state rights vs gun rights

Well done sir.

Subrosa said:

SPOILERS! (Click to view)

Excellent question, Englishman! Honestly, this gets at the crux of the different system that Americans have vs. the one we (AHEM MR. LOBSTERBACK) used to have beforehand.

America has a system of government called "Federalism" that was wholly different from any other system of government ever when we invented it. Ever! True fact. What "Federalism" means is that there are a few different levels of government, rather than one sole sovereign, or "crown" as you people call it.

Anyway, here's the deal: When we ratified the Constitution in 1787, we did it with the explicit understanding that the vast majority of it (including the Bill of Rights of which the Second Amendment is part of) would only apply to the Federal government. You see, for SOME reason (AHEM AHEM) back then we weren't worried about the local state governments becoming overly intrusive upon individual rights, we were concerned about large centralized governments forcing overly oppressive laws and regulations upon the local populace.

So what resulted was a two tier system of government. The Federal governemnt (i.e. Congress and Barack Obama and all those guys) and then the several states (i.e. New Hampshire and Kansas and Hawaii, etc.). The idea was that states would regulate most day-to-day issues and the Federal government would deal with most national issues (in the first days of the republic, this primarily meant defending our country from YOU PEOPLE. And Indians.) So the important thing to note was that the States could absolutely regulate free speech or due process or whatever if they felt like it. And since we are Americans and like to differentiate between the states we come from (CALIFORNIA UBER ALLES, BITCHES!!!) we had totally different laws all the time in different states. It was kind of wacky.

Then the Civil War happened. And we realized "Oh man, the states can be kind of dicks to people too" (specifically to black folks, but also to other people as well, turns out.) Anyway, after the South was defeated (hooray!), we passed a few more amendments to the Constitution that said "Hey, States, Don't be dicks to people in general" or something like that. One of those Amendments, the 14th Amendment, specifically said that states could not violate a person's due process rights or run afoul of the privileges and immunities that people have under the Constitution, and that the Constitution protected everyone equally no matter what.

SO. What happens now? Well, the Courts have to figure out what the heck all of that means! And for the first 50 years, the courts in America basically ruled that the 14th Amendment, despite the fact that it said the states couldn't violate due process or treat people unequally, meant absolutely nothing. Seriously! That's what they said. I have no idea either. Anyway, then eventually, the Supreme Court said "Fuck that Noise" and decided that the 14th Amendment actually did apply to the states after all, which is good because that's what it fucking says. Anyway.

But what does "due process" and "treat people equally" mean? Do you know? I sure don't. Well neither did the Courts. So what they decided to do after much debate was to go through a process called "selective incorporation". Basically this means that the Supreme Court would go through the individual amendments one-by-one to decide which clauses of which amendments were important enough to be considered fundamental and thus be deemed to be extended to the states through the 14th Amendment. In other words, through the first 150 years or so of American government, the First Amendment did not apply to the states. But then the Supreme Court said "Hey, free speech, press and religion is pretty durned important, so now it does". And then it did. Hooray! But they also went through some of the other Amendments and decided that the Third Amendment, which prevents the mandatory quartering of troops in peoples' houses (AND I WONDER WHY THAT WAS IMPORTANT, MR. ENGLISHMAN, HUH!@?!?!?!?!) was probably not quite as important as the other ones so maybe we can not apply that one to the states.

Then, in 1876 or something, the Supreme Court looked at the Second Amendment in a case called Cruikshank v. United States and said "Nope, doesn't apply to the states. Sorry."

Fast forward to today. During the mid 20th century, most of the rights in the Bill of Rights (the first 10 Amendments) have been applied to the states, but not the Second Amendment. Why? Well, for a number of reasons, but mainly because the courts didn't really know what to do with the wording of the Amendment, and because there just weren't a lot of states who tried to really crack down on gun ownership until recently so there weren't a lot of cases that got to the Supreme Court about gun rights.

So last year the Supreme Court said that yes, the Second Amendment actually did mean that people individually (not collectively) had the right to have a gun. It also said that (like other rights granted by the Constitution) the right to bear arms was subject to reasonable regulation. What it specifically declined to say was whether Cruikshank was still valid. It left open the question of whether the individual States could say "Nope, eff you guys, you can't have yer gunz." (Because strictly speaking right now they can, they just don't because it's a politically BAD IDEA.)

SO. What we're deciding now is not really what the Amendment means or whether a certain regulation would violate the right, but we're deciding whether the right is important enough to incorporate it through the 14th Amendment to the individual states. Basically, the Supreme Court is deciding whether or not to nationalize the gun issue permanently. And as a liberal who supports reasonable-but-not-oppressive gun control legislation, I hope they do.

I also hope this makes sense. Honestly, the above is something that would legitimately take a few years of study at minimum to explain entirely.

When I am finally commissioned to go through the SG board archives and edit the coffee table volume of Best Posts in CE Evar, this will be high on the short-list. Well done, counsellor.

Does Necia know about that?

The Cato Institute has an interesting (and short!) article on this issue that might help people see a larger picture than just seeing this case as a Gun Rights/2nd Amendment issue. The Supreme Court has a chance to right a couple of pretty poor interpretations of the 14th Amendment from years past.

How Gun Litigation Can Restore Economic Liberties

One thing I find amusing on this topic is seeing those pushing for more restrictive gun rights (traditionally a liberal issue) by arguing for stronger State's Rights (traditionally a conservative issue) in this case, and vice versa.

hum.

that sounds bad, but where is the "right to pursue an honest occupation" enumerated? where are the "innumerable remainder" of our rights enumerated? i'm not arguing for or against the existence of such rights, at this point; i'm just not clear where this is coming from. the best reference i can find in a quick google search is an argument that such a right is derived from the right to purchase property.

yeah, that's struck me as well.

