Why Just the 2A?

This is a discussion on Why Just the 2A? within the The Second Amendment & Gun Legislation Discussion forums, part of the Related Topics category; So, the argument has been made many times since I've been on this forum that Second Amendment issues should ultimately decided by the states. Why ...

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    VIP Member Array Badey's Avatar
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    Why Just the 2A?

    So, the argument has been made many times since I've been on this forum that Second Amendment issues should ultimately decided by the states.

    Why don't we argue the same thing about the 5th Amendment, or the 4th Amendment, or the 1st Amendment? For example, how would America react if California made it illegal to criticize the government on social media, or if New York made a law saying only your bedroom was subject to 4th Amendment protection?

    Why, then, is it acceptable for states to regulate the 2A? (I'm not looking for, "well, Heller says...", I'm looking for a logical response based on independent thought).
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    I believe that you will very often read posts here that say, "What part of shall not be infringed do you not understand?"

    That means people do not think either the federal government OR the states have a right to infringe.

    However, you were asking the people who do think someone has a right to infringe, weren't you? I'm not one of those people.
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    Distinguished Member Array Wunderneun's Avatar
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    I don't believe the States have any right to make laws that are contradictory to the Constitution or Bill of Rights. If it's not in the Constitution or Bill of Rights then it's fair game.

    The Federal Government forced Illinois to create a concealed carry law as Illinois was restricting the rights of its citizens' Second Amendment rights under the US Constitution.

    However, States enact laws on a regular basis that contradict US Federal law.
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    VIP Member Array Badey's Avatar
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    Quote Originally Posted by ShooterGranny View Post
    I believe that you will very often read posts here that say, "What part of shall not be infringed do you not understand?"

    That means people do not think either the federal government OR the states have a right to infringe.

    However, you were asking the people who do think someone has a right to infringe, weren't you? I'm not one of those people.
    I'm not asking who thinks the federal government should regulate the 2A. I'm asking, why can states regulate the 2A, when they can't regulate the other amendments (or at least when they try, they get smacked down in the federal courts)?
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    VIP Member Array maxwell97's Avatar
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    Quote Originally Posted by Badey View Post
    I'm not asking who thinks the federal government should regulate the 2A. I'm asking, why can states regulate the 2A, when they can't regulate the other amendments (or at least when they try, they get smacked down in the federal courts)?
    I'm not sure what you mean by "regulate" the Second Amendment. If you mean pass laws related to guns, then in that sense they do "regulate" other Amendments. The First Amendment doesn't stop states from having laws against slander, libel, or terroristic threats, as one example.
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    I hope i have this right but Colorado just passed Medical Pot and other states as well . That is against Federal Law . The states do what they want until the process is challenged and the Feds. turn a blind eye as well when it suits them .

    I do not think the process is right to go against what was layed out by the founding fathers so many years ago . That is what made us great and will keep us great . IMO
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    Senior Member Array CWOUSCG's Avatar
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    I understand what you're asking and I think its a good question. I think one of the answers you will get is incorporation, which I don't fully understand.

    Another answer is the courts have ruled there are legal, reasonable, restrictions to all of the rights listed in the Constitution, the favorite being can't yell fire in the theater.

    Of course the definition of reasonable varies depending on your point of view!
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    Quote Originally Posted by Badey View Post
    I'm not asking who thinks the federal government should regulate the 2A. I'm asking, why can states regulate the 2A, when they can't regulate the other amendments (or at least when they try, they get smacked down in the federal courts)?
    Because the Federal Government and the SCotUS have historically stayed away from intervening in the state's desire to strangulate the Second.

    Why? I'm not sure there is an answer. It's just the way it's always been. If you think it's wrong, I totally agree. The Federal Government should be smacking down every law that interferes with the Second but they don't. Any disarming of the people is ultimately good for any government, including our own...
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    VIP Member Array maxwell97's Avatar
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    Quote Originally Posted by CWOUSCG View Post
    I understand what you're asking and I think its a good question. I think one of the answers you will get is incorporation, which I don't fully understand.

    Another answer is the courts have ruled there are legal, reasonable, restrictions to all of the rights listed in the Constitution, the favorite being can't yell fire in the theater.

    Of course the definition of reasonable varies depending on your point of view!
    Incorporation of the Bill of Rights - Wikipedia, the free encyclopedia

    Basically, the Bill of Rights was never taken to restrict state governments, until a series of court decisions made it so. Originally it was impossible for a state to violate the Amendments because they didn't apply to the states. Theoretically, for example, a state could pass a law against criticizing politicians, and it would not have been considered a violation of the First Amendment.
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    VIP Member Array Badey's Avatar
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    Quote Originally Posted by maxwell97 View Post
    I'm not sure what you mean by "regulate" the Second Amendment. If you mean pass laws related to guns, then in that sense they do "regulate" other Amendments. The First Amendment doesn't stop states from having laws against slander, libel, or terroristic threats, as one example.
    I think you missed the examples I posted. I understand that states have laws against libel, slander, etc. Yet, it is not acceptable for a state to say baptists are not allowed to congregate (I'm talking about the states, not the colonies, which did have such regulations).

