Do you think the second amendment applies to all levels of government, federal, state and local?

[Renew Deal]

Poll question: Do you think the second amendment applies to all levels of government, federal, state and local?

I got this question in a Zogby Survey. What do you think?

The Supreme Court will soon decide the case of McDonald v. The City of Chicago, and rule whether or not the city's handgun ban is constitutional or not. An argument to be made against the ban is that the Second Amendment applies to federal, state and local governments. Do you think the second amendment applies to all levels of government, federal, state and local?

[TPaine7]

1. Of course.

[SteppingRazor]

2. Of course.

The Constitution is the supreme federal law, and federal law always supersedes state law where conflicts occur, a principle that goes all the way back to 1824 and Gibbons v. Ogden.

[tularetom]

3. No government can enact legislation that is in opposition to the US Constitution

The 2nd Amendment is part of the Constitution.

Ergo, the answer is yes.

QED

[jody]

29. The 10th Amendment was to curb federal power but SCOTUS has essentially gutted the 10th. n/t

[onehandle]

4. Of course. Guns define our existence on earth.

George Carlin was wrong. It's 'Guns, Assholes,' not 'Plastic, Assholes.'

[TPaine7]

5. Speak for yourself

Guns may define your existence on earth, but I don't think they define anyone else's. They certainly don't define mine.

[X_Digger]

6. Of course!

That's the intent of the fourteenth amendment, whether you use substantive due process or the Privileges or Immunities clause.

[Statistical]

7. I would have posted this in GD. The admins will move it eventually but.

you can get a more realistic breakdown.

We have done polls on do you support ban on guns, do you own a gun, do you believe 2A protects individual right, etc.

I voted but having the poll in Gungeon means it will be more heavily "pro-2A" than the general population.

I would say that INITIALLY (as in at ratification) the BofR only applied to federal govt there is plenty of precedent on that. For example there were court cases in which the citizen lost because the 1st amendment (freedom of speech) did NOT apply to state govts.

However the 14th amendment changed that. Simply put the 14th should have automatically, instantly, and irrevocably applied entire BofR to the States. Sadly racism. bigotry, and corruption created a jumble of biased precedents that the courts have been stuck with. Wheels of justice move very slow and it has taken an amazingly long time for the 2A to "rejoin" the rest of the amendments but it is FULLY INCORPORATED against the States.

I have 0% doubt that SCOTUS will reach that Conclusion. It is only a matter of time now.

[safeinOhio]

8. I'd think that the "well regulated"

part would infer that it would be the state, not the Feds doing the well regulating.

[armueller2001]

9. Just for accuracy's sake

in the time of the Framer's, "well regulated" meant well functioning, not restricted or controlled. For example, a soldier who goes to the range once per week and ensures his skills are up to par is well regulated. Or how a clock that is on time is well regulated.

I'm an able bodied male between the ages of 17 and 45 so therefore I am a member of the militia. I am not in the national guard, so I'm in the unorganized militia. I keep my firearms in well regulated condition and my skills sharp so therefore I am part of the well regulated militia.

[safeinOhio]

13. The I still think the state

would be in charge of seeing that the clock is on time, not the Feds. The Constitution requires my firearms be in a well regulated condition and my skills sharp? Even with your meaning, I still see it as a states right vs Fed. That seems to be what the court will decide on.

[Statistical]

15. Except states don't have right (they don't have any rights).

If the RKBA was limited to militia and the state defined who was in the militia a corrupt state would simply limit militia to 12 people (friends of the governor) and say that is all they need to protect the state. Then ban all forms of firearms for everyone except those 12. By your logic that would comply with the 2nd amendment.

They can't because rights existing before the Constitution and are inalienable. States have no rights.
States have powers and the Constitution is explicit that powers can never infringe upon RIGHTS.
The Bill of Rights grants NOTHING. The Bill of Rights simply protect rights that already exist. By the logic of the founders citizens of China have the right to free speech and to bear arms. Their govt simply illegally infringes upon those rights.


"A well regulated Militia, being necessary to the security of a free State, the right of the People to keep and bear Arms, shall not be infringed."
- 2nd Amendment

"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."
-10th Amendment

The people retain the right. While the purpose may be to form a militia the right exists for the people and the people alone.
The states are free to exercise any powers not given to the federal govt EXCEPT those that are prohibited.

The 2nd amendment prohibits infringement on the right of the people to Keep and Bear Arms. Any exercise of state power to do so is a prohibited power.

