Posted on 09/20/2002 6:31:53 AM PDT by The Unnamed Chick
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."
http://www.worldnetdaily.com/news/article.asp?ARTICLE_ID=29009
(Excerpt) Read more at worldnetdaily.com ...
In fact, there IS no freedom of speech or any other rights in relation to the Constitution as far as the state level if you want to take it that far....
Out of curiosity, where in the Consitution does it say that the Bill of Rights applies to states?
Were you a lemming in a former life?
In practical terms they may have the power, but they do not have the right. States, and governments in general, do not have rights, only powers.
In Presser v. Illinois, 116 U.S. 252 (1886), the Suprme Court did rule, in a case where the actual ruling was that the states could regulate or prohibit drilling as a military organization, that:
It is undoubtedly true that all citizens capable of bearing arms constitute the reserved military force or reserve militia of the United States as well as of the States; and, in view of this prerogative of the General Government, as well as of its general powers, the States cannot, even laying the constitutional provision in question out of view [the Second Amendment] prohibit the people from keeping and bearing arms, so as to deprive the United States of their rightful resource for maintaining the public security, and disable the people from performing their duty to the General Government.
So the Supreme Court disagrees with your notion that "States have a right to prevent people from bearing arms. Period". They only indicate it is allowed for convicted felons, not the just the general public. Notice also that is even absent the second amendment. The only other Post 14th Amendment supreme court decision, other than Miller, related to the second amendment's protections was Lewis v. U.S., 445 U.S. 55 (1980), which involved a federal law prohibiting possesion of firearms by convicted felons. The court ruled, not unreasonably, that second amendment rights, like others, could be removed by a felony conviction under due process
The court upheld Lewis' conviction, holding: (a)...the fact that there are remedies available to a convicted felon - removal of the firearm disability by a qualifying pardon or the Secretary of the Treasury's consent, as specified in the Act, or a challenge to the prior conviction in an appropriate court proceeding - suggests that Congress intended that the defendant clear his status before obtaining a firearm, thereby fulfilling Congress' purpose to keep firearms away from persons classified as potentially irresponsible and dangerous.
(b) The firearm regulatory scheme at issue here is consonant with the concept of equal protection embodied in the Due Process Clause of the Fifth Amendment, since Congress could rationally conclude that any felony conviction, even an allegedly invalid one, is a sufficient basis on which to prohibit the possession of a firearm.
Note however that the court also implies that the person should be able to have the disability remmoved, but currently this is not allowed, only because Congress refuses to fund the BATF to conduct the necessary investigations.
The Miller case,( U.S. v. Miller, 307 U.S. 174 (1939)) often quoted out of context, and not very coherent in the first place, basically said that the lower court should not have recognized that a short barrelled shotgun bore any relationship to maintaince of a well-regulated militia, absent presentation of evidence to that effect. They defined militia thusly:
The signification attributed to the term Militia appears from the debates in the Convention, the history and legislation of Colonies and States, and the writings of approved commentators. These show plainly enough that the Militia comprised all males physically capable of acting in concert for the common defense. "A body of citizens enrolled for military discipline." And further, that ordinarily when called for service these men were expected to appear bearing arms supplied by themselves and of the kind in common use at the time.
They also ruled that only such keeping and bearing arms which is protected and that "It is not within judicial notice that this weapon is any part of the ordinary military equipment or that its use could contribute to the common defense." In reality , short barrelled shotguns were then, as now, in Army and National Guard units. They had been used in the Philipines, probably by Pershings troops in the Mexican Expedition, and most certainly in the trenches of WW-I, where they were called "Trench Sweepers or Trench Brooms" and also where the Germans maintained that they were uncivilized terror weapons. :) They were also used quite extensively by the US Marines in the jungle warfare of the varous "Banana Wars" of the period. The Supreme never ruled on the actual Constitutional merits of the National Firearms Act, other than to indicate that the second amendment only protected militarily usefull arms, but rather sent the case back to the lower court for "further proceedings" which could have meant simply introduction of evidence that short barrelled shotguns were militarily useful, but which in any event were never held because Miller had been murdered and Layton his codefendent had copped a plea and been put on probation. The Act prinicipally concerned itself with machine guns, and it would have been interesting to see the Court rule that it was beyond judicial notice that those weren't militarily useful, but that aspect of the law has never been addressed by the Court.
