Or can they do whatever they want, with no obligation to respect our right to keep and bear arms?
That’s what’s at stake in the Chicago gun-ban case, McDonald v. City of Chicago (Alan Korwin)
Posted on 03/07/2010 12:31:07 PM PST by foutsc
Are the 50 states required to obey the Second Amendment?
Or can they do whatever they want, with no obligation to respect our right to keep and bear arms?That’s what’s at stake in the Chicago gun-ban case, McDonald v. City of Chicago (Alan Korwin)
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. -- 2nd Amendment to the US Constitution
But the practice of constitutional law has unfortunately long since been about more than the simple application of the plain text. That’s because the Constitution—the point of which is to limit government power—is a rather inconvenient roadblock when government wants to do something without restraints.Courts, in many cases, have abandoned their responsibility to apply the clear commands of the Constitution and have become extremely deferential to legislatures, especially with regard to progressive policy goals the judges themselves often share.
Some call this judicial “restraint,” but increasingly, a more accurate term would be judicial abdication.
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.
Our brief establishes this crucial point: the Second Amendment protects an American right that is long standing, deeply rooted and truly fundamental, and therefore meets the tests for incorporation under the 14th Amendment.The idea that the states should also be obligated to respect the fundamental rights in the national Bill of Rights didn’t arrive until 1868, with the 14th Amendment. And that was a result of the end of slavery — the former Confederate states did everything they could think of to deny virtually any rights to newly freed slaves — especially the right to keep and bear arms.
Is Chicago obligated, under the 14th Amendment, to honor and respect your rights? It says no, it can do as it pleases and screw your rights, just like other abhorrent petty tyrants currently running loose without nooses in the United States.
Here's a critical issue: If the court overturns the ban, is it a blow to states' rights? As important is a separate issue: If the federal government can use the 14th Amendment to force states to respect a right mentioned in the 2nd, will liberals use this precedent to force states to recognize other "rights" that they invent?Yes, we’re delighted that the states may be forced — by our friends the feds — to honor our right to keep arms and our right to bear arms. We can conveniently overlook and rationalize any concerns about federalism — the concept that states are sovereign and independent, and in many matters can decide on their own how their territories will be run.
Force from federal mandates seems just fine to protect free speech or stop search-and-seizure abuse, or to protect RKBA. But how well that flies if it’s “newly discovered privileges and immunities” (polygamy? drugs? animal rights? affirmative action? debt? medicine? carbon neutrality? diversity? greenness? diet?) remains to be seen.Those are far fetched and unlikely concerns, according to most people in the know.
The state of Illinois can not usurp the rights of gun owners as guaranteed to all American citizens by the US Constitution.
This does not mean that a State loses its identity, but that it will comply with the limitations inherent in the Constitution.
While many of those limits are placed upon the Federal Government in the process of delineating the duties thereof, some are the reservation of specific Rights to the people, specifically the Right to Keep and Bear Arms shall not be infringed.
The absence of specification by which form of government reserves that Right to the people themselves, as individuals, not to any form of government.
While the argument may be made that certain technological developments have necessitated the restriction of certain arms to Governmental entities, the economics of developing, storing, and deploying such weapons has in the past made this a moot point. Few can afford to pose a viable nuclear threat, for instance.
However, in the case of certain weapons of mass destruction, affordability is less an issue.
We must look back to the concept that the necessity of arms in private hands is the Security of a free State, to wit: the preservation of liberty against the misuse of the military.
It was noted in the Federalist, in the discussion of whether there should be a standing Federal Army, that the State Militias (acting as separate military forces under State control) would be able to repel a Federal incursion, and that if either State or Federal forces were misused the bulk of the people, under arms would be able to preserve their liberty by sheer numbers, if not martial skill.
With those thoughts in mind,
First: Illinois agreed to the Constitution of the United States, with the Bill of Rights upon Statehood, and subsequent ratified amendments as well.
The Second Amendment reserves a specific right to the people, that of keeping and bearing arms, which is sacrosanct from government meddling ("...shall not be infringed").
Neither Illinois, nor any political jurisdiction has the authority to limit the right of the Citizen to keep and bear arms, unless that right is removed as part of due process of law, in punishment for a serious crime (defined as a "felony").
Just my $0.02.
The 14th has to be the most perverted Amendment in history (along with the 2nd)
In other words the states can ignore ALL amendments? Do they REALLY want that?
In their dreams!
Make that the 16th. We are all slaves with it.
There are no rights that may be taken except life or liberty without the due process of law.
There are no exceptions for a felony or anything else.
Point well taken.
Among those thinge I consider is the Right to Keep and Bear Arms. What is Liberty, if not the sum of our Rights?
What does shall not be infringed mean to you?
What other rights are taken after a felony conviction?
