Supremacy Clause of the 2nd and Privileges or Immunities in the 14th

Supremacy Clause of the 2nd and Privileges or Immunities in the 14th

This is a discussion on Supremacy Clause of the 2nd and Privileges or Immunities in the 14th within the The Second Amendment & Gun Legislation Discussion forums, part of the Related Topics category; I don't get it. How is it possible that with the CLEARLY expressed intentions of the founding fathers that the United States Constitution (USC) and ...

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Thread: Supremacy Clause of the 2nd and Privileges or Immunities in the 14th

  1. #1
    Member Array chivvalry's Avatar
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    Supremacy Clause of the 2nd and Privileges or Immunities in the 14th

    I don't get it.

    How is it possible that with the CLEARLY expressed intentions of the founding fathers that the United States Constitution (USC) and Federal laws be supreme over state constitutions and laws that we have seen such terrible erosion of our USC granted rights by various states?

    In addition to the Supremacy Clause in the 2A which states, "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."

    We also have the 14th amendment Privileges or Immunities Clause, which states:

    "No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States."

    How do we have states like Illinois, New Jersey, and New York that are clearly violating the constitution? What's gone wrong? How do we fix this?
    "I pledge allegiance to the Flag of the United States of America, and to the Republic for which it stands, one Nation indivisible, with liberty and justice for all."
    You are not paranoid if They are actually out to get you, however, They probably are not and you probably are.


  2. #2
    VIP Member Array Guantes's Avatar
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    We have laws against many crimes, that does not stop those who would commit them.
    "I do what I do." Cpl 'coach' Bowden, "Southern Comfort".

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    Quote Originally Posted by chivvalry View Post
    How do we have states like Illinois, New Jersey, and New York that are clearly violating the constitution? What's gone wrong? How do we fix this?
    Simple. Nobody stopped them.

    They tried, and got away with it. And it's very difficult to un-ring a bell...

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    The "how" is an interesting question and can be answered by looking at some of what has gone on in none gun instances.

    Basically, the states can get away with whatever (and so too Uncle) so long as individual justices go with the flow, rationalize bad behavior by governmental agencies, and allow the abuses.

    A few years back Texas thumbed its nose at the Federal government and executed a Mexican national in violation of an international treaty between us and Mexico, but The Supremes decided that notwithstanding the plain language you quoted, treaties aren't necessarily the supreme law of the land. (Something all of you who worry about the UN should take into consideration so your fears will be alleviated.)

    When all is said and done the whole system depends on humans making smart decisions. Therein you find the basic problem. Humans are humans and are fallible.

  5. #5
    Member Array chivvalry's Avatar
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    I think the Supreme Court screwing up things again and again is a serious problem. They have allowed the language and intent of the Constitution to be "interpreted" so much that it is becoming warped beyond recognition. Looking at the founding fathers' thoughts on Federal vs. State rights it is clear, to me anyway, that the example Hopyard gives WAS a violation... It dismays me that the very ones who are supposed to protect and defend the Constitution allow it to become tarnished and shabby.

    Have they never read the arguments? Do they willfully ignore the intent of our founders?

    Federalist No. 33, January 2, 1788, Alexander Hamilton

    "But it is said that the laws of the Union are to be the supreme law of the land. But what inference can be drawn from this, or what would they amount to, if they were not to be supreme? It is evident they would amount to nothing. A LAW, by the very meaning of the term, includes supremacy. It is a rule which those to whom it is prescribed are bound to observe. This results from every political association. If individuals enter into a state of society, the laws of that society must be the supreme regulator of their conduct. If a number of political societies enter into a larger political society, the laws which the latter may enact, pursuant to the powers intrusted to it by its constitution, must necessarily be supreme over those societies, and the individuals of whom they are composed. It would otherwise be a mere treaty, dependent on the good faith of the parties, and not a goverment, which is only another word for POLITICAL POWER AND SUPREMACY. But it will not follow from this doctrine that acts of the large society which are not pursuant to its constitutional powers, but which are invasions of the residuary authorities of the smaller societies, will become the supreme law of the land. These will be merely acts of usurpation, and will deserve to be treated as such. Hence we perceive that the clause which declares the supremacy of the laws of the Union, like the one we have just before considered, only declares a truth, which flows immediately and necessarily from the institution of a federal government. It will not, I presume, have escaped observation, that it expressly confines this supremacy to laws made pursuant to the Constitution; which I mention merely as an instance of caution in the convention; since that limitation would have been to be understood, though it had not been expressed."

    Federalist No. 44, January 25, 1788, James Madison

    "The indiscreet zeal of the adversaries to the Constitution has betrayed them into an attack on this part of it also, without which it would have been evidently and radically defective. To be fully sensible of this, we need only suppose for a moment that the supremacy of the State constitutions had been left complete by a saving clause in their favor. In the first place, as these constitutions invest the State legislatures with absolute sovereignty, in all cases not excepted by the existing articles of Confederation, all the authorities contained in the proposed Constitution, so far as they exceed those enumerated in the Confederation, would have been annulled, and the new Congress would have been reduced to the same impotent condition with their predecessors. In the next place, as the constitutions of some of the States do not even expressly and fully recognize the existing powers of the Confederacy, an express saving of the supremacy of the former would, in such States, have brought into question every power contained in the proposed Constitution. In the third place, as the constitutions of the States differ much from each other, it might happen that a treaty or national law, of great and equal importance to the States, would interfere with some and not with other constitutions, and would consequently be valid in some of the States, at the same time that it would have no effect in others. In fine, the world would have seen, for the first time, a system of government founded on an inversion of the fundamental principles of all government; it would have seen the authority of the whole society every where subordinate to the authority of the parts; it would have seen a monster, in which the head was under the direction of the members."
    "I pledge allegiance to the Flag of the United States of America, and to the Republic for which it stands, one Nation indivisible, with liberty and justice for all."
    You are not paranoid if They are actually out to get you, however, They probably are not and you probably are.

