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What am I missing?

Discussion in 'Legal' started by guitarguy314, Jan 5, 2013.

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  1. guitarguy314

    guitarguy314 Member

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    I apologize if this is in the wrong section, or if this has been answered. I couldn't find it.

    How are any state/county/city, or the federal lawmakers allowed to pass any gun laws at all. Isn't every Tax stamp and waiting period and ban an infringement on the second amendment? Aren't they just the same as poll taxes and literacy tests were way back when?

    How is any gun law passed at all?

    I'd be very grateful for an explanation.

    Thanks guys!
     
  2. Sam1911

    Sam1911 Moderator Emeritus

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    They stand because the US Supreme Court has not agreed with our point of view that "reasonable restrictions" are infringements.

    Kind of simple actually. There's a process by which laws can be determined to be unConstitutional and struck down. If the SCOTUS does not agree to hear those cases, or does hear those cases and agrees to let certain restrictions pass as not violating the 2nd Amendment, then those laws stand.
     
  3. guitarguy314

    guitarguy314 Member

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    But isn't that kind of awful and tyrannical? They can just refuse to hear a case and that's the end of it?!
     
  4. legaleagle_45

    legaleagle_45 Member

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    Or they can agree to hear it and determine that there is no infringment. The remedy for disagreeing with a decision from SCOTUS is:

    1.) Constituional Amendment
    2.) Change the makeup of the court so you have votes that agree with you.
     
  5. Sam1911

    Sam1911 Moderator Emeritus

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    Awful and tyrranical? Well...we live under a system of laws, a Constitution with Amendments, and Court rulings about those two.

    In the end, matters of what is lawful and Constitutional will be decided and thus the rules we the citizens must follow are established. We can push to change the Constitution, but that is an enormous and daunting endeavor. We can push for a certain kind of Court Justice to be appointed, but that's a secondary (at best) effort as we're electing the folks who elect the guy who appoints someone, and electing the folks who will confirm those appointments. We have no direct say in who sits on the bench.

    So, to sum up, there is law ... whether we agree with it or not ... or there is anarchy. We the people chose to live under a system of laws, not an anarchic system where each person decides how to behave for him or herself, and so we accept that our representatives and Justices will decide what rules we must follow. Choose those folks wisely.
     
  6. loose noose

    loose noose Member

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    Thank ya Sam, I often wondered about that myself.:D
     
  7. hugh damright

    hugh damright Member

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    First off, the Second Amendment was intended to mean that the RKBA shall not be infringed by Congress, so historically a state/county/city was not limited by the Second Amendment. Lately the courts are construing the 14th Amendment so as to limit state/county/city gun control powers, but they may decide that a state/county/city still can pass many gun laws that don't go too far.
     
  8. guitarguy314

    guitarguy314 Member

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    Thanks for replies guys, they didn't go over this in my classes ((could be my fault, gun laws don't have much to do with quantum mechanics)). :p But who decides what's too far. When I read the second amendment, I see "Shall not be infringed". It's strange to me when these laws are passed.
     
  9. MudPuppy

    MudPuppy Member

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    The truth is, while the constitution trumps and sets the parameters of what can be made law, the court is empowered by the people and the constitution to interpret the legality or constitutionality of legislation.

    So, it's not what we the people interpret as constitutional, it's what those that we elect and appoint interpret (as a republic vs a democracy). And when they get it wrong, it sucks. Our options are to impeach supreme court justices if we feel they're deserving.

    Another point to remember is that amendments supersede previous articles of the constitution or amendments (like the amendment to prohibit alcohol was superseded by a later amendment to repeal it). So, if an amendment is later passed that says its not permissible to have the ability to deprive another of life (which would sound reasonable) and then interpreted by the supreme court to mean no firearms, that would supersede the protection of the 2nd.

    And Hugh, I don't think that's correct. The 1st explicitly says congress is limited--the 2nd, clearly DOES NOT mention congress, but simply says "shall not be infringed".

    I think that's crucial wording. (as written, california could say NO BAPTIST churches, but would not be entitled to say NO FULL AUTO. But again, the final say on what the constitution means is supreme court rulings.)

    (at least, that's my attempt at open minded and rational understanding--if i'm incorrect factually or historically, please share)

    Cheers,
     
  10. Frank Ettin

    Frank Ettin Moderator Staff Member

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    As to whether a law is constitutional or not, it's the federal courts -- ultimately the United States Supreme Court. The Constitution provides (Article III):

    It's been well settled in the law that constitutionally protected rights are subject to limited regulation by government. Any such regulation will be looked at closely by the courts applying certain standards. There has been considerable litigation on rights protected by the First Amendment, and on other constitutionally protected rights, clarifying the permissible scope of regulation and the standards that apply to reviewing if the regulation is permissible.

    However, since the Second Amendment has only recently been ruled by the Supreme Court (1) to describe an individual right; and (2) to apply to state government as well as the federal government, the permissible scope of regulation of the rights protected by the Second Amendment and the standards for review, is still uncertain. So there are more than 70 lawsuits in various stages of litigation in federal courts around the country intending to begin to test and define such matters.

    On the other hand, while the voters can't decide the question of the constitutionality of a law, they have political power if enough of them decide that a law is bad public policy or otherwise unacceptable. Voters can elect representatives who will change or repeal such laws. Or on a state level, in some States, voters can change laws by initiative.

    Sorry, MudPuppy. You got the first part right but went off the track here.

    In 1833 the Supreme Court of the United States decided that the Bill of Rights did not apply to the States (Barron v. Mayor of Baltimore, 32 U.S. (7 Pet.) 243 (1833)). But beginning in the latter part of the 19th Century, the Supreme Court began to apply the Bill of Rights in a piecemeal fashion to the States through the 14th Amendment under a legal doctrine known as incorporation.

    Much of the Bill of Rights has now been ruled to apply to the States. However, a number of rights enumerated in the Bill of Rights have not been incorporated against the States or have been ruled not to apply against the States:

    • Third Amendment: The right not to be compelled to quarter soldiers has been specifically incorporated only in the Second Circuit. It appears that the has been no other ruling on that question.

    • Fifth Amendment: The right to indictment by a grand jury has been specifically not incorporated (Hurtado v. California, 110 U.S. 516 (1884)).

    • Sixth Amendment: The right in a criminal trial to a jury selected from residents of the state and district where the crime occurred has not been incorporated (Caudill v. Scott, 857 F.2d 344 (6th Cir. 1988); Cook v. Morrill, 783 F.2d 593 (5th Cir. 1986); Zicarelli v. Dietz, 633 F.2d 312 (3d Cir. 1980)).

    • Seventh Amendment: The right to a jury trial in a civil case has been held not incorporated against the States (Minneapolis & St. Louis R. Co. v. Bombolis, 241 U.S. 211 (1916)).

    • Eighth Amendment: The question of the incorporation of the right to protection against excessive fines has not been addressed.
    It wasn't until McDonald v. Chicago, 561 US 3025 (2010) that the Supreme Court finally applied the Second Amendment against the States.
     
  11. beatledog7

    beatledog7 Member

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    It used to be well settled law that slavery was legal and abortion was not. In short, the term "well settled law" is a meaningless euphemism for "currently in vogue" that politicians, lawyers, and judges use to describe judicial decisions that they like in an effort to convince opponents of those decisions that there is no way to change them.

    Well settled law is only settled until the proper process is applied to change it.
     
  12. Frank Ettin

    Frank Ettin Moderator Staff Member

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    The courts are open for business, and you are welcome to try.
     
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