California as well as some other states now prohibit fire arm ownership for misdemeanor convictions, is that okay?
If you can take it from some you can take it from all, that is why the 2nd Amendment is the only right that specifically states "shall not be infringed."
A “yes” decision would mean that states could also ignore the other amendments!! Of course 4 votes are already in from the court—the 4 leftists. But they’ll argue that guns are “different!” Wouldn’t it be great if a state overturned the right to vote for females!!! Hell, if the other 49 followed suit we wouldn’t have any more fascists in the White House!
If like me, a person holds that the Bill of Rights incorporated all those named protections of rights when the Bill of Rights was initially ratified — there is no conflict.
BTW, the folks who do NOT so hold — how do they explain the then redundant Ninth Amendment?
It is ridiculous in articles to discuss how the application of the 2nd amendment to the states is violation of states rights. While a person can argue the merits of the 14th amendment, it is similarly ridiculous to assert that the 14th amendment overturned the Constitution. This argument is the same type of loser arguments that the gay community was raising in California in response to proposition 8, namely, that an amendment is unconstitutional.
Finally, when people make all of the assertion that incorporation of the 2nd will harm states rights, they seem to forget one of the keys of constitutional interpretation;
“A Constitution, to contain an accurate detail of all the subdivisions of which its great powers will admit, and of all the means by which they may be carried into execution, would partake of the prolixity of a legal code, and could scarcely be embraced by the human mind. It would probably never be understood by the public. Its nature, therefore, requires that only its great outlines should be marked, its important objects designated, and the minor ingredients which compose those objects be deduced from the nature of the objects themselves.” McCulloch v. Maryland.
In other words, we should look at the structures and the objects of the Constitution in interpreting its language.
For originalists who don’t want to rely on the 14th amendment, there is a powerful argument for the incorporation of the 2nd against the states to the extent that that limits states abilities to regulate away ownership of firearms.
Article I Section 8 reads “To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions;
To provide for organizing, arming, and disciplining, the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress.”
Article II section 2 states, “The President shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States.”
The Constitution clearly provides for the existence of the militia and gives the Federal government certain control over that milita. Further, the militia was a critical, albeit unpredictable part of the function of the armed forces at the time of the Constitution.
As further stated in McCulloch v. Maryland, “This great principle is that the Constitution and the laws made in pursuance thereof are supreme; that they control the Constitution and laws of the respective States, and cannot be controlled by them. From this, which may be almost termed an axiom, other propositions are deduced as corollaries, on the truth or error of which, and on their application to this case, the cause has been supposed to depend. These are, 1st. That a power to create implies a power to preserve; 2d. That a power to destroy, if wielded by a different hand, is hostile to, and incompatible with these powers to create and to preserve; 3d. That, where this repugnancy exists, that authority which is supreme must control, not yield to that over which it is supreme.”
In short, states do not have power to destroy objects within the power of the federal government - the federal government is supreme.
In light of this, it is clear that states originally lacked power to regulate ownership of firearms at least to the extent that that regulation would in any way undermine the existence and vibrancy of a militia.
To quote Scalia in the oral arguments of McDonald, “Let’s assume that the only reason [the second amendment] is there and the only purpose [the second amendment] serves is the militia purpose. Isn’t that militia purpose just as much defeated by allowing the States to take away the militia’s arms as it would be by allowing the Federal Government to take away the militia’s arms?”
To say that this is just an issue of states rights and a power grab is to ignore the structure and purpose of the constitution. The 2nd has always applied to the states in some form and is clearly the case since the passing of the 14th amendment. The Supreme Court should incorporate it against the states.
I like Alan Korwin. Met him years ago. He’s a good guy.
* In 2008 In 2008 women's suffrage affected more than three hundred million American citizens.
Second, Felons have typically been stripped of their rights to bear arms, hold office, and to vote.
The commission of a Felony was the standard by which that was done for centuries, the affectation over misdemeanors is a recent development, and imho, should not have ever have happened.
For those who would argue that some people's misdemeanor convictions herald behaviour which tends toward felonious activity, I would say either charge (and convict) with a Felony, or let it go.
Note, too, that the Felony is the standard for Impeachment of the President. It is not a slippery slope if the standard remains the same.
If you can take it from some you can take it from all, that is why the 2nd Amendment is the only right that specifically states "shall not be infringed."
The same could be said about Life and Liberty, which is why the 'due process clause' exists.
If all the necessities of due process are met, the individual is charged with a crime after an investigation which is restrained by their other rights and rules of evidence, under laws restrained by the Constitution as Amended, with right to counsel, and found guilty by a jury of their peers. Not some willy-nilly process.
The Second Amendment is about the people retaining the power to resist, by force of arms, an overreaching government, thus keeping a 'free state' secure.
bone52: I wouldn’t go so far as to say it’s ridiculous to discuss it. People are discussing it, including some smart gun rights people, if only to knock down the notion.
