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Old January 12, 2019, 03:59 PM   #1
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How did the states hijack the Constitution?

The Constitution plainly tells us that enumerated rights are under federal purview while the unenumerated ones are under the state's purview. So, how did the states seize control of the Second Amendment by requiring permits and such?

I know about the black codes during reconstruction but how did that morph into the mess we have today?
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Old January 12, 2019, 08:01 PM   #2
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IMO, basically the Courts refusing to protect the right due to the state militia debate, judges not seeing many restrictions as a violation of the right to self-defense, and not enough people resisting. For example, many see the idea of the Second Amendment as protecting an individual right as wrong, that it was about state militias. So they see no problems with bans on guns period. In addition, IMO, I think many judges as well don't buy into the resistance to tyranny argument and don't see it that they are really infringing on anybody's right to self-defense by banning things like "assault weapons" or even semiautomatic rifles and guns period, because as they see it, bolt-action rifles and pump-action shotguns are plenty enough for self-defense. Finally, so long as the politicians pass these laws and the courts uphold them and the SCOTUS refuses to hear them (and that's provided it would strike them down even if it did), if the people en masse do not rise up against them, then the politicians do not feel pressured.

I believe the media, being mainly supportive of gun control, also plays a part. If these various gun control laws and attempts as such were say instead laws restricting things the media cares about (won't give any specific examples to avoid politics, but you can figure them), you would see I think MASSIVE amounts more coverage about the "horrible" laws being put into place restricting "X" right. But you don't see that with gun control.

For example, the recent ballot measure restricting guns highly in Washington state. The media didn't really cover it, and to any extent they did, they were generally supportive. But if they were instead as against gun control as they would be restrictions on rights they care about, the national media would've been talking nightly about how Washington is trying to pass a misleading ballot measure to destroy gun rights in the state, yada yada.
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Old January 13, 2019, 07:36 AM   #3
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Originally Posted by dfwkid View Post
The Constitution plainly tells us that enumerated rights are under federal purview while the unenumerated ones are under the state's purview. So, how did the states seize control of the Second Amendment by requiring permits and such?

I know about the black codes during reconstruction but how did that morph into the mess we have today?
The states did not "hijack the Constitution." The 2A was only recently incorporated to the States. If you don't understand what that means, please go here: Spats McGee’s Federal Constitutional Primer
I'm a lawyer, but I'm not your lawyer. If you need some honest-to-goodness legal advice, go buy some.
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Old January 13, 2019, 10:32 AM   #4
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Originally Posted by dfwkid
The Constitution plainly tells us that enumerated rights are under federal purview while the unenumerated ones are under the state's purview.
That isn't what the Constitution is telling you.

The rights one holds against the federal government are no enumerated; the powers of the Federal government are. That is the structure of legally limited federal government.

State powers are not merely the enumerated ones. The rights an individual holds against the state are enforced against a context of a state's general police power.
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Old January 13, 2019, 12:43 PM   #5
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Amndm't 10:
"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."

postscript: ". . . or to The people." It does make for in interesting reflection back
upon the 2nd -- which was one of the few specifically directed to . . . The People . . . .

but I digress . . .

Last edited by mehavey; January 13, 2019 at 12:55 PM.
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Old Yesterday, 01:06 PM   #6
Frank Ettin
Join Date: November 23, 2005
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Originally Posted by dfwkid
The Constitution plainly tells us that enumerated rights are under federal purview while the unenumerated ones are under the state's purview. So, how did the states seize control of the Second Amendment by requiring permits and such?.....
That's not really accurate.

I. The Relationship Between State and Federal Law
  1. Our's is a federal system. States are sovereign, political entities. At the time of the founding of our nation each State or Commonwealth effectively ceded some measure of sovereignty to join with the others to become the United States. How much sovereignty each would cede was a central issue in hashing out the Constitution. Our nation would not have come into existence had the States/Commonwealths not retained an acceptable degree of sovereignty.

  2. A fundamental attribute of government is what's known as police power:
    The inherent authority of a government to impose restrictions on private rights for the sake of public welfare, order, and security.
  3. The police powers of States are broad and general.

