A real legal scholar can do better than I can. An example would be the 5th Amendment. No State can abridge, modify, or cancel the 5th Amendment rights of its citizens. The Supreme Courts of all States, and the Supreme Court of the United States are all in agreement on this. Equally, no State can abridge, modify, or cancel the 2nd Amendment rights of its citizens. Yet, State Courts, and Federal judges get fuzzy logic here. There should be no misunderstanding. I think the biggest problem is that courts fail to recognize two things:
- In order to be legitimate, any government action must be performed by someone who making a good-faith effort to uphold the Constitution. The fact that an action is performed in bad faith is sufficient, in and of itself, to render the action illegitimate. For example, if a cop executing a search warrant accidentally destroys something which is valuable to the homeowner, that wouldn't render the search illegitimate, but if the purpose of the destruction was to deprive the homeowner of his rightful property, the "search" should be regarded as illegitimate (and the person conducting it should be regarded as a robber).
- The question of whether people act in good faith is in many cases a question more of witness credibility than of law. As such, defendants have a right to have questions of good faith considered by a jury, and to have jurors informed that if they find someone to have acted in bad faith, they must regard that person's actions and evidence gathered thereby as having been illegitimate.
To be sure, the fact that an action is performed in good faith does not imply that it is legitimate, but the legitimacy of any action cannot be presumed without also presuming it to be in good faith, and the concept that any particular individual acts in good faith should be regarded as at most a rebutable presumption. Thus, the right to a jury trial implies a right to challenge before a jury the good faith of any government personnel involved in any aspect of a case. Government agents who act in good faith should have no trouble convincing jurors of that fact (most jurors will be predisposed to believe them). On the other hand, jurors may be more inclined than a judge to regard as illegitimate the actions of someone who tries to follow the letter of the law only to the extent that judges demand it, while deliberately acting contrary to its spirit.
Incidentally, with regard to questions of Congressional authority, a proper remedy would be to have jurors recognize that the boundaries of federal authority extend not only to what statutes Congress may legitimately pass, but the cases in which it may legitimately have them enforced. For example, if a statute claims authority under the "interstate commerce" clause, federal prosecutors should have to convince a jury that the particular actions of the defendant interfered with good-faith efforts on the part of the federal government to regulate interstate commerce without excessive intrusion on states' powers or individual rights.
With regard to the Second Amendment, there could be some legitimate gray areas (e.g. requiring that ammunition which is headstamped ".380 Auto" and tendered for commercial sale must, when fired in a certain barrel, produce pressures within a certain range). In evaluating the legitimacy of a regulation, the fundamental question should be whether those promoting it are endeavoring to increase or decrease the effectiveness of people's armament. Regulations which represent a good-faith effort to help people arm themselves more effectively (e.g. by making it easier to know what ammunition will work safely in their firearm) may be legitimate; those which represent a bad-faith effort to make arms less affordable are not.
Incidentally, with regard to questions of Congressional authority, a proper remedy would be to have jurors recognize that the boundaries of federal authority extend not only to what statutes Congress may legitimately pass, but the cases in which it may legitimately have them enforced. For example, if a statute claims authority under the "interstate commerce" clause, federal prosecutors should have to convince a jury that the particular actions of the defendant interfered with good-faith efforts on the part of the federal government to regulate interstate commerce without excessive intrusion on states' powers or individual rights.As a juror, I do understand that, and would apply that standard when relevant. Filburn would have had nothing to fear from me. Or Raich.