Ironically the federal legislature could never revoke or undo the ban in Chicago. They have no authority (their authority is limited by Constitution). It is the 2nd amendment which delegates the right to keep and bear arms to THE PEOPLE and thus prohibits Chicago from enacting an illegal expression of State Power (gun ban).

[spin]

18. The feds are in charge of today's clock, not the states...

You can visit the web site at:

http://tycho.usno.navy.mil/



The Official Source of Time for the Department of Defense (DoD)
and for the Global Positioning System (GPS),
and a Standard of Time for the United States

The states however can determine if they use Daylight Savings Time.

Arizona (except some Indian Reservations), Hawaii, Puerto Rico, the U.S. Virgin Islands, and American Samoa have chosen not to observe Daylight Saving Time. This choice does make sense for the areas closer to the equator because the days are more consistent in length throughout the year.
http://geography.about.com/cs/daylightsavings/a/dst.htm

I predict that SCOTUS will rule that citizens in the states have the right to own firearms under the Second Amendment, but states have the right to impose reasonable restrictions such as age limits and limiting the sales to people who pass an NICS background check.

[Hoopla Phil]

10. Please do a little research as to what "well regulated" means in the context of 2A.

Hint: It does not mean what you think it means.

[safeinOhio]

16. Then again, I don't think the term "to bear arms" means what you

think either.
Richard Uviller and William G. Merkel have argued that prior to and through the 18th century, the expression "bear arms" appeared primarily in military contexts, as opposed to the use of firearms by civilians.<13><118><119><57> According to Uviller and Merkel:
In late-eighteenth-century parlance, bearing arms was a term of art with an obvious military and legal connotation. ... As a review of the Library of Congress's data base of congressional proceedings in the revolutionary and early national periods reveals, the thirty uses of 'bear arms' and 'bearing arms' in bills, statutes, and debates of the Continental, Confederation, and United States' Congresses between 1774 and 1821 invariably occur in a context exclusively focused on the army or the militia.

[Statistical]

17. Stop trying to peddle that junk here. So "bear arms" only has a military context huh?

Try explaining this:

"That the people have a right to bear arms for the defence of themselves and the State -- and as standing armies in time of peace are dangerous to liberty, they ought not to be kept up; and that the military should be kept under strict subordination to and governed by the civil power."

- Vermont State Constitution (1776)

"That the right of the citizens to bear arms in defense of themselves and the State shall not be questioned."

- Kentucky State Constitution (1792)

"That the freemen of this State have a right to keep and to bear arms for their common defense."

- Tennessee State Constitution (1796)

"That every citizen has a right to bear arms in defense of himself and the state."

- Alabama State Constitution (1816)

"The right of no person to keep and bear arms in defense of his home, person and property, or in aid of the civil power when thereto legally summoned, shall be called in question; but nothing herein contained shall be construed to justify the practice of carrying concealed weapons."

- Colorado State Constitution (1876)


and the GRAND-DADDY of the them all.

"That the subjects which are Protestants may have arms for their defence suitable to their conditions and as allowed by law;"

- English Bill of Rights (1689)

Seeing as the colonists were British citizens prior to the revolution British law & system of Rights provides context for how/why they did what they did in the Bill of Rights.

Taken out of context the above quote may be strange. Why Protestants? King James the II had been overthrown by Protestant majority. There was a lot of religious tension and persecution in England at the time. England was not at war. The requirements for subjects of the crown to ready arms for defense of country was well established. This was included in the Bill as political pressure from Protestant who wanted to be assured they had right to keep arms for INDIVIDUAL DEFENSE. Not defense of country, not service in a militia (which is a duty/obligation not a right). When Catholics controlled the country they did seize weapons from Protestants.

So the right for freeman to have individual arms for the defense of themselves, their property, and their families predates the Bill of Rights by a century.

This is why the Colonists became so enraged by a Tyrant kings. Things like right to bear arms, jury trial, petition the govt, assemble, free speech and free press were rights they had enjoyed for over a hundred years. Notice how they all ended up in the BofR? Think it was a coincidence? They were all things the colonists at least believed they had as a right, inalienable rights that can't be taken by a legitimate govt. A Tyrannical govt took from them. The BofR didn't grant right the rights pre-existed the Constitution as they are inalienable and endowed by the creator (for non religious you could say they are given as virtue of the human condition). The BofR was a protection and more importantly a WARNING to the govt. A promise between citizen and govt. A two way street if you will.

