Where do they get the power?

[usmcpoolee]

So the Constitution is the supreme law of the land. States have the right to pass laws about things not covered in the Constitution. So where do the states get the right to pass laws about things covered in the Constitution, such as Gun Control bills. If the Second Amendment is part of the supreme law of the land, where do the States get the power to pass more restrictive laws on guns?

 

[Shadow 7D]

states are governed by their constitution (completely separate from the US one)
and as long as they don't infringe on civil rights, they can do as they want, until the run afoul of a assumed 'enumerated power' like Arizona's immigration bill

 

[NavyLCDR]

It's not a matter of what is protected by the Constitution (especially in regards to the 2nd Amendment). It's a matter of what the Supreme Court ENFORCES.

In Heller, for instance, the Supreme Court ruled that the individual has the right to keep and bear a firearm in their home for self-protection and that the Federal government could not legislate that right away. That protection offered by the 2nd Amendment existed since the 2nd Amendment was ratified. The Supreme Court did not CREATE the protection, they ENFORCED the pre-existing protection.

Then, the same thing happened in McDonald. The 2nd Amendment protection applied to the states' governments as well when the 14th Amendment was ratified. The Supreme Court only ENFORCED the pre-existing protection.

Now, we simply have to wait for a case to come before the Supreme Court to ENFORCE the pre-existing protection the 2nd Amendment offers to bear arms in public for self-protection. The protection is already there via the 2nd and 14th Amendments, it's a matter of the Court ENFORCING that protection.

 

[usmcpoolee]

We shouldn't need to go through the Supreme Court to have our rights restored that they never had the right to restrict in the first place. If the First Ammendment applies to those protesting military funerals, then the Second Ammendment applies to ALL arms.

 

[InkEd]

Does my "pursuit of happiness" from the Dec.of Independence cover kicking the a$$es of those protesting military funerals? It predates their right to protest. Just saying. I find it SICKENING that people don't even appreciate it when someone literally does for them!

If it's not covered by my pursuit of happiness, what about my religious freedom. I am wondering because it is part of my religions core beliefs and rituals that any practioner in good standing, MUST throw bricks (ala casting stones) to ward off evil spirits at funerals. And as we all know evil spirits swarm around hippies and liberals.

I'm just curious about MY rights.

 

[belercous]

Religious beliefs are protected under the 1A. Acts which violate otherwise valid laws are not within the ambit of the 1A.

The "...pursuit of hapiness." is in the Declaration of Idependence. The Declaration of Independence carries no legal weight as it is not a legal document.

I'm a liberal and I've never seen any evil spirits swarming around me. Unless one counts bourbon as evil, although bourbon has been berry, berry good to me.

 

[Nico Testosteros]

This liberal doesn't believe in evil spirits. I'll leave the belief in the supernatural to those of superstitious leanings. He does however, believe in being "High Road" at least in this forum. And owning guns. Lots of guns.

 

[belercous]

Why thank you, Nico. I do own more than the average amount of firearms, and I shoot them all (well, I'm still looking for Brit .410 shotshells for an old Enfield).

I see no contradiction between liberalism and guns. In 1776 it was the liberals who wanted independence from British rule. The conservatives back then were the Tories who didn't want to change things, they were afraid of change.

Sorry, I'm off topic.

Back on topic; Addressing the O.P.'s question of how do states get to regulate areas covered in the federal Const. The Constitution's Bill of Rights, as originally drafted, did not limit the states, only the federal gov. In 1789, states could limit free speech by their citizens. States could quarter soldiers in private homes. The federal gov. could not do such, but states could.

When the Const. was written, people were fearful of a powerful federal gov., but they trusted their (respective) states to do the right thing. As such, the Const. did several things. First, it enumerated the rights which the states gave up to be in the union (had to have a republican form of government, submitted to taxation, gave up the right to enter into treaties with other nations, etc.,)

Secondly, the Const. limited the federal gov. to only those powers granted to it in the document (& amendments). Unless otherwise specified, each state had the power to tend to their own affairs, they were not limited by the federal Const., but rather their own (respective) constitutions. This was re-affirmed in the 10th Amendment.