    The idea that the bill of rights did not apply to the states is absurd, especially in light of the supremacy clause of the Constitution... I understand that the courts may not have supported such a position, but that does not mean that that is what the founders intended.

    Back to my original point... why is it acceptable for states to regulate the 2A (10 round magazine limits, lists of approved guns, permitting for owning guns, banning certain classes of weapons), when it is not OK for states to do so with other amendments (analogous examples being, 20 tweets a day, lists of approved social media, permits to be allowed to attend church, banning certain newspapers).
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    Senior Member Array CWOUSCG's Avatar
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    Quote Originally Posted by maxwell97 View Post
    Incorporation of the Bill of Rights - Wikipedia, the free encyclopedia

    Basically, the Bill of Rights was never taken to restrict state governments, until a series of court decisions made it so. Originally it was impossible for a state to violate the Amendments because they didn't apply to the states. Theoretically, for example, a state could pass a law against criticizing politicians, and it would not have been considered a violation of the First Amendment.
    See, I never understood that concept. I thought the Constitution applied to the states, the whole Constitution, which would include any amendments.

    I have a hard time believing the Founders would say to a territory wishing to join the Union that they had to comply with this part of the document but not that part.

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    Member Array Coconut's Avatar
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    In McDonald v. Chicago the supreme court has ruled that 2A applies to the states, which is why Illinois now has shall-issue CCW.
    McDonald v. Chicago - Wikipedia, the free encyclopedia

    No right is absolute. Not the 2nd amendment, not even the 1st. The government is allowed to regulate free speech and ownership & carry of arms, but they must have a compelling reason for every restriction that they place. Basically SCOTUS says a blanket ban is an unacceptable abridgment / infringement, but bans that are specific and limited are ok.

    Freedom of speech is arguably the most fundamental and important right, but SCOTUS still holds that certain (common sense) exceptions apply, namely child porn, obscenities, fighting words, slander, libel, terroristic threat, speech owned by others (copyrighted material), etc. When it comes to RKBA the court has no problem with restrictions toward minors, felons, and those judged to be mentally defective.
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    Quote Originally Posted by CWOUSCG View Post
    See, I never understood that concept. I thought the Constitution applied to the states, the whole Constitution, which would include any amendments.

    I have a hard time believing the Founders would say to a territory wishing to join the Union that they had to comply with this part of the document but not that part.
    Actually one of the original drafts of the BoR included one that basically stated that the states couldn't violate some of the rights in the BoR. It left some to the state's though. Sort of unusual, I suppose, but you do have to remember how little the people of that time trusted "government". Anyway, it was passed by one group and not passed by the other so it didn't make the cut into the BoR as we know it.
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    Senior Member Array dldeuce's Avatar
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    Quote Originally Posted by Badey View Post
    So, the argument has been made many times since I've been on this forum that Second Amendment issues should ultimately decided by the states.

    Why don't we argue the same thing about the 5th Amendment, or the 4th Amendment, or the 1st Amendment? For example, how would America react if California made it illegal to criticize the government on social media, or if New York made a law saying only your bedroom was subject to 4th Amendment protection?

    Why, then, is it acceptable for states to regulate the 2A? (I'm not looking for, "well, Heller says...", I'm looking for a logical response based on independent thought).
    First of all, you have to think about what you mean by "regulate the 2A." Your examples turn that into "prohibit the 2A." That being the case, the states are a check against the federal gov, and vice verse. Neither should "regulate." T

    On the other hand, regulation of "gun issues" can be a good thing from either the state or federal government. For example, how about the federal law to keep guns out of the hands of domestic abusers or the mentally unfit. Maybe those are "good" laws. Oh, but then you realize people are convicted of domestic violence for throwing a paper wad at their spouse, and the VA is declaring veterans mentally unfit willy nilly. Is the federal government better at regulating?

    The do gooders at the state level aren't any better. What I ask myself is which is more likely to pass a law that protects our 2A rights? Can you think of a single federal regulation like that? There may be some, but I can't think of any. I can think of lots of state laws that do that, for example the local preemption laws. Then if a "good" law goes bad, which is easier to change, a state law or a federal law?

    Plus, I don't see even the slightest possibility of any federal laws coming out on gun issues that could be even remotely good. In my mind, I'd rather have the state laws, with the federal judiciary and We the People protecting us if the states go too far.

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    Senior Member Array CWOUSCG's Avatar
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    Quote Originally Posted by TX expat View Post
    Actually one of the original drafts of the BoR included one that basically stated that the states couldn't violate some of the rights in the BoR. It left some to the state's though. Sort of unusual, I suppose, but you do have to remember how little the people of that time trusted "government". Anyway, it was passed by one group and not passed by the other so it didn't make the cut into the BoR as we know it.
    Thanks, I gots studying to do on this!
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