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Posted on 04/26/2002 2:54:43 PM PDT by Stand Watch Listen
(CNSNews.com) - Seven states do not have clauses in their constitutions allowing citizens the right to keep and bear arms, an attorney and research director of the Colorado based Independence Institute warned Friday at the opening of the National Rifle Association's annual convention in Reno, Nev.
Those seven states are Maryland, Iowa, New Jersey, California, Minnesota, Delaware and Massachusetts, according to attorney David Kopel, who in addressing an NRA firearms law seminar, called on members in those states to write their legislators to get such clauses enacted.
The Second Amendment of the United States Constitution does contain the following language. "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."
However, "State constitutions control your state and local governments," Kopel said. And with the exception of the seven states, "Most people have decided to put into their state constitutions an explicit right to bear arms to keep the state or local governments from disarming law abiding good citizens. The (United States) Supreme Court has not ruled definitively whether the Second Amendment is enforceable against the states."
Massachusetts nullified firearms related language in its state constitution, said Kopel. And the state's stance toward gun ownership has won praise from the "Open Society Institute," a New York based private foundation that seeks to reduce gun violence.
The group Friday issued a report card for all 50 states, grading the states in terms of how far they go to restrict firearms. Massachusetts scored the highest, a "76" out of 100. Coming in second was Hawaii, followed by California, Connecticut, Maryland, New Jersey, Illinois, New York, Iowa and North Carolina.
Kopel said it would be difficult to change those state constitutions not containing firearms related clauses.
"In New Jersey, they don't have the right of initiative in the state. They don't have the ability to change their constitution by collecting petitions to put an initiative on the state ballot," Kopel said. In other places such as Maryland, he added, the process would begin with the election of state lawmakers, who "support an explicit right to bear arms in their constitution."
Pro-gun advocates in California would also have a difficult time changing their state constitution, Kopel said
"Californians have a tough situation because the media there is so anti-gun and the costs of running election campaigns there are so intensive, it would be a big challenge to do a successful statewide initiative there," Kopel said.
"In any state," Kopel continued, "having the right to bear arms and how much protection you get from the state Supreme Court can vary a lot. In Colorado, we have had some state supreme courts like in the early 70s, that were very law abiding, protective of that right and we have had courts that ... have really [been] contemptuous of that right.
"There are a lot of state supreme courts that would uphold almost any gun law short of total gun prohibition," said Kopel.
Professor Eugene Volokh, who teaches firearms law at the UCLA Law School, believes Kopel is wrong in arguing that firearms clauses should be added to state constitutions.
"The Second Amendment, like the First, Fourth, and Ninth Amendments, refers to a right of the people, not a right of the states or a right of the National Guard," Volokh said, "The First Amendment guarantees the people's right to assemble; the Fourth Amendment protects the people's right to be free from unreasonable searches and seizures; the Ninth Amendment refers to the people's unenumerated rights," Volokh told the U.S. Senate Subcommittee on the Constitution, Federalism and Property Rights.
"These rights are clearly individual -- they protect the right of the people by protecting the right of each person. This strongly suggests that the similarly-worded Second Amendment likewise secures an individual right," said Volokh.
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As if that's needed. Is there any question that the other amendments in the Bill of Rights are enforceable against the states? Pi**es me off.
Amendment XIV
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.
There shouldn't need to be any debate about this point at all. The damn states DO NOT have the authority to over-ride the protections in the Bill of Rights; or at least, they shouldn't have. The current governor, legislature and AG of Cal have adopted the attitude that the citizens of Cal have no rights except what rights they [the demonRAT Party] deem acceptable.
Now I do believe that Firearms ownership is an individual right. The problem in those 7 states that don't restate that right is a problem with the people in those states. If you are a conservative you don't have to live in those scum-bucket states.
Secondly How in the world did North Carolina rank so high on the list of this anti-gun Report Card. CCW Permits are Shall Issue, Open Carry is legal, Car carry without a permit is legal provided the gun is in plane view, North Carolina is actually a Gun Friendly State (except for the fact that they require handgun permits to buy handguns.)
More specifically the 14th Amendment wasn't ratified by 3/4 of the states and the amendment wasn't approved by a full senate since the then Republican Party, which controlled the senate, would not recognize senators from the antibellum states.
Another sad chapter in American history.
The resultant amendmant increased the power of the judiciary to legislate and tilted the balance of political power from the states to the federal government. The 14th Amendment is rightfully called by many the "downfall of our fine democracy".
This state continues to devolve individual rights into power to the socialists in the legislature such as Ortiz, Perata, Bowen and Scot.
However, there is ONE good that has come out of the "Gun Wars". Namely, the study of the U.S. Constitution by those that would have ignored it, and not been enlightened by its wisdom.
"The Second Amendment, like the First, Fourth, and Ninth Amendments, refers to a right of the people, not a right of the states or a right of the National Guard," Volokh said.
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The 'difference in approach' is all important.
Kopel is in affect agreeing with anti-U.S.-constitutionalists that state constitutions NEED such clauses. Which is a form of appeasment. -- They do not.
The 2nd is the law of the land.
The above is BS propoganda put out by anti-constitutional & socialist statists. They advocate 'majority rule' government by states.
Central government was not caused by the 14th, ratified in '68. -- It was caused by the states themselves surrendering authority to 'progressive' federal schemes, fostered by both political parties, beginning shortly before WWI. -- 50 years after the 14th. -- And not really solidified untill the 1930's.
The 'problem' is not with our constitution. --- Our political system subverting the constitution is the problem.
The constitutional clause must have coutned heavily toward the final score.
"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"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, United States v. Cruikshank, 92 U.S. 542 (1876), Presser v. State of Illinois, 116 U.S. 252 (1886)
Delaware is in the same boat - and we wonder why we want to move to Virginia!!!!!!
They were only restrictions on the powers delegated to the federal government.
There has been a selective judicial "incorporation" of portions of the BOR through the 14th Amendment.
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