Does the 2A apply only to the Congress?

This is a discussion on Does the 2A apply only to the Congress? within the The Second Amendment & Gun Legislation Discussion forums, part of the Related Topics category; Following the SCOCTUS case concerning DC I have been studying the Constitution. It seems that the 2A applies only to the Federal Congress' ability to ...

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Thread: Does the 2A apply only to the Congress?

  1. #1
    Member Array Stormtruck2's Avatar
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    Question Does the 2A apply only to the Congress?

    Following the SCOCTUS case concerning DC I have been studying the Constitution. It seems that the 2A applies only to the Federal Congress' ability to restrict gun ownership. It appears that states have the complete or at least substantial power to ban weapons, consistent with that states constitution. Do we have any Constitutional attorneys on this board whom can better educate me on this issue. The US Constitution appears to me to apply only to the federal government. States are free to pass laws as they see fit. Seems to me that the civil war was fought over that very point. Must states follow the US Constitution or may they be more restrictive, but not more liberal than the US Constitution.
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    States can not pass laws to Prohibit Free Speech nor can they pass laws dictating that all residents of that state be of a certain religon.

    I do not see how you can come to your conclusion.
    “You can sway a thousand men by appealing to their prejudices quicker than you can convince one man by logic.”

    ― Robert A. Heinlein,

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    I believe the 14th amendment is what keeps the states from infringing that right:
    Section 1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

    eschew obfuscation

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    VIP Member Array Janq's Avatar
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    Quote Originally Posted by pgrass101 View Post
    I do not see how you can come to your conclusion.
    Agreed.

    Further that exact theory has been refuted multiple times in recent times past history.
    It just does not float as being specific to the second when it does not at all apply to other amendments first third, fourth, fifth, sixth, et. al.

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    If we ignore the 14th for the sake of argument, then it is reasonable to conclude that states could limit free speech, establish a religion, etc, as the 1st Amendment specifically states that "Congress shall make no law" regarding these things. The 2A, on the other hand, doesn't mention Congress, and simply states that the right "shall not be infringed." If we assume that Congress was intentionally mentioned in the 1A, and intentionally left out of the 2A, then it is reasonable to further assume that the founders intended for the right to keep and bear arms to be inalienable, and that no government body could infringe upon it.

    Of course, that hasn't worked out too well, has it?
    A man fires a rifle for many years, and he goes to war. And afterward he turns the rifle in at the armory, and he believes he's finished with the rifle. But no matter what else he might do with his hands - love a woman, build a house, change his son's diaper - his hands remember the rifle.

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    VIP Member Array matiki's Avatar
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    I think the OP has not yet studied preemption.

    Here's where you can get started:

    The Supremacy Clause and Federal Preemption

    Preemption (law - Wikipedia, the free encyclopedia)

    It's a critically important clause in the U.S. Constitution. To understand the Constitution, you must understand preemption.

    The Constitution is the Supreme law of the land. When a Local (State, County, City) law contradicts the Constitution, the Constitution wins (at least in theory, it depends on who's on the bench).
    "Wise people learn when they can; fools learn when they must." - The Duke of Wellington

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    Distinguished Member Array kazzaerexys's Avatar
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    My take is pretty much exactly what OPFOR stated. The 2A was not a restriction on Congress; it was an affirmation of an inalienable right. I also think that the 14th Amendment explicitly applies the individual rights of the BoR at the State level (meaning, yes, prior to the 14th, a State could restrict free speech and have a State religion).
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    VIP Member Array Kerbouchard's Avatar
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    There is a lot of historical precedence for this situation, which no matter how we read the constitution we cannot get around. All the way back to the 1800's local ordinances could prohibit carrying weapons openly(generally revolvers) in town. For instance Dodge City's ordinance to check weapons prior to entering town. The precedent for making concealed weapons illegal was to prevent people from suprising somebody with a gun. You have to remember the context. Disputes were routinely settled with guns if both men were armed. If 2 people got in an altercation and only one was visibly armed and the armed man shot the 'unarmed' man it would be murder. If the man who was carrying concealed shot the visibly armed man it would be a legal shoot. To avoid the element of suprise, carrying only concealed was made illegal in a lot of places.
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    Just because it was done doesn't make it Constitutionally sound. Look at NOLA after Katrina - the Mayor and Chief said "take 'em," the grunt cops took 'em, and the whole thing was deemed completely and totally illegal. Too late, of course, for those folks who were forcibly disarmed...

    Today we have the case of D.C. v Heller - a town going against the Constitution to enforce its own laws. Dodge City has met the 21st century, and will have to face the music.
    A man fires a rifle for many years, and he goes to war. And afterward he turns the rifle in at the armory, and he believes he's finished with the rifle. But no matter what else he might do with his hands - love a woman, build a house, change his son's diaper - his hands remember the rifle.

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    VIP Member Array Kerbouchard's Avatar
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    Quote Originally Posted by OPFOR View Post
    Just because it was done doesn't make it Constitutionally sound. Look at NOLA after Katrina - the Mayor and Chief said "take 'em," the grunt cops took 'em, and the whole thing was deemed completely and totally illegal. Too late, of course, for those folks who were forcibly disarmed...

