Do states trump Bill of Rights on firearms?

WorldNetDaily ^ | September 20, 2002 | Jon Dougherty

[scripter]

The right of individuals to keep and bear arms may have some validity on the federal level, but states have a right to regulate and ban firearm ownership among the people, says California Attorney General Bill Lockyer.

In a letter sent earlier this month to David Codrea, co-founder of Citizens of America, a California-based gun-rights organization, Lockyer said that while his duty is to enforce the laws of his state and the nation, "the responsibilities of my office do not permit me to independently interpret the state and federal Constitutions or the statutes written pursuant to those Constitutions."

"The federal and state courts interpreting the scope and meaning of the Second Amendment in California's jurisdiction ... have consistently reached two conclusions, both of which are clear and unambiguous," said Lockyer. "The Second Amendment limits only the powers of the federal government, not those of the states; and the 'right to keep and bear arms' under the Second Amendment is not an individual right to possess firearms, but a collective right of the States to keep and maintain a 'well-regulated militia.'"

To support his conclusion, Lockyer cited a 1939 U.S. Supreme Court ruling [United States v. Miller], and two U.S. 9th Circuit Court rulings [Hickman v. Block (1995) and Fresno Rifle Club v. Van de Kamp (1992)].

"Likewise," he continued, "the California Supreme Court has determined that laws passed by the state legislature which address gun control can be valid." To support that conclusion, Lockyer cited state high court passages noting that the California Constitution did not contain a right of its citizens "to keep and bear arms."

"I am deeply committed to the preservation and protection of the system of government our founding fathers established for our country more than 200 years ago, including the Bill of Rights," he wrote. "I am also honored that the people of California elected me to a position sworn to uphold and protect both the California and United States Constitutions as the chief law officer of our state."

Lockyer's interpretation of individual gun rights appears at odds with those of U.S. Attorney General John Ashcroft.

"The text and the original intent of the Second Amendment clearly protect the right of individuals to keep and bear firearms," Ashcroft said in a May 17, 2001, letter to James Jay Baker, executive director of the National Rifle Association's Institute for Legislative Action.

Since then, the U.S. 5th Circuit Court of Appeals, in U.S. v. Emerson, has supported Ashcroft's opinion, ruling in that case that the Second Amendment guarantees the right of a private citizen to keep and bear arms, "regardless of whether the particular individual is then actually a member of the militia."

In addition, last May the Justice Department reversed a long-held government policy by affirming that the Second Amendment protects an individual's right to possess firearms. The opinion was in the form of a brief filed with the Supreme Court.

Citizens of America officials say Lockyer is out of step with 18 other state attorneys general, each of whom have signed a letter initiated by Alabama Attorney General Bill Pryor in July aligning themselves with Ashcroft's interpretation.

"We agree that this is the proper reading of the Second Amendment, and that this policy best protects the fundamental interest of Americans in security and self-preservation," said the letter.

Signers included attorneys general from Delaware, Georgia, Idaho, Kentucky, Montana, Nebraska, North Dakota, Oklahoma, Pennsylvania, South Carolina, South Dakota, Tennessee, Texas, Utah, Virginia, West Virginia and Wyoming.

Codrea says using Lockyer's logic, "California can also deny our rights of equal protection, free speech, free press, religion and assembly."

State Sen. Dick Ackerman, a Republican from California's 33rd district and Lockyer opponent in the November election, pledged to uphold Ashcroft's interpretation of the Second Amendment.

"Sen. Ackerman will sign the letter agreeing with U.S. Attorney General Ashcroft's interpretation of the Second Amendment, should he be elected attorney general," said Paul Dress, Ackerman's campaign manager, in a Sept. 13 letter to Citizens of America.

Early legal scholars also believed the Second Amendment was an individual right.

"No clause in the Constitution could by any rule of construction be conceived to give the Congress a power to disarm the people," wrote William Rawle in his 1825 text, "View of the Constitution."

"Such a flagitious attempt could only be made under a general pretence by a state legislature," wrote Rawle – who was offered the job as the nation's first attorney general by George Washington but declined. "But if in any pursuit of an inordinate power either should attempt it, this [Second] amendment may be appealed to as a restraint on both."

