADY states "shall not be infringed" and asking for more laws infringes on it more.

Better to allow the court to clarify it and when we do that we get decisions such as Heller and others which can and do support the Right - rather than let legislators mess with it. Like, the AWB, or NFA.

We aren't supposed to make laws supporting any one religion, either, but CCW regulations by states seem to include churches on the prohibited list. The .Gov has no business setting firearms policy on that real estate at all, and quite a few pastors in those states have ushers quietly armed regardless.

Let's not make more laws, let's start respecting the rights we already have.

 

[Frank Ettin]

MO has passed laws intending to do exactly that,...

Yes, but those so called firearm freedom laws are meaningless insofar as they purport to override federal firearm laws. In any case, they, like any law passed by a legislature, may be changed or repealed by a legislature elected in that State in future years; and so they aren't what the OP is talking about.

 

[Panzerschwein]

In Kansas, they pretty much did.

 

[Frank Ettin]

In Kansas, they pretty much did....

No they did not. See post 6. State "firearm freedom" laws have nothing to do with the OP's question.

First, they, like any law passed by a legislature, may be changed or repealed by a legislature elected in that State in future years; and so they aren't what the OP is talking about.

Second, have no practical effect. They do not override federal law, nor do they prevent or preclude the enforcement of federal law by federal agents.

We've had a number of discussions of this topic:

• South Carolina Firearms Liberty Act
  
  
• Kansas Leads the Nation
  
  
• Brady Group sues Kansas
  
  
• Gun rights and nullification
  
  
• Wyoming takes stand against Federal Gov't
  
  
• Missouri Legislature Nullifies All Federal Gun Control
  
  
• Montana Firearms Freedom Act
  
  
• Will Montana's Firearm Freedom Act be heard by Supreme Court

With regard to the Montana law, the Ninth Circuit ruled against the Montana law in one case (Montana Shooting Sports Association v. Holder, No. 10-36094, (9th Cir., 2013)).

See this article (emphasis added, footnotes omitted):

...Plaintiffs filed suit in support of the law, in federal district court, on October 1, 2009. These plaintiffs are the Montana Shooting Sports Association, the Second Amendment Foundation, and MSSA president Gary Marbut. ...

On September 29, 2010, U.S. District Court Judge Donald Molloy dismissed the suit "for lack of subject matter jurisdiction and failure to state a claim."

The Plaintiffs filed an appeal with the United States Court of Appeals for the Ninth Circuit. In a decision issued on August 23, 2013, the Ninth Circuit ruled that the U.S. District Court erred in concluding that the Plaintiff's lacked standing but, after considering the merits of the case, affirmed the dismissal of the action for failure to state a claim. Relying on the United States Supreme Court's decision in Gonzales v. Raich, 545 U.S. 1 (2005), and the court's own precedent in United States v. Stewart, 451 F.3d 1071 (9th Cir. 2006), the Ninth Circuit panel unanimously ruled that Congress could regulate the internal manufacture of firearms within Montana because the creation and circulation of such firearms could reasonably be expected to impact the market for firearms nationally. A majority of the panel, over the dissent of Judge Bea, went further to hold that the Montana Firearms Freedom Act was preempted by the federal licensing law. Two petitions for a writ of certiorari sought to bring the matter before the United States Supreme Court, but the writ was denied in both instances....

 

[bearcreek]

Yes, but those so called firearm freedom laws are meaningless insofar as they purport to override federal firearm laws.

They're not completely meaningless because they are simply a reaffirmation and clarification of what the Federal and most State constitution's already say. Also, just because something is Federal law does not mean that a State will or should abide by it. Mary Jane anyone? Unfortunately, firearms would probably be treated differently than pot, even though the principle is similar.

 

[bearcreek]

Second, have no practical effect. They do not override federal law, nor do they prevent or preclude the enforcement of federal law by federal agents.

Just because they don't doesn't mean they shouldn't.

 

[RPRNY]

Any such law would require a 2/3 majority in Congress to overcome the inevitable veto of this or any Democratic President could be subsequently amended or overturned by simple majority. A further amendment to the second amendment would require 2/3 majority of Congress and concurrence by 2/3 of the state legislatures, currently not feasible.

A laudable idea but impractical.

 

[Frank Ettin]

They're not completely meaningless...

They may have symbolic value, but that is all.

...they are simply a reaffirmation and clarification of what the Federal and most State constitution's already say....

Perhaps in your interpretation of the Constitution, but what you think the Constitution says doesn't matter.

There has been since the founding of our republic considerable dispute about what the Constitution says and how it applies in particular situations. The Founding Fathers anticipated this and in the Constitution assigned the task of resolving those disputes to the federal courts (Article III, Sections 1 and 2):

Section 1.

The judicial power of the United States, shall be vested in one Supreme Court, and in such inferior courts as the Congress may from time to time ordain and establish. ...​

Section 2.

The judicial power shall extend to all cases, in law and equity, arising under this Constitution,...​

Second, have no practical effect. They do not override federal law, nor do they prevent or preclude the enforcement of federal law by federal agents.

