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February 1, 2013, 06:16 PM | #1 | ||||||||||||||||||||
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Spats McGee’s Federal Constitutional Primer
Spats McGee’s Federal Constitutional Primer In the last few months, we’ve had a great many newcomers around here, both at The Firing Line, and in the firearms community in general. In relation to the latter, I have said in other threads that the gun community needs as many ambassadors as it can muster. We have to be prepared to assist new shooters in learning the basics of gun handling, helping them find training, parts and supplies, and in learning the laws relative to firearms. In that vein, I have prepared this post. This post is intended to be a basic primer on the United States Constitution and law. It is intended to give those unfamiliar with the workings of our Constitution and our government, both newcomers to the world of firearms law and our gun-owning friends from foreign lands, a quick overview of our constitutional law. It will not cover everything, nor should it. As far as I know, every State in the Union has its own constitution, and I simply have neither the time nor the requisite knowledge necessary to cover all of them adequately. With that said, let’s take a look: The United States Constitution: First of all, it’s important to understand that the U.S. Constitution isn’t just “a law.” It’s The Supreme Law of The Land: Quote:
Second, it’s important to understand what makes a law unconstitutional. When a law is invalidated as being unconstitutional, it means that a court has said that the law violates the constitution. That is, the law in question goes outside of the boundaries set by the Constitution. However, just because a state law or a state constitution isn’t exactly the same as the U.S. Constitution does not necessarily mean that it is unconstitutional. It may do things differently, so long as it does not conflict with federal constitutional or statutory law. For example, the Fourth Amendment to the United States Constitution reads as follows: Quote:
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But who decides if a law is unconstitutional? The short answer is: a court. Any federal court could declare a statute unconstitutional, but for purposes of dealing with the Second Amendment to the U.S. Constitution, the only one we’re really concerned about is the Supreme Court of the United States, SCOTUS. Why? Because that’s the one with precedential authority over all other courts. The Seventh Circuit Court of Appeals, for example, recently found an Illinois statute unconstitutional. What does that mean for residents of Missouri? Not much. A federal court in Missouri certainly may look at the Seventh’s decision, and consider it as persuasive authority. It is not binding, though. Missouri is in the Eighth Circuit, so it is not bound to follow the Seventh’s decisions. A decision by SCOTUS, though is binding. All of the state courts, all of the federal courts and all of the federal courts of appeal are required to follow SCOTUS’ decisions on federal law. Getting to SCOTUS isn't as easy as just "takin' it all the way to the Supreme Court," though. You have to get there by the right path, under the right laws. More on that is covered under "Incorporation and Litigation Matters," below. Now let’s take a look at our basic constitutional structure. The U.S. Constitution is divided into two parts. The first part consists of the Articles, and the second part is made up of the Amendments. I’ll take each in turn. Articles: There are seven Articles to the U.S. Constitution. I have no intention of examining each and every one in depth, but taking a look at the first three is useful. These provide the grants of power to each of our three branches of government: Congress, the Presidency, and the Judiciary: Quote:
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In phrasing the Articles in this way, the Founding Fathers stated what the branches of government would be, and what powers they were to have. As noted above, the Founding Fathers also made it very clear that any laws passed by the federal government were to be superior to state laws. (As an interesting aside, I believe that there was some debate at the constitutional convention as to whether to begin the document with “We the States,” or “We the People.”) Amendments: Article V of the U.S. Constitution provides for amendments: Quote:
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I don’t want to go down through all of the Amendments, or even all ten of the Bill of Rights, but there is one later Amendment that has to be mentioned in this: the Fourteenth Amendnent. In particular, the Due Process Clause of the Fourteenth Amendment. Quote:
For example, the Fifth Amendment says: Quote:
The self-incrimination clause, on the other hand, has been incorporated to the states. “We hold today that the Fifth Amendment's exception from compulsory self-incrimination is also protected by the Fourteenth Amendment against abridgment by the States.” Malloy v. Hogan, 378 U.S. 1, 6, 84 S. Ct. 1489, 1492, 12 L. Ed. 2d 653 (1964). So what does all of that mean for us at The Firing Line? Clearly, we’re most concerned with the Second Amendment. That one is currently in what I would call a “formative phase,” in that it is only recently that the U.S. Supreme Court has declared that: Quote:
