Can rights guaranteed by Constitution be infringed by states? [2A]

[Cogz]

This is something that I wondered for a long time.

IF the 2nd Amendment is an individual right - do states have the right to infringe on that individual right?

For example: Illinois and Chicago - the region where I live.

In Illinois it is Illegal to carry concealed or open - and some areas like Chicago don't allow you to have firearms at all (for all practical reasons). If the right is guaranteed in the U.S. constitution - how is it that local governments can remove that right?

Is what they are doing legal constitutionally?

 

[Deborah K]

No. The Constitution is the supreme law of the land. State constitutions. laws and statutes do not supercede the US Constitution. At least, that's how it's supposed to be.

This is why I love Ron Paul so much. Everyone else uses the Constitution to forward their own agendas while disregarding it when it doesn't suit them - not just people in Washington. The states and counties do it as well.

 

[robertwerden]

They can and they do. Through regulation states can abide by a law passed by the constitution and congress yet still completely trash it.

2nd amendment is a prime example. While in NYC you are by all means allowed to have a gun, you must do so under the city regulations. Those regulations are bias towards law enforcement and persons in harms way such as armored car workers and body guards.

In order for a state to be prevented from doing this, the constitution needs to be amended to say, any right expressly given to people may not be regulated by the states.

 

[tonyr1988]

This is called incorporation (applying the Bill of Rights to the states as well as the feds). Some Paul quotes:

If constitutional purists hope to maintain credibility, we must reject the phony incorporation doctrine in all cases-- not only when it serves our interests.

The phony "incorporation" doctrine, dreamed up by activist judges to pervert the plain meaning of the Constitution, was used once again by a federal court to assume jurisdiction over a case that constitutionally was none of its business.

I haven't quite decided how I feel about incorporation, but here's some background so you can start making up your mind:

-James Madison originally wanted incorporation to be built-in to the Constitution. "No state shall violate the equal rights of conscience, or the freedom of the press, or trial by jury in criminal cases," but it died in the Senate.

-Thomas Jefferson once said, "While we deny that Congress have a right to controul the freedom of the press, we have ever asserted the rights of the states, and their exclusive right, to do so."

-In Maxwell v. Dow, the Supreme Court ruled that the Bill of Rights "were not intended to and did not have any effect upon the powers of the respective states," adding, "This has been many times decided."

-Then, the 14th amendment was passed, which said:

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.

Basically, it said that states had to follow due process of law. Then, the Supreme Court started ruling that the other amendments were essential in order to have due process of law. Eventually, it all got incorporated.

There's almost no doubt that the original intent was to not have incorporation - the states could violate the Bill of Rights. There are two questions for you to decide:

1) Did that change with the 14th amendment?

2) Should that change?

Paul says, "No, no." I'm not sure what I believe. Are there any lawyers in here (or constitutional pros) that can recommend some good books about this?

 

[NMCB3]

The States are bound by their respective constitutions "The Constitution" applies to the federal government only. Unfortunately many states are as tyrannical as the feds.

 

[Gilby]

The States are bound by their respective constitutions "The Constitution" applies to the federal government only. Unfortunately many states are as tyrannical as the feds.

No, the US Constitution is a contract between the States that charters a new entity that we know as the US government and the States are restricted by it and have delegated some powers to this new entity. This new entity can not however violate natural law and neither can the States.

Basically, each State government is an entity like a trust that has all of its inhabitants as the trustees. We are not bound by the constitution because we never signed the agreement, and even a majority vote cannot force someone to except a contract they do not agree with. These entities cannot violate natural law which revolves all around property rights, the most fundamental property being one's self. Over the generations, the public has forgotten these principles of freedom and have allowed our government to turn into an authoritarian power, much like the one that the American Revolution was fought against.

 

[Bradley in DC]

The contacts clause of the Constitution always trumped states rights in favor of the individual.

 

[Fox McCloud]

It depends on the wording of the amendment

for example, States can infringe on the 1st amendment...they cannot, however, infringe on the second amendment, because of how it's worded.

The 1st states that "Congress shall make no law", not "the states shall make no law". The 2nd amendment says "the right of the people to keep and bear arms shall not be infringed"...which insinuates that no entity can infringe on those rights, not just the Federal government.

 

[fmontez]

The Constitution is a piece of paper, it can not impede any man.

 

[RustyBrewster]

"A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed."

It says people instead of state, meaning it's an individual right, not a collective right, of the people. The states can not take away any rights of the people that are recognized in the Constitution.

 

[Fox McCloud]

"A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed."

It says people instead of state, meaning it's an individual right, not a collective right, of the people. The states can not take away any rights of the people that are recognized in the Constitution.

correct, if it is worded as such; in this case, it's worded that no group can take it away.

the right to free speech, however, can be taken away by the States.

seriously though, do you think the States are going to say "no" to free speech though?

 

[jabrownie]

Don't forget that just because something appears to go against the constitution, all that means is that it will have to undergo strict scrutiny by the courts, in which case the state will have to show a compelling governmental purpose/interest in having the law. If this is demonstrated and it is possible in virtually any way to read the constitution and the law in question as not being conflicting, then it will be done and the law will stand. That's one of the main ways that states get away with half the regulation crap that they do.

 

[msrebel54]

"A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed."

It says people instead of state, meaning it's an individual right, not a collective right, of the people. The states can not take away any rights of the people that are recognized in the Constitution.

ALL rights are individual rights, there is no such thing as collective rights. Either I have a right to breathe or I don't. I don't have to belong to this or that group before I have a right to breathe. Rights do not require permission, from the government or anyone else. Either I have the right to defend my life or I don't. I don't have to belong to a certain group of people before I have that right. If I do, then it's not a right. If you have to ask permission, from anyone, then it's a privilege, not a right.

That having been said, if ANY of the things talked about in the first 10 amendments to the Constitution are not "rights", then why are they in something called the bill of RIGHTS?

 

[budafied]

it really makes no sense to say that the people have a right to bear arms, if the states can take it away...

not that its not happening, but its a tad bit illogical...

 

[dementedme]

the federal govt is there to protect the citizens of the country from unfair and unjust laws (as well as other things.. you can look em up=P)

if the state made a law banning guns, this would be an unjust law, according to the constitution, and the federal government would tell the state to repeal the law or face whatever nasty consequences lay ahead.