    Today we have the case of D.C. v Heller - a town going against the Constitution to enforce its own laws. Dodge City has met the 21st century, and will have to face the music.
    It will be interesting. A cut and dry decision by the SCOTUS could wipe out hundreds of years of gun laws. I don't see that happening. I personally think it will be vague enough to not set a huge precedent. I think they will rule that banning currently legal, operational firearms inside one's home is unconstitutional, and will leave it at that. I would love to hear a ruling saying 'shall not be infringed means shall not be infringed'; I won't hold my breath, though.
    There are two sides to every issue: one side is right and the other is wrong, but the middle is always evil.

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    Heller will probably have turn out one of three ways:

    1) The least desirable decision....They find that the 2A does NOT apply to individuals. This one is not likely, but it would set us back. The anti's would be emboldened & with a Liberal in the White House next January, we're in trouble!

    2) The best decision....They find the 2A is an individual right & this causes all firearm laws to be stricken!.....Get real! That ain't gonna happen.

    3) The most likely decision....They find the 2A is an individual right, BUT the states & DC can limit it however they see fit. In other words...NOTHING CHANGES...I think this is what will happen.
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    Distinguished Member Array kazzaerexys's Avatar
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    Quote Originally Posted by goawayfarm View Post
    2) The best decision....They find the 2A is an individual right & this causes all firearm laws to be stricken!.....Get real! That ain't gonna happen.

    3) The most likely decision....They find the 2A is an individual right, BUT the states & DC can limit it however they see fit. In other words...NOTHING CHANGES...I think this is what will happen.
    I am pretty sure this court will find the 2A to be an individual right. Your points (2) and (3) are what I consider to be the most important part of any decision in the case. No, existing gun laws will not immediately be shot down. But your outcome (2) corresponds to a finding that gun control should be held to strict scrutiny, while number (3) is a finding that intermediate scrutiny is just fine.

    In either case, the mere fact of an individual rights finding means there will be new suits to overturn existing gun laws. A strict scrutiny precedent, however, will mean such suits are much more likely to succeed.
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    VIP Member Array matiki's Avatar
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    The DC case is about the right to own a handgun and have it assembled, ready to fire (even loaded and/or carried on your person) in your own home. I'm afraid all the broad issues we'd like to have addressed and mentioned in posts above, are not very likely to be addressed.

    NRA-ILA :: Articles
    2. The Supreme Court's decision in Heller may be limited. The Supreme Court has said that its review of the Court of Appeals decision in Parker will be "limited to the following question: Whether Washington, D.C.'s bans [on handguns, on having guns in operable condition in the home and on carrying guns within the home] violate the Second Amendment rights of individuals who are not affiliated with any state-regulated militia, but who wish to keep handguns and other firearms for private use in their homes."

    The case doesn't deal with carrying a gun away from home, doesn't seek to overturn D.C.'s firearm registration law and doesn't seek to overturn other laws in D.C. or anywhere else.
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    Restricted Member Array SelfDefense's Avatar
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    Quote Originally Posted by Stormtruck2 View Post
    Following the SCOCTUS case concerning DC I have been studying the Constitution. It seems that the 2A applies only to the Federal Congress' ability to restrict gun ownership. It appears that states have the complete or at least substantial power to ban weapons, consistent with that states constitution. Do we have any Constitutional attorneys on this board whom can better educate me on this issue. The US Constitution appears to me to apply only to the federal government. States are free to pass laws as they see fit. Seems to me that the civil war was fought over that very point. Must states follow the US Constitution or may they be more restrictive, but not more liberal than the US Constitution.
    I agree that that the US Constitution only applies to the Federal government. The states are sovereign entities. The Constitution outlines powers of the Federal government and Article 4 describes the responsibilities of the states.

    Yes, the states can and some have placed significant restrictions on firearm ownership and carry. There is nothing in the Constitution that prohibits states from passing gun control legislation. What the Consitution outlines in the Bill of Rights is an enumeration of natural, God given rights, including the right to keep and bear arms. The Consitution prohibits the Federal government, both Congress from passing laws and the Executive from using the military to infringe on the people's right to keep and bear arms. It simply does not apply to the states though some argue the Fourteenth Amendment made the Bill of Rights applicable to the states. The Fourteenth Amendment was a drafted to provide that the freed slaves, citizens of no particular state had the privileges an immunities of the several states. This wording is nearly identical to that in Article 4, which provides that citizens of a state have the privilegesiand immunities of the other states. The distinction is subtle but in no way, either by intent or wording, prohibits states from infringing upon natural rights.

    As Senator Howard wrote (speaking of the Bill of Rights):
    "There is no power given in the Constitution to enforce and to carry out any of these guarantees. They are not powers granted by the Constitution to Congress... they stand simply as a bill of rights in the Constitution, without power on the part of Congress give them full effect; while at the same time the States are not restrained from violating the principles embraced in them."

    As to Heller, I expect the Court will opine that Washington DC is not a state but rather a Federal district. They will affirm that the Second Amendment is an individual right (as anyone with a sixth grade education would answer correctly.) And their opinion will be that the gun ban in DC is unconstitutional. The people of Washington DC need to change the law.

    It will have no tangible effect on the states.
    Last edited by SelfDefense; March 3rd, 2008 at 07:19 PM. Reason: spelling

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    You and I must read different versions of English, SelfD...
    A man fires a rifle for many years, and he goes to war. And afterward he turns the rifle in at the armory, and he believes he's finished with the rifle. But no matter what else he might do with his hands - love a woman, build a house, change his son's diaper - his hands remember the rifle.

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