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 ...
Or did he believe that recognizing citizenship for blacks would require states to treat them like its own white citizens?
Taney believed that the federal government had no right to prohibit slavery in the territories and that "a black man has no rights which a white man is legally bound to respect."
Do you prayer to him before you go to bed?
Why, of course, sweetie! Citizens of their states and of the United States, with the "privileges and immunities" attendant!
Lessee, now..."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 or citizens of the United States".
And as Emerson (and Dred Scott!) have pointed out, a privilege of citizenship in the United States is indeed, the right to keep and bear arms.
By the way, Professor Volokh would like to play the "persons" game and extend the Second Amendment to illegal aliens: Volokh goes off the deep end . What say you, Oh States Uber Alles?
And as for prayers for Taney...why no, I'm from the Unionist side of the family. It seems to me that you're the one championing the view that rights are negotiable based on the whim of the states. That, of course, is the essence of Cruikshank.
You're a little weak on dates. The 14th Amendment came well after Taney left the stage.
Article. IV. Section. 2. Clause 1: The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States.
If a black man were recognized as a citizen (which Taney opposed) of the United States, any state he traveled in would be required to afford him the same privileges and immunities that it extended to white citizens. If white citizens traveled armed with the blessing of state law, so could a black one.
Where's the 2nd Amendment issue in that? Since you're relying on Taney as your argument, was the 2nd Amendment even mentioned in Dred Scott or are you just blowing smoke?
The 14th was passed specifically to settle once and for all that blacks were citizens with all the attendant Constitutional rights, and to bring to fruition the scenario that Taney foresaw. Whether he would have approved, well, I don't think so.... And, umm, yes, I do know that Dred Scott was adjudicated in 1856 and that the Fourteenth was passed in 1868. With some unpleasantness in between due to the continuing argument over the subject.
By the way - what did you think of Volokh's argument? Do you think that the city of Omaha a) can make a law preventing illegal aliens from owning a gun and b) do they need to bother since federal law already prohibits it?
That isn't what the man you're relying on said.
More especially, it cannot be believed that the large slaveholding States regarded them as included in the word citizens, or would have consented to a Constitution which might compel them to receive them in that character from another State. For if they were so received, and entitled to the privileges and immunities of citizens, it would exempt them from the operation of the special laws and from the police regulations which they considered to be necessary for their own safety. It would give to persons of the negro race, who were recognised as citizens in any one State of the Union, the right to enter every other State whenever they pleased, singly or in companies, without pass or passport, and without obstruction, to sojourn there as long as they pleased, to go where they pleased at every hour of the day or night without molestation, unless they committed some violation of law for which a white man would be punished; and it would give them the full liberty of speech in public and in private upon all subjects upon which its own citizens might speak; to hold public meetings upon political affairs, and to keep and carry arms wherever they went. And all of this would be done in the face of the subject race of the same color, both free and slaves, and inevitably producing discontent and insubordination among them, and endangering the peace and safety of the State.
Article. IV. Section. 2. Clause 1: The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States.
In fact, your man Taney didn't mention the Second Amendment in his notorious decision.
Article IV
Section 2:
Clause 1: The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States.
I know I don't have a law degree and all, but the above seems pretty clear. What gives?
What that means is that if you are a citizen in any one State, you must be treated the same, with reference to rights and privileges under the law, as the citizens of any State you travel in are.
And by the way, yes I agree with that columnist's reading of the Nebraska constitution. The language is quite plain.
Just curious..
My thoughts exactly. I am still studying the issue, but from what I have seen so far, the 14th Amendment essentially says nothing more than what was originally written in Article IV, Sec. 2. On this issue, you can probably find court opinions all over the map, several rulings addressed the definition of "privileges and immunities":
"Privileges and immunities of citizens of the United States, on the other hand, are only such as arise out of the nature and essential character of the national government, or are specifically granted or secured to all citizens or persons by the Constitution of the United States.....among the rights and privileges of national citizenship recognized by this court are the right to pass freely from state to state, the right to petition Congress for a redress of grievances, the right to vote for national officers, the right to enter the public lands, the right to be protected against violence while in the lawful custody of a United States marshal, and the right to inform the United States authorities of violation of its laws" (Twining v New Jersey, 211 US 78 (1908))."Privileges and immunities clause of Fourteenth Amendment protects only those rights peculiar to being citizen of federal government; it does not protect those rights which relate to state citizenship" (Jones v. Temmer, Federal Supplement, Vol. 829, Page 1227 (1993)).
