State's Right to Home Rule

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This is not a troll post, merely a talking point that I am interested in pursuing. When do we let our desires as gun owners override the constitutional power of our own state governments?

Forgetting for a moment that incorporation would give the basis for lawsuits that might finally settle issues of open carry in restrictive states, and all the good that could come of that, I have to ask one thing:

Why do we see giving up our states' right to home rule as a good thing?

The entire subject of incorporation makes me a little nervous, even though most of the incorporated rights were already recognized in most state constitutions. Say, for instance, the citizens of the state and the constitution they ratified proscribe limits on the right to assemble peaceably saying it can only be exercised at certain times of day, or with a permit, or with a limit on the number of people gathered. With what authority does the Federal government attempt to override that? If you view the Constitution as a limit on Federal power, then where do they have the authority to override state constitutions or legislation that may be legal under the states' constitutions?

OTOH, if something is already legal under the state constitution but the legislature has enacted laws restricting or eliminating it, what authority does the Federal government have to step in and make them repeal it? Shouldn't that also happen at the state level?

Sorry if this doesn't make as much sense on paper (so to speak) as it did in my head. I will try my best to clarify any confusing points.

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"Incorporation" of any fundamental human right is never a bad thing.

The Fed is not "forcing" states to relinquish any power they have. States do not have the right or power to deny human beings of fundamental, unalienable rights. The concept of "incorporation" simply means that there is now a legal construct that prohibits States from doing something they have no right to do in the first place.

Just like states do not have a right to establish religion, or control the press, or regulate free speech, or search you without a warrant, or detain you without cause, they do not have the legal or moral standing to control, restrict, or regulate a right that shall not be infringed, such as the right to keep and bear arms.

That's what "incorporation" really means...

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I don't think the original 13 states intended "the bill of rights" portion to be only applied to the federal gov. the whole "We the people..." preamble leads me to believe this. That everystate joining the union should have the same belief in these "unalienable" rights.

Even looking at the wording of the 2A, it mentions "state" in it.

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I don't like the First Amendment being incorporated. Let the State constitutions restrict State and local governments. (Most, if not all, do.)

I think the Second has been "incorporated" all along (although not in practice).

The difference?

First: "Congress shall make no law..."

Second: "...shall not be infringed."

The First specifically restrains the federal government. The Second restrains every level of government.

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Dreamer, sudden valley gunner, and eye95 need to do more research. The entire Constitution was meant to be a restraint of the feds and no one else.

Example: Even after the ratification of the Bill of Rights, there were state sponsored religions. Not regulated by the feds, but the states.

14A was only meant to tell the states that they could not pass one set of laws for one group and another for everyone else, that's it.

BTW, the preamble is not part of the Constitution that was ratified, it was added afterwards and therefore has no force of law. In other words, it is not actually part of the Constitution.

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mcdonalk, the supremacy clause of the constitution prevents the states from passing any law that violates federal law.

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"Why do we see giving up our states' right to home rule as a good thing?" -- mcdonalk

If that's what it takes to FORCE some state to recognize and 'allow' basic civil rights! For example, Hawaii apparently will need to be forced to recognize & affirm the 2nd Amendment/RKBA!

IMO, EVERY American -- regardless of what state he/she lives in -- should have the SAME basic civil rights. NO EXCEPTIONS, even in DC. I mean, aren't THEY Americans, too? Otherwise, what do 'Americans' have in common rights-wise? What does it mean to be an American ifcitizens have varying 'rights' depending upon which state they live in?Nothing, if rights depend on each state'sdecisionto recognize them or not. We'reeither "The Union" or not.

So to me, RIGHTS are sacrosanct, and ALL American citizens (illegals have NO rights whatsoever) should have the SAME set of basic Civil Rights (among these, the RIGHT of self-defense, AND consequently, free access to & bearing of the tools (firearms) needed to exercise said right). ALL OTHER stuff can be left up to the states. But not RIGHTS.

RIGHTS shouldbe held in common by EVERY American citizen, and not be subject to compromise or debate. Everything else IS debateable -- left up to the states...IMO.

So I AM a supporter of State's Rights, but not when it comes to basic Civil Rights...they should be 'national.'Yet not even the federal government, however,can do anything except recognize and affirm them. It can't grant or deny them.