George Washington called central govt a necessary evil. The founders understood govt were required but dangerous. The BofR was a "hands off" warning to the newly formed govt. They were willing to rebel again if this govt ended up being as much of a tyrant as ole George was.

The idea that these founding fathers who were so massively distrustful of governments would had over their Right to Bear Arms or any right they had as English citizens to the government by choice despite having just gone to war against their own government for the very same thing is the height of idiocy.

It would make as much sense as if today we rebelled because of FISA and to make sure it doesn't happen again we make a new Bill of Rights and in there give the govt the power to spy on us.

[safeinOhio]

19. I think there are some questions that aren't answered

a lot of those are brought up on this site. It seems as balanced as any. You are free to go into wikipedia.org and correct anything that is wrong.

http://en.wikipedia.org/wiki/Second_Amendment_to_the_United_States_Constitution

I think every one in this forum is free to peddle anything they wish and long the rules of DU are followed.

The question about "well regulated" meaning during the 18th century is brought up, therefore it is proper to bring up the 18th century meaning of "bear arm" also.

The Bill of Rights was written in the 18th century and leaves many things up to interpretation in the context of the 21st century. It was meant to be a fluid document as it was open to amending. It is also open the courts to decide what it means to these times.

[Statistical]

20. It is open to amending.

There are instructions contained within it to change it.

However original intent is important.

It is absolutely not supported anywhere that the colonists who had an INDIVIDUAL RIGHTS, inalienable rights which pre-exist the Constitution fought a tyrannical govt who lost the legitimacy of rule by infringing those rights. Then after winning turn right around and hand the very same rights over to a new govt.

The founders were very distrustful of governments. This collective rights argument has been totally debunked by historians and eviscerated by the Supreme Court in Heller v. DC. It exists only in the minds of antis who want to do an end run around the 2nd.

STATES HAVE NO RIGHTS! NONE.

Read the 10th amendment. States have powers. People have rights. Rights pre-exist the Constitution. States powers are limited by the Constitution which prohibits them from either
a) taking powers delegated to the federal govt or
b) infringing upon rights of citizens.

States Powers never trump individual rights. If they did you might as well burn the Constitution and Bill of Rights because they are meaningless documents.

[Bold Lib]

31. So you agree then that you had the definition of "well regulated" wrong?

[TPaine7]

11. The people who wrote the Fourteenth Amendment disagreed with you.

Read Yale professor Akhil Amar's The Bill of Rights.

THE PEOPLE WHO WROTE THE CONSTITUTION called explicitly for the Second Amendment to be enforced AGAINST THE STATES.

The authors are the ultimate authority on the meaning of the Constitution.

Seriously, read up on the Fourteenth Amendment. I talk about a little of the evidence here: http://www.democraticunderground.com/discuss/duboard.php?az=view_all&address=118x229712

[slackmaster]

25. States have the power to maintain militias. They have largely abandoned their militias.

But the militias still exist.

Here's a piece of California law you may not be familiar with.

MILITARY AND VETERANS CODE
SECTION 120-130

120. The militia of the State shall consist of the National Guard,
State Military Reserve and the Naval Militia--which constitute the
active militia--and the unorganized militia.

121. The unorganized militia consists of all persons liable to
service in the militia, but not members of the National Guard, the
State Military Reserve, or the Naval Militia.

122. The militia of the State consists of all able-bodied male
citizens and all other able-bodied males who have declared their
intention to become citizens of the United States, who are between
the ages of eighteen and forty-five, and who are residents of the
State, and of such other persons as may upon their own application be
enlisted or commissioned therein pursuant to the provisions of this
division, subject, however, to such exemptions as now exist or may be
hereafter created by the laws of the United States or of this State.

123. Whenever the Governor deems it necessary, he or she may order
an enrollment to be made by officers designated by the Governor, of
all persons liable to service in the militia. The enrollment shall
include any information that the Governor may require. Three copies
thereof shall be made: one copy shall be filed in the office of the
clerk of the county in which the enrollment is made, and two copies
in the office of the Adjutant General.

124. Enrollment shall be made upon such notice and in such manner
as the Governor may direct. Every person required by such notice to
enroll who fails or refuses so to do is guilty of a misdemeanor.