Rawle's text was the standard for constitutional law taught at Harvard until 1845 and at Dartmouth until 1860.

[scripter]

Ping

[Paleo Conservative]

Has Bill Lockyer heard of the 14th amendment?

[Ford Fairlane]

Do states trump Bill of Rights on firearms?

NOTHING trumps the Bill of Rights - that is it's whole purpose

[nunya bidness]

"The Second Amendment limits only the powers of the federal government, not those of the states;"

In that case an overturning of Roe v. Wade should show up any day now.

These people don't know when to give up.

[Ford Fairlane]

I have a vauge recollection of that - it had soemthing to do with home rule or something - but I have been told that it was never appealed to the federal level and it would have been overturned if it was.

At any rate, if it wasn't appealed at the Federal level, it only applies to the state it was tried in, as State courts can only rule on state law. (I think you are correct on it being Illinois, but it could be Indiana or Iowa, I've drunk since then)

[MarkL]

Agreed... Using this a$$h0le's interpretation of the constitution would mean that and local or state law would trump ANY federal laws...

Brown vs Topeka Board of Education would never have happened...

How about the Jim Crow laws...

The list is endless...

It seems that libs always want to pick and choose how to interpret parts of the constitution, such as the word "people," where in the first amendment it refers to a right of the individual, but in the second amendment, it refers to a collective right of the state. Never mind the minor fact that the tenth amendment DOES make a distinction between individuals ("the people") and "the state."

Mark

[LibWhacker]

The right of individuals to keep and bear arms may have some validity on the federal level, but states have a right to regulate and ban firearm ownership . . .

If he succeeds with this patently invalid argument, the next thing you know someone will turn it against the First Amendment.

[Political Junkie Too]

Replace the phrase "the right to keep and bear arms" with the phrase "the right to an abortion" and re-read this article. Now tell me what they're arguing? If their reasoning works for guns, then it can work for anything else in the Constitution -- just have the states amend their constitutions to override the Federal Constitution on any issues they want.

The irony is that it was the states separate laws on abortion that was the cause for the Supreme Court to find that the Federal Constitution grants women in all states the right to an abortion, trumping states' rights. Now, they are arguing that the state's laws on guns trumps federal rights.

They want it both ways.

-PJ

[Jagdgewehr]

Codrea says using Lockyer's logic, "California can also deny our rights of equal protection, free speech, free press, religion and assembly."

Give'em time, they'll get there.

[Maximum Leader]

Interesting question, I don't think the Supreme Court has ruled on this issue yet.

Whats going on is that, on its face, the Bill of Rights-- the First 10 amendments to the Constitution-- only applies to the Federal Government. As late as the 1920's the Supreme Court ruled that your First Amendment Free Speech rights only appplied to laws that Congress passes.

However, just a few years later the Court came up with something called the "Incorporation Doctrine" which meant that some of the Bill of Rights also applied to the states because of the 14th Amendment (which as you know wasn't ratified until after the Civil War).

Now the way I just phrased it "some of the Bill of Rights" seems a little vague, and thats just the way the Court has interpreted it. Basically the Supreme Court has over the years picked and choosed which Rights are incorporated into the 14th Amendment and which are not.

For example, clearly your First Amendment Rights are protected from state interference (thats why Christianity is not the official religion of any state, though many states in the 1800's had a state sanctioned church). On the other hand, the Fifth Amendment's federal right to a grand jury indictment before any felony trial has not been incorporated into the 14th Amendment. In California for example you can be brought to trial following an "information" ruling by a court that finds probable cause. The case then goes before a jury for a trial (any Californian can correct me, but I don't think the defendant has a choice between indictment or an information-- California seems to allow the DA to use either method).

Whats so sneaky about the incorporation doctrine is that the nine lawyers on the Supreme Court at any one time get to decide what Rights are protected from state interference and which are not. In this case, I suppose it could go either way. Though you and I would agree that 2nd Amendment should be incorporated into the 14th Amendment, I don't believe the Court has ruled either way (once again, if anyone thinks I'm wrong, please jump in).