-- John D.

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Homerule is as applicable to political subdivisions of the several states as it is to the States themselves - and preemption.

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Oh, great rodbender, I bow to your superior (and unsupported) knowledge.

Please note, I gave a reason for my position, based on a contrast in the actual wordings of the First and Second Amendments. I notice that, along with an insult to three other posters, you made a singular pronouncement with zero support, other than your implied research that you assume to be more in-depth than that of others.

Check back when you have deflated that air of superiority just a tad.

Until then, you guessed it, I am moving on.

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The idea that "home rule" or State sovereignty includes the legal ability of a State or municipality to enact laws, regulations, statutes, or ordinances that restrict, control, or prohibit a fundamental, unalienable human right is simply false.

I think the definition of "unalienable" has been recently addressed here in another thread, but I think on this specific issue it bears repeating.

Unalienable means that a right is fundamental to the human condition. It means that it is a "natural right", a right that ALL humans are born with, and that NO body--government, community, or individual--has the legal standing to deny the free exercise of that right to a law-abiding citizen.

When a State, municipality, or other governmental body attempts to restrict one of these rights, it is stepping outside it's moral, legal, and civic abilities.

A governmental body CANNOT deny a right that is fundamental to the human condition.

The reason we even need to worry about things like "incorporation" is because some State and local governments don't seem to believe that they need to recognize these fundamental human rights. If State and local governments would just treat their citizens as HUMAN BEINGS, and recognize that they are, for the most part, law-abiding, community-minded, and FREE, we would have no reason to attempt "incorporation".

Forcing the legal construct of "incorporation" on State and local governments is simply a way to keep the over-reaching, human-rights-denying, neo-totalitarian policies of these petty oligarchs in check.

"Incorporation" is simply the "people" standing up to their local governments, and saying "WE ARE HUMAN, and we DEMAND you recognize that fact."


"How many fingers am I holding up now, Winston?"

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It seems to me we shouldn't try to have it both ways. Either a right is a fundamental, unalienable right or it isn't. If it is, then it applies to all people regardless of nationality or citizenship (I'm looking at you, cloudcroft). You can't, by definition, regulate or restrict an unalienable right. When people start insisting that there are grey areas, that is when things start falling apart.

1st Amendment:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

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By incorporating this against (am I using the terminology correctly?) the states, you are simply substituting "State Legislature" for "Congress". If the rights listed in the 1st Amendment are indeed unalienable, then the states shouldn't be allowed to abridge them either. And yet, when the SCOTUS incorporated the 1st Amendment, they also incorporated the existing body of case law which spells out what abridgments are 'okay' and when free speech doesn't apply. Too many grey areas. Maybe citizens of Alabama don't want restrictions that are okay in California. Maybe people in Maryland don't want to do things the same way they do in Nevada. And yet under the 'equal protection' clause, the entire country is expected to abide by whatever restrictions were in vogue at the time the Supreme Court decided the case.

I would point out, again, that the Federal government doesn't (and arguably, shouldn't) have the authority to step in and force a state government to act a certain way that may be against that state's constitution (which is, or was at the time, the people's will for how they want to be governed).

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When you substitute "State legislature" for "Congress," you change the Constitution.

To maintain the authority of the People and the States, the Framers created a Federal system. Were they to inordinately restrict the State governments, they would be committing the same sin they were trying to prevent.

Federalism promotes Liberty. Yes, one State might have an official religion. However, that allows people to choose to live where their religion is ingrained in their society. Folks who don't like this would vote with their feet. Likewise, some States would be heavily into redistribution of wealth. Folks would be free to choose to live in one of those States, paying higher taxes and having more "social justice" or to live in a State with lower taxes and only the most minimal of safety nets.

This system, were it still fully realized, would create a marketplace of States, where a political capitalism would provide choices, which would either work well or be replaced.

I don't think the Framers ever intended the First Amendment to be incorporated to the States. However, the wording of the Second Amendment does not specify Congress as the one entity that shall not infringe. The implication is that no one shall infringe.

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eye95 wrote:

Until then, you guessed it, I am moving on.

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marrero jeff wrote:

mcdonalk, the supremacy clause of the constitution prevents the states from passing any law that violates federal law.

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While this is a true statement, it only applies if the federal law is Constitutional.