Just because they don't doesn't mean they shouldn't.

Well according to the Founding Fathers, those state laws do not override federal law and can not preclude the enforcement of federal law by federal agents.

The Founding Fathers provided in Article VI, Clause 2, of the Constitution:

...This Constitution, and the laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every state shall be bound thereby, anything in the Constitution or laws of any State to the contrary notwithstanding....

So it appears that in this regard your view of the way things should be is in conflict with that of the Founding Fathers and the Constitution.

 

[bearcreek]

Perhaps in your interpretation of the Constitution, but what you think the Constitution says doesn't matter.

That depends. Perhaps my interpretation doesn't matter, but an individual's interpretation of it sure as heck should matter if they're going to swear an oath to uphold and defend it. Every member of Federal and State government, both elected and non elected has sworn that oath. Are you suggesting that what they swore to uphold is subject to change depending on the opinions of 9 judges?

Well according to the Founding Fathers, those state laws do not override federal law and can not preclude the enforcement of federal law by federal agents.

That idea is exactly why some of the Founding Fathers insisted on including the Bill Of Rights, in particular the 10th Amendment. They knew that the Federal government would very quickly start to use some of the things in the Constitution to overstep it's bounds. They therefore added some clarifications and limitations to try to head such things off. Didn't work the greatest of course, George Washington himself almost immediately started overstepping his authority during the Whiskey Rebellion and we've pretty much been going downhill ever since.

So it appears that in this regard your view of the way things should be is in conflict with that of the Founding Fathers and the Constitution.

Some of them, yes. Thankfully not all or we wouldn't have the Bill Of Rights, including the 2A that we on this forum hold so dear.

 

[Frank Ettin]

...Perhaps my interpretation doesn't matter, but an individual's interpretation of it sure as heck should matter if they're going to swear an oath to uphold and defend it. Every member of Federal and State government, both elected and non elected has sworn that oath....

And what does that have to do with anything?

...Are you suggesting that what they swore to uphold is subject to change depending on the opinions of 9 judges? ...

Well as a matter of fact, in the real world if there's a disagreement about what the Constitution means and how it would apply in a particular situation, that would finally be within the purview of the U. S. Supreme Court.

Well according to the Founding Fathers, those state laws do not override federal law and can not preclude the enforcement of federal law by federal agents.

That idea is exactly why some of the Founding Fathers insisted on including the Bill Of Rights, in particular the 10th Amendment....

And again, whether or to what extent the 10th Amendment would override the Supremacy Clause (Article VI, Clause 2) would, under the Constitution (Article III), be a question for the federal courts. Can you cite a Supreme Court decision sustaining a state law nullifying a federal law or precluding federal agents from enforcing federal law? In fact, there's some 200 years of Supreme Court precedent rejecting State nullification of federal law:

• United States v. Peters, 9 U.S. (5 Cranch) 115 (1809)
  
  
• Martin v. Hunter's Lessee, 14 U.S. (1 Wheat.) 304 (1816)
  
  
• Cohens v. Virginia, 19 U.S. (6 Wheat.) 264 (1821)
  
  
• McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316 (1819)
  
  
• Osborn v. Bank of the United States, 22 U.S. (9 Wheat.) 738 (1824)
  
  
• Worcester v. Georgia, 31 U.S. (6 Pet.) 515 (1832)
  
  
• Prigg v. Pennsylvania, 41 U.S. 539 (1842)
  
  
• Ableman v. Booth, 62 U.S. 506 (1859)
  
  
• Cooper v. Aaron, 358 U.S. 1 (1958)
  
  
• Bush v. Orleans Parish School Board, 188 F. Supp. 916 (E.D. La. 1960), aff'd 364 U.S. 500 (1960).

If we hope to be effective furthering the RKBA, we need to understand reality -- how our legal and political processes work in the real world.

 

[danez71]

Frank, you're being kind of a buzz kill with all the facts and citations you're spewing everywhere.

Are you suggesting that what they swore to uphold is subject to change depending on the opinions of 9 judges?

...Do you think otherwise?

 

[Frank Ettin]

Frank, you're being kind of a buzz kill with all the facts and citations you're spewing everywhere.

Well I do sometimes feel bad about it. But you know, I've got this big closet full of facts and citations, and I need to give at least some of them an airing from time to time.

I know that you understand the real world, so you must be yanking my chain a bit.

 

[danez71]

I know that you understand the real world, so you must be yanking my chain a bit.

Not really your chain but, yeah.

My question to bearcreek is sincere. I don't understand how you can think its not up to the 9 robes. And therefore, 'who' makes up the 9 can make a big difference.

They aren't 9 robots making decisions. They're 9 humans.

 

[hso]

Frank, you're being kind of a buzz kill with all the facts and citations you're spewing everywhere.

Facts are like that.

SCOTUS is the final interpreter of Constitutional issues as they are brought before the court to be argued, so the Justices are the 9 people who confer and argue and decide what is and is not in agreement with the Constitution.