  4. However, as our federal government has been established under the Constitution the federal government has no general police powers. Instead, its powers are specifically described in the Constitution. So, for example, Congress only has the power to pass laws consistent with the specific powers granted to it under Section 8 of Article I of the Constitution (subject to certain limitations set out in Section 9 of Article I).

  5. That arrangement is acknowledged by the Tenth Amendment to the United States Constitution:
    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.
  6. Deciding whether a law or other act of the federal government is within its power.

    1. The first issue will be whether a law or act of the federal government is within a power granted to it by the Constitution. So for example, the scope of the power of Congress under the Commerce Clause to pass laws regulating marijuana has been defined and confirmed under a number of Supreme Court decisions, most recently Gonzales v. Raich, 545 U.S. 1 (2005).

    2. A second issue will be whether a particular federal law impairs rights protected under the Bill of Rights. However, the courts have ruled that some regulation of rights protected by the Bill of Rights is permissible.

    3. The Founding Fathers assigned to the federal courts the authority to decide what the Constitution means and how it applies to matters in controversy (Constitution, Article III, Sections 1 and 2):
      Section 1.
      The judicial power of the United States, shall be vested in one Supreme Court, and in such inferior courts as the Congress may from time to time ordain and establish. ...
      Section 2.
      The judicial power shall extend to all cases, in law and equity, arising under this Constitution,...

  7. Deciding whether a law or other act of a state government is within its power.

    1. While the police powers of a State are general and broad, each State/Commonwealth has its own constitution. A State's constitution may circumscribe powers of the State government and provide explicit protection of some rights.

    2. Since in the United States each State or Commonwealth has its own government in the form of a representative democracy, the people in each have the opportunity to influence what laws are adopted and how they are implemented.

    3. While the Supreme Court ruled in 1833 that the Bill of Rights did not apply to the States (Barron v. Baltimore, 32 U.S. (7 Pet.) 243 (1833)), some years following the adoption of the Fourteenth Amendment the doctrine evolved of applying some, but not all, of the rights enumerated in the Bill of Rights to the States on a piecemeal basis, using the Due Process Clause of the Fourteenth Amendment. Thus those enumerated rights found applicable to the State have also become limiting factor on the exercise by States of their police power.

    4. To the extent that the question of the validity of a state law raises an issue under the United States Constitution, the meaning and application of the Constitution is finally a matter to be decided by the federal courts.

  8. What about when there's federal law and state law on the same subject?

    1. The whole area of choice of law (where the laws of multiple jurisdictions could be applicable) is a huge, complex, and pretty much non-intuitive subject.

    2. In general federal law will supercede state law. See The Constitution of the United States, Article VI, Clause 2:
      This Constitution, and the laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every state shall be bound thereby, anything in the Constitution or laws of any State to the contrary notwithstanding.
    3. If the particular issue addressed by the state law is also addressed by the federal law, there's the question of whether the particular federal law was intended to "occupy the field", i. e., be the final word on the subject. In that case the federal law preempts the state law and applies instead of the state law.

    4. On the other hand, if a court decides that the federal law did not reflect an intent to occupy the field, in order to decide if federal law or state law applies a court will need to decide if the state law is consistent a federal policy concern or would, on the other hand, frustrate the federal policy furthered by the law. Or a federal law could be found to preempt state law if either expressly or by inference the federal law was intended to promote national uniformity with regard to a particular issue.

    5. Sometimes federal law will be explicit about how a conflict between federal law and state law is to be resolved. An example which comes immediately to mind involves the confidentiality of medical information regulation under HIPAA. Those regulations expressly provide that they don't supersede state laws to the extent providing greater protection of an individual's confidentiality interests. For another example, with regard to firearms regulation, federal law (the Gun Control Act of 1968) expressly doesn't preempt state laws. See 18 USC 927:
      No provision of this chapter shall be construed as indicating an intent on the part of the Congress to occupy the field in which such provision operates to the exclusion of the law of any State on the same subject matter, unless there is a direct and positive conflict between such provision and the law of the State so that the two cannot be reconciled or consistently stand together.
    6. Sometimes there's no conflict between federal and state laws. If something is a crime under federal law but not state law, the crime would be prosecuted by the federal government, and visa versa. An act that is both a federal and state crime can be prosecuted by either, or both, the state and federal governments.

