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2nd Amendment Question

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Izzle

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After doing some reading today and consulting with a constitutional law professor at my university I realized that the 2nd Amendment to the US Constitution only applies to the Federal Government and not the states themselves. So my question is why do people often claim they have a right under the 2nd Amendment to keep and bear arms when referring to state and local laws? I do know that the Washington State Constitution does protect our right so would it a not ctually be correct to quote that and not the US Constitution?
 
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adamsesq

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Izzle wrote:
After doing some reading today and consulting with a constitutional law professor at my university I realized that the 2nd Amendment to the US Constitution only applies to the Federal Government and not the states themselves. So my question is why do people often claim they have a right under the 2nd Amendment to keep and bear arms when referring to state and local laws? I do know that the Washington State Constitution does protect our right so would it a not ctually be correct to quote that and not the US Constitution?
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Pretty much because of the 14th Amendment. The DPoL clause has pretty much been held to apply the BOR to the States.


ETA - obviously a short answer before dinner. The 14th Amendment has given us a mindset that the BOR apply to the states even though there are a few amendments that have not been applied, and a few cases that have actually said it does NOT apply to the States.

There are pending cases, including our own Nordyke case in the 9th Circuit, that may just do it if things get that far as that is a very specific part of the case and SCOTUS may have a harder time dodging the issue like they did in Heller.


-adamsesq
 
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Izzle

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adamsesq wrote:
Izzle wrote:
After doing some reading today and consulting with a constitutional law professor at my university I realized that the 2nd Amendment to the US Constitution only applies to the Federal Government and not the states themselves. So my question is why do people often claim they have a right under the 2nd Amendment to keep and bear arms when referring to state and local laws? I do know that the Washington State Constitution does protect our right so would it a not ctually be correct to quote that and not the US Constitution?
Click to expand...

Pretty much because of the 14th Amendment. The DPoL clause has pretty much been held to apply the BOR to the States.

-adamsesq
Click to expand...
Yes the 14th amendment has been looked at as possibly closing that gap but all three of the Supreme Court cases that have dealt with the issue say that the 2nd amendment does not apply to the states. [United States v. Cruikshank (1875), Presser v. Illinois (1886), Miller v. Texas (1894), United States v. Miller (1939)] So until the Supreme Court rules on this issue they have no legal weight against the states.
 
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sirpuma

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Even if the 2nd didn't apply to the state, it does apply to the people. We are those people. HOWEVER states do have the right to regulate through their own legislature. Thankfully the WA constitution also protects our firearm rights.
 
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Izzle

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DC is not a state it is a federal district...... And please read the Heller v DC case where they state:

"With respect to Cruikshank's continuing validity on incorporation, a question not presented by this case, we note that Cruikshank also said that the first amendment did not apply against the states and did not engage in the sort of Fourteenth Amendment inquiry required by our later cases. Our later decisions in Presser v. Illinois, 116 U.S. 252, 265 (1886) and Miller v. Texas, 153 U.S. 535, 538 (1894), reaffirmed that the Second Amendment applies only to the Federal Government."
 
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joeroket

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You will find that firearm cases in Wa supreme court usually use the State Constitution and not the Federal Constitution to challenge laws.
 
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carhark

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The civil war was fought over two issues: slavery, and the superiority of the federal government when it conflicts with subnational governments' laws. My understanding as a political science student is that the second amendment does apply, but at least in Washington, citing the state constitution would be the stronger argument becuase of the more powerful wording than the second amendment in defense of the RKBA; why not cite both then? I could be wrong though, I don't know any details about (or fully understand for that matter) what adamsesq is talking about, but he at least appears to be well informed.
 
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adamsesq

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Thank you and even though I took a serious liking to it at the time, conlaw and law school were a LONG time ago. Izzle, even though he is asking the question, is probably much more up on the text book details than I.

-adamsesq
 
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Izzle

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carhark wrote:
The civil war was fought over two issues: slavery, and the superiority of the federal government when it conflicts with subnational governments' laws. My understanding as a political science student is that the second amendment does apply, but at least in Washington, citing the state constitution would be the stronger argument becuase of the more powerful wording than the second amendment in defense of the RKBA; why not cite both then? I could be wrong though, I don't know any details about (or fully understand for that matter) what adamsesq is talking about, but he at least appears to be well informed.
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I respect everyone's input on this topic discussion and find it very interesting. I am also a political science major (2 more quarters left woohoo) and just found out my information today from my professor who I had for constitutional law and again this quarter for politics of gun control. Also from what I have read from the cases I stated earlier. Also the Constitution was created by the states to setup and limit the federal government not the states themselves because of their fear of a controlling central government.