The Constitution can be changed using the means laid out for amending it, but SCOTUS decisions can effectively change the interpretation of what particular parts of it means in particular context.

 

[Tirod]

In MO it was clearly communicated, at least to me, that the laws were largely symbolic. And they got changed to reflect reality.

It goee the OP's point, tho, that "there are ought to be a law" means making a Constitutional right subject to the whims of the Congress in session. WE DON'T WANT THAT. We already have enough of it, and what we should be doing it pointing out that we have too many laws, which is the cause of the problems we currently face.

Stack the NFA, GCA of 68, the remants of the AWB in some states, the amendments to restrict new full auto registrations, and whatever new letter comes out from the ATF which largely has the force of law, it's already an ever lengthening chain of restrictions binding us from exercising our freedoms.

We don't need no stinkin' laws. In a much bigger perspective of morality and ethics, they are just a substitute for the principles we should already be exercising. It's those who don't have a sense of right and wrong who need the law and it's punishments to deter them from doing evil.

The law just codifies right and wrong, with a Congress adding hundreds more every year to justify it's existence there will eventually be a point where the common man can do nothing right. Some think we are already there.

 

[danez71]

I was being tongue in cheek with Frank.

I think Frank is a great asset here.

Not only does he provide facts and citations etc, he also relates them to real world.

I'm an odd combo of being eternally optimistic smothered in pragmatism.

It took us 250 yrs to get where we are now.

Nothing is going to change because 1 guy thinks somethING or interprets something differently.

 

[Frank Ettin]

danez71, thank you.

...I'm an odd combo of being eternally optimistic smothered in pragmatism....

Well we do need to find a way to be hopeful, at least. It's awfully easy to get discouraged. (And to an optimist surprises tend to be unpleasant, while to a pessimist surprises tend to be pleasant.)

And we certainly need to be pragmatic. We need to understand politics and law, and how to use both effectively. We need to understand reality and not squander our limited resources chasing chimera.

We live in a pluralistic, political society, and not everyone thinks as we do. People have varying beliefs, values, needs, wants and fears. People have differing views on the proper role government. So while we may be using the tools the Constitution, our laws and our system give us to promote our vision of how things should be, others may and will be using those same tools to promote their visions.

The Constitution, our laws, and our system give us resource and remedies. We can associate with others who think as we do and exercise what political power that association gives us to influence legislation. We have the opportunity to try to join with enough other people we can elect legislators and other public officials who we consider more attuned to our interests. And we can seek redress in court. And others who believe differently have the same opportunities.

 

[MasterSergeantA]

Don't we already have one? Firearms Owners Protection Act of 1986?

 

[45223]

There is a fundamental legal principle that one legislature may not pass a law binding a future legislature.

The thing is the constitution already gave a way to have that. The shall not be infringed part was supposed to mean that it couldn't be undone right?

I guess maybe the best thing to do is have the supreme courts decide what it is to infringe on something? Maybe rule that shall not be infringed means just that? Because if they did pass another AWB, what if instead of a 10 round limit, they made a 5 round limit? How much does it take before it's called infringing?

Although can't supreme court decisions be reversed?
So for example the Heller case, gun rights are an individual over a collective right. It could be possible that later judges overturn and then rule that it was only collective?


I would like to add that I don't get why people say the 2nd was only for the army. It clearly also states militia.
A militia can consist of anyone. It's not a standing army, it's people with guns.
Well regulated part already exists, it's called background checks. So people who go through background checks can count as a regulated militia.

Not to mention, even if it is a collective right. Collective rights are still based on individual rights. So collectively, private citizens can own firearms right? Wouldnt that be a "collective" I guess?

Don't we already have one? Firearms Owners Protection Act of 1986?

It's limited. It prohibits the feds from keeping a registry. Individual states can still do what they want for the most part.

 

[Redstate]

You want change, we all want change... We have to elect folks who will do it. Unfortunately the under-informed out number us and the 47%-ers are voting in droves... To get "free stuff" (using our money)... We are doomed unless we elect a constitutional conservative for a leader.

 

[JSH1]

The thing is the constitution already gave a way to have that. The shall not be infringed part was supposed to mean that it couldn't be undone right?

The 2nd Amendment could be repealed. The Constitution lays out what has to happen to add an amendment or repeal one. To date only the 18th Amendment has been repealed.

I guess maybe the best thing to do is have the supreme courts decide what it is to infringe on something?

Yes. That is the purpose of the Supreme Court, they make the final decision forl legal matters in the USA and interpret the meaning of the Constitution.

Although can't supreme court decisions be reversed?

Yes, they can and the have plenty of times in the past. The Supreme Court can change their mind in a later case or Congress can change the law.

It's limited. It prohibits the feds from keeping a registry. Individual states can still do what they want for the most part.

The law that prevents the Federal government from keeping a gun registry is an ordinary federal law. It could be reversed with a simple majority vote in the House and Senate and then signed into law by the President.