If you read my last paragraph I plainly state I do not think the court enforcing the 2nd Amendment violates states rights. The states do not have a right to violate our natural rights.
That is total BS. There is no right to vote let alone hold office. IIRC it was in the gun control act of 1968 that felons were first denied 2A rights. Back in the old days when you got out of prison you got a $20.00 gold piece, a horse and YOUR GUN BACK.
The commission of a Felony was the standard by which that was done for centuries, the affectation over misdemeanors is a recent development, and imho, should not have ever have happened.
Neither should the purpose of felonies. You say it should not happen with misdemeanors but it did. If it can be taken from one class it can be taken from the next, who knows, maybe YOU will be next. Where does it stop?
Note, too, that the Felony is the standard for Impeachment of the President. It is not a slippery slope if the standard remains the same.
Absolutely no relevance what so ever, there is no right to hold the office of POTUS.
The same could be said about Life and Liberty, which is why the 'due process clause' exists.
That's right, by whatever method the State chooses (execution) or what length of incarceration State law deems fit. Nothing there about stripping rights for life afterword.
The Second Amendment is about the people retaining the power to resist, by force of arms, an overreaching government, thus keeping a 'free state' secure
By your logic, felons have no right to protect themselves from a tyrannical government or securing a free state, let alone self defense. I'm sure that's just what the Founders had in mind when they wrote the 2nd A.
Our rights come from God, not the State or the Government. One right in particular Shall not be infringed. If a State can take that right, it can take the rest of them.
I apologize if I gave the impression of attacking you. I realize that you weren’t arguing that incorporation of the 2nd violates states rights. I have just seen those comments made frequently in response to articles about McDonald over the past couple of days and have been trying to preemptively respond to such comments in threads that seem like they will attract “states rights” people.
I also agree that my saying that it is ridiculous to discuss was a little bit strong.
Anyways, my apologies for giving you the impression of attacking your post.
Back in the old days, a lot of the people we release would have been strung up or shot long before they got to prison, if not on the grounds.
Neither should the purpose of felonies. You say it should not happen with misdemeanors but it did. If it can be taken from one class it can be taken from the next, who knows, maybe YOU will be next. Where does it stop?
It should have stopped with the Felony.
Just as the Federal Government should have stopped with the Constitution, but has expanded far beyond that.
Who failed to stop them, if not the voters who out of ignorance or greed have settled for the lesser evils who have continued this march beyond what the Founders ever expected?
Absolutely no relevance what so ever, there is no right to hold the office of POTUS.
Yes, relevance. The office of POTUS is open to any Natural Born Citizen, having met the other requirements, except those who are Felons.
A felon has demonstrated contempt for our laws.
Both parties have threatened the removal of a sitting president in my lifetime because of essentially the same charges "Perjury and Obstruction of Justice" (Felonies).
The Second Amendment is about the people retaining the power to resist, by force of arms, an overreaching government, thus keeping a 'free state' secure
By your logic, felons have no right to protect themselves from a tyrannical government or securing a free state, let alone self defense.
By my statement, felons have proven themselves as persons who cannot be trusted.
Go ahead, share a foxhole with one--even the Military will not take one.
As for self defense, they still have that right, but not the right to keep and bear arms. (Self-defense is not limited to the use of firearms nor large knives nor 'destructive devices'). I'm sure that's just what the Founders had in mind when they wrote the 2nd A.
I am sure the Founders understood that even brigands and thieves and cutthroats all have their place in the grand scheme of things, but it is not the right of self-defense at issue here, just the right to keep and bear arms.
Not one right has been infringed except for the signal act of some felon or brigand, which was used as the excuse to further secure the 'public safety' by diminishing the rights of those who have committed no crime. Your beloved felons have provided the reason for the loss of our rights, too.
Our rights come from God, not the State or the Government. One right in particular Shall not be infringed. If a State can take that right, it can take the rest of them.
No argument that our Rights come from God, those unalienable Rights, anyway..."Life, Liberty, and the Pursuit of Happiness...", but to use the argument the State (the People, acting in concert, through intermediaries selected by them) cannot divest Felons of any rights should their behaviour warrant it is folly (back to the life, liberty, or property thingy).
The protections for the accused in our system of justice were unprecedented, and it is only public outcry for expediency and convenience which has made those otherwise. Only public outcry in favor of reinstating those protections will suffice.
I am not anticipating public outcry in favor of letting murderers, armed robbers, rapists and the like go free after they have served their sentences and own firearms.
Nor, would I consider it particularly sane to argue for that, esecially when combined with the argument that those of us who have no such disqualifications should have our Right to Keep and Bear Arms uninfringed.
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