Do state trump Bill of Rights on firearms?

WorldNetDaily ^

[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

[Jeff Head]

They are wrong every time they rule outside of it.

Once upon a time, a Chief Justice of the SC made that very clear.

He said that all laws or legislation repugnant to the Constitution were null and void. By simple logic and common sense, the same applies to any court ruling that carries that same repugnancy.

Add the people to the list of those who decide. They (the people) were armed for that very purpose if it ever came to that. Taking those arms away is about one thing and one thing only ... it is about taking that power to trump government away from the people. As has been said and what should be the attitude of every armed citizen IMHO...

"When you see them with my musket ... you will know that I am dead."

[Viva Le Dissention]

I'm not a lawyer, but that doesn't change the way things are. States have a right to prevent people from bearing arms. Period.

[southern rock]

You've got to play the hand you're dealt. In this case, it's that gun ownership can be infringed by the states. I don't like it, but it is the way it is.

You are a realist and a pragmatist. Our founding fathers were not. The world is an evil place when run by realists and pragmatists.

[southern rock]

The Court decides what the Constitution means. By definition, they can't rule outside of it. As far as overruled decisions go, they weren't wrong when they were made; the scope of the Constitution changed.

George Orwell, is that you??

[Viva Le Dissention]

Wrong.

As we have noted, the parties agree that Presser is
controlling, but disagree as to what Presser held. It is difficult
to understand how appellants can assert that Presser supports the
theory that the second amendment right to keep and bear arms is a
fundamental right which the state cannot regulate when the Presser
decision plainly states that "[t]he Second Amendment declares that
it shall not be infringed, but this . . . means no more than that
it shall not be infringed by Congress. This is one of the
amendments that has no other effect than to restrict the powers of
the National government . . . " Presser v. Illinois, 116 U.S. 252,
265, 6 S.Ct. 580, 584, 29 L.Ed. 615 (1886).

[lepton]

States have a right to prevent people from bearing arms.

Only if the SCOTUS tells them they do. :)

(Which it hasn't)

[southern rock]

why does the Court have the power of judical review? Because it says it does--you can't find the power of judicial review in the Constitution; it's not there. They have power because they say they do. If you want a more compelling case for infallibility, look no further.

O.K., with this statement, I am begining to suspect you are being sarcastic. I hope this is the case.

[Viva Le Dissention]

7th amendment guarantees jury trials in civil cases over $20. But in many states, you don't have the right to a jury trial in traffic court. Not incorporated. Doesn't apply.

[Former Proud Canadian]

That's what I thought too.

[lepton]

By the way, I've been trying to find Thomas' Concurring decision on the Cleveland School Voucher case, but can't seem to find the links on this computer (I've got it bookmarked on my other one). He says some interesting things on the 14th Amendment.

[Jeff Head]

In this case, it's that gun ownership can be infringed by the states. I don't like it, but it is the way it is.

It can only be the case if the people allow it. And that is definitely not a philosophical arguement. The King found out how philosophical it was at some point ... so will these people and anyone who supports them.

Sorry, you and others may not like that, but that's the way it is. I have said all I need to say in posts 21 and 50. Post 51 is also very good IMHO. I hope these particular statist/tyrants get the message before they push it too far.

BTW, arguements like yours (that's just the way it is) were heard long and loud in Klamath Falls last year. A few stood and risked everything to make the point that they were wrong. This issue will one day come down to the same if it continues to be pushed.

[lepton]

7th amendment guarantees jury trials in civil cases over $20. But in many states, you don't have the right to a jury trial in traffic court. Not incorporated. Doesn't apply.

As I understand, traffic court is held to be a different type of court - so it's not a "State" argument, but a Court-type Argument..

[Viva Le Dissention]

Are you now going to try to claim that judicial review is found in the Constitution?

[Viva Le Dissention]

It's either a civil or criminal charge--it has to be one or the other. Either way, your right to a jury trial is preserved by the U.S. Constitution.

[southern rock]

No. For a minute there, I was simply thinking that your "the SC is infallable because it says it is" argument was sarcam. Guess not. Never mind.

[Sloth]

"[t]he Second Amendment declares that it shall not be infringed, but this . . . means no more than that it shall not be infringed by Congress. This is one of the amendments that has no other effect than to restrict the powers of the National government.

So SCOTUS lies. How does that change the clear wording of both the 2nd and 14th Amendments?

[Roscoe]

"But it is universally understood, it is a part of the history of the day, that the great revolution which established the constitution of the United States, was not effected without immense opposition. Serious fears were extensively entertained that those powers which the patriot statesmen, who then watched over the interests of our country, deemed essential to union, and to the attainment of those invaluable objects for which union was sought, might be exercised in a manner dangerous to liberty. In almost every convention by which the constitution was adopted, amendments to guard against the abuse of power were recommended. These amendments demanded security against the apprehended encroachments of the general government--not against those of the local governments." -- Barron v. Baltimore 7 Pet. 243 (1833)