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    VIP Member Array MitchellCT's Avatar
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    Do any of you people read Supreme Court cases like Heller or McDonald...or the briefs filed in those cases?
    Excluding the legal portions of the cases & briefs, it is American History. Read it. Learn it. Love it.

    I'm going to go cry now, because I see how truly little people care about their rights when they ignore history.

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    Member Array chivvalry's Avatar
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    Heller was a definite win... despite the NRA's interference.... and so was McDonald... but you are jumping the gun (pun intended). I concur that many more recent rulings and events have been mostly beneficial to the 2A and other of our rights. Go back to the most significant events/rulings that stripped those rights... like Cruikshank. It's been a long road.
    "I pledge allegiance to the Flag of the United States of America, and to the Republic for which it stands, one Nation indivisible, with liberty and justice for all."
    You are not paranoid if They are actually out to get you, however, They probably are not and you probably are.

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    VIP Member Array oakchas's Avatar
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    Quote Originally Posted by MitchellCT View Post
    Do any of you people read Supreme Court cases like Heller or McDonald...or the briefs filed in those cases?
    Excluding the legal portions of the cases & briefs, it is American History. Read it. Learn it. Love it.

    I'm going to go cry now, because I see how truly little people care about their rights when they ignore history.
    While you and I have had our differences, I feel your pain. And while I don't have the time to read all I wish I could, I do try to at least read synopses. Unfortunately, they can tend toward bias.

    However, I would say "...how little truly people..." For though it is indeed St. Paddy's day, I don't think it's only the "truly little people" who care about their rights -by- ignoring history.

    That was a joke son, a joke I say...
    Rats!
    It could be worse!
    I suppose

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    Senior Member Array 2edgesword's Avatar
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    Quote Originally Posted by MitchellCT View Post
    Do any of you people read Supreme Court cases like Heller or McDonald...or the briefs filed in those cases?
    Excluding the legal portions of the cases & briefs, it is American History. Read it. Learn it. Love it.

    I'm going to go cry now, because I see how truly little people care about their rights when they ignore history.
    While we have had our disagreements I really do respect the fact that you did the very hard work of getting through law school, passing the bar and advancing in your practice. One of my MBC students is a third year law student and I get a headache just talking to him about the classes he is taking.

    Reading decisions is a challenge for those without a legal background. I've done it (Heller, McDonald and a few other cases of interest) and while I get a broad strokes understand of the decisions, and enjoy the history lesson, I realize that it is very easy to get lost attempting to follow the different trails of fact, logical and reason leading to the ultimate conclusion.

    I think many Americans are frustrated with our government and the legal system believing that the relatively simple language of the Constitution and the rights it was intended to express and protect has over time been made exceeding convoluted and complex to the detriment and usurping of individual and states rights. Unfortunately or fortunately this is the system through which any corrections have to be pursued and I'm glad we have individuals with your expertise willing to fight the battles in the courts to see that it gets done. Apart from that it's armed revolution with no certainty of what we end up with on the other side of that conflict.
    Martial Blade Concepts, Jiu-Jitsu & Eskrima NRA, GOA, NYSRPA, LIF, Old Bethpage Rifle & Pistol Club

  10. #10
    VIP Member Array MitchellCT's Avatar
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    Quote Originally Posted by oakchas View Post
    While you and I have had our differences, I feel your pain. And while I don't have the time to read all I wish I could, I do try to at least read synopses. Unfortunately, they can tend toward bias.

    However, I would say "...how little truly people..." For though it is indeed St. Paddy's day, I don't think it's only the "truly little people" who care about their rights -by- ignoring history.

    That was a joke son, a joke I say...
    Mis-typed.

    For you, it's a holiday.

    For me, it's the Fast of Esther so I haven't eaten all day after being up since 4 AM for an emergency.

    OOPS.

  11. #11
    VIP Member Array oakchas's Avatar
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    Shalom, Mitchell.

    May you find peace in your tradition, and some humor in your life as well.
    Rats!
    It could be worse!
    I suppose

  12. #12
    Senior Member Array Super Trucker's Avatar
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    What's gone wrong? How do we fix this?
    People have been elected to positions that allow them to strip your rights away (usually dumbocrats).
    Do you belong to any groups that go to the capital of your state and try to get stupid laws changed? If not you should.

  13. #13
    Senior Member Array press1280's Avatar
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    For one thing Barron v. Baltimore in 1833 said the BoR did not bind the states, and the Slaughterhouse cases in 1873 said the P or I clause only protected certain rights created by citizenship, like the right to travel. The Second Amendment(and the 1st) were held to be pre-existing rights not tied to citizenship.
    The states you mentioned either have no state RKBA amendment or a weak one(IL). That's how it's happened, as there was nothing in the way to stop them. With Heller/McDonald, the trend can now be reversed.
    "The right of the whole people, old and young, men, women and boys, and not militia only, to keep and bear arms of every description, not such merely as are used by the militia, shall not be infringed, curtailed, or broken in upon, in the smallest degree..."
    Nunn v. State GA 1848

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