Thirdly, the Const. protected individual rights which existed before the Const. was drafted. This was enshrined in the 9th Amen. Examples of these rights were such as the right to privacy (it was not mentioned in the Const. because it was implicitly understood to be a right held by all, so why mention what everyone already knew?), the right to seek legal redress in a court for civil harms (torts) caused by other individuals, the right marry, etc.

Now all this went out the window with the enactment of the 14A. A clause in that Amendment (No state shall...equal protection of the laws) allowed SCOTUS to "incorporate," one at a time, the amendments contained in the Bill of Rights. That means those rights now limit the states on what restrictions they can impose on their citizens. The most recent of which is the right to own a handgun, coming from the McDonald decision.

And then there is the matter of the Commerce Clause & SCOTUS perverting the original intent of the framers. Not to mention the SCOTUS & the Neccessay & Proper clause.

Sorry to waste space, but perhaps I didn't as there could be some here who are not familiar with our Constitution's history. Eeeh.

 

[usmcpoolee]

So we need a new Amendment that threatens to cut funding to any state/county/district/city/etc. that restricts Constitutional rights. If California takes rights away from its citizens, cut off the flow of federal money to California. When California fixes its mistake, then allow it to receive federal money again.

 

[mljdeckard]

Ok, so should the federal government cut off all funding to California because of their flagrant violation of federal law with medical marijuana?

 

[ldsgeek]

How about we cut off the money to the federal gov't, except a minimal amount, and keep it in each state where it belongs. This way the feds don't have a carrot to offer to do things their way and can't afford a big enough stick to force the issue(s). Kind of like it was meant to be when the Constitution was ratified.

 

[FrogDog22]

Belercous says:

Now all this went out the window with the enactment of the 14A. A clause in that Amendment (No state shall...equal protection of the laws) allowed SCOTUS to "incorporate," one at a time, the amendments contained in the Bill of Rights. That means those rights now limit the states on what restrictions they can impose on their citizens. The most recent of which is the right to own a handgun, coming from the McDonald decision.

Belercous, I think you meant to cite the due process clause. P&I is precisely what the appellants lost on in McDonald. In fact, McDonald might be a good read...

 

[brickeyee]

I think you meant to cite the due process clause. P&I is precisely what the appellants lost on in McDonald.

P&I was gutted long ago in the Slaughter-House Cases (83 U.S. 36 (1873)) and the court has refused to re-visit it ever since. They ruled "privileges and immunities" clause in the constitution only protected rights guaranteed by the United States, not by individual states.

Unwinding all the cases based on Slaughter-House since then would be a nightmare.

Even Scalia has given up on that one.

By using the equal protection clause the SCOTUS avoided overturning Slaughter-House directly, while still achieving the desired result of restricting the states from abridging federal civil rights.

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.

 

[hugh damright]

So we need a new Amendment that threatens to cut funding to any state/county/district/city/etc. that restricts Constitutional rights.

Instead they use the federal judiciary to strike down State/local laws which they see as violating constitutional rights. But if the feds find anything they fancy to be a constitutional right, the result is being ruled over by the federal government, the very thing that the USBOR was intended to guard against.

By using the equal protection clause the SCOTUS avoided overturning Slaughter-House directly, while still achieving the desired result of restricting the states from abridging federal civil rights.

I still think you mean "due process", not "equal protection".

Regardless, what is the scope of these "federal civil rights"? Originally the object was that a citizen of any State could come to Virginia and be treated as equal in some limited ways (within the scope of the P&I), such as for instance being able to buy property and reside here. And this leads to auxiliary rights ... if a person has a right to buy property, then he must have a right to make contracts, a right to take legal action, and so on. But I think the idea was that a citizen of another State could come here and have the same rights as Virginians in these matters, that the federal provision was nondiscriminatory. It seems clear enough to me that these are federal matters dealing with the relationship between the States.

The 14th Amendment changed it so that a State could not discriminate amongst its own citizens within the scope of the P&I. And now we have a new meaning, where the P&I seem to have an infinite scope, and instead of a federal power over discrimination within the scope of the P&I it becomes a power to protect the P&I, such that the federal government becomes the "protector of rights".

