States Rights vs Bill of Rights

[Raystonn]

The first Second Amendment fight after Heller will be against claims that the Bill of Rights only applies to the federal government, being a list of things the U.S. Government cannot do. This argument actually has merit. However, it also opens a can of worms should it be upheld. If this happens then the federal goverment will lose all ability to protect individual liberties against a corrupt State. All federal civil rights legislation of the 1960s will be invalid and we will return to the days of full States Rights. If this happens, I'm going to need to move from California...

Comments?

-Raystonn

 

[ArmedBear]

This argument actually has merit.

No, it doesn't.

It may have before the Reconstruction, but it does not now.

The 14th Amendment:

Section 1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. 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.
...
Section 5. The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.

 

[Raystonn]

After looking at the 14th amendment, I would agree with you. However, Chicago city officials certainly wouldn't:

"City officials expressed confidence the city would prevail in any court challenge, asserting, among other things, that the 2nd Amendment as part of the Bill of Rights restricts the federal government and does not apply to state and local governments."
http://www.chicagotribune.com/news/local/chi-supreme-court-gun-ban,0,3522044.story

The NRA and other organizations filing suit should ask for legal fees. It's going to be costly suing many jurisdictions.

-Raystonn

 

[SCKimberFan]

Mayor Daley is a blithering idiot! Obviously, he thinks Chicago is it's own little empire and he can do as he chooses. Yet one more time we are assaulted with the blather of the blood running in the streets and the wild, wild west becoming the norm.

 

[another okie]

The Congress which passed the 14th amendment did not think it was applying the Bill of Rights to the states. It thought it was only protecting the freed slaves against racially discriminatory laws in the south.

But in trying to understand what the guarantees against state discrimination in the 14th meant, the Supreme Court began to use the cases on the Bill of Rights to explain what the federal government was now promising to do.

The Supreme Court has only applied some of them, not all. Presser v. Illinois and Cruickshank are the two main cases on this. They are discussed in Scalia's opinion. 1, 4, 5, 6 are definitely applied, 2nd not.

Actually, the term "applied to the states" is shorthand. The court has not really held that the exact text of the First, etc., now apply to the states, but that something like those guarantees are now federally guaranteed, but everyone uses the term "applied" so much that it has covered up what they're really saying, and even judges use it.

You do not need to worry that the states are going to start ignoring the whole Bill of Rights.

As an aside, states do not have rights. People have rights. Governments have powers. The distinction is important. Read the Constitution carefully and you will see how important this is.

 

[macadore]

This argument actually has merit.

It may have before the Reconstruction, but it does not now.

Well said. “The United States” had become a misnomer. Maybe the United Provinces of America or the North American Commonwealth would be more appropriate.

 

[Standing Wolf]

You do not need to worry that the states are going to start ignoring the whole Bill of Rights.

After all, they've been paying lip service to it for decades.

 

[ctdonath]

Citizens have rights.
Governments don't.

 

[macadore]

Citizens have rights.
Governments don't.

I wish that were true.

 

[Caimlas]

It would happen, I think, if only 1 of the SC judges were replaced by Obama or a G.Ford-esque McCain. And I can definitely see it coming before them and striking out all civil rights advances just to shoot gun owners in the foot.

On the other hand, if it comes before a constitutionally friendly SC, we're in luck, and the moonbats will be legally hung out to dry. And it will be win/win for everyone, in almost all regards.

 

[freddd]

States' rights died in 1865. Don't believe otherwise. Federal government rules all. In this case, that might actually be to our advantage.

 

[Tom488]

What about the Constitution itself. Article VI, clause 2 says:

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, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.

Therefore, judges in every state are bound by the Constitution, which includes the Amendments. Since the USSC (charged with interpreting the Constitution) say that the 2nd protects an individual right to keep and bear arms, that seems pretty cut-and-dried to me.

What am I missing?

 

[another okie]

Yes, Constitution is the supreme law of the land. But what is that law? If the Constitution said "The right of the people to keep and bear arms shall not be infringed by the states" than it would matter that the constitution is the supreme law of the land.

But it doesn't. The men who wrote and voted on the Bill of Rights only intended for it to apply to the federal government. They were all big men in their home states who had no fear of their state governments. What they were afraid of was a large central government that would have the power to become a tyrant.

It would be handy for our purposes if the 2nd were to be applied to the states, and perhaps it will. From a "purist" point of view I would be happier if none of the amendments had been applied to the states, but that fight is over, so we might as well apply some jujitsu and use the incorporation argument for our own purposes.

Just to make it plain, I am trying to distinguish between what the founders meant, and the world we live in today.

 

[hugh damright]

States' rights died in 1865. Don't believe otherwise. Federal government rules all.

If I believed that, I'd be part of the problem.

 

[Tom488]

The men who wrote and voted on the Bill of Rights only intended for it to apply to the federal government.

How can that possibly be true? The BoR was made part of the Constitution when it was ratified (that's the only way they achieved ratification), and the Supremacy clause SPECIFICALLY says that states are bound by the Constitution. Are you saying the Supremacy clause only applies to PARTS of the Constitution?

From Findlaw:

State courts are bound then to give effect to federal law when it is applicable and to disregard state law when there is a conflict; federal law includes, of course, not only the Constitution and congressional enactments and treaties but as well the interpretations of their meanings by the United States Supreme Court.