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Following the Civil Way we amended the Constitution. Amendments are now part of the original document. The fourteenth amendment was to insure that the entire Constitution and Bill of Rights would be applied uniformally to all citizens and in all states.

It has always been My Opinion that the 'privileges or immunities' clause should and does provide citizens with protections in the Bill of Rights.

If I have the 'privelege' to carry in my state as a citizen defined by the 14th Amendment then I have the 'privilege' to carry in any of the states of the Union. While this is soley my opinion and the Court of the time during Reconstruction did not use the clause correctly, this is what was meant to be done with this far reaching amendment.

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.

<snip>

5. The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.

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Alright, so it looks like the 14th amendment, being effectively a part of the constitution as if the framers had written it themselves, does give Congress the authority to impose equality (what a fun phrase ) on the states. Although this does, in a roundabout way, establish that the Federal government does have the authority to make decisions that bind the states to some of the same restrictions as the Feds, it doesn't really answer my question of why we are rooting for this to happen again.

I still have not been convinced that the Federal government should have the authority (that the states gave it :quirky) in the 14th amendment.

I must admit I like Eye's vision of a Marketplace of States even if the system would be burdensome to those who travel or move a lot... I don't agree with him that the 2nd amendment applies to the states because it doesn't say it didn't.

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I normally don't double post, but I decided this latter part wouldn't have made much sense tacked on to the end of my post above...

In researching my position, I came across the best argument against me that I have seen so far. Article VI of the Constitution states, in part:

This Constitution, and the Laws of the United States... ...shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby

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There is no way I can argue that Article VI only limits or affects the Fed. No way that I can argue it is not part of the Constitution. No way that I can argue that the laws or constitutions of any state can supersede the restrictions put against the government in the Bill of Rights.

Simply put, based on Article VI, full incorporation of all the amendments is what the framers intended, and therefore I accept and support the idea of incorporating the 2nd amendment. :celebrate

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mcdonalk wrote:

I must admit I like Eye's vision of a Marketplace of States even if the system would be burdensome to those who travel or move a lot... I don't agree with him that the 2nd amendment applies to the states because it doesn't say it didn't.

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What about those who are born into poverty? Such people are at an obvious disadvantage if their only vote is with "their feet".

Talk about being disenfranchised!

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marshaul wrote:

mcdonalk wrote:

I must admit I like Eye's vision of a Marketplace of States even if the system would be burdensome to those who travel or move a lot... I don't agree with him that the 2nd amendment applies to the states because it doesn't say it didn't.

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What about those who are born into poverty? Such people are at an obvious disadvantage if their only vote is with "their feet".

Talk about being disenfranchised!

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I kind of like it too, but certain rights should be universal as well. I honestly don't have an answer as to where that line should be drawn.

On the other hand, I don't think it "disenfranchises" poorer folks. I moved out west with less than 500 bucks to my name, no job, and drove a car with barely any breaks to get here. Granted, I don't have kids or a lot of expenses, but that is a result of choices I made. People make choices that bring about their unfortunate circumstances. I speak of the majority, not special cases like the mentally or physically ill, or who are otherwise unable to work because of some legitimate circumstance outside of their control.

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IndianaBoy79 wrote:

marshaul wrote:

mcdonalk wrote:

I must admit I like Eye's vision of a Marketplace of States even if the system would be burdensome to those who travel or move a lot... I don't agree with him that the 2nd amendment applies to the states because it doesn't say it didn't.

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What about those who are born into poverty? Such people are at an obvious disadvantage if their only vote is with "their feet".

Talk about being disenfranchised!

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I kind of like it too, but certain rights should be universal as well. I honestly don't have an answer as to where that line should be drawn.

On the other hand, I don't think it "disenfranchises" poorer folks. I moved out west with less than 500 bucks to my name, no job, and drove a car with barely any breaks to get here. Granted, I don't have kids or a lot of expenses, but that is a result of choices I made. People make choices that bring about their unfortunate circumstances. I speak of the majority, not special cases like the mentally or physically ill, or who are otherwise unable to work because of some legitimate circumstance outside of their control.

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Exactly. This country was built by people who had nothing, got up and went somewhere where the could make something, and made a lot.

The US wouldn't be where it is today if it weren't for poor people who voted with their feet.