If the Court did find that the 14th Amendment protects our right to bear arms from state interference, it would subject every state's gun control law to constitutional challenge.

[Drammach]

I personally don't see any need to incorporate the 2nd and 14th amendments.
I have always believed that the 2nd amendment is all-encompassing in it's prohibition of infringment.

The Bill of Rights does not deal only with federal powers and their limits, as the 9th and 10th are specific to the States and the People.

Likewise, the 2nd amendment, (unlike the 1st ) is not "specific" as to who the prohibition applies.
It applies to All.

It does not "give" the right, it acknowledges that it exists.
What the 2nd does is prohibit Anyone from infringing upon that right.

If the Supreme Court doesn't understand that, if Any Court does not understand, I would be more than happy to explain the concept to them.

[dcwusmc]

bump and BLOAT...

[RogueIsland]

Good explanation. It would be nice to interview the Founders on the subject. Since they considered Amendments such as the 1st and 2nd to simply be affirmations of certain Natural Rights of Man (as they were called in those days), one could very safely assume they would oppose any government, State or National, that would abridge such Rights. But whether the Bill of Rights was ever intended to usurp State control on those subjects is a question I'd love to ask them. It does seem pointless to have a Bill of Rights binding the Federal Government if, absent the weirdness of "incorporation", a State can simply say, "To heck with trials, free speech, or the notion that keeping slaves is a violation of rights. We're doing it our way."

I mean, either we're a nation united by a certain common view of Natural Rights, or we're no more than a collection of loosely affiliated States sharing a common currency and a military apparatus.

[groanup]

There is a website that lists each state's Constitutional wording on the right to keep and bear arms. Most states recognized the right to keep and bear arms but many of them reserve the right to regulate the carrying of concealed weapons. Anyone have a link?

[michigander]

STATE CONSTITUTIONAL PROVISIONS ON
THE RIGHT TO KEEP AND BEAR ARMS

Thirty-nine (39) states have constitutional provisions on the right to keep and bear arms.

Alabama: "That every citizen has a right to bear arms in defense of himself and the state." Ala. Const. art. I, § 26.

Alaska: "A well-regulated militia being necessary to the security of a free state, the right of the people to keep and bear arms shall not be infringed." Alaska Const. art. I, § 19.

Arizona: "The right of the individual citizen to bear arms in defense of himself or the State shall not be impaired, but nothing in this section shall be construed as authorizing individuals or corporations to organize, maintain, or employ an armed body of men." Ariz. Const. art. II, § 26.

Arkansas: "The citizens of this State shall have the right to keep and bear arms for their common defense." Ark. Const. art. II, § 5.

Colorado: "The right of no person to keep and bear arms in defense of his home, person and property, or in aid of the civil power when thereto legally summoned, shall be called in question; but nothing herein contained shall be construed to justify the practice of carrying concealed weapons." Colo. Const. art. II, § 13.

Connecticut: "Every citizen has a right to bear arms in defense of himself and the state." Conn. Const. art. I, § 15.

Florida: "The right of the people to keep and bear arms in defense of themselves and of the lawful authority of the state shall not be infringed, except that the manner of bearing arms may be regulated by law." Fla. Const. art. I, § 8.

Georgia: "The right of the people to keep and bear arms, shall not be infringed, but the General Assembly shall have the power to prescribe the manner in which arms may be borne." Ga. Const. art. I, § 1, para. 5.

Hawaii: "A well regulated militia being necessary to the security of a free state, the right of the people to keep and bear arms shall not be infringed." Hawaii Const. art. I, § 15.

Idaho: "The people have the right to keep and bear arms, which right shall not be abridged; but this provision shall not (p.237)prevent the passage of laws to govern the carrying of weapons concealed on the person nor prevent passage of legislation providing minimum sentences for crimes committed while in possession of a firearm, nor prevent the passage of legislation providing penalties for the possession of firearms by a convicted felon, nor prevent the passage of any legislation punishing the use of a firearm. No law shall impose licensure, registration or special taxation on the ownership or possession of firearms or ammunition. Nor shall any law permit the confiscation of firearms, except those actually used in the commission of a felony." Idaho Const. art. I, § 11.