I believe they are speaking from the view that the Constitution is a capstone on top of Common Law & Natural Law from texts like Blackstone's "Commentaries on the Laws of England"

It depends upon what the right is and what precedent you draw from.

The simple answer to the question where the "innumerable remainder" of our rights come from is the Ninth Amendment. Specifically, if you look at the Federalist Papers, you'll note that one of the criticisms the Anti-Federalists made about the new Constitution was that there was no Bill of Rights. The Federalists responded, Hamilton especially in Federalist #84, that a Bill of Rights was in fact dangerous to the Constitution:

In short, by including a Bill of Rights, the Framers feared that people would argue that those Rights enumerated would be the only rights the Federal Government was obligated to honor, and there are all kinds of back-door ways to subvert those listed rights by revoking unlisted rights. For instance, the right to a speedy and impartial trial is completely undercut if you revoke the right to a presumption of innocence, and yet nowhere in the Constitution is there such a right. Moreover, no such comprehensive list can be made.

Nevertheless, they found it politically necessary to guarantee the adoption of a Bill of Rights in order to get New York's signature to the Constitution and thereby bring it into force. So they adopted the Ninth Amendment in order to ensure that the rights listed on the Bill of Rights would not be taken to be the only rights the Federal Government is designed to protect. As a side note, this is what makes Bork's old canard about liberals "inventing" rights so odious: in order to make the argument that only the plain text of the Constitution was enforceable (i.e. only those rights written in were protectable), he in effect had to read out the Ninth Amendment. Hence his famous phrase that he found the Ninth Amendment to be an "indecipherable inkblot".

So what's the hangup? Well, the hangup is that our nice neat answer has been complicated by the "selective incorporation" doctrine Subrosa explained so well in American jurisprudence. Most judges followed Frankfurter's articulation of a selective incorporation method where only those rights found fundamental to our conception of ordered liberty are applied through the 14th Amendment to the states. But two judges looked at the 14th and said "Um, sorry Felix (Justice Frankfurter's first name), but all rights listed in the Bill of Rights are fundamental, so all of them should apply to the states now". This was called the "total incorporation" doctrine, and the Justices were Justices Douglas and Black.

Now why is this important? Because while our court cases follow general principles, they also try to follow precedent as much as possible. Unfortunately for clarity's sake, where unincorporated rights is concerned, the first major case dealing with such rights, Griswold v. Connecticut, was written by Justice Douglas, and he was not about to let the selective incorporationists get the last laugh. So when asked whether the Constitution protects an unmentioned right to privacy, instead of offering the simple, concise, "Yes, Ninth Amendment, and we incorporate it under the 14th" like a good selective incorporationist, Douglas instead offered a meandering look through the Bill of Rights and found that the right to privacy was fundamental to numerous other rights already found fundamental, such as the Fourth Amendment protections from unwarranted search and seizure, and therefore as part of the "penumbra" of those rights it already applied to the states because those rights had already been found fundamental by the selective incorporationists and had always been fundamental to the total incorporationists.

Because of Griswold's preeminence in establishing that an unincorporated right exists and applies to the states, we therefore often have to do this wierd meandering search to see if it is part of the penumbra of other rights, and then say that oh yes, it's selectively incorporated under the Ninth Amendment, rather than just simplifying the process and finding it directly in the Ninth. What kind of search, and more importantly how fundamental we find such an unwritten right, depends greatly on what the right is and perhaps more than anything who is writing the opinion: Justice Brennan often wrote his opinions in such a way as to almost guarantee such a right would be applied to the case, whereas Chief Justice Rehnquist almost never applied the right even though both used the same official standard of review.

Yeah, I'm for the total incorporation thing. All rights listed in the Bill of Rights are fundamental, so all of them should apply to the states. In fact I used to assume that that was already the case, and I was shocked when I found out that it wasn't.

Also, if the Supremes overturn McDonald v. Chicago and rule for incorporation of the Second Amendment, I'm pretty sure that most state gun laws will still be in effect. Only ones that are found to violate the Second Amendment will end up being struck down, and, based on last year's District of Columbia v. Heller ruling, that won't be many.

I was thinking the same thing. Especially in regards to the abortion debate.

OMG STATES' RIGHTS BEING INFRINGED UPON

^^^ This legislation is a bad idea, and fortunately it's not expected to pass in the Senate.

In general I'm in favor of allowing concealed carry. I think any state should issue concealed carry licenses to law abiding citizens who apply for them, as long as they haven't been convicted of a violent crime and they don't have mental health problems. But each state should decide for itself what the requirements are for getting a license. Some states require classroom training and instruction on a shooting range, others don't. That's their call. Many states already accept the concealed carry licenses of many other states, but they can pick and choose which other states' to accept, at their own discretion.

A better issue for the House to take up is that some states don't follow the federal "peaceable journey" law. Under that law, you can take a gun with you when you're traveling from state to state -- assuming that you're allowed to possess a firearm -- if it's unloaded, locked in a case, and not immediately accessible. So the gun can't be used for self-defense, you're just transporting it. But some people who were following this law travelling through some states -- I've seen New Jersey, New York, and Massachusetts mentioned -- have been imprisoned, and had their guns confiscated, because they didn't have a state gun license. The federal law is supposed to take precedence over the state law in those cases, but the feds haven't been proactive about making sure that happens.