The “incorporation” mentioned above means that the 2A is now applicable to the States, which SCOTUS had never before held. Incorporation & Litigation Matters: Now that we have an idea of how the Constitution works, and how its provisions are extended to state and local government, there's one important caveat. As Frank Ettin notes below, the scope of the US Constitution is limited to regulating governmental relationships, such as between the federal government and the States, or as between the government and the governed. The Constitution does not, in and of itself, regulate conduct as between non-governmental entities or persons: Quote:
With that in mind, and turning back to governmental affairs, for those of you that may wonder how it is that America came to have such a complex patchwork of firearms laws, well, it’s because incorporation doesn’t happen all at once. We have 1 Federal Constitution, 50 State Constitutions and the District of Columbia, which is an odd beast all its own. Each State is considered to be a sovereign all its own. Each State has its own judicial system, and its own highest appellate court. That highest appellate court in each state is considered to be the final authority on what state law means, as long as that state law doesn’t conflict with federal law or the U.S. Constitution. Before the Second Amendment was held to apply to the States, there was no real possibility of conflict with the federal 2A, because the federal 2A didn’t apply to a state law! Accordingly, each and every state was pretty much free to craft its own firearms law as it saw fit, as long as the law in question complied with the appropriate state constitution. In 2010, SCOTUS changed that by incorporating the 2A, and now we're in the process of figuring out exactly what that means for the 50 States. For 219 years, the States did not have to worry about what the 2A meant, because it didn't apply to them. Up until the 2A was held to be incorporated to the States in McDonald, it would have been extremely difficult, if not impossible, to challenge State law in the federal courts. What, then, could be challenged? Well, U.S. v. Miller, 59 S.Ct. 816 (1939), was a challenge to the National Firearms Act of 1934 (NFA). So you could challenge the NFA. You could challenge any of federal firearms laws under federal question jurisdiction, but that was about it. Most firearms laws are state laws. Remember that I said that every State has its own highest court? Well, that highest court in each state is the final arbiter of what that state's laws mean, as long as they don't run afoul of federal law. If the State's highest court interpreted a law in a way that didn't conflict with federal law, then there was no reason for a federal court (being courts of limited jurisdiction, as explained below), even SCOTUS, to hear a purely state-law case. And since the 2A didn't even apply to state laws, there was never any reason for the States' highest courts to even consider whether one of their firearms laws might have violated the 2A. What’s more, federal courts are courts of limited jurisdiction. There are a couple of different kinds of courts, but the ones we’ve been concerned about in 2A litigation are “Article III courts.” They’re formed under Article III of the U.S. Constitution, and they only have jurisdiction in a limited set of circumstances: Quote:
1) There must be a “case or controversy.” Our courts do not issue advisory opinions. If there’s not an actual dispute, the case will be dismissed. 2) If there’s a question of federal law, a federal court may take jurisdiction. This is called “federal question.” There are several bases for a federal court to take jurisdiction, but this is the one we really need for 2A litigation. Now that the 2A has been incorporated, state laws may be challenged on 2A grounds. Wahoo! As I mentioned above, SCOTUS is the “big dog” on the federal constitution, and its decisions are the ones that really count. So how does one get to SCOTUS? In civil litigation, there are basically two paths: 1) Start a challenge in state court, run it all the way up to the highest appellate court in the state, then try to take an appeal to SCOTUS. SCOTUS still has to have a basis for accepting the appeal, though. 2) Start a challenge in federal court, appeal up through the Circuit Courts of Appeal, and then up to SCOTUS. Assuming that a 2A case gets to SCOTUS, there are several different analyses the Court could perform. In Heller v. DC, the Court performed an analysis based on the text and history of the 2A. In my opinion, that is something of an anomaly. In most constitutional litigation, when SCOTUS reviews a law, one of the first steps that it will take is determining what level of scrutiny will be applied to the analysis. As of this posting, no particular level of scrutiny has been announced for 2A cases. For future reference, there are in general three levels of scrutiny: 1) Strict Scrutiny: Quote:
2) Intermediate Scrutiny: Quote:
3) Rational Basis: Quote:
Technically, & I may be wrong here, I think you can get to SCOTUS by either appeal or writ of certiorari. I have not studied this part of the law enough to speak definitively on the intricacies. What I do know is that SCOTUS is not required to grant either. Regardless of which path is taken, SCOTUS can simply decline to hear the case, effectively affirming a lower court’s decision. I realize that this primer really doesn’t tell the reader much about the specifics of gun laws. However, it is my hope that those newcomers that I mentioned at the beginning have a slightly better understanding of our Constitution and the interaction between federal constitutional law and our state laws.
