A question about the 2nd amendment vs. the 10th amendment.

[MisterChester]

I was having a discussion at work with a coworker about how all the states can have different gun laws, obviously some lax and some draconian. What I couldn't say was how the more anti-gun states are able to pass such laws that don't interfere with the 2nd, so I just assume it had to do with the 10th amendment. INGO, what is, plain and simply, allowing states to have strict gun laws? Am I right about the 10th amendment or am I missing something? I'm looking for the legal arguments more so than the "they are just unconstitutional" which is the obvious.

 

[Kutnupe14]

You're pretty much right. In practice I'm a number of states, prior to incorporation, states would pass laws that directly contradicted the Constitution. The justification, was that the BoRs only restricted federal, not state, power. The USSC has been very reluctant to demand uniformity, as different states have populaces with different opinions, and the 10th Amendment kinda throws a wrench in the works. Some might see this as bad, so far as gun rights, but overall, it's a very very good thing.

 

[MisterChester]

You're pretty much right. In practice I'm a number of states, prior to incorporation, states would pass laws that directly contradicted the Constitution. The justification, was that the BoRs only restricted federal, not state, power. The USSC has been very reluctant to demand uniformity, as different states have populaces with different opinions, and the 10th Amendment kinda throws a wrench in the works. Some might see this as bad, so far as gun rights, but overall, it's a very very good thing.

It's a very interesting topic to say the least. I mean, if federal law trumps state law (especially something in the BoR), and the states go against something that integral in our most important document, doesn't that leave an impression that they are questioning that authority? I think that justification is moot, since that could also say the states have the power to restrict your 1st amendment rights because the BoR applies only to the federal government.

 

[CathyInBlue]

You're forgetting the 14th, which demanded uniformity as far as the BoR is concerned, or at least raised the floor of uniformity.

 

[Expat]

SCOTUS had never incorporated the 2nd Amendment against the states until Heller. So at this point, there MAY be a lot of laws on the books that are unconstitutional, but we won't know until they (or similar laws) are tested.

 

[Kirk Freeman]

SCOTUS had never incorporated the 2nd Amendment against the states until Heller

McDonald: McDonald v. Chicago - Wikipedia, the free encyclopedia

Mister, a fundamental constitutional right is at issue, the 10th Amendment is not at issue.

Start with incorporation: Incorporation of the Bill of Rights - Wikipedia, the free encyclopedia

Some states can have strict gun laws because the courts have not been asked to rule upon them as Expat stated.

 

[Expat]

I stand corrected. Heller was strictly a Federal matter since he was a DC resident.

 

[Kirk Freeman]

Expat, right you are.

OP, anti-gun states are allowed to get away with it as they are not challenged. The Supreme Court does not operate as some sort of flying squad, karate chopping legislatures that think about unconstitutional laws.

Rather cases and controversies are brought to them and then they decide, first if they hear the case, then if there is standing, then if something is unconstitutional.

A good analogy as to what is transpiring now is the First Amendment. It was decades before the First Amendment was acknowledged as existing.

Here's a good case to read: Gitlow v. New York - Wikipedia, the free encyclopedia

Believe it or not but before 1925 the First Amendment was not held to apply to the states. Yes, that's right, go back and read the cite again.

 

[jwh20]

The US 2A aside, many states, Indiana included, have arms-related amendments in their own constitutions. For example, IN says:

Section 32. The people shall have a right to bear arms, for the defense of themselves and the State.

Seems to me to be much clearer than the US 2A since it lacks the militia clause. But not all states have such clear language. But, as I recall someone else pointing out, some of the newly enacted laws in anti-gun states violate their own state constitutions and should be challenged on that basis as well.

 

[SteveM4A1]

Interestingly, our state's constitution doesn't say we can keep them. You can carry them, but not have them haha.

 

[jwh20]

Interestingly, our state's constitution doesn't say we can keep them. You can carry them, but not have them haha.