II. Regulation of Constitutionally Protected Rights.
  1. The Supreme Court applied the Second Amendment to the States in McDonald v. Chicago, 561 U.S. 742 (2010). Therefore the citizens of every State are entitled to enjoy the RKBA to the extent required by the Constitution, and any regulation by a State of the RKBA must be limited in a manner which will pass constitutional muster. The uncertainty here is that Second Amendment jurisprudence is at its formative stage, and therefore the constitutional limits to the regulation of the RKBA are not at present well defined.

  2. Even though the Second Amendment now (since McDonald) is a limit on a State's power to exercise its police powers with respect to the regulation of the RKBA, it's well settled law that under certain circumstance and to some extent a constitutionally protected right may be regulated. What those circumstance might be and the nature and extent of permissible regulation will be worked out by the courts. To do so, a court will consider, among other things, the nature of the right, the nature of the regulation, and the governmental purpose intended to be served.

  3. For the purposes of illustration, let's consider the regulation of rights protected by the First Amendment. While the First Amendment protects freedom of speech, assembly and religion against laws that abridge those rights we know there has been a history of certain regulation of speech, assembly and religion. A few examples are:

    1. Various laws (both state and federal) prohibiting such things as false advertising, fraud or misrepresentation. There are also state and federal laws requiring certain disclosures in connection with various transactions, which are valid and routinely enforced even though such laws do impinge on the freedom of speech.

    2. If you are offering securities or certain other types of investments to the public, your written solicitation materials will have to first be approved prior to use by one or more regulatory agencies. If you are selling medicines in interstate commerce, your labeling will have to be approved in advance by the FDA, and you will have to have demonstrated, through hard, scientific data, that any claims or representations made are true. These are also laws that abridge freedom of speech, and yet they are regularly enforced.

    3. Laws respecting the time, place and manner of speech or assembly have also survived Constitutional challenges. Thus a municipality may require that organizers obtain a permit in order to hold an assembly or a parade and may prohibit such activities during, for example, the very early morning hours. Such regulations would be permitted only to the extent necessary to serve the compelling state interest of protecting public health and safety. Any such regulations, to be constitutionally permissible, could not consider the content of the speech or assembly; and they would need to be applied in an even handed manner based on set guidelines and not subject to the discretion of a public official. See, for example:

      1. Hill v Colorado, 530 U.S. 703, 120 S.Ct. 2480, 147 L.Ed.2d 597 (2000), in which the Court, in upholding a Colorado law restricting protesting, educational or counseling activities within 100 feet of the entrance to a health facility, noted:
        ...We are likewise persuaded that the statute is "narrowly tailored" to serve those interests and that it leaves open ample alternative channels for communication. As we have emphasized on more than one occasion, when a content-neutral regulation does not entirely foreclose any means of communication, it may satisfy the tailoring requirement...
        1. Cf. McCullen v. Coakley (U. S. Supreme Court, No. 12–1168, 2014)

        2. In McCullen the Court struck down a new Massachusetts "buffer zone" law. As noted in the opinion the Court had previously sustained a different sort of buffer zone law in Colorado, and nothing in McCullen casts any doubt on the continued validity of the Colorado law (McCullen, slip opinion at 2):
          ….The statute [the prior Massachusetts law] was modeled on a similar Colorado law that this Court had upheld in Hill v. Colorado, 530 U. S. 703 (2000). Relying on Hill, the United States Court of Appeals for the First Circuit sustained the Massachusetts statute against a First Amendment challenge. McGuire v. Reilly, 386 F. 3d 45 (2004) (McGuire II), cert. denied, 544 U. S. 974 (2005); McGuire v. Reilly, 260 F. 3d 36 (2001) (McGuire I).

          By 2007, some Massachusetts legislators and law enforcement officials had come to regard the 2000 statute as inadequate.....