Illinois: "Subject only to the police power, the right of the individual citizen to keep and bear arms shall not be infringed." Ill. Const. art. I, § 22.

Indiana: "The people shall have a right to bear arms, for the defense of themselves and the State." Ind. Const. art. I, § 32.

Kansas: "The people have the right to bear arms for their defense and security; but standing armies, in time of peace, are dangerous to liberty, and shall not be tolerated, and the military shall be in strict subordination to the civil power." Kan. Const., Bill of Rights, § 4.

Kentucky: "All men are, by nature, free and equal, and have certain inherent and inalienable rights, among which may be reckoned: ... Seventh: The right to bear arms in defense of themselves and of the State, subject to the power of the General Assembly to enact laws to prevent persons from carrying concealed weapons." Ky. Const. § I, para. 7.

Louisiana: "The right of each citizen to keep and bear arms shall not be abridged, but this provision shall not prevent the passage of laws to prohibit the carrying of weapons concealed on the person." La. Const. art. I, § 11.

Maine: "Every citizen has a right to keep and bear arms for the common defense; and this right shall never be questioned." Me. Const. art. I, § 16.

Massachusetts: "The people have a right to keep and bear arms for the common defense. And as, in times of peace, armies are dangerous to liberty, they ought not to be maintained without the consent of the legislature; and the military power shall always be held in an exact subordination to the (p.238)civil authority, and be governed by it." Mass. Const. pt. I, art. XVII.

Michigan: "Every person has a right to keep or bear arms for the defense of himself and the State." Mich. Const. art. I, § 6.

Mississippi: "The right of every citizen to keep and bear arms in defense of his home, person, or property, or in aid of the civil power where thereto legally summoned, shall not be called in question, but the legislature may regulate or forbid carrying concealed weapons." Miss. Const. art. III, § 12.

Missouri: "That the right of every citizen to keep and bear arms in defense of his home, person and property, or when lawfully summoned in aid of the civil power, shall not be questioned; but this shall not justify the wearing of concealed weapons." Mo. Const. art. I, § 23.

Montana: "The right of any person to keep or bear arms in defense of his own home, person, and property, or in aid of the civil power when thereto legally summoned, shall not be called in question, but nothing herein contained shall be held to permit the carrying of concealed weapons." Mont. Const. art. II, § 12.

Nevada: "Every citizen has the right to keep and bear arms for security and defense, for lawful hunting and recreational use and for other lawful purposes." Nev. Const. art. I, § 11(1).

New Hampshire: "All persons have the right to keep and bear arms in defense of themselves, their families, their property, and the State." N.H. Const. pt. I, art. 2a.

New Mexico: "No law shall abridge the right of the citizen to keep and bear arms for security and defense, for lawful hunting and recreational use and for other lawful purposes, but nothing herein shall be held to permit the carrying of concealed weapons." N.M. Const. art. II, § 6.

North Carolina: "A well regulated militia being necessary to be the security of a free State, the right of the people to keep and bear arms shall not be infringed; and, as standing armies in time of peace are dangerous to liberty, they shall not be maintained, and the military shall be kept under strict subordination to, and governed by, the civil power. Nothing herein shall justify the practice of carrying concealed weapons, (p.239)or prevent the General Assembly from enacting penal statutes against that practice." N.C. Const. art. I, § 30.

Ohio: "The people have the right to bear arms for their defense and security; but standing armies, in time of peace, are dangerous to liberty, and shall not be kept up; and the military shall be in strict subordination to the civil power." Ohio Const. art. I, § 4.

Oklahoma: "The right of a citizen to keep and bear arms in defense of his home, person, or property, or in aid of the civil power, when thereunto legally summoned, shall never be prohibited; but nothing herein contained shall prevent the Legislature from regulating the carrying of weapons." Okla. Const. art. II, § 26.