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I'm a lawyer, but I'm not your lawyer. If you need some honest-to-goodness legal advice, go buy some. Last edited by Spats McGee; February 20, 2013 at 08:56 AM. Reason: Grammar & Clarity |
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February 1, 2013, 08:35 PM | #2 |
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Thanks Spats. Now I have an idea how New Jersey gets away with its draconian firearms laws. All we need now is someone with the time and money to challenge it since the decisions of McDonald.
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February 1, 2013, 08:56 PM | #3 |
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Spats,
Very well done and thank you for this outstanding contribution. I would add one thing: The Constitution regulates the conduct of government, not that of private persons or entities. Nothing the corner store, you [non-governmental] landlord or your [non-governmental] employer might do (even if illegal for other reasons) can be unconstitutional, because their conduct is not subject to the Constitution.
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February 1, 2013, 09:02 PM | #4 |
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Good point, Frank. I'll add it to the original post by shamelessly copying and pasting your words.
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February 1, 2013, 09:23 PM | #5 | |
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It should be "your [non-governmental] landlord" NOT "you [non-governmental] landlord." Someday I might even learn to type (proofread?). ETA: Never mind, I just did it.
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February 3, 2013, 12:32 PM | #6 | |
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There is a question I have always had about the 14th amendment, and I hope that one of the obviously smart legal thinkers here might enlighten me.
The privileges and immunities clause of the 14th seems to establish automatic incorporation at the time it was ratified. The plain English of the amendment seems to say that the states are not allowed to make or enforce any law which abridges the rights of a citizen. Quote:
I would bet that the body politic that approved the 14th fully expected that it would forever prevent state governments from infringing on the rights of citizens as delineated in the bill of rights. If I had been a state legislator in 1868 who voted in favor of the 14th, I think I would have felt cheated. After all, the amendment could have been phrased as follows: "...State are permitted to make or enforce laws which may abridge the privileges or immunities of citizens of the United States, until such time that courts decide they cannot."..... But that is NOT what the 14th says. And yet, the courts have behaved as if this retarded wording is exactly what the 14th says. Obviously I am wrong, because the courts have been applying incorporation on a case by case basis for the last 150 years... So what am I missing? Jim Last edited by btmj; February 3, 2013 at 12:37 PM. |
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February 3, 2013, 01:10 PM | #7 |
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To understand what happened, you really have to read and understand what the Supreme Court did in The Slaughterhouse Cases.
This was a case decided back in 1873 that eviscerated the PorI clause of the 14th. Alan Gura tried to reinvigorate that clause in the McDonald case, but was unsuccessful. The only Justice that agreed with Gura was Justice Thomas. |
February 4, 2013, 03:27 PM | #8 | |
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With that said, my gut reaction to your question is this: Our courts do not issue advisory opinions. That means that a court is bound to answer the question before it, and nothing more. For example, if my question is, "Does Statute #12345 violate the Second Amendment to the United States Constitution?," there is no reason for SCOTUS to even examine the Fourth Amendment. Accordingly, it cannot, and will not, decide whether Statute #12345 is implicated by the A4.
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February 4, 2013, 05:20 PM | #9 | |
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February 4, 2013, 07:51 PM | #10 |
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Great thread. Very good explanation that is broken down to give a basic understanding.