Again thanks everyone for their input on the issue and I hope people don't mind if I turn to this board in the future for discussion as new information is presented to me in the class.
 
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Tawnos

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carhark wrote:
The civil war was fought over two issues: slavery, and the superiority of the federal government when it conflicts with subnational governments' laws. My understanding as a political science student is that the second amendment does apply, but at least in Washington, citing the state constitution would be the stronger argument becuase of the more powerful wording than the second amendment in defense of the RKBA; why not cite both then? I could be wrong though, I don't know any details about (or fully understand for that matter) what adamsesq is talking about, but he at least appears to be well informed.
Click to expand...
One problem is that the federal government hasn't even been playing by those rules for many years, starting with the NFA and moving up through the brady bill, AWB, et cetera. The government claims a commerce clause hook into the regulation of firearms, while conveniently ignoring the second amendment. They regulate even non-commerce involved firearms, those produced within a state not for sale. Even more shockingly, the ATF has recently charged people for weapon malfunctions!

If incorperation of the 2nd is ever passed down, then states like New York and California will have to reevaluate some of their policies. However, until that time, the Heller decision applied only in DC due to it being a federal district.
 
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Izzle

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Tawnos wrote:
carhark wrote:
The civil war was fought over two issues: slavery, and the superiority of the federal government when it conflicts with subnational governments' laws. My understanding as a political science student is that the second amendment does apply, but at least in Washington, citing the state constitution would be the stronger argument becuase of the more powerful wording than the second amendment in defense of the RKBA; why not cite both then? I could be wrong though, I don't know any details about (or fully understand for that matter) what adamsesq is talking about, but he at least appears to be well informed.
Click to expand...
One problem is that the federal government hasn't even been playing by those rules for many years, starting with the NFA and moving up through the brady bill, AWB, et cetera. The government claims a commerce clause hook into the regulation of firearms, while conveniently ignoring the second amendment. They regulate even non-commerce involved firearms, those produced within a state not for sale. Even more shockingly, the ATF has recently charged people for weapon malfunctions!

If incorperation of the 2nd is ever passed down, then states like New York and California will have to reevaluate some of their policies. However, until that time, the Heller decision applied only in DC due to it being a federal district.
Click to expand...
You are correct that the use of the commerce clause is the "door" that the federal government has repeatedly used to against the states. Although they have been limited somewhat on regulation of firearms using the commerce clause as we see in United States v. Lopez
 
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Tawnos

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Izzle wrote:
Tawnos wrote:
carhark wrote:
The civil war was fought over two issues: slavery, and the superiority of the federal government when it conflicts with subnational governments' laws. My understanding as a political science student is that the second amendment does apply, but at least in Washington, citing the state constitution would be the stronger argument becuase of the more powerful wording than the second amendment in defense of the RKBA; why not cite both then? I could be wrong though, I don't know any details about (or fully understand for that matter) what adamsesq is talking about, but he at least appears to be well informed.
Click to expand...
One problem is that the federal government hasn't even been playing by those rules for many years, starting with the NFA and moving up through the brady bill, AWB, et cetera. The government claims a commerce clause hook into the regulation of firearms, while conveniently ignoring the second amendment. They regulate even non-commerce involved firearms, those produced within a state not for sale. Even more shockingly, the ATF has recently charged people for weapon malfunctions!

If incorperation of the 2nd is ever passed down, then states like New York and California will have to reevaluate some of their policies. However, until that time, the Heller decision applied only in DC due to it being a federal district.
Click to expand...
You are correct that the use of the commerce clause is the "door" that the federal government has repeatedly used to against the states. Although they have been limited somewhat on regulation of firearms using the commerce clause as we see in United States v. Lopez
Click to expand...
Yes, but this doesn't affect things like automatics produced in state by a private individual for private use. The NFA and later acts still ban that at a federal level, even though such manufacturing isn't traditionally considered a part of commerce.
 
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cynicist

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I beleive the 10A was later considered to mean that rights under the BoR are also applicable to the states. It does not say that these are only rights under the federal government, since the whole country is.
Since the US Constitution rules in the whole nation, it takes precendence.
 
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Izzle

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I guess it all comes down to that the US Supreme court has ruled four times (including in the latest Heller case) that the 2nd amendment does not apply to states.
 
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