"The Fifth Amendment provides, among other things, that no person shall be held to answer for a capital or otherwise infamous crime unless on presentment or indictment of a grand jury. This court has held that, in prosecutions by a state, presentment or indictment by a grand jury may give way to informations at the instance of a public officer. Hurtado v. California, 110 U.S. 516 , 4 S.Ct. 111, 292; Gaines v. Washington, 277 U.S. 81, 86 , 48 S.Ct. 468, 470. The Fifth Amendment provides also that no person shall be [302 U.S. 319, 324] compelled in any criminal case to be a witness against himself. This court has said that, in prosecutions by a state, the exemption will fail if the state elects to end it. Twining v. New Jersey, 211 U.S. 78, 106 , 111 S., 112, 29 S.Ct. 14. Cf. Snyder v. Massachusetts, supra, 291 U.S. 97 , at page 105, 54 S.Ct. 330, 332, 90 A.L.R. 575; Brown v. Mississippi, 297 U.S. 278, 285, 56 S.Ct. 461, 464. The Sixth Amendment calls for a jury trial in criminal cases and the Seventh for a jury trial in civil cases at common law where the value in controversy shall exceed $20. This court has ruled that consistently with those amendments trial by jury may be modified by a state or abolished altogether. Walker v. Sauvinet, 92 U.S. 90 ; Maxwell v. Dow, 176 U.S. 581 , 20 S.Ct. 448, 494; New York Central R.R. Co. v. White, 243 U.S. 188, 208 , 37 S.Ct. 247, L.R.A.1917D, 1, Ann. Cas.1917D, 629; Wagner Electric Co. v. Lyndon, 262 U.S. 226, 232 , 43 S.Ct. 589, 591. As to the Fourth Amendment, one should refer to Weeks v. United States, 232 U.S. 383, 398 , 34 S.Ct. 341, L.R. A. 1915B, 834, Ann.Cas. 1915C, 1177, and as to other provisions of the Sixth, to West v. Louisiana, 194 U.S. 258 , 24 S.Ct. 650." -- PALKO v. STATE OF CONNECTICUT, 302 U.S. 319 (1937)

"The Second Amendment declares that it shall not be infringed, but this, as has been seen, means no more than that it shall not be infringed by Congress." -- US Supreme Court, U.S. v. Cruikshank, 92 U.S. 542 (1875), Presser v. State of Illinois, 116 U.S. 252 (1886)

"To suppose arms in the hands of citizens, to be used at individual discretion, except in private self-defense, or by partial orders of towns, countries or districts of a state, is to demolish every constitution, and lay the laws prostrate, so that liberty can be enjoyed by no man; it is a dissolution of the government. The fundamental law of the militia is, that it be created, directed and commanded by the laws, and ever for the support of the laws." -- John Adams

[Viva Le Dissention]

If you're such a "constitutional purist," I don't know why you're not jumping up and down mad over the Supreme Court declaring laws unconstitutional. The Supreme Court does NOT have the power of judical review in the Constitution. Why aren't you hopping mad over that?

[Kenton]

This claim is the liberals' fallback position since Ashcroft came out and said the obvious, which is that US vs. Miller in no, way shape or form ruled that you have to be a member of the National Guard in order to have the RKBA.

If the claim has any legitimacy at all, it would have to be derived from Article X, which states: "The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people. "

In other words, he's saying that just because the Federal Government doesn't have the power to ban private firearms, because this proscription only applies to the Fed, and since it is "not delegated to the United States by the Constitution, nor prohibited by it to the states", it is reserved for the states to decide. This approach only assumes that the states have reserved this power, and completely ignores the phrase "or to the people".

I'm not a lawyer, nor do I pretend to be one in bars in order to pick up women, but IMHO it's a pretty damn flimsy pretext. It's kind of like saying that none of the Bill of Rights or subsequent amendments apply to the state governments, and I can't remember the case, but there was a Supreme Court ruling that the Federal Laws trump the state laws if there is a conflict.

The liberals are fine with that in first amendment situations, but they seem to want to exlude the Second, for some reason...

[sheltonmac]

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. If anti-gun laws in California are deemed by the public to be wrong, the battle should be fought in California, not at the federal level.

On the other hand, I am also of the opinion that state governments can and should be limited to what the state constitution says. If the state constitution does not specifically allow the government of California to regulate firearms, then the government of California has no authority to infringe upon that individual right. That would be in keeping with the idea behind a constitutional form of government in all 50 free and independent states.

Let it be known that I am more pro-gun than most NRA members. I believe citizens should be able to carry any kind of gun they want anywhere they want. In fact, I would go so far as to say that I hold the federal government partly responsible for the 9/11 attacks because it was federal regulations that barred pilots and passengers from being able to protect themselves on board those hijacked planes. I despise the NRA leadership for ever caving in to public pressure by saying things like, "Okay, this is a gun law we can live with." Virtually every single federal gun law is unconstitutional on its face.

As a firm believer in the right of states to govern themselves, I think it should be up to the people of a particular state--voicing their positions through their elected representatives in the legislature--to decide whether or not they want gun control. If anyone in California would like to protest a gun-control law, they could appeal to Article I, Sec. 1 of the state constitution, which states, "All people are by nature free and independent and have inalienable rights. Among these are enjoying and defending life and liberty, acquiring, possessing, and protecting property, and pursuing and obtaining safety, happiness, and privacy." It would seem that laws infringing on gun ownership would violate the "defending life and liberty" clause.