      2. Santa Monica Food Not Bombs v. Santa Monica, 450 F.3d 1022 (9th Cir., 2006) in which the court upheld a Santa Monica ordinance requiring a permit for public assemblies. In fact in Santa Monica Food Not Bombs the court specifically acknowledges that the ordinance may burden the protected right, noting, at pg 1038:
        ...A narrowly-tailored permitting regulation need not be the least restrictive means of furthering a locality's asserted interests. The regulation may not, however, burden substantially more speech than necessary to achieve a scheme's important goals. See United States v. Baugh, 187 F.3d 1037, 1043 (9th Cir.1999). "[T]he requirement of narrow tailoring is satisfied `so long as the . . . regulation promotes a substantial government interest that would be achieved less effectively absent the regulation.'" Ward, 491 U.S. at 799, 109 S.Ct. 2746 (quoting United States v. Albertini, 472 U.S. 675, 689, 105 S.Ct. 2897, 86 L.Ed.2d 536 (1985))...

    4. In the leading case on prior restraint (Near v. State of Minnesota, Olson, 283 U.S. 697, 51 S.Ct. 625, 75 L.Ed. 1357 (1931)) the Court in striking down a Minnesota statute allowing for the abatement, as a public nuisance, of malicious, scandalous and defamatory news analyzed in considerable detail and depth the scope and extent of the infringement of the freedom of press, the interests served and the availability of other and narrower remedies. And the Court then reached the conclusion that the statute went too far to be a permissible regulation.

      But nonetheless the Court also noted that certain interests, under certain circumstances would justify even prior restraint (Near, 283 U. S. 657, at 715 - 716):
      ...The objection has also been made that the principle as to immunity from previous restraint is stated too broadly, if every such restraint is deemed to be prohibited. That is undoubtedly true; the protection even as to previous restraint is not absolutely unlimited. But the limitation has been recognized only in exceptional cases. 'When a nation is at war many things that might be said in time of peace are such a hindrance to its error that their utterance will not be endured so long as men fight and that no Court could regard them as protected by any constitutional right.' Schenck v. United States, 249 U. S. 47, 52, 39 S. Ct. 247, 249, 63 L. Ed. 470. No one would question but that a government might prevent actual obstruction to its recruiting service or the publication of the sailing dates of transports or the number and location of troops.6 On similar grounds, the primary requirements of decency may be enforced against obscene publications. The security of the community life may be protected against incitements to acts of violence and the overthrow by force of orderly government. The constitutional guaranty of free speech does not 'protect a man from an injunction against uttering words that may have all the effect of force. Gompers v. Buck's Stove & Range Co., 221 U. S. 418, 139, 31 S. Ct. 492, 55 L. Ed. 797, 34 L. R. A. (N. S.) 874.' Schenck v. United States, supra. These limitations are not applicable here. Nor are we now concerned with questions as to the extent of authority to prevent publications in order to protect private rights according to the principles governing the exercise of the jurisdiction of courts of equity...
    5. In the past, laws prohibiting polygamy have been upheld against challenges that they violate the right to free exercise of religion (Davis v. Beason, 133 U.S. 333, 10 S.Ct. 299, 33 L.Ed. 637 (1890)).

  4. So in fact the reality is that rights protected by the Constitution may nonetheless be subject to some limited regulation. The foregoing discussion of First Amendment jurisprudence serves the limited purpose of demonstrating that the courts do permit limited regulation of a constitutionally protected right. There are numerous examples of laws sustained by the courts which abridge freedom of speech, freedom of assembly, freedom of association, and freedom of religion. And First Amendment jurisprudence also offers some clues as to how such regulations will be evaluated by the courts.

  5. We can not expect, nor will we see, perfect correspondence between the regulation of rights protected by the First Amendment and the regulation of rights protected by the Second Amendment. First Amendment jurisprudence is quite mature at this point, but Second Amendment jurisprudence, in the wake of Heller, is in its infancy. However, we can expect some regulation of Second Amendment rights to be upheld by the courts.
"It is long been a principle of ours that one is no more armed because he has possession of a firearm than he is a musician because he owns a piano. There is no point in having a gun if you are not capable of using it skillfully." -- Jeff Cooper
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