As to PI vs. due process clause for incorporation. Another good read is Justice Thomas' concurrence in Mcdonald. I happen to agree with Justice Thomas but the rest of the court does not. If the Supreme Court didn't take the opportunity and overrule slaughterhouse when it decided Mcdonald it probably never will. Substantive due process has become so much a part of our jurisprudence that it isn't going anywhere. Like it or not the court doesn't want to open up pandora's box with the PI clause. Another good read is Nunn v. State, 1 Ga. 243 (1846). In that case the Georgia Supreme Court held the Second Amendment applicable to the state. The reasoning it used reads a lot like "scheme of ordered liberty." |
February 4, 2013, 08:15 PM | #11 |
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Yes Tom, it did overturn Dred Scott. But that's not why the Court was infuriated.
The 1832 case of Barron v. Baltimore, the Court ruled that the Bill of Rights was codified against the Federal Government only and did not restrict the States, whatsoever. It should be understood that the phrase, "Privileges and/or Immunities," was a term of art to describe both political and natural rights (in that order). The 14th Amendment was designed to not only overturn Barron, but also include and incorporate all the Privileges or Immunities (of a US Citizen) as against the States and local governments. In doing this, it completely re-ordered the nature of federalism. That is what stuck in the craw of the Court. By the way, for those of you that are so afraid that a newer (more liberal) Court would perhaps overturn the 5-4 Heller decision... Slaughter-House was a 5-4 decision that has been upheld as recently as the McDonald decision. Justice Thomas was the only Justice to side with Alan Gura in reinvigorating the P or I Clause of the 14A. |
February 4, 2013, 10:41 PM | #12 |
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Ah yes, I'd forgotten Barron.
McDonald was initially about a much larger issue than gun rights, and Thomas eloquently argued that it should have been. I was very saddened to see how quickly Scalia dismissed Gura's argument to that end in the orals.
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February 5, 2013, 12:21 AM | #13 |
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Thanks for taking the time to educate me on this.
(sigh) all those legislators back in 1874 should have passed ANOTHER amendment: " No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States, or citizens of their own state, or citizens of other states. These privileges and immunities shall include all natural rights which are identified, delineated, inferred, referenced, induced, or deduced by or within the United States constitution and all of its amendments, including future amendments. Just to be clear for the 9 clowns who screwed up the 14th amendment, this means that the restrictions on federal government contained in the first 9 amendments are fully applicable as restrictions on state and local governments as well. The courts shall swallow their pride, get over it, and quit screwing around with the plain language of the peoples amendment." |
February 5, 2013, 06:25 AM | #14 | ||
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Quote:
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February 5, 2013, 01:00 PM | #15 |
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Clarence Thomas is quite clearly my favorite Supreme Court Judge.
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February 6, 2013, 01:29 PM | #16 |
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I believe Justice Thomas is becoming one of the great justices.
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February 21, 2013, 03:23 PM | #17 |
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Great thread, thanks.
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February 22, 2013, 02:38 PM | #18 |
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Well done.
Personally, when discussing 2nd A issues, I always summarize the Constitution as being about power: who has power over what functions of gov't and what the limits of those powers are. I then point out that the Amendments are about the limits of those powers in regards to the citizens and what powers the citizens can hold. I then point out that in this context, the 2nd amendment was never about hunting or sports; it's about power. Ultimately, Mao was right; power does come from the barrel of a gun. It might be a bit uncomfortable to think that the Constitution has built in a citizen-operated 'kill switch' in case of bad governance, but it's also comforting to think that the smartest guys in the room back in 1787 also thought that they might not be smart enough to have made a constitution that would effectively check/balance the rise to tyrannical power of the Federal government.
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June 11, 2013, 09:36 PM | #19 |
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Spats this is wonderful.
If Spats has perked your ears to things of a constitutional nature be sure to pick up a copy of The Constitution of the United States of America and Selected Writings of the Founding Fathers. It can be purchased at Barnes and Noble. Great way to experience the constitution from the men who founded this country and in their own words no less. |
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