True but as I read it, bear implies keep but keep does not imply bear. Subtle point that I'm sure the authors of the IN Constitution discussed. In many anti-gun places like NYC or DC, you can "keep" a firearm but you cannot bear it. So the effect is to nullify the right without actually banning it. The anti's are very sneaky that way.

 

[MisterChester]

Expat, right you are.

OP, anti-gun states are allowed to get away with it as they are not challenged. The Supreme Court does not operate as some sort of flying squad, karate chopping legislatures that think about unconstitutional laws.

Rather cases and controversies are brought to them and then they decide, first if they hear the case, then if there is standing, then if something is unconstitutional.

A good analogy as to what is transpiring now is the First Amendment. It was decades before the First Amendment was acknowledged as existing.

Here's a good case to read: Gitlow v. New York - Wikipedia, the free encyclopedia

Believe it or not but before 1925 the First Amendment was not held to apply to the states. Yes, that's right, go back and read the cite again.

Thanks for clearing that up for me, Kirk. It sure is nice to have lawyers on here to explain stuff like this!

 

[SteveM4A1]

True but as I read it, bear implies keep but keep does not imply bear. Subtle point that I'm sure the authors of the IN Constitution discussed. In many anti-gun places like NYC or DC, you can "keep" a firearm but you cannot bear it. So the effect is to nullify the right without actually banning it. The anti's are very sneaky that way.

I agree. Just had never noticed it before in Indiana's Constitution

 

[Kirk Freeman]

Many states use "bear" instead of "keep and bear".

FWIW, the English Bill of Rights uses "have" so if you go to the source it includes both keep and bear.

Think about it, could one "bear" and arm if he could not "keep" it?

 

[CathyInBlue]

People use the absence of "bear" to claim you can't "have" it while you're in public, but just in your private domecile. People use the absence of "keep" to say you can't have it in your private domecile, and if you want to take it out in public (to one of an extremely short list of pre-approved venues for one of an extremely short list of pre-approved purposes), you have to go to a government arsenal where they "keep" your private property so as to dole out access to it to you as they see fit.

Both of those minimalist views of firearms rights are erroneous.

 

[squirrelhntr]

Both of those minimalist views of firearms rights are erroneous.


Yes, The BOR isn't up for a political debate.

 

[KW730]

Both of those minimalist views of firearms rights are erroneous.


Yes, The BOR isn't up for a political debate.

It is, it just requires a 2/3 majority to overturn.

 

[squirrelhntr]

It is, it just requires a 2/3 majority to overturn.

I've always believed, IMO. If you can not live with the 2nd Amendment as it is written. You have the right move to a place that does not give it's citizen's any rights. I always thought the 2nd Amendment was an American's birth right, and not just another law ? The same as if you wanted your kid to be taught the Catholic religion you send them to a privately funded Catholic school. You want him or her not to be around armed folks you send them to a privately funded no gun zone school. Does that make sense ?

 

[KW730]

I've always believed, IMO. If you can not live with the 2nd Amendment as it is written. You have the right move to a place that does not give it's citizen's any rights. I always thought the 2nd Amendment was an American's birth right, and not just another law ? The same as if you wanted your kid to be taught the Catholic religion you send them to a privately funded Catholic school. You want him or her not to be around armed folks you send them to a privately funded no gun zone school. Does that make sense ?

Not really. The right to protect your life doesn't come from a country or a document, it's inherent. Law allows for the repeal of constitutional amendments if that repeal is ratified by 2/3rds of the states. If you can not live with that it seems you have a right to move to another place.

 

[squirrelhntr]

Not really. The right to protect your life doesn't come from a country or a document, it's inherent. Law allows for the repeal of constitutional amendments if that repeal is ratified by 2/3rds of the states. If you can not live with that it seems you have a right to move to another place.

I always thought that I was born in a country that had a document that makes it inherent that I could protect myself and family by being armed ? I guess that can also be removed with a 2/3rds vote.