States Rights

[DaveTN]

Contrary to what they are teaching in some schools now, we fought a war over that…. Remember.

I see a lot of talk over federal carry laws. I think this would be a good way to get around the 2nd amendment battle that as been going on for all of ours lives.

The obvious problem I see is States Rights. What do you guys think?

(Note: if you are going to argue individual rights trump states rights you have to make that argument with a right that is recognized as an individual right.)

[Guest Len]

Hmmm...

And the "states rights" side lost that war as I recall...

(sorry, just being annoying -its what I do)

Anywho...

I'm no expert on the constitution, but as I see it, there is a clause therein that pretty much says "if in this document we don't give a specific power to the federal govt, then it is reserved for the states." And there is a provision in the constitution recognizing a RTKBA. So, I suppose there could be an argument made that gun issues are federal issues since it is specifically addressed in the constitution.

On the other hand, it is pretty much a given that any state constitution that bestows more or greater rights on individuals than the federal constitution does wins out over the federal. We opt for the side of more individual rights.

And on the third hand, we have the issue of interstate commerce, something clearly regulated at the federal level (its pretty much one of the reasons we even have a federal level). Over the centuries, what constitutes "interstate commerce" has been pretty broadly interpreted, and so since arms are manufactured, shipped and used over state lines, there is a federal role to play.

So, I'm going to have to say that there is a federal-level issue in play here, and the 2A seems to recognize the RTKBA by individuals. The key becomes what power, if any, the 2A gives federal (and/or state) govts the right to regulate keeping and wearing arms. (Does "well-regulated" mean "federal laws can rightfully interpret the RTKBA" or does "well-regulated" mean "well-drilled, skilled, and practiced?")

I'm not knowledgeable enough to answer that question, but I will see a federal-level carry rule (reciprocity) would be convenient, allow some degree of consistency nation-wide and can probably be narrowly-written to not infringe on individual state's rights.

[Guest crytes]

I interpet the second amend ment in a way that makes gun control laws appear illegal. I base my interpitation on the sentence structure used. "A well regulated Militia,"Only refers to the milita being regulated and could you call it a militia if it wasn't regulated or strutured? "being necessary to the security of a free State," The ability to form a malitia is what is being refered to as nesisary for said security of a free state "the right of the people to keep and bear Arms, shall not be infringed." Being that you can't very well form a militia unarmed and being that a the abilaty to form a militia in nessisary to security of a free state, the people must be allowed to bear arms. Also they used the word right, but both the federal and state regulate weapons as if it's a privilage. And everyone who's been in drivers training knows the difference between a right and a privilage. my point is anything that gives us less hassle from enforcement agents for exersizing our rights is a good thing, but I wont be happy until the federal goverment realizes their mistake and abolishes all their illegal firearms regulation and and rule that the states right to regulate weapon is nonexistant starting whith the second amendment.

Crytes

[towerclimber37]

I guess it would have been more clear if the framers of the constitution just said "and the right of the People to bear arms in order to overthrow their own government in the event that it becomes too oppressive and passes too many useless laws that benefit the few instead of the many"..or something along those lines.

but they didn't.

[The Rabbi]

We still live under a Federal system where states maintain many powers of governance. Thus Pres Bush had to wait for a specific request from Louisiana before he could send National Guard troops etc.

But the Fed has lots of ways to enforce its will. Why is the drinking age universally 21? It is because the Fed threatened states' highway funds unless they raised it.

I am opposed to a Federal carry because it will come out at the lowest common denominator, i.e. the most restrictive that everyone can agree on. I am fanatically in favor of forced reciprocity, so a state must recognize another state's carry permit, regardless of what they themselves do. There is legislation pending to do exactly that btw.

[Guest crytes]

But then drinking what ever the age was never established as a right so legally ther is nothing wrong with the goverment either state or federal to regulate it as a priviledge. The RIGHT to bear arms on the other hand is just that a right, and what more one of the 10 base laws that this contry was founded on protects us from the impeadment of that right. So the federal goverment pushing the drinking age is not a fair example tho this law may be treated the same.

Crytes

[The Rabbi]

But then drinking what ever the age was never established as a right so legally ther is nothing wrong with the goverment either state or federal to regulate it as a priviledge. The RIGHT to bear arms on the other hand is just that a right, and what more one of the 10 base laws that this contry was founded on protects us from the impeadment of that right. So the federal goverment pushing the drinking age is not a fair example tho this law may be treated the same.

Crytes

Huh?

The right to vote is given explicitly, but don't try to vote if you're 16 years old, or a convicted felon, or in this country on a green card. There is some debate as to whether the 2nd applies to states anyway.

I bring up the drinking example as a way the Fed gov't imposes it's will on states regardless of states' rights. The late 55 MPH speed limit was another one.

[DaveTN]

Hmmm...

And the "states rights" side lost that war as I recall...

(sorry, just being annoying -its what I do)

Anywho...