Of course they also stated, in Pressor: "the States cannot, even laying the constitutional provision in question out of view [the Second Amendment] prohibit the people from keeping and bearing arms". In any event the case revolved around prohibition of organizing a military company independent of the state organized militia, not keeping and bearing arms per se, and ruled that "We think it clear that the sections under consideration, which only forbid bodies of men to associate together as military organizations, or to drill or parade with arms in cities [116 U.S. 252, 265] and towns unless authorized by law, do not infringe the right of the people to keep and bear arms."
BTW, your quote is not exactly from "Pressor", but is a quote from Cruikshank contained in the Pressor dicta. Cruikshank also said very much the same about the first amendment. I'd agree, absent the 14th amendment, that the 1st only applied to Congress, since it says "Congress shall make no law", but the second contains no such restrictive language.
As Free men and women, no group on earth has the legitimate "right" to prevent us from bearing arms.
No man, no government, no army, no organization has the "right" to prevent us from being armed.
The only legimitate government is that which is organized for the sole purpose of defending our Rights as Free men and women. Any government that does not exist for that purpose, or any government that fails to defend those Rights, is totally illegitimate and a Free people are under NO obligation to obey it.
The moment a state claims to have the "right" (BTW, only individuals can have Rights) to infringe upon our liberties, is the moment that government becomes totally illegitimate.
I call them the "strip me, search me, humiliate me" crowd. They tend to show up in droves on the airport security threads.
I am of the old school "original intent" belief that the U.S. Constitution applies to the federal government, and to the states only in those instances where the states are mentioned. IMHO, no one, not even the Supreme Court, has the right to re-interpret the Constitution in order to apply the Bill of Rights to the states.
Except by the Constitutional ammendment process, which was what happened with the passage of the 14th amendment. Some judges and Justices, especially those from the old Confederacy didn't like that and for years pretended that it didn't mean what says, and what its authors and ratifiers understood it to mean. Even now they hide behind the "due process" clause, to that only rights they approve of are "incorporated", while still ignoring the "priveledges and immunities" clause, which, by the words of its authors and ratifiers, applies the protections of the Bill of Rights to the state governments.
And the "protecting property". Most states are too far gone into touchy feely land to allow protection of property via deadly force, but some are not, like Texas, at least under many conditions.
Ok, I'll make it easier. The 13th and 15th Amendment explicitly state that the states can't violate those provisions of the Constitution. In fact, the 14th Amendment specifies that the states can't deprive a person his life, liberty, or property, without due process of law, which had already been specified in the 5th Amendment.
As such, it appears that EVERY other Amendment applies ONLY to the federal government, and not the states.
Is there anyone out there who could prove otherwise?
Show me where in the 14th Amendment that it says the states are restricted in any manner other than what is explicitly stated therein.
Clearly some parts of the federal Constitution apply to the states. The question is "which ones?". The 14th amendment applies to the states by it's very terms. "no state shall" for example. What is it that "No state shall" do? Violate the "priveleges and immunities of Citizens of the United States", defining them as "All persons born or naturalized in the United States, and subject to the jurisdiction thereof" What are the "priveleges and immunities"? The amendment does not say, but it's author/sponsor Senator Bingham stated explicity, in March, 1871, that the Fourteenth Amendment was designed to apply the Bill of Rights to the states. Noting that the first eight amendments "chiefly defined" the privileges and immunities of U.S. citizenship, Bingham stated, "These eight articles I have shown never were limitations upon the power of the States, until made so by the fourteenth amendment."
As to why have state Constitutions if the federal one applies to the states, it had already been observed that the states are free to explicitly protect more rights than the federal Constitution explicity protects. They also have a need to detail those powers not prohibited to them by the federal Constitution. Most of the Federal Constitution is a blueprint for the operation of the federal government, laying out both it's organization and the powers of its 3 branches. Those parts obviously do not apply to the state governmetns, the people of the states are free to organize their government as they see fit, for the most part. For example Nebraska has a Unicameral legislature, a practice that other states should, IMHO, take up, not a separate House and Senate, as do the federal and the other state governments.
Read it. Just as lame as the first time.
By state law, most if not all, still do. The definition of who is in the militia varies from state to state, and from that defined by Federal Law. For example federal law states all males, 18-45 IIRC, and females who are members of the National Guard, plus older National Guard members, while Texas defines it as all adults, of both sexes, 18-65 IIRC, save a few government officials.
Jefferson didn't write the Constitution, which only mentions rights in conjunction with people. Note also that Jefferson says "society" not "the government" or "the state", they aren't the same thing. Society, IOW the people, may of course grant the State the power to enforce such principles of association, through some Constitutional provision or via Congress by a law not violative of the Constitution.
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