Of course, with the 14th Amendment, they tend to avoid the P&I and instead use the "due process" clause, but it's the same thing ... the "due process" clause was intended to regard procedural due process i.e. to say that States must act within their laws, but it has been construed to regard "substantive due process" i.e. to say that the States must abide by the SCOTUS view of "rights".

 

[Neverwinter]

How about we cut off the money to the federal gov't, except a minimal amount, and keep it in each state where it belongs. This way the feds don't have a carrot to offer to do things their way and can't afford a big enough stick to force the issue(s). Kind of like it was meant to be when the Constitution was ratified.

That would screw over a lot of states effectively on federal welfare. Check your state out. http://visualizingeconomics.com/2010/02/17/federal-taxes-paidreceived-for-each-state/

Sent from a van down by the river

 

[Unistat]

We shouldn't need to go through the Supreme Court to have our rights restored that they never had the right to restrict in the first place. If the First Ammendment applies to those protesting military funerals, then the Second Ammendment applies to ALL arms.

There is the hiccup. It is well established that states and the fed can pass laws that regulate but not eliminate our rights. Free speech does not apply to libel, slander, "FIRE!" in a crowded theater, conspiring to commit a crime, and the like.

That is why lawsuits against Illinois and D.C. for having absolutely no provision or legal way to carry a firearm may prevail.

 

[Samari Jack]

Why are we giving money to states like California to fund their special programs that they can't afford in the first place. It doesn't seem to me constitutionally that parceling out money for their incompetent bureaucratic engine should have happened.

 

[Ignition Override]

Considering the topic and the different viewpoints here, you folks have expressed your views in an impersonal, detached manner. That is very respectable, admirable and with educational subject matter.

Maybe the hot-headed guys who aren't capable of a civil debate about the merits of the AR-15 vs. AK/Mini 14 etc could learn something here about respecting (or at least tolerating) differnet views?
What a baffling paradox.

 

[Neverwinter]

Why are we giving money to states like California to fund their special programs that they can't afford in the first place.

Educate yourself with the link two posts above yours. California receives 77 cents for every dollar it gives. You should be focused on the states that are receiving more than they put in. They're so socialist and unproductive.


Sent from a van down by the river

 

[NMPOPS]

First Arizona's Immigration law is not unconstutional. Second nothing prevents a state (unfortunately) from regulating guns aslong as they do outlaw them as Chicago did.

Sent from my Ally

 

[ldsgeek]

Then those states need to become more efficient at handling their funding, or cut back on services. Taking, by force, from one to give to another is nothing more than theft, even if done under the color of law.

 

[registrar]

All power comes from the wielding of force, or the th reat of same. We all do what we want until someone with a gun stops us, basically, or our programmed morality does. The latter is quite prone to failure in times of stress, and then we revert to the animalistic aspect of being stopped by superior force and nothing less than such force. Gov't governs by the threat or the actual use of guns, just ask the Branch Davidians if you dont agree.

 

[brickeyee]

Political power grows out of the barrel of a gun.

Mao Zedong, "Problems of War and Strategy", 1938.

 

[El Tejon]

the result is being ruled over by the federal government, the very thing that the USBOR was intended to guard against.

Where does this nonsense come from? Is this some neo-Lost Causer rubbish that bubbles up from the United Daughters of the Confederacy?

The States cannot do whatever they want as the Constitution is Supreme, see the Supremacy Clause. The States must establish a republican form of government. The States must respect the rights guaranteed by the Bill of Rights and that includes African-Americans being allowed to vote no matter who is upset that the South lost the Civil War.

If the Second Amendment is part of the supreme law of the land, where do the States get the power to pass more restrictive laws on guns?

The inherent police power of the states. Start here:

http://en.wikipedia.org/wiki/Police_power

Remember, states cannot violate the rights of its citizens. We fought a Civil War over that and needed to pass the Thirteenth and Fourteenth Amendment to keep the Southern states in line.

 

[gc70]

Where does this nonsense come from?

Casual, everyday observation?