Article IV refers to privileges granted under state law (in the sense that states must not discriminate between resident and non-resident U.S. citizens in how it grants its privileges), whereas the 14th amendment refers to privileges granted to citizens under federal law, which is what those rulings you quoted from were talking about.
Agreed. Thanks for the ping. I have been gone all week. Have a new tactical rifle I can't wait to break in .
{:0)
One may cite all manner of Supreme Court decisions regarding the Second Amendment (U.S. v. Cruikshank, Presser v. Illinois, Miller v. Texas, U.S. v. Miller, Lewis v. U.S. .... ) and point to any one, or all, of those decisions as proof of whatever one chooses to prove.
The ability, and the penchant -- by lower courts, the media, academia, or gun-control or pro-Second-Amendment organizations -- to (1) misinterpret, (2) quote out of context, or (3) incorrectly cite any or all of those five decisions has evolved into a modern American artform.
Call me simplistic if you like (you wouldn't be the first to do so :), but the Supreme Court decisions that have been handed down since 1876 simply set legal precedents. And they are precedents that are (supposedly) based on one foundation: the original intent of the Framers when they penned the Constitution.
So, to answer the question, 'Do the states have a right to regulate the ownership or use of arms?' one needs simply to look to the words, and the intent, of the Second -- and Ninth, Tenth, and Fourteenth -- Amendments.
To the Constitutional purist, every American lives under a very simply fabricated umbrella: a handful of 'natural' freedoms which are to be enjoyed by the citizens of this republic, and an even smaller handful of duties which are to be shouldered by the federal government. Anything other than those delineated freedoms, and delineated federal government responsibilities, is to be addressed by the people themselves, or the state governments under which they live.
Among that small handful of sacrosanct, 'natural' freedoms, which are not up for negotiation or regulation, and are not under the purview of government, is the right of the people to keep and bear arms (or, perhaps better put: the right to self defense). To say that the Constitution places states' right above the handful of enumerated 'natural' rights which are cited as untouchable amounts to believing that the Constitution is meaningless, and this republic is, in effect, a weak conglomeration of fifty sovereign, disparate entities (emphasis on the word weak).
The purpose of the Constitution's guarantees was to enumerate (not create!) a small (but eternally important) set of guaranteed rights that may not be infringed upon by any branch of government (federal, state, or otherwise). And in that way a Constitutional right differs from a right conferred by statute or by common law. It is sacrosanct.
Robert Dowlut (Deputy General; Counsel for the NRA) wrote in his essay (1989), 'Federal and State Constitutional Guarantees to Arms': While bright boundary lines cannot always be drawn, this [establishing the protected boundaries of a right] is a more principled approach to constitutional interpretation than merely paying no attention to plain words or history and applying elastic labels of 'valid exercise of the police power' or 'reasonable regulation' whenever a constitutional challenge is made, or even denying the existence of a right by interpreting it in such a fashion that it becomes an intangible abstraction.
The Constitution in general, and the Second Amendment in specific, are fast becoming just that ... intangible abstractions. Legal manipulators (legislators, attorneys, lobbyists) are using court decisions (and the myriad of interpretations they imply) as the basis upon which to argue for or against Constitutional violations. The Second Amendment itself, and the original intent of those who penned it, have somehow found themselves lost in the shuffle.
The key words in Dowlut's quote above are: 'paying no attention to plain words or history' .... and 'reasonable regulation'.
The words of the Second Amendment could not be more plain. The intent of the Founders in penning it could not be more plain. (If their intent is viewed as nebulous, all one needs do is read their writings as quoted in innumerable other sources, or personal letters).
And, where the Second Amendment is concerned, reasonable regulation is the ultimate example of an oxymoron. One (or the state or federal government under which one lives) does not regulate, reasonably or otherwise, a natural, God-given, (Constitutionally-guaranteed) right.
< /simplicity >
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