Thought Experiment: Second Amendment

[Mad Man]

Inspired by other threads about revolution and such...

The anti-gunners claim that there is no individual right to own a firearm, because the Second Amendment to the U.S. Constitution only applies to the states.

Imagine a very courageous governor who declares all federal gun control laws void and null in her state, because they infringe on the state's right to make gun control laws more liberal (ie - less restrictive) than federal gun control laws.

What legal arguments could the federal government make against the governor?

 

[PATH]

That would make for a very curious situation.

 

[Art Eatman]

Instead of thinking about somebody of whatever political view starting a big brouhaha over anything like the Second Amendment, think about this reality:

The Second Amendment is part of a package. The package is well proven to be a group of restraints against abuse of power on the part of what the writers referred to as the State. "State" as in federal government.

A correlative question is, how can something written to constrain the State be seen as a constraint upon The People? (And note that in the SCOTUS case of U.S. v. Urriquez/Verdugo, 1992, "The People" was held to apply singularly as well as to groups.)

The problem we face is that people of today try to use today's word usage and meanings instead of the word usage and meanings of the eighteenth century, when interpreting the meanings of the individual Constitutional Amendments that we call the Bill of Rights. Much of the anti-gun argument about the meaning of the Second Amendment is sophistry and hypocrisy.

Art

 

[Blackhawk]

U.S. Constitution, Article I, Section 8:

The Congress shall have Power

* * *

To provide for organizing, arming, and disciplining, the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress;

* * *

So, you see, the federal government controls the Militia.

We don't even need to get into the supremacy of federal law.

 

[goon]

Well, if that is the case...
Then let's make the whole Bill of Rights apply only to the states.
You don't get to say what you want, the states do...
You don't get the right to trial by jury, the states do...
I'm sure that everyone gets my point.

 

[Cosmoline]

The problem with this is that the standard leftist interpretation of the Second Amendment basically reads it out of the Constitution. It doesn't really create any state right. It just vanishes.

 

[Blackhawk]

goon:

I'm sure that everyone gets my point.

No, not really.

The Constitution is the supreme law of the land. All the states agreed to abide by it as a condition of admission to the union.

The BOR expressly probibits the federal government from doing certain things, and the 14A expressly puts those fetters on the states as well.

The 2A has that militia clause in it, which antis claim causes RKBA to default to the states. However, the portion of Article I, Section 8 I quoted quite clearly says that militias are the slaves of Congress, not the states. The states just have administrative rights regarding them.

So if the contemporaneous use of "militia" in two places in the same document means anything, it means that the 2A cannot be a right of the states since Article I:8 gives ultimate control and authority over militias to the federal government. Otherwise, the 2A would be totally gratuitous, which violates every principle of judicial construction, which requires that every word of a document be given its full meaning.

 

[Ian]

The Feds could also make use of Article 6, Section 2:

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 authority of the United States, shall be 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.

In other words, the states aren't allowed to contradict the Fed. The only group allowed to judge the validity of Fed laws is the Supreme Court, appointed by the President. So in a situation like Mad Man proposed, the SC would simply rule that the laws in question don't violate the 10th Amendment, and neither the state nor its citizens would have any recourse. Weren't those Federalists a clever bunch?

 

[TallPine]

Imagine a very courageous governor who declares all federal gun control laws void and null in her state

"Her state" ...?

Were you by chance thinking of our very own "Judy" ?????

 

[goon]

My contention is that the BOR identifies some of the rights that belong to the people.
The second ammendment was important enough to them to be listed second, not 26th, but second.
That makes it important to me.

 

[Ian]

Goon - You bet the 2nd Amendment is important to us as citizens and freedom-loving individuals. Sadly though, the writers of the Constitution, either by intention or accident (having read about Hamilton and Madison, I would say by intention) gave the Federal government a number of loopholes through which to bypass virtually anything in the Bill of Rights.

 

[Baba Louie]

goon,

Originally it was the fourth of twelve articles with the first two deleted for some reason which escapes me at the moment.
(Edited to add: Found it)
http://earlyamerica.com/earlyamerica/freedom/bill/bill2.jpg

The wording has always puzzled me in that it does not grant the "right" to the people, it only restricts the body of congress from infringing upon said "right".

As Ian pointed out, the 10th provides a conveneniant and plausible loophole (ace in the hole?)

Or am I wrong here?

Adios

Maybe a move to Legal and political?