And this is EXACTLY the case here... USSC says that 2A guarantees an individual the right to possess arms. Therefore, a state, or a city, cannot enact laws contrary to that opinion.

 

[hugh damright]

The supremacy clause does not change the intent of other clauses. The Second Amendment was not intended to bind the States, it says nothing about binding the States. If the Second Amendment said "no State shall infringe on the RKBA" then that would be the supreme law. But if someone reads it that way in confusion, it is not the supreme law, it is only their personal misconstruction. It seems to me that the supreme law is that gun control powers are reserved to the States and the feds are obliged to butt out.

 

[Vibe]

The 2nd amendment (and the rest of the BOR) has been recognized as a right that existed before the Constitution and does not depend upon that document in any way for that existence - Per previous SCOTUS decisions. So it's protected under several clauses - Privileges and Immunities,for example. It says "Shall not be infringed" unlike the first Amendment which specifies "Congress shall pass no laws", the 2nd IS framed to be universally protected. Regardless of how former SCOTUS justices viewed it.

 

[Ivy Mike]

hugh, while I understand where you're coming from I think the 10th amendment would come into play when interpreting the 2nd. As the 2nd makes no mention of who may regulate it and plainly declares it to be a right of the people (and no one else) AND states that right may not be infringed, I'd say the intent is pretty clear.
It is a right of the people and the states and feds are obliged to butt out save for legal punishment applied to an individual after due process has taken place.

However I am not a LOLyer and government tends to reject my heavy individual freedom stance. They don't like the idea that I don't need them for much.

 

[LB7_Driver]

POINT OF ORDER!

There's no such thing as "State's Rights".

No where in the Constitution is a "right" attributed to any level, or any office of government. Governments are always delegated powers and authorities.

 

[El Tejon]

The Congress which passed the 14th amendment did not think it was applying the Bill of Rights to the states. It thought it was only protecting the freed slaves against racially discriminatory laws in the south.

Who told you this? Is it very clear in the Congressional Record that the Framers of the 14th Amendment intended to apply the BoR to the states and explicitly mentioned the RKBA.

Are you confusing the Civil Rights Act of 1866 with the 14 Amendment?

 

[ctdonath]

The Congress which passed the 14th amendment did not think it was applying the Bill of Rights to the states. It thought it was only protecting the freed slaves against racially discriminatory laws in the south.

How, by any stretch of logic, do those two sentences co-exist?

 

[SCPigpen]

More & more I'm wishing the South would have won!!!!!

 

[hugh damright]

unlike the first Amendment which specifies "Congress shall pass no laws", the 2nd IS framed to be universally protected.

I don't think we can just assume that the States are bound unless an article says otherwise .. just the opposite, I think we must assume that the States are not bound unless an article specifically says so.

I think the 10th amendment would come into play when interpreting the 2nd

I think so too, but the way I see it, the Tenth means that since gun control powers were not delegated to the US by the Constitution, nor prohibited by it to the States, it remains up to each State (or the people thereof) to determine their gun laws.

There's no such thing as "State's Rights".

States' rights are the foundation of our system of government.

Is it very clear in the Congressional Record that the Framers of the 14th Amendment intended to apply the BoR to the states and explicitly mentioned the RKBA.

While the record shows that a couple of people thought the 14th would make the USBOR binding against the States, I think it is a shortcut through the facts to see that as the consensus view.

Are you confusing the Civil Rights Act of 1866 with the 14 Amendment?

If there is anything very clear about the 14th it is that the intent was to make the civil rights act part of the Constitution ... one reason for this was to settle the question over whether the act was unconstitutional ... but I think the primary reason was that the civil rights act was unwanted and would have been repealed once the South had their representation back, so the yankees forced it into the Constitution so that it would be beyond the ability of the South to repeal ... I recently read a book on reconstruction (Unleashed at Long Last - Squires) which called this "prostituting the supreme law of the land to partisan politics of the lowest order" ... but I digress ... how does one confuse the civil rights act with the 14th when it is a fact that the main purpose of the 14th was to make the civil rights act part of the Constitution?

 

[Cosmoline]

This argument actually has merit.

Absolutely, and it was the accepted view for half the history of the Republic. The big change came after the Civil War with the adoption of the 14th. By the end of the century the courts had "incorporated" most of the BOR and held that they bound the several states. Still, not all amendments have been incoporated. Some by their nature cannot be incoporated. The 7th right to jury trial in civil cases does not apply to the states. Likewise there is no right to grand jury indictment via the Fifth. Some states use different procedures, but this is still Constitutional.

 

[DSAPT9]

The posts I have read here are very good and it is a great debate. I will admit you folks are more learned in the law than I but I do have a question. It is somewhat a repeat of the original question. If the Bill of rights and the Constitution only effects the Federal level and not the state then how can the Supreme Court tell the state they can not ban hand guns. Their ruling would only effect the Federal level stating the US can not put a ban on handguns and the state could just ignore the decision. I do under stand that it went through the lower courts and the Supreme Court was the tiebreaker. But they ruled on federal law not state law. They said the State law violated federal law giving me the impression that Federal law is supreme over the state.

If federal law is not supreme the states could rule the first amendment is not valid and ban porn, certain books and art they find distasteful but they can not because of the first amendment. Like I said I don’t know the law very well but I was always thought the rules go in order of Federal, State then local and no lower ruling could violate any upper ruling.

I may be wrong it would not be the first time!