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How can county, city or state law trump the US Constitution ?

P-51Mustang

New member
Joined
Jun 4, 2013
Messages
3
Location
USA
I need someone smarter than me to explain this to me. I currently live in Florida where open carry is prohibited (unless while camping, fishing, etc.).

The US Constitution clearly says I have the right to bear arms. The term "bear' means to have and show. Why can counties, cities, or states have the right to change the Constitution?

Matt
 

OC for ME

Regular Member
Joined
Jan 6, 2010
Messages
12,452
Location
White Oak Plantation
Good question and welcome to OCDO.

The answer to your question resides in the FL legislature. The FL sub-forum will have those who are far more knowledgeable on the efforts to rectify the issue you raise.
 

rickyray9

Regular Member
Joined
Mar 29, 2009
Messages
109
Location
Northern Nevada
You're preaching to the choir brother

Unfortunately the supreme court allows states to restrict gun rights, and they are the new US Constitution as far as anyone with a legislative pen or a badge is concerned.

I'm going to Orlando next week, so I already looked this up:

Florida Constitution
Article I SEC 8
The right of the people to keep and bear arms in defense of themselves and of the lawful authority of the state shall not be infringed, except that the manner of bearing arms may be regulated by law.

Florida's constitution grants it a right to regulate the manner in which you bare arms.
 

tomrkba

Regular Member
Joined
Dec 4, 2011
Messages
125
Location
Virginia
The state constitution is the driver in the states. SCOTUS ruled that the Second Amendment does not affect state action up until Heller 2008. As I understand it, all that does is reach into the states under limited circumstances. The gist is that DC, Federal territories, lands, military bases, etc were controlled by the Federal Second Amendment and the state constitutions control the areas within the states not included under the Federal umbrella.
 
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eye95

Well-known member
Joined
Jan 6, 2010
Messages
13,524
Location
Fairborn, Ohio, USA
I need someone smarter than me to explain this to me. I currently live in Florida where open carry is prohibited (unless while camping, fishing, etc.).

The US Constitution clearly says I have the right to bear arms. The term "bear' means to have and show. Why can counties, cities, or states have the right to change the Constitution?

Matt

State law (and, depending on the individual State constitution, city and county laws) routinely trump the Constitution. We are not top-down. Power is supposed to emanate from the People through the States to the federal government. We are not a model whereby power devolves downward from the national government. We don't have a national government. At least we aren't supposed to.

The only authority of the federal government that trumps State authority are the specific powers delegated to the federal government by the States who created it and remain (or should remain) sovereign over it. There are 18 of those powers and they are explicitly listed in the Constitution.

You may well have a point that laws against OC in Florida violate the 2A. However, courts are just now coming around to the idea that the 2A is a restriction on all levels of government, not just the feds. The latest ruling, in Illinois, says that the State must allow some form of carry to be in compliance with the 2A. However, as yet, there is not federal court ruling that OC is the means of carry protected by the 2A. IMO, it is. And, IMO, the 2A applies to all levels of government, not because of incorporation or equal protection or any of the other lofty arguments, but because of the way the 2A is written. The 1A was clearly targeted at the federal government by the words, "Congress shall make no law..." The 2A uses the far more broad words, "shall not be infringed." IMO, this binds the federal government created by the Constitution, and it binds the signatories to the Constitution, the States.

Some States do have State court rulings that recognize OC as the right to bear arms, for example, Alabama.
 
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