I'm no expert on the constitution, but as I see it, there is a clause therein that pretty much says "if in this document we don't give a specific power to the federal govt, then it is reserved for the states." And there is a provision in the constitution recognizing a RTKBA. So, I suppose there could be an argument made that gun issues are federal issues since it is specifically addressed in the constitution.

On the other hand, it is pretty much a given that any state constitution that bestows more or greater rights on individuals than the federal constitution does wins out over the federal. We opt for the side of more individual rights.

And on the third hand, we have the issue of interstate commerce, something clearly regulated at the federal level (its pretty much one of the reasons we even have a federal level). Over the centuries, what constitutes "interstate commerce" has been pretty broadly interpreted, and so since arms are manufactured, shipped and used over state lines, there is a federal role to play.

So, I'm going to have to say that there is a federal-level issue in play here, and the 2A seems to recognize the RTKBA by individuals. The key becomes what power, if any, the 2A gives federal (and/or state) govts the right to regulate keeping and wearing arms. (Does "well-regulated" mean "federal laws can rightfully interpret the RTKBA" or does "well-regulated" mean "well-drilled, skilled, and practiced?")

I'm not knowledgeable enough to answer that question, but I will see a federal-level carry rule (reciprocity) would be convenient, allow some degree of consistency nation-wide and can probably be narrowly-written to not infringe on individual state's rights.

Interesting ideas.

Since nine of the eleven Federal District Court of Appeals has either ruled that the 2nd is not an individual right or have indicated they would rule that way, and the Supreme Court has not yet addressed the issue; can we (for the sake of this issue) agree that the 2nd would not be a compelling argument? Plus the 2nd amendment legal battles have been going on for well over 50 years and most of us don’t have another 50 left in us?

Tennessee’s state Constitution gives lawmakers as much freedom or restriction as they like. But that doesn’t help with you carrying a firearm in another state.

The interstate commerce idea is interesting. But groups have been trying to get a Federal Vehicle Code for ever; it hasn’t happened yet.

As far as the idea of being “narrowly-written to not infringe on individual state's rights†I’m not sure how that would work with states like Illinois and Wisconsin that do not allow their citizens to carry at all; there are no carry permits.

[Guest Len]

As far as the idea of being “narrowly-written to not infringe on individual state's rights†I’m not sure how that would work with states like Illinois and Wisconsin that do not allow their citizens to carry at all; there are no carry permits.

I think this could relate back to interstate commerce. If I'm traveling from state "A" to state "B" and carrying while doing so, I could be seen as being involved in interstate commerce (I need to stop to eat, buy gas, visit tourist attraction, otherwise spend money, etc.) and so would be subject to federal, not state, laws. The constitution gives the federal govt the right to regulate interstate commerce. Some sort of commerce-based reciprocity law would not then violate state's rights. I must agree I'm really pushing the envelope with this argument, but why not for the sake of discussion?

You point works the other way too. If I'm Tennessee, I would not be happy accepting concealed carry permits from some states (Alabama comes to mind) where the requirements of obtaining such are ridiculously low or non-existent. The TN constitution specifically gives the legislature the authority to regulate the wearing of arms, so forced acceptance of other state's lesser carry permit rules could be seen as unconstitutional in TN.

Our joint federal/state system makes this a tough nut to crack.

[DaveTN]

If I'm Tennessee, I would not be happy accepting concealed carry permits from some states (Alabama comes to mind) where the requirements of obtaining such are ridiculously low or non-existent.

Our joint federal/state system makes this a tough nut to crack.

This is what brought me to the states rights issue. I have a friend (as misguided as he may be ) that believes if the question of the 2nd being an individual right is presented to the SCOTUS they will rule that it is an individual right and everyone can strap on a firearm and go about their normal business. I have explained to him that even if for one moment they thought that was the intent they wouldn’t rule that way; they can’t. These are different times.

But let’s humor some folks and say that happened. I can assure you as sure as I’m typing this that some states like California, NY and Illinois would absolutely refuse to comply with any decision that would attempt to make them change their laws. It is my understanding that Chicago is abiding by the Federal Retired Police Officers law that allows them to carry. But I would say they would draw the line at carry permit holders doing it no matter what the Federal Courts rule.

I personally believe this is one of the reasons that the SCOTUS has not ruled on this. I believe that the other reason they have not decided to hear these cases is that if they rule it is not an individual right they would be clearing the way for these same states to outlaw firearm ownership. Or at least handgun ownership as the City of Chicago has done.

[The Rabbi]

My understanding is that the Homeland Security Act allowed all LEOs to carry weapons anywhere in the U.S. But don't try doing that in Chicago or NYC.

As for SCOTUS, even if they declare the 2nd an individual right, that does not mean states cannot regulate it, just as they regulate every other right. There is no absolute right to anything.

[Guest CrazyLincoln]

When something works, why fight it? 2A Did us protection in the cold war. Stalin said something to the affect of a ground attack on the US would be pointless because there would be an armed American around every corner. This is what was mean by 'militia'. We the people could organize in our own defense.