Oregon: "The people shall have the right to bear arms for the defence of themselves, and the State, but the Military shall be kept in strict subordination to the civil power." Or. Const. art. I, § 27.

Pennsylvania: "The right of the citizens to bear arms in defence of themselves and the State shall not be questioned." Pa. Const. art. I, § 21.

Rhode Island: "The right of the people to keep and bear arms shall not be infringed." R.I. Const. art. I, § 22.

South Carolina: "A well regulated militia being necessary to the security of a free State, the right of the people to keep and bear arms shall not be infringed. As, in times of peace, armies are dangerous to liberty, they shall not be maintained without the consent of the General Assembly. The military power of the State shall always be held in subordination to the civil authority and be governed by it. No soldier shall in time of peace be quartered in any house without the consent of the owner nor in time of war but in the manner prescribed by law." S.C. Const. art. I, § 20.

South Dakota: "The right of the citizens to bear arms in defense of themselves and the state shall not be denied." S.D. Const. art. VI, § 24.

Tennessee: "That the citizens of this State have a right to keep and bear arms for their common defense; but the Legislature shall have power, by law, to regulate the wearing of arms with a view to prevent crime." Tenn. Const. art. I, § 26.

Texas: "Every citizen shall have the right to keep and (p.240)bear arms in the lawful defence of himself or the State; but the Legislature shall have power, by law, to regulate the wearing of arms, with a view to prevent crime." Tex. Const. art. I, § 23.

Utah: "The people have the right to bear arms for their security and defense, but the Legislature may regulate the exercise of this right by law." Utah Const. art. I, § 6.

Utah voters in the 1984 elections will decide whether to amend Art. I § 6 to read as follows: The individual right of the people to keep and bear arms for defense of themselves, their families, their property, and the state, and for lawful hunting, recreational use and all other lawful purposes, shall not be infringed; but this provision shall not prevent passage of laws to govern the carrying of concealed weapons; nor prevent legislation providing penalties for the possession of firearms by convicted felons, minors, mental incompetents or illegal aliens; nor shall any law permit the confiscation of firearms, except those used in the commission of a felony.

Vermont: "That the people have a right to bear arms for the defence of themselves and the State--and as standing armies in time of peace are dangerous to liberty, they ought not to be kept up; and that the military should be kept under strict subordination to and governed by the civil power." Vt. Const. Ch. I, art. 16.

Virginia: "That a well regulated militia, composed of the body of the people, trained to arms, is the proper, natural, and safe defense of a free state, therefore, the right of the people to keep and bear arms shall not be infringed; that standing armies, in time of peace, should be avoided as dangerous to liberty; and that in all cases the military should be under strict subordination to, and governed by, the civil power." Va. Const. art. I, § 13.

Washington: "The right of the individual citizen to bear arms in defense of himself, or the state, shall not be impaired, but nothing in this section shall be construed as authorizing individuals or corporations to organize, maintain, or employ an armed body of men." Wash. Const. art. I, § 24.

Wyoming: "The right of citizens to bear arms in defense of themselves and of the state shall not be denied." Wyo. Const. art. I, § 24.(p.241)

STATES WITHOUT CONSTITUTIONAL PROVISIONS:

Eleven (11) states do not have a constitutional provision on arms: California, Delaware, Iowa, Maryland, Minnesota, Nebraska, New Jersey, New York, North Dakota, West Virginia, and Wisconsin.

[steve-b]

In fact, the drafters of the 14th Amendment clearly intended the incorporation doctrine to apply fully to the first eight amendments (the ones that list specific rights) of the Bill of Rights.

[Constitutional Patriot]

Exactly. There should be a federal action brought against the State of Kalifornia under the pretext of the 2nd and 14th amendments. According to the "logic" of the CA AG, the state can also deny many other rights guaranteed by the Bill of Rights and constitution in general.

It is an absolute disgrace that such ignorant and/or politically evil (read "left wing") people can attain such high positions in any government in the United States. These people should be exiled to Cuba.

[Destructor]

I would hope not. The Rights recognized in the Bill of Rights are God given Rights. The State shouldn't be able to over-ride God! No matter how good the State's intention might be.