125. The following persons shall be exempt from military service:
(a) Persons exempt from military service by the laws of the United
States.
(b) Regular or duly ordained ministers of religion.
(c) Students preparing for the ministry in recognized theological
or divinity schools.
(d) Pilots and mariners actually employed in sea service by a
citizen of the United States.
The above persons shall not be exempt from enrollment but shall
file verified claims for exemption from military service in such
forms and manner as the Governor may direct.

http://www.leginfo.ca.gov/cgi-bin/displaycode?section=mvc&group=00001-01000&file=120-130

[reggie the dog]

28. a couple of years ago the supreme court determined

that the 2nd amendement applies to priave citizens for any reason they want guns, hunting, marksmanship, protection. the next battle will be to see if carrying a weapon in public places is covered by the 2nd amendment or just possession in ones home. (notice I said public because I think private places can enact no gun rules as that would be their private property. I can tell people not to bring guns in my house, that is perfectly legal, but can we tell people not to have guns on them in the street?

[-..__...]

12. I disagree.

I believe that if laws regarding 2nd amendment rights can vary from state to state, jurisdiction to jurisdiction, then it stands to reason that the same limitations extends to gay rights/marriage, womans/reproductive issues and workplace discrimination as well.

:sarcasm:

Hate to break the news to you folks, but there are 10 amendments to the BOR... not 9.

[safeinOhio]

14. That is what the 14th deals with.

It does apply to some and not all in different ways. I'm not a constitutional lawyer, so the court will decide.

[Euromutt]

21. Everything in the BoR applies to all levels of government

There's no fucking point in having your rights of free speech, free association, religious freedom, to keep and bear arms, to be secure against unreasonable search and seizure, to due process, against self-incrimination, jury trial, to be confronted with your accusers and the evidence against you, etc. etc., to have all those rights protected against intrusion by the federal government, and then allow state and local government to ignore them whenever it suits them.

[Statistical]

22. Unfortunately that is not true. It should be that way (IMHO) but it is not.

The Supreme Court has a long history of bigotry, racism, cronyism, and outright corruption.

They have turned that simply concept into a legal minefield.

http://en.wikipedia.org/wiki/Incorporation_%28Bill_of_Rights%29

Still today "most" of the Bill of Rights applies to the States. In a couple months the 2nd will join that list.

[Euromutt]

23. You're right, in practice it is not the case

Thing is, I'm not a lawyer, I'm a political science major; I also grew up in a country with a Napoleonic Code system, in which what the statute says outweighs how it's been interpreted by some court in the past.

The idea that the Bill of Rights was not binding on lower levels of government might have been acceptable back around 1800, when, if you didn't like the laws of any of the several states, you could simply move to one of the incorporated territories. That's not an option anymore. And I just have a hard time wrapping my head around the idea that anyone could argue with a straight face that the Fourteenth Amendment was intended to do anything other than making the BoR binding on the states; if not that, then what the hell is it for?

[Statistical]

24. I agree the 14th was INTENDED to do exactly that.

The Supreme Court if full of cowards though (all nine) and they are reluctant to overturn Slaughterhouse decision and give the 14th the full weight it was intended.

We will get the 2nd incorporated via the Due Process clause but that doesn't really address the larger issue which is something the court is unwilling to do.

[Callisto32]

26. It is an easier argument to make than the First Amendment protections.

Since the Second doesn't have that "congress shall..." part in it.

[reggie the dog]

27. the constitution applies everywhere

that is why no town, city, county, state or township can inact and enfore unconstitutional laws. Aside from being a stupid law the handgun ban will likely be found unconstitutional. Really, I knew gangsters in Chicago. Their guns were illegally bought and illegally used to shoot people, cars, houses of rival gangs, meanwhile a person like me could not bring his 38 that he had in the suburbs to his girlfriends place in the city when he moved in. I had to leave my gun at my parents house in a safe suburb and could not have it in the city. My dad would not loan me his SKS asault rifle either (that would have been legal in Chicago)...... yeah, gangsters really give a damn. They would never do anything illegal, like carry illegal guns, that law will stop crooks.....right.... like someone not scared of carrying a pound of heroin will be scared to carry a gun at the same time.

[jody]

30. Amendment VII Right to jury trial in civil cases, has not been held to be

incorporated against the states. See Minneapolis & St. Louis R. Co. v. Bombolis, 241 U.S. 211 (1916).

ON EDIT ADD:
Amendment V Right to indictment by a grand jury,has been held not to be incorporated against the states. See Hurtado v. California, 110 U.S. 516 (1884).

Amendment VIII Protections against "excessive" bail and "excessive" fines, these provisions have not been held to be incorporated against the states. In Murphy v. Hunt, 455 U.S. 478 (1982),